KYM RICHARD PFEILER [2026] SASC 81

Applicant: KYM RICHARD PFEILER Counsel: MR M DOUGLAS WITH DR V GILLILAND - Solicitor: KELLY KELLY LEGAL Respondents: RICHARD CHARLES PFEILER, LYNETTE PFEILER, AND STEPHEN CHARLES PFEILER Counsel: MR P ADAMS - Solicitor: STANTON & STANTON Hearing Date/s: 15/12/2025 to 19/12/2025, 22/01/2026 to 23/01/2026, 27/01/2026 to 29/01/2026, 02/02/2026, 06/02/2026 File No/s: CIV-23-005850 B SUPREME COURT OF SOUTH AUSTRALIA (Civil) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. PFEILER v PFEILER & ORS [2026] SASC 81 Judgment of the Honourable Chief Justice Kourakis 29 May 2026 CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - FORMATION OF CONTRACTUAL RELATIONS - MATTERS NOT GIVING RISE TO BINDING CONTRACT CONTRACTS - BUILDING, ENGINEERING AND RELATED CONTRACTS - THE CONTRACT - CONSTRUCTION OF PARTICULAR CONTRACTS AND IMPLIED CONDITIONS - IMPLIED TERMS This is an application by Kym Pfeiler, seeking relief pursuant to the provisions of the Trustee Act 1936 (SA) in respect of the administration of an interlocking group of family trusts. The applicant seeks relief from alleged oppression in the management of the business, denial of access to the farming properties, denial of access to documents, exclusion from his trust and appointment of additional directors without consultation. This is a determination of a discrete contention by the respondents that a discussion between the parties on 2 August 2023 resulted in a binding contract, which would preclude the applicant from maintaining his action. Held, dismissing the contentions made by the respondents and the prayer for relief: 1. The parties reached a broad consensus at the meeting on supporting the applicant’s venture. There was, however, no agreement on essential terms, including the parties, the tax treatment, the security for payment and the applicant’s relinquishment of interests. 2. There was no intention to create a legally binding contract, only an agreement to continue negotiations in good faith. Trustee Act 1936 (SA); Corporations Act 2001 (Cth), referred to. Masters v Cameron (1954) 91 CLR 353, applied. -- 1 of 39 -- -- 2 of 39 -- PFEILER v PFEILER & ORS [2026] SASC 81 Civil KOURAKIS CJ. 1 On 26 May 2023, the applicant, Kym Pfeiler, initiated an action seeking relief pursuant to the provisions of the Trustee Act 1936 (SA) (the Act) in respect of the administration of an interlocking group of family trusts which operated agribusiness in the South Australian Riverland. The grounds on which Kym sought judicial intervention were oppression in the management of the business, denial of access to the farming properties, denial of access to documents and information, exclusion from his own Trust, and the appointment of additional directors to Red Earth Fresh. Background 2 Kym was born in 1975. He is married to Megan. He is the son of the respondents, Richard and Lynette Pfeiler, and the older brother of Stephen Pfeiler. I will refer to them by their first names. They are the principals of a multiplicity of corporate entities and trusts engaged in a substantial agri-business enterprise in the South Australian Riverland. Their business includes the growing of wine grapes, melons and almonds. It extends to the operation of a winery. The total value of their business exceeds $120,000,000. 3 I will refer to the corporate entities associated with the business collectively as ‘the Pfeiler group’ and will define them as they were defined in Kym’s affidavit on 25 May 2023, to include: (a) Red Earth Farms (Riverland) Trust (Red Earth Trust); (b) Red Earth Farms (Riverland) Pty Ltd (Red Earth Riverland); (c) Red Earth Holdings Property Trust (Property Trust); (d) Red Earth Riverland Holdings Pty Ltd (Red Earth Holdings); (e) Pfeiler Holdings Pty Ltd (Pfeiler Holdings); (f) Sunview Orchards Trust (Sunview); (g) Red Earth Fresh Pty Ltd (Red Earth Fresh); (h) Date Farms Australia Holdings Pty Ltd (Date Farms Australia) (i) Date Farms Australia Trust (Date Farms Trust); (j) Sunlands Estate Family Trust (Sunlands) -- 3 of 39 -- [2026] SASC 81 Kourakis CJ 2 (k) Kym and Megan Pfeiler Family Trust (Kym and Megan Pfeiler Family Trust); (l) Elrimal Partnership; (m) Red Earth Super Fund (Super Fund); (n) Kym Richard Pfeiler Trust (Kym’s Trust); (o) Stephen Cahrles Pfeiler Trust (Stephen’s Trust); (p) RC Pfeiler Family Trust Fund (Richard’s Trust); (q) RP Corporate Beneficiaries Pty Ltd (RP Corporate Beneficiaries); (r) KP Corporate Beneficiaries Pty Ltd (KP Corporate Beneficiaries); (s) SP Corporate Beneficiaries Pty Ltd (SP Corporate Beneficiaries); (t) Pfeiler Farms Pty Ltd (Pfeiler Farms); (u) Pfeiler Packing Pty Ltd (Pfeiler Packing). I will refer to the first four entities as ‘the Red Earth entities’. 4 This is the determination of a discrete issue arising out the respondents’ Statement of Facts, Issues and Contentions. The issue is whether a discussion between Kym, Richard, Lynette, and Stephen on 2 August 2023 resulted in a binding contract whereby: • Kym agreed to discontinue the proceedings and to surrender his directorships, shareholding, and beneficial interest in all Pfeiler group entities other than his corporate vehicle, KP Corporate Beneficiaries; and • Richard, Lynette, and Stephen agreed to take all necessary steps to cause a Pfeiler group entity to transfer to Kym land on which he was establishing a date farm, and to provide him with financial and other support to do so. 5 In the course of the hearing, the parties agreed that those issues should be determined first because their resolution was likely to expedite the determination of all remaining issues. 6 The respondents contend that at a family meeting on 2 August 2023, the parties concluded a contractually binding agreement which compromised Kym’s claims such that he was precluded from maintaining his action. The agreement alleged was made orally at Richard’s home in the presence of Richard, Lynette, Kym, and Stephen. It was never reduced to writing in a document to which the -- 4 of 39 -- [2026] SASC 81 Kourakis CJ 3 parties subscribed. It was a simplistic proposal. Consensus was reached on the precise figure for an annual payment to Kym to support him in the establishment phase of the date farm. A consensus was also reached that Kym should be allowed to the use of 200 megalitres of water, but it was not agreed whether a water licence would be transferred and, if so, which licence. However, no consensus was reached on essential conditions like the precise identification of the Pfeiler group entity or entities which would make the payment, nor the extent to which the interests of Kym, Megan, and their children in the trusts were affected, if at all. Complex tax issues which would arise from the contemplated transactions were to be referred to the Pfeiler group accountant for advice. No terms or conditions were agreed as to security for the future payments to Kym. 7 For the reasons which follow, I find that the discussions left the terms of the contemplated agreement so uncertain and incomplete that, viewed objectively, there was no binding agreement. The reasonable bystander would understand from the discussion that Kym, Stephen, and Lynette had reached a consensus that: • the date farm would be removed from the other Pfeiler group businesses and would be operated by an entity or entities controlled by Kym; and • Kym would receive other financial support to do so; but that until the agreement had been reduced to writing in a professionally drawn contract on which the parties obtained advice before subscribing thereto, there was no legally binding contract other than to negotiate in good faith. The Pfeiler group operations 8 Kym described the division of responsibility for the company’s operations as follows: Richard (a) Reviews mail for all entities. (b) In charge of the packing shed. (c) Undertakes training of employees for vine trellising. (d) Cultivating melon seedlings. Stephen (a) Maintenance of all property and plant and equipment. (b) Occupational health and safety. (c) Joint control of almond orchards with Kym. -- 5 of 39 -- [2026] SASC 81 Kourakis CJ 4 (d) Manager of melon harvest. Kym (a) Authorising payment of invoices. (b) Directing work force to the relevant property and agricultural activity as required. (c) Oversight of the farm managers of Sunview. (d) Manager farming operations for grapes. (e) Oversight of farm manager for melons. (f) Shared control of the almonds with Stephen. (g) Irrigation and fertiliser scheduling. 9 Lynette did not have any significant involvement in farming operations from the mid-1990’s. 10 From about 2020, Kym became estranged from his parents and Stephen. That estrangement arose out of differences of opinion over appropriate business practices and, as importantly, personality differences. 11 Kym deposed that the topics disputed by him and his father included workplace health and safety, employment standards, and taxation. 12 In 2020, Kym was charged with importing a substantial quantity of garlic, in contravention of certain quarantine prohibitions. In his testimony, Richard disavowed any animosity to Kym arising from those charges. He maintained that he supported Kym through what was a very stressful time. Text messages he sent to Kym at the time, manifest a mix of support and tough pragmatism. That is not surprising. It is unlikely that the conduct out of which the charges arose was a personal frolic of Kym’s unrelated to the interests of the business generally. Nonetheless, the charges seem to have exacerbated the differences to which Kym referred. For Kym, they confirmed his concern about the way in which the business was managed. Kym deposed that Richard continued to resist change. Richard told Kym that if he was not happy with doing it Richard’s way he should get out. 13 Kym deposed that from 2020 his role within the group was slowly eroded. Richard and Stephen refused to communicate with him about Pfeiler group finances and operations. He was directed by Richard not to do activities that otherwise fell within his role. He was gradually excluded from the group and from financial support that he would have otherwise received. -- 6 of 39 -- [2026] SASC 81 Kourakis CJ 5 The date farm proposal 14 As a result of the increasing tensions, Kym, his parents, and Stephen proposed the purchase of a new property to be developed as a date farm. The beneficial interest in the date farm would eventually vest in Kym, and or a family entity, at which time Kym would give up his interest in the farming partnership known as Elrimal. Elrimal was a partnership of the family trusts of Kym, Richard, and Stephen. It was contemplated that Kym would also give up his one percent interest in the shares of the Red Earth Farms Riverland, the trustee of Red Earth Farms. 15 On 4 December 2020, Kym sent a text to Richard which read: For my share of Elrimal and 1% of REF I wish to purchase the property over the river, should get it for less than 1.5m. Will cost another 500k I guess for power irrigation and a shed … If you think this isn’t a fair trade let me know as I will start getting a few costings next week and see if they will accept at a lower offer. I have about 2yrs to my court case so I need to get it all done before then. We can talk about the rest when you are ready to work things out. It is heartbreaking for all of us I guess that it has come to this. I only wanted fairness and a few rules but looks like I am forced to leave. I don’t wish to live the next 20 years arguing and especially don’t wish my kids to grow up in that type of environment as I did. I appreciate all you have done for me and I carnt believe it has come to this. 16 Neither Kym nor the respondents contended that that proposal became legally binding. 