Industrial Court of New South Wales CITATION: Leckie v Crockett and Ors (No 2) [2007] NSWIRComm 42 APPLICANT: Stuart Leckie FIRST RESPONDENT: Owen Crockett PARTIES: SECOND RESPONDENT: Judy Crockett THIRD RESPONDENT: Peter Crockett FILE NUMBER(S): IRC 1188 of 2005 CORAM: Schmidt J CATCHWORDS: Unfair Contract - family farming operation - whether applicant should be entitled to one-third share of the farming operation - claim not made out - whether applicant should be set up in his own farming operation - claim not made out - notice of termination - termination by applicant - stress and anxiety claim - onus not met - application dismissed - costs LEGISLATION CITED: Industrial Relations Act 1996 Autobake Pty Limited v Budd (1986) 19 IR 18 King v State Bank of NSW (No 2) (2002) 126 IR 407 Kofler & 15 Ors v Boral Gas (NSW) Pty Limited (Unreported, Hill J, 13 December 1996) CASES CITED: Leckie v Crockett and Others [2007] NSWIRComm 11 McMurtrie v Commonwealth of Australia [2006] NSWCA 148 St Vincent's Hospital Ltd v Harris (1998) 81 IR 173 Stevenson v Barham (1976-7) 136 CLR 190 Vision Publishing Pty Ltd v PK Lane Holdings Ltd & Ors (1998) 84 IR 277 HEARING DATES: 29 January 2007, 30 January 2007, 31 January 2007, 1 February 2007, 5 February 2007 DATE OF JUDGMENT: 26 March 2007 APPLICANT: Mr I Latham of counsel SOLICITORS: Harris & Company LEGAL REPRESENTATIVES: RESPONDENTS: Mr A Moses of counsel SOLICITORS: Garden & Montgomerie JUDGMENT: - 72 - INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: Schmidt J 26 March 2007 Matter No IRC 1188 of 2005 STUART LECKIE v OWEN CROCKETT AND OTHERS Application under s.106 of the Industrial Relations Act 1996 JUDGMENT [2007] NSWIRComm 42 1 In these proceedings Stuart Leckie complains that the arrangement under which he and the respondents worked together in a family farming operation, was unfair in a variety of ways, including in not requiring that he be given notice, when the respondents brought the arrangement to an end in 2004. The respondents deny that they brought the arrangement to an end. The applicant seeks orders of avoidance or variation of the arrangement as well as money orders of various kinds under s106 of the Industrial Relations Act 1996 ('the Act'). 2 The respondents had also commenced proceedings under s106 against Stuart Leckie (Matter Number IRC 5036 of 2005). On the first day of the hearing those proceedings were discontinued, with the question of costs being reserved. On the second day of the hearing Stuart Leckie was granted leave to amend his summons, in order to bring a new alternative claim, such leave not being opposed. At the end of the applicant's case the respondents sought to make a no case submission, on the basis that they would not be called upon to make an election in relation to calling evidence. That application was refused. (See Leckie v Crockett and Others [2007] NSWIRComm 11.) 3 The applicant's summons, as amended at the hearing sought orders that: 1. An order declaring void in whole or in part either from its commencement or from some other time the contract or the arrangement whereby the applicant performed work in the farming industry for the respondents ("the unfair arrangement"). 2. Further, in addition or in the alternative, an order declaring that the unfair arrangement is unfair, harsh or unconscionable and against the public interest. 3. An order that the unfair arrangement be varied so as to include provisions dealing with the following maters: (a) A provision that the respondents provide Stuart Leckie with reasonable notice of termination of their joint farming enterprise, such reasonable notice being fifteen months, or payment in lieu thereof, calculated on the basis of a fair distribution of the profits of the joint farming enterprise; (b) A provision that joint enterprise decisions be made by all the parties participating equally; (c) Provisions to protect Stuart Leckie against; - (i) arbitrary conduct by the respondents, particularly Owen Crockett; (ii) the operation of the joint enterprise to the relative advantage of the respondents and to his disadvantage. (c) Provisions to fairly bring the joint enterprise to an end and to distribute it assets amongst the parties. (d) Provisions for the fair and equitable distribution of the income of the joint enterprise and to provide Stuart Leckie with long term secure employment and remuneration. (e) Provisions providing for Stuart Leckie to have an identifiable share and interest in the joint enterprise. (f) Provisions to provide for a basis upon which Stuart Leckie's remuneration can be calculated based on the duties which he performed, the hours which he worked and his contribution towards the financial wellbeing and success of the joint enterprise. (g) Provisions which prevent the respondents, particularly Owen Crockett from unfairly dealing with Stuart Leckie; (i) contrary to his legitimate expectations; and (ii) causing him to suffer distress and anxiety, both as to his present employment circumstances and his future. 4. An order that the unfair arrangement be varied so as to delete from it any terms and conditions which contradict or modify the provisions referred to in paragraph 3 above, or which would allow the respondents to act in contravention of those provisions. 5. An order that the respondent pay to the applicant monetary compensation in connection with the unfair arrangement so avoided or varied as may appear to be just in the circumstances. 6. An order that the respondents pay to the applicant interest upon such compensation as is ordered to be paid to the applicant in connection with the unfair arrangement at such rates and from such time as this Honourable Commission considers appropriate. 7. An order that the respondents pay the applicant's costs of these proceedings. 8. Such further or other orders as this Honourable Commission considers just or appropriate in the circumstances. 4 The money orders sought were: 1. Fifteen months payment in lieu of notice $130,000 of termination of the joint enterprise and Stuart Leckie's employment: 2. Compensation for the under payment of to be quantified Stuart Leckie throughout the period after discovery of the joint enterprise: 3. Compensation for the value of stock and $250,000 equipment necessary to be purchased by Stuart Leckie to re-establish the commercial viability of Iona and Westholme as farming ventures; or in the alternative compensation by way of valuation and distribution of stock and equipment: 4. Compensation for distress and anxiety: $10,000 5 Order 2 as to underpayment was not pressed. It was order 3 which was amended during the hearing, to bring an alternative claim. 6 Initially the parties agreed that the matters which required the Court's resolution in the proceedings were: 1. Is there a contract or arrangement for the purposes of s.106 of the Industrial Relations Act 1996 (NSW)? 2. Who is the contract or arrangement between? 3. What are the terms of that contract or arrangement? 4. Is work performed pursuant to that contract or arrangement? 5. Is the contract or arrangement unfair? 6. In what ways is the contract unfair? 7. Who terminated the contract or arrangement? 8 If unfair; what remedy may the Court grant? 9. If the Court may grant a remedy; are there discretionary reasons as to why a remedy might not be granted? 10. If the Court decides to grant a remedy; should such remedy include a sum of money to be ordered to be paid pursuant to s106(5) of the Industrial Relations Act 1996 (NSW)? 11. If a remedy is to include a sum of money; how is the sum of money to be calculated? 12. What costs order should be made? 7 Later, the respondents made the following concessions: 1. There was an arrangement. 2. The arrangement involved farming operations. 3. The arrangement was one whereby work was performed in an industry. 4. The Applicant, Owen Crockett, Peter Crockett (from 1996) and to a lesser extent Judy and Wendy Crockett undertook labouring and other tasks necessary for the efficient operation of the farms. 5. The farming operations by 1 February 2000 were conducted at Yeronga Hill, Iona and Westholme and Marysville. 6. In or about 1995, Peter Crockett started work on the farming operations. 7. No formal agreement was entered into in relation to the arrangement. 8. The arrangement was never committed in writing. 9. There was no set formula for the distribution of profits. 10. Payments were made at irregular intervals for varying amounts if and when money was available and at the absolute discretion of Owen and Judy Crockett. 11. Owen and Peter Crockett removed a number of items of property from the property of Stuart Leckie and Wendy Crockett. 12. On about 13 and/or 14 December 2004, Owen, Peter and Judy Harvested an oat crop on Iona. 13. On about 15 December 2004, Owen and Peter Crockett harvested a crop of wheat at Yeronga Hill. 14. On 12 February 2005, Peter Crockett went to Iona, cut the locks and moved the cattle to Fernleigh. The evidence 8 Evidence was given by the applicant; Ronald Leckie; Graham Peart, Agricultural Consultant; each respondent and Wendy Crockett. An expert report prepared for the respondents by Peter Tremain, Agricultural Consultant, in their discontinued proceedings was tendered in the applicant's case. Mr Tremain was not required for cross examination. 9 The evidence showed that the arrangement here in question came into existence in 1990, after Stuart Leckie and Wendy Crockett had acquired a property, Westholme, near her family's farm. 10 Wendy Crockett's father Owen had worked on family farms throughout his life. In 1951, he acquired Yeronga Hill, the 1600 acre property which he and his wife Judy farmed in partnership together after their marriage in 1957. They raised their children, Peter and Wendy, on that farm. They also farmed a second 364 acre family property, Iona, on which Owen Crockett had been raised. It was transferred to Owen Crockett by his father in 1985. His father lived on Iona and worked in that farming operation until his death in 1990. The property had been in the Crockett family since 1911. 11 In 1990, Owen Crockett transferred the ownership of Iona to Wendy Crockett and Stuart Leckie for $1. They were both trained nurses, having met in Sydney while working there. Wendy Crockett returned to work on her father's farm in 1986. Stuart Leckie accompanied her and worked part-time as a nurse, as well as assisting on the farm. He was paid on a casual basis for his farming work. To that point he had had some experience in farming work, on his uncle's farm at Narromine. Wendy Crockett and Stuart Leckie married in 1986 after their move to the country. Wendy Crockett began part-time nursing in March 1987, when she found that she was pregnant and, over time, she reduced her work on the farm. 12 The decision to transfer Iona to both Stuart Leckie and Wendy Crockett was made by Owen and Judy Crockett as a matter of succession planning. Owen and Judy Crockett intended that Wendy Crockett would have a lesser share of the Yeronga Hill estate on their passing. It was Wendy who asked her parents to transfer the farm into both her and Stuart Leckie's names. It was not disputed that it was understood between them all that Owen and Judy Crockett would continue to farm Iona after the transfer and that is what occurred. 13 Later in 1990, Stuart Leckie and Wendy Crockett purchased the 386 acre Westholme property, for about $270,000. The purchase was funded from the proceeds of the sale of a property at Cremorne which was owned by Stuart Leckie, as well as funds provided by his father, Ronald Leckie. The Cremorne property had originally been paid for in part by Ronald Leckie. Stuart Leckie had lived there, before he moved to the country with Wendy Crockett. Stuart Leckie initially claimed in these proceedings that the amount of a loan made by his father when Westholme was purchased was some $250,000. He and Ronald Leckie swore affidavits to the effect that Ronald Leckie had owned the Cremorne property. They both later conceded that the property was owned by Stuart Leckie and that the loan was only of some $58,000. Wendy Crockett's evidence was that she had always understood from Stuart Leckie that he owned the Cremorne property and that the $58,000 was a gift to them from his father, not a loan. The latter was still disputed. 14 In 1990, it was agreed that the Westholme property would also be farmed by Owen and Judy Crockett; that Stuart Leckie would cease nursing and would work with them on the farm and that Wendy Crockett would increase her nursing work. Stuart Leckie and Wendy Crockett thereafter received a share of the profits of the overall farming operation. 15 Between 1987 and 1992, Stuart Leckie and Wendy Crockett had four children. There was a substantial renovation of the homestead at Iona between 1990 and 1991, paid for, in part, by Owen and Judy Crockett and in part from Wendy Crockett's savings. Owen and Judy Crockett later paid for a pool to be installed at Iona. By 1993, Wendy Crockett was nursing full-time. 16 In 1996, Peter Crockett, his wife and two children returned to Molong and for a period of time, they lived in a house on Westholme, which had been empty. They carried out renovations to that house. Peter also began working in the farming operation. He had worked on his parents' farm while growing up and for 4 years after leaving school, before working off the farm as a welder for some 15 years. In 2000, Peter Crockett leased a 1200 acre property, Marysville, which was then also used for the family farming operation. The cost of the lease was met by both Peter Crockett and Stuart Leckie, so that what they each spent on lease fees for Marysville and the rates paid by Stuart Leckie and Wendy Crockett on Iona and Westholme, was roughly equal. 17 Other renovations to Westholme and Iona were later made by Stuart Leckie, funded in part by a loan from his brother, with some improvements paid for by his father. 18 Owen and Judy Crockett conducted their farming operation in partnership with each other. That continued when the operation expanded to include Westholme and later Marysville. Stuart Leckie and Wendy Crockett also entered a partnership, which shared in the profits of the farming operation, as did Peter Crockett and his wife, when Peter Crockett began working in the operation. 19 In 1990, when Owen and Judy Crockett agreed to expand their farming operation over Westholme, their partnership continued to meet the costs of the expanded farming operation. The partnership purchased the plant, stock and equipment required for the operation; received the income; distributed a part of the profit to Wendy and Stuart's partnership and kept the balance of the profit. This arrangement was later altered when Peter Crockett began working on the farm, so that the partnership between he and his wife could participate on the same basis as Stuart Leckie and Wendy Crockett's partnership. There was no evidence that Stuart Leckie, Wendy Crockett, Peter Crockett or his wife made any financial contribution to the operation, when they joined the arrangement. 20 Between 1990 and the end of 2003, Stuart Leckie and Wendy Crockett received a share of the profits of the farming operation in partnership with each other, even after their partnership was dissolved earlier in 2003. From December 2003 until the end of 2004 when the arrangement came to an end, profits were paid only to Stuart Leckie and he paid no share of what he received to Wendy Crockett. 21 Peter Crockett and his wife also received income from the farming operation, in partnership with each other, until their separation and afterwards, his wife still received a share of profits from Peter. 22 The farming operation was always managed day-to-day by Owen Crockett, who made most of the necessary business decisions. Stuart Leckie described any consultation as 'minimal' and that apart from routine farming tasks, he 'generally performed work as directed' by Owen Crockett. Owen Crockett's evidence was to similar effect, but that he consulted Judy Crockett, Stuart Leckie and Peter Crockett, and on occasions Wendy Crockett, on significant decisions. 23 Owen and Judy Crockett made decisions as to the amount and timing of the payments made to Stuart Leckie and Wendy Crockett and later to Peter Crockett and his wife. The payments were made regularly at intervals of between 6 and 12 weeks, as income permitted. Stuart Leckie pressed no complaint in the proceedings as to the income he received from the operation, while it continued. 24 The arrangement, as it was first made and as it altered over time was entirely informal. It was never documented. It was not Stuart Leckie's claim that there had ever been any partnership between he and the respondents. His case was that it was an informal family arrangement. That was corroborated by the respondents and by Wendy Crockett. 