Re: Evroy Enterprises Pty Ltd (in Liquidation)
[2009] QSC 81
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- Notable Unreported Decision
- Re: Evroy Enterprises Pty Ltd (in Liquidation)[2009] QSC 81
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Re: Evroy Enterprises Pty Ltd (in Liquidation)[2009] QSC 81
Re: Evroy Enterprises Pty Ltd (in Liquidation)[2009] QSC 81
SUPREME COURT OF QUEENSLAND
CITATION: | Re: Evroy Enterprises Pty Ltd (in Liquidation) [2009] QSC 81 |
PARTIES: | CAMILLA HILL as executor of the estate of ANDREW TASMAN HILL |
FILE NO/S: | 321 of 2007 |
DIVISION: | Trial |
PROCEEDING: | Application |
ORIGINATING COURT: | Supreme Court at Cairns |
DELIVERED ON: | 3 April 2009 |
DELIVERED AT: | Cairns |
HEARING DATE: | 3, 4 November 2008 |
JUDGE: | Jones J |
ORDER: | 1.Appeal dismissed. 2.That the applicant pay the first respondent’s costs of and incidental to the application to be assessed on the standard basis |
CATCHWORDS: | CORPORATIONS – WINDING UP – CONDUCT AND INCIDENTS OF WINDING UP – PROOF OF DEBTS – APPEAL AGAINST LIQUIDATOR’S DECISION – Generally – whether a liquidator may declare a constructive trust – where the applicant was seeking a the liquidator approve a proof of debt ESTOPPEL – EQUITABLE ESTOPPEL – PROMISSORY ESTOPPEL – where the liquidator of the company rejected a proof of debt against the company by the estate of the deceased – where the applicant alleges the debt arises by way of constructive trust in favour of the applicant as executor of the estate of the deceased – Where the company owned and controlled a group of family grazing properties – Where the deceased was the son of the son of the directors of the company and was for a period a director himself – where the deceased worked on the family properties allegedly in reliance of a promise that he would inherent one of the properties Corporations Act 2001 (Cth) ss 553(1), 555, 1321(a) Baumgartner v Baumgartner (1987) 164 CLR 137 Campbell v Turner [2008] QCA 126 Giumelli v Giumelli (1999) 196 CLR 101 Legione v Hateley (1983) 152 CLR 406 Ogilvie-Grant v East as liq of Gordon Grant and Grant Pty Ltd (in liq) (1983) 7 ACLR 669 Plimmer v Mayor of Wellington (1884) 9 AppCas 69 Tanning Research Laboratories Inc v O'Brien (1990) 169 CLR 332 Re Jay-O-Bees Pty Ltd (in liq) [2004] NSWSC 818 Riches v Hodgen (1985) 2 QdR 292 Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 |
COUNSEL: | A Greinke for the applicant J D Henry SC and M Jonsson for the respondents |
SOLICITORS: | Cranston McEachern for the applicant Preston Law for the respondents |
- The applicant appeals, pursuant to s 1321 of the Corporations Act 2001 (“the Act”), against the refusal by the first respondent, as liquidator of Evroy Enterprises Pty Ltd (“Evroy”) to admit her claim against the company as set out in a proof of debt dated 7 December 2006.
- The applicant made the claim in her capacity as the executor of the estate of the late Andrew Hill (“Andrew”) who died tragically on 24 April 2003 aged 33 years. The applicant and Andrew were married on 26 September 1998. She is the sole beneficiary under his will.
- The first respondent was initially appointed as administrator of Evroy in December 2004 and then appointed liquidator for the voluntary winding up of Evroy by resolution dated 10 March 2005. Evroy acted as trustee for the Roy Hill Family Trust (“the Trust”). This was the company’s only purpose and it did not own assets or conduct business in its own right. It was registered as a company in 1980.[1] The start-up directors of Evroy were Roy Tasman Hill and Evelyn Marjorie Hill who were the parents of Andrew. Roy and Evelyn had three other children, Desmond Roy Hill, Denise Evelyn Hill and Tania Maree Czislowski (wife of Patrick Czislowski). Andrew, Tania and Desmond would all later become directors of Evroy at various times.[2] For convenience, these interested persons will be identified by their given names.
- The second, third and fourth respondents did not appear to argue the outcome of the appeal. Apart from costs, no other orders are sought by, or against, any of them.
- On 24 January 2005 the applicant had submitted an earlier proof of debt in the sum of $1,034,206.59 being principally for unpaid wages and advances made by Andrew to Evroy. The first respondent (hereinafter “the respondent”) admitted an amount of $107,024 as being claimable.
- The presently disputed proof of debt was submitted on 7 December 2006. By it, the applicant sought to have the entire proceeds from the sale of the grazing property known as Mt Croll Station together with its plant, equipment and stock paid to her. She claimed to be entitled to the proceeds on the grounds that the company held the property prior to its sale on constructive trust for the estate of Andrew Hill. The net proceeds of that sale is the sum of $763,417.09[3] These funds are held by the liquidator pending final distribution of Evroy assets. The applicant also claims $64,844.67 costs incurred in proceedings against the respondent in the Supreme Court (No. BS7414/2003) in which she sought declarations to the same effect in relation to the land itself. By consent orders pronounced on 16 February 2005 and 23 May 2005, Evroy was permitted to dispose of its assets including Mt Croll and all livestock and plant and equipment thereon. The net proceeds were to be applied to the voluntary administration in accordance with the Act.
- In his consideration of the proof of debt and acting on the advice of senior counsel, the respondent refused to find that a constructive trust existed and now opposes the appeal on both legal and factual grounds. The respondent claims it is outside the power of this Court also to make such a declaration for two reasons. Firstly, on the basis that this Court’s equitable jurisdiction is not available to the applicant on an appeal of this kind, and secondly, that the circumstances do not permit the making of such a declaration.
Background facts
- Mt Croll Station (“Mt Croll”) is a large grazing property of approximately 189 square miles which surrounds the township of Coen on Cape York Peninsula.[4] The property is quite remote. Coen is located approximately 300km from Cairns and the road is unsealed for at least half the distance. Access by road is only possible by four wheel drive vehicle during the wet season and not possible at all after heavy rain. Mt Croll was purchased in the name of Evroy on behalf of the Trust in 1980.
