Slade v Brose

1. [1]

   WARD P: This appeal arises out of a dispute between family members in relation to the ownership of certain farming properties in Quandialla, near West Wyalong in NSW. The appellants (Bruce and Donna Slade), together the Slades, have three daughters, Melissa Ousby, Kellie Brose (from whom they are now estranged) and Tegan Slade. Kellie is the first respondent in this proceeding. Kellie’s husband, Garreth Brose, is the second respondent. Together, I refer to the respondents as the Broses. Also relevant to the dispute (though not a party on appeal) is IJAAMOTT Pty Ltd (IJAAMOTT), a company controlled by the Slades. I will generally refer to the various family members by their first names without any intended disrespect.

2. [2]

   Prior to the events the subject of the present dispute, there were a number of parcels of farming land being operated by the Slades (through a partnership known as the “Slade Pastoral Co”), those being Ostenleigh (the Slades’ family home), Ozone Park, Reserve, Glendlyn, Gilgowrie, Misery, Willawa, Sandridge Home and Sandridge Farm. The properties were held by either Bruce or IJAAMOTT. Not all of those parcels of land were the subject of claims in the proceedings before the primary judge. Rather, there were five blocks of land in respect of which the Broses claimed an interest in the proceedings at first instance: Ostenleigh, Ozone Park, Reserve, Misery and Gilgowrie (though only as to one-third in the case of Gilgowrie) (together, the Disputed Properties). In this appeal, only three of those Disputed Properties are in contention (Ostenleigh, Ozone Park and Reserve), as I will explain in due course.

3. [3]

   The dispute between the Slades and the Broses, in essence, was as to whether the Slades held the Disputed Properties on trust for the Broses by reason of the Broses’ detrimental reliance on promises or representations made to them by the Slades over the period from 2013 to 2019 as to the transfer of the land and interests in the partnership to them.

4. [4]

   After what the primary judge consistently referred to in his reasons (without further detail as to the nature of that falling out) as a catastrophic falling out between the Slades and the Broses in October 2021 and January 2022, the Slades proceeded (in what his Honour described as a “pre-emptive way”) to liquidate their rural land holdings and partnership assets (see Brose v Slade [2023] NSWSC 1025, the primary judgment, at [44]), effectively ending what up to then had been a working relationship between the two families. It was not disputed that the parties ceased to work together in the farming business from January 2022. The Slades, as part of their transition to retirement, had moved to West Wyalong in about July 2021.

5. [5]

   Prior to the entry by the Slades into contracts for sale of the Disputed Properties, the Broses had lodged caveats against the title to those properties in September 2022 (see [79] of the primary judgment). Lapsing notices were issued in mid-October 2022 (primary judgment at [85]). Meanwhile, the Broses had commenced proceedings by statement of claim on 6 October 2022, seeking declarations that each of the Disputed Properties was held on trust for them (Gilgowrie only as to one-third, as noted above), orders for the transfer of the land to the Broses or equitable compensation, and orders relating to the constitution and dissolution of the family partnership.

6. [6]

   After lodgement of the caveats, and the commencement of proceedings, on 24 October 2022, Bruce exchanged a contract for the sale to a third party of Ostenleigh, Ozone Park and Reserve, and IJAAMOTT exchanged a contract for the sale to that third party of Glengowrie and Misery, for sums totalling $10.18 million, with completion due on 2 February 2023 (see [86] of the primary judgment). Each contract disclosed the existence of the caveated claims on the title of the Disputed Properties, with the date for completion extended on terms permitting the purchaser to work the land, pending the determination of the Broses’ claim (see primary judgment at [87], [91]). The contracts were not expressed to be interdependent (primary judgment at [92]).

7. [7]

   In December 2023, Kunc J made orders permitting the Broses to maintain a caveat over each of the Disputed Properties (Brose v Slade [2022] NSWSC 1785). The proceedings were placed in the Expedition List where Parker J then made orders for expedition of the hearing (of the Broses’ claim to beneficial ownership of the Disputed Properties but reserving for later determination disputes about the partnership). The primary judge on the first day of the hearing made an order pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) for the separate determination of the question as to whether the Broses were entitled to the relief claimed in prayers 1 to 5A of their Second Further Amended Statement of Claim (i.e., their claims in relation to declarations of trust and transfers of land), with issues as to the partnership to be heard and determined at a later date (see primary judgment at [99]-[100]).

8. [8]

   In summary, the primary judge found that, between 2013 and 2019, the Slades made “headline representations” of future benefits to the Broses about the conduct of farming operations on “Slade family land” with the intention of encouraging them to commit themselves to a life on the farm, including the prospect of transfers of land and partnership interests to the Broses (but with the precise terms upon which those transfers were to take place left uncertain) (primary judgment at [39(a)-(b)]). His Honour found that the Slades encouraged in the Broses a belief that they would acquire most of the land upon which the Slade family farming business was conducted, and the partnership business as a going concern; and that they gave reassurances to the Broses whenever anxiety was expressed (as it often was) that they were dependent on the Slades’ continued representations (primary judgment at [39(c)-(d)]). His Honour found that the Slades’ conduct in proceeding to liquidate the rural land and assets denied the Broses the land that they had expected to acquire and required them on their own account to acquire plant and equipment to replace that of Slade Pastoral Co to which they had earlier had access ([44]).

9. [9]

   The primary judge found in favour of the Broses’ claims, holding that the Slades “clearly and unambiguously did represent that the Broses would receive their properties” ([185]); that the Broses did rely (reasonably so) on those representations ([192]); and that the Broses acted upon the representations in such a manner that, should those representations not be honoured, they would suffer substantial detriment ([194]). His Honour found that the Disputed Properties were held on a constructive trust, applying the equitable principles of proprietary estoppel by encouragement ([207], [220]).

10. [10]

    As to what was appropriate by way of relief (see [212]), taking into account the acceleration of the interests that the Broses were acquiring by reason of the orders (since the contemplated timeline for the transfer of the last of those properties was not until July 2026), the primary judge ordered: a payment by the Broses to the Slades of $500,000; releases by the Broses of their claims to Misery and a one-third share of Gilgowrie, permitting the sale of those properties through IJAAMOTT; and that Ostenleigh, Ozone Park and Reserve be vested in the Broses, subject to a charge to secure their payment of the $500,000 and an obligation to share the net proceeds of any sale of those properties should the properties be sold within five years of the date of the Court’s orders. The primary judge ordered the parties to bear their own costs (a decision that the Broses seek leave to challenge).

11. [11]

    On 27 September 2023, following the entry of orders on 5 September 2023, the Slades transferred the three properties in question in this appeal (Ostenleigh, Ozone Park and Reserve) to the Broses, who are now the registered proprietors thereof. On 5 October 2023, the Broses paid the sum of $500,000 to the Slades (in compliance with Order 1(a) of the orders made by the primary judge). On 15 November 2023 a Deed of Charge was executed pursuant to Order 1(b) of those orders. The Broses have commenced a new farming operation independent of the Slades.

12. [12]

    By their Notice of Appeal filed on 17 November 2023, the Slades allege error in the findings by the primary judge as to: the representations made by them; the Broses’ conduct in reliance on those representations; and the detriment that would be suffered if there was a departure from those representations (see Grounds 1-6, set out in due course below). The grounds also allege error in the failure to find that there had been a relevant change in circumstances (Ground 7). In essence, the complaint by the Slades is that, in all the circumstances, it was not unconscionable for them to depart from such representations as they had made in relation to the transfer of the Disputed Properties to the Broses; relevantly, those circumstances being that the earlier representations had been honoured and that the later representations were premised or conditional on the continuation of the family partnership and the family relationship remaining intact (neither of which is now the case).

