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[2025] NSWCA 155
respondent. Notice of motion to adduce further evidence dismissed; appeal dismissed; appellant ordered to pay the first and second respondents’ costs of the appeal and motion.
Robert Wilcox argued that properties near Walgett, or shares in companies holding them, were held on trust for him and his brother. The Court of Appeal rejected the argument. The 1962 deed concerned a small sum and did not identify the properties or shares; company records did not support the claimed trusts; and Robert had already chosen not to raise a trust claim in earlier litigation despite saying he knew of one. A broad settlement release also covered the later claims. The Court refused to admit further evidence because it was not shown to meet the requirements for evidence on appeal, and it found no error in the trial judge’s procedural decisions. Both the motion and appeal were dismissed, with costs.
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2,302 words · generated 06/10/2026
The Court of Appeal dismissed Robert Wilcox’s appeal from the dismissal of his claims concerning rural properties near Walgett. It also dismissed his motion to adduce further evidence, filed five days before the appeal hearing. The orders required him to pay the first and second respondents’ costs of both the appeal and the motion ([9]-[10], [140]).
6 cited instruments linked from this judgment.
The properties in dispute were parts of Barwon Vale, Gidgerygah and Wangrawally. They were held in the names of companies formed from the 1960s onwards. Robert claimed that the properties, or shares in the companies, were held on trust for him and his brother, Benjamin. His case relied principally on a 1962 trust deed and a letter dated 25 September 1980 from Mr Duffy, a partner in the firm that had drafted the deed.
The deed settled £10 on trust. It provided for Patricia, Robert’s mother, to benefit during her lifetime, but gave the trustee discretion to pay the entire fund to her after she turned 30. After her death, the deed provided for income and capital to be held for her children ([19]-[20]). It did not identify the Walgett properties or the companies. The 1980 letter said Patricia’s interests in Sanderson Estates were “covered through trusts”, but the Court considered that the letter did not explain how the properties or company shares were connected with the deed ([21]-[25]).
Robert had earlier litigated claims relating to the family assets. In 2010, he and Benjamin brought proceedings concerning the properties and sought family provision from Ian Sanderson’s estate. Robert later said that he had been advised not to raise a trust claim in those proceedings because he lacked evidence and it was not in his pleading. He accepted that advice ([132]). In 2015, he settled a family-provision claim against Patricia’s estate, receiving a legacy of about $1.1 million and forgiveness of costs debts. The settlement included a broadly worded release ([39]-[41]).
The 1962 deed itself was found in August 2024, shortly before trial. The 1980 letter, however, had become known to Robert in 2016. The primary judge dismissed his later trust claims, finding that the claims were barred by the 2015 release and by estoppel, and that they also failed on the evidence ([48]-[52]). The Court of Appeal upheld that result.
The Court approached the appeal as involving several independent obstacles. Robert needed to displace the primary judge’s factual findings on the trust claims, overcome the release and estoppel defences, and establish error in the procedural decisions refusing further evidence and a retrial ([8], [114]). He did not succeed on any of those fronts.
First, the Court found the proposed fresh evidence did not satisfy the requirements for admission on appeal. For evidence available at trial, s 75A(8) of the Supreme Court Act 1970 (NSW) requires “special grounds”. The Court described the usual requirements as credibility, high or relevant probative value, and inability to obtain the evidence with reasonable diligence for trial ([55]). Much of the material had already been the subject of the trial application to reopen. Other documents could have been found through ordinary inquiries, discovery or subpoenas. The expert material largely recited existing records or speculated about what might have been intended in 1962 ([60]-[70], [80]-[83]).
The Court was particularly concerned that the reports could not repair the gap between the deed and the claimed property interests. The deed concerned £10 and did not refer to the properties. The expert report also posited that the company shares, rather than the properties, might be held on trust, which diverged from the pleaded case ([63]). The Court applied the principle that a party cannot avoid an evidentiary ruling made at trial by seeking to tender the same material as further evidence on appeal ([64]).
Second, the Court found no appealable error in the primary judge’s case-management decisions. The decisions to refuse an adjournment and to refuse reopening were discretionary. The appellant needed to show a House v The King error, not merely persuade the Court that a different decision could have been made ([85], [97], [101]). The adjournment granted after evidence closed was for preparing written submissions, including transcript references. The later investigation and reopening applications went beyond that purpose ([98]-[100]). The Court also noted that Robert had been represented for most of the three years before trial, and there was no evidence explaining why relevant inquiries had not previously been made ([69]-[70]).
Third, the Court upheld the conclusion that the trust claims failed on their merits. The deed did not mention the Walgett properties, and the proposed link between the deed and assets held by companies was speculative. In particular, the Court noted the mismatch between Ian being trustee under the deed and the companies holding title to the properties ([25], [51]). Company records described shareholdings as “beneficially owned” and did not establish that the companies acted as trustees. Some records left trustee-specific fields blank or marked them “N/A” ([74]-[78], [110]). The Court found no basis to disturb the primary judge’s preference for contemporaneous objective records over Robert’s recollection of conversations ([108]-[111]).
Fourth, the Court held that the 2015 release independently barred the claims. It explained that s 96 of the Succession Act 2006 (NSW) concerns revocation of the court’s approval of a family-provision release. Revoking that approval would remove only a necessary condition for that release’s efficacy. It would not, by itself, set aside the deed’s other releases ([120]-[123]). The trust claims fell within the deed’s broad language, including claims relating to the estate’s distribution. Robert had not established grounds to set aside the deed as a whole ([122]-[124]).
Finally, the Court held that the later trust claim was barred by Anshun estoppel. It did not need to decide the distinct issue-estoppel argument. Robert said he had heard before 2010 that the properties were held on trust for him and his brother. His evidence was that he consciously chose not to raise that claim, on legal advice. The properties were also relevant to his earlier claims concerning Ian’s estate and his asset position. The Court considered it unreasonable to reserve the trust claim for later litigation ([131]-[133]).
The judgment does not purport to reformulate the general law of appeals, trusts, releases or estoppel. It applies established principles to a particular litigation history and evidentiary record.
For further evidence on appeal, the Court applied the “special grounds” requirement in s 75A(8) and the criteria stated in Kramer v Stone: credibility, probative value, and reasonable diligence at trial ([55]). It also applied Chandrasekaran v Western Sydney Local Health District to reject the attempt to tender material that had already been the subject of a refused reopening application ([64]). The practical emphasis is that a litigant must explain why evidence was not obtained earlier and cannot simply repackage a failed trial application as fresh appellate evidence.
For discretionary procedural rulings, the Court applied the House v The King standard. An appeal does not succeed merely because the appellate court might have weighed the factors differently. The appellant must identify a relevant error in the exercise of discretion ([85], [97], [101]).
On releases, the Court drew a distinction between approval under s 95 and the release deed’s other provisions. Section 96 permits revocation of approval in specified circumstances, but revoking approval does not automatically invalidate every separate release term in the deed ([117], [120]-[125]). The Court did not decide whether “fraud or undue influence” under s 96 could include failure to act with due care and diligence, because that question was unnecessary to the outcome ([125]).
On estoppel, the Court left unresolved the appellant’s arguments about issue estoppel and whether a special exception applied where documentary evidence was unavailable earlier. It found Anshun estoppel sufficient. The focus was the reasonableness of withholding the later claim, given the appellant’s awareness and the significance of the properties in the earlier proceedings ([130]-[133]). The judgment therefore illustrates the application of Anshun estoppel to these circumstances, rather than settling the broader questions the parties raised.
At [55], the Court states that an appellant generally needs to establish that proposed further evidence is credible, materially probative, and could not with reasonable diligence have been obtained for trial. In plain English, evidence does not qualify simply because a party now considers it helpful or has assembled it after trial.
At [64], the Court says a party “cannot circumvent” an evidentiary ruling by seeking leave to tender the same material on appeal. This means that the appeal process is not a second opportunity to repeat an application that the trial judge has already refused.
At [85], the Court says the appellant had to identify a House v The King error to disturb the primary judge’s procedural decisions. Put simply, the Court was reviewing whether the judge made an appealable error, not deciding the procedural questions afresh.
At [120], the Court explains that revoking approval under s 96 removes “only a necessary condition” for the family-provision release’s efficacy. The distinction matters because the 2015 deed contained other, broader releases. Even if approval of one release were revoked, the remaining terms would not automatically disappear.
At [133], the Court describes the failure to advance the trust claim earlier as a “conscious forensic decision, based on legal advice”. In ordinary terms, the later claim was not merely overlooked: on Robert’s own evidence, he knew of a possible trust and deliberately did not rely on it in the earlier case.
At [140], the Court records the final result: the motion was dismissed, the appeal was dismissed, and the appellant was ordered to pay the first and second respondents’ costs.
The judgment is most directly relevant where an appellant seeks to introduce evidence that existed, or could have been obtained, before trial. It highlights the importance of showing what reasonable steps were taken, why the evidence was not obtained earlier, and why it is materially probative. It is also relevant where the proposed evidence was already the subject of an unsuccessful trial application to reopen.
The procedural reasoning may matter where an adjournment is granted for a defined purpose, such as preparing closing submissions, and a party later uses that period to pursue new evidence or amendments. The Court treated the stated purpose of the adjournment, the procedural history, delay, and prejudice as relevant to whether reopening should be allowed ([92], [95]-[101]).
The estoppel analysis may be relevant where a party knew of a possible claim during earlier litigation, deliberately chose not to advance it, and later seeks to litigate it after the earlier proceedings have addressed related property or financial issues. The Court’s reasoning depended on the appellant’s own evidence of prior awareness and deliberate non-pleading, together with the relevance of the properties to the earlier litigation ([131]-[133]).
The release analysis may be relevant where a settlement contains multiple release provisions and a party challenges only court approval of the family-provision component. The judgment stresses the need to distinguish the statutory approval mechanism from the deed as a whole ([120]-[124]).
The trust analysis is tied closely to its evidence. The Court examined the deed’s actual terms, the ownership structure, the company records, and the connection between the trustee and the registered proprietors. It does not establish that company records will always determine beneficial ownership, or that a deed concerning a nominal settlement can never extend to later assets. Its conclusion was that this particular record did not prove the asserted trusts.
