Wright v Kennedy; Wright v Dundooga Pastoral Co Pty Ltd; Reynoldson v... [2026] NSWSC 834 | Case summary

Wright v Kennedy; Wright v Dundooga Pastoral Co Pty Ltd; Reynoldson v... [2026] NSWSC 834 | Case summary | Zoe

At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2026-07-16

Before

Hmelnitsky J

Catchwords

ESTOPPEL — Proprietary estoppel — Encouragement — Where plaintiff is a farmer — Where the farm is made up of three parcels of farmland — Where the first parcel of farmland (First Parcel) was owned by plaintiff’s mother (the deceased) prior to her death — Where plaintiff alleges that the deceased made representations that he would inherit all of the First Parcel if he stayed and worked on the farm — Where plaintiff will inherit 70% of the residue of the deceased’s estate, which includes the First Parcel, and has already received the second parcel of farmland (Second Parcel) as an inter vivos gift — Whether the deceased made the representations as alleged — Whether plaintiff has detrimentally relied on the representations EQUITY — Trusts and trustees — Constructive trusts — Where third defendant is the plaintiff’s younger brother and a son of the deceased — Where a company (Trustee Company) conducts a farming business as trustee of a unit trust (Unit Trust) — Where plaintiff and third defendant each held units in the Unit Trust — Where Trustee Company owns the third parcel of farmland (Third Parcel) and plant, stock and equipment — Where third defendant declined to give a guarantee for the refinancing of Trustee Company’s debts — Where plaintiff alleges that this conduct of the third defendant resulted in failure of joint venture between them — Whether the Unit Trust’s assets are held subject to a constructive trust in plaintiff’s favour due to failure of joint venture — Whether plaintiff or Trustee Company paid the purchase price for the Third Parcel — Whether plaintiff or Trustee Company owns plant, stock and equipment RESTITUTION — Nature of restitutionary liability — Unjust enrichment — Where plaintiff claims reasonable remuneration on a quantum meruit basis from Trustee Company — Where plaintiff has worked for farming business without deriving any wage — Where there was no contract governing plaintiff’s work — Whether unjust for Trustee Company to retain the benefit of plaintiff’s work — Whether there was an express or implied request by Trustee Company to plaintiff to perform work — Whether Trustee Company accepted plaintiff’s services knowing he expected to be paid — Whether change of position defence applies EQUITY — Trusts and trustees — Breaches of trust — Breaches of fiduciary duty — Rule in Barnes v Addy — Where plaintiff is a director of Trustee Company — Where plaintiff caused Trustee Company to transfer its assets to his own family trust — Where plaintiff caused Trustee Company to distribute income to himself and his wife but not the other unitholders — Whether Trustee Company has breached its duties as trustee to third defendant — Whether plaintiff has breached his fiduciary duties to Trustee Company — Whether recipient of trust property is liable under first limb of Barnes v Addy CORPORATIONS — Members’ rights and remedies — Oppression — Where conduct is oppressive to, unfairly prejudicial to, or unfairly discriminatory against minority — Where third defendant is a member of Trustee Company — Whether conduct of plaintiff and Trustee Company are oppressive to the interests of third defendant in his capacity as a unitholder in the Unit Trust pursuant to Corporations Act 2001 (Cth), s 232 — Whether a buy-out order is the appropriate remedy SUCCESSION — Family provision — Claims by five adult daughters of the deceased for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 — Where each daughter received no provision under the deceased’s will — Where the deceased had purported to make provision for her daughters under her will but gifts failed — Where all except the youngest daughter have lived independent lives from the deceased with their spouses and children — Where youngest daughter lived with the deceased and was the deceased’s carer until her death — Whether adequate and proper provision was made by the deceased to each daughter and if not, what the nature and amount of further provision should be — Whether and how burden of additional provision should be adjusted

Source

Original judgment source is linked above.

Catchwords

ESTOPPEL — Proprietary estoppel — Encouragement — Where plaintiff is a farmer — Where the farm is made up of three parcels of farmland — Where the first parcel of farmland (First Parcel) was owned by plaintiff’s mother (the deceased) prior to her death — Where plaintiff alleges that the deceased made representations that he would inherit all of the First Parcel if he stayed and worked on the farm — Where plaintiff will inherit 70% of the residue of the deceased’s estate, which includes the First Parcel, and has already received the second parcel of farmland (Second Parcel) as an inter vivos gift — Whether the deceased made the representations as alleged — Whether plaintiff has detrimentally relied on the representations EQUITY — Trusts and trustees — Constructive trusts — Where third defendant is the plaintiff’s younger brother and a son of the deceased — Where a company (Trustee Company) conducts a farming business as trustee of a unit trust (Unit Trust) — Where plaintiff and third defendant each held units in the Unit Trust — Where Trustee Company owns the third parcel of farmland (Third Parcel) and plant, stock and equipment — Where third defendant declined to give a guarantee for the refinancing of Trustee Company’s debts — Where plaintiff alleges that this conduct of the third defendant resulted in failure of joint venture between them — Whether the Unit Trust’s assets are held subject to a constructive trust in plaintiff’s favour due to failure of joint venture — Whether plaintiff or Trustee Company paid the purchase price for the Third Parcel — Whether plaintiff or Trustee Company owns plant, stock and equipment RESTITUTION — Nature of restitutionary liability — Unjust enrichment — Where plaintiff claims reasonable remuneration on a quantum meruit basis from Trustee Company — Where plaintiff has worked for farming business without deriving any wage — Where there was no contract governing plaintiff’s work — Whether unjust for Trustee Company to retain the benefit of plaintiff’s work — Whether there was an express or implied request by Trustee Company to plaintiff to perform work — Whether Trustee Company accepted plaintiff’s services knowing he expected to be paid — Whether change of position defence applies EQUITY — Trusts and trustees — Breaches of trust — Breaches of fiduciary duty — Rule in Barnes v Addy — Where plaintiff is a director of Trustee Company — Where plaintiff caused Trustee Company to transfer its assets to his own family trust — Where plaintiff caused Trustee Company to distribute income to himself and his wife but not the other unitholders — Whether Trustee Company has breached its duties as trustee to third defendant — Whether plaintiff has breached his fiduciary duties to Trustee Company — Whether recipient of trust property is liable under first limb of Barnes v Addy CORPORATIONS — Members’ rights and remedies — Oppression — Where conduct is oppressive to, unfairly prejudicial to, or unfairly discriminatory against minority — Where third defendant is a member of Trustee Company — Whether conduct of plaintiff and Trustee Company are oppressive to the interests of third defendant in his capacity as a unitholder in the Unit Trust pursuant to Corporations Act 2001 (Cth), s 232 — Whether a buy-out order is the appropriate remedy SUCCESSION — Family provision — Claims by five adult daughters of the deceased for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 — Where each daughter received no provision under the deceased’s will — Where the deceased had purported to make provision for her daughters under her will but gifts failed — Where all except the youngest daughter have lived independent lives from the deceased with their spouses and children — Where youngest daughter lived with the deceased and was the deceased’s carer until her death — Whether adequate and proper provision was made by the deceased to each daughter and if not, what the nature and amount of further provision should be — Whether and how burden of additional provision should be adjusted

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: Wright v Kennedy; Wright v Dundooga Pastoral Co Pty Ltd; Reynoldson v Wright; Garlick v Kennedy; Glass v Kennedy; Brown v Kennedy; Wright v Kennedy [2026] NSWSC 834

Hearing dates: 16, 17, 18, 19, 20, 23, 24, 25, 26, 27, 30, 31 March and 1, 2 April 2026

Date of orders: 16 July 2026

Decision date: 16 July 2026

Jurisdiction: Equity

Before: Hmelnitsky J

Decision: Direct the parties to bring in short minutes of order to give effect to these reasons by 4:00PM on 13 August 2026.

Catchwords: ESTOPPEL — Proprietary estoppel — Encouragement — Where plaintiff is a farmer — Where the farm is made up of three parcels of farmland — Where the first parcel of farmland (First Parcel) was owned by plaintiff’s mother (the deceased) prior to her death — Where plaintiff alleges that the deceased made representations that he would inherit all of the First Parcel if he stayed and worked on the farm — Where plaintiff will inherit 70% of the residue of the deceased’s estate, which includes the First Parcel, and has already received the second parcel of farmland (Second Parcel) as an inter vivos gift — Whether the deceased made the representations as alleged — Whether plaintiff has detrimentally relied on the representations
EQUITY — Trusts and trustees — Constructive trusts — Where third defendant is the plaintiff’s younger brother and a son of the deceased — Where a company (Trustee Company) conducts a farming business as trustee of a unit trust (Unit Trust) — Where plaintiff and third defendant each held units in the Unit Trust — Where Trustee Company owns the third parcel of farmland (Third Parcel) and plant, stock and equipment — Where third defendant declined to give a guarantee for the refinancing of Trustee Company’s debts — Where plaintiff alleges that this conduct of the third defendant resulted in failure of joint venture between them — Whether the Unit Trust’s assets are held subject to a constructive trust in plaintiff’s favour due to failure of joint venture — Whether plaintiff or Trustee Company paid the purchase price for the Third Parcel — Whether plaintiff or Trustee Company owns plant, stock and equipment
RESTITUTION — Nature of restitutionary liability — Unjust enrichment — Where plaintiff claims reasonable remuneration on a quantum meruit basis from Trustee Company — Where plaintiff has worked for farming business without deriving any wage — Where there was no contract governing plaintiff’s work — Whether unjust for Trustee Company to retain the benefit of plaintiff’s work — Whether there was an express or implied request by Trustee Company to plaintiff to perform work — Whether Trustee Company accepted plaintiff’s services knowing he expected to be paid — Whether change of position defence applies EQUITY — Trusts and trustees — Breaches of trust — Breaches of fiduciary duty — Rule in Barnes v Addy — Where plaintiff is a director of Trustee Company — Where plaintiff caused Trustee Company to transfer its assets to his own family trust — Where plaintiff caused Trustee Company to distribute income to himself and his wife but not the other unitholders — Whether Trustee Company has breached its duties as trustee to third defendant — Whether plaintiff has breached his fiduciary duties to Trustee Company — Whether recipient of trust property is liable under first limb of Barnes v Addy CORPORATIONS — Members’ rights and remedies — Oppression — Where conduct is oppressive to, unfairly prejudicial to, or unfairly discriminatory against minority — Where third defendant is a member of Trustee Company — Whether conduct of plaintiff and Trustee Company are oppressive to the interests of third defendant in his capacity as a unitholder in the Unit Trust pursuant to Corporations Act 2001 (Cth), s 232 — Whether a buy-out order is the appropriate remedy SUCCESSION — Family provision — Claims by five adult daughters of the deceased for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 — Where each daughter received no provision under the deceased’s will — Where the deceased had purported to make provision for her daughters under her will but gifts failed — Where all except the youngest daughter have lived independent lives from the deceased with their spouses and children — Where youngest daughter lived with the deceased and was the deceased’s carer until her death — Whether adequate and proper provision was made by the deceased to each daughter and if not, what the nature and amount of further provision should be — Whether and how burden of additional provision should be adjusted

Legislation Cited (8)

Corporations Act 2001(Cth)

Succession Act 2006(NSW)

Cited:** Corporations Act 2001(Cth)

Trustee Act 1925(NSW)

Uniform Civil Procedure Rules 2005(NSW)

Property Act 1900

Tax Assessment Act 1936

Provision Act 1982

Cases Cited (96)

[2010] NSWCA 176

[2018] HCA 43

[2014] HCA 14

Cases Cited: Alexander v Jansson [2010] NSWCA 176; (2010) 6 ASTLR 432
Ancient Order of Foresters in Victoria Friendly Society Limited v Lifeplan Australia Friendly Society Ltd (2018) 265 CLR 1; [2018] HCA 43
Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd (2014) 253 CLR 560; [2014] HCA 14
Barnes v Addy (1874) LR 9 CH App 244
Bassett v Bassett [2021] NSWCA 320
Baumgartner v Baumgartner (1987) 164 CLR 137; [1987] HCA 59
Bowditch v NSW Trustee and Guardian [2012] NSWSC 275
Boyded Industries Pty Ltd & Anor v Heartland One Pty Ltd & Ors [2025] NSWSC 1344
Bushell v George [2025] NSWSC 1347
Carey v Robson [2009] NSWSC 1142
CGU Insurance Ltd v One.Tel Ltd (in liq) (2010) 242 CLR 174; [2010] HCA 26
Chan v Zacharia (1984) 154 CLR 178; [1984] HCA 36
Charles v Commissioner of Taxation (Cth) (1954) 90 CLR 598; [1954] HCA 16
Clayton v Clayton [2023] NSWSC 399
Coshott v Lenin [2007] NSWCA 153
David & Ros Carr Holdings Pty Ltd v Ritossa (2025) 117 NSWLR 528; [2025] NSWCA 108
David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353; [1992] HCA 48
Delaforce v Simpson-Cook (2010) 78 NSWLR 483; [2010] NSWCA 84
Donis v Donis (2007) 19 VR 577; [2007] VSCA 89
Estate Grundy; La Valette v Chambers-Grundy [2018] NSWSC 104; (2018) 17 ASTLR 64
Fairbairn v Cooke [2003] NSWSC 232
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22
Georgopoulos v Tsiokanis [2022] NSWSC 563
Giumelli v Giumelli (1999) 196 CLR 101; [1999] HCA 10
Grimaldi v Chameleon Mining NL (No 2) (2012) 200 FCR 296; [2012] FCAFC 6
Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41; [1984] HCA 64
Hughes v National Trustees, Executors and Agency Company of Australasia Limited (1979) 143 CLR 134; [1979] HCA 2
In the matter of Mobius Distilling Pty Ltd (in liq) [2025] NSWSC 539
K. & A. LAIRD (N.S.W.) Pty Ltd (In Liquidation) v AIDZAN Pty Ltd (In Liquidation) in its own capacity and in its capacity as trustee of the Peter Laird Trust, the Peter Alan Laird Property Trust (known as the PAL Property Trust) and the Aidzan Superannuation Fund [2023] NSWSC 603
Kalls Enterprises Pty Ltd (in liq) v Baloglow [2007] NSWCA 191; (2007) 63 ACSR 557
Knespal v Knespal [2025] NSWSC 464
Kramer v Stone (2024) 281 CLR 484; [2024] HCA 48
Kronenberg v Macaulay [2025] NSWCA 195
Kulczycki v Public Trustee for the Australian Capital Territory [2013] ACTSC 230
Lumb v McMillan [2007] NSWSC 386
Lumbers v W Cook Builders Pty Ltd (in liq) (2008) 232 CLR 635; [2008] HCA 27
Maguire v Makaronis (1997) 188 CLR 449; [1997] HCA 23
Mann v Paterson Constructions Pty Ltd (2019) 267 CLR 560; [2019] HCA 32
McKinlay v Woods [2024] NSWCA 122
McNab v Graham (2017) 53 VR 311; [2017] VSCA 352
Mead Property Investments Pty Ltd v P&M Galea Pty Ltd [2026] NSWCA 27
Muir v Winn [2009] NSWSC 857
Muschinski v Dodds (1985) 160 CLR 583
Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221; [1987] HCA 5
Penya v Penya [2026] NSWCA 73
Q v E Co [2020] NSWCA 220; (2020) 383 ALR 469
Re Fulop (1987) 8 NSWLR 679
Roxborough v Rothmans of Pall Mall Australian Ltd (2001) 208 CLR 516; [2001] HCA 68
Salmon v Osmond [2015] NSWCA 42; (2015) 14 ASTLR 442
Sgro v Thompson [2017] NSWCA 326
Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19
Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40
Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522
Soulos v Pagones; Soulos v Soulos; Soulos v Soulos; Soulos v Pagones; Kristallis v Soulos; Kristallis v Soulos; Kristallis v Pagones [2023] NSWCA 243; (2023) 416 ALR 181
Starr v Miller; Starr v Miller [2021] NSWSC 426
Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114
Strang v Steiner [2019] NSWCA 143; (2019) 19 ASTLR 330
Tarbes v Taleb [2023] NSWSC 565
Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11
Wain v Drapac (No 2) [2013] VSC 381
Webster v Strang; Steiner v Strang [No 2] [2018] NSWSC 1411
Wheatley v Lakshmanan [2022] NSWSC 583
Winthrop Investments Ltd v Winns Ltd [1975] 2 NSWLR 666
Woods v McKinlay (No 2) [2021] NSWSC 1510

At the time she died, Vera was the registered proprietor of Dundooga, a 498-hectare property at Table Top, just north-east of Albury in New South Wales. She also owned 100 units in the Dundooga Unit Trust, the trustee of which is Dundooga Pastoral Company Pty Ltd (DPC). DPC is the registered proprietor of the nearby property of about 170 hectares known as the Church Paddock. The other units in the Dundooga Unit Trust are held by Terry and his wife Anna (50 units each) and Mark (100 units). Vera, Terry, Anna and Mark all owned shares in DPC commensurate with their unitholdings.
Vera had farmed Dundooga with her late husband, Sydney Fitzgerald Wright, since 1948. The Church Paddock was acquired in 1981 and, for decades thereafter, DPC as trustee conducted the farming business on Dundooga and the Church Paddock. Eventually, an adjoining property known as Lindfield was acquired and DPC’s farming business expanded to include farming on that property also. Lindfield is now owned by Terry outright, it having been given to him by Vera in 2010.
As a practical matter, the farm was run by Terry who has lived and worked on Dundooga for almost his entire life. There is some controversy about the extent to which he was assisted in that endeavour by his father and other members of his family, which I will deal with below. However, even his siblings do not dispute that since no later than 1990, Terry has done the overwhelming majority of the work, both physical and managerial, on the farm. As I will explain, the true position is that he has been doing most of the work since much earlier.
Vera and Sydney lived in a house that they built on Dundooga in 1952. Later in life, Vera was joined by Leonie, who still lives there. Terry and Anna still live nearby, in a house that they built on Dundooga in about 1980. It is where they raised their children.
Vera’s will was made on 20 July 1998 (the Will, or the 1998 Will). Probate was granted to Terry and Leonie on 15 August 2022 but, by orders made on 5 October 2023, the grant of probate was revoked and an order was made appointing Ms Anthea Kennedy (who is the first defendant and a solicitor) as administrator.
In her Will, Vera proposed two specific gifts of land. The first was to her five daughters. Vera wanted them jointly to have her house on Dundooga plus a curtilage of 5 hectares. The second was to Terry and Anna. She wanted them jointly to have 50 hectares of Dundooga ‘in the vicinity’ of their house. Vera wanted the residue of her estate to be divided between her sons, with 70% to go to Terry and 30% to go to Mark.
By any measure, the Will was badly drafted. All parties agree that the specific gifts of land were ineffective. However, they agree that the gift of residue to Terry and Mark was effective and that, by reason of the failure of the specific gifts, the residue includes almost the entirety of Vera’s estate.
It follows that the starting point in this litigation is that under Vera’s Will, Terry and Mark are to share virtually the whole of Vera’s estate in the ratio 70:30 and that the five daughters are to receive nothing.