13. [13]

    The Slades seek orders that the Disputed Properties be transferred back to them, and that they re-pay the sum of $500,000 to the Broses. Bruce has affirmed an affidavit on 15 April 2024 (see AT 3.4-5) as to what the Slades would be prepared to do in the event that the appeal is upheld in order to address concerns to which Kellie had earlier deposed, in an affidavit of 15 March 2024, as to the position in relation to the farming of the properties that were transferred to the Broses pursuant to his Honour’s orders. As adverted to above, the Broses have sought leave (if leave be necessary) for a cross-appeal as to the costs orders made by the primary judge. There is no challenge by either side as to the conditions imposed by the primary judge to reflect the acceleration of the Broses’ receipt of the three properties transferred to them pursuant to his Honour’s orders.

14. [14]

    There was no application by the Slades for a stay of the orders made by the primary judge. In circumstances where on this appeal the Slades have sought orders for the re-transfer of the Disputed Properties and where the Broses, in their written submissions, have contended that there is no power to make such orders (on the basis that s 42(3) of the Real Property Act 1900 (NSW) (Real Property Act) will prevail over any order that might be made under s 75A(1) of the Supreme Court Act 1970 (NSW)), the Slades advised the Court shortly prior to the hearing of this appeal that their case might involve a challenge to the correctness of Ta Lee Investment Pty Ltd v Antonios [2019] NSWCA 24 (Ta Lee). The Slades’ position in that regard was that Ta Lee was of no precedential force and/or must be confined to its facts, and that a challenge to the correctness of Ta Lee was not required, but that, to the extent necessary, they sought leave to challenge the correctness of that decision. The Court declined to sit an enlarged beach to determine the appeal given the practical inconvenience that this would have occasioned and the ability to distinguish Ta Lee on its facts.

15. [15]

    For the reasons that follow, I am of the view that the appeal should be dismissed, that leave to cross-appeal should be granted, and that the cross-appeal should be allowed.

Background

1. [16]

   It is convenient at this point to set out in some further detail the factual background to the dispute.

2. [17]

   Briefly, the ownership of the various parcels of land prior to the orders made by the primary judge was as follows.

3. [18]

   Bruce was the registered proprietor of Ostenleigh, Ozone Park (both acquired in 1978) and Reserve (acquired in 2011) (primary judgment at [11]). Together, those three properties comprise 1,672 acres ([9]). Gilgowrie and Misery (which were devised to the Slades by a neighbour in November 2018 and registered in their names in June 2019) were transferred by the Slades in November 2019 (without prior notice to the Broses) to IJAAMOTT, a company controlled by the Slades, as trustee for Mekete Super Fund (the Slades’ self-managed superannuation fund) ([11]). Gilgowrie and Misery together comprise 970 acres ([10]).

4. [19]

   Glendlyn (which was transferred to the Broses in November 2021) was acquired by Bruce in 2011 and comprises 743 acres ([13]). The Broses are also the registered proprietors of the two Sandridge properties: Sandridge Home (which they acquired in December 2013 with assistance from the Slades) and Sandridge Farm (which was acquired at the same time with the Broses (as joint tenants) as to one half share as tenants in common with the Slades (as joint tenants) as to the other half share), which was then transferred to the Broses in July 2019 ([13]). These three properties together comprise 1,943 acres.

5. [20]

   The remaining property, Willawa, which comprises 1,049 acres, was Bruce’s family home ([12]). It was acquired by Bruce from his mother in 2002 (and sold to an unrelated party in 2023).

6. [21]

   At the time of the proceedings, the agreed value of the Disputed Properties was about $3,850 per acre ([90]).

7. [22]

   As already noted, in late 2013, the Slades farmed a number of properties in Quandialla (at that time, Willawa, Ostenleigh, Ozone Park, Reserve and Glendlyn). At that time, the Broses were living and working in Townsville (Kellie with NAB as an Agribusiness consultant; Garreth as a Corporate Agribusiness manager for ANZ), where they had purchased an apartment ([17]-[18], [112] of the primary judgment).

8. [23]

   The Broses allege that the Slades made a series of representations to them over the period from 2013 to 2019 in relation to the Slade family farming land (see below) on which they relied. The Slades emphasise that the content of those pleaded representations differed and that, logically, the Broses cannot have relied on the later (as then not yet made) representations when making the initial decision to move to Quandialla in 2014. The content of those representations and the context in which they were made, be summarised as follows.

9. [24]

   The Second Further Amended Statement of Claim (filed 1 May 2023) pleads a series of representations made in 2013 (see at [12]-[14]) in relation to the relocation by the Broses to Quandialla to raise a family on a farm.

10. [25]

    The first pleaded representation (see at [13] “First Equity Representation”) was alleged to have been made in October 2013 in a conversation at Ostenleigh to the effect that the Slades would give the Broses equity in a new block of land that had come up for sale (near Ostenleigh), equity in the business (i.e., the Slade Pastoral Co partnership) and then equity in the land owned by the Slades. The “new block of land” comprised what are known as the Sandridge Home and Sandridge Farm properties, collectively the Sandridge properties.

11. [26]

    The Broses’ evidence was that, during this period, the Slades said that, if the Broses made the move and Garreth helped with farming, the Slades would purchase Sandridge Home and Sandridge Farm, with Sandridge Home to be registered in the Broses’ names and Sandridge Farm to be registered jointly, and would pay Garreth a wage of (initially) $50,000 per annum net of tax plus extensive benefits (see primary judgment at [19], [110]-[111]); and, further, that “if, after three years, everything is working”, the Slades would transfer their half interest in Sandridge Farm to the Broses and the Broses could join the Slade Pastoral Co with “25% to start” (affidavit of Garreth Brose sworn 17 April 2023 (Garreth’s affidavit) at [32]). The Slades emphasise that all of this, namely, the transfer of the Slades’ half interest in Sandridge Farm and a 25% interest in the Slade Pastoral Co occurred, although I interpose to note that it was not until mid-2019 whereas the representation was that this would occur after three years if everything was working.

12. [27]

    The Broses note that the evidence (accepted by his Honour) as to the 2013 Representations included statements by Donna that: the Slades would pay Garreth “$50,000 a year to start, which is low, but you will have the home block”; “[a]fter three years, if everything is working, we will transfer you the other farm block and you can come into the business as 25% partners as a start. Over time the rest of the business and some more land will be passed onto you as long as we have a good retirement plan” as well as: Donna’s reference to “a long term view that you guys will have the whole business and more of the land to run it” and “the aim would be to hand on a viable business and the land to run it while we have a comfortable retirement” (see Garreth’s affidavit at [32]); and statements by Bruce that “If you ever came home you’d have to work for equity” and “If you move here, you would be working for equity in the partnership and in the rest of the land. The longer you are here the more you will get” and “We can’t pay you what you’re on in Townsville but you will work for equity” (affidavit of Kellie Lisa Brose sworn 17 April 2023 (Kellie’s affidavit) at [23], [36], [41]).

13. [28]

    Thus, the oral representations in 2013 encompassed more than simply the Sandridge properties and the partnership interest (extending to the whole of the partnership business and “more land”, albeit without specific reference to particular properties and with no certain timeline).

14. [29]

    At [110]-[111], the primary judge rejected, as a matter of credit, the Slades’ evidence that they offered the Broses no prospect of future equity (and that Garreth had volunteered to be paid $50,000 per annum).

15. [30]

    On or around 16 October 2013, a financing proposal (prepared by the Broses and signed by the Slades) was submitted by the Slades to NAB (the NAB Proposal) in relation to the acquisition of the Sandridge blocks of land. The Broses rely upon representations made by the Slades in the NAB Proposal (the “NAB Proposal Representations”) (see at [14] of the Second Further Amended Statement of Claim), which broadly form part of the 2013 Representations.

