Protheroe v Protheroe (No. 2) - [2023] NSWSC 751

Supreme Court

New South Wales

Medium Neutral Citation: Protheroe v Protheroe (No. 2) [2023] NSWSC 751
Hearing dates: 16 May 2023
Date of orders: 3 July 2023
Decision date: 03 July 2023
Jurisdiction: Equity
Before: Slattery J
Decision:
Relief granted to give effect to the retirement representations. Parties directed to bring in draft short minutes of order to give effect to these reasons. Costs reserved.

Catchwords:
EQUITY – equitable estoppel – relief hearing – Court upholds 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 – in the principal hearing the Court found 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 – the Court found that the son acted upon the representations to his detriment and that the father holds the properties on constructive trust for him to make good the representations relied upon or the assumptions made – the Court finds it would be inequitable if the father did not make good the representations relied upon or the assumptions made by the son – relief hearing – consideration of the appropriate remedy – the Court found that the father had indicated he wished to retire from the family farming property and conduct a small business – the Court requires the son to elect whether he will return to the family farming property as the basis for moulding of final relief and the son so elects - how should the Court provide equitable relief in the circumstances.

Legislation Cited:
Civil Procedure Act2005, s 98(4)(c)
Uniform Civil Procedure Rules 2005, r 31.46

Cases Cited:
Protheroe v Protheroe [2023] NSWSC 188

Category: Consequential orders
Parties: Plaintiff: Colin Henry Protheroe
Defendant: Brian William Protheroe
Representation:
Counsel:
Defendant: Mr J. Brown, Ms P. Muscat
Solicitors:
Plaintiff: in person
Defendant: Phillip Robert Williams, Dick & Williams Lawyers

File Number(s): 2019/257744
Publication restriction: No

Judgment

This is the Court’s second judgment in these proceedings. In the Court’s first judgment the Court upheld the defendant/cross claimant’s claim against the plaintiff/cross-defendant for a constructive trust over two rural properties, Elmore and Shannon Vale: Protheroe v Protheroe [2023] NSWSC 188 (“the first judgment”).
The Court indicated in the first judgment that it would hold a further hearing to mould the relief to be granted. That relief hearing took place on 16 May 2023. This judgment defines the relief which the Court is prepared to grant to the defendant/cross claimant.
This judgment should be read with the Court’s first judgment and does not repeat the findings or background set out in the first judgment. Events matters and persons are referred to in both judgments in the same way.
The relief hearing took place on 11 May 2023. In the directions hearings leading up to the relief hearing Mr Crossland of Counsel and his…

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 (No. 2)

Details

AGLC: Protheroe v Protheroe (No. 2) [2023] NSWSC 751
Case: [2023] NSWSC 751
Decision Date: 03 July 2023

CaseChat Overview and Summary

In Protheroe v Protheroe (No. 2), the parties involved were a father and his son, engaged in a dispute over the ownership and management of family farming properties. The son, who had been farming two properties held in his father's name, claimed that he had been led to believe he would inherit these properties upon his father's retirement. The son argued that he had acted to his detriment based on these representations, and sought equitable relief, specifically a constructive trust. The case was heard in the court of equity, which had the jurisdiction to address issues of property and trust.

The primary legal issues before the court were whether the father had indeed made representations that led the son to assume he would inherit the properties, and if so, whether the son had acted to his detriment in reliance on those representations. The court also needed to determine the appropriate equitable remedy, considering the son's election to continue farming the properties. The court's role was to weigh the evidence and determine if it would be inequitable for the father not to uphold the representations made to the son.

The court found that the father had made representations, either directly or indirectly, that led the son to believe he would inherit the properties. The son had acted on these representations by continuing to farm the properties, to his detriment. The court ruled that the father held the properties on constructive trust for the son. Given the son's election to continue farming the properties, the court ordered that the father must either transfer the properties to the son or compensate him adequately, ensuring that the son's reliance on the representations was made good.

The final orders of the court required the son to elect between continuing to farm the properties or receiving an alternative form of equitable relief. The son chose to continue farming, and the court mandated that the father must either transfer the properties to the son or compensate him in a manner that adequately reflected the value of the son's reliance on the representations. This decision ensured that equity was served by upholding the son's expectations and providing appropriate relief.

Orders