The provided judgment is dated 16 July 2025 and contains no discussion of later decisions applying or distinguishing Wilcox v Chapple. On the material supplied, later treatment cannot be assessed. It would be unsafe to infer that a later court has adopted, limited or criticised the reasoning without a source recording that treatment.
The judgment itself relies on earlier authorities. It applies Kramer v Stone to the requirements for further evidence, Chandrasekaran to the rule against circumventing trial evidentiary rulings, House v The King to discretionary decisions, and Clone Pty Ltd v Players Pty Ltd (In Liq) and Wentworth v Rogers (No 5) in addressing fraud-based challenges to judgments ([55], [64], [85], [137]-[138]). It also refers to earlier authority on undue influence in probate and on assessment of evidence, but does not claim to alter those doctrines ([110], [120]).
The Court expressly left unresolved whether “fraud or undue influence” in s 96 of the Succession Act 2006 (NSW) can extend to a failure to act with due care and diligence. It did so because the appellant failed to establish grounds to set aside the other terms of the deed, making a decision on that issue unnecessary ([125]).
The Court also did not determine the asserted “special exception” to issue estoppel based on documentary evidence not being available in earlier proceedings. It considered that question unnecessary once it found an Anshun estoppel ([130]-[131]).
The judgment does not comprehensively determine how a trust settled with a nominal amount may relate to property or shares acquired later. It decides only that the deed, letter and records in this case did not establish that the properties or shares became part of the trust fund, or were otherwise impressed with a trust for Robert and Benjamin ([25], [51]-[52], [106]-[111]).
Nor does it decide the effect of every possible kind of settlement release. Its conclusion depended on the wording of this deed, including clauses 3.1(c) and 3.1(e), and on the absence of a properly advanced basis to set aside the deed as a whole ([122]-[124]).
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Wilcox v Chapple [2025] NSWCA 155
Hearing dates: 28 May 2025
Decision date: 16 July 2025
Before: Leeming JA; Ball JA; Griffiths AJA
Decision: 1. Appellant’s notice of motion filed 23 May 2025 dismissed.
2. Appeal dismissed.
3. Appellant pay the first and second respondents’ costs of the appeal (including the costs of the notice of motion filed 23 May 2025).
Catchwords: EQUITY — trusts — rural properties said to be held on trust — plaintiff aware of letter saying he was beneficiary of trust many years ago — plaintiff made deliberate decision not to advance claim based on trust in earlier litigation seeking family provision orders — litigation compromised by release approved by Court — whether claims barred by release — whether claims barred by res judicata or Anshun estoppel — whether claims made out on merits
PROCEDURE — appeals — further or fresh evidence — whether plaintiff should be permitted to rely on further evidence — relationship between application for tender of further evidence on appeal and ground of appeal challenging rejection of same evidence at trial — whether plaintiff had established evidence not available by reasonable diligence and whether evidence likely to be material
Legislation Cited: Bankruptcy Act 1966 (Cth), s 58
Civil Procedure Act 2005 (NSW), ss 58, 62
Duties Act 1997 (NSW), s 304
Succession Act 2006 (NSW), ss 59, 95, 96
Supreme Court Act 1970 (NSW), s 75A
Trustee Act 1925 (NSW), s 63
Uniform Civil Procedure Rules 2005 (NSW), rr 31.23, 36.15, 51.18, 51.51
Cases Cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Bridgewater v Leahy (1998) 194 CLR 457; [1998] HCA 66
Camden v McKenzie [2008] 1 Qd R 39; [2007] QCA 136
Chandrasekaran v Western Sydney Local Health District (t/as Westmead Hospital) [2023] NSWCA 288
Chapple v Wilcox [2014] NSWCA 392
Clone Pty Ltd v Players Pty Ltd (In Liq) (2018) 264 CLR 165; [2018] HCA 12
Federal Treasury Enterprise (FKP) Sojuzplodoimport v Spirits International BV [2021] FCAFC 77; 389 ALR 612
Foundas v Arambatzis (2022) 109 NSWLR 73; [2022] NSWCA 113
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Grant v John Grant & Sons Pty Ltd (1954) 91 CLR 112; [1954] HCA 23
House v The King (1936) 55 CLR 499; [1936] HCA 40
Kramer v Stone (2023) 112 NSWLR 564; [2023] NSWCA 270
Pham v Gall (2020) 102 NSWLR 269; [2020] NSWCA 116
Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285
Watson v Foxman (1995) 49 NSWLR 315
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
Wilcox v Chapple [2024] NSWSC 1394
Wilcox v Wilcox [2012] NSWSC 1138
Wilcox v Wilcox (No 2) [2014] NSWSC 88
Texts Cited: P R Adams and B J McMahon, Australian Tax Planning with Precedents (Butterworths, 1961)
Category: Principal judgment
Parties: Robert William Wilcox (Appellant)
John Francis Chapple (First Respondent)
Lorraine Monique Wye (Second Respondent)
Sanderson Estates Pty Ltd (receivers and managers appointed) (Third Respondent, submitting)
Representation: Counsel:
D Wilson, solicitor (Appellant)
P M Afshar (First Respondent)
T O’Brien (Second Respondent)
Solicitors:
Wilsons Solicitors (Appellant)
Newnhams Lawyers (First Respondent)
Bridges Lawyers (Second Respondent)
Peterson Haines (Third Respondent, submitting)
File Number(s): 2024/444822
Publication restriction: Nil
THE COURT: Mr Robert William Wilcox appeals as of right from a judgment of the Equity Division of this Court, constituted by Ward P: Wilcox v Chapple [2024] NSWSC 1394. After a hearing occupying 12-15 and 29 August 2024, her Honour dismissed the appellant’s claims in respect of the deceased estates of each of his mother, Patricia (of which the first respondent Mr Chapple is the executor) and his step-father, Mr Trevor Harland (of which the second respondent Ms Wye is executor). The claim for family provision against Mr Harland’s estate was dismissed and though an appeal was instituted against those orders, that appeal was discontinued by consent in April 2025. Nonetheless, it will be seen that much of what was argued in this appeal directly involves the parties to and issues in those earlier proceedings.
Without conveying either disrespect or undue familiarity, it is desirable to use the nomenclature adopted by the parties, and refer to Robert, his mother Patricia, his step-father Trevor, his brother Benjamin, his maternal grandfather Ian and his maternal great-grandfather Jack by their given names.
The claims against Patricia’s estate were premised on the discovery in 2024 of a trust deed settled in 1962 by Jack, which, it was said, indicated that title to properties near Walgett known as part “Barwon Vale”, “Wangrawally” and “Gidgerygah” was held by companies controlled by Ian on trust for Robert and Benjamin.
Benjamin was joined as a defendant in the proceedings below. Benjamin was and remains an undischarged bankrupt, and leave was not sought under s 58(3)(b) of the Bankruptcy Act 1966 (Cth) to proceed against him. Although a submitting appearance was filed on 21 May 2025, no one appeared in the hearing of this appeal for the third respondent, Sanderson Estates Pty Ltd, to which receivers and managers have been appointed. The result is Mr Chapple and Ms Wye are the only active respondents to this appeal.
Robert’s original notice of appeal referred to a 13-page “Annexure” containing 43 grounds of appeal. The second amended notice of appeal, helpfully and appropriately, reduced the grounds to seven, consistently with the requirement for the document to state “briefly, but specifically” the grounds relied upon: Uniform Civil Procedure Rules 2005 (NSW), r 51.18(1)(e). They may be summarised as follows.
The primary judge dismissed the statement of claim and refused the appellant’s belated application to amend his statement of claim to extend the trust claims to other land and the shares in the companies. In part that was because decisions made by Pembroke J in 2010 and by Brereton J in 2015 granting Robert an order for family provision out of the estates of Ian and Patricia respectively, were found to give rise to res judicata or estopped Robert from relitigating the trust argument. That is the subject of ground 5. In part it was because of her Honour’s findings that nothing in the trust deed or other evidence indicated that the claimed properties were held on trust. This is the subject of grounds 1-4. An attempt to impugn a release given by Robert in 2015 because of “fraud or undue influence” under s 96 of the (NSW) was also rejected and is the subject of ground 5. Ground 6 alleges that the primary judge erred in refusing to set aside the 2010 and 2015 judgments under UCPR r 36.15 on the basis that they were procured by fraud.
7. The Primary Judge erred in refusing to allow the Appellant:
(a) To vacate the hearing and adjourn the proceedings so as to permit the Appellant [sic] carry out necessary forensic investigations and obtain expert opinion regarding matters surrounding the 1962 Trust Deed;
(b) To reopen his case and tender the additional affidavits of the Appellant’s solicitor, Mr Wilson sworn 25 and 28 August 2024 containing recent evidence following point in time enquiries of the 1962 Trust Deed between 15 and 28 August 2024;
(c) To reopen his case and tender the accounting report of Nicholas Wilson dated 28 August 2024 providing professional accounting opinion on the recorded financial achievements of Sanderson Estates Pty Ltd and I.F. Sanderson Pty Ltd;
(d) To reopen his case to file a Fourth Amended Statement of Claim corresponding to the 1962 Trust Deed and matters arising form [sic] it so as to include as part of the Appellant’s claim, the property ‘Wangrawally’ and any other property holdings of the company Gidgerygah Pty Limited.
(e) To reopen his case to further cross-examine Mr Duffy and issue subpoena [sic] calling for the production of safe custody records of solicitors who drafted the 1962 Trust Deed;
(f) To reopen his case to cross-examine the First defendant, Mr Chapple, in his capacity as executor of the estate of the late Patricia Ann Wilcox and to access the Family Court of Australia file produced under subpoena in the proceedings relating to the value of the Sanderson Company shares.
It will be seen that the procedural errors in ground 7 would give rise, at best, to a retrial, and that in order to obtain judgment in his favour, Robert needs to succeed in challenging (a) the factual findings made by the primary judge raised by grounds 1-4 and also (b) the legal conclusions reached by the primary judge based on the release and various estoppels flowing from the deed judgments raised by grounds 5 and 6.