25 Stuart Leckie and Wendy Crockett first encountered difficulties in their marriage, around 1998. Wendy proposed that she live in Iona and Stuart in Westholme, but he did not agree. In 2000, Wendy Crockett left Stuart Leckie for a period and lived in Orange. She returned later to live part-time at Iona, in order to have access to her children. There was no reconciliation. Discussions about a property settlement commenced. In 2003, Wendy Crockett made a written proposal. No agreement was reached. In December 2003, Wendy Crockett again left Iona. At the time of the hearing, there had still been no agreement on a property settlement and proceedings between Wendy Crockett and Stuart Leckie had been adjourned, pending determination of these proceedings. 26 Stuart Leckie retained all of the profit share received from the farming operation between December 2003 and November 2004. On his evidence, he had earlier told Judy Crockett that Wendy Crockett wished to terminate their partnership. When payments were later made solely to him, he paid no share to Wendy Crockett. On their evidence, Owen and Judy Crockett first learned of this on 11 November 2004, when told of it by Wendy Crockett. On 12 November, Owen Crockett spoke to Stuart Leckie, demanding that he reach a property settlement with Wendy Crockett and advising that if he did not do so, he and Judy Crockett would no longer provide financial assistance to either he or Wendy. On his evidence, Stuart Leckie understood that Owen Crockett had terminated the arrangement that day. Owen Crockett denied this. 27 The conversation was heated and ended abruptly. Stuart Leckie never worked in the farming operation again. His opinion was that the property settlement was not a matter which concerned Owen Crockett. Stuart Leckie and Owen Crockett discussed Stuart Leckie resuming work a few days later, but that did not occur. Stuart Leckie and Wendy Crockett again discussed a settlement, but they were unable to agree. These developments had a catastrophic impact upon the family's farming arrangement and the returns which it generated, compounded by the loss of the Marysville lease in early 2005. 28 After 12 November, the respondents continued the farming operation, using all four properties. Owen Crockett spoke to Wendy Crockett about various steps being taken, but not to Stuart Leckie. Stuart Leckie objected to this and in December took the step of requiring the respondents to seek his written permission before coming onto Iona or Westholme. A short time later Stuart Leckie obtained an Apprehended Violence Order (AVO) against Owen Crockett, which prevented him from coming onto the properties. An AVO was also later pursued against Peter Crockett. On Stuart Leckie's affidavit evidence, the purpose of the AVOs was to 'prevent Owen and Peter Crockett harassing and assaulting me and to stop them coming onto Iona and Westholme and removing the few joint farming assets which still remained on those properties.' The orders did not prevent 'most of the joint farming assets being stripped from Iona and Westholme. The orders did, however, help to protect the grazing assets of Iona and Westholme.' 29 Whoever was responsible, the family operation on Iona and Westholme certainly came to an end. There were other disputes and legal proceedings which ensued, including allegations of assault and damage. They were all resolved in 2006 with Owen and Peter Crockett agreeing that they would not enter Iona and Westholme and Stuart Leckie agreeing that he would not enter Yeronga Hill. 30 The relationship between the parties, upon which their farming operation had always rested, plainly broke down irretrievably at the end of 2004. There was a dispute in the proceedings as to who was responsible for this outcome - the applicant or Owen Crockett. Whoever was responsible, the evidence showed that the termination of the arrangement was financially disadvantageous to all of the parties. 31 At the time of the hearing, Stuart Leckie and Wendy Crockett had still not agreed to any property settlement, nor had litigation between them as to that question, which Wendy Crockett had commenced in March 2005, been concluded. They retained joint ownership of Iona and Westholme. Stuart Leckie still lived at Iona. He had tried to run 'small scale farming business involving raising cattle, sheep and fat lambs and some cropping' on Iona and Westholme, but had so far made no profit. He was also working full-time as a nurse. Neither Stuart Leckie nor Wendy Crockett were earning an income from either Iona or Westholme. They each work full-time in paid employment. Only Stuart Leckie resided at Iona. 32 The respondents now only farm Yeronga Hill. They were unable to renew the Marysville lease in early 2005; that property was sold and they had not been able to acquire other suitable property to lease. Their farming operation on Yeronga Hill and the income it generated were significantly smaller than the operation which the parties earlier conducted together. The parties' respective cases For the applicant 33 The case pressed for the applicant was that the arrangement was unfair because: (i) It had no mechanism to fairly distribute the profit (ii) The mechanism by which profit was distributed was hidden from the applicant (iii) it had no provision for notice of termination (iv) it had no mechanism to provide for the distribution of the assets and profit upon the termination of the arrangement (v) it had no provisions to protect the applicant from arbitrary conduct 34 It was argued that the evidence demonstrated that the arrangement had been brought to an end by Owen Crockett in his conversation with Stuart Leckie on 12 November, when an ultimatum was put in relation to the property settlement. An immediate answer was required and when it was not received, Stuart Leckie was told to 'piss off'. Consistently with that termination, the following events occurred: (i) the movement of the cattle off Westholme that afternoon (ii) the conversation on or about 16 November where Owen Crockett said that Leckie could only continue working if he accepted Crockett's written terms of the family law settlement (iii) the harvesting of crops without the provision of any of the proceeds (iv) the stripping from Westholme and Iona of its stock and all plant and equipment except the overhead shearing machinery and the header to the extent that he has been prevented from effectively conducting a farming business on either Iona or Westholme (v) the failure to provide any further share of the profits from the arrangement (vi) the cessation of joint work or even communication with the applicant by Owen Crockett 35 While it was originally thought that the issue of termination would have to be resolved on the basis of credit, it was submitted that was no longer essential, although it was accepted that close attention needed to be paid to what was said and done by the parties. 36 Compensation in respect of 15 months' reasonable notice, a 1/3 share of all stock, plant and equipment and compensation for distress and anxiety were pressed. 37 As to notice, it was submitted that compensation would be calculated by reference to a 3 or 5 year average of past distribution of assets. The purpose of notice was to provide an opportunity for adjustment. Here, none was given, leading to an essential loss of ability to work and earn income. Given the time this arrangement had persisted, the geographic remoteness of the work and the circumstances of the termination, a period 'fixed at the upper end of the scale' was an appropriate one. What scale was relied upon, was not, however, identified. It was also accepted that given the nature of this arrangement, regard would have to be paid to the consequences of the loss of the Marysville lease, but it was submitted that this was 'subsumed in the average'. How this was so, was not explained, because both the 3 and 5 year averages put in the alternative, as a basis for the calculation of any money orders, covered periods when Marysville was being farmed. 38 The accounts of the Owen and Judy Crockett partnership in the years 2000 - 2004 were submitted to constitute prima facie evidence of the profits of the arrangement. It was noted that Mr Tremain had derived an average net income of the enterprise over those 5 years of $245,078 and for the 3 years from 2002, $290,885. It was submitted 'that income should be distributed in equal shares between the three partnerships'. It should be observed that this submission, so put, was inconsistent with the indisputable fact that the proceedings were not brought on behalf of the partnership between Stuart Leckie and Wendy Crockett, but on his own behalf and that the evidence showed that profits in these years had not been distributed in the way claimed - that is, that Stuart Leckie was entitled to a 1/3 share of profits. Nor did the case, so advanced, come to grips with the fact that Owen and Judy Crockett did not always draw all of their profits out of the partnership, thereby leaving part of their profit share as working capital of their partnership. How this impacted on the claim advanced was not analysed. It was even conceded that the claim encompassed interest earned by bank accounts maintained by the partnership, which presumably included interest earned on such capital. 39 Submissions were advanced as to mitigation, with it being accepted that the applicant's post termination earnings should be taken into account in assessing the appropriate money orders. It was argued however, that regard should also be had to his trading losses of some $40,000, in conducting a farming operation after the termination of the arrangement. 40 As to the claims for a share of stock, plant and equipment, it was accepted that there were difficulties with both of the two alternative claims advanced, but nevertheless, submitted that 'substantial evidence on which to base each finding' had been led. No explanation was advanced as to how the claim that Stuart Leckie was entitled to a 1/3 share of stock, plant and equipment was established on the evidence, was provided in the written submissions. In oral submissions, in response to questioning, it was submitted that while at the beginning of the arrangement, Owen and Judy Crockett had provided all stock, equipment and plant, depreciation schedules later showed that equipment was revamped during the course of the arrangement. This demonstrated, it was submitted, that the partnership between Owen and Judy Crockett was 'essentially used as a bank account from which expenses such as stock, plant and equipment was paid, and into which income was put and from which profits were distributed'. 41 While not abandoned, no submissions were advanced as to how the alternate claim could be granted, nor was the evidence given by the expert Mr Peart addressed. 42 As to the distress and anxiety claim, it was submitted that: Stuart Leckie claims an amount of $10,000 for distress and anxiety. At paragraph 54 of his affidavit sworn 3 May 2006 in IRC proceedings no. 1188/2005 Stuart Leckie gives evidence as to the distress and anxiety he suffered following Owen Crockett's ultimatum to him of 11 November 2004. For the respondents 43 The respondents' case was that the applicant was bound by the case advanced in the summons as amended and that he had the onus to make out those claims. A contract could not be demonstrated to be unfair, merely because a calculated business risk turned out not to be as profitable as anticipated, or because it resulted in a loss (see Autobake Pty Limited v Budd (1986) 19 IR 18). Nor should the discretion granted by the section be used to 'interfere with bargains freely made by a person who is under no constraint or inequality, or whose labour is not being oppressively exploited' (see Stevenson v Barham (1976-7) 136 CLR 190 at 192). Nor should it be exercised simply because the arrangement could have been more generous than it already is (see Kofler & 15 Ors v Boral Gas (NSW) Pty Limited (Unreported, Hill J, 13 December 1996 at 12)). 44 It was argued that in this case, the applicant sought to vary an arrangement which had never existed - namely, one whereby only he was entitled to a share of the profits. In fact, it was always intended that the profits would be shared by he and Wendy Crockett. 45 Contrary to the applicant's submissions, it was argued that questions of credit arose for determination, particularly on the question of how the arrangement came to an end. It was submitted that the applicant's evidence in relation to various matters could not be accepted as reliable, having regard to concessions which he was forced to make in both his affidavit and oral evidence, that he had given inaccurate evidence as to various relevant matters. His evidence could not be preferred on disputed issues. 46 There was a dispute as to how the arrangement had come to an end. It was submitted that the applicant had failed to demonstrate that Owen Crockett had terminated the arrangement. The evidence was that it was not his intent to end the arrangement on 12 November. The uncontested evidence was that numerous approaches had been made to the applicant since March 2003, to ascertain what was occurring in relation to Iona. Owen Crockett had given that property to the applicant and his wife Wendy Crockett, on the basis that it would still be used as part of the farming operation Owen and Judy Crockett were then conducting. Given that arrangement, Owen Crockett had an obvious interest in the property dispute between the applicant and Wendy Crockett. Their dispute had not brought the arrangement to an end. 47 Owen and Judy Crockett had an honest belief, on reasonable grounds, that Stuart Leckie was continuing to provide a share of the profits of the farming operation to their daughter. They had an understandable concern, when they learned that was not occurring. They plainly had an interest in having the matter resolved. 48 Whatever his reasons, the applicant gave no answer or explanation to them for what was occurring when the matter was raised with him by Owen Crockett on 12 November. The applicant chose not to address the matter, which was entirely within his hands, but insisted on continuing to deal with the assets of he and his wife, as if they were his alone. He denied that Owen Crockett had a right to any response. This ignored the fact that Iona had been transferred to he and his wife by Owen Crockett and that under their arrangement, Wendy was also entitled to a share of the profits of the family operation. 49 It followed on the evidence that it was the applicant who brought the arrangement to an end. He failed to share any of the profits with Wendy Crockett from 2003; he provided no labour from 12 November 2004 and he then also denied the respondents access to Iona and Westholme. On any view, it was he who had repudiated or abandoned the arrangement (see Vision Publishing Pty Ltd v PK Lane Holdings Ltd & Ors (1998) 84 IR 277 and St Vincent's Hospital Ltd v Harris (1998) 81 IR 173.) 50 Nor could the suggestion that moving cattle from Westholme to Iona on 12 November, evidenced the termination, be accepted. Both properties were being farmed under the arrangement and both were part owned by the applicant. It was understandable, in the heated exchange on 12 November, given the applicant's stance, that his father-in-law told him to 'piss off'. But that did not bring this arrangement to an end. To the contrary, Owen Crockett later tried to pursue the matter again with the applicant, on 15 or 16 November. Nothing positive was forthcoming and the applicant then took steps to prevent the respondents accessing his property, without his prior written permission. 51 As to the claim that the applicant should be compensated in order to re-establish a farming operation on Iona and Westholme, it was argued that this simply overlooked that he did not own these properties outright; there could be no certainty that he would own them, as the result of the proceeding on foot between he and Wendy Crockett; nor was there any evidence that she would agree to him conducting such an enterprise on the land they owned together. Even in cross examination, the applicant's own evidence was that he was not sure whether he wished to pursue such an enterprise. 52 The alternative claim first advanced during the hearing, as to a 1/3 share of the plant, stock and equipment, was submitted to suffer from various other problems. It had not been proven that monies which would otherwise have come to the applicant by way of profit share, had been spent in order to acquire plant, stock and equipment. There was insufficient evidence as to the value of plant, stock and equipment in 2004, and none as to its value at the end of the claimed notice period. Even the figures relied upon, related to a time before the arrangement came to an end. Nor was there any evidence as to what plant, stock and equipment existed in 1990. There was no suggestion that the applicant put any money in for such plant, stock and equipment. All the evidence suggested that the applicant never had any liability for plant, stock and equipment, it all came out of Owen and Judy Crockett's partnership. 