These circumstances have given rise to three broad areas of dispute among Vera’s children.
The first and most significant area of dispute concerns the beneficial ownership of Dundooga and the Church Paddock, as well as whether Terry should receive some other redress for having farmed those properties without a wage. These matters are the subject of the claims in Terry’s further amended statement of claim.
So far as Dundooga is concerned, Terry claims that he was encouraged by both of his parents to believe that he would eventually inherit the whole of that property and that he relied to his detriment on those assurances. He says that the gift in the Will (70% of the residue which includes Dundooga) involves an unconscionable departure from what he says he was promised. Terry’s case is that he has lived on the farm his entire life without a wage and that he suffered considerable financial hardship in doing so. The detriment he suffered by relying on his parents’ promise was, he says, the past financial and other hardship involved in living on and running the farm his whole working life.
Terry also has a claim, expressed in various ways, over the whole of the Church Paddock. His claim as originally pleaded was that DPC holds the Church Paddock on a purchase money resulting trust for him because he paid the whole of the consideration for it. This claim was eventually abandoned in favour of a claim that DPC holds the Church Paddock for him on a constructive trust. The basis of this later contention is that Vera, Terry and Mark were engaged in a joint farming endeavour that came to an end in 1998 when Mark walked away from the farm and that, since then, DPC has held the Church Paddock entirely for Terry’s benefit. Further and alternatively, he claims that Vera held her units in the Dundooga Unit Trust for him on the basis of his proprietary estoppel claim. Terry also abandoned a claim that the Dundooga Unit Trust was never properly constituted and therefore never formally existed.
Terry also seeks fair and reasonable remuneration on a quantum meruit basis from DPC in respect of the management and labour services which he performed for the farming operation between 26 June 1981 and 30 June 2018. This is the period during which DPC as trustee of the Dundooga Unit Trust carried on the farming business on Dundooga, the Church Paddock and, eventually, Lindfield. The total amount of his quantum meruit claim comes to $2,330,000, at its highest.
DPC entered a submitting appearance. By the parties’ agreement, Ms Kennedy, as administrator of the estate, was excused from participating at the hearing. Conduct of the defence of the claims brought in Terry’s further amended statement of claim was given to Mark pursuant to r 7.8 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), with the consent of the parties. Mark has filed a defence to the claims pleaded in Terry’s further amended statement of claim.
The second area of dispute concerns the affairs of the Dundooga Unit Trust as conducted by DPC. These claims are agitated in a cross-claim brought by Mark, who was a one-third unitholder until Vera’s death and, by reason of her Will, will become a 43.33% unitholder when he receives 30% of Vera’s one-third interest. Mark has been granted leave in accordance with s 237(2) of the Corporations Act 2001 (Cth) to bring a cross-claim in DPC’s name under s 236 of that Act. By their cross-claim, Mark and DPC seek remedies for oppression, breaches of fiduciary duty and knowing involvement against Terry and Lindooga Pastoral Pty Ltd (LP), which is the trustee of a new trust created by Terry to take over the farming business a few years prior to Vera’s death. This new trust is known as the Lindooga Family Trust.
The claims brought by Mark and DPC mainly concern steps taken by Terry as a director of DPC since about 2015. Those steps included: (a) causing profit to be distributed only to Terry and Vera despite the fact that the Dundooga Unit Trust deed required profit to be distributed rateably according to unitholding; (b) removing Mark as a director of DPC; (c) transferring the plant and equipment and the whole of the farming business to LP as trustee of the Lindooga Family Trust for inadequate consideration; and (d) allowing the Lindooga Family Trust to farm the Church Paddock for no rent.
Thirdly, all five daughters seek orders under the Succession Act 2006 (NSW) for further provision out of Vera’s estate. Their individual circumstances vary widely and their claims range from $90,000 (Judith) to $940,000 (Leonie). Terry has been given the conduct of the estate’s defence of the family provision claims pursuant to r 7.8 of the UCPR. He is willing to concede that provision must be made for Leonie in the amount of between $175,000 to $225,000 but, as to his other sisters, he says no provision should be made at all. He also contends that the effect of his own claims over Dundooga and the Church Paddock is that neither of those properties is available to meet the family provision claims in any event, even as notional estate.

Sydney Fitzgerald Wright was born in June 1913. He fought with the Royal Australian Army during World War II and saw extensive active service in Papua New Guinea, Borneo and Egypt. Some of his wartime experiences were harrowing.
Sydney was discharged in 1946. In July 1947, he married Vera, a nurse, who was born in May 1923.
In 1948, Sydney acquired Dundooga through a land settlement lease ballot for returned soldiers. It was Crown land which Sydney took under a Closer Settlement Lease. The land was eventually converted to freehold and subdivided into several lots, but this only occurred in June 1986.
At the time Sydney acquired it, Dundooga was in very poor condition. It was badly degraded and was plagued by rabbits. It had no accommodation, fencing or farming improvements whatsoever, save for two small dams with broken banks.
Sydney and Vera had eight children between 1950 and 1965. Terry is the oldest, born in May 1950. All of the surviving children were involved in farming activities on Dundooga, in one way or another, during their childhoods.
In 1952, Sydney constructed a basic dwelling on Dundooga into which he and Vera moved with their children, being just Terry and Judith at that point. That dwelling, with some additions and alterations made in the 1950’s and 1960’s, is the house in which Vera lived for the rest of her life. The parties sometimes referred to it as the ‘First House’, to distinguish it from the ‘Second House’ being the house later built by Terry and Anna.
Sydney and Vera ran sheep for wool and mutton as well as cattle for beef. Terry recalls that his parents originally acquired 300 sheep which grew to be a considerable flock.
From 1948, when they acquired Dundooga, until 1970, when Terry left school, most of the work on the farm was done by Sydney, with help from Vera and the children when they were able. Much of this work was heavily labour-intensive. The family undoubtedly had a very hard life in these early years.

In January 1970, Sydney suffered a cerebral haemorrhage. He underwent surgery in Melbourne which was successful but which necessitated a lengthy absence from the farm. Sydney’s illness and surgery coincided with Terry and Judith finishing school. They completed their leaving certificates in 1969. They ended up in the same graduating class because Terry repeated a year.
Terry says that, at this point, he wanted to become a teacher and was awarded a Commonwealth scholarship to study at a university, but that his father’s sudden illness and absence from Dundooga meant he had no choice but to decline his scholarship and stay on the farm.
Most of Terry’s siblings dispute this account. They say he had no particular interest in becoming a teacher and that he did not actually win a teaching scholarship anyway. I will deal with the evidence about this below.
Either way, Terry did stay on Dundooga and he did become a farmer. The basis on which the farming enterprise was conducted between 1970 and 1981 was never explicitly addressed in the evidence. Nor was there evidence of the precise financial position of the farming business during these years. Some evidence which Terry gave about the purchase of the Church Paddock strongly suggests that Sydney, Vera and Terry were farming Dundooga in partnership until 1981: see paragraphs [233] and [234] below.
A major area of dispute concerns the state of Sydney’s health and wellbeing subsequent to 1970. For the moment, it is enough to note that Terry and Leonie, on the one hand, and the other siblings, on the other, paint very different pictures of Sydney’s ability to manage the farming business following his cerebral haemorrhage. The significance of this issue to Terry’s case is that he claims that he alone did the overwhelming bulk of the farming work from 1970 onwards and that Sydney was virtually incapable of managing the farm. He says that Sydney was never the same after his haemorrhage and that he became an inveterate drunk and a gambler, that he got into debt which he (Terry) had to take over and that it was only by dint of his (Terry’s) hard work that the farm was able to remain in the family at all.
The account given by most of his siblings is very different. They mostly say that Sydney had a full recovery from the surgery and that he returned to Dundooga to work the farm as he had previously done. They say he did enjoy a drink but deny that he suffered any kind of incapacity that prevented him from farming during the 1970’s and 1980’s. They say that Terry’s claims to have been forced to stay on the farm and to have done all of the work to save the farm in the 1970’s and 1980’s are overstated.

At the time of its establishment, there were 300 units in the Dundooga Unit Trust held by an unrelated nominee company. Despite elaborate provision in the deed for the keeping of a register of unitholders and for the issue of unit certificates, there were next to no documents evidencing the transfer or holding of units.
Trust tax returns for the Dundooga Unit Trust for the 1982 year to (at least) the 1989 year recorded that the beneficiaries were:
The Sid Wright Family Trust (or the ‘Syd Wright Family Trust’).
The Terry Wright Family Trust.
The Mark Wright Family Trust.
The evidence included trust tax returns for the Terry Wright Family Trust for every year between 1982 and 1991, all of which said (or at least suggested) that the trust was a beneficiary of the Dundooga Unit Trust. There seem to be no trust tax returns for the Terry Wright Family Trust after 1991.
By the commencement of the hearing, Terry no longer pressed his arguments about the existence of the Dundooga Unit Trust and whether Mark (or anyone else) was ever actually a unitholder. He was granted leave to file a further amended statement of claim in which the parts of the pleading relating to those issues were removed. By the end of the hearing, it was common ground that the unitholdings in the Dundooga Unit Trust were:
Terry (50 units).
Anna (50 units).
Sydney (50 units).
Vera (50 units).
Mark (100 units).
This agreement seemed to extend to the whole of the period from 1981 onwards, which on one view runs contrary to the many years of trust tax returns for the Dundooga Unit Trust and the Terry Wright Family Trust to which I have referred. Nevertheless, because the parties are agreed on this issue and because it is possible that the individuals were the trustees of their respective family trusts, I will proceed on the same basis as the parties, namely that the units in the trust have always been held by the individuals mentioned in the previous paragraph from around the time the trust was established.
Clause 7 of the trust deed provided as follows:

The directors of DPC as at settlement were Terry, Anna, Sydney, Vera and Mark. The shareholders were:
Terry (50 shares).
Anna (50 shares).
Sydney (50 shares).
Vera (50 shares).
Mark (100 shares).
Settlement occurred on 30 November 1981. On that day, title to the Church Paddock was transferred to DPC, which thereafter recorded the land in financial statements for the Dundooga Unit Trust as a fixed asset at its full cost. Also on 30 November 1981, DPC granted a mortgage back to the Sisters of Mercy to secure its obligations under the terms of the vendor financing arrangement, which were as follows:
The amount secured was the principal sum of $104,445, being half the purchase price.
DPC was required to repay the whole of the principal sum on 26 August 1984.
Interest was 14% per annum, payable half yearly in arrears, reducing to 12% per annum if DPC made timely payment and was not in default.
Each of Terry, Mark, Sydney and Vera executed a Guarantee and Indemnity in favour of the Sisters of Mercy whereby they jointly and severally guaranteed the repayment of the principal amount under the mortgage and indemnified the Sisters of Mercy against any loss they may sustain by reason of DPC’s default.
Around the time of the purchase of the Church Paddock and the settlement of the Dundooga Unit Trust, Mark was living and working in the United States. He had finished high school in 1976 and had undertaken an apprenticeship as an electrical-fitter with a company in Albury known as Australasian Training Aids (ATA). At the time the Church Paddock was acquired, Mark was about 23 years old and employed full-time with that company. Even if Terry and his parents had expected Mark to return one day and work on the farm (not that they did – no-one, not even Mark, suggested that this was likely) the decision to acquire the Church Paddock by way of a unit trust with fixed income entitlements and for the trustee to conduct the whole of the farming enterprise on both properties for the benefit of fixed unitholders was bizarre. By this point, the overwhelming majority of the farming work was being done by Terry and DPC had no ability to pay him a wage for doing so. Nor was there any sign that Mark was about to return to work on the farm full-time, or anything like it.
The effect of the arrangements put in place in 1981 was that Mark was entitled to a share of the farm profits even if he failed to do any work on the farm at all (which is what eventually happened, at least for many years) and that he would be entitled to a share of the capital if the Church Paddock were sold, even if (as also eventually happened) he declined to guarantee DPC’s debt or otherwise contribute in any way to DPC’s ability to pay for and hold the property in the meantime. At the same time, Terry and Anna could receive no more than a third of the profit for any year, even if Terry did the entirety of the work to produce it.
Nevertheless, from the time the Church Paddock was purchased, the farming enterprise on that property and on Dundooga was conducted by DPC as trustee of the Dundooga Unit Trust. For every one of the financial years from 1982 to 2017, it prepared financial statements and filed trust tax returns showing that it was conducting the farming enterprise on that basis.

Mark also tried to distance himself from the content of these statements. He said that he disagreed with them at the time and that he was just passing them on to the Veterans’ Review Board without comment.
Mark and Jennifer’s evidence about this issue reflects poorly on both of them, whether I accept it or not. There are really only two possibilities: either they were willing to say and do whatever was necessary at the time to secure a financial benefit for their mother; or what they wrote and did at the time was honest but they are now willing to say whatever is necessary to try to defeat Terry’s claim.
In my view, the latter of these possibilities is more likely. I can accept that Jennifer’s letter may have been somewhat exaggerated. It was after all written in the hope of persuading the Veterans’ Review Board to reconsider an application that had already been rejected and in circumstances where she very much wanted her father to receive a pension. It is also true that Mark did not himself author any of the letters he enclosed with his letter. But the overall picture they paint of Sydney’s mental and physical health is strongly corroborated by other evidence, especially that of Leonie, who is a trained nurse and who lived at home with her parents at Dundooga until 1981 and also between 1984 and 1989. It is also corroborated by the fact that in the course of the dispute with the State Bank (which I describe below), a cross-claim was brought against the bank which, among other things, alleged that the bank had acted unconscionably in lending to Sydney in 1986 because Sydney was under a mental incapacity and could not comprehend the nature of the loan documents. Mark admits to being aware of what was alleged about Sydney’s mental condition in the proceedings, although says that he had no hand in preparing the cross-claim and now says that he did not believe the claims to be true.
Even allowing for some measure of exaggeration, I think it highly unlikely that Vera – who was considered by all her children to be both honest and devout – would have said such gravely serious things about her husband’s mental and physical health if they had not been substantially true. Nor, despite some misgivings about aspects of Terry’s evidence (as to which, see paragraphs [126], [244] to [245] and [291] to [303] below), can I accept that he would have made up a story about his father attempting to commit suicide. Exaggeration is one thing, but making up a completely fictitious medical history such as this is another thing altogether.
In reaching this conclusion I also take into account the matters discussed at paragraphs [100] to [108] below relating to the reliability of Mark’s evidence concerning events in 1998. As I will explain, Mark has shown himself to be thoroughly unreliable in relation to that important issue and I approach his evidence generally with a sense of caution.
My conclusion on this issue is that the general picture of Sydney’s mental and physical health which was painted by Vera, Jennifer and Terry in the 1993 Veterans’ Review Board correspondence was true, and that both Jennifer and Mark considered it to be true at the time. I do not accept that Mark blithely passed these statements on to the Veterans’ Review Board as if he were nothing but a post box. Elsewhere in his evidence he emphasises his role in assisting his mother over the years, including by helping her to get the pension. He surely knew the basis on which Vera was seeking to secure the pension and believed it to be true.

The farming business had been barely if at all profitable for many years following the 1986 refinancing. Interest rates were high and the DPC debt burden was all but unmanageable. Between 1988 and 1993, DPC was in default on multiple occasions and the State Bank threatened to repossess Dundooga and the Church Paddock several times. It issued notices pursuant to s 57(2)(b) of the Real Property Act 1900 (NSW) on more than one occasion.
In September 1994, the State Bank finally commenced proceedings against DPC and Sydney for possession of the Church Paddock and Dundooga. Shortly after the proceedings were commenced, the bank filed an affidavit in which it stated that the mortgages secured two facilities, being a term loan and an overdraft, and that the amount outstanding under both facilities totalled $1,033,377.60. It stated that interest was accruing at the rate of $337.52 per day.
Sydney was by this stage incapable of managing his affairs so Mr Reynoldson, Judith’s accountant husband and the architect of the business structure described in paragraphs [46] to [56] above, was made his tutor for the purpose of the State Bank litigation. On 13 January 1995, Mark and Terry entered into a deed of indemnity with Mr Reynoldson whereby they indemnified him against all liability for acting as tutor.
Sydney died on 16 November 1995. He left his entire estate to Vera by a will made on 23 August 1949. Probate of his will was granted in 1995 or 1996 but the estate remained unadministered for several years. The main reason for this was that at around the time of Sydney’s death, the Roads and Traffic Authority (RTA) announced that it intended to resume part of Dundooga and parts of neighbouring farms to construct a new section of the Hume Highway. Vera was concerned that she may lose the right to be compensated for the compulsory acquisition if she were to take a transfer of Dundooga with notice of the proposed resumption. There was a long delay in administering the estate while negotiations with the RTA concerning this matter continued. Dundooga was not transferred into Vera’s name until years later.
The dispute with the State Bank was referred to mediation under the Farm Debt Mediation Act 1994 (NSW), which came into effect in February 1995. The proceedings were stayed while that process occurred. The mediation commenced on 12 July 1995 and was extended by agreement. To begin with, Vera (as executor of Sydney’s estate after Sydney’s passing) and DPC were separately represented in the litigation.
The process of negotiation and mediation continued throughout the second half of 1995 and the first half of 1996. Terry attended a farm debt mediation course to better understand how to conduct a mediation under the Farm Debt Mediation Act. The course was accredited by the Law Society of NSW and the knowledge Terry gained put him in a good position to represent DPC and his father’s estate in the mediation. Incidentally, it also enabled Terry to assist others in the region with their own farm debt mediations.
Whilst attending the mediation course, Terry met Mr Warwick Davis, a former bank credit officer who had just recently been admitted to the NSW Bar. They became friends and Terry eventually engaged him directly to conduct the State Bank mediation on behalf of both DPC and Sydney’s estate.
Both Mark and Terry were involved in the negotiations, although Terry was contemptuous about Mark’s contribution to them.
The parties finally reached an agreement on 18 June 1996. On that day, a Deed of Agreement in settlement of the proceedings was executed by the State Bank, DPC and by Vera as executor of Sydney’s estate. The key terms were that the amount owing would henceforth be reduced to $625,000, interest would be payable at the rate of 10% per annum, fixed for two years and payable six-monthly in arrears, and the facilities were required to be repaid in full by the two-year anniversary of the agreement. The parties agreed to adjourn the proceedings to allow the facility to remain on foot on those terms, and the borrowers agreed to execute a consent to judgment for possession for both Dundooga and the Church Paddock, which could be filed by the bank on 21 days’ notice in the event of default by the borrowers.

