STEVEN WAYNE BULL v BEVAN JAMES BULL [2024] SADC 109

Applicant: STEVEN WAYNE BULL Counsel: MS K CLARK SC WITH DR V GILLILAND - Solicitor: MILDWATERS LAWYERS First Respondent: BEVAN JAMES BULL Counsel: MR T COX KC WITH DR H TONKIN - Solicitor: CAMETTA LEMPENS Second Respondent: VALERIE JOAN BULL Counsel: CAMETTA LEMPENS - Solicitor: MR T COX KC WITH DR H TONKIN Hearing Date/s: 18/10/2022, 19/10/2022, 20/10/2022, 21/10/2022, 24/10/2022, 25/10/2022, 26/10/2022, 27/10/2022, 28/10/2022, 12/12/2022 File No/s:DCCIV/21/006108 B DISTRICT 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. STEVEN WAYNE BULL v BEVAN JAMES BULL AND VALERIE JOAN BULL [2024] SADC 109 Judgment of his Honour Judge Burnett 17 September 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 The applicant seeks a declaration that farming land owned by the respondents is held on constructive trust for his benefit. The applicant is the son of the respondents. The applicant has worked on the farm since 1984: first, as an employee of the partnership that then operated the farm and from 1994 as a partner of a new partnership that carried on the business of operating the farm. The respondents were also partners of that partnership. The land upon which the farming business was conducted was initially owned by Francis Bull, the grandfather of the applicant and the father of the first respondent. Up until 2017, the respondents owned only a small parcel of the farming land. From 1996, further land was acquired which forms part of the land upon which the farming business was conducted. This land was acquired in the name of the applicant or the company which acted as trustee for his family trust. Francis Bull died in 2015. In 2017, after a dispute involving Francis’ will, the first respondent became the owner of the land previously held by Francis. -- 1 of 122 -- From about 2015, the relationship between the applicant and the respondents deteriorated. The partnership between the applicant and the respondents was terminated on 31 January 2020. The respondents have changed their will such that they now will leave the farming land equally to all five of their children, including the applicant. Issues relating the termination of the partnership, but not of the land, were settled at mediation in June 2020. The applicant’s claim for a declaration of a constructive trust is based on proprietary estoppel by encouragement, promissory estoppel or failure of a joint venture. The applicant contends that the respondents promised him that if he worked on the farm and invested his work and wages in the farm, then one day the farm and the partnership would be his. The applicants claims that the promise was first made in 1984 and was repeated on many occasions. The applicant claims that the respondents have resiled from that promise. Held: (1) The claim of the applicant is dismissed. The essential elements of a claim in proprietary estoppel by encouragement as set out in Carter v Brine [2015] SASC 204 have not been established. (2) Promises in the context of a family arrangement do not need the same degree of certainty as those in a commercial or arms lengths context. What is important is how the promise was reasonably understood by the representee: E Co v Q [2018] NSWSC 442 applied. (3) The respondents did not either expressly or indirectly make any representation that the applicant would one day inherit or receive the farming land. The making of such a promise was inconsistent with offers that the applicant made to purchase the land at a fair price and requests that he made of the respondents that he be given the opportunity to purchase the land. (4) Reliance raises two questions: did the applicant in fact rely upon the alleged representation and would he have acted differently if the promise had not been made. Reliance need only be a contributing cause, not a sole or predominant inducement: E Co v Q [2018] NSWSC 442, Pirrottina v Pirrottina [2024] NSWSC 558 applied. The applicant has not established reliance. (5) It is detrimental reliance which makes an estoppel enforceable. Detriment need not be purely pecuniary and may be lifechanging decisions with irreversible consequences of a personal nature. The relevant detriment is not the loss flowing from the non-fulfilment of the promise but the loss the party asserting the estoppel would suffer as a result of their original change of position: Sidhu v Van Dyke (2014) 251 CLR 505 applied. The applicant's evidence that he always wanted to be a farmer and the fact that through the partnership, he gained the opportunity to acquire a significant landholding in his own name and in his Trust, leads to the conclusion that he had not suffered relevant detriment. (6) Prima facie, the Court will enforce a reasonable expectation which the party bound created or encouraged. It is no longer the case that relief will be moulded to reflect the minimum relief necessary to remove the detriment: Sidhu v Van Dyke (2014) 251 CLR 505 applied. (7) Although promissory estoppel and proprietary estoppel identify different characteristics as to when the estoppels might arise, in the circumstances of this case, the claim in promissory estoppel does not expand upon the conduct that would be caught by proprietary estoppel: Ashton v Pratt (2015) 88 NSWLR 281, DHJPM Pty Ltd v Blackthorn Resources Ltd (2011) 83 NSWLR 728 applied. (8) The claim for a declaration of a constructive trust based on a joint venture that has failed is also dismissed. The basis of such a claim is that equity would not permit a party to retain the benefit of property where it would be unconscionable for them to do so: Muschinski v Dodds (1985) 160 CLR 585 applied. In this case, the joint venture was the farming business conducted over the applicant’s and the first respondent’s land. There is no unconscionability in the parties’ retaining their respective landholdings in circumstances where no representation had been made that the applicant would receive or inherit all of the farming land. -- 2 of 122 -- Jones v Dunkel (1950) 101 CLR 298; Ho v Powell (2001) 51 NSWLR 572; Australian Securities & Investments Commission v Rich (2009) 75 ACSR 1; Smith v Samuels (1976) 12 SASR 573; Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; Payne v Parker [1976] 1 NSWLR 191; Ward v Apprice (1704) 6 Mod Rep 264; Sidhu v Van Dyke (2014) 251 CLR 505; Delaforce v Simpson-Cook (2010) 78 NSWLR 483; Ashton v Pratt (2015) 88 NSWLR 281; Doueihi v Construction Technologies Australia Pty Ltd (2016) 92 NSWLR 247; Rocco Condello v Sung Soo Kim [2018] NSWSC 394; Thorner v Major [2009] 1 WLR 776; Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; E Co v Q [2018] NSWSC 442; Flinn v Flinn [1999] 3 VR 712; Gillett v Holt [2001] Ch 210; Q (a pseudonym) v E Co (a pseudonym) (2020) 383 ALR 469; Carter v Brine [2015] SASC 204; Austotel v Franklins Self-Serve Pty Ltd (1989) 16 NSWLR 582; Equititrust Ltd v Franks (2009) 258 ALR 388; DHJPM Pty Ltd v Blackthorn Resources Ltd (formerly called AIM Resources Ltd) (2011) 83 NSWLR 728; Pirrottina v Pirrottina [2024] NSWSC 558; Evans v Evans [2011] NSWCA 92; Bell Group Ltd (in liq) v Westpac Banking Corporation (No 9) (2008) 39 WAR 1; Sullivan v Sullivan [2006] NSWCA 312; Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd (2016) 260 CLR 1; Giumelli v Giumelli (1999) 196 CLR 101; Cowper-Smith v Morgan [2017] 2 S.C.R. 754; Wheatley v Salmon [2022] NSWSC 395; Masters Home Improvement Pty Ltd v North East Solution Pty Ltd (2017) 372 ALR 440; Fitzgibbons v Shaftsbury Pty Ltd [2011] NSWSC 525; Cesira Ravagnolo (by her tutor Katerina Skinner) v Lang Ravagnolo; Lang Ravagnolo v Cesira Ravagnolo [2024] NSWSC 662; LCY Pty Ltd v Ma [2017] VSCA 383; Wantagong Farms Pty Ltd as trustee for the Bulle Family Trust v Bulle (Wantagong) [2015] NSWSC 1603; Grundt v The Great Boulder Proprietary Gold Mines Limited (1937) 59 CLR 641; Harris v Harris [2021] VSCA 138; Donis v Donis (2007) 19 VR 577; Commercial & General Corp Pty Ltd v Manassen Holdings Pty Ltd [2021] SASCFC 40; Rodda v Ian Rodda Pty Ltd [2015] SASC 95; Dowsett v Reid (1912) 15 CLR 695; Gail v Mitchell (1924) 35 CLR 222; Muschinski v Dodds (1985) 160 CLR 583; Baumgartner v Baumgartner (1987) 164 CLR 137; Shepherd v Doolan [2005] NSWSC 42; West v Mead [2003] NSWSC 161; Sivirtas v Sivirtas [2008] VSC 374; Nolan v Nolan [2015] QCA 199, considered. -- 3 of 122 -- -- 4 of 122 -- STEVEN WAYNE BULL v BEVAN JAMES BULL AND VALERIE JOAN BULL [2024] SADC 109 Introduction 1 These proceedings concern a claim by the applicant, Steven Bull (Steven), for a declaration that farming land situated near Kadina on Yorke Peninsula and owned by the respondents (the Farming Land) is held on constructive trust for the benefit of Steven. 2 Steven is the son of the first respondent, Bevan Bull (Bevan), and his wife, the second respondent, Valerie Bull (Valerie). Steven’s partner is Elizabeth Berger (Liz). They met and formed a relationship in about 1997. They have two children, Ryan and Joshua. 3 Steven has worked on the farm since 1984: first, as an employee of the partnership that then operated the farm and from 1994 as a partner of a new partnership that carried on the business of operating the farm. Throughout the period from 1984-1994, the majority of the land upon which the farm business then operated was owned by Francis Bull (Francis), the grandfather of Steven and the father of Bevan. During that period, Bevan owned a small parcel of land in his own name (section 899) and some land jointly with his brother, Ian Bull (Ian) and Francis. From 1996, further land has been acquired and forms part of the land upon which the farming business has been conducted. Five parcels of land were acquired in the name of Steven or his trustee company, Bull Holdings Pty Ltd, which holds the land as trustee for the Bull Family Trust (the Trust). 4 On 23 May 2015, Francis died. Following a dispute with his siblings, Bevan brought proceedings challenging Francis’ will (the estate litigation). As a result of the settlement of the estate litigation, Bevan became the owner of the land held previously by Francis, although on condition that he pay his siblings the sum of $1 million. 5 From about 2015, the relationship between Steven and Bevan deteriorated. On 31 January 2020, the partnership between Steven, Bevan and Valerie that conducted the farming business was terminated. Issues relating to the termination of the partnership were settled at mediation in June 2020. 6 Steven brought these proceedings in 2021. Steven seeks a declaration of a constructive trust over the Farming Land based on proprietary estoppel by encouragement or promissory estoppel. Steven seeks a declaration of a constructive trust over all of the Farming Land including the land which Bevan and Valerie have an interest as tenants in common. Alternatively, Steven seeks equitable compensation. Steven claims that Bevan promised him that if he worked on the farm and invested his work and wages in the farm then one day the farm and the partnership would be his. Steven claims that the promise was repeated on many occasions. Steven contends that he has relied upon the promises to his -- 5 of 122 -- [2024] SADC 109 2 detriment. Steven claims that Bevan and Valerie have reneged on that promise and have stated that they intend to leave the Farming Land equally between their five children, including Steven. 7 Steven also seeks the declaration of a constructive trust based on the failure of the joint venture, namely the farming operation. 8 In opening, senior counsel for Steven said that the imposition of the constructive trust needed to be crafted in such a way that ensured a clean break between the parties. Therefore, it was submitted that the order for the constructive trust would be subject to conditions requiring Steven to: (1) pay the costs of the transfer; (2) pay some form of compensation for Bevan and Valerie’s loss of income (by the accelerated transfer for the Farming Land to Steven); (3) make income available to Bevan and Valerie to fund their retirement; and (4) pay some form of compensation to Steven’s siblings that recognises that he pay them a fair price for the land. That, it was submitted, could take the form of the transfer of some of the land or that Steven receive less than the whole of the land. In his written closing, Steven submitted that the remedy could take the form of declaring a trust only over the land held in Bevan’s sole name. In that way, it was submitted, the requirement that Steven provide for Bevan and Valerie in their retirement and that Steven’s siblings receive some form of inheritance would be satisfied without the need for any further conditions. 9 Bevan and Valerie deny the claims. They deny that promises that Steven would inherit or receive the Farming Land were ever made and say that if any representations were made, they were vague and ambiguous. They further claim that Steven did not form the required expectation as a result of any promise that they might have made. Bevan and Valerie further deny that Steven actually relied on any promises made or that it was reasonable for him to do so. Bevan and Valerie deny that Steven has established any detriment. Lastly, they deny that Steven is entitled to the relief sought given the impact of the orders sought by him on his parents and siblings. 10 Bevan and Valerie brought a cross-claim in which they sought relief relating to the agreement that the parties had entered into relating to the dissolution of the partnership. Following the conclusion of the hearing, the parties resolved the cross claim. I will hear the parties as to the formal orders they wish to make in relation to the cross claim but will not deal with the cross-claim in these reasons. -- 6 of 122 -- [2024] SADC 109 3 Overview of the claim 11 Steven claims that a promise was made by Bevan in January 1984 when Steven first commenced working as an employee on the farm for the partnership FD Bull & Sons, which was the partnership then operating the farm. FD Bull & Sons was a partnership of Francis, Ruth (Francis’ wife), Bevan, Valerie and Ian (Bevan’s elder brother and the oldest son of Francis and Ruth) and Helen (Ian’s wife). Steven alleges that Bevan said to him on numerous occasions that Francis had promised Bevan that if Bevan invested his work and wages in the farm, then one day the farm and the partnership would be his and that he intended to treat Steven in the same way, namely that if Steven invested his work and wages in the farm, then one day the farm and the partnership would be his.1 Steven alleges that he relied on this promise by working long hours for the partnership and foregoing the opportunity to earn off-farm income.2 12 As at 1984, most of the land upon which the farming business was conducted was owned by Francis. Bevan owned only a small amount of land in his name and owned some further land jointly with Francis and Ian. 13 In December 1993, Ian and Helen gave notice of their intention to retire from the FD Bull & Sons partnership. In January 1994, a new partnership was formed called Anidak Pastoral (Anidak). That partnership comprised Francis, Ruth, Bevan, Valerie and Steven. Following a dispute with Francis and Ruth, in July 1995 a further partnership was formed, BJ, VJ & SW Bull (the Partnership), which carried on the farming business. Bevan, Valerie and Steven were the partners of the Partnership.3 Anidak continued to carry on some business for a period of time but gradually wound down its operations. The Partnership carried on business until 31 January 2020. 14 Steven alleges that in the negotiations leading up to the dissolution of the FD Bull & Sons partnership in about 1994 and shortly thereafter, Bevan repeated and confirmed his earlier promise and represented to Steven that if he did the things asked of him, then he would inherit the farm and the farm and the partnership would be his. 15 Steven alleges in his statement of claim that the promises were confirmed on many occasions in the period between 1993 to 2020. Steven alleges that Bevan made promises to him: (1) when trading in plant and equipment or purchasing new plant and equipment; 1 Statement of Claim [49]/ 2 Ibid, [25]. 3 Ibid, [13], [27]-[31]. -- 7 of 122 -- [2024] SADC 109 4 (2) at lunchtime discussions with Bevan and Valerie to the effect that it was Steven who was working on the farm and the other children were not and therefore it was fair that Steven would get the farm; (3) in discussions with Bevan and Valerie, that Steven would one day own all of the Farming Land and plant and equipment but would have to pay a “fair price” for the Farming Land to his siblings (which would not be an equal share but that upon the death of the survivor of Bevan and Valerie, Steven would have to make a nominal payment over time to his siblings). A fair price would also involve Steven funding Bevan and Valerie’s retirement in Kadina and providing them with ongoing income; (4) when purchasing further land in Steven’s name in 1996, that Steven should end up with the land without having to fight for it and engage in litigation with his siblings as he, Bevan had been required to do when Francis resiled from his own promise. Steven should get the land because he was working to pay for the farm, was responsible for debt and had to put wages back into the farm if he wanted to get it and shouldn’t have to pay for it twice; (5) when Steven’s request for an increased draw of profits after the birth of his son was refused because Steven would one day receive the Farming Land; (6) in about 2008, when renovating his transportable house, to stop further work and not spend further money because Steven would live in Bevan and Valerie’s house and he would have the farm and look after Bevan and Valerie in their retirement; (7) In about 2009, when purchasing additional farming land, Bevan said to Steven that the land should be purchased in an entity that would protect it from being attacked by Steven’s siblings; (8) Prior to 2017, Bevan told Steven that one of his siblings had asked what Steven would inherit and Bevan said that he had told that sibling that Steven would get the farm and the plant and equipment and that the other siblings would get their share from other things; and (9) During the course of the estate litigation, Bevan said to Steven that he would never put Steven through what he was going through and that he would honour the promises he made to Steven.4 4 Ibid. [38.1]-[38.12]. -- 8 of 122 -- [2024] SADC 109 5 16 Steven pleaded that Valerie was present on numerous occasions when Steven made the promises and thereby adopted the promises or acquiesced in their making.5 17 Steven pleaded that he relied on the promise and the repeated promises in a number of ways, including leaving school at 16 years of age, not seeking off-farm income or an off-farm career, working on the farm for minimal wages, not receiving his share of the profits of Anidak and the Partnership, investing income and profits he received back into the Partnership, not joining in the estate litigation and assisting Bevan to raise the necessary funds to pay the settlement sum by using the Partnership overdraft to pay that sum and in purchasing the land known as Lou’s Land (Louis Bull, known as Lou, was a brother of Francis and an uncle of Steven).6 18 Steven pleaded that he will suffer significant detriment if the promises are not enforced in that he will be unable to purchase the Farming Land at market price.7 19 Steven has pleaded that his relationship with Bevan has broken down irretrievably and Bevan has evidenced his intention to resile from the alleged representations by, inter alia, making new wills where he leaves everything equally to all of his children and further by telling Steven that he had “lost himself a farm”. The Trial 20 At trial, Steven called five lay witnesses: himself, his partner Liz, Ryan Bull (his oldest son), (Ryan), Mark Northcott (a bank officer from Rabobank and prior to that NAB), and David Ellis (the accountant of the Partnership). The case primarily turned on an assessment of the credibility of the evidence of Steven and on the other hand, Bevan, although relevant to their credibility was some of the evidence from other witnesses and some of the documentary evidence. 21 Steven gave evidence about all aspects of his claim, including the promises he said were made to him, the farming history, his personal details, his employment at the farm in 1984 and his subsequent role as a partner from 1994 in Anidak and the Partnership, the operation of those partnerships, the purchase of land, the estate litigation and the ultimate deterioration in the relationship between Steven and his parents. 22 Steven was not a satisfactory witness. He was very argumentative and defensive in cross-examination. He was evasive and did not answer questions and was prone to give speeches in support of his case. Senior counsel for Bevan and Valerie referred to, which I accept, Steven’s explanations for the statements made 5 Ibid [40]. 6 Ibid [49]. 7 Ibid [54.1]. -- 9 of 122 -- [2024] SADC 109 6 in the letters written by his lawyers dated 26 January 2020, 8 February 2020 and 10 March 2020, as examples of Steven being evasive and not directly answering questions. 23 Steven would not admit obvious inconsistencies between his evidence and some of the exhibits including statements made by him in earlier affidavits or in letters written by his lawyers. 24 In some cases, Steven’s evidence was shown to be false or inconsistent with other evidence. This included: (1) his evidence about purchasing plant and equipment since the termination of the Partnership and the commencement of his business, Copper Coast Farming. Copper Coast Farming carries on the business of farming on the Farming Land, the land owned by Steven and the Trust and some further land owned by third parties which Steven farms through lease agreements and share farming agreements. In cross- examination, Steven said that the business had only purchased two items of plant and equipment since August 2020 but that was clearly false. As senior counsel for Steven properly acknowledged, subpoenaed material indicated that in the period from August 2020, Steven had purchased, although not taken delivery of two new headers at a cost of $841,500, a tractor at a cost of $912,226 (exhibit pages 3 and 19 of exhibit R302) and had purchased 12 items of plant and equipment (page 112 of exhibit R122). Steven’s evidence to the Court that the only plant and equipment that he had purchased since August 2020 for himself or the Trust was a set of rollers was false. The deprecation schedule for the year ending 30 June 2021 shows 12 items of plant and equipment purchased in the period from October 2020 to June 2021 (p112 of exhibit R122). Steven said that the items that were purchased were every day, working items. Although some of the items were of not great value, they could not be described as everyday items in the sense of being insignificant. They included a tractor, 2 trailers, a cultivator as well as 2 motor vehicles. They were not so insignificant that it was reasonable for Steven have omitted to refer to them as purchases of plant and equipment made since August 2020. Further, the plant and equipment purchased in August 2022 in the sum of $912,226 and $841,500 were clearly significant purchases. I consider the failure of Steven to refer to them when giving evidence that he had only purchased two items of plant and equipment since August 2020 to be a matter that adversely affects his credit; (2) Steven gave evidence that he had not spoken to his solicitor during the course of his cross-examination when an examination of his phone records showed that he had done so; -- 10 of 122 -- [2024] SADC 109 7 (3) Steven gave evidence that he understood the way in which the accountant had attributed amounts to various partners and his understanding went back some years when that was not the case; (4) statements he made in evidence before this Court were contrary to the statements made by his solicitors in communications with the solicitors for Bevan and Valerie in 2020; (5) statements he made in evidence before this Court were contrary to the statements he made in affidavit material which were filed in the Supreme Court and in intervention proceedings in the Magistrates Court; (6) his evidence in Court about the value of his assets was inconsistent with statements that he made to his bankers, the NAB; and (7) his evidence denying that Mr Northcott warned him of the dangers of signing an unconditional contract was false. 25 Senior counsel submitted that Steven’s evidence should be considered in the context of his relatively low level of sophistication, particularly in relation to matters involving the NAB and the value of his assets. I also take into account that it was to some extent understandable that Steven would be defensive, given what was at stake for him in these proceedings. I accept that the statements referred to in numbered sub-paragraph (3) above that he understood how his accountants had attributed various amounts could be excused by those matters. However, that does not excuse the inconsistent and false evidence, the failure to admit obvious matters or the general evasiveness of his evidence. I consider those matters to adversely affect his credit. 26 Senior counsel for Bevan and Valerie invited the Court to find that Steven fell into that category of witness whose evidence should not be accepted on any issue unless it was an admission against interest or was corroborated by a contemporaneous document or other credible or reliable evidence. 27 I do not accept that Steven falls into that category of witness. However, the matters raised above and the general evasiveness of Steven as a witness cause me to have doubts about his evidence. Where it conflicts with the evidence of Bevan, I prefer the evidence of Bevan. 28 I accept Mr Northcott as an honest and reliable witness. He was an independent witness who did his best to assist the Court. His evidence concerned the circumstances surrounding the purchase of Lou’s land by Steven through the Trust. In one instance, the evidence of Mr Northcott was contrary to the evidence of Steven. Mr Northcott gave evidence by reference to his notes (exhibit R111) that at a meeting with Steven, Bevan and Valerie he told Steven of the risk of signing an unconditional contract to purchase Lou’s land without formal finance being in place. Steven gave evidence that Mr Northcott was at fault in not ensuring -- 11 of 122 -- [2024] SADC 109 8 the contract was subject to finance. I accept the evidence of Mr Northcott on this issue. I do so for three reasons: first, I accept him as a credible witness; secondly, his evidence accords with general commercial practice of an experienced banker; and thirdly, he has made a contemporaneous note that supports his position. 29 I also accept Mr Ellis, who was the accountant for Anidak and the Partnership for many years, as an honest and credible witness. He was first engaged by the Bull family to act as their accountant in about 1997 or 1998. He assisted the Court with regard to financial and accounting matters relating to the Partnership, including the accounting treatment for particular transactions. I will deal later in these reasons with the accounting treatment for purchases of land made by Steven or the Trust, the purchase of the Kadina land and the construction of a house on that land, the funding of the payment settling the estate litigation and the distribution of profits. I accept the following broad propositions which arose from the evidence of Mr Ellis: 1. The farm was operated as a single entity; 2. No rent for the use of farming land was paid by the Partnership to the Trust other than a book entry for tax purposes; 3. No rent for the use of farming land was paid by the Partnership to Steven or Bevan; and 4. Steven made no initial contribution to Anidak but did to the Partnership (see exhibit A81 and note 1 in exhibit A82). 30 Ryan, the son of Steven, was a very minor witness who gave evidence on two relevant issues; first, as to his career intentions when he finishes school and university and secondly, the events in his life that Steven missed because he was working. I accept Ryan as an honest and credible witness. 31 Liz, the partner of Steven, gave general evidence about her relationship with Steven, their life in Kadina and her employment, and her bookkeeping work for Copper Coast Farming. I accept her evidence about their relationship, family life, employment and Steven missing family events. Liz also gave evidence on two more contentious topics. 32 First, she said that in about 2009 when their transportable house was being extended that Valerie said to her (in the presence of Steven and Bevan) that “will kind of do for now because you’ll move into our house when we eventually retire into Kadina.” I accept that Valerie said these words to Liz. I consider this evidence to be of little weight given: (a) that Steven did not give evidence about this statement or that it caused him to have some expectation; (b) it says nothing about the ownership of the Farming Land; and (c) Bevan was not cross- examined about this topic. -- 12 of 122 -- [2024] SADC 109 9 33 Secondly, Liz gave evidence relating to an offer made that Steven and she made on 10 March 2020 (exhibit R108) that Bevan transfer to them sections 899 and 617-624 (386 acres) and they would agree not to be entitled to any further benefit from the estates of Bevan and Valerie. She said, in cross-examination, that the offer was made so that they could stop arguing and move on with their lives, not because Steven did not have an expectation of receiving all of the farm, without being required to make any payment, under his parents’ will. I do not find that a convincing rationale if Steven had an expectation of receiving all of the Farming Land. I do not accept that as Steven’s and her reasoning at that time and consider it to be an ex post facto justification for the position that was communicated in the 10 March 2020 letter. 34 Bevan and Valerie called three witnesses, Bevan and two of his children, Mark Bull (Mark) and Megan King (Megan). 35 Bevan was a credible and generally reliable witness. He answered questions directly in cross-examination and was not evasive. He also gave evidence about a range of topics including the history of the farm, the various partnerships that operated the farm, his response to the promises that Steven allegedly made, the estate litigation, the breakdown of the relationship with Steven, his wills, and the objectives that he sought to achieve in those wills. 36 I preferred his evidence to that of Steven. His evidence was consistent and coherent. Despite these matters, his evidence needed to be scrutinised with care. He has an obvious and material interest in the subject matter of the proceedings and there could be an obvious temptation to recall matters that occurred many years ago in a favourable light and with the benefit of hindsight. 37 Steven submitted that Bevan’s evidence should be considered in light of Bevan’s own experiences. That is, Bevan worked on the farm for low wages and with the promise from his father, Francis, that he would ultimately inherit the farming land owned by Francis. Steven submitted that he was in the same position as Bevan had been with his father and that it was natural therefore that Bevan would make a similar promise to Steven as Francis had to Bevan. I do not accept that logic. Steven was in a very different position to Bevan in that Bevan had ensured that Steven was given the opportunity to purchase land in his own name and had facilitated that purchase of land. That distinction between the respective positions of Bevan and Steven means that there is not necessarily an equivalence in the promises that were made. There are other significant differences between the respective positions of Bevan and Steven such that it cannot be said that because Bevan had received a promise from Francis that he would inherit all the Farming Land, that Bevan then made the same promise to Steven. Those differences included that Ian and Bevan were forced by Francis to leave school at 14 and 13 years of age while Steven left voluntarily. Bevan and Ian initially received no wages. Ian continued to work on the farm until about 1993. Francis ceased working on the farm in 1966 when he was 39 years of age while Bevan continued until 2015 when he was 69 years of age. Francis owned the land upon -- 13 of 122 -- [2024] SADC 109 10 which the farming operations were conducted. Bevan at that time only held a small portion of that land in his own name (section 899). 38 Steven also referred to Bevan’s cross-examination about what was described as the Bull family tradition of passing down farming land and keeping it in the Bull family. Steven submitted that Bevan’s evidence on this topic was inconsistent in that whilst denying that there was such a family tradition, he said: Q Did you also want to keep Francie’s land because you and Steven were using it in your business and you wanted to keep using it. A No, I wanted to keep it because we had already paid for it. We had worked to earn the money to pay for it and I couldn’t see why he could take it and sell it. We had put all our life into it to have it. 39 As senior counsel for Steven acknowledged, Bevan did not specify who he was referring to when he said “we”, although it was submitted that in the context Bevan was referring to himself and Steven. Even accepting Bevan was referring to himself and Steven (which is not clear), in the quoted passage, Bevan is denying the right of Ian to sell the land. I do not consider that the passage evidences an acceptance of any family tradition of passing down the land in the circumstances then existing. 40 In his written submissions, Steven referred to some alleged inconsistencies in Bevan’s evidence. He referred to Bevan’s evidence about section 899 (the block of land that Francis gave to Bevan as a wedding gift in 1964). Bevan gave evidence that the land was significant to him because that is where he and Valerie lived and built their house. I do not consider Bevan to have given inconsistent evidence on this topic. Steven referred to Megan’s evidence that Bevan had told all of the children that Steven would receive section 899. Megan’s evidence was relating to what Bevan had told them about his 2009 will. Clearly, that was the effect of the 2009 will. It was not inconsistent with any evidence Bevan gave about section 899. Bevan gave evidence that he would never have promised the block to Steven. 41 Steven also contended that there was an inconsistency between Bevan’s evidence about the effect of his 2020 will, which was that it was likely that all of the land that he owned would have to be sold, and his admitted intention in the period between 1995-2015 that he wanted to leave section 899 to Steven so as to ensure that Steven would have a farm to operate even without the land then owned by Francis. There is no inconsistency in those statements. A change in position about section 899 does not evidence a lack of credit on the part of Bevan. 42 Steven also referred to Bevan’s evidence about the transportable house and the inconsistency between Bevan’s evidence that it was never the plan for Steven and Liz to move into the farmhouse because they did not like the place and then saying that Steven was going to renovate the farmhouse. The passage relied upon by Steven for that inconsistency ignores Bevan’s clear evidence that the -- 14 of 122 -- [2024] SADC 109 11 renovations proposed by Steven were not for the purpose of him moving into the farmhouse. 43 Steven submitted that Bevan’s evidence about the 2009 will was not convincing and was a retrospective explanation to support his defence to these proceedings. I deal with this issue later in these reasons. For present purposes, while there may have been an element of retrospective analysis by Bevan in relation to his 2009 will, I do not consider his evidence to be dishonest. 44 Mark gave evidence. I find him to be a credible and reliable witness although he could properly be considered to be a minor witness. I accept the submission of senior counsel for Steven that it was possible that Bevan and Valerie might have said different things to Steven from what they said to their other children. Therefore, the fact that Mark or Megan may have been told something by Bevan or Valerie in the absence of Steven carries little weight. 45 Mark’s evidence covered four main topics. First, he gave evidence that in 2008 there was a discussion about the small inheritance that Valerie had received from her mother’s estate. He said that in that discussion, it was stated the family didn’t want to have that type of situation in their family and would try to do everything to make sure everyone would get an equal share. Although Mark was not challenged in cross-examination on this topic, I consider that a conversation that occurred 15 years ago relating to their mother’s inheritance is of little weight in assessing what may or may not have promised to Steven. There is no evidence that Steven positively agreed to the proposition that everyone was to receive equal shares or what that meant, given that at that time Francis still held in his name the majority of the land. 46 Secondly, Mark also gave evidence about conversations that occurred over the years at Christmas times that his parents wanted the home land to be divided between the five children in equal shares. He said that the home land was their own land. Again, I do not place a lot of weight on those discussions, even though it was not challenged. At the time of those discussions, Francis still held the vast majority of the land in his own name. The reference to “home land” is ambiguous and it is not clear to what land his parents were referring. Further, in cross-examination, Mark admitted that he wasn’t sure whether Steven had heard those conversations given that there at least a dozen people at Christmas. 47 Thirdly, Mark gave evidence about his assets which can properly be described as relatively modest. He has a house that he jointly owns with his wife in Woodville West which is valued at about $670,000 with a minimal mortgage. He has superannuation benefits of about $586,000 and gross income from his employment as a sales representative of about $71,000 per annum. He has received minimal assistance from his family over the years. 48 Fourthly, Mark also gave evidence about the breakdown of his relationship with Steven. He said that on Boxing Day 2017, Steven and his family were visiting -- 15 of 122 -- [2024] SADC 109 12 Mark’s family. A discussion occurred about the Farming Land and Mark suggested that it go into a family trust. Steven said that there was no need to look at that because he was going to take the whole farm for himself. Mark said that was not what he had been told and that his parents had always said that we would all get an equal share. Steven rejected that proposition and an argument ensued. The relationship between Mark and Steven ended finally in 2020. 49 Megan gave evidence. She is the youngest child of Bevan and Valerie. Her evidence was largely unchallenged. I found her to be a credible and reliable witness and accept her evidence. 50 She gave evidence on a number of topics. She gave evidence about a discussion with Bevan about the Kadina development (which was a proposed development on land then owned jointly by Francis, Ian and Bevan on the outskirts of Kadina) and an offer that he had received from a developer to purchase the Kadina land for $3 million. That is of course hearsay but it is relevant for the fact that he told her that price. Bevan also told her that he and Valerie had signed their wills and that Steven would receive the block where Bevan and Valerie’s house was situated and the remaining children would receive equally Bevan’s share from the sale of the Kadina blocks which was $1 million in total. Bevan told Megan this would value her share and the share of her siblings at about the same amount as Steven would receive. Megan said that Bevan always said that he wanted things to be equal although she could only recall being told that by him individually and not when other family members were present. 51 In about 2012, Megan said that she moved back to Kadina. After working elsewhere, she said in about 2015 she commenced working for the partnership as the bookkeeper. She said that Steven approached her to work for the Partnership because of her accounting background. 52 She gave evidence of an argument between her parents and Steven in October 2017. She said that Steven wanted to buy some further equipment. She said that her parents said that they were retiring and didn’t want to buy any more plant and equipment and incur further debt as everything was mortgaged. In response, she said that Steven said that they needed to get off the farm, that they didn’t want to advance the farm and that they should leave. Bevan then said that Steven could buy the farm but Steven said that he could not afford it and asked how much he could lease it for, to which Bevan said $80 per acre. Steven said that Bevan would not get paid that amount. 