Supreme Court New South Wales Medium Neutral Citation: Stone v Kramer [2021] NSWSC 1456 Hearing dates: 20 to 27 November 2020 Decision date: 10 November 2021 Jurisdiction: Equity Before: Robb J Decision: The plaintiff has established his case that he is beneficially entitled to the property known in these proceedings as the Colo Property. However, the granting of that relief to the plaintiff will be subject to the condition that the plaintiff is to return to the estate of the deceased the $200,000 legacy. See pars [250], [251], [252], [338]-[345]. The parties should consider these reasons and confer as to appropriate short minutes of order to give effect to them and provide draft short minutes of order to the Associate to Robb J. Catchwords: ESTOPPEL — Proprietary estoppel — Encouragement — Where the plaintiff was a sharefarmer on property owned by the deceased for approximately 40 years — Where the defendants are the executors of the deceased's estate — Where the plaintiff claimed the deceased made an oral representation to him years ago that she would leave the property to the plaintiff — Where the deceased failed to do so — Where there was no witness to the representation and it was not in writing — Where the Court considered the credibility of the witness and circumstantial evidence to determine whether the representation was made — Where the Court found the plaintiff to be an exceptionally credible witness who was both truthful and reliable — Where the Court found on the balance of probabilities and on the basis of both credibility and circumstantial evidence that the representation was made — Where the defendant argued that the deceased did not know that the plaintiff was relying on the assumption — Where the Court found the deceased had constructive knowledge — Where the defendants argued that even if the representation was made, the representation was not the sole reason why the deceased stayed on the property and continued share farming — Where the Court held that it was sufficient for the plaintiff to have established that the representation was a significant factor in his decision to stay and continue share farming — Where the defendants argued that if the Court found the representation had been made, it would also have to make a finding that the deceased was dishonest — Where the Court held that it did not have to make a finding of dishonesty in order to find that the deceased acted unconscionably ESTOPPEL — Proprietary estoppel — Encouragement — Where the defendants raised defences as to why the plaintiff's conduct disentitled him to equitable relief — Where the defences raised were to the effect that the plaintiff deceived the deceased in relation to accounting matters, that the plaintiff failed to conduct the share farming operation in a proper and workmanlike manner, that the plaintiff had received rent-free accommodation for the period in which he performed the share farming agreement, that the plaintiff failed to maintain his house on the farm, that the plaintiff received loans from the deceased which were forgiven over time, and that the deceased made a considerable monetary gift to the plaintiff in her will — Where the Court dismissed all defences raised by the defendants Legislation Cited: Evidence Act 1995 (NSW) Cases Cited: Commonwealth v Verwayen (1990) 170 CLR 394 Dable v Peisley [2009] NSWSC 772 Delaforce v Simpson-Cook (2010) 78 NSWLR 483; [2010] NSWCA 84 DHJPM Pty Ltd v Blackthorn Resources Ltd (2011) 83 NSWLR 728; [2011] NSWCA 348 Doueihi v Construction Technologies Australia Pty Ltd (2016) 92 NSWLR 247; [2016] NSWCA 105 Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd (1999) 161 ALR 599 Foran v Wight (1989) 168 CLR 385 Fox v Percy (2003) 214 CLR 118 at 129; [2003] HCA 22 Gautam v Health Care Complaints Commission [2021] NSWCA 85 In the matter of Hillsea Pty Ltd [2019] NSWSC 1152 John Holland Pty Ltd v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451 Leading Synthetics Pty Ltd v Adroit Insurance Group Pty Ltd [2011] VSC 467 Moore v Aubusson [2020] NSWSC 1466 Nigel Watts Fashion Agencies Pty Ltd v GIO General Ltd [1994] NSWCA 365 Nguyen v Cosmopolitan Homes [2008] NSWCA 246 Priestley v Priestley [2017] NSWCA 155 Q (a pseudonym) v E Co (a pseudonym) (Q v E Co) [2020] NSWCA 220; (2020) 383 ALR 469 Silovi Pty Ltd v Barbaro (1988) 13 NSWLR 466 Simpson-Cook v Delaforce [2009] NSWSC 357 Trentelman v The Owners – Strata Plan No 76700 [2021] NSWCA 242 Vukic v Luca Grbin; Estate of Zvonko Grbin [2006] NSWSC 41 Waddell v Waddell [2012] NSWCA 214 Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 Warner v Hung; Bellpac Pty Ltd (recs and mgrs apptd) (in liq), Re [2011] FCA 1123; (2011) 297 ALR 56 Watson v Foxman (1995) 49 NSWLR 315 Withyman v NSW [2013] NSWCA 10 Category: Principal judgment Parties: David Stone (plaintiff) Hilary Kramer (first defendant) Jamie Ferrer (second defendant) Representation: Counsel: L Ellison SC/ Dr H Bennett (plaintiff) C Harris SC (first and second defendants) Solicitors: Lane Associates (plaintiff) Piper Alderman (first and second defendants) File Number(s): 2017/261027 Judgment 1. The plaintiff, David Lindsay Stone, commenced these proceedings by filing a statement of claim on 28 August 2017 against the defendants, Hilary Lorraine Kramer and Jamie Ferrer. The defendants are the executors of the estate of the late Dame Leonie Judith Kramer, under a grant of probate made by this Court on 2 December 2016 of a will made by Dame Leonie on 11 November 2011. Dame Leonie died on 20 April 2016. 2. As a practical matter, the defence of the claim has been conducted by Hilary Kramer on behalf of the two executors. 3. Hilary Kramer is one of two daughters of Dame Leonie, the other being Jocelyn Anne Kramer. 4. Dame Leonie's husband was Dr Harry Kramer, who died in 1988. 5. As the parties did at the hearing, I will, with no disrespect intended, refer to the people involved in the events with which these proceedings are concerned by their first names, save that I will use the titles of Dr Harry and Dame Leonie. 6. The proceedings concern the entitlement to a rural property at Upper Colo (the Colo Property or the Farm), which is about 100 acres in size. 7. At the time of her death, Dame Leonie was the owner of the Colo Property. By her will, she left the Colo Property to Hilary. 8. The essence of David's claim in these proceedings is that, in leaving the Colo Property to Hilary rather than to David, Dame Leonie acted unconscionably in conflict with representations that had been made to him by Dr Harry and Dame Leonie to the effect that the Colo Property would be left to David, in return for David continuing throughout Dame Leonie's lifetime to conduct share farming on the Colo Property under an oral share farming agreement. David claims that he continued with the share farming agreement, and undertook additional tasks on the Colo Property, in the expectation that Dame Leonie would bequeath that property to him, in circumstances where he did not, as he otherwise would have, follow a different occupation in which he would have enjoyed a better economic reward by way of higher or more commensurate income and savings and provision for his old age. Pleadings 1. In his statement of claim, David relied upon two representations that he claimed were made to him by Dr Harry, which he called the First and the Second Succession Plans, and a third representation said to have been made to him by Dame Leonie after the death of Dr Harry, called the Third Succession Plan. I prefer to refer to the Succession Plans as the first, second and third representations. 2. The context in which these representations were claimed to have been made was a share farming agreement made between Dr Harry and David in 1975, which, according to David, continued throughout the balance of the lifetimes of Dr Harry and Dame Leonie, with a number of minor changes. 3. The terms of the share farming agreement as alleged by David are set out in par 4 of the statement of claim: (a) The agreement was oral; (b) The plaintiff would grow crops and maintain the Colo Property; (c) Dr Kramer would pay all operating costs except fuel; (d) Dr Kramer and the plaintiff would pay half the fuel costs; (e) The plaintiff would reside in one of the houses on the Colo Property rent free; (f) The plaintiff would receive a retainer of $600 per quarter ($2,400 p/a); and (g) The plaintiff would receive half the gross proceeds from the sale of produce and cattle. 1. The defendants filed separate defences on 11 October 2017. Hilary filed an amended defence on 31 July 2019. In keeping with the approach referred to above, I will treat the amended defence as if it expressed the defence of each defendant. 2. By her amended defence, Hilary admitted that, at the beginning of 1975, David commenced a share farming agreement with the joint owners of the Colo Property, who were Dr Harry and Dame Leonie. 3. In par 4.2 of the amended defence, Hilary alleged that the terms of the share farming agreement were as follows: (a) the plaintiff would grow crops and undertake other farming activities on the Colo Property as might be agreed from time to time, and maintain the Colo Property and the machinery, equipment and buildings on it; (b) the plaintiff would do so in a proper and workmanlike manner so as to minimise the operating costs and maximise the gross proceeds of the Share Farming Agreement, and keep the machinery, equipment and buildings in reasonable repair; (c) Dr Kramer and Dame Leonie would pay half the operating costs including the fuel costs and the plaintiff would pay the other half; (d) the plaintiff would reside in one of the houses on the Colo Property rent free; (e) Dr Kramer and Dame Leonie would pay the plaintiff a quarterly 'bonus', which in 1975 was $325; (f) Dr Kramer and Dame Leonie on the one hand and the plaintiff on the other would share equally the gross proceeds from the sale of produce and cattle. 1. Hilary then added that she: 4.3 admits that in about September 1975 Dr Kramer and Dame Leonie agreed to amend the Share Farming Agreement by agreeing to pay all of the operating costs, so relieving the plaintiff of the obligation to pay any of those costs; 4.4 admits that in about March 1980 Dr Kramer and Dame Leonie agreed to amend the Share Farming Agreement by agreeing to pay 2/3rds of the fuel costs, so reducing the plaintiff's contribution to the total expenses of the Share Farming Agreement to 1/3rd of the fuel costs; 4.5 admits that the quarterly 'bonus' was regularly increased, so that by June 1988 Dr Kramer and Dame Leonie were paying the plaintiff a 'bonus' of $1,250 per quarter; 4.6 otherwise denies the paragraph. 1. Hilary did not admit the allegation made by David in par 5 of the statement of claim that he and Dr Harry adhered to the terms of the share farming agreement. 2. In the statement of claim, David pleaded the representations that he alleges were made to him in the following terms: 6. In the early 1980s Dr Kramer orally represented to the plaintiff he would leave him a life interest in the Colo Property in his will (the First Succession Plan). 7. The context of the First Succession Plan was the plaintiff would continue with the Share Farming Agreement and otherwise assist Dr Kramer and his family with management of the farm. 8. In 1987 or 1988 Dr Kramer represented to the plaintiff he had made an agreement with the deceased, that Dr Kramer would leave the Colo Property to her in his will, but that in her will she would then leave the Colo Property to the plaintiff (the Second Succession Plan). 9. The context of the Second Succession Plan was that the plaintiff would continue with the Share Farming Agreement and otherwise assist Dr Kramer and his family with management of the farm. 10. As executor and beneficiary of the estate of Dr Kramer, the deceased was obliged to adhere to the Share Farming Agreement, the First Succession Plan, and the Second Succession Plan. 11. In 1988, after the death of Dr Kramer, the deceased represented to the plaintiff that the Colo Property was to pass to him upon her death, together with a sum of money (the Third Succession Plan). 12. The context of the Third Succession Plan was that the plaintiff would continue with the Share Farming Agreement and otherwise assist the deceased and her family with management of the farm. 1. Hilary responded to David's allegations concerning the making of the representations by not admitting them and by, in substance, alleging that David did not adhere to the terms of the share farming agreement, or otherwise assist Dr Harry or Dame Leonie by virtue of the matters set out in pars 21 and 21A of the amended defence. 2. Hilary specifically responded to the allegations made by David in respect of the first and second representations, being the subject of representations made to him by Dr Harry, by pleading that the Colo Property was owned jointly by Dr Harry and Dame Leonie while Dr Harry was alive, so that Dr Harry did not have any entitlement unilaterally to create any interest in the Colo Property, and that, upon Dr Harry's death, his interest in the Colo Property passed to Dame Leonie by survivorship. 3. In pars 13 and 14 of the statement of claim, David alleged that, by her oral third representation, Dame Leonie encouraged and induced in David an expectation of inheriting the Colo Property on Dame Leonie's death, such that he was entitled to rely on the third representation being put into effect, and that the expectation induced by Dame Leonie in David arose reasonably from Dame Leonie's conduct. 4. David pleaded the source of the alleged encouragement or inducement specifically in the particulars to par 13, where he alleged that Dame Leonie said to him: [Dr Harry] always admired your honesty. [Dr Harry] and I did agree the farm will pass to you upon my death and I want you to know there will also be a sum of money. 1. It should be noted that Dame Leonie did make a bequest of $200,000 to David in her will. 2. David alleged in par 15 of the statement of claim that Dame Leonie knew of David's expectation or belief. The particulars of knowledge given are: (a) The deceased observed the plaintiff continuing to adhere (sic) the Share Farming Agreement, being his part of the arrangement; (b) The deceased informed Jocelyn she had changed her will and that the plaintiff no longer was going to inherit the Colo Property, and Hillary found out about this at a later time; (c) Jocelyn advised the deceased the (sic) she ought to tell the plaintiff about the change but the deceased refused to do this; (d) The deceased intentionally failed to tell the plaintiff she no longer intended to leave the Colo Property to him in her will, and so he continued to believe that he would inherit the Colo Property on her death and adhered to the Share Farming Agreement, and the deceased continued to observe the plaintiff working on the Colo Property, he in ignorance of her change in plan. 1. David pleaded in par 16 that he altered his position in reliance on the expectation, and in pars 17 and 18 that he will suffer detriment from the altered position if the expectation is not fulfilled. 2. David alleged in par 19 that the circumstances render it unconscionable for the defendants to not fulfil the expectation induced by the deceased. He pleaded in par 21 that Dame Leonie was estopped from making the 2011 will inconsistent with the third representation, and that the defendants, as executors, are bound by the representation of Dame Leonie. 3. Finally, David pleaded in par 23 of the statement of claim: 23. In the premises, and subject to the principles of equitable or proprietary estoppel, the defendants hold on trust for the plaintiff the Colo property to fulfil the representations made by the deceased and the reasonable expectations therein induced. 1. In her amended defence, Hilary did not admit the allegations made by David concerning the conduct of Dame Leonie, or that Dame Leonie knew that David had altered his position on the basis of any representations made by Dr Harry or Dame Leonie. 2. In particular, Hilary said in par 18 of the amended defence that there was no change in David's conduct after the alleged representations were made to him, as he remained working on the Colo Property purportedly in accordance with the share farming agreement in the same way as he had done prior to the alleged representations. 3. In her amended defence, Hilary pleaded the following specific defences to the whole of the statement of claim: 21. The plaintiff did not comply with the terms of the Share Farming Agreement. PARTICULARS (a) the plaintiff did not act in a proper and workmanlike manner so as to minimise the operating costs and maximise the gross proceeds of the Share Farming Agreement, in that he planted crops which he did not thereafter properly tend with the result that the crops could not be harvested or sold, causing the loss of all of the costs of planting the crop and the failure to obtain any proceeds from the sale of the crop. (b) the plaintiff was occupied for long hours as the Captain of the Local Rural Fire Service, or otherwise a Senior Officer with the Rural Fire Service, and he was unable to, or failed to, carry out any work on the Colo Property with the result that crops could not be planted, harvested or sold, causing the loss of all of the costs of planting the crop and the failure to obtain any proceeds from the sale of the crop; (c) the plaintiff failed to maintain the house in which he lived on the Colo Property, with the result that it became ridden with termites, requiring the defendants to spend approximately $20,000 to eradicate the termites and repair the damage they had caused; (d) he failed to account to Dame Leonie for all proceeds of produce grown on the Colo Property; (e) further particulars will be provided in the defendants' evidence. 21A. The plaintiff dishonestly failed to account to Dame Leonie for all produce grown on the Colo Property. PARTICULARS (a) From at least 2007 the plaintiff purchased seed and seedlings, and incurred fertiliser, herbicide, fuel and other expenses in and about the cultivation of the crops grown from that seed and seedlings, but recorded no sale of some of the crops produced by that cultivation and retained all of the proceeds of sale of some of those crops with the dishonest intention of having Dame Leonie contribute, through the share-farming agreement, to the costs of cultivation of the crops but keeping the proceeds of sale of some of the crops for himself. Further particulars will be set out in the expert report of Richard Ivey. (b) On the plaintiff's own records, there is money he has not paid to Dame Leonie in at least the three years prior to her diagnosis of dementia, being the period of at least 2006 to 2009. (c) On the plaintiff's own records, there is money he has not paid to Dame Leonie for the period in which the plaintiff knew that Dame Leonie had dementia and could not reasonably understand the quarterly reconciliation process she undertook with the plaintiff, being the period of 2009 to 2010. (d) On the plaintiff's own records, there is money he has not paid to Dame Leonie for the period after she appointed the first defendant as her attorney, being the period of 2010 to 2014. 21B. In the circumstances pleaded in paragraph 21A above the plaintiff lacks clean hands, and equity should refuse the relief sought by him in these proceedings. 22. Even if the asserted representations were made, it was not unconscionable for Dr Kramer or Dame Leonie to resile from them. PARTICULARS (a) the defendants repeat the particulars to paragraph 21 above; (b) during the last 30 years or more of the operation of the Share Farming Agreement the plaintiff was entitled to one half of the gross proceeds from all farming activity carried out on the Colo Property, irrespective of whether the Share Farming Agreement made a profit or a loss, while only having to pay ½ of the fuel expenses; (c) in addition, the plaintiff and his family had rent-free accommodation on the property for almost 40 years; (d) and the receipt of a quarterly 'bonus' which was paid irrespective of the net financial result of the Share Farming Agreement and irrespective of the plaintiff's failure to maintain the Colo Property; (e) in the period after the death of Dr Kramer the plaintiff took total control of the share farming operations including the nature and extent of any work he carried out, subject only to obtaining agreement from Dame Leonie or the defendants for any significant capital purchases; (f) Dr Kramer and Dame Leonie from time to time lent money to the plaintiff, the repayment of much of which they forgave him; (g) Dame Leonie made a gift of $200,000 to the plaintiff in her Will; (h) the plaintiff many times stated that he would not want to live anywhere else than on the Colo Property; (i) the defendants repeat paragraph 21A above. 23. Additionally or alternatively, the defendants say that, in the light of the matters pleaded in paragraphs 21 and 21A above, the relief to be granted to the plaintiff should be something less than the claimed beneficial interest in the Colo Property, and should be limited to equitable compensation which takes into consideration and reflects: (i) the benefits that the plaintiff received from remaining on the property after the representations were made, (ii) the losses to Dame Leonie as a result of the matters set out in paragraphs 21 and 21A above, and (iii) the fact and amount of the legacy provided to the plaintiff in Dame Leonie's last Will. Legal principles governing David's entitlement to the interest claimed 1. The most appropriate way to classify David's claim for a proprietary interest in the Farm is to describe it as being based upon an estoppel by encouragement. 2. In the following consideration of the legal principles that govern David's claim, I have avoided an expansive consideration of the authorities and attempted instead to distil those principles through the medium of relevant decisions of the New South Wales Court of Appeal. It is desirable to state the principles as clearly and simply as possible, which is an objective that tends to be obscured by an extensive examination of the reasoning in prior cases that have considered the application of the fundamental equitable principles in the multiplicity of circumstances to which they have been required to be applied. 3. In Silovi Pty Ltd v Barbaro (1988) 13 NSWLR 466, Priestley JA (Hope and McHugh JJA agreeing) considered the decision of the High Court in Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 (Waltons Stores), particularly the observations made by Brennan J at 429, and said at 472: … In explaining why I agree with the steps in Powell J's reasoning, I have the benefit of the High Court's decision in Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387, delivered after Powell J's judgment. The decision in Waltons makes it unnecessary to deal with the earlier estoppel decisions discussed by Powell J. Waltons enables the statement of some relevant propositions more certainly and simply than was previously possible. The following can I think be distilled from the reasons in Waltons notwithstanding the somewhat different language used by different judges … (3) Equitable estoppel operates upon representations or promises as to future conduct, including promises about legal relations. When certain conditions are fulfilled, this kind of estoppel is itself an equity, a source of legal obligation. (4) Cases described as estoppel by encouragement, estoppel by acquiescence, proprietary estoppel and promissory estoppel are all species of equitable estoppel. (5) For equitable estoppel to operate in circumstances such as those of the present case there must be the creation or encouragement by the defendant in the plaintiff of an assumption that a contract will come into existence or a promise be performed, and reliance on that by the plaintiff, in circumstances where departure from the assumption by the defendant would be unconscionable. (6) Equitable estoppel may lead to the plaintiff acquiring an estate or interest in land; that is, in the common metaphor, it may be a sword. (7) The remedy granted to satisfy the equity (which either is the estoppel or created by it) will be what is necessary to prevent detriment resulting from the unconscionable conduct… 1. In Austotel Pty Ltd v Franklins Selfserve Pty Ltd (1989) 16 NSWLR 582, Priestley JA (Kirby P agreeing) at 610 said: From the foregoing, I draw the conclusion that if it were permissible, in this Court, to read Attorney-General of Hong Kong v Humphreys Estate along with Waltons, it would be right to expand proposition 5 from Silovi to read as follows: 5. For equitable estoppel to operate there must be the creation or encouragement by the defendant in the plaintiff of an assumption that a contract will come into existence or a promise be performed or an interest granted to the plaintiff by the defendant, and reliance on that by the plaintiff, in circumstances where departure from the assumption by the defendant would be unconscionable. 1. After considering the authorities relevant to the case in the above extract, his Honour said at 612: In the result, it seems to me that it is appropriate to summarise the present position of the law concerning common law and equitable estoppel in Australia, following the High Court's decision in Waltons as in the seven propositions in Silovi, with the expansion of proposition 5 earlier set out, and subject to the warning observation, that as this case shows, those propositions may need clarification or elaboration in the light of the particular circumstances of later cases. 1. It is of relevance to the present case that Priestley JA's third proposition is that equitable estoppel operates upon representations or promises as to future conduct. It is not necessary that the representation be promissory in form. His Honour's expanded fifth proposition may be satisfied if the representation by the defendant encourages the plaintiff to make an assumption that an interest will be granted to the plaintiff by the defendant, and the plaintiff relies upon the assumption in circumstances where departure from the assumption by the defendant would be unconscionable. Subjective knowledge by the defendant that the plaintiff is acting in reliance upon the assumption encouraged by the defendant may contribute to a departure from the assumption being unconscionable. However, the issue of whether the departure is unconscionable depends upon the particular circumstances of the case, so that if the nature of the representation and the circumstances in which it is made are calculated to induce reliance by the plaintiff, departure from the assumption may be unconscionable even if the defendant does not subjectively understand that the representation has motivated the plaintiff's reliance. 2. In Q (a pseudonym) v E Co (a pseudonym) [2020] NSWCA 220; (2020) 383 ALR 469 (Q v E Co), Meagher JA (with whom Leeming and Payne JJA agreed) said of the representation necessary to establish a proprietary estoppel by encouragement: [15] Q's argument in support of this ground emphasises the distinction between proprietary estoppel by encouragement and proprietary estoppel by acquiescence, the latter understood in the sense of "standing by". The former, as formulated in Giumelli v Giumelli (1999) 196 CLR 101; [1999] HCA 10 at [6], is founded in an assumption as to the future acquisition of ownership of property which has been induced by a representation or promise upon which there has been detrimental reliance by the plaintiff. As Mr Handley observes in Estoppel by Conduct and Election (2nd ed, Thomson Reuters, 2016) at [3–001], a representation or promise "may be implied wholly or partly from conduct or inferred from silence or inaction". Whether any, and if so what, representation has been made is to be judged "objectively according to the impact that whatever is said [or done] may be expected to have on a reasonable representee in the position and with the known characteristics of the actual representee" per Mance LJ in MCI [2004] 2 All ER (Comm) 833 at 844. See also Thorner v Major [2009] 1 WLR 776; [2009] UKHL 18 at [24]–[27] (Lord Rodger) and at [80], [84]–[86] (Lord Neuberger). In this Court, see Galaxidis v Galaxidis [2004] NSWCA 111 at [93]; Sullivan v Sullivan [2006] NSWCA 312 at [85]; and Evans v Evans [2011] NSWCA 92 at [124]. 1. The proposition, accepted by Meagher JA, that the meaning and effect of the representation must be determined objectively according to the impact that whatever is said may be expected to have on a reasonable representee in the position and with the known characteristics of the actual representee is relevant to the present case. 2. In Doueihi v Construction Technologies Australia Pty Ltd (2016) 92 NSWLR 247; [2016] NSWCA 105 (Doueihi), Gleeson JA (Beazley P and Leeming JA agreeing) referred, at [153], to an argument put by the appellant in that case, based in part on the first proposition of Brennan J in Waltons Stores, to the effect that an assumption must be established that a particular legal relationship existed or would exist between the parties, and that in the latter case the party inducing the assumption would not be free to withdraw from the expected legal relationship. Gleeson JA, at [154]-[158], considered authorities that dealt with the issue of whether a failure by a party to perform an executory promise may be found to be unconscionable, and the requirement that "something more" than mere reliance on an executory promise is necessary to be sufficient, and said: [158] Although as already noted, some doubt has been expressed as to whether the joint judgment of Mason CJ and Wilson J and the judgment of Brennan J in Waltons Stores dealt with the case on the basis of promissory estoppel (see the comments of Handley AJA in DHJPM v Blackthorn at [122]), the context of their Honours' references to Humphreys Estate seems to me to be promissory estoppel. The need for "something more" than mere reliance on an executory promise, is readily understandable in cases of promissory estoppel where the parties expect to enter into a contract or otherwise formalise their legal relationship. Without "something more" a departure from the basic assumptions underlying the transaction between the parties is not unconscionable. The "something more" manifested in Waltons Stores was an expectation or assumption that "a particular legal relationship" would exist and that the other party would not withdraw from the negotiations (Mason CJ and Wilson J at 406, Brennan J at 422–423). [159] The difficulty with the appellants' argument is that it seeks to apply Brennan J's first proposition, formulated in the context of a promissory estoppel case, where the parties intended to enter into a contract, to a different case where the expectation or assumption created or encouraged by the party said to be estopped is that "an interest" would be granted, in circumstances where the parties did not believe they needed to enter into a contract or otherwise contemplate formalising their legal relationship. There are a number of reasons why that approach should not be accepted. 