53 It followed that no entitlement to what was claimed had been established. It had not been shown that the money used to purchase those assets were monies which the applicant expected to receive for his labour. On the expert evidence, there was no doubt that he was being paid in excess of industry standards for his work. The applicant always received a share of profits, but with no liability for the acquisition of plant, stock and equipment. 54 The claim also entirely overlooked the position of Wendy Crockett. It was submitted that the applicant had the onus to make out the claim advanced in the summons and that the Court would not vary this arrangement in a way which would cause injustice to others, or on other than proper terms. No unfairness of the kind claimed in relation to assets had been demonstrated and it would be unsafe for the Court to speculate, or to make assumptions as to matters upon which the claim depended. 55 As well as ignoring the interest of Wendy Crockett in the arrangement, the applicant's case also entirely ignored the basis upon which Iona was transferred to her and the applicant in 1990. It was to remain a part of Owen and Judy Crockett's farming operation, despite the transfer. The applicant's case had not addressed either matter. Nor was it even claimed that there had been any representations made and not honoured by the respondents. The claim simply lacked any foundation. 56 As to Peter Crockett, it was argued that there was no evidence that he was a party to the arrangement in 1990; that he had played any part in its termination in 2004, or that he had received any benefit, to the detriment of the applicant, as the result of its termination. It followed that there was simply no basis for any order being made against him. 57 Nor had an evidentiary case been made out for the distress and anxiety claim. (See King v State Bank of NSW (No 2) (2002) 126 IR 407 at [110]-111].) It followed that the claim would be dismissed in its entirety. The applicant's reply 58 As to credit, it was submitted that there would be no conclusion that there had been an attempt by the applicant to be untruthful. What was relevant was that while there were also some difficulties with Owen Crockett's evidence, their accounts of what had occurred on 12 November, were essentially the same. That evidence could only lead to the conclusion that the arrangement had been terminated by Owen Crockett. 59 As to notice, it was submitted to be manifestly unfair, that after 14 years, this arrangement was brought to an end without any notice. It was undeniable that the partnership between Wendy Crockett and Stuart Leckie came to an end as the result of steps taken by Wendy Crockett and that thereafter, payments were made to the applicant alone. That was the basis of the arrangement on termination. 60 A 1/3 share of the assets was submitted to be a fair distribution in the circumstances of this case, given the labour contributed by the applicant and by Owen and Peter Crockett, which was submitted to be broadly similar, as was the value of the properties provided under the arrangement and the historical distribution of profits. It was accepted that the gift of Iona should be taken into account, which would leave the applicant with about 11% of the property value. It was also explained that the applicant's approach subsumed Judy Crockett's labour into that of Owen Crockett. 61 It was also accepted that there was no clear evidence of what the assets were in 1990, or what money had been put into the venture at that time, but it was argued that there was a depreciation schedule for plant and equipment, which threw some light on that question. As to stock, it had long ago been realised. 62 It was also submitted that if it was not concluded that the arrangement was terminated on 12 November, the evidence showed that it came to an end on 16 November. Consideration 63 Stuart Leckie claims that the family farming arrangement the subject of these proceedings was an 'unfair contract', as that term is defined in s 105 of the Act. The definition provides: unfair contract means a contract: (a) that is unfair, harsh or unconscionable, or (b) that is against the public interest, or (c) that provides a total remuneration that is less than a person performing the work would receive as an employee performing the work, or (d) that is designed to, or does, avoid the provisions of an industrial instrument. 64 There was no question that this arrangement fell within the wide definition of contract appearing in s 105, even though it involved no legally binding obligations, so far as any of the parties were concerned. This was not a commercial arrangement entered at arms length by property owners who together wished to establish a farming operation as a joint venture. Rather, it was an informal arrangement between close family members, made in order to support a daughter and son-in-law farm a property which they had bought, because the son-in-law wanted to farm. Understandably, the case was not pressed on the basis that the arrangement was unfair for any of the reasons falling within paragraphs (b) to (d) of the definition of unfair contract. What arises for consideration, after the termination of the arrangement, is whether the arrangement was unfair, harsh or unconscionable, given the circumstances in which it came to an end and the consequences of the termination, for the son-in-law. 65 At the outset it must be observed that on the evidence, this was a case where it could properly be said that the applicant was under no constraint or inequality by way of comparison to the respondents, nor was his labour oppressively exploited. This conclusion flowed not only from the evidence of how the arrangement came into existence, but also from how it operated. Over the years, the amount and time of payment of the profits which the farming operation generated to the various family members involved, were always within the entire discretion of Owen and Judy Crockett. Over the course of some 14 years, their discretions were exercised in a way which proved to be of significant benefit to the applicant. 66 As well as the parties to these proceedings, the arrangement also involved the applicant's wife, Wendy Crockett. They were each involved in the farming of four substantial properties, Yeronga Hill, Iona, Westholme and Marysville. 67 The applicant and the three respondents were all working in the farming operation when it came to an end in 2004. Wendy Crockett had also performed work in the operation at various times in the past. She had participated in the arrangement through her partnership with Stuart Leckie. Even after their partnership was brought to an end in 2003, Wendy Crockett continued to receive a share of the profits of the arrangement, until December 2003, after which Stuart Leckie retained all of the profits paid to him by Owen and Judy Crockett for himself, until the arrangement came to an end in 2004. On Stuart Leckie's own evidence, that situation resulted from decisions made by him, not from any agreement reached between he and Wendy Crockett. 68 The financial benefits which flowed to Stuart Leckie under the arrangement were reflected in Owen and Judy Crockett's partnership financial statements, as well as those of the partnership between he and Wendy Crockett and his own financial statements in the period after December 2003. In 2002, for example, Owen and Judy Crockett's partnership made payments of some $91,079 to Stuart Leckie and Wendy Crockett, by way of profit share. The partnership had gross income that year from the farming operation of $452,147.94, total expenditure of $287,974.82, including share farming payments made to family members of $180,000 (including Peter Crockett and his wife), with a resulting net profit of $168,886.85. Owen and Judy Crockett each received $84,443.42 share of those profits, although the drawings which they each took were only some $21,072.72. 69 In other years, the picture was considerably different. In 2003, the share farming payments made to family members were $148,181.82, being shared equally between Stuart Leckie and Wendy Crockett on the one hand and Peter Crockett and his wife on the other. Owen and Judy Crockett's share of profits was $39,746.46 each, but with drawings taken of only some $26,000 each. In 2001, share farming payments to family members were $151,522.72, while Owen and Judy Crockett's share of profits was $5,005.08 each and their drawings $15,891.70 each. 70 Owen Crockett's evidence was that the share of the profits which he and Judy received, did not entirely reflect their own contribution to this farming operation. They took a lesser share than what they paid to their children and their partners. While Stuart Leckie did not concede that to have been the situation, Owen Crockett's view was consistent with the financial records maintained by the partnership he conducted with Judy Crockett. It was also supported by other evidence, including evidence of the work which Owen and Judy Crockett undertook in the operation, as well as the ownership of the properties being farmed at various points. 71 Owen and Judy Crockett managed and operated the entire farming operation, including its financial affairs. They owned Yeronga Hill and in 1990 had reached an understanding with Stuart Leckie and Wendy Crockett, that although ownership of Iona was transferred to them, Owen and Judy would continue to farm Iona. Stuart Leckie undertook general farming work, under Owen Crockett's direction, after Westholme was acquired and the arrangement made. Stuart Leckie and Wendy Crockett owned Westholme and Iona and later paid part of the lease fees for Marysville. 72 Stuart Leckie was the prime caregiver for his and Wendy Crockett's four children, once she was away from the farm working full-time as a nurse. There was a dispute as to whether Stuart Leckie was usually available only to work about 35 hours per week in the farming operation, or whether it was 38, as well as ongoing weekend work. There was also a dispute as to how many weeks holidays per year Stuart Leckie took from the operation, 2 - 3, or up to 12 per year. There was another dispute as to who was more experienced in farming work, Stuart Leckie or Peter Crockett and which of them made the more valuable contribution to the farming operation. 73 Given that the underpayment claim originally made in the summons was not ultimately pressed, it is not necessary to resolve these issues. It should be observed however that even on Stuart Leckie's evidence, Owen and Judy Crocket were always concerned for their grandchildren's welfare and actively encouraged him to care for them, even at times when he offered to help them with required work, which they themselves then attended to. 74 Given the evidence as to the nature of the work Stuart Leckie performed, the hours he worked, even on his own case, the evidence as to the nature of the work performed by Owen and Judy Crockett, and the financial evidence, Owen Crockett's evidence that the share of the farming profits which he and Judy Crockett took, did not reflect the contribution which they made to the family operation, must be accepted. 75 The benefits Stuart Leckie received from the farming operation increased, after he ceased paying any share of the profit he received to Wendy Crockett. This was not as the result of any agreement which was reached with her, or on their evidence, with the respondents. After his partnership with Wendy Crockett came to an end, on his evidence Stuart Leckie appropriated the partnership assets and treated them as his own. After December 2003, he ceased sharing the payments he received from Owen and Judy Crockett with Wendy, even though she remained an owner of Iona and Westholme with him and those payments were by way of distribution of a share of the profits of the family farming operation. Owen and Judy Crockett's evidence that they did not learn of this until November 2004, was not seriously challenged. I am satisfied that if there be, in truth, any issue as to whose evidence should be accepted on this point, that the evidence of Judy and Owen Crockett should be preferred, for reasons which I will return to below. 76 On the respondents' case, by this unilateral conduct, it was Stuart Leckie who, in fact, brought the arrangement which the family had made together to an end in 2003. It is unnecessary to decide the matters which here arise on that basis, but it is certainly a view open on the evidence. There was, after all, no claim advanced that there was any legally binding contract in existence between these parties, but something different - a family arrangement, which perhaps raised moral, rather than legal considerations. Even so, the idea that Stuart Leckie had the right to unilaterally vary such an arrangement by excluding Wendy Crockett from participating in the profits which it generated, even given the informality of the arrangement, is not one which can readily be accepted. 77 The heart of the case pressed by Stuart Leckie was that it was not he who brought this arrangement to an end in November 2004, but Owen Crockett. He claimed that the arrangement was unfair in not requiring that he be given 15 months' notice of its termination and in not ensuring that if it was brought to an end, he either be left in a position where he could himself conduct a profitable farming operation on Iona and Westholme, or that he be entitled to a 1/3 share of the assets of the farming operation. On either basis, the money order claimed was $250,000. 78 For reasons which I will explain, I have concluded that the case, so pressed, was not made out on the evidence. A one third share of the farming operation 79 It is convenient to firstly deal with the claim that the arrangement was unfair, in not providing that on termination Stuart Leckie should be entitled to a 1/3 share of the assets of the farming operation, valued at $250,000. There were numerous difficulties with the claim so advanced, reflective, no doubt, in part of the time at which the claim was first made. 80 It was first advanced by way of amendment to the summons on the second day of the hearing, after the respondents had put the applicant on notice of deficiencies which they pointed to in the original summons. That this claim had any foundation in what had transpired between these parties while the arrangement persisted, was not made out, or indeed really attempted to be shown on the evidence. There was, for example, no evidence that such an idea had ever been discussed between any of those involved in the arrangement, or that Stuart Leckie had any basis upon which such an expectation could have rested. 81 I am satisfied that on any view of the evidence, a conclusion that the arrangement was unfair on this account, would not be open, given the evidence of the respective contributions made to the arrangement by the applicant on the one hand and the respondents on the other, both when the arrangement was first entered and given what occurred while it subsisted. A consideration of the evidence as to matters such as the property being farmed, the work being performed and the financial contributions made to the operation by those involved in it, could not lead to the conclusion that in fairness, the applicant was entitled to a 1/3 share of the assets of this operation. The claim, so advanced, also suffered from the difficulty that it failed to take any account at all, of Wendy Crockett's interest in the arrangement. 82 On any view of the evidence, if it could be concluded that in fairness, the applicant should have had any entitlement to a share of the assets of the farming operation on its termination, it could only have been a substantially smaller one than that of Owen and Judy Crockett. Whether such assets existed and if they did, what their value might have been, was not established, although certain information relevant to such an assessment, such as a depreciation schedule, was pointed to in submissions. It is of course not a matter for the Court to recast the applicant's claim. It is for the applicant to make out the case advanced in the summons. I am well satisfied that such an onus was not here satisfied. 83 Part of the difficulty with the claim was that it paid no regard at all to the fact of Wendy Crockett's joint ownership of Iona and Westholme, and that she, too, was a part of this family arrangement, which always envisaged that she would share in the profits of the farming operation which the family conducted. After the termination of their partnership, Stuart Leckie treated Iona and Westholme as if he were the sole proprietor. He conceded that thereafter, it was his unilateral decision not to pay Wendy Crockett anything out of the share of the profits which he received and to treat the former assets of their partnership, as if they were also his alone. He neither sought, nor obtained her consent to this approach. Nor did he reveal to Judy and Owen Crockett, that he was not sharing any of the profits he was receiving with Wendy Crockett. From their point of view, their daughter receiving a share of the farming operation was an undoubtedly important aspect of the arrangement. 