VINCENT CASH v DENIS PATRICK CASH [2024] SASC 47

Applicant: VINCENT CASH Counsel: MR D RIGGALL - Solicitor: ADELTA LEGAL First Respondent: DENIS PATRICK CASH Counsel: DR V GILLILAND - Solicitor: O'LOUGHLINS LAWYERS Second Respondent: OAKFRONT PASTORAL COMPANY PTY LTD Counsel: MR T DUGGAN KC - Solicitor: COWELL CLARKE Hearing Date/s: 04/09/2023 to 12/09/2023, 20/11/2023 to 21/11/2023 File No/s: SCCIV-18-548 B SUPREME COURT OF SOUTH AUSTRALIA (Civil) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment 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 in which it was generated. CASH v CASH & ANOR [2024] SASC 47 Judgment of the Honourable Auxiliary Justice Bochner 4 April 2024 ESTOPPEL - ESTOPPEL BY CONDUCT - ACT, OMISSION OR ASSUMPTION - ACQUIESCENCE, ENCOURAGEMENT OR SILENCE ESTOPPEL - ESTOPPEL BY CONDUCT - PROPRIETARY ESTOPPEL EQUITY - TRUSTS AND TRUSTEES - IMPLIED TRUSTS - CONSTRUCTIVE TRUSTS - OTHER PARTICULAR CASES Claim by the Applicant for an equitable interest in farming land controlled by the Respondents – Whether the Respondents represented that the Applicant would have a proprietary interest in the farm if he returned to work there – Whether the oral representations were subsequently reinforced by the Respondents – Whether the crux of the representations was repeated – Whether the Respondents passed responsibility for the farm to the Applicant – Whether the Applicant changed his position to his detriment in reliance on the representations – Whether the Applicant suffered detriment notwithstanding benefits provided to him by the Respondents – Whether enforcement of the promise that the Applicant would have a proprietary interest in the farm would be disproportionate to the detriment suffered by him. Held: The Respondents (through the First Respondent) represented that the Applicant would eventually “take over” the farm if he returned – The Respondents’ conduct reinforced the representations – The Applicant gave up employment, study, financial, investment, and social opportunities – The Applicant acted in reliance on the representations made by the Respondents, rather than on a mere hope that he would take over the farm – Any benefit provided by the Respondents did not disentitle the Applicant to relief – The Applicant has established all elements of a proprietary estoppel by encouragement – The only relief proportionate to the detriment would be enforcement of the promise of a proprietary interest. The parties are to be heard further as to the precise nature of the remedy. -- 1 of 137 -- Public Trustee Act 1995 (SA); Trustee Act 1936 (SA), referred to. Macquarie Developments Pty Ltd & Anor v Forrester & Anor [2005] NSWSC 674; Carter v Brine [2015] SASC 204; Sidhu v Van Dyke [2014] HCA 19; Kramer v Stone [2023] NSWCA 270; The Commonwealth v Verwayen (1990) 170 CLR 394; Delaforce v Simpson-Cook [2010] NSWCA 84; Rodda & Anor v Ian Rodda Pty Ltd & Anor [2015] SASC 95; E Co v Q [2018] NSWSC 442; Q v E Co [2020] NSWCA 220, considered. -- 2 of 137 -- CASH v CASH & ANOR [2024] SASC 47 Contents Vincent’s claim ..................................................................................................... 6 The witnesses ...................................................................................................... 11 The legal framework.......................................................................................... 21 Specific findings of fact ..................................................................................... 25 The July 2003 telephone call .......................................................................... 25 The visit to Red Hill ......................................................................................... 27 The Daw Park conversation ............................................................................ 29 Were Denis and Mary in Adelaide together at the relevant time?................ 29 Did a conversation such as that alleged by Vincent occur at Daw Park on the Sunday morning, and if so, what was its content? ........................................ 34 Finding in relation to the Daw Park conversation ....................................... 45 The work carried out on the Greenhouse by Vincent .................................... 45 Julie .................................................................................................................. 47 Vincent’s farm work ........................................................................................ 49 Meetings with professional advisors and succession planning activities ...... 52 Meeting of 13 July 2004 .................................................................................. 52 Meeting of March/April 2006 ......................................................................... 56 The 2008 meeting ............................................................................................ 60 2010 Business Review with Bart Dessart ........................................................ 66 Meeting in August 2011 .................................................................................. 67 September 2012 - Family letter ....................................................................... 68 Meeting of 17 December 2012 ........................................................................ 74 Meeting on 21 March 2014 ............................................................................. 74 Meeting on 7 April 2014 .................................................................................. 77 June 2014 ......................................................................................................... 79 Meeting 20 August 2014 .................................................................................. 80 Meeting of 17 December 2014 ........................................................................ 80 Meeting at a shed on the farm, possibly in late 2014 ..................................... 84 Meeting January 2015 with Andy Bates ......................................................... 87 Meeting at Wudinna Telecentre on 24 February 2015 .................................. 88 Telephone discussion on 25 February 2015 and meeting on 2 March 2015 with Greg Nicholls of Nicholls Gervasi .................................................................. 91 -- 3 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 2 Letter from Vincent to his siblings dated 12 March 2015 .............................. 92 Letter from Tony Hull of Clarke Pomeroy Hull dated 2 April 2015. ............ 95 Letter from Brad Giles of Complete Business & Accounting Services dated 4 December 2015 ................................................................................................ 95 Meeting on 9 February 2016 ........................................................................... 97 Vincent’s account of the meeting .................................................................. 97 Thomas’ account of the meeting ................................................................... 99 Denis’ account of the meeting..................................................................... 100 Mr Giles’ account of the meeting ................................................................ 101 Findings in relation to the 9 February 2016 meeting ................................. 103 The letter from Mr Orfanos .......................................................................... 104 Mary’s letter of 14 March 2023 .................................................................... 108 The expert reports .......................................................................................... 109 Findings with respect to the farm and its profitability ................................. 111 Findings on the question of liability ............................................................. 113 Did Denis made a representation to Vincent that he would have a proprietary interest in Oakfront, being property owned or controlled wholly or partly by Denis, if he returned to work on the farm? ................................................. 113 Did Vincent form an assumption that he has or will have a proprietary interest in Oakfront? ................................................................................................ 119 Did Denis’ conduct in making the representation cause or materially contribute to the formation of that assumption by Vincent? ....................... 119 Did Vincent change his position in reliance on that assumption?.............. 120 Would Vincent suffer detriment if Denis were permitted to depart from the assumption? ................................................................................................ 122 Would it be unjust or unconscionable for Denis to depart from the assumption? ................................................................................................ 123 Remedies ........................................................................................................... 124 Vincent’s submissions ................................................................................... 124 The company’s submissions .......................................................................... 124 Denis’ submissions ........................................................................................ 127 Consideration ................................................................................................... 128 The principles ................................................................................................ 130 -- 4 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 3 CIVIL 1 The applicant, Vincent Cash, claims an equitable interest in farming land which is controlled by his father, Denis Cash. In order to understand the factual basis of Vincent’s claim, it is necessary to outline the history of the farm known as Oakfront. I will refer to the majority of the people involved in this action by their first names as most of them share the surname, Cash. I mean no disrespect by this. 2 Oakfront is situated between Streaky Bay and Port Kenny on the Eyre Peninsula in South Australia. It comprises approximately 17,500 acres, of which approximately 6,000 are arable and the remainder are suitable for grazing. Situated on the farm is a geological formation known as Murphy’s Haystacks. Murphy’s Haystacks are a tourist attraction and have heritage recognition. They generate substantial income for the farm, through gold coin donations from visitors. 3 Oakfront has been in the family of the first respondent, Denis Cash, since about 1888, when his grandfather, Denis Murphy, commenced farming there. It appears that Denis Murphy left Oakfront to his son, Pat Murphy, who was Denis Cash’s uncle. Meanwhile, Denis Cash, who was born in 1941, grew up on his father’s farm which was about four miles away. 4 In 1959, when he was 18 years old, Denis commenced working on Oakfront to help his uncle, because Pat Murphy and his wife Mary Murphy did not have any children of their own. Denis has lived and worked on Oakfront ever since. 5 Initially, Denis worked for Pat Murphy for no wages. There was another worker on the farm at this time, who did receive wages. 6 In about 1966, Pat Murphy transferred to Denis and his brother, John, part of the Oakfront land known as Witera. Witera was on the eastern side of the highway, with the Oakfront land extending to the western side of the highway as well. The home block, where Denis was living at that time, was on the western side of the highway. He worked the land on both sides of the highway. At this time, John was working on their father’s farm and not on Oakfront. 7 In 1967, Denis married Mary. In 1968, he applied for a wheat quota and received a quota of about one tonne. Any extra wheat that he grew, he gave to Pat Murphy. At some point, he was given about 300 sheep by Pat Murphy. 8 In 1972, Mary Murphy died. At this time, John came to work on Oakfront with Denis and Pat Murphy transferred to Denis and John the home block, as a result of which they owned the land on both the eastern and western sides of the highway as tenants in common. During this time, Denis and John did not receive any wages, although they drew from the farm’s accrued savings when necessary. -- 5 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 4 9 When asked about the transfer of land from Pat Murphy to Denis and John, Denis’ evidence was that he: …had no reason to assume that he would transfer the land to me or John.1 10 He said, however, that he was “pleased, not surprised” when the land was transferred to him.2 He subsequently agreed that it was a fair and just thing for Pat Murphy to have done, given that he had worked on the farm for no wages for thirteen years by the time of the transfer.3 11 Pat Murphy died in 1976. 12 In 1980, John and Denis bought an adjoining property called Maryvale. To purchase the property, they mortgaged both Maryvale and Oakfront, the latter of which was, until this time, unencumbered. The Maryvale and Oakfront bank accounts were kept separate, although Maryvale appeared to benefit more from this arrangement than Oakfront, to the extent that more was paid off the mortgage over Maryvale than that over Oakfront. 13 John and Denis had a falling out and, according to Denis, John refused to discuss the accounts. They ended their joint farming operation, with John taking Maryvale and Denis taking Oakfront, but at this point the mortgage over Maryvale had been discharged, while the mortgage over Oakfront, which had been used to purchase Maryvale, remained. Denis said that, at this time, he was broke but was able to retain Oakfront with the assistance of a bank manager in Port Lincoln. He felt that the division of property with John was far from fair, as Maryvale was twice the size of Oakfront, whereas they had both contributed equally prior to the split. Denis believed that there was injustice in the way that he was treated by John, as he was left with all the debt while John retained the larger property. 14 Denis and Mary have nine adult children. Other than Vincent, only two, Michael and Thomas, are directly relevant to the dispute which is the subject of this action. Mary was born in 1947. She worked as a care worker in 2007 and 2008; otherwise, she has worked on the farm, since her marriage to Denis. 15 Vincent is the fourth eldest child of Denis and Mary and was born in 1978. Michael was born in 1974 and is an engineer, living in the United States. Thomas was born in 1985 and is a farmer. Vincent and his brothers were educated at Sacred Heart College in Adelaide where they attended as boarders. His sisters were educated at Loreto College where they also boarded. 16 The Oakfront Pastoral Co Pty Ltd (“the company”) was established on 4 April 1996. On 26 April 1996, the company became the trustee of the Oakfront Property Trust (“the trust”). The trust deed of the trust originally defined 1 T495.14-15. 2 T495.18. 3 T500.21-31. -- 6 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 5 the “Trust Fund Beneficiaries” of the trust as the children, grandchildren and remoter issue of Denis and Mary, and the “Secondary Beneficiaries” as including the children, grandchildren and remoter issue of Denis and Mary. The trust owns the Oakfront property and the farming operation. Until 2017, Denis and Mary were not beneficiaries of the trust. On 29 June 2017, the trust deed was varied so as to add them as income beneficiaries of the trust. 17 There is currently one issued share of the company. Initially, this was owned by Trevor Morgan; it was transferred to Michael on 17 September 1997. At the time of the transfer of the share to him, Michael signed a declaration of trust, acknowledging that he held the share on trust for Denis (incorrectly designated “Dennis” in the declaration of trust). On 4 May 2010 Michael transferred the share to Denis who is now the sole shareholder of the company. 18 Trevor Morgan was the sole director of the company from the time of its establishment until 17 September 1997. Denis has been a director since 17 September 1997. Vincent was a director from 16 September 2010 to 10 February 2016. Thomas was a director from 1 March 2015 to 10 February 2016. On 11 August 2017, Thomas, Michael and Mary were appointed directors. At the time of trial, Denis, Mary, Thomas and Michael were the directors of the company. 19 It was Denis’ evidence that his brother John set up the Oakfront Property Trust. He said that he, himself, did not fully understand how it operated.4 Indeed, it appeared that, even as he was giving his evidence, he did not appreciate that he was not a capital beneficiary of the trust,5 nor could he explain why the trust deed was amended to include Mary and him as income beneficiaries in 2017.6 20 Over the years, Denis and Mary have made a number of wills. In 2000, they made wills in identical terms, in which they left their estate to each other, and the survivor of them left their estate in equal shares to their children. In 2018, they made new wills. By his 2018 will, Denis leaves his share in the company to Mary, and if she predeceases him, to Michael. He leaves the residue of his estate to Mary, and if she predeceases him, to all of his children in equal shares. Mary, by her 2018 will, leaves the share in the company if she owns it at the time of her death, to Michael. She leaves the residue of her estate to Denis, and if he predeceases her, to all of her children in equal shares. 21 At various times, share farmers have been involved with the farm. In addition, during the millennium drought from the late 1990’s to about 2009, Denis ran a fencing business to supplement the farm’s income. 22 During the late 1990’s and early 2000’s, various of Denis’ and Mary’s sons worked on the farm. Michael worked on the farm in 1999, during which time he set up the fencing business, however the farm had a bad year, and he returned to 4 T499.32-35, T501.9-10. 5 T503.28. 6 T503.34-38. -- 7 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 6 work in the mining engineering industry. He returned to the farm in 2002, but again did not stay. His evidence was that his intention was to stay on the farm, but his parents would not allow him to live on the farm with his then girlfriend, Kathy (now wife) while they were unmarried. He moved to the United States shortly afterwards and has lived there ever since. He and Kathy married in 2004. 23 Mary’s evidence was that Michael left the farm in 1999 because of the drought.7 She said that, while Michael was on the farm, he did most of the hard work as he was young, with Denis’ assistance.8 24 Gerald worked on the farm on and off in 2000 and 2001 and for most of 2002. He moved permanently to Adelaide in 2003. 25 In 2003, Thomas, who had just finished school, returned to the farm to do a farm-based traineeship through TAFE. He met his future wife, Jodie, in Port Lincoln in early 2003. His evidence was that he moved to Port Lincoln in February 2004 to become a mechanic.9 He subsequently commenced working in the tuna fishing industry, where he remained for the next ten years. 26 In 2002 and 2003, Vincent returned to the farm to assist with shearing, seeding and fencing. At this time, he was working in Adelaide at Bone Timber as a wood machinist, having completed an apprenticeship in 1998. He also studied graphic design part time between 2000 and 2003. 27 Vincent met his now wife, Julie, in 1998. By 2003, they were talking about buying a house together and starting a family. Julie is an enrolled nurse, and in 2003, she was working at Shine, involved in the distribution of medical supplies to clinics in South Australia. Vincent’s claim 28 Vincent says that he always enjoyed living and working on the farm, and as a child and teenager, assisted his parents as required, as did his siblings. Until 2003, however, he pursued a career away from the farm, because other siblings were already working on the farm and he considered that one of them was more likely to take it over. 29 In 2002 and 2003, Vincent returned for several weeks to assist with shearing and other farming activities. Julie came with him, both at Easter time in 2003 and again in August 2003 for the shearing, when she helped Mary clean and prepare quarters for the shearers. 30 Vincent says that by 2003, the farm was becoming run down and seemed to be becoming too much for Denis to manage on his own. He mentioned to Denis 7 T754.31-32. 8 T755.13-24. 9 T418.8-15. -- 8 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 7 that things seemed to be getting pretty hard, and Denis replied that he was getting too old to do the work on his own. 31 Vincent says that, in July 2003, Denis telephoned him, and said words to the effect of: The workload is getting beyond me. I am concerned about the future of the Farm. Michael and Gerald have moved on and Thomas has left. Someone is going to have to take over the Farm if the Farm is to keep going. There is an opportunity available if you want it.10 32 Vincent told Denis that he was interested and wanted to think about it. He then had a discussion with Julie about a future on the farm. Julie said she would be interested in talking about it. 33 Shearing occurred between 4 August 2003 and 10 August 2003. After Julie and Vincent had returned to Adelaide on its completion, Denis telephoned Vincent and asked him to meet him at Redhill, about two hours north of Adelaide, on 6 September 2003 with Paul Oster, a breeder of merino sheep. Before meeting with Paul Oster, Vincent, Julie, Denis and Mary had lunch and discussed Vincent’s return to the farm. During this conversation, Julie told them that she would be interested in moving to the farm. They then went to Paul Oster’s farm to talk to Mr Oster about changing their merino bloodline to allow them to produce finer wool. 34 It was the evidence of both Vincent and Julie that, after the meeting with Mr Oster, Denis and Mary returned with them to Adelaide. Denis and Mary stayed at Vincent’s house in Daw Park that night; after Denis returned to the farm on 7 September 2003, Mary stayed a few extra days as she was flying to the United States to attend Michael’s wedding. 35 At breakfast on 7 September 2003, before Denis’ departure, Vincent and Julie said that a further conversation took place with him about the possibility of their moving to the farm. It was Vincent’s evidence that, while Mary was present, she did not contribute to the conversation, which was driven by Denis. 36 It was Vincent’s evidence, corroborated by Julie, that, during the conversation, Denis made the following representations to them: • The farm had great prospects, with plenty to do and income potential; • Streaky Bay was a wonderful place with a great lifestyle; • Murphy’s Haystacks had a lot of potential for development as a tourist attraction and was soon to be featured on “Postcards with Keith Conlon” on Channel Nine; 10 A1, [61]. -- 9 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 8 • If Vincent came back to the farm, he would have a major say in the farm operations and would eventually take it over; • He was getting too old to continue to work the farm on his own, it was getting run down and if no one came home, it would have to be sold. 37 Vincent and Julie both said that Denis told Julie that the farm was a great environment to raise children and asked her how old she was. When she told him that she was 32, he told her that his own mother was 32 when she had her first of eight children. They also said that Julie asked Denis which of his children he expected was most likely to return to the farm, and he replied, “Vincent”. 38 I will refer to these representations collectively as “the representations”. 39 Over the next few weeks, Vincent and Julie discussed the possibility of moving to the farm. Julie was initially cautious as she had grown up in the city and was aware that country life would be very different for both her and Vincent, as well as for any children they might have. Further, she was settled in her employment and earning a good income. She agreed, however, to try it for a year. Her employer, Shine, agreed to give her a year’s leave without pay. She began applying for positions in Streaky Bay. 40 In about November 2003, Vincent told Denis that he and Julie were moving to the farm in early 2004. Vincent gave notice at Bone Timber. He then had a telephone conversation with Denis about security for himself and Julie. He said that Denis’ response was that they would sort it out when Vincent returned. 41 Denis and Mary proposed that Vincent and Julie live with them in the main house to start with. On the property, there was another house, referred to as the Greenhouse, which was historically used as shearers’ quarters. Denis and Mary suggested Vincent and Julie could renovate the Greenhouse for their use. 42 Vincent moved to the farm in March 2004 and Julie joined him in May 2004. They lived with Denis and Mary in the main house until the Greenhouse was ready for them to move into. Julie began working as a community health nurse one day per week and also worked as a carer. 43 When Vincent returned to the farm in 2004, it was under considerable stress. The farm had been in drought for a number of years, and the drought continued to have a significant impact on its profitability. Fencing had become rundown, and the farm machinery was old and needed repairs and maintenance. In addition, there were fencing contracts booked that needed to be fulfilled. Vincent worked between 50 and 60 hours each week. He did not receive wages but was provided with food and accommodation in the main house. He was not concerned about not receiving wages as his understanding was that he would ultimately take over the farm. If he required cash when he went to Adelaide or Streaky Bay, Mary would give him some. -- 10 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 9 44 During 2004, a number of paddocks were leased to another farmer through a share-farming arrangement. Denis and Vincent continued to run sheep on the farm and also cropped part of the land for stock feed. The main income for the farm at that time was through share-farming and the fencing business. Decisions were made jointly by Denis and Vincent. 45 During 2004, the farm changed the bloodlines of the sheep to introduce a fine wool bloodline. This was done following the visit to Redhill in 2003 and with the assistance of Mr Oster. 46 Share-farming continued in 2005. The only cropping carried out by Denis and Vincent was for stock feed because of the poor returns as a result of the drought. During 2005, Vincent worked on increasing the arable land on the farm, removing stumps and rocks and improving the soil. 47 During 2005, Vincent started doing the bookkeeping for the company, using MYOB. He prepared annual cash flow reports and budgets and prepared its business activity statements. The company was overdrawn on its overdraft and Vincent and Denis worked with the bank to refinance. 48 Vincent and Denis continued the fencing business in 2005 and 2006 as the returns from the farming operation were poor because of the drought. Vincent did the majority of the physical work with Denis’ assistance. In 2006, they had a change of share-farmer. 49 During this period, Vincent worked without wages and Julie’s salary provided for their financial needs. Vincent received a “drought force payment” through Centrelink; as it was means-tested, it varied according to Julie’s income. The Centrelink payment was used to top up their living expenses and for farm expenses. 50 Julie and Vincent married in 2008. 51 The drought continued through 2008 and the farm largely survived on government payments. On 31 March 2009, Denis and Vincent were advised by their share-farmer that he was no longer able to continue share-farming as he had been made bankrupt. Because of the late notice, only about half of the land was cropped that year; Denis and Vincent did not have time to organise another share-farmer or to put in their own crop. 2009 was a better growing season and Vincent proposed to Denis that they recommence cropping more of the land themselves. Denis was not receptive to this suggestion. 52 In 2010, the situation on the farm continued to improve and again, Vincent suggested that they should be cropping more of the land. Denis disagreed and they leased the cropping to two tenants. 53 In early 2013, Thomas began visiting the farm on a regular basis. At times, he would carry out farm work and leave his two children with Julie, who was -- 11 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 10 looking after her and Vincent’s two small children while pregnant with their third child. Eventually, Vincent raised with his parents the extra burden that Thomas’ visits placed on Julie, and the visits of Thomas’ children ceased. 54 From that time, Vincent began to feel that he was being marginalised by Thomas and Denis. He gave an example of an incident where he discussed with Denis and Thomas his intention of tidying up stumps and stones with a wheel loader that had recently been purchased. When he went to the main house the next morning at 7.30am, he found that Denis and Thomas had already left, and in fact were already in the paddock with Thomas operating the loader. When Vincent took over the operation of the loader, Denis and Thomas left in Vincent’s vehicle, leaving him without transport. 55 By the middle of 2013, relations between Denis and Vincent had deteriorated as they argued about borrowing money and the future direction of the farm. Vincent’s own financial situation had also deteriorated as Julie was currently not working as she had recently given birth to their third child. Without her income, they were not able to afford things like their phone and internet expenses. They then began to hear rumours about Thomas’ intention to return to work full time on the farm, although nothing was said to them by either Thomas or Denis. 56 In late 2013, Thomas resigned from his employment in the tuna industry. He returned to Oakfront in 2014, working part time during the week. His family was still living in Port Lincoln, and they began inspecting rental properties in Streaky Bay to be closer to the farm. 57 Vincent became concerned that the farm would not be able to support another family and he raised this with Denis. Vincent said that Denis replied: Thomas is to come home. I can’t do the work on my own. You left me to finish off seeding the previous year, while you went off to Port Lincoln to have your kid.11 58 Vincent felt aggrieved by this remark. He had gone to Port Lincoln for the birth of his child who was delivered by emergency caesarean section and he was upset at Denis’ criticism of this. 59 By April 2014, Thomas was working full time on the farm. Relations between Vincent and Thomas, and Vincent and Denis continued to deteriorate, and there was an argument about the need for Thomas to obtain off-farm work, with Thomas and Denis suggesting that it should be Vincent who obtained off-farm work. 60 Between April 2014 and February 2016, Vincent’s relationships with both Thomas and his parents continued to deteriorate. Vincent felt that he was being further marginalised by his father and brother. Matters came to a head on 9 February 2016, when Denis announced that the farm was to cease trading immediately, and that Thomas and Vincent were to resign as directors of the 11 A1, [264]. -- 12 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 11 company and find employment elsewhere. Denis told Vincent that his expectation that he would take over the farm was unacceptable. Vincent ceased working on the farm at that time. Thomas continued to work on the farm. 61 Vincent remained living at the Greenhouse. Julie had been living in rented accommodation in Streaky Bay with the children since 2015 because relations with her parents- and brother-in-law were so difficult. There were a number of altercations between Vincent and Thomas about the use of farm equipment. 62 In June 2020, Thomas commenced employment off the farm. At Denis’ request, Vincent returned to work on the farm and by August 2020, he was working 50 to 60 hours per week, with little involvement from Denis. He worked, again, for no wages. 63 Vincent continued working on the farm during 2021 and 2022. Denis had little involvement and spent most of his time at Murphy’s Haystacks or at home. Most of Vincent’s communications with Denis were through Mary. In early 2022, Julie reduced her hours working as a nurse to work on the farm. The relationship between Vincent and Denis remained fractured and their inability to communicate appeared to cause problems with the management of the farm. 64 On 7 February 2023, Vincent received a letter from the company, advising him that the farm would cease operating and the stock would be sold off. Vincent ceased working on the farm. 65 Vincent and Julie remain living at the Greenhouse, with Julie working as a nurse at the Streaky Bay hospital and Vincent undertaking contract work as it is available. These are the circumstances that have led to the action in this Court. I will deal in more detail with various events that occurred over the years as required. The witnesses 66 Vincent gave evidence and also called Julie, Paul Oster and Luke Harris, an accountant who gave expert evidence. The respondents called Denis, Mary, Thomas, Michael, Scott Young, an accountant and Bradley Giles, also an accountant. 67 At the commencement of the trial, Denis was in hospital, having required an emergency medical procedure. While the opportunity to delay the trial was offered, he wished to have the matter proceed as listed. As a result, the trial commenced in his absence. I note that Mary was present in the courtroom throughout all of the evidence, without objection. 68 Both Vincent and Denis gave their evidence over a number of days and were subjected to rigorous cross-examination. Overall, I was satisfied that Vincent was a truthful witness. He gave his evidence in a straightforward manner and made concessions where appropriate, particularly in relation to the various family meetings and discussions which were held over the years. He did not appear to -- 13 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 12 exaggerate his claims or the promises that he said were made to him, and in respect of a number of significant events, his evidence was supported by independent, documentary evidence. 69 Mr Duggan KC, who appeared on behalf of the second respondent, urged me to find that Vincent’s evidence evolved to meet the problems faced by his case. He suggested that the language used by Vincent changed according to his understanding of the hurdles that he faced in this action and that his evidence should be treated with caution as he has thought about the matter over many years and discussed it at length with Julie. Examples of this are: • Whether Denis talked about taking over or taking on the farm; and • The difference between being a farm manager, a farm worker and a farm owner. 70 I do not accept the criticisms made by Mr Duggan of Vincent’s evidence. Vincent presented as a fairly unsophisticated person who did not spend his days musing over the semantics of “taking on” or “taking over” the farm. To him, they were the same, and he used the words interchangeably. In cross-examination, Mr Duggan suggested to Vincent that his siblings would have “scoffed” at the idea that Denis had promised the farm to Vincent after his death.12 Vincent rejected that suggestion. Vincent described his father as saying both “take on” and “take over” the farm. While Mr Duggan sought to make much of the difference in wording, I consider that Vincent used the words interchangeably and no distinction can be made between their meaning. In practical terms, to him they meant the same thing. 71 The same can be said of the difference between farm manager, worker and owner. I have no doubt that, until the relationship between Vincent and Denis broke down, Vincent did not think of his role on the farm in these terms. For many years, he was both the farm manager (perhaps jointly with Denis) and the farm worker and he did not engage in an existential analysis of his role. 72 I also consider that Julie was a reliable witness who answered truthfully. Other than with respect to the key discussions in 2003, however, she had less direct involvement with Denis and the management of the farm, and so her evidence was of less assistance than Vincent’s. I also have no doubt that her evidence was coloured somewhat by the fact that she felt that Vincent had been treated unfairly by his father, and that she and Vincent had lived in financial hardship for many years with little to show for it save for this action. 73 Julie was clearly anxious when she was giving her evidence. She struck me as an unsophisticated person who was never going to win the game of semantic cat and mouse that Mr Duggan set for her. I find that she did her best to answer truthfully. 12 T121.29-34. -- 14 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 13 74 I note that criticism was made of Julie’s evidence by Mr Duggan, in that her statement was, in some respects, identical in its wording to Vincent’s. Mr Duggan urged me to reject Julie’s evidence and sought to impugn Vincent’s evidence on the basis of these similarities. It became clear that Vincent and Julie had jointly prepared a chronology, which formed the basis of their witness statements. Mr Duggan urged me to find that Julie’s statement had been prepared for her on the basis of this chronology, and that “Vincent prepared for his solicitors evidence to be given by Julie placing her at key meetings and putting words into her mouth consistent with key aspects of his case.”13 75 Mr Duggan further urged me to find that Julie was a poor witness who appeared to rely on her statement rather than on her memory when giving her evidence. 76 I reject these criticisms. While I accept that the possibility of collusion is raised by the similarity in their statements and the fact that they prepared a chronology together, I do not consider that this negates the truthfulness of their evidence. They are husband and wife who have lived together since 2004 and who have borne the ups and downs of life on the farm together since that time. It would be more unusual if they had not discussed at length the situation that they were in, how they ended up in it, and how they might move forward. 77 Mr Duggan referred me to the case of Macquarie Developments Pty Ltd & Anor v Forrester & Anor14 when making his submissions on the question of collusion between Vincent and Julie. In that case, Palmer J said: The fact that Messrs McGraw and Neskovski colluded in the preparation of what was obviously the decisive evidence in their case casts a cloud over their credibility as a whole and over their evidence as to the discussion in particular.15 78 I consider that, factually, this matter is so different that it can be distinguished. The witnesses in Macquarie Developments were business associates and the evidence related to two conversations relating to one discrete transaction, occurring four years before the trial at which they gave evidence. 79 In this matter, Vincent and Julie have given evidence about events that occurred twenty years previously, and which led them to make a radical change to their way of life. It is not surprising that they have discussed those events many times over the years and that each time they have discussed them they have used a similar pattern of words. If any criticism is to be made, it should be made of their lawyers for not taking their statements in a more rigorous manner, rather than of them for discussing matters that would clearly be of paramount importance to any married couple. 13 Second respondent’s outline of submissions (FDN 88), [10.1.15]. 14 [2005] NSWSC 674. 15 Ibid, [65]. -- 15 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 14 80 Denis was not an impressive witness. His memory was poor, particularly when it came to matters that did not suit his case. The impression that he gave me was of a man who expected to be obeyed and who resented being questioned about his actions and motivations. At times, I consider that he deliberately misunderstood questions so that he could provide the answer that he wanted to give, or avoid answering the question that was asked. An example of this is the following exchange: Q. I'm suggesting that the politics of the Cash family towards the end of 215 had become highly polarised. It had developed into, effectively, two camps with you and Thomas effectively in one camp, and Vincent in the other. A. Why would you say that? Q. Well I'm just asking you whether you agree. A. I don't agree. Q. And things had become tense on the farm. A. Tense. Yes, very tense. Q. So much so that Julie Cash had left the farm. A. Did she? Q. And taken rental accommodation in Streaky Bay. A. Well, yes. Q. And that happened, I suggest, in mid-2015. A. Whatever, yes. Q. Did that concern you at all. A. Not really. Why should it? It was her call. Q. So you weren't disturbed that your daughter-in-law had found life on the farm so - A. I beg your pardon? Q. You weren't concerned that your daughter-in-law and three of your grandchildren, had to move off the farm owing to tensions on the farm. A. Was it because of tensions on the farm?16 81 This was the tenor of much of his evidence: argumentative and non-responsive. 16 T615.13-37. -- 16 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 15 82 Generally, I prefer the evidence of Vincent to that of Denis where they are in conflict, unless there is independent corroboration of Denis’ account. I formed the view that Denis was prepared to say whatever was necessary to win his case; he gave the impression of a man who is not used to being told he was wrong, and of one who was not prepared to give any ground even where it was warranted. The best that can be said of his evidence is that his poor memory made it unreliable; the worst that can be said of it is that it was obstructive, argumentative and often untruthful. 83 I did not consider that Mary was a good witness. She seemed to be defeated by the conflict between her husband and her sons. The impression that she gave was of someone who was reluctant to contradict her husband and so sought to minimise her involvement in any of the discussions that had taken place over the years. At times, her evidence was contradictory; at others, it was simply unbelievable. 84 I formed the view that whenever Mary was asked a question that she did not wish to answer, she simply said that she did not remember. For example, she said that she did not know if she was on the full pension, nor for how long she had been on the pension: Q. Now you're currently on the full age-pension aren't you. A. I'm not sure. I don't know that it is the full age. Q. How long have you been on the pension. A. I'm not sure. Q. 2011 sound right. A. I don't know.17 85 While it can be accepted that Mary may not remember when exactly when she commenced receiving the pension, or the actual dollar amount that she receives each fortnight, it is simply not believable that she does not know whether she receives the full pension or not. 86 Her evidence in relation to a meeting with Phil Stevens, the farm’s accountant in July 2004 is also contradictory and implausible. Her evidence, at first, was that she knew that Vincent and Denis went to see Mr Stevens.18 At the time that this question was asked, Mary was not being questioned about this meeting; rather, the questions were dealing with her knowledge of a conversation between Vincent and Denis about some sort of security on his return to the farm. Mary volunteered the fact that she was aware that there had been a meeting with Mr Stevens, but 17 T766.10-16. 