The balance of the letter explained some of Mark’s concerns about how DPC was being run, especially as to the proper setting up of accounts, meetings of directors and so on. The letter also voiced concerns about managing debt levels. There was no mention in the letter of the Dundooga Unit Trust. The author seems to have assumed that DPC was carrying on the farming business in its own right but nobody suggested that anything turns on that.
Following this correspondence, Mark, Vera and Terry had an almighty row at Dundooga in which Mark said some very hurtful things to his mother. Mark left the farm after this episode and did not return for many years.
Mark and Terry have wildly different recollections of how and why all this occurred. To some extent, this may reflect the fact that the event was vastly more significant to Terry and Vera at the time than it was to Mark. For Mark, it no doubt mattered at a personal level because it marked a serious rift in his relationship with Terry and, to a lesser extent, his mother (the latter relationship was soon repaired). Financially, however, the parties held vastly different stakes. Mark was at this point heavily involved on a full-time basis with his own business. In fact, he was and had for years been entirely financially independent from the farm. He had not lived there since 1986 and in no way depended on income from the farm, nor did he look to DPC to meet any of his expenses. It is not hard to understand why, from a financial point of view, he wanted his exposure to the new lenders to be limited. It is not at all surprising that the solicitor he consulted at the time advised him accordingly. Nor is it terribly surprising that, given the way DPC and the Dundooga Unit Trust had been set up, he considered that it was in his interests simply to walk away from the financing arrangements rather than provide an unlimited guarantee.
For Terry and Vera, however, the situation could not have been more different. They were utterly dependent on the farm. If the refinancing proposal from Morrison & Sawers were to fall through, the State Bank would certainly take possession and sell both Dundooga and the Church Paddock, leaving them (and Terry’s family) with nothing whatsoever.
Although he denies saying it, I accept Terry’s evidence that Mark said to Vera that it would be:

This evidence was so jarring and so out of alignment with all of the other evidence in the proceedings that it is just impossible to accept. The idea that Mark has spent the past 28 years honestly believing that he signed a guarantee to help secure the 1998 refinancing is frankly ridiculous. It cannot be explained away, as counsel for Mark sought to do, as mere confusion about the chronology of events. The care with which he was cross-examined on the issue leaves no room for doubt about this.
The true position is that there was a huge row in 1998 precisely because Mark refused to sign an unlimited guarantee, which is what the lender required. Even his daughter Georgia, who was about nine years old at the time, can remember her parents talking about how they felt that it ‘wasn’t safe for them to guarantee a loan’. The fact that Mark did not give a guarantee to allow the 1998 refinancing to occur was a signally important event in the history of the Wright family and it is basic to Terry’s claim that there was a joint endeavour that broke down in 1998. In their written submissions, Mark’s own counsel characterised the letter from Mr Welsh in relation to Mark’s unwillingness to sign the requested guarantee as ‘the letter that destroyed a family’, a description which is no less fitting for being rather melodramatic.
The fact is, Mark did refuse to give the requested guarantee, it did destroy family relations and he knows it. I am in no doubt that Mark’s evidence in the witness box was completely self-serving and unreliable on this important issue.
Mark’s stance in 1998 meant that last-ditch efforts had to be made to remove him as guarantor from the proposed facility. In the end, the new financing went ahead, but with no assistance – and no guarantee – from Mark. It was years before Mark visited Dundooga again, although he did speak with his mother from time to time. On no view of the evidence did Mark make any contribution whatsoever to the farming business between May 1998 and, at the very earliest, 2003, when he bought a nearby property called Illa-Langi.
Finally in relation to this issue, it is apparent that one of Mark’s basic reservations in 1998 was that he was being asked to give an unrestricted guarantee in circumstances where he had no certainty as to what, if anything, he would inherit from his mother. Mr Welsh’s letter raised this issue squarely: see paragraph [92] above. The fact that Mark made such a demand is also mentioned in Vera’s 1998 Will, which I describe in detail below.
Even though I consider Mark’s evidence about the events of May and June 1998 to be unreliable, his evidence that he was seeking some assurance from his mother about his inheritance is corroborated by these contemporaneous documents. It stands to reason that, given Mark’s concerns about what he would get in return for the guarantee, the question of inheritance was something that was discussed, probably quite loudly, among Terry, Mark and Vera in June 1998.

That same filenote recorded that Vera was at that point considering that someone other than Mr Moore might prepare the will.
Vera’s 1998 Will was in an altogether different style and, as I mentioned at the outset, was badly drafted. It is unlikely that it was drafted by Mr Moore, who was a solicitor with a lot of experience in drafting wills. It is also clear that it was drafted after the big bust-up described in paragraph [94] above.
The question of who drafted Vera’s Will was a matter to which Mark attached significance. Mr Davis denied that it was him. It is however difficult to conclude that it was anyone but him. Leaving aside the style of the Will, which is so different from that of Mr Moore, the contemporaneous correspondence makes it impossible to accept Mr Davis’s evidence that he did not draft it. In my view, he did draft it and his memory about this issue is mistaken.
I also accept that Terry was aware of the content of the 1998 Will at the time. I do so for several related reasons. Terry and Vera were at this point closely engaged in the process of trying to refinance the State Bank debt and the question of whether and on what conditions Mark would provide a guarantee was being openly discussed, no doubt with vigour. This question was necessarily bound up with the question of inheritance, as Mr Welsh’s letter makes clear. Furthermore, a 24 June fax from Mark to Mr Welsh shows that Mark had already raised these same issues with Mr Davis on 23 June, being the same day Mr Davis prepared the filenote referred to in paragraph [119] above.
Given the nature of Mark’s concerns and the fact that he was making demands about his inheritance, it is hard to believe that the question of inheritance was not discussed among Vera, Terry and Mr Davis, just as Mr Davis’s filenote suggests it was. Terry was also the go-between for Vera and Mr Davis at this point and I cannot accept that he paid no attention to this matter in the course of liaising between the two of them.
Further, the content of the Will itself suggests that Terry had been consulted about the question. Not only did it strongly reflect Terry’s own idiosyncratic beliefs about DPC, the farm and his entitlement to it (which beliefs must of course have been shared by Vera to the extent they found their way into the final document), but it provided for Terry to continue to run the farm until age 58. It seems highly likely that a specific arrangement such as this would have been discussed with Terry first, just as Mr Davis’s 23 June filenote suggests it was.
Terry denied that he was aware of the content of the 1998 Will prior to Vera’s death but I cannot accept his denial in the face of the contemporaneous documents and the inherent likelihood of events.

The process of determining the route of the new section of highway and of negotiating compensation packages for affected landowners took many years. In the case of Dundooga, the RTA and Vera finally reached agreement on the terms of a compulsory acquisition of land in late 2008. The agreement, broadly, was that there would be an exchange of land and a relatively small cash adjustment, plus some related benefits such as air-conditioning and sound-proofing for Vera’s home during the construction period. Specifically, Vera agreed to sell to the RTA the two lots of Dundooga land that were required for the road and the RTA agreed to sell Vera 630 acres of farming land adjacent to Dundooga on its eastern boundary. The highway now runs through Dundooga and Lindfield, with the bulk of farming land on the north side, and a smaller strip of land on the south side accessible by a bridge on the western side of Lindfield.
The values adopted by the parties meant that at settlement there was a cash differential in favour of Vera of about $160,000, which was largely used to pay down debt and some related expenses. The 630 acres acquired from the RTA was the property called Lindfield. Settlement occurred on 22 May 2009.
Lindfield began to be used in the farming business from 2007, when it became available under lease. From that time onwards, it was used in the farming business conducted by DPC and later by the trustee of the Lindooga Family Trust, as I explain below at paragraph [163] below and following. Practically speaking, it was always farmed by Terry.
On 10 June 2010, Vera transferred Lindfield to Terry for no monetary consideration. According to Terry, his mother told him on around the day she transferred the land that she was going to do so for several reasons, namely:
Terry had engaged in the negotiations with the RTA to secure the compensation package;
the majority of the compensation ‘related to [Terry’s] projected future economic loss for [his] Farming Business’; and
it was Terry who had ‘resisted the State Bank’s attempts to take possession of Dundooga’.
According to Terry, Vera also told him that she:
needed to dispose of Lindfield otherwise she would lose her pension;
did not want to see Terry ‘left with nothing’; and
‘should transfer Dundooga’ to Terry as well ‘as we would not have still been there it were not for’ him.
These matters are mostly disputed. The dispute is not only as to whether Vera said these things, but also as to whether her supposed justifications for the transfer really existed in the first place.
The circumstances in which the transfer was executed are uncertain. Terry’s evidence about this matter was given in an affidavit made on 23 October 2024. In that affidavit, he gave a detailed account of how he and Vera visited their parish priest, Father Fowles, at the Immaculate Heart of Mary Catholic Church in Thurgoona on 10 June 2010 so that Father Fowles could witness the transfer. The document itself does appear to have been signed by Father Fowles in two places and at the same time, namely as the witness to each of Terry’s and Vera’s signatures.
On the other hand, Father Fowles’ recollection is that on one of his visits to Terry and Anna at their home on Dundooga, Terry asked him to witness a document which was to be signed by both Vera and him. He said that they waited for Vera to come from the other home on the property, but that she never arrived. He said that he had ‘no recollection of signing the document since Vera never came’.
He also recalls that Terry told him that the document was:

Subsequent years saw significant improvement. In 2015, the trust recorded net profit from trading of $240,432.14. It applied the last of its carried-forward losses against this amount, leaving net income of $106,732.
Notwithstanding what was contained in clause 21(a) of the trust deed (paragraph [54] above), DPC did not cause the income of the trust to be distributed to the unitholders in proportion to their holdings. Rather, the financial statements for the 2015 year record that the net income was distributed only to Terry and Anna, in the amount of $53,366 each, with those distributions being applied against their outstanding loan balances. Nothing was distributed to Vera or Mark. A similar thing happened in 2016, 2017 and 2018. For 2016, the financial statements show net income of $200,209.80 distributed between Terry and Anna, and nothing distributed to Vera or Mark. In 2017, accounting profit was $119,493.15, divided between Terry and Anna. In 2018, profit of $141,439.77 was divided between them also.
The tax position in each of these years was slightly different, but the treatment of beneficiaries was the same.
The 2015 trust return shows net profit from trading of $240,672 against which available tax losses were deducted, leaving $133,678 in carry-forward tax losses. There was therefore no net income of the trust for distribution. The 2016 trust return shows net trading profit of $202,211, against which the last of the tax losses was applied, leaving net income of the trust of $68,533. The distribution statement accompanying the return show that this amount was distributed only to Terry and Anna in equal proportions. Their tax returns show these distributions as assessable income.
By 2017 and 2018, all of the tax losses had been utilised. In 2017, net income of $119,493 was distributed only to Terry and Anna. In 2018, net income of $141,610 was distributed only to Terry and Anna.
Terry did not have a sensible explanation for why DPC distributed income only to him and Anna between 2015 and 2018.

On 15 August, a junior solicitor wrote to Ms Holzheimer enclosing copies of documents received from Mr Jankowski. These included the deed for the Dundooga Unit Trust and a statement of unitholders which reflected the unitholdings described at paragraph [51] above. They also included a copy of the deed for the Terry Wright Family Trust and a variation to that deed.
A filenote of Terry’s meeting with Ms Holzheimer was also in evidence. It refers to Terry having a ‘wish list’, namely:
to get plant, equipment, stock and cash out of the Dundooga Unit Trust.
to get the Church Paddock out of the unit trust to unitholders, but only to Vera, Anna and Terry or alternatively just to Anna and Terry.
Ms Holzheimer advised that he should establish a new trust rather than attempt to use the Terry Wright Family Trust. She also advised that he should notify Mark, which Terry declined to do. In one of his affidavits, he has attempted to explain this away on the basis that it may have caused Mark to react with physical violence towards Vera, who was 96 years old at this point. I do not accept that that is the reason Terry did not tell Mark about his plans to move the assets out of the Dundooga Unit Trust. Mark had a good relationship with his mother at this point. The far more likely explanation for his failure to tell Terry is hinted at in the filenote, where after noting Terry’s ‘wish list’, Ms Holzheimer records ‘does Mark even know he has these units?’.
So it was that on 21 August 2017 Mr Jankowski, as settlor, and LP, as trustee, executed a deed of settlement for the Lindooga Family Trust. The Lindooga Family Trust is a discretionary trust established for the benefit of Terry, Anna, and members of their family. Terry and Anna are the named beneficiaries although there are other potential beneficiaries. The trust is discretionary both as to capital and income.
The accounts for the Lindooga Family Trust for the 2018 year showed no farming assets at all. However, accounting and tax records show that at some point during the year of income ending 30 June 2019, almost all of the assets of the Dundooga Unit Trust were transferred to the Lindooga Family Trust. There were no documents in evidence dealing with the transfer of property other than tax and accounting records.

Terry’s son, David, was born in 1980. He has wanted to be a farmer from the time he was a very small boy.
David has worked on the properties (Dundooga, the Church Paddock and, later, Lindfield) in some capacity or other since he was a teenager. As a student, he would work weekends and holidays. When he was working off the farm, he would return to assist as time permitted. Like his father, he is sincerely devoted to the properties, although he has only been working there on a full-time basis since 2014.
Between about 2000 and 2003, David worked for his brother Anthony’s business, Riverina Rammed Earth. Between 2003 and 2004 he worked for Australian Elite Genetics and for Steveon, two related entities involved in cattle breeding.
Between 2004 and 2014, David worked on Illa-Langi, Mark’s property. He did the majority of day-to-day farm tasks including cropping and cattle work. He also worked for Rytmar, Mark’s defence contracting business. During this period, David bought and sold cattle on his own behalf. He kept the cattle either at Illa-Langi or at another nearby farm. He lived quite frugally and saved money, including by living rent-free at Illa-Langi. Mark did not live there at this point. He was still living at another property called Wyndham Park in Jinderra.
David began to work on Dundooga, the Church Paddock and Lindfield on a full-time basis in late 2014. He was not paid any wage for the first couple of years.
On 1 August 2016, David caused the David Wright Family Trust to be settled. The trustee is David Wright Agri Pty Ltd. The David Wright Family Trust is a discretionary trust, the potential beneficiaries of which are members of David’s family.
Starting in the year of income ending 30 June 2018, LP as trustee of the Lindooga Family Trust has made fairly regular payments to the David Wright Family Trust in relation to the farm work done by David. According to David, he and his father reached an agreement in around 2018 whereby David would receive an amount equal to one third of the net income of the farm being run by the Lindooga Family Trust and that, in turn, he would be responsible for paying one third of the farm expenses. Accounts for the respective trusts bear this out. They show that the Lindooga Family Trust has made significant payments to the David Wright Family Trust and that the latter trust has paid a significant share of farm expenses.

Terry has been a farmer since he finished high school in 1969 at the age of 19.
When Sydney suffered his cerebral haemorrhage in early 1970, the family still had five children at school. Terry’s recollection, which strikes me as inherently believable, is that Vera told him that he would need to stay and work on the farm because she would not be able to run the farm without him. The Wright family was at that time completely dependent on the farm for its livelihood and Terry, as the oldest son and having just finished school, was the obvious person for Vera to look to keep the farm running.
A surprising amount of hearing time was devoted to the question of whether Terry really did get a scholarship to study teaching when he finished his leaving certificate in 1969. His recollection is that he did and that he gave it up to be on the farm when his father fell ill in 1970. His siblings mostly say he never got a scholarship and that he always wanted to be a farmer. Mark even produced copies of the local newspaper from microfiche archives in the local library to demonstrate that Terry’s name was not among the local students advertised as having won a Commonwealth scholarship for the 1970 year.
It really does not matter whether Terry did or did not get a scholarship to study teaching. This is not a case in which the plaintiff claims to have been induced to become a farmer by promises about what he would inherit. Terry does not say that he gave up the prospect of teaching in 1970 because he was promised Dundooga. He says he initially stayed on the farm because he felt he had no choice given his father’s health and the family’s circumstances. He was the eldest of seven children and the only one in a position to do so. His case is that, as time went by and despite the considerable hardships involved, he decided to stay on the farm because he was encouraged to believe that he would inherit all of Dundooga one day.
Terry did however do well in his leaving certificate and, if it matters, I accept that in 1970 he would have preferred to become a teacher. I also accept that he could have done so if his father had not fallen ill. Terry has applied himself to various challenging endeavours over the years, generally quite successfully. He not only flew small aircraft but also built them. He studied accounting and software engineering. In the course of the dispute with the State Bank he took himself to a farm debt mediation course with the NSW Law Society. He has worked extremely hard on the farm for decades and has now turned it into a profitable venture. He is a dogged and hard-working individual. He could have been a teacher if he had had the opportunity to do so, whether he got a scholarship or not.
Terry and Anna married in 1974. They have four surviving children, Nicole (born 1975), Anthony (born 1976), David (born 1980) and Cecelia (born 1990). In 1979, another daughter, Justine, was born prematurely but sadly died three days later.

There was extensive evidence about the work Terry did on the farm over the decades. There is no doubt that he has committed himself to the success of the farm. He has made it his life. Nor is there any doubt that this has involved considerable sacrifices on his part and on the part of his family. Terry and Anna have unquestionably lived a relatively frugal life. In the early years, Terry worked at various off-farm pursuits in order to earn money on which to live. He has barely ever taken holidays from the farm. Terry and Anna still live in the Second House on Dundooga which they built in 1980. Their fortunes were almost entirely tied to the farm for many decades.
Terry and Anna’s taxable income over the years has been very small. Terry never drew a wage. For many years Terry and Anna received social security benefits, especially following the 1998 refinancing and during periods of drought. Anna is fortunate to have been the only child of a mother who was in a position to provide some moderate financial assistance to her and Terry, and this mattered greatly to them.
Despite Terry’s tendency to exaggerate and to be overly emphatic in his evidence, no-one seriously disputed that he has been the main person responsible for the farm since at least 1990. However, in my view Terry was the main person responsible for the farm since earlier than that. Doing the best I can with the evidence, I consider that Terry probably usurped his father in relation to management of the farm in the early 1980’s. I consider he was probably doing most of the physical work from even earlier.
I reach these conclusions for several reasons. First and foremost, the one relatively disinterested witness on this issue among the Wright children seems to be Leonie, who was particularly well placed to describe Sydney’s mental and physical health over the relevant period. I say she is relatively disinterested because no-one seriously disputes her claim in these proceedings. Although Terry disputes the amount she should receive, she has refused to treat him with the contempt shown by her sisters and at least some of their partners.
Leonie was born in 1963. She completed her HSC and applied in 1980 to become a Registered General Nurse at the Royal Children’s Hospital Melbourne. She moved to Melbourne when her studies commenced in October 1981. She returned to Dundooga in about October 1984 once her studies were completed and took a job at Albury Private Hospital. Aside from some traveling, she lived at Dundooga and worked in Albury until 1989. She lived and worked in Melbourne until 1997 and then returned to live with her mother on Dundooga, where she has lived ever since. I will describe her circumstances in further detail at paragraphs [552] to [566] below, but from the foregoing history, it follows that she has lived at the First House on Dundooga for about 51 of her 63 years.
Leonie was incredibly close to her mother. She was very actively involved in her care and was undoubtedly an enormous comfort to Vera in her old age. As a registered nurse with cardiac, perioperative and wound management experience she was able to provide significant assistance and comfort to Vera as she aged. Her siblings acknowledged that, without Leonie’s assistance, Vera would not have been able to remain at Dundooga for as long as she did.
Leonie was a thoughtful and measured witness. She was young when Sydney suffered his cerebral haemorrhage but she alone among her siblings was able to provide what seemed to me to be a balanced, considered account of Sydney’s life during the late 1970’s and throughout the 1980’s. According to Leonie, Sydney suffered a gradual but definite decline in both his physical and mental condition after his cerebral haemorrhage. He began drinking heavily, experienced depressive episodes and expressed suicidal thoughts. By the time that Terry got married in 1974, Leonie says that Sydney’s capacity to work and manage the farm was significantly diminished and that, by that point, he was doing much less work than Terry or even Mark. I attach significant weight to Leonie’s evidence about this matter.
Secondly, for all his faults as a witness I do not consider that Terry’s evidence should be entirely put to one side. He was truculent, but mostly in matters of opinion about his siblings who he justifiably thinks would have nothing to be squabbling about at all if he had not saved the farm from the banks in the first place. He is entitled to be cantankerous about that matter, which he certainly was.
Terry’s actions in causing the farming business to be transferred to the Lindooga Family Trust reflect poorly on him. There was an element of deception involved in those actions. I accept however that he was to a large extent motivated by a sincere but deeply mistaken belief that the Dundooga Unit Trust had never been properly constituted and that it was he, Terry, who had paid off the farm in the first place. Counsel for Mark accepted that Terry’s convictions about matters of family history and his role in acquiring the Church Paddock, and his role in personally paying off the State Bank debt, were honestly held.
Terry also lived on Dundooga for virtually the whole of the period between 1970 and 1990, when Sydney was moved into care. He is well placed to comment on Sydney’s capacity to run the farm after his cerebral haemorrhage. Lastly in relation to Terry, the account he now gives about Sydney’s capacity to run the farm after 1970 is significantly corroborated by the letter he wrote to the Veterans’ Review Board in 1993.
I am therefore not willing to altogether disregard Terry’s account of his father’s life following 1970, save that I approach it with the reserve appropriate for a witness who I know to be prone to self-serving exaggeration.
Thirdly, I attach weight to the accounts of Sydney’s capacity given by Vera and Jennifer in connection with the Veteran’s Review Board appeal in 1993 and to the fact that, as I have explained, Mark believed those accounts to be true at the time. Those accounts are consistent with Leonie’s evidence.
Fourthly, I attach weight to the fact that in the course of the State Bank litigation, Mark and Terry both had a hand in promulgating a cross-claim which took as its premise that Sydney had been under a disability from at least 1984 when the State Bank loan was first taken out.
Fifthly, as I explain below, I consider that Mark’s evidence about his own involvement in the farming business is also quite significantly exaggerated. He has also demonstrated himself to be quite unreliable in other ways.
At the same time, I recognise that Sydney was active and involved in aspects of the farm to a certain degree throughout the 1970’s and into the 1980’s. It is impossible to pinpoint the date on which the baton pass to Terry was completed. The events of 1981 suggest that Sydney still had considerable influence over the farming business at that stage. It must have been Sydney who caused the Church Paddock to be transferred to DPC, notwithstanding that it had been Terry who had organised the purchase in the first place. The fact that he did so suggests that in 1981, Sydney still had a significant influence over major decisions concerning the farming business. This is a matter to which I now turn in more detail.