17 On 15 February 2021, Kym sent a text to his father that he would proceed with the purchase of the date farm. Richard responded on 17 February 2021, seeking a costing of the expenses. He mentioned that Red Earth entities had ‘a lot of big bills coming our way’. He added, ‘Euon (sic) thinks we should plead guilty [to the quarantine charges] and pay the fine but then we would need to shut Red Earth and start a new company’. 18 On 17 February 2021, Kym replied ‘best to shut Red Earth down as I am getting out anyway as you suggested. Will look better that way’. Richard replied: I have never suggested you should get out of Red Earth Farms and I don’t want you telling anyone that I have. 19 The exchange of texts ended with Richard explaining that he remembered it clearly and it was the hardest thing he had ever had to deal with, especially from his father after 28 years of working together. Richard maintained that neither Lynette nor he could remember such a thing and for that reason they did not think that Kym was correct. Later in April 2021, there was an exchange of texts in which Richard said he wanted to delay an informal mediation because he was busy. -- 7 of 39 -- [2026] SASC 81 Kourakis CJ 6 20 Land for the date farm was purchased in 2021 with funds provided by Red Earth entities. Red Earth entity funds and equipment were utilised to commence operations on the property. 21 In 2021, Kym approached the Pfeiler group accountant, Malcolm Wilmot of RSA, to structure a group of entities which would hold and operate the date farm. He instructed Mr Wilmot that the respondents were to have no interest or connection with those entities. Parting of ways 22 On 24 November 2021, Richard peremptorily sought Kym’s resignation from the board of the entity which operated the winery, saying: I need to get onto the winery board. You will need to resign to create a vacancy. Probably best to speak to Malcolm and let him sort it out. Kym responded: What is the reason why you want to kick me off the GWG Board? There was no text response, but on 1 February 2022, Richard informed Kym by text that there would be an urgent meeting for Red Earth entity shareholders at 6:00 pm that night. 23 In about March 2022, Kym ceased day to day involvement with the Red Earth entities. The circumstances which led to that estrangement are contested. According to Kym, he was excluded whereas the respondents contend that he chose to leave to establish the date farm. 24 The Red Earth entities paid Kym a weekly sum of $1,000 throughout 2022 and in 2023 until shortly prior to a formal mediation of their disputes in June of that year. Prior to the issue of proceedings, there were discussions in late April 2023 at which the family discussed a financial compensation package for Kym for many years into the future until the date farm was fully productive. 25 On 24 April 2023, Richard sent Kym a text asking him whether he was prepared to accept ‘our settlement offer’. The message read: Kym are you prepared to accept our settlement offer. It is the best way to move forward. Lynette and I have always said that the business will stay intact until we are both dead. The trusts were all set up to make sure the business could continue to operate in the event of marriage or family problems. You supported this system so you must realise Lynette and I have full control of all trusts. Remember it was your choice to leave. 26 On 25 April, Kym responded that the offer lacked detail. 27 On 28 April 2023, Kym sent Richard a text saying that he would accept: • $100k upfront and then $25,000 for the next 13 years, tax free. -- 8 of 39 -- [2026] SASC 81 Kourakis CJ 7 • All plant and equipment currently in his possession in addition to the Kenworth, the lusty low loader, the blue spreader, and water in his name. • 1/3 of sa 2639. • 1/4 of NSW 60AL581893. • 1/4 of vic wee 020497. • 1/4 of vic wee 065416. • 1/3 of Western Murray Water transferred to Kym annually until a solution is reached on this. He concluded the email by saying ‘I never said I was going to get out of BERRI, if I was why have I continued there’. 28 Kym sent another short text about an hour later simply saying $25,000 per month and security over payments. 29 On 30 April 2023, Kym sent a further text saying: If you are not prepared to accept my off[er] then I want get out and something else will have to be sort out as I have given up more than enough. I gave up my house and moved to Garry’s for various reason, one on which is what you are doing to me now. I thought of building at Elrimal but didn’t as I knew it would cause trouble. I was even prepared to let Stephen have everything in Waikerie and I get BERRI and my property to sort the elrimal issue out buy now you all chose to take everything from me. 30 On 1 June 2023, after Kym’s action was filed on 26 May 2023, Kym sent a text informing Richard that his $1,000 weekly payment had not come through. He asked Richard to follow that up so that the payment was made ‘until mediation’. The grounds of Kym’s application 31 Kym deposed that, despite being a director, he was denied access to the bank accounts of the major Red Earth Farms entities in about December 2021. He was not warned in advance. As at the end of the financial year 2022, the Red Earth Trust had cash in deposits of over $10,000,000. A little after Kym’s bank account access was removed, his personal credit cards were cancelled. 32 As to the denial of access to properties, Kym deposed that on 8 July 2022, he received a letter from solicitors acting for Richard, Lynette, and Stephen warning that the police would be called and charges would be pressed by them if he accessed any of the properties. -- 9 of 39 -- [2026] SASC 81 Kourakis CJ 8 33 Kym also complained of exclusion from tax planning meetings. Prior to 2020, he was an invited attendee to meetings with the accountant to plan tax management. After the dispute developed, he was no longer invited to those meetings. 34 In respect of denial of access to documents and information relating to the group, Kym deposed that the office of the group was at the home block to which he had been denied access. At about that time, his email account was deleted. He has not received any mail through the post. Nonetheless, he was asked to sign the minutes of directors’ meetings even though he was not invited to attend them. 35 Kym was provided a draft financial statement, for his personal trust, for the year ending 30 June 2022 by Mr Wilmot. On 13 April 2023, Mr Wilmot informed Kym that instructions had been taken from Richard in respect of the preparation of that draft financial statement. The draft financial statement included a resolution that the net income for tax purposes be credited to KP Corporate Beneficiaries and that all capital gain income be distributed to Kym personally with franked dividend income being distributed 50 percent to Richard’s trust and 50 percent to Stephen’s trust. The net effect of that resolution would have been to deny Kym any income but to distribute $131,000 to each of Richard’s and Stephen’s trusts. 36 Kym deposed that Red Earth Fresh engaged contractors for the Pfeiler group farming operations. Kym was a director from the time of its registration in May 2016. 37 On 11 January 2023, Kym’s solicitors discovered that he was no longer a director and that Stephen and Richard became directors on 29 June 2022. Kym deposed that he did not receive any meeting of either directors or shareholders where such resolution could have been made. 38 Kym also relied on claims of maladministration including: • non-settlement of debts within the group; • cash dealings; • a substantial reduction in income and profit; and • breaches of occupational health and safety obligations. 39 Kym deposed that on 7 March 2023, his solicitors wrote to Richard, Lynette, and Stephen proposing a mediation. On 7 March 2023, a solicitor engaged by Richard, Stephen, and Lynette, wrote to Kym’s solicitor complaining that Kym had not consented to certain water transfers and that his consent was urgently required. Kym’s solicitors replied on the same day denying that Kym had refused to transfer or consent. An urgent meeting was requested. There was continuing correspondence about precisely what Stephen, Richard and Lynette proposed so that Kym could consider his position. -- 10 of 39 -- [2026] SASC 81 Kourakis CJ 9 40 On 31 March 2023, Lynette wrote to Kym’s solicitors advising that they were hoping to settle the matter without a lawyer but had decided they should engage one. 41 On 5 April 2023, Lynette wrote to Kym’s solicitors complaining that Kym continued to come on the property owned by her and Richard, ‘taking LOTS of equipment and not bringing it back’. She complained that if it was brought back it was wrecked. She also complained that he was increasingly angry and treating his father absolutely disgustingly. She said that she could not wait until the mediation to put an end to this. She warned that if Kym continued to steal things they would report him. 42 On 19 May 2023, DSA Lawyers, who were engaged by the respondents, complained that a letter of 17 May 2023 from Kym’s lawyers made unreasonable requests for responses to ‘a litany of alleged issues’, and that the time allowed for a response was unrealistic. They expected to be able to respond by 22 May 2023. 43 On 22 May 2023, Kym’s solicitor responded refuting the allegations and requesting greater particularisation of their concerns. 44 Kym deposed that on 23 May 2023, he received notices that Richard, Stephen, and Lynette proposed to remove him as a director of Red Earth Riverland and Red Earth Holdings at a meeting to be held by Zoom on 30 May 2023. Kym’s solicitors wrote a letter complaining about the proposal to remove him. They indicated Kym’s willingness to mediate. The course of the proceedings 45 After Kym initiated proceedings on 26 May 2023, there was a failed attempt at mediation in June 2023, to which I will return shortly. 46 On 30 May 2023, an Associate Justice of this Court made orders by consent that: 1. The respondents are to take all necessary steps to adjourn the general meetings of shareholders for Red Earth Farms (Riverland) and Red Earth Holdings, that were scheduled to occur on 30 May 2023 for a period of at least 28 days or as otherwise ordered by the Court; 2. Until 3 July 2023, further order of this Court or by written agreement of the parties the following companies undertake not to pass any resolution or to take any step effecting the removal of the applicant as a director; [the Red Earth Farms entities and KP Corporate Beneficiaries] 3. Until 3 July 2023, further order of this Court or by written agreement of the parties, the respondents undertake that they will: -- 11 of 39 -- [2026] SASC 81 Kourakis CJ 10 3.1. Refrain directly or indirectly from conducting, authorising or engaging in the business of the Pfeiler group (as defined in the affidavit of Kym, sworn on 25 May 2023) for transactions in an amount greater than $500,000 without giving three business days’ notice to the applicants; and 3.2. Only transactions in the ordinary course of conducting the business of a Pfeiler group or any of its entities. 