Protheroe v Protheroe (No. 3) [2023] NSWSC 1287

Supreme Court New South Wales

Medium Neutral Citation: Protheroe v Protheroe (No. 3) [2023] NSWSC 1287 Hearing dates: 26 September 2023 Date of orders: 31 October 2023 Decision date: 31 October 2023 Jurisdiction: Equity Before: Slattery J Decision: Specified gross sum costs order made instead of assessed costs under Civil Procedure Act 2005, s 98(4)(c) in the sum of $450,000. Determination made in respect of adjustments on settlement of monies owed to Rural Assistance Authority. Relief formulated in relation to alternative inheritance representations claim. Catchwords: EQUITY – equitable estoppel – 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 (a) have the benefit of the properties upon the father's retirement from farming (the retirement representations), or (b) would inherit the properties after the death of the father (the inheritance representations) – 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 found it would be inequitable if the father did not make good the representations relied upon or the assumptions made by the son – at a relief hearing the Court gave effect to the retirement representations that the father would retire and transfer the property to the son at the time of his retirement and thereafter conduct a small business – the son elected to return to the properties as the basis for moulding final relief - at a subsequent relief hearing the Court fixed the sum to be paid by the son at the time of the transfer the property by the father to the son to give effect to the retirement representations – to facilitate the conduct of an appeal the son now requests that the Court identify the relief that might have been granted if the son's alternative inheritance representations case had moulded final relief – what relief would have been given in relation to the inheritance representations. COSTS – costs follow the event – costs orders made for the father to pay the son's costs of the proceedings on the ordinary basis – whether costs should follow the event – whether a specified gross sum should be fixed instead of assessed costs pursuant to Civil Procedure Act 2005, s 98(4)(c) in respect of the costs order – desirability where future conveyancing transaction and where capital management being planned for the quantum of costs to be ascertained at an early time, rather than delayed for a cost assessment – specified gross sum costs order made – quantum of specified gross sum fixed. Legislation Cited: Civil Procedure Act 2005, s 98(4)(c) Cases Cited: Bahamad v Wong [2020] NSWSC 991 Bechara (t/as Bechara and Company) v Bates [2016] NSWCA 294 Bobb v Wombat Securities Pty Ltd (No 2) [2013] NSWSC 863 Hadid v Lenfest Communications Inc [2000] FCA 628 Hamod v State of New South Wales [2011] NSWCA 375 Hancock v Rinehart (Lump Sum Costs) [2015] NSWSC 1640 Harrison v Schipp (2002) 54 NSWLR 738 Lewis v Doyle (No 2) [2022] NSWSC 447 Penson v Titan National Pty Ltd (No.3) [2015] NSWCA 121 Protheroe v Protheroe [2023] NSWSC 188 Protheroe v Protheroe (No. 2) [2023] NSWSC 751 Q (a pseudonym) v E Co (a pseudonym) (2020) 383 ALR 469 Russo & Ors v Russo & Ors (No. 4) [2016] NSWSC 1133 Smilevska v Smilevska (No. 5) [2019] NSWSC 986 Category: Costs Parties: Plaintiff: Colin Henry Protheroe Defendant: Brian William Protheroe Representation: Defendant: Mr J. Brown, Ms P. Muscat