Slade v Brose

[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 (2010) 78 NSWLR 483; [2010] NSWCA 84

DHJPM Pty Ltd v Blackthorn Resources Ltd (2011) 83 NSWLR 728; [2011] NSWCA 348

Dillwyn v Llewelyn [1862] EWHC Ch J67; 45 ER 1285

Donis v Donis (2007) 19 VR 577; [2007] VSCA 89

Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219

Doueihi v Construction Technologies Australia Pty Ltd (2016) 92 NSWLR 247; [2016] NSWCA 105

E Co v Q [2018] NSWSC 442

Elite Protective Personally Pty Ltd v Salmon (No 2) Pty Ltd [2007] NSWCA 373

Evans v Evans [2011] NSWCA 92

Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22

Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (No 3) (1998) 30 ACSR 20

Flinn v Flinn [1999] VSCA 109

Galaxidis v Galaxidis [2004] NSWCA 111

Germanotta v Germanotta [2012] QSC 116

Gillett v Holt [2001] Ch 210

Giumelli v Giumelli (1999) 196 CLR 101; [1999] HCA 10

Golding v Vella (No 2) [2001] NSWSC 731

Guest v Guest [2022] 3 WLR 911

Harris v Smith [2008] NSWSC 545

House v The King (1936) 55 CLR 499; [1936] HCA 40

Hughes v Western Australian Cricket Association [1986] FCA 511

Karam Group P/L v Hca Queensland P/L (2022) 13 QR 84

Margeorg v Cavanagh [2009] QSC 211

Maunsell v Hedges (1854) 4 HLC 1039; 10 ER 769

Merker v Merker [2022] QCA 277

Priestley v Priestley [2017] NSWCA 155

Proprietors Cathedral Village BUP 106957 v Cathedral Place Community BC [2021] QCA 186

Q v E Co [2020] NSWCA 220

Ramsden v Dyson (1866) LR 1 HL 129

Short v Crawley (No 40) [2008] NSWSC 1032

Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19

Soulos v Pagones [2023] NSWCA 243

Sullivan v Sullivan [2006] NSWCA 312

Ta Lee Investment Pty Ltd v Antonios [2019] NSWCA 24

The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26

Thorner v Major [2009] 1 WLR 776

Trouton v Trouton [2022] QSC 210

Uglow v Uglow [2004] EWCA Civ

Van Dyke v Sidhu [2013] NSWCA 198

Waddell v Waddell [2012] NSWCA 214

Walton v Walton (1994, England and Wales Court of Appeal, Civ Div, unreported)

Waltons Stores v Maher (1988) 164 CLR 387; [1988] HCA 7

White v Tomasel [2003] 2 Qd R 438

Wodzicki v Wodzicki [2017] EWCA Civ 95

Category:

Principal judgment

Parties:

Bruce Roland Slade (First Appellant)
Donna Maree Slade (Second Appellant)
Kellie Lisa Brose (First Respondent)
Garreth Owen Brose (Second Respondent)

Representation:

Counsel:
B Katekar SC and S Hoare (Appellants)
J Mack and B Smith (Respondents)

Solicitors:
Bradley Allen Love Lawyers (Appellants)
Walsh & Blair Lawyers (Respondents)

File Number(s):

2023/00301064

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity Division

Citation:

[2023] NSWSC 1025

Date of Decision:

29 August 2023

Before:

Lindsay J

File Number(s):

2022/00297484

HEADNOTE

[This headnote is not to be read as part of the judgment]

The appellants, Bruce and Donna Slade, (the Slades), prior to the events the subject of the present dispute, owned several parcels of farming land (themselves or through a family self-managed superannuation fund) in Quandialla. The respondents, Kellie Brose (one of the Slades’ three daughters) and her husband, Garreth Brose, (the Broses) relocated in 2014 from Townsville (where they were then working in the banking industry) to Quandialla following representations by the Broses that if they relocated to Quandialla and worked for the family partnership through which the Slades conducted their farming business, and things worked out, then they would receive an interest in certain parcels of the farming land.

The Broses alleged that, commencing in 2013 and continuing through to 2019, the Slades represented to them (including in the course of family estate planning meetings) that they would be the recipients of future transfers of land and partnership interests, with the intention that the Broses commit themselves to life on the farm; and that, in reliance on those representations, the Broses remained in Quandialla, working the farm. Some properties were transferred to them over the years and there was an acknowledgement that they had a 25% interest (and later apparent acknowledgement of a 50% interest) in the partnership. However, following a catastrophic falling out between the Slades and Broses in October 2021 and January 2022, the Slades renounced the existence of any arrangement they had with the Broses, and began unilaterally to liquidate their rural land holdings and partnership assets. The Broses lodged caveats on the titles to the properties which they alleged were held by the Slades on trust for them (wholly or in part) (the Disputed Properties), by reason of their detrimental reliance on the Slades’ representations.

The primary judge, applying the equitable principles of proprietary estoppel by encouragement, found that the Disputed Properties were held on a constructive trust as claimed. The primary judge ordered that the Slades transfer three (not all) of the Disputed Properties to the Broses and that the Broses pay the Slades $500,000 (to reflect the acceleration of the interests that the Broses were acquiring). The primary judge ordered the parties to bear their own costs.

The Slades filed a Notice of Appeal, alleging error in the primary judge’s findings as to: the representations made by them, the Broses’ conduct in reliance on those representations, and the detriment that would be suffered should there be a departure from the representations. The Slades also alleged error in the failure to find that there had been a relevant change in circumstances, such that it was not unconscionable for them to depart from the representations.

The Broses sought leave to file a Notice of Cross-appeal concerning the orders as to costs. The Broses also alleged that the appeal was futile, on the basis that, since the Broses had registered their interests in the three properties pursuant to his Honour’s orders, the indefeasibility of their title to the properties would prevail over any order that the Court of Appeal could make.

Held dismissing the appeal, granting leave to cross-appeal, and allowing the cross-appeal (Ward P at [1], White JA at [372], Stern JA at [373]):

1. It is not necessary for a plaintiff invoking the doctrine of equitable estoppel by encouragement to show that he or she assumed that a particular legal relationship existed; rather, it is unconscionability which will be decisive (Ward P at [201]). In this case the representations were sufficiently clear, and in a family context it was reasonable for the Broses to rely on the repeated assurances by the Slades that they could and should trust the Slades, and that they would then get most of the land and partnership business (Ward P at [207], [210]).

   Waltons Stores v Maher (1988) 164 CLR 387 at 428-429; [1988] HCA 7; Doueihi v Construction Technologies Australia Pty Ltd (2016) 92 NSWLR 247; [2016] NSWCA 105 considered.

2. In determining reliance in the context of estoppel by encouragement, the relevant assumption need not be the sole inducement, rather it is sufficient if it is a “contributing cause” (Ward P at [240]); nor is it necessary for the plaintiff to prove “precisely” how the plaintiff would have acted differently (Ward P at [245]). The primary judge made no conflation error (as the appellants had contended). The primary judge made clear that the Broses’ relocation to Quandialla occurred in 2014, before the later representations were made; and accepted that it was the Broses’ conduct in remaining on the family farm and working for the partnership that was in reliance on the representations made between 2015 and 2019 (Ward P at [246]).

   Sidhu v Van Dyke (2014) 151 CLR 505; [2014] HCA 19; Q v E Co [2020] NSWCA 220 considered.

3. The primary judge did not (as the appellants contended) wrongly assess detriment by reference to the loss of what the Broses expected to receive but, correctly, assessed their detriment by reference to the loss of the career opportunities that were foregone by the decision to move to and remain in Quandialla (Ward P at [278]). The decision to remain, and not take up opportunities elsewhere, was more than sufficient to amount to detrimental reliance when assessed as at October 2021 or January 2022, when the Slades renounced their “agreement” (Ward P at [282]-[283]). In the context of a farming operation conducted over a number of properties and over a number of years, in reliance on the expectation that those properties and business would be transferred to the Broses, there was no error in the primary judge concluding that the countervailing benefits received by the Broses did not assuage the equity raised by the Broses’ detrimental reliance (Ward P at [287]).

4. The Slades’ characterisation of their representations as being “conditional” (in the sense that, if the matters there set out were no longer capable of satisfaction, then there would be no reasonable expectation that the transfers of land would be made) could not be accepted; rather, matters such as the intent that family relationships remain intact, and that there be a fair outcome are more readily to be seen as assumptions underlying what was contemplated in the succession planning process (Ward P at [308]). There was no error in the primary judge’s conclusion that, in all the circumstances, it was unconscionable for the Slades to depart from the representations they had made and to act otherwise than in accordance with the expectations they had induced (Ward P at [306]).

5. Given the disposition of the appeal, it was not necessary to determine whether there was power to grant the relief sought by the Slades on the basis that the Broses’ interest in the properties was indefeasible (Ward P at [328]).

   Ta Lee Investment Pty Ltd v Antonios [2019] NSWCA 24, White v Tomasel [2003] 2 Qd R 438 considered.

6. The primary judge erred in holding that, because the Broses’ claims as to two of the Disputed Properties were dismissed, they were not substantially successful in the “event” (and hence the general rule that costs follow the event did not apply) (Ward P at [364]). Leave to cross-appeal should be granted and the discretion as to costs re-exercised. The appropriate order was for the Slades to pay 75% of the Broses’ costs of the proceedings at first instance, to reflect that the Broses had substantial success on the claims determined by the primary judge, but that the Broses did not receive all the Disputed Properties (Ward P at [370]).

JUDGMENT

1. WARD P: This appeal arises out of a dispute between family members in relation to the ownership of certain farming properties in Quandialla, near West Wyalong in NSW. The appellants (Bruce and Donna Slade), together the Slades, have three daughters, Melissa Ousby, Kellie Brose (from whom they are now estranged) and Tegan Slade. Kellie is the first respondent in this proceeding. Kellie’s husband, Garreth Brose, is the second respondent. Together, I refer to the respondents as the Broses. Also relevant to the dispute (though not a party on appeal) is IJAAMOTT Pty Ltd (IJAAMOTT), a company controlled by the Slades. I will generally refer to the various family members by their first names without any intended disrespect.

2. Prior to the events the subject of the present dispute, there were a number of parcels of farming land being operated by the Slades (through a partnership known as the “Slade Pastoral Co”), those being Ostenleigh (the Slades’ family home), Ozone Park, Reserve, Glendlyn, Gilgowrie, Misery, Willawa, Sandridge Home and Sandridge Farm. The properties were held by either Bruce or IJAAMOTT. Not all of those parcels of land were the subject of claims in the proceedings before the primary judge. Rather, there were five blocks of land in respect of which the Broses claimed an interest in the proceedings at first instance: Ostenleigh, Ozone Park, Reserve, Misery and Gilgowrie (though only as to one-third in the case of Gilgowrie) (together, the Disputed Properties). In this appeal, only three of those Disputed Properties are in contention (Ostenleigh, Ozone Park and Reserve), as I will explain in due course.

3. The dispute between the Slades and the Broses, in essence, was as to whether the Slades held the Disputed Properties on trust for the Broses by reason of the Broses’ detrimental reliance on promises or representations made to them by the Slades over the period from 2013 to 2019 as to the transfer of the land and interests in the partnership to them.

4. After what the primary judge consistently referred to in his reasons (without further detail as to the nature of that falling out) as a catastrophic falling out between the Slades and the Broses in October 2021 and January 2022, the Slades proceeded (in what his Honour described as a “pre-emptive way”) to liquidate their rural land holdings and partnership assets (see Brose v Slade [2023] NSWSC 1025, the primary judgment, at [44]), effectively ending what up to then had been a working relationship between the two families. It was not disputed that the parties ceased to work together in the farming business from January 2022. The Slades, as part of their transition to retirement, had moved to West Wyalong in about July 2021.