- Members of the Hill family had purchased a number of properties over the years. Initially the Hill’s owned a dairy farm at Milla Milla. In 1969, Roy, Evelyn and Denise purchased a property called Running Creek Station. Roy and Desmond worked to establish the Running Creek property as well as conducting tin mining activities. The proceeds of these ventures was redirected into residential properties and a small property at Wondecla, and as well to the acquisition of a block in the township of Coen, later to become know as the “slaughterhouse block”. The historic remains of the Coen slaughterhouse stood upon it. Some of these properties were in turn sold to fund the purchase of the subject property, Mt Croll, in 1980.[5] Evelyn contributed $90,000 to the purchase price from her share of these properties.[6]
- Evelyn and Roy separated in 1989 but, as it appears, were able to cooperate to the extent of allowing the family business to continue. In 1994, Roy Hill commenced a de facto relationship with Juenne Ikin. He had lived with her at her property at Maryfarms and at Mareeba until his death on 21 March 2003, some 33 days before Andrew died.
- Desmond Hill attended university and obtained medical qualifications. He now operates a general practice in Cooktown. The Running Creek property became the sole property of Desmond Hill in 1985 when Roy Hill transferred his half share to him. Desmond had previously purchased his sister’s half share of the property.
- Tania had moved to Coen in 1980 and purchased a block of land in the township for $5,000. Tania and her husband Patrick, with assistance from Roy Hill converted an old butchers shop on the land into a café, called the Wilderness Café. Tania and Patrick later built a second building on the block which could be used for residential accommodation. Tania worked at the café from its opening until 1985 when it was taken over by Evelyn Hill. At that time Tania transferred the café to the family trust. She did not receive any compensation for the transfer. In 2001 it was transferred back to her by way of gift.
- Andrew was born in 1969 and educated in Townsville at Townsville Grammar School until part way through year eleven in 1985. At that time, his father was ill and Andrew was not progressing at school so he returned to the Milla Milla property to assist his mother Evelyn with the running of the farms.[7] There is no suggestion that Andrew ever regretted the early termination of his schooling or that he showed any aptitude for tertiary study.
- In 1986, Andrew moved to Coen to live with his mother who had then taken over the control of Wilderness Café from Tania. Andrew worked on Mt Croll Station from 1986 whilst living in Coen. It appears that Andrew developed a love for the lifestyle of living in Coen and working on Mt Croll Station. Andrew continued to live at Coen even after his mother returned to Milla Milla in about 1991.
- Andrew continued to live in the flat behind the café which was built by Tania and her husband Patrick. In 1997, he met the applicant and they were married in 1998. Shortly prior to the marriage, the applicant moved into the flat at Coen with Andrew. They lived together at the flat until 2002 when they moved onto the Mt Croll property. The living conditions on Mt Croll were quite primitive. It is apparent why this move had not been undertaken earlier.
- Andrew and Camilla lived in a caravan, which they had purchased and moved into what was designed to be, in the future, the machinery shed. It did not have internal walls or a floor. The bathroom was simply an enclosed water tank stand with a bathtub and shower fitting. The property did not have electricity or town water supply.[8] Desmond Hill claims in his evidence that the caravan and the roofing iron which Andrew used to construct the shed were paid for by Evroy. The timber used was harvested on site at Mt Croll by Andrew.
- Andrew owned land at Milla Milla, Lot 242 Plan NR 553. This block was given to Andrew by his father Roy in 1987 or thereabouts.[9] Evelyn Hill’s block at Milla Milla is described in the affidavits as “Lot 243 Plan NR 553, Milla Milla”. I take from this that blocks were adjoining and run as the one farm. This inference is supported by the fact that Andrew received income from milk sales made by Evelyn from the Milla Milla farm. The income Andrew received from the milk sales was said to average around $40,000 per annum. This arrangement continued from 1986 to 1991.[10] The value of Andrew’s Milla Milla block was approximately $200,000 at the time of his death.[11]
- Andrew’s role at Mt Croll and the exact description of his position is a matter of contention between the parties. The applicant suggests that Andrew Hill’s role at the property was that of manager. Other members of the family claim that Andrew simply worked on the property and that his role could not be describes as “manager”.[12] Andrew’s siblings Desmond and Tania claim that in fact Andrew was away from the property for lengthy periods, either working elsewhere or holidaying. Nonetheless, it is clear that Andrew did do substantial work on Mt Croll. The applicant states that his duties included maintenance and servicing of equipment on the property, such as vehicles, a bulldozer, and other various items of farm equipment. He was also responsible for the care of the stock. This included periodic mustering from and other cattle related tasks such as worming, branding, castration and dehorning. The applicant claims that Andrew also cultivated fodder for the stock. Andrew arranged the transportation and sale of cattle from the property.[13]
- While there is evidence that Andrew received some assistance in these duties from contract musterers and other members of the family, no other person has been identified in the evidence as being responsible for the overall maintenance and running of the property. Nevertheless, Andrew did not make the major financial decisions about the property and did not appear to have had any discretion about meeting the expenses of the property.
- In her affidavit, the applicant also claims that Andrew was the manager of the Running Creek property. I do not accept that is the case. Running Creek was wholly owned at that stage by Desmond. Whilst Desmond worked and lived in Cooktown, it is clear from his evidence, which I accept, that he was responsible for the operations of Running Creek. I accept that Andrew did do mustering work on Running Creek. I also accept that he was not paid a wage for that work however, there is evidence that he received stock and other fringe benefits in return.
- The distribution of property, stock and money amongst the family is a somewhat complicated affair, to which I shall refer later. In light of the overall dealings between the family members and the trust I do not find it exceptional that such arrangements about the work done on various properties were made. Those arrangements do not lead to the conclusion that Andrew was the manager of Mt Croll or of any other property. In any case, the issue does turn on whether Andrew filled the role of manager or not.
- The applicant also claims that Andrew improved the value of Mt Croll by planting a number of fruit trees. The third and fourth respondents refuted that claim. It seems that the orchard, which Andrew developed, was in fact on the property known as the slaughterhouse block. That block was given to Andrew by Evroy in 2001.[14] The purpose of this gift was to allow him to build a residence after seeking the government’s first home buyer’s grant. In the upshot, the grant was never obtained and the residence was not built. The approximate value of the block at the time was $30,000.[15]
- Mt Croll was not a particularly profitable property. In fact, the family discussed giving up the station and purchasing another property which would be “more profitable and easier to run”.[16] The evidence suggests that it “never paid its way”.[17]Andrew was against the idea of selling Mt Croll. His response when the matter was discussed was that he “loved the way of life up there and would rather not [sell]”.[18] I am satisfied the decision to retain Mt Croll was made to indulge Andrew’s wishes rather than showing any recognition of entitlement.
