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Fragar v Fragar

Fragar v Fragar

Case [2024] NSWSC 193 4 March 2024

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Supreme Court

New South Wales

Medium Neutral Citation: Fragar v Fragar [2024] NSWSC 193
Hearing dates: 5, 6, 7, 8 and 26 February 2024
Date of orders: 04 March 2024
Decision date: 04 March 2024
Jurisdiction: Equity
Before: Hmelnitsky J
Decision:
Direct that any submissions as to the form of orders and costs be limited to five pages and that they be filed and served no later than 4pm on Monday 18 March 2024.

Catchwords:
PARTNERSHIPS AND JOINT VENTURES — Partnership property — Identification — where family farming partnership had carried on farming business since 1989 — whether farmland formed part of partnership assets
PARTNERSHIPS AND JOINT VENTURES — Winding up — Rights of outgoing partner — where family farming partnership had carried on farming business since 1989 — where daughter-in-law buys into the partnership — where parents retire from partnership — whether retired parents hold farmland on bare trust for incoming partners — effect of informal winding-up on retired partners’ interest in the partnership assets
EQUITY — Equitable remedies — Specific performance — Land — where conversation at family meeting said to give rise to binding contract — whether terms of contract ever agreed to
ESTOPPEL — Proprietary estoppel — Encouragement — Nature of promise — where conversation at family meeting said to give rise to inducement to pay into partnership in return for inheriting farm — whether representation made — whether representation too ambiguous to give rise to an estoppel

Legislation Cited:
Conveyancing Act 1919 (NSW) ss 23C, 54A, 66G
Partnership Act 1892 (NSW) ss 2, 20-21
Succession Act 2006 (NSW) s 59

Cases Cited:
Bassett v Cameron [2021] NSWSC 207
Bosanac v Commissioner of Taxation (2022) 275 CLR 37; [2022] HCA 34
Commissioner of State Revenue (WA) v Rojoda Pty Ltd (2020) 268 CLR 281; [2020] HCA 7
Commissioner of Taxation (Cth) v Everett (1980) 143 CLR 440; [1980] HCA 6
Crown Melbourne Limited v Cosmopolitan Hotel (Vic) Pty Ltd (2016) 260 CLR 1; [2016] HCA 26
Galaxidis v Galaxidis [2004] NSWCA 111
Gerovich v Gerovich (as executor of the estate of Gerovich) [2018] WASC 153
Gordon v Scott (1858) 12 Moo PC 1; (1858) 14 ER 812; [1858] UKPC 14
Hocking v Western Australian Bank (1909) 9 CLR 738; [1909] HCA 68
Kelly v Kelly (1990) 64 ALJR 234
Legione v Hateley (1983) 152 CLR 406; [1983] HCA 11
Lukin v Lovrinov [1998] SASC 6614
Miles v Clarke [1953] 1 WLR 537
O’Brien v Komesaroff (1982) 150 CLR 310 at 322; [1982] HCA 33
Robinson v Ashton (1875) LR 20 Eq 25
Scott Darren Pascoe as trustee of the property of Arthur Linden Dyason, a bankrupt v Lindsey Jane Dyason & Ors [2011] NSWSC 1217
Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; [1988] HCA 7
Waterer v Waterer (1873) LR 15 Eq 402

Category: Principal judgment
Parties: Linda May Fragar (Plaintiff/Cross-Defendant)
Jeffrey Evan Fragar (Defendant/First Cross-Claimant)
Katherine Margaret Fragar (Second Cross-Claimant)
Representation:
Counsel:

C…

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.

Continue reading Fragar v Fragar

Details

AGLC: Fragar v Fragar [2024] NSWSC 193
Case: [2024] NSWSC 193
Decision Date: 04 March 2024

CaseChat Overview and Summary

In the case of Fragar v Fragar, the Family Court was asked to determine the nature of assets within a family farming partnership and the rights of outgoing partners in the event of the partnership's winding-up. The partnership, which had been operating a farming business since 1989, faced disputes over the ownership of farmland and the rights of partners who had retired. The court had to decide whether the farmland was part of the partnership assets, whether retired partners held the land on bare trust for incoming partners, and the effect of an informal winding-up on the retired partners' interests.

The central legal issues involved identifying partnership property, understanding the rights of outgoing partners in the context of an informal winding-up, and exploring the potential for equitable remedies such as specific performance and proprietary estoppel. The court needed to clarify if a conversation at a family meeting constituted a binding contract and whether the terms of such a contract were ever agreed upon. Additionally, the court examined whether a representation made during the meeting was sufficient to give rise to proprietary estoppel, considering the nature and clarity of the inducement.

The court found that the farmland was not part of the partnership assets but was instead held by the retired parents. It ruled that the retired partners did not hold the land on bare trust for the incoming partners. The informal winding-up did not affect the retired partners' interests in the partnership assets. The court also determined that no binding contract had been formed from the family meeting, and the conversation did not lead to a clear agreement on the terms of the partnership. Furthermore, the representation made during the meeting was deemed too ambiguous to give rise to proprietary estoppel.

The court's final orders reflected its findings, ensuring clarity on the ownership of the farmland and the rights of the retired partners within the family farming partnership.

Orders