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

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

Because Colin Protheroe induced Brian Protheroe to assume that Colin would retire from full-time farming while still able to establish a small rural hospitality business, and because Brian acted on those assumptions to his detriment, it would be inequitable for Colin not to make good the retirement representations. Relief should therefore be moulded on the basis that Brian elected to return to Elmore and Shannon Vale, Colin should give possession by 31 January 2024, Colin should receive an amount sufficient to acquire and conduct a viable small rural hospitality business, assessed at $1,100,000 subject to accounting for liabilities, plant, equipment, stock and costs, and the farming...

Jurisdiction
Australia
Judgment Date
03 July 2023
Procedural Posture
Equity Proceeding Concerning Equitable Estoppel and Constructive Trust Over Rural Properties / Consequential Relief Hearing After First Judgment
Outcome
Relief granted to give effect to the retirement representations; parties directed to bring in draft short minutes of order; costs reserved.
Legal Topics
['equitable Estoppel' 'constructive Trust' 'moulding Equitable Relief' 'court Expert' 'costs']
['equity' 'civil Procedure'] ['equitable Estoppel' 'constructive Trust' 'moulding Equitable Relief' 'court Expert' 'costs']

Case Brief

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Procedural Posture

Equity Proceeding Concerning Equitable Estoppel and Constructive Trust Over Rural Properties / Consequential Relief Hearing After First Judgment

Legal Issues

  1. 1 ['What retirement date should be inferred for Colin Protheroe for the purpose of moulding relief.' 'What capital sum should be allowed to Colin Protheroe to acquire and conduct a viable small rural hospitality business upon retirement from Elmore and Shannon Vale.' 'How the plant, equipment and stock associated with Elmore and Shannon Vale should be brought to account in moulding final relief.' "Whether Colin Protheroe's motions concerning recusal and NDIS funding should be entertained in the relief hearing."]

Ratio Decidendi

Because Colin Protheroe induced Brian Protheroe to assume that Colin would retire from full-time farming while still able to establish a small rural hospitality business, and because Brian acted on those assumptions to his detriment, it would be inequitable for Colin not to make good the retirement representations. Relief should therefore be moulded on the basis that Brian elected to return to Elmore and Shannon Vale, Colin should give possession by 31 January 2024, Colin should receive an amount sufficient to acquire and conduct a viable small rural hospitality business, assessed at $1,100,000 subject to accounting for liabilities, plant, equipment, stock and costs, and the farming...

Court Disposition

Relief granted to give effect to the retirement representations; parties directed to bring in draft short minutes of order; costs reserved.

Orders

  • ['Direct the parties to bring in draft short minutes of order to give effect to these reasons.' 'Adjourn the proceedings for further directions to Wednesday 30 August 2023 at 9.30am, or such other date as may be convenient to the parties and arranged with the Associate to Slattery J.' 'Reserve costs.' 'Grant liberty...