53 Megan also gave evidence about other discussions that she had with Steven in which Steven asked her to organise a family meeting with her other siblings because he said that when Bevan died, Steven would have to buy the land and he would not be able to pay a lump sum and would have to pay over a period of time. She said that they never had a meeting with the other siblings. The conversation about buying a farm is inconsistent with Steven being promised all of the Farming Land. Steven would not respond to a statement that he could buy the farm by -- 16 of 122 -- [2024] SADC 109 13 asking how much he could lease it for if he had been promised that he would inherit the land, without having to make any payment. 54 Megan was not challenged on this evidence. 55 Megan gave evidence about discussions she had with Bevan and Valerie regarding the purchase of the land in Steven’s name. She said that Bevan said that he wanted to buy a farm for Steven and to set him up with a farm because he didn’t know what would happen in the future and he didn’t want a fight amongst the siblings, and possibly Francis or Ian. Steven said that he would buy Bevan and Valerie a house when they retired and was going to support them until they died. Megan said that in those discussions it was said that the land that Bevan owned was always going to be equally divided with all siblings. Megan said that she could not recall if Steven was present at these conversations. Given this statement, this evidence does not have any weight. 56 Megan gave evidence about her assets and income which are modest. She had a taxable income of $31,010 for the year ending 30 June 2022. She received Centrelink benefits over that year. She has a superannuation account balance of approximately $78,000 and negligible savings. She does not own any property and is renting the home where she lives and is a single parent. She said that she had received minimal support from her parents over the years other than a $20,000 loan to purchase a motor vehicle. She suffers from anxiety and depression. 57 Steven submitted that Megan’s evidence was of little assistance as she was not present at any of the conversations when Steven alleges that representations were made to him by Bevan and Valerie. That is correct. However, the evidence of Megan to which I have referred is relevant to the issues before the Court. 58 Valerie did not give evidence. In the normal course, it would be expected that she would have given evidence as she was present at some of the disputed conversations. Senior counsel for Steven invited me to draw a Jones v Dunkel8 inference from her failure to give evidence. Steven referred to the fact that there had been no advance warning that Valerie was unable to be called and that in in his opening, senior counsel for Bevan and Valerie stated that he was committed to call Bevan and that he was potentially calling Valerie, Mark and/or Rachel. 59 Senior counsel for Bevan and Valerie submitted that the evidence indicated that Valerie’s health was such that she was not in a position to give evidence because her evidence would not have been reliable. 60 Bevan gave evidence about the physical and mental health of Valerie. He said that Valerie’s physical health had deteriorated significantly in the last few years. She had broken her shoulder and suffered from severe duodenal ulcers. He said that she gets confused fairly often and has difficulties with her memory and requires prompting. He said that she struggles to read documents and newspapers. 8 (1950) 101 CLR 298; [1959] HCA 8. -- 17 of 122 -- [2024] SADC 109 14 He has noticed changes in her cognitive ability. He said that she is forgetful and mixes up dates. He said that she suffered from stress. 61 Mark gave evidence about his mother’s health. He described her physical health as being greatly impaired. He also said that she appears very withdrawn and it is difficult to engage her in conversation. He said that she appears anxious. 62 Megan gave evidence about her mother’s physical health conditions. She said that Valerie does not talk as much as she used to. She said that her mother’s memory had deteriorated in the last few years and she gets stressed. 63 I accept the evidence of Bevan, Mark and Megan about Valerie’s health which was not challenged in cross-examination. 64 The rule in Jones v Dunkel9 states that an adverse inference may be drawn from the failure of a party to adduce particular evidence, where such evidence would reasonably have been expected. In Jones v Dunkel, Menzies J stated:10 In my opinion a proper direction in the circumstances should have made three things clear: (i) that the absence of the defendant Hegedus as a witness cannot be used to make up any deficiency of evidence; (ii) that evidence which might have been contradicted by the defendant can be accepted the more readily if the defendant fails to give evidence; (iii) that where an inference is open from facts proved by direct evidence and the question is whether it should be drawn, the circumstance that the defendant disputing it might have proved the contrary had he chosen to give evidence is properly to be taken into account as a circumstance in favour of drawing the inference. 65 Kitto J stated:11 It was right enough to point out, in effect, that the evidence given might be the more readily accepted because it had been left uncontradicted, and that the omission to call Hegedus as a witness could not properly be treated as supplying any gap which the evidence adduced for the plaintiff left untouched. 66 Davies A-JA (dissenting on the facts) in Ho v Powell12 explained the principle as follows: The rule permits evidence to be given greater weight and an inference or inferences to be more readily drawn when the other party who might have called evidence to the contrary has chosen not to do so. In Commonwealth Australia v McLean (Court of Appeal, 31 December 1996, unreported), [(1996) 41 NSWLR 389)]. Handley JA and Beazley JA said ... the rule typically applies to strengthen or weaken an inference otherwise available on the evidence for the benefit of the party not in default. 9 Ibid. 10 Ibid, 312. 11 Ibid, 308. 12 (2001) 51 NSWLR 572 [76]; [2001] NSWCA 168. -- 18 of 122 -- [2024] SADC 109 15 67 Austin J in Australian Securities & Investments Commission v Rich13 indicated that there are three conditions required for the application of the principle: 1. the missing witness would be expected to be called by one party rather than the other (which implies that the witness must be available to give evidence); 2. his evidence would elucidate a particular matter, which is a live matter at the trial; and 3. his absence is unexplained. 68 The onus of establishing an explanation for the absence of the witness, for the purposes of the principle in Jones v Dunkel, rests on the party against whom the principle would operate.14 69 The principles in Jones v Dunkel were summarised in Kuhl v Zurich Financial Services Australia Ltd:15 The rule in Jones v Dunkel is that the unexplained failure by a party to call a witness may in appropriate circumstances support an inference that the uncalled evidence would not have assisted the party's case. That is particularly so where it is the party which is the uncalled witness. The failure to call a witness may also permit the court to draw, with greater confidence, any inference unfavourable to the party that failed to call the witness, if that uncalled witness appears to be in a position to cast light on whether the inference should be drawn. [citations omitted] 70 Steven referred to the decision in Payne v Parker16 where the statement from Ward v Apprice17 that the default “brings great slur on his cause” was quoted. I consider that overstates the effect of the failure to call a witness and prefer the explanation set out in Kuhl above. 71 In this case, there is no doubt that Valerie would be expected to be called as a witness. She was a party to the litigation and was present at some of the disputed conversations. These included the conversations at the lunchtime discussions between her, Steven and Bevan and the 2009 discussions with Liz. 72 The relevant issue is whether her absence was explained. I consider that Bevan and Valerie have satisfied the onus of providing a satisfactory explanation as to why Valerie was not called to give evidence. Each of Bevan, Mark and Megan have given evidence about her mental decline. They have made observations about her anxiety, her confusion and loss of memory. I consider that they were well placed to make observations about her mental decline. That evidence was not challenged. Notwithstanding that the respondents did not choose to adduce medical evidence in support of their contention, the unchallenged evidence 13 (2009) 75 ACSR 1 [449]; [2009] NSWSC 1229. 14 Ibid [457], see also Cross on Evidence, at [1215] and the majority judgment in Smith v Samuels (1976) 12 SASR 573. 15 (2011) 243 CLR 361; [2011] HCA 11 [63]. 16 [1976] 1 NSWLR 191, 201. 17 (1704) 6 Mod Rep 264; 87 E.R. 1011. -- 19 of 122 -- [2024] SADC 109 16 provides a proper explanation for not calling Valerie as it demonstrates that her evidence was unlikely to be reliable. I have considered the submission of Steven that in Bevan and Valerie’s opening, senior counsel left open the possibility that Valerie might give evidence and did not refer to her cognitive issues. While this is a relevant factor, the unchallenged evidence did provide a proper basis for not calling her as a witness. A person in her cognitive state would not be expected to give evidence. Therefore, I consider that Bevan and Valerie have discharged their onus of establishing that Valerie is unavailable to give evidence because of her mental condition and that the Jones v Dunkel inference should not be drawn against the respondents because of her failure to give evidence. The Land held by Steven and Bevan and its value 73 Up until his death in 2015, Francis owned a significant portion of the Farming Land. Bevan held only a small amount of land. He only owned section 899 in his own name. From 1996, Steven acquired land in his own name in 1996 and in 1999. In 2009, 2011 and 2013 he acquired land as trustee for the Trust. Later, in 2021 and 2022 receptively, Bull Land Holdings Pty Ltd as trustee for Trust acquired Lou’s land and Paddick’s farm. 74 The land owned by Steven in his own right and through the Trust (including the land owned by the Bull Land Holdings Pty Ltd as trustee for the Trust) is set out in the table which forms appendix A to these reasons. The date of acquisition, the area, the current valuation and the circumstances in which the land was acquired are also set out in the table. Colliers has provided a desktop valuation of the land (exhibit A75) and has valued the land owned by Steven and the Trust at $15,127,180. Colliers have also valued structures on that land in the sum of $580,000 making a total valuation in the sum of over $15.7 million. 75 Steven disagrees with those values and considers them too high. He considers the value to be inflated and that the price per acre is too high. He also says that the valuation does not take into account the vagaries of the land and some of the drawbacks to particular land. I note that the Colliers valuation is a desktop valuation and further the valuer was not provided with details of the past history of the property, including cropping records, yields, fertilizer purchased, etc. However, the Colliers valuation provides cogent evidence of the valuation of the land. This is not a case which requires a precise calculation of the value of the land. 76 In April 2020 (over two years prior to the trial), Knight Frank valued the land for valuation purposes in the sum of $9,650,000 (exhibit R100). That valuation did not include Paddick’s land which was acquired after the valuation. At that time, Steven, through Bull Holdings Pty Ltd, had entered into a contract to purchase Lou’s land but had not settled on that land. The valuation report (which included Lou’s land) noted that the contract price for Lou’s land was towards the lower end of the range. 77 In the statement of position that Steven submitted to the NAB on 4 April 2022 (p156 of exhibit R122), he ascribed a value to his land of $11.871 million. -- 20 of 122 -- [2024] SADC 109 17 78 A value of about $12-15 million for the land of Steven and the Trust is broadly supported by the above evidence. 79 The table which is annexed to these reasons also sets out details of the land held by Bevan and Valerie either wholly or jointly with others. 80 The total value of Bevan’s land holdings, according to the Colliers valuation, is $11,835,620, which includes the land in which he has a part interest. 81 Valerie has a 1/6th interest in section 552 which equates to a value, according to the Colliers valuation, of $13,650 and is also the owner of the property at 51 Graves Street Kadina which they purchased in 2014. That property is not part of the farm and was not part of the Colliers valuation. Bevan gave evidence that the rates notice valued the property at $550,000 but that it might sell for $600,000. The financial position of Bevan and Valerie and their children (other than Steven) 82 Bevan and Valerie’s other assets are the farm management deposits (which were paid for by the Partnership but reflected in their loan account with the Partnership), their bank accounts, some modest superannuation, the debt owed to them by Steven under the terms of the dissolution of the Partnership and their land in Kadina. Bevan said that he held one farm management deposit in his name worth $450,000 and Valerie still had one worth $75,000. They had $500,000 on term deposit (exhibit A291). About $803,000 is still owed to them by Steven as the final instalment under the terms of the Partnership Dissolution Agreement. Bevan said that the only other income that he currently receives is from the lease of his land to Steven. Bevan says that he has a small number of shares in Incitec. Those shares have a value of about $13,395, based on the number of shares set out in exhibit A292). If the value of the Farming Land is accepted as $11,835,620 and the Kadina land as $600,000, Bevan and Valerie’s total assets are about $14.277 million before some tax liabilities of about $392,000 and legal fees associated with this action are deducted. 83 I have already described the assets of Mark and Megan. In the case of Megan, those assets can be described as very modest and in the case of Mark, modest. They are obviously minimal compared to the assets of Steven or Bevan and Valerie. 84 Steven gave some evidence about the assets of his other siblings. He said that his sister, Sharee, is well off and owns a hotel and other property in Kadina. He agreed that as far as he knew his sister, Rachel and her husband lived in Plympton. She worked as a concierge and her husband as a traffic controller. 85 Bevan gave evidence about the assets of the other siblings. He confirmed the evidence about Mark and his wife in relation to their employment and house at Woodville. He said that Sharee purchased the hotel in Kadina with her brother-in- law and his wife and that they have an interest in that hotel. He confirmed the evidence about the employment of Rachel and her husband and their property at -- 21 of 122 -- [2024] SADC 109 18 Plympton. He confirmed that Megan rented the property where she lives and had some mental health issues. 86 Documentary records (exhibits R189-219) relating to assets of Mark, Sharee, Rachel and Megan provide documentary support in relation to their respective landholdings, income, superannuation benefits and savings. 87 I make the following findings, again recognising that the evidence on this issue is general and not precise. However, I do not need to make findings about the exact financial position of each of those persons and it is sufficient if I make some general, broad-brushed findings. 88 Bevan and Valerie are well off and have sufficient money for their retirement (even if the Farming Land is excluded). Mark and Rachel, and their respective partners, own their homes and are employed, so it may be inferred have sufficient income to meet their expenses, although neither could be described as well off. Sharee appears to have more assets but not to the degree that Steven said in his evidence. Megan’s assets are very modest. 89 I accept the submission of senior counsel for Steven that the assets of his siblings are not directly relevant to the claim for a constructive trust and do not directly shed light on the issue as to whether or not the representations were made. The financial position of the siblings has potential relevance to the defence of Bevan and Valerie that relief in equity should be refused because it would be unfair to grant the relief, taking into account the financial and personal interests and moral claims of the siblings.18 Pre 1984 background 90 Steven and Bevan both gave evidence about their personal background, their family background, the farming operations and purchases of the various parcels of land that made up the farm as at 1984. Documentary evidence also records the purchases of the land. None of that evidence was controversial and I make the findings set out below. 91 Bevan was born in 1945 and was therefore 77 years of age at the time of giving evidence. His parents were Francis and Ruth. Francis and Ruth had four children who, in chronological order, were Ian, Bevan, Teresa and Lawrence. 92 Bevan married Valerie in 1964 and have five children, Mark, Sharee, Steven. Rachel and Megan. Mark was born in 1965, Sharee in 1966, Steven in 1967, Rachel in 1979 and Megan in 1980. 93 Francis carried on the business of farming after World War 2. He initially carried on that business with his brother Lou and for a time they carried on business by way of a partnership, FD & LR Bull. They initially leased and then purchased 18 See [54.2] of the defence-revision 1. -- 22 of 122 -- [2024] SADC 109 19 in 1949 the farm known as Gordons which comprised about 750 acres.19 That farm was purchased by Francis and Louis as tenants in common, with Francis holding a 2/3rd interest and Louis holding a 1/3rd interest. In 1962, Lou transferred his interest in that land to Francis and Francis transferred his interest in some other land to Lou. Lou stopped farming with Francis at that time. 94 In 1957, Francis purchased the property known as Hancock’s farm which consisted of 210 acres. In 1963, Francis purchased part of the property known as Pedler’s farm. That comprised about 660 acres.20 Ian and Bevan also purchased in 1963, in their joint names as tenants in common, part of that farm, such part comprising 57.47 ha or 142 acres. 95 Bevan left school after completing second year high school at aged 13, to work on the farm full time. His father arranged for him to be taken out of school. Ian left school at about 14 years of age. Bevan became a qualified electrician in about 1959. When Bevan commenced working on the farm he did not receive wages but only pocket money. He received minimal wages until 1964. 96 In 1964, when he married, Bevan received the transfer of some land (section 899), as a wedding present from Francis. That land comprised about 140 acres and had been part of Pedler’s farm. At that time, Bevan and Valerie were living in a brick shed on that land which they continued to live in for about 10 years, before they built a house next door to that shed. Bevan and Valerie both worked in off- farm jobs for a number of years. Bevan worked in off farm employment (at the same time as working on the farm) for about 10 years from 1958. 97 In 1966, Francis, Ian and Bevan bought, as joint tenants, Taits farm. Some of that land included blocks on the outskirts of Kadina which were described as Lot 441 George Street, Kadina. That land comprised about 490 acres.21 98 In 1967, Francis, Ian and Bevan purchased in joint names about 30 acres from John Bull (the uncle of Bevan and Ian). 99 In 1982, Francis, Ruth (Francis’ wife), Ian, Helen (Ian’s wife), Bevan and Valerie purchased as tenants in common the land described as Heaven’s farm from Joseph Heaven. 100 From 1966, the farming business was carried on by FD Bull & Sons. Bevan was a partner in that partnership from that time. Bevan received only just enough to live on and Valerie undertook off-farm work, including as a hairdresser and as an employee at Woolworths. Francis ceased active work on the farm at about that 19 Bevan gave evidence that Gordons was about 750 acres although the records in Appendix A suggest about 646 acres. Nothing turns on that difference. 20 Bevan gave evidence that Pedlers was about 660 acres although the records in Appendix A suggest about 540 acres. Nothing turns on that difference. 21 Bevan gave evidence that Taits was about 490 acres although the records in Appendix A suggest about 506 acres. Nothing turns on that difference. -- 23 of 122 -- [2024] SADC 109 20 time. The old partnership of FD & LR Bull no longer carried on business. Steven gave evidence that Lou retired from the partnership in 1982 and thereafter his land was rented to the partnership that was conducting its business over the farming land until Steven purchased the land in 2020 and 2021. The date on which Lou retired might not be accurate, but I otherwise accept the evidence relating to Lou. 101 As at 1984, Bevan held about 140 acres in his own name and with the joint titles to which I have referred, held about 390 acres in total. That position remained the same as at 1996. 102 Bevan said that he was working on a promise. Bevan gave evidence, which I accept, that Francis had promised Ian and him that they were paying for the land and it would be their land. Francis said “you pay for it, it will be yours.” Bevan said that the same promise was made to Ian and him. The farm was not particularly profitable at this time. Evidence concerning the circumstances in which Steven joined as an employee in 1984 and the events from 1984-1994 103 Steven gave evidence that everyone knew that he was destined to come home and work on the farm. He had helped out on the farm when he was small. He left school at year 10. He said that working on the farm was all that he ever wanted to do and Bevan and Valerie knew that he was going to be a farmer. He said that his aim was to work on the farm. He said that he just came home to work on the farm and his parents didn’t really encourage him to finish year 12. He said that when you come to work on the farm you are committed to that farm and there is never any talk of leaving. He said that the farming land is left for the next generation. 104 Steven said that when he came home to work on the farm, he worked for the partnership FD Bull & Sons. He said that he was paid a wage but could not recall how much but said that it was a couple of hundred dollars per week or so. It was the bare minimum. He said that in a standard week he would work about 40 hours but could work 70 or 80 hours per week in busy times. He said that by this time Francis had retired into Kadina but used to come out to the farm regularly. Steven agreed in cross-examination that he was paid average wages compared to other workmen. He lived at home and did not pay rent during this period. 105 Steven said that every time that he had a conversation with Bevan about the farm in the period between 1984-1990, he was promised the entire farm. Steven said that when he started working on the farm in 1984, Bevan said that he was going to give him the farm. Steven said that there was no reason for him to have a discussion with Francis because Francis was going to leave the farm to Bevan. Steven said Ian had no interest in the farm, was lazy and had 4 daughters who were never going to take over the farm. He said at that time, there was no discussion that he would pay a fair price for the farm. 106 In 1990, Steven requested that a house be bought or built for him to move into. At that time, Steven was engaged to a former girlfriend. He approached Bevan -- 24 of 122 -- [2024] SADC 109 21 about his request and ultimately it was agreed that a transportable house would be built on land owned by Francis, Bevan and Ian. Steven gave evidence that he did not worry about putting his transportable house on the land owned by Bevan, Ian and Francis because he thought that the land would end up being left to him as it was part of the farm. He said that he knew that the land was jointly owned and they had all agreed that he could build a house there. He said that the transportable house was the cheapest option and they discussed that it was not worth building a large brick house and spending a lot of money when the promise was for him to move into the farmhouse. Steven said that he was told that by Bevan and that is why the purchase price was kept to a minimum and the transportable home was the cheapest option. Steven has lived in the transportable home since 1990. He does not pay rent for that house or for the use of the land. Steven said that he thought that he would only be living in the transportable house for a temporary period. He said he preferred to live in a normal brick house. Steven denied that the reason why a transportable house was built on the land was because they did not know who would own the land in the future and he might have to move elsewhere. 107 Steven gave evidence that Ian decided to leave the partnership because he was not happy with the way in which the farm was heading. He said that Ian was only interested in grazing sheep and the farm was moving towards growing crops and changing farm practices. Further, Ian had four daughters who were not interested in farming. 108 Bevan gave evidence that he did not encourage Steven to leave school, although Steven did in fact leave at the end of year 10. In cross-examination, he said that he was not upset when Steven decided to work on the farm but he encouraged him to get some off-farm experience. 109 Ultimately, Francis, Ian and Bevan agreed to employ Steven in the FD Bull & Sons partnership as a farm labourer. Bevan said that Steven was paid the same wage as other employees or contractors at that time. The wages records (exhibit R280) showed that as at 1990 Steven was receiving $595 a fortnight which went up to $620 per fortnight as the award went up. The records also show that Steven received superannuation payments from about 1993 when superannuation was introduced. Steven had the use of a motor vehicle in the period from 1984 to 1994. 110 In the period from 1984-1994, the work on the farm was undertaken by Bevan, Ian and Steven. Francis attended occasionally. Steven’s siblings did not work on the farm. 111 Bevan gave evidence about Steven’s request in 1990 to build a house on the farming property. He said that he discussed the request with Francis and Ian and they decided that the house should be a transportable because there was no security as to who was going to own the land. The house was situated on part of the property that had previously been Tait’s farm and was then held by Francis, Ian and Bevan jointly. Bevan said that there were some expenses connected with the building of the transportable house that were paid for by the partnership, FD Bull & Sons, such -- 25 of 122 -- [2024] SADC 109 22 as electrical work and a rainwater tank. Bevan said that Francis and Ruth loaned Steven the sum of $10,000 and the partnership loaned him the sum of $14,000 for the construction of the transportable house. Those amounts were repaid by Steven. The Partnership did not require interest to be paid by Steven but Bevan thought Francis did require interest to be paid on his loan. 112 Bevan gave evidence denying that he promised in 1984 to leave all of the Farming Land to Steven in his will. Bevan said that Francis had made a promise to him and Ian that the farming land (owned by Francis) would be left to them both. He said that once Ian left the farm, Francis said to him that Ian would not get the land but Bevan would have to pay Ian for his share. Francis said that he had put a value on the amount that was to be paid to Ian but did not tell Bevan that value. Bevan said that he did not discuss the matter with Ian at the time but that when Francis died, Ian maintained a claim over half of Francis’ land. Bevan said that Ian was aggrieved over the circumstances in which he left the farm in 1993. 113 In cross-examination, it was put to Bevan that he did not relay to Steven the discussion he had with Ian and Francis about the uncertainty as to future ownership of the land. Bevan said that he did. Bevan denied that he said to Steven to go ahead and put the transportable house on the land because one day he would be moving into the farmhouse. 114 In 1993, Ian decided to leave the partnership. Bevan gave evidence that when advised of Ian’s leaving, Francis was upset and demanded to be included in the new partnership and said that if he was not included, he would sell up. Findings concerning the circumstances in which Steven joined as an employee in 1984 and events in the period from 1984-1994 115 Steven left school at the end of year 10 and commenced working on the farm at that time. Steven had always wanted to be a farmer and that was understood to be the case within the family. Steven decided to leave school at that time. Steven was not encouraged by Bevan and Valerie to leave school but equally he was not discouraged from doing so. These findings are consistent with the evidence of Bevan and Steven. 116 On commencing work on the farm, Steven worked as an employee of the partnership FD Bull & Sons. He worked with Bevan and Ian and sometimes Francis. He was paid the normal wage and later, the award wage. The evidence from Bevan was clear on this point and is supported by the later documentary records (exhibit 280). Steven was vague about the amount he was received but did not deny that he was receiving a normal wage. There is no evidence to suggest otherwise. Steven also received leave entitlements (see the Deed dated 9 July 1994, exhibit R99). There is no evidence to suggest that Steven could have received a greater sum working somewhere else. Senior counsel for Steven conceded in her closing address that Steven had not made out the claim that he was not receiving wages, superannuation and leave entitlements in this period. -- 26 of 122 -- [2024] SADC 109 23 117 During the period from 1984-1994, the farming operations were carried on by Bevan, Ian and Steven. None of Steven’s siblings ever worked on the farm. Francis owned all of the land upon which the farming operations were conducted, with the exception of section 899, which was transferred from Francis to Bevan in 1964 as a wedding gift and some relatively small parcels of land which were held as tenants in common. There was no controversy about these matters. 118 The transportable house was erected in 1990 at a time when Ian was still a partner and working on the farm and might be expected to inherit all or some of the Farming Land. The fact that the home was placed on land jointly owned by Francis, Bevan and Ian provided a reason for the home being transportable as the future ownership of that land was not, at that time, clear. I do not consider any inference can be drawn from the fact that a transportable home was erected that Steven had been promised that one day he would inherit the farm and move into the farmhouse. I do not consider that Steven could have formed any view that he would have moved into the farmhouse as at that time either Bevan or Ian might have been left that land by Francis. 119 Ian left the farm in 1993. The circumstances of why he left are not clear and in the absence of evidence from Ian, it is not possible to make any definitive finding as to the reasons for his departure. A Deed dated 9 July 1994 (the Deed) (exhibit R 99) was entered into dissolving the partnership between the then partners of FD Bull & Sons, Francis, Ruth Ian, Helen, Bevan and Valerie. The Deed records two relevant matters: first, that Steven was paid the sum of $5400 representing his annual leave entitlements and secondly, Ian would receive the sum of $100,000 for his entitlements as a partner. Bevan gave evidence that this sum of $5400 was paid to Steven. Steven said that he could not recall whether or not he received that sum. Given the terms of the Deed, the evidence of Bevan and the fact that Steven could not recall whether or not he received the sum, I am satisfied the sum was paid. That payment indicates that Steven received his annual leave entitlements. 120 As to the payment of the $100,000 to Ian, Bevan gave evidence, which I accept, that the payment accorded with his recollection of the net assets of the partnership, being plant and equipment and grain worth about $300,000 and therefore Ian being entitled to 1/3rd of that amount. 121 I accept Bevan’s evidence that Francis had said that he would leave the farming land that he owned to Bevan and Ian equally as Bevan and Ian had worked on the farm and invested their wages in the farm. Francis did not make any promise during this time that Bevan, to the exclusion of Ian, would receive the farming land. 122 I will deal later in these reasons with the issue of what, if any, representations or promises were made by Bevan to Steven during the period between 1984-1994 that one day the entire farm would be Steven’s if he continued to work on the farm and invest his work and wages in the farm. I do so because a determination of this -- 27 of 122 -- [2024] SADC 109 24 issue can only be made after considering all of the evidence, including some later letters sent by Steven’s lawyers and affidavits that he has signed. Evidence about Steven joining the Anidak partnership in 1994 and the Partnership in 1995 123 Steven gave evidence that at the time that he became a partner in Anidak and the Partnership, Bevan said that Steven was going to be the next generation to take on the farm. He said that he was told that the plant and equipment was always left behind in the partnership for the next generation and that is how the farm is built up. He said Francis wanted the farm to continue and expected Steven to take on the farm. 124 Steven gave evidence that in 1994 the promises that had been made to him when he was working an employee on the farm were repeated. He said that when he entered into the Partnership, he was committed to farming and the Partnership. Steven said that Bevan said to him “are we going to give it a go” and everyone agreed that they would. 125 Steven said that Valerie was present for the discussions which usually took place around the kitchen table between him, Bevan and Valerie. His siblings were not present for those discussions. He said that Valerie would sometimes say “what are the other kids getting out of all of this” and Bevan said in response that “you put your money in, you do the work here, it’s yours, it’s yours for the future…”. Bevan said that if you don’t work and put in, you are not entitled to have any of the farm. Steven said that the topic of the other siblings came up from 1994 onwards. He said that it was discussed more over the years as more assets were purchased. Steven said that from 1994, he was promised everything and that the land and everything would stay with him for the generations to come and the other siblings would be sorted out. 126 Steven said that his understanding was that his siblings had a good idea that they were not going to get any of the land or the business. He said that there was a lot of different discussions as to how something would be left to his siblings. He said if money had to be paid to his siblings, it would be paid over a period of time, not in a lump sum. The money would be a helping hand when the siblings needed it or something like that. He said no amounts of money were discussed. It was just a gesture to help them out. It was a token of some sort. Steven said that his mother always raised the topic of what about the other children and his father said that the other children were not working, they have not spent a day here. He said those arguments were never resolved. 127 Steven gave evidence about a plan that all the money would be put back into the farm. They would all build up the farm. When they retired, Bevan and Valerie would move to Kadina and the money from the farm would build them a house and fund their retirement. Steven described it as an unspoken plan but they would sit down and discuss it and everyone was heading down that path. -- 28 of 122 -- [2024] SADC 109 25 128 Steven gave evidence that if the promise had not been made (which included the land, the plant and equipment and moving into the farmhouse), he would have left the farm and there would have been no reason for him to continue. He said that he was working towards the farm. He said that he could have got a job working on a farm up the road and that could have been a lot more profitable and that he could have built a house in the town. He said that he would probably have earned more money and been more stable working as an employee. He said he would have made the same decision in the late 1990s although it would depend on how much debt he owed. Steven gave evidence as to the effect on his life that his long working hours had and how he missed many events in the children’s life. 129 Steven said that the Partnership used money and machinery that came from Anidak. 130 Bevan gave evidence about the formation of a new partnership, Anidak, in 1994, following the departure of Ian. Anidak was a partnership between Francis, Ruth, Bevan, Valerie and Steven. Steven did not make any capital contribution on the formation of Anidak. Bevan, Valerie, Francis and Ruth made the capital contributions. Bevan said they contributed the plant and equipment from the old partnership, FD Bull & Sons, and some seed, fertiliser and working capital. He said that based on the $100,000 that they paid Ian as his partnership entitlements under the Deed, the value of the capital contribution was about $300,000 in total. 131 The following year, the BJ, VJ and SW Partnership (the Partnership) was formed. Valerie, Bevan and Steven were the partners of the Partnership. The capital contributions to the Partnership were made from the Anidak partnership (see exhibit A82). The Partnership was formed because Bevan and Steven were interested in buying land and plant and equipment. Francis did not want to purchase any further machinery and said that it they wanted to purchase any further machines, they would have to go out on their own. Bevan said that Anidak contributed plant and equipment to the Partnership. 132 Bevan said that the Partnership began to lease more farming land and introduced new crops. Valerie did not actively undertake the work of the Partnership but was involved in the decision making from time to time. The Partnership took over from Anidak and gradually the activities of Anidak diminished over time. 133 Bevan gave evidence that when Steven became a partner in Anidak he did not promise to leave the farming land to Steven in his will or that Steven would receive that land. He said that he never promised to leave Steven all of his land. He said that he did not promise to sell to Steven all of the land but said that he might do so. He said from the time that Steven purchased his land, there were discussions that if Steven wanted Bevan’s land, it would be for sale to him. Bevan said a possible price was not discussed. Bevan said that he and Valerie always talked about keeping it fair with the other children. -- 29 of 122 -- [2024] SADC 109 26 Findings as to the entry into the Anidak and the Partnership in 1994 134 Steven became a partner in Anidak and the Partnership in 1994 and 1995 respectively. When Anidak was established, Steven did not make any capital contributions to that partnership. Bevan and Valerie made capital contributions that totalled about $300,000, being assets of the old FD Bull & Sons partnership. The assets of Anidak were used as the capital contributions to the Partnership. These matters were not in dispute and are confirmed by the records of Anidak and the Partnership, the Deed and the evidence of Mr Ellis. 135 Francis, Ruth, Bevan, Valerie and Steven were members of Anidak. Bevan, Steven and Valerie were members of the Partnership. The Partnership was formed because Bevan and Steven had different ideas from Francis as to how they wished the business to be conducted in the future. Valerie did not perform any substantial work for the Partnership. Steven made a capital contribution upon the formation of the Partnership through his interest in Anidak. 136 Again, I will deal later in these reasons with the issue of what, if any, representation was made by Bevan to Steven in about early 1994 during the negotiations leading up to the dissolution of the FD Bull & Sons partnership, the entry into the Anidak partnership and later the Partnership, that the entire farm would be his if he continued to work on the farm and invest his work and wages in the farm. I do so because a determination of this issue can only be made after considering all of the evidence including some later letters sent by Steven’s lawyers and affidavits that he has signed. Evidence about the purchase of Land in the period between 1996-2013 137 Steven purchased farming land in his own name, either on his own behalf or on behalf of the Trust, in 1996, 1999, 2009, 2011 and 2013. The first parcel of land that was purchased in 1996 was the Tickera property at 325 Kennetts Road Tickera. It was a block of about 650 acres.22 Steven gave evidence that he could not recall who paid the deposit for that land or who provided the security. Steven denied that the land was purchased in his name because his parents wanted to set him up with a farm of his own. He said that Bevan determined in whose name the land was purchased. 