Reeves v Reeves [2024] NSWSC 134

Supreme Court New South Wales

Medium Neutral Citation: Reeves v Reeves [2024] NSWSC 134 Hearing dates: 11-15 September, 11-12 October 2023 Date of orders: 26 February 2024 Decision date: 26 February 2024 Jurisdiction: Equity Before: Meek J Decision: Will construction and rectification claims dismissed. Estoppel claim succeeds. Catchwords: SUCCESSION — Dispute between the plaintiff and the defendant who are the only two children of the deceased, who died in 2021, regarding their entitlements to valuable farming land in Dungog region, which at her death comprised 21 lots — Plaintiff claims that in teenage years the deceased (his mother) and his father (who died in 2005) made initial promises of inheritance of "half of the farm" on which he acted in various ways including forgoing the study of medicine and forgoing an opportunity of postdoctoral studies overseas to remain on the farm and provide assistance in respect of the farming operations which initially involved dairying operations — Subsequent to his father's death the plaintiff claims the deceased, who ceased dairying operations and leased 13 of the 21 lots and part of another lot (predominantly north of a road dividing the farming property) (the "leased lots"), gave encouragement to the plaintiff to continue work he had engaged in maintaining the leased areas on the promise of receiving the leased lots — Plaintiff continued the work — Deceased made a Will relevantly giving the plaintiff only 2 of the leased lots and the balance of her real property to the defendant — Plaintiff sought relief that the reference by name to the gifted lots should be properly construed as being a reference to most of the lots north of the dividing road — Plaintiff in addition to the construction claim sought rectification of the Will to the above effect — Plaintiff alternatively to the construction claim and rectification claim sought entitlement to the 14 lots by means of an estoppel — Held construction and rectification claims to be dismissed but estoppel claim succeeds WILLS — Construction — Principles — Discussion of appropriate method for describing landholding — The appropriate method will depend upon various factors including context — Generally use of the words "more particularly described (as)" followed by a distinct title reference, is a useful and appropriate drafting technique to remove doubt about what land is precisely the subject of a gift SUCCESSION — Wills — Rectification — Whether always necessary to construe document first — Discussion of rectification principles – Consideration of requirements of 'clerical error' — Consideration of conjunction 'because' in s 27(1) Succession Act 2006 (NSW) EVIDENCE — Presentation of evidence regarding complex landholdings — Forensic assistance to the Court, and to witnesses, of having a large map version of the deceased's landholdings to identify the disputed landholding by reference to a single document, so that the evidence of the many witnesses could be comparable and comprehensible by reference to a fixed or standard reference point — Practitioners commended for thoughtful presentation of maps EVIDENCE — Assessment of evidence of witnesses where estoppel claims based on some conversations in the decade prior to the deceased's death and some many decades ago — Assessment of evidence of professionals engaged by the deceased including evidence of a solicitor regarding instructions for a will made over a decade prior to the deceased's death where the solicitor's electronic file is lost ESTOPPEL — Estoppel by encouragement — Farming properties — Plaintiff's case for detriment presented holistically, with all of the elements of forgoing opportunities and work carried out sharing the common thread that the plaintiff (for the most part) remained living and working in or around the family farm secured by the promises that he would inherit, under the initial promises, "half of the farm" and, by the subsequent promises, the "leased lots" ESTOPPEL — Discussion of issues including whether career choices may constitute detrimental reliance — Discussion of 'counterfactual case', significance of countervailing benefits and proportionality of relief — Held choices made by the plaintiff involved life changing decisions with irreversible consequences of a profoundly personal nature, beyond the measure of money — Held relief claimed not "wholly disproportionate" or "out of all proportion" to his detriment Legislation Cited: Administration of Justice Act 1982 (UK) Civil Procedure Act 2005 (NSW) Conveyancing Act 1919 (NSW) Evidence Act 1995 (NSW) Probate and Administration Act 1898 (NSW) Succession