5. Prior to the entry by the Slades into contracts for sale of the Disputed Properties, the Broses had lodged caveats against the title to those properties in September 2022 (see [79] of the primary judgment). Lapsing notices were issued in mid-October 2022 (primary judgment at [85]). Meanwhile, the Broses had commenced proceedings by statement of claim on 6 October 2022, seeking declarations that each of the Disputed Properties was held on trust for them (Gilgowrie only as to one-third, as noted above), orders for the transfer of the land to the Broses or equitable compensation, and orders relating to the constitution and dissolution of the family partnership.

6. After lodgement of the caveats, and the commencement of proceedings, on 24 October 2022, Bruce exchanged a contract for the sale to a third party of Ostenleigh, Ozone Park and Reserve, and IJAAMOTT exchanged a contract for the sale to that third party of Glengowrie and Misery, for sums totalling $10.18 million, with completion due on 2 February 2023 (see [86] of the primary judgment). Each contract disclosed the existence of the caveated claims on the title of the Disputed Properties, with the date for completion extended on terms permitting the purchaser to work the land, pending the determination of the Broses’ claim (see primary judgment at [87], [91]). The contracts were not expressed to be interdependent (primary judgment at [92]).

7. In December 2023, Kunc J made orders permitting the Broses to maintain a caveat over each of the Disputed Properties (Brose v Slade [2022] NSWSC 1785). The proceedings were placed in the Expedition List where Parker J then made orders for expedition of the hearing (of the Broses’ claim to beneficial ownership of the Disputed Properties but reserving for later determination disputes about the partnership). The primary judge on the first day of the hearing made an order pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) for the separate determination of the question as to whether the Broses were entitled to the relief claimed in prayers 1 to 5A of their Second Further Amended Statement of Claim (i.e., their claims in relation to declarations of trust and transfers of land), with issues as to the partnership to be heard and determined at a later date (see primary judgment at [99]-[100]).

8. In summary, the primary judge found that, between 2013 and 2019, the Slades made “headline representations” of future benefits to the Broses about the conduct of farming operations on “Slade family land” with the intention of encouraging them to commit themselves to a life on the farm, including the prospect of transfers of land and partnership interests to the Broses (but with the precise terms upon which those transfers were to take place left uncertain) (primary judgment at [39(a)-(b)]). His Honour found that the Slades encouraged in the Broses a belief that they would acquire most of the land upon which the Slade family farming business was conducted, and the partnership business as a going concern; and that they gave reassurances to the Broses whenever anxiety was expressed (as it often was) that they were dependent on the Slades’ continued representations (primary judgment at [39(c)-(d)]). His Honour found that the Slades’ conduct in proceeding to liquidate the rural land and assets denied the Broses the land that they had expected to acquire and required them on their own account to acquire plant and equipment to replace that of Slade Pastoral Co to which they had earlier had access ([44]).

9. The primary judge found in favour of the Broses’ claims, holding that the Slades “clearly and unambiguously did represent that the Broses would receive their properties” ([185]); that the Broses did rely (reasonably so) on those representations ([192]); and that the Broses acted upon the representations in such a manner that, should those representations not be honoured, they would suffer substantial detriment ([194]). His Honour found that the Disputed Properties were held on a constructive trust, applying the equitable principles of proprietary estoppel by encouragement ([207], [220]).

1. As to what was appropriate by way of relief (see [212]), taking into account the acceleration of the interests that the Broses were acquiring by reason of the orders (since the contemplated timeline for the transfer of the last of those properties was not until July 2026), the primary judge ordered: a payment by the Broses to the Slades of $500,000; releases by the Broses of their claims to Misery and a one-third share of Gilgowrie, permitting the sale of those properties through IJAAMOTT; and that Ostenleigh, Ozone Park and Reserve be vested in the Broses, subject to a charge to secure their payment of the $500,000 and an obligation to share the net proceeds of any sale of those properties should the properties be sold within five years of the date of the Court’s orders. The primary judge ordered the parties to bear their own costs (a decision that the Broses seek leave to challenge).

2. On 27 September 2023, following the entry of orders on 5 September 2023, the Slades transferred the three properties in question in this appeal (Ostenleigh, Ozone Park and Reserve) to the Broses, who are now the registered proprietors thereof. On 5 October 2023, the Broses paid the sum of $500,000 to the Slades (in compliance with Order 1(a) of the orders made by the primary judge). On 15 November 2023 a Deed of Charge was executed pursuant to Order 1(b) of those orders. The Broses have commenced a new farming operation independent of the Slades.

3. By their Notice of Appeal filed on 17 November 2023, the Slades allege error in the findings by the primary judge as to: the representations made by them; the Broses’ conduct in reliance on those representations; and the detriment that would be suffered if there was a departure from those representations (see Grounds 1-6, set out in due course below). The grounds also allege error in the failure to find that there had been a relevant change in circumstances (Ground 7). In essence, the complaint by the Slades is that, in all the circumstances, it was not unconscionable for them to depart from such representations as they had made in relation to the transfer of the Disputed Properties to the Broses; relevantly, those circumstances being that the earlier representations had been honoured and that the later representations were premised or conditional on the continuation of the family partnership and the family relationship remaining intact (neither of which is now the case).

4. The Slades seek orders that the Disputed Properties be transferred back to them, and that they re-pay the sum of $500,000 to the Broses. Bruce has affirmed an affidavit on 15 April 2024 (see AT 3.4-5) as to what the Slades would be prepared to do in the event that the appeal is upheld in order to address concerns to which Kellie had earlier deposed, in an affidavit of 15 March 2024, as to the position in relation to the farming of the properties that were transferred to the Broses pursuant to his Honour’s orders. As adverted to above, the Broses have sought leave (if leave be necessary) for a cross-appeal as to the costs orders made by the primary judge. There is no challenge by either side as to the conditions imposed by the primary judge to reflect the acceleration of the Broses’ receipt of the three properties transferred to them pursuant to his Honour’s orders.

5. There was no application by the Slades for a stay of the orders made by the primary judge. In circumstances where on this appeal the Slades have sought orders for the re-transfer of the Disputed Properties and where the Broses, in their written submissions, have contended that there is no power to make such orders (on the basis that s 42(3) of the Real Property Act 1900 (NSW) (Real Property Act) will prevail over any order that might be made under s 75A(1) of the Supreme Court Act 1970 (NSW)), the Slades advised the Court shortly prior to the hearing of this appeal that their case might involve a challenge to the correctness of Ta Lee Investment Pty Ltd v Antonios [2019] NSWCA 24 (Ta Lee). The Slades’ position in that regard was that Ta Lee was of no precedential force and/or must be confined to its facts, and that a challenge to the correctness of Ta Lee was not required, but that, to the extent necessary, they sought leave to challenge the correctness of that decision. The Court declined to sit an enlarged beach to determine the appeal given the practical inconvenience that this would have occasioned and the ability to distinguish Ta Lee on its facts.

6. For the reasons that follow, I am of the view that the appeal should be dismissed, that leave to cross-appeal should be granted, and that the cross-appeal should be allowed.

Background

16. It is convenient at this point to set out in some further detail the factual background to the dispute.

Slade family land

17. Briefly, the ownership of the various parcels of land prior to the orders made by the primary judge was as follows.

18. Bruce was the registered proprietor of Ostenleigh, Ozone Park (both acquired in 1978) and Reserve (acquired in 2011) (primary judgment at [11]). Together, those three properties comprise 1,672 acres ([9]). Gilgowrie and Misery (which were devised to the Slades by a neighbour in November 2018 and registered in their names in June 2019) were transferred by the Slades in November 2019 (without prior notice to the Broses) to IJAAMOTT, a company controlled by the Slades, as trustee for Mekete Super Fund (the Slades’ self-managed superannuation fund) ([11]). Gilgowrie and Misery together comprise 970 acres ([10]).

19. Glendlyn (which was transferred to the Broses in November 2021) was acquired by Bruce in 2011 and comprises 743 acres ([13]). The Broses are also the registered proprietors of the two Sandridge properties: Sandridge Home (which they acquired in December 2013 with assistance from the Slades) and Sandridge Farm (which was acquired at the same time with the Broses (as joint tenants) as to one half share as tenants in common with the Slades (as joint tenants) as to the other half share), which was then transferred to the Broses in July 2019 ([13]). These three properties together comprise 1,943 acres.

20. The remaining property, Willawa, which comprises 1,049 acres, was Bruce’s family home ([12]). It was acquired by Bruce from his mother in 2002 (and sold to an unrelated party in 2023).

21. At the time of the proceedings, the agreed value of the Disputed Properties was about $3,850 per acre ([90]).

Position in late 2013

22. As already noted, in late 2013, the Slades farmed a number of properties in Quandialla (at that time, Willawa, Ostenleigh, Ozone Park, Reserve and Glendlyn). At that time, the Broses were living and working in Townsville (Kellie with NAB as an Agribusiness consultant; Garreth as a Corporate Agribusiness manager for ANZ), where they had purchased an apartment ([17]-[18], [112] of the primary judgment).

23. The Broses allege that the Slades made a series of representations to them over the period from 2013 to 2019 in relation to the Slade family farming land (see below) on which they relied. The Slades emphasise that the content of those pleaded representations differed and that, logically, the Broses cannot have relied on the later (as then not yet made) representations when making the initial decision to move to Quandialla in 2014. The content of those representations and the context in which they were made, be summarised as follows.

2013 Representations

24. The Second Further Amended Statement of Claim (filed 1 May 2023) pleads a series of representations made in 2013 (see at [12]-[14]) in relation to the relocation by the Broses to Quandialla to raise a family on a farm.

25. The first pleaded representation (see at [13] “First Equity Representation”) was alleged to have been made in October 2013 in a conversation at Ostenleigh to the effect that the Slades would give the Broses equity in a new block of land that had come up for sale (near Ostenleigh), equity in the business (i.e., the Slade Pastoral Co partnership) and then equity in the land owned by the Slades. The “new block of land” comprised what are known as the Sandridge Home and Sandridge Farm properties, collectively the Sandridge properties.

26. The Broses’ evidence was that, during this period, the Slades said that, if the Broses made the move and Garreth helped with farming, the Slades would purchase Sandridge Home and Sandridge Farm, with Sandridge Home to be registered in the Broses’ names and Sandridge Farm to be registered jointly, and would pay Garreth a wage of (initially) $50,000 per annum net of tax plus extensive benefits (see primary judgment at [19], [110]-[111]); and, further, that “if, after three years, everything is working”, the Slades would transfer their half interest in Sandridge Farm to the Broses and the Broses could join the Slade Pastoral Co with “25% to start” (affidavit of Garreth Brose sworn 17 April 2023 (Garreth’s affidavit) at [32]). The Slades emphasise that all of this, namely, the transfer of the Slades’ half interest in Sandridge Farm and a 25% interest in the Slade Pastoral Co occurred, although I interpose to note that it was not until mid-2019 whereas the representation was that this would occur after three years if everything was working.

27. The Broses note that the evidence (accepted by his Honour) as to the 2013 Representations included statements by Donna that: the Slades would pay Garreth “$50,000 a year to start, which is low, but you will have the home block”; “[a]fter three years, if everything is working, we will transfer you the other farm block and you can come into the business as 25% partners as a start. Over time the rest of the business and some more land will be passed onto you as long as we have a good retirement plan” as well as: Donna’s reference to “a long term view that you guys will have the whole business and more of the land to run it” and “the aim would be to hand on a viable business and the land to run it while we have a comfortable retirement” (see Garreth’s affidavit at [32]); and statements by Bruce that “If you ever came home you’d have to work for equity” and “If you move here, you would be working for equity in the partnership and in the rest of the land. The longer you are here the more you will get” and “We can’t pay you what you’re on in Townsville but you will work for equity” (affidavit of Kellie Lisa Brose sworn 17 April 2023 (Kellie’s affidavit) at [23], [36], [41]).