Robert filed a notice of motion on 23 May 2025, and a lengthy affidavit of 123 pages on 26 May 2025, shortly before the hearing of the appeal, seeking to adduce new evidence. Much of that evidence had been the subject of the belated application to reopen at trial. Robert also sought to tender two “supplementary reports” handed up to the Court on the morning of the hearing.
For the reasons that follow, the motion to adduce fresh evidence should be dismissed, none of the grounds of appeal is made out, and the appeal should be dismissed.
The late Ian Francis Sanderson conducted a farming business with his wife, Linda Sanderson, on a number of properties near Walgett, NSW. He was the father of Patricia, who was born in 1943, and the family resided on a property in Walgett known as Allawa (sometimes spelt “Allawah”). Ian’s father, Jack Irwin Dent Sanderson, had conducted farming operations in the region for decades, and accumulated several rural properties that are the subject of this dispute. Ian died in 2010. Probate of his 2002 will was granted to Patricia.
Robert was born in 1968 and Benjamin was born in 1974. Patricia and her husband (Robert Wilcox Snr) divorced in 1994, and Patricia commenced a relationship with Trevor Harland in 1997. They married shortly before her death in 2014. Probate was granted to Mr John Francis Chapple, Patricia’s solicitor, who is the first respondent to this appeal.
Trevor died on 27 May 2022. Probate of his will was granted jointly to his daughter Ms Wye and his son from another marriage (Mr Raymond Watson), but that grant was revoked and letters of administration were instead granted to Ms Wye in November 2023 after Mr Watson expressed an intention to retire as executor.
The three properties near Walgett which are the subject of the present dispute are known as part Barwon Vale, Gidgerygah and Wangrawally. In the 1960s, three companies were incorporated, in accordance with accounting advice, to hold the title to these properties. Mr Wilson emphasised throughout the trial and in this appeal that this was done so as to minimise death duty.
The first company, incorporated in 1962, was Sanderson Estates Pty Ltd. The shareholding consisted of one ordinary share, given beneficially to Patricia shortly thereafter, and one B class share held beneficially by Ian. In June 1962, Sanderson Estates purchased part Barwon Vale from Jack as “beneficial owner” by a “duly stamped” deed of assignment. The 1990 annual company report of Sanderson Estates indicates that the shareholding remained as it was in 1962, with both Ian and Patricia being directors and “beneficial owners” of that shareholding.
The second company, known as Gidgerygah Pty Ltd, was incorporated in 1965. Its incorporation and structure are not of present relevance. In 1967 it acquired the property known as Wangrawally. This company and its shares were only raised in the proposed fourth amended statement of claim, which was rejected by the primary judge.
The third company was I F Sanderson Pty Ltd, which was incorporated in 1967. The shareholding of I F Sanderson comprised two A class shares held by Ian and Linda, being the only shares with voting rights. In February 1968, Patricia was allocated 10 fully-paid ordinary shares. In 1968, I F Sanderson Pty Ltd acquired the property known as Gidgerygah. The 1989 annual return for the company indicates that the A class shareholding was then beneficially held by Ian and Linda.
Ian remained a director of all three companies until his death in January 2010. Patricia was a director of Sanderson Estates until her death in August 2014. The second director of I F Sanderson and Gidgerygah Pty Ltd was Ian’s wife Linda, until her death in December 1992 (when Patricia became director).
A few months after Sanderson Estates was incorporated in 1962, Jack settled £10 on trust pursuant to a deed under which his son, Ian, was to hold on trust for Patricia as the object of a power of advancement until she attained the age of thirty and thereafter to pay the income to her for life. After Patricia’s death, the income and capital were to be held on trust for Patricia’s children as tenants in common in equal shares.
Contrary to Robert’s submission at trial, the Trust Deed did not establish an irrevocable trust such that “[t]he end to the trust was to provide for Ben and Robert”. Instead, clause 1(ii) gave the Trustee an absolute discretion to pay over the entire trust fund to Patricia at any time after she attained the age of thirty.
The appeal proceeded on the basis that the Trust Deed was referred to in a letter of 25 September 1980, which was in evidence below, from a Mr Duffy, a partner in the firm which drafted the 1962 Trust Deed (Garland Seaborn & Abbott). The letter, addressed to Patricia, was in response to an apparent inquiry from Patricia about the contents of her grandfather’s estate and, it seems, of her father’s will. It said:
Your interests in Sanderson Estates Pty Limited are covered through trusts. I understand that your father is the trustee of the trust, and has power under this document to accumulate income for you during your lifetime, and then to pay the capital out to your children. This is a very broad outline of the trust deed, which also gives the trustee very wide powers to make capital distributions to a person who is strictly speaking only entitled to income. I feel I should make it clear however that such payments are entirely at the discretion of the trustee.
That “very broad outline” of the “trust deed” is consistent with the operation of clause 1 of the 1962 Trust Deed outlined above.
The terms of the Duffy Letter became known to Robert shortly after his family provision claim against his deceased mother’s estate was compromised. On his own case, he learned of it in August 2016 when Benjamin and Benjamin’s girlfriend found it with other correspondence in a drawer and sent Robert a photograph of it. But the 1962 Trust Deed itself was only discovered by the parties to these proceedings in August 2024, when Ms Wye’s son found it in the “art room” at Wangrawally. Ms Wye’s solicitors gave a copy to Robert some days before the trial commenced below.
The 1962 Trust Deed was critical to Robert’s submissions in these proceedings. Robert maintained that the discovery of this deed substantiated his claim that Ian was the trustee of a trust, or of various trusts, to hold interests in the Walgett Properties for Robert and Benjamin beneficially.
Pausing there, five points should be made:
First, although the letter first refers to the plural, “trusts”, for the most part it refers to a singular trust: “the trust”, “the trustee” and “this document”.
Secondly, it follows from the earlier description of the company structure that on 3 October 1962, when the trust was settled, title to part Barwon Vale (over which Robert now claims a trust) was vested not in Jack or in Ian or in any other person mentioned in the Trust Deed, but in Sanderson Estates.
Third, at the time the Duffy Letter was written, Patricia beneficially owned one ordinary share in Sanderson Estates.
Fourth, on the face of the Deed there is no mention of any of the Walgett Properties, but only of the £10 which was to be held on trust.
Fifth, the Duffy Letter does not explain how Patricia’s “interests in” Sanderson Estates Pty Ltd were “covered through trusts”. Quite apart from the letter and the deed, it remains to be seen whether the Walgett Properties, or the shares in their proprietors, were later transferred as accretions to the property held on the trust established by the 1962 Trust Deed.
The Trust Deed was not duly stamped, but notwithstanding s 304 of the Duties Act 1997 (NSW) it was received into evidence.
Patricia and Robert Snr separated in January 1993. In property settlement proceedings in the Family Court of Australia, there was an issue as to whether Patricia’s shares in the three companies had any value. These proceedings are mentioned only because they are the subject of ground 7(f) of this appeal, which states that the primary judge erred in refusing leave to reopen Robert’s case to subpoena the file in the Family Court proceedings containing any financial statements for the valuation of the shares in Sanderson Estates, where an ex tempore judgment given on 25 March 1996 suggests that Mr Ian Stephenson had given evidence on behalf of Patricia that the shares were “worthless”.
Ian died in January 2010. Probate was granted on 17 October 2011 to Patricia, who was the residuary beneficiary under Ian’s 2002 will. The inventory of property drawn by Patricia as executor included the shares held by Ian in the three companies. It stated that there was no property owned by Ian on trust for another.
In December 2010, Robert and Benjamin brought proceedings against their mother as executor claiming that title to certain property was held on constructive trust by reason of a promissory estoppel arising from Robert’s alleged work on the land on Ian’s request. The terms of the pleadings in that matter are critical to the issue in this appeal as to whether there is an issue estoppel or Anshun estoppel preventing Robert from relitigating an argument that the Walgett Properties were held on trust for him.
The amended statement of claim relevantly read:
8C As a result of the promises and representations of the deceased, the estate was held on trust for the Plaintiffs prior to the passing of the deceased, and after which time the estate of the deceased, through the Defendant as executor of the will of the deceased, held on trust the property, its fixtures and the assets and machinery of the property for the Plaintiffs.
Paragraph 10 of the statement of claim defined “the property” as Allawa, Gidgerygah, Barwon Vale and Wangrawally, and the business Wangrawally Pastoral Co and the company Gidgerygah Pty Ltd (as well as all stock, plant and equipment related to the pastoral enterprise).
Patricia’s defence denied those allegations, and joined issue on whether Ian made those representations and whether he was thereby a constructive trustee.
Robert alleged that Ian promised to devise those properties by will:
7. For the entire duration of their lives, until the death of the deceased, the deceased made a series of promises and representations to each of the Plaintiffs that all of the property comprising the family farm and associated stock and equipment would be devised by the deceased through his will to the Plaintiffs without encumbrance.
It was not explained how that could be reconciled with the allegation in the present proceedings that the properties were already held on an express trust for the benefit of Robert and Benjamin.
In the alternative, Robert and Benjamin claimed provision out of Ian’s estate under s 59 of the Succession Act 2006 (NSW).
By judgment delivered on 12 October 2012, Pembroke J dismissed the claims of an agreement and an estoppel binding Ian’s estate because it was found that there were no clear and unequivocal representations that the properties would be transferred to or held for Robert and Benjamin: Wilcox v Wilcox [2012] NSWSC 1138. Instead, provision in the amount of $387,000 was granted to Robert out of Ian’s deceased estate in a judgment delivered almost two years later: Wilcox v Wilcox (No 2) [2014] NSWSC 88.
On 18 November 2014, this Court allowed an appeal from the orders of Pembroke J granting family provision and costs: Chapple v Wilcox [2014] NSWCA 392.
Patricia died on 19 August 2014 and probate was granted to Mr Chapple. Patricia’s will made some provision for Benjamin, who reached a settlement with Patricia before the judgment was handed down in the appeal, but made no provision for Robert. The main beneficiary under the will was Trevor.