16. [31]

    Relevantly, the NAB Proposal referred to the “strategic acquisition of additional country to form part of a, as yet undefined, succession plan” with stated purposes including the retention of the existing and any new holdings within the family group, the relocation of the Broses back closer to the family, and beginning a framework to allow the Slades to work towards “semi/retirement”.

17. [32]

    The NAB Proposal recorded that the property (the “Sandridge property” or strictly properties) was to be purchased under the following structure: the Home Block (i.e., Sandridge Home) to be held by the Broses as joint tenants; the secondary block (i.e., Sandridge Farm) to be held by the Slades (as joint tenants) and the Broses (as joint tenants) as tenants in common in equal shares; and for the transfer of the secondary block holding to the Broses on 1 July 2016 pending completion of a number of conditions to be tabled within a “Family Agreement”. The NAB Proposal envisaged that the Broses would pledge the Home Block as security for the total borrowings under the Slade Pastoral Co (via a guarantee and indemnity) in conjunction with their share in the secondary block (and that ‘[p]ost hand over” of the Slades’ share of the secondary block, that would remain within the current and proposed security pool to support any outstanding partnership borrowings (with Willawa to remain unencumbered)). As it transpired, Willawa did ultimately become encumbered.

18. [33]

    The “Family Agreement” was referred to as an “internal document” to be drawn up between the Slades and the Broses, which was to cover, among other things, a clause stating what was to happen if the Broses were not willing to continue the proposed agreement after 1 July 2016 and a clause stating that “if both parties are amicable to continue the proposed venture” the Broses would become joint partners with the Slades in Slade Pastoral Co on 1 July 2016 (with the Broses obtaining a 25% share each in the business). The contemplated Family Agreement was also to include a clause stating that “formal succession planning process is to commence” by 1 January 2016 “with all family members involved in the process to ensure a fair and equitable outcome for all parties and that all discussions are held open forum”.

19. [34]

    The NAB Proposal recorded, under the heading “Garreth and Kellie’s future plans”, that:

20. [35]

    In November 2013, NAB approved finance for the acquisition of the Sandridge properties and on 20 December 2013 those properties were acquired (and held in the structure referred to above – i.e., the Broses acquired the whole of the Sandridge Home property and half of the Sandridge Farm property) (primary judgment at [14]). The primary judge noted that the mortgages over the Sandridge properties were met by the partnership, the debts of which were secured against all the Quandialla properties owned by both the Slades and the Broses; and guaranteed by the Broses and the Slades (see primary judgment at [41]).

21. [36]

    In about January 2014, the Broses relocated from Townsville, Queensland to Quandialla (primary judgment at [17]-[18]) and, on 22 January 2014, Garreth commenced working as an employee of the Slade Pastoral Co (Kellie continued her role in agribusiness banking as a part-time remote employee) (primary judgment at [112]). The Slades, in effect, treat the 2013 Representations as therefore having been fulfilled and as no longer of relevance in relation to the relief claimed by the Broses.

22. [37]

    The next set of representations pleaded by the Broses comprised representations alleged to have been made at family meetings in October 2015 and July 2016.

23. [38]

    By way of context, leading up to those meetings there was an altercation between Bruce and Garreth at Sandridge on 21 May 2015 (see Garreth’s affidavit at [81]-[109]; Kellie’s affidavit at [76]-[88]; affidavit of Donna Maree Slade affirmed 5 May (Donna’s affidavit) at [65]-[71]; affidavit of Bruce Roland Slade affirmed 5 May 2023 (Bruce’s affidavit) at [77]-[79]). Garreth’s evidence (see at [95]-[102] of his affidavit) is that after the May 2015 altercation he told Kellie that he was not putting up with this anymore and he needed to leave, and that he spoke to various recruiters about job opportunities elsewhere but that the Slades apologised and said they wanted them to stay (and that Kellie had “swallowed the lines on ‘we love you’, ‘have faith’, ‘trust us’”). Garreth deposed that by 2015 it became clear that his risk assessment and exit strategy in 2013 turned out to be too simplistic; that it was “not as easy to simply walk away having wasted some time in Quandialla” and that once they started having children and “putting down roots” in Quandialla it was no longer just a case of returning to the banking sector (see at [109] of his affidavit).

24. [39]

    The Slades emphasise that Garreth stayed at Quandialla for family reasons (though in oral submissions it was accepted that staying on the farm from 2019 to 2021/2022 could of itself amount to detrimental reliance on the later representations – see below; 23/04/2024; AT 5.40).

25. [40]

    At [20] of the Second Further Amended Statement of Claim, it is alleged that in September 2015 Bruce represented to Garreth that, if Garreth did not pursue other business opportunities and made the farming business his priority, the Broses would get all of the business and most of the land. The representation was particularised as being oral and made at the Ostenleigh workshop. Garreth’s affidavit at [115] places the context of this discussion as a suggestion by him to Bruce that he and Kellie purchase a baler to make some additional money without relying on Slade Pastoral Co. Garreth’s evidence is that Bruce said “Trust us” and “you will get all this”.

26. [41]

    The Broses point out that there were no specific conditions or qualifications on the September 2015 representations by Bruce to Garreth that he and Kellie “will get all the business and most of the land” and that they were “working for equity and most of [the land] will be yours” (the making of which his Honour accepted at [190]), and that Bruce made no reference in that conversation to the then imminent October 2015 Proagtive succession planning meeting (see below).

27. [42]

    Next, at [21]-[23] of the Second Further Amended Statement of Claim, are the pleaded “2015 October Proagtive Representations”. These representations were alleged to have been made at a family meeting in Young that was initiated by the Slades through “Proagtive Succession Planning Specialists” and held on 6 and 7 October 2015.

28. [43]

    The Broses alleged (at [23]) that, during this meeting (attended by the Slades, the Broses, Melissa and her husband, and Tegan), they represented that they wanted a clear plan for their future; and that the Slades represented that: they wanted the family brought into the farming operation prior to their retirement; and that the Broses would be transferred Ostenleigh, Ozone Park and Glendlyn, the Sandridge properties (constituted by Sandridge Home and Sandridge Farm) and the stock and plant of Slade Pastoral Co.

29. [44]

    The Broses particularised those representations as being recorded in the “Family Business Meeting Summary”.

30. [45]

    The primary judge found that the October 2015 Proagtive meeting “resulted in a highly qualified document” (primary judgment at [50]), referring to the section in that document headed “Family In-Principle Agreement” in which the Slades’ “present intentions” about the disposition of the land then held in Bruce’s name were recorded.

31. [46]

    Relevantly, the document stated that the Slades’ “present intentions” were reflected in the “Estate Plan as at 07/10/2015” set out at [14] of the document; and that it was their intention to review their estate plan annually in order to update it in line with the progress of their plan to build an off farm investment portfolio via a self-managed super fund, reduce debt and purchase a house in West Wyalong. The first item in the “Action Plan” section of the document was for all parties to update their wills.

32. [47]

    The “Estate Plan as at 07/10/2015”, which his Honour construed as referring to what was to be left under the Slades’ wills, contemplated that, were the Slades to die at that time, they intended that Melissa would acquire Willawa, Tegan would acquire Ostenleigh Homestead, and Kellie would acquire the balance of the land and partnership assets (with provision for the three daughters to share off-farm assets) but that the position ten years hence would be that Kellie would acquire all the land and partnership assets (and Melissa and Tegan to share the off-farm assets). His Honour attached significance to the fact that the Slades’ “present intentions” were recorded as including a plan that within ten years Kellie would acquire all of the land then held in the name of Bruce together with stock and plant (see primary judgment at [50]).