138 Steven said that there was a family discussion after the land was acquired and prior to the conveyancing of the land. He said that Bevan and he discussed the purchase and Bevan said “we are putting this land in your name so you don’t have to fight with your siblings down the track when all this came to an end”. Steven said that Bevan said to him that: I’m not doing what happened to my-like his family’s the same, they’re all fighting and squabbling over whose is whose, so he put it in my name so I didn’t have to worry about it later on. He said that he was told old for me to put it in my name, its going in your name… 22 According to the Colliers valuation, it comprised about 590 acres. Nothing turns on that difference. -- 30 of 122 -- [2024] SADC 109 27 139 Steven went on to say that the reason that the land was put in his name was to stop fighting with his siblings down the track. 140 In cross-examination, Steven gave evidence: We had a family discussion after the land was acquired, because then we had to do the conveyancing and everything. So we sat down, like you said dad had all control of what went where there. We talked about it and he said 'We are putting this land in your name so you don't have to fight with your siblings down the track when all this comes to an end', his life or whatever, and that was what was agreed, and that's the paperwork that was drawn up and that's what I signed. And it was because he didn't want me to fight with my siblings over the land. He said 'I'm too old to put it in my name at the moment. You are the one coming on. You are the one working the land. The land is going to be yours, that's why it's going to be in your name now'. 141 Steven was taken to his pleading in relation to the representation he alleges was made to him when the land in 1996 was purchased in his name. Paragraphs 38.5.1 and 38.5.2 of the Statement of Claim read as follows: [38.5] When the partners of the Partnership were deciding who would be the legal owner of the land, the First Respondent: [38.5.1] said to the Second Respondent words to the effect that the land should be in the Applicant’s name because “Steven’s working for all the land and he shouldn’t have to pay for it twice. It’s not for the other kids. I don’t want to happen to Steven what happened to me;” and [38.5.2] said to the Applicant words to the effect that he ‘wouldn’t let what happened to him” happen to the Applicant and that the Applicant “should end up [with] the land without having to fight for it.” By such words the First Respondent meant, and the applicant understood, that the Applicant would inherit the farming land without having to engage in litigation with his siblings, as the First Respondent had been required to do with his own siblings when Francis resiled from his own Promise. 142 When asked about these allegations, Steven confirmed that these statements were made to him by Bevan. When it was put to Steven that Bevan did not know in 1996 that he was going to fight with his siblings about Francis’ land, Steven said that Bevan knew that Francis would never hand the land over to him and that he didn’t want that to happen to Steven. Steven said that Bevan knew that he was going to fight for the land as he did in 2015. He said that Bevan discussed all the time that he was going to fight his siblings for the land. If that was the case and Steven believed it to be so, then there could have been no certainty that Bevan would get the land owned by Francis and therefore would be able to promise the Farming Land to Steven. 143 Steven said that Bevan’s land was always promised to him. He said he would not have made the promise to buy his parents a house in Kadina if there was no plan in place. He denied that that he made that offer because the 1996 land was put in his name and later, the subsequent land purchases. He denied that the land was put in his name so he would have control of his own farm. -- 31 of 122 -- [2024] SADC 109 28 144 Steven gave evidence about the purchase of further land in his name in 1999. That land was also at Tickera. Steven agreed that the land was purchased for $235,000 and comprised 320 acres. 145 In 2009, Steven said that he purchased Bruce’s property (Lot 907) in his name as trustee for the Trust. The purchase price was $842,709 (exhibit A18). He agreed that land comprised 610 acres. He agreed that at this time he owned 1600 acres of land in his name or as trustee of the Trust and that Bevan still owned about 380 acres. Bevan gave evidence to the same affect. 146 Further blocks were purchased in Steven’s name as trustee for the Trust in 2011 (Lot 92 Bull Road) and 2013 (lot 1, Ellis Road). Those blocks were purchased for $145,000 and $218,000 respectively (exhibits A19 and A20) and comprised 100 acres and 108 acres respectively. 147 Steven was vague about how precisely the purchases of the land were dealt with in the accounts of the Partnership. He said that they were allocated against his capital account. It was put to him in cross-examination that there was a different arrangement concerning the purchases of land in 2009, 2011 and 2013 (which were made in the name of the Trust whereas the purchases in 1996 and 1999 were made in his name) and that the purchases that were made by Trust gave rise to a loan liability of the Trust to the Partnership. Steven could not say whether or not this was the case. 148 Bevan gave evidence about the purchase of the Tickera property in 1996. He said that it was purchased in Steven’s name because he did not want the hassle of what he was going through with Francis in that he did not know what would happen. He said that the plan was that he and Valerie would help Steven get established and Steven would look after them in their retirement. He said that Valerie and he would get a house and money to live on. He said no figure was put on the amount required to keep them in retirement. Bevan said that Valerie had wanted the land to be in the names of all three partners as they were all paying for the land. He said that she was convinced that the land should be in the name of Steven because Steven told her that he would look after her in her retirement. 149 Bevan said that the partners of Anidak provided a guarantee for the mortgage of the land and he provided security for the purchase. He said that he put up the land that he held in his own name as security for the purchase. The purchase price was paid by the Partnership but allocated to Steven’s drawings. The interest (which Bevan said was about 8-10% per annum at that time) and expenses were paid by Anidak but never allocated against Steven’s account. 150 Bevan said at the time that the Tickera property was purchased in 1996, there was no discussion about the future ownership of any land owned by him. 151 Bevan said that a second block was purchased in 1999 which was adjacent to the Tickera farm. He said that property was put in Steven’s name because it was -- 32 of 122 -- [2024] SADC 109 29 right next door to the other property and Steven was building up his farm. He said that farm was 320 acres and therefore at that time, there was 970 acres in Steven’s name. Bevan said that he owned at time about 390 acres. 152 Bevan said that Steven needed to have a farm that was viable. Bevan said that Steven would have his own farm and couldn’t rely on what Francis was going to do with his land. 153 Mr Ellis gave evidence about the allocation of purchase price for the purchases of land and the allocation of interest. He said that the 1996 purchase of the Tickera land in Steven’s name was paid by the Partnership and allocated to Steven’s drawings in the accounts of the Anidak partnership (exhibits A82 and A83). The amount allocated for that purchase was the sum of $190,000. That negative drawing was transferred from Anidak to the Partnership. The same process occurred in 1999 when a further parcel of the Tickera land was purchased and the sum of about $235,000 was allocated against. The payments of interest for those two parcels of land and bank fess were not allocated to the drawings of Steven and were paid by the Partnership. 154 Mr Ellis said that the Partnership paid for the purchase of the three properties in 2009, 2011 and 2013 which were purchased in the name of the Trust. The loan account of Steven in the Partnership accounts was debited for the cost of those purchases (see exhibit A119). Ultimately, when the Partnership was dissolved and the parties agreed upon the terms of dissolution, the loan accounts were not brought into account and were effectively treated as zero (see exhibit A59). This was to the benefit of Steven. However, it is not correct to say that the loan account of Steven was treated as having no economic value. Bevan and Valerie also had a loan account (which included payment of farm management deposits of $700,000 to them and costs of the settlement of the estate litigation) which was also treated as zero when the parties agreed upon the terms of dissolution. The overall treatment was to the benefit of Steven because his loan account ($1,402,152) was greater than the combined loan account of Bevan and Valerie ($1,124,122,23). If Steven did not have this loan account, then he would have held a greater share of the equity in the Partnership (exhibit A119). 155 The Partnership paid the interest expense on the loan for the purchase of the properties in 2009, 2011 and 2013. In the accounts of the Partnership, there was a notional amount payable by the Trust to the Partnership for the rent of the land. This rent payment was not made by the Partnership but was used to offset the interest payments that had been made by the Partnership. 156 Mark gave evidence that he came to learn in 1996 that land had been purchased in Steven’s name. He said that he challenged his parents on why they were purchasing land in Steven’s name at that time. He said they told him that they were trying to establish Steven with his own land and that they would maintain their land as their own. He said that they drew a distinction between their land and Steven’s land. I do not place a lot of weight on Mark’s evidence. It is only evidence -- 33 of 122 -- [2024] SADC 109 30 of what Bevan and Valerie told him and not what they told Steven. It is entirely plausible that they might have emphasised particular aspects of the transaction. Findings as to the purchase of land in the period between 1996-2013 157 I make the following findings relating to the circumstances in which the properties in 1996 and 1999 were purchased in the name of Steven and the circumstances in which the properties in 2009, 2011 and 2013 were purchased in the name of the Steven as trustee of the Trust. 158 Steven received a substantial benefit from the purchase of land in his name in 1996 and in 1999. These benefits were: (1) the opportunity to purchase land in his own name. At that time, Steven did not have assets in his name that would have enabled him to borrow the purchase price for that land. He was not in a position where he could have demonstrated sufficient income to service a mortgage without the provision of the guarantee from Anidak and the provision by Bevan of security for that guarantee; (2) that although Steven paid for the purchase of the 1996 and 1999 properties through his drawings from the Partnership, the interest on the loans that were taken out to fund the purchase of the properties, was paid for by the Partnership. The evidence from Mr Ellis confirmed how the purchase price and interest were recorded in the books and records of the Partnership and Anidak; (3) Steven received the benefit of the appreciation in value of those properties; and (4) Steven received the security of having land in his own name. 159 Steven received a substantial benefit from the purchase of the 2009, 2011 and 2013 properties which were purchased by him as trustee for the Trust. Those benefits were: (1) the purchase price was paid by the Partnership. Although, the amount of the purchase price was debited to the loan account of Steven, ultimately that loan account was written off when the parties agreed upon the terms of the dissolution of the Partnership. The loan accounts of Bevan and Valerie were also written off at that time but the write off of all loan accounts resulted in a net benefit to Steven; (2) interest on the loan to fund the purchase price was paid by the Partnership, although that was offset by a notional rent charged by the Trust to the Partnership for the use of the land. The rent was never paid. Rent had never been charged on any of the other land that was used by the Partnership (e.g. Francis’ land or the land owned by Bevan); -- 34 of 122 -- [2024] SADC 109 31 (3) Steven received the benefit of the appreciation in value of those properties; and (4) Steven received the security of having land in his own name. 160 After the purchase of the fifth block in 2013, Steven owned either in his own name or through the Trust about 1800 acres. 161 It was Bevan who decided in what name the land should be purchased. That was the evidence of both Steven and Bevan. I accept the evidence of Bevan that he wanted to establish Steven with a farm of his own. 162 I accept the evidence of Mark that Bevan and Valerie told him that they were trying to establish Steven with his own land and that they always maintained a distinction between their land and Steven’s land. 163 Again, I will deal later in these reasons with the issue of what, if any, representations were made by Bevan to Steven when the land was purchased in the name of Steven. I do so because a determination of this issue can only be made after considering all of the evidence including some later letters sent by Steven’s lawyers and affidavits that he has signed. Evidence about the operation of the farming business and events occurring in the period from 1994-2015 164 I will now deal with matters concerning the operation of the farm in the period from 1994 to 2015. That covers, therefore, a period during which Anidak and then the Partnership conducted the farming operations and before the relationship between Steven and Bevan deteriorated. General operation of the farm business and work on the farm 165 Steven gave evidence said that he had a close working and personal relationship with Bevan. They worked together on the farm and shared responsibility for the management and operation of the farm. It was not until about 2008 or 2010 that Steven started assuming more of the responsibility for these matters. Steven said that Bevan did most of the work managing the financial side of the farm. He said that they discussed the purchase of machinery together. They also discussed the leasing and purchasing of properties. He said that he and Bevan discussed improving farming techniques and what crops to grow. They tried growing different crops from time to time. Steven gave evidence that although Francis owned all the land, he left it to Bevan to run the farm. 166 Steven gave evidence that he and Bevan were not paid regular wages from the Partnership but took drawings from time to time. Steven said that his wife, Liz, worked off the farm so that they could meet their expenses. Steven said that when her wages were not enough to cover his expenses, he would ask Bevan for a drawing. -- 35 of 122 -- [2024] SADC 109 32 167 Steven suffered serious burns to his body in about 1998 in a farming accident. He suffered burns to about 62% of his body and required multiple skin grafts. He was flown to the Royal Adelaide Hospital and spent some time recovering there. He received some compensation for the accident. I accept that Steven returned to work on the farm as soon as he was able to do so and prior to the time recommended by his doctors. 168 Bevan suffered injuries to his neck and back in about 2006. Senior counsel for Bevan and Valerie criticised Steven for minimising the extent of Bevan’s injuries in his evidence in chief. I do not accept that criticism and do not consider that Steven’s evidence on this topic affects his credibility. Steven’s evidence in chief was that Bevan strained his neck during the course of the shoulder reconstruction. That broadly conformed with the evidence given by Bevan on that topic. There was no deliberate mischaracterisation of Bevan’s condition. 169 There is no dispute that Steven and Bevan both worked very hard on the farm. There is no dispute that Steven’s involvement in his family life suffered because of his hard work on the farm. He missed many events in his children’s lives. Steven, Liz and Ryan all gave evidence to that affect, which I accept. There is also no dispute that Bevan and Steven introduced many improvements to the farming operations with a view to maximalising yield and profits. 170 Liz gave evidence that she undertook employment off farm and her wages were used to cover household expenses but that there were occasions when she asked Steven to ask Bevan for a drawing. 171 Bevan gave evidence about the operation of the farm and its expansion. He gave evidence about the Partnership employing a number of employees to work on the farm, some full-time and some seasonal. By 2010, a number of employees were employed on the farm. 172 Bevan gave evidence that he managed the financial affairs of the Partnership. He said that from time to time Steven would ask him whether a drawing could be made. He said there was one occasion when he said that the farm could not afford it. Bevan agreed that he wanted to keep the maximum amount of money possible available to the Partnership for running the farm and said that benefited Steven by paying down the debt owed on the land that Steven had purchased. Towards the end of the Partnership, some Farm Management Deposits were purchased in the name of Bevan and Valerie. 173 Bevan gave evidence, which I accept, that there were drought conditions on the farm in the period from about 2008. He said that drought assistance in the sum of about $30,000 was received from the government and was used to buy general household items. 174 The drawings of Bevan, Valerie and Steven from the Partnership and Anidak are set out in exhibits A81 and A77 respectively, which were prepared by Mr Ellis. -- 36 of 122 -- [2024] SADC 109 33 Relevantly, they show that Steven had the following drawings over the period from 1994 to 2020: BJ, VJ & SW BULL [EX A81] ANIKAK [EX A77] TOTAL 1994 - $3,731 $3,731 1995 - $17,265 $17,265 1996 $206,302 (includes money for land purchase) $120,840 $327,142 1997 $46,191 $33,593 $79,784 1998 $18,508 $29,097 $47,605 1999 $274,349 (includes money for land purchase) $38,929 $313,278 2000 $15,037 $47,785 $62,822 2001 - $19,616 $19,616 2002 $2,004 $54,953 $56,957 2003 $1,316 $28,652 $29,968 2004 $52,890 $44,068 $96,958 2005 $4,178 $10,691 $14,869 2006 $34,956 $17,246 $52,202 2007 $18,967 $10,078 $29,045 2008 $3,044 $5,000 $8,044 2009 $6291 $12,291 $18,582 2010 $17,462 $10,000 $27,462 2011 $10,512 $21,180 $31,692 2012 $23,211 $15,000 $38,211 2013 $27,764 $0 $27,764 2014 $72,187 $0 $72,187 2015 $370,027 $0 $370,027 2016 $326,299 (adjusted to reduce drawings by $255,000 to reflect the “Kadina error”. $0 $326,299 2017 $389,016 $0 $389,016 -- 37 of 122 -- [2024] SADC 109 34 2018 $63,907 $0 $63,907 2019 $62,690 $0 $62,690 2020 $77,226 - $77,226 TOTAL $2,124,334 $540,015 $2,664,349 Work undertaken by Liz 175 Steven and Liz met in 1997. She moved to the farm in 1998. After moving to the farm, Liz has worked in a variety of jobs including for a recruitment agency, as a receptionist for a medical clinic and currently as a student support coordinator for the University of Adelaide. She currently works in a .5 capacity and earns about $41,000 per annum. Valerie’s inheritance 176 In about 2008, Valerie received an inheritance from the estate of her mother. Bevan said that the sum of about $265,000 which was received by Valerie from the estate was loaned by her to the Partnership. Valerie did not receive any interest on that loan and nor was the capital repaid. 177 Steven said that he did not know the amount of the inheritance. He said that he knew that she put the money in the Partnership but did so because she wanted a higher interest return. 178 Mark said that there was a discussion about the inheritance that Valerie had received at Christmas at the time. He said that Steven was vocal that one of his uncles, Trevor, had coerced Steven’s grandmother into giving Trevor the majority of the land (and that is why Valerie only received a small portion of the estate). Mark gave evidence that there was a discussion that the family did not want to have that type of situation and that they would do everything they could to make sure that everyone received an equal share. Land transfers 179 In 2007 and 2012, there were some transfers of land that had been held by Francis, Ian and Bevan. Steven gave evidence that he had no knowledge of the 2007 transfer. Bevan gave evidence that in 2007 the land that was held jointly by Francis, Ian and himself was converted from a joint tenancy to a tenancy in common. He said the conversion into a tenancy in common was instigated by Ian who was concerned that if he were to die, the land would not go into his estate and would go to Francis and Bevan. 180 The records relating to land purchases show that in 2012, Bevan purchased Ian’s interest in part of Tait’s farm. 181 Steven said that he knew of the 2012 transfer and that it was paid by the Partnership and was allocated against Bevan’s drawings. -- 38 of 122 -- [2024] SADC 109 35 2009 wills of Bevan and Valerie and the potential development of George Street, Kadina 182 Part of the Farming Land included the land at George Street, New Town which was on the outskirts of Kadina. That land was owned jointly by Francis, Ian and Bevan. 183 Bevan gave evidence that in about 2006 or 2007, Francis was approached by a Mr Hosking, who was then a land agent working in Kadina. Francis engaged Mr Hosking to act on his, Bevan and Ian’s behalf. Mr Hosking got in touch with a developer who wished to purchase that land. Bevan said that a price of $3 million was negotiated with the agent for the sale of the land but prior to any formal agreement being reached, the developer pulled out. 184 Mr Hosking provided an affidavit (exhibit R295) and was not required for cross-examination. He said that he acted for Francis, Ian and Bevan and had received an offer for the land from an Adelaide developer in the range of $2.5-$3 million. In his affidavit, Mr Hosking said that Ian had said that the offer was too low and the offer was rejected. The Adelaide developer then secured another, smaller parcel of land. 185 Mark Bull gave evidence that he was aware that there had been a significant offer from a developer in the millions of dollars for some land close to the town. 186 Megan King gave evidence that Bevan had told her that Francis, Ian and Bevan had received an offer from a developer for $3 million for the New Town Property but that the sale did not proceed because the developer “went bust”. 187 Steven gave evidence that he knew that there was an offer but did not know that the offer was for $3 million. Steven said that he did not discuss with Bevan the fact that he had received an offer for $3 million. He said that there was general discussion about a development involving the subdivision of that land. 188 Liz gave evidence that she was unaware of any offer by a developer for the purchase of the Kadina land for $3 million. 189 That offer is relevant for the belief of Bevan when he and Valerie made their wills in 2009 (exhibits A63 and A64). Although there was no plea that any representation was made by the wills, it was submitted by Steven that the terms of the will were consistent with the alleged representations and therefore provide support to his contention that the representations were made. 190 The wills that were made by Bevan and Valerie in 2009 were their first wills. At this time, Bevan’s principal assets were the 140 acres that he owned in his own name, some land that was jointly owned with Francis and Ian and the George Street, New Town land which he also owned jointly with Francis and Ian. At that time, Bevan owned in total about 390 acres of land in his name. -- 39 of 122 -- [2024] SADC 109 36 191 In his 2009 will, Bevan provided that in the event that his wife, Valerie, did not survive him by 28 days, all his farming land and interest in the Partnership was left to Steven (except for the land at George Street, New Town). Bevan left the George Street, New Town and his residuary estate land to his other 4 children (i.e. excluding Steven). Valerie’s will was to the same effect. 192 Bevan gave evidence that because of the offer by the developer to purchase the George Street land, he considered his share of that land to be worth about $1 million, meaning that his other 4 children (excluding Steven) would receive about $250,000 each from his estate. He said that he considered his interest in the remaining 370 acres and the Partnership were worth at that time, about $250,000, possibly a little more. He said that at the time he was not counting on Francis’ land. He said that he discussed the will, after he made it, with all of his children (including Steven) and said that Steven was getting the farm and that they would get the money from the land that was being sold. He said that was a good way of the children getting their share without hurting the income of the farm. He said that he said that “they were all going to be equal. I wanted them to be equal”. 193 Bevan gave evidence that between 1995 and 2015 he had said that he was going to leave the small part of the farm that he owned and the plant and equipment to Steven but did not make a promise even to that effect. 194 Megan said that she had a conversation with Bevan and Valerie after they had completed their wills. She said Bevan told her that the block in Kadina was worth about a million dollars and that would be shared between the children (except for Steven) and that the block where his (Bevan’s) house was and other bits of land in his name would be Steven’s, so it was equal. Megan said that Bevan always said to her that he wanted it to be equal. 195 She said that after the developer pulled out, she had further discussions with Bevan and Valerie that the George Street, New Town land was now worth a lot less and therefore it was not equal for the other siblings. She said that Bevan agreed and said that he needed to change his will. Steven’s wills 196 Steven gave evidence that he also made a will in 2009. He said that he went to the solicitor’s office to make the will with Liz, Bevan and Valerie. He said that the catalyst for them all making wills was the purchase of the 2009 land and the fact that the assets of the farming operation were beginning to build up. He said that at that time, neither he nor Bevan had made a will. He said that there was a discussion, prior to making their wills, between the lawyer, Bevan, Valerie, Liz and himself in which it was discussed that if someone died, their interest would go back into the farm. 197 Steven was also cross-examined about further wills that he made. He made wills in 2009, 2012, 2020 and 2022 (exhibit R106). He said he did not think that he changed his will between 2009 and 2012. Pursuant to a notice to produce, -- 40 of 122 -- [2024] SADC 109 37 Steven produced a 2012 will and a 2020 will. It was put to Steven in cross- examination that he deliberately failed to produce the 2012 will prior to the notice to produce so as to leave the Court with the impression that the 2009 will was applicable. I am not able to make a finding that Steven deliberately failed to produce the 2012 will. He said that he did not recall making the 2012 will. 198 The written terms of the 2012 will are similar to the 2009 will. The difference in the two wills is the inclusion in the 2012 will of paragraphs 9(e) and 9(f) which provide that Bevan and Liz, as trustees under the will, act as trustee or appointor of any trust of which Steven was the sole surviving trustee at the time of his death, including the Trust, and further to act as director of any company of which he was the sole surviving director at the time of his death. 2009 work on the transportable house 199 Liz gave evidence about some work that she and Steven undertook on the transportable house in 2009 and some conversations she and Steven had with Bevan and Valerie during the course of those works. She said that at that time, they were enclosing the verandah. She said that there was a discussion between Bevan, Valerie, Steven and herself when the work was finished. She said that they were talking about the work when Valerie said “it will kind of do for now because you’ll move into our house when we eventually retire into Kadina.” Liz said that she had an understanding that one day she, Steven and the children would move into the main house and that it was a generational thing and for farm security. 200 Liz said that she realised that she would not be moving into the farmhouse when Bevan and Valerie moved to Kadina and locked up the main house. She said that by that time the relationship between Bevan and Steven had deteriorated. 201 Bevan gave evidence that Steven did not like the farmhouse and did not ever want to move in there. He said that Steven had always said that the place needed extensive renovations. Bevan denied that he ever said to Steven that eventually he would be moving into the farmhouse with his family. 202 Steven said that Bevan and Valerie came to look at the transportable house when the work was being done. He said that the plan was that he and Liz would move into the farmhouse and that is why only the minimal amount got spent on the transportable house. Steven did not give direct evidence of the words Liz alleges were spoken to her by Valerie. Purchase of land in Kadina in 2014 and the accounting for that purchase 203 In 2014, Bevan and Valerie purchased a block of land at 51 Graves Street, Kadina upon which they intended to build a house for their retirement. They paid the sum of about $230,000 for that block. 204 Steven gave evidence that he considered that sum was too high but he was not consulted about the purchase. He said that he expressed the view that the price was too high but says that he did not raise any objection to the purchase because -- 41 of 122 -- [2024] SADC 109 38 that was what he had promised Bevan and Valerie in exchange for the promise that he would receive the Farming Land. 205 Bevan gave evidence that in 2014 Valerie and he selected the land in Kadina for their retirement. He said the plan was that the Partnership would buy the land. He said that the price for the purchase of the block was allocated to Bevan and Valerie. He said that they were disappointed that Steven said that he wasn’t happy for it to be allocated to his drawings. In relation to the cost of construction of the house on that land, he said that initially it was mistakenly allocated to Steven and Valerie but Steven complained and told Mr Ellis that it should be reallocated. 206 The cost of constructions was initially allocated to Steven and Valerie. Steven said that was in error. He said that everyone thought it was in error. 207 Mr Ellis gave evidence that the purchase of the Kadina land was allocated to Bevan and Valerie (exhibits A81 and A82) but the construction costs for the home on that land were wrongly allocated to Valerie and Steven when the costs should have been allocated either entirely to Valerie (because she was the owner of the land) or to Valerie and Bevan (exhibits A81 and A82). The note in exhibit A82 indicates that the precise figure that was allocated in error to Steven was $255,178.07. The sum of $255,000 was the subject of the adjustment in favour of Steven that appears in exhibit A119 when an agreement was reached about the distribution and payment for the assets of the Partnership. Megan working for the Partnership 208 Megan gave evidence that she moved back to Kadina in 2011 and started working for the Partnership in 2015 in an accounting capacity. She said that on moving back to Kadina, she initially had a job at the Kadina childcare centre for three and a half years. She said that it was at Steven’s request that she commenced working for the Partnership. She said that Steven wanted her to work for the Partnership because she had an accounting background and he did not want to employ someone outside of the family who would come to know the family business. Megan gave evidence that her working relationship with Steven was initially good but later deteriorated in 2017. 209 Bevan also gave evidence that it was Steven’s idea that Megan worked for the Partnership although he and Valerie agreed with the proposal. 210 Steven gave evidence that it was at the instigation of Bevan and Valerie that Megan was employed by the Partnership. He said that Megan and her husband were living on the west coast and her husband did not have a job so Bevan and Valerie decided to help by employing her. Steven said that the involvement of Megan in the Partnership did not work well as she sought to become involved in decisions about the operation and future of the farm. -- 42 of 122 -- [2024] SADC 109 39 Steven claims that representations were made during the period 1994-2015 211 The claim made by Steven included a number of allegations that Bevan and Valerie had repeated the promise that one day all of the Farming Land and the Partnership would be his. There was no specific date when it was alleged that these statements were made but it is evident that he was alleging that many of those representations were made during the period between 1994-2015. Those representations (excluding the representations alleged to have been made when Steven became a partner in 1994 and when land was purchased, which I have dealt with separately) included, in broad terms, the following: (1) after the Partnership was established, Bevan said to Steven that he would have to be very careful but that Bevan would trade in plant and equipment that was owned by Anidak and purchase new plant and equipment for the Partnership without telling Francis and that he and Steven did all the work and paid for it and that he was doing it for the farm and the farm would be Steven’s one day; (2) whenever new plant and equipment was purchased, Valerie would express reluctance about the purchase and Bevan would say, in the presence of Steven, that they were building up the farm for the future so that farming operations would be able to continue for future generations and be handed down the line; (3) statements made by Bevan during discussions with Valerie and Steven around the kitchen table about the future of the Farming Land. Bevan said that Steven would end up with the Farming Land and in response to a statement by Valerie to the effect “what about the other kids”, Bevan said that Steven was putting his money into the farm and the other kids were not working on the farm or putting their money into the farm. Bevan also said on another occasion that it was only fair that Steven would get the farm because he was working to pay for the farm, was responsible for the debt and has to put his wages back into the farm if he wanted to get it; (4) a question by Valerie, whilst in Steven’s presence as to why he was getting all of the Farming Land, in response to which Bevan said that it was only fair and Steven was working to pay for the farm and was responsible for the debt and had to put his wages back in if the wanted it; (5) statements by Bevan to Steven, when refusing an increased drawing from the profits of the Partnership that Steven would one day receive the farming land and therefore would reap the reward of surviving on such low wages; and (6) statements made by Bevan and Valerie in about 2008, when Steven was renovating the transportable house, in the presence of Steven and Liz, -- 43 of 122 -- [2024] SADC 109 40 that Steven should stop and that one day he would inherit the Farming Land and live in the house in which they were living and that Steven would look after them in their retirement. Bevan also said, for that reason, they should stop spending any more money on the transportable house. 212 Steven said that throughout this period he held discussions with his parents around the kitchen table in which Bevan would repeat the promise that Steven would be left the farm and the machinery because he had worked for it and Valerie would ask what are the other children going to get. In response, Bevan would say that weren’t working on the farm. Steven said that he was of the belief that the other children were not going to get any of the farming land or the assets that go with the farm. 213 Bevan gave evidence that throughout the period between 1995 and 2015, he said that he was only going to leave to Steven the part of the farm that he owned. Bevan said that he was not working on the assumption when he made his will that he would get Francis’ land. Bevan said that it was his expectation at that time that the land owned by Francis would form part of his estate, but there was some uncertainty about it and that from about 2007, he thought there might be some argument. Bevan said that Francis was unhappy with the transfer in 2007 from a joint tenancy to a tenancy in common of the land they owed together. Bevan said that there were often arguments with Francis when the topic came up and that Francis threatened to sell the farm. Findings about the operation of the farming business and events in the period between 1996-2015 214 Before considering what, if any, representations were made by Bevan to Steven during this period, it is first necessary to make some findings relating to the events that occurred during this period. 215 First, Steven and Bevan worked very hard on the farm during this period and introduced many new techniques that improved the efficiency and profitability of the farm. Steven, as a consequence, missed many family events due to work commitments. Both Steven and Bevan sustained serious accidents whilst working on the farm. There was no dispute about these matters. Steven and Bevan gave evidence about these matters, which was confirmed in certain areas by Liz and Ryan. 216 Secondly, the farm was expanded during this period by the purchase of land by Steven, both in his own name and as trustee of the Trust. The documentary evidence confirms the details of those purchases. 217 Thirdly, Liz moved to the farm in 1998 and worked in a variety of jobs off- farm to help support her and Steven’s family. At times, her income was necessary to cover household expenses. Liz gave evidence to that effect which was not contested. -- 44 of 122 -- [2024] SADC 109 41 218 Fourthly, Bevan managed the financial affairs of the Partnership. There was at least one occasion when Steven asked Bevan for a further drawing and that was refused by Bevan. That is consistent with both the evidence of Steven and Bevan. There may have been other occasions, but I do not need to resolve whether they occurred. 219 Fifthly, the financial records of Anidak and the Partnership demonstrate that in the period between 1994-2015 the drawings taken by Steven were generally modest. Various living expenses of Steven were also paid for by the Partnership including cars, fuel etc. There were some exceptions where the drawings were greater. The drawings in 1996 in the sum of $120,840 (from Anidak) and the sum of $206,302 (from the Partnership) included the purchase of the first property in the name of Steven. The drawings in 1999 in the sum of $274,349 (from the Partnership) included the purchase of the second property in the sum of $235,000 in the name of Steven. Steven took substantial drawings of $370,027 in 2015. The drawings in 2008, during a drought, were particularly low being about $8000 in total. 220 Sixthly, the evidence from Bevan and the financial records of the Partnership establish that Valerie received an inheritance of about $260,000 in 2008 which she put back into the Partnership. It is not correct to say that Valerie did not receive any recognition or economic benefit from the loan of the inheritance money to the Partnership. The records of the Partnership (exhibit A82) and the note from Mr Ellis (exhibit A83) show that in 2008 Valerie contributed to the Partnership the sum of $105,000 and in 2009 contributed the sum of $153,530.52. In the accounts, those sums were used to reduce her loan account (see exhibit A81). Ultimately, the loan accounts were written off when the parties reached an agreement about the distribution of the assets of the Partnership. 221 Seventhly, some of the land held jointly by Francis, Ian and Bevan was, at the instigation of Ian, in 2007 transferred from a joint tenancy to a tenancy in common. Bevan also purchased in 2012 Ian’s interest in part of Tait’s farm. The detail of those transactions is set out in the appendix attached to these reasons. 