4. Until 3 July 2023, further order of this Court or by written agreement by the parties (whichever occurs first), the respondents undertake that they will refrain from causing any distributions to be made of any sum greater than $100,000 in total in any calendar month without giving three business days’ notice. 47 On 31 May 2023, Mellor Olsson filed a notice of acting for the respondents. 48 On 19 June 2023, the parties submitted to a mediation. No resolution was reached but the parties agreed to keep the mediation open. 49 On 30 June 2023, Kym filed an application seeking to restrain DSA Law from acting for the respondents on the ground that DSA Law had given advice to the Pfeiler group. Kym deposed in his affidavit of 30 June 2023 that he had engaged DSA Lawyers as his solicitors in the past, both in his individual capacity and as a director of Pfeiler group entities and, in particular, in respect of the criminal charges brought against him in 2020 concerning the importation of 100 kg of garlic. 50 On 5 July 2023, an Auxiliary Associate Justice of this Court noted that the parties had recently attended a mediation which currently remained opened. The following orders were made by consent: 1. That the restraints in orders 2, 3 and 4 made in this proceeding on 29 May 2023 be extended until further order or until written agreement with the parties. 2. … it is ordered by consent that the respondent shall, within 2 days of this Order: 2.1. Instruct their accountant to provide read only access (that may be uplifted and copied) to the applicant and the applicant’s representatives of bank statements and financial software from April 2021 to today for all entities within the Group that the applicant has an interest in; 2.2. Instruct their accountant to provide the applicant with all information that is relevant to the Applicant’s request of 2 June 2023; and 2.3. Provide the applicant with all information within the applicant’s request of 2 June 2023 from April 2021 to today with respect to all entities that the applicant has an interest in. 3. That the applicant shall instruct his accountant to provide the respondents with all information that is relevant to the respondents request of 5 June 2023. -- 12 of 39 -- [2026] SASC 81 Kourakis CJ 11 The application for orders restraining DSA Law was adjourned 22 August 2023, and the respondents ordered to file their submissions by 15 August 2023. 51 On 21 August 2023, the respondents filed an affidavit sworn by Stephen dated 21 August 2023. He referred to the mediation on 19 June 2023. He deposed that shortly after the directions hearing on 5 July, he and his parents began working on a potential settlement offer. His parents discussed that offer with his uncle, John Warner. Another mutual friend had contacted the respondents informing them that Kym was happy to meet with them at his house to discuss the dispute. 52 Stephen deposed that the respondents, being hopeful that the action may settle, decided not to file any affidavit material which might inflame the dispute and so instructed DSA Law on 17 July 2023. 53 A meeting with Kym, Richard, Lynette, and Stephen took place at the office of Red Earth Farm on 2 August 2023 at 7:00 pm. Stephen deposed that at that meeting ‘several key terms of a proposed settlement were agreed to, subject to advice from Malcolm’.1 54 On 22 August 2023, an Associate Justice of this Court adjourned the proceedings to 12 September 2023. The action later came before me. On 7 March 2024, I appointed Mr Paul Cenko of KPMG an inspector to investigate allegations made by Kym about the administration of the Pfeiler group trusts.2 55 On 9 August 2024, Kym brought an application to appoint a receiver without security to the Red Earth entities.3 On 19 November 2024, I reserved my decision on that application.4 56 On 2 June 2025, and before I had delivered judgment on the application to appoint a receiver, Kym brought another application for the immediate appointment of a receiver to the Red Earth entities. 57 On 14 July 2023, Kym brought an application for the removal of those corporate trustees, and that he, Stephen, and Richard be removed as trustees of the Sunview Orchards Trust. He sought the appointment of independent trustees. 58 On 5 November 2025, I consolidated all applications and set them down for trial. I ordered that the application for the appointment of new trustees should proceed on the evidence already received on the earlier application for the appointment of a receiver. The hearing commenced on 15 December 2025. 59 By way of defence and crossclaim, Richard, Lynette, and Stephen claimed that on 2 August 2023, shortly after an unsuccessful formal mediation, they reached an agreement with Kym at a family meeting. It was contended that the 1 Underlining added. 2 Reasons for Decision, FDN 82. 3 FDN 91. 4 FDN 130. -- 13 of 39 -- [2026] SASC 81 Kourakis CJ 12 agreement resolved the controversy in the proceedings between them by Kym assigning to them his beneficial interests in the trusts in return for the transfer to him of land on which he could establish a date farm, water entitlements for him to sustain the date palms, and other financial support. The respondents’ contentions 60 The respondents pleaded in [21] of their amended Statement of Facts, Issues and Contentions filed on 13 January 20265 that the terms of the agreement were: a. The Applicant agrees to settle all legal proceedings against the Respondents and separate himself from the Group and all Group entities, in return for: b. The Respondents agree to: i. The Group transferring ownership of the Date Farms Property debt free and without obligation to the Group; ii. The Group allowing the Applicant (or entity within his control) to retain full ownership of his family home, debt free; iii. The Group would make payment to the Applicant in the sum of $375,000 per year for the following eight (8) years; iv. The Group would arrange for 200 megalitres of South Australian water entitlements to be transferred into the Applicant’s name; v. The Group and Respondents would take all steps necessary for the Applicant to retain or receive transfer of the full value of his share of the Red Earth Superannuation Trust Fund, including his share of the water entitlements held therein. However, by the very next paragraph they pleaded: 22. With the terms of settlement agreed, the Applicant and the Respondents agreed that the Group accountant, Malcolm Wilmot of Roy Spagnolo & Associates, would be engaged to take such necessary steps to implement the Settlement Agreement, including considering and advising the parties on the most effective way to implement the Settlement Agreement from an accounting and tax perspective. [FDN 46 at [112]] 61 I observe first that the term pleaded in [21], that Kym would ‘separate himself from the Group’, is both cryptic and uncertain. In particular, it is not possible to say whether it means a practical separation from the business operations of the Pfeiler group, a resignation from unidentified directorships, a sale or surrender of, again unidentified, beneficial interests, or any combination of those alternatives. On any view, it is impossible to construe it as a surrender of Megan’s beneficial interest or that of their children. The term pleaded in [22] is elliptical but it is a necessary implication of the claimed consensus to seek tax advice from Mr Wilmot that the particular terms of the settlement agreement, such as which Red Earth 5 FDN 192. -- 14 of 39 -- [2026] SASC 81 Kourakis CJ 13 entities would be parties to the transactions, the source of the funds, the identity of Kym’s entities, and the tax treatment of the transactions would be agreed only after the advice was received. Unsurprisingly, the term pleaded does not express agreement to be bound by Mr Wilmot’s decision. On the contrary, it pleads that Mr Wilmot would advise them, which necessarily implies that either one or all of the parties might reject or accept that advice. The contemplated accountancy advice appears to allow for the adoption of other terms to address tax implications. 62 Paragraph [30] added what were referred to as ‘implementation steps’ to the agreement but they are additional terms of the claimed agreement: a. The Applicant agrees to resign as trustee, beneficiary, director and shareholder from the Group and all Group entities, in return for: i. A $375,00 per year payment from the Group to the Applicant for the following eight (8) years, to be paid at the beginning of each quarter (equating to $93,500.00 each quarter); ii. 200 megalitres of South Australian water entitlements, to be transferred to the Applicant or his nominated entity; iii. The Applicant (or entity within his control) retains ownership of the Date Farm property; iv. The Applicant (or entity within his control) retains ownership of his family home; v. The Applicant (or entity within his control) retains ownership of Group plant and equipment currently in his possession; vi. The Applicant retains control of the Kym Richard Pfeiler Trust; vii. All inter-entity loans to be forgiven and/or cleared between the Applicant’s Entities and Red Earth Group entities; and viii. Separation of the Applicant from the Red Earth Superannuation Trust Fund with Kym receiving his share of the fund, to include the Applicant receiving 25% of the water entitlements held therein. 63 The relief sought by the respondents further amended the terms of the settlement in [35]: a. A declaration that, on or about 3 August 2023, the parties reached an agreement by which the Red Earth Group entities would make payment and transfer assets to Kym Pfeiler, the Applicant, who would in turn release and remove himself from any and all interest in, or involvement with, the Red Earth Group entities and otherwise included the following terms: i. the Applicant would be paid $375,000 per year for 8 years paid at the beginning of each quarter ($93,500 each quarter); ii. the Applicant would be given 200ML of SA water entitlements; -- 15 of 39 -- [2026] SASC 81 Kourakis CJ 14 iii. the Applicant would retain the property referred to as the “date farm”; iv. the Applicant and his wife, Megan Pfeiler, would retain their current house; v. the Applicant would retain all plant and equipment he is currently in possession of; vi. all intercompany loans would be forgiven and/or cleared between the Applicant’s & Megan’s entities and the Red Earth Group entities; and vii. the Red Earth Superannuation Trust was to be separated. b. A declaration that, on or about 10 August 2023, the parties reached a further agreement by which, in addition to the terms listed at Order 26(a), the Applicant would receive an additional 62.6ML, by way of a transfer of 25% of the volume of the following water licences: i. Victorian Murray (below choke) Zone 7 – Entitlement Licence Number ABA08847 and allocation account number WEE0204497 – volume 125.9ML; and ii. Victorian Murray (below choke) Zone 7 – Entitlement Licence Number ABA08847 and allocation account. c. An order for specific performance by the Applicant and Respondents of the Settlement Agreement and implementation steps reach on or about 3 August 2023 and 10 August 2023. 