33. [48]

    The “Family In-Principle Agreement” recorded a commitment by the family members to implement the decisions that had been made at the family meeting; including the agreement at [3] “by all family members that Bruce and Donna have the ability to do whatever they choose as they begin to make the transition, and eventually move into the next stage of their lives” and the recognition that “it is their right and reward to retire comfortably and as they choose”. The Broses say that the statement that “Bruce and Donna have the ability to do whatever they choose” related to the timing and manner of their retirement, referring to the statement that “it is their right and reward to retire comfortably and as they choose”.

34. [49]

    The document also recorded that it was very important to the Slades to keep the farm in the family and to be able to transfer a viable farming business (at [4]); that each of their daughters be treated fairly (noting the understanding that fair does not necessarily mean equal) (at [5]); and that the Slades “need to feel comfortable that their needs will be securely met before they will consider any transfer of assets and business ownership. They need time to investigate how and when this might occur, and the business structure that would be most suitable to allow this to occur” (at [6]). The document recorded Donna’s adamant view that Tegan be a farmer only if she was married to someone keen to farm and that it was agreed that “the door remains open for Tegan to become a farmer until 2020” (i.e., when she turned 30) (a door that, on that timeframe, had clearly closed by the time in late 2021/early 2022 the Slades renounced their 2018 “agreement” as to a time plan or milestones for transfer of assets to the Broses – see below) (at [11]).

35. [50]

    The document also recorded at [13] that Garreth’s present compensation package and job role were not reviewed in the meeting (a matter of some complaint by him – see his affidavit at [119]-[120]). As at 24 July 2016, Garreth’s compensation package was apparently annualised at $127,000 pa (this figure was arrived at by the Slades through adding the value of various services paid for by the Broses (such as phones, electricity and car fuel and maintenance) to his actual wages of $72,495 and superannuation of $6,877).

36. [51]

    The “Family In-Principle Agreement” provided (at [12]) for fortnightly on-farm operational meetings; quarterly management meetings; and an annual family meeting “to update the whole family on the position of the business, and review the business, succession and estate plans”. It does not appear that all, if any, of those occurred. In the context of the latter, it was noted that “[a]s succession planning is an evolving process, this meeting provides an opportunity for fine tuning if and when that is what is required” and that the intention was that this meeting be “facilitated”.

37. [52]

    Kellie’s evidence was that, at the end of the meeting, the convenor observed that the “in principle agreement” was only “an initial plan” and that the family would need to discuss things further (see at [111] of her affidavit). The Slades maintain that everything in that document was aspirational. However, the primary judge noted (at [51]) that in cross-examination Bruce accepted that it would have been reasonable for Kellie, looking at this document, to form the view that in ten years’ time she would be the legal owner of all the farmland then owned by the Slades in Bruce’s name. This observation is the subject of complaint by the Slades, who say that Bruce’s subjective understanding was irrelevant.

38. [53]

    The Broses say that the October 2015 “Family In-Principle Agreement” was consistent with the oral representations to the effect that the longer the Broses stayed on the farm, the more land they would obtain.

39. [54]

    The Broses’ pleading then alleges the making of further representations after a second Proagtive meeting that was held in July 2016 (see [25A] of the Second Further Amended Statement of Claim). The context in which these representations were made is that the Slades did not transfer their share of the Sandridge properties (or the promised partnership interest) to the Broses on 1 July 2016 (as the Broses contend the Slades had represented they would do) (see [24] of the Second Further Amended Statement of Claim).

40. [55]

    On 27 July 2016, a second Proagtive facilitated family meeting was convened, this time at Dubbo.

41. [56]

    The minutes of this meeting (prepared by the Proagtive consultants) noted, under the heading “Wills and Estate Update”, that the Slades advised that they had sought additional advice since the original meeting; that they had determined to move assets to superannuation; and that the long term picture had changed. The minutes recorded that the Slades had set up and made a contribution to the super fund for the last tax year and that this would be part of the ongoing business plan; and that the effect of the changes to be made was that a house was to be purchased and superannuation “be split three ways”; and that a transfer of a parcel of land into the super fund may be an outcome. The Slades advised that the plan was to update their wills in the next few weeks and that the wills were to be reviewed on a frequent basis.

42. [57]

    The minutes recorded that the Broses expressed disappointment about only finding out this change at the meeting and that they felt “blindsided” by the new information; and that a heated discussion followed “that set the tone somewhat for the day”.

43. [58]

    Relevantly, the Broses have alleged that, in the months after the second Proagtive family business meeting, the Slades represented on a number of occasions that: the Broses needed to trust the Slades; and that if the Broses continued to work in the Slade Pastoral Co business they would be transferred all of the Slades’ ownership interest in the Sandridge properties, Ostenleigh, Ozone Park and Glendlyn and all of the Slades’ ownership interest in Slade Pastoral Co after the Slades built a new house in West Wyalong (see at [25A] of the Second Further Amended Statement of Claim) (see also Kellie’s affidavit at [133]).

44. [59]

    The primary judge said at [54] that the distress of the Broses arising from their disappointment at the outcome of the second Proagtive meeting was heightened by what they perceived to be the increased burdens placed upon Garreth in the day-to-day management of the family farm, as the Slades left more of that work to Garreth.

45. [60]

    The next set of pleaded representations alleged occurred in 2018/2019.

46. [61]

    The Broses have alleged (at [26] of the Second Further Amended Statement of Claim) that, in October 2018, they approached the Slades and requested the transfer to them of the Sandridge properties and associated debt to enable them to farm as their own partnership separate to Slade Pastoral Co and that, during this meeting, the Slades represented that: the Broses needed to trust them; and that the Broses would be transferred all the Slades’ ownership interest in the Sandridge properties, Ostenleigh, Ozone Park and Glendlyn and all of the business of Slade Pastoral Co.

47. [62]

    Garreth’s evidence is that after the October 2018 meeting he left Quandialla for about three days to think about his and his wife’s next steps and their future (see at [153]-[161] of his affidavit).

48. [63]

    The Broses have alleged that, following the representations made by the Slades in October 2018, they offered to sell Sandridge and leave the farming business (because, inter alia, the succession plan had not been implemented and it was not viable for them to continue as they needed to support two children and their third child was due in January 2019) (see at [26] of the Second Further Amended Statement of Claim).

49. [64]

    Kellie wrote a handwritten letter that was sent by email to the Slades on 10 November 2018 in which Kellie complained about the uncertainty and suggested that the Slades were just wanting to keep stringing the Broses along. The letter received a blunt response from Donna that “Thank you for jumping on the current bandwagon & pointing out our faults as awful people. It will take a lot of digesting”.

50. [65]

    In November 2018, as referred to earlier, a neighbouring property owner died, devising Gilgowrie and Misery to the Slades (primary judgment at [11]). Hence, subsequent succession/estate plans refer also to those properties (which were ultimately transferred to IJAAMOTT as trustee for the Slades’ superannuation fund in November 2019).

51. [66]

    What next occurred was a “succession planning meeting” on 18 December 2018 between the Slades and the Broses with Ms Jenny Officer, the Slades’ accountant.

52. [67]

    The Broses have alleged (see from [29] of the Second Further Amended Statement of Claim) that at that meeting the Slades acknowledged that Garreth had been working for a long time on the farms for a minimal wage on the understanding that he and Kellie would be transferred the land and the business; and acknowledged that they would execute a legally binding document to give effect to the agreement struck at that meeting.