There are two sets of figures for each of Sydney, Vera, Terry and Mark. The figures to the left are probably final revised figures because they are the figures taken up in the 1983 accounts.
Terry accepted in cross-examination that the amounts shown here as liabilities to him, Sydney, Terry and Mark reflected their respective contributions to the final purchase price of the Church Paddock, albeit that (in his view) his parents’ contributions should be understood as having been made by him because they came out of ‘the bank account that we traded the whole farm out of’, namely the joint Westpac account. As I have said, he saw this as his account. He also said that his parents had not contributed towards the deposit of $20,889 which he insists he paid personally.
In re-examination, Terry suggested that some evidence of his position concerning who paid the deposit was to be found in a letter from Hargrave, Lethbridge & Co, solicitors, who were the solicitors who had acted on the purchase. That letter is dated 10 December 1981 and encloses a cheque in the sum of $559.66 which representing ‘your’ interest on the deposit. The difficulty is that although the salutation in the letter reads ‘Dear Terry’, the addressee is ‘The Manager, Dundooga Pastoral Co. Pty. Ltd.’, which strongly suggests that, so far as the solicitors were concerned, the deposit had been paid by or on behalf of DPC, not Terry. The letter does not support the conclusion that Terry paid the deposit on his own account.
I also note that the 1982 balance sheet otherwise records the Church Paddock at its full cost, which includes the deposit and other costs associated with the purchase. It seems unlikely that Mr Reynoldson would have prepared these accounts in a way that ignored the question of who paid the deposit, especially as the deposit had been paid by cheque out of the same account as the other contributions. The more likely fact is that the liabilities to Sydney, Vera and Terry include their proportionate shares of the funds used to pay the deposit, although it is impossible to know how those shares were worked out.
Two other aspects of these accounts should be mentioned. The first is that they include a $40,000 liability to Hargrave Box & Co and a $41,865 liability for a ‘Fully Drawn Advance’. It is highly likely that one or other of these loans was taken out to make up the balance of the purchase price at settlement, although no-one was able to explain what the true position was. What matters is that the trustee borrowed to pay a portion of the purchase price. The second notable matter is that they refer to the three family trusts described at paragraph [49]. There was no explanation as to why the trust recorded negative loan balances for these trusts but I note that these amounts add up to the amount of the trust’s trading loss for the year.
The 1982 accounts for the Dundooga Unit Trust therefore tend to confirm that it was the trustee who paid the whole of the purchase price, including the deposit. To the extent that part of the purchase price, including the deposit, was paid out of the joint Westpac account, the transactions were accounted for from the outset as giving rise to loans to the trust. The accounts refute the suggestion that Terry paid any part of the purchase price on his own account. Rather, they show that he, Sydney and Vera (and to a very minor extent, Mark, who apparently lent DPC $610) each lent funds to DPC to allow it to complete the purchase of the Church Paddock. I note that Terry, among others, approved the trust’s accounts for the 1982 year.
I therefore do not accept that Terry paid the purchase price for the Church Paddock on his own account.
I also do not accept that in 1981 Terry was unaware that the Church Paddock was to be – and that it subsequently was – transferred to DPC as trustee at settlement. The presence of special condition 10 in the draft contract shows that Sydney and Vera formulated their plan to acquire the Church Paddock in the name of DPC well before the auction. Terry must have known this because it is otherwise impossible to explain how it found its way into the contract. It is inherently likely that so significant an acquisition was the subject of discussion within the family. Mark, who was overseas, recalls it being discussed.
Terry cannot conceivably have believed prior to settlement in 1981 that the Church Paddock was going to be transferred into his personal name at settlement. Nor can he have believed after settlement that it had been transferred into his personal name. He must have known that he alone was not proposing to come up with the purchase price. And he knew that he alone did not come up with the purchase price.

The trust funds accessed in this way by Terry and Anna were not significant in the scheme of things. By the end of the 1997 financial year, Terry and Anna had run up loans from the trust totalling only $61,288 and $48,744 respectively. The loan account for Sydney’s estate at the end of the 1997 year stood at $67,621, an amount which had barely moved for almost a decade. Between 1982 and 1997, the trust almost never made a profit and so had made almost no distributions whatsoever, nor had Terry and Anna or anyone else made loan repayments from other sources. The loan accounts as at the end of the 1997 year therefore represent, roughly, the total extent to which Terry and Anna had recourse to the Dundooga Unit Trust to meet their private expenses over a period of 15 years.
The accounts for the 1998 year dealt with the settlement with the State Bank. The benefit associated with the reduction in indebtedness was recorded as non-operating (and non-assessable) revenue and the loan forgiveness was recorded as an expense. Although it therefore had an accounting profit for the year, its final tax position mostly reflected its loss from farming activities.
Mark made much of the fact that the loan accounts were all forgiven during the year ending 30 June 1998. First, he pointed out that this coincided with the introduction of Division 7A into the Income Tax Assessment Act 1936 (Cth). There may well have been a relationship between the introduction of Division 7A and the forgiveness of the loan accounts, but nothing turns on that in this litigation. The reality is that Terry and Anna could never had repaid those loans in 1997, nor could they have afforded to put them on Division 7A compliant terms. The trust likely had no distributable surplus anyway.
Mark’s more relevant point is that the forgiveness of the loan accounts represented a financial benefit to Terry and Anna. It meant that the sums totalling $61,288 and $48,744 respectively which they had drawn from available cash in the trust’s bank accounts to meet personal expenses over a period of 15 years were no longer required to be paid. It was, he submitted, as if Terry and Anna had earned wages of $61,288 and $48,744 respectively between 1982 and 1997.
That may be so, but it tends to make Terry’s point. Terry and Anna only ever accessed cash extremely modestly. Income, so to speak, of $61,288 and $48,744 for fifteen years of labour on a rural property represents little more than a token reward. Terry and Anna had de minimis taxable income over this same period, mostly comprised of social security benefits.
When he was asked about the loan forgiveness in cross-examination, Terry said that he did not really owe the money to the trust to begin with. This assertion may have been wrong from a legal point of view, but it needs to be understood in the light of Terry’s long-standing (and belatedly abandoned) assertion that the trust never really existed in the first place. It also needs to be understood in the light of Terry’s understandable tendency to see things from a very practical point of view. As I see it, he simply took the view that the notion of borrowing from the trust was something of a nonsense when, as a practical matter, it was him doing all the work and producing all the revenue in the first place. In the light of what I have already said about the relevance of the loan forgiveness, it really does not matter whether Terry was right or wrong to see things the way he did at the time.

He also submitted that the Court should not infer that the account from which the payments were made was Terry’s account or that it was ‘legitimate to treat it in this way’.
These accounts were prepared by Mr Jankowski, who gave evidence and was cross-examined about this issue. To understand his explanation, one needs to step back a little and recognise that during this period, DPC relevantly had two bank accounts – a so-called ‘S6 account’ and a so-called ‘S9 account’ – and that in relation to some of its trading activities, revenue was paid into the S6 account. Mr Jankowski was not however in the habit of treating the S6 account as a DPC account for accounting purposes, presumably because, as Terry explained, he had been trying for some time to move away from using the S6 account for reasons of convenience. Despite his efforts to move away from using the S6 account, apparently some customers still paid sale proceeds into it.
There was no suggestion that the Dundooga Unit Trust ever failed to recognise sales proceeds paid into the S6 account as trust income. However, Mr Jankowski also recognised that it was necessary for the balance sheet to reflect what was happening in circumstances where cash in the S6 account was not otherwise being captured in the ledgers being used. He did so by treating sales revenue paid into the S6 account as a loan drawing by Terry and by treating expenses paid out of the S6 account – including transfers back to the S9 account – as repayments (or contributions) by Terry. Thus, as he explained, the amounts treated by him as contributions by Terry were offset by amounts paid into the S6 account in the first place, all of which were first treated as ‘loans’.
I do not know whether this was the correct accounting treatment. It may well have been. It certainly was not suggested to Mr Jankowski that some other accounting treatment was more appropriate. Regardless, in the light of Mr Jankowksi’s evidence I cannot accept the characterisation of these transactions urged by Mark, which is that Terry’s loan account has been artificially inflated by ‘internal transfers’ to give the appearance that he has ‘contributed’ more to the trust than he really has. That submission ignores the fact that he has at the same time been treated as having ‘borrowed’ at least an equal amount in the first place.
Nor am I willing to attach any significance to the fact that the total amount of funds contributed by Terry in the 2012 year was said to be $118,604.36 when the total of the journal entries for ‘funds lent to trust’, was only $108,879.84. The problem is that those journals appear to relate only to the movements between the S6 and S9 accounts. No-one took me to any other journal entries that no doubt inform the final loan account position. Nor was this matter specifically raised with Mr Jankowski in cross-examination, although he was cross-examined about other aspects of these accounts.
Mark submitted that ‘everything should be assumed against the party with the onus’, but I do not see why this is a matter on which Terry had the relevant burden. Terry has put forward accounts which, on any view, show that he borrowed much more from the trust in the 2012 year than he contributed. Mark has assumed the burden of trying to persuade me that Terry did not really contribute as much to the trust as the accounts suggest for that year. Or, to put it the other way around, that Terry owed more to the trust by the end of the 2012 year than the accounts show. However, the material to which Mark has taken me does not provide a sufficient basis to conclude that Terry’s loan account with the trust was anything other than as presented in the financial statements. I reach the same conclusions in relation to the later years in which the same issue arises.

Mark finished school in 1976 and undertook an electrical-fitter apprenticeship with ATA. ATA had defence contracts. Mark attended TAFE courses after work in gas and electric welding, diesel engineering and wool classing. He commenced a correspondence with RMIT in Melbourne for a Certificate of Technology but it is unclear whether he completed it.
Mark completed his apprenticeship in about January 1981 and was transferred to ATA’s research and development section. Shortly afterwards, he travelled to Fort Polk in Louisiana for 12 weeks to assist with hi-tech target systems for the US army. The purchase of the Church Paddock occurred while Mark was in the USA.
In 1983, ATA was acquired by Dart Defence Industries and Mark was required to take several months’ leave during the acquisition process. In late 1983, he returned to work at Dart Defence Industries. That job required Mark to travel fairly extensively and he was often away for four to six weeks at a time.
Mark was married in 1986. It was only then that he first permanently moved away from Dundooga. He and his wife, Judy, moved to Lavington in Albury. They lived in a small house that Judy had bought with her savings and with some assistance from her parents. Their first child, Bethany, was born in 1987. A second daughter, Georgia, was born in 1989 and son, Patrick, was born in 1991. Mark, Judy and the family moved to a larger house on a 25-acre block at Jindera, north of Albury, about 15 minutes from Dundooga. Mark and Judy separated in 2008.
In 1992, Mark was retrenched by Dart Defence Industries. He then established his own defence contracting business, originally as a sole contractor. He eventually incorporated RytMar Technologies Pty Ltd (RytMar) in June 1995 to carry on the business and he has been running RytMar ever since. RytMar has been successful and Mark is comfortably well-off financially. Over the years, RytMar has employed various family members, including some of Terry’s children. In fact, David was employed full time at RytMar for most of the period between 1993 and 2015.
Mark acquired Illa-Langi in 2003. He has conducted a farming enterprise on that property through his family trust. That trust also appears to own RytMar and conducts RytMar’s defence contracting business.

Mark gave extensive evidence about his work on Dundooga. He said that he had contributed to the farm from a young age, that he had worked on the farm as time permitted for so long as he lived there, that he had continued to work on the farm in between other commitments even after he moved away, and that this continued even after he had started his own company. He also said that he had made financial contributions to the farm, including by buying equipment. He points out that he obtained a qualification as a wool-classer and tendered a number of documents showing that his services as a wool-classer had been utilised on Dundooga over the years.
Mark also gave evidence about the equipment he bought for Illa-Langi which has been used on Dundooga (by which I mean Dundooga, the Church Paddock and, later, Lindfield) and about the time he has spent working on Dundooga since buying Illa-Langi in 2003. His evidence was that between 1976 and 1998, when he left in a huff, he worked about 800 hours per year. He estimates that from 2003, when he bought Illa-Langi, to 2021, when Vera died, he worked about 500 hours annually.
So far as equipment is concerned, he estimates that equipment owned by him was used in the farming business between 1984 and 2003 for a total of 3600 hours and that between 2003 and 2021, machinery from Illa-Langi was used for planting and harvesting about 500-600 acres of crop on Dundooga, the Church Paddock and Lindfield every year.
The cross-examination of Mark exposed these claims to be quite overblown. For example, he accepted that he had not worked anything remotely like 500 hours per year on Dundooga, the Church Paddock and Lindfield between 2003 and 2021. In fact, the figure of 500 hours is his estimate of the total time spent on Dundooga, the Church Paddock and Lindfield by any number of other people associated with him, such as his son, his nephew, his employees and possibly others. His estimate for the use of machinery was totally unreliable.
At the same time, however, Terry’s own evidence about Mark’s contributions to the farm seems equally overblown. Terry was completely derisive about Mark’s ability as a farmer (and the quality of his farming equipment) and was not prepared to accept that Mark had made any useful contribution to farming operations on Dundooga, the Church Paddock and Lindfield at all.
It is impossible, given the state of the evidence and the tendency of both witnesses to exaggerate, to know exactly where the truth lies. However, it is not actually in dispute that Terry was the person who has done most of the farming work on Dundooga, the Church Paddock and Lindfield, at least until he started to get assistance from his son, David. Mark’s evidence, even taken at its highest, does not gainsay that fact and his counsel did not submit otherwise.
In my view, Mark did help out on the farm as he said he did up to 1998, but he never made nearly as big a contribution to the workload as Terry. He had not lived there since 1986 and he was developing his own business from around 1992. He travelled a lot for work and had small children. Mark was also of some limited assistance on the farm in the years following 2003, but not nearly to the extent he claims in his affidavits. He also allowed livestock from Terry’s operations to be agisted on Illa-Langi from time to time, without demanding payment.
Mark may not have been quite so utterly useless as Terry proclaimed. But whatever contribution he did make was not such as to cause me to doubt that it was Terry who took over from Sydney and did the overwhelming majority of farming work, both physical and managerial, thereafter.

