Turnbull v Turnbull [2017] NSWSC 1316

Supreme Court New South Wales

Medium Neutral Citation: Turnbull v Turnbull [2017] NSWSC 1316 Hearing dates: 4, 5, 6, September 2017 Date of orders: 29 September 2017 Decision date: 29 September 2017 Jurisdiction: Equity Before: Emmett AJA Decision: 1. All of the claims for relief made in the Summons and Statement of Claim be dismissed. 2. Order the Plaintiffs to pay the Defendants' costs of those claims. 3. The Cross Claimant is to bring in short minutes of directions no later than 13 October 2017 for the further conduct of the proceedings insofar as issues of damages and costs remain to be resolved. Catchwords: REAL PROPERTY – licences – termination Legislation Cited: Water Management (General) Regulation 2011, Sch 5 Cases Cited: Clifford v Vegas Enterprises Pty Ltd (No 5) [2010] FCA 916 Watson v Foxman (1995) 49 NSWLR 315 Category: Principal judgment Parties: Roger Turnbull (First Plaintiff) Annette Turnbull (Second Plaintiff) Robeena June Turnbull (First Defendant) Grant Turnbull (Second Defendant) Representation: Counsel: B DeBuse (Plaintiffs) T Alexis SC, P Holmes (Defendants)

Solicitors: Dormer Stanhope (Plaintiffs) Cole & Butler (Defendants) File Number(s): 2017/00166514

Judgment

Introduction 1. The question in these proceedings is whether the first defendant, Robeena Turnbull, and her servants and agents, are estopped from denying that a licence granted to the plaintiffs, Roger Turnbull and his wife, Annette Turnbull, for each of them, their servants and agents to come and go and pass over part of a property situated near Moree known as "Yambin", is irrevocable for so long as Roger and Annette Turnbull, or either one of them, is the owner of two other properties situated near Moree known as "Wallam" and "Roydon". The dispute concerns various members of the Turnbull family and it will be convenient, without intending any disrespect, to refer to the relevant members of the Turnbull family by their first names. 2. Robeena and her late husband, Ian, who died on 27 March 2017, bought Yambin in 1962 and it has been the Turnbull family home since then. Robeena still lives in the homestead on Yambin. On 4 August 2015, Ian transferred his interest in Yambin to Robeena, who is now the sole owner of the property. Substantial machinery and a large farming enterprise are located on Yambin. At all relevant times, Ian and Robeena also owned a neighbouring property known as "North Yambin", to which brief reference will be made below. 3. Roger, as a commercial farmer, generally grows wheat, barley and chickpeas. Roger is the second son of Robeena and Ian and the second defendant, Grant Turnbull, is their third son. Both Roger and Grant are farmers. The other two sons of Ian and Robeena, Doug and Sam, are engineers and play no part in these proceedings. 4. In November 1993, Ian and Robeena, together with their four sons, became the owners in equal shares of Wallam. However, on 6 February 1998, Roger became the sole owner of Wallam after an agreement was entered into between him, on the one hand, and his parents and brothers, on the other. Roger and Annette lived on Wallam from 1993 until they moved to Toowoomba in 2003 for the education of their children. Roger farmed Wallam from 1998 until early 2005. From March 2005 to March 2010, Wallam was the subject of a lease from Roger to Pegela Pastoral Company Pty Ltd (Pegela), which has no connection with the Turnbull family. The house on Wallam was not the subject of the lease to Pegela. 5. In July 2005, Roger and Annette became co-owners of a property known as "Wilga Warrina". On the same day, they entered into possession under a lease of a neighbouring property known as "Ivanhoe". The lease was for a term of three years, expiring in July 2008 and contained a call option in respect of Ivanhoe. Wilga Warrina and Ivanhoe are located near the town of North Star, New South Wales, about 70 km by road from Wallam. 6. When Roger was needed on Wallam, Wilga Warrina or Ivanhoe, he would stay at the house on Wallam. While staying at Wallam, Roger would drive over to Ivanhoe and Wilga Warrina when needed. Farm machinery used on Ivanhoe and Wilga Warrina was stored in sheds on those properties. 7. In January 2008, Roger and Annette sold Wilga Warrina and their option over Ivanhoe to PrimeAg Australia Limited (PrimeAg) after they received what they regarded as an excellent offer from PrimeAg to purchase those properties. Roger and Annette decided to accept PrimeAg's offer because they wanted to focus on farming Wallam and the area around it when the lease over Wallam expired. 8. Wallam is situated on the northern side of the Croppa Moree Road. North Yambin is also situated on the northern side of the Croppa Moree Road, adjacent to Wallam. Yambin is situated on the southern side of the Croppa Moree Road. Roydon is situated to the south of Yambin and is separated from Yambin by Marshalls Ponds Creek. Marshalls Ponds Creek and its banks are Crown land, such that there is no common boundary between Yambin and Roydon. A plan showing the location of Wallam, Yambin and Roydon is set out in appendix 1 to these reasons and an aerial photograph showing Yambin is set out in appendix 2 to these reasons. 9. Until the beginning of 2011, a give and take arrangement was in place between Yambin and Roydon and a give and take fence was erected as shown in red on appendix 2. The fence crossed Yambin west to east from the western boundary of the southern part of Yambin to the eastern boundary of the southern part of Yambin. It crossed Roydon in generally the same line from the western boundary of the northern part of Roydon to the eastern boundary of the northern part of Roydon. Up until the end of 2010, the part of Yambin south of the fence was covered in scrub and trees and was not cultivated for grain, as was the balance of Yambin. That part of Yambin was used for grazing by the occupiers of Roydon. 10. Public road access to Roydon is by means of Roydon Road, to the south west of Roydon. Roydon Road runs into River Road, which, in turn, runs into the Newell Highway. The Croppa Moree Road intersects with the Newell Highway to the west of Wallam. Public road access between Wallam and Roydon involves travelling some 37 kilometres. 11. In June 2008, Roger and Annette were the successful bidders at an auction for the sale of Roydon for a purchase price of $3.9 million. They completed the purchase of Roydon on 27 August 2008. At the time of the purchase, Roydon was subject to a lease to Peter and Katrina Maughn (the Maughns) for a term expiring on 31 December 2010. 12. Roger and Annette resumed possession of Wallam when the lease to Pegela expired in March 2010. They entered into possession of Roydon when the lease to the Maughns expired at the end of 2010. From 2008 to 2010, Roger engaged in occasional contract harvesting, including for Ian and Robeena. 13. Following Roger's resumption of possession of Wallam, Roger and Annette stored their farm machinery in sheds on Wallam. It is not entirely clear where the machinery was stored between January 2008, when Roger and Annette sold Wilga Warrina and the option over Ivanhoe, and March 2010, when the lease to Pegela expired. It does not appear to matter. 14. From the beginning of 2011, following the expiration of the lease to the Maughns, Roger and Annette began farming on Roydon as well as on Wallam. Roger and Annette used the machinery stored on Wallam for the purposes of the farming operations carried on by them on Roydon. During the period from the beginning of 2011 to the end of 2016, the machinery used on Roydon was transported from Wallam to Roydon over Yambin. During the harvests of the years 2011 to 2016, road trains used the same route to take grain harvested on Roydon to silos situated on Wallam. The route taken followed the western boundary of Yambin to approximately the point at which the give and take fence joined the western boundary of Yambin. The route then followed a ridge in an approximately south easterly direction across Yambin to the southern boundary of Yambin. It then passed through the Crown land over Marshalls Ponds Creek and across the northern boundary of Roydon. The route is shown by yellow marking on appendix 2.