- Evidence was adduced by the applicant that Andrew supplemented the income from Mt Croll with off-farm work. Andrew carried out bulldozing work for the department of Main Roads and the Coen Aboriginal Corporation in 1997. The income he earned was paid to Evroy.[19] It must also be considered however that the bulldozer itself was actually the property of Evroy. Andrew also worked for the National Heritage Trust in the culling of wild animals. Andrew also received some income from time he spent in the Army Reserve. The incomes from these pursuits were also put into Evroy.[20] From time to time, he took drawings from Evroy for his own needs and his personal expenditure. There has been no reconciliation of the accounts such as would show with any precision his contributions and benefits.
- The applicant emphasized the value of the contribution Andrew made to the wellbeing of the Trust through his labour, particularly in relation to Mt Croll, during the period from 1986 until his death in 2003. Her personal observations were limited to the five years in which they were together. She was, for part of this time, a director of Evroy but this role did not particularly enlighten her about the way this family enterprise had operated before and even during her association. The dealings between members of the family within the Trust were quite informal. The businesses carried on by the family members became intertwined with those of the Trust. Services rendered to the Trust were rewarded by gifts of Trust property. Private funds were often times advanced by Tania, Desmond and Andrew to enable the Trust to pay its debts. Other times private expenses were debited to the Trust’s account.
- Tania was responsible for keeping the Trust’s cash book but the preparation of the formal books of account and tax returns was undertaken by accountants instructed by Roy. No clear picture has emerged from the evidence as to the extent of neither Andrew’s financial contribution to, nor the benefits he received from, the Trust. I do not accept that the financial documents accurately portray the income and expenditure for either the Trust and/or Andrew. The business approach was to allocate income and expenditure between members of the Trust to minimise, if not to avoid, the imposition of the income tax.
- Andrew was much loved by members of the family and to a degree was indulged by them.[21] I am satisfied that he was allowed to use Trust money to maintain himself and that he received gifts of money from other members, particularly his mother Evelyn. His working life was some what irregular insofar as he did not have to account for the time spent away from Mt Croll. He did not have to account to anyone for his activities whilst he was there. He spent time assisting other members of the family and he contributed to the Trust funds by providing income from other sources. This is not to say he did not work hard, rather these activities, like the time he spent on holidays, appear to have a random quality. I am satisfied that his occupation of Mt Croll was a choice he made for reasons of lifestyle, rather than because of any expectation of benefit.
- The property transfers between the Trust and family members show a general intention on the part of the parents Evelyn and Roy to benefit their children. The following dispositions had been made before Andrew’s death:-
To Desmond – the Running Creek property (1985)
To Tania – Wilderness Café property – (purchased in 1982; transferred to Evroy in 1986; gifted to Tania in 2001).
To Andrew – Lot 242 on NR553 Milla Milla – (1987) Slaughterhouse block at Coen (2001)[22]
- At the time of Andrew’s death Evelyn owned Lot 243 at Milla Milla and Evroy owned Mt Croll. By this time the Government had not renewed the lease on Running Creek previously held by Desmond. Consequently, his former access to 40,000 hectares of land was reduced to 300 hectares on lease back from the traditional owners.[23] Effectively, he lost the benefit of the 1985 gift from Evroy of the half interest in the larger leasehold. Desmond claims that Roy discussed with him the prospect of taking an interest in Mt Croll in substitution for that loss of Running Creek. Since Desmond was heavily involved in the acquisition of properties which allowed the Trust to acquire its various holdings, there can be no doubting Desmond’s moral claim to consideration from any sale of the Trust property.
- Evelyn also maintained a continuing interest in any proposed disposition of Mt Croll based on her claim that she had made substantial contribution to its purchase.[24]
- Andrew was no doubt aware of the circumstances and of the family dynamics wherein the primacy of Roy’s role as Principal was tempered by the need to discuss Trust rearrangements with Tania and Desmond. The parties also acknowledged Tania’s important and time consuming role as the bookkeeper for the Trust. These were the types of considerations which informed the discussion leading to Andrew being given the slaughterhouse block and Tania the Wilderness Café property at Coen.[25]
- It is against that background that the applicant makes her claim that Andrew’s estate was solely entitled to the beneficial interest in Mt Croll.
The application
- By her Statement of Claim, the applicant seeks an order that the proof of debt be admitted in the winding up of Evroy and seeks a declaration that the proceeds from the sale of Evroy are held on the constructive trust for the estate. The basis upon which this relief is sought is that Roy and Evelyn, on behalf of Evroy, had promised on a number of occasions that Mt Croll would be given to Andrew when the mortgage debt on the property had been repaid. (This in fact happened in December 2002 and the mortgage was released on 12 February 2003).
- The applicant contends that the promise gave rise to an expectation in Andrew and, in reliance upon this promise, he worked without proper remuneration for the Trust enterprises. In doing so, he acted to his detriment, particularly by foregoing income, superannuation benefits or by seeking an alternative career.
- In order to establish the promise and Andrew’s reliance upon it, the applicant gave evidence of the promises made by Roy and Evelyn in her presence and relies on evidence of Roy and Evelyn’s statements to other persons. She points to the terms of a declaration made by Roy when he signed his first will in 1997 and to other indicia such as names on insurance policy over the assets of Mt Croll.
- The respondent asserts firstly, that the Court in determining this appeal has no equitable jurisdiction such as would allow the making of the declaration sought. Secondly, the respondent contends that a liquidator has no authority or power under the Act to admit a debt in the form of a constructive trust over proceeds of a sale. Thirdly, the liquidator contends that the circumstances do not in any event, give rise to the equitable, remedial remedy which the applicant pursues.
- It is convenient to deal with this latter point first as it raises factual matters in dispute and will require the making of findings of credibility.
Was any promise made to Andrew?
- There is a serious contest between the parties on the issue of whether promises were made to Andrew such as to give rise to an expectation on his part. The resolution of the contest is complicated by the fact that two important witnesses, Roy and Andrew, have died without leaving any documentary evidence of what might have been said.