84 The arrangement had given Stuart Leckie and Wendy Crockett the opportunity to profitably farm Westholme, the property they had purchased in 1990 with the proceeds of the sale of the house Stuart Leckie owned at Cremorne, as well as with money then provided by his father, Ronald Leckie. The opportunity to farm Westholme was provided by Owen and Judy Crockett. Stuart Leckie wanted to stop nursing and go farming. They were prepared to expand their farming operation over Westholme and to have Stuart Leckie work with them, on a profit sharing basis. There is no basis in the evidence to assume that the opportunity to farm Westholme could have arisen without their support. 85 It is convenient at this point to deal with the issue between the parties as to whether the $58,000 provided by Ronald Leckie when Westholme was acquired, was a gift or a loan. It is finally unnecessary to resolve that question, but it must be observed that the evidence given by both Stuart and Ronald Leckie as to this and related questions, was less than satisfactory. Initially, each asserted in affidavits they had sworn that the house at Cremorne was owned by Ronald Leckie and not Stuart Leckie and that the whole of the sum used to purchase Westholme - some $270,000 - was a loan from Ronald Leckie. Similar claims have been made in other proceedings between Wendy Crockett and Stuart Leckie, as to the ownership of Iona and Westholme, however there the alleged loan has been increased by an 'interest' component, to take it to an amount of some $320,000. This evidence was disputed by Wendy Crockett. She understood that Stuart Leckie owned the Cremorne property and that the sum provided by his father was not a loan. Stuart and Ronald Leckie later conceded that their earlier evidence was not accurate. The Cremorne property was owned by Stuart Leckie and the amount of the loan was $58,000. 86 In cross examination, Stuart and Ronald Leckie each explained that their errors had arisen as the result of the lapse in time. Their evidence as to these matters, however, particularly explanations given in cross examination, left considerable doubts in my mind that the evidence was given in a way in which strict adherence to the truth would have required. 87 It is necessary to give some examples of these difficulties, so far as Stuart Leckie was concerned. He explained that the information as to the loan being $250,000, as well as the information as to who owned the Cremorne property, had originally come to him from his father. Stuart Leckie corrected his original evidence, after his father realised that an error had been made in relation to the loan of $250,000 they had first claimed, as well as in relation to the ownership of the Cremorne property. That realisation followed an examination of various documents, which had come to light in these proceedings and which supported what Wendy Crockett had sworn in her affidavits. In the other proceedings, the amount of this loan was nevertheless claimed to be even greater - $320,000, that figure, Stuart Leckie explained, having included an interest component. There was no suggestion in these proceedings that there had ever been any agreement that the 'loan' would attract interest. He was also unable to explain how a loan to his father, appearing in his financial statements in 2004 as $15,000, had increased to $45,000 in 2005. Both figures, on his explanation, related to the loan claimed in these proceedings to have been made in 1990, finally said to stand at $58,000. Such a loan was, however, not reflected in the financial records maintained in respect of the partnership between he and Wendy Crockett. 88 Stuart Leckie persisted with his evidence that the loan of $58,000 from his father was repayable, contrary to Wendy Crockett's understanding. Wendy Crocket was not cross examined on these matters. By way of contrast, Stuart Leckie also explained in cross examination that another loan appearing in his financial statements, of some $75,000 from Owen and Judy Crockett, was not repayable, even though they had asked that it to be repaid. Stuart Leckie could not explain the basis for that understanding, other than that it was advice he had received from an accountant. 89 It was evidence such as this, which raised a concern that Stuart Leckie's evidence was not given in a way consistent with a strict adherence to the truth. It followed that a consideration of his evidence had to be approached with considerable care when conflicts in the evidence required resolution. 90 I return then to the question of the assets of the farming operation. It was not in issue that Owen and Judy Crockett had long been farming Iona, as well as Yeronga Hill. Iona was transferred to both the applicant and Wendy Crockett in 1990, at Wendy Crockett's request, it being understood that despite the transfer, her parents' farming operation would continue unaltered. This transfer was of considerable benefit to the applicant, having in mind the evidence as to the current value of the property, alone. Despite this, the claim advanced in these proceedings fails to pay any regard to this understanding, consistently with the way in which Stuart Leckie had earlier conducted himself in 2004, when the arrangement came to an end. The result was that Owen and Judy Crockett were entirely excluded from farming Iona. 91 When Westholme was acquired later in 1990, Owen and Judy Crockett agreed to farm all three properties, so that the applicant could work with them, with he and Wendy sharing in the profits of the expanded operation. On their evidence, Owen and Judy Crockett funded that operation. There was no suggestion that Stuart Leckie or Wendy Crockett made any financial contribution, in order that the farming operation could then be expanded; that they themselves had any plant, stock or equipment which they contributed to be used in the business; or that it was agreed by Owen and Judy Crockett that Stuart Leckie or their daughter would also be given a share of their farming business, or its assets, which were then used in the expanded operation. All that was agreed was that Stuart Leckie and Wendy Crockett would receive a share of the profits. 92 On this evidence, it could not seriously be thought that this arrangement was unfair to the applicant, at the time it was made, or indeed subsequently. The expanded operation was conducted profitably, with Owen and Judy Crockett managing the operation and Stuart Leckie providing his labour. Given how the profits were shared with Stuart Leckie and Wendy Crockett, they undoubtedly both benefited from the arrangement. 93 Owen and Judy Crockett continued farming in partnership with each other, the partnership meeting the outgoings and receiving the income generated by the expanded operation, and paying a share of the profits made to Stuart Leckie and Wendy Crockett's partnership. The arrangement, so structured, continued until Peter Crockett and his wife also came to participate in 1995. There was no complaint made about that development. 94 Financial records for the partnership between Owen and Judy Crockett before the year ending June 1999 were not in evidence. Whether or not the business and the profits generated grew, when the operation was first expanded over Westholme in 1990, or whether Owen and Judy Crockett kept a reduced share of profits, in order to make payments to Stuart Leckie and Wendy Crockett, was not revealed. A share of profits was certainly always paid to Stuart Leckie and Wendy Crockett and in 1995, Peter Crockett and his wife joined the arrangement and thereafter received the same share of profits to that which Stuart Leckie and Wendy Crockett received. Whether the profits which Owen and Judy received increased, or decreased, after they began farming Westholme in 1990, as was entirely possible, is unknown. The evidence suggested that profits grew, as the business expanded, permitting Peter Crockett to join the arrangement in 1995, but when that occurred and by how much, was not established. 95 The evidence of Owen and Judy Crockett was that they took a smaller share of the profits, because their needs were smaller than those of their children's families. While not conceded, this was not directly challenged. 96 In 2000, the Marysville property was leased and again the operation was expanded. Owen and Judy Crockett's partnership financial records reveal that distributions which went to Stuart Leckie and Peter Crockett and their wives increased from $77,998 respectively in the year ending 30 June 1999, to $90,200 in 2000. In 2000, Owen and Judy Crockett each received profits of $26,373.86 and in 1999, Owen and Judy Crockett each received $12,743. By way of further comparison, in 1998, the share farming payments made by Owen and Judy Crockett in total were similar to 1999 - $95,000 (or some $47,500 to the children's partnerships), out of total expenditure of $175,468.13, but leaving only $13,231.32 profit for each of Owen and Judy Crockett, from a total farm income of $198,743.83. 97 The lease payments for Marysville were met partly by Peter Crockett and partly by Stuart Leckie, so as to ensure that the outgoings for rates on Iona and Westholme and the lease payments for Marysville were similar. Otherwise, the partnership between Owen and Judy Crockett continued financing the operation - meeting expenses, receiving income and paying a share of profits to their children and their spouses, at regular intervals of 6 - 12 weeks, as money became available. Unlike the children and their spouses, Owen and Judy Crockett did not themselves always draw all of their share of the profits out of the business. 98 It was argued for Stuart Leckie that the partnership in effect operated as a 'bank' for the farming operation, with the assets of the operation thereby properly belonging to all of the parties, not to Owen and Judy Crockett, as they claimed. I am satisfied that this is a conclusion not properly available on the evidence. No financial records as to the early part of the operation were in evidence. The evidence as to what then occurred, did not support such a conclusion. There was no foundation established for the view that the assets of the partnership conducted by Owen and Judy Crockett, in some way became, or should have become, assets of the parties to the arrangement, when it commenced in 1990, so far as the applicant was concerned. 99 The applicant's case did not pay any attention to matters such as what assets Owen and Judy Crockett had when the arrangement commenced, which were then used for the operation; what funds were then in the 'bank'; who put funds into the 'bank', while the arrangement was on foot, in order that they were available to be used for the farming operation, particularly as the operation was expanded; what income was received by the 'bank' over the years; what was taken out of the 'bank' along the way and what remained, when the arrangement came to an end. Nor did it pay proper regard to how the profits of the operation were shared, over the years. 100 While expert evidence was led in the proceedings, neither expert addressed this claim, undoubtedly, because of the time at which it was first advanced. The applicant did rely on part of the evidence of Mr Tremain, noting that he had estimated 'that Iona and Westholme provided 24% of the overall profit of the joint farming enterprise'. On its face, that assessment cannot provide a foundation for a claim to 1/3 of the assets, especially if consideration is given to how the profits were in fact shared and the evidence as to the parties' respective contributions to the arrangement, as well as that of Wendy Crockett. 101 While the various financial records in evidence were not sought to be analysed, in order to support the submission made, in my view, on their face, they cannot provide a foundation for this claim. 102 For example, in 2000 and 2001, the profit shares paid to Stuart Leckie and Wendy Crockett were about $77,000; in 2002 and 2003 they increased to over $90,000 and in 2004, they fell to about $88,000. In 2000, the profit shares received by Owen and Judy Crockett were only $26,373.85 each, with drawings of $34,886 each; in 2001 they each received a profit share of $5,005.08 and took drawings of $3,507; in 2002 they each received $84,443.42 profit and took drawings of $21,072.72; in 2003 they received a profit share of $39,746.46 each and took drawings of $26,071.56 and in 2004 their profit each was $63,396.38 each, with drawings of $7,907 taken. Plainly, as was their evidence, Owen and Judy Crockett were leaving money in their partnership in order to be able operate the business, while their children and their partners were taking all of their share of the profits. 103 Given this evidence, it is hardly surprising that there was no evidence that Stuart Leckie had any expectation that if the arrangement came to an end, that he would be entitled to a 1/3 share of the assets of the farming operation. On the financial records of the partnership between he and Wendy Crockett, and finally his own financial records, there was various expenditure on the acquisition of certain plant, stock and equipment, which Stuart Leckie claimed was used in the farming operation. This was disputed by the respondents and Wendy Crockett. On all of the evidence, I am not satisfied that Stuart Leckie's evidence about these matters was not exaggerated. Even assuming that it was entirely accurate, it could not provide a foundation for the claim advanced. 104 The claim was finally sought to be justified in submissions by reference to the work done by Owen and Peter Crockett, and Stuart Leckie. It was argued that the work they each contributed to the operation was similar. That approach paid no attention at all to the nature of the work performed by Owen Crockett, which was plainly of a quite different kind to that of Stuart Leckie. Nor did it pay any attention to the evidence of the work performed by Judy Crockett - her efforts, were seemingly to be subsumed in those of her husband. How such an approach could in justice be available, is entirely unclear to me. It was, after all, not disputed that in addition to the physical farm work which Judy Crockett performed, she always looked after its financial affairs - undertaking the bookkeeping for the operation, as well as paying all the farm accounts and distributing profits when money became available. 105 There was also a dispute as to the nature of the work performed by Stuart Leckie, as opposed to that performed by Peter Crockett, as well as their respective skills and experience and the hours they each worked. Given the conclusions which I have otherwise reached, it is unnecessary to resolve that conflict. The idea that his work ought to, in fairness, have entitled Stuart Leckie to a 1/3 share of the assets of this operation on its termination, was simply not made out. The claim that the applicant be set up in his own farming operation 106 On the evidence, this arrangement gave the applicant and Wendy Crockett a substantial income, well in excess of what the applicant could have earned if he had performed the work he undertook as an employee. The arrangement commenced at a time when they did not have the means or experience themselves to farm Westholme. Over time, it also gave the applicant experience and skills in farming work, which he has sought to utilise, albeit unsuccessfully to date, in pursuing his own farming operation on Iona and Westholme, after this arrangement came to an end. That the applicant will have the right or indeed, the desire to conduct such an operation in future on Westholme and Iona, was uncertain, given his evidence in cross examination. The outcome of the property dispute ongoing between he and Wendy Crockett, which is unknowable until these proceedings are concluded, will undoubtedly have an impact on that possibility. It was the evidence of Mr Peart, that for such an operation to be viable, ownership of both properties was required. 107 The claim advanced in these proceedings, nevertheless, was that it was not fair that the ending of the arrangement resulted in the respondents taking plant, equipment and stock, purchased while the arrangement persisted, in the way earlier described, so that Stuart Leckie was left in a position which did not enable him to operate Iona and Westholme as an independent farming operation. His assessment of what he needed in order to put the two properties into a position so that he could farm them, included the acquisition of various farming equipment, motor vehicles, a silo, cattle yards, 1,000 lambs and 20 rams, to the value of $250,000. That assessment was largely supported by Mr Peart. 