28. Thus, the oral representations in 2013 encompassed more than simply the Sandridge properties and the partnership interest (extending to the whole of the partnership business and “more land”, albeit without specific reference to particular properties and with no certain timeline).

29. At [110]-[111], the primary judge rejected, as a matter of credit, the Slades’ evidence that they offered the Broses no prospect of future equity (and that Garreth had volunteered to be paid $50,000 per annum).

NAB Proposal

30. On or around 16 October 2013, a financing proposal (prepared by the Broses and signed by the Slades) was submitted by the Slades to NAB (the NAB Proposal) in relation to the acquisition of the Sandridge blocks of land. The Broses rely upon representations made by the Slades in the NAB Proposal (the “NAB Proposal Representations”) (see at [14] of the Second Further Amended Statement of Claim), which broadly form part of the 2013 Representations.

31. Relevantly, the NAB Proposal referred to the “strategic acquisition of additional country to form part of a, as yet undefined, succession plan” with stated purposes including the retention of the existing and any new holdings within the family group, the relocation of the Broses back closer to the family, and beginning a framework to allow the Slades to work towards “semi/retirement”.

32. The NAB Proposal recorded that the property (the “Sandridge property” or strictly properties) was to be purchased under the following structure: the Home Block (i.e., Sandridge Home) to be held by the Broses as joint tenants; the secondary block (i.e., Sandridge Farm) to be held by the Slades (as joint tenants) and the Broses (as joint tenants) as tenants in common in equal shares; and for the transfer of the secondary block holding to the Broses on 1 July 2016 pending completion of a number of conditions to be tabled within a “Family Agreement”. The NAB Proposal envisaged that the Broses would pledge the Home Block as security for the total borrowings under the Slade Pastoral Co (via a guarantee and indemnity) in conjunction with their share in the secondary block (and that ‘[p]ost hand over” of the Slades’ share of the secondary block, that would remain within the current and proposed security pool to support any outstanding partnership borrowings (with Willawa to remain unencumbered)). As it transpired, Willawa did ultimately become encumbered.

33. The “Family Agreement” was referred to as an “internal document” to be drawn up between the Slades and the Broses, which was to cover, among other things, a clause stating what was to happen if the Broses were not willing to continue the proposed agreement after 1 July 2016 and a clause stating that “if both parties are amicable to continue the proposed venture” the Broses would become joint partners with the Slades in Slade Pastoral Co on 1 July 2016 (with the Broses obtaining a 25% share each in the business). The contemplated Family Agreement was also to include a clause stating that “formal succession planning process is to commence” by 1 January 2016 “with all family members involved in the process to ensure a fair and equitable outcome for all parties and that all discussions are held open forum”.

34. The NAB Proposal recorded, under the heading “Garreth and Kellie’s future plans”, that:

…

As part of the succession planning piece, both Kellie and Garreth would like to take over ownership of the existing land holdings to ensure ongoing viability as well as make strategic purchases to ‘fill in the blanks’. Both Garreth and Kellie are aware that indepth conversations and financial modelling will be required to be completed and discussed at a later date with all family members as part of the succession planning process (may not happen but would be a goal).

Acquisition of Sandridge properties and relocation to Quandialla

35. In November 2013, NAB approved finance for the acquisition of the Sandridge properties and on 20 December 2013 those properties were acquired (and held in the structure referred to above – i.e., the Broses acquired the whole of the Sandridge Home property and half of the Sandridge Farm property) (primary judgment at [14]). The primary judge noted that the mortgages over the Sandridge properties were met by the partnership, the debts of which were secured against all the Quandialla properties owned by both the Slades and the Broses; and guaranteed by the Broses and the Slades (see primary judgment at [41]).

36. In about January 2014, the Broses relocated from Townsville, Queensland to Quandialla (primary judgment at [17]-[18]) and, on 22 January 2014, Garreth commenced working as an employee of the Slade Pastoral Co (Kellie continued her role in agribusiness banking as a part-time remote employee) (primary judgment at [112]). The Slades, in effect, treat the 2013 Representations as therefore having been fulfilled and as no longer of relevance in relation to the relief claimed by the Broses.

2015/2016 Representations

37. The next set of representations pleaded by the Broses comprised representations alleged to have been made at family meetings in October 2015 and July 2016.

38. By way of context, leading up to those meetings there was an altercation between Bruce and Garreth at Sandridge on 21 May 2015 (see Garreth’s affidavit at [81]-[109]; Kellie’s affidavit at [76]-[88]; affidavit of Donna Maree Slade affirmed 5 May (Donna’s affidavit) at [65]-[71]; affidavit of Bruce Roland Slade affirmed 5 May 2023 (Bruce’s affidavit) at [77]-[79]). Garreth’s evidence (see at [95]-[102] of his affidavit) is that after the May 2015 altercation he told Kellie that he was not putting up with this anymore and he needed to leave, and that he spoke to various recruiters about job opportunities elsewhere but that the Slades apologised and said they wanted them to stay (and that Kellie had “swallowed the lines on ‘we love you’, ‘have faith’, ‘trust us’”). Garreth deposed that by 2015 it became clear that his risk assessment and exit strategy in 2013 turned out to be too simplistic; that it was “not as easy to simply walk away having wasted some time in Quandialla” and that once they started having children and “putting down roots” in Quandialla it was no longer just a case of returning to the banking sector (see at [109] of his affidavit).

39. The Slades emphasise that Garreth stayed at Quandialla for family reasons (though in oral submissions it was accepted that staying on the farm from 2019 to 2021/2022 could of itself amount to detrimental reliance on the later representations – see below; 23/04/2024; AT 5.40).

September 2015 representations

40. At [20] of the Second Further Amended Statement of Claim, it is alleged that in September 2015 Bruce represented to Garreth that, if Garreth did not pursue other business opportunities and made the farming business his priority, the Broses would get all of the business and most of the land. The representation was particularised as being oral and made at the Ostenleigh workshop. Garreth’s affidavit at [115] places the context of this discussion as a suggestion by him to Bruce that he and Kellie purchase a baler to make some additional money without relying on Slade Pastoral Co. Garreth’s evidence is that Bruce said “Trust us” and “you will get all this”.

41. The Broses point out that there were no specific conditions or qualifications on the September 2015 representations by Bruce to Garreth that he and Kellie “will get all the business and most of the land” and that they were “working for equity and most of [the land] will be yours” (the making of which his Honour accepted at [190]), and that Bruce made no reference in that conversation to the then imminent October 2015 Proagtive succession planning meeting (see below).

6/7 October 2015 Proagtive meeting

42. Next, at [21]-[23] of the Second Further Amended Statement of Claim, are the pleaded “2015 October Proagtive Representations”. These representations were alleged to have been made at a family meeting in Young that was initiated by the Slades through “Proagtive Succession Planning Specialists” and held on 6 and 7 October 2015.

43. The Broses alleged (at [23]) that, during this meeting (attended by the Slades, the Broses, Melissa and her husband, and Tegan), they represented that they wanted a clear plan for their future; and that the Slades represented that: they wanted the family brought into the farming operation prior to their retirement; and that the Broses would be transferred Ostenleigh, Ozone Park and Glendlyn, the Sandridge properties (constituted by Sandridge Home and Sandridge Farm) and the stock and plant of Slade Pastoral Co.

44. The Broses particularised those representations as being recorded in the “Family Business Meeting Summary”.

45. The primary judge found that the October 2015 Proagtive meeting “resulted in a highly qualified document” (primary judgment at [50]), referring to the section in that document headed “Family In-Principle Agreement” in which the Slades’ “present intentions” about the disposition of the land then held in Bruce’s name were recorded.

46. Relevantly, the document stated that the Slades’ “present intentions” were reflected in the “Estate Plan as at 07/10/2015” set out at [14] of the document; and that it was their intention to review their estate plan annually in order to update it in line with the progress of their plan to build an off farm investment portfolio via a self-managed super fund, reduce debt and purchase a house in West Wyalong. The first item in the “Action Plan” section of the document was for all parties to update their wills.

42. The “Estate Plan as at 07/10/2015”, which his Honour construed as referring to what was to be left under the Slades’ wills, contemplated that, were the Slades to die at that time, they intended that Melissa would acquire Willawa, Tegan would acquire Ostenleigh Homestead, and Kellie would acquire the balance of the land and partnership assets (with provision for the three daughters to share off-farm assets) but that the position ten years hence would be that Kellie would acquire all the land and partnership assets (and Melissa and Tegan to share the off-farm assets). His Honour attached significance to the fact that the Slades’ “present intentions” were recorded as including a plan that within ten years Kellie would acquire all of the land then held in the name of Bruce together with stock and plant (see primary judgment at [50]).

43. The “Family In-Principle Agreement” recorded a commitment by the family members to implement the decisions that had been made at the family meeting; including the agreement at [3] “by all family members that Bruce and Donna have the ability to do whatever they choose as they begin to make the transition, and eventually move into the next stage of their lives” and the recognition that “it is their right and reward to retire comfortably and as they choose”. The Broses say that the statement that “Bruce and Donna have the ability to do whatever they choose” related to the timing and manner of their retirement, referring to the statement that “it is their right and reward to retire comfortably and as they choose”.

44. The document also recorded that it was very important to the Slades to keep the farm in the family and to be able to transfer a viable farming business (at [4]); that each of their daughters be treated fairly (noting the understanding that fair does not necessarily mean equal) (at [5]); and that the Slades “need to feel comfortable that their needs will be securely met before they will consider any transfer of assets and business ownership. They need time to investigate how and when this might occur, and the business structure that would be most suitable to allow this to occur” (at [6]). The document recorded Donna’s adamant view that Tegan be a farmer only if she was married to someone keen to farm and that it was agreed that “the door remains open for Tegan to become a farmer until 2020” (i.e., when she turned 30) (a door that, on that timeframe, had clearly closed by the time in late 2021/early 2022 the Slades renounced their 2018 “agreement” as to a time plan or milestones for transfer of assets to the Broses – see below) (at [11]).

45. The document also recorded at [13] that Garreth’s present compensation package and job role were not reviewed in the meeting (a matter of some complaint by him – see his affidavit at [119]-[120]). As at 24 July 2016, Garreth’s compensation package was apparently annualised at $127,000 pa (this figure was arrived at by the Slades through adding the value of various services paid for by the Broses (such as phones, electricity and car fuel and maintenance) to his actual wages of $72,495 and superannuation of $6,877).

46. The “Family In-Principle Agreement” provided (at [12]) for fortnightly on-farm operational meetings; quarterly management meetings; and an annual family meeting “to update the whole family on the position of the business, and review the business, succession and estate plans”. It does not appear that all, if any, of those occurred. In the context of the latter, it was noted that “[a]s succession planning is an evolving process, this meeting provides an opportunity for fine tuning if and when that is what is required” and that the intention was that this meeting be “facilitated”.

47. Kellie’s evidence was that, at the end of the meeting, the convenor observed that the “in principle agreement” was only “an initial plan” and that the family would need to discuss things further (see at [111] of her affidavit). The Slades maintain that everything in that document was aspirational. However, the primary judge noted (at [51]) that in cross-examination Bruce accepted that it would have been reasonable for Kellie, looking at this document, to form the view that in ten years’ time she would be the legal owner of all the farmland then owned by the Slades in Bruce’s name. This observation is the subject of complaint by the Slades, who say that Bruce’s subjective understanding was irrelevant.

48. The Broses say that the October 2015 “Family In-Principle Agreement” was consistent with the oral representations to the effect that the longer the Broses stayed on the farm, the more land they would obtain.

49. The Broses’ pleading then alleges the making of further representations after a second Proagtive meeting that was held in July 2016 (see [25A] of the Second Further Amended Statement of Claim). The context in which these representations were made is that the Slades did not transfer their share of the Sandridge properties (or the promised partnership interest) to the Broses on 1 July 2016 (as the Broses contend the Slades had represented they would do) (see [24] of the Second Further Amended Statement of Claim).