222 Eighthly, in about 2007, Francis received an offer from a developer for the purchase of the land held at George Street, New Town for about $3 million. That land was held jointly by Francis, Ian and Bevan. That finding is consistent with the evidence of Bevan and also the evidence of Mr Hosking. Megan also confirms that there was a discussion about the offer. Ultimately, the purchase of that land did not proceed, although the reasons for that are not clear. From the evidence of Mr Hosking, the sale did not proceed because Ian wanted further money. I accept that is the likely reason as Mr Hosking was the person dealing with the developer. 223 Ninthly, Bevan and Valerie made wills for the first time in 2009. At the same time, Steven and Liz also made their wills. I accept Bevan’s evidence that at the time of making their wills, he considered that he held an asset worth about $1 million being his interest in the George Street, New Town land. The surrounding -- 45 of 122 -- [2024] SADC 109 42 evidence supported that position. The current valuation of the land, which does not incorporate the development proposal, is not relevant to an assessment of the effect of the 2009 will. I also accept that the 2009 will broadly distributes Bevan’s assets equally to Steven and his siblings, although Steven would receive assets of a slightly greater value. The evidence does not permit me to quantify that amount. Bevan said that when he made the 2009 will, he considered that it was in terms that were equal which I accept. Senior counsel for Steven submitted that the Ellis Road property, which was purchased in 2009 for $1400 per acre, provided the best estimate of the value of the 140 acres of farmland held by Bevan at that time (i.e. the land that had been gifted by Francis to Bevan on Bevan’s wedding in 1964). It was submitted that indicated that this land was worth closer to $486,000 at that time and not $250,000. Bevan disagreed with that proposition and said other land sales in the area at that time showed a price of $800 or $850 per acre. I do not have sufficient information to resolve that issue. Bevan also disagreed with the proposition that it was a fiction that he said that he wanted equality. 224 Tenthly, I do not consider that the terms of the 2009 wills provide support to Steven in his claim that representations were made that he would receive all of the farming land (including the land then owned by Francis) or the rejection of that claim by Bevan and Valerie. At the time of the making of the 2009 wills, Bevan had only modest land holdings. Francis was still alive and held most of the land in his name. There was no evidence to suggest that Bevan and Valerie made their wills in anticipation of Francis dying and leaving to them all of the land he owned. The 2009 wills dispose of the assets then held by Bevan and Valerie. It is not possible to draw any inference that the wills are consistent with the alleged promises because land might be distributed under the will that was not at that time owned by Bevan but might be at some time in the future. 225 Eleventhly, I also do not consider that the 2009 will of Bevan provides independent support of Bevan’s evidence that he wanted to treat his children equally in his will. It is not possible now to accurately determine Bevan’s financial position as at 2009. I accept, however, that it is likely Steven would have received a little more than his siblings under the 2009 will, particularly as Steven would have received the plant and equipment of the Partnership. The 2009 will also does not provide independent confirmation that no promise was made as its effect was to leave the farming land (that was then held by Bevan) to Steven. 226 Twelfthly, the 2012 will made by Steven altered the effect of the 2009 will in that in the period between 2009 and 2012, Steven as trustee of the Trust acquired land in 2009 and 2011. Under the terms of both the 2009 and 2012 wills, land held by Steven was bequeathed to Bevan and Valerie. In 2009, there was no land held by the Trust so therefore it was correct to say that the land went back into the farm. The only land at that time was the Tickera land (purchased in 1996 and 1999) which was held in Steven’s name. However, because in the period between the 2009 and 2012 wills, the further land was acquired in the name of the Trust, a substantial portion of the overall land which Steven controlled did not go back into the farm under the 2012 will. -- 46 of 122 -- [2024] SADC 109 43 227 The making of the 2012 will clearly was made in the knowledge that further land had been acquired in the name of the Trust. That much is clear from the reference to the Trust in paragraph 9(e) of the 2012 will which was not present in the 2009 will. I do not accept the evidence of Steven that he did not understand that the 2009 land that had been acquired by the Trust would not go back into the farm given the express change in the wording of the 2012 will and that there was no other reason to make a new will in 2012. 228 Thirteenthly, the price paid for the purchase of the Kadina land in 2014 for the retirement of Bevan and Valerie, was allocated to the drawings of Bevan and Valerie. The costs of the construction of the house on that land was allocated, in error, to the drawings of Valerie and Steven, when it should have been allocated only to Valerie or Valerie and Bevan. I accept the evidence of Mr Ellis which was confirmed by Bevan. Ultimately, that error had no economic effect because of the terms upon which of the Partnership dispute was resolved. Steven expressed his concern that the purchase price for the land was too high and the expression of that concern was not well received by Bevan and Valerie. 229 It is not possible to draw any inference as to making of the representations relied upon by Steven from the circumstances as to the purchase of the Kadina land, the construction of the house and the way in which those costs were accounted for. This is for two reasons: first, because Bevan and Valerie contend that Steven made a promise to look after them in their retirement when the land in 1996 was purchased in his name; and secondly, because the circumstances of the purchase and the accounting is ambiguous. 230 Fourteenthly, I prefer the evidence of Bevan and Megan in relation to the circumstances in which Megan was employed by the Partnership. I find that it was at the request of Steven that Megan was employed by the Partnership. Steven’s evidence is inconsistent with Megan moving to Kadina and working for 3 ½ years for a childcare centre in Kadina before being employed by the Partnership. Megan living on the West Coast was irrelevant to the decision to employ her, contrary to the evidence of Steven. However, the circumstances in which Megan came to be employed by the Partnership is not a critical matter and is not a matter which leads to adverse credit findings. Evidence about the deterioration of the relationship between Steven and Bevan in the period between 2015-2020 231 During the period from 2015-2020, the relationship between Steven and Bevan gradually deteriorated. There were a number of reasons for this deterioration and a number of events occurred which contributed to the deterioration. 232 Francis and his wife, Ruth, both died in 2015, about a week apart. Under Francis’ will, the land at George Street, New Town was left to Teresa and Laurence equally (Bevan’s siblings). The remainder of the Farming Land and any interest in -- 47 of 122 -- [2024] SADC 109 44 any farming partnership was left to Bevan subject to Bevan first paying Ian the sum of $250,000 and each of Teresa and Laurence the sum of $85,000. 233 That will was contested by Bevan. Bevan’s accounts for legal fees relating to the estate dispute were paid by the Partnership. Ultimately, the matter settled in 2017 and Bevan agreed to pay the sum of $1 million in total to his siblings for their interest in the Farming Land. At that time, the land that had been owned by Francis was transferred to Bevan. Bevan said that the $1 million was borrowed from the Partnership. He said that Steven did not agree with that borrowing and Steven said that Bevan should have got his own personal bank account to pay the settlement sum. Bevan said that the settlement sum of $1 million was allocated to his account but the banking facility that the Partnership held with Rabobank was used to make the settlement payment. 234 Bevan said that he and Valerie moved into their house in Kadina in September 2017. 235 Bevan gave evidence that after Ian had left the farm in 1994, his expectation was that he would inherit all of the farm, subject to paying Ian one half of the value of the farm, as the farm was in 1994 and at the 1994 value. Bevan said that he did not consider it fair that he had to pay Teresa and Lawrence when they were not working on the farm. He said that Ian should not get the benefit of the improvements that had been made to the farm after he had left the farm in 1994. Bevan said Ian wanted his half of the farm and wanted to sell the farm. Bevan said that he had not seen any of the wills of Francis until Francis died in 2017. 236 Bevan said that in the period from about 2015 to 2017, there was a gradual decline in his relationship with Steven. He said that there was an occasion when there was an argument between Steven and Valerie in which Megan intervened. 237 Bevan gave evidence about another specific incident which contributed to the breakdown of his relationship with Steven and Liz. He said that there was an argument between him and Steven and Liz about some grain delivery documents. He said that the argument became heated and Liz started yelling at him and that eventually he lost his cool and swore at her. He said that in the course of that argument, he said to her that “well, you’ve just lost yourself a farm”. He said by that he meant that he was not going to support them any more in term of purchasing Lou’s farm. 238 Liz also gave evidence about this incident which she said occurred in mid- 2018. She said that an argument arose between Bevan and Steven about delivery documents. She said that Bevan was screaming at Steven. She said that she came out and told him “that’s enough, the kids are home Bevan”. She said that he then abused and swore at her. She said that Bevan did not say “you’ve lost yourself a farm” during the course of this argument,. She said it was unprovoked and that Bevan had never apologised for his behaviour. She said from that time, she had withdrawn from family events. -- 48 of 122 -- [2024] SADC 109 45 239 Mark also gave evidence about an argument with Steven on Boxing Day, 2017. The argument concerned a proposal by Mark that they should look at creating a family trust in relation to the farming property. Steven said that there was no need to look at that because he was going to take the whole farm for himself. Mark said that Steven then became very aggressive. Steven disagreed that he had an argument with Mark but said there might have been a discussion because the farm was a topic that was often talked about. Steven said that he thought that Mark assumed that he, Mark, was getting an interest in the farm. Steven said that he wanted Bevan to hold a meeting with all his children (not their partners) and explain what was going to happen but that meeting was never held. 240 Megan also gave evidence about an argument she had with Steven. She said that the argument occurred during the school holidays in October 2017. She said that the initial argument involved Steven and Valerie and concerned the level of debt. Megan said that Steven made a comment to the effect that Bevan and Valerie need to get off the farm, they did not want to invest anything or advance the farm. Megan said that Bevan said to Steven that he could buy the farm. She said that Steven said how much would Bevan lease the farm for to which Bevan replied $80 an acre and Steven said that it would never get paid that much. Megan said that the argument then got personal and she intervened and was subject to verbal attacks by Steven. 241 Mr Ellis gave evidence about the treatment in the records of the Partnership of the sum paid from the Partnership funds to settle the estate litigation. He said that the sum of $893,088.86 was allocated as a drawing against Bevan, but the sum of $197,586.17 was treated as an asset of the Partnership and not allocated against Bevan (exhibit A83). Mr Ellis said that he was expecting to make an adjustment in future years to correct the matter. 242 Steven gave evidence that his relationship with Bevan and Valerie first started to deteriorate at the end of 2015. He said that the relationship began to deteriorate once Megan was brought into work for the Partnership. He said that she began to be involved in decisions concerning the Partnership. 243 Steven also said that there was also tension relating to Francis’ estate and the associated litigation. He said that he had an argument with Bevan in 2017 once the litigation had finalised. Steven said that once Bevan had said that he had the land in his name, Steven asked him “where do we go from here”, “Am I buying your land? Are you putting your land into the farm?,” “What are you doing”. “Are you leaving it to my siblings”? Steven said that Bevan became angry and accused Steven of telling him what to do with his land. Steven’s questions are inconsistent with the alleged promises. He said that he kept asking the same questions from 2017 because he was not getting any answers. Steven said that he asked the questions because he was a partner in the Partnership and he was entitled to know what the thoughts of Bevan were about the business. He said that Bevan had not answered those questions. In cross-examination, Steven said that he expected to inherit the Farming Land. Steven said it was during this argument and in response -- 49 of 122 -- [2024] SADC 109 46 to Steven’s question as to what he was going to do with his land, that Bevan responded “You’ve lost yourself a farm”. Steven said from that time, he and Bevan have rarely spoken. Steven said that it was during these discussions that Bevan said that he could buy the land at a fair price. 244 The purchase of the land described as Lou’s land also became a source of conflict between Bevan and Steven. Lou was the brother of Francis and owned the other half of the original farm. Steven gave evidence that he and Bevan had kept farming the land after Lou had retired in the early 1980s. Lou died in 2016 and his wife, Teresa, died shortly after. Steven gave evidence that they were given the first offer to purchase the land in Lou’s will. Steven said that once Lou and Teresa had died, he started negotiations with two of their sons who were executors of that estate. The land passed in at auction. Steven said that he ultimately signed an unconditional contract for the purchase of the land but there was some dispute concerning the provision of security by Bevan and the terms upon which that security was going to be provided. There was also some dispute about the circumstances in which Steven signed an unconditional contract for the purchase of that land. Steven said that plan was that he would use his land to buy Lou’s land and that Bevan would put up security for the overdraft. Steven said that Bevan had offered to put up security for the overdraft. 245 Steven agreed that there were meetings between himself, Mr Northcott of Rabobank, Bevan and Valerie to discuss the purchase. Steven disagreed that at one stage in the meeting on 8 October 2019, Bevan said that he would not let his land be used as security for the purchase but ultimately said that he would be willing to consider $1-$1.5 million of debt. Steven said that he could not recall the meeting ending with Mr Northcott saying that Bevan held all the cards, but if he did say that he considered that to be only Mr Northcott’s opinion. 246 Steven said that he signed the contract to purchase the land and then Bevan decided that he would not provide finance. On 14 November 2019, Steven signed an unconditional contract for the purchase of Lou’s land. He did not tick a box in the contract that would have made the contract subject to finance. Steven disagreed that Mr Northcott, in a separate discussion after the 8 October 2019 meeting, advised him not to sign an unconditional contract until there had been formal approval for bank finance. He said that Mr Northcott never advised him of the risks of signing an unconditional contract. Steven said that it was a mistake that an unconditional contract was signed. He said that the box that the contract was subject to finance should have been checked. 247 In cross-examination, Steven was taken to statements that he made in an affidavit filed in the Supreme Court (part of exhibit R112). In that affidavit, he stated: [101] At the auction, the property was passed in because the reserve price was not met, but I managed to reach agreement with the Vendors after the sale and signed an unconditional contract to purchase Lou Bull’s land on the 14th of November 2021 [sic]. I agreed to sign the contract on the basis that it was unconditional because I knew that I could borrow the -- 50 of 122 -- [2024] SADC 109 47 funds for the purchase given that Bevan had promised me that I could use the farming land for security for the purchase. [102] To my horror, sometime in December 2019, Bevan announced to me that he would not be providing the farming land as security for the purchase of Lou Bull’s land. To say I was furious is an understatement as the position taken by Bevan was threatening the livelihood of me and my family not to mention the success of the farming operations. Bevan had reneged on his promise and a promise to me that he made in front of our banker. 248 Steven disagreed that he made a deliberate decision to sign an unconditional contract to purchase the land. He said that it was a mistake and that they all missed it (i.e. ticking the box that would have made the contract subject to finance). He said that the statement in paragraph [102] should have been a reference to security for the overdraft and not security for the land. 249 Ultimately, NAB provided finance. The arrangements between Steven and Bevan associated with the provision of that finance became the subject of dispute and were the subject of the cross-claim. As that cross-claim has resolved, I do not need to consider the facts relating to that arrangement and the terms and circumstances relating to the provision of the security. 250 Mr Northcott is a bank manager employed by Rabobank. He gave evidence of his discussions with Steven and Bevan about the proposed finance to be provided to Steven to purchase Lou’s land. He said that at the first meeting in July 2019 with Steven, Bevan and Valerie about the proposed purchase of the land and the provision of finance, Bevan and Valerie made it clear that they would consider assisting Steven but would not use their land to support the debt. He said that the proposal that was being discussed conceptually was that Bevan and Valerie would assist Steven in securing the operating debt. He said that once the relationship had broken down, Steven sought alternative options for finance which resulted in the refinancing of the facilities through NAB. 251 Mr Northcott gave evidence about a meeting with Steven, Bevan and Valerie on 8 October 2019. He made notes of that meeting (exhibit R111). He said the typed notes were a summary of the handwritten bullet points that he took during and after the meeting. He records in his notes, and gave evidence, that there was tension between the parties in relation to the transaction. He said that Bevan stated that he would not use his land to support the new debt. Mr Northcott gave evidence that he said to Bevan, Valerie and Steven that Bevan holds the cards for the transaction. The note records that all parties understood this. Mr Northcott gave evidence that the meeting concluded on the basis that the transaction required further consideration. 252 Mr Northcott gave evidence about further discussions that he had with Steven after the meeting. He said that he advised Steven that he should not sign an unconditional contract until the financing arrangements were in place. Mr Northcott said he made clear the risk of buying at auction and the risk of signing -- 51 of 122 -- [2024] SADC 109 48 an unconditional contract. The note (exhibit R111) supports this evidence. The note records: Several discussions with Steven were had before auction and I advised that given the unknowns with their business a formal approval for bank finance could not be provided. I advised him of the risks of signing an unconditional contract without formal finance being in place. 253 Bevan also gave evidence about the purchase of Lou’s land. He said that he made it clear to Steven that he was not interested in purchasing that land. He said that he told Steven that there was no need to buy the land and that Steven should be satisfied with the land he already owned. He said that Steven wanted Bevan to put his land up for security but Bevan said that would not do that. At that time, Bevan was working three days a week. Bevan said that he stopped working completely when Megan moved to town (which was in November 2019). 254 Bevan gave evidence that at the meeting with Rabobank, he said that he would offer security for the cash amount required to purchase the land up to $1.5 million but would not offer his land as security. He said that the bank said that was not satisfactory and negotiations then broke down. He said that at the meeting Mr Northcott said that the ball was in Bevan’s court. Bevan gave evidence that in October 2019, the auction was held for the sale of the land but no bids were received. 255 Bevan and Valerie made further wills on 31 July 2020 (exhibits A65 and A66). The wills are in identical terms and after some monetary bequests to grandchildren leave their estate to each other and then to their children equally. Findings about the breakdown in the relationship between Bevan and Steven in the period between 2015-2020 and the purchase of Uncle Lou’s farm 256 I make the following findings about the breakdown of the relationship between Steven and Bevan in the period between 2015-2020 and the events that occurred in this period. 257 First, it was common ground that the relationship between Bevan and Steven deteriorated over this period and by the end of the period it had broken down irretrievably. 258 Secondly, it was common ground that Francis died in 2015. There was litigation regarding the will which was ultimately resolved in 2017 with Bevan agreeing to pay the sum of $1 million to his siblings in exchange for which Bevan received all of the farming land owned by Francis. This sum was paid by the partnership but allocated as a drawing against Bevan’s account. 259 Thirdly, it was Bevan’s position during the course of the estate litigation that he should receive the Farming Land because he was the person who had worked on the farm when his siblings, except for Ian up who had worked on the farm until 1994, had not. Ian was entitled, on Bevan’s view, to receive compensation to be -- 52 of 122 -- [2024] SADC 109 49 determined by the value of land as at 1994. Bevan gave uncontested evidence about these matters. 260 Fourthly, a number of specific incidents occurred which facilitated and exacerbated the breakdown of the relationship between Steven and Bevan. These included the argument relating to the grain delivery documents, the argument with Megan, the argument following the resolution of the estate litigation, and the arguments concerning the purchase of Lou’s land and the provision of security for that purchase. The merits of the respective positions of Steven and Bevan in relation to these matters are not relevant to these proceedings and do not need to be determined. What is relevant is where a party has made some statement during the course of the dispute which evidences a particular view they then held or which affects their credit. 261 Fifthly, as to the argument relating to the grain delivery, Bevan gave evidence that it was during the course of this argument that he made the comment “You’ve lost yourself a farm”. Bevan says that he was referring to the purchase of Lou’s land when he made the comment. Liz denies that the statement was made at that time. Steven says that Bevan made the statement after the estate litigation had resolved in 2017. I prefer the evidence of Bevan as to when the statement was made. I do so because: (1) I generally prefer the evidence of Bevan to that of Steven. (2) Liz does not give evidence as to hearing the comment but says that it was not made during the course of the argument about grain deliveries. I find that she was mistaken in this regard. It is difficult to recollect precisely what was said during the course of a volatile argument that occurred a number of years ago; (3) The timing in which the statement is alleged to have been made better accords with the statement being made in the context of the argument about grain delivery rather than the argument following the settlement of the estate litigation. If Steven’s evidence is accepted and the statement was made at the time of the resolution of the estate litigation in 2017 and was intended by Bevan to convey that he would renege on a promise that he would transfer all the Farming Land to Steven and was understood by Steven to have that meaning, that statement would have been devastating to Steven. It would signify the point at which Steven would understand that he was not going to receive the Farming Land. It could be expected that Steven would react to that statement, dispute that Bevan was entitled to act in that way and engage lawyers and set out his position. He did not do so at that time. Instead, there were later discussions about the purchase of Lou’s land and the terms upon which Bevan might assist in relation to the provision of security; -- 53 of 122 -- [2024] SADC 109 50 (4) Steven’s pleading refers to the statement being made in May or June 2020. That is inconsistent with his evidence and suggests that Steven’s recall of the events is not reliable; (5) If the statement by Bevan was not intended to convey that he would renege on a promise that he would transfer all the Farming Land to Steven, then it does not assist in the resolution of the proceedings. If the statement was intended, in accordance with the evidence of Bevan, to refer only Lou’s land, then Steven’s lack of response is understandable. 262 Sixthly, further in relation to the resolution of the estate litigation, Steven’s evidence that he asked Bevan whether the Farming Land that had been transferred to Bevan was for sale and enquired whether he could buy that land or whether it was going to be left to his siblings, is inconsistent with Stevens’ understanding that he had been promised that land without payment or that he would inherit the land. 263 Seventhly, in an argument concerning the operation of the farm in October 2017 at which Megan was present, and in response to a statement by Bevan that Steven could buy the farm, Steven asked how much could he lease it for. 264 Eighthly, the wills made by Bevan and Valerie on 31 July 2020 (exhibits A65 and A66) in which they left the farming land to all their children, including Steven, in equal shares, are inconsistent with the alleged promises that they made that Steven would inherit the Farming Land. If the alleged representations were made, the wills constitute a repudiation of those representations. 265 Ninthly, in relation to the purchase of Lou’s land, I make the following findings: (1) following the death of Lou and his wife Teresa, Steven was interested in purchasing the land. Bevan had no interest in purchasing the land himself as he was retired or virtually retired; (2) the issue of the provision of security by Bevan for the purchase of that land was the source of conflict between Steven and Bevan. That is clear from the evidence and note of Mr Northcott of the meeting of 8 October 2019, who was an independent witness. It is clear from Steven’s affidavit (exhibit R112) that Steven was asserting Bevan had reneged on a promise to provide security and that he was consequently furious. As an aside, if Steven was furious that Bevan had reneged on the promise to provide security, it would reasonably be expected that Steven would have been even more furious on Bevan reneging on a promise to transfer all of the Farming Land (which Steven says that Bevan did in 2017); (3) Bevan had made it clear that he was not prepared to proffer his land as security but he was prepared to consider, but had not agreed upon, offering security up to $1.5 million for the cash required to complete -- 54 of 122 -- [2024] SADC 109 51 the purchase. This finding is consistent with the evidence and file note of Mr Northcott of the 8 October 2019 meeting, which I accept as accurate. Mr Northcott was an independent witness who had made a contemporaneous note of the meeting. It follows that I reject Steven’s account of the meeting. Steven’s affidavit that Bevan made a promise to offer his land as security at the meeting with the banker is inconsistent with his evidence at trial that Bevan was offering security for the overdraft and not security for the land; (4) Mr Northcott advised Steven not to sign an unconditional contract for the purchase of the land as finance was not in place but Steven went ahead and did so. I come to that conclusion because again I accept Mr Northcott as an honest and reliable independent witness who also made a contemporaneous note of his advice. Further, the advice is consistent with the practice of a prudent banker. Steven’s position is inconsistent with his affidavit where he stated that he signed the unconditional contract because of the promises that had been made by Bevan It follows that I reject Steven’s evidence that Mr Northcott did not give such advice and reject the evidence of Steven that it was the actions of Mr Northcott which caused Steven to sign an unconditional contract.; and (5) Steven made a deliberate decision to enter into the unconditional contract. It was not by mistake that he failed to mark the box “subject to finance” in the contract. I make that finding for the following reasons. That finding is consistent with his affidavit that he made a deliberate decision to enter into the contract. It is consistent with the findings that I have made about the advice given by Mr Northcott. Further, Steven was eager to purchase the land. Steven had taken opportunities over the years to buy land and increase the size of his land holdings. Evidence relating to the 2020 negotiations and the terms of the dissolution of the Partnership 266 In anticipation of the dissolution of the Partnership, Steven through his lawyers, wrote to Bevan and Valerie on 26 January 2020 (exhibit R105). The letter put forward a proposal relating to the dissolution of the Partnership and included a proposal that Steven lease the 1600 acres of farming land for $128,000 per annum. Relevantly, for the purposes of this action, the letter goes on to state: As previously mentioned, Steven desires to run the farming operations with a view to expanding over time as you have done together in the past. He wishes to do this to ensure that if one or more of his sons decide to become farmers, then they will have a sufficient level of farming operations to enable them to be financially viable. With that in mind, he would be grateful for any opportunity that you might offer that would enable him to purchase your farming lands in the future when he can afford to do so and only after he has paid you everything that you are due pursuant to the rearrangements currently being considered. -- 55 of 122 -- [2024] SADC 109 52 This opportunity could be granted to Steven in a number of ways one of which could be including a term in the lease between Bevan and Steven that gives Steven an option to purchase the farming land on certain terms to be agreed between you and set out in that option. Although Steve would be extremely thankful for such an opportunity, he understands that you may not be ready to consider this right now. He has just asked that we raise it now so that you at least aware of what he would like to do, so that you have the chance to give it some thought if you wish to do so. 267 In cross-examination, Steven agreed that he would have reviewed the letter before it was sent. He said that at the time that the letter was sent he understood that all of the Farming Land, which was held by Bevan, was going to be left to him in Bevan’s will for nothing. He said that he expected to receive the land for nothing. He said that he didn’t have to buy it because it was going to be left to him. He said that he offered to buy the land because Bevan and Valerie never offered it to him. 268 Steven, through his solicitors, wrote a letter to Bevan and Valerie’s solicitor dated 8 February 2020 (exhibit R107). That letter dealt with only one topic, namely the purchase of the land on which Steven and Liz’s transportable house was situated. The letter referred to the difficulties that could arise because Bevan owned that land. The difficulties that might arise were said to be: (1) Steven would not retain the benefit of improvements that had been made to the home; (2) if Steven died, Bevan could evict him; (3) if Bevan passed away, the executor of Bevan could evict Steven. 269 In the 8 February 2020 letter, Steven then went on to offer to purchase the land upon which the transportable home was located for $297,000. The letter also stated that Steven would be grateful for the opportunity to purchase all of the Farming Land. Steven denied that he made the offer because he always knew that he would have to pay for the land. He said that he made the offer to try to sort out the problem. 270 Steven did not accept that the offer was inconsistent with his claim that Bevan had promised him that that he would inherit all of the Farming Land. Steven said that he made the offer because he wanted to own the land on which the house was placed so that he would have somewhere to live and because he wanted some security. He said that everything had changed by 2020, by which time the Partnership had finished. Liz gave evidence that they offered to purchase the land because they were trying to settle the dispute. However, it was not until later in 2020 that the claim was first raised. 271 Bevan and Valerie in their written submissions referred to a further letter dated 21 February 2020. That letter was not tendered in evidence and therefore I do not take it into account. 272 Steven’s lawyers wrote a further letter on 10 March 2020 (exhibit R108). That letter dealt with issues relating to the Partnership and included an offer by -- 56 of 122 -- [2024] SADC 109 53 Steven to pay the sum of $1,712,000 to Bevan and Valerie. The letter then went on to state that to enable that offer to be made, Bevan would transfer sections 899 and 617-624 (386 acres) to Steven conditional upon Steven agreeing, inter alia, that he would not be entitled to any further benefit from the estate of Bevan or Valerie and in any event would not be successful even if he attempted to make a claim. The offer recorded that Steven would lease Bevan’s remaining farming lands at a rate of $80 per acre for 5 years and that the assets of the Partnership would be transferred to him. The letter stated that Steven undertood that Bevan and Valerie may be reluctant to transfer the land to Steven as their view would be that Steven was receiving his inheritance before his siblings. 273 Steven accepted that at that time, Bevan owned about 1700-1800 acres. Steven said that he did assert any claim to the Farming Land in the letter because he was trying to solve the problem that had arisen with the termination of the Partnership. He said that he did not assert in the letter that he had been led to believe since 1984 that he was going to get all of the land for nothing, because Bevan and Valerie changed what they wanted to do in 2020 and had changed their wills. He said that he was trying to find a solution to the problems he faced following the dissolution of the Partnership. 274 Bevan gave evidence about the dissolution of the Partnership. He said that he first gave notice of dissolution of the Partnership in 2017. However, he said that the Partnership was formally dissolved on 31 January 2020. Ultimately, the parties agreed on the terms of the dissolution of the Partnership which are reflected in a written agreement made on 26 June 2020 (exhibit A9). Under the terms of that agreement, the Partnership was deemed to be dissolved as at 31 January 2020. Steven agreed to make a payment of $2.55 million to Bevan and Valerie over a period of time. There was a dispute about the terms of security and whether Steven had complied with those terms. I do not need to determine that dispute as the parties have settled the cross-claim. The document that forms the basis of the agreement to settle the terms of dissolution of the Partnership dispute was the statement of assets and liabilities of the Partnership as at 31 January 2020 (exhibit A59) which was adjusted for some events and income being received after 31 January 2020. 275 On 31 July 2020, Bevan and Valerie made further wills (exhibits A65 and A66), in which they left the residue of their estate after payment of gifts of $20,000 to their grandchildren, to each other and then equally to all of their children. Findings relating to the 2020 negotiations and the terms of the dissolution of the Partnership 276 I make the following findings about the 2020 negotiations and the dissolution of the Partnership. 277 First, the Partnership was dissolved on 31 January 2020. The terms of the resolution are set out in the written agreement dated 26 June 2020 (exhibit A9). -- 57 of 122 -- [2024] SADC 109 54 278 Secondly, the terms of the letter sent by Steven through his lawyers on 26 January 2020 (exhibit R105) are inconsistent with his claim that Bevan represented that the Farming Land would one day be Steven’s and that Steven would inherit the Farming Land. In the 26 January 2020 letter, Steven says that he would be grateful for any opportunity that Bevan might offer that would enable him to purchase the Farming Land in the future when he could afford to do so. That statement is inconsistent with Steven having been promised that he would inherit the land or that it would be transferred to him at some time, in either case, for no consideration. Steven’s offer implicitly accepts that he has no right to the land but that Bevan might choose to sell it to him. I do not accept Steven’s explanation for the offer to purchase the land contained in the letter. Steven’s evidence in relation to the offer to purchase the land was rambling and not convincing. He made multiple attempts to justify the offer but none were convincing. He could not proffer any rationale reason why he would make the offer if the representations had been made. He gave evidence that he made the offer because Bevan and Valerie had not made an offer to him. That does not explain why an offer to purchase the Farming Land was made when the promise was either that he would inherit it or receive it for no payment. If those promises had been made, Steven would be expected to have referred to them and proposed an interim arrangement until those events took place. 279 Thirdly, the 8 February 2020 letter (exhibit R107) is also inconsistent with Steven’s claim. It is inconsistent because the risks identified (of not receiving the benefit of the value of improvements or of being evicted in the case of either Steven or Bevan’s death) do not arise if, as Steven claims, he has a proprietary interest in the Farming Land as a result of the promises. It would be expected that there would be a reference to the promise as being the basis by which the risk would be averted. Further, for the same reasons as identified above, the reference to being given the opportunity to purchase all of the Farming Land at some time in the future and the offer to purchase the parcel of land upon which the transportable house was located, is inconsistent with the claimed representations. Steven’s justification that he wanted security in respect of the land upon which the transportable house is located is understandable but does not justify the offer if the promises had been made. Steven would have made clear that he had a right to remain on the land. Further, his evidence that everything had changed because the Partnership had ended does not provide an adequate reason as to why he would seek to make an offer to purchase the Farming Land when he was of the understanding that he was entitled to the land without payment. 