On 18 August 2015, Robert filed a summons against Mr Chapple seeking family provision out of Patricia’s estate. On 23 October 2015, the matter was referred to mediation. On 10 December 2015, Mr Chapple sought judicial advice under s 63 of the Trustee Act 1925 (NSW) as to whether he would be justified in executing a proposed compromise whereby Robert would receive a legacy of some $1.1 million as well as the forgiveness of costs debts.
Orders were made by Brereton J on 18 December 2015 approving that compromise. Immediately thereafter, the parties executed a deed of settlement including a release of liability for the executor and Patricia’s estate. The release in clause 3 is broadly worded, and is relevant to ground 5 of the appeal. It provided as follows:
3. Release by Robert and the Estate
3.1 Save for obligations in clause 2 above, Robert hereby releases the Executor and the Estate jointly and severally from any claim he may have had:
(a) in respect of any debt currently owed by the Estate to Robert;
(b) for further financial or other provision from the Estate and/or notional estate under the Act and any other Act amending the same or creating like or similar rights to those under the Act;
(c) in relation to the distribution of the Estate;
(d) in relation to the Executor having acted as the Defendant in the Proceedings or having acted in accordance with this Deed; and
(e) from any and all other claims whether now, existing or arising in the future up to and including the date of death of the Executor including but not limited to any claims in respect of:
(i) any taxation liability of the Estate;
(ii) any policy of insurance held by the Deceased; and
(iii) any claims made by the Australian Taxation Office on the Estate.
3.2 The Estate and the Executor release Robert from the debts.
Clause 3.1(b) was of immediate significance for the family provision proceedings brought by Robert, which provided the occasion for the settlement of this deed. The remaining subclauses indicate that the operation of the release is wider.
Gidgerygah Pty Ltd was deregistered on 8 February 2018, after the property registered in its name, Wangrawally, was transferred to Trevor. Trevor died on 27 May 2022. I F Sanderson Pty Ltd was wound up and deregistered on 20 September 2018.
As mentioned above, some months after Robert executed the deed of settlement, he became aware of the Duffy Letter referring to the existence of “trusts”.
Five years later, on 2 March 2021, Robert commenced proceedings by statement of claim against Mr Chapple in the Equity Division. That statement of claim sought declarations that Sanderson Estates Pty Ltd held part Barwon Vale on express trust for Robert and Benjamin, and that I F Sanderson Pty Ltd held Gidgerygah on express trust for Robert and Benjamin. Orders for transfer and “damages” were sought. The pleadings relied heavily on the fact that the Duffy Letter referred to Patricia’s interests in those companies being “covered through trusts”. It also sought that the judgments in the 2010 and 2014 proceedings be set aside because they were procured by Patricia’s fraudulent non-disclosure. A further amended statement of claim was filed pursuant to leave granted by Hammerschlag J on 22 March 2022, which extended the relief sought to orders for accounts and equitable compensation.
Three days before the hearing below on 12 August 2024, Mr Wilson informed the primary judge’s Associate that he would be applying to vacate the hearing on the basis that he had only recently been instructed on the matter and was not adequately prepared. As previously mentioned, Mr Wilson was the sixth solicitor engaged by Robert in the matter. After considering his repeated breaches of timetabling orders and directions, the prejudice and delay caused to the respondents, and the just, quick and cheap resolution of the proceedings, the primary judge dismissed that application.
The hearing of evidence and tender of documents closed on the fourth day of the hearing, 15 August 2024. Mr Wilson then applied for an adjournment. The primary judge made clear that the basis of the adjournment was only to allow Mr Wilson “to prepare [closing] submissions” with cross-references to the transcript. Yet on 25 August 2024, Mr Wilson made a suite of interlocutory applications, including to reopen Robert’s case by issuing subpoenas and recalling Mr Duffy for cross-examination. That was accompanied by a notice of motion to adduce further evidence and a proposed fourth amended statement of claim which extended Robert’s claims to a beneficial interest in Wangrawally (which was held by Gidgerygah Pty Ltd) and to a claim that Ian and Patricia’s shareholdings in the companies were themselves held on trust according to the terms of the 1962 Trust Deed.
Those applications were rejected. The primary judge considered that it was unacceptable for Mr Wilson to have used the adjournment to undertake further investigations and “unearth” further evidence which he now sought to adduce, instead of preparing for the presentation of closing submissions. The company records sought to be adduced were not new evidence. Leave to replead was also refused given the prejudice to the defendants in meeting a new case so late in the proceedings, and because there was nothing, save speculation, to suggest the shares were themselves settled on trust.
Therefore, had it arisen for determination (i.e., had the trust claims not been released or otherwise barred by the principle of res judicata or Anshun estoppel), I would have concluded that the trust claims fail on their merits because it has not been established on the balance of probabilities that the relevant properties or shares in the relevant companies ever became part of the trust fund the subject of the 1962 Trust Deed; nor that they were ever otherwise impressed with a trust in favour of Robert and Ben.
The starting point is the notice of motion seeking to adduce further or fresh evidence (as noted above, much of this evidence was sought to be tendered at trial and so it overlaps with ground 7 of the appeal).
The motion was filed on 23 May 2025, five days before this appeal was heard. A 123-page affidavit was filed on 26 May exhibiting the new evidence to be admitted on appeal. To that class of documents was added a “supplementary report” and a further advice clarifying an earlier document, which was handed up to the Court during the hearing of the appeal.
Most appeals by way of rehearing, such as that brought by Robert, proceed by reference to the evidence adduced at trial. Hence the requirement in s 75A(8) of the Supreme Court Act 1970 (NSW) to make out “special grounds” for the admission on appeal of evidence that was available to an applicant at trial. A party making an application under UCPR r 51.51 ordinarily needs to establish three matters: first, that the new evidence is credible; second, that the evidence is highly or relevantly probative; and third, that the new evidence could not have been obtained with reasonable diligence for use at the trial: Kramer v Stone (2023) 112 NSWLR 564; [2023] NSWCA 270 at [67].
There was no submission that any of the new evidence was “fresh” for the purposes of s 75A(9) of the Supreme Court Ac**t.
The evidence sought to be adduced may be divided into four classes.
The first class includes reports authored by a solicitor, Anthony Cordato, dated 13 May 2025. Mr Cordato’s supplementary report dated 25 May 2025 included a component outlining Mr Cordato’s expertise and indicating his subscription to the Expert Witness Code of Conduct under UCPR r 31.23.
Mr Cordato’s report first explained his understanding of the death duties regime in New South Wales in the 1960s, and then turned to the structure of the Sanderson Companies, by reference to documents that were already before the primary judge at trial, including the companies’ articles of association, and the 1962 Trust Deed. The report concluded by suggesting (at pp 8-9) that were the shareholdings in the companies to be held under the 1962 Trust Deed, this would have effectively minimised the duties otherwise payable on the land:
The restructuring of Jack Irwin Dent Sanderson’s landholdings
The Sanderson landholdings consisted of extensive rural holdings in the Walgett region.
From around 1950, the legal and accounting professions were assisting clients such as the Sanderson Family to tax plan, so as to minimise income tax and inheritance tax.
Publications such as ‘Australian Tax Planning with precedents’ by P. R. Adams and Brian J. McMahon 1961 (Butterworths) contained detailed advice for practitioners. The Deed of Settlement dated 3 October 1962 is Precedent 14 from the book.
Extracts from the book, including Precedent 14, are attached.
The restructuring of Jack Irwin Dent Sanderson’s landholdings could be therefore be summarised as a plan to preserve intergenerational assets which was carried out as follows:
1. The landholdings are transferred from a person’s name to a private company. This achieved the object of removing the landholding as an asset of that person’s estate (provided the person survived for the ‘notional estate’ period of three years after the date of transfer).
2. The private company shareholding consists of “A” Class Shares or “B” Class Shares, which are issued to a person who is to act as trustee for a trust. Those shares confer the right to receive a dividend and to vote at meetings. The dividend is able to distributed by a trust (see below). The right to vote maintains control in the hands of the person who transferred the landholding. Ordinary shares are issued, which give the right to dividends.
3. The trust is established to benefit the children, by means of the right to receive dividend income. The shares do not vest in the children, and as such do not form part of their estate.
Many problems attend the admission of the report as new evidence on appeal.
First, the first six pages merely contain a recitation of documentary evidence already before the trial judge.
Secondly, it is doubtful whether the opinion expressed in the final two pages of the report is admissible. It is clear on the face of the report that it was prepared by a solicitor. It is unclear how this opinion is based on Mr Cordato’s specialised knowledge. Moreover, the conclusion as to what “could have been intended” when the trust was settled in 1962 is not, and is not expressed to be, more than mere speculation.
Thirdly, the report is inconsistent with Robert’s pleaded case. The report postulates that title to the Walgett Properties was held beneficially by the companies but that the shareholding in those companies was held on trust for Robert and Benjamin – an assumption supported by the second page’s reliance on cl 3(d) of the 1962 Trust Deed, which empowers the Trustee to acquire shares in any proprietary company. That not only diverges from Robert’s pleaded case – that title to the properties, not to the shares, was held on trust – but it is also plainly inconsistent with it. Even on the case that became prominent on appeal, the premise of the report is that the transfer of the assets to the companies was sufficient to avoid death duty. It is difficult to see how it was then necessary to settle the shareholdings on trust for the children.
Fourthly and fundamentally, the production of this report was foreshadowed at trial – to resolve the apparent “mystery [of] the connectivity of the assets of these companies…to the trust”. It formed part of the reopening application which was refused by Ward P. Thus the application to adduce it by way of further evidence faces the same obstacle as was articulated in Chandrasekaran v Western Sydney Local Health District (t/as Westmead Hospital) [2023] NSWCA 288 at [274] that:
the appellant cannot circumvent such evidentiary rulings and interlocutory decisions by seeking leave to adduce such material as further evidence on appeal. Nor can the appellant achieve the same result by seeking to adduce as “new” evidence later reports of Mr New in May 2021 (in separate proceedings) and April 2023 as further evidence on appeal.