108 This aspect of the claim was, nevertheless, but faintly pressed in final submissions, understandably, given the earlier amendment of the summons and all of the evidence, as it finally emerged. 109 I am unable to understand how this arrangement could be thought to have been unfair in not making such a provision. There was no evidence that Stuart Leckie ever had any reasonable expectation that this would occur, should the arrangement come to an end. There was no suggestion that such a concept was ever discussed or agreed by the parties. It was also a claim which entirely ignored Wendy Crockett's interest in the arrangement and her joint ownership of the two properties, Iona and Westholme. It also paid no regard to the understanding reached between Owen and Judy Crockett and Stuart Leckie and Wendy Crockett in 1990, that while the ownership of Iona was to be transferred to Wendy and Stuart as a matter of succession planning, Owen and Judy would continue their farming operation on that land. Stuart Leckie did not dispute the evidence as to that understanding. Despite this, it was he who took and pursued various steps in December 2004, which had the result that Owen and Judy Crockett have since been entirely precluded from farming Iona, despite Wendy's consent to their farming operation continuing. 110 On the evidence, Stuart Leckie wanted to acquire a property in 1990, because he wanted to stop nursing, so that he could farm. That was why he and Wendy Crockett bought Westholme. Wendy reduced her work on her parents' farm and increased her own nursing work, in order to increase their off farm income. The evidence suggested that Stuart Leckie had neither the financial resources, nor the experience or skills to have allowed him to have undertaken such a venture on his own, without the assistance and support of Owen and Judy Crockett and the agreement of Wendy Crockett. 111 Owen and Judy Crockett had run a substantial farming operation since 1957 on their 1600 acre Yeronga Hill property and later also on Iona, before and after Stuart Leckie and Wendy Crockett came to own that property. The transfer of Iona to Stuart Leckie and Wendy Crockett, after her grandfather's death, did not alter that operation - that being part of the understanding reached between Owen and Judy Crockett and Stuart Leckie and Wendy Crockett, when Iona was transferred to them. 112 Undoubtedly, the size of the farming operation increased after the 386 acre Westholme was purchased and Owen and Judy Crockett expanded their farming operation, so that Westholme could also be farmed, with the assistance provided by Stuart Leckie's labour. Otherwise, how could profits have been generated, sufficient to permit a share to be paid to Stuart Leckie and Wendy Crockett? There was no suggestion in the applicant's case that he or Wendy injected any funds into the operation, at that point, or subsequently, other than by way of the operation of the arrangement itself. 113 The evidence was that the partnership between Owen and Judy Crockett always provided the vast majority of the plant, stock and equipment used in the farming operation. When the arrangement commenced, they were conducting a substantial farming business on about 2000 acres. Their partnership owned plant, equipment and stock. They had used their resources to purchase those things, as well as seed for sowing crops and fertiliser and chemicals used in growing them. It was they who financed the expanded operation over Westholme and thereafter, when crop and stock were sold and a profit generated, the profit was shared with Stuart Leckie and Wendy Crockett. Stuart Leckie and Wendy Crockett had purchased Westholme and Stuart Leckie provided his labour, but there was no evidence that they made any financial contribution to the operation, or that unlike Owen and Judy Crockett, they did other than always take the full amount of their profit share. 114 Stuart Leckie's evidence was that the partnership between he and Wendy Crockett also acquired some plant and equipment, as reflected in their partnership financial statements and that most of this was utilised in the farming operation. In the final period, Stuart Leckie acquired some plant and equipment, again, most of which he also claimed was utilised in the farming operation. Wendy Crockett and the respondents disputed this evidence. It is unnecessary to resolve the dispute. On any view, even accepting Stuart Leckie's evidence, the position was that until the arrangement came to an end, the vast majority of the farming operation was financed by Owen and Judy Crockett. 115 When the arrangement came to an end, Owen and Judy Crockett removed from Iona and Westholme, plant and equipment which their partnership had purchased. Stuart Leckie objected to their removal and took steps to prevent other plant and equipment being removed, by taking out an AVO. Some crops were due to be harvested around that time. Stuart Leckie thought he was entitled to a share of those crops and to whatever income the Marysville property generated, while it was still able to be farmed. At the time he claimed that this was relevant to his property dispute with Wendy Crockett. No money orders of that kind were, however, pressed in these proceedings, reflective perhaps of the sums already paid to him by way of profit share, and his evidence that the AVOs which he later obtained against Owen and Peter Crockett, had the benefit of precluding the respondents removing equipment which remained on Iona and Westholme, or otherwise using the two properties. 116 I could simply find no basis in any of the evidence for a conclusion that this arrangement was unfair, in not making provision that if the arrangement came to an end, Stuart Leckie would be left in a position where he could farm Iona and Westholme independently, by being given a share of plant, stock and equipment to the value of $250,000. With Wendy Crockett, he remains the undisputed owner of both properties. Given what he put into the venture, what he received from it over the years, what he was left with and given his conduct, which prevented Owen and Judy Crockett continuing to farm Iona, as had been contemplated when the property was transferred to he and Wendy Crockett in 1990, I cannot see how justice would permit the finding of unfairness claimed. The notice claim 117 I turn to the claim that it was Owen Crockett who terminated the arrangement and that the arrangement was unfair, in not providing for the giving of notice. There were various difficulties with the claims advanced, even if the applicant had succeeded in demonstrating that it was Owen Crockett who had brought the arrangement to an end. 118 For example, the lease of Marysville was not able to be renewed early in 2005, shortly after the arrangement came to an end and the respondents were unable to find other suitable property to lease and farm. This development reduced the turnover and profits of the ongoing farming operation, which Owen, Peter and Judy Crockett continued to conduct, after the arrangement here in question came to an end. Stuart Leckie denying them the right to farm Iona, had similar consequences. 119 These developments were not taken into account by the applicant, in the notice claim advanced in these proceedings. He argued that fairness required that he be given 15 months' notice of termination and that the resulting money orders should be calculated by reference to the past share of profits paid to both he and Wendy Crockett, over the preceding 3 or 5 years. One of the difficulties with this approach was that had notice of termination been given, the loss of the Marysville lease would have affected the applicant, as well as the respondents. On the applicant's approach, however, he was to be insulated completely from this development. In addition, on his approach his unsuccessful farming of Iona and Westholme, in which he incurred losses of some $40,000, was to be taken into account, by way of offsetting any mitigation, which might have flowed from a consideration of what he earned in the nursing work which he also pursued. It is difficult to see how fairness could have permitted such an approach. 120 This aspect of the claim also failed to pay any regard to Wendy Crockett's part in the arrangement. Why, in fairness, notice payments to Stuart Leckie should have been calculated on the basis of profit shares which he had always shared with Wendy Crockett in the past, as a part of this longstanding arrangement, was unexplained. 121 Also overlooked was that despite the understanding reached when Iona was transferred to Wendy Crockett and Stuart Leckie in 1990, Owen and Judy Crockett were unable to continue their farming operation on Iona, as the result of the steps taken by the applicant in 2004. How this could be overlooked, if justice was to be achieved between these parties, was not apparent. 122 Conceptually, it seems to me, that there was also another difficulty. On any view, this was not a commercial arrangement entered into between unrelated parties, at arms length with each other, in which circumstances questions of notice would have squarely arisen, under the law of contract, either by way of express provision, or by implication. What here arose for consideration, was an arrangement which subsisted in the context of a family relationship. It depended from the outset upon the willingness of Owen and Judy Crockett to provide the members of their family with the benefit of their expertise and years of experience in conducting and financing a substantial farming operation. This they did by expanding their operation, initially over a third property which their daughter and her husband had acquired. Later, after their son had also joined the venture, the operation expanded over a fourth property leased by their son, some of which lease fees it was agreed Stuart Leckie would meet. 123 In those circumstances an obvious question arises - would fairness require that if the underpinning family relationship broke down, that some additional notice of the termination of the arrangement here in question be given, as between these family members? In determining that question, the public interest would require consideration (see s146(2) of the Act). Would it be consistent with the public interest to import into an informal family arrangement such as this, notions flowing from the law of contract? In considering the question of fairness raised, it would also be necessary to consider the evidence that Stuart Leckie himself had not thought it necessary to consider questions of notice, when altering the arrangement so far as Wendy Crockett was concerned. The parties' conduct being another relevant consideration, given the requirements of s106(2). 124 This was quite an unusual arrangement. The operation conducted by Wendy Crockett's parents over Iona and Yeronga Hill, was expanded when they agreed also to farm Westholme. Wendy Crockett and Stuart Leckie had bought that property, with the proceeds of the sale of another property owned by Stuart Leckie and with money provided by Stuart Leckie's father, Ronald Leckie. As a result, Stuart Leckie and Wendy Crockett were able to share together in the profits of this arrangement, through their partnership. While they owned the two properties together, they did not in reality, finance the acquisition of either. They were plainly fortunate to have been the beneficiaries of their parents' respective generosity, both when the properties were first acquired and subsequently. 125 It seems to me that it must be most unlikely that an arrangement such as this would have been entered by anyone other than the members of a close family. It is inconceivable that people in the position of Owen and Judy Crockett would have entered into a commercial arrangement with non-family members on terms such as these, particularly given the evidence of what they both contributed to the arrangement, by way of comparison with what they received from it. Plainly, the arrangement must have necessarily rested on the personal relationships existing between these close family members being maintained. The termination of the arrangement, followed upon the breakdown of those relationships. 126 The marriage between Stuart Leckie and Wendy Crockett first became strained in 1998. That appears to have had no impact on the farming operation. There were various discussions between them over the years as to the property and where they would each live. Wendy Crockett proposed that Stuart Leckie move to the Westholme homestead while she remained at Iona, but he refused. In 2000, Wendy Crockett left Iona for a time. She later returned, but there was no reconciliation. Stuart Leckie claimed that at one point Wendy Crockett considered moving to Westholme, which she denied. Wendy Crockett left Iona again in December 2003. Their partnership had already ended and it was then that Stuart Leckie appropriated the partnership assets and began retaining all of the profits he received from the farming operation. 127 On his evidence Stuart Leckie had told Judy Crockett that his partnership with Wendy Crockett had come to an end earlier in 2003, but the farming operation had still continued without difficulty. Judy Crockett made payments to Stuart alone, after he had told her that his ABN number had changed. Those profits were however, still shared with Wendy. Unbeknownst to Owen and Judy Crockett, in December 2003, Stuart Leckie stopped sharing any of the profits with Wendy Crockett, and appropriated all of the partnership assets as his own. It was when Owen and Judy Crockett learned of these developments in November 2004 and responded to them by insisting that steps be taken by Stuart Leckie to resolve the property dispute, that the relationship between the family members which underpinned the arrangement, became strained, eventually to the point of collapse. 128 In cross examination, Owen Crockett explained that he was greatly upset when he learned of this situation, because he saw the arrangement as one which had always provided financial assistance to both Stuart Leckie and Wendy Crockett. He had discussed the property settlement on earlier occasions with Stuart Leckie without success. Owen and Judy Crockett came to the view that steps had to be taken to ensure that it was resolved, if the arrangement was to continue. Stuart Leckie was angered by what he perceived to be interference in matters which did not concern Owen Crockett. Their relationship broke down over this disagreement. As for the relationship between Peter Crockett and Stuart Leckie, there was less evidence. It was not suggested that Peter Crockett was involved in any of the discussions over the property settlement which Stuart Leckie claimed resulted in the termination of the arrangement. No doubt, however, when the respondents were excluded from Iona and Westholme that relationship was irretrievably affected, as the subsequent altercations and litigation revealed. 129 The evidence suggested that Stuart Leckie was considerably distressed by break-up of his marriage, which he perceived to have occurred as the result of steps Wendy Crockett had taken, not he. He wanted the farming arrangement to continue and he wanted to live at Iona with his children. In 2003, Wendy Crockett proposed that Stuart Leckie take Westholme and she keep Iona, but Stuart Leckie refused. On Owen Crockett's evidence, Wendy Crockett discussed this with him. In late March 2003, Wendy Crockett told Owen Crockett: "I would agree to Stuart farming both Iona and Westholme but only on the basis that he will agree to enter a commercial lease with me for his use of "Iona". But he won't agree to that proposal so we can't reach a matrimonial property settlement". 130 Owen and Judy Crockett both discussed these matters with Stuart Leckie. On Owen Crockett's evidence he had discussed them on about four occasions over a period of some 20 months. They were anxious for Stuart Leckie and Wendy Crockett to settle the property question between them, understandably, given the basis upon which Iona had been transferred to them in 1990. 131 In cross examination, Owen Crockett explained that he put a deadline to Stuart Leckie on reaching an agreement with Wendy Crockett, after he learned that Wendy Crockett was no longer receiving any share of the profits, because he thought that '20 months' notice was enough'. There was no issue that on 12 November, Owen Crockett demanded that Stuart Leckie resolve the matter, by raising three options with him. In his mind, this gave Stuart Leckie a further 6 to 12 weeks to take the necessary steps. He told Stuart Leckie that otherwise, his and Wendy Crockett's financial assistance was going to be cut off. In cross examination, Owen Crockett explained that he understood that there was no chance of concluding proceedings about a property settlement within that time, if they were necessary, but in his view, they could have been started. 