27 July 2016 Proagtive meeting

55. On 27 July 2016, a second Proagtive facilitated family meeting was convened, this time at Dubbo.

56. The minutes of this meeting (prepared by the Proagtive consultants) noted, under the heading “Wills and Estate Update”, that the Slades advised that they had sought additional advice since the original meeting; that they had determined to move assets to superannuation; and that the long term picture had changed. The minutes recorded that the Slades had set up and made a contribution to the super fund for the last tax year and that this would be part of the ongoing business plan; and that the effect of the changes to be made was that a house was to be purchased and superannuation “be split three ways”; and that a transfer of a parcel of land into the super fund may be an outcome. The Slades advised that the plan was to update their wills in the next few weeks and that the wills were to be reviewed on a frequent basis.

57. The minutes recorded that the Broses expressed disappointment about only finding out this change at the meeting and that they felt “blindsided” by the new information; and that a heated discussion followed “that set the tone somewhat for the day”.

58. Relevantly, the Broses have alleged that, in the months after the second Proagtive family business meeting, the Slades represented on a number of occasions that: the Broses needed to trust the Slades; and that if the Broses continued to work in the Slade Pastoral Co business they would be transferred all of the Slades’ ownership interest in the Sandridge properties, Ostenleigh, Ozone Park and Glendlyn and all of the Slades’ ownership interest in Slade Pastoral Co after the Slades built a new house in West Wyalong (see at [25A] of the Second Further Amended Statement of Claim) (see also Kellie’s affidavit at [133]).

59. The primary judge said at [54] that the distress of the Broses arising from their disappointment at the outcome of the second Proagtive meeting was heightened by what they perceived to be the increased burdens placed upon Garreth in the day-to-day management of the family farm, as the Slades left more of that work to Garreth.

2018 Representations

60. The next set of pleaded representations alleged occurred in 2018/2019.

October 2018 meeting

61. The Broses have alleged (at [26] of the Second Further Amended Statement of Claim) that, in October 2018, they approached the Slades and requested the transfer to them of the Sandridge properties and associated debt to enable them to farm as their own partnership separate to Slade Pastoral Co and that, during this meeting, the Slades represented that: the Broses needed to trust them; and that the Broses would be transferred all the Slades’ ownership interest in the Sandridge properties, Ostenleigh, Ozone Park and Glendlyn and all of the business of Slade Pastoral Co.

62. Garreth’s evidence is that after the October 2018 meeting he left Quandialla for about three days to think about his and his wife’s next steps and their future (see at [153]-[161] of his affidavit).

63. The Broses have alleged that, following the representations made by the Slades in October 2018, they offered to sell Sandridge and leave the farming business (because, inter alia, the succession plan had not been implemented and it was not viable for them to continue as they needed to support two children and their third child was due in January 2019) (see at [26] of the Second Further Amended Statement of Claim).

64. Kellie wrote a handwritten letter that was sent by email to the Slades on 10 November 2018 in which Kellie complained about the uncertainty and suggested that the Slades were just wanting to keep stringing the Broses along. The letter received a blunt response from Donna that “Thank you for jumping on the current bandwagon & pointing out our faults as awful people. It will take a lot of digesting”.

November inheritance of Gilgowrie and Misery

65. In November 2018, as referred to earlier, a neighbouring property owner died, devising Gilgowrie and Misery to the Slades (primary judgment at [11]). Hence, subsequent succession/estate plans refer also to those properties (which were ultimately transferred to IJAAMOTT as trustee for the Slades’ superannuation fund in November 2019).

Succession planning meeting December 2018

66. What next occurred was a “succession planning meeting” on 18 December 2018 between the Slades and the Broses with Ms Jenny Officer, the Slades’ accountant.

67. The Broses have alleged (see from [29] of the Second Further Amended Statement of Claim) that at that meeting the Slades acknowledged that Garreth had been working for a long time on the farms for a minimal wage on the understanding that he and Kellie would be transferred the land and the business; and acknowledged that they would execute a legally binding document to give effect to the agreement struck at that meeting.

68. It was alleged that the Slades agreed and represented that they would cause the transfer of the following properties to the Broses on the following dates: the Sandridge properties on 1 July 2019; Glendlyn on 1 July 2021; Ozone Park on 1 July 2024; Reserve, Ostenleigh, Misery and one-third of Gilgowrie on 1 July 2026; and that the Slades would formalise a partnership arrangement providing for the Broses to have the following interests each in the partnership (12.5% on 1 July 2019; 25% on 1 July 2021; 37.5% on 1 July 2024; and 50% on 1 July 2026). The pleaded representations included that Kellie would not inherit under her parents’ wills and that the Slades’ other daughters (Melissa and Tegan) would inherit the estate assets under the wills (Willawa, two-thirds of Gilgowrie, a West Wyalong house and superannuation).

69. The Broses have alleged that the Slades undertook to have their solicitor draft a formal partnership agreement and a formal deed of family arrangement documenting the agreement made at the December 2018 meeting.

70. The notes prepared by Ms Officer of that meeting (consistently with the above) refer to a decision to continue the “existing partnership” and a timeline for the transfer of interests in the partnership (the Slades 100% as at 1 July 2018; 75% at 1 July 2019; 50% at 1 July 2021; 25% at 1 July 2024 and 0% at 1 July 2026; with the balance in each time frame to be held by the Broses). (At the very least, this indicates that the Slades had not made good the initial promise of the transfer of a 25% interest to each of the Broses in the partnership by 1 July 2016; and no doubt explains at least in part the reference by Kellie in her November 2018 handwritten letter to the Slades wanting to keep stringing them along.)

71. Relevantly, the meeting notes also include a timeline referring to the properties suggesting that it was envisaged that the Broses would be transferred interests in the Sandridge North properties (apparently a reference to Sandridge Farm) on 1 July 2019; Glendlyn on 1 July 2021; Ozone Park on 1 July 2024; Reserve , Ostenleigh and Misery on 1 July 2026 and one-third of Gilgowrie “tbc” (Garreth’s understanding was that “tbc” related to the manner in which this was to be structured; not whether it was to occur (Garreth’s affidavit at [172])).

Deed of Family Arrangement June 2019

72. The significance of the meeting notes is that these came to be annexed to the Deed of Family Arrangement (DOFA) executed by the parties in June 2019.

73. The Broses have alleged that upon the signing of the DOFA the Slades again agreed and made the representations as to the matters set out at [29] of the pleading (see as set out at [68] above), these being referred to in the pleading as the June 2019 Representations, although in submissions also referred to as the DOFA Representations (see [31] of the Second Further Amended Statement of Claim).

74. The operative text of the DOFA is set out at [68] of the primary judgment. Significantly in my opinion, the DOFA was executed formally as a deed by each of the Slades and the Broses. The Recitals include the statement at Recital C that:

All parties have consulted with their Accountant, Jennifer Officer of Twomeys Young in relation to formulating a succession plan acceptable to all parties that will ensure that Bruce and Donna are able to have a secure retirement that will also provide some long term financial provision for their daughters, Melissa and Tegan and also enable Garreth and Kellie to progressively acquire [sic] various lands owned by Bruce and Donna on fair terms to all concerned.

75. Clause 1 records the agreement of the parties that “[t]hey will adopt as a guideline those meeting notes that were formulated at a meeting held on 18 December 2018, a copy of which is attached and marked ‘A’”.

76. Clause 2 contains an acknowledgement that “circumstances may change beyond the control of each of them whereby despite the best intentions of the parties the agenda previously agreed to marked ‘A’ cannot be complied with however all parties agree to make ever [sic] endeavour to comply with that agenda in the future”.

77. Clause 3 expressly provides that the terms of “this agreement shall be binding as far as possible upon the heirs, executors and assigns of all the parties hereto”.

78. As far as the meeting notes are concerned, the Slades emphasise that, under the heading “What will a successful succession plan look like?”, the listed points include “farm as a going concern”, “fair outcome — fair outcome itself may change over time”, “fair is not necessarily equal”, “B&D wills need to be updated regularly”, “plan will provide clarity, security, direction, deadlines and timeframes”, “G&K want to feel like they have worked for and not been given farm” and “relationships intact”; and that, later in the notes, there is reference to the later recorded “need to ‘check in’ with Bruce as plan progresses to ensure he is ready to hand-over control”.

79. The Slades also point to the recording of assets and debts as at 18 December 2018 (the values of the parties’ properties and assets totalling $1.8 million, and the partnership’s debts totalling $2.8 million) noting that the primary judge found these were used as “indicative of the financial implications anticipated to flow” (noting [72]-[73] of the primary judgment).

80. His Honour found (at [57]) that the central effect of the balance of the notes was that:

with financial adjustments to accommodate the interests of all parties in the farming business as a going concern, the Slades would progressively transfer to the Broses their interest in their land and their interest in the partnership business so that by 1 July 2026 the Broses would be the registered proprietors of the land, would have a 100% interest in the partnership and would be responsible for the partnership debt.

81. The Slades say that, at each phase, the meeting notes set-off the debts assumed against the assets which might be acquired by the Broses, producing an “equity ratio” of 50-60% (referring to the primary judgment at [73]); and that the ultimate 50% gap in favour of the Broses was then closed by the “financial adjustments” to which his Honour referred at [57], being the Slades’ retention of certain partnership assets; that the partnership would continue to meet various of their expenses and provide them with drawings in excess of their contemplated future shares; and that $350,000 would be paid by the Broses to the Slades as “funds ex sale Sandridge [Farm] to G&K”. The Slades point to the acceptance by the Broses that, based on the 2018 figures used, the notes contemplated that by 2026 they might receive about $4.58 million in land in exchange for about $4.49 million, citing the particulars to [42A] of the Second Further Amended Statement of Claim.

82. As adverted to above, his Honour found (at [72]) that the financial information contained in the meeting notes was indicative of the financial implications anticipated to flow from the transfer of property; saying that it was not to be read with such particularity as to constitute an agreement for the transfer of property at fixed prices. The Broses accept that this was an indication of financial outcomes but that the financial information was not “set in stone” (24/04/2024; AT 60.17-27). However, they emphasise his Honour’s finding (at [75]) that the one constant of the meeting notes, read in the context of the DOFA, was the agreement for land to be transferred by the Slades to the Broses at given dates “coupled with the declared purpose of the Deed”.

Events after the DOFA

83. The Slades point to the fact that some of the milestones in the DOFA were met in 2019 and 2021 (see primary judgment at [61]), namely the transfer of the Slades’ one half interest in Sandridge Farm in July 2019 and the transfer of Glendlyn in October/November 2021. His Honour noted that the second of those transfers was not in accordance with the milestone but was “near enough to time” – see at [75].

84. As to the July 2019 transfer of the Slades’ half of Sandridge Farm to the Broses, the transfer noted the purchase price as $405,000. An Acknowledgement of Gift was executed in which there was an agreement that $55,000 of that amount was a gift. As to the sum of $350,000, this was paid from the proceeds of sale in August 2019 of the Broses’ unit in Townsville. The primary judge noted that there was a dispute between the parties as to whether that sum was properly characterised as a payment of a debt by the Broses or, as the Broses, believed, their contribution to the family (see [64]).

85. A Partnership Agreement was also signed on 13 June 2019 (the day of the DOFA) which attributed to the Broses a 25% interest (12.5% each) in the partnership.

86. Later, but only shortly before the hearing at first instance, the Slades agreed that “25% interest in the Slade Pastoral Co. partnership can be taken to have been transferred to your clients with effect from 1 July 2021” (see the letter dated 27 April 2023 from the Slades’ solicitor to the Broses’ solicitor in which this was described as a “concession”, the effect of which was said to be that the solicitors’ respective clients “can be taken to each hold a 50% interest in that partnership on and from 1 July 2021”). That, of course, was wholly inconsistent with the adamant position adopted by the Slades in January 2022 (see below). His Honour noted that this “belated shift in attitude” was a self-interested recognition of the tax consequences for the Slades if the partnership interests were 75/25, as they had up until then contended (see primary judgment at [118]).