From available financial statements, the accounting of [Sanderson Estates] to 1981 is consistent with it being that of an asset holding company on behalf of a Trust because:
(a) The company made nil profit each year – year in – year out,
(b) The company had no retained earnings each year,
(c) The company assets were offset by a loan owing to Ian, the Trustee of the Trust,
(d) Interest charged on the Loan to Ian accumulated interest (unpaid) to the loan, year in – year out, and
(e) The company did not trade and was a vehicle for asset holding only and its retained earnings were essentially its paid-up capital amount.
The second category of documents is a series of historical land dealings dating between 1891 and 1962. In large measure they are irrelevant, and the only documents that may have been material to the outcome are the documents that disclose land transfers from Ian’s father, Jack Sanderson. Mr Wilson deposed that they were included in the application to prove “the extensive family pastoral enterprise established by Thomas as continued by William, Irwin and Jack and the retention of the same farming lands since the mid-late 1800s and early 1900s in the Dent and Sanderson families”. Those propositions are not in issue; it is accepted that Sanderson Estates came to own part Barwon Vale and I F Sanderson Pty Ltd came to own Gidgerygah by the time the deed was settled in 1962.
Nor are the documents new evidence. They could have been discovered with reasonable diligence at trial. Had they been relevant, they could evidently have been found by due inquiries, or by subpoena, an order for discovery or a notice to produce, for all of them appear to be registered dealings.
It may be accepted that Mr Wilson himself may have had limited time because he was instructed only days before the hearing. But that is not the question. There was no evidence of the steps taken or not taken by Robert’s former solicitors, still less of any reasons for inaction. It is also to be borne in mind that throughout most of the pre-trial process Robert was represented by various solicitors, albeit intermittently, as follows:
between 2 March 2021 (when the proceedings were commenced) and 30 September 2021 – by Oliveri Attorneys, during which time an amended statement of claim was prepared and filed;
between 7 October 2021 and 18 January 2022 – by Mr Rupert Gray of Keypoint Law, during which time affidavit evidence was prepared and served;
between 31 January 2022 to 11 February 2022 – by Mr James Welch of Access Law Group;
between 25 February 2022 and 18 October 2022 – by Mr Florian Ammer of Piper Alderman;
between 16 August 2023 and 21 June 2024 – by Mr Glenn Kable of Hartmann & Associates and Mr Barry Dean of counsel, during which time the plaintiff filed his affidavit evidence in chief in support of his family provision claim, subpoenas were issued, and the defendants filed all of their evidence; and
between 6 August 2024 to present – by Mr Wilson.
None of the foregoing is to be taken as criticism of Mr Wilson or of Robert’s previous representatives. But Robert was left unrepresented only for a minority of the period of more than three years prior to the trial, and in the more than two years when he was represented inquiries could have been made but apparently were not. Robert is not entitled to circumvent the limitations on producing evidence on appeal that could have been produced at trial merely because there were times prior to trial when he was not represented.
Much the same can be said of the company returns. Again, most of the documents in this class already formed part of the application before Ward P to reopen Robert’s case below and to that extent they are not new evidence and the effect is to circumvent her Honour’s interlocutory decisions.
More significantly, a brief examination of the company records shows that they undermine Robert’s case.
Mr Wilson pointed to Sanderson Estate’s 1988 annual company return, which can be found in Annexure A to this judgment. In particular, he submitted that the entries relevant only to trustees were filled in, which indicated that Sanderson Estates was acting as a corporate trustee.
That proceeds from a false premise. True it is that the subheading of item 4 of the return reads “Where the principal activity of the company is acting as a trustee for a trust or trusts, state the nature and purpose of that trust or trusts”, and that the person who filled out the form gave a response – “Property investment”. But the item’s heading is “Principal Activities”. The sub-description is merely an additional requirement to state any other principal activities carried on by a trust if it is a trustee. The same may be said of Sanderson Estates’ 1989 return and Gidgerygah’s 1988 return.
There are other indicia that the person who filled out the company forms believed that the relevant company was not acting as trustee. For one, the items that are clearly confined to corporate trustees are left blank. Item 11 in Sanderson Estates’ 1988 return is headed “Key Financial Data”. The subitems which read “Where the company acts as a trustee, state also: (1) the liabilities incurred by the company as a trustee, (2) the amount by which the company has the right to be indemnified out of trust assets” are left blank.
Significantly, those subitems are answered “N/A” in Gidgerygah P/L’s 1988 and 1989 returns and in I F Sanderson’s 1988 and 1989 returns. Robert was squarely confronted with this proposition in the appeal. Contrary to Mr Wilson’s submission, it is difficult to read “N/A” as “Nil”, because the documents clearly draw a distinction between the two. In item 11 of the 1988 I F Sanderson company returns, for example, operating profit after income tax was answered “Nil” but the entries for trustee liabilities were answered “N/A” immediately thereafter. The surrounding entries in item 11 indicate that the companies had liabilities, but not as trustees. That reading is supported by the “N/A” entries in categories such as the place in which any “business name” was registered, which indicate that “N/A” denoted a category error rather than a quantitative answer.
A central difficulty confronting a deal of Robert’s case is that by reference to ambiguous and more peripheral documents he invited the Court to contradict these entries. There is no warrant to do so. The returns were signed by Ian as director of each company, pursuant to a declaration that their respective contents were “accurat[e]” and “correct” to “the best of [his] knowledge and belief”, and upon advice of his accountant and company secretary, Mr Ian Stephenson. There is a level of obvious formality in company returns, prepared relatively contemporaneously, to be provided to the regulator. Ian Sanderson’s declaration is particularly significant because he was the person who on the face of the Duffy Letter had first-hand knowledge of the terms of the 1962 Trust Deed and the circumstances in which it was drafted.
The last class of documents was identified in the supplementary blue book as “other evidentiary documents”. Only items 33, 35 and 40 were not the subject of the reopening application before Ward P. The remaining documents were memoranda of transfer and deeds of assignment dating from the 1960s, and two grants of probate. The grants of probate are immaterial. The memoranda of transfer and deeds of assignment suffer from the same problems addressed above with respect to the “land dealings” – they could have been obtained at trial by reasonable inquiries and they point positively against Robert’s case. Again, the memoranda of transfer to Sanderson Estates and to I F Sanderson indicate that the properties were transferred for value rather than to some passive corporate trustee.
Item 35 was an extract from P R Adams and B J McMahon, Australian Tax Planning with Precedents (Butterworths, 1961) at pp 153, 165-167. Although Mr Wilson suggested that the extract’s analysis of the legislation supported his thesis that the 1962 Trust Deed was an “intergenerational succession device” that minimised the incidence of death duties, there is a significant difference between a guide to the law as it operated and was understood some six decades ago, and using such a guide to support an inference about the purpose of a particular trust deed.
Items 33 and 40 were letters of administration granted to William Dent and Irwin Dent over the estate of Thomas Dent in 1911, and a grant of probate to Gustavus Murray and Gustavus Murray Jr over the estate of Ms Valerie Murray in 1978. They are irrelevant; the identity of the executors of these estates and the contents of those estates were not in issue, just as the fact that Gidgerygah and part Barwon Vale came to be owned by IF Sanderson and Sanderson Estates respectively was not in issue below. Mr Wilson did not submit that the admission of these documents was necessary to his case, rather than merely convenient.
For these reasons, Robert has fallen far short of establishing “special grounds” to admit these documents on appeal. The motion must be dismissed.
The above considerations are equally relevant to ground 7, which consisted of 6 sub-grounds, each dealing with interlocutory decisions of the primary judge refusing a vacation of the hearing and a reopening of Robert’s case to cross-examine witnesses, file a fourth amended statement of claim, and tender further evidence two weeks after the hearing was adjourned for the preparation of closing submissions.
These decisions are eminently discretionary. To disturb those decisions, the appellant needed to identify some House v The King error.
Ground 7(a) is that the primary judge erred in “refusing to allow the Appellant … [t]o vacate the hearing and adjourn the proceedings so as to permit the Appellant [to] carry out necessary forensic investigations and obtain expert opinion regarding matters surrounding the 1962 Trust Deed”.
Mr Wilson submitted that with only three days’ notice of the hearing he could not feasibly have represented his client and that an adjournment was necessary for him “to ably present the Appellant’s case in hostile litigation in accordance with the dictates of justice”. Mr Wilson also invoked the appellant’s “failure to apply for formal discovery” which “further precluded the Appellant being given a fair and reasonable opportunity to present his case”.
The opportunity to seek discovery was well open to Robert’s previous five solicitors over the course of three years. Had Robert sought an order for discovery or a subpoena calling for the production of the trust deed referred to in that critical letter, the deed may well have been found earlier than it was.
Mr Wilson submitted that the primary judge’s reasons “overlooked the significant factual disparity between the Appellant’s case and Aon” insofar as 1962 Trust Deed was a “newly discovered event”, which was not an issue in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27.
We do not accept Robert’s statement that “[t]he materialisation of the 1962 Trust Deed was unforeseen”. On Robert’s own case its existence was adverted to by the Duffy Letter which he read in 2016 and which precipitated these proceedings. In his affidavit sworn 13 December 2021, Robert deposes to a conversation with Patricia where Robert revealed in 1988 that he knew of the existence of a trust over the properties for his benefit:
In or about 1988, Mr Sanderson purchased “Uno”, which was a property that was covered in timber. One evening, I was sitting at the dining room table at Allawah” with Mr Sanderson, Mrs Sanderson, Patricia and Robert Snr and I said to Mr Sanderson, “why did you buy Uno with all that scrub?” Mr Sanderson said “so no one else could buy it”. Patricia then said words to the effect of “we won’t put it in the trust for you two then and just leave it for your brother”. I then said “you are just dirty because it is in a trust for Ben and me”. Patricia then said “How do you know about that?”. I did not respond to that question.
In any event, the 1962 Trust Deed merely mirrored the form of the Duffy Letter which was already known, and any investigation necessitated by the 1962 Trust Deed would already have been necessitated by the Duffy letter.