1. In the course of elaborating the reasons to which he referred, his Honour said: [164] Secondly, Handley AJA did not say in DHJPM v Blackthorn that Brennan J's first proposition applied to a case where the parties did not contemplate or believe they needed to enter a contract or otherwise formalise their legal relationship. [165] Thirdly, as Meagher JA also observed in DHJPM v Blackthorn (at [49]), the reference in Brennan J's first proposition to an expectation that "a particular legal relationship would exist" and that the party said to be estopped "would not be free to withdraw" from it, draws attention to two essential aspects of the expectation in cases where the parties expect to enter a contract. DHJPM v Blackthorn was a commercial case involving experienced businessmen who, as Meagher JA found (at [42]), must be taken to have contemplated and intended that any proprietary or other right of occupation would be created by a binding contract. [166] It would be wrong, however, to read the reasons of Meagher JA as suggesting that the six propositions of Brennan J are to be applied in every case of proprietary estoppel in a mechanical fashion. As the primary judge noted, Priestley JA made this very point in Austotel v Franklins (at 615–616), when observing that while the "tests" of Brennan J may not represent the majority views of the High Court, they provided a useful check. As the primary judge also recognised (at [137]), it would also be wrong to ignore that in Waltons Stores, Mason CJ and Wilson J did not say that the party asserting that estoppel must have assumed that a particular legal relationship existed, or that the party said to be estopped would not be free to withdraw from an expected legal relationship. [167] Fourthly, the difference in the formulation of Brennan J's first proposition and the more succinct formulation of what Priestley JA distilled from the different judgments in Waltons Stores in Silovi v Barbaro (Hope and McHugh JJA agreeing), and subsequently in Austotel v Franklins, reflects the fact that Brennan J's propositions were not formulated to take into account the different circumstances of cases, like the present, where the assumption that an interest would be granted is made by parties who do not intend to enter into a contract or otherwise formalise their legal relationship. Meagher JA recognised so much in DHJPM v Blackthorn (at [52]), when he observed that Priestley JA had expanded his proposition (5) in Austotel v Franklins to take account of the different circumstances of that case. As the primary judge noted, that formulation was cited with approval by a full court of the Federal Court in S & E Promotions Pty Ltd v Tobin Brothers Pty Ltd at 653. [168] Fifthly, I do not regard the observations by Meagher JA in DHJPM v Blackthorn (at [53]), concerning the passage from Lord Kingsdown's speech in Ramsden v Dyson (set out at [68] above), as importing a requirement of an expectation of "a particular legal relationship" when the expectation or assumption relates to an interest in property that would be granted. Meagher JA was careful in his language not to go so far. His Honour said (at [53]) that: [53] [t]he requirement that the promise or expectation be intended by the promisor and understood by the promisee to affect their legal relations applies equally to cases where a contract is not contemplated and the expectation is that some interest in land will be granted. That appears from the statement of Lord Kingsdown in his dissenting speech in Ramsden v Dyson (1866) LR 1 HL 129 at 170. … 1. The present is a case in which the parties did not contemplate that they would enter into any formal legal agreement, and David does not put his case on the basis of promissory estoppel. In the context of a consideration of whether there is a dichotomy between arms-length/commercial and domestic/family cases, Gleeson JA said: [173] The dichotomy between arms-length/commercial cases and domestic/family cases is not to be seen as fragmenting equitable principles. As Handley AJA explained in DHJPM v Blackthorn, this distinction reflects the nature and circumstances usually found in two types of cases. [174] After observing that estoppels by encouragement have been applied in a wide variety of factual situations, Handley AJA referred to the two categories of case and continued at [104]–[105]: [104] … Most fall into one of two categories; those where the parties are in a domestic or family relationship, and those where the relationship is commercial. Parties in the latter category typically contemplate a legal relationship and frequently intend to enter into a contract or otherwise formalise their expectation. [105] In domestic or family cases, the parties are not at arm's length and usually have no intention of entering into a contract or formalising their expectation. The party encouraged will frequently expect to receive a gift, inter vivos or testamentary." (Emphasis added) [175] Importantly, Handley AJA did not suggest that the dichotomy between arms-length/commercial cases (of which DHJPM v Blackthorn is an example) and domestic/family cases was universal, nor that it is a finite framework. Read together, his Honour's qualifications, including particularly that "most" cases fall into one of two categories, emphasised that it is the circumstances of the case which are decisive as to whether an equitable proprietary estoppel is made out. His Honour's careful language allows for the potential for the parties, in either of the two categories, or indeed in a mixed category, to have different expectations as to entry into a formal written agreement from those usually or typically held in a commercial case or a domestic/family case. … [178] So long as it is appreciated that the dichotomy between arms- length/commercial cases and domestic/family cases is not universal or finite, no difficulty arises in using these labels to describe different categories of case. As always, however, care must be exercised when using shorthand labels to describe the context. This is more so because, as the primary judge recognised, many cases do not fall neatly into such separate categories. Ultimately, the circumstances of the case are what is important, including the nature of the relationship between the parties and whether they contemplated that any interest to be granted or promise to be performed was to be created by a binding contract: DHJPM v Blackthorn at [56]. 1. The evidence in the present case suggests that the relationship between David on the one hand and Dr Harry and Dame Leonie on the other was an informal halfway house between a commercial and a domestic one, and that even though there was an underlying commercial relationship in the form of the share farming agreement, the parties to that agreement substantially acted upon the basis of trust and the give and take that would commonly characterise a domestic relationship. 2. In Simpson-Cook v Delaforce [2009] NSWSC 357, Bergin CJ in Eq said, in a passage approved by Ward J (as her Honour then was) in Dable v Peisley [2009] NSWSC 772 at [129]: 29 It is also important to remember Walker LJ's caution that: (1) the "flexible doctrine" of proprietary estoppel cannot be treated as subdivided into three or four watertight compartments; (2) the quality of the relevant assurances may influence the issue of reliance; (3) reliance and detriment are often intertwined; and (4) whether there is a distinct need for a "mutual understanding" may depend on how the other elements are formulated and understood: at 227 and 230. The following principles relevant to the circumstances of this case may be gleaned from Walker LJ's analysis in Gillett v Holt: (1) promises unsupported by consideration are initially revocable, however detrimental reliance on such promises make them irrevocable; (2) there must be a sufficient link between the promises relied on and the conduct which constitutes the detriment; and (3) detriment can be financial or otherwise, however if other than financial it has to be substantial. 1. In Delaforce v Simpson-Cook (2010) 78 NSWLR 483; [2010] NSWCA 84. Allsop P (Giles JA agreeing) gave the following explanation of the Court's approach to fashioning relief when a proprietary estoppel has been established: [3] I agree in particular with Handley AJA that the reasons of Gleeson CJ, McHugh J, Gummow J and Callinan J in Giumelli v Giumelli (1999) 196 CLR 101 appear to remove as a governing principle in the relief to be granted in equitable or proprietary estoppel cases the notion of enforcement or vindication only of the "minimum equity": see Giumelli (at [40]–[48]). That, of course, does not make irrelevant matters that can assuage the detriment brought about by the resiling from the representation or encouragement by the party concerned. It does mean, however, that relief in such cases is not to be measured by weighing detriment too minutely in order that it be converted into some equivalent of cash or kind, as if one were measuring the consideration for a commercial bargain. Equity will look at all the relevant circumstances that touch upon the conscionability (or not) of resiling from the encouragement or representation previously made, including the nature and character of the detriment, how it can be cured, its proportionality to the terms and character of the encouragement or representation and the conformity with good conscience of keeping a party to any relevant representation or promise made, even if not contractual in character. Equity has always had a place in keeping parties to representations or promises: see for example, Burrowes v Lock (1805) 10 Ves Jr 470; 32 ER 927; Horn v Cole 51 NH 287; 12 Am Rep 111 (1868); S W Symons (ed), J N Pomeroy, A Treatise on Equity Jurisprudence 5th ed, Vol 3 (1941) San Francisco, Bancrof-Whitney at 179–188 [802]–[803]; R Meagher, J Heydon and M Leeming, Meagher, Gummow and Lehane's Equity: Doctrine and Remedies 4th ed (2002) Sydney, Butterworth LexisNexis at 556–560 [17–065]–[17–070] and 567–568 [17–110]. [4] Proportionality of the claimed interest or remedy to the prejudice or detriment is undeniably a relevant consideration, and sometimes of consider­ able importance. It should not, however, be transformed into a necessary constitutive element of a cause of action to be pleaded or proved by the party seeking relief. To do so would elevate one consideration above others, and in particular above the importance of making good an expectation by encouragement or representation: Plimmer v The Mayor, Councillors and Citizens of the City of Wellington (1884) LR 9 App Cas 699 at 713–714; Riches v Hogben [1985] 2 Qd R 292; Giumelli (at [10] and [35]). It would tend to equate the analysis to one requiring that the party encouraged receive no more than it can prove that it suffered in detriment. This would see the equity become one of compensation for proved equivalent detriment. The equity is a broader one based on the just and conscionable satisfaction in appropriate fashion of the equity arising from the expectation created in another by encouragement or representation. As Handley AJA says, the role of proportionality is better understood, in a doctrine dealing with the legitimacy or otherwise of resiling from an encouragement or representation that has created an expectation, as assisting in an assessment whether what is claimed or contemplated to be granted is disproportionate or unjust in all the circumstances. [5] The importance of keeping a party to a representation or encouragement previously made is all the stronger where, as here, the encouragement or representation has been relied upon by a party to abandon a course of conduct that could possibly have led to a different outcome. This can be described in the language of loss of a chance that is not fanciful or unrealistic, or in the language of proceeding thereafter on the basis of a new or changed convention or conventional basis. Such expression of the matter is not different to how Dixon J put the matter in Grundt v Great Boulder Proprietary Gold Mines Ltd (1937) 59 CLR 641 at 674–675. For instance, if, as here, in reliance upon a representation or encouragement, a court case is abandoned and the representation or encouragement is later sought to be resiled from, the party to whom the representation or encouragement was made and in whom the expectation was raised is left in the position not only of the loss of the entitlement to pursue his or her rights in the case in the past, but also is likely to be in the position of being unable to demonstrate what would, or even may, have happened in the case, it being an alternative, complex and now hypothetical body of human conduct. That the party encouraged cannot show that he or she would have been better off in the posited alternative reality is not fatal to the making out of the estoppel. Indeed, the inability to prove such things reveals a central aspect of the detriment: being left, now, in that position. Of course, if it is self-evident or can be clearly demonstrated that the case was fanciful or otherwise doomed to fail, there may be no real detriment; but that was not the case here. The respondent gave up her right to propound her case in the Family Court on the faith of the deceased's representation. It was not self-evident, or otherwise clearly demonstrated, that she could not have been successful in securing her rights to the subject property after the death of the deceased. 1. Handley AJA added: [56] Although there are statements in Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 and The Commonwealth v Verwayen that relief in these cases must be limited to removing or reversing the detriment suffered by the party entitled to the estoppel, the joint judgment in Giumelli (at 120 and 125) established that there is no such restriction. The detrimental reliance that supports the estoppel need not constitute, in any sense, a consideration moving to the party bound. It is a unilateral element of the estoppel and not the price paid for it. [57] Relief depends very much on the facts and, as the Privy Council said in Plimmer (at 714), "the Court must look at the circumstances in each case to decide in what way the equity can be satisfied." … [63] The Court should, prima facie, enforce a reasonable expectation which the party bound created or encouraged: R Meagher, J Heydon and M Leeming, Meagher, Gummow and Lehane's Equity: Doctrine and Remedies 4th ed (2002) Sydney; Butterworth LexisNexis at 567–568. In Ramsden v Dyson (1866) LR 1 HL 129 at 170 Lord Kingsdown said: "If a man … under an expectation created or encouraged by the landlord that he shall have a certain interest [acts to his detriment] upon the faith of such promise or expectation … a Court of equity will compel the landlord to give effect to such … expectation" (Lord Kingsdown's principle). In Chalmers (at 681–682), the Privy Council said that if such an estoppel is established "a court of equity will prima facie require the owner … to fulfil his obligation". In Attorney General of Hong Kong v Humphreys Estate (Queen's Gardens) Ltd [1987] AC 114 at 121 Lord Templeman said: The authorities expound and illustrate the principle upon which a litigant who is led to believe that he will be granted an interest in land and who acts to his detriment in that belief is enabled to obtain that interest. [64] In Giumelli, the joint judgment (at 123) quoted with approval this statement of Deane J in The Commonwealth v Verwayen (at 443): Prima facie, the operation of an estoppel by conduct is to preclude departure from the assumed state of affairs. It is only where relief framed on the basis of that assumed state of affairs would be inequitably harsh, that some lesser form of relief should be awarded. [65] The joint judgment in Giumelli continued (at 123): The prima facie entitlement to which his Honour had referred would be qualified if that relief 'would exceed what could be justified by the requirements of conscientious conduct and would be unjust to the estopped party'. 1. These principles were recently considered and applied by Bathurst CJ in Trentelman v The Owners – Strata Plan No 76700 [2021] NSWCA 242. His Honour said: [116] In Giumelli v Giumelli (1999) 196 CLR 101; [1999] HCA 10, the plurality stated at [6] that the equity which founded the relief claimed in such cases as Dillwyn v Llewelyn (1862) 4 De GF & J 517 at 523 was founded on the assumption of future ownership of property which had been induced by representations upon which there had been detrimental reliance by the plaintiff. That reasoning was adopted by the plurality in Sidhu v Van Dyke at [2], see also Doueihi v Construction Technologies Australia Pty Ltd (2016) 92 NSWLR 247; [2016] NSWCA 105 at [131]-[136]. [117] In Delaforce v Simpson-Cook (2010) 78 NSWLR 483; [2010] NSWCA 84, Handley AJA, in dealing with a claim of proprietary estoppel by encouragement, summarised the circumstances in which such an estoppel came into existence in the following terms (at [21]): "[21] The proprietary estoppel upheld by the judge was an estoppel by encouragement. Such an estoppel comes into existence when an owner of property has encouraged another to alter his or her position in the expectation of obtaining a proprietary interest and that other, in reliance on the expectation created or encouraged by the property owner, has changed his or her position to their detriment. If these matters are established equity may compel the owner to give effect to that expectation in whole or in part. The general principles governing this form of estoppel were not in dispute, here or below." [118] What needs to be added to that summary is that it must be shown that the detrimental reliance makes it unconscionable for the promisor or representor to depart from the promise or representation: see Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd (2016) 260 CLR 1; [2016] HCA 26 at [147]-[150]. [119] As can be seen from the submissions of the appellant to which I have referred, the first basis on which she seeks to challenge the conclusion of the primary judge is that the representation was incapable of creating an expectation in the Owners Corporation that the lot owners would have the use of the pool. In that context, there are a number of matters which may be noted at the outset. [120] First, notwithstanding the requirement that there must be certainty in the promise to give rise to the requisite expectation, an equitable estoppel can be established notwithstanding the expectation is based on a promise or representation that would not be sufficiently certain to amount to a valid contract, or is formed on the basis of vague assurances: DHJPM Pty Ltd v Blackthorn Resources Ltd at [54]; Evans v Evans at [121]-[125]; Flinn v Flinn at [80]-[81]. [121] Second, and allied to the first point, as Hodgson JA pointed out in Sullivan v Sullivan [2006] NSWCA 312 at [85], a promise or representation will generally be sufficiently clear to support an estoppel if it was reasonable for the representee to interpret the promise in a particular way and to act in reliance on that assumption: see also Doueihi v Construction Technologies Australia Pty Ltd at [197]; Evans v Evans at [124]. [122] Third, depending on the particular context, a proprietary estoppel may be established where the promise or representation relied upon did not define the interest the party was expected to receive: see Sullivan v Sullivan at [16] and the cases there cited, in particular Flinn v Flinn at [80]. In Cobbe, Lord Walker summarised the position in the following terms (at [68]): "[68] It is unprofitable to trawl through the authorities on domestic arrangements in order to compare the forms of words used by judges to describe the claimants' expectations in cases where this issue (hope or something more?) was not squarely raised. But the fact that the issue is seldom raised is not, I think, coincidental. In the commercial context, the claimant is typically a business person with access to legal advice and what he or she is expecting to get is a contract. In the domestic or family context, the typical claimant is not a business person and is not receiving legal advice. What he or she wants and expects to get is an interest in immovable property, often for long-term occupation as a home. The focus is not on intangible legal rights but on the tangible property which he or she expects to get. The typical domestic claimant does not stop to reflect (until disappointed expectations lead to litigation) whether some further legal transaction (such as a grant by deed, or the making of a will or codicil) is necessary to complete the promised title." The Share Farming Agreement 1. The terms upon which David entered into the share farming agreement with Dr Harry, and then continued the agreement with Dame Leonie after Dr Harry's death, provide an important part of the context in which the Court must decide whether it should accept David's evidence concerning the representations that he alleges were made to him by Dr Harry and Dame Leonie. That is because the likelihood that Dr Harry and Dame Leonie would have thought it fit to leave David an interest in the Colo Property is linked to the apparent value of the share farming agreement to David, the distribution of the benefits of the agreement between the parties, and, as will be seen, the income that it was capable of generating for David. 2. A claim by a plaintiff farm worker that a grazier for whom he worked had made an oral representation that the grazier would leave a major sheep station to the farm worker may well be improbable, but the position may be entirely different where the farm involved is small and commercially unviable, the farming operation is conducted as a close personal collaboration between the owner and farmer, and the assurance of the inheritance by the farm worker may be a supplement to what otherwise would be an inadequate income from working the farm. 3. This issue is also significant to Hilary's claims that David breached the share farming agreement by failing to minimise operating costs and maximise the gross proceeds of the agreement, and by failing to keep in good repair the house in which he lived on the Colo Property. Evidence of the terms of the Share Farming Agreement 1. David's evidence was that he never entered into any formal written share farming agreement with Dr Harry and Dame Leonie. It was not put to him in cross-examination that this evidence was incorrect: see T 62.12. 2. Although David said that the share farming agreement was oral, he did not give evidence of the conversations that gave rise to the agreement. Instead, in par 15 of his 24 August 2017 affidavit, he stated that the oral agreement contained the terms pleaded in par 4 of the statement of claim (see [11] above). Hilary was not privy to the conversations between David and her parents whereby the terms of the share farming agreement were agreed. Nonetheless, in her amended defence, she asserted that the share farming agreement had the terms pleaded in pars 4.2 and 4.3 (see [14] and [15] above). 3. The terms of the share farming agreement were largely agreed on the pleadings, and most differences were not significant. The only significant differences asserted by the parties was that Hilary pleaded in par 4.2(a) that David was required to "maintain the Colo Property and the machinery, equipment and buildings on it", and in par 4.2(b) that David was required to conduct the share farming operation "in a proper and workmanlike manner so as to minimise the operating costs and maximise the gross proceeds of the Share Farming Agreement, and keep the machinery, equipment and buildings in reasonable repair". 4. Hilary listed her understanding of the terms of the share farming agreement in her 14 August 2018 affidavit at par 16 in the following terms: a) all expenses except for fuel were paid by my parents; b) the only expense that Dave was required to pay was half of the fuel costs; c) income from produce was shared equally between my parents on one hand, and Dave on the other; d) Dave was to be paid a quarterly bonus for work done towards maintaining and improving the property; and e) as part of the agreement, Dave continued to live rent-free in the four-bedroom house previously occupied by his parents and siblings. 1. This statement by Hilary of the terms of the share farming agreement is not significantly different from David's statement as to his understanding of those terms. 2. Hilary's evidence does not support the inclusion in the share farming agreement of the additional terms pleaded in par 4.2(a) and (b) of the amended defence that I have set out above. Hilary said nothing about those terms in her evidence. 3. Moreover, it was not directly put to David in cross-examination that the share farming agreement contained terms that were as onerous as those alleged by Hilary. Rather, David was asked whether he had negotiated with Dr Harry terms of the agreement that were more beneficial to him than the terms under the written agreement his father had worked under. David responded: "I don't agree with that" (T 62.35). 4. The following hand-written note made by Dr Harry in his first quarterly reconciliation for the period ended 30 September 1975 (Court Book 629) is relevant to the determination of the terms of the share farming agreement. The transcription may not be entirely accurate because the handwriting is not entirely legible: Because of economic difficulties Stone found it almost impossible to meet his [ordinary?] ½ share of expenses. Agreed therefore that we would meet all costs other than fuel, which would be shared. Income from produce would be shared equally between H & LJ Kramer on one hand, & D Stone on other. In addition a quarterly bonus of $325.00 would be paid to D Stone for work done towards improving property e.g. fencing, painting of buildings. 1. Not only is this note relevant to Dr Harry's appreciation of the financial difficulties faced by David in conducting the share farming operation, but the final words perhaps cast light on the true extent of the work required of David in relation to the improvement of the Colo Property. The extent of the work that David was required to do in return for his quarterly bonus was in the nature of maintaining the fencing and painting buildings. That falls far short of a positive obligation to "maintain the Colo Property and the machinery, equipment and buildings on it". 2. Another note in Dr Harry's handwriting concerning the March 1980 quarter recorded a change in the terms of the share farming agreement (Court Book 631): *Because of rapid rise in cost of fuel agreed that henceforth we will pay 2/3 and David 1/3. 1. David acknowledged, however, in par 21 of his 24 October 2018 affidavit in reply, that it was his role to assess which crops were best grown to gain the best yield for the farm. Share farming agreement with David's father 1. It is instructive to compare the terms of the written share farming agreement entered into between David's father and Dr Harry and Dame Leonie with the manner in which the evidence shows that the share farming agreement operated. 2. David's father entered into a share farming agreement in 1965 with the predecessor in title to the Colo Property to Dr Harry and Dame Leonie. 3. Hilary tendered a formal written share farming agreement between David's father and Dr Harry and Dame Leonie made on 28 June 1970. The agreement was 13 pages long and dealt in detail with the obligations of the share farmer and the farm owners. It was a conventional share farming agreement, in which most of the income and expenditure was borne equally by the parties, and the share farmer was required to contribute significant resources. 4. Clause A5a of the agreement states that: "The Farmer shall keep all buildings, fences and other improvements on the farm in as good repair order and condition as the same are in at the date hereof fair wear and tear and damage by fire only excepted". Clause A5b states: "He will keep the property clean and tidy and attend to the eradication of such noxious weeds or vermin as may otherwise infest the farm". There is no evidence that the oral share farming agreement with David included such a term, and there is nothing to suggest that Dr Harry or Dame Leonie ever complained to David of the fact that this alleged term was not adhered to or that they complained to David of the state of the Farm with respect to its order or condition generally. Clauses B2 and C1 obliged the Owners (that is Dr Harry and Dame Leonie) to provide a house rent-free for the Farmer. The agreement was more complex than the share farming agreement, as, for instance, clause A10 obliged the Owners to take out insurance for crops with the premiums payable equally by the Owners and the Farmer. 5. It is clear from a comparison of the way the share farming agreement operated in practice with the terms of the formal written agreement to which David's father was a party that the arrangement between David and Dr Harry and Dame Leonie was on quite different terms. For instance, the written share farming agreement required the parties to bear all costs of the farming operation equally, while the share farming agreement did not. Indeed, the hand-written accounts prepared by Dr Harry stated in relation to the expenses incurred when David's father was the share farmer: "FARM EXPENSES (SHARED WITH HE STONE)": see Court Book 2885. When David became the share farmer in 1975, Dr Harry wrote: "FARM EXPENSES (NOT SHARED)": see Court Book 2889. 6. David gave uncontradicted evidence that his father terminated his share farming agreement with Dr Harry and Dame Leonie because he was unable to make a sufficient living to support his wife and children, and his wife wanted to live a more suburban life. Terms of the Share Farming Agreement 1. The evidence does not establish that the share farming agreement contained a term that required David to maintain in good order the house in which he lived from his own resources. As will be seen, it is obvious from the evidence that at no time did David earn enough from the share farming agreement to maintain the house; which is a fact that must have been obvious to Dr Harry and Dame Leonie. 2. I am also not satisfied that the share farming agreement contained a term that, in an absolute sense, required David to conduct the farming operation with a minimum of costs and a maximum of income that was possible in relation to the farming operations on the Colo Property. I find that the share farming agreement probably included an implied term that David would conduct the farming operation with reasonable care, and that he would use his best endeavours in the circumstances to minimise costs and maximise returns. However, the content of that obligation must be assessed having regard to the obvious fact that David did not have any independent financial resources to apply to the share farming operation, and, as will be seen, his earning capacity was meagre and wholly inadequate to fund any onerous obligation to maintain and improve the Colo Property. 3. In fact, it is likely that all of the costs of maintaining and improving the Colo Property fell within the obligation of Dr Harry and Dame Leonie to pay all operating costs, and was within their discretion as to how much they wished to outlay for those purposes. The share farming agreement probably imposed upon David a residual obligation to apply his labour to the maintenance and improvement of the Colo Property to the extent that was consistent with his ability to conduct the share farming operation. 4. However, the share farming agreement was not an arm's length agreement, under which the owners made the land available to the farmer on the basis that the farmer would use his own resources to conduct the farming operation, and where the obligation to bear costs and the entitlement to share income would be split equally between the owner and the farmer. Essential nature of the Share Farming Agreement 1. The share farming agreement was a much less formal arrangement than the agreement with David's father. Its primary objective, from the perspective of Dr Harry and Dame Leonie, was to enable them to have a farming property in reasonable proximity to their home in Vaucluse, which they could enjoy at their leisure and which presented as an operating farm. Dr Harry was an eminent doctor and Dame Leonie was a notable professor of Australian literature, who rose to a position of great distinction in society. They did not have the time to operate the Colo Property by themselves, and their aspiration to be able to enjoy an idyllic farming property depended upon their being able to secure the services of a farmer like David, who was prepared to work hard for very little income. The share farming agreement was more of a collaboration than a conventional share farming agreement. 