280 Fourthly, the terms of the letter dated 10 March 2020 (exhibit R108) sent by Steven’s lawyers are also inconsistent with his claim. In that letter, Steven offers to accept sections 899 and 617-624 (386 acres) as the full amount that he was entitled to from the estates of Bevan and Valerie. That is less than a quarter of the total land owned by Bevan. The offer is consistent with the principle of equality advanced by Bevan and inconsistent with a promise to Steven that he would receive all of the Farming Land. The letter also makes references to Steven -- 58 of 122 -- [2024] SADC 109 55 receiving his inheritance early and before his siblings if this offer was accepted (because he would own the land in advance of the deaths of Bevan and Valerie) and suggests an adjustment to compensate Bevan and Valerie for the early inheritance. That suggests an entitlement of the siblings to an inheritance that includes the majority of the Farming Land. 281 Fifthly, in the letter, Steven offers to lease all of Bevan’s remaining farming land (except 200 acres) at the rate of $80 per acre for 5 years. That is inconsistent with an entitlement to the whole of the Farming Land. The letter makes no reference to any promises made to Steven that he would inherit all for the Farming Land. 282 Sixthly, the terms of the wills made by Bevan and Valerie on 31 July 2020 represent a repudiation of any promise that Steven would inherit all of the Farming Land as the wills divide the land equally between all of the children of Bevan and Valerie Steven’s current operations and plans for the future 283 Following the termination of the Partnership, Steven has established his own business, Copper Coast Farming. The matters which I describe below are not in dispute and I make the findings set out in this section. 284 Steven operates the business of Copper Coast Farming as a sole trader. Steven conducts farming operations over all of the Farming Land, his own land and some additional land leased from third parties. Subsequent to the settlement of the Partnership dispute, Bevan and Steven agreed that in the interim period prior to determination of Steven’s claim, Steven would lease or share farm the Farming Land owned by Bevan, or in which Bevan had an interest, at an agreed price (exhibits A22 and A32). Although these lease agreements have expired, Steven continues to hold over. Liz does all the book work for the business. Steven currently farms about 4,969 acres but would lose tenure over 2,274 acres if not successful in this litigation (according to his calculations in his closing address). In total, he makes lease payments of about $1.7 million per annum. He grows lentils, wheat and barley. He employs 3 full-time staff. 285 Steven’s financial statements for the year ending 30 June 2021 (which was the last available statement that had been prepared) shows income of $3,789,152 and expenses of $2,929,212 and an accounting profit of $859,940. Steven prepared a cashflow of Copper Coast Farming which forecasted $7.6 million in income for the year ending 2021-2022 with expenses of $6.449 million (exhibit R95). Steven has debt of $9.2 million. 286 Steven gave evidence that if he was not successful in this litigation and if the leases and share farming ended, his business would not survive because he would be left with the least productive land. Steven said that his ability to lease further land would depend on the bank agreeing to lend money for that purpose. -- 59 of 122 -- [2024] SADC 109 56 287 In 2022, Steven purchased a small block of land, Paddick’s land, which adjoins other land that the owns for between $500,000-$600,000. 288 I accept the evidence of Steven that he wants the farm to be passed to the next generation and the farm remain in the Bull family name and would prefer that his children, or one of them, take over the operation of the farm. He said that in this scenario, he would not retire but his involvement would be less and he would be teaching his children some of the farming skills. He said that selling was his last option. I accept Steven’s evidence that both boys had expressed some interest in working on the farm in the future. 289 Liz also said that her younger son, Josh, has expressed an interest in working on the farm after he finishes school. 290 However, both boys are still studying and it is not possible to be certain as to the path that will take. 291 Steven and Liz intend to build a new house on Lot 92, which is land that he owns (see exhibit A1). Steven said that he has received approval from the Council and the NAB has approved finance in the sum of $600,000. As yet, they have not signed any contract with a builder for the construction of the house. He said that his intention had been to move into Bevan and Valerie’s house on the farm because that is where all the farm infrastructure is situated. Following Bevan and Valerie’s move to Kadina, that house has remained unoccupied. Original plan and fair price 292 Steven gave evidence that there was an original plan (the Original Plan) which comprised the following elements: (1) Bevan and he would build up the farm; (2) no-one would take any more of the profits than anyone else and invest most of the profits of the farm back into the farm or the partnership operating the farm; (3) the Partnership would buy Bevan and Valerie a house in Kadina to which they could retire; and (4) Steven would continue to operate the farm and pay for Bevan and Valerie’s retirement and all of the land and plant and equipment would stay with Steven. 293 It was put to Steven in cross-examination that this evidence about the Original Plan was inconsistent with affidavits that he had filed in the Magistrates Court in relation to the intervention order proceedings. In paragraph [5] of the affidavit dated 5 January 2021 (part of exhibit R109) he stated: -- 60 of 122 -- [2024] SADC 109 57 The plan was that the partnership would pay for their retirement house in Kadina. They then would retire and I would continue to operate the farm. All plant and equipment would remain to enable me to do this and all of Bevan’s land was also to remain for me to work to enable me to continue to create an income to fund their retirement - just like my grandfather Francie did for him. I was to look after them in their retirement through the continued operation of the business and in time purchase the land for a fair price. 294 In the dot points to paragraph [8] of the affidavit sworn 19 March 2021 (exhibit R110), Steven stated: The original plan for their retirement was that the partnership would pay for their retirement house in Kadina. They would then retire and I would continue to operate the farm. All plant and equipment would remain to enable me to do this and all of Bevan’s land was also to remain for me to work to enable me to continue to create an income to fund their retirement—just like my grandfather Francie did for him. I was to look after them in their retirement through the continued operation of the business and in time purchase the land for a fair price which would then go into his estate for my siblings. This plan that we were working towards for the last 30 years was now not something he was interested in. 295 In paragraph [143] of his further affidavit dated 10 June 2021 (exhibit R112), which was sworn in support of caveat proceedings, Steven said that Bevan’s promise to him that he would ultimately end up with the Farming Land was subject to and conditional upon him paying a fair price, with that being what Bevan described as being a fair contribution to the inheritance of Steven’s siblings rather than the market value of the land. 296 In paragraph 44(d) of the same affidavit, Steven stated that during the kitchen table discussions and many times in the years prior to 2017, Bevan and he would discuss the plan and Valerie would sometimes comment, but Bevan said that one day Steven would own all of the Farming Land and the plant and equipment, but he would have to pay a fair price for the Farming land only to his siblings - which would not be on the basis that the siblings received an equal share of the Farming Land by way of cash payment but rather a payment Bevan thought was fair. Steven stated in the affidavit that he accepted that he knew that he could not expect to receive all of the farming assets for nothing. Steven said that in this affidavit Bevan had said that his siblings could not expect to get an equal share of the value of the land because Steven was the one who had put his money and shared work it the farm Bevan. Steven said that Bevan said during these discussions that he and Valerie would move to Kadina and Steven and Liz would live in their house on the farm and that the farm would provide them with an income when they retired, all of which Steven agreed to. 297 In paragraphs [79] and [80] of the affidavit, Steven stated that just prior to the YP Field Days in September 2017, he approached Bevan to talk about the future and that his expectation was that they would talk about whether Bevan would allow Steven to receive his land and what a fair price would be for owning the land as Bevan had promised in the past-that fair price not being the full market value or even 4/5ths of that value but rather an amount that Bevan thought was fair based on the notion that Steven had invested his time, money, career and effort in -- 61 of 122 -- [2024] SADC 109 58 the farm such that he had earned the right, according to Bevan’s past promises, to own the land without having to buy it from him. 298 In evidence, Steven said it was not part of the Original Plan that he would purchase the land at a fair price. He said that the component of the plan that he pay a fair price of the land was introduced later by Bevan from about 2017 when Bevan became the owner of Francis’ land. Steven said, in cross-examination, that the concept of a fair price was “tossed around, but it wasn’t put in the context like you’re saying”. He went to say that the fair price comment “was nothing”, “It wasn’t even structured”. He said that it never went everywhere. 299 Steven said that he was willing to pay a small token to keep the family together. He said that prior to 2017, he was not of the understanding that he would have to pay a fair price for the Farming Land to his siblings. He said that if there was anything said about a fair price, nothing was discussed as to how that fair price would be reached. He said that the “fair price” was to be negotiated. He said that he thought it was under half of what sum the land was valued. He said that if Bevan had his way, he would have wanted him to pay the full market value. He ultimately agreed that it was up to Bevan to set the fair price. Steven said that if he paid a fair price, whatever that might mean, he would not have to pay anything for the plant and equipment. He said that he offered a fair price in 2020 because the Partnership had ended and he was trying to resolve the matter. Steven denied that he merely had a hope of inheriting his parents’ land but said that he was promised that the lands would be left to him and he knew that it was being left to him. He denied that the promise was subject to a fair price being set by his father in the will to ensure fair treatment with his siblings. 300 Bevan gave evidence that the idea of a fair price came up in the period between 2015-2017 when things were changing. He said Steven would always bring up the topic of what was happening in the future and Bevan said in response that any transfer of the land would be at a fair price. Bevan gave evidence that it was only discussed that if Steven was to buy the land, it would be at a fair price for the other children. He said that he did not discuss with Steven what would be taken into account in determining what was a fair price. In cross-examination, Bevan said that he considered it fair if the children were treated equally and Steven received one fifth of the farm. He considered it fair because although Steven had worked on the farm, Steven had also accumulated his own assets. 301 Bevan said that there was a plan agreed upon between he and Steven in 1996 when the first property was purchased in Steven’s name. He said that the plan was he would help Steven get established, get Steven his farm and Steven would look after Bevan and Valerie in their retirement. By that time, Bevan said that he and Valerie would get a house and money to live on. No figures were discussed. 302 I make the following findings about the introduction of the concept of a fair price. The concept of a fair price was not raised prior to 2015, at the earliest. That accords with the evidence of Bevan and Steven. The statements made in the -- 62 of 122 -- [2024] SADC 109 59 affidavits of Steven about a fair price are inconsistent with his evidence. The Original Plan, according to Steven’s evidence, but contrary to his affidavits, did not include any element of fair price. Steven sought to explain away the notion of fair price by referring to paying a small token, but I do not accept that as being consistent with the concept of a fair price. The concept of paying a fair price is consistent with Bevan’s plan that all of the children would be treated equally. It follows that I do not accept the submission of Steven that the introduction of the concept of a fair price represented a change in the position of Bevan. The concept of a fair price is not consistent with Steven’s position that he had always been promised that he would inherit the Farming Land. What was meant by the notion of fair price was not the subject of discussion between Bevan and Steven but it is clear from the evidence that the fair price would be set by Bevan. 303 Steven submitted that he accepted what he described as Bevan’s change of position because he did not realise he could do anything about it and had not received legal advice. That submission ignores that Steven continued to maintain the same position, that he would buy the Farming Land at a fair price after he received legal advice and had made offers through his lawyers, including after the Partnership Agreement had been terminated. His statement of claim makes reference to a fair price. Steven goes on to submit that his actions must be considered in the context of a family arrangement. While that is the case, it does not explain the continual assertion of a fair price once Steven had engaged lawyers and was putting forward his position. Assets and liabilities of Steven 304 Steven gave evidence about his assets. Other than assets relating to the land that he or the Trust owns and his business, Copper Coast Farming, he has minimal assets. He said that he had superannuation of about $700, some old boats of negligible value and some shares in the fertiliser company, Incitec Pivot Limited (exhibit A86) which were issued when he had purchased fertiliser from that company. He had loans with Volkswagen and Macquarie Bank in relation to motor vehicles. 305 Steven has a number of accounts with the NAB. A summary of those accounts showed a total indebtedness of Steven to the bank in the sum of $7,187,807 as at 22 September 2022 (exhibit A88). There was a business markets loan in the sum of $3,900,000 and a business markets loan which had a then outstanding balance of $2,746,393 with an available balance of $353,606 and a market rate facility with a then outstanding balance of $575,340.38 with an available balance of $24,659. There is some $830,000 still outstanding under the Partnership Dissolution Agreement and some money owed under personal property security interests, such that his total liabilities are somewhere in excess of $8 million and possibly as high as the $9.2 million referred to in Steven’s closing submissions, although it is not possible or necessary to definitively determine this amount. -- 63 of 122 -- [2024] SADC 109 60 306 Steven provided a statement of position to the NAB on 4 April 2022 (page 156 of exhibit R122). That statement recorded total assets of $18,947,602, liabilities of $6,992,428 and a net asset position of $11,955,174. 307 In the statement of position provided to NAB on 4 April 2022, Steven estimated the value of the land that he owned to be $11,871,000. In evidence he told the Court that his land was only worth $7 million. Steven said that the two sums were two different things: he said that the statement of position was a valuation, and the $7 million was an estimate of the sale price based on the prices being achieved in the area. I do not accept that distinction. By setting out the figure in the statement of position, Steven is advising the NAB what he considers the value or worth of the land, that is what it could be sold for if the need arose. The valuation of Knight Frank dated April 2020 (exhibit R100)(which was made before the purchase of Paddick’s land), valued Steven’s land as at 16 April 2020 in the sum of $9.65million. Again, Steven disputed that value as being the amount that he would achieve on the sale of the land. Again, it is not possible to be precise, but I am of the opinion that the land is valued somewhere between $12-15 million. I have come to this conclusion based on the Collier’s valuation, the Knight Frank valuation (as adjusted for time since it was prepared and the Paddick land), and the statement of position. 308 The statement of position also referred to plant and machinery valued at $4.165 million and stored lentils of $2.5 million. Steven was cross-examined on the $4.165 million which he estimated to be the value of the plant and machinery. It was put to him that estimate was inconsistent with his evidence that the plant and equipment was worth probably $2.5 million, if that, and that the figure of $2.5 million was just a guess because everything was nearly worn out. There is an obvious inconsistency between the two figures (even allowing for the differences in timing) but it is not possible to say that Steven deliberately lied either to the Bank or to the Court when the basis of his estimates was not detailed. Again, without being precise, I accept a value of the plant and equipment as at the date of the dissolution of the partnership to be $2.5 million. That was the agreed figure in the Partnership Dissolution Agreement. Steven did not disagree with that amount in evidence and it was less than the $4.165 million set out in his statement of position. 309 To this sum should be added the cultivator which was purchased for $912,226 in September 2022 (after the statement of position was prepared) and the harvester in the sum of $841,500 (pages 3 and 19 of exhibit R302). A deduction should be made of $552,528 for the trade in (page 17 exhibit R302), leaving further plant and equipment purchased of about $1.2 million. 310 The estimate of the value of the stored lentils in the sum of $2.5 million in the statement of position was inflated. Steven said that the estimate was based on 2500 tonnes of lentils selling for $1000 per tonne. Steven said that the selling price of $1000 per tonne was based on what lentils were selling for at that time. He said the amount of lentils being stored was an estimate as the lentils were not weighed. -- 64 of 122 -- [2024] SADC 109 61 In fact, that estimate was excessive given that the BAS statement for the period April to June 2022 showed sales of $277,000 (or 400 tonnes of lentils) and the estimate of income for the year 2022-2023, signed by Steven on 10 October 2022, showed 100 tonnes of stored lentils. At the very least, the estimate of the amount of lentils stored as at 4 April 2022 as reflected in the statement of position was excessive. For the purposes of determining the value of Steven’s assets, I ascribe a value of $100,000. I also do not accept Steven’s estimate in the statement of position of the amount of lentils as 2500 tonnes as a genuine estimate. The actual amount of lentils was about 1/5th of that amount. It is not conceivable that an experienced farmer such as Steven would so grossly under-estimate the amount of lentils. At the very least, it suggests that Steven was reckless in the estimate that he provided to NAB in the statement of position. 311 Steven disagreed that he had assets worth about $20 million and said that his estimate was that he had assets of only about $10 million. Based on my findings, and again without being in a position to provide a precise figure, I consider the value of Steven’s assets to be in the range between $15.6 million and $18.7 million (depending on the value of the land). Steven’s net position is therefore between $6.4 million and $9.5 million. Overview of Steven’s claim and applicable legal principles Overview of claim 312 Steven’s primary case is that he is entitled to a constructive trust over the Farming Land owned by Bevan based on proprietary estoppel by encouragement as against Bevan. Alternatively, he seeks a constructive trust based on promissory estoppel or the imposition of a constructive trust based on the failure of a joint venture. In relation to the small parcel of land held by Valerie, Steven pleads an estoppel by acquiescence. Alternatively to seeking the imposition of a constructive trust, Steven seeks equitable damages. 313 As to estoppel by encouragement, Steven’s claim is that Bevan, as the owner of the Farming Land, encouraged Steven to stay on the farm and work for relatively minimal wages and reinvest any profits in the farm by representing to him that he would inherit all of the Farming Land (including the land that Bevan inherited from Francis) and that Steven assumed that to be the case and changed his position to his detriment. 314 Steven has pleaded that Bevan made many representations to him that he would inherit the Farming Land. Steven has alleged that from 1984 and up to the breakdown of the relationship in about 2017, that Bevan made representations that the Farming Land and the Partnership would be Steven’s. Steven’s pleaded reliance is set out in paragraph [49] of the Claim and in broad terms related to: • his decision to work and continue to work for long hours on the farm for minimal wages; -- 65 of 122 -- [2024] SADC 109 62 • not seek a career outside of farming; • live in a transportable house and make improvements to that house; • not receive his share of the profits from Anidak or the Partnership (and invest what he did receive back into the farm); • not objecting and/or agreeing to the Partnership funding the retirement of Bevan and Valerie and paying the legal fees and the sum required to settle the estate litigation and purchasing Lou’s land. 315 The pleaded detriment was limited. In paragraph [54] of the Claim, Steven pleads that he will suffer significant detriment if the representations are not enforced as he will not be able to purchase the Farming Land at market value and will suffer consequential detriment such as not being able to work the Farming Land, losing his house and being unable to profitably continue the farming operations and support his family and being unable to leave the Farming Land to his children. Proprietary estoppel 316 The authorities have recognised two forms of proprietary estoppel, estoppel by encouragement and estoppel by acquiescence.23 317 Proprietary estoppel by encouragement arises when an owner of property has encouraged another to alter his or her position in the expectation of obtaining a proprietary interest and the other person, in reliance on the expectation created or encouraged by the property owner, has changed his or her position to his or her detriment.24 318 A proprietary estoppel can arise in circumstances where a family member works on a farm for a substantial period of time, without adequate payment, on the promise that they would ultimately inherit the farm.25 In such a case, the proprietary estoppel creates an equity in the property in favour of the applicant. The nature and extent of the equity will depend on the circumstances.26 319 In E Co v Q,27 the Court upheld the proprietary estoppel claims of the plaintiffs that they would acquire an interest in the farms on the basis of 23 Sidhu v Van Dyke (2014) 251 CLR 505, [2], [77]; [2014] HCA 19; Priestley v Priestley [2017] NSWCA 155, [7]-[8]. 24 Delaforce v Simpson-Cook (2010) 78 NSWLR 483, [21]; [2010] NSWCA 84 approved in E Co v Q [2018] NSWSC 442, [911]. See also Ashton v Pratt (2015) 88 NSWLR 281; [2015] NSWCA 12, [108]; Doueihi v Construction Technologies Australia Pty Ltd (2016) 92 NSWLR 247; 2016] NSWCA 105, [131]; Delaforce v Simpson-Cook (2010) 78 NSWLR 483, [21]; [2010] NSWCA 84 approved in Rocco Condello v Sung Soo Kim [2018] NSWSC 394, [134]. 25 E.g .Thorner v Major [2009] 1 WLR 776. 26 Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387, 404; [1988] HCA 7. 27 [2018] NSWSC 442, [458]. -- 66 of 122 -- [2024] SADC 109 63 representations that the defendant would not transfer his farms during his lifetime without the consent of the plaintiffs and would make the land available for use by the farming business and for off-farm investments, and on his death, he would transfer them to the plaintiffs under his will, analogous to a testamentary contract of the type upheld in Flinn v Flinn28 and Gillett v Holt.29 This decision was partially set aside on appeal,30 but the orders on appeal did not alter the trial judge’s reasoning as to the nature of proprietary estoppel and the principles to be applied. 320 In Carter v Brine,31 Blue J set out the elements of proprietary estoppel by encouragement as: a. 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); b. The plaintiff forms an assumption that he or she has or will have a proprietary interest in that property (assumption); c. The conduct of the defendant in making the representation causes or materially contributes to the formation of the assumption by the plaintiff (reliance); d. The plaintiff takes action in change of his or her position in reliance upon that assumption (inducement); e. The plaintiff would suffer detriment if the defendant were permitted to depart from that assumption (detriment);and f. It would be unjust or unconscionable for the defendant to depart from that assumption (unconscionability). 321 Ward CJ in Eq in E Co v Q32 referred to the above summary of the elements of proprietary estoppel by encouragement as a useful practical guide although it would be inappropriate to apply the formulation in a mechanical fashion or to treat the elements as subdivided into watertight apartments.33 Ward CJ further acknowledged the desirability of distinguishing between a representation of an existing or past fact and a voluntary promise about the speaker’s future conduct34 28 [1999] 3 VR 712; [1999] VSCA 109. 29 [2001] Ch 210. 30 Q (a pseudonym) v E Co (a pseudonym) (2020) 383 ALR 469; [2020] NSWCA 220. 31 [2015] SASC 204, [326]. 32 [2018] NSWSC 442, [913]. 33 See also Gillett v Holt [2001] Ch 210, 225. The same view was expressed by Priestley JA in Austotel v Franklins Self-Serve Pty Ltd (1989) 16 NSWLR 582 of the criteria expressed by Brennan J in Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; [1988] HCA 7. see also Gleeson JA in Doueihi v Construction Technologies Australia Pty Ltd (2016) 92 NSWLR 247; [2016] NSWCA 105, [58]. 34 See Equititrust Ltd v Franks (2009) 258 ALR 388; [2009] NSWCA 128, [73]. -- 67 of 122 -- [2024] SADC 109 64 and further said the sixth element, unconscionability, does not exist at large and is not a triable issue. Distinction between proprietary and promissory estoppel 322 As Steven referred to promissory estoppel as a basis for his claimed relief, it is necessary to examine whether promissory estoppel might go beyond the reach of proprietary estoppel in the circumstances of this case. 323 In Ashton v Pratt,35 Bathurst CJ considered the differences between proprietary and promissory estoppel. These differences were: (1) promissory estoppel must be based on an existing legal relationship (usually a contract but not necessarily a contract relating to land) whereas proprietary estoppel need not be based on an existing legal relationship but must relate to identified property owned or perhaps about to be owned by the respondent; (2) arguably promissory estoppel acts as only a restraint to the enforcement of rights while proprietary estoppel can operate as a source of obligation; and (3) even assuming that promissory estoppel can be the source of enforceable obligations, there is a question whether it can extend to require a promisor to adhere to an obligation said to arise under an assumed contract which is void for uncertainty or completeness. 324 Ultimately, Bathurst CJ did not need to resolve the second and third matters, because he found that the applicant had failed to establish detriment. 325 In DHJPM Pty Ltd v Blackthorn Resources Ltd (formerly called AIM Resources Ltd),36 Meagher JA observed that the judgments in Waltons Stores (Interstate) Ltd v Maher (Waltons Stores)37 accepted that promissory and proprietary estoppel identified different characteristics as to when those estoppels might arise. 326 Brennan J in Waltons Stores38 referred to the different characteristics of promissory and proprietary estoppel but suggested that there was little purpose in dividing cases into categories of promissory and proprietary estoppel. He held that: If cases of equitable estoppel are in truth but particular instances of the operation of the general principles of equity, there is little purpose in dividing those cases into the categories of promissory and proprietary estoppel which are not necessarily exhaustive of the cases in which equity will intervene. Like Scarman L.J. in Crabb v. Arun District Council, at p 193, I do not find it generally helpful to divide into classes the cases in which an equity created by estoppel has been held to exist. However, the familiar categories serve to identify the characteristics of the circumstances which have been held to give rise to an equity in the party raising the estoppel. In cases of promissory estoppel, the equity binds the holder of a legal right who induces another to expect that that right will not be exercised against him: see, for example, Hughes v. Metropolitan Railway Co. (1877) 2 App Cas 439, at p 448; Birmingham and District Land Company v. London and North Western Railway Co.(18880 35 (2015) 88 NSWLR 281; [2015] NSWCA 12, [135] citing Lord Walker in Thorner v Major [2009] 1 WLR 776, [61]. 36 (2011) 83 NSWLR 728, [43]-[44]; [2011] NSWCA 348. 37 (1988) 164 CLR 387; [1988] HCA 7. 38 Ibid, 420. -- 68 of 122 -- [2024] SADC 109 65 40 Ch D 268; Ajayi v. R.T. Briscoe (Nigeria) Limited (1964) 1 WLR 126, at p13303 All ER 556, at p 559; Bank Negara Indonesia v. Philip Hoalim (1973) 2 MLJ 3. In cases of proprietary estoppel, the equity binds the owner of property who induces another to expect that an interest in the property will be conferred on him: see Ramsden v. Dyson (1886) LR 1 HL 129 at p 170; Plimmer v. Wellington Corporation (1884) 9 App Cas 699; Inwards v. Baker. In cases where there has been an imperfect gift of property the equity binds the donor of the property when, after the making of the imperfect gift, he does something to induce the donee to act on the assumption that the imperfect gift is effective or on the expectation that it will be made effective: see Dillwyn v. Llewelyn; Olsson v. Dyson, at p 376. 327 In Walton Stores, Brennan J set out the elements required to establish equitable estoppel (which in that case was promissory estoppel as no land was involved which could create a proprietary estoppel). He held:39 In my opinion, to establish an equitable estoppel, it 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 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. 328 The criteria set out above and the decision of the majority in Waltons Stores suggests that the constraints inherent in the traditional formulation of promissory estoppel no longer apply. However, assuming this to be the case, the criteria set out by Brennan J do not require independent analysis separate from the analysis of proprietary estoppel as they raise, in essence, the same matters. For the purposes of this case, promissory estoppel does not expand upon the conduct that would be caught by proprietary estoppel. Put another way, if, in the circumstances of this case, Steven’s claim in proprietary estoppel fails, then his case in promissory estoppel will also fail. Approach to the determination of the claim in proprietary estoppel 329 Steven’s claim is properly analysed under the broad headings: (1) Representation: were representations made by Bevan and Valerie and in what terms; 39 Ibid, 428-429. -- 69 of 122 -- [2024] SADC 109 66 (2) Assumption: what state of affairs did Steven assume as a result of any representations; (3) Reliance: did Steven rely upon the representations and if so, in what way; (4) Detriment: what detriment did Steven suffer as a result of any reliance; and (5) Relief: what orders should be made. Determination of the issue as to representation Legal principles relating to representations 330 The representation or promise need not be express.40 It need not arise from the words of a single conversation but can arise from conduct over a period of time, including silence.41 As promissory estoppel is a form of equitable estoppel,42 the representation can extend to future matters.43 331 The representation must be clear before it can found an estoppel.44 It is said, at least in the commercial context, that the same degree of certainty is required to support an estoppel as is necessary for the enforcement of a contract. However, a less stringent requirement is imposed in the context of a family arrangement. As Hoffmann LJ held in Thorner v Major:45 [19]. But in many cases of promises made in a family or social context, there is no intention to create an immediately binding contract. There are several reasons why the law is reluctant to assume that there was. One which is relevant in this case is that such promises are often subject to unspoken and ill-defined qualifications. Take for example the promise in this case. When it was first made, Mrs Walton did not know what the future might hold. Anything might happen which could make it quite inappropriate for the farm to go to the plaintiff. [20]. But a contract, subject to the narrow doctrine of frustration, must be performed come what may. This is why Mr Jackson, who appeared for the plaintiff, has always accepted that Mrs Walton's promise could not have been intended to become a contract. [21]. But none of this reasoning applies to equitable estoppel, because it does not look forward into the future and guess what might happen. It looks backwards from the moment when the promise falls due to be performed and asks whether, in the circumstances which have actually happened, it would be unconscionable for the promise not to be kept. 40 E Co v Q [2018] NSWSC 442, [914]. 41 Pirrottina v Pirrottina [2024] NSWSC 558, [164] citing Evans v Evans [2011] NSWCA 92, [107]. 42 Doueihi v Construction Technologies Australia Pty Ltd (2016) 92 NSWLR 247; [2016] NSWCA 105, [131]-[139]. 43 Bell Group Ltd (in liq) v Westpac Banking Corporation (No 9) (2008) 39 WAR 1; [2008] WASC 239, [3532]. 44 Ibid, [3546]. 45 [2009] 1 WLR 776, [19]-[21]; [2009] UKHL 18 approved in Ashton v Pratt [2015] NSWCA 12, [134]. -- 70 of 122 -- [2024] SADC 109 67 332 In E Co v Q,46 Ward CJ in Eq accepted the submission that cases of proprietary estoppel by encouragement had been approached differently from cases of promissory estoppel and in cases of proprietary estoppel, the promise is to be assessed by reference to the circumstances of the case.47 Ward CJ quoted with approval the following passage from the judgment of Brooking JA in Flinn v Flinn48 which Her Honour noted had been approved on numerous occasions): But a promise may be definite in the sense that there is a clear promise to do something even though the something promised is not precisely defined, and this has always been recognised in the cases. ... ... As the review of the authorities over the last 200 years shows, uncertainty preventing the creation of a contract has never been regarded as necessarily preventing the beneficial intervention of equity. Time and again an equity has been held to exist where no contract had arisen, the court often going a long way in giving effect to what the law of contract would ignore as an impossibly loose arrangement. The present case lies within the reach of the long and flexible arm of equity. 333 Ward CJ accepted in E Co v Q49 the following passage from Sullivan v Sullivan:50 Generally, a promise or representation will be sufficiently certain to support an estoppel if it was reasonable for the representee to interpret the representation or promise in a particular way and to act in reliance on that interpretation, thereby suffering detriment if the representor departs from what was represented or promised. Generally, if there is a grey area in what is represented or promised, but it was reasonable for the representee to interpret it as extending at least to the lower limit of the grey area and to act in reliance on it as so understood, I see no reason why the Court should not regard the representation or promise as sufficiently certain up to this lower limit. 334 Thus, an estoppel can be established even though the promise is lacking in detail.51 In Giumelli v Giumelli,52 the High Court held that a party should be estopped from giving a portion of land notwithstanding that the boundaries of the proposed land were not precisely defined. 335 Gleeson JA in Doueihi v Construction Technologies Australia Pty Ltd53 also reiterated that what was important was to construe the promise in the circumstances of the case rather than a universal dichotomy between arms- length/commercial cases and domestic/family cases. 46 [2018] NSWSC 442, [951]. 47 Ibid citing in Doueihi v Construction Technologies Australia Pty Ltd (2016) 92 NSWLR 247; [2016] NSWCA 105, [186]. 48 [1999] 3 VR 712, [80].[95]; [1999] VSCA 109. 49 [2018] NSWSC 442, [956]. 50 [2006] NSWCA 312, [85] approved in Evans v Evans [2011] NSWCA 92, [1124] and Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd (2016) 260 CLR 1, [147]-[148]; (2016) [2016] HCA 26. 51 Doueihi v Construction Technologies Australia Pty Ltd (2016) 92 NSWLR 247; 2016] NSWCA 105, [204]. 52 (1999) 196 CLR 101; [1999] HCA 10. 53 (2016) 92 NSWLR 247; [2016] NSWCA 105, [178]. -- 71 of 122 -- [2024] SADC 109 68 336 Rees J in Pirrottina v Pirrottina54 quoted the following passage from Thorner v Major, which also placed emphasis on how the promise was understood by the representee:55 Even though clear and unequivocal statements played little or no part in communications between the two men, they were well able to understand one another. So, however clear and unequivocal his intention to assure [the plaintiff] that he was to have the farm after his death, [the defendant] was always likely to have expressed it in oblique language. ... it is sufficient if what [the defendant] said was 'clear enough'. To whom? Perhaps not to an outsider. What matters, however, is that what [the defendant] said should have been clear enough for [the plaintiff], whom he was addressing and who had years of experience in interpreting what he said and did, to form a reasonable view that [the defendant] was giving him an assurance that he was to inherit the farm and that he could rely on it. 337 The formulation by Blue J in Carter v Brine56 referred to the elements of proprietary estoppel by encouragement as requiring a representation that the applicant have a proprietary interest in property owned wholly or partly by the respondent. 338 The issue then arises as to whether that interest must exist at the time of the representation. That issue was considered by the Supreme Court of Canada in Cowper-Smith v Morgan57 where it was held: an equity arises when the claimant reasonably relies to his detriment on the expectation that he will enjoy a right or benefit over property, whether or not the party responsible for that expectation owns an interest in the property at the time of the claimant’s reliance. Proprietary estoppel may not protect that equity immediately. It may not protect the equity until considerable time has passed. If the party responsible for the expectation never acquires a sufficient interest in the property, proprietary estoppel may not arise at all; where there is proprietary estoppel, there must be an equity, but not vice versa. When the party responsible for the expectation has or acquires a sufficient interest in the property, however, proprietary estoppel attaches to that interest and protects the equity ... Ownership at the time the representation or assurance was relied on is not a requirement of a proprietary estoppel claim. 339 That decision was considered and applied by Kunc J in Wheatley v Salmon58 where it was accepted that the representation did not need to relate property owned by the representor at the time that the representation was made. However, the representation must be sufficiently certain. Thus Kunc J held:59 Crucially, where the representation relates to a proprietary interest, the property in question does not necessarily need to be owned by the representor at the time it is made. However, at the very least, the property must still be identifiable as the subject matter of the representation at the time that it comes into the ownership of the representor. In my respectful opinion, a representation which states no more than “I will buy you a house” is 54 [2024] NSWSC 558, [165]. 55 [2009] 1 WLR 776; [2009] UKHL 18, [26] per Lord Rodger. 56 [2015] SASC 204, [326]. 57 [2017] 2 S.C.R. 754 [35]; [2017] SCC 61. 58 [2022] NSWSC 395. 