87. The Slades acknowledge that throughout this period, the partnership farmed all of the properties.

“Falling out”

88. The primary judge found that “simmering tensions” erupted in a catastrophic falling out in October 2021 and January 2022 (primary judgment at [24]), during which Garreth made physical contact with Bruce, the extent of which was disputed (see Garreth’s affidavit at [220(a)], Bruce’s affidavit at [124]-[127]).

88. The lead up to those simmering tensions (by reference to Garreth’s evidence) includes the disclosure by Bruce in June 2020 that the Slades had (without prior notice to the Broses) put Gilgowrie and Misery into their superannuation fund. This disclosure occurred when Bruce informed the Broses that the partnership needed to add in a lease payment to the superannuation fund for use of that land (Garreth’s affidavit at [185]). Garreth deposed that, when challenged about this, by reference to the arrangement that had been agreed or discussed (referring it seems to the 2018 meeting) and that he and Kellie were meant to get that land down the track, Bruce said to him “We own the land and can do what we want with it” and “Its our land and our business and we can do what we want. When its yours you can do what you want”; and that Bruce shortly thereafter came back and said that it was their (i.e., the Slades’) business and they could do what they wanted.

89. In mid-August 2021, Garreth says there was a conversation in which Bruce told him that he was a 50% partner now (so that he, Garreth, did not need to talk to Bruce “just to talk to someone about “maybe” doing something”). When Garreth said that they had not been given any documents to sign, Garreth says that Bruce said that he and Kellie were “50% partners just like the agreement”, that nothing needed to be signed and asked “[w]hy can’t you guys just accept that?” ([188] of Garreth’s affidavit).

90. On 21 October 2021, contracts for the sale of Glendlyn to the Broses were exchanged. A payment of $630,000 was made from the partnership working account to loan account on 6 February 2022 to satisfy the debt over Glendlyn.

91. The incident in October 2021 (which the primary judge accepted was the eruption of the catastrophic falling out) followed Garreth making enquiries as to a purchase of a new air-seeder and air-which was necessary for the business, and his attempt, through his banking contacts, to ascertain if there were better rates available for the financing of the purchase. Garreth said that he had a conversation with Bruce on the afternoon of 19 October 2021 in which he raised this (see his affidavit at [192]-[193]). Garreth sent an email at 7.38pm that day forwarding a message as to a meeting with his contact to discuss this (suggesting that the Slades come for a cup of tea if they had time). This elicited a terse text message from Donna that read “[d]ue to lack of communication and courtesy to the majority owners and partners of Slade Pastoral Co the date arranged by yourselves to host George Last doesn’t suit. It’s a courtesy to check before locking in an appointment” ([195] of Garreth’s affidavit).

92. This led to a conversation in which Garreth deposed that Bruce said more than once that “[w]e are the majority shareholders”; that “[y]ou are trying to take our business away from us”; and that he (Garreth) was not authorised to make any decisions for Slade Pastoral without their approval “as we are the major shareholders” (see [196] of Garreth’s affidavit). Garreth deposed that he said to Bruce “so you’re breaking the Partnership Agreement” and Bruce said “[n]ot necessarily, but I’m the majority shareholder”. Claiming a majority interest is, of course, squarely contradictory with the previous confirmation by Bruce in August that the Broses were 50% partners.

93. Garreth has deposed that on 29 October 2021 the Slades came over to Sandridge and that Bruce said “You’ve fucked it you arsehole. I’m not giving you anything” and “You hear me. You fucked my whole family. You. I’m not giving you anything. That agreement is over. You fucked it and now you’re fucked. This is over. You think you can take my business from me? Your [sic] done” ([199] of Garreth’s affidavit).

94. The primary judge found that, in the heat of the moment, on 29 October 2021, the Slades declared that their partnership with the Broses was at an end (see [83] of the primary judgment). The submission by the Slades in these proceedings that they did not renounce the DOFA is impossible to reconcile with what was said at the 29 October 2021 altercation.

95. Then, on 4 January 2022, there was a further altercation between Garreth and Bruce. Garreth accepts that he pushed Bruce in the chest a number of times but says that Bruce was the aggressor and he had asked him a number of times to step away from him (see Garreth’s affidavit at [212]-[220]). Garreth’s evidence was that, during the 2022 confrontation, Bruce “wouldn’t back away so I pushed him hard in the chest and he fell over” (at [215] of his affidavit).

96. The Broses accept that following this incident the relationship with the Slades had irretrievably broken down (see Garreth’s affidavit at [221]) and since January 2022 they have not worked together in the partnership. Effectively, both sides appear to have treated the partnership as having come to an end. On 28 January 2022, the Broses sent an email to Ms Officer with three proposed options for the dissolution of the current partnership, including the transfer to them of Ostenleigh, Ozone Park and Reserve. Ms Officer has deposed in her affidavit affirmed 19 April 2023 at [56] that on 4 February 2022, Bruce advised her that the partnership needed to be split up and the parties needed to operate independently. There were further communications in early to mid-2022 as to the proposed dissolution of the partnership (see [57] to [68] of Ms Officer’s affidavit).

97. The primary judge ultimately found that the Slades diverted their attention from intergenerational land transfers in favour of the Broses to sales of property (including Willawa) outside the Slade family “so as to realise capital gains” ([39(f) of the primary judgment]).

Clearance sale of partnership plant and equipment

99. The Slades arranged for essential plant and equipment to be sold at a clearance sale held on 29 July 2022 (the proceeds of which were used to retire debts secured on the land) (see [39(g)] of the primary judgment). His Honour found that the sale of plant and equipment was only possible because of the false pretence that the Slades were majority partners (and observed that the Slades abandoned this position close to the eve of the hearing, for self-interested taxation reasons) ([118]).

100. The proceeds of the clearance sale of partnership assets ($2.059m) were paid into the partnership working account on 19 August (Donna’s affidavit at [150]). On 29 August 2022, sums of $40,000 and $900,000 were withdrawn from the partnership working account by the Broses.

Sale of Willawa

101. The Slades sold Willawa pursuant to a contract dated 25 November 2022, after which all the partnership debt (including all debt relating to the Broses’ properties) was discharged (primary judgment at [12]). The Broses point to their contribution to the discharge of that debt (see above).

Findings as to Slades’ conduct

102. His Honour found that, when the Slades fell out with the Broses and high land prices were too good to pass by, the Slades determined to show the Broses that they remained in charge of their affairs by selling up, and by denying the Broses the land thought by the Broses to be necessary for a viable farming operation and, certainly, less land than Slade Pastoral Company had had available to generate its profits ([42] of the primary judgment). His Honour said that there was an element of spite in this but (rather charitably) went on to say that it was borne out of frustration, hurt and confusion arising from intergenerational misunderstandings (at [43]). His Honour noted that, by selling up the plant and equipment of the partnership, the Slades imposed debt on the Broses, upon whom it was incumbent to buy replacement plant and equipment if farming operations on their land were to continue (at a cost of $1.3 million) (see primary judgment at [74], [170]).

103. His Honour found that the Slades unilaterally implemented a succession plan by themselves which was built upon their occupation of their house in town (West Wyalong), their accumulation of substantial liquid assets (without debt) and their abandonment of any ongoing interest in the family farm (at [171]).

104. The Slades say that this left the Broses with 1,943 acres of unencumbered farmland worth some $7.44 million and a 50% interest in the partnership’s remaining assets ($1.372 million in cash, cars worth $238,000 and equipment worth $150,000) (referring to the primary judgment at [13], [168]-[169], [171]). In that regard, his Honour considered that the Slades implicitly ignored or at least downplayed the perspective of the Broses as persons engaged in ongoing farming operations which focus on the viability of the farm rather than the realisable capital value of land (see at [36]). Further, his Honour, while accepting the large element of generosity in the Slades’ succession planning, said that this was qualified by burdens imposed on the Broses, including, from the outset in 2013, their guarantees of the indebtedness of Slade Pastoral Co ([41]).

105. The Slades, however, argue that the “guidelines” set out in the DOFA were predicated on: the partnership carrying on; family relationships remaining intact; the property values remaining the same; and the partnership debts being assumed by the Broses as they gradually acquired the Slade family properties. They say that, by 2022, each of those requirements had fundamentally and significantly failed: there had been a “catastrophic” falling out between the Slades and the Broses; the partnership had terminated; property values had skyrocketed, and the Slades had paid out all the debt. The Slades say that, in that context, they had honoured everything that the DOFA had anticipated would be given to the Broses up to that point in time. The Slades portray the Broses’ case as being that, despite the manifest failure of each and every pre-condition to their future acquisition of the Slades’ family properties after 30 June 2021, they should be given them regardless, in an accelerated fashion.

Pleaded claims

106. As noted by the primary judge at [46], the Broses’ claim that the Disputed Properties were held on trust for them was framed in different ways: a remedial constructive trust, on the principles governing proprietary estoppel by encouragement; a common intention constructive trust; or an express trust when the DOFA was executed.

107. The pleaded representations (see [12]-[31] of the Second Further Amended Statement of Claim) have been summarised already.

108. At [34] of the pleading, the Broses plead events that occurred between July 2019 and October 2021 which they allege were pursuant to the agreements and representations at the December 2018 meeting and in the DOFA. Then at [35], they plead that the Slades resiled from the pleaded representations on and from October 2021.

109. The alleged common intention constructive trust is pleaded at [35A]- [35B]. The alleged common intention was that, if the Broses commenced to work in Slade Pastoral Co and increased their share of the work in Slade Pastoral Co in comparison with the Slades over time, then the Broses would obtain: an ownership interest in the Slades’ farming land which would increase over time resulting in them becoming the sole owners of most or all of the Slades’ farming land; and an ownership share increasing over time in Slade Pastoral Co resulting in them becoming the sole owners of Slade Pastoral Co.

110. Relevantly, at [35B] it is pleaded that the Broses have acted to their detriment in reliance on that common intention. The reliance particularised includes: (i) reliance on the 2013 Representations (including in moving to Quandialla, Garreth working for Slade Pastoral Co and the Broses giving an unlimited guarantee and indemnity of the partnership loans and permitting Slade Pastoral Co to farm and derive revenue from the Sandridge properties without charge); (ii) reliance on the 2015 and 2018 Representations (including in remaining on the property, increasing their share of the work, Garreth not pursuing contracting opportunities, not moving away, and remaining guarantors of all loan facilities); and (iii) reliance on the December 2018 and June 2019 representations (selling the Townsville apartment at a loss and selling their shareholding to pay the Slades the agreed sum of $350,000).

111. From [35C]-[35D] there is the pleaded alternative claim based on proprietary estoppel by encouragement. In this section, the Broses allege that the pleaded representations induced expectations in them as identified at [35C(a)-(h)]. The particular expectations are separately identified in relation to each of the pleaded representations. At [35D], the allegation of detrimental reliance on the expectations is particularised by reference to the particulars to [35B].

112. From [35E]-[35J] is the pleading as to estoppel. Then at [39A]-[39B] the allegation of an express trust arising out of the DOFA. The pleading goes on to make claims against IJAAMOTT ([39C]-[39E]) and to plead the proprietary relief claimed in relation to the properties ([39F]-[42A]). This section includes the pleaded willingness and ability to do equity towards the defendants (see [42A(c)], the particulars to which include the willingness to do such further equity as the Court orders). The final section of the pleading contains the claims in relation to the partnership ([46]-[50]), including an application for the appointment of a receiver, the winding up of the Partnership, and the taking of partnership accounts.

Primary judgment

113. In the introduction section of his reasons, the primary judge made various findings relevant to his ultimate conclusion that the Disputed Properties were held on constructive trust for the Broses.