64 In effect, it is pleaded that the cryptic expression ‘separate himself from the Group’, viewed objectively, meant that Kym agreed to ‘release and remove himself from any and all interest in, or involvement with, the Red Earth Group entities’. 65 During the course of the hearing, the parties invited me to determine first whether they had reached a contractually binding agreement to that effect. In their final submissions, the respondents, at my invitation, annexed a notional deed which drew the terms of the contract for which they contend (the notional deed). I attach that as an annexure to this judgment. Attempt at mediation by Mr Penno fails 66 After the failed formal mediation in June 2023, a family friend, Mr Ian Penno, took steps to help the family resolve their disputation. After his discussions, Mr Penno circulated a proposal, the terms of which included: • a series of payments by the Red Earth Group to Kym over a period of 12 years, totalling $4,200,000 and a weekly allowance of $1,500 per week for 12 months; • the transfer of 500 megalitres of water per annum from the Red Earth group entities to Kym for 15 years; -- 16 of 39 -- [2026] SASC 81 Kourakis CJ 15 • execution of all necessary documentation to ‘transfer his authority back to the Red Earth Group in relation to any of the family trusts, partnerships and companies in which he had an interest in the Red Earth Group’. It included a clause that Kym was ‘to sign all other documents inhibiting the normal operations and transactions of a family trust, partnerships and companies, transfer his authority on all of these’. The third term literally expresses the opposite of what was probably intended. I take it to be a reference to the Court orders which had been made by consent prohibiting the respondents from engaging in transactions other than within the ordinary course of business, and below a specified limit, unless notice was given. The intent of the clause was more probably that Kym would give instructions to his solicitors to apply to revoke those orders or, at least, would consent to an application for revocation by the respondents. 67 The dispute did not resolve on those terms. Nonetheless, they serve to illustrate, first, that only the use of water for 15 years was then on offer and not a permanent transfer of water entitlements. Secondly, it was the surrender of Kym’s ‘authority’ in the Pfeiler entities which was then sought. 68 After speaking again to the members of the Pfeiler family, Mr Penno circulated another draft. The terms were: 1. Payment by the Red Earth group to Kym of $500,000 per year for eight years. 2. The Red Earth group to grant Kym permission to use up to 500 megalitres of water each year for 15 years. 3. Execution by Kym of all documents necessary to transfer his authority back to the Red Earth group in relation to any of the family trusts, partnerships and companies in which he had an interest. No agreement was reached on those draft terms. Meeting on 2 August 2023 69 After Mr Penno’s efforts, Lynette’s brother, John Warner, remained in communication with Kym and Richard. They spoke on 2 August 2023, as a result of which Kym contacted Richard and arranged a meeting at the office of the Red Earth group at 7:00 pm on that day. 70 In his affidavit filed on 20 February 2024 (FDN 46), Richard deposed that he, Lynette, and Stephen and his wife, met with Kym on the evening of 2 August 2023. He deposed that all parties agreed that, for the sake of the family, every effort should be made to resolve the current legal proceedings and to resolve their dispute by Kym moving away from the family farming operation to run his farm independently. He deposed that the meeting involved ‘a measure of family -- 17 of 39 -- [2026] SASC 81 Kourakis CJ 16 tension’ but was conducted without any rancour or unpleasantness. It was agreed that Kym would ‘extract himself from all Group entities’ but that the group would provide ‘ongoing financial support and assistance for an extended period of time and the parties would resolve all issues between them’. Richard deposed that Kym stated that he: • ‘wants this to end’; and • ‘a deal has to be made tonight’. 71 Lynette largely supported Richard’s account. 72 Kym deposed to the circumstances of the meeting in his affidavit of 4 November 2025. He received an unexpected phone call from John Warner the day before. Mr Warner asked him what he would require for settlement. Kym replied that an acceptable outcome would include the transfer of the Berri property to him together with water entitlements registered in his name and a cash payment between $4 million and $5 million, representing the accumulated earnings of KP Corporate Beneficiaries. 73 Later that day, Mr Warner called and told him that the Berri property was ‘off the table’. The counterproposal from the respondents was $200,000 over eight years with no water allocation. Kym said that he would not accept those terms. 74 Kym phoned Mr Warner the following morning and suggested a meeting with Richard in the hope that he might reach peace with the family. Mr Warner later informed him that the meeting could take place at 7:00 pm at the office at Ramco on the Home Block. At that stage, Kym expected only to meet with Richard. He did not expect Lynette and Stephen to be there. 75 In his earlier affidavit of 9 August 2024, Kym deposed that when he went into the room, he was greeted only by silence. He sat at an oval table. Richard was on his left, about a foot away. Lynette sat opposite him and Stephen was to his right. Richard then proceeded to read belittling and humiliating remarks from a document. Both Richard and Stephen shouted at him. Refreshing his memory from notes he made about six weeks after the meeting, Kym deposed that Richard said: • ‘You fuck everything up’; • ‘You committed fraud with NSW water’; • ‘The place would be worth more if you weren’t here’; • ‘You plated the wrong grape variety’; • ‘It’s all mine and Lynette’s, you own nothing’; -- 18 of 39 -- [2026] SASC 81 Kourakis CJ 17 • ‘The water is mine and Gary’s’; • ‘You over the top spend too much money’; • ‘You should plant pumpkins and not lease’; • ‘You’re not as smart as you think you are’. 76 Kym deposed that he was sitting at the table whilst Richard was standing over him. 77 When Kym spoke, he said that he wanted the Berri property. Stephen responded by pounding the table with his clenched fists and asked, ‘What if I want Berri’. I find Kym’s account of that exchange persuasive. Kym had exchanged texts with Richard about Berri. Just the day before, Kym had made a request through Mr Warner for ‘Berri’ and the quick response was that it was ‘off the table’. 78 Kym then made the point that his mother had once said he could have Berri. Lynette responded by criticising him for daring to ‘bring up cash’, which was a reference to Kym deposing that Richard had engaged in cash dealings in an affidavit on which Kym had relied on an earlier application. Kym deposed that he remained calm through the meeting and did not engage in any abuse. The meeting lasted for about 15 to 20 minutes. 79 It was put to Kym in cross-examination that Stephen did not say much, and that he sat there and let his father do the talking. Kym answered that Stephen did butt in at times on various topics. He agreed that Lynette rarely spoke. It was not specifically put to Kym that Stephen did not become angry at the suggestion that he might keep Berri. 80 According to Richard, Kym then offered to resolve the dispute on the basis that Richard and Lynette would agree ‘that the Group would pay him $500,000 over the next eight years’. I note that that was the same term in the last proposal circulated by Mr Penno. Richard deposed that he responded with a counteroffer that the group would ‘be prepared to pay $250,000 over the same period’. Richard put to Kym that on his calculations, the offer was more than enough for Kym to set up and run his own independent farm. According to Richard, Kym then offered to ‘meet in the middle’, meaning that Red Earth group would pay him $375,000 annually over a period of eight years. 81 In cross-examination, Kym agreed that he and his father agreed to ‘meet in the middle’ of their respective offers of $500,000 and $250,000 payment per annum and agreed at an annual payment of $375,000 each year for a period of eight years.6 However, Kym added that that was subject to working out the tax implications. It was put to Kym that he was relying on the group accountant so 6 T270-271. -- 19 of 39 -- [2026] SASC 81 Kourakis CJ 18 that the money was tax free to him. Kym replied that he was relying on the group accountant and his solicitors. 82 Richard deposed that Kym then asked for secure water to run his farm. According to Richard, the respondents first declined to agree to a transfer of water rights. That accords with their position communicated through Mr Warner the day before. Kym insisted on the provision of 200 megalitres annually. Richard deposed that he, Lynette, and Stephen relented and agreed to assign 200 megalitres of water rights ‘to make Kym’s farming operation viable’. 83 Kym deposed in his affidavit of 4 November 2025 that the date farm presently needed around 200 megalitres of water to survive, but that it would need 3,000 megalitres of water by 2040. He deposed that no consensus was reached on the transfer of a quantity of water. He deposed that when water was raised, Richard stood up and leaned over Kym and yelled straight into his ear that he had committed fraud with the water. 84 It was put to Kym in cross-examination that an agreement was reached that an entitlement to 200 megalitres of water would be transferred to him. Kym responded:7 There was no discussion about changing water licence or signing over, Richard initially would give me no water, and he instructed that I had to use my super water. I advised to my – best of my knowledge that you could not use super water. There was some argument about that, and there was no agreement – there was no discussion at all about changing any licences. It was only discussion about a figure, and Richard said he will let me know – he would have to have a discussion with the other two parties about the water. 85 Kym also testified that he had told Mr Wilmot that Richard had spoken only of allowing him the use of water and that nothing was said about how that would be done.8 86 Kym’s account that Richard did not move beyond an incipient reluctant acceptance that Kym should be allowed some water is more probable having regard to Richard’s preceding position. 87 Richard deposed that there was then a discussion about Kym’s superannuation fund which included both a cash and a water component. The total value was approximately $1,000,000. It was agreed that Kym would keep his superannuation entitlements. Kym accepted that was what was said but reiterated that he understood that to be his statutory right. 88 Richard testified that the transfer of the date farm, the equipment Kym used on the farm, and Kym’s residence were all discussed at the meeting:9 7 T272.7-16. 8 T278-279. 