53. [68]

    It was alleged that the Slades agreed and represented that they would cause the transfer of the following properties to the Broses on the following dates: the Sandridge properties on 1 July 2019; Glendlyn on 1 July 2021; Ozone Park on 1 July 2024; Reserve, Ostenleigh, Misery and one-third of Gilgowrie on 1 July 2026; and that the Slades would formalise a partnership arrangement providing for the Broses to have the following interests each in the partnership (12.5% on 1 July 2019; 25% on 1 July 2021; 37.5% on 1 July 2024; and 50% on 1 July 2026). The pleaded representations included that Kellie would not inherit under her parents’ wills and that the Slades’ other daughters (Melissa and Tegan) would inherit the estate assets under the wills (Willawa, two-thirds of Gilgowrie, a West Wyalong house and superannuation).

54. [69]

    The Broses have alleged that the Slades undertook to have their solicitor draft a formal partnership agreement and a formal deed of family arrangement documenting the agreement made at the December 2018 meeting.

55. [70]

    The notes prepared by Ms Officer of that meeting (consistently with the above) refer to a decision to continue the “existing partnership” and a timeline for the transfer of interests in the partnership (the Slades 100% as at 1 July 2018; 75% at 1 July 2019; 50% at 1 July 2021; 25% at 1 July 2024 and 0% at 1 July 2026; with the balance in each time frame to be held by the Broses). (At the very least, this indicates that the Slades had not made good the initial promise of the transfer of a 25% interest to each of the Broses in the partnership by 1 July 2016; and no doubt explains at least in part the reference by Kellie in her November 2018 handwritten letter to the Slades wanting to keep stringing them along.)

56. [71]

    Relevantly, the meeting notes also include a timeline referring to the properties suggesting that it was envisaged that the Broses would be transferred interests in the Sandridge North properties (apparently a reference to Sandridge Farm) on 1 July 2019; Glendlyn on 1 July 2021; Ozone Park on 1 July 2024; Reserve , Ostenleigh and Misery on 1 July 2026 and one-third of Gilgowrie “tbc” (Garreth’s understanding was that “tbc” related to the manner in which this was to be structured; not whether it was to occur (Garreth’s affidavit at [172])).

57. [72]

    The significance of the meeting notes is that these came to be annexed to the Deed of Family Arrangement (DOFA) executed by the parties in June 2019.

58. [73]

    The Broses have alleged that upon the signing of the DOFA the Slades again agreed and made the representations as to the matters set out at [29] of the pleading (see as set out at [68] above), these being referred to in the pleading as the June 2019 Representations, although in submissions also referred to as the DOFA Representations (see [31] of the Second Further Amended Statement of Claim).

59. [74]

    The operative text of the DOFA is set out at [68] of the primary judgment. Significantly in my opinion, the DOFA was executed formally as a deed by each of the Slades and the Broses. The Recitals include the statement at Recital C that:

60. [75]

    Clause 1 records the agreement of the parties that “[t]hey will adopt as a guideline those meeting notes that were formulated at a meeting held on 18 December 2018, a copy of which is attached and marked ‘A’”.

61. [76]

    Clause 2 contains an acknowledgement that “circumstances may change beyond the control of each of them whereby despite the best intentions of the parties the agenda previously agreed to marked ‘A’ cannot be complied with however all parties agree to make ever [sic] endeavour to comply with that agenda in the future”.

62. [77]

    Clause 3 expressly provides that the terms of “this agreement shall be binding as far as possible upon the heirs, executors and assigns of all the parties hereto”.

63. [78]

    As far as the meeting notes are concerned, the Slades emphasise that, under the heading “What will a successful succession plan look like?”, the listed points include “farm as a going concern”, “fair outcome — fair outcome itself may change over time”, “fair is not necessarily equal”, “B&D wills need to be updated regularly”, “plan will provide clarity, security, direction, deadlines and timeframes”, “G&K want to feel like they have worked for and not been given farm” and “relationships intact”; and that, later in the notes, there is reference to the later recorded “need to ‘check in’ with Bruce as plan progresses to ensure he is ready to hand-over control”.

64. [79]

    The Slades also point to the recording of assets and debts as at 18 December 2018 (the values of the parties’ properties and assets totalling $1.8 million, and the partnership’s debts totalling $2.8 million) noting that the primary judge found these were used as “indicative of the financial implications anticipated to flow” (noting [72]-[73] of the primary judgment).

65. [80]

    His Honour found (at [57]) that the central effect of the balance of the notes was that:

66. [81]

    The Slades say that, at each phase, the meeting notes set-off the debts assumed against the assets which might be acquired by the Broses, producing an “equity ratio” of 50-60% (referring to the primary judgment at [73]); and that the ultimate 50% gap in favour of the Broses was then closed by the “financial adjustments” to which his Honour referred at [57], being the Slades’ retention of certain partnership assets; that the partnership would continue to meet various of their expenses and provide them with drawings in excess of their contemplated future shares; and that $350,000 would be paid by the Broses to the Slades as “funds ex sale Sandridge [Farm] to G&K”. The Slades point to the acceptance by the Broses that, based on the 2018 figures used, the notes contemplated that by 2026 they might receive about $4.58 million in land in exchange for about $4.49 million, citing the particulars to [42A] of the Second Further Amended Statement of Claim.

67. [82]

    As adverted to above, his Honour found (at [72]) that the financial information contained in the meeting notes was indicative of the financial implications anticipated to flow from the transfer of property; saying that it was not to be read with such particularity as to constitute an agreement for the transfer of property at fixed prices. The Broses accept that this was an indication of financial outcomes but that the financial information was not “set in stone” (24/04/2024; AT 60.17-27). However, they emphasise his Honour’s finding (at [75]) that the one constant of the meeting notes, read in the context of the DOFA, was the agreement for land to be transferred by the Slades to the Broses at given dates “coupled with the declared purpose of the Deed”.

68. [83]

    The Slades point to the fact that some of the milestones in the DOFA were met in 2019 and 2021 (see primary judgment at [61]), namely the transfer of the Slades’ one half interest in Sandridge Farm in July 2019 and the transfer of Glendlyn in October/November 2021. His Honour noted that the second of those transfers was not in accordance with the milestone but was “near enough to time” – see at [75].

69. [84]

    As to the July 2019 transfer of the Slades’ half of Sandridge Farm to the Broses, the transfer noted the purchase price as $405,000. An Acknowledgement of Gift was executed in which there was an agreement that $55,000 of that amount was a gift. As to the sum of $350,000, this was paid from the proceeds of sale in August 2019 of the Broses’ unit in Townsville. The primary judge noted that there was a dispute between the parties as to whether that sum was properly characterised as a payment of a debt by the Broses or, as the Broses, believed, their contribution to the family (see [64]).

70. [85]

    A Partnership Agreement was also signed on 13 June 2019 (the day of the DOFA) which attributed to the Broses a 25% interest (12.5% each) in the partnership.

71. [86]

    Later, but only shortly before the hearing at first instance, the Slades agreed that “25% interest in the Slade Pastoral Co. partnership can be taken to have been transferred to your clients with effect from 1 July 2021” (see the letter dated 27 April 2023 from the Slades’ solicitor to the Broses’ solicitor in which this was described as a “concession”, the effect of which was said to be that the solicitors’ respective clients “can be taken to each hold a 50% interest in that partnership on and from 1 July 2021”). That, of course, was wholly inconsistent with the adamant position adopted by the Slades in January 2022 (see below). His Honour noted that this “belated shift in attitude” was a self-interested recognition of the tax consequences for the Slades if the partnership interests were 75/25, as they had up until then contended (see primary judgment at [118]).

72. [87]

    The Slades acknowledge that throughout this period, the partnership farmed all of the properties.