114. At [18], his Honour referred to their relocation to Quandialla as representing “a major milestone in their life journey” and, relevantly, a “point of commencement for their claims for relief against the Slades”. His Honour said that, in committing themselves to a farming life in association with the Slades in Quandialla, Garreth “in particular” gave up a substantial lucrative career in bank management as an agribusiness manager.

115. His Honour observed at [19] that from the time the question of the Broses moving to Quandialla was first broached the parties’ relationship had been preoccupied by “succession planning”. While his Honour considered that during the indeterminate “trial period” the Broses’ expectations might fairly be considered aspirational ([20]), those expectations “crystallised” during 2015 following the conflict between Bruce and Garreth in May 2015 ([21]). His Honour found that the Broses remained on the farm in reliance upon what they perceived to be assurances by the Slades that they would eventually acquire all the farm (other than Willawa) as their own (at [21]).

116. His Honour then referred to the Proagtive meetings, saying that the October 2015 meeting “fuelled the Broses’ expectations that they would acquire the bulk of the Slades’ farmlands, expectations which Bruce in cross-examination conceded were reasonable” and that the second meeting did not dampen those expectations (see at [22]). His Honour referred to dissatisfaction on the part of the Broses as the Slades “appeared to qualify their commitment to timely transfers of land” and Garreth was bearing an increasingly heavy workload (as the Slades were beginning to enjoy extended holidays in semi-retirement).

117. His Honour said that, from the December 2018 meeting there emerged a timeline for the parties’ intergenerational transfers (see at [23]) and that the in-principle agreement at the meeting was given “a degree of formality” with entry into the DOFA which “solidified” the Broses’ expectations of succession to the family farm ([24]).

118. The primary judge described the catastrophic falling out on 29 October 2021 and 4 January 2022 as having led the Slades to renounce any ongoing obligations they may have had to transfer property to the Broses (at [24]). See also [62] in which his Honour said that in the wake of the catastrophic falling out, the Slades “renounced” any obligations they might have had to the Broses under the DOFA (and proceeded unilaterally to arrange for the Disputed Properties to be sold, “pre-emptively disclaiming any intention to meet the milestones scheduled for 1 July 2024 and 1 July 2026”).

119. At [26], his Honour said that “[h]aving given up professional careers off the land to take up farming in Quandialla, with the encouragement of the Slades, and having settled in Quandialla with a growing family”, the Broses have been concerned about economic security and their future prospects.

120. At [28]-[30], his Honour referred to the parties’ different perspectives about the economic viability of farm land (i.e., how much acreage was necessary for a viable farming business over the long term) and concluded that it was neither necessary nor appropriate to make a determination of that issue (at [30]), it being sufficient to record a finding (which is not here challenged by the Slades) that the views expressed by the Broses as to the need to hold about 3,000 acres of land for a viable farming business “are rational and ostensibly reasonable”.

121. In then summarising the central features of the case, his Honour made a number of observations (at [39]), including, relevantly, that: the Slades made “headline representations” of future benefits to the Broses (placing this between 2013 and 2019 or thereabouts) about the conduct of farming operations on Slade family land with the intention of encouraging them to commit to a life on the farm, although they expressed from time to time “reservations which have not been brought home to the Broses in a timely manner, or at all, as a means by which the Slades might control or withdraw benefits to be enjoyed by them”; that the precise terms upon which the transfers of land and partnership interests were to take place were left uncertain; and that the representations of future benefit made by the Slades to encourage the Broses to take up farming on the Quandialla land were reinforced by ongoing encouragement in the Broses of a belief that they would acquire most of the land on which Slade Pastoral Co operated and the partnership business as a going concern, on terms that would enable them to live and work with a growing family long term.

122. His Honour said that the Broses’ reliance on the Slades’ encouragement to take up farming “and to remain ‘on-farm’” was evidenced by the fact that Garreth “in particular” gave up and did not return to a lucrative professional career off farm, as well as by their ongoing and oft expressed anxiety about their dependency on the Slades’ recurrent reassurances that they should exercise patience and trust them (at [39(d)]).

123. Pausing here, it can thus be seen that in summarising the “central features” of the case the primary judge was referring not only to the initial (2013) representations encouraging the Broses to relocate to Quandialla and take up farming on the land adjacent to the Slades’ land holdings but also to subsequent and ongoing encouragement for the Broses to remain on the farm (a point of relevance in light of the constant refrain by the Slades on this appeal that the Broses’ relocation to Quandialla could not have been in reliance on representations or assurances made after they had already relocated there (in 2014)). So understood, the reference at [47] to representations that, if the Broses moved to Quandialla, commenced working for the partnership and increased their share of the work in the partnership business over time, then they would obtain an interest in the partnership and the land resulting in them becoming the sole owners of most of the land and partnership, is clearly a compendious reference to a series of representations made at differing times and with different content (not an erroneous suggestion that the 2013 Representations involved a representation as to the ownership of most of the land). Similarly, the summarised finding of intended and actual reliance (at [49]) encompasses reliance at different points in time on evolving representations. The primary judge there referred to three aspects of reliance: relocating to Quandialla in the first place; guaranteeing debts of Slade Pastoral Co; and selling their Queensland residence (at a later point) and applying the proceeds of sale for the benefit of the Slades’ succession planning, facilitating the Slades’ acquisition of a house in town, off the farm.

305. Accordingly, Ground 7 is not made good (nor are Grounds 2(d)-(e)).

Issue re Ta Lee

311. As adverted to earlier, in their submissions the Broses argued that there was not power to grant the relief sought in the Notice of Appeal (the re-transfer to the Slades of the three properties the subject of the appeal – Ostenleigh, Ozone Park and Reserve); and hence that the appeal should be dismissed as futile (relying on Ta Lee at [59]-[78] per Bathurst CJ, Beazley P and Macfarlan JA).

312. The Slades’ primary position in this regard was to argue that Ta Lee is distinguishable on its facts, but, in the alternative, they argued that Ta Lee is not binding authority on the issue, and rather that the decision of the Queensland Court of Appeal in White v Tomasel [2003] 2 Qd R 438 (Tomasel) makes clear that there is power to grant the relief sought (and further that the appeal was not futile as relief by way of equitable compensation is available).

313. Given the conclusion reached as to the outcome of the appeal, this issue does not strictly arise. However, I address it briefly.

314. The facts in Ta Lee are summarised as follows.

315. In 2011, the second respondent (MV Developments) borrowed some $1.5 million from the appellant (Ta Lee) pursuant to a Deed of Loan and Guarantee (Deed) to finance the development of land into an apartment block. The Deed entitled Ta Lee, following an event of default, to lodge and maintain a caveat on the respective titles to the land until it received a full payment of all moneys due under the Deed. In respect of the impugned property (Lot 34), Ta Lee lodged caveats on 23 June and 4 August 2015 respectively.

316. The first respondent (Mr Antonios) subsequently lodged a caveat claiming an interest in Lot 34, as the purchaser of Lot 34. Mr Antonios claimed that he had entered into a contract to purchase Lot 34 with MV Developments in April 2015. The form of contract was alleged to have been comprised of a front page of a contract for sale signed by the sole director of MV Developments on 15 April 2015, and a further 122 pages sent by email to Mr Antonios by MV Developments’ director on 21 July 2015. Mr Antonios also claimed that he had paid the entire purchase price for Lot 34, notwithstanding that the method of payment did not comply strictly with the terms of the contract.

317. At first instance, Ta Lee accepted that if Mr Antonios’ claim was upheld then, even if Ta Lee had a caveatable interest in Lot 34, Mr Antonios would take priority. The trial judge found that Ta Lee did not have an equitable charge over Lot 34 and that Mr Antonios had entered into a contract to purchase Lot 34, thus upholding Mr Antonios’ claim and rejecting that of Ta Lee (both of which findings were subsequently upheld on appeal). The trial judge ordered the withdrawal of Ta Lee’s caveats and the transfer of Lot 34 to Mr Antonios. Ta Lee complied with the order for withdrawal of its caveats and the liquidator of MV Developments transferred Lot 34 to Mr Antonios, who registered the transfer and thus became the registered proprietor of Lot 34 with indefeasible title pursuant to s 42(1) of the Real Property Act.

318. Ta Lee, which had not sought a stay of the primary judge’s orders (pursuant to which Mr Antonios had become registered proprietor of Lot 34), appealed the decision.

319. At the hearing of the appeal, a question was raised as to whether Ta Lee had standing to appeal and, if it did, whether the reversal of the Court’s orders below would defeat Mr Antonios’ indefeasible title. Mr Antonios argued that Ta Lee did not have a claim in personam against him; that any such rights could only arise as between MV Developments and Ta Lee. The Slades say that this is a fundamental point of departure from the facts in the present case.

320. This Court (Bathurst CJ, Beazley P and Macfarlan JA) found that Ta Lee did have standing but dismissed the appeal as futile (at [78]).

321. Relevantly, the Court acknowledged the general principle in Bahr v Nicolay (No 2) (1988) 164 CLR 604; [1988] HCA 16 that the principle of indefeasibility does not prevent the enforcement of a personal equity against a registered proprietor. However, having affirmed that indefeasibility does not prevent the enforcement of a personal equity or claim in personam against a registered proprietor, the Court found that there was no evidence of any conduct of Mr Antonios (such as the giving of an undertaking or the making of a promise to Ta Lee) which would have given rise to such an equity against him. On that premise, the Court concluded that Mr Antonis’ title could not be disturbed even if Ta Lee succeeded on appeal (and the appeal lacked utility).

322. The Court in Ta Lee was not referred to Tomasel, where such relief was granted. In Tomasel, the appellant (White) had offered a property for sale by auction with a reserve price of $190,000; the highest bid at the auction was by the respondent (Tomasel) for $182,000; and the estate agent signed the contract of sale for White, who had left thinking the property had passed in. The primary judge made orders requiring the contract to be completed, from which White appealed, and a stay was refused. The question arose whether the Court could order the reconveyance of the land back to White (on reimbursement of the purchase price) despite Tomasel having since been registered as proprietor. The majority of the Court held that it could.

323. Williams JA and McMurdo J each held that, where an appellant’s land is transferred in execution of a court order which is subsequently set aside on appeal, the appellant’s right to restoration of the land is a personal equity or claim in personam falling within the exception to indefeasibility.

324. McMurdo J (at [67]) said that “a successful appellant has a restitutionary right in relation to any money paid or property transferred which is still in the respondent’s possession under the judgment which is reversed”; and that whether a stay was sought (or if sought was granted) did not affect an unsuccessful respondent’s obligation to restore to the appellant what was the appellant’s property prior to the judgment. McMurdo J observed at [73] that there is no tension between a successful appellant’s entitlement to restoration and the policy objectives of the Torrens system; and that to hold otherwise would undermine the administration of justice by impairing the Court’s ability to correct erroneous judgments. Relevant to the question whether it was necessary to establish unconscionability on the part of the respondent (which was the basis of Davies JA’s dissenting judgment), McMurdo J stated at [74] that Tomasel’s “refusal to comply with their restitutionary obligation provides an element of unconscionability, if any be required” for the in personam exception to apply.

325. Williams JA, who agreed with McMurdo J, considered that, by seeking the assistance of the court, the respondents had submitted to the jurisdiction of the court and that meant that their rights and obligations were subject to any order made by the court, including an order (in personam) on appeal that they “restore the appellant’s rights to the property”. Williams JA held that a party has a right to recover money or other benefits, including property, transferred in obedience to a court order that is later set aside (“the corollary of the obligation to obey an unstayed judgment or order [being] the right to be restored if it is reversed”).