- The applicant claimed that she herself was a party to conversations when Roy and Evelyn said to Andrew, words to the effect that “Mt Croll would be yours” and that “when the mortgage was repaid Mt Croll would be transferred to Andrew”.[26] She claims that on occasions Desmond and/or Tania would be present also. The particular words she recalls being used include:- “Denise and Des have their degrees. Tania has the café. Mt Croll will be yours (Andrew’s)”. She claimed that the rationale and justification for the promise was that Andrew worked for the Trust without reward as manager of Mt Croll and for the benefit of other family members. Many of her assertions relate to periods before she had any contact with Andrew and to that extent they carry no weight. But relevantly, for the six year period of her association between 1997-2003 she spoke of both the efforts of Andrew and herself improving the Mt Croll property and of the primitive conditions in which they lived for the last 18 months of that time. She agreed in cross-examination that Andrew enjoyed the lifestyle he followed but claimed it was because of his expectation of becoming the owner of Mt Croll.
- The applicant also relied upon statements allegedly made by Roy to different family friends. I shall deal with those witnesses now.
- Mr Fred Haselich gave evidence that when the Wilderness Café was being built, he had a conversation with Roy Hill who said words to the effect that Andrew would receive Mt Croll. Mr Haselich however could not give any particular detail of the conversation with Roy Hill other than that Tania was to receive the café and Andrew would receive Mt Croll. The conversation took place during ‘smoko’ whilst the building work was being conducted. The conversation took place in 1983, although the witness was at one stage adamant it had been 1993.[27] In 1983, Andrew would have been only 14 or 15. Mt Croll had then been in the Hill family for only three years.
- Similarly, Phillip Martel gave evidence that on one occasion when he dropped in to Running Creek Station and had a brief conversation with Andrew in the presence of Roy. Mr Martel stated that Roy said words to the effect that ‘as Andrew was working there he would get Mt Croll’.[28] Mr Martel was vague on other details of the preceding conversation. Similarly, Mr Martel stated that on another occasion he spoke to Andrew and asked, ‘is it (Mt Croll) getting signed over to you soon or what’s the go?” Andrew allegedly replied with words to the effect that, “he had a couple more years to go” and that, “it would eventually all be his”.[29]
- With respect to the first conversation, I find that the lack of detail about the exact nature and context of the conversation makes it impossible for this Court to regard these statements with any degree of reliability, particularly given the casual nature in which they were apparently made. Even if I were satisfied that the conversation took place in the terms Mr Haselich suggested, any promise made at that time could not possibly give rise to any proprietary interest given Andrew’s age and the short period of time the property had been owned by the Trust. I am not satisfied that there was a conversation in those terms such as would create an expectation that Mt Croll would be given to Andrew. With regard to the second conversation, all that could be drawn from it, were it accepted as accurate, which I am reluctant to do, is that Andrew had some hope that at some stage in the future he might acquire the property in one way or another.
- To similar effect is the evidence of Neville Shepherd. He is the owner and manager of the neighbouring property, Lochinvar Station. He stated that had known Andrew since the time he left school and came to work at Mt Croll Station. It was Mr Shepherd’s contention that he had heard Roy Hill say words to the effect that ‘Tania would be given the Café and Andrew was to be given Mt Croll as he had worked on it since he left school, largely without help from the other members of the family’.[30] In a statutory declaration sworn by Mr Shepherd on 30 January 2007 some three months before the affidavit was drawn Mr Shepherd made a similar statement although he used the words “inherit”. When cross-examined about this discrepancy Mr Shepherd stated that he could not recall the precise words used but that he was left with impression that Andrew ‘would finish up with Mt Croll’.[31] I accept that Mr Shepherd was of the impression that Mt Croll might become Andrew’s at some future time. Mr Shepherd’s evidence does not shed any light on when and in what circumstances that expectation might crystallise into an actual interest.
- The applicant called David John Webster who stated in his affidavit that he could recall several occasions when Evelyn Hill referred to Mt Croll as Andrew’s property and that it was to be given to him.[32] He recalled an occasion at the property at Milla Milla when Evelyn specifically said words to that effect. In his affidavit and in evidence Mr Webster stated that they had been discussing the possibility of starting a tourist venture on Mt Croll. Mr Webster stated in cross-examination that he breached the topic of ownership as they were contemplating that Mr Webster might become involved. He raised the topic because he “…wasn’t going to get involved in something that I didn’t – you know, that Andrew didn’t own the property at that stage… himself… and Evelyn assured me that wasn’t a problem, that it was Andrew’s property”.[33] Mr Webster confirmed in cross-examination that what he actually meant by this statement and the one in his affidavit was that the property would be given to Andrew at some stage in the future.[34]
- The only conclusion that can be drawn from this evidence is that Mr Webster and Andrew were speculating about the possible tourist potential of Mt Croll Station. The details of Evelyn Hill’s comments to David Webster are vague. Even if she remarked that Mt Croll was Andrew’s place, no substantial conclusion can be drawn from that. It was common for members of the Hill family to refer to Mt Croll as Andrew’s place based upon the fact that he worked and sometimes lived there.[35] Mr Webster himself acknowledged in cross-examination that he knew the property did not belong to Andrew. All that can be inferred from this evidence is that Andrew was looking at possibilities for development, possibilities which would require the concurrence of family members.
- In terms of when those possibilities might come to fruition, the evidence of Evelyn Hill and William Francis Bacon cast some light. Evelyn Hill stated in her affidavit that she discussed the prospect of Andrew purchasing her share of Mt Croll. The arrangement appears to have been that if Andrew constructed a new home for Evelyn Hill she would take this as payment for her share of Mt Croll.[36] William Bacon gave corroborative evidence of this in his affidavit. Mr Bacon stated that he assisted Andrew in preparatory works for the house site, clearing some trees and moving a fence on Evelyn Hill’s Milla Milla property.[37] Tania Czislowski also gives evidence to that effect in her affidavit.[38]
Response of family members
- The suggestion that any such promise was made to Andrew in the presence of family members was emphatically denied by Evelyn, Desmond and Tania. Evelyn pointed to the fact that she herself maintained a claim against Evroy for $200,000[39] which would have been lost if Mt Croll was gifted to Andrew. She referred to her annoyance when the applicant made demands for the property to be given to Andrew and to his response of offering to purchase the property.[40] The only promise of which she was aware was that Andrew could maintain his lifestyle by occupying Mt Croll “as long as the family was happy with this arrangement”.[41] Evelyn denied that there was any occasion when she, together with Roy, made any promise to Andrew about Mt Croll. There was indeed little contact between them after their separation in 1989.
