Cash v Cash & Anor - [2024] SASC 47

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
CASH v CASH & ANOR
[2024] SASC 47
Judgment of the Honourable Auxiliary Justice Bochner
ESTOPPEL - ESTOPPEL BY CONDUCT - ACT, OMISSION OR ASSUMPTION - ACQUIESCENCE, ENCOURAGEMENT OR SILENCE
ESTOPPEL - ESTOPPEL BY CONDUCT - PROPRIETARY ESTOPPEL
EQUITY - TRUSTS AND TRUSTEES - IMPLIED TRUSTS - CONSTRUCTIVE TRUSTS - OTHER PARTICULAR CASES
Claim by the Applicant for an equitable interest in farming land controlled by the Respondents – Whether the Respondents represented that the Applicant would have a proprietary interest in the farm if he returned to work there – Whether the oral representations were subsequently reinforced by the Respondents – Whether the crux of the representations was repeated – Whether the Respondents passed responsibility for the farm to the Applicant – Whether the Applicant changed his position to his detriment in reliance on the representations – Whether the Applicant suffered detriment notwithstanding benefits provided to him by the Respondents – Whether enforcement of the promise that the Applicant would have a proprietary interest in the farm would be disproportionate to the detriment suffered by him.
Held: The Respondents (through the First Respondent) represented that the Applicant would eventually “take over” the farm if he returned – The Respondents’ conduct reinforced the representations – The Applicant gave up employment, study, financial, investment, and social opportunities – The Applicant acted in reliance on the representations made by the Respondents, rather than on a mere hope that he would take over the farm – Any benefit provided by the Respondents did not disentitle the Applicant to relief – The Applicant has established all elements of a proprietary estoppel by encouragement – The only relief proportionate to the detriment would be enforcement of the promise of a proprietary interest. The parties are to be heard further as to the precise nature of the remedy.
Public Trustee Act 1995 (SA); Trustee Act 1936 (SA), referred to.
Macquarie Developments Pty Ltd & Anor v Forrester & Anor [2005] NSWSC 674; Carter v Brine [2015] SASC 204; Sidhu v Van Dyke [2014] HCA 19; Kramer v Stone [2023] NSWCA 270; The Commonwealth v Verwayen (1990) 170 CLR 394; Delaforce v Simpson-Cook [2010] NSWCA 84; Rodda & Anor v Ian Rodda Pty Ltd & Anor [2015] SASC 95; E Co v Q [2018] NSWSC 442; Q v E Co [2020] NSWCA 220, considered.

CASH v CASH & ANOR
[2024] SASC 47
Contents
Vincent’s claim
The witnesses
The legal framework
Specific findings of fact
The July 2003 telephone call
The visit to Red Hill
The Daw Park conversation
Were Denis and Mary in Adelaide together at the relevant time?
Did a conversation such as that alleged by Vincent occur at Daw Park on the Sunday morning, and if so, what was its content?
Finding in relation to the Daw Park conversation

The work carried out on the Greenhouse by Vincent
Julie
Vincent’s farm work
Meetings with professional advisors and succession planning activities

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] SASC 47
Decision Date: 4 April 2024

CaseChat Overview and Summary

In the case of Cash v Cash & Anor, the dispute centred around claims of proprietary estoppel and the applicability of equitable principles to the distribution of assets within a family farming business. The case was heard in the Supreme Court of South Australia. The primary issues the court had to resolve were whether the plaintiffs, Denis and Mary, had made representations that led the defendants, Vincent and Julie, to reasonably expect a beneficial interest in the farm, and if so, what remedy should be applied to rectify the perceived inequity.

The court examined the conduct of the parties, specifically whether the conduct of Denis and Mary amounted to an estoppel by conduct. It was established that Denis had made assurances to Vincent regarding his retirement and the transfer of the farm, which Vincent relied upon to the extent that he gave up employment, a trade, and a course of study. The court found that Vincent’s reliance on these assurances was reasonable, and his subsequent actions constituted significant and irreparable detriment. The court also considered the financial needs of Denis and Mary, with an uncontested estimate that they required $2,288,952 to maintain their lifestyle and purchase a home, a sum that the farm could not feasibly provide.

The reasoning of the court was rooted in the principles of proprietary estoppel and the equitable doctrine of estoppel by conduct. The court concluded that Vincent’s retirement from active farm work and his changes in personal and professional life were directly influenced by the assurances made by Denis. The court found that it would be unconscionable for Denis and Mary to renege on their representations without providing adequate compensation to Vincent and Julie. As such, the court ordered that Vincent and Julie be granted a beneficial interest in the farm commensurate with the detriment they suffered, effectively rectifying the inequity created by the circumstances.

In conclusion, the court's final orders were that Vincent and Julie be recognised as having a proprietary interest in the farm, and that appropriate compensation be assessed and awarded to them to reflect the detriment they suffered due to the assurances made by Denis. The court did not specify the exact nature or extent of the interest but left it to further proceedings to determine the precise remedy.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Mr Young estimated that the lump sum amount that Denis and Mary would require to maintain their current lifestyle and to purchase a house was $2,288,952. This evidence was uncontested. His evidence was that Vincent and the farm would not be able to borrow the amount necessary to make a lump sum payment of this amount. Consideration Before I consider the principles to be applied in determining the remedy that is most appropriate, I will deal first with the submissions made by the respondents. First, I reject the company’s submission that Denis has not retired and has no intention of retiring. Denis has been on the full aged pension for many years. There is no evidence that he has undertaken any work on the farm since at least 2020. Indeed, his own evidence is to this effect:In the past two years, I have not taken part in work activities on the farm. I had a couple of bad years with my health. I injured my leg was diagnosed with a broken leg and damaged ACL ligament (sic) and I ended needing a knee replacement. I was in wheelchair (sic) for six months because of delays in elective surgery due to the COVID-19 pandemic. I was then diagnosed with prostate cancer, and I had radiation treatment for that in 2021 and it left me weakened in 2022 until about October 2022.[385][385] R8, [164]. This evidence is taken from his statement of evidence in chief. It is undated, but was filed with the Court on 15 August 2023. I infer from this statement that it is, in fact, more than two years since Denis has worked on the farm. I make this inference on the basis that he dates his treatment for prostate cancer to 2021 and his leg and knee injury predated that diagnosis. This has led to my conclusion that he has not undertaken any work on the farm since at least 2020. No evidence was given to suggest otherwise. In addition, I have already found that, by about 2012, Vincent was undertaking the majority of the physical work on the farm. There can be no doubt that Denis is long retired. I date his retirement from the time when he commenced receiving the full aged pension. Denis’ evidence is that he has been on the full aged pension for quite some time, although he did not know exactly how long.[386] He was able to recall that he was in receipt of the full pension in 2016.[387][386] T502.6-9, T704.1-3.[387] T703.35. Second, I reject the company’s submission that Vincent is unable to establish that his detriment is sufficiently substantial to support a finding that it would be unconscionable to allow the company to depart from the promise. I have already set out my reasons on this question. I have found that Vincent gave up his employment, his trade and his course of study on the strength of the promises made by Denis. He gave up the opportunity of being paid regular wages and receiving superannuation. He gave up the chance to buy property in Adelaide. He and Julie made fundamental and dramatic changes to their lives on the basis of the promises made by Denis and suffered significant and irreparable detriment thereby.