59 Ibid, [40]. -- 72 of 122 -- [2024] SADC 109 69 too uncertain to be reasonably relied upon unless there are other factors that allow the Court to determine the basic features of the house that would satisfy the representation: is it a two-bedroom bungalow or a substantial house on acreage? Even if the words “I’ll buy you a house” were said, for the reasons advanced by Mr Katsoulas recorded in [36] above the Court would not find that to be sufficiently certain to establish even a “lower limit”. Overview 340 It is necessary to consider the pleaded representations as a whole and in the context in which each individual alleged representation was made. 341 Clearly, Steven had a strong desire to own all of the Farming Land. He viewed that as the natural order of things. He considered that Bevan would inherit the Farming Land that was then owned by Francis and Steven would, in turn, inherit the Farming Land from Bevan. Steven would then pass on the Farming Land to one or both of his children. 342 Senior counsel for Steven submitted that there are a number of matters that occurred during the period between 1994-2015 (and later) which provide the context in which those representations were allegedly made and support an inference that they were made. Those matters are: (1) that Steven worked on the farm for a number of years; (2) none of the other children worked on the farm or made financial contributions to the Partnership; (3) Steven received minimal drawings most of the time that he worked on the farm; and (4) most of the profits of the Partnership were reinvested in the farm, for example in plant and equipment. 343 These are relevant matters to consider when determining whether or not representations were made by Bevan to Steven. They are not determinative in themselves but provide a context in which Steven and Bevan’s evidence must be analysed. However, the matters outlined do not represent an exhaustive list of relevant contextual matters to consider. Also relevant is the purchases of land in the name of Steven and the Trust in 1996, 1999, 2009, 2011 and 2013. The amount of profits reinvested in the farm must also be considered. For example, the amount of plant and equipment bought by the Partnership in the period between 1997-2009 (a period of about 12 years) was $1.274 million (net of disposals in that period) or just over $100,000 per annum (exhibit R148). The value of the re-investment by Steven averaged out to about $35,000 per annum. A further contextual matter to consider is the evidence of Bevan that he desired to treat his children equally. A still further matter is that throughout this period, Francis remained the owner of the majority of the Farming Land. -- 73 of 122 -- [2024] SADC 109 70 344 The question is whether Steven formed his view that it was the natural order of things that the Farming Land would be passed from one generation to the next because of the representations that were made by Bevan or whether it was his view as to how succession on farms should operate. Ultimately, the answer to that question depends on the Court’s assessment of the credit of Steven on the one hand and Bevan on the other. Steven’s case therefore depends on his evidence as to the representations and the circumstances that existed at those times. Both Steven and Bevan refer to other evidence and circumstances which they submit supports their evidence and contentions. 345 Steven has pleaded representations were made by Bevan at three distinct times or periods: first, in 1984 when Steven commenced working on the farm and throughout the period when he remained as an employee working on the farm; secondly, in 1994 when he became a partner in the farming business, and thirdly, in the period between 1994 and about 2017. Certainty of representations 346 It is clear that if representations were made to the effect that Steven would inherit the farm (including the land owned by Francis and bequeathed to Bevan under the will of Francis), and/or that the farm would be his one day, the representations were sufficiently clear for the purposes of a claim in proprietary estoppel. 347 There are four alleged representations where a question arises as to whether the representations were sufficiently certain. 348 The first of these is the alleged representation that Bevan said to Steven that one day he would own all of the Farming Land but he would have to pay a fair price to his siblings for that land. In evidence, Steven said that this representation was first made in about 2017 and that what was a fair price would be determined by Bevan. Although that promise might not be sufficiently certain for the purposes of contractual law, it is, in my opinion, sufficiently certain for the purposes of a claim for estoppel by encouragement that is claimed in the context of family arrangements. The fair price, at its upper level, would be limited by the market value of the land (less the value of Steven’s equal, with his siblings, share of the land and less the value of any other assets that the siblings would inherit). Bevan would be entitled to consider the ability of Steven to service any loan that he would need to take out to service the purchase of the land, such that the fair price might be payable over a period of time but ultimately it would be a matter for Bevan to determine the weight to be given to that factor. 349 However, the evidence by both Steven and Bevan was to the effect that the statement as to fair price was not something that amounted to a representation or promise and was not something which Steven considered as such or was not something that Steven considered as something he could rely on. Steven’s evidence was that the topic of fair price was “tossed around, but it wasn’t put in the context like you’re saying”. He went to say that the fair price comment “was -- 74 of 122 -- [2024] SADC 109 71 nothing”. It “wasn’t even structured”. He said that it “never went everywhere”. Bevan said that the concept of fair price was only discussed in the context that if Steven were to buy the land, it would be at a fair price for his siblings. It is clear from this evidence that neither Bevan nor Steven construed what was said about a fair price as conveying a promise by Bevan that was to be relied upon by Steven. 350 Further, there can be no detrimental reliance upon an alleged representation first made in 2017. Steven’s evidence was that he did not rely on the statement as to fair price. At the time that the statements were made, Steven had worked on the farm for about 33 years. Any life changing decisions made by Steven were made well before 2017. Only two events of reliance were pleaded to have occurred at or after 2017. The first was the purchase of Lou’s land. However, Steven entered into and completed the purchase of Lou’s land after it was clear that Bevan was not going to leave all of the Farming Land to him. It was the desire of Steven to increase his landholdings that led to the decision to purchase Lou’s land. The second pleaded detriment arising after 2017 was that Steven assisted Bevan in raising the necessary funds by agreeing to the use of the overdraft of the Partnership to pay the estate litigation and the costs associated with that litigation. Given that the amount of the estate settlement was debited to Bevan’s loan account with the Partnership and the benefit that ensued to the Partnership by the continued use of those lands, it is difficult to see how the pleaded acts of reliance could be made out. Payment of the Bevan’s costs of the estate litigation in 2017 is not sufficient to raise an equity in Steven to have an entitlement of all of the Farming Land. 351 Steven did not give evidence that the representation as to a fair price led him to either agree to the Partnership using its overdraft to pay the $1 million to settle the estate litigation and the costs associated with the litigation or the decision to purchase Lou’s farm. 352 The second alleged representation that, by itself, is not sufficiently certain to convey a promise that Steven would inherit or one day own all of the Farming Land concerns the admitted statements in the discussions in early 1994 leading up to him becoming a partner in Anidak that: • “he was prepared to give it a go”;60 • he was “willing to put everything on the line” and borrow money to buy and maintain plant and equipment;61 • he was prepared to work hard;62 60 Claim [36.1] and defence [36.1]. 61 Claim [36.2] and defence [36.2]. 62 Claim [36.4] and defence [36.6.1]. -- 75 of 122 -- [2024] SADC 109 72 • he could not expect profit for a long time; 63 and • he needed to invest the majority of what was owned back into the farm.64 353 Steven submitted that Bevan did not deny saying the pleaded words but had denied that they had the meaning that Steven attributes to them, namely that he would inherit the farming land owned by Bevan and Valerie. That is not wholly correct. The matters pleaded in paragraphs [36.1], [36.2], [36.4] and [36.5] of the Statement of Claim were admitted in paragraphs [36.1], [36.2], [36.6.1] and [36.6] of the Defence-Revision 1 and the matters pleaded in paragraph [36.6] were admitted in substance, but with further explanation, but the other pleaded representations were denied. 354 I do not consider that these words by themselves, including in the context in which they were made, were clear enough to reasonably convey to Steven that he was going to inherit all of the Farming Land. The words all relate to working in the Partnership and say nothing about land that was not then part of partnership assets. Steven’s submission would have the effect that the words “give it a go” (and the other statements referred to above) mean that Bevan was promising that Steven would inherit land that Bevan did not even own at that time. The letters written by Steven’s lawyers, and the affidavit materials to which I referred, also suggest that the meaning that he would inherit all of the Farming Land was not understood by Steven in that way. 355 The statements that were admitted as having been made by Bevan do not, in my view, contain any implied representation that Steven would inherit the Farming Land. The admitted statements are all generic in nature and by themselves, do not say anything, either expressly or impliedly, about the inheritance of the Farming Land. The statements must be considered in the context in which they were made. The context was that Francis still owned the Farming Land (except for the small portions held by Bevan) and a new partnership was being formed, which would include Steven, to operate the farming business. In these circumstances, I do not consider that the admitted statements convey to Steven that he would inherit the Farming Land. The statements that were admitted are consistent with Steven’s new role as a partner on Anidak and later the Partnership. Further, the other evidence to which I refer later in these reasons concerning Steven offering to purchase the Farming Land at a fair price and seeking an opportunity to make an offer to purchase the Farming Land, is inconsistent with Steven reasonably forming the view from these statements that Bevan had promised him that he would inherit the Farming Land. Steven’s case was not that these words by themselves were the sole basis for him forming an assumption that he would inherit the Farming Land but that express statements were made to that effect. It is somewhat of a hypothetical exercise for Steven to say how he understood the statements referred in paragraph 63 Claim [36.5] and defence [36.6]. 64 Claim [36.3] and [36.6] and defence [36.5.1] and [36.6.2]. -- 76 of 122 -- [2024] SADC 109 73 [36] of the statement of claim in the absence of the express statements that he says were made. For the reasons that appear later in these reasons, I reject that such express statements were made. In all of these circumstances, Steven has not established that the more probable inference was that the words were conveying that he would inherit the Farming Land.65 356 The third representation that by itself is not sufficiently certain to convey a promise that Steven would inherit or one day own all of the Farming Land, concerns the alleged representation made in 2008 that Steven should not spend any more money on the transportable house because one day he would have the farmhouse to live in. By itself, that statement does not convey anything about the ownership of the balance of the Farming Land and, but of course, it may do, if other representations are found to have been made. 357 The fourth alleged representation that by itself is not sufficiently certain to convey a promise that Steven would inherit or one day own all of the Farming Land, concerns the alleged statement made by Bevan in 2009 that the purchase of Bruce’s land should be made through an entity that would protect it from being attacked by Steven’s siblings. It cannot be inferred from that statement alone that Steven would inherit all of the Farming Land. The statement provides a justification for putting one piece of land in the Trust but says nothing about the remainder of the land. 1984-1994 representations 358 As to the first period, Steven pleads that Bevan said to him on numerous occasions in or around January1984, that Francis had promised Bevan that if Bevan invested his work and wages in the farm then one day the farm and the partnership would be his and that Bevan intended to treat Steven in the same way, namely that if Steven invested his work and wages in the farm then one day the farm and the partnership would be his.66 This promise, Steven alleges was made at about the time that he left school and commenced working on the farm. Steven then pleads that in response to that representation he said that he and Bevan were working towards the same goal and would work hard so that Bevan and Valerie could retire to Kadina and there would still be enough for the next generation. Steven pleads that the representation was repeated many times in the period between 1984-1994 (when Steven continued to be an employee of FD Bull & Sons). 359 Steven did not open on the 1984 promises either in writing or orally. 360 Steven’s overarching claim and evidence was that there was the Original Plan going back to 1984 was that he would work on the farm for minimal wages, with profit going back into the farm, that Bevan and Valerie would retire to Kadina and 65 Masters Home Improvement Pty Ltd v North East Solution Pty Ltd (2017) 372 ALR 440, [101]; [2017] VSCA 88. 66 Statement of Claim, [22.7.2], [22.7.3]. -- 77 of 122 -- [2024] SADC 109 74 he would look after them in their retirement and that he would inherit all of the Farming Land including the land then owned by Francis, which was expected to be and was ultimately received by Bevan. Steven submits that Bevan had the expectation (admitted to by Bevan) that Bevan would inherit the Farming Land owned by Francis and that it was inherently plausible that Bevan would make the same promise to Steven. Steven’s evidence was that he expected that he was going to get all of the Farming Land by way of inheritance when his parents died. 361 On the other hand, Bevan’s response was that at all times he maintained a position that he would treat all of his children equally and that he did not at any time make a representation that Steven would inherit the Farming Land or that one day the land would be his. Bevan said that as at 1984, he only owned about 390 acres in his own name and therefore was not in a position to make promises about the whole farm. 362 I do not accept that during the period between 1984-1994 any representation was made by Bevan to Steven that he would receive or inherit all of the Farming Land. 363 I make these findings for the following reasons. 364 First, I have doubts about the credibility of the evidence of Steven and prefer, where they conflict, the evidence of Bevan. I have set out earlier in these reasons the matters that give rise to my doubts about the credibility of Steven’s evidence. 365 Secondly, at that time and throughout the period from 1984-1943, Ian was the older brother and was a partner of the partnership, FD Bull & Sons. He was working on the farm. There was no rational reason why Francis would convey to Bevan that he would leave everything to Bevan and nothing to Ian. Accordingly, there was no rational reason why Bevan would convey to Steven that Steven would receive all of the Farming Land. The unchallenged evidence was that Francis was upset when Ian decided to leave in 1993 and threatened to sell the entire farm if he was not included in a future partnership. Bevan could therefore have no belief or understanding that he would receive the entire farm and would not make a promise to Steven that he would receive the entire farm. 366 Thirdly, it strains credibility that Bevan would make such a promise to Steven when he had only just commenced working on the farm as an employee. At that stage, and throughout the period between 1984-1994, Steven was being paid the normal wage for a farm labourer and was not investing anything in the farm. 367 Fourthly, the promise is inconsistent with the 2020 communications where in the letter from his solicitors to Bevan and Valerie dated 26 January 2020 (exhibit R105), he stated that “he would be grateful for any opportunity that you might offer that would enable him to purchase your farming lands in the future when he can afford to do so.” That request was repeated in a letter from the applicant’s solicitors to the respondents’ solicitors dated 8 February 2020 (exhibit R107). These letters -- 78 of 122 -- [2024] SADC 109 75 and the request contained within them are inconsistent with Steven having received a promise that he would inherit the Farming Land or that the land would be transferred to him for no consideration at some time in the future. The letters did not contain any assertion or claim that a promise had been made that Steven would inherit all of the Farming Land. I accept that the letters were written in a conciliatory tone with a view to reaching an amicable agreement. I accept that in those circumstances there might not be an express reference to all the circumstances in which gives rise the to claim. However, that does not mean that an offer would be made that was directly contradictory to a long held position of Steven. Steven gave evidence that he put forward the proposal because no-one was discussing anything. He said that he offered to pay for the land to see if he and Bevan could solve the problem and move on. I do not accept that provides a justification for making an offer to purchase the land. Again, a purchase, even if it would bring forward the date of acquisition and would bring certainty to Steven, is inconsistent with the notion of inheritance. Further, if an inheritance had been promised, the letters (exhibit R105 and R107) would be expected to make reference to the inheritance even if they made an alternative offer to purchase the land at an earlier time. I also do not accept that in this period between 1984-1994, there was any plan that linked the inheritance to funding the retirement of Bevan and Valerie. At this time, Bevan was many years away from retirement. The land was primarily owned by Francis and the FD Bull & Sons partnership was operating the farm. There was no basis upon which such a plan could be implemented at that time. 368 Fifthly, Steven gave evidence about joining the Anidak partnership in 1994, and then the Partnership was a big turning point and that by joining the Partnership, he had decided to “give it a go” and that from then was committed to the farm forever rather than just being employed as a workman on wages. That turning point and commitment are not consistent with Steven having been promised all of the Farming Land in 1984 and making life changing decisions at that time based on that promise. 369 I therefore find that no promise or representation was made by Bevan to Steven in the period between 1984-1994 that Steven would receive the Farming Land if he continued to work on the farm and invest his work and wages in the farm. Pleaded 1994 representations 370 As to the second period, Steven pleads that in the negotiations leading up to the dissolution of FD Bull & Sons and shortly thereafter (i.e. in 1994, when he became a partner in Anidak and later the Partnership), Bevan repeated and confirmed his earlier promise by: (1) asking Steven whether he was prepared to “give it a go”, by which it is alleged Bevan meant and Steven understood Bevan to mean, that Steven was willing to make a lifetime commitment to farming; -- 79 of 122 -- [2024] SADC 109 76 (2) saying to Steven that he must be willing to put everything on the line and borrow money to buy better plant and equipment and to pay for the maintenance of existing plant and equipment; (3) saying to Steven that he would only be paid what Bevan thought he needed so that resources could be put back into the farm; (4) saying to Steven that the money had to stay in the farm to pay off farm debt rather than taking wages out because you can’t have it both ways by which it is alleged Bevan meant and Steven understood Bevan to mean that if Steven, wished to one day inherit the farm, he would need to make sacrifices now; (5) saying to Steven that once he made the commitment, he would be taking on responsibility for all of the farm debt together with the other partners of Anidak and the Partnership; (6) saying to Steven that he would be required to work hard; (7) saying to Steven that he could not expect much profit for a long time; (8) saying to Steven that they both would need to invest their wages into the farming operations; (9) saying to Steven that they both would need to work together so that they and future generations could one day have the opportunity to own the Farming Land; and (10) saying to Steven that if he did the things requested of him, the farming operations and Bevan’s interest in the farming land would one day belong to Steven.67 371 I find that Bevan and Valerie did not make an unconditional promise either at or about 1994 when Anidak and later the Partnership was formed that Steven would receive all of the Farming Land or that he would inherit all of the Farming Land unconditionally. It was important to Bevan and Valerie that the other children were treated equally and they had made that known to Steven. I do not accept that Bevan said or implied anything to the effect that the other children would only get some form of token payment. I find that there was no promise, either through direct words or the indirect words to which reference is made above that Steven would receive all of the Farming Land or that he would inherit all of the Farming Land unconditionally. I have come to this finding for the reasons set out below. 67 Statement of Claim, [36.1]-[36.8]. -- 80 of 122 -- [2024] SADC 109 77 372 First, such a finding accords with Bevan’s evidence. For the reasons that I have set out previously, I have doubts about the credibility of Steven’s evidence and prefer the evidence of Bevan. 373 Secondly, the representation that the Farming Land would one day be his and that he would inherit the Farming Land that Steven says was made at the time that he entered into the Partnership is inconsistent with the statements made by Steven in affidavit material that he filed in these proceedings and in the Magistrates Court. In those affidavits, he says that promise by Bevan was always subject to a condition that he pay a fair price. Steven said in those affidavits: (1) “I have worked continuously on the farm from the age of 16 years for very low wages or drawings on the basis of representations made to me by Bevan that the farming land would, on his death be mine, subject to conditions (which I describe further below under the heading Undertakings)” (paragraph [134] of exhibit R112); (2) “I acknowledge that Bevan’s promise to me that I would ultimately end up with his farming land was subject to and conditional upon me paying a “fair price”-with that being what Bevan described as being a fair contribution to the inheritance of my siblings rather than the market value of the land and being less than me having to pay 4/5 of the value of the land between my 4 siblings given that I had invested all of my money and hard work back into the farm” (paragraph [143] (which is under the heading “Undertakings”) of exhibit R112); (3) “I am not seeking any more that what Bevan has promised me over the years” (paragraph [148] of exhibit R112). “I am not seeking to take the due inheritance of my siblings as I have always maintained that I would honour the condition that Bevan placed upon me receiving the farming land, that being to pay a “fair price” for the privilege of having the farming land transferred to me. I remain ready and willing to do that” (paragraph [149] of exhibit R112); (4) “During these around the kitchen table discussions and many times in the years prior to 2017, Bevan and I would discuss “the plan” and Valerie would sometimes comment, but Bevan told me that in these discussions that one day I would own all of the farming land and the plant and equipment but that I would have to pay “a fair price” for the farming land only to my siblings - which would not be on the basis that my siblings received an equal share of the value of farming land by way of a cash payment, but rather just a payment he thought was “fair” and I accepted that as I knew that my parents had other children and that I couldn’t expect to receive all of the farming assets for nothing” (paragraph [44(d)] of exhibit R112). -- 81 of 122 -- [2024] SADC 109 78 (5) “I was to look after them in their retirement through the continued operation of the business and in time purchase the land for a fair price which would then go into his estate for my siblings. This plan that we were working towards for the last 30 years was now not something he was interested in. …I did not expect that he would leave me all the land, but I felt that to continue the farm I needed to understand what he was going to do.” (paragraph [8] of exhibit R110); (6) “The plan was that the partnership would pay for their retirement house in Kadina. They then would retire, and I would continue to operate the farm. All plant and equipment would remain to enable me to do this and all of Bevan’s land was also to remain for me to work to enable me to continue to create an income to fund their retirement - just like my grandfather Francie did for him. I was to look after them in their retirement through the continued operation of the business and in time purchase the land for a fair price.” (paragraph [5] of exhibit R109); and (7) “It was around this time [2017] we discussed the future. I wanted a clear understanding of what was happening. Now that the land was in his name. I wanted to know what his plans were. For me to move forward I wanted to know what his intentions were so I could plan my future. Was he selling the land? Was he keeping the land? Would he sell the land?” (paragraph [17] of exhibit R109). 374 Thirdly, in the letter from his solicitors to Bevan and Valerie dated 26 January 2020 (exhibit R105), it was stated that Steven “would be grateful for any opportunity that you might offer that would enable him to purchase your farming lands in the future when he can afford to do so”. The letter dated 8 February 2020 (exhibit R107) made a statement to the same affect. Those statements that he would like an opportunity to purchase the Farming Land are inconsistent with a promise of inheritance without payment. 375 Fourthly, it is unlikely, even in a family context, that a family member joining Anidak at its formation, without making any capital contribution, would be promised all of the Farming Land, plant and equipment by Bevan at a time when the majority of the land was held by Francis and not Bevan. 376 Fifthly, a promise is inconsistent with the request Steven made of Bevan (which Steven gave evidence about) at the time of the resolution of the estate litigation as to whether the land that had been transferred to Bevan from the estate of Francis was for sale and whether he could be buy it or whether it was going to be left to his siblings. There is no reason Steven would ask those questions if he had been promised the Farming Land. The questions implicitly recognise that it was up to Bevan to determine what he would do with the land with one possibility that he would leave it to Steven’s siblings. -- 82 of 122 -- [2024] SADC 109 79 377 Sixthly, a promise is inconsistent with the discussion had in 2017 at which Megan was present, when in response to a statement by Bevan that Steven could buy the farm, Steven asked how much could he lease it for. 378 All of the statements made by Steven in his affidavits and in the letters sent by his solicitors demonstrate that Steven had no expectation that he would receive or he would inherit the Farming Land and, at best, the land would be offered to him to purchase at a fair price. The statements as to fair price are inconsistent with him being promised all of the Farming Land in 1994 without being required to make any payment at all. 379 Steven’s evidence about what was a fair price was unsatisfactory and contradictory to the statements that he made above. He said that he would not have to buy anything if the land was left to him in the will but if Bevan broke his promise and left the farm, and put an offer, he would have to look at the offer. That does not provide any rational basis for saying that he would buy the land at a fair price. He said that the price would have to be “well and truly under half of what it’s valued at.” Steven said that the requirement of a fair price first came up in 2017 when Bevan first received the Farming Land from Francis in his name. He said before that time there had been no discussion of buying land for a fair price. It was not part of the Original Plan. That is again inconsistent with his affidavit material. Steven ultimately admitted it was inconsistent and said that the Original Plan did not include any reference to buying the land at a fair price. 380 Bevan also said that the topic of a fair price was first introduced in 2015- 2017 in the context of Steven asking what was happening to the land. Bevan said a fair price would have to be paid for the land so as to make it fair for the siblings either if he died or if it was sold. Representations by conduct 381 Steven has also submitted that the representations were not just made orally but were made by conduct. That is not consistent with his pleading. In paragraph [36] of the Statement of Claim, he refers to oral representations and not to conduct. Nowhere does he plead that by any conduct, Bevan and Valerie represented that Steven would inherit the Farming Land. The matters referred to are relevant, as part of the context in which the alleged representations were made, but I do not consider it open to Steven to raise a new unpleaded case, based on representations by conduct when that matter was first raised in closing submissions. 382 Further, the conduct referred to in paragraph [12] of the applicant’s written submissions (insofar as they relate to conduct at the time of entry into Anidak and the Partnership) does not convey any representation that Steven would inherit the Farming Land. The conduct is consistent with Steven becoming a partner and later purchasing land in his own name. The conduct that is potentially relevant to representations at this time is Steven: (1) leaving school at the age of 16 years; -- 83 of 122 -- [2024] SADC 109 80 (2) joining Anidak and then the Partnership; (3) taking on debt; (4) reinvesting his wages into the farm; (5) taking a drawing that reflected an equal share notwithstanding his higher contribution; (6) making minimal improvements to his own modest accommodation and not purchasing off-farm property. 383 I have found that Steven wished to leave school and leaving school was not an act instigated by Bevan or Valerie. In any event, it did not convey any representation about inheriting the Farming Land. The conduct about joining the partnerships, taking on debt, reinvesting wages and taking equal wages ignore the very substantial benefits that Steven received once he became a partner in that the resources of the partnerships were used for his personal benefit. While Steven did not purchase off-farm property, he did purchase substantial farming properties in his name and through the Trust. The purchasing of that land does not add weight to the allegations that the representations were made that Steven would inherit the Farming land. The land that was purchased represents a significant benefit to Steven. Transportable house 384 I do not consider the construction of the transportable house in 1990 supports Steven’s contention that a promise was made by Bevan that he would be left the farm or is evidence of reliance by Steven on any promise made by Bevan. In 1990, Steven made a request to Bevan that he construct a house on property jointly owned by Francis, Bevan and Ian. It is obvious and entirely plausible that Bevan would have (and indeed must have) conveyed that request to his co-owners, Francis and Ian. Again, it entirely plausible that they would have raised the uncertainty about the ownership of that land in the future given the interests that they all had in that land. There is no reason why Bevan would not have conveyed that position to Steven. At that time, there is no evidence that Bevan was contemplating leaving the farm. In fact, the evidence was that he was very much invested in the farm and the direction it was intending. Therefore, any prospect that Steven would be able to move into the farming house any time other than some considerable time into the future was a remote possibility. In any event, any statement made that Steven would one day move into the farmhouse, which I do not accept was made at that time, says nothing about the ownership of the Farming Land as a whole. At most it represents that Steven would be able to move into the land where the house was situated, being the land that was owned by Bevan which he received as a wedding gift. It makes no promise about the transfer of the balance of the Farming Land. -- 84 of 122 -- [2024] SADC 109 81 385 For all of these reasons, I find that at the time of the construction of the transportable home in 1990, no promise was made to Steven that he should only construct a transportable house because one day he would be moving into the farmhouse on section 899. Further, if any such statement was in fact made, it did not include or imply any promise that the balance of the Farming Land would be transferred to Steven. I do not accept that Steven arranged for the transportable house to be erected because he believed as at 1990 that all of the Farming Land would be his and that he would, in time, move into the farmhouse which was then lived in by Bevan and Valerie. Representations in the period between 1993 to 2020 386 As to the third period, Steven pleads in his claim that the promises were confirmed on many occasions in the period between 1993 to 2020. Specifically, Steven alleges that: (1) When trading in plant and equipment and purchasing new plant and equipment, Bevan would say to Steven “you and me paid for it and I’m doing this for you and me and the farm”, “its always been you and me that have done all the work” and “this will all be yours one day”; (2) When discussing the purchase of the new plant and equipment with Bevan and Valerie and when Valerie would express reluctance about making the purchase, Bevan would say that he and Steven were “building up the farm” so that “farming operations could go ahead for future generations” and “be handed down the line;” (3) At lunchtime discussions with Bevan and Valerie, there would be discussions about what would happen to the Farming Land in the future at which discussions Bevan would say that Steven would “end up with the farming land” to which Valerie would respond “what about the other kids” to which Bevan would say that Steven “is the one that puts all his money in the farm and I don’t’ see the other kids working on the farm or putting their money in the farm”; (4) On several occasions in the presence of Valerie, Bevan said to Steven that one day he would own all of the Farming Land and plant and equipment but Steven would only have to pay a “fair price” for the Farming Land to his siblings. The applicant pleaded that he understood that to mean that Bevan and Valerie intended to ensure that there was some form of inheritance for Steven’s siblings but it would not be an equal share and that upon the death of the survivor of Bevan and Valerie, Steven would have to make a nominal payment over time to his siblings. A fair price would also involve Steven funding Bevan and Valerie’s retirement in Kadina and providing them with ongoing income; -- 85 of 122 -- [2024] SADC 109 82 (5) When additional land was bought in 1996 in Steven’s name with the purchase price funded by the Partnership, Bevan said to Valerie in Steven’s presence that the land should be in Steven’s name because he was working for the land and shouldn’t have to pay for it twice and it’s not for the other kids. Bevan further said that he didn’t want to happen to Steven what happened to him. He said that Steven should end up with the land without having to fight for it and engage in litigation with his siblings as Bevan had been required to do when Francis resiled from his own promise; (6) Bevan said to Valerie, in the presence of Steven, at an unspecified time that it was only fair that Steven was getting all of the farmland because he was working to pay for the farm and was responsible for the debt. Steven had to put his wages back in if he wanted to get it; (7) After the birth of his sons, Steven asked for an increased draw of the profits of the Partnership. Bevan refused that request and said that Steven would one day receive the farming land and would therefore reap the reward for surviving on such low wages; (8) In about 2008, when renovating his transportable house, Bevan and Valerie said to Steven and Liz to stop work on the extension and Valerie said that one day Steven would inherit the Farming Land and that he would live in their house, he would have the farm and he would look after them in their retirement; (9) In about 2008, when renovating his transportable house, Bevan and Valerie said to Steven that he should not spend any more on the transportable home because he would one day have the farmhouse to live in; (10) In about 2009, when purchasing additional farming land, Bevan said to Steven that the land should be purchased in an entity that would protect it from being attacked by Steven’s siblings and therefore the Bull Family Trust was established to own the land which was paid for by the Partnership; (11) Prior to 2017, Bevan told Steven that one of his siblings had asked what Steven would inherit and what they would inherit. Bevan said that he had told that sibling that Steven would get the farm and the plant and equipment, and that the other siblings would get their share from other things; and -- 86 of 122 -- [2024] SADC 109 83 (12) During the course of the estate litigation, Bevan said to Steven that he would never put Steven through what he was going through and that he would honour the promises he made to Steven.68 Representations as to the purchase of land 387 As to the alleged representations made at the time of the purchase of land in the name of Steven or the Trust in 1996, 1999, 2009, 2011 and 2013, I accept the evidence of Bevan that the land was purchased in the name of Steven or the Trust so that Steven would have a farm and to help him get established. I reject the claim that Bevan made the representations to Steven referred to in paragraph [38.5] of the statement of claim (in relation to the 1996 purchase of land), namely: (1) Steven was working for all of the land and should haven’t to pay for it twice and it was not for the other kids; (2) Bevan didn’t want to happen to Steven what happened to him; and (3) Steven “should end up with [i.e. inherit] all of the farming land without having to fight for it”, that is engage in litigation with his siblings as Bevan had been required to do. 388 I have considered Steven’s submission that the promise that he would look after Bevan and Valerie in their retirement and purchase for them a home in Kadina was the quid pro quo for the purchase of the land in 1996 and the future inheritance of all of the Farming Land. I do not consider that the promise by Steven that he would look after them in their retirement and purchase for them a home in Kadina permits an inference to be drawn that Bevan promised that Steven would inherit all of the Farming Land. It was the Partnership that was the entity that funded (and could always be expected to have funded) the purchase of the Kadina property and the retirement of Bevan and Valerie in Kadina. Purchases of land that were made using the funds of the Partnership were debited to the accounts of the party who had made the purchase. The loan account of Steven was greater than that of Bevan and Valerie (see exhibits R154 and R155). Therefore, the purchase of land in Kadina would not act to the detriment of Steven but would reduce the amount of any loan accounts differential that would otherwise be in favour of Bevan and Valerie. 