73. [88]

    The primary judge found that “simmering tensions” erupted in a catastrophic falling out in October 2021 and January 2022 (primary judgment at [24]), during which Garreth made physical contact with Bruce, the extent of which was disputed (see Garreth’s affidavit at [220(a)], Bruce’s affidavit at [124]-[127]).

74. [89]

    The lead up to those simmering tensions (by reference to Garreth’s evidence) includes the disclosure by Bruce in June 2020 that the Slades had (without prior notice to the Broses) put Gilgowrie and Misery into their superannuation fund. This disclosure occurred when Bruce informed the Broses that the partnership needed to add in a lease payment to the superannuation fund for use of that land (Garreth’s affidavit at [185]). Garreth deposed that, when challenged about this, by reference to the arrangement that had been agreed or discussed (referring it seems to the 2018 meeting) and that he and Kellie were meant to get that land down the track, Bruce said to him “We own the land and can do what we want with it” and “Its our land and our business and we can do what we want. When its yours you can do what you want”; and that Bruce shortly thereafter came back and said that it was their (i.e., the Slades’) business and they could do what they wanted.

75. [90]

    In mid-August 2021, Garreth says there was a conversation in which Bruce told him that he was a 50% partner now (so that he, Garreth, did not need to talk to Bruce “just to talk to someone about “maybe” doing something”). When Garreth said that they had not been given any documents to sign, Garreth says that Bruce said that he and Kellie were “50% partners just like the agreement”, that nothing needed to be signed and asked “[w]hy can’t you guys just accept that?” ([188] of Garreth’s affidavit).

76. [91]

    On 21 October 2021, contracts for the sale of Glendlyn to the Broses were exchanged. A payment of $630,000 was made from the partnership working account to loan account on 6 February 2022 to satisfy the debt over Glendlyn.

77. [92]

    The incident in October 2021 (which the primary judge accepted was the eruption of the catastrophic falling out) followed Garreth making enquiries as to a purchase of a new air-seeder and air-which was necessary for the business, and his attempt, through his banking contacts, to ascertain if there were better rates available for the financing of the purchase. Garreth said that he had a conversation with Bruce on the afternoon of 19 October 2021 in which he raised this (see his affidavit at [192]-[193]). Garreth sent an email at 7.38pm that day forwarding a message as to a meeting with his contact to discuss this (suggesting that the Slades come for a cup of tea if they had time). This elicited a terse text message from Donna that read “[d]ue to lack of communication and courtesy to the majority owners and partners of Slade Pastoral Co the date arranged by yourselves to host George Last doesn’t suit. It’s a courtesy to check before locking in an appointment” ([195] of Garreth’s affidavit).

78. [93]

    This led to a conversation in which Garreth deposed that Bruce said more than once that “[w]e are the majority shareholders”; that “[y]ou are trying to take our business away from us”; and that he (Garreth) was not authorised to make any decisions for Slade Pastoral without their approval “as we are the major shareholders” (see [196] of Garreth’s affidavit). Garreth deposed that he said to Bruce “so you’re breaking the Partnership Agreement” and Bruce said “[n]ot necessarily, but I’m the majority shareholder”. Claiming a majority interest is, of course, squarely contradictory with the previous confirmation by Bruce in August that the Broses were 50% partners.

79. [94]

    Garreth has deposed that on 29 October 2021 the Slades came over to Sandridge and that Bruce said “You’ve fucked it you arsehole. I’m not giving you anything” and “You hear me. You fucked my whole family. You. I’m not giving you anything. That agreement is over. You fucked it and now you’re fucked. This is over. You think you can take my business from me? Your [sic] done” ([199] of Garreth’s affidavit).

80. [95]

    The primary judge found that, in the heat of the moment, on 29 October 2021, the Slades declared that their partnership with the Broses was at an end (see [83] of the primary judgment). The submission by the Slades in these proceedings that they did not renounce the DOFA is impossible to reconcile with what was said at the 29 October 2021 altercation.

81. [96]

    Then, on 4 January 2022, there was a further altercation between Garreth and Bruce. Garreth accepts that he pushed Bruce in the chest a number of times but says that Bruce was the aggressor and he had asked him a number of times to step away from him (see Garreth’s affidavit at [212]-[220]). Garreth’s evidence was that, during the 2022 confrontation, Bruce “wouldn’t back away so I pushed him hard in the chest and he fell over” (at [215] of his affidavit).

82. [97]

    The Broses accept that following this incident the relationship with the Slades had irretrievably broken down (see Garreth’s affidavit at [221]) and since January 2022 they have not worked together in the partnership. Effectively, both sides appear to have treated the partnership as having come to an end. On 28 January 2022, the Broses sent an email to Ms Officer with three proposed options for the dissolution of the current partnership, including the transfer to them of Ostenleigh, Ozone Park and Reserve. Ms Officer has deposed in her affidavit affirmed 19 April 2023 at [56] that on 4 February 2022, Bruce advised her that the partnership needed to be split up and the parties needed to operate independently. There were further communications in early to mid-2022 as to the proposed dissolution of the partnership (see [57] to [68] of Ms Officer’s affidavit).

83. [98]

    The primary judge ultimately found that the Slades diverted their attention from intergenerational land transfers in favour of the Broses to sales of property (including Willawa) outside the Slade family “so as to realise capital gains” ([39(f) of the primary judgment]).

84. [99]

    The Slades arranged for essential plant and equipment to be sold at a clearance sale held on 29 July 2022 (the proceeds of which were used to retire debts secured on the land) (see [39(g)] of the primary judgment). His Honour found that the sale of plant and equipment was only possible because of the false pretence that the Slades were majority partners (and observed that the Slades abandoned this position close to the eve of the hearing, for self-interested taxation reasons) ([118]).

85. [100]

    The proceeds of the clearance sale of partnership assets ($2.059m) were paid into the partnership working account on 19 August (Donna’s affidavit at [150]). On 29 August 2022, sums of $40,000 and $900,000 were withdrawn from the partnership working account by the Broses.

86. [101]

    The Slades sold Willawa pursuant to a contract dated 25 November 2022, after which all the partnership debt (including all debt relating to the Broses’ properties) was discharged (primary judgment at [12]). The Broses point to their contribution to the discharge of that debt (see above).

87. [102]

    His Honour found that, when the Slades fell out with the Broses and high land prices were too good to pass by, the Slades determined to show the Broses that they remained in charge of their affairs by selling up, and by denying the Broses the land thought by the Broses to be necessary for a viable farming operation and, certainly, less land than Slade Pastoral Company had had available to generate its profits ([42] of the primary judgment). His Honour said that there was an element of spite in this but (rather charitably) went on to say that it was borne out of frustration, hurt and confusion arising from intergenerational misunderstandings (at [43]). His Honour noted that, by selling up the plant and equipment of the partnership, the Slades imposed debt on the Broses, upon whom it was incumbent to buy replacement plant and equipment if farming operations on their land were to continue (at a cost of $1.3 million) (see primary judgment at [74], [170]).

88. [103]

    His Honour found that the Slades unilaterally implemented a succession plan by themselves which was built upon their occupation of their house in town (West Wyalong), their accumulation of substantial liquid assets (without debt) and their abandonment of any ongoing interest in the family farm (at [171]).