2. I infer that Dr Harry and Dame Leonie were content to enter into a more informal oral share farming agreement with David, on terms that were more favourable to the share farmer, because they realised that the Colo Property was not a viable economic proposition for the purpose of conducting a formal and conventional share farming operation. If Dr Harry and Dame Leonie wanted to have the lifestyle benefit of owning and being able to visit an operating farm in the Colo Valley, they had to find a farmer, such as David, who would be prepared to conduct a share farming operation on the Colo Property, on more favourable terms than had been given to David's father, and within the significant restraints on the capacity of the Colo Property to earn income from farming operations. 3. It is also necessary to bear in mind when considering Hilary's claim that David did not conduct the share farming operation in a competent way that he had no training as a farmer. It is likely that he learned farming practices and techniques from his father while he was a schoolboy, by helping around the Colo Property outside school hours. Having completed his Higher School Certificate, David moved to Surry Hills in 1971 and worked for the NSW Mines Department in a clerical position. David successfully re-sat his HSC to improve his results, and in 1972, he enrolled in Agricultural Science at Sydney University. Whilst at university, where he attended full-time in the first year and part-time in the second year, David worked casually on home building and renovation work to support himself. David discontinued his studies in 1973. David probably learned something about farming in the brief period that he pursued the Agricultural Science course. By the time that David began to farm the Colo Property under the share farming agreement in 1975, David did not have a substantial amount of farming experience. 4. Given the relatively small scale of the farming operations that were able to be carried out on the Colo Property, and the uncontradicted evidence that David's father had abandoned share farming the property because of his inability to earn an adequate income, it is likely that Dr Harry and Dame Leonie would have understood that David did not have substantial farming experience or resources, and that he would have to 'learn on the job' with Dr Harry's assistance. It is also likely that Dr Harry and Dame Leonie's aspiration would have been to enjoy the benefit of owning a working farm in circumstances that minimised the annual losses that they otherwise would have incurred from the farming operation on the Colo Property. Significance of David's membership of the Rural Fire Brigade 1. In final oral submissions, Hilary abandoned the allegation in par (b) to the particulars to par 21 of the amended defence that David's performance of the share farming agreement was inadequate because he devoted too much time to the performance of his senior roles in the Rural Fire Service. 2. It should be noted, in any case, that Dame Leonie recorded in a number of her quarterly reconciliations that the need for David to engage in Rural Fire Service duties had impeded his ability to perform the share farming agreement. However, there is no evidence that she complained of this fact, as opposed to having accepted it as effectively her contribution as the owner of the Colo Property to the cooperative efforts of local landowners to protect themselves and their neighbours from loss through bushfires. In her reconciliation for the March 2002 quarter, Dame Leonie wrote (see Court Book 633): *NB The last 2 quarters were severely affected by heat drought and bushfires. David was on duty as captain of the Upper Colo Bush Fire Brigade from Christmas Eve 2001 until early February 2002. This resulted in a loss of 1000 bags of potatoes (worth approx $20,000) which could not be [?], and of unplanted planned crops. 1. Later, in her reconciliation for the March 2006 quarter, Dame Leonie wrote (see Court Book 635): *Crops failed (beans + watermelons worth $20,000) because of extreme heat) + fire duties. 1. The claim that David breached the share farming agreement as a result of the performance of his obligations as a member of the Rural Fire Brigade therefore introduced a nonissue into the proceedings. 2. Consequently, it is not necessary to refer in detail to the evidence given by David to refute the assertion that his activities as a member of the Rural Fire Service diminished the quality of his performance of the share farming agreement. However, that evidence should not be ignored. David served his community as a member of the Rural Fire Service and its predecessor, the local bush fire brigade, from 1975, the year in which the share farming arrangement began. He rose from a member to a captain, and from 1 September 2003 to 5 July 2012, he was Deputy Group Captain at the Hawkesbury Fire Control Centre. David was awarded a number of Rural Fire Service long service awards and medals, and on 17 February 2011, he was awarded what his Member Report describes as "National Medal # Clasp 1". The clasp signifies an additional 10 years of service above the 15 years required in order to be eligible to be nominated for the National Medal, which is awarded to members of eligible organisations whose members serve or protect the community at the risk of death, injury or trauma. 3. Not only does this service by David do him considerable personal credit, but it is also relevant to the determination of the issues in these proceedings. 4. First, I consider that it is legitimate to take into account David's long service and achievements as a member of the Rural Fire Service in judging his credibility as a witness. David is unlikely to have risen to the rank of Deputy Group Captain without his peers in a largely voluntary organisation being satisfied of his character and reliability. 5. Secondly, David's evident competence which, according to David's Member Report, involved him in planning, training, assessment and crew leader roles, assists the Court in being able to find that, if David had terminated the share farming agreement at about the time that he claims Dame Leonie made her representation to him, David had good prospects of obtaining reasonably remunerative, long-term alternative employment. David's evidence of representations and reliance 1. I propose to set out David's evidence in chief as well as excerpts from his cross-examination in some detail. The reason for including lengthy extracts from the cross-examination is that it is necessary for the purpose of explaining my judgment as to the credibility and reliability of the evidence given by David. That is a crucial matter in this case, because the circumstances are that David's ability to establish his claim is substantially dependent on the willingness of the Court to accept him as both a truthful and reliable witness as to conversations that occurred as long as 40 years ago in private, and where in each case the persons who are alleged to have made the representations are now deceased. First Representation 1. In pars 19 and 20 of his 24 August 2017 affidavit, David gave the following evidence about the first representation: 19. In the early 1980s Harry and I were sitting at the dining room table of his house on the Colo Property. We had just finished reconciling the quarterly books when Harry said to me to (sic) words to the effect: "I am dealing with my Will and have decided to give the Colo Property to the girls on condition you receive a life interest, so you can work the Colo Property as your own for your life. The only other condition is that the family retain use of this cottage" … 20. I regarded Harry as a good and decent man having then worked with him for near on 6 or 7 years at the time when he told me about the First Succession Plan (and knowing him from when he worked with my father). He had stuck to the bargain we had verbally agreed as regards the Share Farming Agreement so naturally I believed him when he said how is (sic) Will would be prepared and the First Succession Plan would operate. I said words to the effect of: "Thank you, Harry, I really appreciate what you have offered me." to Harry and the First Succession Plan was never discussed between us again. 1. In relation to the first representation, David conceded that Dr Harry brought up the subject of his will without any introduction, and this surprised David (T 67.42). Dr Harry was a private sort of person (T 68.8). When it was put to David that he used the phrase "life interest" because that was something that he had heard from his lawyers, he said: "I think that's correct" (T 69.1). David said that Dr Harry had not used the words "life interest", but that he had explained that the Farm would be his to work for the rest of his life (T 69.41). Asked whether the statement made by Dr Harry "just came out of the blue, without any preliminary conversation about wills or the future" David replied (T 71.20): "That's correct". 2. David was asked questions directed at obtaining a concession that, whatever Dr Harry had said to David, it was not an offer, in the sense of a promise made in exchange for some promise in return. In this and following extracts, I have abbreviated the transcript in order to focus on what I consider to be significant exchanges: (T 73.16 - 76.35) Q. Then you say you never had another discussion with him about that again. Is that right? A. That's correct. Q. I want to put to you that you did not say to him that you appreciated what he had offered you. You didn't use the word "offer", did you? A. I am going to stay - stick with what I've put in my affidavit, and that's - to the best of my recollection, that is true. … Q. Mr Stone, he didn't impose any conditions on what he was telling you that his intention was, did he? A. The only condition he imposed were the - was the girls would have access to - to the property. Q. But he didn't say to you, "If you stay here, I will make a will that leaves you able to stay as long as you like." He didn't say that, did he? A. I think he did say that, because that's what he expressed to me, was that that's what - what it meant. That's what he was saying to me, was that he had changed his will such that I would be able to stay there for as long as I like to work the farm. Q. But he didn't say to you that you had to do anything to be entitled to whatever he was going to give you in his will. Do you understand? A. Except to - except to continue farming. Q. He didn't say that, though. A. No, no, no, he didn't, no. … Q. No. I'm saying to you that when he told you he was going to give you an interest in his will, he didn't ask you to do anything in exchange for that, did he? A. Beyond farming as I had been farming, is that what you're saying? Q. No. He didn't even ask you to do the farming as you had been farming. A. I think that reasonably would be implied. Q. But he didn't say that, did he? A. No, he didn't say that. … Q. He didn't require you to do anything in exchange for what he said he was going to do. A. Except to continue farming. Q. But he didn't say that, did he? A. I think it - but it was reasonably implied by me. Q. You thought that that's what he meant. A. Yeah, that's right. Q. But he didn't say that to you. A. He didn't say those words. Well, he said so long as I kept - so long as I was there, that life interest existed. Q. But you haven't said that in your affidavit. Just read again what you say in paragraph 19 of your affidavit. A. I've read that. Q. You don't say there that he said to you "if you're living on the farm", or that he imposed any condition on the statement that he was making about what he had decided to do in his will. Do you see that? A. Yeah, I - I - I understand what you're saying. I think - yeah, I - if that's your position, I accept that. … Q. That's your position. A. My position is as is stated and, like I say, I understood it implied that I would - it was on the condition I stayed there to farm. Q. But I'm putting to you that he didn't impose that condition on the statement he made, did he? A. No, no. … Q. He didn't say to you that you had to do anything, or refrain from doing anything, to receive the gift that he was talking about giving you in his will, did he? A. That's correct. Q. And I take it that you knew, at the time of this conversation, that, of course, a person can always change their will. You knew that, didn't you? A. I understand that that's a general state of wills, yes. Q. So you knew that at the time he was telling you about a will he was thinking of making, he might very well make a different will in subsequent years. A. I actually didn't entertain those thoughts. Q. But you knew that that could happen. A. Generally, yes. Q. And - now, in any event, you made no note or record of this statement that you say he'd made. A. No, I didn't. Q. And you had no later conversation with him about it. A. That's correct. Q. And you had no later conversation with anyone about it. A. I can't recall. I won't be - I'm not prepared to say I've not had a conversation with anyone about it, but I'm not prepared to say I know details of any conversation. Second Representation 1. David gave the following evidence in his 24 August 2017 affidavit concerning the second representation: 21. In about 1987 or 1988, again at the dining room table of the Kramer's house on the Colo Property, Harry and I had a conversation and Harry said words to me to the effect: "I don't want to upset you but I am not long for this world. I have been diagnosed with cancer. I have also changed my Will and the girls will not be inheriting this place. Leonie wants the farm transferred to her and whilst I have agreed, it's on the basis she and I have agreed it will go to you, outright, on Leonie's death. Like before, the girls will always have use of the cottage." At this time, Harry also said words to me to the effect: "When you inherit the farm you will be free to do whatever you like with it. You can sell it, borrow money against it; whatever you like." … 23. Within one month or thereabouts after I had the conversation with Harry about the Second Succession Plan I was in the main shed at the Colo Property and Hilary walked into the shed. Hilary said words to me to the effect: "Dad's changed his Will and you're going to get the farm. You're the best person to look after the farm." 1. In the following paragraphs David gave evidence that, before the second representation, he had had doubts about the long-term viability of the share farming arrangement and whether he would remain on the Farm. Those doubts were dispelled when Dr Harry made the representation to him. David acknowledged that he had no other discussions about inheriting the Farm with Dr Harry other than on the two occasions mentioned. No witness was present at either of the discussions. David said that he considered Dr Harry to be a man of his word, and, if Dr Harry said that he would do something, then David expected he would do it. He had experienced that Dr Harry had adhered to the oral share farming agreement. David said that this was an incentive for him to stick to the share farming agreement, as the inheritance would compensate for the meagre income, he was deriving from the share farming agreement. 2. David said in par 30: The Second Succession Plan overcame the negatives and addressed the concerns I had about remaining on the Colo Property because I would inherit the property and therefore have something to show for my efforts and to make up for the poor income. What's more, I believed Harry's word and trusted Leonie would honour the arrangement as he had explained to me. 1. Further, David said in par 32: "I did not question or enquire further with Harry about reducing to writing the Second Succession Plan as I knew Harry and Leonie to be people of esteem, honour and integrity…" 2. The following cross-examination occurred on the subject of the making of the second succession plan. Again, I have abbreviated the transcript: (T 78.22-T 86.23) Q. Now, Mr Stone, I take it that you know that when Harry and Leonie purchased the property, they purchased it as joint tenants. You know that now. A. I know that now. Q. And you know that in a joint tenancy, when one party dies, the other joint tenant automatically obtains the interest of the deceased joint tenant. You know-- A. I understand that now. Q. --that now. And you know that it doesn't matter what's in the will of the joint tenant who dies; the property automatically passes to the other joint tenant. You know that. A. I'm aware of that. Q. Right. Now, having that knowledge - does having that knowledge cause you to doubt what you say in paragraph 21 that Harry told you about his will and Leonie's position? A. Not at all. Q. All right. And you say that he went on to say, he's agreed to transfer the property to Leonie; is that right? A. That's my understanding, yes. Q. But on the basis that it would go to you outright on Leonie's death. A. That's correct. Q. Are you sure that he said that to you? A. That's my recollection. Q. And he said, "Like before, the girls will always have use of the cottage." A. That's correct. Q. So - you understood from that, you say, that Hilary and Jocelyn would always be able to use the house in which the Kramer family had been living; correct? A. That's correct. Q. And that they would be able to do that until they had passed away? A. He actually didn't define it in either way, whether it was my life limited that or their life limited that. He didn't - didn't address that. But I presumed it was, so long as I was there, that would be a condition that I would be respecting. Q. Well, when you say, so long as you were there, wasn't it something that they would be entitled to so long as they wanted to use it? A. So long as I was there. If he promised ownership to me, and I conked out, then, I think, that arrangement probably finishes. Q. What happens if you want to sell it, are you able to sell it? Or are you stopped from selling it because they have to be able to use it, the house? A. No, he said to me - he didn't address that as such, any consequence of that. He addressed the fact that I could do whatever I liked to do it, when I got ownership of the proposition [sic: property]. But he didn't say what - anything about the consequences for his daughters, if that were to happen. Q. Can I just ask you, your belief now is that you're entitled to the ownership of the proposition [sic: property]. Correct? A. That's correct. Q. But subject to Hilary and Jocelyn being able to go up to stay in the house whenever they want. A. That's correct. Q. For how long, how long do they have that right? A. For so long as I am on that property. Q. Again, this was something that he said to you without any type of introduction or discussion, isn't it? A. Well, the introduction was telling me of his medical condition. Q. It wasn't a situation where, for example, you have gone to see him because you were having difficulties making ends meet, from your income from the farm? A. That's correct. Q. It's correct that there had not been any discussion of that nature. I mentioned before how he mentioned this to you. A. That's correct. Q. He didn't ask you to do anything or change what you were doing or stop doing anything in exchange for arranging to give you the farm, when he and Leonie had died? A. Not to my recollection. … Q. Just going back to something that I asked you about a moment ago. The conversation you say that you had with Harry in about 1987 or 1988 was not a conversation in which you had been saying to him that you were finding it hard to make ends meet with the income that you received from the farm, was it? A. That's correct. Q. You had not been complaining to him about inadequate income from the farm at the time that he made the statement to you that you give evidence about in paragraph 21 of your affidavit. A. Other than comments made at each - at the - each quarter when we discussed the situation with the farm and the-- … Q. The reason why you have not given any evidence in your affidavits about that is because you were not complaining to him of that, were you? A. I wasn't complaining to him, no. Q. You were not telling him, even, that you were having trouble with the income, were you? A. That's not true. When we did the quarterly accounts and he looked at the numbers he said - he would look at the numbers and said, "That's not particularly good," or he'd make comments - I would make comments. There were discussions about my financial position. Q. But he was not offering - or he's not telling you that he was going to give the property to you because you were having such a hard time making ends meet on the farm, was he? A. He didn't make any - he didn't make any comment about why he was leaving me the farm, other than he was leaving me the - he decided to leave me the farm. … Q. I want to put it to you that you did not have discussions with him in which you told him that you were having any financial difficulties. A. No, I think that's not correct. Q. And that the income being received from the farm at that time was reasonably reliable and of reasonable amount. A. I'm not sure I'd agree to either of those. … Q. At no time did you ever indicate to him that you were thinking of leaving the farm, did you? A. No, I did not. Q. At no time did you ever threaten to leave the farm. A. I did not. Q. In paragraph 24 of your affidavit you say you had started to have doubts about the long term viability of the share farming arrangement. Do you see that? A. I see that, yes. Q. But you didn't tell him that, did you? A. That's correct. Q. You say you had doubts about whether you would remain on the Colo property. Do you see that? A. That's correct. Q. But you didn't tell him that, did you? A. That's correct. … Q. I want to put to you that that conversation that you set out in paragraph 23 did not happen. A. My response is that that conversation absolutely, certainly happened. … Q. I want to put to you that the conversation that you set out in paragraph 23 didn't happen. If it had happened, it would have been included in the draft of the affidavit sent to Piper Alderman. A. I - I think the - the essence of this is whether or not I stand by that statement, and I do. That conversation took place. Third Representation 1. David gave the following evidence concerning the third representation in his 24 August 2017 affidavit: 33. Harry died in 1988 and shortly after his death Leonie had a conversation with me in the main machinery shed on the Property. We were standing near the driver's door of the Hino Truck. Leonie initiated a conversation where she said words to me to the effect: "Harry always admired your honesty. Harry and I did agree the farm will pass to you upon my death and I want you to know there will also be a sum of money." I said to Leonie words to the effect: "Thank you very much Leone, and for outlining the succession plan." 1. In subsequent paragraphs David acknowledged that Dame Leonie did not advise him what amount of money she would be adding to his inheritance. David did not discuss the third representation or anything arising from her death or estate again with Dame Leonie. David said that the conversation confirmed to him that Dame Leonie was honouring the agreement that Dr Harry told David he had made with Dame Leonie. David then said: 36. On the promise of being left the Colo Property in Harry and then Leonie's Wills, I did not leave the Colo Property and pursue any other employment or develop any new employment skills that would have allowed me to work elsewhere, as all of my siblings had done. I had also restricted my personal and domestic life to stay living on the Colo Property. 37. I did not consider I was receiving any fair or proper remuneration for the work I was doing, but I didn't mind as I was expecting to inherit the Colo Property after the death of Leonie. As Harry had suggested, I knew I would be free to do whatever I would like with it: sell it, borrow money against it, or whatever. I also did not make any attempt to build a superannuation fund, or consider how I might go about purchasing my own home, given my expectation of inheriting the Colo Property. 1. David was cross-examined in the following terms concerning his evidence of the third representation: (T 89.24-94.50) Q. You say, do you, that she just - without any sort of relevant introduction - started a conversation in which she said to you, "Harry always admired your honesty. Harry and I did agree the farm would pass to you upon my death, and I want you to know there will also be a sum of money." Is that right? A. That's correct. Q. So again she just, without any type of lead-in or introduction, started the conversation in which she told you what she had agreed with her husband, who had died not too long earlier. Is that right? A. That's correct. Q. She told you what was going to be in her will. Is that right? A. As much as that detail provides. Q. She told you that, in fact, she was going to give you some money as well as the farm, you say. A. That's correct. Q. This was, again, not a statement made to you because you had been complaining that you could not make ends meet. A. That's correct. Q. Not a statement that responded to any complaint that you made to her about the operation of the farm. A. That's correct. Q. Just came completely out of the blue, is that right? A. That's right. … Q. Going back then, Mr Stone, to the paragraph numbered 33, and what you've called the "third succession plan", if you have that. You made no note of that statement that had been made to you by Leonie. … A. No. … Q. I think you've said that you never spoke to her about the topic of that conversation ever again. A. That's correct. Q. I think before lunch you accepted that it was a conversation or a statement made by her to you, without you having mentioned to her any difficulty that you were having on the farm. A. That's correct. Q. And she did not ask you to do anything, or to refrain from doing anything in return, for making the will in the way that she was suggesting. A. That's correct; and she didn't mention access for her daughters to the farm in the way Harry had. She didn't mention that as part of that conversation; so the - the conversation was different in that respect. Q. You didn't at any later time say to her that you were only staying on the farm because of her statement that she would give the farm to you when she died, did you? A. No, no. Q. I asked you this question before, in relation to the statement made by Harry, after he'd been diagnosed with cancer. But if Leonie had not made the statement to you, which you've set out in paragraph 33, what would you have done? A. Well, I'd repeat the answer I gave in the first you asked the question. It's hypothetical, and because they had given me those assurances, I hadn't considered anything other than staying on the farm. So I can answer a hypothetical, but that's all it will be. Q. Is this the answer, that you may have left, but you never developed any plan about what you would do if you did leave? A. Well, I never developed - never considered leaving. Q. Again, no change to the way the share-farming agreement operated, as between you and her, after that time, except that she increased your bonus to $1500 a quarter at some stage. Is that right? A. That's correct. Q. You have on many occasions told people how much you enjoy living and working on the farm, haven't you? A. It's true. … Q. Let me ask you this, then, Mr Stone, if, as you say, you were only remaining on the farm because of announcements made to you by Harry and Leonie, that they would give the farm to you when they died, how would they have known that that was the reason you were staying there? A. I'm not sure whether I quite agree with the way you're saying that. You're saying I - I only stood there - stayed there because I knew I was getting the farm. I knew I was getting the farm, and that addressed my financial position and the certainty about a house to live in, and all the other associated things. But I still just continued on with farming. And I'm not sure whether you're saying something different. Q. Are you saying that you would have stayed there and continued with the farming even if they hadn't made the statement? A. No, I'm not saying that at all. I'm saying that the promise that they gave me ensured a whole lot of aspects of my life that needed addressing; and I addressed them; and then my enjoyment of the farm and my passion for farming remained. … Q. So you're not saying, in this case, that they knew you were only staying there because you thought you would inherit the farm? A. I'm saying they made the promise, so they knew what I understood was the - was the promise to me; and I was staying because the promise was made to me, and that addressed the issues that I had. So I'm not sure what more you're asking, in terms of that question. Q. You call it a "promise". But what, in fact, happened was that, without any introduction or comment from you or complaint from you, you say that each of Harry and Leonie told you that they would leave the property to you. A. That's correct. … Credibility of David as a witness 1. In Withyman v NSW [2013] NSWCA 10 at [65] , Allsop P (with whom Meagher and Ward JJA agreed) made reference with apparent approval to the "helpful discussion of credibility" by Lord Pearce in Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd's Rep 403 at p 431 as follows: "Credibility" involves wider problems than mere "demeanour" which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. Credibility covers the following problems. First, is the witness a truthful or untruthful person? Secondly, is he, though a truthful person, telling something less than the truth on this issue, or, though an untruthful person, telling the truth on this issue? Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and, if so, has his memory correctly retained them? Also, has his recollection been subsequently altered by unconscious bias or wishful thinking or by overmuch discussion of it with others? Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness. And motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process. And in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part. 1. I will record at the outset that I have no hesitation in accepting David's evidence as being truthful and as reliable as the passage of time will permit. The findings that I make concerning David's credibility as a witness are based upon notes that I made in the two days following the completion of the hearing. 2. Hilary's senior counsel said of David in final submissions, at T 333.10: …Having regard to the evidence that he has given in this Court, and in my respectful submission, your Honour would conclude that he is intelligent, he's articulate, he is knowledgeable about farming matters. He's not a person who is inexperienced. He is not a person who is incompetent. He is not a person who is unable to appreciate a problem that might emerge, and to devise a solution to it. He made some concessions where appropriate, in his evidence. He wasn't a person who was inflexible, or dogmatic, in any way… 1. I agree! Senior counsel made this submission in support of an argument in defence of Hilary's claim, but I consider that the concession was well made. Though it appears that David was not academically inclined in his younger years, he appears to be a man of considerable intelligence. 