- Desmond was one of the original directors and a shareholder of Evroy. He was also one of their principal decision makers in respect of the affairs of the Trust, even when not a director. He had in 1992 received as a gift from Roy a half share in the Running Creek property. Prior to that time, he helped with the acquisition and development of Trust properties and had in other ways contributed financially to the Trust.[42] As mentioned above the Running Creek lease was not renewed and Desmond negotiated a fixed term of tenure over a 300 hectare area from the new leaseholders. Aware that the renewal of the lease was at risk Desmond claims that in 2002 Roy had discussed with him the prospect of his taking a share of Mt Croll by way of compensation.[43] Roy died in March 2003 and, in accordance with his stated wishes, Des and Tania became Principals of the Trust.
- Desmond denies ever hearing of a promise made to Andrew that he would be given Mt Croll. Desmond referred to conversations which concerned the prospect of Andrew acquiring Mt Croll for proper consideration or alternatively the prospect of selling Mt Croll with the proceeds being shared.[44] Andrew was not interested in buying the property nor did he wish for Mt Croll to be sold. The gift of the slaughterhouse block in 2001 came about following discussions as to Andrew’s future intentions. Desmond also referred to Roy’s wish that Evroy may in the future be able to transfer Mt Croll to Andrew but that was to be a matter for Des and Tania to decide.[45] This assertion is consistent with the memorandum Roy executed at the time of making his will in February 1997. This appears to be the only writing which evidences Roy’s intention about the disposition of Mt Croll but that has to be considered in the circumstances then prevailing.
- Tania became a director of Evroy when Evelyn ceased to act in that capacity. Tania maintained her function as the company secretary. She was able to give details of the monies paid to contractors and suppliers to Mt Croll and she expressed the opinion that Mt Croll was unprofitable. She said that many times over the years she brought up the topic of selling Mt Croll to buy something easier to run and more profitable. She claimed that Andrew “always responded that he loved his way of life up there and would rather not”. She went on to say that the family may “not have followed his wishes and just sold [Mt Croll] because of it was costing us but we were all prepared to help him stay there without a second thought. We all thought the world of him and wanted to do what made him happy.”[46] She claimed that Andrew himself did not want the property to be transferred to him because of a concern at that time about the stability of his marriage to the applicant. Even though concerns about the marriage appear to have dissipated later, that fact does not alter the question of whether any promise was in fact made. The reality was that no single member of the family had the capacity to make or to fulfil any such promise. Tania also spoke of Evelyn’s wish to assist Andrew to purchase Mt Croll rather than having it sold on the open market.[47] Despite this, there never was any concrete proposal by Andrew to purchase the property apart from a suggestion that he would build a house for Evelyn in exchange for her interest. I can infer that Tania did not accept there was any promise to Andrew that he would receive Mt Croll or that he had any entitlement to the property.
- The properties owned, and the activities engaged in, by the Evroy Trust were very much family undertakings. All the members of the Hill family contributed at various time to the family trust. Disbursements were also made to various family members, including Andrew, over a long period. The various entitlements to the family trust is further complicated by the assistance the members of the Hill family gave to each other and, particularly to Andrew, who was the youngest member of the family. The issue is further clouded by the fact that the minimisation of income tax appeared to be the highest priority in determining how income was distributed in and out of the trust. With regard to the work that the applicant asserts Andrew performed at Running Creek, Desmond Hill states that Andrew was remunerated for that work. Further, he states that Andrew only worked occasionally at Running Creek, usually assisting with mustering. For this Desmond allowed the proceeds from the sale of the male cattle from the musters to be paid to Evroy. Tania claims to have contributed to his living expenses. From the time, Andrew lived at Coen until he and the applicant moved onto Mt Croll Station in around 2002 he lived in the house built by Tania and her husband Patrick at the Wilderness Café. During this time of approximately 16 years, Andrew did not pay any rent, which meant of course that Tania forwent that money.[48]
- Whilst Andrew was at Mt Croll, Evroy paid for his everyday living expenses. It appears from the evidence that Andrew’s life was inextricably entwined with that of Mt Croll and Evroy. Andrew lived and worked on or around Mt Croll. In return Evroy supported Andrew, his family and their lifestyle. Andrew was able to leave the station when he chose to. It appears that he often did so during the wet season. Evroy supported him during these periods which were up to three months at a time although he appears during some of this time to have done some work on other properties within the Hill family. Andrew took several trips away from the property which were paid for by Evroy. This included $8,000 for a trip to the U.S.A.[49]
- By 1996, Andrew had no assets save for the Milla Milla property and his entitlement to use the Trust assets. His needs for his own maintenance and his social activities were provided by the Trust and by his parents. Despite the long and detailed cross-examination of Tania, no useful analysis was made to establish the relative benefits to Andrew or to the Trust of this arrangement. I am not prepared to find there was any direct financial detriment to Andrew by his adoption of this arrangement. In fact, there is a higher likelihood that he benefited from the arrangement. In 2001, the slaughterhouse block at Coen was given to him after discussions with other members of the family. It had a value for stamp duty purposes of $30,000. The Milla Milla property at the time of his death had a value of $200,000. For the whole of his working life, Andrew was maintained by the Trust and this benefit extended to the applicant after their marriage.
- Whilst a number of circumstances were agitated and relied upon to establish the creditworthiness of the family witnesses, it is not necessary to deal specifically with them. All family witnesses were aware that Mt Croll was owned by Evroy on behalf of the Trust; that the Trust dealings were undertaken with a great deal of interaction between the family members; that the transfers of property between the Trust and family members were achieved without disputation and were accepted by family members. There was no evidence of any occasion of a family member being aggrieved by any such transfer and this included the two previous transfers of property to Andrew. A promise to Andrew of Mt Croll by way of gift was not likely to have been accepted by Evelyn without a repayment to her of her claim against Evroy. Such a promise was not likely to have been discussed with Andrew by Roy and Evelyn together as they had little contact after their separation in 1989.[50]
- Desmond also had some claim to Mt Croll to compensate for his loss of the Running Creek property. Desmond did not recognise in Andrew any higher claim to his own. Similarly, Tania who carried the burden of looking after Evroy’s accounts has not been given property benefits disproportionate to those given to Andrew, even allowing for the provision to her of the Toyota motor vehicles. I would assess the moral claims of Evelyn, Desmond and Tania to a share in the Mt Croll property to be at least as high as those of Andrew. Hence, I regard it as unlikely that any statements made by Roy about the future disposition of Mt Croll would have been intended by him, or construed by Andrew, to indicate a gift of the property to Andrew contrary to the expectations of other family members.
- The other indicia relied upon by the applicant – the insurance policy and the declaration made by Roy in 1979 – do not carry any weight in indicating the existence of a promise. The insurance policy issued in the name of Andrew but also mentioning the interest of Evroy simply records that Andrew was identified as the person residing on the property rather than as holding any interest. The declaration made by Roy simply expresses a wish or a hope but falls a long way short of being regarded as a promise.