In my view, Vera never made this so-called Inheritance Representation, if that representation is to be understood in the manner alleged in paragraph 23 of the further amended statement of claim.
On my findings, the first occasion on which Vera made any kind of potential representation about what Terry was to inherit was in 1978 when he was encouraged to build a house on Dundooga. This is the second conversation I set out at [286] and [287] above.
It makes sense that Sydney and Vera would have made some kind of promise about ‘the land’ at this point in time. It would be quite unusual for someone to build a house on their parents’ land without having a conversation about who would own the land on which it was to be built. It was therefore reasonable for Terry to have understood that his parents were making some kind of promise about ‘the land’ at this point in time.
I do not however accept that it was reasonable for him to have understood those words as being a representation about the entirety of the farm, much less as a representation extending to all of the matters referred to in paragraph 23 of the pleading. The main reason I am unable to accept Terry’s case on this point is that the topic of conversation in 1978 was relevantly only to do with where Terry and Anna would live; it was not to do with whether Terry was going to be a farmer or do something different with his life. By this point, Terry had already well and truly committed to being a farmer, albeit that this was largely a product of the circumstances as they existed in 1970.
In 1978, his parents were not trying to induce him to be a farmer; they were hoping he would build on Dundooga rather than buy in Albury. That was the only relevant decision to be made.
Furthermore, and as Terry would have understood perfectly well at the time, his parents had no assets other than Dundooga and yet they had other children to consider. Leonie was 14 or 15 years old, still at school and was living at home. Mark had finished school and was still living at home. There was no certainty about the path in life he might wish to take. He was at that point involved in farm work, albeit not to the same extent as Terry.
The context in which the words were spoken therefore leads me to conclude that it would not have been reasonable for Terry to understand them as an irrevocable promise about the entirety of the farming venture from time to time, land and all. In my view, the promise his parents made to him in 1978 was as to the land on which he would build a house. It was not a promise that he could have the entire farm and farming business, to the exclusion of all of his siblings, provided only that he build on Dundooga rather than buy in Albury.
This was exactly how Vera understood matters. When she did finally make a will, the only specific gift of land to Terry was of a parcel in the vicinity of the house he had built. There is no evidence that either Sydney or Vera ever believed that they had made an irrevocable promise of the whole of Dundooga to Terry upon their deaths.
The next critical conversation on which Terry relies was that which occurred in the context of buying the Church Paddock in 1981 which I describe above at paragraphs [288] to [291]. However, as I have explained, I am not persuaded that that conversation occurred as Terry recalls it. I accept that if, contrary to my conclusion, Vera did say the words attributed to her by Terry in 1981 then it would have been reasonable to understand them as a promise concerning Dundooga. I reach the same conclusions in relation to the fourth conversation (above at paragraphs [292] to [294]).
Nothing said by Vera in the fifth to the ninth conversations avails Terry. The fifth conversation (described at paragraphs [295] to [296] above) does, in isolation, look like a promise that Terry would get the whole of the farm. I have accepted that Vera may have said those things in the immediate aftermath of her fight with Mark. But her words were almost immediately overtaken by her actions because, as I have found, the question of what would be in her 1998 Will soon became an open topic of conversation among her, Terry and Mr Davis. I therefore do not think that it was reasonable of Terry to understand anything said by Vera in the heat of the moment after her fight with Mark as a solemn and lasting promise as to his eventual ownership of the entire farm. My conclusions about the sixth to ninth conversations flow from my findings above at [297] to [313]. They were either not about Dundooga at all or could only be reasonably understood as statements of testamentary intention.
My conclusion in relation to the pleaded Inheritance Representation is that it was never made. There was a representation in 1978 about ownership of ‘the land’ on which Terry and Anna would build their house, but it was not a representation about the farm in its entirety.
The other alleged matters of encouragement (see paragraph [282] above) do not take matters any further. I do not think it is right to say that Sydney and Vera encouraged Terry to believe he would inherit the entire farm by ‘allowing’ him to be the sole manager of the farm. Nor do I think it is right to say that they encouraged this belief by standing by as he ‘personally’ assumed responsibility for their debts, as he puts it. The precise financial relationship between Terry and his parents between 1970 and 1981 is far too uncertain for me to be reach any definite conclusion about the extent to which Terry assumed a personal liability for his parents’ debts. As best I can see, he was in partnership with them during the 1970’s, but I do not know the extent to which that partnership exposed him to personal liability. I am however confident that his parents would not have regarded his admission to the partnership as an encouragement for him to believe that he alone would inherit the farm.
I therefore do not accept that Terry was encouraged to believe that he would inherit the entire farm including all of the stock, property, plant and equipment. Even if he had formed that view during the 1970’s, it is a view that cannot have survived the events of 1981. From that point onwards, Terry can have been in no doubt whose benefit the farm was being conducted for, because the business was thereafter conducted by DPC as trustee of the Dundooga Unit Trust.
The conclusions I have reached on this part of the case are further supported by the fact that Terry did not assert the existence of the alleged promises prior to this litigation. In fact, he only raised them for the first time quite late in the piece. The proceedings were commenced by way of five summonses filed by his sisters for orders under the Succession Act. Those summonses were filed between 24 August and 13 September 2022. Before Ms Kennedy was appointed as the estate’s administrator, Terry, as executor, was a defendant in each of those matters, which proceeded in the usual way and were listed for a final hearing to commence on 25 September 2023. In each matter, Terry swore an affidavit in about early February 2023 in which he raised his own competing claims. In each affidavit, Terry described the history of the farm, the acquisition of the Church Paddock, the fact that he had been farming without a wage for so long, his improvements to Vera’s property, and his many contributions to the acquisition of livestock, plant and equipment as well as the debt repayments he had made on loans secured by Vera’s property. Nowhere did he mention that he had done any of these things in reliance on a promise by Vera that he would inherit the entirety of her estate. The closest he came was the following:

First, as to reliance, even if the 1978 promise about ‘the land’ was a promise about eventual ownership of the entire farm, I do not consider that Terry relied on it in the way he now claims. The thing Terry did in reliance on the 1978 promise was to build his house on Dundooga rather than buy a house in Albury. That promise is not what galvanised his intention to become a farmer. He was not induced to become or to remain a farmer by the fact that he was promised the land he built his house on. In fact, it was almost certainly because of his pre-existing commitment to farming that it made sense to build there in the first place.
Terry said that if they had not made that promise then he would have gone to university and ‘done something worthwhile’. I am unable to accept that evidence. Terry was already married at this point and had two young children. Importantly, he and Anna had already decided to buy a house in Albury and had already paid a deposit before there was any talk of him building on Dundooga or of him getting ‘the land’ if he did so. There was no suggestion that Terry was thinking of moving off the farm and doing anything else with his life before he and his parents had a discussion about him getting ‘the land’. It is therefore very difficult to believe that he would have quit the farm altogether and ‘gone back to university’ if his parents had not made a promise about getting ‘the land’.
As to what occurred in 1981, I have explained why I am unable to accept Terry’s evidence about what was said. But if I am wrong about that, it is necessary to determine whether he relied to his detriment on what his parents said to him in the context of acquiring the Church Paddock.
Terry’s case, it is to be remembered, is that he stayed on farming the properties after the Church Paddock was bought because his mother said that if he purchased that property, then he would ‘at least have some land for’ himself and, if he paid the whole of it off, then he could also have all of Dundooga. The problem is that from the very outset, the Church Paddock was acquired in a way that made it impossible for any of this to be true and yet Terry stayed on anyway. The Church Paddock was acquired, but not by Terry. It was acquired by DPC as trustee for the Dundooga Unit Trust, a fact which Terry has resented from the outset.
Terry’s evidence about this matter is not easy to accept. His case is that despite signing the contract for its purchase, he did not know how the Church Paddock came to be owned by the Dundooga Unit Trust and that he did not discuss that matter with anyone before the land was transferred. He says that when his mother told him in 1981 that she would leave him her interest in the Church Paddock, he did not believe her because he did not believe that she had paid any of the purchase price for it. He also says that he was not aware that the Church Paddock was owned by DPC at all until 1984. He said:

I cannot accept that this is correct. It is implausible in the extreme that, having stretched himself to his financial limit to pay the deposit for the Church Paddock, (a) the property came to be owned by the Dundooga Unit Trust without Terry knowing, (b) Terry nevertheless believed he had paid the balance of the purchase price and that the property was registered in his name and (c) Terry did not learn the true state of affairs until 1984, whereupon he did nothing about it.
This evidence can only be an ex post facto attempt by Terry to justify why he acquiesced in the structure he now complains about. I do not accept it.
Terry also says that it was in reliance on the promise of getting Dundooga that he engaged in negotiations with the State Bank to refinance the Sisters of Mercy debt in 1986, subsequently refinanced the State Bank debt in 1998 and then refinanced the farm’s debt in 2012 with a loan from NAB. Additionally, he states that he only continued conducting the farming business to generate the funds required to service those debts on the belief that he was going to inherit Dundooga when his mother and father died.
Apart from anything else, he did not personally borrow funds in 1986 to refinance the vendor finance from the Sisters of Mercy. DPC did. So far as I can tell, Terry was not required to give a personal guarantee in connection with that borrowing.
Even if I am wrong about all of the foregoing, the events of 1998 put beyond doubt that Terry did not rely on his belief about his mother’s 1998 Will from the time of the 1998 refinancing. From that time, he knew that his mother was not proposing to leave him the entirety of Dundooga, her DPC shares, or her units in the Dundooga Unit Trust. These are matters that he discussed with Mr Davis in the presence of his mother. They were spelled out in documents which Terry received at the time. Vera’s new will was not a secret, at least from him. Vera’s testamentary intentions were the subject of open discussion and of correspondence from Mark’s lawyer. Even if Vera had at that point told Terry that he was going to inherit the entire farm, which I consider to be most unlikely given her immediately contemporaneous Will, he knew the true position.
I also do not consider that Terry had any real choice about the matter in 1998 anyway. If he had decided not to proceed with the refinancing, the State Bank would have taken possession of Dundooga and the Church Paddock. Given the size of the debt and the value of the properties, there would have been nothing left for anyone. I do not consider there was any realistic possibility that Terry would have taken that course. He had no option but to commit to the refinancing. He did not do it because he felt safe in the knowledge that he would come to own both properties outright when Vera died. To put it another way, Terry would not have acted any differently even if he had known that Vera was not intending on honouring a promise as to leaving the whole of Dundooga to him: Q v E Co [2020] NSWCA 220; (2020) 383 ALR 469 at [88]-[89] (Meagher JA, Leeming and Payne JJA agreeing).

Part of Terry’s proprietary estoppel case involves the contention that Vera was estopped from resiling from a promise to leave Terry in her Will the interest that she had in the Church Paddock by virtue of her shares in DPC and her units in the Dundooga Unit Trust. He submits that in making promises to Terry about ‘the farm’, Vera never distinguished between properties. He therefore submits that because ‘the farm’ included the Church Paddock and because Vera held an interest in that property by way of the Dundooga Unit Trust, her promises about ‘the farm’ must have included promises about her shares and units.
In principle, there is no reason why a promise about ownership of a parcel of property could not give rise to an estoppel in relation to the promisor’s units in the trust that holds that property. It all depends on the facts.
Here, I have already rejected much of Terry’s evidence concerning Vera’s promises insofar as he says they concerned his future ownership of the Church Paddock, which makes it impossible for this aspect of his case to succeed. However, if I am wrong about that, I do not consider that either Terry or Vera would ever reasonably have understood Vera’s references to ‘the farm’ in those conversations as including her proportionate interest in the Dundooga Unit Trust or her shares in DPC. The references to ‘the farm’ could only reasonably be understood as connoting the beneficial interest that Vera had in the land itself, not her units which confer a proportionate interest in all of the property of the Dundooga Unit Trust apart from the Church Paddock, property which included the trust’s livestock, plant and equipment. Those words also could not have been taken to mean Vera’s shares in DPC, which, unlike the units, do not themselves correspond to a proprietary interest in the land which DPC held as trustee: Charles v Commissioner of Taxation (Cth) (1954) 90 CLR 598; [1954] HCA 16 at 609.
More importantly, I do not consider that Terry ever relied on Vera’s words in that way. In fact, Terry’s evidence is that he believed all along that he owned the Church Paddock outright because he paid for it. He now accepts that that is wrong, but this evidence makes it impossible to accept that he committed to the 1998 refinancing in the belief that, if he did so, his mother would give him her units in the Dundooga Unit Trust. Besides, the things Terry claims to have done in reliance on his mother’s promises concerning her shares and units were, in truth, things he did because he had no real choice but to do them anyway for the reasons explained in paragraph [351] above.
In my view, Terry’s estoppel claim in relation to Vera’s units in the Dundooga Unit Trust and her shares in DPC cannot succeed.

There are many difficulties in the way of this part of Terry’s case. The only relevant joint venture among the parties here was the one embodied in the express terms of the Dundooga Unit Trust. That trust made provision for the nature and extent of each unitholder’s interest in the income and capital of the trust. It imposed no requirement on any unitholder to contribute capital (or anything else) to the trust and yet it specified fixed income and capital entitlements. It may well have been a woefully ill-fitting legal structure for the kind of family farming operation for which it was intended, but it is the one chosen by the parties and the one they have lived with for 45 years, albeit unhappily.
Mark was not required to give a guarantee to a lender as part of the venture between the parties, either as director of DPC or as a unitholder of the Dundooga Unit Trust. He was within his rights to refuse to do so. Having regard to Vera’s and Terry’s financial circumstances at the time, it was a particularly self-interested act on Mark’s part and he went about it in a cruel way. But his failure to give the guarantee did not bring the parties’ venture to an end.
This is not a case where the circumstances are such that a party has been left ‘with a legal interest which that party was not intended to enjoy beneficially in those circumstances’: Woods v McKinlay (No 2) [2021] NSWSC 1510 at [231] (Parker J); and on appeal McKinlay v Woods [2024] NSWCA 122 at [84] (Leeming JA, White JA and Griffiths AJA agreeing). Title to the Church Paddock was held by DPC on terms that never required Mark’s contributions, whether by giving a guarantee or in any other way, in the first place. The joint venture was not one in which the parties envisaged that DPC would hold the property as trustee only for so long as all unitholders contributed equally or even at all. After all, the trust had been established in 1981 in circumstances where the initial unitholders were not contributing equally and were unlikely ever to contribute equally to the venture. When Mark refused to give a guarantee and walked away, nothing really changed so far as the fundamental nature of the venture was concerned.
Apart from the foregoing reasons, there is no reason why, as at 1998, the fact of Mark walking away from the farm would have resulted in any alteration to the other unitholders’ (Anna and Vera’s) interests in the Church Paddock.
There is in my view no basis for the imposition of a constructive trust in relation to the Church Paddock.
I note that the plant, stock and equipment owned by DPC as trustee for the Dundooga Unit Trust also forms part of Terry’s constructive trust claim, which is a claim over all of ‘the assets of the joint venture’. I have already found that Terry did not personally own any of the plant, stock and equipment recorded in the trust’s accounts: at paragraphs [262] to [263] above. For the same reasons I have set out above as to why Terry’s constructive trust claim in relation to the Church Paddock fails, I cannot accept his argument that a constructive trust arises in relation to DPC’s plant, stock and equipment.

Among other things, the experts were provided with financial statements for the Dundooga Unit Trust for the years ending 30 June 1982 to 2018. These showed the number of opening stock of sheep and cattle from year to year, as well as the gross profit from various farming activities for each year.
Mr Tremain and Mr Ivey expressed the view that on the assumption they were asked to make, and given Terry’s total lack of leave or other time off, the amount of farm work he performed was equivalent to two full-time workers at the award workload of 38 hours per week, allowing for the required annual, sick and personal leave.
In their view, a single full-time farm labourer employed over that period would have earned total remuneration including superannuation of $931,934. A single farm manager for properties such as these, on the other hand, would have earned total remuneration of $1,397,901. They did not consider that it was realistic to assume that all of Terry’s work related to management services and said that if there were a full-time manager, the balance of the required workload could have been completed by one farm labourer. They said that if Terry had been paid just as if he were doing the work of two labourers, his total remuneration would have been approximately $1,864,000 and that if he had been paid as if he were doing the job of a labourer and a manager, his total remuneration would have been approximately $2,330,000.
So far as shearing was concerned, they considered that it was realistic to assume that Terry would have shorn only half the flock in any year. On that basis, they estimated the total value of labour for shearing at $147,315. However, they were not prepared to assume (as they were asked to) that shearing and other work were mutually exclusive. They said that if he had been employed as a labourer but also did shearing work, he could expect to earn the slightly higher piece work rate for shearing in lieu of the farm and livestock hand wage for that time.
The experts gave evidence jointly and were cross-examined, mostly in relation to the reasonableness of the assumptions they were asked to make about how much time Terry actually worked during the relevant period. They were asked how their conclusions would change if Terry had been assisted in the farm work by others, such as by Vera, Sydney, Mark, his sisters and others. All of this was premised on the idea that Terry was assisted in the farm work in a material way by other members of the family, such as on weekends and at harvest time.
None of these matters caused Mr Tremain or Mr Ivey to change their opinion about the overall value of the work done by Terry. They pointed out that a family member who turns up after hours or on weekends to do farmwork in their own time does not necessarily lighten the load of full-time farm workers who are otherwise required to work all week. They were generally reluctant to accept that the kind of work done by other members of the Wright family was of a kind that would have made a material difference to Terry’s workload anyway.

The experts were asked to assume that Terry worked 10 hours of every single day between 1 June 1981 and 30 June 2018, a period of 37 years, without so much as a single day off. Although I can accept that Terry is a committed and very hard-working farmer, and although I accept that he really has been the person principally responsible for doing the farm work over most of that time, it strains belief that he worked quite so consistently for 37 years. I have otherwise found him to be somewhat prone to exaggeration and, in my view, this is another example.
However, the fact remains that Terry did the overwhelming bulk of the farming work for most of that period. He did have the assistance of others for some of that time, but this assistance was never sufficiently methodical or reliable, or of such a nature, as to materially lighten Terry’s workload. The problem with Mark’s case on this point is that it assumes that any and all work provided by him or by others (such as Vera, the sisters or their families) must necessarily have reduced the number of hours worked by Terry. The submission proceeds on the doubtful assumption that the total number of hours Terry claims to have worked must have been the sum total of all work that ever needed to be done on the properties. However, as Mr Tremain and Mr Ivey explained, that is simply not so. The fact that other family members helped from time to time would not have materially reduced the number of hours required to be worked by a full-time farm manager and labourer.
The evidence does not allow me to identify the precise number of hours worked by Terry or the precise value of that work. Whilst I am not persuaded that he worked quite as many hours as he claims, there is no doubt that Terry has worked well in excess of the hours that a full-time worker would ordinarily be expected to work and that much of that work has been managerial in character.
Terry has therefore largely but not entirely made good the assumptions provided to the experts. Doing the best I can with the evidence of Mr Ivey and Mr Tremain, I estimate that the value of the work performed by Terry over the relevant period is equal to the value that would have been provided by one full-time labourer and by a farm manager working a half load, namely 19 hours a week. I do not consider it appropriate to value the shearing work in addition to the labouring and managerial work, because although piece work rate for shearing slightly exceeded the hourly rate for labouring, it would have been less than the hourly rate for managerial work and Terry would not have being doing either general labouring work or managerial work whilst shearing.
In my view, the total value of the work done by Terry was $1,630,884.50.

The remedy is not available where the subject matter of the claim is otherwise regulated by a subsisting contract. A restitutionary claim ‘cannot sit on top of an effective and continuing contractual arrangement where that would subvert or undermine the contractual allocation of risk’: Coshott v Lenin [2007] NSWCA 153 at [10]-[11] (Mason P, Spigelman CJ and Campbell JA agreeing); see also Pavey & Matthews at 256 (Deane J); Roxborough v Rothmans of Pall Mall Australian Ltd (2001) 208 CLR 516; [2001] HCA 68 at [75] and [95] (Gummow J), [166] (Kirby J); Mann v Paterson Constructions Pty Ltd (2019) 267 CLR 560; [2019] HCA 32 at [63] (Gageler J).
One well-recognised category of unjust enrichment consists of those claims for payment for work and labour done at the express or implied request of another: Lumbers v W Cook Builders Pty Ltd (in liq*)* (2008) 232 CLR 635; [2008] HCA 27 (‘Lumbers’) at [79] (Gummow, Hayne, Crennan and Kiefel JJ). This is the category that Terry says that his claim falls into. Terry’s submissions on this point were that DPC through its two directors, Vera and Sydney, had encouraged him to stay on the farm and work in the farming business, and that this constituted a request for work and labour. In these circumstances, he says it would be unconscionable for DPC to retain the benefit of his work without remunerating him for it.
On another view of his case, Terry may also be understood to be saying instead that DPC accepted the benefit of his work in circumstances where a reasonable person would expect to have to pay for it. To the extent he put his case in this way, Terry must be understood to submit that DPC ‘freely accepted’ the benefit of his services and that it was this circumstance that gives rise to the relevant injustice. At the level of principle, such a case reflects the claim made by the unsuccessful appellant in Mead Property Investments Pty Ltd v P&M Galea Pty Ltd [2026] NSWCA 27 (‘Mead Property Investments’). In that case, Free JA (Ward P and Griffiths AJA agreeing) approached the question of whether the respondent had ‘freely accepted’ the benefit of the work done by the appellant by asking whether the respondent had ‘accepted the benefit of the services performed … in circumstances where a reasonable person should have known that [it] expected to be paid for them, and yet did not take a reasonable opportunity… to reject the proffered services’: at [47].
I will approach the issues here on the assumption that Terry puts his case in these alternative ways. Because, as I will explain, I reject his case regardless of how it is put, it is unnecessary to say more about the somewhat unsettled nature of the law in this area relating to ‘free acceptance’ of benefits: see Mead Property Investments at [11] and [44]-[45] and the authorities cited therein.

