Australia, Aug. 16 -- New South Wales Land and Environment Court issued text of the following judgement on July 16:

1. THE COURT: Mr Robert William Wilcox appeals as of right from a judgment of the Equity Division of this Court, constituted by Ward P: Wilcox v Chapple [2024] NSWSC 1394. After a hearing occupying 12-15 and 29 August 2024, her Honour dismissed the appellant's claims in respect of the deceased estates of each of his mother, Patricia (of which the first respondent Mr Chapple is the executor) and his step-father, Mr Trevor Harland (of which the second respondent Ms Wye is executor). The claim for family provision against Mr Harland's estate was dismissed and though an appeal was instituted against those orders, that appeal was discontinued by consent in April 2025. Nonetheless, it will be seen that much of what was argued in this appeal directly involves the parties to and issues in those earlier proceedings.

2. Without conveying either disrespect or undue familiarity, it is desirable to use the nomenclature adopted by the parties, and refer to Robert, his mother Patricia, his step-father Trevor, his brother Benjamin, his maternal grandfather Ian and his maternal great-grandfather Jack by their given names.

3. The claims against Patricia's estate were premised on the discovery in 2024 of a trust deed settled in 1962 by Jack, which, it was said, indicated that title to properties near Walgett known as part "Barwon Vale", "Wangrawally" and "Gidgerygah" was held by companies controlled by Ian on trust for Robert and Benjamin.

4. Benjamin was joined as a defendant in the proceedings below. Benjamin was and remains an undischarged bankrupt, and leave was not sought under s 58(3)(b) of the Bankruptcy Act 1966 (Cth) to proceed against him. Although a submitting appearance was filed on 21 May 2025, no one appeared in the hearing of this appeal for the third respondent, Sanderson Estates Pty Ltd, to which receivers and managers have been appointed. The result is Mr Chapple and Ms Wye are the only active respondents to this appeal.

5. Robert's original notice of appeal referred to a 13-page "Annexure" containing 43 grounds of appeal. The second amended notice of appeal, helpfully and appropriately, reduced the grounds to seven, consistently with the requirement for the document to state "briefly, but specifically" the grounds relied upon: Uniform Civil Procedure Rules 2005 (NSW), r 51.18(1)(e). They may be summarised as follows.

6. The primary judge dismissed the statement of claim and refused the appellant's belated application to amend his statement of claim to extend the trust claims to other land and the shares in the companies. In part that was because decisions made by Pembroke J in 2010 and by Brereton J in 2015 granting Robert an order for family provision out of the estates of Ian and Patricia respectively, were found to give rise to res judicata or estopped Robert from relitigating the trust argument. That is the subject of ground 5. In part it was because of her Honour's findings that nothing in the trust deed or other evidence indicated that the claimed properties were held on trust. This is the subject of grounds 1-4. An attempt to impugn a release given by Robert in 2015 because of "fraud or undue influence" under s 96 of the Succession Act 2006 (NSW) was also rejected and is the subject of ground 5. Ground 6 alleges that the primary judge erred in refusing to set aside the 2010 and 2015 judgments under UCPR r 36.15 on the basis that they were procured by fraud.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1980b94967ac80e7ab01703e)

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