89. [104]

    The Slades say that this left the Broses with 1,943 acres of unencumbered farmland worth some $7.44 million and a 50% interest in the partnership’s remaining assets ($1.372 million in cash, cars worth $238,000 and equipment worth $150,000) (referring to the primary judgment at [13], [168]-[169], [171]). In that regard, his Honour considered that the Slades implicitly ignored or at least downplayed the perspective of the Broses as persons engaged in ongoing farming operations which focus on the viability of the farm rather than the realisable capital value of land (see at [36]). Further, his Honour, while accepting the large element of generosity in the Slades’ succession planning, said that this was qualified by burdens imposed on the Broses, including, from the outset in 2013, their guarantees of the indebtedness of Slade Pastoral Co ([41]).

90. [105]

    The Slades, however, argue that the “guidelines” set out in the DOFA were predicated on: the partnership carrying on; family relationships remaining intact; the property values remaining the same; and the partnership debts being assumed by the Broses as they gradually acquired the Slade family properties. They say that, by 2022, each of those requirements had fundamentally and significantly failed: there had been a “catastrophic” falling out between the Slades and the Broses; the partnership had terminated; property values had skyrocketed, and the Slades had paid out all the debt. The Slades say that, in that context, they had honoured everything that the DOFA had anticipated would be given to the Broses up to that point in time. The Slades portray the Broses’ case as being that, despite the manifest failure of each and every pre-condition to their future acquisition of the Slades’ family properties after 30 June 2021, they should be given them regardless, in an accelerated fashion.

Pleaded claims

1. [106]

   As noted by the primary judge at [46], the Broses’ claim that the Disputed Properties were held on trust for them was framed in different ways: a remedial constructive trust, on the principles governing proprietary estoppel by encouragement; a common intention constructive trust; or an express trust when the DOFA was executed.

2. [107]

   The pleaded representations (see [12]-[31] of the Second Further Amended Statement of Claim) have been summarised already.

3. [108]

   At [34] of the pleading, the Broses plead events that occurred between July 2019 and October 2021 which they allege were pursuant to the agreements and representations at the December 2018 meeting and in the DOFA. Then at [35], they plead that the Slades resiled from the pleaded representations on and from October 2021.

4. [109]

   The alleged common intention constructive trust is pleaded at [35A]- [35B]. The alleged common intention was that, if the Broses commenced to work in Slade Pastoral Co and increased their share of the work in Slade Pastoral Co in comparison with the Slades over time, then the Broses would obtain: an ownership interest in the Slades’ farming land which would increase over time resulting in them becoming the sole owners of most or all of the Slades’ farming land; and an ownership share increasing over time in Slade Pastoral Co resulting in them becoming the sole owners of Slade Pastoral Co.

5. [110]

   Relevantly, at [35B] it is pleaded that the Broses have acted to their detriment in reliance on that common intention. The reliance particularised includes: (i) reliance on the 2013 Representations (including in moving to Quandialla, Garreth working for Slade Pastoral Co and the Broses giving an unlimited guarantee and indemnity of the partnership loans and permitting Slade Pastoral Co to farm and derive revenue from the Sandridge properties without charge); (ii) reliance on the 2015 and 2018 Representations (including in remaining on the property, increasing their share of the work, Garreth not pursuing contracting opportunities, not moving away, and remaining guarantors of all loan facilities); and (iii) reliance on the December 2018 and June 2019 representations (selling the Townsville apartment at a loss and selling their shareholding to pay the Slades the agreed sum of $350,000).

6. [111]

   From [35C]-[35D] there is the pleaded alternative claim based on proprietary estoppel by encouragement. In this section, the Broses allege that the pleaded representations induced expectations in them as identified at [35C(a)-(h)]. The particular expectations are separately identified in relation to each of the pleaded representations. At [35D], the allegation of detrimental reliance on the expectations is particularised by reference to the particulars to [35B].

7. [112]

   From [35E]-[35J] is the pleading as to estoppel. Then at [39A]-[39B] the allegation of an express trust arising out of the DOFA. The pleading goes on to make claims against IJAAMOTT ([39C]-[39E]) and to plead the proprietary relief claimed in relation to the properties ([39F]-[42A]). This section includes the pleaded willingness and ability to do equity towards the defendants (see [42A(c)], the particulars to which include the willingness to do such further equity as the Court orders). The final section of the pleading contains the claims in relation to the partnership ([46]-[50]), including an application for the appointment of a receiver, the winding up of the Partnership, and the taking of partnership accounts.

Primary judgment

1. [113]

   In the introduction section of his reasons, the primary judge made various findings relevant to his ultimate conclusion that the Disputed Properties were held on constructive trust for the Broses.

2. [114]

   At [18], his Honour referred to their relocation to Quandialla as representing “a major milestone in their life journey” and, relevantly, a “point of commencement for their claims for relief against the Slades”. His Honour said that, in committing themselves to a farming life in association with the Slades in Quandialla, Garreth “in particular” gave up a substantial lucrative career in bank management as an agribusiness manager.

3. [115]

   His Honour observed at [19] that from the time the question of the Broses moving to Quandialla was first broached the parties’ relationship had been preoccupied by “succession planning”. While his Honour considered that during the indeterminate “trial period” the Broses’ expectations might fairly be considered aspirational ([20]), those expectations “crystallised” during 2015 following the conflict between Bruce and Garreth in May 2015 ([21]). His Honour found that the Broses remained on the farm in reliance upon what they perceived to be assurances by the Slades that they would eventually acquire all the farm (other than Willawa) as their own (at [21]).

4. [116]

   His Honour then referred to the Proagtive meetings, saying that the October 2015 meeting “fuelled the Broses’ expectations that they would acquire the bulk of the Slades’ farmlands, expectations which Bruce in cross-examination conceded were reasonable” and that the second meeting did not dampen those expectations (see at [22]). His Honour referred to dissatisfaction on the part of the Broses as the Slades “appeared to qualify their commitment to timely transfers of land” and Garreth was bearing an increasingly heavy workload (as the Slades were beginning to enjoy extended holidays in semi-retirement).

5. [117]

   His Honour said that, from the December 2018 meeting there emerged a timeline for the parties’ intergenerational transfers (see at [23]) and that the in-principle agreement at the meeting was given “a degree of formality” with entry into the DOFA which “solidified” the Broses’ expectations of succession to the family farm ([24]).

6. [118]

   The primary judge described the catastrophic falling out on 29 October 2021 and 4 January 2022 as having led the Slades to renounce any ongoing obligations they may have had to transfer property to the Broses (at [24]). See also [62] in which his Honour said that in the wake of the catastrophic falling out, the Slades “renounced” any obligations they might have had to the Broses under the DOFA (and proceeded unilaterally to arrange for the Disputed Properties to be sold, “pre-emptively disclaiming any intention to meet the milestones scheduled for 1 July 2024 and 1 July 2026”).

7. [119]

   At [26], his Honour said that “[h]aving given up professional careers off the land to take up farming in Quandialla, with the encouragement of the Slades, and having settled in Quandialla with a growing family”, the Broses have been concerned about economic security and their future prospects.

8. [120]

   At [28]-[30], his Honour referred to the parties’ different perspectives about the economic viability of farm land (i.e., how much acreage was necessary for a viable farming business over the long term) and concluded that it was neither necessary nor appropriate to make a determination of that issue (at [30]), it being sufficient to record a finding (which is not here challenged by the Slades) that the views expressed by the Broses as to the need to hold about 3,000 acres of land for a viable farming business “are rational and ostensibly reasonable”.

9. [121]

   In then summarising the central features of the case, his Honour made a number of observations (at [39]), including, relevantly, that: the Slades made “headline representations” of future benefits to the Broses (placing this between 2013 and 2019 or thereabouts) about the conduct of farming operations on Slade family land with the intention of encouraging them to commit to a life on the farm, although they expressed from time to time “reservations which have not been brought home to the Broses in a timely manner, or at all, as a means by which the Slades might control or withdraw benefits to be enjoyed by them”; that the precise terms upon which the transfers of land and partnership interests were to take place were left uncertain; and that the representations of future benefit made by the Slades to encourage the Broses to take up farming on the Quandialla land were reinforced by ongoing encouragement in the Broses of a belief that they would acquire most of the land on which Slade Pastoral Co operated and the partnership business as a going concern, on terms that would enable them to live and work with a growing family long term.