There can be no doubt that Terry did perform very valuable work for DPC and that he did not receive a wage for it. The benefit he provided to DPC was, in the language of the cases, incontrovertible. However, as Gummow, Hayne, Crennan and Kiefel JJ said in Lumbers at [80], ‘the bare fact of conferral of the benefit or provision of the service does not suffice to establish an entitlement to recovery’.
Terry neither asked for nor expected to receive a wage. DPC never requested him to perform services, nor would it have reasonably known that he expected to be paid a wage for the services he performed when the true position is that he had no such expectation.
Terry, as DPC’s director and as the person centrally involved in its farming business, knew better than anyone that it could not afford to pay him for the work he was doing. He nonetheless performed it in the expectation that his reward would come in other ways. These were many and varied over the years and they were not all provided by DPC. They included the prospect of receiving a share of the trust profits and appreciation in the value of the units produced by his work, the opportunity to live on Dundooga rent-free, the opportunity to share in the profits of farming Dundooga without the payment of rent, the opportunity to have DPC bear his and his family’s personal expenses when it was able to do so, and the opportunity to have the resulting loans written off in 1997.
Terry also expected that his reward would come in the form of a sizeable inheritance from his parents. Terry says that his expectation in that regard has not been met. But it has been far from disappointed. Not only has he now inherited 70% of Vera’s estate, which includes all of Dundooga and her interest in the Church Paddock, but he received a sizeable part of his hoped-for inheritance in 2010 when his mother gave him Lindfield outright. At the time she did so, Vera recognised that the gift was a reward for the work he had done on the farm without a wage for so many years. This was a recognition by Vera of what I have otherwise found to be the case, namely that Terry expected his reward to come in the form of an inheritance from his parents, not wages from DPC. So too was her 1998 Will, which explicitly recognised his unpaid contributions to the farm.
It is likely that in 1981, Terry did not fully appreciate the significance of the Dundooga Unit Trust and the extent to which it was so ill-suited for its intended purpose. At one point, while being asked about unitholdings in the trust, Terry said:

Mark has pleaded a change of position defence to Terry’s claim for quantum meruit relief. He contends that he has changed his position by contributing labour, plant and equipment to the farming business conducted by DPC.
A change of position defence to a claim in restitution may be available where the defendant has acted to his or her detriment on the faith of the receipt of the benefit from the plaintiff: David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353; [1992] HCA 48 at 384-385 (Mason CJ, Deane, Toohey, Gaudron and McHugh JJ); Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd (2014) 253 CLR 560; [2014] HCA 14 at [84]-[88] (Hayne, Crennan, Kiefel, Bell, and Keane JJ) and [157] (Gageler J).
Mark’s submission in relation to this defence was cursory. He submitted that he had ‘changed his position in various ways, by contributing funds; working the fields; providing equipment at harvest time’.
Had it been necessary to consider it, I would have found that the defence was unavailable. The relevant question is whether DPC as trustee changed its position on the faith of the work done by Terry, not whether Mark changed his position. In any event, I do not think that either DPC or Mark changed position in a way that would amount to a defence if Terry’s claim had otherwise been made out. Had the claim been made out, the defence would need to be considered in the light of a finding that it was unconscionable for DPC to retain the benefit of Terry’s work without having paid for it. If that were so, I do not consider that DPC would be able to defeat that claim (by which I mean it would be unable to show that it was not unconscionable for it to have the benefit of the work without payment) by pointing to some change in position by Mark, which is how the defence is put.
The things to which Mark points as amounting to a change in position are nothing more than occasional contributions to the business of the farm being conducted by DPC. They were however all things that would be expected of a unitholder and family member. They were also fairly insignificant in the scheme of things. They are not such as to lead me to conclude that it would not be unconscionable to allow DPC to retain the benefit of Terry’s unpaid work, had I otherwise been persuaded that it was.

The cross-claimants are Mark and DPC. The relief they seek in the amended statement of cross-claim may be summarised as follows:
A declaration that DPC as trustee is the owner of the Church Paddock and declarations as to the unitholders of the Dundooga Unit Trust.
Orders against Terry for alleged breaches of duty as a director of DPC. The alleged breaches relate to the transfer of stock, plant and equipment from DPC to LP as described at paragraphs [170] to [177] above and to the distribution of profit to Terry and Anna contrary to the terms of the Dundooga Unit Trust as described at paragraphs [158] to [161] above. The cross-claimants have not at this point elected between an account of profits and equitable compensation in relation to these breaches.
Orders for an account to be taken of the profits generated by DPC from farming activities and for Mark to be paid one-third of the profits as determined by the account.
Orders against LP as trustee of the Lindooga Family Trust in relation to its knowing receipt of property of the Dundooga Unit Trust. The cross-claimants have not at this point elected between an account of profits and equitable compensation in relation to these matters.
Orders relating to the future administration of the Dundooga Unit Trust. The orders sought are either an order pursuant to s 70 of the Trustee Act 1925 (NSW) removing DPC as trustee and appointing some other fit and proper person or, alternatively, orders compelling DPC to administer the trust according to law. In the further alternative, the cross-claimants seek orders and directions for the sale of the assets of the Dundooga Unit Trust and the distribution of the proceeds in accordance with the terms of the trust.
A declaration that the affairs of DPC have been conducted in a manner that is oppressive to, unfairly discriminatory against, or unfairly prejudicial against Mark. They also seek consequential orders that Terry purchase the shares in DPC owned by Mark and by Vera’s estate at a price to be determined, or that DPC be wound up. I previously made orders that the question of valuation for any buy-out order be determined separately.
In both opening and closing submissions, senior counsel for Mark submitted that the main remedy sought in relation to Terry’s oppressive conduct was an order that Terry be required to buy the units in the Dundooga Unit Trust that are owned by Mark and by Vera’s estate. So far as I can see, that specific relief has not been pleaded. On the other hand, Terry made no complaint during the course of the three-week trial that such relief should not be granted by reason of a failure to plead it. That being so, and given that any question of valuation of the units is to be determined separately in any event, and given also that the matters relied on for the making of buy-out orders in relation to the units are no different from the matters otherwise relied on in relation to the pleaded claims, there is no prejudice to Terry in dealing with Mark’s submissions on this issue on their merits.
The findings I have made earlier in these reasons allow me to state my conclusions on the cross-claim relatively succinctly.

Mark’s case against LP is that it is liable under the first limb of Barnes v Addy as a knowing recipient.
LP as trustee of the Lindooga Family Trust was a recipient of property transferred in breach of trust by DPC and in breach of fiduciary duty by Terry. In the 2019 year, LP took receipt of the plant, stock and equipment transferred to it by DPC in the way described at paragraphs [170] to [177] above. It has now also derived considerable profits from the sale and use of the assets of the Dundooga Unit Trust which it received as well as from the fact that it has not had to pay market rent for use of the Church Paddock.
As to the knowledge element, liability under the first limb of Barnes v Addy is established if a reasonable and honest person with knowledge of the circumstances would have seen the breach of trust or fiduciary duty ‘as a real and not remote risk’: Kalls Enterprises Pty Ltd (in liq*) v* Baloglow [2007] NSWCA 191; (2007) 63 ACSR 557 at [199] (Giles JA, Ipp and Basten JJA agreeing); see also Grimaldi v Chameleon Mining NL (No 2) (2012) 200 FCR 296; [2012] FCAFC 6 (‘Grimaldi’) at [268]-[269] (Finn, Stone and Perram JJ) and the authorities cited therein.
Here, whatever knowledge that Terry had is attributable to LP. He was the sole shareholder, director and company secretary, and thus the company’s directing mind and will. In my view, LP, through Terry, had a sufficient level of knowledge that the transfers of property were in breach of trust. Those transactions were entirely Terry’s doing and benefitted himself and LP at the expense of the Dundooga Unit Trust. He knew that the stock, plant and equipment was trust property, having accounted for it as such in the Dundooga Unit Trust’s financial reports for decades. Whatever may have been Terry’s mistaken beliefs about his right to deal with the trust property, it would have been apparent to an honest and reasonable person in Terry’s position that the transfers of the trust property either without consideration or at their historic cost carried a substantial risk of being in breach of trust.
The consequence is that LP is personally liable in the manner explained by Finn, Stone and Perram JJ in Grimaldi at [253]:

Mark groups his allegations of oppression into three broad categories:
Conduct that devalued the shares in DPC. I take it that he means the units in the Dundooga Unit Trust because the shares in DPC likely only ever had a nominal value.
Conduct that involved excluding Mark from the management of the company, such as by removing him as a director.
Conduct that caused DPC to commit breaches of trust (as described above) and conduct which was otherwise a breach by Terry of his fiduciary duties.
This grouping of allegations is helpful as a way of understanding the particular matters on which Mark relies to make out his overall case of oppression. However, it is possible and, in my view, more appropriate to consider the application of s 232 having regard to the entirety of Terry’s conduct and all of the circumstances of the case.
Numerous actions taken by Terry since 2015 have had the effect of significantly benefitting him and Anna at the expense of Mark and Vera (or her estate) as unitholders of the trust. To the extent the trust earned profit between 2015 and 2018, Terry caused it to be distributed to him and Anna contrary to the terms of the trust. To the extent the trust had the opportunity to earn further profit through the conduct of its farming business and the exploitation of its property, stock, plant and equipment, he deliberately deprived it of that opportunity by transferring all of the stock, plant and equipment to the Lindooga Family Trust at a non-arm’s length price and by allowing the Lindooga Family Trust to use the Church Paddock for no rent since 2022.
These actions were self-interested dealings that ‘cannot possibly have been intended to be dealings in good faith with the [trust’s] resources for the benefit of the [unitholders] as a whole’: Fairbairn v Cooke [2003] NSWSC 232 at [54] (Bryson J). They involved a glaring departure from the ‘standards of fair dealing’: In the matter of Mobius Distilling Pty Ltd (in liq*)* [2025] NSWSC 539 at [172] (Black J). No fair-minded director of DPC as trustee for the Dundooga Unit Trust could have thought that it was in the interests of the unitholders as a whole to engage in this conduct.
It is relevant that in the course of these events, Terry took steps to remove Mark as a director of DPC. In the overall scheme of things, it may not have made much practical difference whether he was removed as a director or not. Taken alone, I do not think it would amount to oppression. However, it seems that doing so was an aspect of Terry’s overall plan to transfer the farming business and all of its stock, property, plant and equipment to the Lindooga Family Trust so as to ensure that Mark could not benefit from them.
In my view, the power to make an order under s 233 is enlivened. Terry’s actions were contrary to the interests of members as a whole (para (d)) and oppressive to, unfairly prejudicial to, or unfairly discriminatory against Mark and Vera or her estate in their capacities as unitholders (para (e)).

The primary relief Mark seeks is an order under s 233 that Terry buy the units in the Dundooga Unit Trust and shares in DPC that belong to him (Mark) and Vera’s estate. That relief should be granted. The purpose of making an order under s 233 is to remedy the effect of the oppressive conduct. That can realistically only be achieved in this case by requiring Mark and Terry to go their own separate ways.
I have given some thought to whether it would instead be appropriate to grant some less drastic relief, such as by requiring Terry and the Lindooga Family Trust to pay equitable compensation or to account to the Dundooga Unit Trust for their profits, by leaving the current unitholdings in place, but by requiring the Lindooga Family Trust to pay a market rent to DPC for the Church Paddock. This may at least give Terry and David an opportunity to continue the existing operation over some combination of the three properties, subject to their ability to fund the payments that will need to be made to the trust and to the other parties as a result of this litigation.
However, I do not consider that that relief would be sufficient to remedy the unfairness that has occurred in the affairs of DPC and the Dundooga Unit Trust since 2015. Terry has treated the Dundooga Unit Trust as if it were his own since the 1980’s and I have no confidence that this is about to change. Even if Terry could afford to make such an outcome work, it would leave Mark as a unitholder in a trust whose major asset would still be farmed by Terry and David. It would keep Terry and Mark (and, in time, their respective estates) bound up in a unit trust structure that has time and again proved its complete unsuitability as a vehicle for ownership of a family farm. In my view, Mark should be permitted to leave DPC and the Dundooga Unit Trust and to obtain a fair price for his units and shares, which is what he wishes to do. A buy-out is a more appropriate outcome than the alternative relief that Mark presses for, which is to bring an end to the trust by winding it up under s 461 of the Corporations Act. In any case I note that s 461 does not empower the Court to order the winding up of trusts, as opposed to companies: Carr v Ritossa at [224]-[227] (Leeming JA).
The buy-out sought by Mark extends to Terry purchasing the shares and units held by Vera’s estate. While Mark is the only member of DPC bringing a claim in oppression, senior counsel for Mark informed me during the hearing that Ms Kennedy, the independent administrator, would consent to the estate’s shares and units being bought as part of the relief to Mark’s claim. Given that Vera’s shares and units form part of the residue of her estate, it would be appropriate for the buy-out order to extend to those shares and units. I will hear the parties on whether the order should extend to all of the shares and units held by the estate, or only a portion of them representing Mark’s entitlement under the Will.
At the same time, it is appropriate to recognise that a buy-out order alone may not be a sufficient remedy when viewed from the point of view of DPC as trustee for the Dundooga Unit Trust. If Terry buys Mark and Vera’s estate out of their unitholdings on the basis that the various defaults had never occurred, the position of Mark and the estate will be made whole but the position of the trustee, and in turn the position of the remaining unitholders (Terry and Anna, against whom no relief is sought), will not. I therefore consider that it will be appropriate to make the orders that DPC seeks in the cross-claim for either equitable compensation or an account of profits to remedy the breaches of trust and fiduciary duty which have occurred, as well as the knowing involvement by LP, in addition to the buy-out order. Mark, who brings DPC’s cross-claim on its behalf, will have the opportunity to make an election as to the remedy.
It will therefore be necessary for the Court to work out the value of the equitable relief to which DPC as trustee is entitled as a step in determining an appropriate value of the units for the purpose of the buy-out order. This is a question that will need to be dealt with at the same time as the hearing as to the value of the units in the Dundooga Unit Trust. The evidence before the Court does not allow me to reach a concluded view about the amount of equitable compensation or profit to which DPC as trustee is entitled, but it does allow me to conclude that any compensation will need to include the value of distributions made to Terry and Anna in breach of trust, as well as the value of stock, plant and equipment transferred to the Lindooga Family Trust, less any countervailing benefits received, such as the receivable owing to it.
I will direct the parties to bring in short minutes of order in relation to the relief to be granted on the cross-claim. In broad terms, I would propose to make orders of the following kind:
A declaration that DPC as trustee of the Dundooga Unit Trust breached its duties as trustee by causing trust income to be distributed contrary to the terms of the trust deed in the 2015, 2016, 2017 and 2018 years of income.
A declaration that DPC as trustee of the Dundooga Unit Trust breached its duties as trustee by transferring property, stock, plant and equipment to LP as trustee of the Lindooga Family Trust.
A declaration that DPC as trustee of the Dundooga Unit Trust breached its duties as trustee by allowing LP as trustee of the Lindooga Family Trust to use the Church Paddock without the payment of market rental.
A declaration that Terry has conducted the affairs of DPC as trustee of the Dundooga Unit Trust contrary to the interests of the members as a whole within the meaning of s 232(d) of the Corporations Act and in a manner that is oppressive to, unfairly prejudicial to, or unfairly discriminatory against Mark as a shareholder of DPC and as a unitholder of the Dundooga Unit Trust within the meaning of s 232(e) of the Corporations Act.
An order that DPC is entitled to equitable compensation or alternatively an account of profits from Terry and LP as trustee of the Lindooga Family Trust.
Pursuant to s 233(1)(d) and (e) of the Corporations Act, an order that Terry purchase the shares in DPC and the units in the Dundooga Unit Trust that are owned by Mark and Vera’s estate at a value to be determined.
An order that the value of the shares and units to be bought by Terry be determined as if DPC had not engaged in the conduct that is the subject of orders (1), (2) and (3).
These orders will need to be fashioned in such a way as to ensure that they do not involve double recovery in the light of the buy-out orders I propose to make. It will be necessary also to conduct a further hearing in relation to issues of valuation, including the calculation of equitable compensation or an account of profits.
Finally, Mark should identify the orders if any he still seeks in relation to the taking of an account of the Dundooga Unit Trust.

The inventory to the grant of probate identified the following assets and their values:
Dundooga, identified here and in some other places as comprising 1,150 acres, although other evidence suggests a slightly larger area of 497.74 hectares. Nothing turns on this difference. Dundooga was said to have a value of $8,800,000.
100 shares in DPC, valued at $100.
Cash at bank totalling $244,083.97.
This inventory omits any reference to Vera’s units in the Dundooga Unit Trust. This omission reflects the fact that Terry, who was an executor, disputed that the trust had ever validly issued units and that he claimed the whole of the Church Paddock for himself. In an affidavit sworn by him as executor in each of his sisters’ family provision proceedings, he swore that the abovementioned assets and values remained correct and said that ‘there is an issue as to who owns the units in the unit trust’ but otherwise did not mention the potential value of the units held by Vera.
On 7 February 2023, Terry swore a further affidavit in each of the family provision proceedings in which he updated his evidence about the value of the estate. On this occasion, he referred to valuations obtained from Mr Michael Redfern of Preston Rowe Paterson in late 2022 for both Dundooga and the Church Paddock. The values as at 15 November 2022 were as follows:
Dundooga was valued at $8,300,000.
The Church Paddock was valued at $5,130,000.
These valuations were obtained on the joint instructions of the Wright sisters. I note that Preston Rowe Paterson also valued Lindfield as of the same date at $5,800,000.
In his February 2023 affidavit, Terry said that the Dundooga Unit Trust had liabilities of about $470,000. He did not assign any value to the other assets of the Dundooga Unit Trust, such as stock, plant and equipment, no doubt because by this point all of those other assets had been transferred to the Lindooga Family Trust. He also explained that most of the cash in the estate had by this point been spent.
Leaving aside whatever cash was left, this evidence implies a total estate value of $9,853,333 as at 15 November 2022.
For the purposes of the hearing, Terry and Mark jointly sought updated valuations from Preston Rowe Paterson as at 13 March 2026. The values were as follows:
Dundooga was valued at $6,600,000.
The Church Paddock was valued at $4,100,000.
Assuming the same debt levels and again leaving aside whatever cash was left over, this evidence implies a total estate value of $7,810,000 as at 13 March 2026.
According to this evidence, the value of the estate fell by more than $2,000,000 between late 2022 and early 2026, a fall of over 20%. This issue was not explored in the evidence.