9 T1065-1066. -- 20 of 39 -- [2026] SASC 81 Kourakis CJ 19 Q. In your evidence to his Honour, you have not suggested Kym said at the meeting that he was transferring anything, that’s right. A. Well, he said he was getting out of everything, and we said that he would keep – well, you know what I’ve said, he keeps his house, his date farm and the equipment that he had onsite and his – what he was entitled to with his super. Q. Was there anything else discussed during the course of the meeting. A. Yeah, I said ‘And we’ll forget about everything that’s owed between us, and we’ll just walk away from everything’. And Kym agreed to that. Q. I suggest to you that Kym did not say ‘We’ll forget about everything that’s owed and just walk away from everything’. A. Well, we went through things first. Q. Kym never used those words or any words like them did he. A. Like them. I don’t think that’s exactly what he said, but in that - yeah, it’s very, very similar to that. Q. Yes, all right. And what happened after that. A. I think I didn’t ask any more. Kym just said then that ‘I want to keep my house and house block, I want to keep my date farm, and I want to keep all the everything that I’ve taken from the farm since I left’. Q. Yes. And was there any response to that from anybody in the room. A. Yeah, I said ‘Yeah, well’ – I suppose we took that as a given, that he’d never give anything back. And we were satisfied, looked at the others, they nodded and they said ‘Yeah, that’s all right’. 89 Kym accepted that there was agreement on forgiving debts between the entities. However, he denied any conversation about his residence or equipment. He testified that there was no agreement on the transfer of the date farm, but accepted that Richard did refer to it as being Kym’s. 90 In his affidavit of 19 February 2024, Richard did not depose to any discussion about Kym resigning his directorships or assigning or surrendering his beneficial interest in any of the Pfeiler group trusts. Kym maintained that those matters were not mentioned. Interestingly, Richard testified that the agreement they struck guaranteed Kym future distributions because a trust distribution was the likely mechanism for the agreed payments.10 He agreed that ‘resignations, releases, tax, security’ were not spelt out in the meeting, explaining that they ‘would have been there all night if we started nitpicking’.11 10 T935-936. 11 T1083. -- 21 of 39 -- [2026] SASC 81 Kourakis CJ 20 91 It was put to Richard in cross-examination that Kym did not say words to the effect that he agreed to give up any company rights. Richard answered:12 No. When – well, you’re sort of not going along the lines the way the meeting went, but after we’d agreed on the money and the water and the super and he said that he wanted his house, his date farm and all the equipment that he had taken from us, he wanted all that and I said to him ‘Well, if you get all that are you prepared to walk away from everything’ and he said ‘Yes, I am’ and I was pretty happy with that. The expression ‘walk away from everything’ is radically uncertain and, in the context of complex trust arrangements, legally meaningless. 92 Richard deposed: … we then all agreed that in order to implement this settlement, our common accountant, Malcolm Wilmot of Roy Spagnolo and Associates, would be approached to consider if the agreement was commercially viable and to identify the best way of implementing it from a tax perspective for both parties. 93 Objectively viewed, the consensus to obtain professional advice on whether the agreement was ‘commercially viable’ and to ‘identify the best way of implementing it’ carries with it the necessary implication that the parties had reserved the right to consider that advice before legally binding themselves to any measures. 94 Kym testified that there was no discussion at the meeting about the details of the taxation treatment of the payments which were to be made to him. The agreement was subject to advice on taxation. Kym testified:13 It wasn’t acceptance on my behalf, because I had no idea what the tax implications would have been on my personal level for that, so I cannot accept that ... 95 Richard’s position was that ‘the essential terms of a settlement’ were agreed on that evening. Richard said the meeting concluded in the following way:14 A. At the end I said ‘Well’, I said ‘You know, Kym, we’ll have to get someone to fix all this up’, so I said ‘How about I ring Malcolm and he gets everything started, and say that it can be all written down as recorded as we’ve agreed today’. And he sort of never said anything. And then I said ‘And it’ll probably have to be made legal’, so I said ‘Why don’t we get Kenneth’, because Malcolm works with Kenneth Stanton, and we used him at the winery, so I said ‘Why don’t we get Kenneth to – get Malcolm to contact Kenneth and get the legal – done legally – what has to be signed legally’. And Kym said ‘Yeah, that’s all right’. So we did that. And I said ‘Well, I’ll ring Malcolm in the morning and tell him what we’ve agreed, and he can get started and put something down’. And I said ‘And if he can do all that, I’ll send you a message tomorrow. If he’s happy, he can get it all done’. And that’s where we 12 T1060.1-8. 13 T276.15-17. 14 T875-876; 878; 1073. -- 22 of 39 -- [2026] SASC 81 Kourakis CJ 21 left it, and we all just stood up. I must admit we were very, very relieved that it was done. … Q. And you said ‘make sure that everything done quickly’ what was the next step in the process. A. Well he had to ring Ken at Stanton and get the – and give him the instructions of how it all had to be drawn up. … Q. You’re suggesting Ken Stanton because you knew there were tax issues to be worked out that would require a lawyer as well. A. No, no. Ken had to do an agreement because you need a lawyer to draw up an agreement and Malcolm couldn’t do that. 96 Richard’s recognition that the agreement was either too complex for the group accountant or that a lawyer’s skill was needed to draw all the terms contraindicates a conclusion that a binding agreement had been reached. Kym deposed that the meeting concluded with Richard saying that he would speak to Mr Wilmot and Lynette and Stephen privately about matters that had been discussed. Richard was unwilling to make any commitment with respect to water. 97 The meeting ended abruptly after about 15 to 20 minutes when Richard stood up and said that there was nothing more to talk about. He left without shaking hands. 98 Kym deposed that there was no discussion of his resignation as a director or ending future distributions or any complete settlement. He deposed that he never intended to be bound. It was his view that the issues that needed to be worked through included: • security of payment; • what would happen to the money retained in his corporate beneficiary; • succession arrangement and future access to assets; • the amount of water that he would receive; • how he would access profits from the group moving forward; and • taxation implications. -- 23 of 39 -- [2026] SASC 81 Kourakis CJ 22 Subsequent communications 99 On the next day, Richard sent Mr Wilmot a text which read: We met with Kym last night. We reached an agreement that we pay him $375k each year for eight years and give him 200 megalitres of water. He is willing to pay the tax on the $375k because he won’t have much income and lots of expenses. When you have time please call and we can get your opinion if that tax situation is ok. Thanks for your help to get us this far. Please don’t mention anything of this to DSA at this time. 100 I mention here that DSA Law were the respondents’ instructing solicitors in the proceedings. It is not at all clear why Richard wanted it to be kept confidential from them. I observe that, despite the third sentence of the text, Richard did not depose to any discussion on the evening of 2 August, to the effect that Kym would assume the tax liability on that payment. I also observe that Richard did not identify the water entitlement that would be ‘given’. The term formulated as to the tax payment and its treatment in the notional deed reads: that the respondents will cause the Pfeiler Group to, and will take all necessary steps to ensure that, the following payments and transactions are made: a. a cash payment to the applicant of $375,000 (after tax, if any, per annum for (8) years from the date of this Deed). That term is inconsistent with Richard’s text to Mr Wilmot on the very next day in which he said that it should be a deduction for the paying Red Earth entity and Kym could carry any tax burden on the payment because in the establishment phase he would incur losses. 101 Richard deposed that he spoke to Mr Wilmot shortly after sending the text and was told that ‘the terms were achievable and that he could structure the arrangement in such a way that both parties would likely derive a tax benefit’. Putting aside the lawyer’s gloss, Richard testified, in his own vernacular, that he told Mr Wilmot that:15 … it would be nice if we had a tax deduction and – because Kym could claim all that and that’s what we’d already had discussions with Malcolm and he said ‘That should be all right’ … That advice, of course, fell short of an opinion on the tax liability of the entities concerned and the precise tax treatment of the payments. It was certainly not an opinion that it could be agreed that the payment of $375,000 could be made to Kym or his entities free of tax. 102 Nonetheless, after that phone call, Richard sent Kym a text which read: I have spoken with Malcolm He is confident he can work the tax so it is in his words it is a win win for both parties. We therefore will accept your proposal and have told Malcolm 15 T877. -- 24 of 39 -- [2026] SASC 81 Kourakis CJ 23 of our decision I suggest we get Kenneth Stanton to do the agreement because he works very closely with Malcolm Best to speak to Malcolm if you have queries. (Underlining added) About 10 minutes later, Kym responded ‘OK’. 103 Kym deposed that he understood from Richard’s text that Richard had spoken with Mr Wilmot, and that Mr Wilmot and Mr Stanton would work through the tax implications of the payments discussed the night before, but he did not know ‘how’, or ‘what would happen’. His response was no more than an acknowledgement that further work was being done. I accept Kym’s evidence. It was reasonable for him to understand it in that way when no particular taxation treatment or opinion of the incidence of taxation was set out in the text. 104 Again, it is trite to observe that the concept of a ‘win win’ is subjective and may depend very much on the perspective of each party. Indeed, the underlined words of Richard’s text proceed on the premise that the respondents were not bound to the points of consensus reached at the meeting unless they were satisfied that the proposed transaction would be ‘a win’ for them. That view is consistent with Stephen’s view expressed in his affidavit of 21 August 2023 that the agreement on ‘several key terms’ was ‘subject to advice from Malcolm’.16 105 Kym sent a text to Mr Wilmot on 3 August. He asked Mr Wilmot to call him to confirm that everyone was on the same page, mainly as to capital gains tax as there had been no discussion about it and security over payments. 