Protheroe v Protheroe [2023] NSWSC 188

Supreme Court New South Wales

Medium Neutral Citation: Protheroe v Protheroe [2023] NSWSC 188 Hearing dates: 26, 27, 28, 29, 30 September, 4, 5, 6 & 7 October 2022 Date of orders: 1 March 2023 Decision date: 09 March 2023 Jurisdiction: Equity Before: Slattery J Decision: Plaintiff's claim on the statement of claim in detinue and conversion reserved for determination after submissions in relation to the disposition of stock, plant and equipment on the properties and the opportunity for an audit of the whereabouts of such items. A declaration made on the cross claim that the defendant/cross claimant is entitled to beneficial interest in the properties on terms that the plaintiff/ cross-defendant be provided with sufficient funds to conduct a small hospitality business. Catchwords: EQUITY – equitable estoppel – claim for a constructive trust – the defendant/cross claimant, the son, farms two properties (and at times other associated properties) held in the name of his father, the plaintiff/cross-defendant – the son alleges that the father made representations to the son, or caused the son to assume, that the son would have the benefit of the properties upon the father's retirement from farming the properties, or alternatively upon the father's death – the son claims he acted upon the representations to his detriment or that he acted upon assumptions the father induced him to hold – the son claims that the father holds the properties on constructive trust for him to make good the promises made or the assumptions – whether the representations were made or the assumptions held – whether the father was aware that the son was relying upon the representations, or was acting on the assumptions – whether the son suffered detriment as a result of the representations or the assumptions – whether it would be inequitable if the father did not make good the representations relied upon or the assumptions made by the son – whether the son's claim is statute barred – whether any discretionary defences apply – what is the appropriate remedy. Cases Cited: Austotel Pty Ltd v Franklins Selfserve Pty Ltd (1989) 16 NSWLR 582 Delaforce v Simpson-Cook (2010) 78 NSWLR 483 Giumelli v Giumelli (1999) 196 CLR 101 Grant v John Grant & Sons Pty Ltd (1954) 91 CLR 112 Plimmer v Mayor of Wellington (1884) 9 App Cas 699 Priestley v Priestley [2017] NSWCA 155 Q (a pseudonym) v E Co (a pseudonym) [2020] NSWCA 220 Reid v Commonwealth Bank of Australia [2022] NSWCA 134 Sidhu v Van Dyke (2014) 251 CLR 505 Thorner v Major [2009] UKHL 18 Walsh v Walsh [2012] NSWCA 57 Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 West Asset Holdings Pty Limited & Anor v Sara Investments (NSW) Pty Ltd & Anor [2023] NSWSC 136 Category: Principal judgment Parties: Plaintiff: Colin Henry Protheroe Defendant: Brian William Protheroe Representation: Counsel: Plaintiff: A. Crossland; B. Flaherty Defendant: J. Brown; P. Muscat