132 Were this a business relationship, Owen and Judy Crockett's concerns may not have been understandable. Given how this family arrangement had come about; how it had operated; how long it had persisted and the difficulties which had arisen, Owen and Judy Crockett urging Stuart Leckie and Wendy Crockett to reach an agreement on a property settlement and finally requiring a resolution, if the arrangement was to continue, does not seem surprising. The catalyst for Owen Crockett's demand that Stuart Leckie take steps to settle the property question, was when he and Judy Crockett learned on 11 November 2004, after making a profit payment that day to Stuart Leckie, that Wendy Crockett had received no share of the profits of the farming operation since December 2003. 133 On Stuart Leckie's evidence, this was a change considerably to his advantage. For the year ended 30 June 2004, he received $99,621 distribution from Owen and Judy Crockett, but paid only approximately $11,000 to Wendy Crockett. In cross examination, he agreed that this had resulted from decisions which he had made, not from any agreement reached with Wendy Crockett. He explained that it was his assumption that she 'did not want to be a member of the partnership anymore so I took that to mean that she did not want to receive any more shares.' He also acknowledged that he had appropriated the assets of the partnership, without Wendy Crockett's agreement. 134 Owen and Judy Crockett had assumed that Stuart Leckie was still sharing the profits with Wendy Crockett. That was what had occurred when Peter Crockett's relationship with his wife had earlier broken down. That it would be a matter of concern to them that their daughter was no longer receiving any share of the profits of this family operation and that the property dispute between she and Stuart Leckie still remained unresolved, can have come as no surprise, given the basis upon which the arrangement had operated from the outset - to provide support to both Stuart Leckie and Wendy Crockett and their family. 135 One of the things which all of this evidence revealed, was that Stuart Leckie himself thought that he was entitled to unilaterally alter the arrangement here in question, without real discussion, consent or notice to the other parties. It is in that context that his claim for variation of the arrangement, so that he be entitled to receive 15 months' notice from the respondents, following upon Owen Crockett's termination of the arrangement, arises for consideration in these proceedings. 136 As to termination, Stuart Leckie's case was that on 12 November, he and Owen Crockett had a considerable disagreement, with Owen Crockett finally terminating the farming arrangement that day, by telling him to 'piss off'. On his own evidence, Stuart Leckie was very angry with Owen Crockett demanding that the property question be sorted out between he and Wendy Crockett. Stuart Leckie's view was that this had nothing to do with Owen Crockett, who had given him an ultimatum which he could not accept. Stuart Leckie described himself to have been so angry during their discussion, that he was standing over Owen Crockett, shouting at him and that Owen Crockett was visibly distressed by his behaviour. Owen Crockett's description of Stuart Leckie's reaction was to similar effect. On his evidence, Owen Crockett brought the conversation to an end because he saw one of his grandchildren coming to investigate the shouting, by telling Stuart Leckie to 'piss off'. Given the evidence as to the language which Stuart Leckie himself used in this conversation, it can not have been the language itself which was of concern to Stuart Leckie. 137 This was plainly a highly distressing confrontation for both men. It resulted in Stuart Leckie taking legal advice as to his circumstances. He received advice as to both an unfair dismissal claim and s 106 proceedings. It was not long before he came to the view that he no longer wanted to work with Owen Crockett. On his case, however, that was in circumstances where he believed that Owen Crockett had brought the arrangement to an end on 12 November, when Owen Crockett told him to 'piss off'. Owen Crockett denied having ended the arrangement. Stuart Leckie's evidence was attacked, as simply not being credible on this point. 138 On any view, simply being told to 'piss off', would have been curious words to use to bring about the termination of this arrangement, given how it operated and who owned the properties on which it was conducted. 139 It was common ground that what Owen Crockett raised with Stuart Leckie was the property settlement being pursued by Wendy Crockett, with an ultimatum that if it was not resolved, then the arrangement with both Stuart Leckie and Wendy Crockett would come to an end. Owen and Judy Crockett would no longer be prepared to support either of them. This ultimatum was raised in the context of a large farming operation, involving all of the parties to these proceedings, as well as Wendy Crockett, not just Owen Crockett and Stuart Leckie. To that point, it had persisted for some 14 years, despite the difficulties in Stuart Leckie and Wendy Crockett's marriage over the preceding 6 years. Two of the properties being farmed were part owned by Stuart Leckie. Much of the livelihood of the entire extended family, including Owen and Judy Crockett's grandchildren, about whom they had always been concerned, plainly depended on the continuing success of the farming operation, which was rasing stock, as well as crops, which were due to be harvested on various of the properties. There was plainly a great deal at stake for all concerned. 140 The difficulty in establishing a case which depends on a recollection of conversations and their consequences, was recently discussed by the Court of Appeal in McMurtrie v Commonwealth of Australia [2006] NSWCA 148 : 5 The difficulties in proving the precise terms or effect of a conversation that occurred a long time ago are well expressed by McLelland CJ in Eq. in Watson v. Foxman (1995) 49 NSWLR 315 at 318-9 as follows: Where, in civil proceedings, a party alleges that the conduct of another was misleading or deceptive, or likely to mislead or deceive (which I will compendiously described as "misleading") within the meaning of s 52 of the Trade Practices Act 1974 (Cth) (or s 42 of the Fair Trading Act ), it is ordinarily necessary for that party to prove to the reasonable satisfaction of the court: (1) what the alleged conduct was; and (2) circumstances which rendered the conduct misleading. Where the conduct is the speaking of words in the course of a conversation, it is necessary that the words spoken be proved with a degree of precision sufficient to enable the court to be reasonably satisfied that they were in fact misleading in the proved circumstances. In many cases (but not all) the question whether spoken words were misleading may depend upon what, if examined at the time, may have been seen to be relatively subtle nuances flowing from the use of one word, phrase or grammatical construction rather than another, or the presence or absence of some qualifying word or phrase, or condition. Furthermore, 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. Considerations of the above kinds can pose serious difficulties of proof for a party relying upon spoken words as the foundation of a causes of action based on s52 of the Trade Practices Act 1974 (Cth) (or s42 of the Fair Trading Act ), in the absence of some reliable contemporaneous record or other satisfactory corroboration. That is the position in the present case. 141 Similar difficulties arise in proceedings such as this. A resolution of the controversy as to how, in truth this arrangement was brought to an end and by whom, thus requires a close consideration of the evidence as to what was said and how Stuart Leckie and Owen Crockett conducted themselves, in their discussion on 12 November and subsequently. 142 Stuart Leckie's affidavit evidence was that the arrangement was brought to an end by Owen Crockett in a conversation on 12 November, to the following effect: 25. .... He said, I am giving you an ultimatum you have two, maybe three choices; The first choice is to forego the lease on Iona (which Wendy Crockett had earlier offered me) and keep working with me and Judy. The second choice is to continue working alone on Westholme without any of the joint enterprise stock or equipment. The third choice is to take us to court. I'm telling you, not asking you. I want your answer now." I said, "I will tell you next week". He said, "Piss off. I'll be back to move the cattle off Westholme this afternoon." 26. On the afternoon of 12 November 2004, without my consent, Owen and Peter Crockett removed about 37 head of cattle from Westholme to Iona. 143 Owen Crockett's affidavit evidence was: On or about 12 November 2004, I had a conversation with Stuart on the verandah at "Iona" regarding the unresolved matrimonial property dispute between Wendy and Stuart. I said to him words to the effect: "There are a number of options that are open to you to resolve the matrimonial property dispute with Wendy. One would include that by way of property settlement title in Westholme be transferred solely to you and the title in Iona be transferred solely to Wendy. That appears to be an eminently fair distribution of your assets. If you don't agree to a fair resolution of their matrimonial property dispute, Judy and I will no longer financially assist either you or Wendy from our farming operations". Stuart loudly replied: "It's none of your fucking business" I said, words to the effect: "Well, it is my business because I'm 70 and I want the matter settled before I pass on. I don't want my daughter continuing to be abused and getting nothing from her heritance." Stuart continued to shouted at me: "It's none of your fucking business". I was aware that two of his children were inside and one came out from inside the house while Stuart was yelling at me. I couldn't continue talking with Stuart in front of the children because of his aggressive mood and abusive language. I said: "Piss off, Stuart". I then walked away from him and returned to my home at "Yeronga Hill". From 12 November 2004 onwards, Stuart did not turn up to work with Peter, Judy and I. 144 In cross examination, Owen Crockett explained that he thought that Stuart Leckie was so angry, that he was not capable of absorbing what he was trying to say to him that day. He agreed that he had put three options to Stuart Leckie, who wanted more time to think. Owen Crockett persisted in seeking an answer, because he believed that Stuart Leckie had had more than enough time to deal with the property question. Owen Crockett explained that he had told Stuart Leckie to 'piss off' because he wanted to finish the conversation then, because he could see one of the children coming to investigate the shouting. He agreed that he had also told Stuart Leckie that he would return in the afternoon to move cattle to Westholme. He explained that this was because it was time that those cattle were moved and had nothing to do with terminating the arrangement. Stuart Leckie was a part owner of both properties and the cattle were moved from Westholme to Iona, where Stuart Leckie lived. 145 Stuart Leckie kept a handwritten note of what had occurred on 12 November and later on 15 or 16 November, when he and Owen Crockett spoke again. The note was prepared on 18 November under the heading 'sacking'. In cross examination, Stuart Leckie explained that this was a fuller account of what had occurred on those days than that contained in his affidavit. The note said: On the morning of Friday 12th November, I was driving in my ute down to Yeronga Hill to help my brother-in-law to change the springs on an old ute. I met my Father-in-law travelling up the lane towards Iona. I stopped and he said he wanted a word with me back at Iona so that's were we went. Some weeks previously he had threatened to half my salary in relation to my settlement proceedings with his daughter - my wife. His wife (Judy Crockett), I thought, had talked him out of it as she gave me her word it wouldn't happen at least until March 2005; giving me more time to sort things out. I was unaware then, of what was coming, what he wanted to 'talk' about. We sat down in the lounge room at Iona and I asked him what he wanted to say. He said he had come to give me an ultimatum in regard to the settlement proceedings with my wife. At that point I stood up, pointed at the door and forcefully asked him to leave my house. I rejected the idea of an ultimatum. I asked if he had permission from Judy and Wendy. He said he had spoken to Wendy the night before and also had Judy's ... [ TEXT ILLEGIBLE ] In any case he was not going to leave until he had finished what he came to say. With violence not an option and seeing he was visibly affected by my outburst, I sat back down. He went on to make a point of saying, and he said it more than once, that he was telling me, not asking me, what was going to happen. He said he was giving me an ultimatum and I had 2, maybe 3 choices. The choices all related to an ongoing settlement agreement between myself and my wife. The first choice related to taking names of the various properties and the use of the land as well as continuing on working with him. The 2nd choice, was to do with ? and working up of Westholme on my own and he would take the cattle off. The 3rd additional choice was to go to Court. He stressed forcefully, and again more than once, that he wanted an answer 'now' with the emphasis on now. I told him I wouldn't give him an answer now. As it was Friday, I said. I would give him an answer 'next week' when I had time to think about it. At that (my reply) he stood up, walked out the door to put his boots on, and told me to 'piss off'. I began appealing to him that I had been making progress towards settlement citing a letter I had written to my wife's solicitor (to which I had received no reply). His comment was it had been written by a 'fucking idiot'. He asked, rhetorically I presumed, I'll move the cattle of Westholme this afternoon will I, having just been told to 'piss off' from work I thought the decision had already been made. He left saying "right I'll be back this afternoon to move those cattle', which he did. I did not resume work from that point. The following Tuesday, Tuesday 16th Nov, I left the house at Iona about 8:15 and walked down to the paddock where Owen was beginning to hook up a bale carrier. I was out Monday evening and I was told on my return by my eldest daughter that Judy had said 'Owen may need help with hay carting tomorrow'. Hoping he'd changed his mind about sacking me, I walked down. I asking him purposefully, as the situation was serious for me. "Are you asking me back to work"? His reply was "depends if you want to". I corrected him, at least I thought I did, by saying "no, it's up to you to ask me back. I would really like to continue working with you." It then became clear that my return to work was dependent on my accepting his demand for me to agree to his terms of settlement with my wife. I said something to the effect of - "you mean your' saying I can't return to work unless I sign you(sic) settlement? He had produced a sheet of paper which he gave me, restating the first option which he had dictated to me the previous Friday. His answer was 'yes' though he didn't meant that actual bit of paper. At that I walked off. 18/11/04 I told Judy Crockett the following afternoon that it was extortion and it was wrong, to which she replied 'I am out of it'. 18/11/04 He also said in reply to my statement 'that's not the way to do things' Owen "that's the way I do things." In the course of an SMS 'conversation' with my wife on Tuesday 16th Nov 2004, (she had replied to a question of mine whether or not she would help with income payments as they were due) I said/texted "your father has given me the sack for not signing off on his version of settlement. He is an old fashion loose cannon". No reply. 