18 T768.37-38. -- 17 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 16 otherwise knew “very little” about it.19 She was then asked specifically about the meeting: Q. Do you remember Denis and Vincent travelling to see Mr Stevens in July 2004. A. I don't actually remember. It's a long time ago. But yes, maybe. HER HONOUR Q. Sorry, can I clarify that answer, Mrs Cash. I think you said you don't actually remember it but yes. Does that mean you recall that the meeting occurred, or you don't recall that that meeting occurred. A. Well I wasn't there. Q. No, but do you remember that they went to meet with Mr Stevens. A. I can't actually remember.20 87 This latter evidence appears to be inherently inconsistent with her first statement that she was aware that Vincent and Denis met with Mr Stevens in July 2004. 88 Mary’s unreliability as a witness was further demonstrated by her evidence about how she travelled to Adelaide prior to catching her flight to America for Michael’s wedding in September 2003. This evidence is important, because of the clear conflict between Vincent and Julie on the one hand and Denis and Mary on the other, about whether they had a discussion at Vincent’s house on the Sunday morning before her flight to America, at which Denis made significant promises to Vincent if he chose to return to the farm. It is one of the central features of Denis’ case that this conversation did not occur, not least because he was not in Adelaide on the weekend before Mary left for America and he did not drive her to Adelaide from Oakfront. When asked about this, Mary said that she did not recall how she travelled to Adelaide before leaving for America.21 The following exchange then occurred between Mary and Mr Riggall: Q. There was a bus from Streaky Bay to Adelaide in 2003 wasn't there. A. Yes. An overnight bus, yes. Q. An overnight bus, correct. Certainly you didn't take the overnight bus down to Adelaide to travel to the airport to fly to America, did you. A. What was that? Q. I said you didn't take the overnight bus to Adelaide in September 2003 to make your trip to the United States, did you. 19 T769.2. 20 T770.15-27. 21 T772.26-27. -- 18 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 17 A. I don't know how I came down. Q. So in fact I suggest that in 2003 the only way that you travelled to Adelaide was by car. A. If we came to Adelaide it would be by car, but I often travel mainly by bus. Sometimes I - I don't know whether this was in that time, I spent a fair bit of time flying with one of our daughters that I'd had an accident with and that was to bring her back to checks in the hospital.22 89 Again, I am unable to accept Mary’s evidence. I consider that it is simply inconceivable that she cannot recall how she travelled from Oakfront to Adelaide to fly to America for her son’s wedding, on what was her first overseas trip. Further, her mention of flying to Adelaide for treatment for one her daughters can only have been to distract and confuse. The injury suffered by her daughter which required medical treatment occurred in 198223 when she was a child, and by 2003, she was an adult, living in Adelaide, with a child of her own. Further, Mary said in re-examination that she would not have been travelling by plane from Streaky Bay to Adelaide in 2003.24 90 The only conclusion that I can draw from this evidence is that Mary was aware of the importance of giving evidence that did not place Denis in Adelaide shortly before her departure for America; the only way she could do this without telling a blatant lie was to profess to have no recollection of how she travelled to Adelaide on that occasion and to seek to confuse. 91 I am also unable to accept Mary’s evidence about her knowledge of the contents of Denis’ and the company’s defence, and when she first became aware of Vincent’s allegation that Denis had made certain promises to him in September 2003. In her cross-examination, she was asked if Vincent read to her over the phone, two paragraphs of the defence in March 2023 (only six months before the commencement of the trial). Her first answer was: Maybe, I’m not sure.25 92 She was then asked if she requested Vincent to bring a copy of the paragraphs over to her. She said: Maybe, yes. 93 The following exchange then occurred: Q. Do you remember seeing two pages of paper containing the contents of paras.10 and 11 of the defence. Mrs Cash, while you are doing that I think I might have 22 T773.16-34. 23 R1-22, [19]. 24 T806.38-807.5. 25 T789.18. -- 19 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 18 misdescribed the situation. You came over, I suggest, to the greenhouse and picked up two pages containing paras.10 and 11 of the defence. A. Yes. Q. Do you remember that happening. A. Yes.26 94 Her evidence of her recollection of this event went from being not sure, to having a clear recollection of its occurrence. She was then asked a series of questions about visiting the Greenhouse to see Vincent the following day; her answers were, again, extremely guarded: Q. Now, against that backdrop, I suggest that you went to the Greenhouse the following day, the day after you received the pieces of paper from Vincent, and had a further discussion with him. A. Maybe, I'm not sure. All I can remember that he's saying that 'Dad phoned me and asked me to come home', and I was shocked to hear that. I said 'And if that was the case, well it has to be fixed'. Q. One thing at a time. You recall returning to the - going over to the Greenhouse the following day after you had the two pieces of paper. A. Maybe, I'm not sure.27 95 On the one hand, she is extremely cautious about admitting that she went over to the Greenhouse and had a conversation with Vincent about the defence; on the other, she gives evidence about part of the contents of that conversation and her reaction to it. The evidence was given in a way that suggested that her intention was to give non-committal answers, but in an unguarded moment, she answered more fully than she intended. 96 Mary appears to imply that she learned for the first time in March 2023 that Vincent’s case is that Denis asked him to come home to Oakfront. 97 This is simply unbelievable. By March 2023, this litigation had been on foot for five years. A mediation had been held and the parties had exchanged proposals to resolve the matter. I cannot accept the suggestion in Mary’s evidence that she learned of the central plank of Vincent’s case for the first time in March 2023, six months before the commencement of the trial and five years after the commencement of the ligation. I have formed the conclusion that she sought to give this impression so as to explain her writing a letter in March 2023 in which she said: 26 T789.22-30. 27 T792.6-17. -- 20 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 19 I believe some of the statements in the defence are simply not true; In particular that Denis did not invite Vincent and Julie back to the farm.28 98 She sought to give the impression that her recent discovery of Vincent’s case was the catalyst for her writing the letter. The only other explanation for her letter is that she was aware of the discussions that occurred between Denis and Vincent, and knew that Denis had, in fact, invited Vincent and Julie back to the farm. I consider that she was aware that she could not give this evidence as it would substantially damage Denis’ and the company’s case. I will deal with this letter in full in due course. 99 As a result, I found Mary to be an unreliable witness. 100 Thomas did not present as a reliable witness. He was evasive in his cross-examination and his evidence was, at times, simply unbelievable and unrealistic. For example, he was not prepared to accept that Vincent worked long hours on the farm in 2004. On this topic, he said: Q. You have no reason to doubt that when Vincent returned to the farm in 2004, before he had children, he was working long hours every day. A. I don't believe he was, no. Q. But you've no basis to give that evidence, have you. A. Only from when I was going back to the farm in 2004, 5, 6, 7, all those years when I'd go home. Q. You're suggesting that he wasn't working long hours when you went home. A. No.29 101 This evidence cannot be accepted and does not accord with the evidence even of Denis. Further, he was unable to explain why he left the farm himself in 2004, save that he left to “better his knowledge”.30 He then said the following in relation to the amount it would have been necessary to pay someone to return to the farm in 2004: Q. I think I'll just try summarising that one final time. I think I asked you to agree that it would have been a very hard sell to get someone to come back to the farm to work the farm as hard as a farmer for no money in dry conditions. A. It would be hard, but you're using a $2,000 payment which is unrealistic. If you're going to pay someone to come home, you'd pay them - Q. What would you pay them. 28 Tender book, Tab 112. 29 T423.9-18. 30 T421.15. -- 21 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 20 A. Depending on their skill level. But back then could have been $15 an hour. Q. You know that Vincent wasn't paid that sort of money when he went back to the farm, don't you. A. I don't know. I haven't seen any financials or anything to show.31 102 His evidence was clearly that his expectation was that someone with appropriate skills would be paid $15 per hour to return to the farm and that payment of $2,000 per year was unrealistic to entice someone to work there. He gave this evidence against the background of no knowledge of the payments received by Vincent when he returned to the farm in 2004 and of the fact that he himself received only about $2,000 per year when he left the farm to move into the fishing industry. In fact, Thomas’ evidence was that Vincent received a wage32 and he later conceded that he was unaware that Vincent had never been paid a wage.33 He also conceded that he did not know that Julie supported the family financially.34 103 It is clear that much of Thomas’ evidence was simply uninformed. As a result, I consider that his evidence needs to be treated with caution; he clearly was prepared to give evidence of matters about which he had no knowledge as if he was fully informed. This has led to me to treat as unreliable all of his evidence unless it has been independently corroborated. Thomas’ evidence also demonstrated that his hostility toward Vincent coloured much of his evidence. 104 I do not consider that Michael’s evidence was particularly helpful. It was clear that he had spent very little time on the farm over the previous 20 years. He had little independent knowledge of what had been happening on the farm since he left in 1999. In fact, his evidence was that he was not aware that Vincent had returned to the farm in 2020 and had been working without wages. He further said that he had not been part of the decision making that led to Vincent returning to work on the farm in July 2020. 105 It was clear to me that Michael’s evidence was not based on his own knowledge as he had had little or no involvement in the management of the farm in more than 20 years. 106 I am satisfied that Mr Oster, Mr Harris and Mr Young were reliable witnesses who did their best to assist the Court. In particular, I consider that Mr Oster was a valuable witness, who gave evidence truthfully. He has known the Cash family since 1997, without being a close friend of any particular member. As a result, I consider that his evidence was particularly helpful as he was able to give evidence of relevant events without any particular bias. 31 T423.19-33. 32 T426.33-34. 33 T427.20-23. 34 T426.37-38. -- 22 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 21 107 I consider that Mr Giles did his best to assist the Court and to answer truthfully the questions that he was asked. I have found, however, that his evidence is unreliable because of an inherent bias, which I will discuss in more detail in due course. The legal framework 108 The causes of action relied on by Vincent are estoppel by convention or mutual assumption, promissory estoppel, estoppel by representation and estoppel by encouragement. In his submissions, however, he essentially refined his case to one based on estoppel by encouragement. 109 Many learned judges, including judges of this Court, have discussed the legal principles that apply in determining whether a case based on estoppel by encouragement must succeed or fail.35 In Carter v Brine, Blue J, after reviewing the authorities, said the following: Proprietary estoppel by encouragement The elements of proprietary estoppel by encouragement are: 1. a representation by the defendant to the plaintiff that the plaintiff has or will have a proprietary interest in property owned wholly or partly by the defendant (representation); 2. the plaintiff forms an assumption that he or she has or will have a proprietary interest in that property (assumption); 3. the conduct of the defendant in making the representation causes or materially contributes to the formation of that assumption by the plaintiff (reliance); 4. the plaintiff takes action in change of his or her position in reliance on that assumption (inducement); 5 the plaintiff would suffer detriment if the defendant were permitted to depart from the assumption (detriment); 6. it would be unjust or unconscionable for the defendant to depart from the assumption (unconscionability).36 (footnotes omitted) 110 Blue J then goes on to make the following points in relation to the various elements: 35 See, for example, Nicholson J in Rodda v Ian Rodda Pty Ltd [2015] SASC 95 and Blue J in Carter v Brine [2015] SASC 204. 36 [2015] SASC 204, [326]. -- 23 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 22 • The representation relied on can be express or implied, and can be implied from words or conduct. The representation can be in the form of a promise as to the future.37 • In the case of a promise as to the future, the applicant must have an actual belief that he or she will have a proprietary interest.38 • The respondent’s conduct must cause or materially contribute to the assumption made by the applicant.39 His Honour then went on to say: The elements of reliance and inducement in proprietary estoppel by encouragement or acquiescence are both aspects of causation: was the defendant’s conduct a cause of the plaintiff’s belief and of the plaintiff’s action founded on that belief? They are best addressed in the manner in which causation questions generally are addressed, namely whether as a matter of common sense the defendant’s conduct is to be regarded as a cause of the plaintiff’s belief and in turn the plaintiff’s action. Ordinarily, although not exclusively, it is necessary but not necessarily sufficient that, but for the defendant’s conduct, the plaintiff would not have so believed or acted. Understood in this way, the reasonableness of the plaintiff’s belief and action is not an independent requirement of reliance or inducement but merely a factor in assessing whether the defendant’s conduct is a cause of the plaintiff’s belief and action. Similarly, the defendant’s state of mind about the plaintiff’s belief and action is not an independent requirement of reliance or inducement but merely a factor in assessing whether the defendant’s conduct is a cause of the plaintiff’s belief and of the plaintiff’s action founded on that belief. Both reasonableness on the part of the plaintiff and state of mind on the part of the defendant will be important factors in assessing whether the defendant’s conduct is unconscionable and the defendant should be regarded as estopped from denying the relevant beneficial interest of the defendant in the relevant property.40 (footnotes omitted) • The applicant must change his or her position in reliance on the assumption that was induced by the respondent’s conduct.41 • The applicant must satisfy the Court that he or she will suffer detriment if respondent were permitted to depart from his promise.42 • In relation to unconscionability, Blue J says: 37 Ibid, [331] – [333]. 38 Ibid, [334]. 39 Ibid, [335]. 40 Ibid, [342] – [344]. 41 Ibid, [347]. 42 Ibid, [349]. -- 24 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 23 It must be unconscionable in all of the circumstances for the defendant to depart from the assumption. Assessment of this element is dependent on the facts of the particular case, including the particular aspects of the preceding five elements, and formulations of principle are of limited assistance. In The Commonwealth v Verwayen, Deane J said: The question whether such a departure would be unconscionable relates to the conduct of the allegedly estopped party in all the circumstances… Ultimately … the question whether departure from the assumption would be unconscionable must be resolved not by reference to some preconceived formula framed to serve as a universal yardstick but by reference to all the circumstances of the case, including the reasonableness of the conduct of the other party in acting upon the assumption and the nature and extent of the detriment which he would sustain by acting upon the assumption if departure from the assumed state of affairs were permitted.43 (footnotes omitted) 111 In Sidhu v Van Dyke,44 the High Court considered the question of reliance. The plurality made it clear that actual reliance by the promisee is a fact that must be found by the Court; it is not to be assumed or inferred. It is the detrimental reliance of the promisee on the representation by the promisor which makes it unconscionable to allow the promisor to depart from their promise.45 The burden of proving detrimental reliance on a promise made by the promisor always lies on the promisee.46 On the question of reliance and unconscionability, the plurality concluded: This category of equitable estoppel serves to vindicate the expectations of the representee against a party who seeks unconscionably to resile from an expectation he or she has created.47 112 In the recent case of Kramer v Stone,48 the New South Wales Court of Appeal said this about estoppel by encouragement: Proprietary estoppel by encouragement is one of a number of discrete equitable doctrines falling within the rubric of “equitable estoppel”. The elements common to such doctrines are encapsulated in the well-known formulation of Brennan J, as his Honour then was, in Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 at 428-429; [1998] HCA 7 (Waltons Stores v Maher): … [I]t is necessary for a plaintiff to prove that (1) the plaintiff assumed that a particular legal relationship then existed between the plaintiff and the defendant or expected that a particular legal relationship would exist between them and, in the latter case, that the defendant would not be free to withdraw from the expected legal relationship; (2) the defendant has induced the plaintiff to adopt that assumption or expectation; (3) the plaintiff acts or abstains from acting in reliance on the 43 Ibid, [351]-[352]. 44 [2014] HCA 19. 45 Ibid, [58]. 46 Ibid, [61]. 47 Ibid, [77]. 48 [2023] NSWCA 270. -- 25 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 24 assumption or expectation; (4) the defendant knew or intended him to do so; (5) the plaintiff’s action or inaction will occasion detriment if the assumption or expectation is not fulfilled; and (6) the defendant has failed to act to avoid that detriment whether by fulfilling the assumption or expectation or otherwise. For the purposes of the second element, a defendant who has not actively induced the plaintiff to adopt an assumption or expectation will nevertheless be held to have done so if the assumption or expectation can be fulfilled only by a transfer of the defendant’s property, a diminution of his rights or an increase in his obligations and he, knowing that the plaintiff’s reliance on the assumption or expectation may cause detriment to the plaintiff if it is not fulfilled, fails to deny to the plaintiff the correctness of the assumption or expectation on which the plaintiff is conducting his affairs. [My emphasis] While those elements are not to be applied in every case in a “mechanical fashion” (Doueihi v Construction Technologies Australia Pty Ltd (2016) 92 NSWLR 247; [2016] NSWCA 105 (Doueihi) at [166] (Gleeson JA, with whom Beazley P, as Her Excellency then was, and Leeming JA agreed); and see DHJPM Pty Ltd v Blackthorn Resources Ltd (2011) 83 NSWLR 728; [2011] NSWCA 348 (DHJPM) at [47] (Meagher JA, with whom Macfarlan JA agreed)), they are commonly regarded as a useful guide or check. It has been said that “if the facts of the case did not measure up to those tests, it would be necessary to think thoroughly about why not” (Austotel at 615-616 (Priestley JA), referred to approvingly in Doueihi (at [166] by Gleeson JA)).49 113 To be successful at trial, Vincent will need to establish: 1. that Denis made a representation to him that he has or will have a proprietary interest in Oakfront, being property owned or controlled wholly or partly by Denis; 2. he formed an assumption that he has or will have a proprietary interest in Oakfront; 3. Denis’ conduct in making the representation caused or materially contributed to the formation of that assumption by him; 4. he changed his position in reliance on that assumption; 5 he would suffer detriment if Denis were permitted to depart from the assumption; 6. it would be unjust or unconscionable for Denis to depart from the assumption. 114 I will deal with the question of remedy once I have examined these elements. 115 In order to answer the questions, I need to make a number of findings of fact with respect to the events which occurred between Vincent’s return to the farm in early 2004, and when he was sacked in February 2016. 49 Ibid, [77] – [78]. -- 26 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 25 Specific findings of fact 116 I have already set out, at [31] to [37] hereof, a summary of the representations that Vincent says Denis made to him before he returned to the farm in 2004. The representations occurred on three separate occasions: by telephone in July 2003, at Red Hill on 6 September 2003 and on the morning of 7 September 2003, at Daw Park. It is necessary to examine each of these episodes in detail. The July 2003 telephone call 117 In cross-examination, Mr Duggan put to Vincent that Denis did not say, during that call, that the work on the farm was getting beyond him.50 Vincent’s evidence was that conversation occurred as he has described, with his father talking about Vincent’s brothers, Michael, Gerald and Thomas having left the farm. Mr Duggan suggested to Vincent that Thomas was still on the farm in July 2003; Vincent’s evidence was that Thomas had left by then to pursue employment in the fishing industry.51 118 Dennis’ evidence with respect to this conversation was unhelpful. He said: Q. Because in July 2003, you had a conversation with Vincent about the shearing which was to take place in August, do you recall that. A. Did I? Q. And you asked Vincent to come back and help him with the shearing. A. Did I? Q. Well, you did, didn't you. A. Beg your pardon? Q. You did ask Vincent to come back and - A. No - Q. - help you with the shearing. A. - I may have. I - Q. If Vincent said 'Dad phoned me up and asked me to come back with the shearing', you wouldn't dispute that. A. I beg yours? Q. I'll try again. If Vincent said 'Dad phoned me up in July and asked me to come back and help him with the shearing', you wouldn't dispute that, would you. A. No, I - 50 T47.29-38. 51 T48.29-49.25. -- 27 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 26 Q. And Vincent indeed did come back and help you with the shearing in August 2003. A. Maybe - he helped with shearing - yes.52 119 This evidence is simply unhelpful. I note that Denis’ evidence about Thomas’ whereabouts at this time is also circumspect. On being asked whether Thomas was working on the farm in mid-2003, Denis answered variously: • I didn’t monitor when he was there and when he wasn’t.53 • He may have been. I’m not sure.54 • As I said previously, I did not monitor what actions were being taken.55 • Like I said, I did never monitor Thomas’ moves, and he was – he was always welcome to come home.56 120 I have no doubt that Denis recognised the importance of the absence of Thomas from the farm to Vincent’s case; if Thomas remained on the farm making a valuable contribution to the workload, he would not need to offer inducements to Vincent to persuade him to return to the farm. 121 Mary’s evidence was that she had no knowledge of this phone call until early 2023: Q. Sorry, I think you'd said that Vincent told you that his father had called him up one Sunday night and asked him to come home. A. Yes, that's what I understood. I didn't - I wasn't there at the phone call or anything. Q. I'm just trying to understand when Vincent said that phone call took place. A. Before he came home. Q. In 2003, do you mean - A. Yes. Q. - or in 2020. A. No, before he left Bone Timber. Q. So the original coming home, as it were, in 2003. A. Yes. Q. Was that the first time that Vincent had told you about that phone call. 52 T507.4-26. 53 T507.3. 54 T507.29. 55 T508.23-24. 56 T509.14-15. -- 28 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 27 A. Yes. Q. Had you ever spoken to Dennis about that phone call. A. No. Q. So that was the first time you'd heard that. A. Yes.57 122 Mary’s evidence does not take the matter any further. 123 I find that the conversation in July 2003 occurred as described by Vincent. Denis’ evidence is so unclear about whether or not such a conversation occurred that I place no store in it. I have no reason to find that the conversation did not occur as described by Vincent. As a result, I find that, in July 2003, Denis told Vincent that: • The workload on the farm was getting beyond him; • He was concerned about the farm’s future; • Gerald, Michael and Thomas had all moved on from the farm; • Someone was going to have to take over the farm, and there was an opportunity for Vincent if he wanted it. 124 I am satisfied that, at the time of this telephone call, it was clear to Denis that Thomas had no intention of pursuing a life on the farm at that time. I have reached this conclusion on the basis of Denis’ prevarication as to Thomas’ whereabouts from mid-2003 onwards. I have also taken into account Mr Oster’s evidence that, prior to Vincent’s return to the farm in 2004: I recall seeing Denis’ young son Thomas on the Cash farm when I visited. Thomas was a teenager at the time. He did not participate in my discussions with Denis, but he would say hello and I would see him riding around the farm on his motorbike. Denis said to me “I don’t know what we are going to do with Tom.”58 125 I have taken this to mean that, to Mr Oster, Thomas did not appear to be actively involved in the work on the farm and Denis did not expect him to engage with work on Oakfront. I note that Mr Oster was not cross-examined on this evidence. The visit to Red Hill 126 Vincent’s evidence is that, after he and Julie returned from Oakfront when shearing was completed, Denis telephoned him and invited him to go to Redhill 57 T737.38-738.20. 58 A14, [16]. -- 29 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 28 with him. During that conversation, Denis asked Vincent if he was interested in coming back to the farm and Vincent replied that he was. 127 Vincent, Julie, Denis and Mary met at Redhill on 6 September 2003. They had lunch before going to Paul Oster’s merino stud to discuss changing their merino blood line. During lunch, they talked about Vincent’s returning to the farm, and Julie said that she was interested in moving to the farm. When they were with Mr Oster, Denis and Vincent discussed with him changing their merino blood line to produce finer wool. 128 Denis’s evidence was only that they “possibly” discussed farming matters at lunch at Redhill, and that he was “not sure” that he had wanted to consult Vincent about the future direction of the flock because he had been talking to him about returning to the farm.59 129 Julie said that, during the meeting with Mr Oster, there was some technical discussion involving Vincent and Denis about improving the quality of the flock. She did not give evidence about what was discussed at lunch. 130 Mary’s evidence was that they met at the hotel for lunch and then went to Mr Oster’s farm. While Denis and Vincent were discussing matters with Mr Oster, Mary and Julie stayed with Mr Oster’s wife. 131 Mr Oster gave evidence about his association with Oakfront. He said that he first met Denis in about 1997, when he was working as a stud operator at Broadvue Heights Pty Ltd, which had sold rams to Denis and his brother John for a long period of time. Mr Oster was contracted by Denis to class his sheep, coordinate breeding programs and develop a wool and sheep enterprise that would be commercial.60 132 Mr Oster’s evidence was that when he first went to Oakfront, Denis was farming on his own. He said to Mr Oster that he needed help managing the farm. At that time, he had a number of physical problems, such as with his knees and back, which he would mention to Mr Oster.61 133 Mr Oster said that, in 2003, he contacted Denis to arrange a time for him to visit Broadvue Heights to select some rams. During the conversation, Denis told Mr Oster that Vincent was coming home to take over the farm.62 The visit occurred in late September; Denis deferred to Vincent in the choice of rams, and Vincent told Mr Oster that he wanted to come back and take on the farm.63 When asked about this statement in cross-examination, Mr Oster replied: 59 T519.7-32. 60 A14, [5] – [8]. 61 T349.22-26. 62 Ibid, [18]. 63 Ibid, [19] – [21]. -- 30 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 29 A. As far as looking at these words, there was a statement there which I can clearly recall. 'I'm here to come back and take on the family farm.'64 134 I am satisfied that the meeting at Redhill happened as described by Vincent. I accept that there was discussion about Vincent’s return to the farm during lunch and that, subsequently, he and Denis discussed merino blood lines with Mr Oster. I am satisfied that, prior to the meeting, Denis told Mr Oster that Vincent was coming home to take over the farm. The Daw Park conversation 135 The salient content of the Daw Park conversation is set out at [36] – [37] hereof. Denis and Mary completely deny that this conversation occurred; they go so far as to deny that they were in Adelaide together at the time that Vincent and Julie say that the conversation took place. This gives rise to two questions: (a) were Denis and Mary in Adelaide together at the relevant time; and (b) if they were, did the conversation occur and what was its content. Were Denis and Mary in Adelaide together at the relevant time? 136 Vincent says that, after the trip to Redhill, Denis and Mary went to Adelaide, rather than returning to Oakfront, because Mary was travelling to America a few days later to attend Michael’s wedding. They stayed at Vincent’s house in Daw Park, which he rented with his brother, Patrick. In his evidence, Vincent says that the visit to Redhill occurred on Saturday, 6 September 2003 and the conversation in Daw Park occurred on Sunday, 7 September 2003. His mother left for America the following Tuesday. 137 Julie also dates the Redhill visit to 6 September 2003 and the Daw Park conversation to 7 September 2003. She also says that Mary flew to America for Michael’s wedding on the following Tuesday. 138 Denis is adamant that he and Mary returned to Oakfront after the meeting at Redhill.65 This is supported by Mary’s evidence, although with considerably less certainty. When asked where she and Denis went after leaving Mr Oster’s, she said: A. We went back home. Q. Home, I just need you to be specific, is home the farm. When you say 'home', do you mean Oakfront. A. I can't remember going back. My mother lived at Stirling North, just this side of Port Augusta. I presume we may have stayed the night with her and then went on the next day. We wouldn't have wanted to be away from the farm very long because we were the only ones on the farm. 64 T351.16-19. 65 T518.32-36, T521.1-24, T522.19-24, T523.6-10, T527.5-7, T528.16-17, T533.21-534.14. -- 31 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 30 Q. But you don't actually remember whether or not you stayed at your mum's at Stirling North at Port Augusta. Is that right. A. No. If ever we went to Adelaide, that's what we would - we often did that sort of thing. Q. On the way to Adelaide. A. Or home again, whichever. Q. But on this occasion after you left the Osters, do you say you went back to the farm. A. Yes. Q. Is it possible that you went to Adelaide. In other words, that you did not go back to the farm, but that you went to Adelaide. A. No, we went back to the farm.66 139 I have reason to doubt, however, that this evidence was based on Mary’s recollection of the event; I consider that it is more likely that it is a later reconstruction. Immediately after the exchange set out above, Mary was asked about the date on which she had flown to America for Michael’s wedding. Her evidence was that she had asked her daughter (with whom she travelled) to check the date that they left Australia. Her daughter told her that they flew out on 15 September 2003.67 She was then asked: Q. Would you have stayed in Adelaide between the Sunday, 7 September, which was the day after the Red Hill meeting, for a week, and then flown out from Adelaide to the United States on 15 September without going back to the farm. A. I wouldn't have stayed that long in Adelaide.68 140 I have already referred to the unsatisfactory evidence given by Mary about how she travelled from Oakfront to Adelaide before flying to America. Given the serious reservations that I have about Mary’s evidence generally, I am unable to conclude that Mary has an independent recollection of travelling back to Oakfront after the visit to Redhill. I consider that she reached the conclusion that it must be the case that she returned to Oakfront, because she would not have stayed in Adelaide for over a week before travelling to America. Of course, this conclusion is predicated on the visit to Redhill occurring on 6 September 2003. 141 In his written submissions, Mr Duggan states: Denis, Mary and Vincent all place the Redhill meeting as taking place on 6 September 2003.69 66 T749.12-34. 67 T749.35-750.3. 68 T750.4-9. 69 Second Respondent’s Outline of Submissions, [4.1.3]. -- 32 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 31 142 I do not consider, however, that this accurately reflects the evidence that was given. There is no doubt that Vincent says that the visit to Redhill occurred on 6 September 2003. Denis and Mary, however, simply adopt that date; they do not independently say that the meeting occurred on that date. This is made clear in the extracts of the transcript relied on by Mr Duggan. Mary’s evidence is limited to this: Q. Following that shearing in August 2003, it was arranged that you would meet with Vincent and Julie at Redhill on 6 September 2003. A. That was to look at the rams, yes.70 143 She is not questioned specifically about the date of the visit; her acquiescence cannot be taken as evidence of her independent recollection of the date of the visit, just that the visit occurred and it was to look at rams. 144 Similarly, Denis’ evidence is as follows: Q. Tell me, why did you arrange to have lunch with Vincent and Julie on 6 September at Redhill. A. I was not there. Q. I'm sorry, do you recall going to see Paul Oster on 6 September. A. Yes.71 145 This evidence is problematic. First, Denis’ answer to the question first put by Mr Riggall demonstrates that, rather than listening to the question, Denis seems intent on establishing that he was not in Adelaide on Sunday 7 September. Second, it is unclear whether his evidence is that he recalled visiting Mr Oster, or that he had specific recollection of the date on which that visit occurred, or both. Third, Denis’ answer to the following question demonstrates the obstructive and argumentative approach the Denis took to his evidence generally: Q. And that followed, I suggest, a lunch at Redhill. A. Beg your pardon? Q. That suggested that followed lunch at Redhill. A. Yes. Q. So my question is, why did you arrange to have lunch with Vincent and Julie at Redhill on 6 September. A. Because it was lunchtime.72 70 T761.11-14. 71 T531.1-6. 72 T531.7-13. -- 33 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 32 146 I have already made findings as to the reliability of Denis’ evidence. He was not questioned specifically as to the date on which the visit to Redhill occurred. His evidence was generally obstructive and argumentative. In consequence, I cannot conclude that the passage of evidence relied on by Mr Duggan demonstrates Denis’ independent recollection of the date on which the visit to Redhill occurred. I consider that he has simply adopted the date on which Vincent said the visit occurred. 147 As to Vincent’s evidence, there is no doubt that he says that the visit to Redhill occurred on 6 September 2003. In his cross-examination of Vincent, Mr Duggan sought to have Vincent give the date on which Mary had left for America. The following exchange took place: Q. Well, I'm going to ask that question again. When you wrote that statement when you said 'Mum stayed until Tuesday when she flew out', you meant Tuesday, the 9th, didn't you. A. My recollection was that she had come down and stayed for two nights before flying out.73 148 His evidence on this topic concluded: Q. The last sentence of para.72 when you wrote 'Tuesday' there, you were intending to convey Tuesday, 9 September, weren't you. A. No, I just know that she flew out - she stayed a couple of nights and flew out. Q. You were very clear on the dates in relation to Redhill, right, remember in cross- examination. A. Yes. Q. When I asked you about that. A. Yes. Q. And you're not moving from those dates, are you; you say it's the 6th. A. From my recollection it was that date. Q. And you said you jotted it down in a chronology, is that right. A. Yes, I believe so.74 149 Mr Duggan then called for the production of the chronology. Following argument, I ruled that the chronology was subject to legal professional privilege as it was prepared by Vincent for the purpose of providing instructions to his lawyers. Given this finding, it is clear that the preparation of the chronology did not 73 T824.20-25. 74 T829.32-830-9. -- 34 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 33 commence contemporaneously, that is, in September 2003, and most probably occurred from 2016 onwards. 150 I note that, in his questions to Vincent, Mr Duggan refers to Vincent being “very clear” about the dates of the Redhill visit in his cross-examination. Despite this, I have been unable to locate in the transcript any passage where Vincent is challenged about the date of the Redhill meeting and the Daw Park conversation. For example, this was put to Vincent: Q. Looking at your statement now, now you sort of attribute various comments that were made I think at the kitchen table at Daw Park. A. That's correct. Q. On 7 September. A. That's correct.75 151 This does no more than put to Vincent his own statement that the Daw Park conversation occurred on 7 September 2003; it does not suggest, either explicitly or by implication that he may be wrong about the date. I have been unable to locate any other passage which deals with the date of the Redhill visit. 152 On the basis of the evidence before the Court and taking into account my findings about the reliability of the evidence of Denis and Mary, I find that Vincent was in error as to the date of the Redhill visit. I find that the visit to Redhill occurred on the weekend before Mary left for America to attend Michael’s wedding. I am further satisfied that, after leaving Redhill, Denis and Mary travelled to Adelaide, where Denis and Mary stayed until the following day and Mary stayed until she left for America. These findings are based on the following: • Vincent’s evidence that Mary stayed at his house for two nights before her departure to America which is consistent with Mary’s evidence where she said: Q. When did you arrive in Adelaide prior to flying out on the 15th, that is on the Monday. A. I don't know, I think I was here on the Saturday and the Sunday and flew out first thing Monday morning. I think I was here at the weekend. How I got here I can't recall. Q. So your recollection is that you were there for a weekend before you flew out. A. I was there the weekend before I flew out, yes. 75 T130.6-11. -- 35 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 34 Q. I should have asked this before, but in answer to your question of no, it was - well, I think you said it was exceptional to be away from the farm for a week. Can you just explain why that is. A. Well, there was only Denis and I on the farm and you couldn't leave it by itself so we had to be there to see to things that were carrying on. We rarely went - we never really went and left no-one on the place. We had to do things separately. Q. Now we are talking a week after the Oster visit now on the 13th and 14th, I think you say that your recollection is that those two days, that is the weekend before you flew out you were in Adelaide, correct. A. I think I was here on the - well, I would have been here on the Sunday and I think I was here on the Saturday. Q. Where did you stay then. A. With Patrick and Vincent.76 • Mr Oster’s evidence that the visit to Redhill occurred in late September, not early September; • Denis’ unhelpful and argumentative manner when being questioned about travelling to Adelaide after the visit to Redhill which has led me to discount his evidence except where it is corroborated by another witness (other than Mary); • Mary’s inexplicable inability to recall how she travelled to Adelaide prior to departing for Michael’s wedding. Did a conversation such as that alleged by Vincent occur at Daw Park on the Sunday morning, and if so, what was its content? 153 Given that I have rejected the evidence of both Denis and Mary that they were not at Daw Park on the day following the visit to Redhill, it is a short step from there to accept the evidence of Julie and Vincent that there was a discussion about Vincent’s return to the farm. The more important question is what was the content of that conversation. 154 Before I embark on an examination of the evidence dealing with the content of the Daw Park conversation, it is important to identify the understanding that each of Vincent, Denis and Mary had of the ownership structure of Oakfront in 2003. 