389 I accept Bevan’s evidence and reject Steven’s evidence on the issue of the representations that were alleged to have been made at the time of the purchase of the land by Steven in 1996 for the following reasons: (1) at the time that the alleged statements were made by Bevan to Steven, Bevan was not fighting with his siblings (contrary to the pleaded case). There was no litigation with his siblings until after 2015. Therefore, nothing had happened to Bevan in relation to his siblings that would 68 Statement of Claim, [38.1]-[38.12]. -- 87 of 122 -- [2024] SADC 109 84 provide a reason for putting the land in the name of Steven. It is inherently unlikely in these circumstances that Bevan would have made a representation in 1996 that made reference to having to engage in litigation with his siblings when he had not at that time engaged in such litigation, and there was no evidence that litigation was even contemplated at that time. Francis did not die until 2015; (2) Steven’s evidence and the alleged representations are inconsistent with the statements in his affidavits (paragraph [5] of exhibit R109, paragraph [8] of exhibit R110, paragraphs [44(d)], [134], [143] and [149] of exhibit R112) that Bevan’s promise to him that he would ultimately end up with all the Farming Land was subject to and conditional upon Steven, paying a fair price for that land. In evidence, Steven said that this condition was not raised until 2017; (3) Steven’s evidence and the alleged representations are inconsistent with the statement in his affidavit (exhibit R109) that he wanted to know what Bevan’s plans were in 2017 when he had Francis’ land in his name and whether he was selling the land or keeping it or would sell it to Steven. It was also inconsistent with the letters from Steven’s lawyer dated 26 January 2020 and 8 February 2020 (exhibits R105 and R107) that he would be grateful for any opportunity that might enable him to purchase the farming land in the future when he could afford to do so; (4) the evidence of Steven that Bevan said that Steven would have to fight with his siblings for the land (i.e. Francis’ land) suggests that Bevan was uncertain that he would end up with the ownership of that land. That uncertainty is not consistent with a promise to transfer the land to Steven; (5) Steven, through the Partnership, might be said to have paid for the purchase of the properties that were made in 1996, 1999, 2009, 2011 and 2013. The same cannot be said for the properties that were then in the name of Francis. That distinction is not consistent with a promise that Steven would inherit all of the Farming Land; and (6) I prefer the evidence of Bevan to the evidence of Steven and have found Steven not be a credible witness in a number of respects. 390 In relation to the 2009 purchase of land, Steven has pleaded that at about the time that land was purchased, Bevan said to him that the land should be purchased in an entity that would protect it from being attacked by Steven’s siblings. Therefore the land was purchased in the name of the Trust. I have already found that the alleged representation that the additional farming land purchased in 2009 should be purchased by Steven through the Trust does not convey any representation that Steven would inherit the Farming Land or that they would be transferred to him. Even if Steven’s evidence is accepted that Bevan had told him -- 88 of 122 -- [2024] SADC 109 85 that one of the benefits of the land being purchased in his name or in a separate trust was that it would be protected and he wouldn’t have to fight or worry about anyone claiming it, provides no basis to infer that Bevan promised Steven that he would have all of the Farming Land. 391 It is also difficult to see how Steven’s siblings could “attack” a purchase of land by Steven, whether in his own name or in the name of the Trust. Fair price representation 392 I have already dealt with the allegation that Bevan promised Steven that the Farming Land would be transferred to him at a fair price and rejected that allegation. Further, Steven said in evidence that the requirement of a fair price first came up in 2017. That evidence is inconsistent with any case advanced by Steven that he was promised that he would inherit the Farming Land or that he would receive the Farming Land without being required to make any payment for it. Estate litigation representation 393 I also do not accept that a representation was made by Bevan during the course of the estate litigation that he would not put Steven through what Bevan was going through and would honour the promises that he had made to Steven. There are several additional reasons that led me to reject that such a representation was made. First, on the evidence of both Bevan and Steven, their relationship was already deteriorating by this time. It is unlikely that the representation would be made at that time. Secondly, it is inconsistent with the alleged promise as to a fair price being made in 2017. The promise alleged did not have any component of a fair price. 394 Any promise made during the course of the estate litigation could only have been made in the period between 2015-2017. For the reasons that I have previously expressed, there was no detrimental reliance by Steven on any such representation (if made). Representation as to increased draw of the profits of the Partnership 395 As to the alleged representation regarding a rejection of Steven’s request for an increased drawing of the profits following the birth of his sons, I do not consider that context supports Steven’s contention that a representation as to inheriting or receiving the Farming Land was made at that time. I accept that the drawings made by both Steven and Bevan were generally modest. This was, however, as a consequence of their general desire to increase the size and efficiency of the farm. This was to the benefit of both Bevan and Steven as by this time, Steven owned land in his own name and the plant and equipment (which was purchased from the profits of the Partnership and would otherwise be available for Darwin) was used on his land as well as the land still owned by Francis and the small portion of land owned by Bevan at this time. Steven, using the resources of the Partnership, subsequently purchased further land in the name of the Trust. -- 89 of 122 -- [2024] SADC 109 86 Representations in 2008 as to living in the farmhouse 396 I accept Liz’s evidence that Valerie made the statement that one day they would live in the farmhouse and that they should not spend any more money on the transportable house. I have also already expressed the opinion that the representation alleged to have been made in about 2008 that Steven and Liz would one day live in the farmhouse does not convey any representation that Steven would inherit the Farming Land or that it would be transferred to him. At that time, Francis owned the majority of the Farming Land. The only land wholly owned by Bevan in his own name was the approximately 140 acres that included the farmhouse. Any representation about the farmhouse is therefore equally consistent with future ownership about that land as distinct from the ownership of the balance of the Farming Land. I do not find that the more probable inference from that statement made by Valerie to Liz that Steven would inherit or receive all of the Farming Land. 397 The evidence did not support the pleaded case that Valerie was representing at this time that Steven would one day inherit the Farming Land by saying: “You will live in my house and you will have the farm and you will look after us in our retirement”.69 Liz’s evidence was that: We were talking about the extension and Val made the comment like “It will kind of do for now because you’ll move into our house when we eventually retire into Kadina”. 398 Steven’s evidence on this topic did not go any further. He said that Bevan and Valerie came down to look at the renovations. Steven did not give evidence about any promise made at that time by Steven or Valerie. He said that he was meant to move into the farmhouse. He did not give any evidence as to reliance on any such promise. 399 Valerie did not give evidence. 400 As I have already said, I do not consider in the circumstances that this statement conveys a representation that Steven would inherit all of the Farming Land. Even if the statement did convey that meaning, by 2008 Steven had already made the life changing decisions which he pleads were the basis of his reliance on the earlier promises made by Bevan. I will discuss later in these reasons the pleaded acts of reliance. Representations that Steven would receive or inherit all of the Farming Land 401 As to the global claim that on many occasions in the period between 1993- 2020, including on each of the occasions pleaded in paragraphs [38.1]-[38.12] of the Statement of Claim, Bevan confirmed the promise and the repeated promise that if Steven worked on the farm and invested his work and wages in the farm, 69 Statement of Claim [38.8]. -- 90 of 122 -- [2024] SADC 109 87 then one day the farm and the Partnership would be Steven’s and that he would work hard so that Bevan and Valerie could retire in Kadina. 402 Steven in his written submissions also submitted that the representations were made and repeated by conduct. That allegation also refers to some matters that occurred not related to the Partnership. I have already observed that no pleading was made as to representations by conduct. However, it is relevant to consider the conduct referred to by Steven and whether it sheds light on whether or not the pleaded representations were made. 403 Steven submitted that Bevan and Valerie encouraged him to make wills in 2009 and 2012 that favoured them. In fact, as I have found, there was a significant difference between the effect of the 2009 and the 2012 will because of the land that had been acquired in the name of the Trust in the intervening period and the inclusion in the 2012 will of further clauses relating to the powers of the executor relating to the Trust. Nowhere does Steven plead that by that conduct, Bevan and Valerie represented that Steven would inherit the Farming Land. The matter is relevant as part of the context in which the representations were alleged to have been made. Any promise by Steven in 2009 (when he owned two blocks of land) and 2012 (when he owned four blocks of land) to bequeath land in his own name to Bevan and does not suggest that Steven had received a promise that he would inherit all of the Farming Land. At its highest, it might represent a desire on the part of Steven to keep all the Farming Land together but at that time his children were very small and clearly not in a position to be able to work on the farm. In those circumstances, the content of Steven’s will provides little weight to a submission that an inference should be drawn that Bevan and Valerie had promised that Steven would inherit all of the Farming Land. 404 Steven also referred to the funding, by the Partnership, of the purchase and construction of the house for Bevan and Valerie in the township of Kadina in 2014 and the following years and the use of Partnership funds to settle the estate litigation as evidence that the representations had been made to Steven. This conduct occurred late in the chronology of events but still could be evidence of earlier representations. These matters are relevant to an examination of whether a representation had been made. In relation to the purchase of the house in Kadina, that is equally consistent with an agreement being reached as to funding of the retirement of Bevan and Valerie when it was agreed that land would be purchased in Steven’s name. 405 In relation to the estate litigation, the settlement sum, although paid by the Partnership, was debited to the loan account of Bevan (see exhibit A81 and ‘Ref 8’ in exhibit A82). In these circumstances, that payment, by itself, does not support an inference that the representations had been made. 406 I also do not consider that the failure to offer (and not pay) rent for Steven’s land supports any inference regarding the representations. The farming operations -- 91 of 122 -- [2024] SADC 109 88 were conducted over all the Farming Land. Bevan did not charge rent for the land which he held or had an interest in. 407 Finally, Steven submitted that in the circumstances Bevan’s silence constituted a representation in itself. Steven did not plead any representation by silence nor open upon it. It would be unfair to now rely upon a new claim brought in the closing address and a claim based on a representation by silence should be rejected. 408 I reject that Bevan made any representation to the effect that he would inherit the Farming Land or that one day all for the Farming and would be his. The reasons why I reject that he made any such representations are for substantially the same reasons as to why I have rejected that Bevan had made the other representations that are pleaded in the Claim. 409 First, I accept Bevan’s evidence that he did not make any representation concerning Steven inheriting the Farming Land or them being transferred to Steven. For the reasons that I have set out previously, I have doubts about the credibility of Steven’s evidence and prefer the evidence of Bevan. Bevan gave evidence that he was always guided by a notion of equality in relation to his will. 410 Secondly, Bevan’s evidence is also supported by the evidence of Megan. Megan’s evidence, which was not challenged, was that in any discussions with Bevan and Valerie, at which Steven was sometimes present, Bevan said that he wanted to buy a farm for Steven and Steven had said in response “that he was going to buy them a house when they retired and he was going to keep them until they died”. That evidence supports Bevan’s position that the quid pro qou for keeping Bevan and Valeriein their retirement was the purchase of land in Stevens name. I do not take into account Megan’s evidence that Bevan always said that the land was going to be divided equally between all of the siblings because she said that she did not recall if Steven was present for those conversations. 411 Further, Megan gave evidence about the argument in 2017 when Bevan said to Steven that he could buy the farm, Steven did not respond, as would be expected if a promise of inheritance had been made, with an outright rejection of such a proposal. 412 Thirdly, I have rejected Steven’s claim that he was first made such a promise in 1984 as inherently implausible given that Steven had just started work as an employee of FD Bull & Sons, and that Ian was farming the land with Bevan and Francis and had an equal entitlement to the land in the will of Francis as Bevan. 413 Fourthly, Steven’s claim that a representation had been made that he would have to pay a fair price is also inconsistent with his other claims that Bevan had promised that Steven would inherit the Farming Land (without any qualification). I refer to the statements made by Steven in affidavit material filed by Steven in -- 92 of 122 -- [2024] SADC 109 89 these proceedings and in the Magistrates Court (which I have referred to in other contexts), in which Steven said: (1) “I have worked continuously on the farm from the age of 16 years for very low wages or drawings on the basis of representations made to me by Bevan that the farming land would, on his death be mine, subject to conditions (which I describe further below under the heading Undertakings” (paragraph [134] of exhibit R112); (2) “I acknowledge that Bevan’s promise to me that I would ultimately end up with his farming land was subject to and conditional upon me paying a “fair price” - with that being what Bevan described as being a fair contribution to the inheritance of my siblings rather than the market value of the land and being less than me having to pay 4/5 of the value of the land between my 4 siblings given that I had invested all of my money and hard work back into the farm”(paragraph [143](which is under the heading “Undertakings”) of exhibit R112); (3) “I am not seeking any more that what Bevan has promised me over the years” (paragraph [148] of exhibit R112). “I am most seeking to take the due inheritance of my siblings as I have always maintained that I would honour the condition that Bevan placed upon me receiving the farming land, that being to pay a “fair price for the privilege of having the farming land transferred to me. I remain ready and willing to do that” (paragraph [149] of exhibit R112); (4) “During these around the kitchen table discussions and many times in the years prior to 2017, Bevan and I would discuss “the plan” and Valerie would sometimes comment, but Bevan told me that in these discussions that one day I would own all of the farming land and the plant and equipment, but that I would have to pay a “fair price” for the farming land only to my siblings -which would not be on the basis that my siblings received an equal share of the value of farming land by way of a cash payment, but rather just a payment he thought was “fair” and I accepted that as I knew that my parents had other children and that I couldn’t expect to receive all of the farming assets for nothing” (paragraph [44(d)] of exhibit R112); (5) Paragraph 8 of exhibit R110 that in time he would purchase the land for a fair price that would then go into his estate for my siblings where Steven deposes “The original plan for their retirement was that the partnership would pay for their retirement house in Kadina. They then would retire and I would continue to operate the farm. All plant and equipment would remain to enable me to do this and all of Bevan’s land was also to remain for me to work to enable me to continue to create an income to fund their retirement-just like my grandfather-Francie did for him. I was to look after them in their retirement through the -- 93 of 122 -- [2024] SADC 109 90 continued operation of the business and in time purchase the land for a fair price which would then go into his estate for my siblings. This plan that we were working towards for the last 30 years was now not something he was interested in. I suggested we get the family (my 4 siblings) together at Christmas and discuss what his intentions were. He got so angry. He demanded to know why it was even any of their business and that he would leave the room if I raised it at Christmas time. I did not expect that he would leave me all the land, but I felt that to continue the farm I needed to understand what he was going to do. He screamed at me whilst pointing his finger in my face and told me that because I questioned him-‘that it was none of your f…king business and that you lost yourself the farm’. This comment was devasting and took my breath away. I could not understand how after 30 years of working together could come down to this one conversation. I could not believe the person that stood before me was my father who I had worked side by side with and loved”. (6) Paragraph [5] of an affidavit sworn 5 January 2021 (exhibit R109) for use in the Magistrates Court in intervention proceedings) where Steven deposes “The plan was that the partnership would pay for their retirement in Kadina. They would then retire and I would continue to operate the farm. All plant and equipment would remain to enable me to do this and all of Bevan’s land was also to remain for me to work to enable me to continue to create an income to fund their retirement-just like my grandfather Francie did for him. I was to look after them in their retirement through the continued operation of the business and in time purchase the land for a fair price.” 414 Fifthly, Steven offers to purchase the farming properties are inconsistent with his claim and evidence that he had been promised that he would inherit the Farming Land or that it would be transferred to him in advance of that inheritance. I refer to the following letters and affidavits in which the question of sale has been raised: (1) Paragraph [17] of the affidavit sworn 5 January 2021 (exhibit R109) “It was around this time [2017] we discussed the future. I wanted a clear understanding of what was happening. Now that the land was in his name. I wanted to know what his plans were. For me to move forward I wanted to know what his intentions were so I could plan my future. Was he selling the land? Was he keeping the land? Would he sell to me the land?”; (2) The contents of the letter sent by Steven through his lawyers on 26 January 2020 (exhibit R105) that he would be “grateful for any opportunity that Bevan might offer that would enable him to purchase the farming lands in the future when he could afford to do so”. That statement is inconsistent with Steven having been promised that he would inherit the Farming Land or that it would be transferred to him -- 94 of 122 -- [2024] SADC 109 91 at some time, in either case, for no consideration. Steven’s offer implicitly accepts that he has no right to the land but that Bevan might choose to sell it to him; (3) The contents of the letter sent by Steven’s lawyers on 8 February 2020 (exhibit R107) which identifies the risks of not receiving the benefit of the value of improvements or of being evicted in the case of either Steven or Bevan’s death), which do not arise if, as Steven claims, he has a proprietary interest in the land as a result of the promises; and (4) the contents of the letter sent by Steven’s lawyers on 10 March 2020 (exhibit R108) where Steven offers to accept sections 899 and 617-624 (386 acres) as the full amount that he was entitled to from the estates of Bevan and Valerie. That is less than a quarter of the total land owned by Bevan. The offer is consistent with the principle of equality advanced by Bevan and inconsistent with a promise to Steven that he would receive all of the farming land. The letter also makes references to Steven receiving his inheritance early and before his siblings if this offer was accepted (because he would own the land in advance of the deaths of Bevan and Valerie) and suggests an adjustment to compensate Bevan and Valerie for the early inheritance. That suggests an entitlement of the siblings to an inheritance that includes the balance or at least some of the Farming Land. Lastly, in the letter, Steven offers to lease all of Bevan’s remaining framing land (except 200 acres) at the rate of $80 per acre for 5 years. That is inconsistent with an entitlement to the whole of the farm. 415 Sixthly, Steven’s evidence at the resolution of the estate litigation in 2017 that he asked Bevan whether the land that had been transferred to Bevan was for sale and enquired whether he could buy that land or whether it was going to be left to his siblings, is inconsistent with Stevens’ understanding that he had been promised that land without payment or that he would inherit the land. Conclusion in relation to representations 416 For the reasons that I have expressed, I find that Steven has not established that Bevan or Valerie made the representations which have been pleaded and relied upon by Steven to form the basis of his claim for proprietary estoppel. I accept the evidence of Bevan that he did not ever make a representation that Steven would inherit the Farming Land or receive the Farming Land. It also follows that Steven has not made out the representations that form the basis of his claim for promissory estoppel, with the same representations forming the basis of that claim. 417 Steven’s evidence is not consistent with affidavit material that he has filed in these and other proceedings and with some letters written by his solicitors. He is also subject to adverse credit findings in respect of other matters. In these circumstances I do not accept Steven’s evidence that Bevan made the pleaded representations and I prefer Bevan’s evidence on this issue. -- 95 of 122 -- [2024] SADC 109 92 418 It follows that I strictly do not need to consider questions of assumption, reliance and detriment. However, it is appropriate that I make some observations and findings about these matters, where I am able to do so. Assumption 419 In cases of proprietary estoppel, the equity binds the owner of the property who induces another to expect that an interest in the property will be conferred on them.70 420 In accordance with this statement of principle, Steven contends that he formed an assumption that he would inherit or receive the Farming Land upon the death of the last survivor of Bevan or Valerie or alternatively, at their option at some earlier point of time. 421 It is reasonable to expect that had the representations in fact been made that Steven would inherit the Farming Land that Steven would assume that fact. 422 Bevan and Valerie contend that the fact that Steven offered to purchase the Farming Land in the letters dated 26 January 2020, 8 February 2020 and 10 March 2020 was evidence that he could not have formed the assumption as the offer to purchase the land is inconsistent with an expectation or assumption that he would inherit the land. 423 As I have already said, the offer to purchase the Farming Land is inconsistent with an expectation as to the inheritance of that land. That was one of the reasons that led me to reject the claim of Steven that the representations had been made. 424 However, if contrary to my findings, the representations were in fact made, and given the context in which they were made, it is reasonable to assume that Steven formed the assumption that he would inherit the Farming Land. If that is so, the offers to purchase the land cannot disabuse Steven of that assumption and could only be explained by a desire on the part of Steven to achieve certainty and receive the lands at an earlier point of time. Reliance 425 Steven must establish that he acted in reliance upon the assumption that he formed. There is no presumption of reliance and reliance is a fact to be found on the balance of probabilities.71 70 DHJPM Pty Ltd v Blackthorn Resources Ltd (formerly called AIM Resources Ltd) (2011) 83 NSWLR 728, [43]; [2011] NSWCA 348; Doueihi v Construction Technologies Australia Pty Ltd (2016) 92 NSWLR 247; [2016] NSWCA 105, [160]. 71 E Co v Q [2018] NSWSC 442, [1035] citing Sidhu v Van Dyke (2014) 251 CLR 505, [58]; [2014] HCA 9. -- 96 of 122 -- [2024] SADC 109 93 426 In Sidhu v Van Dyke (Sidhu),72 the plurality approached the question of reliance in the following way: .. whether, when all the facts are in, the court is satisfied on the balance of probabilities that the promises in question contributed to the respondent’s conduct in deciding to commit to her relationship with the appellant and adhering to that relationship (with all that that entailed) for eight and a half years. ... 427 The plurality found that the assurances had a significant effect on the respondent’s decision making process and that it was more likely than not that the respondent would have acted differently if the promises had not been made and in doing so relied upon the finding by the trial judge that the respondent was a truthful witness and the drawing of inferences on the basis of the probabilities of human behaviour.73 428 Gaegler J in Sidhu74 posed the question of reliance in the following way: [91]... the respondent needed to establish more than that she had the belief and took the belief into account when she acted or refrained from acting. She needed to establish that having the belief and taking the belief into account made a difference to her taking the course of action or inaction: that she would not have acted or refrained from acting if she did not have the belief. [93] The question of causation is therefore ordinarily appropriately framed, as it was implicitly framed by the primary judge in the present case, as being: “Despite any other contributing factors, would the party seeking to establish the estoppel have adopted a different course (of either action or refraining from action) to that which [the party] did had the relevant assumption not been induced?” [my emphasis] 429 In E Co v Q, Ward CJ in Eq analysed cases that have subsequently considered the question of reliance post Sidhu and said the following principles emerge from that case: (1) the respondent’s encouragement must be a contributing cause, not a sole inducement or predominant cause; (2) the applicant not need prove precisely or categorically how he or she would have acted differently; and (3) the applicant must establish that the assumption influenced his or her course of action or inaction in a significant way in the sense that he or she would have acted differently had the induced assumption not been held. Ward CJ in Eq noted that although the question of reliance is distinct from questions of detriment, there can be no real detriment if the party asserting the estoppel would have been in the same position in any event. 430 In Pirrottina v Pirrottina,75 Rees J held reliance raises two questions: first, did the plaintiff in fact rely upon the representation, and secondly, would the plaintiff have acted differently if the promises had not been made. The promises 72 (2014) 251 CLR 505, [66]; [2014] HCA 9. 73 Ibid, [69]; E Co v Q [2018] NSWSC 442, [1043]. 74 Sidhu v Van Dyke (2014) 251 CLR 505, [91], [93]; [2014] HCA 9. 75 [2024] NSWSC 558, [166]. -- 97 of 122 -- [2024] SADC 109 94 did not have to be the sole inducement for reliance, it was sufficient if they were an inducement. 431 Senior counsel for Steven referred to the passage referred to above of Ward CJ in Eq in E Co v Q, that it was sufficient to establish reliance if it could be said that the expectation was a contributing cause of the actions that were taken. In E Co v Q, Ward CJ held that although the contributing cause was the correct test, the better reading of that test was that propounded by Gagler J in Sidhu (that he would have acted differently). The Court of Appeal (Meagher JA, Leeming and Payne JJA agreeing) in Q (a pseudonym) v E Co (a pseudonym)76 held that binding authority requires the party relying on the estoppel to establish that they would have acted differently in the absence of the relevant encouragement. The Court went on to agree with the submission that the two formulations of the question of reliance are one and the same.77 Subsequent cases, such as Cesira Ravagnolo v Lang Ravagnolo78 and Pirrottina v Pirrottina,79 required the applicant to show that they would have acted differently if the promises had not been made and I consider that is the appropriate test to apply. 432 I accept the submission of senior counsel for Bevan and Valerie that in assessing reliance, the Court should be cautious about giving great weight to self- serving statements and that reliance is better established by inference from the surrounding matrix of facts.80 As reliance assumes that an applicant has formed a particular assumption, reliance is tested by not asking what the applicant would have done if the promise had never been made but asking if the promise had been made, what would the applicant have done if they had been told that it would not be kept.81 433 In the present case, Steven pleads that he relied upon the representations in the ways pleaded in paragraph [49] of the Claim. That reliance can be grouped in the following categories, namely that Steven: (1) left school early and therefore lost the opportunity to continue with his education; (2) did not seek off farm work; (3) continued working on the farm, including after an accident, for low wages (in the period up to 1994) and thereafter for low profits and invested his work and resources back into the Partnership; 76 (2020) 383 ALR 469; [2020] NSWCA 220, [88]. 77 Ibid. 78 Cesira Ravagnolo (by her tutor Katerina Skinner) v Lang Ravagnolo; Lang Ravagnolo v Cesira Ravagnolo [2024] NSWSC 662, [59]. 79 [2024] NSWSC 558, [166]. 80 LCY Pty Ltd v Ma [2017] VSCA 383, [86]; Fitzgibbons v Shaftsbury Pty Ltd [2011] NSWSC 525, [11]. 81 Q (a pseudonym) v E Co (a pseudonym) (2020) 383 ALR 469, [89]; [2020] NSWCA 220 citing Walton v Walton, unreported EWCA, Hoffman LJ, 14 April 1994. -- 98 of 122 -- [2024] SADC 109 95 (4) lived in a transportable house and performed work on that house; (5) did not object to Anidak or the Partnership paying expenses of Francis and Ruth of their retirement in Kadina; (6) did not join in with Bevan in the estate litigation; (7) agreed to Bevan using the Partnership to fund the estate settlement; and (8) purchased Lou’s land and borrowed funds to do so. 434 The question of reliance must be considered in the context of the characteristics of Steven and what his objectives were and the time at which the alleged representations were made. Steven gave evidence, which I accept, that he always wanted to be a farmer. I therefore do not consider that he would willingly have pursued off-farm employment unless he was forced to do so. 435 Further, Steven would never have been in the position to have purchased property in his own name in 1996 or 1999 without the support of the Partnership both in terms of paying the deposit and servicing the loan. He had no track record that would have allowed him to obtain a loan in the first place. It was clearly important to Steven that he hold land himself (either directly or through the Trust). 436 Steven gave evidence that if he knew he was not going to inherit the Farming Land, would have to pay for the plant and equipment, and would not be move into farmhouse, then he would have farmed for someone else. He said that there would have been no reason for him to continue working on the farm and that he could have made more money working somewhere else. I do not accept that evidence. It ignores that Steven purchased land in 1996 and then, either in his name or on the name of the Trust, four more properties in 1999, 2009, 2011 and 2013. I do not accept that he would have undertaken farming work somewhere else, when by staying on the farm, he had the opportunity and did acquire farming properties in his own name and in the name of the Trust. 437 As to the pleaded acts of reliance, I do not consider that Steven can establish that he would have acted differently had he not formed the assumption. 438 The first alleged act of reliance can only be applicable to the decision by Steven to join the farm as an employee when he left school at 16 years of age. Steven did not have interest in any career outside of farming and did not have any interest in continuing with his studies. He was still living at home with the financial and lifestyle advantages associated with that. Any promise therefore, could play no part in his decision to leave school and work on the farm. 439 The same conclusion is reached in relation to the second alleged act of reliance, that he did not seek off-farm work. Throughout the period between 1984- 1994, Steven was being paid award or standard wages for his work on the farm. He was doing the work (i.e. farming) that he wanted to do. He was receiving the -- 99 of 122 -- [2024] SADC 109 96 financial and other advantages associated with living at home. Any promise did not play any part in his decision to remain on the farm and not seek off-farm work. 440 The third and fourth alleged acts of reliance can be considered together as they involve Steven continuing to work on the farm for low wages. Up to 1994, the evidence suggests Steven was receiving the award or normal wages for a farm labourer and therefore was not receiving low wages for the type of work that he was undertaking. Steven became a partner in 1994 and land was purchased in his own name in 1996 and 1999. Therefore, while I have found that Steven worked very hard on the farm for low wages and lived in a transportable house on which he performed work, I do not consider that any promise made a difference to Steven deciding to remain at the farm. Some of Steven’s expenses were paid for by the Partnership such as fuel as well as some expenses relating to the transportable home. Irrespective of the promise, Steven was financially benefitting by remaining at the farm. He was doing what he wanted to do and was building upon his own property portfolio and continued to do so with further purchases in 2009, 2011 and 2013. He would not have been able to purchase the properties without the assistance of the Partnership. 441 As to the fifth alleged act of reliance, Steven did not give any evidence about his attitude to the Partnership or Anidak paying the expenses of Francis and Ruth in their retirement in Kadina. The Partnership was operating on lands primarily owned by Francis. Steven was building up the number of properties that he owned. I do not consider that Steven would have acted differently and exercised his vote in the Partnership to stop payments to Francis and Ruth, had he known that he would not inherit the Farming Land. 442 The sixth and seventh alleged acts of reliance occurred in about 2015 and 2017 respectively and after any life changing decisions had been made. As to joining in the litigation, there is no evidence on what basis Steven could have joined in the estate litigation or how that would have made a difference to the outcome of that litigation. There was no evidence of any promise by Francis to Steven. Steven’s position was entirely derivative on Bevan’s position. Although the Partnership funded the settlement of the estate litigation, the loan account of Bevan was debited with that sum. In either case, Steven has not established or given evidence that he would have acted differently and either joined the estate litigation or objected to the settlement sum being paid had he held the belief, because of the representations made by Bevan, that he would inherit the farm. 443 The eighth act of reliance, the purchase of Lou’s land, occurred in September 2020 when the contract to purchase that land was entered into. Any assumption or belief that he was going to inherit the Farming Land had been displaced by that time. Steven cannot therefore have relied upon the representations to enter into the contact to purchase Lou’s land. 444 In his written submissions, Steven also submitted that he would have left the Partnership had he known of his parents’ testamentary intentions, although he does -- 100 of 122 -- [2024] SADC 109 97 not specify when he would have done so. I do not accept that submission. Up to 2013, Steven was continuing to use the assistance of the Partnership to purchase further land. In the years immediately following 2015, the Partnership was extremely profitable. It would not have been in Steven’s interests to leave the Partnership at that time. 445 Bevan and Valerie also submitted that any reliance on the part of Steven referring to the vagueness of the promise, the value of the land promised, the lack of writing, the lack of Bevan, Valerie or Steven obtaining legal advice, and the fact that testamentary promises are inherently revocable had the consequence that any reliance by Steven on the promises was not reasonable. 446 Given my early findings about reliance, this question does not arise. However, had there been actual reliance by Steven, the vagueness of the promise would not have led to a conclusion that any such reliance was not reasonable. The vagueness of the promise and the lack of writing might be relevant to determining whether a representation had been made. However, if the Court is satisfied that a representation was made and actually relied upon, then these matters cannot detract from the quality of the representation. The Courts have recognised, in the context of family arrangements, that promises may be made in informal circumstances. The failure to obtain legal or accounting advice falls into the same category. Such a failure is also understandable in the context of the family arrangement and does not render reliance (if it existed) to be unreasonable. The value of the land promised is more a matter for the question of relief and whether the enforcement of the promise is disproportionate to the detriment suffered rather than saying reliance was unreasonable. The revocable nature of a testamentary promise does not mean that it is unreasonable for Steven to have relied upon a promise (if made) that he would inherit the Farming Land. Many promissory estoppel claims involving farmlands contain similar promises. The promise in these circumstances, is that the testamentary promise will not in fact be revoked. Detriment 447 It is detrimental reliance which makes an estoppel enforceable.82 The question in relation to detriment is whether the applicant would have been better off had he not relied on the representation.83 448 Detriment need not be purely pecuniary. It may be a life changing decision with irreversible consequences of a personal nature.84 Thus, in E Co v Q, the claimed detriment was that if the applicant had understood that he would not come 82 E Co v Q [2018] NSWSC 442, [1130] citing Sullivan v Sullivan [2006] NSWCA 31. 83 Pirrottina v Pirrottina [2024] NSWSC 558, [167] citing Wantagong Farms Pty Ltd as trustee for the Bulle Family Trust v Bulle (Wantagong) [2015] NSWSC 1603, [68]-[69]. 