19/11/2004. Conversation with Tony Cheney 18/11/04, whereby, after being relayed the chain of events leading to my dismissal, he recommended, if I desired, filing an unfair dismissal claim against my father-in-law. 146 The reference to Mr Cheney was a reference to the applicant's then solicitor. Again a shorter account of the conversation on 16 November appeared in Stuart Leckie's affidavit evidence. Owen Crockett did not challenge either version. The written proposal which Owen Crockett gave Stuart Leckie on 16 November was: Property Settlement Stuart Leckie will remove his name from the Deeds of "Iona" "Iona" will be held in Wendy Crockett's name or jointly with Peter Crockett. Wendy Crockett will remove her name from the Deeds of "Westholme". "Westholme" will be held in the name of Stuart Leckie solely. Because "Iona" is more valuable than "Westholme" Wendy will allow Stuart to live in "Iona" indefinitely for no rent. There will be no financial adjustment either way. 147 In cross examination, Owen Crockett explained that his proposal gave Stuart Leckie various options in relation to a settlement, including initiating court proceedings if he and Wendy Crockett could not agree and time to commence taking those steps. He had made a payment to Stuart Leckie the previous day. The next payment would usually be made in 6 to 12 weeks' time, so Stuart Leckie had at least 6 weeks to take some steps. He put the proposal as to a division of the property in writing, because he thought Stuart Leckie had been too angry to absorb what he had been trying to say on 12 November. 148 Stuart Leckie's evidence in cross examination was that being told to 'piss off' on 12 November and the advice that the cattle were to be moved from Westholme, in his mind meant that Owen Crockett was terminating the arrangement and implementing one of the options Owen had put to him, of he farming only Westholme alone. 149 What was clear from all of the accounts of these conversations was that what Owen Crockett and Stuart Leckie were discussing on 12 November was Owen Crockett's view that the property question had to be resolved between Stuart Leckie and Wendy Crockett. Owen and Judy Crockett's attitude was that if it was not, they would no longer be prepared to financially support either Wendy Crockett or Stuart Leckie. This angered Stuart Leckie, who thought the property matter was none of their business. They had a considerable argument. Having been told to 'piss off', Stuart Leckie did not attend work as normal on 12 November, or subsequently. He took the view that Owen Crockett would have to ask him to return, before he did so. Judy Crockett's evidence was that on 12 November Stuart Leckie rang to tell her that Owen Crockett had told him to 'piss off'. She said: "Well, I think it's time that you and Wendy sorted out the property side of things. Why can't you take Westholme and Wendy Iona?" He said: "I'm not going to do that." 150 Some days later Judy Crockett spoke to Stuart Leckie again, when she went to pick up the children. He told her he wanted an apology from Owen Crockett. 151 On Stuart Leckie's evidence he understood that his conversation with Owen Crockett on 12 November had terminated the entire farming arrangement. He sought legal advice and was given advice about challenging his 'sacking'. On Owen Crockett's evidence that was neither his intention, nor what he did and in fact, the operation continued, even though Stuart Leckie did not come to work. It continued until Stuart Leckie precluded his access to Iona and Westholme in December. 152 Stuart Leckie never worked again in the farming operation. In cross examination, he explained that after the discussion on 12 November, he decided that he no longer wished to work with the respondents, but denied that it was he who had sought to bring the relationship to an end. 153 On 16 November, he wrote a letter to Owen and Judy Crockett advising: Owen and Judy, It is difficult to reply to your settlement 'offer', as it was presented as a demand upon the acceptance of which hangs a job. I have had enough of deadlines, threats and ultimatums. Furthermore having four of you (Wendy, Judy, Owen and Dalton) to deal with is ridiculous and unworkable. One says one thing and another does another as with our agreement Judy. Wendy restated this morning (via sms) that Dalton is her negotiator so that is who I'll deal with; and Wendy herself. Why can't you trust Wendy and I to sort it our between ourselves? I know it seems a long time to you but on the receiving end here it only seems to have been the blink of an eyelid. Between work, the house, kids and sport it seems little enough time to think it through and assimilate what it will mean. I have been making efforts to settle the dispute since returning from Uluru. At times, I admit, I've lacked inclination both because I have been deeply hurt and at times, very angry. I was wanting you to apologise Owen (though you said this morning you won't), not for your rude ultimatum or telling me to piss off from work, through after nearly 20 years here, that hurt; but rather for telling me to piss off to Westholme and moving the cattle because that of course means you are also telling the kids to piss off from what is, after all, their Family home. That rudeness and disregard for the kids wellbeing I cannot accept. If everybody keeps their cool, me included, we can do this. Please allow Wendy and I to work this out between ourselves. We can you know. Wendy reminded me Owen that Iona was your inheritance. It is obviously hard for you. I think I have said before that I do not want sole ownership of Iona. I did at one stage think that changing from joint tenant to tenants in common my have been preferable but that thoughts nearly gone. Depending on how our relationship survives I may need the use of the land. I envisage and hope both Iona and Westholme will be left to our children. I'm sorry if that does not meet your expectations. 154 On its face, this letter does not suggest an understanding when it was written, that the arrangement had already been brought to an end. Stuart Leckie described Owen Crockett's demand as 'a demand upon the acceptance of which hangs a job.' That is not the language of a termination of the arrangement having already occurred. The statement that Owen Crockett had told him to 'piss off from work', did not reflect what Owen Crockett said, either on Stuart Leckie's own account in these proceedings, or in the note he made of the conversation on 18 November. Owen Crockett did not mention work, when telling Stuart Leckie to 'piss off', nor did he say to Stuart Leckie that he should 'piss off to Westholme', as the letter suggested. 155 In cross examination, Stuart Leckie explained that by 16 November, he had come to the view that Owen Crockett's demands amounted to extortion. He denied that this was an overreaction. 156 Stuart Leckie also claimed that he and Owen Crockett had a further conversation later in November, to the following effect: He said, 'Are you making any progress yet? I thought you might want to come back to work". I understood this to be his way of saying have you agreed to my terms for your property settlement with Wendy? I said, "No, and its none of your business". He laughed in reply. 157 Owen Crockett denied speaking again to Stuart Leckie after their conversation on 15 or 16 November. Even if Stuart Leckie's recollection is accepted, however, the conversation suggests that Owen Crockett expected that Stuart Leckie would return to work and that Stuart Leckie was not prepared to do so, consistently with his evidence in cross examination and what he had told Judy Crockett. Stuart Leckie's attitude remained that the property question was not a matter for Owen Crockett and he was no longer prepared to work with him. Stuart Leckie's evidence that he understood that the words 'Are you making any progress yet? I thought you might want to come back to work' to mean 'have you agreed to my terms for your property settlement with Wendy', was simply not credible, given that, even on Stuart Leckie's own account, Owen Crockett had proposed three options for sorting out the property dispute, including litigation, not just one. 158 Despite Stuart Leckie's evidence that his understanding was that the arrangement had been terminated, in cross examination he also agreed that the farming operation continued after the discussions both on 12 and 15 or 16 November. It was in his letter of 16 November that he advised that 'Depending on how our relationship survives I may need the use of the land.' This foreshadowed for the first time that the land might not be available any longer to the respondents. Again, that advice was, nevertheless, consistent with an understanding that the relationship was still on foot at that point. 159 On 12 November, Owen Crockett did move cattle from Westholme to Iona. Stuart Leckie was part owner of both properties and lived at Iona. I cannot accept as credible Stuart Leckie's evidence in cross examination that he believed that moving those cattle was to unilaterally give effect to one of the options Owen Crockett had put to him earlier that day - namely, the arrangement terminating and Stuart Leckie moving to Westholme and farming it himself. Iona was part owned by Stuart Leckie. He lived there. The cattle were mixed with others already at Iona, where they remained until the beginning of January, when they were moved to Yeronga Hill. 160 In December, Owen and Peter Crockett harvested a paddock of oats on Iona and moved stock and equipment. Owen Crockett's evidence was that they had Wendy Crockett's permission to harvest the crop, but when they arrived they found the gates locked and that silicone had been placed in the locks, to prevent their unlocking, which gave rise to other difficulties. In cross examination, Stuart Leckie agreed that he had used the silicone, describing this conduct as irrational. Peter Crockett cut the chain to give the contract harvester access to the crop, which was then harvested, as had been planned. 161 Stuart Leckie's evidence was that the respondents also harvested a 50 acre paddock of wheat and removed other equipment from Iona. Owen Crockett's evidence was that he had spoken to Wendy Crockett and had her permission to enter Iona to remove the equipment. The equipment had to be moved in order to enable the harvest on Iona and Yeronga Hill to continue. Stuart Leckie's evidence was that Wendy Crockett had not discussed this with him. In cross examination, his evidence was that he believed the crops belonged to he and Wendy Crockett, because the arrangement had been terminated. 162 On 14 December, Stuart Leckie wrote to the respondents, advising: To Owen, Judy and Peter Crockett Yesterday, Monday 13th Dec '04, you came onto my property and harvested and transported oats without first seeking or gaining my permission. As the property settlement between Wendy and I remains unresolved, and the oats may form part of the settlement, I request that the oats not be removed from Iona or that you provide me with a full and proper accounting of the Iona oats within 14 days. In any event I request that you do not enter 'Iona' or 'Westholme' without my prior expressly written permission, as from the time and date stated above. 163 In cross examination, Stuart Leckie explained that the catalyst for this advice was the harvesting of a crop of oats on Iona. On Stuart Leckie's evidence, on 19 December, Owen Crockett was on Iona without his permission and asked if he could fix a leaking trough. Stuart Leckie agreed, but insisted that he had to ask his permission before coming onto the property. Owen Crockett left and returned some time later. On his evidence, Stuart Leckie reminded him that he had not asked his permission and they had a conversation to the following effect: He said, "So you want to dissolve the partnership do you?" I said, "You already have dissolved it when you told me to piss off." He said, "You must be dreaming Stuart I never said that. When did I say that?" I said, "On 12 November 2004." At the conclusion of this exchange Owen Crockett followed me back up the road to the house in his utility. When I realised that he was following me, I ran down the driveway shouting at him to get off the property. At low speed, he drove his utility towards me causing me to be thrown onto the bonnet. Owen Crockett still refused to leave until my eldest daughter came onto the veranda, obviously distressed by the events she had witnessed. A copy of my notes of these events made on 20 December 2005 is at tab 10. 164 Again, Owen Crockett denied having had such a conversation, but Stuart Leckie made a note of these events, on 20 December, which recorded: On Sunday 19th Dec '04, I challenged Owen Crockett for the 2nd time that day as he was coming out of my paddock after having checked his cattle. He had rung the police/solicitor after an earlier encounter on the same day where I asked him to ask my permission before entering my property. He said "I'm not going to ask your permission. I'm just checking my cattle". I started to drive off and he called me back, I got out and he said: "You want to dissolve the partnership do you?" I said "You already have dissolved it when you told me to "piss off". He said "You must be dreaming Stuart I never said that "when did I say that? Me: "12/11/04" He said. "Oh Stuart you're just having a bad dream (in a theatrical voice) I didn't do any such thing. It became clear to me that he was intenionally(sic) lying and I called him a smart arse cunt. He went on to repeat several times 'that I must be day dreaming. At one point I hit the back of my ute in frustration. I turned around suddenly to find him smiling at me, before quickly removing the smile. I left in some haste. Apparently, he wanted to say something else to me as he followed me up to the house which I didn't expect. I ran down my driveway as he drove up yelling and gesticulating at him to go. He didn't stop and nor did I and I ended up on the bonnet of his ute. No harm was done. I kept yelling at him to get off my property. My daughter came on to the verandah visibly upset and called out to me. It was only then Owen made a move to leave. He left without being able to say a word. 20.12.04 Sorry Grant, I suspect the policeman told him on the 15/12/04. My stupid mistake. I believe the accompanying letter was written with 106 knowledge. 165 In cross examination, Stuart Leckie explained that this last aspect of the note referred to an earlier interview which he had had with a policeman, when he had complained about some damage to his property. During the interview, he explained all that had occurred, including that he had taken legal advice in relation to bringing proceedings under s 106 of the Act. He suspected that the policeman had later told Owen Crockett about this and that this explained Owen Crockett's conduct towards him. This suggestion was not put to Owen Crockett in cross examination. His evidence was that he had no conversation with Stuart Leckie after 16 November. 166 Again, even if Stuart Leckie's evidence were to be accepted, the respondents, including Owen Crockett, were conducting themselves as if the arrangement was still on foot. On this occasion, Owen Crockett expressly denied having terminated the arrangement earlier and was asking whether Stuart Leckie wanted to bring it to an end. In cross examination, Stuart Leckie agreed that by this time, he no longer wished to work with Owen Crockett. He had taken legal advice on 18 November, or even earlier and thought that Owen Crockett was just lying to him. It was in December that he decided to take these proceedings. 167 On 21 December, Stuart Leckie also filed an apprehended violence complaint against Owen Crockett. The complaint alleged: The complainant had been working as a share farmer with the defendant since 1986 and defendant's son Peter Crockett joined the partnership in about 1998. Complainant at all material times lived on the matrimonial property of "Iona" with his wife and children. The real property of "Iona" and "Westholme" are in the joint names of the complainant and his wife Wendy Crockett. Wendy deserted the complainant on 1/1/2004 and taken up a home with another person at Lucknow. Complainant and Wendy were settling on a family law property settlement, whereby the realty of "Westholme" was to be transferred to the sole name of the complainant and "Iona" to the sole name of Wendy, with Wendy to grant the complainant a commercial lease over "Iona," with the complainant being granted the right to reside in the home on "Iona." The terms of the proposed arrangement did not please the defendant. On 12/11/2004 defendant terminated the share farming or partnership agreement telling complainant to "Piss off". Since such time the defendant has been regularly coming onto the complainant's property at both "Iona" and at times "Westholme" without the permission of the complainant, including cutting chains on the gates and removing the produce from the complainant's land. The defendant has been continually harassing and intimidating the complainant in an endeavour to having him vacate the property. Defendant said "if you want to lose both properties then?" Complainant replied "you have got to ask permission before coming in", to which he replied "Alright lose both properties. 