- The respondent also relies upon the fact that the terms of the promise contended for by the applicant have changed over time and this was a pointer to the lack of creditworthiness of the applicant’s claim. In her Statement of Claim in the Supreme Court proceedings for equitable relief the applicant identified the promise by reference to four articulations of its terms. Three of these were relied upon for the purpose of this proceeding. The additional statement previously relied upon was in the following terms:-
“I will make sure that my will identifies my wishes that the family trust makes sure that Mt Croll is yours.”
Counsel for the respondent suggested that this articulation of the promise by Roy was jettisoned because of the clear evidence that no such mention was made in either of Roy’s two wills.[51] The applicant said there had been no discussions with witnesses about what it might have been in Roy’s will. She also agreed that Andrew had never told her of discussions about the possible selling of Mt Croll and nor did he tell her of Evelyn’s claim to be entitled to part of the proceeds of the sale.[52]
Legal Principles
- Before a Court exercising jurisdiction in equity could provide the type of remedy on which the applicant’s claim is based, it would have to “look at the circumstances to decide in what way equity can be satisfied”. Plimmer v Mayor of Wellington.[53] In Giumelli v Giumelli,[54] the High Court considered various senses in which the term “constructive trust” is used and the need for some care in so doing. In some cases, the claim will be proprietary in nature[55] and in others it will restore to a party contributions which he or she made, for example, to a joint venture which fails.[56] However, the elements which give rise to a binding obligation have been identified in a number of cases. First and foremost the promissory representation must be clear and unambiguous. Legione v Hateley.[57] Secondly, the promise must create an expectation in the mind of the promisee. Riches v Hogden (supra); Giumelli (supra). Thirdly, the conduct of the promise acting in reliance upon the expectation must be shown to have caused detriment to him/her. Giumelli (supra). In Waltons Stores (Interstate) Ltd v Maher[58] Brennan J compendiously set out the requirements in the following terms:-
“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.”
It follows from these remarks that the applicant must establish that a promise was made to Andrew on behalf of the Trust, that it created in him an expectation of being given Mt Croll and that in reliance upon the expectation he acted to his detriment.
Conclusion
- Applying these principles to the background facts outlined above I have come to the view that the applicant has not laid the foundation for any such equitable relief. I do not accept the applicant’s evidence that promises were made as alleged. If Andrew or Camilla had discussions with Roy or Evelyn about the disposition of Mt Croll these would inevitably have made reference to the claims that other members of the family had in respect to that asset. The applicant said that Andrew never told her of discussions about the possible selling of Mt Croll, nor of the potential claim by other members of the family. This rather indicates that any discussions in which the applicant participated (which appear to have been limited to Evelyn or to Roy) were not serious discussions from which one would conclude that a promise had been made to Andrew of the kind contended for. I accept the evidence of Evelyn which characterised the discussions as being demands by Camilla rather than any promise made by herself. It may well have been that Roy and/or Evelyn expressed a wish or a hope that Andrew one day may own Mt Croll Station in his own right but all the other circumstances militate against Andrew being given the entire interest. The evidence does not convince me that any promise was made to Andrew that the land would be given to him. I accept also the evidence of Desmond and Tania that no promise to Andrew of the kind relied upon by the applicant was ever raised in their presence.
- The claimed rationale for the promise to Andrew, namely his educational deprivation and property disadvantage simply did not exist. Whilst it is true that two of the children had university degrees, Andrew was obviously not an able student, and he ended his education by his own choice. There is no evidence that he expressed any regret for having done so. He was not disadvantaged in a property sense compared with other members of the family.
- The respondent in his submissions claimed that the level of detriment to the applicant in reliance on the alleged promise was insufficient in this case to establish the existence of a constructive trust. The respondent disputes the applicant’s claims that Andrew worked on the property for many years without benefit. The respondent’s response to this allegation is that whilst Andrew may not have drawn a regular wage from the Trust, and indeed did contribute income to it, he received other benefits in lieu of wages. In regard to the income which Andrew contributed to the trust, this must be off set against the fact that the first respondent has already approved the applicant’s proof of debt in the amount of $107,024 largely on account of this.
- I am satisfied that there was no promise leading to an expectation in Andrew such as to give rise to the equitable remedy as claimed. I am satisfied also that Andrew did not act to his detriment. Rather he followed a lifestyle that suited him. His contribution to the Trust business was matched, if not outweighed, by the benefits he received from the Trust and the other family members who have a moral claim on the Trust property.
- Accordingly, the equitable remedial remedy upon which the applicant relies to found her claim has not been made out.
- This conclusion is sufficient to dispose of the appeal. I should however refer briefly to the questions going to the scope of the Court’s jurisdiction under this part of the Act.
Jurisdictional issue
- This appeal is brought pursuant to s 1321 of the Act which relevantly provides:-
“1321(a) A person aggrieved by any act, omission or decision of;
- …
(d)A liquidator or provisional liquidator of a company;
may appeal to the court in respect of the act or omission or decision and the court may confirm, reverse or modify, the act or decision, or remedy the omission, as the case may be, and make such orders and give such directions as it things fit.”
- Though designated as an appeal, the proceeding is an original process wherein the claim is heard de novo with the liquidator cast in an adversarial role. Tanning Research Laboratories Inc v O'Brien.[59] When considering a proof of debt, a liquidator is required to act in a quasi judicial capacity. A liquidator’s essential task there is to determine whether the debts and claims are admissible to proof against the company pursuant to s 553(1) of the Act which provides:-
“Subject to this Division, in every winding up, all debts payable by, and all claims against, the company (present or future, certain or contingent, ascertained or sound only in damages), being debts or claims the circumstances giving rise to which occurred before the relevant date, are admissible to proof against the company.”
The task for the liquidator then, is to take control of the assets of the company and to distribute the assets according to law.
- The terms of s 553(1) indicate that the ambit of claims, which might fall to be considered, is quite wide but its opening phrase indicates a limiting proviso. The policy of the statute requires that claims admitted by the liquidator are to be ranked equally. Section 555. A liquidator also has to consider whether a particular claim would defeat the distribution of assets among the true creditors. The respondent argues that that would be the effects here of the allowance of the applicant’s claim.