106 On 6 August, Kym sent a text to Richard asking if he would ‘do an extra 62 megs of Vic water’: Will you do an extra 62 megs of vic water. So 200 sa plus the 62 vic which is a ¼ share of the vic licence in four names. It then gives me a carry over tool. I carnt use the super water as the payments has to go into the super fund. That suggests that, after the meeting on 2 August, there remained some uncertainty as to whether their consensus was in respect of the superannuation fund water or water additional to it. 107 On 7 August, Kym wrote to Mr Wilmot asking: Are you doing a basic heads of agreement as I assume the main document will take a while. We have a court hearing on 22 August so I assume we should have something in writing before then. 108 He again sent a text on 8 August asking Mr Wilmot to call him. He complained that his lawyers were onto him about heads of agreement and that he 16 FDN 19. -- 25 of 39 -- [2026] SASC 81 Kourakis CJ 24 was worried that Richard might not follow through with the offer which would leave him in a desperate position.17 109 On 8 August, Kym followed up by sending an email to Mr Wilmot.18 The subject of the email was ‘Heads of Agreement’. It read, but with my numbering of the dot points: A few basic details to make it a bit easier if it helps. (1) $375,000 per year for (8) years paid at the beginning of each quarter ($93,500 each quarter) (2) 200 megalitres of SA Water. (3) Retain Date Farm property. (4) Retain Kym and Megan’s house. (5) Retain all plant and equipment I’m currently in possession of. (6) Full control of the Kym Richard Pfeiler Trust, Red Earth responsible for any tax liability of the corporate beneficiary until 30 June 2023. (7) All intercompany loans forgiven. (8) Mutual agreement by both parties over security of payment. (9) Separation of super fund including 25 per cent of water licence. 110 Kym testified that the details he listed in his email were matters which, in his view, needed to be addressed. They were not intended to be a list of the matters on which consensus was reached. 111 As we have seen, Kym accepted that there was consensus that all loans between the entities would be written off including the loan in relation to the date farm. 112 Kym testified that his reference to 200 megalitres of SA water in his email to Mr Wilmot was in respect of the use of that water, which was all that Richard had agreed. 113 Kym testified that despite his inclusion of the condition that he retain all plant and equipment in his current possession in the email to Mr Wilmot, there was no discussion about that condition at the meeting. It was put to him that the condition in his email to Mr Wilmot ‘full control of the Kym Richard Pfeiler Trust’ was an expression of his understanding of what the cancelling out of the loans between the parties would be. Kym answered:19 17 Affidavit of Richard Charles Pfeiler dated 20 February 2024 (FDN 46) at [106]-[107]. 18 Tender Book (FDN 165), Tab 175. 19 T287.12-16. -- 26 of 39 -- [2026] SASC 81 Kourakis CJ 25 No, my understanding was that I just wanted to keep control of my trust and I wouldn’t have any loans, ongoing loans and that would have to be referred to my solicitors or accountants to sort that one out. That’s beyond me. 114 Kym said that he sought security in the email to Mr Wilmot because ‘after that meeting my trust in my family diminished to zero’. He wanted security for the quarterly payments. There was no discussion about security at the meeting. 115 On 3 August 2023 at 6:30 pm, Kym also sent an email to Mr Wilmot attaching details and certificates of water entitlements. He wrote that he wished to retain 200 megalitres of either SA or NSW water (subject to the easiest one). However, he stated that he preferred SA water if possible. He also expressed his concern about being paid long term. He said he would like to tie something to the water if possible. He suggested that perhaps he should not be removed from water licences held by his family until he was fully paid. 116 Kym accepted in cross-examination that he told Mr Wilmot was told that he and Richard had agreed on the use of 200 megalitres of water but told him that they still needed to work out how that would be done. 117 In particular, Kym testified:20 There was no discussion about transferring it into my name. We had a discussion about ownership of water, as I’d stated to Malcolm that Richard thinks he owns all the water, which I commented I wasn’t happy about that concept, and what his thoughts were on ownership. Mr Wilmot asked for the water certificates to be sent so that he could consider the ownership question. 118 It will be noticed that Kym did not make any reference in the email to removing himself or surrendering any beneficial interests in the Red Earth entities. 119 On 9 August 2023, Mr Wilmot sent Richard, Lynette, and Stephen an email. He compiled a list of terms which he had received from Richard and Kym and understood had been agreed. It included all of the headings in Kym’s email other than the reference to mutual agreement over security of payment. It is not clear how or when any terms were provided by Richard. 120 Mr Wilmot then gave advice about the tax treatment of the payment to the effect that a dividend franked at 30 percent would be paid by KP Corporate Beneficiaries through Kym’s trust to an entity nominated by Kym and Megan: In terms of the payment from point 1 this has been agreed to be paid as a dividend each year from KP Beneficiary Corp Pty Ltd via the Kym Richard Pfeiler Trust as a trust distribution to a trust entity nominated by Kym (and Megan). The dividends will tax paid/fully franked to 30 per cent and as will the trust distributions to the trust entity nominated by Kym (and Megan). Kym and Megan will be responsible for any tax liability 20 T279.3-7. -- 27 of 39 -- [2026] SASC 81 Kourakis CJ 26 on these distributions above the 30 per cent franked/ tax paid amount included in the distribution. Red Earth Group will be responsible for the tax and liabilities for all entities in their Group. Mr Wilmot did not mention in his email Kym’s insistence that Red Earth would be responsible for any tax liability of KP Corporate Beneficiaries until 30 June 2023. 121 Mr Wilmot’s letter to DSA Law on 4 March 2024 allows Mr Wilmot’s advice to be better understood. He explained that the Kym Richard Pfeiler Trust for the financial year ending 2022 received its primary income as follows: • One-third of profit from the Elrimal Partnership Trust; • One-third of profit from the Sunview Orchard Trust; • Dividends from KP Corporate Beneficiaries; • Dividends from Red Earth Riverland Holdings Pty Ltd; • A small amount of bank interest. 122 Mr Wilmot also explained that because the funds distributed to the Kym Richard Pfeiler Trust were being utilised by the Red Earth business, it was decided that Kym and his family should not be personally responsible for any of the taxation consequences of those historical loans. Accordingly, dividends required for those historical loans were distributed to Richard and Stephen’s trust so that they could deal with the taxation consequences. On the other hand, new income in the form of profits from Elrimal and Sunview were distributed to KP Corporate Beneficiaries as had been done historically. 123 There is no evidence that Kym and Richard intended that the payments would be by way of dividend from KP Corporate Beneficiaries, nor any evidence that there was an agreement on the payee of the funds and their source. I observe that the arrangement seems to contemplate KP Corporate Beneficiaries continuing to be a beneficiary of other Pfeiler group entities and/or those other entities remaining indebted to it. Such an arrangement is inconsistent with one, or two, of the terms which the respondents contend were agreed on 2 August. 124 Kym testified that in his discussion with Mr Wilmot on that day, the figure of $375,000 was discussed and how it might potentially be paid to him, but that there was no finality. He was trying to understand the structure that Mr Wilmot was talking about. -- 28 of 39 -- [2026] SASC 81 Kourakis CJ 27 125 The following was then put to Kym:21 Q. And in fact it’s the case, isn’t it, that he confirmed to you that that 375,000 a year could be got to you each year in a tax-free way by using the loan account in your K.P. Corporate Beneficiary company. That’s right, isn’t it. A. Yes, he suggested I would have to use my – what I later learnt was my own money, but I still would have to pay top-up tax on any money that I used for myself, which I wasn’t – obviously is not tax-free in my view, your Honour. In particular, Kym was of the view that he would ‘still have to pay tax on - on that top-up tax when I withdrew for my personal living’.22 126 It can be accepted that at the establishment stage of the date farm it is unlikely that Kym would have any additional tax to pay. But the payments were to continue for a period of eight years. There can be no certainty about what Kym’s tax liability might have been in the later years. In any event, that is not the relevant question in deciding whether a binding contract had been made. The relevant question is, was there certainty on the term as to taxation. Following the agreement, Richard’s position was that Kym would pay the tax. Kym’s position was that he would receive a tax-free amount. More fundamentally, the reasonable bystander would be bound to conclude that the referral to Mr Wilmot for tax advice made each party’s satisfaction with that advice a condition precedent to any legally binding agreement. Richard’s text to Kym on 3 August shows that that is the understanding he proceeded on. 127 In respect of the entitlement to water, the position was even less clear. Mr Wilmot advised: 1. In terms of point 2, we will just need to look at what, if any, water is held in individual names as opposed to being held in trust – to see about what water is best past over to Kym for tax purposes vs water that needs to be signed over to the Red Earth Group and what tax implications there are (if any). 128 The terms of the notional deed, drawn by the respondent’s solicitors, and which they contend embody the agreement made on 22 August, do no more than impose an obligation on the respondents to cause the Pfeiler groups to take all necessary steps to transfer the water entitlement to the applicant but make no reference to which party was responsible for any tax which might be incurred. 129 Mr Wilmot’s letter then addressed the question of security raised by Kym. It reads: The only other point that Kym has raised is some mutual agreement by both parties over security of payments. There may be an option to declare the full dividend of $3,000,000 (8 years time – $375kpa) now – which may help this and have some further tax 21 T278.1-10. 22 T278.27-29. -- 29 of 39 -- [2026] SASC 81 Kourakis CJ 28 advantages/certainty for both parties – but this would need to be discussed and agreed with Red Earth/Kym’s legal representatives as to whether it is a suitable option? Interestingly, Mr Wilmot there is addressing the possible risk that the Red Earth Group might change its mind and not make a payment, which risk is significant. The clause of the notional deed is limited to the respondents causing an entity within the Pfeiler group to make the payments and to take all reasonable and necessary steps to do so. 130 Mr Wilmot sent a copy of his letter to Richard, Lynette, and Stephen to Kym on 9 August 2023. 131 On 18 August, Richard sent Mr Wilmot a text asking him if he would call Kym to tell Kym that they would ‘agree to the extra 62 megs of water if that gets the deal done’. He ended with the words ‘We have now agreed to this’. 