168 In his affidavit evidence, Stuart Leckie explained the curious omission of any reference in the complaint to having been struck by Owen Crockett's car, because 'there was insufficient space on the form on which I was trying to set out a full history of my complaint' and that he had told the Registrar 'who completed the report about the incident.' The complaint was at odds with Stuart Leckie's evidence in these proceedings in other respects. He and Wendy Crockett were not then settling on the terms he asserted; they were not terms agreed; that they were not terms acceptable to Owen Crockett was not suggested; nor was it suggested in this case, that Owen Crockett had threatened Stuart Leckie with the loss of both properties. 169 On his evidence, Owen Crockett regarded the AVO application as a device to prevent him from coming onto Iona, to conduct farming operations there and to remove his plant, stock and equipment. Given Stuart Leckie's explanation in these proceedings as to why he pursued the AVO, that suspicion plainly had some basis in fact. 170 On Stuart Leckie's evidence, on 23 December and again between 30 December and 8 January, Owen and Peter Crockett removed further equipment and stock from Iona, despite Stuart Leckie advising them they had no permission to do so. On their case, they had Wendy Crockett's permission to do so. 171 On 10 January, the AVO summons was returnable and Stuart Leckie sought interim orders. To avoid litigation Owen Crockett gave an undertaking not to enter the property. This precluded the farming operation being continued. 172 On Stuart Leckie's evidence on 14 February, Peter and Owen Crockett cut a lock on a gate at Iona and delivered 49 steers for agistment. Owen Crockett's evidence was that Wendy had told him that she needed to get some income from Iona, in order to help her pay her children's school fees. She wanted to agist some cattle there. Owen Crockett agreed to agist 49 cattle. Wendy Crockett said she would let Stuart Leckie know. Peter Crockett cut the chain when they found the gates locked. Owen Crockett did not enter Iona because of the AVO. Peter Crockett was told by Stuart Leckie that he had no right to be there. Owen Crockett later saw that the cattle had been moved to a paddock with insufficient feed and water. The cattle were moved back and forward that day about 6 times and on 10 March, Stuart Leckie moved them back to Yeronga Hill, without anyone's permission. 173 Stuart Leckie's evidence was that he had a conversation with Peter Crockett: I said, "Who owns the cattle? They or you don't have my permission to be on Iona. Get off my property now. Peter said, "I'm not telling you who owns the cattle. Wendy said I could come on, I am not leaving. I said, "You are in the wrong. You are breaking an undertaking made to the Court by Owen Crockett. Get off" 174 Later, he saw Peter and Wendy Crockett at the shearing shed sitting in a vehicle and told them to leave his property. Peter Crockett assaulted him with a camera and on 21 February he sought an AVO against Peter Crockett. 175 Peter and Wendy Crockett also claimed to have been assaulted by Stuart Leckie at Iona. Wendy Crockett's evidence was that she had taken Peter Crockett with her, because she was afraid of Stuart Leckie. She disputed that Peter Crockett had assaulted Stuart Leckie. Stuart Leckie was later charged with assault, but was acquitted after a hearing. Amongst other things, in her statement to the police, Wendy Crockett said that: 1. This statement made by me accurately sets out the evidence which I would be prepared, if necessary, to give in court as a witness. The statement is true to the best of my knowledge and belief and I make it knowing that, if it is tendered in evidence, I shall be liable to prosecution if I have wilfully stated in it anything which I know to be false, or do not believe to be true. 2. I am 44 years of age. 3. I am currently separated from my husband, Stuart LECKIE, since 1998 and at the time we still lived under the same roof. In December 2003 I moved out from the property, Iona, to Lucknow, as it was obvious he was not going to move. 4. I am still in joint ownership with Stuart of the property Iona and Westholme, which is across the road Stuart was share farming with my father and brother and my income was from working for mental health. 5. Around the 11th of November 2004 my dad told Stuart that the working relationship was off between them, as he was sick of all Stuart's carrying on. 6. In December 2004 dad started removing all the stock and machinery from Iona, as he owned all of it outright. 7. In the week preceding the 11th February 2005 I discussed with my father and brother if they would consider agisting cattle on my jointly owned property. My intention was to equally share the profits from this with Stuart and my share was to go into a trust fund for my 4 children's education. As I had not received any income from the farming of my property, since the end of 2003. 176 Wendy Crockett's statement in February 2005, that her 'dad told Stuart that the working relationship was off between them, as he was sick of all Stuart's carrying on.' was the only evidence which corroborated Stuart Leckie's version of what had occurred on 12 November. Wendy Crockett was not present on 12 November, during the discussion between Stuart Leckie and Owen Crockett. There was evidence that Stuart Leckie told her what had occurred later that same day. There was no evidence that she discussed what had happened with her father. She was not cross examined about her understanding of what had happened, or what she said in this statement, which departed significantly from the evidence which both Stuart Leckie and Owen Crockett gave in these proceedings, as to what they both said and did that day. 177 Given the state of the evidence, I am unable to accept that Wendy Crockett's understanding, as appears in this statement, which appears to have been gleaned from Stuart Leckie, can outweigh the evidence which both Stuart Leckie and Owen Crockett gave in these proceedings as to what in fact transpired that day. 178 These proceedings were commenced in March 2005 and in April 2005, Stuart Leckie relisted AVO applications against Owen and Peter Crockett. Wendy Crockett commenced proceedings in relation to the property dispute in April 2005. The AVO proceedings were adjourned until July and were finally resolved in early 2006. Stuart Leckie was acquitted of assault charges in November 2005. 179 It was the respondents' case that it was Stuart Leckie, not Owen Crockett, who had brought about the end of the farming arrangement, including by requiring that they seek and be granted his written permission before entering Iona and Westholme and later obtaining AVO's, which prevented Owen and Peter Crockett from entering the properties. 180 Having carefully considered all of this evidence, I have concluded that during the heated conversation between Owen Crockett and Stuart Leckie on 12 November 2004, the farming arrangement was not terminated. Owen Crockett certainly had in contemplation that he and Judy Crockett would bring the arrangement to an end, if the property dispute between Wendy Crockett and Stuart Leckie was not resolved. He demanded that Stuart Leckie take steps to bring about a resolution, proposing a number of options, including court proceedings. He threatened that if those steps were not taken, he and Judy would bring the arrangement to an end. He demanded an answer more than once, but Stuart refused to give one. On his evidence, Stuart Leckie wanted to consider his position until the following week and Owen Crockett was insisting that he make a decision, having procrastinated long enough. 181 The confrontation was intense and unpleasant. Stuart Leckie believed that Owen Crockett had no right to involve himself in these matters. There was no question that Stuart Leckie was extremely angry at what he viewed to be unwarranted interference in matters which did not concern Owen Crockett. Owen Crockett thought he had every right to involve himself, but perceived Stuart Leckie to have been so angry that he was not capable of absorbing what he was trying to say. Finally he ended the conversation by telling Stuart Leckie to 'piss off', when he saw one of the children coming to investigate, saying that he would return later to move some cattle. Plainly, nothing was agreed in this discussion, nor, however, was the arrangement terminated, although that was clearly threatened. 182 Stuart Leckie did not work between 12 November and when he met again with Owen Crockett on 15 or 16 November, having received a message from Judy Crockett the night before, through his daughter, that Owen Crockett might need some help. On Stuart Leckie's evidence, Owen Crockett asked how he was going, consistently with Stuart Leckie having wanted time to consider Owen Crockett's demand. Owen said that he was anticipating that Stuart Leckie would want to return to work. Consistently with Judy Crockett's evidence of what he had told her, Stuart Leckie's attitude was that he was not prepared to return, without receiving an apology from Owen Crockett. Owen gave Stuart Leckie the written proposal, directed to one of the options he had earlier raised - a step entirely inconsistent with an understanding on Owen Crockett's part, that he had already terminated the farming arrangement. The tenor of the conversation was consistent with Stuart Leckie's request for time to think and with Owen Crockett's evidence that he wanted to give Stuart Leckie a final period of time to come to grips with a property settlement, before he and Judy Crockett withdrew their financial support for Stuart Leckie and Wendy Crockett, by bringing their arrangement to an end. 183 On the evidence, I am unable to accept the applicant's case that the arrangement was brought to an end, without notice, on 12 November when Owen Crockett told him to 'piss off' and that he would be moving some cattle from Westholme to Iona that afternoon. I am unable to accept that such a construction was reasonably open on the words used, or that it was how Stuart Leckie understood them at the time. Stuart Leckie owned both properties with Wendy Crockett. They were both being used as part of the overall family farming arrangement, which had subsisted by then for about 14 years. Crops were due to be harvested on the various properties and stock was being raised. I accept Owen Crockett's evidence that when he told Stuart Leckie to 'piss off', he wanted to bring the discussion to an end because a child was approaching and that it was simply time for the cattle he mentioned to be moved from one of the properties being farmed to another, where other cattle were already located. 184 Owen Crockett did not say that he was terminating the arrangement there and then, he was giving Stuart Leckie notice that it would come to an end, if the property question was not resolved. Given the evidence as to the nature of the confrontation that day, Owen Crockett's impression that Stuart Leckie had not absorbed what he was saying, seems consistent with his subsequent behaviour. 185 After 12 November, Owen Crockett did not act as if the arrangement had ended. Indeed in cross examination, Stuart Leckie agreed that the operation continued to be conducted after 12 November, until he took steps to stop the respondents accessing Iona and Westholme. 186 I am also unable to accept the alternative submission, pressed for the first time in submissions in reply, that if the arrangement was not terminated on 12 November, Owen Crockett brought it to an end on 16 November. 187 Stuart Leckie's letter of 16 November reflected that rather than their conversation on 12 November having already resulted in the arrangement being brought to an end, it was Stuart Leckie who was not prepared to accept that Owen Crockett had any interest in the property settlement; who was not prepared to accept any demands; and was not prepared to return to work without an apology. On 16 November, Owen Crockett was expecting that Stuart Leckie would resume working. He was not prepared to do so. Consistently with that attitude, Stuart Leckie later took steps to preclude the respondents from continuing to farm Iona and Westholme. First he used silicone to jam the lock on the padlock on a gate, to preclude access when crops needed to be harvested; then he demanded that the respondents obtain his prior written approval to come onto the properties, even though they had Wendy Crockett's permission to do so, and finally he obtained AVOs against Owen and Peter Crockett, which precluded them from entering Iona or Westholme at all. It was those steps which finally precluded the arrangement from continuing. 188 I am also unable to conclude that Stuart Leckie's attitude was a reasonable one. That Owen and Judy Crockett had a proper interest in the property difficulties between Wendy Crockett and Stuart Leckie being resolved, cannot be doubted, given the understanding reached between them when Iona was transferred into Wendy Crockett and Stuart Leckie's ownership in 1990; the basis upon which they agreed to farm Westholme and have Stuart Leckie work with them and their understanding that both Stuart Leckie and Wendy Crockett would share in the profits of the farming operation, which they had conducted together since 1990. In cross examination, Stuart Leckie explained that in November 2004, he hadn't considered their interest in what was happening in respect of the ownership of the land which was being farmed under this arrangement. When pressed, he accepted that they did have an interest in that question. 189 Undoubtedly, given all of the evidence, that was a proper concession. Had there been a timelier appreciation of that interest, much of the ensuing difficulty between these parties, including these proceedings, may well have been avoided, or at least reduced. 190 Stuart Leckie keeping all of the profits for himself, refusing to work in the farming operation and preventing the respondents' access to Iona and Westholme, was inconsistent with the arrangement continuing. It was however, consistent with a view which Stuart Leckie gave evidence in cross examination that he had formed after April 2004. That was when he received a proposal from Wendy Crockett's solicitors, as to a basis for a property settlement. He then came to the view that he wanted to acquire both Westholme and Iona from Wendy Crockett, in order that he could farm them both himself, rather than under this family arrangement. In early 2005, he proposed that he should acquire Wendy Crockett's interest in the property for $175,000. That proposal was rejected by Wendy Crockett, but is being pursued by Stuart Leckie in the property proceedings on foot between them. In these proceedings the evidence is that the two properties now have a value well in excess of $1 million. 191 It follows from all of these conclusions, that it is unnecessary to further consider what, if any notice, should have been given to Stuart Leckie, if it was Owen Crockett who had brought the arrangement to an end. Stuart Leckie himself felt free to demand an apology, without which he was simply not prepared to continue with the arrangement and thereupon acted to exclude Owen and Judy Crockett from continuing to farm Iona. Plainly, no questions of any notice arose in his mind, even though that exclusion cut across the basis upon which Iona was transferred to he and Wendy Crockett, in the first place. That approach was entirely consistent with his earlier exclusion of Wendy Crockett from her participation in the arrangement. It appears that no questions of notice arose in his mind at that time either. Had I concluded that the arrangement had been terminated by Owen Crocket, the evidence of this conduct would have had to be considered in determining what notice, if any, ought in fairness to have been given to Stuart Leckie. 192 In all of the circumstances, I can find no basis for the conclusion that the arrangement was unfair as claimed in relation to the question of notice. The stress and anxiety claim 193 While there is jurisdiction to grant an order of the kind here sought, I am well satisfied that the evidentiary basis necessary to be established as a foundation for the exercise of such a discretion, was not met. The only evidence relevant to the claim went to Stuart Leckie feeling unwell for several days after the claimed termination of the arrangement on 12 November. 194 The evidence was unchallenged, but it cannot provide a foundation for a claim such as this, as the discussion of the Full Court in King makes well clear. Orders 195 For the reasons given, I find that the applicant has not satisfied the onus which falls upon him to demonstrate that the arrangement here in question, was an unfair contract, in any of the ways claimed in the amended summons. The application must be dismissed. I order accordingly. 196 The usual order as to costs would be costs as agreed or assessed in favour of the respondents. In the absence of agreement, the parties have liberty to approach. ------------------------ 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.