Moreover, what was critical in Aon Risk was that the applicant had not proffered any explanation or justification for the delay. So too here, there was no affidavit evidence of the steps taken or not taken by Robert’s previous solicitors. That was to be contrasted with the express evidence of the prejudice that would be caused to the second respondent by delay in the proceedings, including to her mental health and her employment, and with reference to the probability that Robert would not be able to meet an adverse costs order in circumstances where there would likely be significant costs thrown away. Finally, Robert’s application was contrary to the overriding purpose in s 56 of the Civil Procedure Act.
This ground is not made out.
7. The primary Judge erred in refusing to allow the Appellant:
…
(b) To reopen his case and tender the additional affidavits of the Appellant’s solicitor, Mr Wilson sworn 25 and 28 August 2024 containing recent evidence following point in time enquiries of the 1962 Trust Deed between 15 and 28 August 2024;
(c) To reopen his case and tender the accounting report of Nicholas Wilson dated 28 August 2024 providing professional accounting opinion on the recorded financial achievements of Sanderson Estates Pty Ltd and I.F. Sanderson Pty Ltd;
(d) To reopen his case to file a Fourth Amended Statement of Claim corresponding to the 1962 Trust Deed and matters arising form [sic] it so as to include as part of the Appellant’s claim, the property ‘Wangrawally’ and any other property holdings of the company Gidgerygah Pty Limited.
(e) To reopen his case to further cross-examine Mr Duffy and issue subpoena [sic] calling for the production of safe custody records of solicitors who drafted the 1962 Trust Deed;
(f) To reopen his case to cross-examine the First defendant, Mr Chapple in his capacity as executor of the estate of the late Patricia Ann Wilcox and to access the Family Court of Australia file produced under subpoena in the proceedings relating to the value of the Sanderson Company shares.
An issue that pervades most of these sub-grounds is that the request to reopen Robert’s case arose only because Robert was undertaking investigations in the adjournment, despite the application for that adjournment for that purpose being refused, in the period between the closing of evidence and the making of closing submissions.
These sub-grounds were treated compendiously by Mr Wilson in oral submissions. Mr Wilson submitted that “the evolving case” of the appellant “required … the Court to have an open mind”. When asked whether he was referring to apprehended bias for the purpose of identifying House v The King error, Mr Wilson clarified:
Not apprehended bias at all, your Honour, no. What I’m saying, I apologised upfront here today for being inelegant and perhaps this is an example of it, I apologise. I’m saying that her Honour perhaps placed a little too much weight on the forensic decision not to pursue discovery as somehow weakening Mr Wilcox’s right ….
To demonstrate that the primary judge’s exercise of the discretion miscarried, it is not sufficient merely to show that the primary judge “placed too much weight” on one of several relevant factors (where the appellant did not claim that the decision was manifestly unreasonable): Pham v Gall (2020) 102 NSWLR 269; [2020] NSWCA 116 at [89] and [125].
The reference to Mr Wilcox’s “right” to reopen his case upon the discovery of new material also misapprehended the nature of the discretion under s 62 of the Civil Procedure Act. When the primary judge adjourned the hearing until 29 August 2024 for the presentation of closing submissions, at no point did Mr Wilson indicate to the primary judge that he wished in that time to undertake further “point in time inquiries” for the purpose of putting on further evidence. It was clear on the fourth day of the hearing that the purpose of the adjournment was to allow Mr Wilson to prepare closing submissions, not to undertake further investigations that he wished to undertake when his initial application for a vacation of the hearing was refused:
WILSON: I haven’t had time to analyse the transcripts. In fact, the transcripts didn’t come through until 15 just this morning, actually, in relation to the proceedings this week. I’m asking that rather than me make oral submissions now and they being the sole submissions that I make, as a matter of fairness to my client, that I be permitted a period of, say, two weeks to prepare—
HER HONOUR: Two weeks?
WILSON: Or whatever your Honour sees fit to allow to prepare written submissions. I would like to refer to the transcripts in my submissions, and—
At the conclusion of Robert's case, his solicitor applied for an adjournment in order to prepare closing written submissions, informing me (among other things) that he wished to have the opportunity to include transcript references in the closing submissions and that he had not had an opportunity at that stage to review the transcript. In circumstances where (as noted above) the solicitor had accepted instructions in the matter only shortly before the hearing, I considered it appropriate to accede to that request. I made directions for the filing of written submissions sequentially by Robert and then by the active defendants and listed the matter for closing submissions on 29 August 2024.
What then transpired was unexpected (at least on my part), to say the least. On 25 August 2024, Mr Wilson served on the parties a proposed notice of motion seeking among other things a vacation of the orders made in relation to the closing submissions and, in effect, leave to reopen Robert's case (including to issue subpoenas and to recall Mr Duffy for further cross-examination).
Nor does Mr Wilson’s invocation of “the dictates of justice” much assist. In determining whether such an interlocutory decision should be made according to “the dictates of justice”, s 58(2)(b) of the Civil Procedure Act includes broader considerations such as the degree of expedition with which the party has approached the proceedings. It will be recalled that there was a history of Robert changing solicitors and repeatedly failing to comply with the Court’s timetable and directions.
Enough has been said to show that Robert did not point this Court to any passage in the primary judge’s reasons that was said to disclose error, still less to any House v The King error. That is sufficient to conclude that these grounds are not made out.
However, it may be added that each of these grounds would at best lead to a retrial, and accordingly it would become necessary to determine whether the procedural decisions deprived Robert of the possibility of a successful outcome. Enough has been said to demonstrate that Robert has failed to establish that. Because nothing turns on it, what follows is not comprehensive. However, the production of Mr Nicholas Wilson’s accounting report would be futile, for reasons explained above. The claim that re-opening Robert’s case to cross-examine Messrs Duffy and Chapple might make a difference is entirely speculative. In his submissions, Mr Wilson did not demonstrate what if any further evidence might have been obtained by recalling those witnesses after they had already been cross-examined to support the appellant’s thesis that the 1962 Trust Deed was formulated as part of an “intergenerational planning device”.
Mr Duffy, the solicitor who wrote the Duffy Letter in 1980, had no first-hand knowledge of the trust. Mr Duffy had already deposed in his affidavit of 3 May 2023 that he “was not involved in the establishment of any trust for Mr Sanderson and [had] not, prior to 1980, during 1980, or since, seen a trust document relating to the shares in Sanderson Estates Pty Limited”. Indeed, so much was already plain on the face of the Duffy Letter, in which Mr Duffy wrote, first in a letter of 15 September 1980, that he will need to “have discussions with Ian Stephenson”, and then in the letter of 25 September 1980 that the information he was relaying was “since [he] had a discussion with Ian Stevenson [sic]”. All that was confirmed in Mr Wilson’s cross-examination of Mr Duffy at trial.
It was also plain that Mr Chapple had no knowledge of the trust, still less of the trust property or the circumstances in which the deed was drafted in 1962. He deposed in his affidavit of 3 May 2023 that he had “no knowledge of any such trust and did not, at any time, have any conversations with Patricia regarding a trust” and was not confronted with these propositions in cross-examination.
1. The Primary Judge erred in determining that Robert William Wilcox (the “Appellant”) did not have an equitable interest in the Sanderson Properties.
2. The Primary Judge erred in failing to find that the following persons held the shareholding in the Sanderson Companies and the Sanderson Properties on trust ultimately for the Appellant:
(a) Ian Francis Sanderson before this death on 17 January 2010;
(b) Patricia Ann Wilcox following the death of Ian Francis Sanderson until her death on 19 August 2014;
(c) John Francis Chapple as executor and trustee of the estate of Patricia Ann Wilcox;
(d) Trevor John Harland until this death on 27 May 2022; and
(e) Lorraine Monique Wye following the death of Trevor John Harland.
3. The Primary Judge erred in failing to find that Patricia Wilcox, John Francis Chapple and Lorraine Monique Wye, respectively in their capacities as executors, breached their duties by distributing the Sanderson Properties and Sanderson Companies shareholding as part of the deceased estates of Ian Francis Sanderson, Patricia Ann Wilcox and Trevor John Harland respectively.
4. The Primary Judge erred in failing to the declare that the Sanderson Properties remained held on trust for the Appellant by the legal personal representatives of the estates of Ian Francis Sanderson, Patricia Ann Wilcox and Trevor John Harland.
The primary judge rejected Robert’s submission that the evidence established an “obvious connection” between the 1962 Trust Deed and the properties in the registered proprietorship of the Sanderson Companies, for two reasons. First, there was no objective evidence of any declaration of trust in respect of the Walgett Properties or of the companies’ shares. The circumstances in which the companies acquired title to those properties also revealed nothing; the facts that the 1962 Trust Deed contemplated that the trust fund might be enlarged beyond the initial sum settled on trust (the £10) or that settlement of title to land on trust was a convenient method of avoiding estate duties were entirely speculative, and insufficient, bases for a finding that the Walgett Properties were held on trust. Secondly, it would make no sense to read the Duffy Letter as saying that Patricia’s interests in the Sanderson Companies were “covered through trusts”. Patricia’s “interests” in the Sanderson Companies were shareholdings in her own name.
The primary judge also held that the evidence did not establish that Ian Sanderson held his shares in the Sanderson companies on trust when those companies were incorporated, or that he subsequently settled them on trust.
The primary judge noted that there was little objective evidence in favour of Robert’s narrative. Much of the evidence was testimonial evidence given by Robert of recollected conversations – such as recollections of Ian’s apparent statements that “all this” would be Robert and Benjamin’s one day, or Patricia’s surprise over the dinner table that Robert knew there was a trust. These accounts were rejected, in part because of Watson v Foxman reliability concerns (“Robert is someone who has become so fixated on his belief as to his entitlement to the Walgett Properties (that are now outside the family) and the righteousness of his claims that he has a tendency to cast events, and put a gloss on conversations, in the light most favourable to his claims”: [522]) and in part because of an adverse credit finding made by the primary judge against Robert at [517]-[522].