132 On 4 September 2023, DSA Law wrote to Kelly Morgan, the solicitors for Kym, setting out the respondents’ account of the meeting of 2 August 2023 and subsequent matters. They contended that ‘an agreement has been reached resolving the dispute within the family’. They annexed a document headed ‘Final Terms’ which DSA Law said contained ‘the core elements’ of the agreement. They anticipated providing a copy of a deed of settlement shortly. 133 The final terms annexure set out the following terms: 1. $375,000 to be paid to Kym per year for a period of eight years to be paid at the beginning of each quarter (equating to $93,500 each quarter) as follows: (a) as a dividend each year from KP Beneficiary Corp Pty Ltd via the Kym Richard Pfeiler Trust as a trust distribution to a trust entity nominated by Kym (and Megan) which was understood to be fully franked to 30 percent; (b) Kym and Megan will be responsible for any tax liability on these distributions about the 30 percent tax paid; and (c) Red Earth group will be responsible for the tax liabilities in their group. 2. $200 ML of South Australia water to be transferred to Kym or his nominated entity. 3. Kym to retain the date farm property. 4. Kym and Megan to retain their personal place of residence. 5. Kym to retain all plant and equipment that he is currently in possession of. -- 30 of 39 -- [2026] SASC 81 Kourakis CJ 29 6. All intercompany loans to be forgiven and/or cleared between both Kym and Megan and their respective entities and the Red Earth group entities. 7. The Super Fund was to be separated and, along with the monies he was due to retain, Kym was to receive 25 percent of the Victorian water licence held on its behalf. 8. All parties would sign any documents required to make the necessary changes to ASIC records of the relevant entities in the group. 134 I observe that clause 1 of the final terms, which reflects Mr Wilmot’s advice, must assume that KP Beneficiary Corp remained a beneficiary of the Red Earth Trust. Furthermore, the terms do not envisage any change to the status of Kym, Richard, and their family members as beneficiaries. 135 On 7 September 2023, Kelly Morgan responded denying that any binding agreement had been reached on 2 August 2023. They alleged that it was not conducted in a businesslike manner. They alleged that Kym was bullied, ridiculed, belittled, and coerced. They contended that, at best, the outcome was in-principle only and for further exploration. It made the point that the final terms attached to the Stanton & Stanton letter did not: (a) deal with past remuneration of our client; (b) provide indemnities including for action by the Australian Taxation Office: (c) address our client’s interests within the numerous trusts; (d) address beneficiary loan accounts; and (e) address the legal interests in water licences. Findings as to 2 August 2023 136 I find that the meeting was conducted in an atmosphere of resentment and hostility. I generally prefer the evidence of Kym over the evidence of Richard and Lynette. Kym gave his evidence in a thoughtful manner. He engaged with the questions. 137 Richard on the other hand was more dogmatic and combative in his testimony, although not greatly so. Lynette supported Richard’s evidence on the atmospherics of the meeting. I cannot attach much weight to their combined evidence because of their shared interest in the litigation and because of Richard’s dominant role in the family dynamics. 138 Even though I found Kym to be a credible witness, I do not accept his reliability unreservedly. In evaluating the narratives of both Richard and Kym, I have relied on such independent evidence as is available. -- 31 of 39 -- [2026] SASC 81 Kourakis CJ 30 139 I find that Kym was not received warmly by any of Richard, Lynette, or Stephen. I accept Kym’s evidence that it commenced with Richard reading a list of criticisms of Kym’s conduct from a pre-prepared list. 140 Kym’s account of how Richard commenced the meeting has the ring of truth about it. It is consistent with what I have gleaned from Richard’s demeanour, from the past history of their relationship, and the tone of Richard’s text messages. On his own evidence, he is a patriarchal figure, whose natural inclination is to assume control of family business affairs. His summary directive to Kym to resign from the board of the winery is an example. 141 On my assessment of Kym’s character, I think it improbable that he would invent the detailed litany of abuse to which he was subjected. On the other hand, it is not surprising that Richard would, in his own mind, minimise, to the point of denying, the extent of his hostility at the commencement of the meeting, especially when it ultimately resulted in a degree of consensus on the way forward. 142 Having said that, the atmosphere is only a contextual matter. The hostility was not such to lead to any contractually significant coercion. Its importance is to set the scene in which circumstances which may manifest any intention to conclude a legally binding contract, or not, can be assessed. 143 I will refer to the points of discussion on which there was common ground neutrally as a consensus before reaching a conclusion on whether a contractually binding agreement was reached. 144 I find that the subject matter of the discussion was to resolve the legal proceedings and the family disputation, by the Red Earth entities providing sufficient support to Kym, or his entities, to establish the date farm, and to support him financially until it was fully productive. That finding is consistent with the purchase of the property for the date farm some years earlier, the texts sent to Richard by Kym in the early part of 2023, and the exchanges of offers before the meeting. 145 More specifically, the only meaning I can attribute to the expression ‘walk away’ is that it meant that Kym would no longer be involved in the management of the Red Earth entities, or work on their farms. It was that proximity and working relationship which was the source of conflict. The idea was that he would instead devote himself to the establishment of the date farm. I also find that the expression meant walking away from the legal proceedings in the sense of compromising and/or terminating them. It is impossible to, objectively, give it any precise legal meaning. 146 I find that there was consensus on the payment of $375,000 annually for a period of eight years to support Kym financially during the period that the date farm was established. Both Kym and Richard gave evidence to that effect. -- 32 of 39 -- [2026] SASC 81 Kourakis CJ 31 147 The consensus on the payments could not have been reached, and would have made no sense, other than on the premise, tacit or explicit, that the legal and beneficial interest in the date farm would be transferred to Kym. Richard deposed expressly to that effect. Kym accepted that Richard referred to the date farm being Kym’s. 148 I am also satisfied that a consensus was reached on the forgiving of any inter-entity loan. Certainly, it was contemplated, as Kym accepted, that the loans made for the purchase of the date farm property were to be forgiven. Similarly, given the agreed financial assistance package to Kym, it is unlikely that it was contemplated that historical loans to Kym’s entities for the purposes of the Red Earth entities would remain owing in addition to that financial package. Moreover, Kym himself included the mutual forgiving of loans in the email/text he sent Mr Wilmot. 149 I am not able to find whether or not there was discussion about what equipment or the particular equipment that Kym would take to develop the date farm. Kym had asked for all of the equipment in his possession in his text of 28 April 2023, in addition to the Kenworth, Lusty low loader, and blue spreader. Richard said that they agreed to allow him to take all the equipment in his possession. However, given the hostility and the threats of legal proceedings if Kym were to take any equipment or venture onto the Red Earth property, I am not satisfied that the equipment Kym could take was discussed. I also find it improbable that the discussion descended to that level of detail. Richard’s evidence that it was, may well be a reconstructed memory prompted by Kym’s email to Mr Wilmot on 8 August which mentioned retaining plant and equipment in his possession and no other property, so that may have been the extent of the discussion. I, therefore, do not find that consensus was reached on the assignment of any farm equipment or machinery to Kym or his entity. 150 I accept Kym’s evidence that his email to Mr Wilmot was intended as a list of issues which needed to be addressed. The meeting was, on all accounts, tense and, at times, hostile. No notes were taken. 151 I find that Richard agreed to allow Kym to the use of 200 megalitres of water. I am not satisfied that he agreed to the permanent transfer of any water entitlement. I found Kym’s evidence that Richard only offered the use of the water on 2 August persuasive. I also accept that there was an unresolved debate on the evening about whether Kym could use the water entitlement in his superannuation fund. Kym made that point in his text to Richard on 6 August. I also found his evidence about the discussion with Mr Wilmot about that being a point of difference between Kym and his father persuasive. On any account, there was no consensus on which particular licences or water entitlements would be transferred to Kym. 152 I find that there was no consensus on Kym resigning his beneficial interest. Although an agreement to that effect was pleaded by the respondents, it did not feature in the declaration they sought. The declared contract was that Kym would -- 33 of 39 -- [2026] SASC 81 Kourakis CJ 32 ‘remove himself from any and all interest in, or involvement with, the Red Earth Group entities’. 153 Richard did not testify that Kym actually said that he would surrender his beneficial interest in the Pfeiler group trusts. Kym testified that he did not. Richard only spoke of Kym walking away. That expression and the phrase ‘remove himself from any and all interest in’ are ambiguous. It might extend to the surrendering of beneficial interest, but it might simply mean removing himself from the management of the business and the trusts by resigning as a director. The two alternatives are substantially different. There can be no contract unless there was consensus, objectively viewed, on the meaning. 154 Clause 2.2 of the notional deed is vaguer still. It speaks of Kym taking ‘all necessary steps … to separate himself from the non date farm Pfeiler group entities’. 155 It is common ground that there was no consensus on the precise mechanism by which the cash payment would be made. Both Richard and Kym testified that it was decided to obtain advice from Mr Wilmot about which course or mechanism he would recommend. Objectively viewed, it cannot be accepted that Kym and Richard agreed to be bound by any taxation treatment which Mr Wilmot recommended. Mr Wilmot certainly eschewed any such determinative role. The most which can be found is that there was a consensus that each party would consider Mr Wilmot’s recommendation in good faith as the mechanism by which the payments on which they had reached consensus might be given effect. 