2. David was an attentive and focused witness, whose answers were stated with an immediacy that engendered confidence that David was speaking from clear memory. If David could not remember, he said so. David did not embellish his answers, and the promptness of his responses excluded any appearance of equivocation. His evidence was conceptually discriminating, he made concessions where appropriate, and he was unshaken on all significant points. 3. The evidence given by David was, in my view, devoid of embellishment. It would have been easy for a plaintiff in David's position to give evidence that improved his prospects of success, knowing that Dr Harry and Dame Leonie were not alive to contradict him. David's case was that Dr Harry and Dame Leonie made three representations to him concerning his inheritance of the Colo Property. David considered those representations to be promises, even if only by implication. David considered that Dr Harry and Dame Leonie were distinguished people who would stand by their word. David volunteered in his evidence in chief that only three representations had been made, and that he had not discussed the issue further with Dr Harry or Dame Leonie. David conceded without hesitation that neither Dr Harry nor Dame Leonie had used the word "promise" or any expression with equivalent meaning. They had not made the representations in the context of explicit complaints by David that his income from share farming was unsustainable. They made the representations 'out of the blue'. The representations were not made overtly in exchange for some return provided by David, or even an express agreement by him to continue the share farming operation. These concessions may diminish David's prospects of succeeding on his claim. I am satisfied that David was intelligent enough to understand, and that he did understand, that the concessions that he readily made were not in his own interests. Yet he made them without hesitation. Although David's recollection of the words used by Dr Harry and Dame Leonie in making the representations that David claimed were made must be fallible, given the length of time that has passed, I am satisfied that David's evidence was given honestly and with a genuine recollection of David's understanding of the meaning and effect of the words used and in which David had believed since the time that the representations were made. 4. When asked whether his recollection was fairly hazy about the conversations he had with Dr Harry, David said (T 69.50): "They're not hazy. If I don't clearly recall now something you're questioning me about, I will say so". I am satisfied that David did his best to adhere to that undertaking. Supporting evidence of David's witnesses 1. David's brother, Phillip Gordon Stone, and David's sister, Joy Ilena Stone, gave evidence relevant to the issue of whether Dr Harry made representations to David concerning his inheritance of the Farm. Phillip said: 28. I recall Dave had a telephone conversation with me where he said words to the effect "Harry's leaving the farm to me, and Leonie will have access." I cannot recall the year of the conversation but I do recall it occurred before Harry passed away because I remember my father and mother leaving Canberra to attend Harry's funeral and the conversation occurred before that date. 1. Joy said: 17. … I recall visiting my parents' home in Canberra. I walked into the kitchen where my father said to me words to the effect that: "Harry is leaving the farm to David". Both my parents were present in the kitchen and I do not know whether they had just been on the telephone to David before I arrived, but it was the first time I heard of a succession plan for the farm for David. 18. To the best of my recollection the words I attribute to my father in paragraph 17 were said to me between late 1985 and late 1987. These words were said to me at a time when David had been living on the farm and had been divorced from his first wife, Anne, for a number of years. My parents lived in the Canberra suburb of Kambah from 1976 until late 1984 and Gowrie from late 1985 until late 1987… My father built the houses in both Kambah and Gowrie and the layout of the homes was the same but my stronger recollection is that it was in the kitchen of the home at Gowrie. 19. Sometime after I had been told of the succession plan by my father, as referred to in paragraph 17, I spoke to David on the telephone. During that telephone conversation David said to me words to the effect: "The arrangement is that Harry will leave the farm to me and Leonie is to have access to her house until she dies." 1. Phillip and Joy were not required for cross-examination. Hilary submitted at T 324.42 that this evidence provided no corroboration that Dr Harry made any representation as claimed by David, because the evidence concerned statements they say were made to them before the late 1980s when David said that the second representation was made to him. They were statements made at a time when, according to David, the only thing which he had been told by Dr Harry was that he would be able to live on the property for as long as he liked. That was inconsistent with the witnesses having been told that Dr Harry was leaving the Colo Property to David. 2. I do not accept that this unchallenged evidence provides no corroboration for the evidence given by David as to what he was told by Dr Harry. The witnesses are much more likely to have remembered being told that David would inherit the Colo Property than they were likely to remember precisely when the event occurred or where they were at that time. Given the time at which the events occurred, it is unsurprising that the witnesses' recollections are imperfect. That is a factor that reduces the weight of the evidence. However, the evidence remains significant, because of the important and unusual subject of what the witnesses were told. There is no reason for the Court to reject the evidence completely. 3. David's former de facto wife, Maureen Anne Edwards, also gave evidence that tends to corroborate David's evidence concerning the representations that he claims were made to him by Dr Harry and Dame Leonie. After she explained in her affidavit why she had become very worried about her and David's financial future because of the inadequacy of the income earned by David from farming, Maureen said: 34. … I remember thinking words to this effect "How are we going to make ends meet with five mouths to feed and clothing and school fees?" Those words, or words to that effect, were recurring in my mind and I began to cry. Dave started to console me. I sat on his knee and was crying and as I was crying I said to Dave words to the effect "I just don't see how we can make ends meet." Dave then said to me words to the effect, in a calm and quiet voice, "Don't worry, it's all been taken care of. Harry has arranged to leave the farm to me." My immediate reaction was a sense of relief. I had never heard Dave say words to this effect to me or anyone else. I said words to the effect to Dave "What do you mean?" and Dave said words to the effect "It's been arranged that I am to be left the farm. I'd appreciate if you didn't mention this to anyone because its none of their business. 1. Maureen was also not required for cross-examination. She did not give specific evidence as to when this conversation occurred. She said that she lived on the Farm with David for about seven years from 1989. 2. David's present partner, Julie Anne McBride, gave evidence in response to evidence given by Hilary in pars 46 and 53 of her affidavit, to the effect that the first time Hilary heard anything about any agreement between her parents and David about David inheriting the Farm was from Julie on 7 August 2014. Julie said that the conversation happened on 4 August 2014 and not 7 August 2014. I will set out the relevant parts of Julie's version of the conversation referred to by Hilary: Hilary: Hi Julie, how are you? Me: How do you think? You've broken my man. Hilary: Not me. Me: You knew about all this. Your father would be turning in his grave. It's disgusting. … Hilary: Julie, Mum never told us anything. Me: But you knew about all this. I thought you were Dave's friend. Hilary: We all like you and Dave. I think there's been a misunderstanding. Me: Both your parents told Dave he was going to get the farm. Your dad and Dave had a gentleman's agreement and your mum told Dave that Harry had admired his honesty and she was going to leave Dave the farm. And at the time you said to Dave he was the best person to look after it. Hilary: But dad changed his mind. He left him some money. Me: He's been tricked into staying. Hilary: We didn't realise that's why he stayed so long. … 1. Julie gave evidence in cross-examination that she had made a note of her conversation with Hilary on the day it occurred. She said that she had thrown out the note after she had transcribed the conversation into a hand-written document that she provided to David's solicitors. 2. Exhibit P2 is a hand-written document prepared by Julie on 30 August 2018 onto which, according to Julie, she had transcribed the contents of the contemporaneous note of her conversation with Hilary on 4 August 2014. 3. Julie also gave evidence, at T 171.28, that she had made a note in her calendar that David told her on 4 February 2014 that he had learnt from Hilary that he would not inherit the Farm. 4. The evidence given by David's witnesses did not directly corroborate his evidence concerning the making of any of the representations allegedly made by Dr Harry and Dame Leonie. However, taken as a whole, it is evidence that supports an inference that David genuinely believed that the collective effect of the representations was that the Colo Property would be left to him in Dame Leonie's will. The fact that Maureen was not called for cross-examination reinforces the strength of the inference that can be made on the basis of her evidence. It supports the view that I had formed, regardless, of David's evidence that he genuinely believed that Dr Harry and Dame Leonie had made the representations to him that he alleges were made, and that the effect of those representations was ultimately that the Farm would be left to him in Dame Leonie's will. Relevant evidence of Hilary's witnesses Hilary's evidence 1. David said in his 24 August 2017 affidavit at par 23 that, in about 1987 or 1988, about a month after he had the conversation with Dr Harry about the second representation, he had a conversation with Hilary at the Colo Property in the main shed, during which Hilary said: Dad's changed his Will and you're going to get the farm. You're the best person to look after the farm. 1. Hilary denied, at par 50 of her 14 August 2018 affidavit, that she made this statement to David. 2. However, Hilary volunteered the following evidence in cross-examination, at T 208.4: WITNESS: Can I - I feel I should say something here. I did HIS HONOUR: Well, that's a matter for counsel; I'm not intruding. ELLISON Q. I'm not going to stop you if you wish to say something. A. I did say something to David, and it was after my father's death. And I said something like, "Dad's left you the farm." Now, it was a crazy thing to say at the time, because it hadn't come from my father; it hadn't come from my mother. I recall the circumstances. What happened was, it was about a fortnight after our father's funeral. I had driven up to the farm with my husband and my two - my - my son Ben was about two months old. And we stopped in the carport of our cottage. And David approached me. My recollection - you know, this is a long time ago - but my recollection of it is that I'd just got out of the car. Ben was so little that he was in one of these car capsules, little baby capsules, and I was holding him, and David approached me. He didn't say anything. I don't recall him saying anything. But he looked very - he looked sad, I suppose. And I just said, "Dad's left you the farm," or words to that effect, and it just came out of my mouth, and I'd given it no thought before. But what - when I think - really when I - I've had to give a - a lot of thought to this, as to why did I say that, and when I - what happened - my sister told me that in the week before our father died - and our father was virtually bedridden in the week before he died - David came down to visit him at home. I wasn't there. I wasn't really at home. My sister was living at home at the time. She told me that - but she wasn't there when David was there - she told me that when she came home after work, our father looked really - he looked emotional. He had - his - she said his eyes were moist, was how she explained that. And she told me that our father said to her, "I wish David had a wife." And when she told me that, it - it - it obviously really affected me, because I'd never seen my father emotional. Like, he'd never - he wasn't a person who really showed emotional much. And all I can think is that - I mean, I - I recall how I felt when my father died. I was present when he died. I have that strange sort of disconnected feeling that you have when a parent particularly has just died. His funeral was very soon after. He - he died on a Saturday, and his funeral was the following Tuesday. And - and I - I was still - I was breastfeeding my baby, he was so little. He was - he was only six weeks old when Dad died. I had this - I think I had this sort of confusion in my mind when my sister said about Dad being emotional, that - that maybe Dad made some kind of deathbed - I think I was getting confused what I'd learnt in law school about deathbed confessions or - or, you know, changes of heart, you know, on the point of death, or something. I - I had a very-- Q. I think it's deathbed benefits, not confessions. A. Something like that. Because it was completely unjustified for me to say that, because my father never spoke to me about what he was going to do with the farm in relation to David. My mother never spoke to me about it. And all I had to go on was my sister saying, "Dad was emotional and said, 'I wish Dave had a wife.'" That was it. So when - that - when my - when I found out that I was - that my - that the farm was coming to me in that meeting with Hunt & Hunt, I had in the - I think it just triggered this memory once I'd, you know, went up to the farm the next time and - and saw Dave. I think it just triggered in me this memory that I had said this to David. So apart from the fact that I was hardly ever there and I had - and I knew that it was David's home - and everyone in the family was happy for him to stay there as long as he liked, that always was the case - I - in the back of my mind, I'd - I - I thought, "I wonder if, when I said that to David, he may have - he might be thinking, 'Oh, well, the farm's gunna be mine.'" I mean, I don't - had no knowledge of any of the other things that David has said since about promises being made by my father. I had no - no idea of any of that before my father died and things Q. Your dad died in October 88. A. He did. 1. The context in which this unexpected disclosure occurred was in cross-examination, commencing at T 202.28, about evidence given by Hilary commencing at par 80 of her affidavit concerning the circumstances in which Dame Leonie had executed a power of attorney in favour of Hilary at the office of Dame Leonie's solicitors. The evidence included the following: 81. During the meeting I learnt for the first time that I was to inherit the Farm. Prior to this I had not had any awareness of any aspect of my mother's testamentary intention. 82. During the meeting there was a discussion, initiated by my mother, about her Will and the Farm. My mother asked the lawyers: Leonie: If I leave the Farm to David will Maureen be able to make a claim on it? Neville: As David's ex de-facto and the mother of his child she could make a claim. Leonie: Well I absolutely do not want to risk the Farm going to Maureen. 1. Hilary said at par 86 that, when Dame Leonie raised the question about Maureen, she thought that what Dame Leonie was going to do with the Farm "was in the balance". Hilary said that Dame Leonie's decision "appeared to me to hang on that answer", being the statement of the solicitor that, if the Farm was left to David, Maureen might be able to make a claim on it. Hilary also gave evidence, at par 88, of having called Jocelyn to seek advice on whether she should tell David that Hilary was to inherit the Farm. According to Hilary, the conversation was as follows: Me: I've had a meeting with Mum and the solicitors from Hunt and Hunt and have learnt that Mum's left the Farm to me. I feel uncomfortable knowing this, in case Dave thinks he's getting the Farm. Should I tell him do you think? Jocelyn: It isn't up to you to tell David what Mum has decided in her will. I don't think it's necessary for you to raise this with David. 1. Hilary gave evidence in cross-examination, at T 204.11, that, before the meeting at the solicitors' office, Dame Leonie had asked her whether, if she were to leave the Farm to David, Maureen could make a claim on it. Hilary said to Dame Leonie that she should ask her lawyers. The following exchange then took place at T 204.29: Q. Presumably, if there was no Maureen, or Maureen wouldn't have made a claim, she was clearly contemplating leaving the farm to David. A. Well, I don't know, really. Q. Well-- A. I mean, clearly she was contemplating leaving the farm to David. She wouldn't have asked the question otherwise. So-- Q. And the tenor of the conversation was, if there'd been no Maureen, or no possibility of a claim by Maureen, your mother was intending to leave the farm to David. And it's-- A. I suppose you could infer that. Q. Well, she as good as said it, didn't she? A. If - I don't know if you could say that, but - but certainly it was - it seemed to be the reason why she - she was certainly considering - you'd have to say, wouldn't you? - leaving the farm to David, or she wouldn't have asked that question. 1. Hilary accepted at T 207.10 that the advice given by the solicitors about the possibility that Maureen could make a claim "maybe altered her thinking". 2. Hilary gave evidence at T 207.38 that she thought that David might inherit the Farm because Hilary went up to the Farm very infrequently and Jocelyn was in a nunnery and "David has been living there for 40 years. It would be natural that he may think that". 3. Hilary gave evidence to the effect that she and Jocelyn had spoken over the years about the possibility that the Farm may be left to David. Hilary said that she was told by Jocelyn that Jocelyn thought that the Farm should be left to David. Hilary said that Jocelyn told her that Jocelyn had raised with their parents the subject of the Farm being left to David. 4. A major feature of Hilary's defence was her attempt to create an aura of deep improbability as to the likelihood that two eminent professional people in the position of Dr Harry and Dame Leonie would represent to a young share farmer in the position of David that they would leave the Farm to him by will. Considered as a general proposition, it is indeed improbable that farm owners would promise to leave their farm to an outsider with whom they have a share farming agreement. However, the truth of the proposition must depend upon all of the circumstances of the particular case. 5. The evidence given by Hilary dispels the notion that there is anything fundamentally improbable about Dr Harry and Dame Leonie telling David that they would leave the Farm to David in the will of the last one of them to die. 6. First, I do not accept that the statement that Hilary admitted in cross-examination she made to David about the effect of Dr Harry's will was a spontaneous aberration that had no basis in Hilary's knowledge of the intentions of her parents. 7. The evidence does not permit any finding as to whether the disclosure made by Hilary to David had any connection with the conversation the subject of par 23 of David's affidavit to which reference is made above. 8. The content of Hilary's disclosure is strange, because it was to the effect that Dr Harry had left the Farm to David in his will, when that was contrary to the terms of the will and Dr Harry's agreement with Dame Leonie to leave the Farm to her. Hilary provided no basis for her understanding that the Farm had been left to David. Nonetheless, Hilary appeared by her evidence to be resolute that she had made a statement to David after Dr Harry's death that he had inherited the Farm. 9. I do not accept Hilary's explanation of the circumstances that she suggests caused her to invent the idea that David would inherit the Farm. The thought process involved is simply too irrational. In my view, the only probable source of any belief entertained by Hilary that David would inherit the Farm is statements made by her parents, whether directly to her or in conversations between them that were overheard by Hilary. 10. Hilary's recollection that, at the meeting at Hunt and Hunt, Dame Leonie initiated a conversation about her will by asking for advice about the consequences of Dame Leonie leaving the Farm to David suggests at least that that possibility was a real one in Dame Leonie's mind. 11. The conversation that Hilary had with Jocelyn about her feeling uncomfortable about knowing that the Farm would be left to her "in case Dave thinks he's getting the Farm" also suggests that Hilary must have had some basis in her experience for thinking that there was a real possibility that David would expect to inherit the Farm. Jocelyn's evidence 1. Jocelyn gave evidence in her 14 August 2018 affidavit of a conversation that took place between her parents and herself about one month after Dr Harry had unsuccessful surgery for cancer. The conversation included: Me: … What will you do about the Farm? Would you leave it to David? He is living and working there. My father: We'd have to think carefully about that. Presumably you and Hil and Mum would still want access to the Farm. Me: Yes, we would. My mother: Yes. My father: That could become awkward. 1. After discussing the pros and cons, Dr Harry then said: "On balance, it seems most practical to let the Farm pass to Mum. Whatever she decides to do about the Farm later on is her decision." 2. This evidence is of significance to the argument put by Hilary, at T 323.44, that David's claim that he was told by Dr Harry that Dr Harry would leave the Farm to David assumed that Dr Harry did not know that he and Dame Leonie owned the Farm as joint tenants, and that Dr Harry did not know the significance of a joint tenancy. Hilary submitted that the representations alleged by David would be inconsistent with the actual legal effect of the ownership that he had, whereby the Farm would pass to Dame Leonie by survivorship. Notwithstanding that argument, Hilary acknowledged, at T 324.19, that Jocelyn had given the evidence of her conversation with her parents that is set out above. The terms of that conversation establish that, notwithstanding that the Farm was in joint ownership, Dr Harry considered the issue of the title to the Farm after his death as if it was within his power to bequeath the Farm to David. There was no evidence that Dame Leonie challenged that position, as she did not say that the Farm would pass to her by survivorship. Rather, the evidence is that Dame Leonie relied upon her stated preference for keeping ownership of the Farm. The terms of the conversation would suggest that, notwithstanding the joint tenancy, Dr Harry and Dame Leonie treated the Farm as if it was the property of Dr Harry. 3. In any event, a representation or assumption as to a legal position or state of affairs which later proves to be mistaken or incorrect will not preclude or impede an equitable estoppel: Waltons Stores at 415–416; Foran v Wight (1989) 168 CLR 385 at 433-435; Commonwealth v Verwayen (1990) 170 CLR 394 at 413 and 445. The Court cannot draw an inference of inconsistency from this aspect of David's evidence. 4. The fact that Jocelyn specifically asked Dr Harry whether he would leave the Farm to David strongly suggests that, within the Kramer family, events had occurred over the life of the share farming agreement that caused the possibility to be to the front of Jocelyn's mind, when she was talking to her father about his testamentary intentions, that he might have intended to leave the Farm to David. 5. Jocelyn gave evidence at par 47 of her affidavit about a conversation that she had with Dame Leonie in about June 2006, which was in the following terms: My mother: I will set up a trust to provide for you in the event that you leave the Carmelites. Me: That's thoughtful of you, Mum. What are you planning to do with the Farm? Are you leaving it to David? My mother: No. I'm not leaving it to David. I am considering leaving the Farm to the University. Me: The University will probably just sell the Farm as they already have University farms at Camden. Our Farm is less accessible for them. My mother: I don't want the Farm to be sold. Me: Why aren't you leaving it to David? My mother: I have thought about that and I am not leaving the Farm to David because the solicitors have told me that Maureen could make a claim on it. I absolutely do not want any possibility of Maureen getting the farm. I have left David a lump sum of $75,000 instead. Me: I don't think $75,000 is an adequate amount given his longstanding connection to our family. What will happen if he becomes unable to work as he gets older? I think you should increase it. My mother: OK. I will think about that. 1. While, if the conversation occurred in these terms, it was inconsistent with Dame Leonie believing or remembering that she had made a binding representation to David shortly after Dr Harry's death that she would leave the Farm to him in her will, it is consistent with Jocelyn having an understanding that there was a real probability that Dame Leonie would leave the Farm to David. Context in which the representations were allegedly made 1. According to Hilary's evidence, her parents bought the Farm in 1969. 2. I infer that Dr Harry became aware, when David's father terminated the formal share farming agreement that he had with Dr Harry and Dame Leonie, that he did so because he considered that he could not make a sufficient living from the share farming agreement to properly provide for himself and his family. 3. As Hilary described it in her evidence, Dr Harry was a pathologist, teacher, medical administrator and researcher. He was the founding director of the Institute for Clinical Pathology and Medical Research in Lidcombe. Dr Harry was also involved in the development of the Institute's operations at Westmead Hospital. 4. At par 24 of her 14 August 2018 affidavit, Hilary described Dr Harry's interest in farming in the following terms: My parents were both involved in and enjoyed farming and working with Dave. My father took a keen interest in the operations of the farm. He read The Land and kept abreast of market trends… My Father had regular conversations with Dave about what crops to plant and both my parents were very appreciative and reliant on Dave's knowledge and skills… 1. Hilary gave evidence that Dame Leonie was a Professor of Australian Literature at the University of Sydney. Dame Leonie also held many other august positions for which she was renowned. The evidence was not clear about the positions held by Dame Leonie in the period up to shortly after Dr Harry's death. 2. David's evidence, in par 11 of his 24 August 2017 affidavit, was that, at around the time when his father decided to leave the Farm, Dr Harry approached David to ask him if he would take over the share farming arrangement and David agreed. 3. Jocelyn's evidence, based upon conversations that she said she heard her parents having, was that David had asked Dr Harry to let him return to the Farm, but Dr Harry was reluctant to agree, because David would be socially isolated at the Farm and life as a farmer may be too limiting: 14 August 2018 affidavit pars 17 to 19 and 22. Jocelyn claimed that David "pressed" Dr Harry to let him return to the Farm. 4. Hilary also claimed, at par 54(f) of her 14 August 2018 affidavit, that Dame Leonie "was not reliant on Dave". She asserted that, if David left the Farm, Dame Leonie had resources at her disposal to seek help to find a replacement share farmer. Hilary said that Dame Leonie: "had sufficient means to ensure the Farm continued to operate with the assistance of an alternative share farmer". 5. Hilary did not provide any objective basis for this claim. I accept that Dame Leonie had the resources that allowed her comfortably to maintain the operation of the Farm notwithstanding that it was a loss-making venture. However, I am not willing to accept that Dame Leonie could readily have found an alternative farmer ready to enter into a share farming agreement in respect of the Farm, given the consistent difficulties that were experienced in making the Farm a viable commercial enterprise. David's father was not able to conduct a conventional share farming operation successfully. If Dr Harry and Dame Leonie had been able to enter into a conventional share farming agreement with some farmer other than David, who had the interest and the resources necessary to conduct a successful conventional share farming operation on the Farm, it is not improbable that they would have entered into such an arrangement instead of the share farming agreement with David. 6. David was not truly challenged in cross-examination about his evidence of the circumstances in which he entered into the share farming agreement: see T 59.33 Q. It suited you, didn't it, to go back and to work on the farm, where you'd lived for many years, and to do the sort of work that you'd seen your father do, and that you had helped him do? A. It suited me to be practical in my interest in farming, rather than academic. Q. It was you who really suggested to Mr Kramer that you would take over when your father left, wasn't it? A. That's not true. Q. If he suggested it to you, it was certainly an offer that you took up very happily, wasn't it? A. That's true. 1. David accepted in cross-examination at T 60.37 that he was aware, when he started share farming, that his father had left because of an inability to earn enough money for him to support his family with. However, David denied that he entered into the share farming agreement knowing that there would only be a relatively modest income. David explained, at T 60.46, that he had an expectation that he could achieve a better outcome than what his parents had achieved, by doing things differently to the way his father had done things. David then explained the different farming techniques that he thought might generate greater income from farming the Colo Property. 2. It appears from the evidence that David's hope that he could improve the farming operation and generate a satisfactory income was not realised. 3. The evidence that is available concerning the income that David received over the period that he farmed the Colo Property under the share farming agreement is capable of shining a light on the true nature of the agreement, as it must have been understood by David on the one hand and Dr Harry and Dame Leonie on the other hand. As will be seen, the attack that Hilary has made on David's competence as a farmer has largely been supported by the evidence of her expert agronomist, who has assumed that the farming operations were undertaken by a farmer with competent but not exceptional managerial skills, but who also had the resources to carry on the operation efficiently. The evidence of the income that David received will illustrate the reality of David's capacity to devote resources to the share farming operation. In this regard, Dr Harry and Dame Leonie must have been well aware that David started off with nothing. 