326. As the Slades point out, the relevant passages in Tomasel were referred to with approval by the High Court in Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22, and Tomasel has been treated as authoritative in Queensland for two decades (citing Merker v Merker [2022] QCA 277 at [56], [61]-[62]; Karam Group P/L v Hca Queensland P/L (2022) 13 QR 84 at [116]; Trouton v Trouton [2022] QSC 210 at [371]-[372]; Proprietors Cathedral Village BUP 106957 v Cathedral Place Community BC [2021] QCA 186 at [34]; Margeorg v Cavanagh [2009] QSC 211 at [25]). It was endorsed by Brereton J, as his Honour then was, in Harris v Smith [2008] NSWSC 545 at [55]-[56] (in which his Honour explicitly rejected the reasoning in the dissenting judgment of Davies JA that there was a need to establish unconscionability); by Murray ACJ in the Western Australian Court of Appeal in Ardrey v Bartlett [2004] WASCA 256 at [35], and in this Court in Anderson v Anderson (2017) 94 NSWLR 591; [2017] NSWCA 131 at [51]-[53] (per Leeming JA, Basten JA and Sackville AJA agreeing) (though it should be noted that Leeming JA did not explicitly adopt the majority’s reasoning in Tomasel, but came to a conclusion that implicitly rejected the reasoning underpinning the dissent of Davies JA).

327. The Slades therefore argue that Ta Lee is of no precedential force and/or must be confined to its facts. The Slades accept that, if successful, they would need to make counter-restitution of the $500,000 paid by the Broses, plus statutory interest. In any event, the Slades say that the appeal would not be futile; rather, if the Slades were otherwise to succeed, the Broses must be ordered to pay or make restitution to the Slades of the market value of Ostenleigh, Ozone Park and Reserve as at the date of their original transfer (less $500,000), or that Order 1 of the orders should be varied so as to make it a condition of that transfer that the Broses pay the Slades that further sum.

328. The key point of distinction between the two decisions is as to the finding whether there was a personal equity or claim in personam falling within the exception to indefeasibility. It was the lack of such an in personam claim that was fatal to Ta Lee’s contention. In those circumstances, and given the late stage at which the issue was raised, a five judge bench was not convened to hear this point; and it does not here need to be determined.

Disposition of the appeal

329. For the above reasons the appeal should be dismissed. I see no reason for costs not to follow the event.

Cross-Appeal re costs

330. In the proceedings below, as already explained, the Broses claimed that the Disputed Properties (in the case of Gilgowrie, only as to one-third) were held on trust for them (those comprising some 2,162 acres of land). The Broses acknowledged that because the representations upon which they relied involved them obtaining title to all five properties by 1 July 2026 (a date in the future) they needed to “do equity” to reflect the acceleration of their proprietary interest in the properties (if they were now transferred to them). At [42A(c)] of the Second Further Amended Statement of Claim, the Broses proposed that a payment of $730,500 be made to the Slades out of the assets of the partnership between them and Broses as a condition on relief.

331. His Honour found that the claim in proprietary estoppel was made good but placed conditions on the grant of relief (including that the Slades retain Misery and the claimed share of Gilgowrie) and ordered that, save for costs orders already made in the proceedings, each party pay its own costs of the proceedings to date.

332. The Broses contend that the primary judge erred in exercising his discretion to order that each party pay its own costs of the proceedings to date; and should instead have ordered that the Slades pay the Broses’ costs of the proceedings up to and including 5 September 2023. They raise the following grounds:

1.   The primary judge erred in ordering that (reserving the operation of any costs orders earlier made) each party pay its own costs of the proceedings below up to and including 5 September 2023.

2.   The primary judge should have exercised his discretion on costs to order that, without disturbing costs orders already made in the proceedings, the defendants pay the plaintiffs’ costs of the proceedings below, up to and including 5 September 2023.

333. The Broses seek orders setting aside the costs order (Order 15) made on 5 September 2023 and, in lieu thereof, order, subject to any costs orders previously made, that the defendants (the Slades) pay the plaintiffs’ (the Broses’) costs of the proceedings to date, 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).

Broses’ submissions

334. The Broses accept that the primary judge’s costs order was discretionary (s 98 of the Civil Procedure Act 2005 (NSW)) and that they must show error of the kind referred to in House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40 (House v The King) in order to succeed.

335. The Broses submit that the primary judge’s costs order should be overturned for the following four reasons.

336. First, they contend that the primary judge acted on a misapprehension of the applicable principles in the House v The King sense by reasoning that because the Broses “had substantial success, but it’s equally true that they did not get everything” each party should pay its own costs of the proceedings to date (5/09/2023; T 4.6-11). The Broses say that the acknowledgment that they had had “substantial success” (T 2.10) (and the apparent acceptance by his Honour that this was the relevant “event” for the purposes of costs) meant that they were entitled to their costs unless the matters upon which they were unsuccessful were clearly separable and took up a significant part of the trial (relying on authorities such as Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219 (at [15]); Elite Protective Personally Pty Ltd v Salmon (No 2) Pty Ltd [2007] NSWCA 373 (Elite) at [6]; [7] (Beazley, McColl and Basten JJA); and Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 (Bostik) at [38] (Beazley, Ipp and Basten JJA)).

337. The Broses emphasise that his Honour found that their entitlement to the Disputed Properties on the basis of proprietary estoppel was established but simply placed certain conditions on the relief granted. Hence the Broses say that they succeeded on the separate question as to their entitlement to the Disputed Properties and ultimately the Slades were ordered to transfer 1,672 of the 2,162 acres they claimed (77%).

338. The Broses say that the only sense in which they did not obtain everything they claimed was that the Court required them to “do more equity” than they had proposed (namely, they were required to release 23% of the acreage they claimed, and pay $500,000 from their own funds rather than $730,500 from the partnership assets in which they had a 50% share, which they say would have been, in effect, $365,250 of their own funds). They say that they therefore had to pay $134,750 more from their own funds than they had proposed. It is noted that this was in the context that the Slades had contracted to sell all five Disputed Properties in October 2022 for a total price of $10,183.135 (the sale price of the contract for Ostenleigh, Ozone Park and Reserve being $6,442,013).

339. The Broses submit that the fact that they “did not get everything” in these limited respects was not a basis to deprive them of their costs, unless it could be said that their claims to Misery and one-third of Gilgowrie were clearly dominant and separable issues and took up a substantial part of the trial. The Broses point out that the primary judge undertook no analysis of that kind, but instead simply concluded that because the Broses “did not get everything”, that was a sufficient basis to deprive them of a costs order in their favour. In adopting that approach, the Broses say that the primary judge acted upon a wrong principle and fell into House v The King error in the exercise of his discretion.

340. Second, and in any event, the Broses say that their claims to Misery and one-third of Gilgowrie were not clearly dominant or separable issues; and did not take up a substantial part of the trial. They say that the evidence led in support of their claims was equally relevant to all five properties claimed, in that it addressed the course of the parties’ relationship over many years. The Broses say that almost all of the same evidence would have been necessary whether one, three or five properties had been claimed.

341. The Broses point out that they relied on the same causes of action in relation to Misery and Gilgowrie as the other Disputed Properties, albeit that there was some slight additional legal complexity as a result of Misery and Gilgowrie having been transferred to IJAAMOTT. The Broses say that the additional hearing time required because of the claims in relation to Misery and Gilgowrie was de minimis. The Broses contend that there was no basis to conclude that these matters were sufficiently separable or substantial to justify depriving the Broses of any part of their costs, let alone all of them.

342. Third, and in any event, the Broses point out that, at the level of principle, their claims to Misery and one-third of Gilgowrie were established. It is noted that the primary judge held at [185] that “the Slades clearly and unambiguously did represent that the Broses would receive their properties”, and then referred to the notes taken by Ms Officer of the 18 December 2018 meeting and the DOFA, both of which referred to the Broses obtaining Misery and a one-third interest in Gilgowrie and which pre-dated the Slades’ transfer of Misery and Gilgowrie to IJAAMOTT on 19 November 2019. Accordingly, the Broses say that a reason that they did not also obtain the interest they claimed in those properties is because relief was moulded to require the Broses to do equity by allowing the Slades to retain those blocks through the release of the Broses’ claims (in addition to the $500,000 payment). Thus, it is submitted that, even if the Broses’ claims to Misery and one-third of Gilgowrie can be regarded as discrete and separable, the Broses did not fail in those claims in any sense relevant to the exercise of the Court’s discretion on costs.

343. Fourth, the Broses say that (as a result of a belated concession by the Slades) they also obtained the relief sought in prayer 8 of their pleading, by which they sought a finding that the Slades were required to recognise them as having a 50% interest in the partnership between the Broses and the Slades from 1 July 2021. The chronology of events in this regard has been set out above.

344. The Broses point out that, initially, the claim for relief under prayer 8 was also intended to form part of the expedited hearing; noting that on 17 March 2023, the expedition list judge (Parker J) ordered that the Broses serve their evidence by 17 April 2023, and that the proceedings be listed for directions on 21 April 2023 to confirm the prayers for relief that would be the subject of an expedited hearing. The Broses served their evidence in the week of 17 April, on the basis that the partnership interests issue was in dispute. On 21 April 2023, the proceedings were stood over for a week to 28 April 2023. The day before the listing on 28 April 2023, the Slades’ solicitors sent a letter stating that “[o]ur clients have therefore instructed us that they agree that 25% interest in the Slade Pastoral Co. partnership can be taken to have been transferred to your clients with effect from 1 July 2021”. As a result, the orders made on 28 April 2023 provided only for prayers 1 to 5A of the Second Further Amended Statement of Claim to be determined at the expedited hearing.

345. Thus, the Broses say that they also obtained success on the only other matter which had been in contest prior to the expedited hearing, which they maintain fortifies the conclusion that there was no basis to deprive them of any part of their costs, let alone all of them.

346. The Broses submit that, in circumstances where they obtained $6.442 million dollars’ worth of land (representing 77% of the land they claimed by acreage) and were substantially successful on the separate question, the primary judge acted upon a wrong principle in reasoning that, because they did not obtain everything they claimed, it was open to depart from the default position that costs followed the event, without considering whether the matters on which they did not succeed were clearly separable or took up a significant part of the trial. Moreover, it is submitted that requiring the Broses to bear their own costs despite their substantial success after a costly expedited four-day hearing was an unreasonable or plainly unjust outcome, such that it can be inferred that there was a failure in some way by the primary judge properly to exercise the discretion as to costs reposed in him.

334. Alternatively, if, contrary to the Broses’ submissions, it were to be concluded that some allowance should be made for the fact the Broses did not succeed in obtaining an order for the transfer of Misery and one-third of Gilgowrie to them, the Broses say that the cross-respondents should be ordered to pay 75% of the proceedings at first instance. That percentage is based on the proportion of the total acreage claimed by the Broses which Misery and one-third of Gilgowrie constitute, namely 23%.

335. The Broses say that that approach reflects the relative importance of the claims to Misery and one-third of Gilgowrie in the proceedings overall (i.e., that they were relatively minor) and avoids the difficulty (and resultant additional cost) that would arise in a costs assessment process of attributing a proportion of each individual task carried out by the Broses’ legal representatives to the claims in relation to Misery and one-third of Gilgowrie.

336. The Broses accept that, in order for leave to be granted, they must show an issue of principle, a question of public importance, or a reasonably clear injustice going beyond what is merely arguable (noting Be Financial Pty Limited as Trustee for Be Financial Operations Trust v DAS [2012] NSWCA 164 at [32]-[38]; The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 at [13]).

337. It is noted that in cases before this Court in which the appellant has raised substantive grounds of appeal, and the cross-appellant appeals only as to the costs orders below, the cross-appellant has been treated as requiring leave, albeit that there has been no significant contest on the topic (see Coope v LCM Litigation Fund Pty Ltd (No 2) [2016] NSWCA 174 at [16], Coffs Harbour City Council v Polglase [2020] NSWCA 265 at [179]-[180]). Hence the Broses have sought such leave.