156 Moreover, there is a difficulty in reconciling the mechanism recommended by Mr Wilmot and the other terms of the agreement. If the terms extended to Kym giving up his beneficial interest, then the payment could not have been made by a distribution to KP Corporate Beneficiaries and/or the associated trust. Alternatively, if Mr Wilmot’s recommendation was that a dividend would be paid to reduce the loan account from a Red Earth entity or entities to KP Corporate Beneficiary then the term that all inter-entity loans would be forgiven could not operate. Interestingly, the notional deed at cl 2.1(g) reads that the inter-entity loans would be forgiven or cleared. It is not obvious what distinction there might be between forgiving or clearing the loans. It may have been intended to allow for the reduction of a loan owed to KP Corporate Beneficiaries by the making of the annual cash payment. 157 In any event, no consensus was reached on the tax treatment of the payment. Mr Wilmot’s recommendation was a franked dividend with tax paid to 30 percent. Kym’s position was that he considered a favourable tax treatment to be that he would receive the amount tax free. That, too, reinforces my conclusion that there was no legally binding agreement reached on the mechanism, and tax liability, which would attach to the cash payment. -- 34 of 39 -- [2026] SASC 81 Kourakis CJ 33 158 More fundamentally, it is plain that there was no consensus on which the Red Earth group entity or entities would be parties to any legally binding agreement. Nor was there any consensus on which of Kym’s entities would be parties. Unless and until those entities resolved to be bound by that agreement, the objective bystander could not conclude that Richard, Lynette, Stephen, and Kym intended to be legally bound. Without a Red Earth group entity binding itself to transfer the date farm and make the payments, an objective observer could not conclude that Kym had bound himself to discontinue his action and surrender his shareholdings or directorships. 159 The notional deed goes no further than an obligation on the respondents to take all necessary steps to cause the relevant property and cash transfers to Kym. Nothing was said on 2 August to the effect that the respondents’ only commitment was to take reasonable steps and no agreement to that effect was made in any subsequent communications. The respondents did not, at any time after the meeting of 2 August, tender to Kym agreements with a Red Earth entity which had been procured by their reasonable endeavours. The identification of and the terms of commitment of the Red Earth entities which would make the payment and transfer the date farm is not a matter of mere mechanics. 160 In that respect, I observe that cl 6 of the notional deed is a particularly one-sided clause, where no Red Earth entity undertakes an obligation, but all of them are given the rights to enforce clauses 3, 3.2, and 5 as against Kym. It makes explicit that the Red Earth entities would not be bound. It is an inutile drafting exercise. 161 A Red Earth trustee entity would be bound to only agree to terms which were consistent with its fiduciary duties. Those terms may or may not have been acceptable to Kym. Moreover, the question of the identity of the entity may affect the level of assurance that the payments would be made over many years into the future. Kym was concerned that the obligation be properly secured. Viewed objectively, that was a commercially sound position. Although I am satisfied that no question of the security of payment was raised at the 2 August meeting, the point to be made is that the failure to address it contradicts to the objective observer that a concluded agreement was reached. 162 The objective observer could not conclude that Kym, Richard, Lynette, and Stephen intended to bind themselves to a contract in which Kym left it to the unfettered discretion of Richard and Lynette to select the Red Earth entity and determine the terms of its agreement and the interests he would surrender, and to Mr Wilmot to determine the taxation treatment. 163 In short, in the absence of a consensus on: • the particular Red Earth entities which would undertake the obligation to make the payment; -- 35 of 39 -- [2026] SASC 81 Kourakis CJ 34 • the mechanism and taxation treatment of those payments; • the transfer of water licences; • the assignment of farm equipment and machinery; • the security to ensure compliance given the history of disputation; and • any consequential changes on the shareholding of the corporate trustees or the beneficial interests of Kym and his family, precludes, on an objective analysis, a finding that there was an intention to enter into a binding agreement on the terms alleged. The limited consensus which was reached fell into the third, non-binding, category of Masters v Cameron.23 164 No objective observer could conclude that Kym bound himself to discontinue the proceeding, and to give up his directorships, and even more so his beneficial interests, on no more than the respondents undertaking to use their best endeavours to have a Red Earth group entity transfer the date farm and make the payments. 165 There is one sense in which the identification of the obligations on Kym, Richard, Lynette, and Stephen to take all necessary steps is close to what may have been agreed at the 2 August meeting. If there were a legally binding agreement, it was to negotiate in good faith on the terms and conditions, which were to be professionally drawn, on expert taxation advice, which would give effect to the objectives on which consensus had been reached. Order 166 I dismiss the contentions made by the respondents in [21] and [30]24 and the prayer for relief. 167 I will hear the parties on the further hearing of the matter. 23 (1954) 91 CLR 353 at 360-361. 24 FDN 154. -- 36 of 39 -- [2026] SASC 81 Kourakis CJ 35 Annexure 1. Definitions and Interpretation 1.1 Definitions The following definitions apply unless the context requires otherwise. Applicant’s Entities means the following entities: (a) Date Farms Australia Trust (b) Date Farms Australia Holdings Pty Ltd (ACN 649 230 419) (c) Kym and Megan Pfeiler Trust (d) Kym Richard Pfeiler Trust (e) K.P. Corporate Beneficiary (ACN 126 247 701) Claim includes any claim or liability of any kind (including one which is prospective or contingent and one the amount of which is not ascertained) and costs (whether or not the subject of a court order). Dispute means any claim or allegations made by each of the partes in respect of the Proceedings. Non Date Farm Pfeiler Group Entities means the entities listed at Schedule 1 to this Deed. Related Body Corporate has the meaning given to related body corporate in the Corporations Act 2001 (Cth). Related Entity means, in relation to a party, any Related Body Corporate of the party and any past or present officer, employee or agent of the party or one of its Related Bodies Corporate (but does not include a party). 2. Payment and other obligations 2.1 Obligations of the Respondents The parties agree that the Respondents will cause the Pfeiler Group to, and will take all necessary steps to ensure that, the following payments and transactions are made: (a) A cash payment to the Applicant of $375,000.00 (after tax, if any) per annum for eight (8) years from the date of this Deed; (b) Cause the Applicant (or entity in his control) to retrain the Date Farm Property debt free and without any obligation to the Pfeiler Group; (c) Cause the Applicant (or entity in his control) to retain his family home debt free and without any obligation to the Pfeiler Group; (d) Transfer 200 megalitres of South Australian water entitlements to the Applicant; -- 37 of 39 -- [2026] SASC 81 Kourakis CJ 36 (e) Transfer 62 megalitres of Victorian water entitlements to the Applicant; (f) Transfer ownership of all plant and equipment owned by the Pfeiler Group that is in the possession of the Applicant at the date of this Deed, to the Applicant; (g) Forgive or clear all inter-entity loans between Pfeiler Group entities and entities owned and controlled by the Applicant; (h) Take all necessary steps for the Applicant to receive his share of the Red Earth Superannuation Trust Fund, including his share of the water entitlements held therein. 2.2 Obligations of the Applicant The parties agree that the Applicant will take all necessary steps to discontinue the Proceedings and separate himself from the Non Date Farm Pfeiler Group entities 2.3 Mutual Obligations Both the Applicant and Respondent agree to take all steps necessary to give effect to the obligations set out in clauses 2.1 and 2.2 above including signing all documents and taking all steps to remove themselves as directors or trustees (as the case may be), and transferring ownership of any shares or property (including water entitlements) in the Applicant’s Entities or the Non Date Farm Pfeiler Group entities, required to implement clauses 2.1 and 2.2. 2.4 No admission The entry into this Deed by each party to it is not an admission of liability by either party. 3. Release 3.1 Release by the Respondents The Respondents release the Applicant and each of the Applicant’s Related Entities from any Claim arising from or connect with: (a) the dispute’ (b) the Non Date Farm Pfeiler Group Entities and Applicant’s Entities; and (c) the circumstances or allegations giving rise to or referred to in the Dispute. 3.2 Release by the Applicant The Applicant releases the Respondents and each of the Respondents’ Related Entities from any Claim arising from or connected with: (a) the Dispute; (b) the Non Date Farm Pfeiler Group Entities and Applicant’s Entities; and (c) the circumstances or allegations giving rise to or referred to in the Dispute. -- 38 of 39 -- [2026] SASC 81 Kourakis CJ 37 4. Covenant not to Sue (a) The Respondents will not bring or pursue, or procure that a third part bring or pursue, a Claim against eh Applicant or any of the Applicant’s Related Entities in respect of any matter which is the subject of a release under clause 3. (b) The Applicant will not bring or pursue, or procure that a third party bring or pursue, a Claim against the Respondents or any of the Respondents’ Related Entities in respect of any matter which is the subject of a release under clause 3. 5. Security and Indemnity (a) The Respondents must indemnify the Applicant and each of the Applicant’s Related Entities against any loss or liability arising from or connected with: (i) a breach by the Respondents of clause 2.2 or 3.1; and (ii) a Claim brought by a Related Entity of the Respondents against the Applicant or one of the Applicant’s Related Entities in respect of any matter which is the subject of a release under clause 3.1; and (b) The Applicant must indemnify the Respondents and each of the Respondents’ Related Entities against any loss or liability arising from or connected with: (i) a breach by the Applicant of clause 2.1 or 3.2; and (ii) a Claim brought by a Related Entity of the Applicant against the Respondents or one of the Respondents’ Related Entities in respect of any matter which is the subject of a release under clause 3.2; and 6. Related Entities (a) It is not intended that any Related Entity of a party will execute this Deed. (b) A Related Entity of a party may enforce clauses 3, 3.2 and 5 of this Deed as if the Related Entity were a party to the Deed. -- 39 of 39 --