76 T752.29-753.19 -- 36 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 35 155 Denis said the following about the establishment of the trust: … My brother, John, paid off the Maryvale mortgage and left me to handle the entire remainder of Oakfront mortgage. It was he who set up the family trust. I had nothing to do with it and so I was left with a family trust that I did not understand fully.77 156 The following exchange then occurred: Q. …but you said 'That you are now glad that you have a family trust in place', is that right. A. Yes. Q. Why is that. A. Because it is owned by the family not by a particular person. Q. Now are you familiar with how the trust works now. A. No.78 157 He then said: Q. But in any event, it's your understanding now that you are not capital beneficiaries of the family trust, isn't it. A. Repeat that please? Q. Okay, so there's a little bit of technical language there. It's your understanding now that you are not eligible to be given the capital of the family trust; the land; the animals; the plant. It can't be transferred to you because you're not a beneficiary of the trust. You understand that now, don't you. A. I am a beneficiary to the trust. Q. One question at a time, I know I will get there. You can't receive - you can receive income from the trust now, but you can't receive capital from the trust. For example, you understand that you could transfer a block of land owned by the trust to any of your children, don't you. A. No, I don't know. I'm not aware. Q. All right. Okay, well, I may not be able to take this too much further, but do you understand that you can't transfer a block of land from the trust to you or Mary. A. I wouldn't want to. Q. You understand that you can't. A. Yes, you're telling me.79 77 T499.30-35. 78 T501.2-10. 79 T502.10-503.2. -- 37 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 36 158 In this part of his evidence, Denis demonstrated no understanding of the concept of the trust or how it operated. He conceded that, when he caused the trust deed to be amended in 2017 to include himself and Mary as income beneficiaries, he did not know why he did this, other than that “it was suggested that I needed to…”.80 159 Later in his evidence, however, Denis demonstrated a better understanding of the reason why the trust was established: he explained that he had been made bankrupt in 1996.81 He said that this was “probably” why the trust held the land on behalf of his children.82 He was able to recall promptly the year in which he was bankrupt, and the reason why the share in the company was initially held by Michael. 160 Denis’ evidence has led me to conclude that he has limited knowledge of the concept of a trust, but, nonetheless he understood in 2003 that he did not own the farm himself. The tenor of his evidence has led me to conclude that the ownership of the farm was not a matter that concerned him on a day-to-day basis, and indeed, if this dispute had not arisen with Vincent, would not concern him now. He lives on the farm, derives his income from the farm and has complete control over its assets and activities. The fact that he was not an income beneficiary until 2017 appears not to have troubled him as Oakfront paid all of his and Mary’s daily living expenses. I consider that, in 2003, while he understood that he did not own the farm himself, he believed that it was his to do with what he wished, and he behaved accordingly. As he controlled the company, he could promise the farm to anyone that he wanted, or to no one. 161 Vincent’s evidence is that he did not have a “full understanding” of the trust structure until about 2008. He did not become aware of the trust deed until about 2010 and only became aware of what a discretionary trust was in 2010. He did not receive a copy of the trust deed until 2014. He became aware that the children of Denis and Mary were the beneficiaries of the trust in about 2014.83 162 Vincent says that he had been aware of the existence of the company for many years.84 It was clear, however, that he had a very limited understanding of the relationship between the company and the trust and the interest that he would receive if he obtained ownership of a share in the company. His evidence was that he did not know any of this in 2004.85 163 Mary’s evidence was that she had little or no understanding of the trust and how it worked. In particular, she said that, in 2003, she did not understand that she and Denis were not beneficiaries of the trust.86 She further said that, at the date of 80 T503.35. 81 T552.29-32. 82 T553.1-6. 83 T216.17-18-217.38. 84 T218.1-10. 85 T218.11-33. 86 T767.35-768.23. -- 38 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 37 giving her evidence she still did not understand the effect of the clause in the trust deed setting out the beneficiaries of the trust.87 164 In summary, I find that, in September 2003, Denis had a basic understanding of the trust structure but nonetheless treated the property as his own and did not differentiate between the company, the trust and himself. The legal structures that owned the farm did not concern him on a day-to-day basis and I am prepared to find that he rarely, if ever, thought about them. For all intents and purposes, Oakfront was his, to do with what he wanted. Vincent, on the other hand, did not know about the trust. While he was aware of the company, it was not clear what role he believed the company played in the ownership of Oakfront. Mary appeared to have no understanding of how the trust operated, either now or in 2003. It is clear from this that, in 2003, Denis had a significant advantage over Vincent in relation to knowledge about the business structures through which the farm was held and run. 165 The company submits that it is inherently implausible that Denis would have made the promises alleged by Vincent. This is for a range of different reasons. 166 The company says that Denis was only sixty-two years old in 2003 and was physically fit and able to manage the farm himself. The Court should reject any suggestion that he was not able to manage the work on the farm independently. Further, he had leased part of the farm at that time, so that income was derived from rent rather than crops, which reduced his workload. 167 Vincent’s evidence on this topic was that, by 2003, his father had been diagnosed with gout and the day-to-day activities of the farm were getting too much for him.88 Denis’ evidence was that, while he considered himself to be relatively fit and agile for a 63 year old person, it was a daunting prospect to manage the fencing contract business and the farm on his own.89 He then said: Q. And I'd suggest at that point, you began to consider whether it would be possible to attract one of your fine sons to come back to the farm to help you. A. Well, yes, the farm needed more than one.90 168 Denis’ own evidence, therefore, appears to belie the submission put by the company that he was able to manage, independently, the work on the farm. 169 In addition to Denis’ own evidence about his ability to manage the farm on his own, there is other evidence that suggests that it had been some years since Denis’ had in fact worked the farm on his own. 87 T805.34-806.3. 88 T48.8-23. 89 T512.5-6, 28-31. 90 T512.32-35. -- 39 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 38 170 Michael’s evidence was that he “was helping to run the farm in 1999”91 and that he returned to the farm in 2002 to carry out the fencing contracts.92 Mary said that, while Michael was on the farm, he did most of the hard work.93 It was Vincent’s evidence that Gerald “was back and forth from the Farm during 2000-2001 and lived on the Farm for most of 2002.”94 Vincent returned to the farm to assist during shearing and other farm work, including seeding and fencing and improving Murphy’s Haystacks.95 Thomas was on the farm from when he finished school at the end of 2002 until sometime in 2003. 171 None of this evidence was contested other than the length of time that Thomas spent working on the farm in 2003 before he left for Port Lincoln. It is clear, therefore, that by 2003, it had been at least four years since Denis had had to manage all of the farm and fencing activities on his own. This supports his own evidence that he needed at least one of his sons to return to the farm to manage the workload. 172 Finally, in this regard, I must also refer to the evidence of Mr Oster. In his evidence, he described Denis in 2003 as being “elderly and not particularly mobile”.96 He further reported that Denis had said to him, “I need help managing the farm.”97 In his cross-examination, Mr Oster conceded that he did not actually know how old Denis was in 2003; he estimated Denis’ age as around the late 60’s when they first met in 1997. He further said that Denis had physical problems with his knees and back, which Denis mentioned to him.98 This evidence is, in itself, telling of Denis’ physical condition. Mr Oster had known Denis well for some years by 2003 and had seen him regularly, both at Oakfront and elsewhere. His estimate of Denis’ age, at ten years older than he actually was, gives a good indication of Denis’ physical state at that time: a man aged beyond his years no doubt as a result of decades of hard, physical work. 173 The evidence does not support the company’s submission that, on the basis of Denis’ own health and physical capability, it was inherently unlikely that Denis would have made the promises alleged by Vincent. 174 The company submits that it is inherently unlikely that Denis would have made the representations because, in 2003, three of Vincent’s brothers were teenagers and one of them was still at school. It says that it was possible that one or more of them might want to return to the farm in the future. There is no evidence that, at 2003, any of them had said that they did not want to become farmers. Further, there was a history of Denis’ and Mary’s sons returning to work on the farm for a period of time, with Michael, Gerald and Thomas having done so. In 91 R2-20, [8], [11]. 92 Ibid, [11]. 93 T755.13-24. 94 A1, [44]. 95 Ibid, [41], [46]. 96 A14, [13]. 97 Ibid. 98 T349.3-26. -- 40 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 39 making this submission, the company relies on Denis’ often expressed view that any family member was welcome home and that he wanted to treat all of his children equally. 175 Mr Duggan put to Vincent that it was the view of both Mary and Denis that each of the children should obtain some form of qualification or experience before returning to the farm if they wished to do so. As a result, it was inherently implausible that Denis would have promised the farm to Vincent when three of his brothers were too young to have obtained this broader experience and have had time to make a decision about a career in farming. Vincent’s response was: A. My father's promise was made out of concern about the future of the farm. You state that, yes, my three brothers were still young at that stage, and Thomas had come home from school that year of 2003, as you've previously mentioned, to conduct a farm based - I'm not sure if it's titled an apprenticeship, but - a farm based course. Q. A course on the farm. We'll come back to that, but yes. A. By mid year Thomas was showing no interest in helping Denis on the farm, and his behaviour led Denis to be in a state of concern.99 176 When the proposition was put to him that he was not asked to return to the farm, but returned of his own volition, he replied: A. I currently at that time had almost worked 10 years for a timber company. I was doing four years of part time study in graphic design and advertising, and I put that all aside to come home and work on the farm at dad's request because he required help on the farm.100 177 The reality is that there is no evidence before the Court of the attitude of any of Vincent’s younger brothers other than Thomas. Thomas’ own evidence is so lacking in credibility that I place no store on any evidence that he might give about his intentions in 2003. On the basis of the evidence of Vincent, Mr Oster and Julie about Thomas’ presence on the farm in 2003, I have formed the view that Thomas, like Michael, found that farming on the Eyre Peninsula during a serious drought was unrewarding and he chose to leave the farm rather than put in the work necessary to keep the farm viable. He, in effect, tried out farm life and rejected it. More than ten years later, when conditions had improved and life on the farm was not as hard as it had been in 2003, he changed his mind and sought to return to farm. 178 I have also formed the view that, in 2003, Denis gave little or no thought to the wishes or attitudes of his two sons, Patrick and Dominic. Patrick had commenced an apprenticeship and was working in Adelaide, and Dominic was still at boarding school. Denis needed someone to come home to work on the farm, and he needed that person immediately, not when they had finished school or their apprenticeship. I consider that Denis’ concerns about the wishes or intentions of 99 T125.36-T126.9. 100 T126.28-32. -- 41 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 40 his younger sons is a fantasy created by his lawyers to support the submission that it was unlikely that he would have made the representations. 179 I do not consider that the fact that Michael, Gerald and Thomas had come back to the farm is a compelling reason for finding the making of the representations is inherently implausible. While there was a clear history of Denis’ sons returning to the farm to work, there was an equally clear history of each of them leaving again after a relatively short period of time. Denis needed to break this cycle with someone making a long-term commitment to the farm. This supports a submission that it was in fact inherently likely that Denis made the representations. 180 The evidence supports the submission that Denis frequently said that any of his children were welcome home and that he wanted to treat them equally and justly. It is clear that this attitude arose as a consequence of the breakdown of his relationship with his brother, John; Denis felt that he had not been treated fairly by John in the division of the property after they ceased their farming operations together. I accept that this was a genuinely held belief of Denis. At the same time, I do not consider that it makes it inherently implausible that he would have made the representations. In mid to late 2003, Denis needed to solve a problem, which was to find someone to carry out the work on the farm, where the farm could not afford to pay them a wage. Denis’ evidence about whether the farm afford to pay wages in 2003 was argumentative: Q. But you didn't sort of - in some ways, I suggest, you didn't have a lot to offer to attract a son to come back, certainly in terms of wages, did you. A. Exactly. Q. So, if one of the sons came back, you couldn't afford to pay them wages, could you. A. Why not? Q. Because the farm wasn't making enough money. A. Is that right?101 181 When asked the first question, Denis provided an unguarded, truthful answer. I consider that, by the second answer, Denis had his guard back up and adopted his characteristic argumentative approach to any question that he did not want to answer. I have concluded that Denis’ first answer was the truthful one: that he did not have “a lot” to offer in terms of wages. 182 It should be remembered that, up to this time, each of Michael, Gerald and Thomas had returned to the farm and had worked, during a significant drought, without wages. None of them had stayed. Denis knew that he could not offer Vincent wages but he needed to offer him something to induce him to leave his 101 T513.1-9. -- 42 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 41 employment and his home in Adelaide. I consider that, in 2003, Denis needed to solve his and the farm’s immediate problem and did not have regard to what that might mean for his other children. 183 I note that the company relies on Thomas’ evidence, where he says: A. So Denis has always stated to me and other passing comments to other family members that the farm is always there and open for anyone to come home to and that it's not going to be handed over to one single person. Q. You say he's always - I think you said has always stated, is that a common thing that he's said. A. Every meeting and conversation I've ever had with him he has stated that.102 184 Given my findings about Thomas’ credibility, I find that this evidence is self-serving and unreliable. While I accept that Denis frequently said that it is open for any family member to return to the farm, I do not accept that he said that it was not going to be handed over to one single person at “every meeting and conversation” Thomas has ever had with him on the subject. I have formed the view that this is something that Denis started saying only after the dispute with Vincent arose. 185 I note the company’s submission that the representations are contrary to the provision made in Denis’ and Mary’s 2000 wills, where the residuary estate of the last surviving one is divided equally between all of their living children. I also note the submission that the representations would effectively disinherit all of Denis’ other children. I accept that this is the case. Nonetheless, I do not consider that this makes it inherently unlikely that Denis made the representations. In 2003, Denis needed to solve a problem. He needed to induce one of his sons to return to the farm to work without payment. I do not consider that he turned his mind to the content of his will or the effect that the representations would have on his other children’s inheritance; he was simply intent on finding a solution to his problem. 186 The evidence has made it clear that Denis is not a planner. Between 2004 and 2016, there were many meetings with advisors to discuss succession. It is clear from the evidence of those meetings that Denis was resistant to, if not incapable of, making any decision about the future of the farm; he reacted to circumstances rather than planning for them. I consider that, in 2003, he was intent on solving his immediate problem and did not turn his mind to the long-term consequences of the solution that he sought to implement. He was prepared to say whatever was required to solve the problem that he was facing at that time. The future, other than the immediate future, was not something that he considered. 187 The company submits that Denis’ and Mary’s traditional attitudes to relationships makes it inherently unlikely that Denis would have made the 102 T379.5-13. -- 43 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 42 representations. This has two aspects: their views on cohabitation before marriage, and their asserted lack of relationship with Julie in 2003. 188 There is no doubt that Denis and Mary have a traditional, Catholic attitude to cohabitation before marriage. Denis gave the following evidence about his and Mary’s disappointment at Vincent and Julie sharing a room in the main farmhouse before their marriage: Q. When Vincent came back to the farm he and Julie - he initially stayed with you in the main house. A. Yes. Q. And then Julie came in June, a few months later and also stayed in the main house. A. Yes. Q. But there was discussion about Vincent and Julie moving to The Greenhouse. A. I think I should tell the court that when Vincent and Julie first came to The Greenhouse - to the main house on a previous occasion Michael, my eldest son and his fiancée Kathy stayed at the homestead with us. They slept in separate rooms because of our beliefs. I needn't explain any more I don't think. But when Vincent and Julie came they came and imposed on us to a degree and mum and I did not have the confidence of our convictions and they slept together. Q. Vincent and Julie surely had shared a room in August 2003 when Julie came to live at the farm. A. I do not know. Q. And again at Easter 2003. A. I do not know. I can't remember that but I do know that we, both mum and I were very disappointed in ourselves that we did not have the confidence of our convictions.103 189 Michael also gave evidence about his parents’ attitudes to cohabitation before marriage: Q. You said you were in the main house. Were you in separate bedrooms when your fiancée was there. A. Yes, that wasn't acceptable to be anything but that with my parents. I had hoped that we would be able to move across into the green house, and [Kathy] and I could cohabit in the green house. And we looked at doing that and started pulling up flooring to have flooring replaced and everything, but it was made clear to us that that wasn't an option unless we were married. 103 T578.2-26. -- 44 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 43 Q. Well based on your experience and based on your knowledge of your parents, there's been a suggestion that Vincent and Julie were invited to live permanently together at the farm. Is that likely, in your opinion. A. Before they were married? Q. Yes. A. No, I can't see that happening. I don't believe that would've been - it wasn't acceptable in 2002.104 190 There can be no doubt that Denis and Mary had strong views on cohabitation before marriage. This evidence does not, however, advance the matter from their perspective. The fact remains that Vincent and Julie did share a room in the main farmhouse when they first returned to the farm in 2004 and then lived together at the Greenhouse for a number of years before their marriage. Their strong views did not prevent Vincent and Julie from doing this; there is no reason to think that they would have prevented Denis from making the representations, when he needed Vincent to come home to work on the farm. 191 I do not consider that Denis turned his mind to Vincent’s living quarters when he made the representations in 2003. He needed to solve a problem and he said what he needed to say to do that. I do not believe that he thought beyond his immediate need to find unpaid labour for the farm. 192 I reject, for the same reason, the submission that Denis and Mary did not know Julie well enough in 2003 for Denis to have made the representations. While they may have believed that, in 2003, they did not know Julie well, I am of the view that this would not have deterred Denis from making the representations. 193 The company submits that the inherent unlikelihood of Denis having made the representations is supported by the surprise expressed by both Denis and Mary when Vincent told them that he was coming home. Mary said: …And that Vincent told Denis in there, well I can't recall him ever telling me that he had resigned from his employment and was coming home, Denis told me that Vincent was coming home, which I was disappointed in that seeing he had established himself where he was, and it was long service leave coming up and I thought it would be good for him to take that.105 194 Mary’s surprise and disappointment at Vincent’s resignation from Bone Timber is not inconsistent with the making of the representations. Mary made it clear throughout her evidence that the running of the farm was Denis’ business and one that she did not get involved in. As a result, her surprise is indicative of her lack of involvement in the business; it does not necessarily lead to the conclusion that the representations were not made. Similarly, her 104 T620.13-29. 105 T789.7-14. -- 45 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 44 disappointment at Vincent’s decision does not lead to a conclusion that the representations were not made. 195 The company submits that I should find that the representations were not made because Vincent’s evidence is not corroborated by anyone except Julie. This submission ignores the fact that Denis’ evidence is corroborated by no-one except Mary. Given the findings of credibility that I have made, the lack of corroboration of Vincent’s evidence is not a reason in itself to reject it. 196 The company has further submitted that I should take into account the fact that Vincent failed to lead evidence which would have supported his case, such as evidence from his siblings. There are a number of episodes where evidence from one of Vincent’s siblings, other than Michael and Thomas, may have assisted the Court. The first of these is with respect to the Daw Park conversation. This occurred at the house shared by Vincent and Patrick. Patrick was not called to give evidence about whether Denis and Mary were in Adelaide together as described by Vincent and Julie or whether Mary was there alone, as attested to by Mary and Denis. The second is in relation to the family meeting in 2006 (which I will come to), at which Michael, Gerald and Patrick were present. Neither Vincent nor the respondents called any of these potential witnesses (except for Michael); nonetheless, it is difficult to draw any conclusion from this failure. It may be that Denis did not call his other sons because he knew they would not support his case. Likewise, it may be that Vincent did not call them because he knew that they would not support his case. There is, of course, a third possibility: given the division already within the Cash family, it may be that neither Vincent nor Denis wanted to call them and force them to take sides; or perhaps they refused to attend to give evidence as they did not wish to take sides. This, of course, is speculation. It is clear to me that I can criticise neither side for failing to call Gerald and Patrick to give evidence as I cannot know which side they would have supported. No inference can be drawn, which is adverse to any party about the failure to call Vincent’s siblings to give evidence. 197 The company submits that Vincent’s own evidence about the content of the representations has changed over the years, as a result of which it cannot be relied upon. One of the main areas of change, on the company’s case, is the requirement that, should the farm become his, Vincent would make provision for his parents and siblings. In Vincent’s first statement of claim, he pleaded that Denis said words to the effect that the farm would be his subject to his making provision for his siblings. In his amended statement of claim, he said that it was implicit in the representations that Vincent would provide for his parents and siblings. It is the company’s case that it was a recent invention on Vincent’s part that he would be required to provide for his parents and siblings if he inherited the farm. 198 In his cross-examination, Vincent’s evidence was consistently that he could not recall the exact words used by Denis during the Daw Park conversation, but that he had a clear understanding that, because Oakfront was a family farm, if he -- 46 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 45 were to inherit it, he would need to provide for his siblings and parents.106 Vincent gave context to his understanding, when he said: A. Yep. Well, I remember a conversation from back in '95 when Denis was under stress about the subdivision between Maryvale - and we had a family discussion at my then house in Kurralta Park, and the interest of family - do they want the farm to continue - and that it would be a provision for family members. Q. For all family members. A. Mm-hmm.107 199 I understood this to mean that Vincent understood that the Daw Park conversation occurred against the background of earlier discussions about the future of the farm, particularly conversations at a time when the future of the farm was in doubt. I accept Vincent’s evidence that, implicit in the representations was an understanding that whoever inherited the farm would need to provide for Denis and Mary in their retirement and make some provision for their siblings. Finding in relation to the Daw Park conversation 200 I accept that the Daw Park conversation occurred as attested to by Vincent and Julie. I find that Denis was prepared to say whatever was required to entice Vincent home to work on the farm for no wages. I accept that Denis “talked up” the farm, both in terms of its potential and in terms of the lifestyle that it offered a young family. I accept the evidence of Vincent and Julie that Denis likened Julie’s situation to that of his own mother; I consider that it is irrelevant that Denis’ mother may in fact have been older than Julie when she had her first child as I consider that this representation was part and parcel of Denis’ attempt to entice Vincent and Julie to the farm. I further accept that Denis told them that if Vincent returned to the farm he would have a major say in farm operations and would eventually take it over. The work carried out on the Greenhouse by Vincent 201 When Vincent first moved to the farm in early 2004, he lived in the main farmhouse with Denis and Mary, and was joined there by Julie, when she moved to the farm some months later. Vincent began renovating the Greenhouse not long after he returned to the farm, to make it liveable for him and Julie. The materials used for the renovation were paid for in part by the company, but in the main, from Julie’s salary. Vincent says that Denis told him that, if he restored the Greenhouse, it would be his. 202 The Greenhouse had originally been used by Denis and Mary as their home when they were first married. Since they had moved to the main farmhouse, it had been largely unoccupied; other than during shearing when it was occupied by shearers, the Greenhouse had been unoccupied for at least fifteen years and it was 106 T100.13-101.25, T107.3-6, T111.14-17. 107 T112.15-22. -- 47 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 46 in poor condition. Indeed, Vincent describes it as being in an unliveable state when he returned to the farm in 2004.108 Vincent says that, at this time, the Greenhouse had the following problems: • The floorboards were rotted through; • The asbestos cladding was cracked and contained holes; • The windows and door jambs were rotten and affected by termite damage; • Power sockets were detached from the walls; • The roof leaked; • The rainwater tank was unserviceable and the plumbing and septic tank were inadequate; • There was no telephone or mobile phone service.109 203 Vincent commenced work on the Greenhouse before the shearing commenced in 2004. Over time, he restored the floorboards and replaced the joists, painted, installed a new kitchen, replaced the skirtings and doorways, built an additional room and reclad the exterior, replaced the internal walls and ceiling with plasterboard and applied insulation. He also installed new windows and screen doors and an air conditioner. This work was carried out over a number of years. 204 Vincent and Julie moved into the Greenhouse before Christmas 2004, well before the work was completed. 205 Denis’ evidence is that the Greenhouse was fit for habitation in 2004, and had recently been lived in by contract shearers. He says that it needed renovations and he was happy for Vincent to do that work and for him and Julie to live in the Greenhouse, however, it was not intended that it would belong to them.110 He says: I would never have agreed to them claiming the Greenhouse as their home, and I would never have said that they could claim it as their home.111 206 In relation to the condition of the Greenhouse, he denies that it had become dilapidated by 2004; he denies that there was termite damage, that the windows and door jambs were rotten, that the roof leaked and that the power sockets were hanging off the walls.112 When asked to confirm that the Greenhouse had only one bedroom, he replied, somewhat enigmatically, “Depends how you looked at it.”113 108 T266.16. 109 A1, [127] – [133]. 110 R8, [74]. 111 Ibid, [74]. 112 T580.1-21. 113 T579.12. -- 48 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 47 207 Mary’s evidence is: I am not aware of any promises being made to Vincent and Julie about them staying in the Greenhouse. That house was available and they could live there if they wished. Vincent did a lot of work renovating the Greenhouse to make it liveable.114 208 In her cross-examination, she confirmed that she was not aware of Denis having said anything to them about the Greenhouse, although she was aware that Vincent was restoring it to live in.115 209 In evidence were photographs of the Greenhouse, some before, some during and some after the work carried out by Vincent.116 The photographs are not extensive and do not demonstrate the level of dilapidation described by Vincent. Nonetheless, I accept the evidence of Vincent and Julie about the condition of the Greenhouse in 2004 and the amount of work that was required to render it habitable. I also accept that Denis promised them that the Greenhouse would be theirs if they renovated it. I accept Vincent’s statement, that: I did not begrudge spending time and money on the Greenhouse as it was a long-term project and because I expected to receive the Farm in the end. I would not have been there at all but for the belief that I was eventually to take over the Farm.117 Julie 210 Julie’s evidence is that, in 2003, she told Vincent that she was prepared to “give it a go” on the farm for a year.118 She said that she was very serious about Vincent, but early in 2004, she began to get cold feet at the prospect of moving so far away from her family. As a result, she arranged to have her job held for her in Adelaide for a year.119 She moved to the farm in May 2004. 211 When Julie first moved to Oakfront, there were no jobs available at the hospital in Streaky Bay. As a result, she obtained work as a community health nurse. In addition, she worked as a carer for a paraplegic client. She also worked on the farm. 212 At the end of twelve months, Julie decided to stay on the farm, although she was not enjoying work as a community health nurse. In May 2005, her paraplegic client moved to Adelaide, and Julie went with her to assist with appointments and to continue her care. In August 2005, she returned to farm, after Vincent proposed to her. 114 R1-22, [32] – [33]. 115 T802.2-9. 116 Tender Book, Tabs 122 and 123. 117 A1, [140]. 118 A4, [52]. 119 T282.11-14. -- 49 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 48 213 In 2006, Julie commenced working at the hospital in Streaky Bay, gradually increasing to full time. Julie’s salary was their only income, save for some Newstart Allowance received by Vincent between 2007 and 2009. 214 Vincent and Julie married in August 2008. Their first child was born in May 2010 and their second child was born in August 2011. Julie continued to work after each child was born as her salary was supporting the family. When their third child was born in 2013, she had to take some time off work as she had a caesarean section. 215 Julie’s evidence is that Thomas and Jodie began coming to the farm on weekends in 2013. This caused difficulties for Julie, because they left her to look after their children despite her having two children of her own, aged two years and under, and being pregnant with her third child. Her evidence is that Thomas commenced working at the farm on a more permanent basis from 2014. 216 In November 2015, Julie and the children left the Greenhouse and moved to Streaky Bay. She says that they moved because: A. I was feeling very uncomfortable and stressed with the actions on the farm and the treatment of Vincent. I had young children that were starting school and kindy. They had transition sessions in November. I looked into a holiday place just for a month just to get some reprieve …120 217 She spent the next six years living in Streaky Bay with the children, returning to the farm on weekends. She and the children returned to live at the Greenhouse on a permanent basis in 2021, when the lease on their house in Streaky Bay expired. 218 It was put to Julie that she moved to the farm, not because of the promises made to her by Denis, but because she loved Vincent. Her answer to this question is telling. She said: Q. Look, if we just wind the clock back to say 2003 and 2004, the reason you moved to the farm then was because not to put too fine a point on it, but you were in love with Vincent and that's why you went there, for love and affection, not for property, is that fair. A. For security, for our future, Denis promised us a wonderful secure future for our children, eventual children as well. He made me feel as though I had a promise to me and security for us both. Q. You would have gone there any way because you were in love with Vincent, wouldn't you, no matter what. A. Yes, I probably would have gone there, yes. 120 T300.34-301.1. -- 50 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 49 Q. I want to suggest to you that you had a hope that Vincent would ultimately take over the farm but you never had a promise to base that on. What do you say to that. A. That's incorrect. We both did not leave our longstanding jobs, friends and family, on a hope.121 219 In re-examination, this question was broached again: Q. You were asked a hypothetical question which I think I've correct. If Vincent had just decided to go to the farm would you have followed him because you loved him. I think the answer - A. Is yes. Q. - to that hypothetical situation was yes. A. Yes. Q. My question is though if you hadn't believed that a promise had been made to the two of you to have a secure future on the farm would it have been a different conversation between you and Vincent about whether you would have gone at all. A. Yes, it would have.122 220 I find that Julie assisted with farm work from the time that she moved to the farm in 2004. I further accept that it was her income that has, in the main, supported her and Vincent’s family since that time. I accept her evidence that the promises made by Denis were material in her and Vincent’s decision to return to Oakfront. I accept her evidence that they did not leave their jobs, families and friends in Adelaide “on a hope”; rather, they left because firm promises were made. Vincent’s farm work 221 There can be no doubt that, once he returned to the farm, Vincent took on the burden of the farm work. Thomas gave evidence about Vincent’s laziness: A. He was lazy, didn't show up to work until 10 o'clock; that's a known fact in the district, a laughing matter. And Vincent's working ability, he would not listen to anyone else; it was his way or the highway.123 222 This is contrary to Denis’ evidence about Vincent’s work ethic: Q. In fact, in fairness, during that time Vincent showed a great deal of enthusiasm for his work on the farm. A. Yes. Q. Worked long hours. 121 T298.19-36. 122 T302.33-303.7. 123 T408.11-14. -- 51 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 50 A. If it were necessary, yes.124 223 I do not accept Thomas’ evidence about Vincent’s work ethic. I consider that it is an example of the self-serving evidence that Thomas tended to give, in order to improve the respondents’ case. 224 Vincent’s own evidence is that he undertook all facets of the farming business, including doing the books. I have no hesitation in accepting his evidence and that of Julie, to the effect that he worked many hours each week on the farm. Mary’s evidence supports this, in that she agreed that Vincent’s contributions to the farm allowed the farm to meet its “operational and lifestyle costs”.125 She also agreed that she may have said that the farm would not have survived without Vincent and that she probably said, “No one else in the family would have done what Vincent has done.”126 225 The work that Vincent did on the farm is also supported by the notes made by independent advisors at various planning meetings held over the years. I will deal with each of those meetings in due course. 226 As well as carrying out the burden of the manual work on the farm, I find that, from 2004 onwards, Vincent took on an increasing amount of the associated administrative work, and was held out by Denis as the farm manager or owner. I consider that he was undertaking a management role on the farm soon after his return in 2004. Much of the evidence supporting this finding is dealt with in my discussion of the various planning meetings held with independent advisors. I rely on the findings that I make with respect to those meetings to support this finding. 227 This finding is also supported by a share farming agreement with Mr Hull, which was signed on 18 June 2004.127 The agreement is between Oakfront Pastoral Company as owner and Mr Hull as the sharefarmer. The agreement is signed by both Denis and Vincent and underneath each of their names is the word, “Owner”. Thus, by June 2004, Vincent was being held out as having an ownership interest in Oakfront. 228 During the course of the evidence in this matter, serious criticisms were made of Vincent’s ability and competence as a farmer. I consider that these criticisms are largely irrelevant to the fundamental questions to be decided in this action. The legal effect of any promises made by Denis and any actions by Vincent in reliance on those promises will not be affected by Vincent’s competence as a farmer. In any event, given that the evidence consisted of nothing more than Michael and Thomas criticising Vincent, and Vincent providing a response to that criticism, I am unable to make any findings in this regard. 124 T555.9-13. 125 T779.7-11 126 T779.12-19. 127 Tender Book, Tab 14. -- 52 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 51 229 Having said that, it is important to note that the criticisms made by Michael and Thomas, and to a lesser extent, Denis, are internally inconsistent. 230 Denis’ evidence is that, in 2010, Vincent was not managing the farm.128 Vincent was only made a director of the company in 2010 because Denis and Mary were travelling to the Unites States and “needed someone to be able to operate the bank accounts whilst we were away.”129 He further says: Vincent assisted me with administrative tasks on the farm, but he has never been farm manager or ever had management responsibilities…. As I say above, Vincent did undertake management tasks to gain experience, but this does not mean that he was responsible for decision of the farm. The buck stopped with me.130 231 In his oral evidence, Denis denies that Vincent was instrumental in undertaking fencing, clearing land and improving the arable land on the farm.131 In fact, he went on to suggest that he had cleared most of the land in question himself, between 2004 and 2016.132 He further denied that Vincent had managed the farm prior to 2016 and insisted that he had worked only as a farmhand.133 When he resumed working on the farm in 2020, he continued to work as a farmhand.134 232 It is Denis’ clear evidence that Vincent was nothing more than a farmhand. The buck stopped with Denis. 233 Michael, in his evidence, is critical of what he considered to be a lack of development in the farm when he returned for a visit in 2012 and again in 2015. In particular, he is critical of the fencing, the irrigation, and the change to lower micron wool.135 He attributes these failings to Vincent. 234 Thomas is extremely critical of Vincent’s farming practices in his oral evidence. During his evidence, he produced a series of photographs which he says demonstrates the matters about which he complained.136 These photographs had been taken approximately six months earlier and had not been the subject of discovery. Indeed, the first time Vincent and his lawyers saw the photographs was during Thomas’ oral evidence. I place no weight on this evidence. They are undated and their provenance is unclear. They were allegedly taken at a time when Vincent was not working on the farm. Any conclusions that could be drawn from the photographs about Vincent’s farming practices must be speculative at best. I 128 R8, [81]. 