Vera’s children grew up together in the First House on Dundooga. Her daughters all describe a typical childhood for a child growing up on a farm, where the children helped with routine farm work and domestic chores in ways appropriate to their ages and abilities.
By all accounts, Vera and her daughters shared close and loving relationships throughout Vera’s lifetime. After leaving home and starting their own lives, each daughter visited Vera regularly during school holidays and on special occasions like birthdays and Christmas. To varying degrees, the daughters provided some assistance on the farm and around the household when they could. Vera would, from time to time, take short holidays and trips with one or more of her daughters.
Vera’s daughters also provided support and companionship during her old age and in periods of ill health. They all stayed with her in Melbourne during her recovery from triple bypass surgery in 2004. Leonie lived on Dundooga with Vera and, in Vera’s later years, became her full-time carer, which I describe in more detail below. During this time, Leonie’s sisters would sometimes stay with Vera on Dundooga for short periods to relieve Leonie. In April 2021, Vera nominated Sandra, Jennifer and Leonie in an Advanced Care Plan to speak to her doctor about her healthcare and medical problems if she was unable to do so herself, and she granted a power of attorney to Terry and Leonie.
With the exception of Leonie, Vera seldom spoke to her daughters about her testamentary wishes and arrangements. To the extent she did so, Jennifer, Dianne and Sandra each gained the impression that the daughters would be ‘looked after’ and that they would receive the First House on Dundooga. Jennifer recalls a specific occasion when Vera said to her that ‘you girls will be looked after and should get the house and something else will be sorted’. Dianne and Sandra say that Vera made multiple references over the years to her daughters repairing the house after she died, suggesting that it would be their inheritance.
Judith recalls having conversations with Vera in which Vera expressed her desire to leave her daughters a share of the estate, initially being the compensation received from the RTA. She says that in 2009 after Vera had received Lindfield from the RTA, Vera was happy that the land could be used ‘to organise a decent settlement for the girls’. Judith says that in 2010, after Lindfield had been transferred to Terry, she had a phone call with Vera. According to Judith, Vera was distraught and told her that ‘the girls will have to be looked after’. Vera said that if her children could not come to an amicable agreement, then the farm should be ‘sold and split seven ways’. After this incident, Judith says that the sentiment that the daughters would receive some share of the farm from Vera’s estate was often repeated by Vera.
Leonie gave evidence of a number of conversations with Vera in which her 1998 Will and testamentary wishes were discussed. The first of those was said to have occurred some time in 1998, when Vera informed Leonie that she was one of the executors of the 1998 Will.
In the last four to five years prior to Vera’s death, Leonie states that she and Vera had a number of conversations in which Vera stated that Leonie would be able to live on Dundooga for as long as she (Leonie) was able to. Leonie also recalls that Vera had always wanted her daughters to have the First House after she died so that they had somewhere to go. Leonie says that, during the three years before her passing, Vera frequently told her that all the money in her Hume Bank account would go to her after she died, and that this should not be split amongst her sisters.
For her part, Sandra has a different recollection about what Vera wanted Leonie to receive. According to Sandra, Vera encouraged Leonie to find a place in Albury because she did not believe that Leonie would be able to manage the First House on Dundooga.
Leonie’s evidence of Vera’s wishes in relation to what should occur with the house on Dundooga and her bank account were however corroborated by Terry, who said in cross-examination that he was aware of Vera’s intentions in this regard and supported Leonie being provided for out of the estate in accordance with those intentions.
In my view, to the extent that there is a difference in these accounts of what Vera wanted for Leonie, I favour Leonie’s account. It is more likely than not that Vera wanted Leonie to have a right to live on Dundooga as long as she wished. Leonie had been living there full-time since 1997 and it would have been obvious to Vera that Leonie liked living there. It would have been equally obvious to Vera that Leonie would wish to stay there after she died. If her wish had been for Leonie to move away, this would have been communicated very clearly to Leonie and others. It is most unlikely that it would be something mentioned only to Sandra.
I will now turn to the particular circumstances of each of Vera’s daughters, including their present financial circumstances. It is relevant to note that the amount of provision sought at the final hearing by each of the claimants other than Leonie is significantly less than what they said was their financial need in their affidavit evidence.

Judith completed her HSC in 1969, the same year that Terry did. She says that in January 1970, she had submitted paperwork to commence a Law and Arts degree at the University of New England, but that Sydney’s cerebral haemorrhage meant that she had to stay at home to care for her younger siblings and maintain the farm, in order to enable Vera to care for Sydney during his recovery in hospital.
Judith recalls her father encouraging her in late 1970 to train as a nurse in Albury, which would allow her to return to Dundooga and assist Vera with caring for the family. Judith did so and commenced training and working as a nurse in Albury until 1973. During this time, she would return home on her days off to assist with farm work and household duties.
In about 1973, Judith relocated to Melbourne to work as an Operating Theatre Clinical Nurse Specialist at St Vincent’s Hospital. She lived in Melbourne for approximately two years. Judith would visit Vera at Dundooga regularly, at a frequency between once per week and once every four weeks. She would assist with work on the farm and in the household each time she visited.
In 1976, Judith began working as an Operating Theatre Clinical Nurse Specialist at the Mercy Hospital in Albury. She chose to move to Albury to be closer to Vera.
Judith married Peter Reynoldson in 1978, and they had two children, the first in 1980 and the second in 1982.
In 1981, Judith began working at the Ramsay Private Hospital in Albury. As she lived close to Dundooga, Judith often visited Vera on her days off work, at least once a week, and assisted with work on the farm. She says that during shearing seasons, her visits would be as frequent as five times a week to assist with skirting, grading and baling the wool, and also with morning and afternoon tea. After Sydney’s death, she and Mr Reynoldson would buy household appliances, gardening tools, plants and personal items for Vera.
Outside of work on Dundooga, Judith describes a close and loving relationship with Vera throughout the years and until her death. They often spent time together and went on various holidays.

Judith is currently 75 years old and retired. She was married to Mr Reynoldson and they have two sons. Mr Reynoldson was an accountant. He died in October 2024.
Judith receives about $8,000 of net monthly income from her self-managed superannuation fund. She describes monthly expenditure of $10,396.90. This expenditure includes airfares and financial assistance for the care of her son Damian’s children, who live in Brisbane. Judith and Mr Reynoldson previously provided significant financial support to Damian during his family law proceedings. They gave him a sum of $385,000 that went towards his property settlement and took out a loan of $350,000 secured by a mortgage over their property in order to discharge Damian’s home loan.
Mr Reynoldson left his estate to Judith and their sons in equal shares. The estate consists mainly of a property located in Victoria and a grant of administration has not yet been obtained. The estate is worth a net value of approximately $1,114,403, and Judith’s one-third share is worth $381,468. Judith and Mr Reynoldson also owned two properties together, which have now passed to Judith under her right of survivorship. Also upon Mr Reynoldson’s death, Judith received the whole of Mr Reynoldson’s death benefit in their self-managed superannuation fund totalling $1,207,338.25.
In summary, excluding her contingent interest in Mr Reynoldson’s estate, Judith has approximately $4,156,958.97 worth of assets comprised of the following:
A property on Regina Avenue, North Albury, which is her place of residence, valued at $1,100,000.
Property on Gordon Grove, North Albury, valued at $600,000.
Personal savings totalling about $214,698.37.
A motor vehicle worth about $1,000.
A single share in the corporate trustee of her self-managed superannuation fund, and a member balance of approximately $2,241,260.60.
Both the Regina Avenue and Gordon Grove properties are mortgaged. There is a total of $468,753.36 owing on these mortgages.

Jennifer is 70 years old. Although she is still working, she intends to retire soon. Her husband Kevin is currently not in paid employment but was previously a taxi driver and is currently the owner and operator of a taxi and taxi business. Kevin’s taxi business is conducted through the KJ & JK Glass Family Trust, of which Jennifer and Kevin are the trustees.
Jennifer has a net monthly income of approximately $6,000. Kevin’s net monthly income from his ownership of a taxi in Albury is approximately $1,460. Their total fortnightly expenditure is approximately $2,940.
Jennifer and Kevin run angus beef cattle at their Kiewa property and make a small income from doing this, however their primary source of income has been their other occupations.
Jennifer and Kevin have joint assets with a total value of about $3.6 million. Their assets are as follows:
A farm block of about 50 hectares in Kiewa, Victoria which is worth $2.1 million, and on which they have built their house.
An investment property at Wodonga worth $460,000 (the Wodonga property).
Combined total savings of $353,906.
Savings in Kevin’s own name of $22,900
A superannuation account in Jennifer’s name with a balance of about $415,000.
Accounts in Jennifer and Kevin’s names in the Glass Family Superannuation Fund worth a total of about $210,000.
Three motor vehicles worth a combined $61,000.
The net assets of their family trust are around $66,000.
The only liability of Jennifer and Kevin of any significance is a loan of $26,473 jointly owing to WAW Credit Union.
Jennifer and Kevin’s children are all now adults. They financially support their daughter Natalie, who lives at home with them, and they rent out the Wodonga property to their son Luke, for a reduced rate of $175 per week. Jennifer and Kevin have also provided financial support to their son Timothy in relation to his family law proceedings. They have given him a total of $36,792.13 to pay his legal fees and $16,445 in ad hoc payments for various day-to-day expenses.
Kevin is 78 years old and previously drove a taxi in Albury as his primary form of employment. He has not undertaken any paid employment since July 2025, having suffered a heart attack in 2025 that required open heart surgery. He does not expect to return to any paid employment due to his health condition. Jennifer is currently Kevin’s carer.
Kevin purchased a taxi in Albury in 1999 for $285,000 which he drove as his primary form of work. He also purchased three taxi plates in Adelaide in 2001 and 2002, at a cost of $433,000.
Kevin’s taxi and taxi plates were purchased with the intention that they would still be able to generate an income into Kevin and Jennifer’s retirement and effectively act as their superannuation. However, the taxi plates have plummeted in value since and Kevin has since disposed of his South Australian plates altogether. He recently received compensation by way of cheques totalling $30,000 from the South Australian government for the surrender of his three South Australian taxi plates. He is in the process of opening a new bank account which will allow these cheques to be deposited.
In 2023, Kevin received compensation of $115,000 from the NSW government as a result of the taxi buy-back scheme. That money was deposited into Jennifer and Kevin’s bank account.

Sandra completed her HSC in 1977 and commenced nursing training in Albury the following year at Mercy Hospital. She completed her general registered nurse training in 1981.
Sandra moved to Melbourne in 1982 to work as a nurse at St Vincent’s Hospital in Melbourne and lived there for about 18 months, during which time she completed an intensive care and cardiac thoracic nursing certificate. While living in Melbourne she often travelled back to Dundooga on her days off to stay with her parents. In 1983, Sandra took a role as an intensive care and coronary care nurse at the Royal Canberra Hospital.
During 1985 and 1986, Sandra lived overseas. She worked as a nurse in various hospitals in London during that period and also undertook some travelling. When she returned to Australia, she lived on Dundooga while working at Albury Private Hospital and studying, and did so until 1988. During this time, she paid her parents board, bought groceries and helped with housework and gardening. She occasionally helped out on the farm when she had time.
In 1988, Sandra married Leonard (‘Len’) Garlick and moved to Canberra. Sandra found work as a registered nurse initially at the Parliament House Construction Site, then at the John James Hospital and the Royal Canberra Hospital. In 1991, Sandra began working at the Canberra Hospital, where she remained working until she retired in October 2024.
Sandra and Len had two children together, born in 1989 and 1992. Sandra and her family stayed with Vera and Sydney at Dundooga regularly. They always visited during the school holidays. During her visits, she often helped with the farming activities. She would also buy meals, groceries and assist with housework and gardening.
Sandra recalls Vera, as well as all of her other siblings and their families, visiting her family in Canberra multiple times. Sandra and Vera went on trips together and kept in close contact until Vera’s death. Two months before Vera died, Sandra stayed at Dundooga with Vera and Leonie for a week to take care of Vera and to inspect a nursing home in Albury.

After finishing her HSC, Leonie applied in 1980 for training to become a registered general nurse at the Royal Children’s Hospital in Melbourne. She was accepted and started her studies in October 1981.
In 1984, after completing her studies, Leonie returned to live at Dundooga with her parents and worked at Albury Private Hospital as a registered nurse for two years.
In March 1987, Leonie left to do some overseas travel for about seven months before returning to live at Dundooga. When she returned, she worked at Mercy Hospital before returning to work at Albury Private Hospital in 1988.
In 1989, Leonie moved to Melbourne and lived there until 1997. During this time, she worked at various hospitals around Melbourne as a registered nurse and as a clinical nurse specialist. She would visit Dundooga about once a month for a few days each time.
In 1997, after Sydney’s passing in 1995, Leonie moved back home to Dundooga to live with Vera and has lived at the First House ever since. Leonie has undertaken maintenance work on the house and also the garden, much of which was labour-intensive. She mowed, maintained the garden and collected wood, cleaned the gutters and windows and re-painted the majority of the house.
After moving back to Dundooga, Leonie worked at the Wodonga Hospital Critical Care Unit for about three years commencing in October 1997. From 2000 to 2005, she worked as a casual nurse at Albury Private Hospital. From 2005, she worked both at Albury Hospital Critical Care Unit and the Latchford Barracks Medical Centre. In 2009, she stopped working at the Latchford Barracks Medical Centre and continued to work at Albury Hospital Critical Care Unit until November 2018, when she ceased working due to an injury.
Apart from sharing household duties and accompanying her on various activities and trips, Leonie provided medical support and care to Vera which increased as the years went on. Leonie supported Vera through her recovery from triple bypass surgery in 2004 and cataract surgery. She drove Vera to all of her medical appointments, and treated wounds, rashes and falls.
In the last three years of Vera’s life, Leonie began to provide a high and intensive level of assistance with all aspects of Vera’s personal care as her health was deteriorating. From late 2020, Leonie became Vera’s full-time carer and continued to live with and care for Vera until three weeks before her death. For those last three weeks, Vera was admitted to Mercy Place Aged Care in Albury. Leonie’s care greatly improved Vera’s quality of life in her final years, and her siblings acknowledged that, without Leonie’s assistance, Vera would not have been able to keep living at Dundooga for as long as she did.

Leonie is currently 63 years old and not in paid employment. She ceased working in 2018 due to a workplace injury and her employment was officially terminated in January 2023. She brought a workers compensation claim in respect of that injury in 2018 and was receiving weekly payments from the relevant workers compensation insurer until July 2021. She filed an application in the Personal Injury Commission in January 2026 seeking lump sum compensation and her application has not yet been resolved.
Leonie previously received carer’s payments from about 2015 for her work in caring for Vera. She initially received these payments on a part-time basis, and then on a full-time basis from about mid to late 2020. The payments ceased after Vera’s death, and Leonie received a final bereavement payment of $4,000.
Leonie has not received any income after her workers compensation payments ceased and after her carer’s benefits ceased. She currently lives off of her savings and has withdrawn money from her superannuation to meet her living expenses as well as the cost of these proceedings. She states that she is currently not eligible for Centrelink payments. She has monthly expenses of about $3,500.
Leonie is single and has never married, nor does she have any children. She lived continuously with Vera at Dundooga from 1997 until Vera’s death and continues to reside in the original homestead at Dundooga with the agreement of the other parties pursuant to orders made by Kunc J in these proceedings.
Leonie has about $214,000 in savings across her bank accounts, and $193,000 in managed funds. Her superannuation fund has a balance of approximately $400,000. Apart from that, she owns a car worth about $5,000 and shares worth $1,000. She previously purchased a property in the Albury area in 2005 as an investment but sold it in 2019.
Leonie lives and continues to maintain the First House on Dundooga. The house is not in a good state of repair and both Leonie and Terry have given evidence that parts of it are not liveable. It requires significant maintenance and repairs in order to keep it in even a partly liveable condition.
Leonie suffers from epilepsy which is controlled with medication. She is also recovering from chronic adjustment disorder. As a result of the latter, she experiences anxiety, brain fog, fatigue and depression.

Before arriving at the substance of the family provision claims, the parties raised the anterior issue of what would comprise the ‘estate’ from which a family provision order could be made if Terry’s proprietary estoppel claim were successful. In light of my conclusion that Terry’s proprietary estoppel claim fails, this issue does not bear on the outcome of the family provision claims; the whole of Vera’s estate is available for the making of orders for provision. However, had it been necessary to decide this issue, I would have found that a successful proprietary estoppel claim by Terry would not have precluded the Court from making family provision orders in favour of Terry’s sisters.
The family provision plaintiffs submitted that Vera’s whole estate is available to meet any order for provision under the Succession Act, and that this is true even in circumstances where Terry’s proprietary estoppel claim is made out.
Terry submitted on the other hand that if he were successful in his proprietary estoppel claim, then any interest Vera had in Dundooga, as well as her units in the Dundooga Unit Trust and shares in DPC, would be held on constructive trust for him, citing Giumelli v Giumelli (1999) 196 CLR 101; [1999] HCA 10 at [2] and [35] (Gleeson CJ, McHugh, Gummow and Callinan JJ). Terry says that such a constructive trust over those assets arose in his favour prior to Vera’s death, relying on authorities like McNab v Graham (2017) 53 VR 311; [2017] VSCA 352 at [102] (Tate JA, Santamaria JA and Keogh AJA agreeing) and Soulos v Pagones; Soulos v Soulos; Soulos v Soulos; Soulos v Pagones; Kristallis v Soulos; Kristallis v Soulos; Kristallis v Pagones [2023] NSWCA 243; (2023) 416 ALR 181 at [471] (Ward P). He contended that Vera had therefore effectively divested herself of her beneficial interest in the assets before her death. In the present case, the result was said to be that those assets are beyond the reach of the family provision claims on Vera’s estate.
The starting point for determining what property forms part of an estate in relation to which a family provision order can be made is s 63 of the Succession Act. That provision states:

Dianne, Jennifer and Sandra’s submissions in large part reflect Judith’s. They have received no provision because the gifts intended for them have failed. They say that the Court should find that adequate provision has not been made in circumstances where Vera had a moral obligation to provide for them, and where her testamentary intention was that they should receive some provision from her estate.
Each of Dianne, Jennifer and Sandra had a strong relationship with Vera. They contributed when they could to domestic and farm work on Dundooga and provided support and companionship to Vera until her death. In their submission, their efforts, combined with Leonie’s, allowed Vera to live on Dundooga until her final few weeks. They submit that Vera had a moral obligation to provide for them and indeed did intend for them to receive something from her estate, although those testamentary gifts ultimately failed. Dianne, Sandra and Jennifer say that they are clear objects of the deceased’s bounty and that considerable weight should be given to Vera’s testamentary wishes.
Broadly speaking, the financial circumstances that Dianne, Jennifer and Sandra now find themselves in are similar and, in their submission, warrant orders for further provision which would enable them to complete works on their respective properties and have a fund for contingencies. The three claimants and their husbands are either retired or, in the case of Jennifer, very close to retired, and have limited capacity and opportunity to enhance their position in life. They are now reliant on the assets they have built up during their respective working lives. They are also elderly and are increasingly finding themselves confronted with medical issues. In Jennifer’s case, she is her husband’s carer.
The amounts of provision for which they are claiming are as follows.
Dianne says that she has a need for provision in order to complete renovations on her home, replace her and Mr Brown’s motor vehicles and make a financial contribution to her daughter’s wedding. She seeks an amount of $280,000.
Jennifer seeks further provision in order to complete renovations on her home, purchase a new motor vehicle, travel overseas and have a fund for contingencies. She seeks an amount of $180,000
Sandra says she requires provision to undertake renovations in her home and provide financial assistance for the costs of her children’s weddings. She also states a need for a replacement motor vehicle and caravan (although she also bought a motor vehicle in November 2022 after commencing these proceedings), funds for her and Len’s medical conditions and a contingency fund. She seeks an amount of $225,000.

