Protheroe v Protheroe

[2023] NSWCA 328

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Protheroe v Protheroe [2023] NSWCA 328

Hearing dates:

13 November 2023

Date of orders:

21 December 2023

Decision date:

21 December 2023

Before:

Meagher JA at [1];
Mitchelmore JA at [59];
Basten AJA at [60]

Decision:

(1) Appeal dismissed.

(2) Appellant pay the respondent’s costs of the appeal.

Catchwords:

CONTRACTS — deed of settlement and release — construction — where release restricted to claims “in connection with or arising out of” statement of agreed facts — whether claim released at law — whether necessary to consider equitable principle in Grant v John Grant & Sons Pty Ltd (1954) 91 CLR 112 where claim not released on proper construction of deed

Legislation Cited:

Nil

Cases Cited:

Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; [1993] FCA 456

CSR Limited v Adecco (Australia) Pty Ltd [2017] NSWCA 121

Erect Safe Scaffolding (Australia) Pty Ltd v Sutton (2008) 72 NSWLR 1; [2008] NSWCA 114

Grant v John Grant & Sons Pty Ltd (1954) 91 CLR 112; [1954] HCA 23

Lyall v Edwards (1861) 6 H & N 337 [158 ER 139]

Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451; [2004] HCA 35

Reid v Commonwealth Bank of Australia (2022) 109 NSWLR 149; [2022] NSWCA 134

Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Colin Henry Protheroe (Appellant)
Brian William Protheroe (Respondent)

Representation:

Counsel:
D Barlin (Appellant)
J Brown and P Muscat (Respondent)

Solicitors:
Carroll & O’Dea Lawyers (Appellant)
Dick & Williams Lawyers (Respondent)

File Number(s):

2023/94803

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Equity

Citation:

[2023] NSWSC 188; [2023] NSWSC 751

Date of Decision:

09 March 2023

Before:

Slattery J

File Number(s):

2019/257744

HEADNOTE

[This headnote is not to be read as part of the judgment]

The appellant, Colin Protheroe, owns two properties called Elmore and Shannon Vale. The respondent, Brian Protheroe, is Colin’s son. His claim to a proprietary estoppel was successful at first instance, with the primary judge making a declaration that the two properties were held by Colin on constructive trust for Brian.

Colin and Brian and others were parties to a deed of release and settlement with NAB. Clause 7.2 of the deed provided that the borrower parties, who included Colin and Brian, released each other from all claims “in connection with or arising out of … the matters set out in the Statement of Agreed Facts”. Paragraph 3(a) of the agreed facts recorded that Colin was owner of Elmore and Shannon Vale and made no mention of the possibility of Brian’s equitable claim.

Ground 1 of the appeal was directed to the conditions of relief granted by the primary judge. It was abandoned during oral submissions.

The remaining and only issue in the appeal is whether the primary judge correctly concluded…