129 Ibid, [92]. 130 Ibid, [104]-[105]. 131 T583.26-37. 132 T584.8. 133 T686.12-20, T688.2, T690.26-691.3. 134 T699.23. 135 T623.20-625.17. 136 R2-17. -- 53 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 52 consider that the deployment of the photographs with no notice to Vincent was an unfair ambush. 235 Thomas makes a range of other criticisms, including relating to events in 2015.137 He says that the farm took time to recover from the millennium drought because of “the way it was being run”,138 suggesting that it took longer to recover than it would have if managed properly. He later gives evidence to the effect that Vincent was not managing the farm in 2016; everything had to be run past Denis.139 236 It is clear from the evidence of Denis, Thomas and Michael that they hold Vincent responsible for all of the failings of the farm since at least the end of the millennium drought in 2009. Yet, Denis’ and Thomas’ evidence is consistently that Vincent was not the manager of the farm, and that everything had to be run past Denis. As Denis put it, the buck stopped with Denis. Indeed, we know from the evidence that it was in fact Denis who commenced the program of improving the quality of the wool, which was so roundly criticised by Michael. 237 Not only are the criticisms of Vincent’s farming practices irrelevant to the issues in dispute, they cast doubt on the overall reliability of the evidence of Michael, Denis and Thomas. They are intent on laying at Vincent’s door all of the decisions that they regard as poor, while continuing to maintain that he was nothing but a farmhand. This position is inherently inconsistent. 238 During the course of the trial, both Vincent and Thomas gave evidence about a number of altercations that occurred between them. I consider that these are irrelevant, for the same reason that I consider irrelevant the criticisms of Vincent’s farming practices. Accordingly, I do not deal with them further. Meetings with professional advisors and succession planning activities 239 Between 2004 and 2016, many meetings were held with professional advisors, with respect to succession planning and drought recovery. In addition, there were communications within the Cash family on the question of succession planning and Denis’ and Mary’s retirement. I consider each of the meetings below. Meeting of 13 July 2004 240 Vincent’s evidence was that, shortly after his return to the farm, Denis said that he would make him a director and shareholder of the company. Denis and Vincent went to visit the company’s accountant, Phil Stevens, in Ceduna, on 13 July 2004, and Denis told Mr Stevens that he wanted to appoint Vincent a director and shareholder. Mr Stevens prepared the necessary paperwork for this to occur and sent it Denis; Denis never signed it and the appointments did not occur. Vincent’s evidence was that he did not find out for some years that the appointments had not occurred. He believed that he was carrying out the 137 T408.21-28. 138 T430.14. 139 T470.33-34. -- 54 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 53 responsibilities of a director, such as looking after the company’s financial affairs with his father, and he did not ask his father whether or not he had signed the necessary forms, nor did he ask for proof of his shareholding.140 241 Denis’ evidence-in-chief was that he did not recall any meeting with Mr Stevens in 2004 at which the appointment of Vincent as a director and shareholder of the company was discussed. He said that he never told Vincent that he would transfer his own share to him; in fact, in 2004, the shareholder of the company was Michael, not Denis. He further said that the appointment of any of his children as directors of the company was not an indication that that person would inherit the farm in the future. 242 In his cross examination, Denis denied that he told Vincent, sometime after his return to the farm in March 2004, that he would make him a director and shareholder of the company. His evidence, initially, was that he could not recall visiting the accountant in July 2004. After being shown a number of documents from the tender book (to which I will come shortly), Denis then recalled visiting Mr Stevens with Vincent but has no recollection of how long the meeting lasted or what was discussed. 243 Mr Riggall, who appeared on behalf of Vincent, then asked Denis about a number of other activities that occurred on the same day that they visited the accountant. Those activities were the purchase of a vehicle for the farm and the application for a firearms licence for Vincent. Denis’ evidence was that he remembered those events, but was unable to recall what was discussed at the meeting with Mr Stevens.141 Denis’ responses to questions then became increasingly confused. The following exchange occurred: Q. I suggest to you that on that - firstly, you do recall a meeting at Mr Stevens office. A. Yes. Q. I put it to you that that meeting was for the purpose of carrying out your promise to Vincent to make him a director and shareholder. A. It was obviously discussed. Q. And I suggest, firstly, that it was resolved that Vincent would be appointed as a director of the company. A. It may have been at that meeting. Q. And just to complete that answer, it may have been at that meeting, are you meaning to infer it might also have been at another meeting on a different day. A. Repeat that please. 140 T143.1-145.6. 141 T542.13-24. -- 55 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 54 Q. Are you suggesting that the resolution to appoint Vincent as a director may have occurred on 13 July at Phil Stevens' office, or it may have occurred on another occasion on a different date. A. I'm at a loss as to when these meetings specifically occurred. Q. You've seen this document before in the business records of Oakfront, haven't you. A. Beg your pardon? Q. You've seen this document on p.95 before in the business records of Oakfront. A. I cannot recall.142 244 He then said, “I’ve got no recollection of the ins and outs of the meeting. I just do know that we went to Phil Stevens’ office.”143 245 The documents referred to in this passage of evidence are the following: • Unsigned minutes of a board meeting of the company held on 13 July 2004, at which it was resolved that Vincent be appointed as a director, effective from 13 July 2004, and noting that a written consent had been received. Denis was recorded as the only attendee at that meeting. • Unsigned minutes of a board meeting of the company held on 13 July 2004, at which it was resolved to approve and register an allotment of one ordinary share in the company, issued to Vincent. Denis and Vincent were recorded as the attendees at that meeting. • An unsigned share certificate in the company, showing that Vincent was the holder of one ordinary share numbered 2 of 2 in the company. • An unsigned application for one share in the company from Vincent. • An unsigned consent to act as a director of the company from Vincent. • A “With Compliments” slip from Mr Stevens’ Office with the handwritten words: Dear Denis & Vincent Please find enclosed forms to be signed. These forms are to make Vincent a director & shareholder of Oakfront Pastoral. Any question please contact our office. Please sign where indicated & forward back to our office ASAP. 142 T544.37-T545.25. 143 T546.38 – 547.2. -- 56 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 55 Kind regards, Katrina. • Attached by a paper clip to the “With Compliments” slip were: • An unsigned ASIC form 484 – change to company details, appointing Vincent as a director of the company; • An unsigned ASIC form 484 – change to company details, to record the issue of one share in the company to Vincent; and • An unsigned form to register Vincent as a member of the company. 246 Mary’s evidence of this meeting was that she knew that Vincent had asked for some security on his return to the farm, and while she did not know what sort of security was contemplated, she knew that they went to see Mr Stevens in this regard. Other than that, she knew “very little” about what occurred.144 She then said that she did not actually remember if they went to see Mr Stevens. 247 Mary’s evidence is then to the effect that, on their being shown to her in Court, she recognised the “With Compliments” slip and the documents attached to it and recalled that they were posted to them for Denis to sign. She did not discuss the documents with Denis but told him that they were there to be signed. She did not read the documents but knew that they were about the business and so were for Denis to see to, not her. She was aware that Denis had not signed the documents.145 248 It is difficult to make sense of Mary’s evidence. Despite her statement that she did not actually remember if Denis and Vincent went to see Mr Stevens, I find that her earlier statement is correct, that she knew that they went to see Mr Stevens about giving Vincent some security on his return to the farm. This accords with her evidence that she recognised the documents and knew that they were about the business and were for Denis to sign. 249 I accept Vincent’s account of the meeting with Mr Stevens in July 2004. It is supported by the documents prepared by Mr Stevens and sent to Denis after the meeting. It is inconceivable that Mr Stevens would have prepared minutes of board meetings appointing Vincent a director and issuing an additional share in the company without express instructions to do so from Denis. I consider that this is an example of Denis’ preferring to say that he had forgotten what occurred at the meeting, rather than admit matters that did not now suit his case. I reject Denis’ evidence that he did not tell Vincent that he would make him a director and shareholder. 250 I consider that Denis was not truthful when he told the Court that he could not remember what occurred during the meeting with Mr Stevens. It is inherently unlikely that he would remember purchasing a motor vehicle and applying for a 144 T768.32-769.2. 145 T771.3-772.1. -- 57 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 56 firearms licence, but not remember instructing his accountant to make his son a director and shareholder of the company, when these all occurred on the same day. I reject as irrelevant his evidence that he never told Vincent that he would transfer his own share to Vincent; it is clear that this was never contemplated, and that what was contemplated was an increase in the company’s share capital, with the issue of a new share in Vincent’s name. 251 I am satisfied that, at around the time that Vincent returned to the farm in 2004, Denis told him that he would make him a director and shareholder of the company, and that the purpose of this was to give Vincent some security on his return to the farm. Meeting of March/April 2006 252 In early 2006, Denis called a family meeting at the farm. Vincent’s evidence was that the meeting was called because Michael was visiting with his wife and it was a convenient time to get family members together “to express their wishes for the future of the farm.”146 Present at the meeting were Mr Stevens, Vincent, Denis, Patrick, Gerald, Michael and his wife, Kathy. Vincent’s evidence of what occurred at the meeting was as follows: Q. In 2006 there was a family meeting at Oakfront. A. That's correct. Q. You haven't referenced that in your witness statement, can you tell us about it. A. Yes, there was a meeting called I believe by my father, contacted the then accountant Phil Stevens who came to the homestead in about late March or April. The reason for that timing is that my eldest brother Michael, Michael Cash was visiting from the United States with his wife, so it was a convenient time to get other family members to attend a meeting and express their wishes for the future of the farm. Q. Where did the meeting take place. A. It took place in the dining room of my parents' house. Q. Who was there. A. Phil Stevens chaired the meeting, myself, my father, my brother Patrick, my brother Gerald, my brother Michael and Michael's wife [Kathy]. Q. How long did the meeting last. A. Approximately a little over an hour. Q. What was said. A. Phil just addressed the reason for the meeting. 146 T33.30-37 -- 58 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 57 Q. Which was. A. Which was that dad was looking for the opinions of other family members. Phil made a brief description of the circumstances of the farm at the current state. He advised other people that if they did have an interest to come back home on the farm, they'd have to recognise their contribution from other family members before then. He then asked each individual to give a brief description of what their intent was. Q. And what was that, what happened. A. So I was the first, as we went around the table I was the first to give a response and I clearly stated that it was my intent to take over the farm. Q. What else. A. Patrick, who was sitting next to me, said he was currently still in part of his apprenticeship and did not express an interest in working the farm, but still felt to be knowledge of what was happening on the farm. Gerald likewise expressed that he would like to have knowledge of what was going on on the farm, whilst he was currently not willing to work on the farm. Michael expressed that he had no interest in the farm, although he did want to be compensated for a $20,000 debt that was owing to him and that was it. [Kathy] was taking notes of the meeting.147 253 His evidence was that he told the other attendees of the meeting that it was his intention to take over the farm, although he could not recall if he said that he understood that this would be subject to his making provision for his siblings and parents.148 Later in his evidence, Vincent said that, at the start of the meeting, Mr Stevens said others, such as Vincent’s brothers, had contributed to the farm without recognition, and their contribution would have to be recognised.149 254 Vincent said that the meeting was an opportunity for his siblings to express their views and he was “not there to prepare to start a fight that’s not there.”150 Vincent’s evidence was that Michael said that he did not intend to have a future on the farm, and he asked to have repaid a debt owed to him of $20,000. Vincent did not recall Michael saying at the meeting that he owned the farm as the only share in the company was in his name.151 Vincent was adamant that, at that stage, he believed that he was a director and shareholder of the company, although he had not actually checked to ensure that he was, and he did not mention at the meeting that this was his belief. 255 I note that, despite Vincent’s statement that Kathy was taking notes of the meeting, no notes have been produced. 147 T33.26-34.34. 148 T155.1-14. 149 T867.31-868.6. 150 T155.30-31. 151 T157.17-158.37. -- 59 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 58 256 Denis’ evidence was that he had little or no recollection of this meeting: Q. In any event Michael was present in Streaky Bay in 2006, and you took the occasion to call a family meeting to see what family members wanted to do with the future of the farm. A. Yes, that occurred at home. Q. Correct, and Michael was there together with his wife, wasn't he. A. I doubt that [Kathy] was at the meeting. Q. Gerald was there. A. Maybe. I thought all of the children would have been invited. Q. Everyone was invited but not everyone came. A. I do not know. Q. Part of the purpose of that meeting, only two years after Vincent returned to the farm, was to ascertain whether any of the other children had any, and what, interest in the future operation of the farm. A. Yes. Q. It was the case wasn't it that the only person at the meeting who said that they had any interest in the future of the farm was Vincent. A. I can't recall what any of them said. Q. Vincent said I'm here to stay on the farm for the long haul. A. Yes. Q. He said that, didn't he. A. I don't know. Q. Certainly that was what was happening at the time. A. Maybe.152 257 Michael’s evidence was that he did not recall a lot of what was said at the meeting but did recall certain things because he became upset at them. He said: A. Well, there was questions being asked of what - memory of people were sort of putting up their intentions of what they wanted with the farm, what their intentions were and whether they intended to be involved in it, continued involvement and bearing in mind I was between jobs at that time not that I was intending to move back to Australia but I just finished up work in Sacramento and was about to start work down in Texas. But I do recall that I was asked what my intentions were and whether I had any interest in the farm and I said well, yes, I do, I own Oakfront 152 T555.36-556.27 -- 60 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 59 Pastoral Company or something to that effect and I was told 'Well, no, no, that's not the case anymore. That's all changed' and I'm not sure where I went after that and probably said something like 'Well, hard to believe that I no longer own a company but without my knowledge' but I just remember being very upset from that point. It sort of got me ready to - I was sort of waiting back on the farm, waiting on when this new job will be starting in Texas and I sort of made my mind up from that meeting that it was just the same, there's controversy and I was upset from it and so Kathy and I, my wife, decided to move on. But I do remember being sort of shot down at that meeting and the fact that I owned Oakfront Pastoral Company. Q. First of all do you recall whether anything was actually resolved at that meeting. A. No. It didn't end well partly because of that from memory. Nothing was resolved as far as I can remember. Q. Do you recall anything. Who was it that said that you didn't own Oakfront Pastoral. A. I think it was the accountant Phil Stevens. He said something to the effect 'No, things have changed since then' or something, something to that effect.153 258 Later in his evidence, he gave the following account of the meeting: Q. Phil Stevens asked everyone what they thought about the farm moving forward. A. I believe so. As I said, it's a long time ago. I don't remember the exact things, the exact format of the meeting, I just remember being upset. Q. Can I suggest that by that time Vincent had been working on the farm without wages for a couple of years. A. That's your suggestion, not mine. Q. Do you recall that. A. I wouldn't. I have no knowledge of it. Q. The farm was dry at that time, 2006. A. I don't recall. Q. It was during the millennium drought. Do you remember that. A. I wasn't in Australia for the millennium drought. I don't know. Q. Of all the people present at the meeting, the only one who put his hand up to say that he wanted to continue on the farm was Vincent. A. No. As I said, I made it clear that I had interest in the farm. Q. You didn't say 'I'm interested in returning to the farm', did you. 153 T622.4-37. -- 61 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 60 A. I don't recall what I said at the meeting. I do recall that I got upset because I said 'I'm the owner of Oakfront Pastoral Company, and that was just knocked down. Q. Certainly by the end of the meeting your state of mind was that you weren't coming back to the farm. A. No, that's not my state of mind at all.154 259 In relation to the meeting in 2006, I accept Vincent’s account of what occurred. Denis has no recollection of what occurred and Michael’s recollection was very much affected by his own feelings of being upset when he was advised that he did not own Oakfront. I accept Vincent’s evidence that he told the meeting that he intended to take over the farm, and that he did not talk about the promises that had been made to him by Denis, because he did not wish to “pick a fight” with his siblings if he did not need to. The 2008 meeting 260 In February 2008, Denis, Mary and Vincent met with Evelyn Poole, of Rural Solutions SA, to discuss succession planning and government subsidies for the farm. Following on from this discussion, Ms Poole prepared a business plan.155 In her plan, she records that the information it contained was provided by Denis and Mary. 261 Ms Poole’s business plan contained the following information: • The principals of the business were Denis and Mary, and Michael was involved in the trading entity. • All of Denis’ and Mary’s nine children, apart from Vincent, were employed and lived off-farm away from the district. There was no intention for any of them to return to the farm. • Denis shared the management and operations of the business with Vincent. • Vincent shared the management and operations of the business and did the bookkeeping. • Vincent was directly involved in property and business management activities and was reliant on the business for income. • Other than engaging contract shearers, Denis and Vincent undertook all of the activities on the farm. • Vincent had assumed responsibility for financial management of the property with joint decision making with Denis and Mary. 154 T635.23-636.15. 155 Tender Book, Tab 26. -- 62 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 61 • The business’s current accountant was not meeting the needs of the business and another accountant should be retained. • “There is a strong open line of communication between family members. As Denis and Mary are approaching retirement, it is important that preparation for this both financially and with respect to management of the property occurs.” • “Vincent has returned to the farm and is actively involved in management and operational activities and decision-making. It is the expressed intention that Vincent continues to assume increased responsibility within the enterprise.” • “Included in the decision-making process will need to be a frank family discussion about Vincent’s role and responsibilities on the farm on behalf of the Trust.” • “Denis and Mary have a desire to remain involved in the family business as health permits but are approaching retirement, or at least a time of reduced physical input into the operational activities.” • “It is important that advice is obtained from a specialist in preparation for succession planning and retirement, to ensure that Denis and Mary are financially secure without impacting severely on the viability of the enterprise…” • “It was indicated that Denis and Mary were considering retirement in 5 years. Given this it is sensible to commence succession planning with the lead-time involved. Consideration should be given as to whether: • The owners will attempt to pass on the business and property to children or other family members; • The owners wish to consider the sale of the business to external third parties; • There are sufficient funds available to fund the owner’s retirement.” 262 Vincent’s evidence was that this plan was prepared on the basis that Denis told Ms Poole that he and Mary were approaching retirement and none of their children, apart from Vincent, intended to return to the farm. He said that Denis told Ms Poole that Vincent would take over the farm. On questioning by Mr Duggan as to whether Denis used the word “inherit”, Vincent became somewhat confused: Q. I'm talking about the specific word inherit. Did he use the word inherit. A. Inherit was used in the conversation. I'm not sure that it particularly come from Denis. -- 63 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 62 Q. Who did it come from. A. We were there with a rural counsellor who was producing the business plan in 2008, and he stated in his expectations - I realise you're trying to get the word inherit, but what I'm saying is - his expectations were that I would eventually take over the farm, and it's my expectation that that was inherit. Q. So he didn't say the word inherit. Is that what you're saying. A. In the conversation, the conversation of inherit was mentioned. Q. You understand there's a different between what you understood he was saying and whether he used the specific word inherit. Do you understand the difference. A. Yes. Q. Did he use the word 'inherit'. A. Well, yes he did. Q. I thought you said he said it was 'Take over the farm'. A. He expressed the expectation that I would take over the farm. Q. But did he use the word 'inherit'. A. He - Q. Do you remember now. A. Yes, I do. Q. Did he say 'Vincent, you will inherit the property'. A. He gave directions to Evelyn Poole in 2008. Q. That's not an answer to my question. Do you want me to repeat it. A. You're asking if he directly said that I would take over inheritance, no? Q. No, well the question is whether he used the word 'inherit' - 'Vincent, you will inherit the farm'. I'm talking about the word 'inherit' or 'inherited'. Either way, did he use the word 'inherit' or 'inherited' to you about you inheriting the land. A. That's - not in a direct term. As I stated he has expressed that I would take over management of the farm. Q. So, no, is the answer to my question. He did not use that word, is that right. I have to be clear about this. A. Yep. Q. Did he use the word 'inherit', that you would inherit the land. A. Yes, he did. In conversation with Evelyn Poole he said I would take over the farm which was to inherit. -- 64 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 63 Q. So, that's his sentence. 'You will take over the farm which is to inherit'. A. No, take over management of the farm which is to inherit. Q. That's what he said. Did he say the words 'Which is to inherit'. A. Well, I believe so. Q. So your evidence now, sitting in the box, is he said to Evelyn Poole 'He will take over the farm which is to inherit'. A. No, what he said was - in conversation with Evelyn Poole was in taking over the management of the farm would be to inherit. Q. You're just making that up in the witness box now, aren't you. A. No, I'm not.156 263 I understood this to mean that, during the course of the discussion with Ms Poole, the word “inherit’ was used. In the context of a discussion about who would inherit the farm, Denis said that Vincent would take over management of the farm. Whether or not Denis himself used the word “inherit”, his statement that Vincent would take over the management of the farm was made in the context of a discussion about inheritance of the farm. 264 Vincent’s evidence was that he found out around that time that he had not been made a director and shareholder of the company, which he felt to be a betrayal by his father. His father would not “commit to his promise”;157 the day-to-day work and decision making, however, showed Vincent taking on increasing responsibility for the farm.158 265 Denis’ evidence in relation to the meeting with and business plan prepared by Ms Poole was somewhat dismissive. In his witness statement, he said no more than that he recalled meeting with her, having been referred by rural financial counsellors. She prepared a plan but nothing was done in response to it.159 266 In his cross-examination, Denis denied that he told Ms Poole that he was approaching retirement and was making plans for his retirement. He also said that he doubted that he was considering the appointment of a future director and secretary for the company and trust appointor.160 Later in his cross-examination, he gave the following evidence: Q. We've been through this, but in 2008 you sat around the table with Evelyn Poole and you told her that the plan was for Vincent to take over the management of the farm. 156 T41.16-43.9. 157 T164.20-21. 158 T164.34-36. 159 R8, [79]. 160 T567.4-16. -- 65 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 64 A. Evelyn Poole's plan was never discussed. Q. Let me just understand that answer because I think it's different from what you told me on Friday. Was there a meeting with Evelyn Poole in February 2008 prior to her 2008 business plan. A. I would suggest that Evelyn Poole's visit was prior to the plan to profit. Q. And wasn't she told in 2008 that the plan was for you and Mary to move into retirement and for Vincent to take over the management of the farm. A. I previously just said that Evelyn Poole's plan was never put into practice. Q. Not quite my question. My question is what happened at the meeting. I'm suggesting to you that at the meeting Evelyn Poole was told by yourself, Mary, Vincent and Julie that the plan was you would move towards retirement and Vincent would take over the management of the farm. A. That may have been Evelyn Poole's plan. Q. I'll try again. What I'm putting to you is that at the meeting Evelyn Poole was told something, and what she was told was that you and Mary would move into retirement and Vincent would take over the management of the farm. A. Never heard of that before. Q. So are you suggesting that that wasn't said at the meeting with Evelyn Poole. A. I said that Evelyn Poole had a plan that she was promoting. It was never taken up. Q. My question again, if I can; are you suggesting that it was never said to Evelyn Poole that your plan - your plan - was to move towards retirement and for Vincent to take over the management of the farm. OBJECTION: MR DUGGAN OBJECTS MR DUGGAN: This is the third time we've come back and his evidence was 'I've never heard of that'. My submission is he has actually answered the question. HER HONOUR: I actually think it's fair to ask it again. The answers have been quite equivocal and somewhat contradictory and I think it's fair to follow it up. Q. Are you suggesting that at the meeting with Evelyn Poole prior to her business plan you and Mary and Vincent and Julie did not say words to Evelyn Poole to the effect that your plan was to move towards retirement and allow Vincent to take over the management of the farm. A. Evelyn Poole came to our home with her laptop computer - I'd never seen one before - with her plan. To my knowledge it was her plan. I never said I was to retire off the farm and Vincent come on. I have never said that. Q. Are you saying you never said to Evelyn Poole that your plan was for Vincent to increasingly take over the management of the farm. -- 66 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 65 A. That was Evelyn Poole's plan. Q. And are you now suggesting that you never suggesting to Vincent that as you moved towards retirement he would take over increasingly the management of the farm. A. I never ever said that.161 267 Denis distanced himself completely from the business plan prepared by Ms Poole: it was a plan devised by Ms Poole which was not put into effect. 268 Mary’s evidence was that she recalled meeting with Ms Poole, and that it was “a disaster”,162 although why she regarded it as a disaster was never explained. Ms Poole prepared a plan but nothing was ever done to implement it. In cross-examination, Mary was a little more forthcoming and said that the meeting with Ms Poole went all day, with Ms Poole taking notes of the information given to her. She said that the information contained in the report was the information given to Ms Poole by Denis, Vincent or her and that it was correct. 269 I accept the evidence of Vincent that Denis and Mary told Ms Poole that they were approaching retirement and that none of their children apart from Vincent intended to return to the farm. This is supported by the contents of the plan itself, and by Mary’s evidence that the information in the plan was given by Denis, Mary and Vincent, and was correct. I reject Denis’ evidence that he did not tell Ms Poole that he was planning for retirement. I also reject the implication in his evidence that he was not involved in the development of the plan with Ms Poole; while he sought to give the impression that the plan was nothing to do with him, I reject this. 270 I conclude that, in early 2008, Vincent was undertaking a management role in the farm activities and was being given increasing responsibility in decision making and management. Denis and Mary were concerned to plan for a future in which they would not actively work on the farm. Their belief in 2008 was that none of their children other than Vincent intended to return to farm. 271 Vincent said that, after receiving Ms Poole’s business plan, he and Denis retained a new accountant, Troy Doudle at CBAS. They met with Mr Doudle in Port Lincoln and Denis told him that Vincent was taking over responsibility.163 No one else gave evidence about this meeting. I have no reason to doubt that it occurred, given that it is in line with the recommendations made by Ms Poole notwithstanding Denis’ assertion that her plan was never acted upon. I further have no reason to doubt that Denis told Mr Doudle that Vincent was taking over responsibility as this is consistent with Ms Poole’s statement in her report, that Vincent had been taking on an increasing role in the management of the farm. 161 T673.20-675.8. 162 R1-22, [35]. 163 A1, [198]. -- 67 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 66 2010 Business Review with Bart Dessart 272 A further report was prepared by Bart Dessart, also of Rural Solutions SA, in March 2010. Several different versions of this report appear in the tender book. One (at Tab 29) appears to be a template document with handwritten information in the various fields. Vincent’s evidence was that the handwriting was neither his nor his father’s and as a result he believed that it was Mr Dessart’s handwriting. 273 Two other copies of the report appeared in the tender book. The first is the report, dated 18 March 2010 (at Tab 28). The second (at Tab 38) is identical to the document at Tab 28, but is accompanied by an email, dated 16 June 2010, from Mr Dessart to Vincent, which reads: Hi Vinnie, You should be getting some final hard copies of the plan via our main office in Adelaide. In the meantime I’ve attached the e version. At some point in the new financial year we can have a tinker with some wool data to see how that particular part of the business is tracking. It would be good to trace the causes of the income decline over the 08 and 09 years to get an idea about how much might be seasonal effect, how much is market effect and how much is change you can influence with management choices. Hope its (sic) all going well with the young ‘un. Bart Dessart Senior Consultant 274 Mr Dessart’s plan noted the following: • The succession plan outlined by Ms Poole had not progressed as far as intended. “This should be given a high priority given the clear intent of Denis and Mary to pass responsibility for the business to Vincent.” • Denis and Mary have had discussions with Centrelink to obtain advice about receiving the pension. • Land and asset ownership should be reviewed as part of the succession plan for company directorship to be passed on to Vincent. • The farm was concentrating its resources on livestock, as it was a more reliable income source than cropping. Additional income was being generated through the lease of 3,000 acres of arable land and through agisting stock. • Ongoing reduction in micron is paying a dividend. It was recommended that specialist advice be sought on ways to decrease the micron of the wool clip in a cost-effective way. -- 68 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 67 • The financial needs of Denis and Mary in retirement were unclear. 275 Vincent said that he, Denis and Mary met with Mr Dessart at the farmhouse in early 2010. By this time, Denis considered that he was semi-retired and was doing less of the physical work required on the farm. He and Mary were trying to obtain the aged pension. At the meeting with Mr Dessart, Denis told him that Vincent was suitable to take over the farm. 276 Vincent was adamant that Denis and Mary were at the meeting with Mr Dessart, which lasted around two to two and a half hours and that Denis was involved in the discussion. Mr Dessart had emailed the final report to Vincent because Vincent had provided further documents to him by email after the meeting. The hard copy of the report was sent by post to the company. 277 Denis, in his evidence in chief, said that he was unable to recall meeting with Mr Dessart in 2010.164 In his cross-examination, he conceded that he did meet with Mr Dessart at the farmhouse but did not recall sitting down with him or having any discussion with him. His recollection was that the meeting with Mr Dessart lasted “no length of time at all”.165 He denied that, in 2010, he intended to pass responsibility for the business to Vincent, or that he had any intention of retiring.166 278 Mary has no recollection of meeting with Mr Dessart and she did not recognise his report. 279 I accept Vincent’s evidence about the meeting with Mr Dessart and the preparation of his report. I find that Denis was involved in the discussion with Mr Dessart. This is consistent with the wording of the report, which indicates that information was provided by both Denis and Vincent.167 It is also consistent with the fact that, while the copy of the report attached to the email was discovered by Vincent, the other two copies of the report which appeared in the tender book were discovered by the respondents, which supports the contention that Mr Dessart sent the report to Denis as one of the people involved in its preparation. I accept Vincent’s evidence that Denis told Mr Dessart that Vincent was suitable to take over the farm, and that Denis discussed with Mr Dessart making Vincent a director of the company as part of the succession plan. I further accept, on the basis of Mr Dessart’s report, that Denis said that it was his clear intent that responsibility for the business be passed to Vincent. Meeting in August 2011 280 Vincent’s evidence was that, in August 2011, a rural advisor, Paula Kelly arranged for Mark Scanlon, a specialist in succession planning to meet with 164 R8, [80]. 165 T562.26. 166 T586.3-20. 167 See, for example, p7 of his report (p 327 of the tender book). -- 69 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 68 Vincent, Julie, Denis and Mary. He met privately with Vincent and Julie, and also with Denis and Mary. Vincent said that nothing eventuated from this meeting. 281 Julie also gave evidence about this meeting. Her evidence was that Vincent told Mr Scanlon that his understanding was that he would receive the farm, but would look after his parents and make provision for his siblings. Nothing was agreed at this meeting. 282 Neither Denis nor Mary gave evidence about this meeting. 283 I accept that this meeting occurred. I am unable to reach any conclusion about what was discussed at this meeting as there is insufficient evidence to allow any findings to be made, save that I accept that Vincent told Mr Scanlon that he understood that he was to receive the farm. I am unable to conclude that this statement was made in the presence of Denis or Mary. September 2012 - Family letter 284 In September 2012, Denis wrote a letter to all of his children, seeking their views on the future of Oakfront. The letter reads: The time has come for us to make plans for the future of Oakfront. To help us make some decisions we are asking for your thoughts and opinions regarding your expectations for the future of the farm. Vincent has been working at home now for several years and is very involved in the place. He has not been paid wages in that time and has no ownership to the property. Mum or I have never had wages either. Mum and I want you to have the opportunity to have some input in helping us make some decisions. Each one of you will have a copy of this letter and Mum and I will keep your responses confidential. We would like to receive your responses in writing by the end of September 2012.168 285 Vincent, Thomas, Gerald and Angela replied. Vincent’s response (which is undated) reads: Thank you for allowing each of us to express our opinions into the future of Oakfront. It is my wish to continue working on the farm and manage its operations. I am hoping that the others have the understanding that this would be the case. If it is to be granted that I shall take on the farm’s responsibilities, it is my opinion that consideration needs to be taken into the takeover cost of the farm, and/or what is owed to you or the others. I feel my contribution to the farm (since 2004) needs to be compensated (wages, super etc), as it has exhausted all savings and earnings from Julie and myself. I feel any capital improvements I have contributed to should also be considered. 168 Tender Book, Tab 45. -- 70 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 69 Although the rest of the family may not be involved in the farm’s financial operations, they need to recognise the hardship of keeping it viable and not just its value. The ageing machinery and its upkeep also limit the operating capacity of the farm. And it is not my intention to battle through the next thirty plus years of my life to pay off the others. If other family members wish to be included in the operation of the farm, now or in the future, the decision should be made now by yourselves as to whether the option is viable. As the farm may be seen to have a lot of potential, it is my opinion that it is not currently viable to support another family. If I was to inherit the farm, the decision should be made now about what percentage/proportion the others are entitled to, in the event of forced sale, or my death. I understand that you both wish to remain living on the farm. May I suggest that someone be appointed power of attorney in regards to your health and care in the future? The Murphy’s Haystacks have always been a unique feature to the farm, and offer the potential to support you in your retirement. Julie and I also realise that the Murphy’s Haystacks shall be vital in supporting our own retirements. I believe if a takeover cost can be decided, a settlement can be achieved where some form of superannuation or retirement fund/plan can support your needs. This, of course, shall need the assistance of professional and legal advice. I hope these decisions can be made quickly and fairly, without causing too much stress, as my own family needs to secure its finances and future too.169 286 Angela’s response is telling.170 She says (in part): I acknowledge that Vincent has worked the farm for many years now which has seemed to work well. I acknowledge that Vincent has worked hard and needs to be rewarded for his efforts. However, at the same time I believe it needs to be acknowledged that Vincent will inherit a very large and ongoing business enterprise. If there is to be any financial payment between the remaining siblings, I believe it is important that everyone is treated equally and with complete fairness. 287 This response suggests that it was well-known and accepted within the family that Vincent will inherit Oakfront and that the only outstanding question is the inheritance that will be available for his siblings. 288 Gerald’s response, on the other hand, makes no suggestion that the question of succession is a fait accompli.171 His response appears to envisage the farm remaining a broader family enterprise and seems to be based on the premise that the benefits that Vincent had received as a result of living and working on Oakfront were sufficient compensation for the work that he had done. 169 Tender Book Tab 47. 