4. It will also be useful to consider the significance of the evidence concerning the 'bonuses' that David received over the period of the share farming operation. As noted above, Hilary pleaded in par (d) of the particulars to par 22 of her amended defence that the payment of the bonuses to David was one of the reasons why it was not unconscionable for Dame Leonie to have resiled from her representation to David (assuming it had been made). This claim treats the payments of bonuses as if they were genuine bonuses, over and above a proper level of remuneration for the work done by David. The validity of that claim may be assessed having regard to the available evidence concerning the income received by David. 5. The evidence of the level of income enjoyed by David at the time the representations that David claims were made to him by Dr Harry and Dame Leonie may also have a bearing on the likelihood that those representations were made in fact, and that David continued to farm the Colo Property in the expectation that the representations would be honoured. The more obvious that it may have been to David on the one hand, and Dr Harry and Dame Leonie on the other, that the income that David was capable of earning under the share farming agreement was insufficient as a living wage, the more likely it is that Dr Harry and Dame Leonie would have made the representations claimed. Hilary submitted that there was "an inherent implausibility about the first succession plan having occurred" (T 324.11). Hilary submitted that "neither Harry nor Leonie intended or knew that the plaintiff was only staying on the property because of the statements that have been made to him" (T 329.44). There is force in these submissions, but that force may be an illusion dependent on an unexpressed assumption that the return that David was seen to be enjoying from conducting the share farming operation on the Colo Property was sufficient to make it improbable that owners in the position of Dr Harry and Dame Leonie would volunteer such an unusual additional consideration for David's continuing to farm the property. There is a danger that David's evidence concerning the making of the representations may be rejected because of the adoption of a false assumption as to the likelihood that such representations would have been made. 6. The following table contains an analysis of the records that were in evidence (so far as they were legible) of the income received by David from the commencement of the share farming agreement. F/Y CB Q1 Q2 Q3 Q4 Total 1976 2901 414.41 1,783.70 363.5 -85.1 1976 2902 325 325 455 455 1976 2904 739.41 2,108.70 818.5 369.9 4,036.51 1977 2909 792.94 1,990.51 404.44 33.69 1977 2910 455 455 455 455 1977 2912 1,247.94 2,445.51 859.44 488.69 5,041.58 1977 2913 1978 2920 97.56 1,251.34 1978 2923 455 455 1978 2904 552.56 1,706.34 2,161.17 346.82 4,766.89 1979 2942 258 729.7 1,564.40 1,029.92 1979 2943 500 500 500 500 1979 2944 758 1,229.70 2,064.40 1,529.92 5,582.02 1979 2945 1980 2952 514 785.75 3,273.94 726.06 1980 2953 500 500 500 500 1980 2954 1,014.00 1,285.75 3,773.94 1,226.06 7,299.75 1980 2955 1981 2964 46.52 1,002.19 2,608.78 610.97 1981 2965 500 500 500 500 1981 546.52 1,502.19 3,108.78 1,110.97 6,268.46 1982 2972 255.7 4,021.41 729 998 1982 2973 500 500 500 500 1982 755.7 4,521.41 1,229.00 1,498.00 8,004.11 1983 2980 3,867.22 600.52 1,590.35 1622.17 1983 2981 (?) 699.85 600 600 600 1983 4,567.07 1,200.52 2,190.35 2,222.17 10,180.11 1984 2988 2,084.56 92.43 4,512.19 1,496.06 1984 2989 600 600 600 600 1984 2,684.56 692.43 5,112.19 2,096.06 10,585.24 1985 2997 4,605.69 2,017.66 2,549.21 2,738.54 1985 2998 600 600 600 1,000.00 1985 5,205.69 2,617.66 3,149.21 3,738.54 14,711.10 1986 3007 2,416.07 921.36 3,477.68 2,284.31 1986 3008 1,000.00 1,000.00 1,000.00 1,000.00 1986 3,416.07 1,921.36 4,477.68 3,284.31 13,099.42 1987 3017 1,019.76 1,850.87 827.74 1,455.56 1987 3018 1,000.00 1,000.00 1,250.00 1,250.00 1987 2,019.76 2,850.87 2,077.74 2,705.56 9,653.93 1988 3026 3,388.09 2,050.73 4,936.13 2,653.79 1988 3027 1,250.00 1,250.00 1,250.00 1,250.00 1988 4,638.09 3,300.73 6,186.13 3,903.79 18,028.74 1989 3034 565.29 1,255.65 5,494.00 776.61 1989 3035 1,250.00 1,250.00 1,250.00 1,250.00 1989 1,815.29 2,505.65 6,744.00 2,026.61 13,091.55 1990 3040 239.31 555.5 2,490.52 342.15 1990 3041 1,250.00 1,250.00 1,250.00 1,250.00 1990 3042 1,489.31 1,805.50 3,740.52 1,592.15 8,627.48 1991 3046 1,583.50 -463.51 2,104.40 2,729.50 1991 3047 1,250.00 1,250.00 1,250.00 1,250.00 1991 3048 2,833.50 1,713.51 3,354.40 3,979.50 11,880.91 1992 3053 2,140.76 2,435.12 1,485.57 1,810.96 1992 3054 1,250.00 1,250.00 1,250.00 1,250.00 1992 3,390.76 3,685.12 2,735.57 3,060.96 12,872.41 1993 3060 4,037.65 551.38 3,290.12 1,150.00 1993 3061 1,250.00 1,250.00 1,250.00 1,250.00 1993 5,287.65 1,801.38 4,540.12 2,400.00 14,029.15 1994 3068 370.09 5,527.39 3,010.53 2,342.00 1994 3069 1,250.00 1,250.00 1,250.00 1,250.00 1994 1,620.09 6,777.39 4,260.53 3,592.00 16,250.01 1995 3075 2,229.67 1,948.05 4,606.50 3,708.47 1995 3076 1,250.00 3,570.00 1,250.00 1,250.00 1995 3077 3,479.67 5,518.05 5,856.50 4,958.47 19,812.69 1996 3083 5,043.85 2,791.20 2,135.86 911.73 1996 3084 1,250.00 1,250.00 1,250.00 1,250.00 1996 3085 6,293.85 4,041.20 3,385.86 2,161.73 15,882.64 1997 3090 10,185.80 4,605.25 2,042.48 4,630.86 1997 3091 1,250.00 1,250.00 1,250.00 1,250.00 1997 3092 11,435.80 5,855.25 3,292.48 5,880.86 26,464.39 1998 3096 6,808.51 550.12 3,487.60 1,773.60 1998 3097 1,250.00 1,250.00 1,250.00 1,250.00 1998 8,058.51 1,800.12 4,737.60 3,023.60 17,619.83 1999 3103 1,418.00 1,191.00 3,478.00 3,103.31 1999 3104 1,250.00 1,250.00 1,250.00 1,250.00 1999 2,668.00 2,441.00 4,728.00 4,353.31 14,190.31 2000 697* 8,504.63 654.1 4,229.43 922.91 2000 696* 1,250.00 1,250.00 1,250.00 1,250.00 2000 695* 9,754.63 1,904.10 5,479.73 2,172.91 19,311.37 2000 694* 2001 702* 5,090.40 1,701.08 1,582.00 390.55 2001 701* 1,250.00 1,250.00 1,250.00 1,250.00 2001 700* 6,340.40 2,951.08 2,832.00 1,640.55 13,764.03 2001 699* 2002 3110 4,366.50 2,841.98 1,400.00 190.55 2002 3111 1,250.00 1,250.00 1,250.00 1,250.00 2002 5,616.50 4,091.98 2,650.00 1,440.55 13,799.03 2003 712* 3,407.77 3,557.32 3,779.00 3,400.77 2003 711* 1,250.00 1,250.00 1,250.00 1,250.00 2003 710* 4,657.77 4,807.32 5,029.00 4,650.77 19,144.86 2003 709* 2004 717* – – – 2004 716* 1,250.00 1,250.00 1,250.00 3,750 2004 715* 1,250.00 1,250.00 1,250.00 2005 722* – (?) 100.00 – – 2005 721* 1,250.00 1,250.00 1,250.00 1,250.00 2005 719* 1,250.00 1,350.00 1,250.00 1,250.00 5,100.00 2006 727* 4,706.00 1,184.00 – – 2006 726* 1,250.00 1,250.00 1,250.00 1,250.00 2006 725* 5,956.00 2,434.00 1,250.00 1,250.00 10,890.00 2006 728* 2007 733* 1,734.00 3,319.00 – – 2007 732* 1,250.00 1,250.00 1,250.00 1,250.00 2007 731* 2,984.00 4,569.00 1,250.00 1,250.00 8,833.00 2007 730* 1. Notes: 1. The headings in this table are: 1. F/Y (financial year ending on 30 June in the stated year). 2. CB (Court Book references). 3. Q1 to Q4 (September, December, March and June quarters). 1. Hilary gave evidence in par 17 of her 14 August 2018 affidavit that the documents exhibited at tabs 4 to 7 were handwritten farm account books prepared by Dr Harry and Dame Leonie, and that tabs 9 to 14 were handwritten share farming account summaries prepared by Dr Harry and Dame Leonie. The documents relevant to some years were not included, and apparently are missing. 2. The information in the table is primarily taken from the documents at tabs 5 to 7, which are in the form of meticulously prepared accounts. Those documents cover the period up to the end of the 2002 financial year, with 2000 and 2001 missing. I have been able to augment the table using the documents at tabs 9 to 14 (although taken from the instructions to Hilary's expert agronomist). In these cases, the Court Book references are indicated with an asterisk. The available records did not permit a continuation of the table after 2007 (although there were some records for the later period when Hilary was Dame Leonie's attorney). 3. The first line for each quarter in the table sets out David's share of the income after deduction of his share of the fuel cost. The second line sets out the amount of the bonus payable to David at the time. The records for each quarter include calculations that involve refunding money to David for expenses paid by him and charging David for income received that had not been banked by him at the time into the Kramer bank account. I have ignored these refunds and charges as they do not reflect David's income. This approach is confirmed by the record at Court Book 2904, which separately lists David's income each quarter for the financial years 1976 to 1978 in a way that agrees with the figures that I have included in the table. 4. David's income for the third and fourth quarters of the 1978 financial year had to be taken from the document at Court Book 2904. 1. Hilary tendered evidence of the revenue earned from the share farming operation for the years in which records were available. The amounts of revenue received were also converted into equivalent 2019 figures using an inflation calculator based upon CPI increases published by the Reserve Bank of Australia. The inflation calculator was tendered into evidence. That being the case, I have used the inflation calculator to calculate and set out in the following table the annual income received by David taken from the table above and the amount of that income rendered into 2020 dollars. Year Income 2020 1976 4,036.51 25,927.46 1977 5,041.58 28,833.86 1978 4,766.89 25,242.23 1979 5,582.02 27,087.67 1980 7,299.75 32,163.22 1981 6,268.46 25,225.93 1982 8,004.11 28,926.94 1983 10,180.11 33,434.53 1984 10,585.24 33,440.72 1985 14,711.10 43,542.61 1986 13,099.42 35,554.47 1987 9,653.93 24,142.62 1988 18,028.74 42,051.97 1989 13,091.55 28,396.62 1990 8,627.48 17,435.17 1991 11,880.91 23,270.75 1992 12,872.41 24,960.11 1993 14,029.15 26,734.25 1994 16,250.01 30,368.23 1995 19,812.69 35,388.51 1996 15,882.64 27,645.79 1997 26,464.39 45,961.34 1998 17,619.83 30,339.82 1999 14,190.31 24,077.38 2000 19,311.37 31,368.31 2001 13,764.03 21,413.79 2002 13,799.03 20,846.68 2003 19,144.86 28,153.49 Total $353,998.52 $821,934.47 Average $12,642.80 $29,354.80 1. The figures in this table therefore demonstrate that, over the period covered, David's average annual income from the farming operation expressed in 2020 dollars was about $30,000. In the period up to 1988, the year of Dr Harry's death, the average was slightly more, being about $31,200. Both figures are less than one third of the average weekly total male earnings as at November 2020 of $97,905.60 (Source: Australian Bureau of Statistics [1] ). I have used this statistic only to give more accuracy to the inference that I would have drawn in any event that the income that David earned from the share farming operation was a mere fraction of what he could have earned if he had terminated the share farming agreement shortly after Dr Harry's death and pursued some alternative employment that returned an average level of income. 2. The records kept by Dr Harry that are still available frequently record that David was indebted to Dr Harry at the end of a quarter, and it was necessary for Dr Harry to carry over that debt until David's income permitted it to be paid. It appears that, in many cases, the debt arose because David was not able to pay to Dr Harry and Dame Leonie their share of the proceeds of sale of produce because of his own needs. The earliest available record, for the September quarter in 1975, records an advance of $600 to David and a net debt at the end of the quarter of $300.59. At the end of the March quarter in 1984, David owed $428.89 which was deducted from his income. A debt of $156.04 owing at the end of the December quarter in 1985 was repaid at the end of the March quarter in 1986. The record for the June quarter in 1986 referred to a loan of $500 and a debt of $717.76. David owed $244.07 at the end of the September quarter in 1986, $1,103.15 at the end of the December quarter in 1986, $843.36 at the end of the March quarter in 1987, and $769.80 at the end of the June quarter in 1987. The debt at the end of the September quarter in 1987 was $2,307.56, at the end of the December quarter in 1987 it was $2,532.83 and at the end of the March quarter in 1988 it was $2,940. Dr Harry made a note: "David will bank $2,940 next week and discharge debt". 3. This analysis of the income received by David in the period of 1976 to 2003 permits the following inferences to be drawn: 1. Broadly, the average income received by David was in the order of one third of the average annual total male income calculated on the basis of 2020 equivalent dollars. 2. David's income was irregular on an annual basis, and highly irregular from quarter to quarter. 3. David was dependent on the bonuses that he received, which were required to be increased over the period. 4. As a consequence of the irregularity of David's income, it was frequently necessary for him to be given loans to tide him over until he enjoyed a more remunerative quarter. 1. The results of this analysis do not provide additional direct proof of Dr Harry and Dame Leonie having made the representations to David, or that David would have terminated the share farming agreement if he had not received those assurances, but it does establish an objective reality that makes it substantially more probable that the assurances were made and that David would have pursued alternative employment if they had not been made. Findings as to existence of interest claimed 1. I will start by making a number of specific observations concerning the way that David has pleaded reliance on the three representations. 2. First, on David's own pleading, the second representation superseded the first representation. Dr Harry informed David of the change and David acquiesced in the change. 3. Secondly, there are conceptual difficulties with the manner in which par 10 of the statement of claim is pleaded: (see [17] above). As executor of the estate of Dr Harry, Dame Leonie was not required to adhere to the share farming agreement. That agreement was terminable at the will of either party, probably on reasonable notice having regard to the state of the crops that had been planted at the particular time. Dame Leonie was not obliged to continue the share farming agreement in her capacity as Dr Harry's executor. 4. She was not obliged to implement the first representation because, as I have noted, it was superseded. The second representation was a representation made by Dr Harry as to an agreement that he had made with Dame Leonie. Dr Harry's estate could not be liable to David if Dame Leonie did not implement any agreement she made with Dr Harry. 5. In reality, the first and the second representations only formed the background against which David was conveyed the alleged third representation by Dame Leonie. Dame Leonie could only be bound by such assurances as she may have made to David, and her conscience could only be burdened with the need to act in accordance with her assurances. 6. The allegation in par 10 of the statement of claim that Dame Leonie was obliged to adhere to the share farming agreement illustrates a problem for David's case that must be addressed; being that while David claims that Dame Leonie said to him that she would leave the Farm to him in her will, both parties to the share farming agreement were nevertheless entitled to terminate it at will on reasonable notice. That circumstance raises the issue of what the legal position would have been if either David or Dame Leonie had decided to terminate the share farming agreement during Dame Leonie's lifetime. On David's part, he may have lost interest or decided that his income was unjustifiably insufficient and terminated the share farming agreement. Dame Leonie may have taken the same course or decided simply to sell the Farm with vacant possession. 7. These possibilities would have given rise to legal problems, but they are not the legal problems that must be addressed in this case. It may be that from David's perspective, if he terminated the share farming agreement or even predeceased Dame Leonie, then Dame Leonie would simply have been free to devise the Farm as she wished, because it would have ceased to be unconscionable for her not to leave the Farm to David's estate. It may be that if Dame Leonie had terminated the share farming agreement or sold the Farm during her lifetime that Equity would have imposed upon her some appropriate obligation to compensate David. 8. In my view, the fact that the share farming agreement had an uncertain duration is not inconsistent with David being entitled to claim the relief that he claims in this case. Equity should determine his entitlement on the basis of what happened, not what could have happened. In so far as it was implied in the third representation that David would only be entitled to expect to inherit the Farm if he continued to perform the share farming agreement during Dame Leonie's lifetime, that is what he has done. 9. It is now necessary to address the issue of the credibility of David's evidence concerning the making of the three representations. David's case substantially relies upon the Court accepting that David gave reliable evidence about the making and the meaning of the third representation, which David claims was conveyed to him by Dame Leonie in a single conversation made about 30 years before the date of his first affidavit in these proceedings. David accepted that the statement had never been repeated, that there was no written record of it, and that there is no evidence that Dame Leonie ever informed any other person that she had made the statement to David. 10. I have already indicated above that I have found David to be an exceptionally credible witness. If it had been sufficient for the Court to be satisfied on the balance of probabilities that Dame Leonie made the statement to David with the meaning that he claims it had on the basis of David's testimonial evidence, and by assessment of the credibility of that evidence following David's cross examination, I would have accepted David's case that the third representation was made in the way that he claimed. That is, in so far as it may have been proper for the Court to act solely on its belief as to the reliability of David's evidence, I would have accepted his case. 11. That would, of course, have been an extreme position to take, as there is an inherent fallibility in all testimonial evidence, particularly evidence such as that given by David, which is self-interested and requires a relatively accurate recollection of an event that occurred some 30 years ago. 12. It is reasonable in this case to qualify the acknowledgement of the danger in accepting testimonial evidence that is not directly corroborated by recognising that some events are much more likely to be retained in memory than others. A statement made by Dame Leonie that she had agreed with Dr Harry that the Farm would pass to David upon Dame Leonie's death is a statement of life-altering significance and one that is inherently capable of being long remembered. However, that said, it must be accepted that there would be scope for misinterpretation of nuance in the meaning of the words actually used by Dame Leonie. 13. It is therefore necessary to have regard to the observations made in the authorities concerning the approach that the Court should adopt in deciding whether to accept testimonial evidence that is not directly corroborated of statements made long before the evidence is given, where the witness would be a beneficiary of the Court's acceptance of the evidence. I acknowledge my debt to Black J in In the matter of Hillsea Pty Ltd [2019] NSWSC 1152 (Hillsea) for having collected the relevant authorities together at [16] to [22]. 14. Understandably, Hilary's submissions focused on the often-quoted observations of McLelland CJ in Eq in Watson v Foxman (1995) 49 NSWLR 315 at 319 that: … human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience. Each element of the cause of action must be proved to the reasonable satisfaction of the court, which means that the court "must feel an actual persuasion of its occurrence or existence". Such satisfaction is "not … attained or established independently of the nature and consequence of the fact or facts to be proved" including the "seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding": Helton v Allen (1940) 63 CLR 691 at 712. 1. Black J, at [17] added the following extract from the decision of the High Court in Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd (1999) 161 ALR 599 at [15], which approved an observation at first instance in that case that: [Given the lapse of time] between the events and conversations raised in evidence and the hearing of the evidence before me, the only safe course is to place primary emphasis on the objective factual surrounding material and the inherent commercial probabilities, together with the documentation tendered in evidence. In circumstances where the events took place so long ago, it must be an exceptional witness whose undocumented testimony can be unreservedly relied on. The witnesses in this case unfortunately did not come within that exceptional class. The discussions referred to in evidence were capable of bearing quite opposed meanings depending on subtle differences of nuance and emphasis, and a proper appreciation of the significance of those matters must necessarily be considerably diminished over such a long period of time. 1. Further, at [18] his Honour noted that in Fox v Percy (2003) 214 CLR 118 at 129; [2003] HCA 22, Gleeson CJ, Gummow and Kirby JJ observed that: Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical. 1. While these observations demonstrate the forensic difficulty faced by a plaintiff who is required to rely upon evidence that is not directly corroborated of statements made a long time in the past, they do not suggest that there is any strict aversion of the Court to acting on evidence of this nature. The Court must be keenly aware of the inherent fallibility of such evidence. The Court must place its primary emphasis on the objective factual surrounding material and the inherent probabilities. In order to be accepted, it may be necessary that the witness display an exceptional level of credibility. As such, the principles governing the credibility of witnesses remain applicable especially in this context. 2. It is also necessary to bear in mind the degree of satisfaction that is required before the Court can rely upon evidence of spoken words to establish a cause of action. In John Holland Pty Ltd v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451 at [94]– [96], Hammerschlag J said that: Where a party seeks to rely upon spoken words as a foundation for a cause of action, including a cause of action based on a contract, the conversation must be proved to the reasonable satisfaction of the court which means that the court must feel an actual persuasion of its occurrence or its existence. Moreover, in the case of contract, the court must be persuaded that any consensus reached was capable of forming a binding contract and was intended by the parties to be legally binding. In the absence of some reliable contemporaneous record or other satisfactory corroboration, a party may face serious difficulties of proof. Such reasonable satisfaction is not a state of mind that is obtained or established independently of the nature and consequences of the fact or facts to be proved. The seriousness of an allegation made, inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question of whether the issue has been proved to the reasonable satisfaction of the court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony, or indirect inferences … The sensation of feeling an actual persuasion, after a contest, that an event has happened or that something exists is one which is well known and recognised by experienced trial judges for what it is. [The plaintiff] has the onus of establishing the agreement for which it contends. This entails proving to the reasonable satisfaction of the Court that the words said to give rise to the agreement were actually said, and that the alleged consensus was capable of forming a binding agreement and was intended by the parties to be legally binding. [citations omitted]. 1. See also to similar effect Warner v Hung; Bellpac Pty Ltd (recs and mgrs apptd) (in liq), Re [2011] FCA 1123; (2011) 297 ALR 56 at [48] per Emmett J. 2. It is also necessary for the Court to make proper allowance for the fact that neither Dr Harry nor Dame Leonie are available to give evidence in contradiction of the evidence given by David. 3. In Dable v Peisley [2009] NSWSC 772, Ward J (as her Honour then was) said: [130] The difficulties facing the court where a claim is based on an assurance made by a deceased have been noted in many cases. In Weeks v Hrubala [2008] NSWSC 162 (at [20]), Young CJ in Eq stated: In a case of a person suing a deceased estate the court normally looks for some sort of corroboration: see Re Hodgson (1886) 31 Ch D 177 even though, as a matter of law, corroboration is not absolutely necessary. Experience, however, shows that when plaintiffs are making a claim against a deceased estate the court is wise to look for corroboration. [131] In Vukic and Saliba, their Honours both emphasised that the court must closely scrutinise claims against an estate in circumstances where the only person who can contest the issue is deceased. 1. As her Honour noted, in Vukic v Luca Grbin; Estate of Zvonko Grbin [2006] NSWSC 41, Brereton J (as his Honour then was) said: [22] I am not unconscious of the dangers of relying upon the uncorroborated evidence of a claimant against an estate in circumstances where the only person who can deny the allegations is deceased. It has often been said that such claims should be closely scrutinised. I have closely scrutinised the Plaintiff's evidence and am impressed by the consistency of her conduct with her evidence, and the detail of her evidence, which is not only uncontradicted but also unchallenged… 1. In Hillsea, Black J also accepted the need for the Court to subject the evidence to careful scrutiny in these circumstances, saying: [22] … I accept, that a claim based upon hearsay evidence from a deceased person also requires "careful scrutiny" and should be treated with "considerable caution" and ordinarily would not be accepted without corroboration, because of the impossibility of obtaining the deceased's version of what was said: Blendell v Byrne [2019] NSWSC 583 at [187]–[191]. 1. In Gautam v Health Care Complaints Commission [2021] NSWCA 85 at [25], Leeming JA, referring to the judgment of Ipp JA in Goodrich Aerospace Pty Limited v Arsic [2006] NSWCA 187, said: [23] After summarising a deal of material to similar effect, Ipp JA said at [27]: "These problems and doubts about demeanour findings explain why trial judges are expected to weigh their impressions as to demeanour carefully against the probabilities and to examine whether the disputed evidence is consistent with the incontrovertible facts, facts that are not in dispute and other relevant evidence in the case. Of course, demeanour may trump the probabilities, but it should be apparent from the judge's reasons that the probabilities and consistency with other relevant evidence have properly been taken into account." [24] Ipp JA then denied that it was sufficient merely to set out the competing evidence, and conclude that the judge favoured one side. His Honour continued at [29]: "Often important issues of credibility involve sub-issues. Often, objective facts, or facts that are probable, are capable of having significant bearing on the sub-issues. In cases of this kind, it is incumbent upon trial judges to resolve the sub-issues and to explain, by reference to the relevant facts, the conclusions to which they have come. This having been done, they should then turn to the ultimate facts in issue and explain how their decisions on the sub-issues have assisted them in forming a conclusion on the ultimate issue. It is only when adequate reasons of this kind are given that an unsuccessful party will be able to understand why the judge has believed his or her successful opponent." [25] Ipp JA was saying that analysis should in such cases commence with objectively established matters, against which the credibility and reliability of testimonial evidence can be assessed. That is the usual course, as has regularly been observed. Usually, the resolution of an issue involving the credibility of witnesses will require reference to, and analysis of, any evidence independent of the parties which is apt to cast light on the probabilities of the situation: Camden v McKenzie [2008] 1 Qd R 39; [2007] QCA 136 at [34]; New South Wales v Hunt (2014) 86 NSWLR 226; [2014] NSWCA 47 at [56]. That approach reflects the acknowledged limits upon judges' ability to distinguish truth from falsehood accurately on the basis of the witnesses' appearance, and the appropriateness of reasoning, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [31]. Ipp JA was not suggesting that there was a rule that required identification and resolution of all "sub‐issues". 1. Notwithstanding the self-evident validity of these reservations about the wisdom of a court accepting the oral evidence of an interested witness that is not directly corroborated of statements allegedly made by a now-deceased person long in the past, the courts may from time to time have to decide cases of considerable importance to individual plaintiffs, where the plaintiff's claimed rights are based upon statements made to them in private, in circumstances where the context is one of trust between the participants, and where they have no intention to seek legal advice, to involve strangers in the transaction, or to enter into formal legal agreements. It is only necessary to recall the dichotomy between arms-length/commercial cases and domestic/family cases discussed by Gleeson JA in Doueihi, at [178], and the possibility that the parties may have different expectations as to entry into a formal written agreement from those usually held in a strictly commercial case or a domestic/family case. 2. While it is clear that the amplification of the forensic uncertainties that may attend the enforcement of non-commercial arrangements based on oral agreements in informal circumstances, where it is expected that the agreements will be honoured on the basis of trust, requires that the Court exercises exceptional care in acting on the evidence of a plaintiff that is not directly corroborated concerning oral assurances, that is a circumstance that only makes the Court's duty more onerous. The issue is always whether the plaintiff has established the claim on the balance of probabilities, having regard to all of the evidence, as well as the gravity of the matters alleged and the other considerations required to be taken into account under s 140(2) of the Evidence Act 1995 (NSW). There is no rule that the Court should not act on the uncorroborated evidence of an interested party as to the terms of historical conversations. There is scope for great injustice to be done if the Court adopts an excessively inflexible resistance to accepting oral evidence of conversations in that manner. 3. In Nguyen v Cosmopolitan Homes [2008] NSWCA 246, McDougall J (with whom McColl and Bell JJA agreed) summarised the relevant principles with respect to the finding of facts on the balance of probabilities as follows: 55 The position may be summarised as follows: (1) A finding that a fact exists (or existed) requires that the evidence induce, in the mind of the fact-finder, an actual persuasion that the fact does (or at the relevant time did) exist; (2) Where on the whole of the evidence such a feeling of actual persuasion is induced, so that the fact-finder finds that the probabilities of the fact's existence are greater than the possibilities of its non-existence, the burden of proof on the balance of probabilities may be satisfied; (3) Where circumstantial evidence is relied upon, it is not in general necessary that all reasonable hypotheses consistent with the non-existence of a fact, or inconsistent with its existence, be excluded before the fact can be found; and (4) A rational choice between competing hypotheses, informed by a sense of actual persuasion in favour of the choice made, will support a finding, on the balance of probabilities, as to the existence of the fact in issue. 