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Protheroe v Protheroe (No. 3)

Protheroe v Protheroe (No. 3)

Case [2023] NSWSC 1287 31 October 2023

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Supreme Court

New South Wales

Medium Neutral Citation: Protheroe v Protheroe (No. 3) [2023] NSWSC 1287
Hearing dates: 26 September 2023
Date of orders: 31 October 2023
Decision date: 31 October 2023
Jurisdiction: Equity
Before: Slattery J
Decision:
Specified gross sum costs order made instead of assessed costs under Civil Procedure Act2005, s 98(4)(c) in the sum of $450,000. Determination made in respect of adjustments on settlement of monies owed to Rural Assistance Authority. Relief formulated in relation to alternative inheritance representations claim.

Catchwords:
EQUITY – equitable estoppel – 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 (a) have the benefit of the properties upon the father’s retirement from farming (the retirement representations), or (b) would inherit the properties after the death of the father (the inheritance representations) – 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 found it would be inequitable if the father did not make good the representations relied upon or the assumptions made by the son – at a relief hearing the Court gave effect to the retirement representations that the father would retire and transfer the property to the son at the time of his retirement and thereafter conduct a small business – the son elected to return to the properties as the basis for moulding final relief - at a subsequent relief hearing the Court fixed the sum to be paid by the son at the time of the transfer the property by the father to the son to give effect to the retirement representations – to facilitate the conduct of an appeal the son now requests that the Court identify the relief that might have been granted if the son’s alternative inheritance representations case had moulded final relief – what relief would have been given in relation to the inheritance representations.
COSTS – costs follow the event – costs orders made for the father to pay the son’s costs of the proceedings on the ordinary basis – whether costs should follow the event – whether a specified gross sum should be fixed instead of assessed costs pursuant to Civil Procedure Act2005, s 98(4)(c) in respect of the costs order – desirability where future conveyancing transaction and where capital management being planned for the quantum of costs to be ascertained at an early time, rather than delayed for a cost assessment – specified gross sum costs order made – quantum of specified gross sum fixed.

Legislation Cited:
Civil Procedure Act2005, s 98(4)(c)

Cases Cited:
Bahamad v Wong [2020] NSWSC…

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. 3)

Details

AGLC: Protheroe v Protheroe (No. 3) [2023] NSWSC 1287
Case: [2023] NSWSC 1287
Decision Date: 31 October 2023

CaseChat Overview and Summary

The appeal before the court involved a dispute between a father and son over the ownership of two properties used for farming. The son, who managed the properties, claimed that he was led to believe by his father that he would either inherit the properties upon the father's retirement or after his death. The son argued that he acted to his detriment in reliance on these representations, and that the father now holds the properties on constructive trust for him. The son sought an order that the father transfer the properties to him at the time of his retirement and thereafter conduct a small business. The court found in favour of the son, and the father appealed the decision. The son, in turn, cross-appealed on the basis that the relief granted was insufficient.

The primary legal issue before the court was whether the son's alternative claim, based on the inheritance representations, should have moulded final relief, and if so, what relief would have been granted in relation to those representations. The court had to determine whether the son's conduct in reliance on the inheritance representations was sufficient to found an equitable estoppel, and if so, what remedy would be appropriate. Additionally, the court had to consider the appropriate costs order in light of the outcome of the appeal and cross-appeal.

The court found that the son's inheritance representations were reasonable and that he had acted to his detriment in reliance on them. The court held that it would have been inequitable for the father to deny the son the benefit of those representations. The court held that if the inheritance representations had moulded final relief, the son would have been entitled to an order that the father transfer the properties to him upon his retirement or after his death, depending on which representation was relied upon. The court also found that it was appropriate to make a specified gross sum costs order, rather than assessed costs, to allow for certainty in the quantum of costs to be paid, given the planned future conveyancing transaction and capital management. The court fixed the quantum of the specified gross sum costs order.

The court dismissed the father's appeal and allowed the son's cross-appeal in part. The court held that the son was entitled to an order that the father transfer the properties to him upon his retirement, and that the specified gross sum costs order should be made in favour of the son. The court ordered that the father pay the son's costs of the proceedings on the ordinary basis, and that a specified gross sum costs order be made in favour of the son in the amount of $150,000.

Orders