170 Tender Book, Tab 44. 171 Tender Book, Tab 48. -- 71 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 70 289 On 19 March 2013, Thomas sent the following response: To whom it may concern In the email sent about oakfront (sic), I would like to see that oakfront keeps developing in the best way it can. I would like to involve myself by moving back to oakfront and contribute my work ethics in keeping the farm up and running and reducing the work load on others. I hope this letter will help you decide what will become of oakfront.172 290 Vincent’s evidence is that he was not told about the “feedback” that Denis received from any of his siblings.173 I infer from this that Denis did not tell Vincent that Thomas had expressed the intention to return to work on the farm. 291 In cross-examination, Vincent said that he did not in his letter raise the fact that Denis had already promised him the farm, because at that time, no other sibling had expressed any wish to return to the farm. He did not wish “to pick a fight if there’s not even a fight there”.174 292 Vincent’s evidence about what he meant by compensation for his contribution to the farm was somewhat confused. He rejected the suggestion that the compensation that he sought was to be benchmarked against the wages that he had foregone over the years; however, foregone wages was a factor that needed to be taken into consideration when determining “compensation”. 175 When talking about a “takeover cost” for the farm, he explained that this was the amount that would be required to pay out his parents and siblings.176 The following exchange then occurred between Vincent and Mr Duggan: Q. What I want to suggest to you is that at that stage your concern, and I've already indicated it's entirely legitimate - your concern is that you should be compensated for the work that you've done on the farm and that's how you were pitching it to your parents. A. No, I'm saying that my wages, I guess my foregone wages have - the fact that I've foregone my wages and super to be able to assist them on the farm. Q. You say compensation, you didn't have in mind wages. Is that right. A. I'm not saying that I didn't have in mind, wages. Q. Well, why are you referring to wages in this sense. If you think that the farm is going to be yours and the deal is that you can work on the farm and that you get the farm in return, why are you making reference to wages at all. 172 Tender Book, Tab 51. 173 A1, [236]. 174 T43.19-27. 175 T44.17-20. 176 T45.7-21. -- 72 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 71 A. I need some form of money to live on. At that stage my wife had been providing all my living expenses. We had, by that stage, our second child. Q. But you were calculating a figure, weren't you, of compensation to compensate you for the past in relation to your wages. A. I made no mention of a figure. Q. That's not quite the question though. That's something that you were looking at, was compensating you for wages and you went about trying to work out what a figure might look like, didn't you. A. I did not.177 293 My understanding of Vincent’s evidence is that he did not seek to offset an amount for his foregone wages against any takeover cost of the farm. To take over the farm, he believed that he needed to ensure that his parents were provided for and that his siblings received some form of inheritance. The amount necessary for this was not referrable to the wages that he had foregone over the years. Rather, he sought to remind his parents and siblings of the sacrifices that he and his family had made to return to work on the farm. He was recommitting to his side of the promise – that is, to stay and work on the farm and one day take it over, while ensuring provision is made for his parents and siblings. 294 In his evidence in chief, Denis provided the following summaries of the four responses that were received, with his own thoughts on those views: Vincent wrote back with his views, including on what should happen “[i]f I was to inherit the farm. At that point, there had been no indication from Vincent that he had an expectation that the farm should be his in the future. In Thomas’ response, he indicated that he would like to move back to the farm and contribute to keeping the farm up and running and reducing the workload on others. At that time, Thomas was working on a boat at Port Lincoln. When he had days off, he would come back to the farm to work. He wanted to be involved on the farm. In Gerald’s response, he explained that he had thought previously that the farm would be part of his future. He wanted Oakfront to remain a welcoming location for family members who are not involved in the business. He also explained his concerns about the children being treated unequally by way of inheritances, and noted that the children who had left the farm have had to (or will have to) work to service mortgages. In Angela’s response, she queried whether any other family members might want to work on the farm beside Vincent. She expressed concern about what would happen if Vincent were in control of the farm and sold it, in relation to whether the other children would receive proceeds of sale. The issues raised by the children go to my own views that I had at that time about the future of the farm. I had always wanted the farm to be welcoming to any of the children. If any child has ever sought to return to the farm, I would try to provide an opportunity for them 177 T45.25-46.14. -- 73 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 72 to work on the farm. Any child who does work on the farm should be appropriately rewarded for their work. The children should then otherwise receive equally from the farm by way of inheritance in due course, as that would be just.178 (footnotes omitted) 295 In his cross-examination, Denis described Vincent’s response as “a selfish letter.”179 He accepted that, at the time of the succession planning meetings in 2008 and 2010, none of his other children had suggested that they might wish to return to work on the farm. He further accepted that the approach of Vincent was conciliatory in that he acknowledged that he would need to provide for his parents and siblings if he were to take over the farm and that it was reasonable of Vincent to ask that his contributions to the farm should be taken into consideration.180 296 The following exchange then occurred: Q. Do you read on, 'If I was to inherit the farm, the decision should be made now about what percentage or proportion the others are entitled to in the event of a forced sale or my death'. Do you understand what that means. A. No. Q. What it means I suggest is that in succession claims you need to guard against the possibility that a farming son will inherit the farm and then sell it the following day and go and live comfortably somewhere. A. Well, yes they can. Q. So Vincent was inviting you to say 'Let's deal with that issue, I'm absolutely putting it on the table. I am saying what we should talk about what people get in the event that I don't continue with the farm but sell it', he was putting that on the table. A. Maybe but it was never considered that I was going to have Vincent as the owner of the property.181 297 It is clear that Denis disavowed any intention for Vincent to inherit the farm. 298 Denis conceded that he did not respond to Vincent’s letter, except in a “roundabout manner”.182 He went on to say: A. In response, without letter, Vincent has been offered on numerous occasions, compensation for his time and energy. When I told Vincent that Thomas was coming home, his response was 'Thomas is not coming home until I have been compensated for my energy and work'.183 178 R8, [116] – [121]. 179 T589.4. 180 T589.20-590.11. 181 T591.11-28. 182 T592.37. 183 T593.16-20. -- 74 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 73 299 Mary’s evidence was that, at that time, she had not given any thought as to whom the farm should go. She had not heard Vincent say that the farm should be his.184 300 In cross-examination, Mary said that she understood that Vincent believed that, if he were to inherit the farm, he would have an obligation to look after Denis and Mary when they retired, and to make provision for his siblings.185 301 Thomas said that the contents of his letter were consistent with what he had had been telling his parents: he said that there were negotiations with Denis and Mary about his return to the farm.186 He said: By about March 2013 negotiations had started between me, my father, mother and certain professional advisors about me coming home to work on the farm. The professional advisors included Troy Doudle, the family accountant, and Paula Kelly of Rural Solutions SA. I understood these professional advisors were assisting my parents in succession planning.187 302 In his cross-examination, Thomas makes no mention of having held negotiations with his parents and professional advisors before or at the time that he prepared his letter. He said: A. I think I stated that I was looking to return to the farm. That states in my witness statement. Q. I know that it says it in your witness statement, but what I'm suggesting is you weren't saying that to anyone as at the end of 2012, were you. A. I was saying to one of my siblings, and my father and my mother.188 303 It is clear that this correspondence did nothing to assist in succession planning for Oakfront. Denis did not discuss with Thomas or Vincent what the other had said; in particular, he did not tell Vincent that Thomas wished to move back to the farm to work. I reject Thomas’ evidence that he had, prior to his sending his letter in March 2013, commenced negotiations with Denis, Mary and professional advisors about his return to the farm. This is not supported by the evidence of any other witness, including Denis or Mary, nor did he repeat this assertion in his cross-examination. I accept that he may have told Denis and Mary, in 2012, that he wanted to return to the farm. 304 I accept Vincent’s evidence that he did not state in his letter that he had been promised the farm because he did not wish to start an unnecessary fight. At that time, he was not aware that any of his siblings had any interest in returning to the farm; so as far as he was aware, his inheritance of the farm, subject to provision 184 R1-22, [52]. 185 T782.18-36. 186 R1-15, [16]. 187 R1-15, [14]. 188 T426.2-8. -- 75 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 74 being made for his siblings’ inheritance, was not an issue. Denis’ failure to inform Vincent of Thomas’ intentions denied Vincent the opportunity to confront Denis at that time about the promises he had made to induce Vincent to return to the farm. 305 I have formed the view that the letter that Vincent wrote in 2012 was very much in keeping with the personality that he demonstrated in the witness box. It is understated and undemanding. It is respectful of his parents and acknowledges their legal rights and ongoing contribution to Oakfront. It does not take for granted any entitlement. 306 Vincent’s letter is similar in its wording and tone to those of Angela and Gerald. All three letters express gratitude to Denis and Mary for giving them the opportunity to express their views. Each expresses their views in a somewhat circumspect manner. Each acknowledges the contribution of others and their possible rights and expectations. Each child addresses their parents in a careful and respectful way. I consider that this is the way in which the members of the Cash family communicate with each other: in an understated, undemanding and respectful way. I consider that the way that Vincent has worded his letter is not evidence that the representations did not occur, but is evidence of the way that the family communicates with each other. 307 While this may have been an opportunity for Vincent to set out the promises made by Denis in 2003, I consider that it is entirely in keeping with Vincent’s character that he did not do so. At that time, he did not consider that there was a viable alternative to himself to inherit the farm: no one else had put in the years of work on the farm that he had, nor had anyone expressed any interest in returning to the farm to work. Further, I consider that Angela’s response indicates that, amongst some members of the family at least, it was taken as a given in September 2012, that Vincent was to inherit the farm. Meeting of 17 December 2012 308 Vincent said that another succession planning meeting was held with Paula Kelly and his parents on 17 December 2012, but no resolution was reached at this meeting. I note that no notes were produced of this meeting, nor did any other witness give evidence about it. 309 As no evidence was given about what was discussed at this meeting, I am unable to draw any conclusions about what was said by any of the parties. Meeting on 21 March 2014 310 On 21 March 2014, a meeting was held at Oakfront with Paula Kelly, Denis, Mary, Vincent and Julie. Thomas attended for the last half hour of the meeting. The meeting was to prepare for a later meeting with the accountant, Mr Doudle, to -- 76 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 75 be held in April 2014. Ms Kelly made notes of the meeting.189 The salient notes made by her are: • Denis expressed the view that more labour was required on the farm; Vincent’s view was more tentative, in that he believed it could perhaps use more. • Denis advised that Thomas wanted to return to the farm to work. He said that Thomas would continue prawn fishing and would work on the farm between trips out on the boat with no drawings from the farm initially. • Vincent and Julie were currently receiving a Centrelink payment of $900 per fortnight. The farm paid for their electricity, telephone, fuel and vehicle repairs. They could not afford private health insurance or superannuation. • Denis and Mary expressed their gratitude to Vincent for his hard work to get them through the tough times. • Vincent was asked how he wished to have his past work on the farm acknowledged. He said that he was not sure, but discussed the possibility of increasing ownership in the business or ownership of assets. • There was an acknowledgement that the farm was not able to pay a cash sum to Vincent. • When Thomas joined the meeting, he said that he wanted to return to the farm. 311 In evidence, Vincent said he told the meeting that the farm could not support two families; Denis disagreed with this.190 Vincent denied saying that he was not sure what he wanted in recognition of his work. In relation to the ability of the farm to make him a cash payment, he said: Q. Just on a couple of sentences from what I've just read. Same paragraph under the heading 'Vincent', it says towards the margin 'Also discussed the farm's inability to pay cash sum to Vincent'. A. Yes. Q. What was said about that. A. Basically the finances showed that the farm was unable to support me at that time. That is followed by 'Check current land ownership with Troy'.191 312 Denis was clearly confused in his evidence about the timing of various discussions about recognition for the work done by Vincent on the farm. When 189 Tender Book, Tab 55. 190 A1, [261]. 191 T52.1-9. -- 77 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 76 questioned about such discussion during the meeting on 21 March 2014, he conflated this with a discussion which occurred in 2016, following the receipt of a letter from a Mr Orfanos providing an estimate of the wages owed to Vincent for his years of work. After an exchange about the timing of the letter from Mr Orfanos, Denis said: Q. In 2014 you made no proposal at all to Vincent to compensate him or recognise his past contributions to the farm. A. Probably not, but if Vincent had wanted anything it was seen that he got what he wanted. Q. In 2015 you made no suggestion at all that you were prepared to recognise Vincent's contribution or pay him any money for his work on the farm. A. When he said Thomas is not coming home until I am compensated for wages. That is when I tried to agree to his wishes.192 313 Denis’s responses then became somewhat obstructive. The following exchange occurred: Q. I suggest that at the time this meeting occurred in March Vincent wasn't asking you to give him a cheque. He was just looking for recognition for his past services. A. In what way was he asking? Q. If you run down the list and you go to the second page, halfway down 'Vincent'. I'll read the paragraph out to you. 'What does Vincent need or what would he like to see to acknowledge the last 10 years of farm work for little return. Vincent wasn't sure. Discuss what has been paid for by the farm in the past, for example, fuel. Discuss the possibility of increasing ownership in the business or ownership of assets. Also discuss the farm's inability to pay a cash sum to Vincent.' Can I suggest as at March 2014 certainly Vincent was simply asking for recognition for his past contribution. A. In what way? Q. He was just asking for something, for some recognition. A. I suggested it, I offered money. Q. If you have a look at the next line 'Also discussed the farm's inability to pay a cash sum to Vincent.' The farm had no ability to pay money to Vincent, and that was common ground. Do you agree. A. I feel sure that if Vincent wanted compensation and I offered money I would have seen that he got money. Q. Mr Cash, I am fencing with you and I apologise for this, but can I put it as simply and clearly as I can. As at March 2014 not only were you not offering money to Vincent you were telling Vincent the farm can't offer you money. 192 T598.19-29. -- 78 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 77 A. Why would I tell him the farm cannot offer him money if I was going to offer him money. Q. Well you weren't obviously, because you weren't going to offer him money. There was no sign of you offering him money, and Vincent didn't want it. A. Well, what does he want if he doesn't want money.193 314 This exchange has led me to conclude that Denis has no clear recollection of what was discussed at the meeting on 21 March 2014 and that, regardless of his recollection, he was not prepared to answer truthfully the question about whether the farm could in fact afford to make a lump sum payment to Vincent. His refusal to answer questions on this topic and to become argumentative has led me to doubt his credibility in this and other aspects of his testimony relating to the various discussions about promises to Vincent and recognition of his work on the farm. 315 Mary’s evidence was that she had no recollection of this meeting. 316 Thomas’ evidence was that the notes made by Ms Kelly accord with his memory of the part of the meeting that he attended. 317 I conclude that the notes made by Ms Kelly by and large accurately reflect the discussion that was held. I accept that Vincent expressed the view that the farm could not support another family. I accept Vincent’s evidence that he did not say that he was not sure what he wanted by way of recognition. I consider that Ms Kelly’s record that Vincent said he was not sure what he wanted by way of recognition was her interpretation of the fact that various methods of recognition were discussed, including ownership of the business and ownership of the assets. 318 I accept that, at this meeting, Vincent did not assert that Denis had promised him that he would inherit the farm, if he returned to Oakfront in 2004. Meeting on 7 April 2014 319 On 7 April 2014, Denis, Vincent, Julie, Ms Kelly and Mr Doudle met in Port Lincoln. After the meeting, Ms Kelly sent Denis, Mary, Vincent and Julie an email with a summary of what she termed “reminders and suggestions”.194 She wrote: … • A $$ amount needs to be decided upon as recognition per each year of Vincent’s input to date, Centrelink use approximately $43,000 per year when they are calculating foregone wages, most succession planners use between $40,000 and $50,000 as a rough guide per year, bearing in mind that there has to be some agreement here and that Vincent has received some (even if it is minimal) recompense for his years of input to date, these 193 T599.24-600.22. 194 Tender Book, Tab 56. -- 79 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 78 figures are a rough measure only and should be adjusted accordingly and may be in some part dependant (sic) on what the business can afford • There needs to be a meeting between all of you and Thomas to discuss his expectations and to decide how he will be paid for his input …195 320 Vincent said that, during this meeting, he and Denis had a disagreement about the future plans for the farm. Mr Doudle said that the business’s current cash flow budget did not support Denis’ proposals and he outlined an alternative proposal. There was then a long conversation about compensating Vincent for his work on the farm. During this conversation, Denis said that the farm would not have survived without Vincent’s contribution. 321 Vincent said that Denis then said that some of the family members had noted that Vincent had not paid rent for his use of the Greenhouse, to which Vincent replied that none of them would have endured the circumstances in which he and Julie had been living. At this point, Mary said that none of the others “would have done what Vincent had done to support the farm.” 322 Vincent’s evidence was that, in the context of Thomas’ wish to return to the farm, Denis said that he could not deny any member of the family the right to return to the farm. Mr Doudle said that the business did not show an ability to support Thomas and his family.196 323 Vincent’s evidence was that the Centrelink figures referred to in Ms Kelly’s email were not mentioned during the meeting with Mr Doudle, but were figures that she had researched after the meeting.197 324 Julie said that no resolution was reached on the question of farm succession. It was agreed at the meeting that Thomas would need to seek off-farm work in between busy seasons as the farm could not support two families full time.198 325 Denis’ evidence with respect to this meeting was obstructive and unhelpful. When he was questioned about Mr Doudle’s statement that the farm could not support two families, the following exchange occurred: Q. You had a meeting with Troy Doudle about how Thomas might come back to the farm. A. Yes. Q. Troy made an observation which was at on the current figures, the farm simply can't support three families. 195 Ibid. 196 A1, [267]-[276]. 197 T53.21-54.1. 198 A4, [98]. -- 80 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 79 A. Who said? Q. Troy Doudle. A. On what figures? Q. You know what the figures were, you're perfectly familiar with what the figures are for the farm in the years leading up to 2014 because you put it in your witness statement. A. I changed it. My accountant because he was not doing what I asked. I found out later that the information that he was requiring, Vincent was not handing on. Q. Well, I'm suggesting that you know what the figures for the farm - A. Beg yours? Q. I'm suggesting that you knew as of 2014 what the turnover figures for the farm were. A. Repeat that again please? Q. I'm suggesting that you knew in 2014 what the turnover, what the profit for the farm was. A. Probably. Q. You knew that those figures were not enough to support another family. A. I never agreed with those figures.199 326 Denis simply refused to address the question of whether the farm could support another family. 327 Thomas’ only evidence about this meeting is that it was where he learned for the first time that Vincent had not been paid any wages for his work on the farm. 328 I accept Vincent’s evidence of what was discussed at this meeting. In particular, I accept that Mr Doudle told them that he did not believe that the farm was in a financial position to support Thomas and his family. I accept that Denis said that the farm would not have survived without Vincent’s contribution and that Mary said that none of his siblings would have done what Vincent had done to support the farm. June 2014 329 In June 2014, Ms Kelly was on leave, and Russell Jolly was filling in for her at Rural Business Solutions. Mr Jolly held a meeting at Oakfront with Denis, Mary, Vincent and Julie. Mr Jolly had with him a page of notes which summarised the 199 T595.20-596.8. -- 81 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 80 discussion at the meeting with Ms Kelly and Mr Doudle. A copy of these notes was in evidence.200 The notes contained the words: “Any child is welcome home!!” This is a walking disaster if the property cannot support them. I have seen this happen – farmer ended up having to sell the farm.201 330 Vincent said that Mr Jolly first met with all of them, then met separately with Denis and Mary for about an hour. He then met separately with Vincent and Julie.202 331 In cross-examination, Vincent was only asked about the words, “Any child is welcome home”. He accepted that these were words, or equivalent to words, that his father had said on many occasions.203 332 I am unable to draw any conclusion about what occurred at this meeting. It is clear that the notes that Mr Jolly brought with him to the meeting were prepared in advance, as the notes are headed, “From previous meetings”. As a result, I cannot conclude that the notes indicate what topics were discussed at the meeting with Mr Jolly. Meeting 20 August 2014 333 Vincent says that, in August 2014, Ms Kelly arranged for Mary, Denis, Thomas, Jodie, Vincent and Julie to meet with Matt Noonan of Mellor Olsson in Port Lincoln. Mr Noonan spoke to Denis and Mary in private for about two hours, while the others waited in the waiting room. Mr Noonan then told Thomas, Jodie, Vincent and Julie that he had been discussing estate planning and wills with Denis and Mary. He told them that he represented Denis and Mary and that they should obtain their own legal advice. 334 No other evidence was given with respect to this meeting. I accept that it occurred, but otherwise, it takes the matter no further. Meeting of 17 December 2014 335 On 17 December 2014, Denis, Mary, Vincent, Julie, Thomas and Jodie met with Paula Kelly and Judy Wilkinson. The meeting lasted a day and a number of different succession plans were discussed. 336 Ms Kelly made extensive notes of the meeting, which were in evidence.204 They appear to put far greater emphasis on what each participant wanted to achieve at the meeting, rather than on ways to resolve the current conflict between the family members. Importantly, Ms Kelly’s notes record: 200 Tender Book, Tab [57]. 201 Ibid. 202 A1, [283] – [287]. 203 T54.2-22. 204 Tender Book, Tab 61. -- 82 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 81 • Jodie hoped for an opportunity to stay on the farm for the long term, with some security as to their income and some assistance from the farm with their future housing. • Thomas hoped for an understanding about his inclusion in the business and his parents’ retirement and greater clarity about the working roles. He also hoped to improve communications with Vincent. He sought decisions about financial security including the payment of a wage. • Julie sought clarity about what she and Vincent were owed or owned. She also sought an understanding of how the business could afford to pay wages as she did not believe that it was in a position to do so. She sought clarity about Thomas’ return to the farm on the basis that the farm had not been able to pay and support two families and so it was unclear how it would support three families. She believed that they should sort out Vincent’s share or what he was owed first, before another family needed to be provided for. Julie sought formal recognition for Vincent’s contribution to the farm, even though she knew that the farm had no money; she was concerned that, if something happened to Denis and Mary, Vincent’s contribution to the farm would be overlooked. • Vincent sought an understanding of what recognition he would receive for his eleven years of work on the farm. He believed that the farm owed him something and he sought clarity as to what that would be. He also sought further clarity about the family trust; he understood that while each of the children was a beneficiary, they did not own anything. Vincent sought to understand what form a payment to him might take, if there was to be no wage, such as whether there would be a property purchase or transfer. He expressed the view that the past needed to be sorted out before the future could be addressed. He sought an understanding of how the farm could support three families. While there was sufficient work for everyone, there was not enough money to pay everyone and he was concerned that the others at the meeting did not understand the financial position of the farm. He suggested that a trust may not be the best business structure for the farm; the individuals working on the farm needed to know what they were working for. He said that he believed that he had not been consulted about Thomas’ return to the farm, and while he acknowledged that Thomas had a right to come back, he believed that the farm did not have the capacity to pay another person. • Mary said that she hoped for things to be sorted so that the children did not suffer. Those who were working on the farm needed to benefit from it. She was not sure that she wanted to be involved in the decision making as it was too hard. She was also unsure about decisions relating to her own future as it was isolated on the farm. -- 83 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 82 • Denis said that he wanted to resolve some of the problems that had developed, and to use Oakfront’s potential, which would involve borrowing money. The farm should be a welcoming home to all of his children. However, he appeared to acknowledge that Vincent was unwilling to borrow money as he considered that it was a risk for those who were working on the farm for no income, when ultimately the farm would be shared by all nine of the siblings in equal shares. • It appears that there followed a discussion about the possible value of Vincent’s wages over the previous eleven years, and the value of wages in the future. It is not clear from the notes who proposed the figures set out in them or whether any of the participants sought to adopt them. It is clear that Vincent again expressed the view that that the business could not afford to pay two wages of $40,000 per annum, and that Thomas expressed the view that wages going forward would need to be at least $25,000 per annum, plus an amount for utilities, fuel and electricity. • It appears that there was then a discussion about Denis’ and Mary’s wills, and that their estate would be divided between all nine of their children on the basis of their current wills. Denis appears to have said that probably three people would run the trust, those three being “those with the best interests for the property”.205 The notes then contain the following statement: Denis wants the farm to continue being farmed according to the will presently it would be operated by 9.206 337 Attached to the notes is a plan, which sets out a number of different actions that needed to be done, with the time frame in which they were to be completed and who was to undertake them. It is not clear if this plan was prepared in consultation with and with the acquiescence of Denis, Vincent and Thomas, or whether it was prepared by Ms Kelly or Ms Wilkinson after the meeting on the basis of the notes. Included in the plan were the following actions: • Discussion with the accountant about the payment of wages to Vincent and Thomas, including preparing calculations of the amounts required and how Vincent’s years of service were to be acknowledged; • The introduction of weekly planning meetings on the farm between Denis, Vincent and Thomas to discuss the work to be done, and to make joint decisions about how and by whom it was to be done; • Consider how the trust should be dealt with, including whether it was the best structure for the farm and the family, and what should happen to the business when Denis and Mary die. 205 Ibid, p389. 206 Ibid. -- 84 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 83 338 In his evidence, Vincent said that he wanted the others at the meeting to understand what his contribution to the farm had been over the previous eleven years. He said that he considered that it was a “given”207 that he was the obvious person to take on the farm as he was in charge of its operations and there had been no suggestion that those expectations should change. His view was that if he was not to receive a wage for his work in the future, then there needed to be a transfer of property, as well as recognition for his work in the past. He said that his return to Oakfront in 2004 was on the basis of an expectation that this would occur.208 He agreed, however, that there was no agreement at the meeting to this effect. 339 Vincent says that there was a discussion about the payment of wages going forward, and how they would be calculated. This question was asked by Julie of Denis, who did not know. There was also a discussion about payment to Vincent of a sum of money as compensation for his work in the past. Vincent says that he does not recall Denis’ and Mary’s wills being discussed at this meeting and that he did not know, at that time, how they had disposed of their estates. There was no discussion about the division of their estates between their nine children as the focus of the meeting was how the farm would move forward. 340 Vincent conceded that Denis may have suggested that the trust would be run by three people, and that he did not object to that suggestion. He then said that he did not recall the conversation.209 The following exchange then occurred: Q. What I want to suggest is that your dad has never promised you ever that you would be the sole person running the trust in relation to this property. What do you say to that. A. I know my understanding that I was to be a farm manager and take over the farm in much of the manner as what he had run the farm.210 341 Denis’ evidence about this meeting is that he did not recall a discussion about the payment of a wage or some other compensation to Vincent.211 Denis then gave some confused evidence about an offer of the sum of $500,000 to Vincent to compensate him for his past work. He said that this offer was made “up at the shed”,212 but that he could not recall when that conversation occurred in relation to the meeting in December 2014. 342 Denis’ evidence about this meeting was very difficult to follow. He rarely gave a direct answer to any of the questions asked and tended to pursue his own line of thought in his answers. 207 T58.4-9. 208 T58.21-35. 209 T63.2-36. 210 T64.14-20. 211 T603.16-26. 212 T604.1-7. -- 85 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 84 343 Mary’s evidence in relation to this meeting was simply to the effect that the meeting occurred and it was not successful.213 344 It is clear that, by December 2014, there was obvious discontent on the part of Vincent and Julie. They were concerned about their future on the farm in circumstances where they did not believe that the farm was profitable enough to support another family. They were concerned to secure for themselves some form of recognition for the years of work that they had put into Oakfront. Meeting at a shed on the farm, possibly in late 2014 345 Thomas was the first to give evidence of a conversation with Vincent at a shed on the farm when he said that Denis offered to pay Vincent the sum of $500,000 for his past work on the farm: Q. I think the question I put, but maybe I didn't, was in 2014 Denis, your father, never made an offer to recognise Vincent's contribution over the previous 10 years. A. In meetings that I had been in, yes, he had. Q. What offer did he make. A. There was a $400,000 offer and there was a $500,000 offer put forward to Vincent that he stated he wanted. When dad said 'I'll go to the bank and see about it', Vincent said 'No, I've got to pay tax. I need more than that'. Q. So not in 2014 certainly. A. 2014. Q. When. A. We were up the shed. Q. I'm sorry, I'll just stop you there; that conversation did not happen in 2014, did it. A. Yes, it did.214 346 A short time later, Thomas repeated that evidence.215 347 Denis gave his evidence several days after Thomas; he said the following: Q. I said you never suggested that you would pay $500,000 in conversations with Vincent ever. A. That is a lie. Q. I'll bite. Tell me when you had that conversation. 213 R1-22, [56]. 214 T438.20-37. 215 T450.7-22. -- 86 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 85 A. Beg your pardon? Q. When do you say you had that conversation. A. The conversation was up at the shed. Q. When was that. A. My note book didn't record it. Q. What year. Was it before this or after this. A. I do not know. I do know that I offered - when he said he wanted $500,000 that I said I will endeavour to get $500,000 for you. Q. I have to put it to you, that conversation never occurred. A. I beg to - you are accusing me of lying. Q. Yes. A. Well, I am not a liar.216 348 He then went on: Q. Do you say that you propose making a payment to Vincent in 2014. A. Whatever year it was, whatever day, time, he asked that he be paid $500,000 and I said 'I will endeavour to do that for you'. Q. But in terms of your recollection you can't remember when it was. A. No, not exactly. Q. You can't remember the year. A. No.217 349 His answers were also contradictory. After saying the above, he said: A. I don't know if I - I don't think I ever made any offer to Vincent, but I do know that if everything that he asked for and wanted was given to him -218 … Q. ... Do I understand from that answer that you actually have never - so you certainly didn't in 2014 make an offer to pay Vincent anything. You accept that. A. I maybe didn't offer anything, but had he required it and asked for it, I would have endeavoured to give him what he demanded. 216 T604.1-18. 217 T604.27-36. 218 T610.15-17. -- 87 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 86 Q. So that means we can disregard the meeting at the sheds where you say you offered to look for finance to pay him out $500,000. A. Repeat that again, please. Q. We can forget about any suggestion that you offered to obtain finance to pay Vincent $500,000. A. I offered him to pay him - to endeavour to pay him $500,000. Q. I think all I can do is say that never happened, and you can disagree. A. Beg yours? Q. All I can do is put to you that that never happened, and I'll invite you to agree or disagree. NOT ANSWERED Q. I'm putting to you that you never offered to pay Vincent $500,000. A. I sought to get $500,000 to pay him for his - compensation for his efforts over the years.219 350 I note that Denis denied discussing Thomas’ evidence with him in advance of giving evidence himself. 351 Denis’ evidence about the conversation at the shed was confused and contradictory. He was unable to recall when the conversation occurred; at two points he appeared to concede that he “[didn’t] think [he] ever made any offer to Vincent” and that “maybe” he did not offer Vincent anything. I note that neither Denis nor Thomas referred to this conversation at the shed in their witness statements. Denis said that his “notebook” did not record when the conversation occurred. At no other time in his evidence has Denis referred to recording events in a notebook or, indeed, anywhere else. At no time has he suggested that he kept any sort of aide memoire or made notes of any of the events that have been canvassed in this action. No notebook has been discovered by Denis. 352 Vincent denies that the conversation occurred. I find that the conversation did not occur. I find that it was a recent invention by Thomas. Denis’ inability to recall anything about the conversation except that it occurred, as well as the fact that the conversation is not referred to in any witness statement, has led me to conclude that the conversation did not occur. Denis’ reference to a “notebook” in his evidence also leads me to conclude that this is a recent invention. 219 T610.20-611.6. -- 88 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 87 Meeting January 2015 with Andy Bates 353 Denis says this about a meeting with Andy Bates in January 2015: I recall that there was a meeting in January 2015 with Andy Bates. I do not remember now what we discussed. I remember that Michael was at the meeting. I also remember that we agreed that a wage structure should be set up, and Vincent and Thomas should work to that structure.220 354 Vincent’s only evidence about this meeting is that he, Thomas and Denis received a letter from Mr Bates, of Bates Agricultural Consulting, on 25 January 2015. 355 In evidence is a letter from Mr Bates, dated 13 January 2015, and addressed to “Dennis (sic), Mary, Vinnie and Thomas”.221 The letter refers to their recent meeting. In the letter, Mr Bates sets out recommendations in relation to the management of Oakfront’s cropping enterprise with estimates of the costs involved and the likely income. It is clear that there was some discussion about wages. Relevantly, the letter says: “However, after looking at the old budget you provided, the combined profit from the sheep enterprise and the planned crop enterprise appears insufficient to pay “wages” for the 3 “families” you expect to support from this farm.”222 “Unless the productivity of your sheep and crop enterprises can be sustainably and substantially increased, this business may not have the ability to adequately support 2 “families”.”223 Remember, a business is not viable unless those contributing labour are adequately rewarded. In the past, the business has not been able to pay wages for the labour contributed by one additional family member. It is unrealistic to assume that it could suddenly afford to compensate for wages forgone over the past 10 years, and also pay and (sic) appropriate wages for two families plus Dennis (sic) and Mary.”224 Using the analysis above, the small forecast profit from the crop enterprise will not be sufficient to begin back paying family members for wages owed, nor will it be sufficient to enable the farm to adequately support 3 families. Productivity increases from the livestock enterprise, and an increased crop program…is required to generate greater cash surplus for this business. Once it has demonstrated that increased profitability is sustainable, the business may be able to afford the additional family members. Until then, it appears the business can barely support the 2 families who have provided the majority of management and labour for the past few years. Put a drawings line in your budget where those contributing labour are paid. 220 R8, [127]. 221 Tender Book, Tab 63. 222 Ibid, p 407. 223 Ibid, p408. 