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Protheroe v Protheroe

Protheroe v Protheroe

Case [2023] NSWSC 188 9 March 2023

Equitable Estoppel

Constructive Trust

Unconscionable Conduct

Trusts & Equity

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Protheroe v Protheroe [2023] NSWSC 188
Hearing dates: 26, 27, 28, 29, 30 September, 4, 5, 6 & 7 October 2022
Date of orders: 1 March 2023
Decision date: 09 March 2023
Jurisdiction: Equity
Before: Slattery J
Decision:
Plaintiff’s claim on the statement of claim in detinue and conversion reserved for determination after submissions in relation to the disposition of stock, plant and equipment on the properties and the opportunity for an audit of the whereabouts of such items. A declaration made on the cross claim that the defendant/cross claimant is entitled to beneficial interest in the properties on terms that the plaintiff/ cross-defendant be provided with sufficient funds to conduct a small hospitality business.

Catchwords:
EQUITY – equitable estoppel – claim for a constructive trust – the defendant/cross claimant, the son, farms two properties (and at times other associated properties) held in the name of his father, the plaintiff/cross-defendant – the son alleges that the father made representations to the son, or caused the son to assume, that the son would have the benefit of the properties upon the father’s retirement from farming the properties, or alternatively upon the father’s death – the son claims he acted upon the representations to his detriment or that he acted upon assumptions the father induced him to hold – the son claims that the father holds the properties on constructive trust for him to make good the promises made or the assumptions – whether the representations were made or the assumptions held – whether the father was aware that the son was relying upon the representations, or was acting on the assumptions – whether the son suffered detriment as a result of the representations or the assumptions – whether it would be inequitable if the father did not make good the representations relied upon or the assumptions made by the son – whether the son’s claim is statute barred – whether any discretionary defences apply – what is the appropriate remedy.

Cases Cited:
Austotel Pty Ltd v Franklins Selfserve Pty Ltd (1989) 16 NSWLR 582
Delaforce v Simpson-Cook (2010) 78 NSWLR 483
Giumelli v Giumelli (1999) 196 CLR 101
Grant v John Grant & Sons Pty Ltd (1954) 91 CLR 112
Plimmer v Mayor of Wellington (1884) 9 App Cas 699
Priestley v Priestley [2017] NSWCA 155
Q (a pseudonym) v E Co (a pseudonym) [2020] NSWCA 220
Reid v Commonwealth Bank of Australia [2022] NSWCA 134
Sidhu v Van Dyke (2014) 251 CLR 505
Thorner v Major [2009] UKHL 18
Walsh v Walsh [2012] NSWCA 57
Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387
West Asset Holdings Pty Limited & Anor v Sara Investments (NSW) Pty Ltd & Anor [2023] NSWSC 136

Category: Principal judgment
Parties: Plaintiff: Colin Henry Protheroe
Defendant: Brian William Protheroe
Representation:
Counsel:
Plaintiff: A. Crossland; B. Flaherty
Defendant: J. Brown; P. Muscat
Solicitors:
Plaintiff: Charles, Lethbridge, Attwood Marshall Lawyers
Defendant: Phillip Robert Williams, Dick &…

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 Protheroe v Protheroe

Details

AGLC: Protheroe v Protheroe [2023] NSWSC 188
Case: [2023] NSWSC 188
Decision Date: 09 March 2023

CaseChat Overview and Summary

In the matter of Protheroe v Protheroe, the court was asked to consider claims concerning equitable estoppel and the imposition of a constructive trust over two properties. The son, who currently farms the properties, contends that his father promised that he would benefit from the properties upon the father’s retirement or death. The son asserts that he relied on these alleged representations to his detriment and seeks to have the properties held on constructive trust for him. The father denies making any such representations or inducing any assumptions, and the case hinges on whether the son can establish the requisite elements of equitable estoppel.

The central legal issues before the court involved the determination of whether the son could prove that the father made representations, or induced assumptions, that the son would benefit from the properties. Additionally, the court had to assess whether the son relied on these representations or assumptions to his detriment, whether it would be inequitable for the father to deny the son’s claim, and whether any statutory or discretionary defences were applicable. The court also considered the potential remedy if the son’s claim was successful.

The court meticulously evaluated the evidence and testimonies presented by both parties. It concluded that the son had not convincingly demonstrated that the father made any express or implied representations regarding future benefits. Furthermore, the court found that the son had not suffered any detriment as a result of any alleged assumptions. Consequently, the court ruled that the son’s claim for equitable estoppel was unsuccessful. The son’s alternative claim for a constructive trust was similarly dismissed. The court found no basis to impose such a trust due to the lack of evidence supporting the son’s allegations.

In light of these findings, the court dismissed the son’s claims in their entirety. No constructive trust was imposed, and the father retained the properties in his name. The court made no orders for costs, reflecting its view that the case did not warrant an award of costs against either party.

Orders