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

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

The Court fixed a specified gross sum of $450,000 because the parties required financial certainty before the ordered transfer of Elmore and Shannon Vale, costs assessment would cause expense, delay and aggravation, and the Court had sufficient familiarity with the proceedings and costs materials to make a fair, logical and reasonable broad brush assessment. The Court held that, as between Colin and Brian, Colin must discharge the RAA security because the RAA loan was entered into after Brian's cross-claim, caveat and the Court order extending the caveat, when Colin was on notice of Brian's claim, and creating that later burden was inconsistent with doing equity to Brian.

Jurisdiction
Australia
Judgment Date
31 October 2023
Procedural Posture
Equity Proceedings Concerning Constructive Trust/equitable Estoppel and Costs / Third Judgment After Principal Hearing and Relief Hearing; Determination of Specified Gross Sum Costs, Rural Assistance Authority Adjustment, and Alternative Inheritance Representations Relief
Outcome
Specified gross sum costs order made in favour of Brian against Colin in the sum of $450,000; Colin required to discharge the Rural Assistance Authority security over Elmore and Shannon Vale at his own cost before settlement; alternative inheritance representations relief identified but no final order made on that...
Legal Topics
['equitable Estoppel' 'constructive Trust' 'specified Gross Sum Costs Order' 'civil Procedure Act 2005, S 98(4)(c)' 'priority of Secured Interests' 'inheritance Representations' 'retirement Representations']
['equity' 'costs' 'property'] ['equitable Estoppel' 'constructive Trust' 'specified Gross Sum Costs Order' 'civil Procedure Act 2005, S 98(4)(c)' 'priority of Secured Interests' 'inheritance Representations' 'retirement Representations']

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Procedural Posture

Equity Proceedings Concerning Constructive Trust/equitable Estoppel and Costs / Third Judgment After Principal Hearing and Relief Hearing; Determination of Specified Gross Sum Costs, Rural Assistance Authority Adjustment, and Alternative Inheritance Representations Relief

Legal Issues

  1. 1 ['Whether a specified gross sum should be fixed instead of assessed costs pursuant to Civil Procedure Act 2005, s 98(4)(c).' 'What amount should be fixed as the specified gross sum costs order payable by Colin to Brian.' 'Whether the amount owed to the Rural Assistance Authority and secured over Elmore and Shannon Vale should be discharged by Colin or deducted from the amount payable by Brian on settlement.' 'What relief would have been granted had the Court moulded final relief by reference to the alternative inheritance representations rather than the retirement representations.']

Ratio Decidendi

The Court fixed a specified gross sum of $450,000 because the parties required financial certainty before the ordered transfer of Elmore and Shannon Vale, costs assessment would cause expense, delay and aggravation, and the Court had sufficient familiarity with the proceedings and costs materials to make a fair, logical and reasonable broad brush assessment. The Court held that, as between Colin and Brian, Colin must discharge the RAA security because the RAA loan was entered into after Brian's cross-claim, caveat and the Court order extending the caveat, when Colin was on notice of Brian's claim, and creating that later burden was inconsistent with doing equity to Brian.

Court Disposition

Specified gross sum costs order made in favour of Brian against Colin in the sum of $450,000; Colin required to discharge the Rural Assistance Authority security over Elmore and Shannon Vale at his own cost before settlement; alternative inheritance representations relief identified but no final order made on that...

Orders

  • ['Order pursuant to Civil Procedure Act 2005 s 98(4)(c) that a specified gross sum of $450,000 be fixed instead of assessed costs in respect of the costs orders made in favour of the defendant/cross claimant against the plaintiff/cross-defendant in order (5) of the orders made by the court on 15 September 2023.'...