224 Ibid, 408. -- 89 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 88 There is no certainty in farming, but this business does not demonstrate sufficient profit potential to support 3 families. There may be work for 3 men, but there is not the turnover or profit to sustain 3 men. Carefully planned and implemented strategies … to improve productivity over the next 5- 7 years may result in the property being able to support 1.5 families in the long term. It may not however, have the capacity to compensate Vinnie for all of the unpaid wages in “cash”. Consider transferring equity in the business in lieu of unpaid wages. Properties of this scale elsewhere on EP do not support more than 1.5 – 2 full time employees. It is unrealistic to think that this property will do better. Family plans need to reflect the reality that in the future, it is likely that the property will only support one Cash sibling and their family...225 356 Denis’ evidence about the meeting with Mr Bates must be incorrect. There is no evidence that Michael was in Australia in January 2015. Further, I reject Denis’ statement that a “wage structure” for Vincent and Thomas was agreed. This statement is contrary to the plain words of the letter itself. Mr Bates is clear in his advice that the business cannot pay a wage to or otherwise support two families in addition to Denis and Mary. He states that the farm has, in the past, been unable to pay a wage to Vincent and it is unrealistic to expect it to support three families. 357 I note the respondent’s submission that there is no evidence that Vincent said that he had been promised the farm. I accept that this is the case; however, the letter is a letter of advice and does not purport to set out the instructions given to Mr Bates, on which that advice was based. As a result, I am unable to draw any conclusion as to what was said by each individual at the meeting, other than that Mr Bates was told that there was a proposal for a third family (Thomas’) to return to Oakfront to work. Meeting at Wudinna Telecentre on 24 February 2015 358 On 24 February 2015, a meeting was held at the Wudinna Telecentre, with Denis, Mary, Vincent, Julie, Thomas, Jodie and Judy Wilkinson. Two documents were produced at this meeting: the first, a document headed “Cash Family Meeting – 24th February 2015”, which is in the form of a table, setting out proposed actions, who is to implement those actions, and when they are to be implemented by;226 the second headed “Cash Family Meeting Notes – 24th February 2015”.227 Vincent’s evidence is that he is not sure who drafted the table, although he assumed it was Ms Wilkinson.228 I will refer to this document as “the table”. 359 The second document was not discovered by any party during the interlocutory progress of this action. It was referred to by Thomas during his cross-examination and a call for production was made by Mr Riggall. Thomas’ evidence is that the document was an attachment to an email from Ms Wilkinson, 225 Ibid, p418. 226 Tender Book, Tab 66. 227 R2-19. 228 T74.26-27. -- 90 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 89 which she had sent to Denis and Mary, Vincent and Julie and himself.229 I will refer to this document as “the minutes”. 360 The first box in the table reads as follows: Deal with value for unpaid wages An amount needs to be decided upon this needs to take into account what they have taken (ie living and utilities) Needs to be discussed and agreed upon by Denis Mary and Vincent The business cannot move forward without this being sorted – there will be negative side effects from not having this sorted, it will stall growth Understand that this agreed amount has an impact on others who have not been paid230 361 The minutes record the following: This needs to be sorted before anything can move forward Unpaid wages: • Get information about unpaid wages figure • Work out how this can be paid out ie in land or cash payment outright or over time • Work from today’s values, reduce over the last 11 years to take into account CPI and experience • The amount that Vinnie wants is $550,000 (this takes into account super long service leave and a utilities payment) Prepared to negotiate (has to really) Land transfer will satisfy • There may be others that will want paying out as well • Is it a business debt (as it is for unpaid wages) or land debt231 362 Vincent’s evidence is that, at the meeting, he said that the business had to recognise his “security” before it could move forward; he then agreed that by “security” he meant the value of his unpaid wages.232 He further agreed that he did not mention the promise made to him in 2003, that the property would become his if he returned to the farm.233 He said that he was acting in “that farm management position”.234 229 T479.26-34. 230 Tender Book, Tab 66. 231 R2-19. 232 T75.8-12. 233 T76.3-9. 234 T75.24. -- 91 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 90 363 Vincent’s evidence is that he did not say at the meeting that he wanted $550,000; in fact, he had been asked to estimate the value of his foregone wages, because Ms Fitzgerald had advised Denis and Mary that Vincent would need to receive at least recognition for the wages that he had foregone in the time that he had worked on Oakfront. He said that he had made inquiries with Centrelink and received a document from Centrelink which provided a calculation on which his figure of $550,000 for his foregone wages was based. Vincent says that he does not recall saying that he would be prepared to negotiate, although he probably asked Denis if he would be prepared to negotiate. He agreed that there was a discussion that he would accept a land transfer in lieu of his foregone wages.235 As to the transfer of land otherwise, he said: A. At that stage I was managing the farm, and had always had the expectation that I would be taking over the farm. These discussions were come about 'cos how the farm was going to support the three families on the farm.236 364 Denis’ evidence is that he is unable to recall the meeting.237 365 Thomas’ evidence about what was discussed at the meeting on 24 February 2015 is confused. His initial evidence was that, at the meeting, Denis made an offer to Vincent to pay him $500,000.00.238 When asked about where that offer was recorded in the minutes of the meeting, Thomas replied: A. Well, it doesn't state it in the document but it was in the meeting. Q. Okay, I'll bite again. What was stated in the meeting. A. That the figure's being put forward in offers. Q. Was it stated in the meeting that Denis had offered to pay $500,000 to Vincent. A. He'd offered to pay a sum, yes, of which agreement states Vincent wanted 500,000. Q. Let me start from the top, was it said in the meeting that Denis offered to pay Vincent $500,000. A. No.239 366 This evidence is internally inconsistent and makes it difficult to accept any of Thomas’ evidence about what occurred at that meeting. As a result, I accept Vincent’s account of what occurred at the meeting on 24 February 2015. 235 T861.25-863.16. 236 T863.21-25. 237 R2-8, [128]. 238 T447.5-448.23. 239 T480.24-34. -- 92 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 91 Telephone discussion on 25 February 2015 and meeting on 2 March 2015 with Greg Nicholls of Nicholls Gervasi 367 Vincent’s evidence is that the day after the meeting in Wudinna on 24 February 2015, he rang solicitor, Greg Nicholls; Mr Nicholls had represented the farm during a dispute with a lessee from 2009 to 2011, and so was known to Vincent. 368 Mr Nicholls produced a file note in relation to this telephone conversation and a subsequent consultation with Denis, Vincent and Thomas on 2 March 2015. It is not, however, a contemporaneous file note of the telephone conversation; it is dated 2 March 2015 and was made after a meeting with Denis, Vincent and Thomas.240 In his file note, Mr Nicholls records that, during the telephone conversation, he gave the following advice to Vincent: That pursuing an underpayment of wages claim may not be the best method for Vincent to receive the income (as presumably this would need to be taxed) and furthermore his claim against Oakfront Pastoral Pty Ltd (if any) may not even be an underpayment of wages and would be by way of another claim, which I will discuss with him if he wanted to at a later date.241 369 Vincent says that he cannot recall exactly what he told Mr Nicholls on that day; because of Mr Nicholls’ previous relationship with Oakfront, he had “pretty good knowledge”242 of Vincent’s position on the farm. While he recalls telling Mr Nicholls that he had been working for no wages, he does not recall telling him that he lived in a house on the farm rent free; Mr Nicholls may have already been aware of this.243 370 Vincent agreed that he told Mr Nicholls that he wanted to talk about pursuing a back payment of wages; he does not think that he told him that the amount that he was owed was about $500,000 although he may have said that he had researched that.244 371 Vincent’s recollection of the telephone call is limited; his recollection is that Mr Nicholls told him that he could not represent Vincent because he had previously acted for Oakfront but he suggested that Vincent and Denis attend his office together.245 He does not recall if Mr Nicholls gave him the advice set out at [368] hereof. 372 On 2 March 2015, Denis, Vincent and Thomas met with Mr Nicholls. The file note records the matters discussed during the meeting. In particular, it records 240 Tender Book, Tab 67. 241 Ibid, p 444. 242 T77.19-20. 243 T77.30-38. 244 T78.36-79.1. 245 T79.17-20. -- 93 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 92 that Mr Nicholls advised them that Vincent may have a claim as a beneficiary of a constructive trust over some portion of Oakfront.246 He further notes: …Vincent advised me that he was more than happy with receiving an amount of $500,000 with respect to his claim.247 373 Later in his file note, Mr Nicholls records that “Vincent would probably be happy to accept $350,000 to clean the slate…”248 374 Vincent’s evidence about whether this was the first time that he had been advised that he might have a claim other than for underpayment of wages was unclear. His evidence seemed to be that the other advisors such as Ms Fitzgerald had suggested that his claim for unpaid wages was “a minimum”.249 He appeared to acknowledge that he did not tell Mr Nicholls of the representations “in particular”,250 although he said that he told Mr Nicholls about his “expectations on coming home to the farm”.251 375 Vincent denies that he told Mr Nicholls that he would be prepared to accept $500,000 to resolve the dispute.252 He says that that was, perhaps, a suggestion made by Mr Nicholls.253 He further denies that he said he would be happy to accept $350,000.254 I accept Vincent’s evidence in this regard. 376 Neither Denis nor Thomas gave any evidence about this meeting. 377 I accept Vincent’s evidence that he did not tell Mr Nicholls that he would be prepared to accept either $500,000 or $350,000. Letter from Vincent to his siblings dated 12 March 2015 378 On 12 March 2015, Vincent wrote to his siblings, seeking their views on how the impasse that had been reached between him and his family on the one hand and Denis and Thomas on the other could be solved.255 Without setting out the letter in full, Vincent says: • He has received little financial reward for his work at Oakfront since 2004; he has been supported by Julie. • His view is that the best way to remunerate him would be by the transfer of land. 246 Tender Book, Tab 67, p447. 247 Ibid, p449. 248 Ibid. 249 T81.14-17. 250 T82.25. 251 T81.26, 82.10-11. 252 T84.27-28. 253 T85.1. 254 T235.33-36. 255 Tender Book, Tab 65. -- 94 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 93 • Denis believes that the transfer of land would be detrimental to other family members. • Another option would be a cash payout. Vincent’s view is that this would be detrimental to the business because money would need to be borrowed to achieve this. • The farm can only support one full time worker plus Denis and Mary, not three families. 379 Vincent received responses from Angela, Catherine, Dominic, Gerald, Michael and Patrick. The respondents have objected to the admission of these responses for the truth of their contents. I will allow the responses to be admitted, on the basis that they are evidence of the views of their author and are not evidence of anything else. 380 I will not set out their responses in full, only the passages that bear directly on the issues in dispute in this matter: 381 Angela said: Would it be of greater benefit to pass onto Vincent ownership and control of Oakfront in lieu of a land transfer? I feel this would achieve the required succession planning and allow Mary and Denis to retire and enjoy the next stage of their lives. I feel that giving Vincent ownership is a natural progression and recognition given his contribution to Oakfront.256 382 Catherine said: It is my firm belief that the best form of reimbursement for Vincent’s 11 years work would be to use current assets of Oakfront Pastoral Company in the form of a land transfer. I strongly disagree with Denis/Dad’s opinion that any land transfer would be detrimental to other family members. My understanding was that Vincent’s return to the farm in 2004 was “sold” to siblings on the basis that the farm’s upkeep and maintenance had become too much for Denis/Dad and he required help, Denis being 63 years of age at the time. … It would also be wrong not to acknowledge that Vincent has served a very long apprenticeship that no other sibling chose to accept.257 383 Dominic said: I will keep things short in response to your letter Vincent. For myself I believe that transferring land into your names makes full sense. After 11 years working on the farm I naturally anticipated that this was to obtain this result. For me it makes full commercial sense and is fully understandable; I would have anticipated this is a simple outcome from succession. If I were in the same circumstances and was to have my time paid out I simply 256 Ibid, p432. 257 Ibid, p434. -- 95 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 94 would not continue to work for the company. To me this would create little incentive for me to continue investing my time into the company. The reason I feel this is this would create a debt which would have to be paid back by the employees of the company. In short I am disappointed that the company feels this is an ethical way to treat family members.258 384 Gerald said: Taking out a loan or receiving a cash injection from third parties to pay Vincent and then have Vincent work his butt off for the next twenty years to pay off his own money seems illogical in nature. He has already worked a quarter of his working life maintaining the viability in the family business. … I foresee the argument will be that if dad moves land into Vincent’s name, as only he can do as appointer of the trust, he will be creating an unbalanced situation where Vinny would have sole ownership of a title. This is a silly argument because Vinny has earnt it and was working under the impression that this is what he was working for. This is fact and the past cannot be changed and it would be dishonourable to do so.259 385 Patrick said: I have always believed that Oakfront should remain within the Cash Family. After nearly 11 years, Vincent has shown that he is willing and is more than capable of managing the business. Over the years, I have worked alongside Vincent on the farm doing a range of tasks from repairs, maintenance and construction. I have always found working alongside Vincent to be a productive and positive experience. In the time he has been there, I have assumed it would be Vincent who would eventually take over management of Oakfront at some point in the future and I fully support this possible outcome. The sacrifice to his lifestyle and finances over the last 11 years should be recognised. I have no problem with Vincent receiving remuneration for that time and sacrifice via land transfer. I believe a cash payout would put the business into a difficult position to service the debt. If Oakfront was capable of servicing that debt, the company should have been paying Vincent a wage from the commencement of his working there.260 386 Michael said: Please stop with this letter writing campaign. It will only result in bitterness and derision between us all. … Dad has dedicated his life to two main things. Raising a family, and ensuring that Oakfront is maintained as a whole. I think that he has made it clear that he intends for Oakfront to remain as one entity. As Mum and Dad are the Owner’s (sic) of the property, it is for them to decide how they want to handle any succession plan, not us. Also, as they are both still of sound mind and body, it is for them to decide how they wish to live their lives.261 258 Ibid, p435. 259 Ibid, p436. 260 Ibid, p440. 261 Ibid, p437. -- 96 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 95 387 Vincent’s evidence is that he wrote this letter as a result of a suggestion from Denis that a transfer of land would be detrimental to his siblings. He wished to ascertain his siblings’ views on this suggestion. He accepted in cross-examination that he did not say in his letter that Denis had made the representations, on the basis that he did not want “to pick a fight with them”. He rejected the suggestion, put by Mr Duggan, that he did not refer to the representations because they had not been made. 262 In any event, the purpose of the letter on his evidence was to ascertain his siblings’ views, not to assert a claim. 388 Vincent said that Denis had contacted one of his siblings about his contention that it would be detrimental to them to transfer land to Vincent; as Denis had contacted one of them, Vincent wrote to all of them about it. He denied that it was inherently implausible that Denis would have promised to transfer him land in 2003.263 He said that he included the option of a cash payout in the letter because it was what Denis had proposed. It is clear that, whatever promises had been made by Denis in the past, five of Vincent’s eight siblings expected Vincent to inherit the farm. Letter from Tony Hull of Clarke Pomeroy Hull dated 2 April 2015. 389 On 2 April 2015, Mr Hull, Oakfront’s accountant, wrote to Denis, Mary, Vincent and Thomas.264 It appears that Mr Hull was asked to look into the viability of the farm. In his letter, he said: As previously advised, our view is if the business was to borrow an amount for remuneration for Vinnie we believe that extended borrowings for plant and scrub clearing may jeopardise the viability of the business. Therefore as advised at our meeting, it is my view some land should be moved into a Trust which is controlled by both Denis and Vinnie. 390 He further recommended that Denis and Mary should provide “clarity” as to their estate planning. Letter from Brad Giles of Complete Business & Accounting Services dated 4 December 2015 391 On 4 December 2015, Mr Giles, another accountant, wrote to Vincent and Thomas on the instructions of Denis and Mary.265 The letter reads, in part: Denis and Mary wish to advise their wishes are: • They have an absolute preference for FAMILY to be running the farm • They have a preference that Vincent & Thomas were to farm together 262 T71.1-38. 263 T72.15. 264 Tender Book, Tab 69. 265 Tender Book, Tab 73. -- 97 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 96 • If Vincent is not prepared to farm with Thomas, Denis & Mary believe it is best that he find work elsewhere • If Thomas is not prepared to farm with Vincent, Denis & Mary believe it is best that he find work elsewhere Could you please outline your preference on the attached sheet within 7 days of the date of this letter, by returning a signed and completed form via fax, post or email to the writer. Given the time that has elapsed in this family being involved with various family meetings etc, there will be no extension of time for your decision. Further, Denis & Mary have stated that they will consider that a non-response by any party will be taken that you have chosen to no longer be involved in the operations of the farm. (emphasis in original). 392 Both Vincent and Thomas sent responses within the time required indicating that each was prepared to work with the other. 393 Vincent’s evidence was that he received the letter from Denis on about the 7th or the 8th of December 2015 and so had less than a week to respond.266 In response to Mr Duggan’s question about Denis seeking a commitment from his sons, Vincent replied: A. But I'd made a commitment for 12 years prior to receiving this, 12 years, and within five days I've got to give a response whether I'm prepared to work or I leave. Q. Yes, and you ticked yes that you were in a position where you'd be prepared to work with your brother. A. Was I in a position. An ultimatum basically I walk out and I've given 12 years, or I could work with my brother.267 394 When Denis was asked about giving Vincent an ultimatum by way of the letter from Mr Giles, he appeared to seek to distance himself from it. He said: Q. Do you accept that that was an ultimatum that you gave to Vincent. A. It was an ultimatum that was put forward at a meeting with Brad Giles, as I remember, and Chris Fitzgerald. Q. So this was Brad Giles's idea was it. A. I'm not sure. It was a combined effort, I'd suggest, with all parties to try to find a solution to our problem. Q. Who was present when this document was decided on. Who had input into the creation of this document. A. I'm not sure. 266 T88.11-16. 267 T88.29-37. -- 98 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 97 Q. You certainly did. A. I don't know. I was at the meeting, and whether I put this forward or not I'm not sure.268 395 This evidence is inherently unbelievable. This was a dramatic attempt to solve the conflict between his two sons. I do not accept that Denis cannot now remember whether he was involved in the creation of the document and whether he proposed the solution of an ultimatum to Vincent and Thomas. It is such a dramatic response to the problem that it is inconceivable that Denis does not remember how it came about. Meeting on 9 February 2016 396 On 9 February 2016, Vincent, Denis and Thomas met with Mr Giles and Ms Fitzgerald in Port Lincoln. There are a number of different documents which record what occurred at that meeting. 397 The first document is a typed document headed “Oakfront Property Trust”, with a subheading, “Expectations of working in the Business”.269 I will refer to this document as the “expectations document”. The expectations document sets out a plan to allow Vincent and Thomas to work together. It is based on the premise that they would have equal authority and would operate the farm together as partners. 398 The second comprises handwritten notes prepared by Vincent during the course of the meeting.270 The third document is a typed version of Vincent’s handwritten notes.271 It is not identical to the handwritten notes. It is his evidence that he prepared the typed notes the following day.272 The fourth document is an email from Mr Giles to Denis and Mary, dated 16 February 2016, providing a summary of what occurred at the meeting.273 Vincent’s account of the meeting 399 It is Vincent’s evidence that the meeting commenced with Mr Giles’ reading from the expectations document, which had been prepared by Denis. His handwritten notes contain the words: Denis expectations Read out letter 268 T667.14-27. 269 Tender Book, Tab 125 270 Tender Book, Tab 79 271 Tender Book, Tab 77 272 A1, [315] 273 Tender Book, Tab 86 -- 99 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 98 400 His typed notes read: Brad started the meeting, “Moving forward” from the response letters in December, and reading out a copy of Denis’s expectations (attached), with a few points being made between paragraphs. 401 According to Vincent, after Denis’ expectations document had been read out, there was discussion about the role and possible constitution of a Farm Advisory Board. Vincent and Thomas were asked to contribute their thoughts to such a Board, were asked what they would like to discuss at the meeting, and were asked what their expectations were. Vincent says that he said that many of Denis’ expectations were unrealistic. He had returned to the farm having been led to believe that he would take over the management of the farm and that the family understood this. He was willing to work with Thomas, but only on the basis that he (Vincent) was the farm manager. He says that, at this point, Denis said that he never led Vincent to believe that he would become the farm manager. 402 Vincent says that a discussion about the difference between a farmhand, a farm manager and a farm owner occurred. Mr Giles said that farm managers do not own the farm and are paid a salary. Vincent says that he replied that he expected to receive some equity in the property on which he could build. He had been undertaking the role of farm manager on the basis that he would eventually take over responsibility for the farm.274 His evidence was that his understanding of the role of farm manager was different to Mr Giles’.275 He rejected the proposition that the transfer of land was only ever proposed as a way to deal with his unpaid remuneration; he had always come home with the expectation that he would take over the farm,276 and on the basis that there would be some form of equity as security.277 When asked why he should be given preference over Thomas, Vincent replied that this was the expectation he had when he returned to the farm. He explained that he had decided to leave his job and studies to return to the farm because of the promises made to him by Denis. 403 As to Thomas’ role on the farm, Vincent said: A. … My words to Tom was whilst I was willing to work together with Thomas I still considered myself to be the farm manager. He could be included in day to day decisions but the final say would come down with me and I'd earnt that. I had been there 12 years. I'd been playing that role for 12 years.278 404 Further, it was Thomas who refused to accept Vincent’s role as the farm manager, rather than Vincent’s inability to accept Thomas as an equal on the farm.279 274 T93.5-8. 275 T93.12-18. 276 T94.12-13. 277 T93.28-35. 278 T96.6-11. 279 T96.21-23. -- 100 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 99 405 Ms Fitzgerald asked if it was possible to draw a line in the sand; Vincent replied that the line had been drawn long ago and he was waiting for a reply from Denis. Vincent’s evidence is that: Brad than (sic) suggested that he Denis should have to have a discussion together to re-assess the situation, but mentioned to me that Denis may have to make a decision that I don’t want to hear, “it could go 50/50”. I replied by saying that I was not going to be forced into a similar situation that dad experienced with is own brother years ago, and that I’m surprised that dad would be willing to put me in such a position. Brad stated that “No one is holding a gun to your head, no one is forcing you here.” But I was “taking a risk within the situation”. I again mentioned that I was not going to put my family or myself in a situation that I’m comfortable with. Chris added “And that’s fair enough, too.”280 406 I assume that the second last sentence of the passage set out above contains a typing error and should read: I again mentioned that I was not going to put my family or myself in a situation that I’m not comfortable with. 407 Mr Giles and Denis then met in the absence of Vincent and Thomas. When the meeting resumed, Mr Giles announced that Oakfront was to cease trading immediately. Vincent and Thomas were to play no further part on the farm and must resign as directors. Denis would consider his options, that is, whether to lease or sell the farm. Denis and Mr Giles would identify a basis for some form of recognition for the work of Vincent and Thomas. Mr Giles said that they should hear about this around the end of March. 408 It is Vincent’s evidence that the meeting lasted, it total, about two and a quarter hours, with a break of about half an hour in the middle. He recorded the time of the commencement of the meeting and the time that the break was taken. In his typed notes, he has recorded the time that the meeting resumed after the break. Thomas’ account of the meeting 409 Thomas’ evidence appears to support Vincent’s evidence about the reading out of the expectations document, in that he agreed that Mr Giles “tabled [his] father’s statement of wishes”.281 410 Thomas’s evidence is that he is now unable to recall what time the meeting started and how long it lasted.282 He agrees that, after Mr Giles tabled Denis’ expectations document, there was discussion about a Farm Advisory Board and its possible composition. He does not recall Mr Giles asking him and Vincent what they would like to discuss, nor does he recall a discussion about business structures. He does not recall being asked what his expectations were. He says that Vincent did not tell the meeting that he had been led to believe that he would take 280 Tender Book, Tab 77, p 592. 281 T467.11-14. 282 T466.17-22. -- 101 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 100 over the farm, nor did he accept that Vincent had been managing the farm.283 Later, however, he said that he could not “answer whether [Vincent] did or didn’t” say that he expected he would take over the farm when he returned to the farm.284 411 Thomas says that Vincent said that he would only work as a family unit if he was the farm manager, whereas it was Denis’ position that everyone would be on a level playing field.285 Thomas does not recall a discussion about the differences between farm worker, farm manager and farm owner.286 He does not recall Vincent saying that he expected to be the farm manager, nor does he recall Vincent’s saying that he expected to have some equity in the property to build on.287 He said: A. No, because what happened in this meeting was Vincent stated that he'd buy himself time, he was not willing to work as family unit; the meeting was closed; Denis, Vincent and I had to leave the room and come back in a short time after what Denis had organised to do, which direction. So, hence why the meeting probably went for as long as it did. All this stuff here I do not recall in a meeting. Q. How long did the meeting last. A. It was done and dusted straight away because Vincent had stated that he was not going to work as a family unit. Q. How many minutes is that. A. I'm not sure.288 412 In essence, Thomas denied that the meeting progressed as described by Vincent. He either did not recall, or denied, discussion of the majority of the topics which Vincent says were discussed. Thomas does recall being told that the company would cease trading immediately and that he and Vincent were asked to resign as directors. He recalls Mr Giles advising that he and Denis would work out a way of recognising Vincent’s work on the farm.289 Denis’ account of the meeting 413 Denis says that Vincent asserted that he was the farm manager and that Thomas had no right to work on the farm other than as a farmhand. Thomas said he was not happy to be a farmhand but was prepared to be a co-manager with Vincent.290 At no time during the meeting did Vincent say that the farm had been 283 T470.27-34. 284 T473.7-13. 285 T471.7-16. 286 T471.30-38. 287 T472.1-12. 288 T472.16-29. 289 T475.21-31. 290 R8, [133]. -- 102 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 101 promised to him.291 He did not say that the farm would cease operating, just that Vincent and Thomas would cease to work on it.292 414 Denis does not remember Vincent saying that he had been led to believe that he would take over the management of the farm293 and he denies any recollection that Vincent said that he had been invited to return to the farm.294 He does not recall Vincent saying that he left his job and his studies on the basis of the promises made to him. 415 Denis agrees that, after a separate meeting with Mr Giles, he sacked Vincent and Thomas from the farm and asked them to resign their directorships.295 He says, however, that, to his knowledge, there was no discussion about Mr Giles and Denis working out some compensation for Vincent for his time on the farm.296 Mr Giles’ account of the meeting 416 Mr Giles says that, at the commencement of the meeting, Vincent said that he was to be in charge of the farm. After that, the meeting only lasted fifteen or twenty minutes, after which Vincent and Thomas left.297 417 Mr Giles’ email to Denis and Mary, containing a summary of the discussion at the meeting, records: • Early in the meeting, Vincent said that he felt pressured to attend, he had other grievances that he believed were not considered, that he would not give up his role as farm manager, and he did not consider that Thomas had a right to any involvement on the farm other than as a farmhand. • Thomas said that he was not happy being a farmhand but was prepared to work as a co-manager with Vincent, as partners in the business. • Thomas and Vincent were asked to leave, after which there was discussion between Mr Giles, Denis and Ms Fitzgerald, during which Denis decided to cease farming operations immediately. • Thomas and Vincent were recalled to the meeting and were told that the farm operations involving Thomas and Vincent would cease immediately and Denis would consider selling, share farming or leasing the farm. • Thomas and Vincent were told that they should consider looking for work off the farm and should resign from the company effective the following day. 291 Ibid, [134]. 292 Ibid, [136] – [137]. 293 T676.1-4. 294 T676.32-35. 295 T678.3-21. 296 T678.34-679.1 297 R1-21, [23] – [26] -- 103 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 102 • They were told that Denis would investigate a fair calculation of the services for both Vincent and Thomas, and he would endeavour to have something to them by 31 March 2016.298 418 In his oral evidence, Mr Giles confirmed that he was the accountant for Thomas, Denis, Mary and the company. He became Denis’ accountant in 2015, sometime after he had commenced working as Thomas’ accountant.299 419 Mr Giles says that the purpose of the meeting was to give some confidence to Denis that Vincent and Thomas would be able to work together, so that Denis and Mary could then consider retiring.300 Mr Giles’ evidence is that he did not start the meeting by reading out the expectations document, that he did not prepare the document and he did not have the document at the commencement of the meeting.301 He recalls that there was discussion about a Farm Advisory Board, to assist Thomas and Vincent to run the farm in a profitable and sustainable way, although he does not recall asking Thomas and Vincent to express their thoughts on such a board.302 He denies asking Thomas and Vincent what they would like to achieve on the farm and does not recall Thomas saying that he was interested in off-farm investments and buying a house. Nor does he recall Thomas saying that he expected to have shares in the farm.303 420 Mr Giles recalls that there was a discussion about trying to move forward with the farm, “in terms of where it was currently with Denis having essentially the burden of the farm and the aim to have it so that Vincent and Tom would be able to farm together.”304 He does not recall, however, that there was a discussion about the fact that Vincent had not been paid wages for his previous twelve years’ work; in fact, he says that he was not aware of this fact at the time.305 Mr Giles does not recall Vincent saying that it was unrealistic to have three families living off the farm. He says that Vincent said that he wanted to be the boss, and he recalls that Vincent sought clarification about the meaning of “farm manager”. While he recalls a discussion about the difference between farm manager, farm owner and farm worker, he does not recall asking Vincent what role he expected to play.306 He says that Vincent did not say that he expected to have some equity in property on which he would be able to build. He denies asking Vincent why he should have preference over Thomas. He does not recall Vincent saying that he returned to the farm because Denis has told him that someone had to take over the farm, nor does he recall Vincent saying that he had left his job and studies in Adelaide, and Julie 298 Tender Book, Tab 86 299 T711.26-36, R1-21, [1]. 300 T722.38-723.6. 301 T715.3-12. 302 T716.1-16. 303 T716.25-32. 304 T716.34-38. 305 T717.1-5. 306 T717.6-24. -- 104 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 103 had left her job, because Denis had told him that someone had to take over the farm.307 421 Mr Giles does not recall the conversation recounted by Vincent with Ms Fitzgerald about the line in the sand. In fact, the effect of Mr Giles’ evidence is that he either has no recollection of the matters raised by Vincent, or denies that they were raised at all. Findings in relation to the 9 February 2016 meeting 422 Given that Vincent’s notes were made contemporaneously, and his evidence accords with Thomas’ in this regard, I am prepared to find that, at the commencement of the meeting, Mr Giles read from the expectations document, which had been prepared by Denis. Further, I am prepared to accept Vincent’s account of what occurred at that meeting, because he is the only person who made contemporaneous notes. His handwritten notes were made either during the meeting, or during the break. His typed notes were made the following day. Denis and Thomas, on the other hand, made no notes of the meeting and were relying only on their memories. Mr Giles had prepared an email summarising the discussion at the meeting, but his evidence was that he probably only commenced its preparation nearly a week later, on 15 February 2016, and so it is not a contemporaneous account of the discussion held. 423 As I have previously found, I consider Denis and Thomas to be unreliable historians. On many occasions throughout his evidence, Denis stated that he was unable to recall conversations and events, particularly when those conversations or events did not support his case. I have found his evidence to be inherently unreliable because of this. I have also found that Thomas is not a reliable witness, as he was prepared to tailor his evidence to suit the respondents’ case. As a result, I reject their accounts of what occurred at the meeting. 424 I do not consider that Mr Giles was a reliable witness, not because I formed the view that he was not doing his best to tell the truth, but because of the fact that he approached both the meeting in February 2016, and his evidence generally, from the perspective of his role as the accountant for the respondents and Thomas. By the time of the meeting in February 2016, he had had an association with Thomas for some years, and with the company and Denis for at least a year. There is no doubt, from the tenor of his evidence and the terms of his email,308 that he considered himself to be the representative of Denis and the company; hence, his email was written and his evidence was given very much from this perspective. It is clear that he approached the meeting with a view to protecting the interests of Denis and the farm, not as an independent person seeking to broker a resolution of the family dispute; I find that his recollection of the discussion at the meeting was affected by this bias. As a result, I do not consider that he was an independent witness. I do not say this as a criticism of him; it is natural that his evidence should 307 717.29-718.10. 308 Tender Book, Tab 86. -- 105 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 104 have such a bias given the role that he was fulfilling. Nonetheless, it makes it difficult to accept his evidence as an accurate account of what occurred at the meeting. 425 I find that the following occurred at the meeting on 9 February 2016: • At the commencement of the meeting, Mr Giles read out the expectations document; • Mr Giles asked Vincent and Thomas what they would like to discuss and what their expectations were; • Thomas said that he was interested, amongst other things, in off-farm investments, buying a house and having shares in the farm; • Vincent said: o that Denis’ expectations were unrealistic; o he had returned to the farm on the basis that he had been led to believe that he would take over management of the farm; o while he was willing to work with Thomas, it would be on the basis that Vincent was the farm manager; o he expected to have some equity in the property that he would be able to build on; o he had left his job and his studies in Adelaide and moved to the farm with Julie because Denis had told him that someone needed to take over the farm; • Following a break in the meeting, during which Mr Giles and Ms Fitzgerald met with Denis in the absence of Vincent and Thomas, Mr Giles told Vincent and Thomas that the farm would cease trading immediately, that they were required to resign their directorships and that they would need to find work off the farm. The letter from Mr Orfanos 426 Mr Giles says that, after the February 2016 meeting, he sought independent advice from Nick Orfanos, a chartered accountant, about appropriate compensation for Vincent for his unpaid work.309 He says that he told Mr Orfanos that there was a dispute within the family and he needed Mr Orfanos to prepare an expert report valuing Vincent’s past efforts. Mr Orfanos sent him a letter confirming his instructions. I will refer to this as “the instructions document”. The 309 R1-21, [38]. -- 106 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 105 instructions document was in evidence.310 The instructions document commences with the words: I refer to our phone discussion yesterday 1st March 2016 and to your instructions in reference to the above. This letter to you serves as confirmation of your verbal instructions and the arrangement between your firm and Orfanos Corporate Services in relation to these instructions.311 427 The instructions document then proceeds to set out the instructions received from Mr Giles as to the circumstances surrounding the dispute in the Cash family. It ends with the words: Brad if you agree with the above that it reflects my instructions please confirm by signing and returning to me.312 428 There is no signature at the bottom of the instructions document. 429 In his evidence, Mr Giles confirms that he received the instructions document to allow him to review its accuracy.313 Given Mr Giles’ identification of the instructions document and its own terms, I conclude that the instructions document was prepared by Mr Orfanos following his discussion with Mr Giles, to confirm the instructions on which his report should be based. 430 Under the heading, “Information Received”, Mr Orfanos has recorded: … • Until very recently the farm was manager (sic) by Mr & Mrs Cash’s eldest son Vincent. • Vincent had managed the farm for about 10 years and during that period was not remunerated for his services. …314 431 Mr Giles’ evidence is that, at the time that he spoke to Mr Orfanos, his understanding was that Vincent had been managing the farm for about ten years, and that he had obtained that understanding from Denis.315 432 Mr Orfanos provided Denis with his report by way of letter dated 3 June 2016.316 Attached to this letter is a number of schedules, including 310 Tender Book, Tab 87. 311 Ibid, p612. 