Slade v Brose

Case [2024] NSWCA 197


Court of Appeal


Supreme Court


New South Wales

  • Summary available
Medium Neutral Citation: Slade v Brose [2024] NSWCA 197
Hearing dates: 23 and 24 April 2024
Date of orders: 8 August 2024
Decision date: 08 August 2024
Before: 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

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 98

Real Property Act 1900 (NSW), s 42

Supreme Court Act 1970 (NSW), s 75A

Uniform Civil Procedure Rules 2005 (NSW), r 28.2

Cases Cited:

Anderson v Anderson (2017) 94 NSWLR 591; [2017] NSWCA 131

Ardrey v Bartlett [2004] WASCA 256

Austotel Pty Ltd v Franklins Selfserve Pty Ltd (1989) 16 NSWLR 582

Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd (2014) 253 CLR 560; [2014] HCA 14

Bahr v Nicolay (No 2) (1988) 164 CLR 604; [1988] HCA 16

Be Financial Pty Limited as Trustee for Be Financial Operations Trust v DAS [2012] NSWCA 164

Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304

Brose v Slade [2022] NSWSC 1785

Brose v Slade [2023] NSWSC 1025

Cobbe v Yeoman’s Row Management Ltd [2008] UKHL 55

Coffs Harbour City Council v Polglase [2020] NSWCA 265

Commonwealth of Australia v Verwayen (1990) 170 CLR 394; [1990] HCA 39

Construction Technologies Australia Pty Ltd v Doueihi [2014] NSWSC 1717

Coope v LCM Litigation Fund Pty Ltd (No 2) [2016] NSWCA 174

Delaforce v Simpson-Cook…

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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).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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