Ward P at [1]; White JA at [372]; Stern JA at [373]
Decision:
1. Dismiss the appeal with costs.
2. Grant leave to cross-appeal.
3. Allow the cross-appeal with costs.
4. Set aside order 15 made on 5 September 2023.
5. In lieu thereof, order, subject to any costs orders previously made in the proceedings at first instance to 5 September 2023, that the defendants (the appellants/cross-respondents in this Court) pay 75% of the plaintiffs” (the respondents/cross-appellants’) costs of the proceedings at first instance to 5 September 2023, including their costs of and incidental to the relief sought in prayer 8 of the Second Further Amended Statement of Claim (and associated relief sought in earlier versions of that pleading).
Catchwords:
ESTOPPEL – Proprietary estoppel – Where representations made by appellants to respondents (their daughter and son-in-law) as to ownership of various farming properties and interest in family farming business – Where following a “catastrophic falling out” of the relationship between them, appellants resiled from those representations – Whether representations were sufficient to ground a proprietary estoppel – Whether respondents reasonably relied on representations – Whether respondents suffered detriment – Whether representations were conditional such that the change in circumstances following the falling out between the parties meant that the appellants’ departure from their representations was not unconscionable
APPEALS – Leave to appeal – Whether leave required for cross-appeal solely as to costs
COSTS – Party/Party – Where primary judge ordered that each party bear his or her own costs – Where respondents were substantially successful at first instance but did not receive entirety of relief sought – Re-exercise of discretion as to costs
[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.
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Details
AGLC
Slade v Brose [2024] NSWCA 197
Case
[2024] NSWCA 197
Decision Date
CaseChat Overview and Summary
The appeal concerned representations made by the appellants, parents, to the respondents, their daughter and son-in-law, regarding ownership of farming properties and an interest in a family farming business. Following a significant deterioration in their relationship, the appellants retracted these representations. The appeal was heard by Ward P, White and Stern JJA.
The central legal issues before the Court were whether the representations made by the appellants were sufficient to establish a proprietary estoppel, whether the respondents reasonably relied on these representations, and whether they suffered detriment as a result. A further issue was whether the representations were conditional, such that the subsequent breakdown in the relationship rendered the appellants' departure from them not unconscionable. The Court also considered whether leave to appeal was required for a cross-appeal solely concerning costs.
The Court dismissed the appeal with costs. It granted leave to cross-appeal and allowed the cross-appeal with costs, setting aside the primary judge's order that each party bear their own costs. The Court reasoned that while the respondents were substantially successful at first instance, they did not obtain all the relief sought. Consequently, the Court re-exercised its discretion on costs, ordering that the defendants (appellants) pay 75% of the plaintiffs' (respondents') costs of the proceedings at first instance, subject to any prior costs orders.
Orders
Orders of the court
1. Dismiss the appeal with costs.
2. Grant leave to cross-appeal.
3. Allow the cross-appeal with costs.
4. Set aside order 15 made on 5 September 2023.
5. In lieu thereof, order, subject to any costs orders previously made in the proceedings at first instance to 5 September 2023, that the defendants (the appellants/cross-respondents in this Court) pay 75% of the plaintiffs” (the respondents/cross-appellants’) costs of the proceedings at first instance to 5 September 2023, including their costs of and incidental to the relief sought in prayer 8 of the Second Further Amended Statement of Claim (and associated relief sought in earlier versions of that pleading).