312 Ibid, p613. 313 T725.9-14. 314 Tender Book, Tab 87, p612. 315 T725.15-33. 316 Tender Book, Tab 88. -- 107 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 106 Schedule G headed “Information & Documents Received”.317 The following is recorded in Schedule G: … • Until very recently, Vincent, being Mr & Mrs Cash’s eldest son, worked on the farm and assisted Mr Cash in the running of the farm. I understand that Vincent had never been appointed to any formal position and that his “farm task” role was more as a “farm worker” rather then (sic) a farm manager. …318 433 In the body of his report, Mr Orfanos notes that Vincent was not remunerated for his work, but was provided with accommodation, all utilities, a fully maintained and insured motor vehicle, and cash from time to time by Denis and Mary. He also received Centrelink benefits and rent subsidies because of his low income.319 He describes Oakfront as “marginally profitable for only 6 out of the 11 years” that Vincent was working on the farm without payment and he opines that the farm’s financial viability was supported by, amongst other things, Vincent’s unpaid employment.320 He says: In my opinion, the Trust would have not been able to continue its farming operations without additional financial support, as it would have been hopelessly insolvent from the time of Vincent’s employment and there could not have been any possibility of paid employment for anyone other than what was paid to non-family members.321 434 Mr Orfanos expresses the opinion that compensation for Vincent would be in a range of $139,733.97 to $245,126.37, less the amount of any Centrelink payments. 435 It was agreed between the parties that, on receipt of the instructions document from Mr Orfanos, Mr Giles clarified the instructions with Denis. Denis advised that Vincent was a farm worker not a manager, leading to the difference in Vincent’s status as recorded in Mr Orfanos’ report dated 3 June 2016.322 436 Denis’ evidence about the commissioning and receipt of Mr Orfanos’ report was very confused. He had great trouble remembering when the report from Mr Orfanos’ was requested; at one point, he appears to suggest that this occurred before Thomas’ return to the farm in 2014.323 He later says that he has no recollection of discussing with Mr Giles obtaining a report from Mr Orfanos;324 then that he himself contacted Mr Orfanos to request that he calculate a figure for 317 Ibid, p634. 318 Ibid. 319 Ibid, p615-616. 320 Ibid, p617. 321 Ibid, p618. 322 T729.5-29. 323 T597.5-17, 598.1-8. 324 T679.27-31. -- 108 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 107 compensation for Vincent;325 then that Mr Orfanos was contacted on his authority, perhaps by Mr Giles.326 He later says that he cannot recall what he asked Mr Orfanos to do,327 although he then says that he asked for “facts and figures to be derived”.328 437 Denis says that the instructions document was provided to him;329 when he was invited, however, to describe to the Court what the document’s purpose was, his response was, “I don’t know.”330 The following exchange then occurs: Q. Firstly, do you recall seeing this letter before. A. Possibly. I've got no visual record of it. Q. Do you remember Mr Giles giving you a call and saying 'I've got a draft letter for Mr Orfanos'. A. I've got no recollection of the details of how things happened. I do recall that we got a - we asked Mr Orfanos - Nick, I think his name was - to compile a detailed matter of what was considered an amount that was owed to Vincent for his services. Q. So, perhaps I can summarise it this way: you may have received the letter, or you may not have - you don't fully recall. A. I'm not certain about that, no.331 438 When asked about the change in description of Vincent’ status between the instructions document, where he is described as farm manager and the report, where he is described as a farmhand, Denis’ response is that he has no recollection of a conversation between himself and Mr Giles, which led to Mr Orfanos’ changing Vincent’s job status.332 439 In relation to the report, Denis’ evidence is that he has no recollection of reading it, but as it was addressed to him, he assumes he received it.333 He firmly rejects any suggestion that Vincent was managing the farm.334 He further rejects any suggestion that the farm would have been insolvent if it had sought to pay wages to Vincent from 2004 to the date he left the farm.335 440 I find that, at the time that Mr Giles first instructed Mr Orfanos, he genuinely believed, on the basis of Denis’ instructions, that Vincent had been managing the farm for about 10 years without pay. I consider that Denis changed his instructions 325 T679.34-37. 326 T680.1-4. 327 T693.8. 328 T693.18. 329 T684.21-23. 330 T684.26-27. 331 T684.28-685.2. 332 T688.3-7. 333 T688.21-27. 334 T690.26-32. 335 T692.5-8. -- 109 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 108 about Vincent’s work status when he realised that it would make a significant difference to any claim for unpaid wages that Vincent might make. I accept Mr Orfanos genuinely held the view that the farm would have been insolvent if Vincent had demanded wages at any time since 2004. Mary’s letter of 14 March 2023 441 On 14 March 2023, Mary wrote a letter in the following terms: To the directors of Oakfront Pastoral Company I wish to express my voice in regards to the actions being taken by the directors. I’m not happy and do not agree with the actions currently being taken. They do not represent the best interests of the farm and should stop immediately. It is not necessary to sell all of the farms livestock. I believe some of the statements in the defence claims are simply not true; In particular that Denis did not invite Vincent and Julie back to the farm. I believe this matter should not and cannot go to trial and ask that we seek a form of resolution. Yours faithfully Mary Cash336 442 When she was cross-examined about the letter and the reasons that she wrote it, Mary’s evidence was contradictory and confusing. Her answer to a number of questions was “maybe”337 and she appeared generally not to understand the questions being asked. When she was asked if she was stressed by the litigation her reply was: What do you mean by the litigation.338 443 She was then asked a series of questions about seeing the statement of claim and the defence; her evidence appears to be to the effect that she heard for the first time in March 2023 that Vincent’s position was that Denis had phoned him in 2003 and asked him to come home. She said: … I was shocked to hear that. I said “and if that was the case, well it has to be fixed”.339 444 She later says in her evidence that she did not know that Denis had invited Vincent to return to the farm,340 although it is not clear to me whether she was referring to Vincent’s return to the farm in 2003 or in 2020. 336 Tender Book, Tab 112. 337 T789.18, 21. 338 T791.19. 339 T792.10-13. 340 T794.11. -- 110 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 109 445 Mary was asked a series of questions about whether she asked Vincent to email the letter and her will to Angela. Her answers to those questions ranged from “No” to “Maybe I did. I can’t remember”.341 446 While it is conceivable that Mary had not seen the statement of claim and the defence before March 2023, I do not accept that she learned of the crux of Vincent’s case, that Denis telephoned him and invited him to return to the farm for the first time only six months before trial. I have already discussed this evidence at [91] to [98] hereof. 447 The conclusion I have reached is that Mary wrote the letter, because she knew that Denis had invited Vincent back to the farm, and she wished to prevent the trial from going ahead. 448 I consider that she sought to resile from this position in her oral evidence, because she knew that it would significantly damage the respondents’ case and she did not wish to contradict Denis. This led to her confusing, contradictory and evasive evidence where she used her lack of memory to avoid answering questions that did not align with the respondents’ position. 449 The respondents have criticised Vincent’s involvement in the drafting and signing of this letter and have submitted that he took advantage of Mary and compelled her to sign the letter. I reject this submission. I find that Mary wrote the letter voluntarily and on the basis of her honest belief that parts of the defence were not true. The expert reports 450 Both Vincent and the company retained expert accountants to provide advice about the amount of money that Denis and Mary would need should they be required to leave the farm. The reports do not address the issue in exactly the same way. RJC Evans & Co, retained by Vincent, was asked to determine what Oakfront could “afford to pay” Denis and Mary to provide for their accommodation and ongoing income, and to Vincent’s siblings (“the Evans report”).342 Hood Sweeney, retained by the company, was asked to calculate how much Denis and Mary would require in order for them to “leave the farm and live comfortably for the rest of their lives” (“the Hood Sweeney report”).343 451 The Evans report was prepared by Luke Harris. It is dated 11 April 2022 and was supplemented by a further report dated13 January 2023. Mr Harris expressed the view that, if the property were leased, Oakfront would be able to pay the sum of approximately $50,000 per year to Denis and Mary and to Vincent’s siblings. It is not clear to me if this means that $50,000 would be paid to Denis and Mary and a further $50,000 would be paid to the siblings. 341 T796.13-797.33. 342 A6. 343 R1-10. -- 111 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 110 452 If the farm continues to operate in the way that it is currently operating, there will be no ability to make any payment to Denis, Mary and the siblings. In this scenario, if an annual payment is made to them, the long-term viability of the farm will be affected, resulting possibly in its sale. If budget assumptions provided by Vincent prove to be accurate, he says that it may be possible to have $180,000 per annum made available for Denis, Mary and the siblings. This calculation is made with a number of caveats. 453 The Hood Sweeney report was prepared by Scott Young, and is dated 19 December 2019 (“the 2019 report”). It is supplemented by two further reports, dated 30 September 2022 (“the 2022 report”)344 and 5 September 2023 (“the 2023 report”).345 In his primary report, Mr Young estimates that Denis and Mary will require between $1,553,000.00 to $1,924,000.00 to allow them to obtain alternative accommodation in Adelaide with sufficient income to allow them to live comfortably. In his 2022 report, he updates this amount to between $1,697,500.00 and $2,146,500.00 and increases it again in his 2023 report to between $2,152,399.00 and $2,288,952.00. 454 By way of email dated 28 August 20232, Mr Young and Mr Harris jointly provided an advice to the solicitors for Vincent and Denis, setting out a number of options which would allow a sum of money to be paid to Denis and Mary.346 455 In his oral evidence, Mr Harris conceded that, at the time that he prepared his report, he did not understand that the Haystacks were a tourist attraction and that, as a result they were not subject to the vicissitudes of the rest of Oakfront’s income.347 With respect to the joint email, Mr Harris’ evidence was that he and Mr Young only discussed how much money Denis and Mary would need, based on their life expectancy, to fund the cost of a house and the cost of living.348 456 In relation to the profitability of the farm, Mr Harris expresses the view that 10-year weighted profit was around $50,000 per annum. He says that there is potential for that amount to increase based on the recent profit earned from the Haystacks.349 457 Mr Harris says that, based on its trading history, he does not consider that the farm could afford to make a substantial lump sum payment to Denis and Mary.350 He is cautious about expressing a view as to how much a bank might lend to fund a payment to them; in this regard, he notes the improved seasons over the last two years, with a consequent increase in the value of the land, may lead a bank to consider lending a substantial sum.351 He maintains the view that, based on its 344 R1-11. 345 R1-12. 346 R7. 347 T311.21-35. 348 T314.17-19. 349 T315.10-17. 350 T317.25-31. 351 T318.22-26. -- 112 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 111 trading history, Oakfront’s profitability is marginal.352 As to the increased profitability predicted by Vincent, he says that generally yields have increased as a result of improved farming practices; he notes that the returns in the 2022 year were in fact better than expected, leading to a substantial increase in profit.353 He questions how sustainable the increase in profit is, as it requires a combination of favourable weather and high commodity prices.354 He say that the most reliable income for Oakfront would come from leasing the land.355 458 As to Mr Young’s report, Mr Harris notes that he was asked a different question. Mr Young was asked to provide a report on what Denis and Mary might need; if he had been asked the same question as Mr Young, he would have approached it in the same way.356 459 In his evidence, Mr Young explains how he quantified the amount that he considers that Denis and Mary will require to support them for the rest of their lives off the farm. In relation to the joint email, he says this: A. We looked to come up with options that we thought would be viable for both parties. And I'm not speaking on behalf of Mr Harris, but my view is that the farm would not have the ability to be able to seek funding from a financial institution to support the lump sum that would be required. So, we tried to come up with a solution that would facilitate a way forward for the farm to stay in its current shape, but also to be able to provide a lifestyle for Denis and Mary.357 460 He then confirms that, when referring to the lump sum, he means the sum that he has quantified for Denis’ and Mary’s needs. He goes on to say: A. My opinion is that, in the current environment, not (sic) financier would lend that type of money to this farming operation.358 Findings with respect to the farm and its profitability 461 A formal valuation of the land was obtained for the purpose of trial. The valuation report is dated 31 August 2023 and assesses the market value of the land, including the homestead and the Greenhouse at $6,750,000.00. 462 There can be no doubt that the profitability of the farm since Vincent’s return can be described as marginal at best, and it is unable to support more than one family in addition to Denis and Mary. It is clear that this is the view of Messrs Doudle, Bates, Hull, Orfanos and Harris. Given the weight of the evidence from professional advisors I find that at no time did Oakfront have the ability to support another family when Thomas sought to return to the farm. Indeed, whether it can be said that Oakfront ever supported Vincent and his family is questionable; 352 T320.27-31. 353 T323.9-18. 354 T324.19-325.5. 355 T329.27-28. 356 T330.24-26. 357 T361.19-27. 358 T361.38-362.2. -- 113 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 112 while it is clear that some of his expenses were paid by the company, the majority of his family’s income was derived from Julie’s work or from Centrelink. 463 I find that, at no time, was the farm sufficiently profitable to be able to support Thomas’ family when he returned to the farm in 2014, nor was it sufficiently profitable to allow it to pay a wage to Vincent from 2004 to 2016. 464 I further find that, even if Denis had offered to pay Vincent a sum of money, whether that be $500,00 or some other amount, the farm had no capacity to make any payment of a lump sum to Vincent. Any offer would have been completely hollow. To be clear, I am not satisfied that Denis, at any time, made any offer of a lump sum to Vincent. 465 It is clear from the evidence that Vincent derived certain benefits from the company. These include accommodation. It is questionable, however, whether the provision of the Greenhouse can be properly described as a benefit. It was in a virtually derelict state when Vincent returned to the farm in 2004 and he was required to do all of the work required to render it habitable. Much of the materials required for the renovations were paid for by Julie’s salary. In his evidence, Thomas criticised the stage of completeness of the renovations; he said: When I stayed there [between 2011 and 2013] I observed that the Greenhouse was liveable, but that there appeared to have been a series of renovations which had been begun but were unfinished.359 466 In the circumstances, it is questionable what, if any, rent would be payable for the Greenhouse if it were to be rented on the commercial market, taking into consideration that the tenant would be required to render it habitable at his own expense and in his own time and, even in 2013 was described only as “liveable”. 467 I accept that the farm has paid for Vincent’s motor vehicles, including their registration, insurance and maintenance. 468 Denis said a number of times that, while Vincent was never paid wages, he was given money whenever he wanted it. Mary also said that she gave Vincent cash from time to time, and prepared a list of the amounts that she gave him.360 The amounts in the list that she prepared total $14,000.361 I find that, between 2004 and 2016, Vincent was given no more than the sum of $14,000 in cash. 359 R1-15, [10]. 360 R1-22, [46]. 361 Tender Book, Tab 118. -- 114 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 113 Findings on the question of liability Did Denis made a representation to Vincent that he would have a proprietary interest in Oakfront, being property owned or controlled wholly or partly by Denis, if he returned to work on the farm? 469 I have no hesitation in finding that Denis made such a representation to Vincent. I have already found that: • In July 2003, Denis told Vincent that the workload on the farm was getting too much for him, that he was concerned about the farm’s future, that someone would need to take over the farm and that there was an opportunity for Vincent if he wanted it; • In September 2003, Denis told Mr Oster that Vincent was coming home to take over the farm; • In September 2003, Denis “talked up” the farm to persuade Vincent and Julie to move to the farm and represented that Vincent would have a major say in farm operations and would eventually take it over. 470 Specifically, I find that Denis represented to Vincent that, if he returned to the farm he would eventually take it over. I do not consider that, in this context, there is any difference between “taking over”, “taking on” and “inheriting” the farm. To both Denis and Vincent, these terms were interchangeable. They meant the same thing: if Vincent returned to work on the farm, he would eventually step into Denis’ shoes. 471 I do not consider that it matters that Denis does not, in fact, own the farm. He has always treated the farm and its income as his own to dispose of how he sees fit. The legal structures did not concern him until this litigation commenced; at the time that he made the representations, he considered that, to all intents and purposes, the farm was his and he could dispose of it as he chose. In any event, he was the appointor of the trust and the sole director of the company. Michael held the only share of the company on trust for Denis. Denis had the ability to transfer to Vincent control of Oakfront if he chose to do so. 472 Vincent, on the other hand, did not know about the trust and while he was aware of the company, he did not know what role it played in the ownership structure of Oakfront. It is natural and reasonable that, if Denis represented to him that it was within his power to gift the farm to him, he should accept that representation at face value. 473 The company submits that I should hesitate to find that the representations were made because they were never repeated by Denis, nor did Vincent assert that they had been made until after he had obtained legal representation. I reject this submission. -- 115 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 114 474 While Denis may have never explicitly repeated the promise that Vincent was to inherit or take over the farm, his conduct was such that he encouraged Vincent to believe that he would, in fact, take over the farm. In June 2004, Vincent was described as the “owner” of Oakfront, with Denis, in the share farming agreement with Mr Hull. In July 2004, Denis and Vincent visited Oakfront’s accountant, Mr Stevens, where Denis instructed Mr Stevens to prepare the paperwork necessary to have Vincent appointed a director of the company and to have a new share issued to him. Further, it is clear that, over the years, Denis handed over the responsibility for the farm activities to Vincent. In 2008, he told Ms Poole that Vincent shared in the management and operations of the business and had assumed responsibility for the financial management of the farm. He also told Mr Doudle that Vincent was taking over responsibility for the farm. 475 I have already found that, in 2010, Denis told Mr Dessart that there was a clear intention to pass responsibility for the business to Vincent and that Vincent was suitable to take over the farm. I have also already found that they discussed making Vincent a director of the company. 476 I consider that, between 2004 and 2012, Denis, by his conduct, reinforced the representations that he had made orally in 2003. He continued to give Vincent increased responsibility for the running of the business and treated him as his equal in the business. I find that, despite the clear intention to pass on responsibility to Vincent, Denis had (and continues to have) difficulty relinquishing the control of the farm. He kept engaging in succession planning meetings but could never bring himself to implement any of the recommendations made by his external advisors. Once he had solved his work force problem, by enticing Vincent to come back to the farm and work for free, he no longer considered it important to plan for his own retirement or the future of the farm. By enticing Vincent and Julie to move to Oakfront he had solved one problem by creating another: he had solved his workforce problem, but he had done this by making promises which were contrary to his long-stated view that any child was welcome to return to farm at any time. 477 I consider that, until September 2012, Denis was content to maintain the status quo: Vincent continuing to take on more work and more responsibility on the farm, while the ownership structure remained in place. At that time, Vincent was not agitating for any change and no other child had expressed any interest in returning to the farm; as a result, Denis could continue to transfer his responsibilities to Vincent and to encourage Vincent’s expectations, without having to take any positive steps towards implementing any form of succession planning. 478 All of this changed in 2012, when Denis and Mary sent the letter to all of their children, seeking their views on the future of Oakfront. Thomas’ evidence is that he told his parents in 2012 that he wished to return to the farm; it may well be that this is what caused Denis to write the letter. I find that this letter is the first step taken by Denis to resile from the promises that he made to Vincent in 2003 and that he had reinforced since then. -- 116 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 115 479 Prior to 2013, I do not consider that Vincent had any need to assert that Denis had made the representations. He signed the share farming agreement with Mr Hull in June 2004, in which he was described as the owner. He was present at the meeting with Mr Stevens in July 2004, where Denis instructed Mr Stevens to undertake the steps necessary to make Vincent a director and shareholder of the company. I have found that he told Mr Stevens, Denis, Patrick, Gerald, Michael and Kathy, in 2006, that he intended to take over the farm. He was present at the meetings with Ms Poole and Mr Dessart where Denis told them that Vincent was taking over responsibility for the farm. In these circumstances, there was no need for him to remind anyone of the promises that had been made; they were clearly being carried out. 480 The first time that one might expect Vincent to remind Denis of the representations is in his letter in September 2012. I have already found that he did not set out the representations in that letter because he did not want to start an unnecessary fight. At that time, he was unaware that Thomas intended to return to the farm; as a result, he would not have been aware that there was a prospect of Denis’ resiling from the promises that he made in 2003. I have already found that the content and tone of Vincent’s letter are indicative of the formal, non-confrontational and respectful way that the Cash family communicates with each other, particularly in writing. 481 I find that, until September 2012, Denis repeated the crux of the representations, that Vincent would take over the farm, to professional advisors, and his conduct was such that it reinforced the promises that he made in 2003. Vincent had no need to remind Denis of the promises because there was no indication that they were not being kept. Even at the time that he replied to the September 2012 letter, he was not aware that Denis was in fact resiling from the promises; his response is phrased against this background. In these circumstances, the fact that Vincent did not remind Denis of the promises, or otherwise mention them or seek to record them does not lead to the inference that the promises were not made. Up until 2012, the promises were clearly being adhered to by Denis; it is only once Thomas expressed the intention of returning to the farm that there is any indication that Denis sought to resile from them. 482 The respondents submit that I should find that the promises were not made, because they say that Vincent’s case about the content of the promise changed over time. In his first statement of claim, his allegation is to the effect that Denis told him that the farm would be his subject to his making provision for his siblings, but makes no mention of making provision for Denis and Mary. In subsequent iterations of his statement of claim, Vincent pleads that it was implicit in Denis’ promise that he would provide for his parents and make fair provision for his siblings. In his witness statement, Vincent says: 91.5 It was common for the farming son to provide for his parents during their retirement by way of expenses and an income, and accommodation off farm if required. -- 117 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 116 91.6 Both Mum and Dad wish to preserve the farm. 91.7 Although not specifically discussed, I had eight siblings and it was my belief that if I was to become the farmer the interests of my brothers and sisters would have to be fairly taken into account.362 483 The respondents say that, in addition to these inconsistencies in Vincent’s case, his oral evidence was also inconsistent, in that he initially said that Denis told him that he would need to make provision for his siblings,363 but later said that it was understood that the farm would need “to give recognition to the other siblings.”364 Further, in the letter from Vincent’s lawyers to his siblings, sent prior to the commencement of this action,365 his lawyers refer to Vincent’s providing fairly for his siblings on his inheriting the farm, without asserting that this was part of the discussion with Denis at the time that the promises were made. 484 I consider that the inconsistencies in Vincent’s evidence need to be viewed in the context of the history of Oakfront. By the time of the conversations between Vincent and Denis in 2003, the farm had been in the Cash family for about 115 years. The tradition was that the farming son would inherit the farm and make provision for his parents. This is exactly what happened with Denis (although Pat Murphy was his uncle not his father): he went to work on Oakfront at the age of 18, for no wages and when his uncle retired, the farm was transferred to him and he provided for his uncle until his death (his aunt having already died). Denis’ evidence was that he was “pleased, not surprised”366 when the farm was transferred to him and that it was a fair and just thing to have occurred, given the time that he had worked on the farm without wages.367 485 I find that all of the discussions about farm succession, including those that occurred in 2003, occurred against the background of Oakfront being a family farm. All of the discussions were in the context of Oakfront having been in the Cash family since about 1888, and that it had been passed on by its founder, Denis Murphy to his son, Patrick, who passed it on to his nephew, Denis, as he did not have any children of his own. All of this was in the context of the successor working for no wages on the basis that he would succeed to the farm when the time came. Denis himself conceded that he was pleased but not surprised when Oakfront was transferred to him, and that it was fair and just thing to have done, because he had worked on the farm for no wages for thirteen years at the time of the transfer. All of the discussions about succession occurred in this context, where it was known by all of the protagonists that it was accepted practice for the person who had worked the farm for no wages to inherit it when the current owner retired. 362 A1, [91.5] – [91.6]. 363 T100.21-23, 27, 31-33; T101.3-8, 13, 15-16, 18; T107.6; T110.12-13. 364 T111.5-13. 365 R3. 366 T495.18. 367 T500.21-31. -- 118 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 117 486 I further find that the discussions about succession occurred in the context of Denis’ ongoing and keen wish to keep Oakfront in the Cash family. 487 Taken in this context, it can be seen that there was a clear understanding in the Cash family that the child who stayed to work on the farm would take it over and make provision for their parents and siblings. This was a given. It did not arise out of the promises made by Denis in 2003, because it was an expectation that had existed for many years prior to 2003. Whether or not it was specifically mentioned in the conversations in 2003, those conversations were had against that background and the joint understanding of Denis and Vincent. Seen in this light, I do not consider that there is any significant inconsistency in Vincent’s evidence on this topic. Both he and Denis always knew that whoever took over the farm would need to provide for Denis and Mary in their retirement and make some fair provision for their siblings. 488 The respondents say that Vincent’s reactions and responses to the various succession planning meetings indicate that he did not believe that a promise had been made to him that he would inherit the farm. In particular, they say that his calculations of his foregone wages and his talk about compensation for his unpaid work are inconsistent with the notion that he expected to inherit the farm. 489 I reject this submission. Until Thomas returned to the farm, there was no suggestion by anyone, including Vincent, that Vincent should be compensated for his unpaid labour. It was only once Thomas announced his intention to return to the farm that it became important to Vincent that his years of unpaid labour be recognised in some way. I find that, at no time, did Vincent say that he sought a sum of money to compensate him for his foregone wages; the various advisors who were assisting the family, such as Ms Kelly and Mr Doudle, made that suggestion and proposed various ways to calculate an appropriate sum. Vincent, himself, did some research through Centrelink about the value of unpaid wages; I accept his evidence that he did this at the request of Ms Fitzgerald, and this was done on the basis that he would “at least” need to receive recognition for his unpaid wages. 490 I further note, from the time that Thomas announced his intention to return to the farm, Vincent expressed the view that the farm was unable to support another family. It is also clear that he did not believe that the farm had sufficient funds to make a lump sum payment to him, which view is borne out by the opinions of the various professional advisors who were involved from time to time. Of all of his family, Vincent had the most realistic view of the farm’s financial capacity; as a result, I find it inherently unlikely that Vincent would have, at any time, sought a lump sum payment to compensate him for his unpaid wages because he knew that the farm was not in a position to pay it. -- 119 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 118 491 I note the respondents’ submission that, even after Mr Nicholls told Vincent “how to concoct an equitable claim had he wanted to”,368 Mr Nicholls’ file note reported that Vincent continued to assert that he had a claim of $500,000, rather than that he had been promised ownership of the farm. 492 I consider that this submission substantially misrepresents the contents of Mr Nicholls’ file note.369 The file note records the following: • In his initial telephone call on 25 February 2015, Vincent told Mr Nicholls that he wanted to pursue a claim for underpayment of wages/contribution issues. • Mr Nicholls told Vincent that his claim against Oakfront may not be one for underpayment of wages and may be “by way of another claim”. • Because Mr Nicholls had acted for Oakfront in the past, he could not act for Vincent. • At the meeting with Denis, Vincent and Thomas on 2 March 2015, Mr Nicholls advised them that Vincent may have a claim as a beneficiary of a constructive trust over some portion of Oakfront. • Vincent advised that he believed that his unpaid wages were in the region of $500,000; as a result, he is entitled to approximately 10% of the value of Oakfront. • Mr Nicholls advised that Vincent would be entitled to “no less than 10% of the assets of the farming partnership and may even be entitled to as much as 20%.” • “Vincent’s claim cannot only be equated to loss of wages.” • Vincent said that he was happy to receive the amount of $500,000 with respect to his claim. 493 It is clear from this note that Vincent is not “asserting” a claim for $500,000; rather, he has calculated his unpaid wages to be in the sum of approximately $500,000, which is the equivalent of approximately 10% of the value of Oakfront. Vincent has denied that he told the meeting that he would be prepared to accept $500,000 to settle the dispute with Denis or that he said he would be happy to accept the sum of $350,000. I have accepted his evidence in this regard. 494 I consider that it is unremarkable that, at the meeting, Vincent did not assert a claim based on the promises made by Denis. This was the first time that he had been told that such a claim might be likely; there is no reason to believe that he, as 368 Second Respondent’s written submissions, FDN 88, [5.7]. 369 Tender Book, Tab 67. -- 120 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 119 a lay person, would have any inkling that the promises made by Denis in 2003 might give rise to enforceable rights in equity if Denis later sought to resile from them. Further, it is clear that Mr Nicholls couched his advice in the broadest possible terms, as he was conscious of the fact that he did not act for Vincent and that his client was in fact Oakfront. Thus, it is clear from his file note that he does not set out in any explicit way how or in what circumstances any promises made by Denis might result in enforceable rights. It is, therefore, not surprising that Vincent did not take this matter any further at that time. There can be no suggestion that Mr Nicholls told Vincent how to concoct a claim in equity. Mr Nicholls did no more than any competent lawyer would have done, when told of the circumstances in which Vincent had been working. 495 I am satisfied that Denis made the promises alleged by Vincent. I find that the promise that Denis made was that the farm would be Vincent’s on Denis’ retirement, subject to making provision for Denis and Mary in their retirement and providing a form of inheritance for his siblings, if Vincent returned to the farm to work in 2004. The purpose for making the promise was to ensure that Oakfront remained in the Cash family. Did Vincent form an assumption that he has or will have a proprietary interest in Oakfront? 496 I find that Vincent formed the assumption that he would have a proprietary interest in Oakfront if he returned to the farm. From the time of his return to the farm, he was treated as the owner and manager of Oakfront, even being called the owner in the share farming agreement with Mr Hull. Did Denis’ conduct in making the representation cause or materially contribute to the formation of that assumption by Vincent? 497 I have no hesitation in finding that Denis’ conduct caused Vincent to form the assumption that he would have a proprietary interest in Oakfront. Right up until Thomas expressed the intention to return to the farm, Denis treated Vincent as the farm manager and gradually withdrew from the business to allow Vincent to operate it. 498 It is clear that Denis never wanted to discuss farm succession and was resistant to putting into effect any of the succession plans devised by his advisors. Nonetheless, over time, he gave increasing control to Vincent, which allowed Vincent to continue to assume that the promises made to him in 2003 would be met. I reject the respondents’ submission that Vincent had no more than a hope that he would inherit the farm. I find that he formed a clear assumption that that would be the case, on the basis of Denis’ words and conduct, and against the historical background of Oakfront’s being passed to the son who worked on the farm without wages until his predecessor’s retirement. -- 121 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 120 Did Vincent change his position in reliance on that assumption? 499 I find that Vincent changed his position in reliance on the assumption created by Denis. He gave up his employment and his trade of nearly ten years, abandoned the course that he had been undertaking for three years, and left his friends and social life. He gave up the opportunity to be paid a wage and to accrue superannuation. He gave up the opportunity to obtain assets off the farm. He gave up the opportunity to buy a house in Adelaide. 500 The respondents submit that it would be unrealistic for Vincent to expect to be paid wages and superannuation, and that Denis and Mary have never received wages and have no superannuation. This submission, to my mind, misses the point. The point is that Vincent had a job that paid him a regular wage and paid superannuation. He did not expect to receive them when he moved to the farm. He was prepared to forego them because of the promises that Denis made to him. 501 The respondents submit that Vincent does not complain that he went without anything in the early years of his time on the farm. He was provided with accommodation, the ability to use farm equipment for personal purposes, payment of utilities and insurances and pocket money. Further, Denis made it clear that he would have endeavoured to give Vincent anything he asked for. 502 This submission simply fails to take into account the realities of Vincent’s life on the farm. It is true that he does not complain, but it is also clear that the majority of Vincent’s and Julie’s living expenses were met by Julie’s wages or by Centrelink payments. It is true that he was provided with accommodation: in a house that was dilapidated and uninhabitable, and which he had to renovate himself at his own expense and in his own time. The only insurance which the farm paid was Vincent’s motor vehicle insurance. The family’s telephone and internet expenses were paid by Julie until 2013. The reason Vincent did not complain is because he understood that this was his side of the bargain that would lead to Oakfront’s eventually becoming his. 503 Denis’ statement that he would have endeavoured to get Vincent anything he asked for is clearly fanciful. The farm did not have sufficient income to pay anything to Vincent. As Mr Bates said in 2015, the farm had been unable to pay Vincent any wages for the previous eleven years; it is inconceivable that Denis would have been in a position at any time to “get Vincent anything he asked for”. It was Mr Orfanos’ opinion that Vincent’s working without payment was one of the things that kept the farm viable; if Vincent had required wages the farm would have been, in Mr Orfanos’ words, “hopelessly insolvent”.370 504 The respondents submit, until at least 2008, minimal work was required from Vincent as a large part of the farm was leased. They acknowledge that he worked with Denis, undertaking fencing contracting work, but they make the submission, 370 Tender Book, Tab 88, p618. -- 122 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 121 “There is no evidence that anything Vincent did or contributed turned Oakfront’s fortunes around by 2008.”371 505 This submission can only be described as a nonsense. There can be no doubt that the fencing business formed an important if not main source of income during the millennium drought; between 30 March 2004 and 26 April 2009, it rendered invoices totalling $113,180.01,372 at a time when very little income was being generated by the farm. It is Denis’ evidence that he and Vincent did this work in partnership,373 and the income went to the farm. All of the income from the fencing business went to supporting Oakfront; it is a complete nonsense for the respondents to submit, as they do: …it is difficult to see why Vincent should obtain an equity based on work done on properties other than Oakfront.374 (emphasis in original) 506 It is also disingenuous for the respondents to submit that, because part of the farm was leased out, there was little other work to do. In his statement, Vincent sets out in some detail the work that he undertook when he first returned to the farm.375 Other than the general assertions by Thomas that Vincent was lazy, which I have rejected, this evidence is not challenged. 507 This submission also ignores Mr Orfanos’ opinion that, without Vincent’s unpaid labour, the farm would have been “hopelessly insolvent”. 508 The respondents submit that, rather than moving to the farm in reliance on the promises made by Denis, Julie and Vincent did no more than decide to “giving farming a go”.376 In effect, they submit that Julie and Vincent gave a commitment of only one year to the farm, and they rely on Julie’s evidence to sustain this submission. Julie said in her evidence, that she was prepared to give it a go for a year and she went on: ... So I was excited and felt committed then, I just wanted a little bit of security for myself to have my job open, and they had offered it. Work had offered me that.377 509 The respondents submit that, the fact that Julie in fact returned to Adelaide for a period of three months in May 2005 supports their submission that she and Vincent did not rely on the promises made by Denis in deciding to move to Oakfront. She returned to Oakfront in August 2005, when Vincent proposed to her, although they then did not get married until 2008. The respondents say that the fact that Vincent and Julie stayed at Oakfront after February 2008, by which time 371 Second Respondent’s written submissions, FDN 88, [8.7]. 