1. The only course available to the Court is to give an in-depth consideration to the circumstances surrounding the making of the alleged representations and the subsequent behaviour of the parties to the conversation, as well as to give exhaustive scrutiny to the available objective evidence. It is to the evidence that I will now turn. 2. Hilary submitted that it was inherently improbable that people in the position of Dr Harry and Dame Leonie would give the assurances to David that he claimed they had made to him. 3. That submission has superficial force, but the evidence in this case demonstrates special circumstances that do not warrant the Court's rejection of David's evidence. 4. This is not a case where a farmhand claims after the death of a grazier that the grazier has casually promised to leave a large sheep station to the farmhand. 5. I will first consider the significance of the evidence concerning the nature of the Farm and the financial aspects of the farming operation under the share farming agreement, in so far as that evidence has a bearing on the likelihood that Dr Harry and Dame Leonie made the representations to David. 6. There was no evidence concerning the value of the Farm at the time when any of the representations were alleged to have been made and there is no current valuation. As the Farm is about 100 acres in size and has two houses on it, it is likely to have a reasonably significant value. However, the evidence does not support a conclusion that, at the time the alleged representations were made to David, the value of the Farm was so great as to make it inherently improbable that the representations were made. 7. The evidence also does not support a finding that, at the time the representations were allegedly made to David, either Dr Harry or Dame Leonie had reason to think that their daughters had any desire to own the Farm, or to carry the losses involved in conducting farming operations on the Farm, or that their interest would extend further than the ability to make occasional visits to the Farm for recreational purposes. 8. Hilary's own evidence was that she was hardly ever at the farm (T 209.13). Jocelyn gave the following evidence at par 31 of her affidavit: Within a month of my father's surgery, one evening while we were sitting at our dining table he began a conversation about his affairs and how Hilary and I would be provided for. At that time Hilary was living in a property owned by my parents in Darlinghurst and she was married and had a new baby. She was not present at this conversation. The conversation was to the following effect: My father: I have been thinking about my Will and how I will distribute my estate. I have decided to leave the house in Darlinghurst to Hil. I think it is fair if Hil has the Darlinghurst property that Callala Bay comes to you. Me: Dad, I don't want the Callala Bay House. I don't want to be tied down by owning property. My father: In that case, I would leave you a parcel of shares equal in value to the Darlinghurst house. 1. Further, Jocelyn gave evidence that she had joined the Carmelites and in doing so, had undertaken a vow of poverty. Jocelyn gave the following further evidence in her affidavit in relation to a conversation she had with her mother about her inheritance: 45. Before making my final commitment, as an expression of my vow of poverty I was required to divest myself of personal assets and make a Will. Since we renounce personal ownership when we take the vow of poverty, any inheritance we receive passes automatically to the monastery. 46. My mother did not approve of me abandoning my medical career and making a life commitment to the Carmelites. As I prepared to make my final vows, I was acutely aware that any legacy my mother left me would go to the Carmelites. As I thought my mother would not want this I told her that she needed to review her Will and make changes to ensure that her wishes were respected. My mother was reluctant to discuss this and I had to prompt her repeatedly before she agreed to meet with me to discuss it. My mother did not want any assets transferred to the Carmelites, but it was painful for her to feel as though she could not provide for me in her Will. 1. As I have explained above, the Farm was a loss-making enterprise over the whole of the period covered by the evidence. As will be seen, even the evidence of Hilary's expert agronomist was that, if the Farm had been worked under the terms of the share farming agreement, assuming competent but not exceptional managerial skills, Dame Leonie would still have made significant annual losses, and David would only have enjoyed a relatively modest income. 2. The evidence does not support a conclusion that, at the time that the representations were allegedly made to David, or at any time thereafter, the Farm was a viable property for the purpose of conducting farming operations. 3. As I have explained above, David's income under the share farming agreement was highly irregular from quarter to quarter, and only a modest fraction of the average annual male income. It was regularly subject to the common agricultural risks of drought and flooding. From David's perspective, farming under the share farming agreement could not be maintained without David's income being supplemented by 'bonuses' that were required to be increased over the years. It was also found necessary to reduce the share of the fuel bill that was required to be paid by David. Furthermore, there is evidence that it was necessary for Dr Harry and Dame Leonie to make loans to David at various times throughout the years to enable him to carry on until the income from a better quarter enabled him to repay the loans. 4. These matters must have been obvious to Dr Harry and Dame Leonie from the time when David's father terminated the written share farming agreement because of his inability to make a sufficient living to support his family and provide for his future. 5. The conclusion that should be drawn from these facts is that, while Dr Harry was alive, he was prepared to maintain the Farm as an operating farming business, because of a personal interest in farming that he had the financial resources to pursue, notwithstanding that it would consistently lead to operating losses that Dr Harry would be able to claim as income tax expenses (see par 5 of Jocelyn's affidavit). 6. If Dr Harry and Dame Leonie were to continue to have the interest and lifestyle benefit of an operating farming business on the Farm, without the property going to rack and ruin, it was necessary for them, following David's father's departure, to find someone like David, who was prepared to put in all of the hours and hard work necessary to operate the farming business on a subsidised basis, and who was prepared to accept the meagre income and prospects offered by the share farming agreement. Absent such an arrangement, the ownership of the Farm was likely to be more of a burden than a benefit. 7. There was no evidence that the Farm has ever been the sort of property that would be attractive to the owners if allowed entirely to return to nature. 8. The financial and occupational burdens that the share farming agreement imposed on David must have been obvious to Dr Harry and Dame Leonie. They would have been aware from the quarterly reconciliations how meagre and irregular the income earned by David from the share farming operation was. That was so notwithstanding the subsidy that they provided to David. Dr Harry and Dame Leonie must have been acutely aware that they were required to make loans to David to carry him over from quarter to quarter. They must have understood that there was no prospect that the operation of the Farm would ever lead to David enjoying an income commensurate with his efforts or provide a surplus that would enable him to make provision for his old age. 9. If Dr Harry and Dame Leonie were indeed decent and benevolent people, they could well have formed the view that it would have been ungenerous of them to take long-term advantage of the share farming agreement, while ignoring the long-term disadvantages that the farming operation would impose upon David. 10. These considerations do not directly corroborate David's evidence about the making of the representations, but they significantly reduce the degree of improbability that the alleged assurances were made to David. 11. I have already considered above the evidence given by Hilary and Jocelyn about discussions within the Kramer family concerning the possibility that the Farm would be left to David. Far from such a bequest being an entirely unnatural and improbable event, it seems that it was in the foreground of discussions. When it came to Jocelyn asking her father before his death as to what he proposed to do with the Farm, the evidence was that her first question was whether Dr Harry would leave it to David because he was living and working there. Jocelyn's evidence was not that Dr Harry rejected the suggestion, but that, after discussion with his family, he decided to leave the Farm to Dame Leonie, because she expressed a wish to have it. Jocelyn's evidence of the conversation, whereby Dr Harry said that he would leave it to Dame Leonie to decide what to do with the Farm does not sit consistently with David's evidence concerning the third representation. However, it is possible that Dame Leonie decided, at least in the period early after Dr Harry's death, that she would honour his wishes and tell David that she would leave the Farm to him in her will. Jocelyn's evidence that Dame Leonie, in mid-2006, was considering leaving the Farm to the University of Sydney suggests that it was Dame Leonie's belief that her daughters did not want or need the Farm. Dame Leonie's stated reason for not leaving the Farm to David was the possibility that Maureen would be entitled to make a claim against it. It seems that Dame Leonie was implacably opposed to that possibility. 12. In the context of providing reasons for why she presumed the Farm would be gifted to David, Jocelyn said at par 56 of her affidavit: (a) I knew that my mother's wish for the property was that it continue to be used for farming. She did not want the property to be sold, subdivided or developed; (b) I was not in a position to own and manage the Farm, Hilary had only a limited connection to the Farm and was not in a position to manage the property either. I did not consider it realistic that the University of Sydney would want to use the property as farmland; (c) I associated the Farm with David, saw it as his home and expected that my mother would not want anything to happen after her death that prevented David from living on the Farm for so long as he wished; and (d) gifting the property to David would keep the Farm being used as farmland and continue to provide a home for David and both of these things mattered to my mother. I considered the Farm to be David's spiritual home as well as his physical home. I assumed these considerations would have resulted in my mother deciding to gift the Farm to David. I was wrong in that assumption. If David had based his expectation on similar assumptions, he was wrong as well. 1. Jocelyn affirmed again at par 69: "My mother was very clear that she did not want the Farm to be sold." 2. Hilary's evidence that, at the meeting with the solicitors concerning the execution of a power of attorney by Dame Leonie, Dame Leonie initiated a question of the solicitors as to whether, if she left the Farm to David, Maureen would be able to make a claim on it, strongly suggests that the possibility was present in Dame Leonie's mind, and that she was dissuaded from taking that course because the solicitors gave an affirmative answer to the question. 3. This expectation may have been indefinite, and Hilary and Jocelyn have claimed that they did not form this expectation as a result of anything said to them by their parents. However, even if the circumstances that led Hilary and Jocelyn to form this expectation can no longer be identified, it suggests that there must have been some element of the relationship between David and Dr Harry and Dame Leonie that caused their daughters to form this understanding. 4. This is not evidence that directly corroborates David's evidence concerning the making of the representations, but it substantially diminishes the reservation that the Court would otherwise have about the likelihood that Dr Harry and Dame Leonie gave the assurances to David. 5. Hilary's defence also focused on the fact that David was relying upon three conversations that he claimed to have had with Dr Harry and Dame Leonie, and that there was no evidence that either person had ever informed any other person that they had made statements to David substantially in the form that David said they had made them. 6. David claimed that Dr Harry made the first representation to him in the early 1980s. At that time, it is likely that Dr Harry had the same expectation as most middle-aged men that he would live to a reasonable old age. I consider that the absence of any evidence of Dr Harry bringing any person other than David into his confidence about his testamentary intentions concerning the Farm is a relatively neutral factor. The Court cannot know whether or not Dr Harry discussed the subject with Dame Leonie. In light of the evidence of Hilary and Jocelyn discussed above, it would not be expected that he would have discussed the subject with his children, particularly if his daughters had shown no particular interest in operating the Farm. Further, Hilary and Jocelyn each gave evidence to the effect that on the rare occasion their parents thought fit to discuss their testamentary intentions with them, they only provided them with such information as that which related to them and nothing more. 7. As far as the second representation is concerned, that is a subject that was raised by Dr Harry in circumstances where he understood that his premature death was relatively imminent. It is not unnatural that, in about 1988, only five or so years after the first representation was made to David, that Dr Harry may have thought that an adjustment to the plan was justified because of his unexpected, impending death. The first representation would have been made to David in the expectation that he would have to perform the share farming agreement for a period of decades in order to enjoy the promised inheritance. Dr Harry's premature death changed the parties' expectations, and that was implicitly accepted by David, when he was informed of the second representation. 8. If Dame Leonie in fact made the third representation to David, it is not surprising that she did not talk about the issue to anyone else, including her daughters, until it came to the time when Dame Leonie had to make the arrangements that were necessary to deal with the frailties of age. Hilary's evidence was also that Dame Leonie "was guarded in what she shared about money and financial plans". The sense that I got about Dame Leonie from her daughters' evidence was that she was a private and reserved person. Consequently, I do not think that the Court should place any positive significance on the absence of evidence that Dame Leonie informed any other person of what David claims she said to him about the third representation. 9. It may well be, as Hilary and Jocelyn claimed, that it would generally have been out of character for Dame Leonie to confide in David her intentions about the third representation. However, the time at which these events occurred was exceptional, in that Dame Leonie had recently experienced the loss of her husband through his premature death with cancer. If in fact Dame Leonie had reached an agreement with Dr Harry that the Farm should be left to David if he continued to perform the share farming agreement during Dame Leonie's lifetime, it is not particularly exceptional that Dame Leonie may have made the third representation to David shortly after Dr Harry's death and out of respect for his wishes. It is also possible that, in the ensuing years when Dame Leonie continued to pursue the activities that led her to exceptional eminence in society, the significance of any statement that she made to David may have diminished in her own recollection. 10. Moreover, Hilary and Jocelyn gave evidence that Dr Harry had also broached the subject of his will with them once only and, at least with respect to Jocelyn, without being prompted. Hilary said at par 50 of her 14 August 2018 affidavit: I refer to paragraph 23 of Dave's affidavit in which Dave deposes to a conversation in which I tell Dave that my father had willed the Farm to Dave. The conversation did not occur. I had no knowledge of what my father had decided in his Will regarding Dave or the Farm. No conversations took place between my father and me in this respect. The only conversation my father had with me about his Will concerned his intentions to me in respect of the Darlinghurst property and a money inheritance which I outline at paragraph 39 of this affidavit. 1. In response to pars 19 and 20 of David's 24 August 2017 affidavit, at which he detailed the first representation, Jocelyn said at par 65 of her affidavit: (b) neither of my parents spoke to me about the preparation of their Wills in the early 1980s. I was working overseas in 1982 to 1983. As mentioned, the only time I ever spoke to my father about his Will was in the period after his cancer surgery when he initiated the conversation. At that time he said what he intended to do for me and Hilary. He did not mention leaving the farm to us. He decided to let it pass to our mother. I did not have any discussion with my mother about her Will until 2006 and I initiated that conversation because of my preparation for taking solemn vows; (c) at no time did I have a conversation with my father about the inheritance of the Farm apart from the aforementioned dining-table conversation in April 1987. No further discussion of those matters ever took place. No such conversation was necessary because the Farm was a jointly held asset and both my parents understood that it would pass to whichever of them survived the other; 1. In response to par 33 of David's affidavit, at which he detailed the third representation, Jocelyn said of Dame Leonie at par 67 of her affidavit: (b) my mother was a private and careful person. She did not discuss personal matters easily and when she did she was very deliberate about those discussions. The first time that I spoke with my mother about her Will and her financial affairs was prior to my taking the solemn vow of poverty. That was a conversation that my mother approached reluctantly and with difficulty. We made a specific appointment at the Union Club for the purpose of that conversation; and (c) in about July 2011, I had a further discussion with my mother, together with Hilary, about whether she would like to review the amount of the monetary legacies made under her Will given the passage of time since we had last spoken about the matter in 2006. Hilary and I made a prior appointment to see our mother who was by this time resident at [aged care facility]. Following the discussions our mother decided to increase the legacies made to the University of Sydney and David. She subsequently decided to leave a monetary legacy to me too. Hilary and I later took our mother to meet with her solicitor to execute her Will. I had no other discussions with my mother regarding her Will and her financial affairs. 1. This evidence is of significance because it diminishes the strength of Hilary's claim that it was improbable that Dr Harry and Dame Leonie would have raised the issue of their wills with David once only and without any prompt. 2. I have already discussed above the evidence given by David's witnesses of how they learned of a proposal that David would inherit the Farm. That evidence has assisted me to accept that David himself believed at times before Dame Leonie's death that he was entitled to the benefit of the third representation. 3. The evidence also was that David never discussed the issue again with Dame Leonie after she had informed him of the third representation. 4. In my judgment, this evidence is explicable on the basis of the impression I formed of David in the witness box that he is relatively laconic. Moreover, there was such a great social imbalance between Dame Leonie and David that it is not surprising that David was inhibited in discussing Dame Leonie's testamentary intentions with her. This being the case where Dame Leonie's own daughters were inhibited in the same regard. I formed the judgment that David is the sort of person who is a man of his word and expects other people to act honourably in the same way. Once a bargain is made, it is made and does not need to be revisited. 5. While it would have been easier for the Court to accept David's evidence that Dame Leonie conveyed the third representation to him if there was independent evidence that Dame Leonie had informed other people of that occurrence, the absence of that evidence is not, in the circumstances, a significant factor that tells against the Court accepting David's evidence. 6. Hilary put a number of further arguments as to why the Court should not accept David's evidence that the three representations were made to him by Dr Harry and Dame Leonie. 7. First, Hilary submitted that, on David's case, the statements were completely impromptu, and they were not made in the context of David complaining that the rewards that he had received from the share farming agreement and living on the Farm were insufficient. David accepted that he had not made any complaints to Dr Harry or Dame Leonie. 8. Although David agreed in cross-examination that the representations were made impromptu, I take him to mean that they were not made in direct response to a request made by him. Although David accepted that he had not complained to Dr Harry or Dame Leonie about his financial circumstances, his response was guarded, and he referred to the quarterly reconciliations that took place. As I have explained above, it must have been obvious to Dr Harry, and later to Dame Leonie, when they considered the quarterly financial results, that David's income was irregular and meagre, and that he could not be expected to continue with the farming operation without the 'bonus' being increased. In addition, it was apparently necessary for Dr Harry and Dame Leonie to make short-term loans to David. I am satisfied that David was not the type of person to complain about circumstances into which he had voluntarily entered. However, his financially grim position would have been obvious to intelligent and sophisticated people like Dr Harry and Dame Leonie. Consequently, I do not consider that it is of any moment that the representations were not made in response to specific complaints by David. 9. There is a likelihood that the circumstances themselves may have motivated Dr Harry and Dame Leonie to give those assurances. This is so in a context where Dr Harry, and later Dame Leonie and David shared a warm relationship over many years, where Dr Harry and Dame Leonie were aware of the financial struggles David faced, where Dr Harry and Dame Leonie would have been aware that David's father had terminated the written share farming agreement because he could not support his family with the level of income it generated, where Dr Harry and Dame Leonie were likely aware of David's love of the Farm and farming in general, where Jocelyn gave evidence that her mother did not want the Farm to be sold, subdivided or developed, and where Dr Harry and Dame Leonie observed their daughters had little to no interest in the Farm (with Dame Leonie having considered gifting the Farm to the University of Sydney rather than her daughters but deciding against it on the probability that the university would sell the Farm). 10. Secondly, there was no express promissory element in any of the statements allegedly made by Dr Harry and Dame Leonie, and the statements were not expressed to be conditional on David doing or not doing anything. 11. As I have explained (above at [32]-[35]), it is not necessary that an encouragement be formally expressed in terms of a promise before it may form the basis of a proprietary estoppel. A bare statement that the maker will do a specified act in the future may be sufficient. Whether the maker will be held to performing the act will depend upon whether the circumstances justify an expectation in the listener that the intention to do the act is serious and the statement may reasonably be relied upon by the reasonable listener. Where the act is the conferral of a benefit on the listener, it will be easier to treat the statement as being an assurance. It will also be easier to do so where the making of the statement is likely to induce conduct by the listener from which the maker will benefit. In short, a statement that is not overtly promissory in form may be sufficient to create a reasonable expectation. As Mr Handley was recorded by Meagher JA in Q v E Co to have said (above at [36]), a representation or promise "may be implied wholly or partly from conduct or inferred from silence or inaction". Further, whether a representation or promise has been made, and if so what its meaning is, must be judged "objectively according to the impact that whatever is said [or done] may be expected to have on a reasonable representee in the position and with the known characteristics of the actual representee". 12. I also consider that it does not matter in this case that the statements were not expressed to be conditional on David doing or not doing anything. In Waddell v Waddell [2012] NSWCA 214, Campbell JA (with whom Allsop P and Sackville AJA agreed) held at [54]: In any event, whether the representation was a conditional one is of no practical importance for the outcome of the case. There is the authority of Lord Walker in Thorner v Major at [57], Lord Neuberger in Thorner at [101], Hoffmann LJ in Walton v Walton [1994] (Court of Appeal of England and Wales, 14 April 1994, unreported) and this Court in Delaforce v Simpson-Cook [2010] NSWCA 84; (2010) 78 NSWLR 483 at [81] and Evans v Evans [2011] NSWCA 92 at [108] for the proposition that: "... equitable estoppel [by contrast with contract] ... does not look forward into the future [it] looks backwards from the moment when the promise falls due to be performed and asks whether, in the circumstances which have actually happened, it would be unconscionable for the promise not to be kept." 1. Thirdly, there was no evidence that either Dr Harry or Dame Leonie knew that David was only staying on the Farm and continuing to implement the share farming agreement because of any of the representations. 2. For an equitable estoppel to arise, the representor must know that the representee has placed reliance on the representation. In many cases, that requirement has been satisfied by the representor having actual knowledge of the reliance by the representee. However, there is High Court authority to the effect that constructive knowledge is sufficient. In Commonwealth v Verwayen, Deane J said at 445: Ultimately, however, the question whether departure from the assumption would be unconscionable must be resolved not by reference to some preconceived formula framed to serve as a universal yardstick but by reference to all the circumstances of the case, including the reasonableness of the conduct of the other party in acting upon the assumption and the nature and extent of the detriment which he would sustain by acting upon the assumption if departure from the assumed state of affairs were permitted. In cases falling within category (a), a critical consideration will commonly be that the allegedly estopped party knew or intended or clearly ought to have known that the other party would be induced by his conduct to adopt, and act on the basis of, the assumption. Particularly in cases falling within category (b), actual belief in the correctness of the fact or state of affairs assumed may not be necessary. Obviously, the facts of a particular case may be such that it falls within more than one of the above categories. 