84 Ashton v Pratt (2015) 88 NSWLR 281; [2015] NSWCA 12, [96]. -- 101 of 122 -- [2024] SADC 109 98 to own the farms, he would have sought employment elsewhere.85 Ward CJ in Eq accepted that detriment and found:86 [1168] I find that each of the sons did make life-changing decisions and did not pursue other avenues that were available to him, in reliance on the expectation engendered in him that his father would make available the farms for use in the family farming business during his lifetime and then would leave the farms to his sons. I am satisfied that this amounted to detrimental reliance and that if the counter-factual postulated by the plaintiffs were to have been put then the answer of each of the sons would have been that he would not have joined in the family business structure (or at the very least would have done so in a fashion that would have protected his interests against the kind of events that transpired in 2013). I make this finding notwithstanding that each of the sons has been, to a greater or lesser degree, in a position to develop business interests of his own. [1169] Applying the tests articulated in Sidhu v Van Dyke, I find that the expectations induced in each son by the first defendant was a contributing cause to the son’s decision to join in the family business and forsake other business opportunities; that but for the expectation engendered in him he would not have done so; and that as a matter of common sense and the likelihood as a “a matter of the probabilities of human behaviour” it can comfortably be concluded that there was detrimental reliance on that expectation in the sense explained in Sidhu v Van Dyke (and in Donis v Donis). 449 Although the detriment may be non-pecuniary, it still must be substantial. Rees J in Pirrottina v Pirrottina87 held that that question depended on whether it was unjust or inequitable to allow the assurance to be disregarded. In circumstances, where the applicant stood to benefit in ways not anticipated when his parents made the representations concerning a proprietary interest in the family farm, Ball J in Wantagong held that it was not unconscionable to permit the parents to depart from the representations, as otherwise the applicant would have benefited at the expense of his siblings in a way that was neither anticipated nor intended when his parents sought to achieve a just distribution of assets that they had accumulated.88 450 There is no presumption of detriment. Detriment must be established on the balance of probabilities. However, it is not assessed in a narrow or technical manner. It is assessed at the time that the party seeks to depart from the assumption or expectation.89 451 The relevant detriment is not the loss flowing from the non-fulfilment of the promise but the loss which the party asserting the estoppel would suffer as a result of his or her original change of position if the assumption which induced it was 85 E Co v Q [2018] NSWSC 442, [1154]. 86 Ibid, [1168]-[1169]. 87 [2024] NSWSC 558, [167] citing Wantagong (above), [68]-[69]. 88 Wantagong, [93]. 89 E Co v Q [2018] NSWSC 442, [1136]. -- 102 of 122 -- [2024] SADC 109 99 repudiated by the party estopped.90 In Sidhu,91 the Court applied the statement of principle enunciated by Dixon J in Grundt:92 …the real detriment or harm from which the law seeks to give protection is that which would flow from the change of position if the assumption were deserted that led to it. So long as the assumption is adhered to, the party who altered his situation upon the faith of it cannot complain. His complaint is that when afterwards the other party makes a different state of affairs the basis of an assertion of right against him then, if it is allowed, his own original change of position will operate as a detriment. His action or inaction must be such that, if the assumption upon which he proceeded were shown to be wrong and an inconsistent state of affairs were accepted as the foundation of the rights and duties of himself and the opposite party, the consequence would be to make his original act or failure to act a source of prejudice. 452 In Sidhu,93 the High Court went on to accept the statement of principle from Giumelli v Giumelli94 that because the fundamental purpose of equitable estoppel is to protect the plaintiff from the detriment which would flow from the defendant's change of position if the defendant were to be permitted to resile from his or her promise, the relief granted may require the taking of active steps by the defendant including the performance of the promise and the performance of the expectation generated by the promise. The Victorian Court of Appeal in Harris v Harris95 reviewed Sidhu and other and authorities and concluded that the promisee is entitled to have the promisor held to the promise or expectation. That is the relief which is usually necessary to reflect the value of the promise. I accept the submission of Steven that the notion of minimum equity has been removed as the governing principle of equitable estoppel. 453 In the present case, the pleaded detriment is that Steven is unable to purchase the Farming Land at market value and will therefore lose his ability to work the Farming Land and earn sufficient income to profitably continue his farming operations, will lose his home and be unable to support his family financially, and will be unable to leave the farm to his children. In opening, senior counsel for Steven said that it was not clear that the farm would fail. 454 I do not consider the pleaded detriment could ever be detriment for the purposes of proprietary estoppel or promissory estoppel. The pleaded detriment is the detriment that Steven will suffer flowing from the non-fulfilment of one of his pleaded representations. That is not the relevant detriment in accordance with the principles stated above. The relevant detriment must be the life altering decisions 90 Ibid [1133] and [1167]-[1169] referring to Delaforce v Simpson-Cook (2010) 78 NSWLR 483, [56], Grundt v The Great Boulder Proprietary Gold Mines Limited (1937) 59 CLR 641, 674-675, Sidhu v Van Dyke (2014) 251 CLR 505, [80]-[81]; [2014] HCA 9. 91 Sidhu (above), [80]-[81]. 92 Grundt (above), 674-675. 93 Sidhu (above), [82]. 94 (1999) 196 CLR 101, [6], [40-48]; [1999] HCA 10. 95 [2021] VSCA 138, [79]. -- 103 of 122 -- [2024] SADC 109 100 that Steven gave evidence that he made as a consequence of the promises. The Court might grant relief for the enforcement of the promise. 455 Although the issue of detriment was not pleaded in this way, Steven pleaded the life changing decisions in the context of reliance (see paragraph [49] of the Claim). Given the overlap between reliance and detriment, I am satisfied that Steven has sufficiently raised the issue of life changing decisions such that claiming such life changing decisions as the detriment he has suffered does not prejudice the respondents. 456 If Steven had framed his case in that way, he would have to satisfy the Court on the balance of probabilities that he would have undertaken some other course of action, for example left the farm and pursued other opportunities, had the representations not been made. That is, he made life altering decisions based on the promises that were made to him. If Steven establishes that he made such life altering decisions, then he will be prima facie entitled to have the promise enforced.96 That is because such life altering decisions are usually beyond the measure of money and can only be accounted for by the substantial fulfilment of the assumption on which they were based. 457 Given Steven’s evidence that he always wanted to be a farmer and the fact that by staying on in the Partnership he has purchased a number of properties and has built up significant land holdings, something he would not otherwise have been able to do, I consider Steven is not able to establish such detriment. 458 In his written submissions, Steven sought to expand on the detriment. He submitted that he agreed on Valerie being a partner in the Partnership even though Liz was not made a partner. Steven did not give evidence on that topic. Further, the position of Liz and Valerie cannot be equated as Valerie made initial contributions to the Partnership and also provided her inheritance for the use of the Partnership. Liz did not make such contributions. Even if pleaded as detriment and supported by evidence, the detriment would have not justified an imposition of a constructive trust over the Farming Land, rather the imposition of equitable damages reflecting the difference between the 33% profit Steven received and the additional profit that Steven and Liz would have received. In such a case, Liz would have needed to have been added as a party as the loss is strictly loss that she has suffered and not loss that Steven has suffered. 459 Steven further submitted that he made financial decisions based on the pleaded promises such as taking on responsibility for the Partnership debt and not making provision for his own retirement either through superannuation or off-farm assets. Based on the findings that I have made, I consider that Steven would have still made the decision to join and remain in the Partnership, even if the representation had not been made. He would not have had changed his position. 96 Sidhu [84] citing Donis v Donis (2007) 19 VR 577, [34]; [2007] VSCA 505. -- 104 of 122 -- [2024] SADC 109 101 460 Steven also submitted that he had suffered lifestyle detriment based on continuing to live in the transportable house, continuing to operate the Partnership after Bevan had ceased to work full time on the farm in 2015 and working long hours and missing out on various family events. 461 Based on my findings that Steven always wanted to be a farmer and had a strong work ethic and ambitions, that through the Partnership he obtained the opportunity to acquire a significant land holding in his own name, I do not accept that Steven would not have acted in the same way if the representations had not been made. Specifically in relation to Bevan ceasing work full time on the farm in 2015 and by 2017 had ceased all labouring work on the farm, Steven did not give evidence that he would have done anything different at that time if the representations had not been made. The Partnership was very profitable during this period. A decision by Steven to dissolve the Partnership, would have resulted in Steven being unable to farm the land held by Bevan and at that time, Francis. I do not consider that Steven would have undertaken that course. Further, this conduct occurred in 2015. I do not consider that even if this detriment had been established (which I do not consider that it has been), it would have justified the imposition of a constructive trust over the whole of the Farming Land when it was clear by 2017, that Bevan was insisting upon a fair price be paid for the Farming Land. Relief 462 It is no longer the case that the relief that will be granted will be moulded to reflect the minimum relief necessary to remove the detriment.97 Prima facie, the Court will enforce a reasonable expectation which the party bound created or encouraged. Relief will be limited where the enforcement of a plaintiff’s expectation would be out of all proportion to the detriment.98 463 The principle of proportionality applies only in unusual cases where proprietary relief would be out of all proportion to the detriment. The proper measure of relief, where the detriment is something substantial, is performance of the promise.99 That position was summarised by Livesey J (as he then was) in Commercial & General Corp Pty Ltd v Manassen Holdings Pty Ltd 100 where he held: The point to be drawn from the passages from Sidhu v Van Dyke set out above is that, in some cases, the appropriate relief will be the enforcement of the assumption or the expectation, while in other cases, the appropriate relief is something less, because to hold the defendant to the promise would be wholly disproportionate to the detriment suffered by the plaintiffs. That is a point different to the contention propounded by the plaintiffs, and tends only to emphasise that the mere non-fulfillment of a promise is not sufficient to give rise to a promissory estoppel. 97 Ibid citing Giumelli v Giumelli (1999) 106 CLR 101, [48]; [1999] HCA 10, Delaforce v Simpson-Cook (2010) 78 NSWLR 483; [56]-[57]; [2010] NSWCA 84, and Sidhu at [75]. 98 Ibid citing Delaforce at [62] and Sidhu at [85]. 99 E Co v Q [2018] NSWSC 442, [1191] citing Priestley v Priestley [2016] NSWSC 1096, [164]. 100 [2021] SASCFC 40, [156]. -- 105 of 122 -- [2024] SADC 109 102 464 I accept the submission of senior counsel for Steven that the fact that the time for the fulfilment has yet to arrive is not a reason to deny relief. An order can be made given that Bevan and Valerie, by their 2020 wills, confirmed by the Bevan’s evidence, have indicated that they will not adhere to the pleaded promises and will distribute the farming lands equally amounts all of their children. In some cases, an order that has the effect of accelerating the proprietary relief may be appropriate.101 In Rodda v Ian Rodda Pty Ltd,102 Nicholson J held: As just mentioned, a consideration of importance to the extent of any remedy is this notion of acceleration: the fact that any proprietary remedy to which Stuart [the son] is to be entitled will operate to deprive Ian of part of his property and to advantage Stuart, during Ian’s [the father] lifetime and at a time earlier than otherwise might have been the case had the representational conduct been adhered to. To the extent Stuart has a proprietary entitlement, it will be because the title to the property, the subject of that entitlement, is now and perhaps has been for some time, at least in equity, in Stuart. That is, it is no longer Ian’s property and, given Stuart’s proprietary interest, should not be regarded as otherwise available to form part of Ian’s estate divisible amongst his beneficiaries on death. Nevertheless, if Stuart’s reasonable expectation was only to receive the farming business or part of it, either in specie or by way of equivalent value, upon retirement by or inheritance from Ian, the giving of a proprietary remedy now will involve this element of acceleration of the benefit the subject of the disappointed expectation. This is not a disentitling factor but a matter going to assessment. (my emphasis) Whilst it is not the case that the court should search for the “minimum equity” to do justice in the circumstances and it is not a case of assessing or measuring or weighing the detriment minutely in order to convert it into some equivalent of cash or kind, there must be a sufficient proportionality of any interest or remedy ultimately granted when compared with the prejudice or detriment suffered by the plaintiffs and the overall justice of the case. 465 In E Co v Q,103 Ward CJ in Eq applied that principle and made an order that had the effect of accelerating the interest of the sons in the properties they expected to inherit on their father’s death to make good their relevant expectations and to satisfy the equity on their proprietary estoppel cases. Ward CJ held that the acceleration was not out of all proportion to the equity raised. 466 It is not possible, given my findings about the other elements of proprietary estoppel, to make any finding about the relief that should be awarded had Steven been successful. The relief will be moulded to the circumstances of the case. It is not possible because what relief might be ordered would depend on what representations were found to have been made and how they were relied upon by Steven. 467 In his written closing submissions, Steven submitted that it was appropriate, even if his claim did not succeed, for the Court to make a declaration of a constructive trust for a one-fifth share of Bevan’s estate on the basis that Bevan 101 Rodda v Ian Rodda Pty Ltd [2015] SASC 95, [303]-[305]. 102 Ibid. 103 E Co v Q [2018] NSWSC 442, [1216]. -- 106 of 122 -- [2024] SADC 109 103 had represented that Steven would receive a one-fifth share estate. In making this submission, Steven acknowledged that Bevan had given an assurance that he had no intention of changing his current will. I do not consider that it is appropriate to make such a declaration. That was not part of the pleaded case and the parties did not conduct their respective cases on such a basis. Further evidence and cross- examination may have been necessary. Further, Bevan has not in any way indicated that he will not treat all of his children equally and leave one-fifth of the Farming Land to Steven. Defence as to the impact on other siblings 468 Bevan and Valerie pleaded as a defence to the claim in proprietary estoppel that enforcement of the promise and repeated promise would be unjust and disproportionate to the detriment suffered by Steven given the benefits that Steven had accumulated, the impact of relief on their retirement and unfairness to their other children, given those children’s financial position. 469 Given my findings, it is not strictly necessary to determine this issue. 470 None of these matters, in the circumstances of this case, provide a reason to deny the imposition of a constructive trust, had it otherwise been justified. I reach this conclusion for three reasons. First, the other benefits that Steven might have accumulated are not relevant to the alleged promises. The promises (had I found them to have been made) were additional and extraneous to any promises that might have been made to Steven that he would inherit the Farming Land. Secondly, whilst hardship to a respondent may be a relevant factor in determining whether or not to grant relief, in this case,104 the hardship could only arise from the acceleration of the benefit to Steven which would require the transfer of land prior to the death of Bevan and Valerie. Such an acceleration, if it had been ordered, could be subject to the imposition of conditions that would protect the interests of Bevan and Valerie. If acceleration was not ordered, any prejudice to Bevan and Valerie would not arise. Thirdly, hardship to Steven’s siblings may be a matter that the court considers when determining whether to grant relief, in this case, ordering a constructive trust over the Farming Land.105 However, it will only be a relevant factor if the respondent is under some legal or moral duty to the third parties that would conflict with the relief that was being awarded in favour of the applicant. In the present case, any legal or moral duty would to the other siblings would not prevent the relief being awarded to Steven. The other siblings did not work on the farm. They would receive the share, to the exclusion of Steven, the off-farm assets. They did not rely on any promise to their detriment. Conclusion as to claims in proprietary and promissory estoppel 471 For the reasons that I have expressed, Steven has not made out his claim for proprietary and promissory estoppel. 104 Dowsett v Reid (1912) 15 CLR 695, 706. 105 Gail v Mitchell (1924) 35 CLR 222, 231. -- 107 of 122 -- [2024] SADC 109 104 Estoppel by acquiescence 472 There was some suggestion during the course of the trial that Steven has claimed an estoppel by acquiescence in relation to Bevan, particularly in relation to the 2009 wills. There was no pleading of a case of estoppel by acquiescence against Bevan. The only pleaded case of an estoppel by acquiescence was against Valerie. In the course of the closing address, senior counsel for Steven made it clear that Steven’s case against Bevan was not based on estoppel by acquiescence. Consideration of estoppel by acquiescence is therefore limited to the claim against Valerie. It is pleaded that by not expressly disclaiming the representations that were alleged to have been made by Bevan, Valerie adopted those representations or alternatively acquiesced to this representations.106 473 The elements of proprietary estoppel by acquiescence are:107 (1) the plaintiff forms an assumption that he or she has or will have a proprietary interest in property owned wholly or partly by the defendant (assumption); (2) the defendant knows that the plaintiff has formed that assumption, it is erroneous and the plaintiff is acting on it but remains silent when the defendant has a duty to inform the plaintiff that the assumption is erroneous (representation by silence); (3) the conduct of the defendant in remaining silent in that knowledge and in breach of that duty causes or materially contributes to the continuation of that assumption by the plaintiff (reliance); (4) the defendant 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); and (6) it would in all the circumstances be unconscionable for the defendant to depart from the assumption (unconscionability). (citations omitted) 474 Although there is some authority that suggests that the remedy for estoppel by acquiescence is limited to preventing a respondent from profiting from the applicant’s mistake, it now appears that proprietary estoppel share common remedial considerations.108 106 Statement of Claim, [40]. 107 E Co v Q [2018] NSWSC 442, [921] citing Carter v Brine [2015] SASC 204, [326]. 108 E Co v Q [2018] NSWSC 442, [1174], [1177]. -- 108 of 122 -- [2024] SADC 109 105 475 The case for estoppel by acquiescence is an entirely derivative claim. The pleaded claim is that Valerie was present when Bevan made the promise and repeated promise to Steven and did not expressly disclaim the promise and repeated promise.109 As the primary claim in estoppel by encouragement against Bevan has failed, it also follows that the claim against Valerie for estoppel by acquiescence must also fail. I have found that the promises were not made. Therefore, Valerie cannot have adopted or acquiesced to the promise. The same findings that I have made in relation to reliance and detriment in the estoppel by encouragement also apply to the estoppel by acquiescence claim against Valerie. Lastly, because the claim against Bevan has failed, the estoppel by acquiescence claim against Valerie could only give rise to a claim against the land held by Valerie. The only land owned by Valerie was one sixth of Lot 552, Drain Road Kadina and the Kadina home. The Kadina home is not part of the Farming Land. Joint Endeavour Constructive Trust 476 Steven has made a further claim seeking an order that a constructive trust be imposed in his favour based on the failure of a joint venture. Steven’s case is that there was a joint endeavour that included the Partnership and the Farming Land. The joint venture was to expand and improve the farm so as to make it more profitable and to build up its assets, both real property and plant and equipment, which would enable Bevan and Valerie and Steven to make a living and enable Steven to provide for Bevan and Valerie in their retirement, and ensure that Steven and his family would have a secure future in farming. Steven submitted that it was the breakdown in the family relationship, without fault, that terminated the joint endeavour. 477 There is no doubt that the joint endeavour, if that characterisation is appropriate, has been terminated. I am satisfied that it terminated without any relevant fault. It is not necessary to determine whether it terminated in 2017 as Steven claims or in 2020 following the dissolution of the Partnership. 478 The Courts have shown a willingness to impose a constructive trust requiring the legal owner of the land to hold land on trust for another in circumstances where the other person has made contributions to the acquisition, maintenance or renovation of property pursuant to a joint endeavour or relationship which has failed in circumstances where blame cannot be attached to either party. 479 In Muschinski v Dodds,110 the High Court found that the parties held their respective legal interests in common upon trust for each other, to repay each his or her respective contributions to the venture. Deane J, (Mason J agreeing), held that it was appropriate to impose a constructive trust in the circumstances of that case to give effect to the general equitable principle which restores to a party contributions which he or she made to a joint endeavour which fails when the 109 Statement of Claim, [39] and[40]. 110 (1985) 160 CLR 583, 614; [1985] HCA 78. -- 109 of 122 -- [2024] SADC 109 106 contributions have been made in circumstances in which it was intended that the other party should enjoy them. 480 In Baumgartner v Baumgartner,111 the High Court held that the assertion by one party after the relationship had ended that the property was his beneficially to the exclusion of any interest at all of the other, amounted to unconscionable conduct which attracted the intervention of equity and the imposition of a constructive trust at the suit of that other party. 481 The underlying basis of the constructive trust is founded on the unconscionable conduct. As Deane J held in Muschinski v Dodds:112 Like most of the traditional doctrines of equity, it operates on legal entitlement to prevent a person from asserting or exercising a legal right in circumstances where the particular assertion or exercise of it would constitute unconscionable conduct ... the principle operates in a case where the substratum of a joint relationship or endeavour is removed without attributable blame and where the benefit of the money or other property contributed by one party on that basis and for the purpose of the relationship or endeavour would otherwise be enjoyed by the other party in circumstances in which it was not specifically intended or specifically provided that that other party should so enjoy it. The content of the principle is that in such a case equity would not permit that other party to assert or retain the benefit of the relevant property to the extent that it would be unconscionable for him so to do. 482 In Shepherd v Doolan,113 the Court referred to the following statement from Campbell J in West v Mead114 as what an applicant must establish: ... a plaintiff needs to establish there is indeed a joint endeavour between the parties, in which expenditure is shared for the common benefit. It is also necessary to identify what the scope of that joint endeavour is. ... Further, for any couple, the scope of the joint endeavour they are engaged in might change from time to time. If, within the scope of a joint endeavour ...an asset is acquired, as a result of contributions both parties have made, and for a purpose of the ongoing joint endeavour of the parties, this gives rise to the presumption that the beneficial interest ought be shared equally. That presumption can be displaced if one party is able to show that the contributions, both financial and non- financial, to that asset should be regarded as unequal. 483 A variety of matters can be taken account when determining the contributions made by the respective parties. In Sivirtas v Sivirtas,115 Kyrou J held: ... a court can take into account direct financial contributions to the purchase price of the property and incidental costs such as stamp duty, registration fees, solicitors’ fees and bank fees. However, a court is not limited to such expenditure. It can also take into account the pooling of financial resources, other financial contributions even in the absence of pooling, contributions of labour, and non-financial contributions or contributions in kind such as homemaking and parenting contributions. Further, the inquiry into whether the assertion by a party of his or her legal rights would be unconscionable can encompass events that occurred after the property was initially acquired. Expenditure on repairs and renovations 111 (1987) 164 CLR 137, 147-148; [1987] HCA 59. 112 (1985) 160 CLR 583, [14]; [1985] HCA 78. 113 [2005] NSWSC 42, [32]-[33]. 114 [2003] NSWSC 161, [59]. 115 [2008] VSC 374, [132] quoted in E Co v Q [2018] NSWSC 442, [853]. -- 110 of 122 -- [2024] SADC 109 107 of the property by a person asserting a constructive trust in respect of the property, where the expenditure is accepted by the legal owner of the property in the knowledge that it would improve the home and add to its value, can be considered as a contribution in quantifying the first person’s equitable interest under the constructive trust. 484 In the context of a farming case, the principles enunciated in Nolan v Nolan116 are applicable: The various contributions found to have been made by the respondent were relevant contributions when determining whether a constructive trust ought to arise having regard to the finding that the farming enterprise had been conducted by way of common endeavour. As was observed by Campbell J in West v Mead [2003] NSWSC 161; (2003) 13 BPR 24,431 at [62]: Part of the justification for imposing the Baumgartner constructive trust is that the parties have jointly been building up assets, on the basis that those assets will be available for the joint endeavour in future. Part of the reason why it can be unconscionable to let the legal title lie where it falls, if the relationship fails, is that each knew that the other was contributing to a common pool on the basis that the pool, and assets acquired from it, would be used for their ongoing common benefit. It is unconscionable for the party who ends up, at the end of the relationship, with a disproportionate share of the assets which were built up during the relationship, to keep those assets when he or she knew that that was the basis on which the assets were being built up. 485 In the present case, the claim for a constructive trust based on the above principles must fail for two reasons. 486 First, the common endeavour must be identified. The only common endeavour is the farming business which has been conducted over both Bevan’s land (and prior to that Francis’ land) and Steven’s land. That joint endeavour included a general plan to build up and improve the farm and expand it. 487 This common endeavour has failed. Steven built up assets during the course of the farming business through the acquisition of properties. His assets form part of the pool. Any unconscionability can only arise, if it is shown that it is unconscionable to let the legal title fall, where it lies. In this case, the legal title falls with Bevan owning some of the land and Steven owning some of the land. There is no unconscionability in reaching that result. Senior counsel for Steven submitted that this division did not fulfill Steven’s expectations given that it was Bevan and Steven who had generated the wealth. Steven’s expectation, ignoring the representations, could not exceed, on any view, on half of the assets of the joint endeavour. Steven is seeking substantially the whole of the assets of the joint venture -i.e. all of the Farming Land a well as keeping the land that he or his Trust owns. 488 Secondly, and related to that finding, given my finding that no representation had been made by Bevan to Steven that he would inherit all of the Farming Land, there is no basis to find that it is unconscionable for Bevan to retain the Farming 116 [2015] QCA 199, [61]. -- 111 of 122 -- [2024] SADC 109 108 Land that is in his name, with Steven keeping the Farming Land that is in his name or in the name of the Trust. That is, while I accept that it is not necessary in the ordinary course for there to be a promise as the basis to find a joint endeavour that might give rise to a claim for a constructive trust, in the present case, where Steven holds a substantial portion of the land in his own name, unconscionability can only arise if he was promised the whole of the land. Conclusion 489 For the reasons that I have expressed, I dismiss Steven’s claim. -- 112 of 122 -- [2024] SADC 109 109 Appendix A Steven’s Land Holdings held either in his own name or through Bull Holdings Pty Ltd Registered Proprietor Section Name (Certificate Title Register Book Volume/Folio) Date Acquired Common Name or Description Valuation Adopted Property Area in Hectares (ha) Steven Bull as trustee of the Bull Family Trust Lot 92 Bulls Road, Kadina (Allotment 92 FP 214437, CT 6073/263) 8 March 2011 Purchase of land from Ian Rostyn Philbey. Bulls Road $540,850 (Arable Dryland) 37.30 ha $4,800 (Native Vegetation/ Support Land) 3.20 ha Total: $545,650 Total: 40.50 ha Lot 1 Ellis Road, Kadina (Allotment 135 FP 198316, CT 6090/859; Allotment 1 DP 91697, CT 6113/213) 9 October 2013 Purchase of land from Brenton and Edwina McRae. Ellis Road $635,100 (Arable Dryland) 21.90 ha (CT 6090/859) 21.90 ha (CT 6113/213) Total: 43.80 ha Lot 907 Adams Plains Road, Wallaroo (Section 907, CT 5464/588) 14 May 2009 Purchase of land from Peter Reginald Bruce. Bruce’s property $3,358,600 (Arable Land) 239.90 ha $5,500 (Native Vegetation/ Support Land) 3.70 ha Total: $3,364,100 Total: 243.60 ha -- 113 of 122 -- [2024] SADC 109 110 Steven Bull 325 Kennetts Road, Tickera (Section 62W, CT 5394/528; Section 62E, CT 5394/529; Section 61, CT 5395/531) Lot 60 Goodes Road, Tickera (Section 60, CT 5394/598) 21 June 1996 Purchase of Section 62W (CT 5394/528) and Section 62E (CT 5394/529) from Wenberley Pty Ltd. 25 June 1996 Purchase of Section 61 (Ct 5395/531) from Wenberley Pty Ltd. 11 March 1999 Purchase of Section 60 (CT 5394/598) from Paul Lealand Gardner. Tickera property $5,056,380 (Arable Land) 361.17 ha $6,450 (Native Vegetation/ Support Land) 4.30 ha Total: $5,062,830 Total: 365.47 ha Bull Holdings Pty Ltd Lot 912E Point Riley Road, Wallaroo Plain (Section 912E, CT 5674/73) Unknown date of acquisition of Section 909 (CT 5603/432) with Francis having 2/3 interest and Louis having Uncle Lou’s land $4,930,100 (Arable Dryland) 352.15 ha -- 114 of 122 -- [2024] SADC 109 111 10018 Spencer Highway, Wallaroo Plain (Section 909, CT 5603/432) 1/3 interest as tenants in common. 12 July 1957 Francis transferred his 2/3 interest in Section 909 (CT 5603/432) to Louis who possessed the remaining 1/3 interest. 8 March 1966 Purchase of Section 912E (CT 5676/73) from Evelyn Madeline Tait by Louis and Theresa Bull. 11 November 2016 Louis’ 3/3 interest in Section 909 (CT 5603/432) transferred to Theresa Bull pursuant to Louis’ will. 14 September 2020 Purchase of Section 912E (CT 5676/73) from Theresa Bull by Bull Holdings Pty Ltd. $8,400 (Native Vegetation/ Support Land) 5.60 ha Total: $4,938,500 Total: 357.75 ha -- 115 of 122 -- [2024] SADC 109 112 Bevan and Valerie Bull’s Land Holdings held wholly or jointly with others 10 February 2021 Purchase of Section 909 (CT 5603/432) from estate of Theresa Bull by Bull Holdings Pty Ltd. Section 63 Bulls Road, Kadina (Section 63, CT 6121/720) 2 June 2022 Purchase of land from Judith Margaret Paddick, Stephen Brian Paddick and Shane Michael Paddick by Bull Holdings Pty Ltd. Paddick’s Farm $581,000 (Arable Dryland) 40.47 ha Total Value of Steven’s Holdings and Trust Holdings: $15,127,18 0 1,045.52 ha Registered Proprietor Section and Lot Name (Certificate Title Register Book Volume/Folio) Date Acquired Common Name or Description Valuation Adopted Property Area in Hectares (ha) Bevan Bull Lot 230 Bute Road, Kadina (Section 230, CT 5653/194; Sections 279- 12 July 1957 Purchase of land from Gordon and Frederick Hancock by Francis Bull. Hancock’s Farm $1,241,490 (Arable Dryland) 40.90 ha (CT 5653/194) -- 116 of 122 -- [2024] SADC 109 113 288, CT 5940/537) 22 September 2017 Transfer of interest from Francis to Bevan Bull pursuant to the will of Francis and Supreme Court order. 44.72 ha (CT 5940/537) Total: 85.62 ha Lot 918 Chatties Lane, Wallaroo (Section 918 Hundred of Wallaroo, CT 5797/625) 4 March 1963 Purchase of land from Emily Pedler by Francis Bull. 22 September 2017 Transfer of interest from Francis to Bevan Bull pursuant to the will of Francis and Supreme Court order. Pedler’s Farm (part) $230,400 (Arable Dryland) 38.40 ha $7,700 (Native Vegetation/ Support Land) 7.70 ha $6,900 (Saline Land) 27.60 ha Total: $245,000 Total: 73.70 ha 542 Adams Plain Road, Wallaroo Plain (Section 898W, CT 5604/898; Section 900, CT 5835/991; Section 903, CT 5604/899; Section 904, CT 5832/963; Section 910, CT 5730/26) 236 Bulls Road, Kadina 16 March 1949 Purchase of Section 903 (CT 5604/899) and Section 910 (CT 5730/26) (‘Gordon’s Farm’) from the Gordons, as tenants in common, with Francis Bull possessing 2/3 interest, and Louis 1/3 interest. 12 February 1962 Transfer of Louis’ interest in Section 903 (CT 5604/899) and Section 910 Pedler’s Farm Gordon’s Farm Tait’s Farm (part) $7,428,260 (Arable Dryland) 530.59 ha $200,000 (Grazing 40.00 ha -- 117 of 122 -- [2024] SADC 109 114 (Section 899, CT 5394/527) 203 Bulls Road, Kadina (Sections 617- 619, CT 5720/23; Sections 620- 624, CT 5817/790) (CT 5730/26) (‘Gordon’s Farm’) to Francis pursuant to land swap. 4 March 1963 Purchase of Section 898W (CT 5604/898), Section 899 (CT 5394/527), Section 900 (CT 5835/991), and Section 904 (CT 5832/963) (‘Pedler’s Farm’) from Emily Pedler by Francis Bull. 17 July 1964 Transfer of Section 899 (CT 5394/527) to Bevan Bull from Francis as a wedding gift. 3 June 1966 Purchase of Sections 617-619 (CT 5720/23) and Sections 620-624 (CT 5817/790) (‘Tait’s Farm (part)’) in the joint name of Francis, Ian and Bevan, from David Francis Tait. 21 November 2007 Transfer of Sections 617-619 (CT 5720/23) and Sections 620-624 (CT 5817/790) (‘Tait’s Farm (part)’) from Francis, Ian, and with Saline Land) $12,300 (Native Vegetation/ Support Land) 8.20 ha Total: $7,640,560 Total: 578.79 ha -- 118 of 122 -- [2024] SADC 109 115 Bevan as joint tenants to tenants in common with equal interest (1/3). 25 July 2012 Purchase of Ian’s 1/3 interest in Sections 617-619 (CT 5720/23) and Sections 620-624 (CT 5817/790) (‘Tait’s Farm (part)’) by Bevan Bull. 22 September 2017 Transfer of interest from Francis to Bevan Bull, pursuant to the will of Francis and Supreme Court order, in: Section 898W (CT 5604/898), Section 900 (CT 5835/991), Section 904 (CT 5832/963), Sections 617-619 (CT 5720/23), and Sections 620-624 (CT 5817/790) (‘Pedler’s Farm’) as well as in Section 903 (CT 5604/899) and Section 910 (CT 5730/26) (‘Gordon’s Farm’). Bevan 2/3 interest, Ian 1/3 interest Lot 584 Tickera Road, Wallaroo (Section 548, CT 5820/473; Section 553, 3 June 1966 Purchase of land (‘Tait’s Farm (part)’) excluding Section 555 (CT 5739/46) and Tait’s Farm (part) John Bull’s Farm $700,800 (Lot 584 Tickera Road, Wallaroo) 4.86 ha (CT 5820/473) 7.28 ha (CT -- 119 of 122 -- [2024] SADC 109 116 CT 5628/823; Section 554, CT 5720/22; Section 555, CT 5739/46; Section 563, CT 5737/252; Section 564, CT 5815/739 Section 565, CT 5799/156) Lot 573 Bulls Road, Kadina (Section 573, CT 5838/768) Lot 905 Heath Road, Kadina (Section 905, CT 5832/964) Section 563 (CT 5737/252) from David Francis Tait by Francis, Ian, and Bevan Bull as joint tenants. 8 August 1967 Transfer of Section 555 (CT 5739/46) and Section 563 (CT 5737/252) (‘John Bull’s Farm’) from John Desmond Bull to Francis, Ian, and Bevan. 21 November 2007 Transfer of the land from Francis, Ian, and Bevan Bull as joint tenants to tenants in common with equal interest (1/3). 28 September 2017 Transfer of Francis’ 1/3 interest to Bevan Bull, pursuant to the will of Francis and Supreme Court order. (Arable Dryland) 5628/823) 4.86 ha (CT 5720/22) 5.46 ha (CT 5739/46) 8.09 ha (CT 5737/252) 8.09 ha (CT 5815/739) 8.08 ha (CT 5799/156) $115,350 (Lot 573 Bulls Road, Kadina) (Arable Dryland) 7.69 ha (CT 5838/768) $570,000 (Lot 905 Heath Road, Kadina) (Arable Dryland) 38.00 ha (CT 5832/964) Total: $1,386,150 Total: 92.41 ha Bevan 1/2 interest, Ian 1/2 interest Lot 573 Bulls Road, Kadina (Section 917, CT 5940/598) 18 October 1963 Purchase of land in the names of Ian and Bevan Bull as tenants in common. Pedler’s Farm (part) $248,820 (Arable Dryland) 41.47 ha $12,000 (Native 16.00 ha -- 120 of 122 -- [2024] SADC 109 117 Vegetation/ Support Land) Total: $260,820 Total: 57.47 ha Bevan 3/6 interest, Valerie 1/6 interest, Ian 1/6 interest, Helen 1/6 interest Lot 552 Drain Road, Kadina (Section 552, CT 5841/767) 16 March 1982 Purchase of land in names of Francis, Ruth, Ian, Helen, Bevan, and Valerie as tenants in common with1/6 interest each. 27 September 2017 Transfer of Francis’ 1/6 interest to Bevan’s existing 1/6 interest pursuant to the will of Francis and Supreme Court order. 28 September 2017 Transfer of Ruth’s 1/6 interest to Bevan’s 2/6 interest pursuant to the will of Ruth and Supreme Court order. Heaven’s Farm $81,900 (Arable Dryland) 5.46 ha Bevan 2/6 interest, Ian 2/6 interest, Teresa Ann Lykke 1/6 interest, Laurence David Bull 1/6 interest Lot 441 George Street, New Town (Sections 441 & 464, CT 5720/25; Section 443, CT 5720/24; Sections 462 3 June 1966 Purchase of the land from David Francis Tait by Francis, Ian, and Bevan as joint tenants. 21 November 2007 George Street New Town (Section 496 Harris Road (near New Town)) Tait’s Farm (part) $906,800 (Deferred Urban Zoned - Arable Land) 6.47 ha (CT 5720/25) 3.24 ha (CT 5720/24) 6.47 ha (CT 5802/216) -- 121 of 122 -- [2024] SADC 109 118 & 463, CT 5802/216; Section 465, CT 5584/720; Allotment 896 FP 198267, CT 5829/88; Allotment 897 FP 198268, CT 5804/848; Allotment 898 FP 198269, CT 5828/959; Allotment 899 FP 198270, CT 5832/719) Lot 496 Harris Road, Kadina (Section 496, CT 5585/593) Transfer of land from Francis, Ian, and Bevan as joint tenants to tenants in common with equal interest (1/3). 11 October 2017 Transfer of Francis’ 1/3 interest to Teresa Ann Lykke and Laurence David Bull to be split equally in the land (1/6), pursuant to the will of Francis and Supreme Court order. 3.24 ha (CT 5584/720) 0.61 ha (CT 5829/88) 0.21 ha (CT 5804/848) 0.81 ha (CT 5828/959) 1.62 ha (CT 5832/719) Sub-Total: 22.57 ha $72,900 (Lot 496 Arable Dryland) 4.86 ha (CT 5585/593) Total: $979,700 Total: 27.53 ha Total Value of Bevan Bull’s Holdings: $11,835,620 920.98 ha -- 122 of 122 --