- In Tanning Research Laboratories (supra) Brennan and Dawson JJ described the role of the liquidator concerning proofs of debt as follows:-
“In determining whether to admit or reject a proof of debt, a liquidator has been said to act in a quasi-judicial capacity (Re Britton & Millard Ltd (1957) 107 LJ 601) according to standards no less than the standards of a court or judge: Commissioner for Corporate Affairs v Harvey (1980) VR 669, at 696. This description of the liquidator’s function reflects his duty to distribute the assets in his hands or under his control among the persons truly entitled. That duty was stated by Viscount Simonds in Government of India v Taylor (1955) AC 491 at p 509:
“I conceive that it is the duty of the liquidator to discharge out of the assets in his hands those claims which are legally enforceable, and to hand over any surplus to the contributories. I find no words which vest in him a discretion to meet claims which are not legally enforceable. It will be remembered that, so far as is relevant for this purpose, the law is the same whether the winding up is voluntary or by the court, whether the company is solvent or insolvent, and that an additional purpose of a winding up is to secure that creditors who have enforceable claims shall be treated equally, subject only to the priorities for which the statute provides.”
The principles which determine enforceability of the liability to which a proof of debt relates are, in the main, the same as the principles which would be applied in an action brought directly against the company to enforce that liability. Those principles include the law relating to the barring of actions by time: see, for example, Motor Terms Co Pty Ltd v Liberty Insurance Ltd (1967) 116 CLR 177. But this general rule is qualified. As the parties whose interests are affected by admission of a proof of debt are the general body of creditors and the contributories rather than the company in liquidation, there are some liabilities which would be enforceable against the company but which a liquidator is not bound to admit to proof of debt lest the interests of creditors and contributories may be unjustly affected. A liquidator may properly reject a proof of debt if the liability, though enforceable against the company, is not a true liability of the company but is founded merely on some act or omission on the part of the company which unjustly prejudices the interests of the creditors of contributories in the assets available for distribution. In this respect, there is no reason to distinguish between the position of a liquidator and that of a trustee in bankruptcy: see Ayerst v C & K (Construction) Ltd (1976) AC 167. In In re Van Laun; Ex parte Chatterton (1907) 2 KB 23, at 31, Buckley LJ said:
“Whether the creditor alleges that there has resulted, and that he relies upon an account stated, or a covenant entered into by the debtor, or a judgment which he has obtained, the principle, I apprehend, is exactly the same, and is this – that the trustee is not the person who has stated the account, is not the covenantor, is not the judgment debtor, but is entitled to say, ‘It is my business to see that those who seek to rank against this estate are persons who are really creditors of that estate’. If there be a judgment it is not necessary to shew fraud or collusion. It is sufficient, in the language of Lord Esher, to shew miscarriage of justice – that is to say, that for some good reason there ought not have been a judgment. Exactly the same, I think, is true of an account stated or of a covenant.”
The same approach is equally applicable to estoppels which would defeat the distribution of assets among the true creditors of the company: In re Exchange Securities Ltd (1988) Ch 46, at 59-60; and cf In re South American and Mexican Co; Ex parte Bank of England (1895) 1 Ch 37, at 45. The occasions when it is right to reject a proof of debt in respect to what is not a true liability of the company may not be susceptible of exhaustive definition. Perhaps some guidance may be found in the terms employed by Barwick CJ in Wren v Mahony (1972) 126 CLR 212, at 223, in reference to the grounds on which a court of bankruptcy will go behind a judgment:
“Circumstances tending to show fraud or collusion or miscarriage of justice or that a compromise was not a fair and reasonable one, in the sense that even if not fraudulent it was foolish, absurd and improper, or resulted form an unequal position of the parties (see In re Hawkins; Ex parte Troup (1895) 1 QB 404 at 409) offer occasions for the exercise by the Court of Bankruptcy of its power to inquire into the consideration for the judgment.”
- Thus, it can be seen that the liquidator has the power for rejecting a proof of debt in addition to any grounds available under general law which might conceivably include the rejection of a claim based on estoppel of the kind which the applicant raised in this case.
- The applicant’s proof of debt prepared by her lawyers identified the claim as being “the sum of $756,984.36 (later amended to $763,419.09) representing the value of the constructive trust… held by the company as trustee for Andrew”.[60] The relief sought in this Statement of Claim was for a declaration “that the proceeds of the sale… are held by Evroy on constructive trust for the applicant as executor of the estate of Andrew”.
- With the claim framed in this way, it is not surprising that the respondents viewed the relief claimed as one for a proprietary interest and that the equity sought by the applicant was based upon “proprietary estoppel”. The respondent raised objection to relief being sought in these terms contending that it was beyond the capacity of the liquidator, and of the court in this appellate role, to grant declaratory relief. Further, to allow such relief would involve a departure from the consent order pronounced on 23 May 2005 after Evroy’s liquidation, requiring the proceeds of the sale to be applied “in accordance with the Corporations Act 2001”.
- By this order, the proceeds came under the control of the liquidator whose function then was to distribute the assets in his hands “among the persons truly entitled”. In other words, the liquidator became a putative trustee of the proceeds with a personal liability to account to those persons.
- The court’s jurisdiction in this proceeding is “to confirm, reverse or modify” the decision of the liquidator. The proceeding does not invoke the ambit of the Court’s inherent equitable jurisdiction. Without going into reasons, I regard the form of relief sought in the Statement of Claim as not being available in this proceeding. It is not necessary to consider the point further, because as the matter was finally argued, Counsel for the applicant did not pursue “a proprietary claim” but rather sought “equitable compensation based upon estoppel”.[61] Thus, the claim became one “sounding only in damages” within the terms of s 553(1).
- The applicant contends that for the purpose of s 553(1) the word “claim” is of wide scope and does not stand or fall on being identified as a particular type of relief.[62] In support of this contention, Counsel relied upon the decision of Campbell J in Re Jay-O-Bees Pty Ltd (in liq) & Ors.[63] That case concerned the rectification of a deed which erroneously allocated a debt owing by the company in liquidation to another company. In the up-shot, the court refused to order the rectification as being beyond the scope of the winding-up proceedings but acknowledged that the claim to rectification was “itself a claim…within the meaning of s 553(1) and hence a claim which should be given effect to by the liquidator in deciding whether to admit a proof of debt”.[64] The case is also valuable for his Honour’s collection of the principles relevant to both the conduct of the liquidator in considering a proof of debt and to the role of the court on an appeal such as this.
- The respondent does not argue that a liquidator in the proper circumstances cannot consider an equitable claim. Rather, he contends that the applicant’s claim is a remedial response to circumstances and is not one which creates obligations on the company (therefore the liquidator) until it has been declared. See Giumelli (supra) at [3]. See also Campbell v Turner.[65] As the applicant has elected to proceed under the Act rather than in court exercising its inherent jurisdiction, that will not now happen.