1. This issue was discussed by Macaulay J in Leading Synthetics Pty Ltd v Adroit Insurance Group Pty Ltd [2011] VSC 467: [67] An issue of principle arises on the facts of this case. There is some uncertainty whether it is necessary to establish that the inducing party "knew or intended" that the other party would adopt and act upon the assumption, as Brennan J said in Waltons Stores, or, as Deane J said in Verwayen, that the inducer "knew … or clearly ought to have known" that would be the consequence. [68] The Victorian Court of Appeal grappled with the distinction in New Zealand Pelt Export Co Ltd v Trade Indemnity NZ Ltd. Nettle JA, with whom Ormiston JA and Hansen AJA agreed, ultimately did not have to decide the point because his Honour took the view that actual knowledge was established in that case. Nevertheless, after referring to the apparently divergent views of Brennan J and Deane J, his Honour said: I add, however, that if it were necessary to make a choice, there are at least three reasons to prefer Deane J's formulation. In the first place, it is more consistent with the observations of Mason, CJ and Wilson, J in Walton Stores v Maher, that the principle which underlies High Trees estoppel is that the courts will grant relief to a plaintiff who has acted to his detriment on the basis of a basic assumption in relation to which the other party has played such a part in the adoption of the assumption that it would be unfair or unjust if left free to ignore it. That view accords with the broad general ground of estoppel that where one of two innocent parties must suffer, the loss should fall on him by whose indiscretion it was occasioned. [Citations Omitted] I do not set out the other two reasons which Nettle JA relied upon. For present purposes, it is enough to highlight his Honour's observation that unfairness or injustice might arise from the "indiscretion" of one party. [69] In my view the preference expressed by Nettle JA, with the concurrence of the other members of the court, should, with respect, be adopted. The facts of this case make it clear why it is consonant with the underlying principle of guarding against unconscionable conduct to do so, as I will explain. [footnotes omitted] 1. The second aspect of this submission speaks to whether Dr Harry and Dame Leonie knew that the only reason David stayed on the Farm was because of the alleged representations. With respect, that is not the appropriate test. In Priestley v Priestley [2017] NSWCA 155, Emmett AJA (with whom McColl JA agreed) said: [136] The question is not whether the promisee or representee acted, or desisted from acting, solely in reliance on the promise or representation of the other party. Rather, the question is whether the conduct of the representee or promisee was so influenced by the promise or representation that it would be unconscionable for the promisor or representor thereafter to enforce her or his strict legal rights. It is sufficient for the promisee or representee to show that the promise or representation was a significant factor taken into account by the promisee or representee when deciding whether to act or not to act. If the belief of the promisee or representee is a contributing cause of the conduct of the promisee or representee, that will be a sufficient connection between the assumption induced by the belief and the detriment. The question is whether the promisee or representee would have committed to and continued in particular conduct that had a detrimental effect on the promisee or representee if the relevant promise or representation had not been given to the promisee or representee by the promisor or representor. [137] A promisee or representee has the onus of establishing that she or he believed the promise or representation made by the promisor or representor and of establishing that, on the faith of that belief, the promisor or representee took a course of action or inaction that would turn out to be to her or his detriment, were the promisor or representor to be permitted to depart from the promise or representation. The promisee or representee does not need to establish that the belief to which she or he was induced by the promise or representation was the sole or predominant cause of the course of action or inaction engaged in by her or him. It is only necessary to establish that the belief was a contributing cause. [138] The primary judge held that, for Duncan to establish detrimental reliance on the assumption and belief that Gordon encouraged, namely that he would inherit Gordon's estate on his death, it was necessary for Duncan to show that he would have acted differently if Gordon had not encouraged him in that assumption and belief. The test is not whether Duncan would have acted differently if Gordon had not encouraged his assumption and belief but whether he was influenced, in a significant or material way, such that it was a contributing cause to his conduct or made a difference to his action or inaction, so that it would be unconscionable for Gordon to resile from the assumption and belief that he induced in Duncan. [footnotes omitted] 1. I do not accept that an estoppel by encouragement can only arise where the representor has actual knowledge that the only reason why the representee engages in the conduct that will lead to detriment being suffered if the representation is not realised is the expectation that the representation will be made good. It will be sufficient if the making of the representation is a real or significant reason for the response of the representee. Furthermore, subjective knowledge on the part of the representor is not essential, provided that a reasonable person in the position of the representor would understand that it was probable that the representee was engaging in the conduct in the expectation that the representation would be realised. In any case, as a matter of fact, the income earned by David from the farming operation was consistently so irregular and meagre compared to the amount of arduous work that was required that, if it is accepted that Dame Leonie made the third representation to David, she ought reasonably to have assumed that part of his motivation for continuing was the expectation that he would inherit the Farm. That Hilary and Jocelyn had at various times assumed David would be left the Farm lends weight to this inference. 2. In any event, with respect to the suggestion that David did not raise the issue of the representations again with either Dr Harry or Dame Leonie, it is to be noted that there is authority for the proposition that an equitable estoppel will not be defeated because the representee had the means of knowing the truth. In Nigel Watts Fashion Agencies Pty Ltd v GIO General Ltd [1994] NSWCA 365, Handley JA said at 19: Shaw J's final reason was that the insured "must" have been aware of the terms of the policy. There could be no detrimental reliance if the insured was consciously aware of the terms of the policy but Fullagar J made no such finding. If His Lordship meant that the insured had the means of knowledge then, with respect, the statement is irrelevant because estoppels are not defeated because the party acting to his detriment had the means of knowing the truth. 1. Fourthly, Hilary submitted that the terms in which the representations were explained by David were inconsistent because, on the one hand he claimed that, after he inherited the Farm he would be able to do what he wanted with it, including to sell it, but an additional element of the plan was that Hilary and Jocelyn were to be free during their lifetimes to visit the Farm and use the Kramer house whenever they wanted to. 2. Further to my discussion above (at [36]-[41]), in DHJPM Pty Ltd v Blackthorn Resources Ltd (2011) 83 NSWLR 728; [2011] NSWCA 348, Meagher JA said: [53] The requirement that the promise or expectation be intended by the promisor and understood by the promisee to affect their legal relations applies equally to cases where a contract is not contemplated and the expectation is that some interest in land will be granted. That appears from the statement of Lord Kingsdown in his dissenting speech in Ramsden v Dyson (1866) LR 1 HL 129 at 170: "If a man, under a verbal agreement with a landlord for a certain interest in land, or, what amounts to the same thing, under an expectation, created or encouraged by the landlord, that he shall have a certain interest, takes possession of such land, with the consent of the landlord, and upon the faith of such promise or expectation, with the knowledge of the landlord and without objection by him, lays out money upon the land, a Court of equity will compel the landlord to give effect to such promise or expectation." (Emphasis added) [54] That requirement does not mean that there must be certainty in the promise or representation said to give rise to the assumption or expectation in respect of which the proprietary estoppel operates. Such an equitable estoppel can be established notwithstanding that the expectation contains elements that would not be sufficiently certain to amount to a valid contract or is formed on the basis of vague assurances: Gillett v Holt [2001] Ch 210 at 226 (citing Slade LJ in Jones v Watkins [1987] CA Transcript 1200, unreported); Baird Textiles Holdings Ltd v Marks & Spencer plc [2001] EWCA Civ 274; [2002] 1 All ER (Comm) 737 at [85]; Evans v Evans [2011] NSWCA 92 at [121]–[125] and cases there cited, especially Flinn v Flinn [1999] VSCA 109; [1999] 3 VR 712 at [80]–[81]. 1. In Moore v Aubusson [2020] NSWSC 1466, Ward CJ in Eq said at [399]: As to the requisite certainty for a representation or promise in proprietary estoppel (as distinct from the certainty requirements for estoppel by representation or promissory estoppel), I have noted above (and elsewhere) my view that the weight of appellate opinion is that there are less stringent certainty requirements for proprietary estoppel. In particular, it may be noted that representations or promises of the following kinds have, in other cases, been considered to be sufficiently clear to give rise to an estoppel (the statement in Re Basham (dec'd) [1986] 1 WLR 1498 at 1503, per Nugee QC sitting as a High Court judge, that "[y]ou'll lose nothing for this, doing all these jobs"; the statement in Gillett v Holt at 227, per Walker LJ, that "all this will be yours"; the oral promises in Giumelli v Giumelli at 116, per Gleeson CJ, McHugh, Gummow and Callinan JJ, by parents to their son that they would subdivide their property and transfer a parcel to him; the statement in Sullivan v Sullivan at [58], per Hodgson JA, that "[t]his is your Christmas present. [We] will look for a home of your/our choice for you to live in as long as you like"; the notation made in the consent orders in the Family Court that were considered in Delaforce at [18], per Handley AJA, that the husband "will retain the wife as a beneficiary in his will"; and the remarks referred to in Thorner v Major at [26], per Rodger LJ, being described as oblique remarks between men between whom "clear and unequivocal statements played little or no part". 1. The strength of Hilary's submission depends upon the assumption that is made concerning the understanding of the maker of the representation as to the true level of commitment of Hilary and Jocelyn to a right to enjoy occasional visits to the Farm. As David explained his understanding of the first representation, Dr Harry only required an assurance by David that David would allow Dame Leonie and his daughters to visit the Farm during the period of time in which he owned it. David evidently assumed that the same requirement was made of him by Dame Leonie when she made the third representation known to him. The suggested inconsistency only arises if the representations are understood as having the intent that David was entitled at the one time to treat the Farm as his own and to sell it, but also to make it available to Hilary and Jocelyn at will during their lifetimes. The fact that Dame Leonie expressed the initial intent to leave the Farm to the University of Sydney) suggests that Dame Leonie did not have a strong belief that her daughters wanted to have access to the Farm. 2. A further submission put by Hilary was that it was inherently improbable that Dame Leonie had made the third representation to David because, if she had done so, it would be necessary for the Court to find that she had acted dishonestly when she decided to leave the Farm to Hilary and not to David. 3. I do not accept the premise of this submission. A finding that a deceased person has acted unconscionably in failing to implement an assurance that a particular bequest will be made to a person to whom the assurance was made does not require a finding of dishonesty. Whether or not the failure to make that bequest is unconscionable is an objective question based upon all of the circumstances, which ultimately lead to the question of whether, having regard to how the assurance was made, the consequences of reliance on the assurance and the detriment that will be suffered as a result of the bequest not being made, that failure is to be considered by equity as unconscionable. That may occur where the deceased did not understand the assurance to have the effect as it was reasonably understood by the representee, in that person's position and with his or her known characteristics. The representor may have wrongly thought that the representee had not acted on the faith of the representation. The representor may have forgotten that the representation was made or what its terms were. The probability of the latter is likely in the light of Dame Leonie's diagnosis of dementia. In cases such as this, there may be unconscionability without dishonesty. 4. The available evidence does not justify the Court in making any finding concerning Dame Leonie's subjective honesty, and it is not necessary to do so. On the one hand, Hilary's evidence of the meeting with Dame Leonie's solicitors, in which Dame Leonie sought advice as to whether, if she left the Farm to David, it would be susceptible to a claim by Maureen, and Dame Leonie's response to affirmative advice that she absolutely did not want to risk the Farm going to Maureen is consistent with Dame Leonie having recalled the third representation but having decided that she would not accept any risk that the Farm would end up in Maureen's hands. The evidence does not really explain the level of antipathy that Dame Leonie apparently felt against Maureen. On the other hand, Jocelyn gave evidence that, in about June 2006, Dame Leonie simply stated to her that she was not going to leave the farm to David, and that she initially contemplated leaving it to the University of Sydney. That evidence is consistent with Dame Leonie either not having a present recollection of having made the third representation to David, or of having decided not to implement it even though she was aware of it. It is significant that the conversation occurred about 18 years after the third representation was allegedly conveyed to David. An assurance that was a life changing event to David may well have been a much less significant event in Dame Leonie's mind, given it was made in the highly emotional circumstances of Dr Harry's recent death. 5. Senior counsel for Hilary ended his submissions by giving a summary of the defendant's case in respect of liability. He said at T 338.49: "[E]ven if the statements were made as asserted by Mr Stone, the first thing is that what was said only encouraged in him a hope and not an expectation that he would receive the farm when Leonie had passed away, and if that be the case, no estoppel can arise …[S]econdly, even if the [representations] were made and they did encourage him to have an expectation rather than just a mere hope, neither Leonie nor Harry intended or knew that he had that expectation and that he was staying on the property only because of what they had said to him, and in those circumstances, an estoppel cannot operate either. That is the gravamen of the defendant's case here". 6. As I have accepted that David believed he had been given an assurance that he would inherit the Farm because of the third representation, and that he told Maureen and other members of his family of that belief, acceptance of the first part of this submission would require a finding that the collective effect of the representations allegedly made by Dr Harry and Dame Leonie were only reasonably capable of conveying to a person in David's position that it was possible that the Farm would be left to him when Dame Leonie died. That in my view is an inherently improbable proposition. It is more rational to decide that the assurances were made as asserted by David, or that they were not made at all. For either Dr Harry or Dame Leonie to have informed David that there was a mere possibility that he would inherit the Farm, if he continued the share farming operation for their lives would have been cruel, and I consider that it would have been out of character for both of them. 7. In response to the second aspect of this final submission, I have already explained above why I do not accept that estoppel by encouragement can only arise if the assurance is the only reason why the representee acted on the faith of the assurance, with the consequences that lead to the resiling from the assurance being unconscionable. Furthermore, it is not necessary for the representor to have any intention or subjective appreciation that the representee is acting on the faith of the assurance, if the representee is aware of circumstances that make it objectively reasonably apparent that the representee is so acting. 8. In considering the submissions made on behalf of Hilary I have substantially relied upon the succinct and comprehensive summation made by her counsel in final oral submissions. No submission was made based upon any earlier draft or executed wills of Dame Leonie that predated her final 2011 will. I am aware that the evidence contains a number of such documents: see Exhibit HLK-2 to Hilary's affidavit of 26 July 2019 Tabs 17 to 21. There are incomplete and unexecuted draft wills apparently prepared in 1996 and 1999. There are wills executed by Dame Leonie on 13 December 2000, 2 June 2003 and 18 December 2006. Each of these documents only contemplates or provides for David to receive a legacy under the relevant draft or will. The amount of the legacy increased over the three wills that were executed. From the time of the incomplete draft will apparently prepared in 1999, the Colo Property was to be bequeathed to Hilary and Jocelyn, or later Hilary alone. The incomplete draft will apparently prepared in 1996 did not mention the Colo Property. 9. I have considered these documents even though they were not specifically relied upon by Hilary in her final submissions. They tend to show that Dame Leonie may not have had in mind from as early as 1996 that she had given any assurance to David that she would leave the Colo Property to him in her will (although I would not place much weight on draft documents). This is evidence that weighs against a finding that Dame Leonie made the third representation to David less than 10 years earlier. However, I do not consider the evidence to be conclusive against David's case. That case depends upon the finding that should be made concerning the conversation that David claims occurred between himself and Dame Leonie relatively shortly after Dr Harry's death. 10. I consider that the significance of these documents is weakened when weighed against the evidence given by both Hilary and Jocelyn discussed above. Hilary's evidence was that at a meeting with her solicitors, Dame Leonie queried whether Maureen would be able to make a claim on the Farm if she left it to David, and that upon learning of the possibility, decided against it. Jocelyn gave evidence that in June 2006, months before the executed will of 18 December 2006, Dame Leonie contemplated leaving the Colo Property to the University of Sydney, and when asked why she was not leaving the property to David, responded by recounting her meeting with the solicitors and said that she would leave David a monetary amount "instead" (see [134]). 11. I have taken this evidence into account in conjunction with all of the other evidence that I have discussed above, and I am positively satisfied that, on the balance of probabilities, the third representation was made to David by Dame Leonie. 12. I am satisfied that David acted on the faith of that assurance to his detriment by continuing the farming operation on the Colo Property for about 23 years thereafter in the belief that he would inherit that property under Dame Leonie's will. 13. I am also satisfied that there is a sufficient probability, that in the absence of a belief that he would inherit the Colo Property, David would have decided that the farming operation was too hard going and would have terminated the share farming agreement and successfully pursued a more remunerative occupation. Dame Leonie ought to have known that part of David's motivation for continuing was the expectation that he would inherit the Colo Property. In those circumstances, it was unconscionable for Dame Leonie not to have left the Farm to David in her will. 14. Consequently, David is entitled to appropriate equitable relief to relieve him of the effect of Dame Leonie's unconscionable conduct. I will consider the terms of that relief below. Defences raised by Hilary 1. It is now necessary to deal with the grounds raised by Hilary in the amended defence as to why David's conduct has disentitled him to the equitable relief that he would otherwise have received. David's obligation to account to Dame Leonie 1. The most serious claim made by Hilary was that David deceived Dame Leonie on a significant number of occasions from 2007. 2. As noted above, Hilary alleged in par 21A and 21B of the amended defence that David lacks clean hands and that Equity should refuse the relief sought by him because he acted dishonestly and failed to account to Dame Leonie for all produce grown on the Farm. Hilary also alleged that David had taken advantage of Dame Leonie when her mental faculties were declining by knowingly failing to pay his proper share of the fuel costs of the farming operation. 3. The first of these claims was based on the uncontroversial fact that the evidence showed that, in 16 of the 36 quarters, beginning in the 2007 financial year, David had purchased quantities of seeds and seedlings but the proceeds of sale for which David accounted to Dame Leonie for those quarters was nil. The detail of these circumstances will be set out below in a table in the course of discussing the evidence of Hilary's expert agronomist, Mr Ivey, in relation to her alternative claim that the absence of returns from the growing of crops in these quarters demonstrated that David had conducted the farming operation incompetently and without due diligence. Hilary's case was that the absence of returns meant that either David had dishonestly failed to bring the proceeds of sale to account, or that the crops had failed because his farming practices were incompetent. 4. David responded to the evidence that was tendered against him comprehensively and in detail, primarily in two affidavits made on 18 October 2019. 5. It is not surprising that David was driven to prepare comprehensive and detailed evidence to defend himself against the claims of dishonesty levelled by Hilary. A very substantial proportion of the forensic effort in these proceedings has been directed at prosecuting and defending Hilary's claim that David performed his obligations under the share farming agreement dishonestly. The need to deal with the mass of evidence on these issues has substantially prolonged the preparation of this judgment. 6. In response to Hilary's affidavit dealing with her dishonesty and incompetence claim, David said in par 5, concerning Hilary's assertion that he "was under-declaring sales to dishonestly reduce his liability to my mother": I reply that this statement is false, deeply offensive and is founded on factual inaccuracies and a lack of understanding on the part of Hilary of both farming and of the good and trusted relationship I enjoyed with Harry and Leonie over some 36 years whilst I worked and managed the Farm in accordance with the Share Farming Agreement under the auspices of Harry and Leonie and which I address in this affidavit. 1. David responded to Hilary's claim that a total of 4,000 lettuce seedlings were purchased in the September 2010 quarter, but there were no sales of lettuce recorded in the account book, by accepting the truth of the assertion but denying that he had under-declared sales to dishonestly reduce his liability to Dame Leonie. David explained how he, as a matter of "prudent farm management practice", planted a limited test crop in order to see whether a new type of produce could be grown economically on the Farm, and that was the case for the particular quantity of lettuce that David had grown on this occasion. David explained why the crop failed and decided that lettuce could not be grown commercially on the Farm. 2. David also gave a detailed explanation in par 6.5 of his response to Hilary's affidavit as to why, in the years of 2007 to 2014, he frequently lost a substantial proportion of the cabbage and cauliflower crops growing on the Farm due to the substantial increase in the incidence of wild radish. David explained that wild radish had not been a serious problem up until about 2007, but thereafter he experienced great difficulty in preventing wild radish from ruining the crops that they infested. 3. As will be seen, it is possible that David's farming methodology was not optimal in respect of his attempts to defeat the frequent infestation of cabbage and cauliflower crops with wild radish. However, I accept that David conscientiously tried to deal with the problem with the resources available to him over the later years that the share farming agreement was in effect. 4. If in fact David had decided to defraud Dame Leonie by selling produce and not bringing the sale price to account, it is most unlikely that a table of the proceeds of sale would have the profile in Mr Ivey's table 10, which shows significant sales in some quarters and absolutely none in others. Any but the most maladroit thief would steal an undetectable portion of the proceeds of sale of the crops each year, rather than to fully account for some years' crops, but for others sell a whole year's crops and keep all of the proceeds. 5. At T 124.21, David specifically denied that there were occasions when he went to the markets and sold stock without accounting for the proceeds in his quarterly reconciliations. There was no positive evidence at all that David had ever defrauded Dame Leonie. The very fact that Hilary put the alternative case that the crops may have failed because of David's incompetence had the forensic effect of undermining her dishonesty case. That was because David accepted that the crops had failed. The parties' expert agronomists did not give evidence to support David's claim that the crops had failed, but their consideration of the issue gave the Court no reason to think that David's evidence was false. I unreservedly accept David's denial and reject Hilary's claim that David acted dishonestly in his dealings with Dame Leonie in accounting for the proceeds of sale of the crops. 6. Hilary made a claim in par 4.6 of her 26 July 2019 affidavit that, from at least 2007, fuel expenses which under the share farming agreement were to be paid equally by Dame Leonie and David were on occasions not accounted for by David in his quarterly reconciliations. 7. Hilary said in par 9 that, between about 2010 and 2014, when she dealt with David on Dame Leonie's behalf as her attorney, during the quarterly reconciliations: "Dave would open his account book to the relevant page to allow me to see the figures he had recorded for income, expenses, his quarterly bonus, fuel for that quarter, and for the Quarterly Reconciliation". 8. Hilary said in par 18 that a review of the expenses for fuel recorded by David in his account book against fuel invoices showed that fuel expenses had been omitted from the account book for nine consecutive quarters between July 2007 and September 2009 inclusive. In par 19, Hilary asserted that "the total amount of fuel expenses omitted from Dave's account books during this period is approximately $19,751.57, of which $9,875.79 should have been paid by Dave as his half share of the fuel expenses". 9. David explained in par 6 of his 18 October 2019 affidavit in response to Hilary's affidavit that he did not include fuel expenses in the farm account book as part of the quarterly reconciliation. Accounts for diesel fuel for the Farm were sent by the supplier directly to the home address of Dr Harry, Dame Leonie or Hilary, as was appropriate at the time. David annexed sample accounts to prove this claim. The Kramers paid the amounts of the invoices directly to the supplier. At the time of each quarterly reconciliation, David was told the fuel cost paid for by the Kramers, and that amount was then entered into the reconciliation. David said that, if no entry for fuel appeared in the farm books, that would be because no corresponding tax invoices were presented by the Kramers at that particular quarterly reconciliation. 10. In cross-examination, David was taken to a number of documents in the Court Book that showed payments by Dame Leonie for fuel that were not recorded in the relevant quarterly reconciliations with Dame Leonie for 12 quarters after January 2008. David accepted that he had not paid his share of the fuel bills. 11. David accepted that Dame Leonie's dementia was starting to show from 2008, in her driving ability and her capacity to do sums. 12. David also accepted that the man who delivered fuel would sometimes leave a docket at the Farm showing the cost of the fuel that had been delivered but said that this did not always happen. 13. The following cross-examination occurred at T 116.14: Q. I'll ask that again. There are a number of fuel deliveries made to the farm which you knew Leonie had paid for, but which you didn't include in your quarterly reconciliations with Leonie. That's correct, isn't it? A. That's correct. Q. That was because you knew that she wasn't in a mental condition where she would be able to pick up your having omitted the fuel from your reconciliations. A. There couldn't be a fuel reconciliation done unless Leonie brought those details to that reconciliations. That's the - that's the procedure we had. If - if - I can't avoid - I can't avoid this if Leonie presents it to me as a "this is what we've got to deal with". The fact is that if they're not dealt with, they've been missed somehow in the - in that process and probably explained, to some extent, by Leonie's condition at the time. But I don't get to make the decision whether I'm going to pay my half or not. It's - once it's presented in the books, then it gets accounted for. It hasn't been presented in the books. That's the issue, and I - I don't have a clear understanding as to why and - and I suspect it's got a fair bit to do with Leonie's condition. Q. But, look, Mr Stone, you knew at each of the reconciliations that fuel had been delivered, didn't you? A. That's true. Q. You knew from the delivery docket that was left under the brick how much the fuel had cost. You knew-- A. Not always. Q. Those documents that I've directed your attention to - except for that last one, which is illegible - all have an amount of money on them, don't they? A. There are times when they'd deliver fuel and just - they'd leave a quantity and didn't put a price to it. Q. But you could easily have included in your reconciliation the amount - for example - of $3,677.65 on the delivery docket at page 4635, couldn't you? A. I certainly could. Q. But you didn't do that because you knew that she hadn't referred to it to you and therefore she had likely forgotten that it had been paid by her. A. That's not my understanding of this. When I read what Hilary had put, I went back through this process to look and try and understand why that - that could - that has happened and to this day I don't have a clear understanding. But I understand your accusation now is that I intentionally defrauded Leonie of money and I reject that. That's not true Q. You knew that these monies had been paid by her for the fuel, didn't you? A. I think it - I knew that it - that the bills went to her. 1. David acknowledged that he knew that Dame Leonie was receiving and paying the fuel bills and that he had an obligation to pay her one half of those amounts. 2. The cross-examination continued at T 117.32: Q. But because of the condition that she was in at these reconciliations each quarter, she often would have forgotten that she had made those payments. A. I don't know what - I have no understanding of how this - how this has happened. Q. You took advantage of that A. No, I did not take advantage of that. I was not aware of it until Hilary brought this up in this documentation. I have looked at it; I can't - I do not have a - a clear understanding of how this has happened, but I know for sure that I did not deliberately take advantage of Leonie. Q. You were indicating in your quarterly reconciliations that there was no fuel adjustment but you knew that she had paid for fuel. A. I would have put that in because there was no - nothing presented to me but that - that often was the case - is that these things didn't get paid in - in a - in an orderly manner. They got - went - sometimes went into different quarters. But I accept that there's an accountability and I accept that it would be in part my responsibility to cross-check. I don't have an understanding of why this happened. I - I still don't. I - it's got me baffled. Q. But it happened over a period of three full years, Mr Stone-- A. That - that's correct, and I-- Q. One fuel payment in three full years that could not possibly have paid for all of the fuel that was used during that period, could it? A. No, no, I accept it. I accept that. Q. You must have known at the time you were preparing these reconciliations that there was fuel that she had paid for, to which you'd made no contribution. A. I don't recall it - I don't recall that at that time. You're saying that I was aware of what was going on. I accept that there was a responsibility for me in all of this. But I look at this now, and I cannot get an understanding of how this has happened. 1. David's explanation for how the errors had been made in the quarterly reconciliations was that the long-term practice of the Kramers had been to present evidence of payments made by them at the time of the reconciliations and David had simply acted upon the information that was provided to him by Dame Leonie. 