338. The Broses submit that leave should be granted for two reasons. First, that the costs order visited a reasonably clear injustice upon them, the order being unreasonable or plainly unjust. As noted, the Broses submit that it was plainly unjust to deprive parties who were overwhelmingly successful of a costs order in their favour on the basis they “did not get everything”. Second, that the Slades have appealed against the whole of the primary judgment (other than the orders in relation to the claims against Misery and Gilgowrie) and hence the Broses say that the Slades will have an opportunity to disturb the costs order. In circumstances where argument on the costs issue will add only marginally to the length and cost of the appeal, the Broses submit that they ought be afforded the same opportunity.

Slades’ Submissions on Cross-Appeal

352. The Slades submit that leave to appeal should not be granted in respect of the costs judgment, which was a discretionary judgment on a matter of practice and procedure and well within the primary judge’s broad discretion as to costs.

353. The Slades point out that his Honour dismissed the Broses’ claims to one-third of Gilgowrie and Misery (held by the Slades’ superannuation fund) and imposed substantially more onerous conditions on the grant of relief in relation to the three properties found to be held on constructive trust for the Broses than those proposed by the Broses (for the first time) in their Second Further Amended Statement of Claim.

354. The Slades say that the ex tempore reasons given by the primary judge on 5 September 2023 for making the costs order that had been proposed in the primary judgment focused principally on the mixed result of the proceeding, but they also say that the Broses had, following publication of the primary judgment, sought belatedly to expand their claim so as to seek for the first time water rights and other entitlements associated with but not tied to Ostenleigh, Ozone Park and Reserve. The Slades say that in oral argument, it was submitted that water rights were obviously critical to the viability of the land as farming land (though they had not been raised in the course of the hearing) and that it was in this context that his Honour said that he thought the correct order was not to make an order as to costs.

355. The Slades submit that the Broses have failed to show that the costs order is infected with error of the kind referred to in House v The King. Noting the breadth of the discretion, and that its overriding principle of doing justice in the particular case, the Slades nevertheless point to the discretion typically being exercised in accordance with the general proposition that costs follow the event, citing Short v Crawley (No 40) [2008] NSWSC 1032 per White J, as his Honour then was; and Hughes v Western Australian Cricket Association [1986] FCA 511 per Toohey J.

356. As to the four reasons proffered by the Broses for overturning the costs order, the Slades make the following submissions.

357. As to the first (the argument that his Honour acted on a misapprehension of the applicable principles by reasoning that while the Broses had substantial success they did not get everything), the Slades say that his Honour’s reasoning is consistent with Short, where White J noted that, while the plaintiffs had enjoyed substantial success, there were various matters which modified any entitlement to costs (including the various issues on which the plaintiffs in that case had failed in whole or part, the significance of those issues and the plaintiffs’ conduct).

358. As to the second (that the claims in relation to Misery and Gilgowrie were not dominant and separable issues), the Slades say that it is unnecessary that the Broses’ claims to one-third of Gilgowrie and Misery be “clearly dominant or separable issues” for their failure to obtain such relief to be relevant but in any event the question whether the Broses were entitled to relief in respect of each of the Slades’ properties, or their claim to each property ought to be dismissed, was a separate issue of fact and law grounding a separate claim for relief. The Slades point to the pleading, which dealt separately with the Broses’ claims to each property and they say that this distinctness is further underlined by the fact that Gilgowrie and Misery were held by a separate entity, the Slades’ self-managed superannuation fund (with the consequence that the Broses’ claims to those properties had a distinct legal basis). The Slades say that this is also reinforced by the fact that, unlike Ostenleigh, Ozone Park and Reserve, Gilgowrie and Misery were only acquired by the Slades in 2018 (and accordingly were not the subject of the 2013 or 2015 Representations).

359. As to the third (the argument that the Broses’ claims to Misery and one-third of Gilgowrie were established), the Slades argue that the primary judge did not err in treating the Broses’ claims in respect of Gilgowrie and Misery as unsuccessful, noting that Order (8) of the orders was that “prayers 4, 5 and 5A of the Second Further Amended Statement of Claim be dismissed”. The Slades point out that prayers 4 and 5 concerned, respectively, the Broses’ claims to Misery and Gilgowrie, which claims were thus dismissed by Order (8). The Slades say that, to the extent that the primary judge at [185] speaks (the Slades say loosely) of a representation in respect of all the Slades’ properties, the Slades say that this exemplifies the erroneous conflation of the various properties and representations which characterised the primary judge’s substantive reasons for judgment (referring to [3], [15]-[16]). The Slades say that that conflation cannot change either the orders (being the judgment in respect of which the appeal and contemplated cross-appeal lie) or the consequent practical reality that the Broses did not receive one-third of Gilgowrie and Misery as a result of the proceeding.

360. As to the fourth (the concession as to the partnership issue), the Slades say that the fact that, prior to the close of pleadings following the Broses’ service of their Second Further Amended Statement of Claim on 1 May 2023 and the Slades’ service of their Defence thereto on 5 May 2023, the issues in dispute had narrowed (such that the Slades accepted on 21 April 2023 that the Broses were 50% partners in the partnership) does not reveal error in the costs order. The Slades say that, as a result of that narrowing and the parties’ agreement that other issues relating to the partnership would be dealt with after their dispute as to the Slades’ properties, issues relating to the partnership were not the subject of the substantive primary judgment. Reference is made to the primary judge’s recording at [78] that “it is also common ground that the question of land ownership can be determined as a question separate from any financial adjustments consequential upon dissolution of the [P]artnership”. The Slades say that this is reflected in the order his Honour made at the commencement of the hearing at first instance pursuant to r 28.2 of the UCPR (see primary judgment at [78]) and the earlier understanding reached while the proceeding was before the Expedition List Judge.

361. Accordingly, the Slades submit that none of the reasons pointed to by the Broses demonstrates that the costs order was infected by House v The King error; and they submit that, given the mixed result, it was open to the primary judge, in exercise of his Honour’s broad costs discretion, to determine that each party should bear its own costs of the issues that were before the Court. It is submitted that to do so was also open to his Honour, given the inappropriate and belated raising by the Broses, after publication of the substantive primary judgment, of a new claim to the Slades’ water rights (which the Slades say was nevertheless acceded to by them in order not to prolong the litigation at first instance). The Slades say that such conduct is a further matter relevant to what was fair and just between the parties in the circumstances.

362. The Slades say that the Broses accept that their contemplated cross-appeal involves no question of principle nor any question of public importance; and the Slades maintain that there is nothing in the present case to overcome the appellate restraint in granting leave to review discretionary decisions of this kind, submitting that the proceeding at first instance involved a “deeply mixed” result and again noting that the Broses very belatedly expanded their claims.

363. Finally, the Slades point out that, contrary to the Broses’ submissions at [34], they have not appealed against the whole of the primary judgment (in particular that they have not appealed against Order (8), dismissing the Broses’ claims to one-third of Gilgowrie and Misery) (an order I note is in their favour). Nor do the Slades here cavil with the conditions upon the primary judge held that they held Ostenleigh, Ozone Park and Reserve on constructive trust for the Broses. The Slades emphaise that they do not directly seek to disturb the costs order (save in the event that the appeal is allowed such that, as in the usual way, the premises upon which it rests fall away). Accordingly, they submit that fairness or equality does not demand that the Broses be permitted to mount a discrete attack on a discretionary judgment on a matter of practice and procedure.

Determination

364. In my respectful opinion, his Honour did err in acting on the basis that, because of the conditions to which the grant of relief was subject (in particular, that the claims in relation to Misery and one-third of Gilgowrie were dismissed), the Broses “did not get everything” and hence they were not substantially successful in the “event” so as to give rise to the general rule that costs follow the event.

365. The proprietary estoppel claim was made good in respect of all the Disputed Properties (and the partnership dispute was resolved by the belated and self-interested concession by the Slades). Thus, in the sense that the “event” was whether the proprietary estoppel claim was made good, the Broses had success in establishing that claim. The fact that, to do equity, conditions were imposed to reflect the acceleration of their interest in the properties that were to be transferred to them (such that, as a condition of the grant of relief, among other things they effectively lost the right to have Misery and one-third of Gilgowrie transferred to them) does not change the fact that there was substantial success on the “event”. To frame it differently, they succeeded in obtaining substantial relief that they would not have obtained but for the litigation.

366. However, as the Slades emphasise, leave is necessary to bring a cross-appeal as to costs only; and caution is exercised in that regard. Accepting that this is not a case where an issue of principle or public importance arises, is it a case where there is an error that goes beyond the arguable and means that there would be an injustice in not permitting leave to cross-appeal?

367. Certainly, the costs authorities in cases where there are multiple issues and a mixed outcome, speak of identifying whether an issue is dominant or separable; and it has been said on more than one occasion that the discretion to apportion costs across issues should be exercised only in exceptional circumstances. What is also said is that it is unwise to be too technical about what is meant by “event” or “issue” in this context – and that “one does not look at issues as if they were pleaders’ issues but approaches the matter with a broad brush” (see Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (No 3) (1998) 30 ACSR 20 per Young J, as his Honour then was (cited by Barrett J, as his Honour then was, in Golding v Vella (No 2) [2001] NSWSC 731 at [8])).

368. The primary judge did not carry out an assessment of the issues in the case so as to determine whether they were dominant or severable so as to warrant a conclusion that it was appropriate for each party to bear its own costs. In that regard, his Honour may be said to have adopted the kind of broad brush approach to the issues that is recognised as available in the exercise of the costs discretion. However, while I am unable to conclude that the primary judge erred in the application of principle in making the order that he did, I am forced to the conclusion that the result was plainly unjust. The Broses enjoyed substantial success (both as to their proprietary estoppel claims, including in respect of Misery and Gilgowrie albeit that those properties ultimately remained with the Slades, but also in relation to the partnership dispute). That they should not have the benefit of a costs order at all does not to my mind reflect the practical outcome of the litigation. Hence, I consider that the case falls within that last category of House v The King error where the outcome bespeaks an error of principle or application of principle albeit that one may not be able to be identified with precision.

369. In that regard, the complaint as to the belated raising of a claim to water rights seems to me to be beside the point. It was apparently able to be resolved by consent without the cost of a further hearing in any event. As to the additional legal complexity attending the separate ownership of Misery and Gilgowrie, it is not apparent that this caused any significant increase in the costs at first instance and I note that, despite their separate ownership by the trustee of the Slades’ self-managed superannuation fund, the Slades argued in this Court that that separate ownership did not preclude the Slades from honouring the representations in the DOFA (though of course their argument was they were free in all the circumstances to depart from those representations). Therefore, the Slades did not appear to place much weight on that additional legal complexity in the course of argument on the appeal.

370. I would therefore grant leave to cross-appeal. That means that the discretion should be re-exercised. In the circumstances, I consider the appropriate order, reflecting that the Broses had substantial success on the claims determined by the primary judge on the hearing of the separate question (including the dispute as to their partnership interest), but that the requirement to do equity meant that the Broses did not receive all of the Disputed Properties (even though they established their claim to them), is that the Slades should pay 75% of the Broses’ costs of the proceedings at first instance. I acknowledge that this is a broad brush approach and that I have not sought to undertake the very exercise that the Broses say that the primary judge should have undertaken but it seems to me the appropriate course in the just, quick and cheap resolution of this last issue in dispute before this Court (and it was proffered as the Broses’ alternative position in their submissions). The cross-respondents should pay the costs of the cross-appeal.

Orders

371. For the above reasons, I propose the following orders:

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).

372. WHITE JA: I agree with Ward P.

373. STERN JA: I agree with the orders proposed by Ward P and with her Honour’s careful and detailed reasons for proposing those orders.

374. I agree with Ward P that it is unnecessary in this case to resolve the issue which arose as to the ambit of what was decided in Ta Lee, the precedential force of Ta Lee and as to the question whether Ta Lee is consistent with Tomasel or with the line of authority identified by Ward P at [326].

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Decision last updated: 08 August 2024