Protheroe v Protheroe (No. 2) [2023] NSWSC 751

Supreme Court New South Wales

Medium Neutral Citation: Protheroe v Protheroe (No. 2) [2023] NSWSC 751 Hearing dates: 16 May 2023 Date of orders: 3 July 2023 Decision date: 03 July 2023 Jurisdiction: Equity Before: Slattery J Decision: Relief granted to give effect to the retirement representations. Parties directed to bring in draft short minutes of order to give effect to these reasons. Costs reserved. Catchwords: EQUITY – equitable estoppel – relief hearing – Court upholds claim for a constructive trust – the defendant/cross claimant, the son, farms two properties (and at times other associated properties) held in the name of his father, the plaintiff/cross-defendant – in the principal hearing the Court found that the father made representations to the son, or caused the son to assume, that the son would have the benefit of the properties upon the father's retirement from farming the properties – the Court found that the son acted upon the representations to his detriment and that the father holds the properties on constructive trust for him to make good the representations relied upon or the assumptions made – the Court finds it would be inequitable if the father did not make good the representations relied upon or the assumptions made by the son – relief hearing – consideration of the appropriate remedy – the Court found that the father had indicated he wished to retire from the family farming property and conduct a small business – the Court requires the son to elect whether he will return to the family farming property as the basis for moulding of final relief and the son so elects - how should the Court provide equitable relief in the circumstances. Legislation Cited: Civil Procedure Act 2005, s 98(4)(c) Uniform Civil Procedure Rules 2005, r 31.46 Cases Cited: Protheroe v Protheroe [2023] NSWSC 188 Category: Consequential orders Parties: Plaintiff: Colin Henry Protheroe Defendant: Brian William Protheroe Representation: Counsel: Defendant: Mr J. Brown, Ms P. Muscat