On appeal, Robert made no submission to suggest that the findings affected by those adverse credit findings were glaringly improbable so as to permit appellate review. Instead, Mr Wilson’s written submissions on these grounds proceeded on the assumption that the notice of motion to adduce new evidence above would be successful:
Successful determination of the 5th, 6th and 7th grounds of appeal, including a finding based on the unearthed new evidence of an active 1962 Trust over the Sanderson Companies and Sanderson Properties, would result in the Appellant being found to be an entitled beneficiary of the 1962 Trust thereby holding a present-day equitable interest in that trust and also holding associated derivative equitable interests in both the Sanderson Companies and the Sanderson Properties.
That assumption is not made out. That is sufficient to dismiss these grounds. But we would add that much of the evidence admitted below pointed against Robert’s case that the shares were held on trust. The 1990 annual return for Sanderson Estates Pty Ltd lists Ian and Patricia as shareholders. Next to their names, and under the category “beneficially owned (y/n)”, Ian wrote “y”. So too the same company’s 1991 returns, which were in a different form, had “N/A” written next to the category stipulating the liabilities and indemnities for the trustee “if the company acts as a trustee”. The 1998 company returns for I F Sanderson Pty Ltd contain similar entries with respect to the shares said to be beneficially held by Patricia, Ian and Linda. Her Honour’s conclusion, which preferred the above treatment of the contemporaneous objective evidence to Robert’s testimonial evidence (see [525]) is orthodox: see for example Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [31] and the reference by Keane JA to using “any evidence independent of the parties which is apt to cast light on the probabilities of the situation” to resolve an issue involving the credibility of witnesses: Camden v McKenzie [2008] 1 Qd R 39; [2007] QCA 136 at [34].
Robert did not point to any part of the primary judge’s reasons where the fact-finding exercise was said to have miscarried. Because there is no reason to disturb the primary judge’s findings that neither the properties nor the shares were held on trust for Robert and Benjamin, grounds 1 and 2 are therefore not made out. It follows that grounds 3 and 4 must also be dismissed.
That is dispositive of the appeal. Even so, we shall address the remaining grounds.
Ground 5 was that “the Primary Judge erred in finding in favour of the First and Second Respondents on their estoppel and release defences”.
This ground is concisely worded, but needs to do a great deal of work if Robert’s appeal is to succeed. That is because the primary judge found against Robert on a series of “cascading bases” (as it was put in Ms Wye’s submissions): in addition to failing on the merits, Robert’s claims had been released, and were barred by issue estoppel and Anshun estoppel. Even if (contrary to the foregoing) there was appellable error as contended in grounds 1-4, the appeal must be dismissed unless Robert could overturn the findings of release and issue estoppel and Anshun estoppel. It is convenient to adopt the same order as was taken by the primary judge, and address first the release, then issue estoppel and then Anshun estoppel.
The primary judge noted at [564] that Mr Wilson did not allege actual fraud on the part of Mr Chapple in obtaining the releases in 2015. That concession was said rightly to be made because there was “nothing to support the proposition that Patricia (or her Executor) knew of the 1962 Trust Deed at any time.” For the primary judge, that was enough to dispose of Robert’s argument about the release under s 96 of the Succession Act.
Her Honour further pointed to the conversations deposed to in Robert’s affidavit, outlined above, which gave him the firm belief that the Walgett Properties were somehow being held on trust for him. The primary judge said at [567] that that was inconsistent with any proposition that the failure to disclose the 1962 Trust Deed “misled” him such that the release was procured by that failure to disclose. Her Honour also rejected Robert’s submission that a failure to make reasonable inquiries and disclosure constituted “fraud or undue influence”.
As advanced in Robert’s written and oral submissions, the focus of the challenge to her Honour’s reasoning on the effect of the release was s 96 of the Succession Act 2006 (NSW), which reads:
Revocation of approval of release
(1) The Court may not revoke an approval of a release given by it under section 95, except as provided by this section.
(2) The Court may revoke an approval if it is satisfied—
(a) that its approval was obtained by fraud, or
(b) that the release was obtained by fraud or undue influence.
(3) The Court may also revoke an approval, either wholly or partially in respect of specified property, if it is satisfied that all persons who would be, in the Court’s opinion, sufficiently affected by the revocation consent to the revocation.
Mr Wilson focussed his submissions on the construction of s 96. Mr Wilson maintained in this appeal that a reckless failure to “carry out proper due enquiry and search” is sufficient to constitute “fraud or undue influence”. He submitted that “the high bar of actual fraud is ultra vires by going beyond what parliament intended and imposes something which is foreign to the remedial nature” of Chapter 3 of the Succession Act. He also referred to the principle that a mistake made during negotiations which resulted in a contractual compromise of proceedings entitles the plaintiff to have the agreement set aside. It was not explained how the reference to the equitable doctrine of mistake was accommodated by the express statutory language, “fraud or undue influence”.
Mr Chapple submitted that revocation depended on proof of actual fraud rather than “equitable fraud or some such claim”. He also fixed on the requirement that whatever be the reason for a failure to disclose the trust, the approval or release needed to have been “obtained by” that failure, which was unlikely given Robert’s own evidence that he was aware of a trust for his benefit at least since 1988.
Three points should be made:
First, s 96 of the Act must be read with s 95, which stipulates that “a release by a person of the person’s rights to apply for a family provision order has effect only if it has been approved by the Court”. The effect of a revocation under s 96 is to revoke that approval and therefore to remove only a necessary condition for the efficacy of the release. After all, s 96(2) refers to revoking the “approval”, not the release.
Secondly, even if it be accepted that “fraud and undue influence” should be read according to their meaning in probate, it is well recognised that undue influence in probate is stricter than presumptions of undue influence in equity, and requires coercion or an actual overbearing of one’s will: Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 at [49]; Bridgewater v Leahy (1998) 194 CLR 457; [1998] HCA 66 at [62]-[63]. Robert has fallen short of demonstrating anything of the sort, especially in circumstances where he approved the release with the benefit of the independent advice of his solicitor at the time, Mr Miller.
Thirdly, contrary to the tenor of Mr Wilson’s submissions, proof that the approval was obtained by fraud or undue influence is only a precondition to the Court’s discretion to revoke the approval for the release. Circumstances such as the futility of revoking the approval merely because of the fraudulent concealment of a document which was ultimately immaterial to the content of the deceased’s notional estate might bear on the exercise of that discretion.
However, it is not necessary to address s 96. As Ms Wye submitted, s 96 is merely an “additional hurdle” that is required to set aside an approval given by a court under s 95 – that is, “a release of such rights, if any, as a person has to apply for a family provision order” – which in this case is the release contained in clause 3.1(b). That says nothing about the remaining releases in the deed.
The primary judge also found that Robert was estopped in these proceedings from claiming that the Walgett Properties were held on trust for him. The primary judge found that there was an issue estoppel arising from the earlier decisions, and an Anshun estoppel in the alternative.
Two essential issues in the 2010 family provision proceedings were (i) whether the properties formed part of Ian’s deceased estate and (ii) Robert’s asset position for the purpose of determining adequacy of provision under s 60 of the Succession Act*.* Pembroke J held that those properties were not held on remedial constructive trust for Robert and Benjamin, and that the terms of Ian’s will supported the finding that Ian beneficially owned the properties and instead left them to Patricia to devise to her sons if she so chose.
The primary judge acknowledged that what was pleaded was a constructive trust, not an express trust, but held at [616] that “the critical issue to be determined in both sets of proceedings (the legal foundation or justification for the decision) is whether the properties (part Barwon Vale and Gidgerygah) were held on trust for Robert and Ben; and hence whether the registered proprietor of the properties held its interest in the properties beneficially at the relevant time.”
In any event, the primary judge held that there was an Anshun estoppel on the basis that it was unreasonable for Robert not to plead an express trust in 2010, in circumstances where he now deposed to having conversations before 2010 which indicated to him that the properties were held on express trust. As her Honour said at [630]:
In my opinion, the fact that Robert believed that there was a trust in existence and chose not to raise that issue in the 2010 Proceeding (and raised his family provision claim expressly on the basis that the estate included a beneficial interest in those assets) leads to the conclusion that it was unreasonable for Robert not to have raised the issue of an express trust back in 2010. The suggestion that the trust litigated in these proceedings “materialised” into a written trust when the 1962 Trust Deed was discovered highlights that the provision of the deed did not give rise to a new or different trust claim; it simply assisted in the proof of that claim.
Mr Wilson submitted that there could be no issue estoppel where what was pleaded and decided in the 2010 proceedings was a remedial constructive trust for an alleged estoppel by representation, not an express trust the terms of which “materialised in 2021”. Mr Wilson submitted that the findings made by Pembroke J only concerned whether the pleaded representations made by Ian were “clear and unequivocal” to support that estoppel. This was said to fail what Mr Wilson called the “double-same” test – which is that the parties and the issues be identical. Mr Wilson also submitted that there is a “special exception” in some issue estoppel cases where documentary evidence was not available at the time, and that is made out here. Counsel for the second respondent submitted that there was no such special exception, by reference to Federal Treasury Enterprise (FKP) Sojuzplodoimport v Spirits International BV [2021] FCAFC 77; 389 ALR 612 at [339].
It is unnecessary for present purposes to consider the differences between the law of Australia on the one hand and England and Wales on the other hand concerning issue estoppel. That is because it is clear that the conduct of the earlier proceedings gave rise at least to an Anshun estoppel. In March 2022, by the time he filed his further amended statement of claim, Robert was able sufficiently to plead and particularise a claim of breach of trust by reference only to the existence of the Duffy Letter, about which he was in contact with his solicitor, Mr Gray. On Robert’s own case, he was already aware of the possible existence of an express trust over the Walgett Properties or the Sanderson companies’ shares in the 1980s. In his affidavit sworn 13 December 2021, he deposed to recalling a conversation with Ian during which Ian said “words to the effect of ‘lucky the properties are in a trust if anything happens to me’”. His evidence continued:
During this time [the late 1980s], many times, Mr Sanderson mentioned to me that the Properties were in a trust of which Ben and I were the beneficiaries. Mr Sanderson would do this by saying words to the effect of “these properties are in a trust for you and you brother”. At the time, I did not understand in a meaningful way what a trust was but my understanding at the time was that it meant that the Properties would be left to Ben and me after Mr Sanderson had died.