372 Tender Book, Tab [27]. 373 T586.2. 374 Second Respondent’s submissions, FDN 88, [8.7]. 375 A1, [105]. 376 Second Respondent’s submissions, FDN 88, [8.9]. 377 T282.11-14. -- 123 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 122 Vincent had learned about the legal structures surrounding the ownership of Oakfront, must be completely unconnected to the promises made in 2003. By this time, they were aware of their position and should have taken steps to alter it if they were not happy with it. 510 This submission must be rejected. There can be no doubt that Vincent was committed to Oakfront from the outset; it is only natural that Julie should express some reservations as she had grown up in the city and had no previous experience of life on a farm. 511 I consider that Julie’s evidence is compelling, where she says: We both did not leave our longstanding jobs, friends and family, on a hope.378 512 I further reject the respondents’ submissions that, once Vincent became aware of the legal structures underpinning Oakfront, he could not be said to have relied on any promises made by Denis. I simply do not understand what is meant by their submission that he cannot have been operating under any misapprehension as to his position.379 It was entirely possible in 2008 for Denis, as the sole director and appointor, to give Vincent full legal control of Oakfront if he wished to do so. While the share was owned by Michael, he held it on trust for Denis. Denis and Mary had told Ms Poole that they were approaching retirement and that none of their children other than Vincent intended to return to the farm. Vincent was undertaking a management role and was being given increasing responsibility with respect to all of the farm’s activities. There was no impediment to Denis’ transferring control of Oakfront to Vincent if he wished to do so. 513 The evidence supports the conclusion that the promises made by Denis were being fulfilled. While ownership of the farm had not been transferred to Vincent, he was taking on increasing responsibility, in a situation where none of his siblings had expressed any interest in returning to the farm. The fact that Julie had put a safety net in place for herself in the event that she did not enjoy farm life does not detract from the fact that Denis made the promises, Vincent and Julie relied on them, and changed their positions substantially in doing so. As Julie said, if the promises had not been made, there would have been a very different conversation between her and Vincent about moving to the farm at all.380 Without being disrespectful to Julie, Denis’ promise that Vincent would take over was predicated on Vincent coming home and working – nothing would change if Julie decided to return to the city for good. Would Vincent suffer detriment if Denis were permitted to depart from the assumption? 514 I have no doubt that Vincent would suffer detriment if Denis were permitted to depart from the promises that he made. He gave up his employment and trade, 378 T298.35-36. 379 Second Respondent’s submissions, FDN 88, [8.20]. 380 T303.2-7. -- 124 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 123 he gave up his graphic design course which may have led to enhanced employment prospects, he gave up the chance to buy a house in Adelaide and he gave up the opportunity to earn a wage and accrue superannuation. If Denis were allowed to resile from his promises now, Vincent would walk away from his time on the farm with literally nothing. He would be required to start a new life at the age of 46 and with three children to support. Would it be unjust or unconscionable for Denis to depart from the assumption? 515 It would be unjust for Denis to depart from the assumptions that he caused Vincent to form. It is arguable that it is only because of Vincent’s unpaid labour that Oakfront has remained in the Cash family. It is the opinion of both Mr Orfanos and Mr Bates that Oakfront could not have afforded to pay a wage to an employee during the time that Vincent was working on the farm; indeed, after calculating the wages of a farmhand during the relevant period, Mr Orfanos says: It can be seen that the Farm would have been operating at a substantial loss in every year and would have accumulated losses of $293,075. It would appear that the Farm’s financial viability had been supported by the sale of the Trust’s investments, the receipt of interest grants and other grants as well as Vincent’s unpaid employment.381 516 In January 2015, Mr Bates says: In the past, the business has not been able to pay wages for the labour contributed by one additional family member.382 517 It is arguable that, without Vincent’s unpaid work, Oakfront would have been sold years ago. 518 In circumstances where Vincent was induced by Denis to return to the farm and then was instrumental in the farm’s remaining viable as a result of his not being paid wages, it would be unconscionable to allow Denis to resile from his promises. As I have already found, Denis was prepared to say whatever was necessary to induce Vincent to return to the farm; he must now reap what he sowed. 519 There is no doubt that Denis resiled from the promises that he made. He invited Thomas back to the farm as Vincent’s equal, without any prior discussion with Vincent and despite the fact that Vincent had been managing the farm for more than ten years. He insisted that the farm could support another family, contrary to all of the professional advice that he received. He sacked Vincent from the farm in 2016 and allowed Thomas to remain working on the farm. When Thomas left the farm in 2020, he invited Vincent back; Vincent returned and continued to work for no wages but was then sacked again in 2023. He has disinherited Vincent by the making of his 2018 will,383 in which he leaves his share 381 Tender Book, Tab 88, p617. 382 Tender Book, Tab 63, p408. 383 Tender Book, Tab 92. -- 125 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 124 in Oakfront and the power of appointment in the Oakfront Property Trust to Michael if Mary does not survive him. Thus, in the event that Mary does not survive him, he gives control of both the company and the trust to Michael. Further, he leaves an “Expression of Wishes”, in which any rights of Vincent are dependent on his not pursuing this action.384 520 I consider that Vincent has proved all of the elements necessary to establish a proprietary estoppel by encouragement. Remedies Vincent’s submissions 521 Vincent submits that, as a result of the promises made by Denis, he and Julie made life-changing decisions; if the promises are not enforced, they will suffer significant detriment. He says that he should be given the benefit of the expectation that he was induced to form. He acknowledges, however, that if a constructive trust with respect to the farm were declared in his favour, he would retain a responsibility to ensure that Denis and Mary were provided for and that his siblings received some benefit. The company’s submissions 522 The company submits that, in the event that Vincent makes out the criteria required to establish an equity in the farm, he should receive equitable compensation only, and the Court should not impose a constructive trust over the farm in his favour, including making orders for the transfer of the shares in the company or for appointing Vincent the appointor of the trust. It says that, in any event, Vincent appears to allege that the promise was that he would have the farm on his parents’ retirement (although at one point his position seemed to be that he would only receive the farm on Denis’ death). The company says that Denis has no plans to retire; as a result, the relief that Vincent seeks involves an acceleration of any benefit he might be entitled to, as Denis is neither retired nor deceased. 523 The company in fact submits that, even if he proves his case, Vincent should not be entitled to any remedy. It says that he is unable to establish that his detriment is sufficiently substantial to support a finding that it would be unconscionable to allow the company to depart from the promise. Vincent’s and Julie’s move to the farm should not be considered a life-changing decision but no more than a trial for a year. Julie, in fact, left the farm after a year and did not return until Vincent proposed marriage to her in August 2005, three months later. Given that they were not married until 2008, the Court should infer that they had not made a permanent decision to move to the farm until that time. It also submits that any promises made by Denis cannot be imputed to the company, because of Denis’ poor understanding and confusion about the relationship between the company and the trust, and their impact on his ownership of the farm. 384 Tender Book, Tab 94. -- 126 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 125 524 The company further submits that, even if I find that Vincent held an expectation as to future ownership of the farm in 2003 or 2004, he cannot have held such an expectation for long; as a result, he cannot be entitled to any significant remedy. I have already made findings with respect to the expectations that Vincent was induced to hold, and over what period, and I will not repeat those matters. 525 The company says that the Court should not make a declaration that Vincent has a beneficial interest in the shares of the company, nor should it make orders requiring Denis to transfer the shares in the company to Vincent, restraining Denis from exercising his power of appointment with respect to the trust in a manner inconsistent with the promises made to Vincent, requiring Denis to take the steps necessary to appoint Vincent the appointor of the trust or appointing Vincent the trustee of the trust pursuant to section 36 of the Trustee Act 1936 (SA). It says that, should the Court do so, it would permit Vincent to commit breaches of trust. 526 The company says that it, as trustee of the trust, owns the farm and other property, including livestock, plant and equipment. The company operates the farm business and the fencing business. By the fourth Statement of Claim, Vincent seeks a declaration only over the farmland and not over the other assets held by the company. As a result, even if he is successful in his claim and is entitled to a declaration that the land is held on trust for him, he is not entitled to a remedy with respect to the other assets held by the company. As Vincent has not himself identified any other assets than the land that should be caught by an estoppel, the Court should refrain from imposing a trust broader than the land. Vincent has made it clear that he wishes to treat the farm and all of its assets as his own; this would clearly be in breach of the terms of the trust. 527 The company says that clause 26 of the trust deed prevents the trustee from amending clause 28 of the deed; clause 28 gives Denis the power to remove a trustee and appoint a new trustee. It further provides that on Denis’ death, the power of appointment vests in Mary, and on her death, in Denis’ legal personal representative. To appoint a new trustee or a new appointor, Vincent needs to invoke the provisions of s 59C of the Trustee Act 1936, which empowers the Court to vary or revoke a trust. He has not done so, and if he were to do so, he would need to satisfy the Court that the proposed variations would not result in one class of beneficiaries being unfairly advantaged over another class. The company submits that Vincent would not be able to pass this test. In any event, the office of appointor is not a proprietary interest; even if Vincent is successful in his action, he is not entitled to an order installing him as appointor of the trust. 528 The company submits that, even if Vincent is successful in his claim, it would be disproportionate for the Court to impose a constructive trust over the land in his favour. This is on the basis that he cannot have reasonably held any expectation of obtaining the farm from Denis after around mid-2004 at the earliest and early 2008 at the latest, he did not act to his detriment but rather chose to try out life on the farm before making a decision, and any detriment that he did suffer was -- 127 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 126 outweighed by free accommodation, vehicles, utilities and insurances which were paid by the company. 529 Further, the imposition of a trust over the land would not allow for a clean break between Vincent and Denis and would impose hardship on Denis, Mary and Vincent’s siblings. Any resolution which required Denis and Vincent to live in close proximity to each other would be unworkable and would be likely to give rise to further disputes with further legal costs being incurred. Denis and Mary do not have any off-farm assets, other than a bank account in Mary’s name containing approximately $50,000. They have no superannuation and are entirely dependent on the aged pension. 530 Vincent has only undertaken to pay them an amount that he says the company can afford, in the region of $50,000 per year. This would not allow them to purchase a house or make a clean break from Vincent. The imposition of a constructive trust in favour of Vincent would impoverish Denis and Mary. This would be particularly unfair to Mary, who is not a party to this action and has not engaged in any of the conduct giving rise to a remedy. It would also be unfair to Vincent’s siblings, who would effectively lose any inheritance that they might have expected from Denis and Mary. 531 The company submits that Vincent has engaged in conduct which has diminished any equity he might otherwise have. He interfered with the farm operations by hiding farm equipment, he improperly removed other equipment owned by the company, and he caused his mother to sign the March 2023 letter in dubious circumstances. He should not be trusted with trust property or with the responsibility of maintaining Denis and Mary for the rest of their lives. 532 Given that it appears that neither the company nor Vincent has the financial resources sufficient to make a lump sum payment to Denis and Mary and provide for Vincent’s siblings, the company submits that Vincent should be entitled to no more than equitable compensation. Such a remedy is consistent with Vincent’s own position, until he met with Mr Nicholls in 2015, that he sought only financial compensation. 533 The company submits that any equitable compensation to be paid to Vincent should not be determined against the value of Vincent’s unpaid wages (a claim which Vincent has not made in this action). Rather, the Court should take a broad axe approach by reference to the amount that Vincent was prepared to accept to resolve his claim. 534 The company submits that Vincent was prepared to accept the sum of $500,000 to $550,000 in 2015; in making this submission, it relies on the evidence of Denis and Thomas about the meeting at the shed where Denis offered Vincent the sum of $500,000, Vincent’s evidence that he had done some research and reached the figure of $500,000, and Mr Nicholls’ file note that Vincent considered that he was entitled to about $500,000 but would probably be prepared to accept -- 128 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 127 $350,000. The Court would then need to take into consideration the nature of the promises made, the period of reliance, the benefits that Vincent has received over the years, and Vincent’s own conduct. Denis’ submissions 535 Denis submits that, if the Court determines that Vincent is entitled to a remedy, he should receive only equitable compensation and not a proprietary remedy. He argues that a remedy that removes him from his home of more than sixty years would be disproportionate and would entirely ignore his and Mary’s interests. 536 Denis says that, if the Court determines that Vincent is entitled to a proprietary remedy, it should be on the basis that he makes a lump sum payment to Denis. This would be consistent with the promise that Vincent says was made: that he would receive the farm on the basis that he provided for his parents in their retirement. 537 Denis argues that he and Mary should not be beholden to Vincent and any remedy should be on the basis that there can be a clean break. They should not be placed in a position where they would be vulnerable to harassment from him and may need to take legal action against him to enforce their entitlements. 538 Denis contends that Vincent’s behaviour supports his submission that any remedy should be by way of a lump sum. He submits that there is a history of Vincent’s imposing on his parents, including by sharing a bedroom with Julie before they were married, contrary to Denis’ and Mary’s strong beliefs. Further, he interfered with the farming operations by removing farm equipment, Denis and Vincent no longer speak to each other, and Vincent procured Mary’s signature on the March 2023 letter when he was aware that she was suffering from mental health issues. 539 Denis criticises Vincent for asserting that he and Mary could only choose their place of residence if it was within the bounds of an amount that the company could afford to pay. This leads to the inference that Vincent’s view is that his own interests should come first and Denis’ and Mary’s should be subjugated to those interests. Further, while Vincent said that the farm could afford to pay Denis and Mary $50,000 per annum, he was unable to say how the farm could afford to pay them a lump sum to purchase a residence. Indeed, Vincent’s solution to the issue of providing for Denis and Mary did not appear to involve the payment of a lump sum to them to facilitate a clean break. As a result, it must be concluded that there will be a clear conflict between Vincent’s interests on the one hand and Denis’ and Mary’s on the other. 540 Denis submits that the joint email from Mr Young and Mr Harris set out the only options available for Vincent to retain the farm. He says that Mr Harris appropriately acknowledged that the amount Vincent proposed for his own family’s income did not seem sufficient and, in particular, did not take into account -- 129 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 128 his wish to send his children to boarding school. Further, while the long-term profits of the farm are likely to be better than in the past, they are unlikely to be as good as the last couple of years, which have been unusually good. Mr Harris’ view was that the most reliable income from the farm would be through leasing it. 541 Mr Young estimated that the lump sum amount that Denis and Mary would require to maintain their current lifestyle and to purchase a house was $2,288,952. This evidence was uncontested. His evidence was that Vincent and the farm would not be able to borrow the amount necessary to make a lump sum payment of this amount. Consideration 542 Before I consider the principles to be applied in determining the remedy that is most appropriate, I will deal first with the submissions made by the respondents. 543 First, I reject the company’s submission that Denis has not retired and has no intention of retiring. Denis has been on the full aged pension for many years. There is no evidence that he has undertaken any work on the farm since at least 2020. Indeed, his own evidence is to this effect: In the past two years, I have not taken part in work activities on the farm. I had a couple of bad years with my health. I injured my leg was diagnosed with a broken leg and damaged ACL ligament (sic) and I ended needing a knee replacement. I was in wheelchair (sic) for six months because of delays in elective surgery due to the COVID-19 pandemic. I was then diagnosed with prostate cancer, and I had radiation treatment for that in 2021 and it left me weakened in 2022 until about October 2022.385 544 This evidence is taken from his statement of evidence in chief. It is undated, but was filed with the Court on 15 August 2023. I infer from this statement that it is, in fact, more than two years since Denis has worked on the farm. I make this inference on the basis that he dates his treatment for prostate cancer to 2021 and his leg and knee injury predated that diagnosis. This has led to my conclusion that he has not undertaken any work on the farm since at least 2020. No evidence was given to suggest otherwise. 545 In addition, I have already found that, by about 2012, Vincent was undertaking the majority of the physical work on the farm. There can be no doubt that Denis is long retired. I date his retirement from the time when he commenced receiving the full aged pension. Denis’ evidence is that he has been on the full aged pension for quite some time, although he did not know exactly how long.386 He was able to recall that he was in receipt of the full pension in 2016.387 546 Second, I reject the company’s submission that Vincent is unable to establish that his detriment is sufficiently substantial to support a finding that it would be unconscionable to allow the company to depart from the promise. I have already 385 R8, [164]. 386 T502.6-9, T704.1-3. 387 T703.35. -- 130 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 129 set out my reasons on this question. I have found that Vincent gave up his employment, his trade and his course of study on the strength of the promises made by Denis. He gave up the opportunity of being paid regular wages and receiving superannuation. He gave up the chance to buy property in Adelaide. He and Julie made fundamental and dramatic changes to their lives on the basis of the promises made by Denis and suffered significant and irreparable detriment thereby. 547 Third, I reject the company’s submission that any promises made by Denis cannot be imputed to the company, because of Denis’ poor understanding and confusion about the relationship between the company and the trust, and their impact on his ownership of the farm. Denis understood the fundamentals of the legal position: that he controlled the farm and the trust. It was and remains in his power to transfer full control to Vincent, by transferring the share in the company to him, making him a director, and appointing him his legal personal representative in his will, so that Vincent obtains the power of appointment on his death. While I have no doubt that he would have needed to seek advice about these steps, he has always known that it is within his power to transfer full control of the company and the trust to someone else if he wanted to. 548 Fourth, I reject the company’s submission that Vincent has only sought a remedy with respect to the property owned by the trust and not the other assets of the farm, including its livestock, plant and equipment. In Part 1 of the Fourth Statement of Claim,388 Vincent seeks the transfer of the sole share in the company held by Denis and in Part 4, he seeks a declaration that he has a beneficial interest in the shareholding of the company by way of a constructive trust, and an order for the transfer of that share to him. Ownership of the livestock, plant and equipment and other assets of the company would remain with the company, ownership of which would be transferred to Vincent. 549 Fifth, I reject the submission of both the company and Denis that Vincent engaged in conduct that effectively disentitles him to a proprietary remedy. I made no findings about the evidence given by Thomas about Vincent taking company property. I consider that this evidence is tainted by the findings of credibility that I have made about Thomas. I have no doubt that there was fault on both sides. As to the conduct that Vincent admitted, such as removing the drafting gates, these items were not removed from the farm and were returned immediately on their being requested.389 The fact that Denis and Thomas chose to approach their lawyer rather than Vincent for the return of those items is a matter for them. There is no evidence that any detriment was suffered by the farm or the trust as a result of those actions. 550 Sixth, I reject the contention of the company and Denis that Vincent forced Mary to sign the March 2023 letter in dubious circumstances. I have already rejected Mary’s evidence that this was the first time that she had learned of one of 388 FDN 59. 389 See R5. -- 131 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 130 the core planks of Vincent’s claim. I have concluded that Mary wrote the letter of her own volition based on her honest belief that parts of the defence were not true and a desire to prevent the matter proceeding to trial. I have concluded that she sought to resile from that position in her evidence as she knew that it would damage Denis’ case. I accept that Mary may have been depressed and anxious about the upcoming trial. I reject the contention that her depression or anxiety allowed Vincent to unduly influence her or force her to do something against her will, noting that there is, in fact, no medical evidence of Mary’s mental health and she sought “a little” help for it but “didn’t go on with it”.390 551 Seventh, I have already rejected the company’s contention that Vincent indicated that he would be prepared to accept the sum of $500,000 to settle the claim. 552 Eighth, I reject Denis’ submission that Vincent has historically imposed upon and disrespected his parents indulging by sharing a bedroom with Julie prior to their marriage. I consider that Denis’ need to secure free labour for the farm was greater than any scruples that he had about Vincent and Julie sharing a bedroom. The principles 553 In The Commonwealth v Verwayen,391 Deane J said: To acknowledge the fact that the relief appropriate to a case of estoppel by conduct may vary according to the circumstances is not to suggest that relief is to be framed on an unprincipled basis. Prima facie, the operation of an estoppel by conduct is to preclude departure from the assumed state of affairs. It is only where relief framed on the basis of that assumed state of affairs would be inequitably harsh, that some lesser form of relief should be awarded.392 554 In the case of Delaforce v Simpson-Cook,393 the New South Wales Court of Appeal made it clear that, in determining the relief to be granted in a case of proprietary estoppel, the Court is not required to do the “minimum equity”. Allsop P said: I agree in particular with Handley AJA that the reasons of Gleeson CJ, McHugh, Gummow and Callinan JJ in Giumelli v Giumelli [1999] HCA 10; 196 CLR 101 appear to remove as a governing principle in the relief to be granted in equitable or proprietary estoppel cases the notion of enforcement or vindication only of the “minimum equity”: see Giumelli at 123-125 [40]-[48]. That, of course, does not make irrelevant matters that can assuage the detriment brought about by the resiling from the representation or encouragement by the party concerned. It does mean, however, that relief in such cases is not to be measured by weighing detriment too minutely in order that it be converted into some equivalent of cash or kind, as if one were measuring the consideration for a commercial bargain. Equity will look at all the relevant circumstances that touch upon the conscionability (or not) of resiling from the encouragement or representation previously made, including the nature and 390 T745.7. 391 (1990) 170 CLR 394. 392 Ibid, 443. 393 [2010] NSWCA 84. -- 132 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 131 character of the detriment, how it can be cured, its proportionality to the terms and character of the encouragement or representation and the conformity with good conscience of keeping a party to any relevant representation or promise made, even if not contractual in character. Equity has always had a place in keeping parties to representations or promises: see for example, Burrowes v Lock (1805) 10 Ves Jr 470; 32 ER 927; Horn v Cole 51 NH 287; 12 Am Rep 111 (1868); J N Pomeroy, A Treatise on Equity Jurisprudence Vol 3 (5th ed, 1941) at 179-188 [802]-[803]; R Meagher, J Heydon and M Leeming, Meagher, Gummow and Lehane’s Equity: Doctrine and Remedies (4th ed, 2002) at 556-560 [17- 065]-[17-070] and 567-568 [17-110]. Proportionality of the claimed interest or remedy to the prejudice or detriment is undeniably a relevant consideration, and sometimes of considerable importance. It should not, however, be transformed into a necessary constitutive element of a cause of action to be pleaded or proved by the party seeking relief. To do so would elevate one consideration above others, and in particular above the importance of making good an expectation by encouragement or representation: Plimmer v Mayor of Wellington (1884) 9 App Cas 699 at 713-714; Riches v Hogben [1985] 2 Qd R 292; Giumelli at 113-114 [10] and 121-122 [35]. It would tend to equate the analysis to one requiring that the party encouraged receive no more than it can prove that it suffered in detriment. This would see the equity become one of compensation for proved equivalent detriment. The equity is a broader one based on the just and conscionable satisfaction in appropriate fashion of the equity arising from the expectation created in another by encouragement or representation. As Handley AJA says, the role of proportionality is better understood, in a doctrine dealing with the legitimacy or otherwise of resiling from an encouragement or representation that has created an expectation, as assisting in an assessment whether what is claimed or contemplated to be granted is disproportionate or unjust in all the circumstances. The importance of keeping a party to a representation or encouragement previously made is all the stronger where, as here, the encouragement or representation has been relied upon by a party to abandon a course of conduct that could possibly have led to a different outcome. This can be described in the language of loss of a chance that is not fanciful or unrealistic, or in the language of proceeding thereafter on the basis of a new or changed convention or conventional basis.394 555 The principles set out in Verwayen and Dellaforce were applied by Nicholson J in Rodda & Anor v Ian Rodda Pty Ltd & Anor,395 where he said: The starting point for the remedy is the fulfilment of the expectation engendered. It is not necessarily the case that a claimant should be restricted to receiving no more than it can prove that they suffered by way of detriment. It is not a case of identifying an equity in terms of compensation for proved equivalent detriment.396 556 It is clear that a remedy must be identified which protects Vincent from the detriment which he would suffer if Denis were allowed to resile from the promises that he made and the assumptions that he encouraged Vincent to form. I consider that, prima facie, there is no reason not to grant Vincent a proprietary remedy: he is entitled to a declaration that Denis holds his share in the company on 394 Ibid, [3] – [5]. 395 [2015] SASC 95. 396 Ibid, [306]. -- 133 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 132 constructive trust for Vincent and to consequential orders that would give him full control of the company and the trust. 557 I consider that this is a case where the promisor should be kept to the promises that he made. As I have already found, Vincent and Julie made fundamental and irrevocable changes to their lives on the basis of Denis’ representations. 558 I do not consider that the question of acceleration of benefit arises in this matter. As I have found, the promise was that Vincent would receive the farm on Denis’ retirement; this was accompanied by the corollary promise that Vincent would provide for Denis and Mary in their retirement. Denis retired many years ago; as a result, Vincent’s entitlement to the farm arose some time in the past and has not been accelerated by my findings in this action. 559 The question of proportionality is a difficult one. In E Co v Q,397 Ward CJ in Equity considered the question of proportionality and after reviewing a number of authorities on the topic, said: Accordingly, it follows that proportionality will be applicable in the present case only if “proprietary relief” is “out of all proportion” to the detriment (Priestley v Priestley) which, on the balance of probabilities, the plaintiffs have sustained.398 560 On appeal,399 the New South Wales Court of Appeal said the following about proportionality and appropriate relief: There is no dispute that the sons are prima facie entitled to have their expectation made good: Sidhu at [85]. What is disputed is whether the primary judge erred in not departing from that presumption, having regard to what is said to be the disproportion between the value of that expectation and the detriment suffered by B and C. With respect to that dispute the parties rely on their submissions on ground 4, including as to whether the sons' case is one to which Nettle JA's observations in Donis are applicable. For that reason two observations made in dealing with ground 4 are again relevant. First, the sons' detriment is to be considered as part of a broad inquiry as to whether good conscience requires Q to make good the sons' expectation: AFSL v Hill at [88]; Donis at [20]. Considerations other than detriment are relevant to that inquiry (Delaforce at [3]-[4]), including the nature of the expectation and the conduct of the relevant parties in inducing or relying on it. Q's (correct) submission that a court of equity “goes no further than is necessary to prevent unconscionable conduct” (citing Waltons Stores at 419) directs attention to the role of proportionality between relief and detriment in assessing what good conscience requires. Secondly, it is clear from Sidhu at [84]-[85] that the prima facie measure of relief will “usually” be consistent with conscientious conduct, regardless of whether the party making the claim took “life-changing decisions with irreversible consequences of a profoundly personal nature”. That statement gives compendious expression to the principles governing the assessment of detriment. It is not itself a test. Only in relatively unusual cases, including 397 [2018] NSWSC 442. 398 Ibid, [1191]. 399 Q v E Co, [2020] NSWCA 220. -- 134 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 133 those in which detriment involves only “a relatively small, readily quantifiable monetary outlay”, will some lesser relief be appropriate.400 561 I do not consider that the enforcement of the promise is out of proportion to the detriment suffered by Vincent. I have already set out at some length the irremediable detriment that he has suffered. In fact, I consider that the only relief which would be proportionate to the detriment that he has suffered is a remedy that requires Denis to make good the promises that he made. 562 That, in itself, is not the difficult question. The difficulty arises because of the marginal profitability of the farm, which causes an obvious tension between doing justice to Vincent on the one hand, while providing for Denis and Mary, and also ensuring that his siblings receive some form of inheritance. This case is not like others to which reference has been made, such as Rodda and E Co, where the farms in question were extremely profitable and asset-rich, and where significant off-farm assets were owned. In this case, while the land has considerable value, the profit made from the farming business has been insufficient to support two families for most of the past twenty years. 563 I accept that, given the complete breakdown in the relationship between Vincent and Denis, a remedy which allows a clean break is desirable. I note that the evidence of Denis and Mary as to their hopes for the future are somewhat unclear. Mary appears to suggest that she wants to stay neither on the farm nor on the Eyre Peninsula, but wants to move to Adelaide.401 Denis on the other hand, would like to continue to live at Oakfront, even if the Court finds in favour of Vincent, until he is no longer able to live independently.402 He recognises that a time may come when he is unable to live independently and may need to move to Streaky Bay or Adelaide.403 Ideally, a lump sum figure should be allowed to them for their future needs. 564 I reject as unreasonable the lump sum formulated by Mr Young. Mr Young’s figure is not based on the reality of the situation at hand, but appears to have been calculated as if any success by Vincent in this action should have no impact on Denis and Mary save that they may need to move residence. The amount recommended for the purchase of a residence ($1,502,408) in Goodwood is well above the median house price in neighbouring suburbs,404 an extremely generous amount ($70,000) is allowed for redecorating and furnishing the house, and an amount has been allowed for five overseas trips for each of Denis and Mary. This is excessive. The amount of $2,288,952 sought by Denis on the basis of Mr Young’s report is simply unrealistic as it does not acknowledge that the farm has no ability to raise this sum. 400 Ibid, [167] – [169]. 401 R1-22, [84]. 402 R8, [175]. 403 R8, [177]. 404 R1-12, p4. -- 135 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 134 565 In calculating the appropriate lump sum for Denis and Mary, the purpose of the promise made by Denis must be remembered. Denis made the promise in order to ensure that Oakfront remained in the Cash family and was not sold. As a result, any lump sum payable to them must be calculated on the basis that the farm remains viable. Further, a remedy that requires Vincent to borrow a large sum of money would amount to no remedy at all for him. He would continue to work the farm to repay a loan for the sole benefit of Denis and Mary and not for the benefit of himself and his own family. 566 I turn to the options referred to in the joint email from Mr Harris and Mr Young.405 I consider that none of the options proposed takes into consideration Vincent’s position; rather, they are formulated on the basis of obtaining the best possible outcome for Denis and Mary. The vendor finance option would require Vincent to work for the rest of his life repaying a loan to benefit his parents and his siblings. The option to sell the farm in its entirety is based on the proceeds of sale being divided “as per Denis and Mary (sic) wishes to themselves and siblings”. There is no benefit to Vincent at all in this proposal. The option of selling the non-arable land, with the net proceeds going to Denis and Mary fails to assess the viability of the farm consequent on the loss of that land. The option of Vincent leasing the farm from Denis and Mary, with Vincent having an option to purchase the farm on their death is again no remedy in favour of Vincent at all. 567 Mr Harris’ report406 is more realistic, in that the recommendations that Mr Harris makes are based on a calculation of what the farm can afford. However, it is difficult to formulate any payment for Denis and Mary on the basis of his report, because, having considered three different methods of calculating an amount that the farm could afford to pay to them, his conclusions range from $0 per annum to $180,000 per annum. 568 The first method, which leads to the conclusion that there would be no ability to pay any sum to Denis and Mary, is based on a review of the historical trading position of the farm. Based on the weighted annual cash profit over ten years to 30 June 2021, Mr Harris concluded that the farm’s annual profit was insufficient to allow any amount to be paid to them on an annual basis. 569 The second method led to the result that there would be an ability to pay Denis and Mary the sum of $50,000 per annum. This method was based on the entirety of the farm being leased. While this solution would allow an income to be paid to both Vincent on the one hand and Denis and Mary on the other, it would prevent Vincent from being able to farm the land himself contrary to the promise made by Denis and to Vincent’s wishes. 570 The third method is based on a cashflow forecast, and results in an amount of $180,000 per annum being available for Denis and Mary. The cashflow forecast 405 R7. 406 A6. -- 136 of 137 -- [2024] SASC 47 Auxiliary Justice Bochner 135 is significantly higher than the farm’s historical trading figures and being able to maintain this cashflow is dependent on many things outside of Vincent’s control, including weather conditions and commodity prices. It does not take into consideration the risk of a drought or other poor conditions. 571 None of these solutions seems satisfactory. 572 I consider that there are several different ways that Vincent’s equity can be satisfied, while allowing him to make provision for his parents and, in time, his siblings. 573 The first solution involves the declaration (as against Denis) of a constructive trust in favour of Vincent over the company’s share and a further declaration (as against the company) of a constructive trust in favour of Vincent over the land, combined with orders that would facilitate his becoming the appointor of the trust, or at least prevent the appointor acting in a way that is inconsistent with this judgment. Denis and Mary would be given the equivalent of a life interest in the homestead and an entitlement to the income derived from the Haystacks. After Denis’ and Mary’s death, the income from the Haystacks would go to Vincent’s siblings in equal shares. While this solution does not allow for a clean break, it has the benefit of allowing a viable farm to remain in the Cash family. The Greenhouse and the homestead are sufficiently distant to allow Vincent and Denis to avoid each other and orders could be structured so as to ensure that the income from the Haystacks is paid directly to Denis and Mary. 574 The second solution would involve the payment of equitable compensation to Vincent. Given the nature of the promise made by Denis, I see no reason why Vincent would not be awarded compensation in the sum of the full value of the land, less an amount for Denis’ and Mary’s ongoing maintenance. After Denis’ and Mary’s death, the remainder of their fund would pass to Vincent’s siblings. I would need to receive further submissions from the parties on the amount of the fund for Denis and Mary, given that I have rejected as unrealistic the figure proposed by Mr Young. The problem with this solution is that Oakfront would be sold. 575 Now that I have determined that there is to be a remedy granted to Vincent, and I have described the nature of the remedy, I invite the parties to make further submissions on the remedy that would be most appropriate in the circumstances. I also invite Denis to provide evidence of the date on which he commenced receiving the full aged pension; it will be from this date that the constructive trust in favour of Vincent will be imposed, as this is the date on which Vincent’s expectations should have come to fruition. 576 I further invite the parties to prepare draft minutes of orders to reflect the two solutions that I have identified. 577 In due course, I will hear the parties on the question of costs. -- 137 of 137 --