2. Remembering that Dame Leonie was considered to have testamentary capacity as late as 11 November 2011, I do not accept the insinuation made by Hilary that David must have been aware that Dame Leonie's advancing dementia was responsible for her failures to claim a share of the fuel bills that she had paid, and that David had dishonestly taken advantage of Dame Leonie's disability. The most likely explanation for these events is that Dame Leonie retained a commanding presence and that David simply followed the time-honoured process that had always been adopted in striking the quarterly reconciliations, and that he was not sufficiently alert to the deterioration in Dame Leonie's capabilities to take adequate care to scrutinise the claims made by Dame Leonie. 3. The deficiency of $9,875.79 in David's contribution to fuel costs spread over three years is an average of $823 per quarter. While that amount is not inconsequential, given the meagre returns from the share farming operation, I do not consider it to be so great as to justify a finding that David was motivated by any intention to dishonestly take advantage of Dame Leonie. David's obligation to farm in a proper and workmanlike manner 1. Hilary pleaded in par 22 of her amended defence that, even if the representations asserted by David were made, it was not unconscionable for Dame Leonie to resile from them. One of the particulars for that claim, by reason of Hilary's repetition of the particulars to par 21, was that David had not conducted the farming operation under the share farming agreement in a proper and workmanlike manner. 2. Hilary did not, in her submissions, provide any conceptual framework to support her claim that an alleged breach by David of a common law contractual duty to conduct the farming operation competently should excuse Dame Leonie from being found to have acted unconscionably in departing from a representation to David that she would leave the Farm to him in her will. 3. Dame Leonie made her will on 11 November 2011, which was some time after she was diagnosed with dementia in 2010. It has been accepted that Dame Leonie had testamentary capacity when she made her will. Even allowing for earlier reduced cognitive capacity on Dame Leonie's part, there is no evidence that Dame Leonie, at any time from 2007, formed the opinion that David was not conscientiously performing his duties under the share farming agreement, or that any breach by him of his contractual obligation towards her justified Dame Leonie in declining to leave the Farm to David in her will. 4. It is therefore difficult to see why, in principle, any breach by David of any common law contractual obligation that he owed to Dame Leonie could be a valid exculpation for conduct on the part of Dame Leonie that Equity would consider to be unconscionable. 5. Furthermore, Hilary has not demonstrated that Dame Leonie suffered a loss as a result of David's alleged incompetence that was of a magnitude that would justify the Court in declining to make an order that had the effect that David would inherit the Farm. Mr Ivey's opinion 1. Hilary relied on an expert report dated 14 August 2019 by an agronomist, Richard Ivey. Mr Ivey was instructed to provide an opinion about the income that could have been generated on the Farm by a competent share farmer working under the terms of the share farming agreement, assuming competent but not exceptional managerial skills. 2. Mr Ivey's report was based on the profit and loss statements of Dame Leonie for 2009 to 2014 and the income tax returns of David for 2010 to 2016. Mr Ivey separated these years into two periods, being before and after a significant irrigation redevelopment that was completed in late September-early October 2011, following which there was evidence of increased scale and intensity of vegetable and fruit production on the irrigated area of the Farm. Mr Ivey prepared his report on the basis that Dame Leonie and David were to share the income and the cost of fuel in accordance with the terms of the share farming agreement. 3. Mr Ivey provided his opinion based upon the evidence of the seedlings and seeds purchased for the purposes of the share farming agreement for the financial years of 2008 to 2015. Mr Ivey concluded that, assuming competent but not exceptional managerial skills, if all of the seedlings had been planted, the total estimated potential gross income from the sale of produce that could be expected to be grown from those seedlings was $374,948 excluding GST. That estimate of potential gross income made no allowance for selling costs, industry levies, packaging, freight and production costs. 4. Mr Ivey's average year budget before the irrigation redevelopment assessed that the Farm was capable of generating a total income of $65,101 with total operating expenses of $55,585, giving an operating return of $9,515. After allowing for a depreciation of $6,000, the operating profit was $3,515. The equivalent average year budget after the irrigation redevelopment generated a total income of $82,526 with total operating expenses of $69,445, giving an operating return of $13,080. After allowing for a depreciation of $8,500, the operating profit was $4,580. 5. On this basis, applying the terms of the share farming agreement, the net annual return of Dame Leonie for the two periods would be losses of $26,335 and $30,882 respectively. The net annual return to David would be $35,850 and $43,963. 6. Mr Ivey calculated that Dame Leonie incurred substantial losses over those periods, and that in the financial years of 2009 to 2014, Dame Leonie made losses of $21,206, $17,728, $22,468, $32,568, $33,683 and $52,571. 7. On my calculations, the total actual loss incurred by Dame Leonie over the six-year period was $180,224. Mr Ivey calculated that the loss should have been $173,697, a difference of only $6,527. 8. In comparison to the estimated potential gross vegetable and fruit income in the financial years of 2008 to 2015 of $374,948, Mr Ivey calculated that the actual sales data for fruit and vegetables (excluding oranges and potatoes) was $132,753. 9. The clearest exposition of the factual basis of Hilary's claim, based upon the expert opinion of Mr Ivey and the difference between the number of seedlings and seeds purchased and the proceeds of crops sold (fruit and vegetables excluding oranges and potatoes), is found in Tables 9 and 10 of Mr Ivey's 14 August 2019 report. I have combined those tables to create the following table (which lacks elegance because Table 9 was prepared on a financial year basis and Table 10 on a calendar year basis): Year Quarter Actual Sales Potential sales 2006 March 2006 June Total 2006 September $606 2006 December $6,638 2007 March $2,192 2007 June $5,493 Total 2007 September $7,419 2007 December $3,094 2008 March $0 2008 June $6,065 Total $16,578 $41,790 2008 September $6,075 2008 December $0 2009 March $2,655 2009 June $0 Total $8,730 $39,864 2009 September $6,717 2009 December $8,216 2010 March $0 2010 June $0 Total $14,933 $30,113 2010 September $0 2010 December $0 2011 March $32,276 2011 June $12,335 Total $44,611 $91,552 2011 September $845 2011 December $0 2012 March $1,002 2012 June $3,002 Total $4,849 $43,690 2012 September $0 2012 December $0 2013 March $2,712 2013 June $1,067 Total $3,779 $62,150 2013 September $0 2013 December $0 2014 March $0 2014 June $13,572 Total $13,572 $39,797 2014 September $10,772 2014 December $0 2015 March $0 2015 June $0 Total $10,772 $25,992 2015 September 2015 December Total $132,753 $380,550 1. Mr Ivey concluded that there was little or no apparent, explainable relationship between potential sales (based on seedling and seed purchases) and actual sales. Mr Ivey expressed the opinion that, in the ordinary course, assuming competent but not exceptional managerial skills, a notable correlation between the farm enterprise expenses and produce sales would be expected. 2. At pars 114 and 120 of his report, Mr Ivey offered a number of explanations for the lack of an apparent relationship between potential and actual sales, and between costs and sales, some of which involved inadequacy in the data provided to Mr Ivey. However, one of the explanations was: "crop husbandry and managerial inputs may not have been of a sufficient standard to produce the expected relationships between costs and actual sales." David's evidence in response 1. The most significant feature of David's 18 October 2019 affidavit in response to Mr Ivey's report is the impression that it creates in the reader of the enormous workload undertaken by David, largely without assistance, over the period that the share farming agreement was in effect. In response to the passing growing seasons, David was required to work hard and long, often in a way that must have been exceedingly demanding and frustrating, because of the inefficiencies of the farming process and the limited equipment that was available. 2. The best example of this is the evidence given by David in par 21 of his affidavit concerning the steps that were necessary to irrigate the growing crops on the Farm before the irrigation system was improved in about 2011. 3. David also gave evidence concerning the frequency and seriousness of the flooding of the Colo River (evidence that was supported by the affidavit of Wendy Elizabeth Ward affirmed 17 October 2019 concerning rainfall and flooding records). 4. David responded to Mr Ivey's list of produce grown on the Farm by explaining that certain types of produce had not been grown or had only been grown in very limited quantities. 5. In par 25 of his affidavit, David responded to Schedule 4 of Mr Ivey's report, in which Mr Ivey estimated the potential gross income from vegetable and fruit production, by explaining the process by which David sold the Farm's produce at the Grower's Market, and the reasons why David understood that the price that he received was about 30% less than the wholesale price. Mr Stephens' opinion 1. David responded to Mr Ivey's report by serving a report dated 4 November 2019 by an expert agronomist, Mr Michael Richard Stephens. 2. In essence, Mr Stephens expressed the following opinion. The operation of the Farm under the share farming agreement has been an 'undercapitalised business, limited by insufficient labour, poor soils, inadequate machinery, a poor irrigation system and layout and has been subject to the vagaries of the market'. Mr Stephens said that the business is too small to enjoy the economies of scale and too big to allow time for the farmer to produce meaningful off-farm income. Although the new system of irrigation was an improvement, it was still not fully automatically controlled, and was required to be operated manually by driving a tractor to the pumps on the river. The adequacy of the water flow in the Colo River did not ensure that the correct amount of water could be supplied to crops at the correct time. Mr Stephens opined that the performance of the farming business was inhibited by a lack on David's part of detailed agronomic knowledge backed by independent agronomic advice. 3. Mr Stephens set out, in par 16 of his report, the inputs and outputs from vegetable farming, the absence of which may lead to lower yields. Mr Stephens explained, in par 18 of his report, how the size of the Farm placed it in a "no man's land", where it was not small enough to be farmed by a single family that could earn off-farm income, and not large enough to be farmed with full economic efficiency. 4. Mr Stephens explained, in par 20.1, that the soil on the Farm appeared to be low in organic matter and tight, and, in par 20.4, that parts of the terrain of the paddocks on the Farm are undulating and unsuitable for the purpose of irrigated vegetable production. 5. Mr Stephens said, in par 20.5, that the combination of machinery and labour necessary to ensure efficient and timely production has been absent from the Farm. 6. Mr Stephens concluded, in par 27 of his report, that Mr Ivey's method of calculating gross income made insufficient allowance for the factors that Mr Stephens had listed in his report that made the farming operation on the Farm inefficient. Mr Stephens added: … Most properties where commercial vegetable farming is practiced have rich volcanic or flood plain or free sandy soils with high organic matter. They also have irrigation systems which deliver the correct amount of water to plants at the right time. Most vegetable properties have sufficient machinery and labour to carry out all the farming operations in a timely manner. Based on my review of the Documents and inspection of the Colo property, the Colo property has none of these attributes. 1. In pars 29 to 34 of his report, Mr Stephens responded to Mr Ivey's opinion that, in the period of 2008 to 2015, the gross vegetable and fruit income from the Farm should have been $374,948. Mr Stephens first concluded that the effect of the presence of wild radish would have reduced the cabbage and cauliflower return by 35%, from $221,395 to an amount of $143,906. That adjustment would reduce Mr Ivey's estimate of achievable gross income to $298,000, which should then be reduced by a further 30% to allow for the difference between the wholesale price and the price received by the grower. Mr Stephens concluded that the estimated achievable gross income should be $208,600, rather than the $374,948 estimated by Mr Ivey. 2. This figure for achievable gross income estimated by Mr Stephens is still substantially higher than the amount of $132,753 achieved by David over the period. Joint expert report 1. Mr Ivey and Mr Stephens conducted an expert witness conclave and produced a joint expert report that was filed on 27 April 2020. Both experts were cross-examined concurrently, although their evidence was given remotely. 2. With some exceptions, the expert witnesses maintained the opinions that they had stated in their reports. 3. My assessment of the expert witnesses is that Mr Ivey based his opinion more on theoretically achievable results in accordance with published statistical data, while Mr Stephens took that data into account, but in addition was more influenced by what he considered to be the day-to-day reality of David's experience as a share farmer on the Farm over the relevant period. 4. While both experts calculated their budgets on the basis that the share farmer had competent but not exceptional managerial skills, Mr Stephens gave more weight to the fact that a share farmer in David's position would need technical advice and the resources to achieve the budgets, which David did not always have. 5. While Mr Ivey based his opinion as to the achievable income on published data, Mr Stephens also considered evidence that small local producers had to pay commissions in the order of 30% to the agents who sold their produce wholesale. 6. Mr Stephens considered that it was significant that Mr Ivey had not interviewed David, although he had inspected the Farm. 7. The expert witnesses disagreed as to whether, there being sufficient irrigation water in the Colo River, the correct amount of water could be supplied to crops at the correct time. 8. I consider that a significant difference between the opinions expressed by the two expert witnesses arose out of the assumptions that they made in determining their theoretical budgets concerning what David was required to supply under the share farming agreement. 9. In particular, Mr Ivey assumed that a competent share farmer would apply the share farmer's own skills and knowledge to the management of the farm business or engage other professionals where the share farmer's own capacity, skills and knowledge were not sufficient. According to Mr Ivey, it is the share farmer's role to identify and arrange to secure the resources required for the operation of the farm business, including plant and equipment, irrigation infrastructure, crop inputs and labour. It was Mr Ivey's opinion that matters such as crop inputs and labour would be under the direct control of a competent share farmer. Mr Stephens' response was, in effect, that these assumptions did not reflect the reality of the operation of the share farming agreement. The farming operation was 'undercapitalised and limited by insufficient labour, poor soils, inadequate machinery, a poor irrigation system and layout, and was subject to the vagaries of the market'. David lacked expert agronomic knowledge and did not have available independent agronomic advice. 10. In this respect, the following points of disagreement were recorded in the joint expert report: The Experts disagree whether the sufficiency of labour, soils machinery and the irrigation system were taken into account in Mr Ivey's Analysis. Mr Ivey expresses an opinion about the commercial potential of the Colo Property for a sharefarmer competently farming the Colo Property under the terms of the share farming agreement rather than an opinion about Mr Stone's competence as a sharefarmer. For this reason Mr Ivey's Budgets internalise these factors and assume that they are under the direct control and management of a competent sharefarmer. Mr Stephens' opinions externalise these factors and are based on the actual, historic performance of Mr Stone. 1. Mr Ivey was of the view that there are no inherent relationships between the size of vegetable production businesses and the timing of operations and quality of produce. The critical determinants are the skills, capability and application of the management team. To the contrary, Mr Stephens' opinion was that the Farm is too small to enjoy economies of scale and too big to allow time to produce meaningful off-farm income. There is an inherent relationship between the size of vegetable production businesses and the timing of operations and quality of produce. Mr Stephens said that many small vegetable farms rely on an abundance of family labour which was not available in this case. 2. Mr Stephens acknowledged that, with the benefit of hindsight, it would have been better for David to avoid planting the cabbage and cauliflower crops that he did plant, because of the wild radish infestations, but the fact is that they were planted and the presence of wild radish reduced the yield. 3. Another assumption of significance made by Mr Ivey was that a competent share farmer would be responsible for arranging soil testing if required, and had direct control over the nutrient management for crops on the Farm, the operation of the irrigation system, the weeds, the marketing and packaging of produce, and the method and timing of harvests. Mr Ivey also assumed that produce would be sold on the open market with prices received reflecting prevailing market prices. 4. To the contrary, Mr Stephens was of the view that it is unreasonable to hold David accountable for the soil type, and that, in determining the responsibility of the share farmer, it is necessary to take into account that a share farming agreement is shaped over time by the accepted practice and actions of the parties to the agreement. 5. I have not attempted to summarise all of the issues in the joint expert report in respect of which the experts have expressed agreement or disagreement. In considering the significance of the differences between the expert opinions expressed by the two witnesses, it is necessary to have regard to the reason why the expert evidence has been tendered and the use to which that evidence can properly be put in determining the issues raised by the case. 6. This is not a case where Hilary has claimed an amount of damages for breach by David of a common law contractual obligation to conduct the share farming operation competently and to achieve a reasonable economic return for the landowner. Rather, the issue is whether the performance by David of his obligations to Dame Leonie was so deficient that her conduct in resiling from her representation to him should not be considered to be unconscionable. 7. That being the case, I consider that the approach adopted by Mr Stephens is the most apposite and is to be preferred over the approach adopted by Mr Ivey. The issue is not the theoretical optimal return that David could have achieved from conducting the share farming operation proficiently, but rather whether, given the unique arrangement between David and Dr Harry, and then Dame Leonie, and having regard to the reality of the farming operation, David's conduct of the share farming operation was deficient. I find that Hilary has not established that David's conduct of the share farming agreement disentitles him from whatever equitable relief he may otherwise have been given. 8. I should also record that I preferred the evidence of Mr Stephens generally to that given by Mr Ivey. I mean no disrespect to Mr Ivey whose reports were competently prepared. However, I consider that the assumptions made by Mr Ivey concerning the share farmer's resources, in relation to being able to pay for external expert advice, to conduct soil testing, and to control the level of machinery and other farming inputs, were assumptions that are simply not consistent with the circumstances of the share farming agreement in this case, and the relative resources of David and the Kramers. Mr Ivey assumed that David had resources that may generally be expected to be available to a competent share farmer, which David clearly did not have, and could not have afforded, given his meagre income from the share farming operation. The Kramers were well aware of the reality, and did not in fact expect David to apply to the farming operation the various resources that were assumed by Mr Ivey in his report. 9. The reality is that the Kramers always recognised that the Farm was incapable of generating a reasonable income for David, which is reflected in the portion of his income that was paid in the form of bonuses. The Kramers must also have recognised that the operation of the share farming agreement would most likely generate continuing losses for them. David's entitlement to rent-free accommodation 1. One of the factors relied upon by Hilary to establish that it was not unconscionable for Dame Leonie to resile from the representation asserted by David was that David and his family had rent-free accommodation on the Farm for almost 40 years: see amended defence par 22(c). 2. It is true that David was entitled to occupy the second cottage on the Farm rent-free as an incident of the share farming agreement. However, the value of that benefit to David should be measured against the standard of accommodation that it provided David and his family. 3. The best evidence of the real circumstances experienced by the occupants of the cottage is in the following unchallenged evidence given by David's former de facto partner, Maureen, in her affidavit of 23 October 2018: 23. The house I lived in with Dave lacked what I regard as basic living essentials. By this I mean, there was no fresh water to wash clothes. The water supply for washing clothes was bore water. It was harsh on clothes and discoloured them. There was no bore water tap connected to the house which meant I had to wash the clothes in the open, adjacent to the bore water tap and sink outside the house and had a washing load for a baby, two young girls, Dave and myself. There were no insect screens on the windows and there were a multitude of insects, including mosquitoes, that entered the house if the windows and doors were not closed and some insects managed to find their way indoors regardless of closed windows and doors. In the summer months the house was often very hot and it was stifling hot if there was no breeze. To the best of my understanding, there was no insulation in the roof nor between the inner and outer walls of the house. In the winter months the house was very cold and the fire place was small and did not heat up the entire house. The kitchen had a grill and a cook top; no oven. There were no ceiling fans and nor was there any air-conditioning unit. There were holes in the rainwater tank. There was no window in the bedroom Dave and I shared. The ceiling sagged in places. The veranda at the front entrance to the house was dilapidated whereby floor boards had weathered away and were broken; it was not safe to walk on and anyone walking toward the front of the house could not avoid seeing the dilapidated veranda. 24. Vermin entered the house. Many times, when I would first go into the kitchen of a morning, I had to wipe the bench tops clean from mouse droppings. I often checked cupboards and drawers for mouse droppings and I removed them. I had to be ever vigilant of the manner by which I stored food to ensure no vermin infested the food supplies. There were mosquito larvae in the drinking water which came from the rain water tank attached to the house. I had to check the drinking water before giving a glass of water to anyone and checking the water in the kettle before boiling the water to remove the mosquito larvae. On one occasion I found a Diamond Python in -in the roof cavity of the house. 1. Plainly, David's rent-free accommodation must have had a value to him. However, Hilary made no attempt to lead evidence to establish the effective value of that benefit. Given the extremely meagre income that David earned from the share farming agreement, I am not satisfied that his entitlement to enjoy the rent-free accommodation was sufficiently valuable to be of any significance in determining whether it was unconscionable for Dame Leonie to fail to leave the Farm to David in her will. David's obligation to maintain his house 1. Hilary's claim in particular (c) to par 21 of the amended defence that David did not comply with the share farming agreement because he failed to maintain the house in which he lived is not made out, given that I have found that the share farming agreement did not contain a term requiring David to maintain the house. Entitlement of David to half the proceeds of sale of produce and a bonus 1. Even though it is true that the share farming agreement contained terms entitling David to half the proceeds of sale of the crops and the bonus, as alleged by Hilary in par 22 particulars (b) and (d), those receipts only constituted the meagre income enjoyed by David. This entitlement could not in Equity deprive David of his right to the equitable relief that he claims. Loans made to David 1. Although there is evidence of loans being made by the Kramers to David from time to time, Hilary has not established the case raised by par 22 particular (f) of the amended defence that David over the course of time has been forgiven loans to a value that had the effect that it was not unconscionable for Dame Leonie not to leave the Farm to him in her will. Such evidence as there is, suggest that generally loans that were noted in the farm accounts were required to be repaid by David out of his later shares in the proceeds of sale of the crops. While it may be that some relatively small loans that were made to him were forgiven, the aggregate amount of the loans has not been shown to justify the Court in denying David the equitable relief that he seeks. David's desire only to live on the Farm 1. David freely acknowledged in his evidence his love of farming and living a rural life. However, once it has been established on the balance of probabilities that David, for financial reasons, would have terminated the share farming agreement and sought alternative employment, if he had not believed that he would inherit the Farm, the fact that he is the type of person who acknowledges a preference for an outdoor working life is of little relevance to his entitlement to relief. There is no way that the Court can place a value on this factor, and it would have to be weighed against a myriad of other considerations, such as the extreme hard work that was required in order to conduct the farming operation single-handedly, and the requirement that he live in the inadequate accommodation that he had for decades. Bequest of $200,000 to David 1. In particular (g) to par 22 of the amended defence, Hilary relied upon the fact that Dame Leonie had made a gift of $200,000 to David in her will as a reason for why it was not unconscionable for her not to leave the Farm to David. 2. David's evidence was that, when Dame Leonie made the third representation to him, she told him that, as well as leaving the Farm to him "there will also be a sum of money". The amount of the gift was not mentioned. David did not say in evidence that he expected a gift in any particular amount, or that the expectation was a factor in causing him to continue throughout the life of Dame Leonie to conduct the share farming operation, rather than to have found alternative employment. 3. There was some evidence from Jocelyn that, in circumstances where Dame Leonie had said that she did not intend to leave the Farm to David, she proposed to make a gift to David in her will of $75,000, and Jocelyn urged her to increase that amount. Dame Leonie ultimately did increase the gift to $200,000. 4. Accordingly, not only did David not propound the case that he had an expectation to receive any particular bequest in Dame Leonie's will, but there are grounds for the Court to believe that the bequest that he in fact received under the will was at least substantially more than he would have been given by Dame Leonie if she had acted under a belief that conscience required her to leave the Farm to David. Appropriate relief 1. As I have recorded above when considering the applicable legal principles, the Court is no longer required to approach the issue of relief on the basis that a party who establishes a right to property by estoppel by encouragement is only entitled to the "minimum equity". In principle, I consider that this is a proper case for requiring Dame Leonie's estate to make good the third representation. 2. Hilary submitted that the Court should consider providing alternative relief to David, but Hilary has done nothing to show what alternative relief may be equitable, or to assist the Court in formulating any appropriate orders or to determine a proper value for the relief that she says should be awarded in lieu of an order that the Farm be transferred to David. 3. I am satisfied, however, that it would not be equitable to Dame Leonie's estate for the Court to order that the Farm be transferred to David in circumstances where he was entitled to keep the $200,000 bequest as well. 4. I appreciate that, if David is required to return $200,000 to Hilary as executor of Dame Leonie's estate, that may have a practical effect on David's ability to keep the Farm. 5. However, it may be that the quantum of David's entitlement to costs as a result of his success in these proceedings will be for an amount that may be set off against the obligation to repay the $200,000 in a way that will extinguish that obligation. 6. The parties should consider these reasons and confer as to appropriate short minutes of order to give effect to them and provide the draft short minutes of order to my Associate. Costs 1. David is entitled to an order that Hilary pay his costs of the proceedings. I will hear David if he claims an entitlement to an order that the costs be payable other than on the ordinary basis. 2. I record that, if I had found against David on his claim for an order that the Farm be transferred to him on the basis that he was entitled to assert an estoppel by encouragement against Dame Leonie's estate, I would have nonetheless ordered Hilary to pay David's costs of all of the defences raised by her as to why David should be denied the remedy that he sought. I consider that all of these grounds, particularly the dishonesty and the incompetence claims, were completely separate from David's claim to enforce the estoppel by encouragement against Dame Leonie's estate. ********** Endnote 1. https://www.abs.gov.au/statistics/labour/earnings-and-work-hours/average-weekly-earnings-australia/nov-2020 Amendments 17 December 2021 - Amendment to tables format DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 December 2021