Act 2006 (NSW) Supreme Court Rules 1970 (NSW) Supreme Court Rules (Amendment No. 337) 1999 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Alan Wibberley Building Ltd v Insley [1999] 1 WLR 894 Alcan Australia Ltd v Geraghty (Supreme Court (NSW), Young J, 8 October 1993, BC9302153, unrep) Allgood v Blake (1873) LR 8 Exch 160 Ashton v Pratt (2015) 88 NSWLR 281; [2015] NSWCA 12 Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd (2014) 253 CLR 560; [2014] HCA 14 Bear v Bear; Jordan v Bear [2022] NSWSC 1687 Bell v Georgiou [2002] EWHC 1080 (Ch); [2002] WTLR 1105 Blacket v Barnett [2017] NSWSC 1032 Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 Carrington v Wallace [2019] NSWSC 1301 Commonwealth v Verwayen (1990) 170 CLR 394; [1990] HCA 39 Coorey v George (Supreme Court (NSW), Powell J, 27 February 1986, BC8601222, unrep) D Capital 2 Pty Ltd v Western [2022] NSWSC 1064; (2022) 20 BPR 42,919 Daniel v Athans [2022] NSWSC 1712 De Lorenzo v De Lorenzo (2020) 104 NSWLR 155; [2020] NSWCA 351 Delaforce v Simpson-Cook (2010) 78 NSWLR 483; [2010] NSWCA 84 Dillwyn v Llewelyn (1862) 4 De GF & J 517; 45 ER 1285 Donis v Donis (2007) 19 VR 577; [2007] VSCA 89 Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95; [2002] HCA 8 Estate of JA Gilmore, deceased [2014] NSWSC 1263 Evans v Evans [2011] NSWCA 92 Fairbairn v Varvaressos (2010) 78 NSWLR 577; [2010] NSWCA 234 Farrelly v Phillips (2017) 128 SASR 502; [2017] SASCFC 111 Fell v Fell (1922) 31 CLR 268; [1922] HCA 55 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Galaxidis v Galaxidis [2004] NSWCA 111 Gan v Xie [2023] NSWCA 163 Gazzo v Comptroller of Stamps (Vic) (1981) 149 CLR 227; [1981] HCA 73 Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm) Gillett v Holt [2001] Ch 210 Giumelli v Giumelli (1999) 196 CLR 101; [1999] HCA 10 GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 97 ALJR 857 Habberfield v Habberfield [2019] EWCA Civ 890 Henry v Henry [2010] UKPC 3; 1 All ER 988 Horn v GA & RG Horn Pty Ltd [2022] NSWSC 1519 Horn v GA & RG Horn Pty Ltd (No 2) [2022] NSWSC 1747 Idoport Pty Ltd v National Australia Bank Ltd (2000) 49 NSWLR 51; [2000] NSWSC 338 IMO Leys [2000] VSC 164 James v Douglas [2016] NSWCA 178 Kaplan v State of Victoria (No 8) [2023] FCA 1092 King v Perpetual Trustee Co (Ltd) (1955) 94 CLR 70; [1955] HCA 70 Kramer v Stone [2023] NSWCA 270 Lewis v Stewart [2018] NSWSC 1186 Lindsay-Owen v Lake [2000] NSWSC 1046 Lockrey v Ferris [2011] NSWSC 179 Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42 Marley v Rawlings [2015] AC 129; [2014] UKSC 2 Maxwell v Maxwell [2022] NSWSC 1028 Middleton v Schofield [2022] NSWSC 1454 Moore v Aubusson [2020] NSWSC 1466 Muir v Winn [2009] NSWSC 857 Perpetual Trustee Co Ltd v Wright (1987) 9 NSWLR 18 Perrin v Morgan [1943] AC 399 Plunkett v Bull (1915) 19 CLR 544; [1915] HCA 14 Priestley v Priestley [2017] NSWCA 155 Q (a pseudonym) v E Co (a pseudonym) [2020] NSWCA 220 Ramsden v Dyson (1866) LR 1 HL 129 Re Cobcroft [2015] NSWSC 346 Re Will of McCowen [2013] NSWSC 1000; (2013) 9 ASTLR 337 Riva NSW Pty Ltd v Key Nominees Pty Ltd [2023] NSWSC 711 Shymko v Lach [2022] NSWSC 1096 Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19 Sidle v Queensland Trustees Ltd (1915) 20 CLR 557; [1915] HCA 48 Singh v Singh [2018] NSWCA 30 Soulos v Pagones [2023] NSWCA 243 Sullivan v Sullivan [2006] NSWCA 312 Taylor v Stav Investments Pty Ltd as trustee for the Stav Investments Family Trust (No 2) [2023] NSWCA 322 Thorner v Major [2009] UKHL 18; [2009] 1 WLR 776 Vescio v Bannister (Estate of the late Betty Tait) [2010] NSWSC 1274 Waddell v Waddell [2012] NSWCA 214 Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; [1988] HCA 7 Wang v Yu (No 2) [2024] NSWSC 4 Warton v Yeo [2015] NSWCA 115 Whittaker v Child Support Registrar [2010] FCA 43 Wild v Meduri [2023] NSWSC 113 Texts Cited: Carr, Daniel J, "Rectification of testamentary writings in Scotland, England and Wales, and Australia" (2023) 17 J Eq 181 Dal Pont, GE, Interpretation of Testamentary Documents (2019, LexisNexis Butterworths) Dal Pont, GE, Law of Succession (3rd ed, 2021, LexisNexis) Heydon, JD, MJ Leeming and PG Turner, Meagher, Gummow and Lehane's Equity Doctrine & Remedies (5th ed, 2014, LexisNexis Butterworths) Macquarie Dictionary, online ed McFarlane, Ben, The Law of Proprietary Estoppel (2nd ed, 2020, Oxford University Press) Meek J, "Will Construction" (Paper), NSW Bar Association Succession and Elder Law Committee, 22 March 2023 Category: Principal judgment Parties: Russell Robert Reeves (Plaintiff) Kevin Wayne Reeves (Defendant) Representation: Counsel: C Birtles with J Green (Plaintiff) S Fendekian with F McNeil (Defendant)