I did not mention the trusts in my affidavit sworn 4 July 2011 as the advice I had received from my then solicitor, Robert Macauley was in words to the following effect “don’t mention the trusts because it will infuriate the Judge because you don’t have sufficient evidence and it is not what you are pleading”. I accepted his advice.
Ground 6 is that the primary judge erred in rejecting Robert’s claim at trial that the orders in the 2010 proceeding, the subsequent 2014 Court of Appeal proceedings and the 2015 judicial advice proceeding be set aside for absence of good faith under UCPR 36.15 and under “the Court’s general jurisdiction” to set aside judgments for fraud because Patricia, and then Mr Chapple, did not disclose the 1962 Trust Deed and the Duffy Letter.
Her Honour considered that it was open to a judge sitting in the Equity Division to hear an application to reopen a decision of the Court of Appeal that was said to have been procured by fraud: Foundas v Arambatzis (2022) 109 NSWLR 73; [2022] NSWCA 113 at [30]. After a review of the equitable origins of the power, the primary judge concluded that the reference in r 36.15(1) to the order being made “illegally or against good faith” required proof of actual fraud. Her Honour noted that “Robert through his solicitor has expressly disavowed an allegation of actual fraud” and that that was sufficient to dispose of the claim.
Robert’s submissions on appeal diverge from what was put at first instance. It is said that Patricia’s and Mr Chapple’s failure to disclose the 1962 Trust Deed and Duffy Letter earlier was “analogous to fraud”. It was not entirely clear whether that was a submission of actual fraud or mere recklessness. The appellant’s confusion of the two concepts was exemplified in the following exchange:
BALL JA: Mr Wilson, do you say you’re in a position to allege fraud now or not? It’s just not clear to me what you're saying.
WILSON: Certainly, what I’m saying is, your Honour, I put it in this fashion, every executor is tasked with ensuring that the Court has before it the latest effective testamentary instrument to deal with an estate.
BALL JA: But I think you’ve said that, that the question is how does that amount to fraud of this type that you need to allege and prove?
WILSON: I’m saying in case of, you know, great negligence amounting to recklessness.
BALL JA: That’s not fraud.
WILSON: By not carrying out due inquiry and search, your Honour, my respectful submission to you is that you’re not accurate with the truth when you don’t carry out due inquiry and search.
To the extent that the appellant submitted that recklessness is sufficient, that position is inconsistent with authority. Speaking with reference to r 36.15’s predecessor, the High Court recently affirmed that “[i]t would be inconsistent with both principle and a long historical foundation to extend the general power beyond actual fraud”: Clone Pty Ltd v Players Pty Ltd (In Liq) (2018) 264 CLR 165; [2018] HCA 12 at [41]. This Court said in Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 at 537 that “the essence of the action is fraud”.
In light of the seriousness of the implicit allegation that Patricia and Mr Chapple acted fraudulently, four points should be made.
First, particulars of the claim of fraud for the purpose of setting aside a judgment needed to have been “exactly given”: Wentworth at 537. That was not satisfied on the face of the further amended statement of claim filed pursuant to leave granted on 22 March 2022. It was not pleaded that Mr Chapple deliberately concealed the existence of the Duffy Letter or the Trust Deed in the earlier proceedings.
Secondly, Robert clarified in oral submissions below that he disavowed any claim of actual fraud.
Thirdly, the primary judge concluded at [568] that there was no evidence that Patricia and Mr Chapple knew of the 1962 Trust Deed, and nothing to suggest that there was any deliberate non-disclosure of the document. Robert has not attempted on appeal to disturb that conclusion.
Fourthly and in any event, “it must be shown, by the party asserting that a judgment was procured by fraud, that there has been a new discovery of something material”: Wentworth, 537. For the reasons addressing grounds 1-4, the discovery of the 1962 Trust Deed was not material.
This ground should be dismissed.
1. Appellant’s notice of motion filed 23 May 2025 dismissed.
2. Appeal dismissed.
3. Appellant pay the first and second respondents’ costs of the appeal (including the costs of the notice of motion filed 23 May 2025).
**********
Wilcox
Chapple [2025] NSWCA 155
(2009) 239 CLR 175
(1998) 194 CLR 457
(2018) 264 CLR 165
(2022) 109 NSWLR 73
(2003) 214 CLR 118
(1954) 91 CLR 112
(1936) 55 CLR 499
(2023) 112 NSWLR 564
(2020) 102 NSWLR 269
(2012) 83 NSWLR 757
(1995) 49 NSWLR 315
(1986) 6 NSWLR 534
Notice of motion to adduce further evidence dismissed; appeal dismissed; appellant ordered to pay the first and second respondents’ costs of the appeal and motion.
Much of the primary judgment concerned interlocutory disputes. The primary judge refused Robert’s application, made one working day before the hearing, to vacate the hearing because of the withdrawal of counsel for the appellant. As a result, Mr Wilson, who is the sixth solicitor retained by Robert in this long-running dispute, appeared at trial and in this appeal. An application to reopen the appellant’s case (to issue subpoenas and to recall a witness for further cross-examination) made some two weeks after judgment was reserved was rejected by the primary judge. Both are the subject of grounds 7(a)-(f), by which grounds the appellant seeks a retrial:
The primary judge dismissed Robert’s claims, for reasons which may be summarised as follows. First, the primary judge held that Robert was estopped from contending that he had a beneficial interest in part Barwon Vale and Gidgerygah, even on the basis of an express trust, because that issue was res judicata by reason of Pembroke J’s determination in the 2010 proceedings that there was no clear and unequivocal representation that they were to be held for him such that they were not held on constructive trust: at [609]-[621]. In the alternative, there was an Anshun estoppel because Robert was aware of the existence, albeit not the terms, of the 1962 Trust Deed, at the time of the 2010 proceedings and chose not to raise that issue in those proceedings: at [622]-[632].
Secondly, the primary judge held that the approval given by Brereton J in the 2015 proceedings to the release contained in the 2015 deed of settlement was not obtained by “fraud or undue influence” such that it could not be revoked under s 96 of the Succession Act 2006 (NSW). The release extended to Robert’s claims. Robert was thereby barred from claiming any further distribution from Patricia’s estate: at [557]-[578].
Thirdly, Robert did not prove that Patricia or Mr Chapple fraudulently concealed the Duffy Letter or the 1962 Trust Deed. Principally, that was because it was not shown that they knew of the whereabouts or the terms of the deed or the letter. The result was that there was no basis to set aside Pembroke J’s and Brereton J’s judgments as having been obtained “irregularly, illegally or against good faith” under UCPR r 36.15: at [673]-[683].
Fourthly, the primary judge held that it was not shown, on the admitted evidence, that title to part Barwon Vale and Gidgerygah was held on trust because:
there was a total absence of objective evidence suggesting that the companies were holding the land on trust at all. Indeed, all the company records adduced by the appellant positively suggested otherwise;
the connection with the 1962 Trust Deed was entirely speculative, premised as it was on the mere possibility that Ian Sanderson used it as an “intergenerational succession plan (or direct ‘bloodline’ trust)” to minimise the incidence of estate duties. The connection was also nonsensical because Ian was trustee of the trust, whereas title to the properties was held by the companies; and
even on the case that the shares in the companies were held on trust, there was no such declaration of trust in evidence. To read the Duffy Letter as referring to Patricia’s shares in the companies being “covered through trusts” was inconsistent with the fact that all the company records expressed that they were beneficially owned.
This was addressed at [649]-[660], concluding:
The other aspects of the company returns, such as the balance sheets for each company, are also immaterial. On their face the entries merely illustrate the assets and liabilities of a company, not of an entity acting as trustee. Nor do the documents support the case that became prominent on appeal – that the shares were being held on trust. To the extent that they bear upon that case, they point against it. The 1990 return for Sanderson Estates, for example, states that the shares held by Ian and Patricia were both “beneficially owned”.
Robert’s submission that the primary judge was “led into error by the non-availability of 1988 and 1989 Company Returns” which would have been material to the outcome at trial is not made out.
The claims for equitable compensation (pleaded as “damages in equity”) and an account fall within the scope of a claim owed “in the future” by the executor of Patricia’s estate (cl 3.1(e)). They also at least arguably fall within cl 3.1(c) because it is a claim which relates to the distribution of the estate. As was pointed out by Ms Wye in written submissions served in advance of the appeal, it was “notable that there was no suggestion that the release was to be read down by reference to the principles in Grant v John Grant (1954) 91 CLR 112”. On his own case, Robert knew about the claims based on an inter vivos trust long before executing the deed. Indeed, as the primary judge noted at [557], it did not appear to be disputed that “the release is broad enough to cover the trust claims now made in the proceedings”.
The focus of submissions was on s 96. But revocation of the approval under s 96 is only a necessary and not a sufficient condition for the relief sought by Robert. It was in fact necessary for Robert also to show grounds to revoke the deed in its entirety and impugn the validity of those sub-clauses. That was not pleaded below or agitated in this appeal.
It is not surprising that no basis has been put forward to set aside the deed. Robert on his own case was aware of the inter vivos trust. It has not been shown that Patricia or Mr Chapple or Ms Wye knew of it. Nor has it been established that there was any conscious non-disclosure by them. Conscious fraud was (properly) disavowed. It was said that “there were reasonable grounds based on the recklessness of fiduciaries in failing to carry out proper due enquiry and search”. It was said that “the fact that the 1962 trust deed remained unnoticed during 2015 is evidence of a failure on the part of Mr Chapple to carry out due inquiry and search, and by his silence when the Release of Rights was given, he induced the Appellant into relying upon such silence to enter into the Deed”. None of that submission can be accepted. The onus on all issues rests with Robert. He has failed to establish that there was any failure to carry out due inquiry and search. None of this was put to Mr Chapple (who was not required for cross-examination), and it was necessary to do so. Even if there had been such a failure, that falls well short of establishing grounds to set aside the Deed, bearing in mind that Mr Chapple was not said to be aware of it, and Robert on his own case was aware of it.
In those circumstances, it is not necessary to resolve the question whether the reference to “fraud or undue influence” in s 96 extends to a failure to act with due care and diligence.