- The applicant’s election to proceed under the Act was a clear choice between alternative proceedings with attendant advantages and disadvantages. In Ogilvie-Grant v East as liq of Gordon Grant and Grant Pty Ltd (In liq)[66] McPherson J (with whom Wanstall CJ and Sheehan J agreed) said (at p 672):-
“As a matter of history, a winding up by the court was and remains today an administration conducted by the court…Both because of this, and because it was before the Judicature Act an administration conducted in Chancery, it was inevitable that there should be restrictions on the bringing of proceedings, whether at common law or otherwise, during the course of that administration. What is substituted for litigation in the ordinary form is a procedure by which a claimant lodges a verified proof of debt with the liquidator, who admits or rejects it wholly or in part, and from whom an appeal lies to a judge, who determines that appeal de novo primarily on affidavit material…
The question whether a claimant should be permitted to proceed by action, or should be required to submit his proof of debt and, if dissatisfied, appeal to a judge, is therefore reduced largely to one of choosing between alternative forms of procedure.”
- The consequence of the applicant’s election to proceed under the Act is that her claim is presented following two separate, and somewhat conflicting, approaches. As initially framed, the claim to be entitled by way of equitable remedy to the whole of the proceeds of sale would, if established, result in the assets not falling within the liquidator’s control. The second approach treats the proceeds as part of the assets available for distribution and seeks to have equitable compensation based upon contribution to the value of those assets but with such compensation ranking with the claims of other creditors.
- The claim on the first approach is not susceptible, in my view, to determination under a proof of debt process. The second approach is consistent with the consent order pronounced on 23 May 2005 but is one that, even if established as being valid, would be susceptible to rejection by the liquidator, on grounds of prejudice to third party claimants and creditors.
Conclusion
- I am satisfied that the respondent duly considered the applicant’s claim and as well, sought the opinion of senior counsel. The liquidator stands in a different position to the company itself. He was faced with a claim for which the company bore no liability under general law. He rejected the claim on two grounds, namely that there was insufficient evidence to support a claim for constructive trust and secondly that, even accepting a trust of this kind, it could not constitute a debt capable of being proved in liquidation.
- The basis for the applicant’s claim has been considered de novo, and in considerable detail in this proceeding. I have come to the same conclusion as the liquidator for the reasons set out above. The liquidator was correct in rejecting the applicant’s proof of debt. The applicant has not shown, in this proceeding, any basis upon which the liquidator’s rejection of her proof of debt should be reversed or modified. I would therefore confirm the liquidator’s decision. Consequently, the appeal must fail.
Orders
- Appeal dismissed.
- Applicant pay the first respondent’s costs of and incidental to the application to be assessed on the standard basis.
Footnotes
[1] Affidavit of Ian David Jessup at Ex “IDJ”-05.
[2] Ibid Ex “IDJ”-05.
[3] Transcript 2–56.
[4] Affidavit of Camilla Lorraine Hill.
[5] Affidavit of Desmond Roy Hill.
[6] Affidavit of Evelyn Marjorie Hill.
[7] Affidavit of Desmond Roy Hill.
[8] Transcript 2–24.
[9] Affidavit of Tania Czislowski at [11].
[10] Affidavit of Evelyn Hill at [7].
[11] Affidavit of Tania Czislowski at [32].
[12] Affidavit of Desmond Roy Hill at para [33].
[13] Affidavit of Camilla Lorraine Hill at [4].
[14] Affidavit of Desmond Roy Hill at para 16; Transcript Tania Czislowski at [75].
[15] Affidavit of Tania Czislowski at [46].
[16] Affidavit of Tania Czislowski at [42].
[17] Affidavit of Desmond Hill at [8].
[18] Affidavit of Tania Czislowski at [42].
[19] Transcript 1 – 86.
[20] Affidavit of Camilla Hill at [17]–[18].
[21] Affidavit of Juenne Ikin at paras [5]; Affidavit of Evelyn Hill [7].
[22] Affidavit of Tania at para [11].
[23] Transcript 2–39/20.
[24] Affidavit Evelyn Hill at para [1]; transcript 2–50/10.
[25] Affidavit of Desmond para [32]; see also affidavit of Juenne Ikin [3].
[26] Affidavit of Camilla Hill sworn 18 September 2007 at para [6].
[27] Transcript at 1–21.
[28] Affidavit of Phillip Martel at [5], Transcript 2–8.
[29] Ibid at para [7].
[30] Affidavit of Neville Shepherd at [6].
[31] Transcript 2–4.
[32] Affidavit of David John Webster at [3].
[33] Transcript 1–27.
[34] Transcript 1–28.
[35] See, e.g.; T Czislowski, Transcript at 2 – 18.
[36] Affidavit of Evelyn Hill at [3].
[37] Affidavit of William Frederick Bacon at [7].
[38] Affidavit of Tania Czislowski at [43].
[39] Affidavit of Evelyn Hill sworn 21.12.2007 at para [2].
[40] Ibid at para [4].
[41] Ibid at para [8].
[42] Affidavit of Desmond Hill sworn 21.12.2007 at paras [3] and [4].
[43] Affidavit of Desmond Hill (supra) para [22].
[44] Ibid at para [29].
[45] Ibid at para [26].
[46] Affidavit of Tania Czislowski sworn 11 January 2008 para [42] ; see also transcript 2–15/20–35.
[47] Ibid at para [43].
[48] Affidavit of Tania Czislowski at [34].
[49] Affidavit of Desmond Hill at [9].
[50] Transcript 2–51/30.
[51] Transcript 1–45/10.
[52] Transcript 1–45, 30–50.
[53] (1884) 9 AppCas 69 at 714.
[54] (1999) 196 CLR 10.
[55] For example Riches v Hogden (1985) 2 QdR 292..
[56] See Baumgartner v Baumgartner (1987) 164 CLR 137/148.
[57] (1983) 152 CLR 406/435.
[58] (1988) 164 CLR 387/428.
[59] (1990) 169 CLR 332/341.
[60] Affidavit Ian Jessup Ex “IDJ–03”.
[61] Transcript p 2–91.
[62] Transcript p 2–91/40.
[63] [2004] NSWSC 818.
[64] Ibid at paras [73]–[81] and [93]–[94], [109].
[65] [2008] QCA 126.
[66] (1983) 7 ACLR 669.