Leonie contends that she has a relatively strong claim for provision compared to her sisters. She is in a far weaker financial position than her sisters and also made an outsized contribution to Vera’s care and wellbeing over a very lengthy period.
From 1997 and especially in the final few years of her life, Vera received a very high standard of care and assistance from Leonie, who was a trained and experienced nurse. She says that an award is warranted to recognise the depth and quality of her relationship with Vera and the care that was provided for her.
Furthermore, Leonie is single, has no children, and now lives by herself at the First House on Dundooga. She has ceased employment, receives only a limited income from interest and dividends, and lives off her savings. Much of her savings have gone towards her legal expenses in this litigation. She now faces the prospect of Dundooga needing to be sold after this litigation, or otherwise potentially being unable to live at the First House in her advanced age.
Leonie submits that a life interest in Dundooga, if possible, a sum for the purchase of stable accommodation in Albury and a fund for contingencies would not only be appropriate to her needs at this point in time but would also be consistent with Vera’s wishes as expressed to her throughout her lifetime.
Leonie particularly relied on Knespal v Knespal [2025] NSWSC 464 where Kunc J determined that, from a $2 million estate, provision of $1.4 million for a purchase of secure accommodation in Sydney and a contingency fund was the appropriate relief: at [84]-[92]. The circumstances of that case resemble those of Leonie, namely that the claimant was a 63 year old unmarried and childless daughter of the deceased, who was the claimant’s mother, and that the claimant had limited capacity for employment and very modest assets, had lived with the deceased for decades and became the deceased’s full-time carer for about nine years prior to her death.
Terry has conceded that Leonie should be granted a right of residence on Dundooga if such a right can be accommodated having regard to the outcome of the litigation generally. However, Leonie points out that a grant of such a right would not provide sufficiently stable housing given Leonie’s age, the state of repair of the First House, and the potential need to sell Dundooga as a result of the litigation. She therefore seeks an additional sum of $500,000 for the purchase of a two-bedroom home with a yard in the Albury area. This would ensure that she has suitable alternative accommodation once she is unable to continue living on Dundooga.
If the outcome of this litigation means that it is not possible to grant her a right of residence on Dundooga, Leonie submits that provision of $650,000 for the purchase of a two-bedroom house with a yard in the Albury area is appropriate.
In addition to housing, Leonie seeks a sum of $50,000 for the purchase of a car and a lump sum of $240,000 for contingencies. The figure of $240,000 is based on the amount that was in Vera’s bank account at the time of her death, which, according to Leonie, Vera wanted her to have.
In total, Leonie seeks an order for further provision in the order of $790,000, if she is granted a right of residence in the First House on Dundooga, and $940,000 if she is not granted a right of residence.
Finally, Leonie seeks an order pursuant to s 58(2) extending time within which to bring her claim. Her summons was filed on 13 September 2022, one year and nine days after Vera’s death. There was no serious opposition to an order being made. The estate remains unadministered and there is no prejudice to any party by reason of the extension. Her application to extend time will be granted.

Terry resists the claims of Judith, Jennifer, Dianne and Sandra entirely, but concedes that Leonie’s claim is meritorious and that adequate provision has not been made for her.
As to Judith, Jennifer, Dianne and Sandra, the crux of his submission is that they are all adult children who were never dependent on Vera during their adulthood, and that there is no obligation to provide them with the means to pursue mere ‘wants’ such as maintenance work and home improvements, such as is claimed by them. He submits that to do so would be inconsistent with the principles about adult children stated in Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 at [111], which echo the principles from Georgopoulos v Tsiokanis which I set out above at paragraph [575] above. The evidence shows that Judith, Jennifer, Dianne and Sandra can meet their respective ‘needs’ out of the assets they currently have without going into debt.
Terry submits that the assistance that Dianne provides to her son Joseph, who suffers from a psychological disorder, and that Judith provides to her son, Damian, in his family law proceedings, does not rise to the level identified in Carey v Robson [2009] NSWSC 1142 at [69]-[71] such that those circumstances should be taken into account in assessing the respective claimant’s need for her own maintenance.
Terry also raises the issue of his own position as a competing beneficiary of Vera’s estate. He has lived on Dundooga for virtually his whole life and has carried on a farming operation on Dundooga, the Church Block and Lindfield for decades, which he wishes to continue. The consequence of making any order for provision is that the farmland will have to be sold or encumbered, which would impact Terry as well as Anna and Leonie, all of whom wish to continue living on Dundooga. This would also impact the viability of the farming operations, which Terry says depends on his ability to farm Dundooga, the Church Paddock and Lindfield altogether.
As to Leonie, Terry accepted that adequate and proper provision had not been made for her and that the only issue was the nature of the provision which should be ordered. Terry accepts that Leonie should be given a right of residence in the First House on Dundooga for the rest of her life, in accordance with promises made to her by Vera that she could live there as long as she was able to.
Terry agrees with Leonie that an award of monetary provision for the eventual purchase of a property is appropriate, although he pitches a range of $175,000 to $225,000 as being appropriate. This is between $275,000 and $325,000 below the minimum figure Leonie posits for the cost of a house. Terry points out that, when the need for stable accommodation away from Dundooga arises, Leonie will have recourse to her savings and investments to fund the purchase of a property. The outcome of this litigation for Leonie will also mean that she will have her legal costs paid, allowing her to restore her superannuation fund and reducing the need for an additional sum for contingencies.

Many relevant factors are common to all of the family provision claimants.
All of the claimants had loving relationships with Vera and were devoted daughters. As children of the deceased, they are ‘regarded as natural objects of testamentary recognition’: Re Fulop (1987) 8 NSWLR 679 at 681.
Consistently with that notion, the evidence shows that Vera always wished to provide for her daughters by way of gifts in her Will. Considerable weight must be given to the fact that they were named as beneficiaries in her Will but have now been left empty-handed. The observations of Ward CJ in Eq in Wheatley v Lakshmanan referred to at paragraph [578] above are equally apposite here.
Clauses 3.9 and 4 of her Will give an indication as to what Vera regarded as appropriate provision for her daughters. However, in saying that, I would place only limited weight on clause 3.9 as a manifestation of Vera’s testamentary intentions, since it would have been known to Vera at least since 2010, when the transfer of Lindfield to Terry was completed, that clause 3.9 in her Will was inutile.
As for clause 4, the valuation evidence gives me some guidance as to the notional value of the property referred to in that clause. If the value of the First House is taken to be $165,000, which is half of the total value of the residential improvements on Dundooga, then the value of the house and a five-hectare curtilage at a per-hectare value of $13,300 would be $231,500. Thus, clause 4 would have left each sister with property worth about $46,000 as well as a right to reside in the First House.
Three other matters bear on the assessment of Vera’s testamentary wishes. The first is that the 1998 Will was broadly consistent with Vera’s 1996 and 1973 Wills in the sense that it made some provision for her daughters but did not treat them differently from one another. Each daughter was to receive a legacy of $20,000 under the 1996 Will and one-seventh of Vera’s estate under the 1973 Will.
The second is that although there is evidence that Vera wanted all of her daughters to be provided for in some way (even Terry’s understanding was that all of his sisters were supposed to receive something under Vera’s will), there is also evidence that in the years following the making of her 1998 Will, Vera expressed the view that Leonie should receive more than her sisters. I place particular weight on Leonie’s evidence of what Vera said in this regard: see paragraph [501] above. She was by far the closest of her sisters to her mother. Also, the matters that especially bear on her claim to provision were matters that occurred subsequent to the 1998 Will, namely the fact that she continued to live on Dundooga with Vera for decades thereafter and increasingly became responsible for her day-to-day care. It makes sense that as time went by and as Leonie contributed more and more to her welfare and wellbeing, Vera would express the views which Leonie recalls her expressing.
The third is that Vera never expressed a testamentary wish to see Dundooga or the Church Paddock kept whole indefinitely or to see either or both of those properties given to one child or another. To the extent she expressed a wish about how those properties were to be farmed, it was that they should be kept whole and farmed as a single operation by the trustee of a testamentary trust, but only for so long as Terry reached the age of 58, which is long past.
In all of these circumstances, I accept that Vera wanted her daughters to inherit a five-hectare parcel of land on Dundooga in the vicinity of the First House and to receive a modest cash legacy. I also accept that Vera wanted Leonie to receive the cash that was in her bank account at the time of her death and that she should be able to continue to live on Dundooga for the rest of her life.
Particularly in the light of the fact referred to in paragraph [628] above, this conclusion means that an order for provision in respect of these claims will not encroach on Vera’s testamentary wishes and motivations in a material way. To the contrary, it will in large part give effect to them. These are strong reasons to conclude that adequate provision for the family provision claimants has not been made.
On the other hand, there is force in the submission that the five family provision claimants are all independent adults. Save for Leonie, they are not children to whom a mother of Vera’s age would ordinarily be said to owe an obligation to look after for the rest of their lives and into retirement. They each left home after school to lead their own lives, although Leonie eventually returned to Dundooga. Some of them have substantial assets of their own or in conjunction with a spouse, as the case may be. I will consider their circumstances individually below. However, at this stage it suffices to say that, as the claimants have pointed out correctly, financial need is neither the only nor the prevailing factor in determining whether adequate provision has been made. I do not consider that it would be appropriate to reject any of the family provision claims in this case on the basis that the claimant has not demonstrated financial need.
Vera’s estate is relatively large. The value of the estate as of the date of hearing was approximately $7.8 million (see paragraph [483] above), which does not account for the value that will accrue to Vera’s estate as a result of the relief that will be ordered under the cross-claim. The estate is comfortably large enough to provide for the orders that the family provision claimants seek. However, I must also consider the impact of those orders on the other two beneficiaries of the estate, particularly on Terry.
Dundooga has been farmed by the Wrights for almost 80 years, and the Church Block has been farmed by Terry since its acquisition. It is understandable that Terry wishes to see the continuity of the farming operations and to avoid having to sell part of the farmland to fund any orders for provision. However, these considerations alone cannot be determinative. In weighing this issue in the balance, I respectfully adopt the approach of Hallen J in Starr v Miller; Starr v Miller [2021] NSWSC 426 at [625]-[626]:

As noted above, Terry concedes that adequate provision has not been made for Leonie. I respectfully agree and would have reached the same conclusion in any event.
Leonie’s circumstances are quite unlike those of her sisters. She lived at home with her mother for almost 30 years. For most of that time, she was Vera’s main carer, including into her very old age. She has no immediate family of her own. She does not work and has only modest savings. Furthermore, her circumstances have changed very significantly since Vera made her 1998 Will.
In Leonie’s case, I would not have considered the gifts in Vera’s 1998 Will to be at all adequate even if they had not failed. If the First House had been a piece of realty separate from the farm, I likely would have reached the conclusion that it was proper for her to receive it as a legacy. That, however, is not possible.
If it were possible to fashion an order that gave Leonie the certainty of being able to stay on Dundooga for the foreseeable future, it would be appropriate to do so. It is where she has lived since 1997 and she has no desire to move. No-one objects to her living there. There is no suggestion that the First House would be used for any other purpose if she were to move away. To the extent Leonie can stay in the First House, the estate would be better off because the only realistic alternative is to provide her with enough cash to buy elsewhere.
There is however a very real prospect that Dundooga will need to be sold as a result of this litigation. Leonie may otherwise wish to move at some point in the future, either for her own reasons or because the property needs to be sold for reasons unrelated to this case.
The house sits on land that has fallen into the residue of Vera’s estate. I do not know whether the residue can be divided in a way that leaves Dundooga intact and in the hands of either Terry or Mark or of some third party who is happy to take the property subject to Leonie’s right to live there. Whether or not it can be will be a matter for the administrator to determine in the light of these reasons and in consultation with the parties. Keeping Dundooga intact would almost certainly involve the making of adjustments between the parties to ensure that there is a fair division of the estate according to value and to reflect my decision as to how the further provision should be borne, including the burden of granting a right of residence to Leonie. These are bound to be complicated matters. Granting provision in the form of a right of residence subjects Leonie to these contingencies and does not afford her the level of independence in relation to her housing that she should be assured of: Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114 at [114] (Brereton JA).
These uncertainties are significant. They lead me to conclude that the preferable course is to determine an amount of provision that is appropriate on the basis that Leonie will not be able to continue to live on Dundooga. If in the light of my other findings there is a possibility that she can continue to live there, then that is a matter that can be worked out among the parties with the benefit of my conclusions as to the amount of provision I consider to be appropriate.
Leonie is 63 years of age at the time of judgment. She leads a frugal and uncomplicated life, which she wishes to continue. She derives considerable joy and satisfaction from gardening and from owning and caring for her dogs. Most activities in which she engages are inexpensive and home-based. It is reasonable that she should be assured of living in Albury in a two-bedroom home with a yard. The evidence shows that the median house price for a two-bedroom home in Albury was somewhere between $615,000 and $732,000 at the time of the hearing, based on reports from domain.com.au and realestate.com.au. Terry has identified some two-bedroom properties that would be cheaper than the median, but I do not see why Leonie should not have the opportunity to buy at the median price. She submits that any award should include an amount of $650,000 for the purchase of alternative accommodation. I agree.
Leonie submits that any award should also recognise her specific need to buy a new car, as well as a need for a fund for contingencies. She seeks $50,000 for a new car and $240,000 for contingencies.
Leonie has around $407,000 in savings and around $400,000 in superannuation. She will on any view be entitled to recover at least part of her costs of this litigation, which will restore her asset position somewhat. However, she has not worked for many years and it seems unlikely that she will resume work any time soon. It is in my view appropriate that she receive an amount over and above the amount necessary to ensure her accommodation. Taking into account her savings and her inevitable cost recovery, I consider that it would be appropriate for her to receive an additional sum of $290,000, which is the amount she seeks. I note that this sum broadly aligns with the amount of cash held by Vera at her death, which (as I have accepted) she wanted Leonie to have.
In my view, Leonie should receive further provision in the sum of $940,000.

An order for provision takes effect as a codicil to the will: s 72(1)(a) of the Succession Act. In the absence of an order specifically designating the burden of provision, Terry and Mark, as the residuary beneficiaries, would bear 70% and 30% of the burden of additional provision respectively.
Section 65(1)(c) of the Succession Act provides that an order for provision must specify ‘the manner in which the provision is to be provided and the part or parts of the estate out of which it is to be provided’.
The section confers a wide discretion. The matters that may be taken into account in determining where the burden of provision should lie include the matters identified in s 60(2). They are not limited to financial considerations. There is no prima facie rule that the burden of additional provision should be borne rateably by the beneficiaries’ according to their respective entitlements to the estate. I agree with Kunc J, who said in Webster v Strang*; Steiner v Strang* [No 2] [2018] NSWSC 1411 at [105] that the question of where the burden of provision should lie involves an evaluative judgment. Macfarlan JA also said in the appeal from that case that the Court should act in a manner that is ‘just and equitable’ when exercising its discretion under s 65(1)(c): Strang v Steiner [2019] NSWCA 143; (2019) 19 ASTLR 330 at [107]. That expression is found in ss 66(2) and 72(2) of the Succession Act which provide additional sources of power for the Court to adjust the burden of additional provision.
Mark submitted that Terry should bear the whole burden of the further provision. He submitted that Terry has already received Lindfield and that, as executor, he has caused the estate’s cash to be spent. The transfer of Lindfield to Terry has meant that the gift under clause 3.9 of the Will failed, and Terry has received more than Vera intended under that Will.
I disagree. Of all the children, Terry has unquestionably contributed the most to the value of the estate. He is justified in saying, as he did more than once, that if it had not been for him there would be nothing for his siblings to be fighting over at all. The fact that Vera died owning a valuable, functioning farm and valuable units in the Dundooga Unit Trust (bearing in mind the trustee’s entitlement to recover the loss of value caused by Terry’s actions from 2018 onwards) is a circumstance for which Terry deserves almost all the credit. I take into account that as well as building the estate up, Terry was also the one to pull it down, which he has done by gutting the Dundooga Unit Trust and by diverting all of the farming income, including income from Dundooga, to the Lindooga Family Trust. However, these are matters that will be specifically redressed by the making of orders for equitable relief in due course. They are not matters that substantially detract from his claim that the assets over which the family is fighting owe almost all their value to his hard work.
Mark’s inheritance, by contrast, represents a windfall gain. He stands to inherit 30% of Vera’s assets despite having made very little contribution to the farm and even despite having actively abandoned the venture in 1998 when Vera and Terry were most at risk of losing the farm. He did so in the full knowledge that if the loans could not be refinanced, Vera would lose everything she had. He even mocked her at the time with the prospect of this occurring: see paragraph [97] above. It is also relevant that of all the members of the Wright family, he is the most financially independent and the least in need of an inheritance. To the extent he has suffered by reason of the diminution in value of his units in the Dundooga Unit Trust, that is a matter that is to be remedied by other orders in any event.
Section 60(2)(h) refers to the following consideration that may be taken into account in making a family provision order:

Wright v Kennedy; Wright v Dundooga Pastoral Co Pty Ltd; Reynoldson v Wright; Garlick v Kennedy; Glass v Kennedy; Brown v Kennedy; Wright v Kennedy

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment

Legislation Cited (8)

Cases Cited (96)

TABLE OF CONTENTS

JUDGMENT

Introduction

The three broad areas of dispute

The family history in broad outline

Sydney and Vera

1970 – Sydney suffers a cerebral haemorrhage; Terry stays on the farm

Vera’s 1973 Will

1978 – First alleged promises to Terry about his inheritance

1981 – Dundooga Unit Trust is established; the Church Paddock is acquired

1986 – the Sisters of Mercy debt is refinanced with the State Bank

1990 – Sydney suffers a stroke

1993 – Correspondence with the Veterans’ Review Board

1994-1996 – Dispute with the State Bank

Vera’s 1996 Will

1998 – Refinancing the State Bank debt

Vera’s 1998 Will

How was the 1998 Will made?

The content of the 1998 Will

2003 – Mark buys a neighbouring farm

2009 – The acquisition of Lindfield

2015 – The farm finally starts to turn a profit

2016 – Terry establishes the Lindooga Family Trust

Transfer of livestock

Other farm assets

Liabilities

Profit and loss

2018 – Terry causes Vera to be removed as a director of DPC

2021 – Vera dies

2022 – Terry causes Mark to be removed as a director of DPC

David’s involvement in the farm

The value of the properties

Additional factual matters

Terry Wright

When did Terry take over the farming business?

Did Terry buy the Church Paddock?

Terry’s financial relationship with the Dundooga Unit Trust

Trust loan accounts up to 1998

Trust loan accounts subsequent to 1998

Terry’s acquisition of stock, plant and equipment

Mark Wright

Mark’s professional background

Mark’s work on the farm

The promises on which Terry relies

First conversation

Second conversation

Third conversation

Fourth conversation

Fifth and sixth conversations

Seventh, eighth and ninth conversations

Dundooga – the proprietary estoppel claim

Proprietary estoppel by encouragement – general principles

Did Vera make the pleaded representation?

Reliance and detriment

Reliance

Detriment

Vera’s shares and units

The Church Paddock – the constructive trust claim

Terry’s quantum meruit claim

The procedural context

The expert evidence

Has Terry made good the assumptions on which the expert opinions were based?

Quantum meruit – applicable principles

Is Terry entitled to recover on a quantum meruit basis?

Change of position defence

Conclusions in relation to Terry’s claims

The cross-claim

Declarations as to ownership of property

Breaches of trust and breaches of fiduciary duty