10. [122]

    His Honour said that the Broses’ reliance on the Slades’ encouragement to take up farming “and to remain ‘on-farm’” was evidenced by the fact that Garreth “in particular” gave up and did not return to a lucrative professional career off farm, as well as by their ongoing and oft expressed anxiety about their dependency on the Slades’ recurrent reassurances that they should exercise patience and trust them (at [39(d)]).

11. [123]

    Pausing here, it can thus be seen that in summarising the “central features” of the case the primary judge was referring not only to the initial (2013) representations encouraging the Broses to relocate to Quandialla and take up farming on the land adjacent to the Slades’ land holdings but also to subsequent and ongoing encouragement for the Broses to remain on the farm (a point of relevance in light of the constant refrain by the Slades on this appeal that the Broses’ relocation to Quandialla could not have been in reliance on representations or assurances made after they had already relocated there (in 2014)). So understood, the reference at [47] to representations that, if the Broses moved to Quandialla, commenced working for the partnership and increased their share of the work in the partnership business over time, then they would obtain an interest in the partnership and the land resulting in them becoming the sole owners of most of the land and partnership, is clearly a compendious reference to a series of representations made at differing times and with different content (not an erroneous suggestion that the 2013 Representations involved a representation as to the ownership of most of the land). Similarly, the summarised finding of intended and actual reliance (at [49]) encompasses reliance at different points in time on evolving representations. The primary judge there referred to three aspects of reliance: relocating to Quandialla in the first place; guaranteeing debts of Slade Pastoral Co; and selling their Queensland residence (at a later point) and applying the proceeds of sale for the benefit of the Slades’ succession planning, facilitating the Slades’ acquisition of a house in town, off the farm.

12. [124]

    After the introduction, in which his Honour also considered the chronology of events leading up to the proceedings, the procedural history of the matter, and questions of credit, as well as the construction of the DOFA, the primary judge turned at [172] to the analysis of the Broses’ claims.

13. [125]

    At the hearing, counsel for the Slades identified five issues for determination (as summarised by the primary judge at [179] of the primary judgment), relating to: whether the alleged representations had been made; the reasonableness of the Broses’ reliance on said representations; the detriment suffered; whether the expectations had been fulfilled; and the Broses’ entitlement to relief.

14. [126]

    His Honour summarised the legal principles, outlined the questions for consideration that had been identified by the Slades (as well as further questions his Honour considered arose for determination), and then made some preliminary observations (at [182]-[184]). His Honour there contrasted the Slades’ “unilateral, retrospective attribution of a purely commercial character to their arrangements with the Broses” with the common paradigm which they had encouraged the Broses to embrace of an orderly succession to the family farm operating as a going concern (at [182]); and referred to the Slades’ grim persistence in abandoning the idea of an intergenerational farming family and orderly success process, contrary, his Honour said, to nearly ten years of assurances given to the Broses (at [183]).

15. [127]

    At [184], his Honour noted that it had not been suggested in the proceedings that the Slades’ renunciation of the DOFA could be justified, in the language of that deed, as a change in circumstances beyond the control of the parties whereby despite their best intentions the previously agreed agenda could not be complied with; saying that the Slades had simply disclaimed the DOFA as a non-binding guideline. Pausing here, the Slades take issue with this, pointing to written submissions made before the primary judge and oral submissions to similar effect (1/06/2024; T 324-236) where it was submitted that the complete breakdown of trust between the parties, the failure of the partnership, the substantial increase in property values and elimination of all partnership debt “must produce the result that the ‘fair outcome’ has changed in respect of the Slades’ properties which might otherwise have been acquired by the Broses in 2024 and 2026” (at [161] of the defendants’ closing submissions at first instance), that submission being followed by reference to cl 2 of the DOFA.

16. [128]

    The Broses, in this regard, submit that his Honour was there referring to the renunciation of obligations not having been put as coming within the ambit of cl 2 of the DOFA. It can hardly be disputed that the renunciation of the previous (October 2018) agreement (“[t]he agreement is over”), made (on Garreth’s account, at [199] of his affidavit) in no uncertain terms by Bruce in October 2021 bears no resemblance to someone using his best intentions to comply with the DOFA (whether that deed be binding or only a guideline). It was a strident and unilateral renunciation of the succession plan contemplated by the DOFA. On Bruce’s account (see at [113]ff of his affidavit), it was Kellie who first stated that the partnership was over (on about 26 or 27 October and that they (the Broses) wanted their own identity and independence). Bruce attributes to Garreth the words on 29 October 2021 “We’ve wasted our lives here, and this is over” ([116]). Suffice it to note that the primary judge clearly accepted the Broses’ account of events insofar as he accepted that the Slades had renounced the DOFA.

17. [129]

    The suggestion that the increase in property values or the elimination of partnership debt made the proposed succession plan unworkable is untenable. The “failure” of the partnership was on any view of things something caused by the renunciation of the 2018 payment and DOFA; i.e., Bruce’s stated intention to walk away from the succession plan (and the partnership). True it is that the accepted irretrievable breakdown of the relationship made the partnership unworkable (and led to calls from both sides for its termination or winding up), but again it is difficult to see this as a change in circumstances beyond the control of the parties using their best intentions to comply with the milestones in the DOFA. In any event, I consider this in the context of the grounds of appeal in due course.

18. [130]

    From [185], under the heading “Representations” his Honour addressed the issue as to whether the Slades clearly and unambiguously represented that the Broses would receive their properties (adopting the wording of the first issue that had been posed for determination by the Slades). His Honour found that they had done so (at [185]) and that the clearest formal expression of this was in the notes of the 18 December 2018 meeting embodied in the DOFA and confirmed by the steps taken by the Slades in implementation of the agreement made on 18 December 2018.

19. [131]

    At [188], his Honour said that:

20. [132]

    The documentation to which reference is there made was that which was earlier considered by his Honour: see [50] and [51] as to the 2015 Proagtive Family In-Principle Agreement; [130]-[135] as to the 18 December 2018 minutes or notes of meeting; and [57]-[76] as to the DOFA in 2019. The quotes in [188] are taken from the NAB Proposal submitted in 2013 (which his Honour had referred to at [112]-[113]).

21. [133]

    Those representations were to the effect that: first, in 2013, the Slades’ 50% interest in Sandridge Farm and a 50% interest in Slade Pastoral Co would be transferred to the Broses, if both parties (after a trial period) were “amicable to continue the proposed venture” (the clause proposed to be inserted in the contemplated family agreement); second, in July 2015, that in ten years’ time, Kellie would be the legal owner of all the farmland owned by the Slades in the name of Bruce (as per the Family In-Principle Agreement); third, in December 2018, that the Broses would progressively receive the Slades’ farmland and an increasing share of the partnership at specific milestones through to 1 July 2026 (see primary judgment at [58], [60], [130]-[132]); and fourth, confirmation of those milestones by the attachment of the 2018 Meeting Minutes to the DOFA signed by the parties on 13 June 2019 (see primary judgment at [57]-[60], [133]-[145]).

22. [134]

    His Honour considered (at [189]) that references to estimates of the market value of the land and the indebtedness of the partnership in the meeting notes annexed to the DOFA were subsidiary to the “headline representations in the documents bearing upon the fact and timing of proposed transfers of land and interests in the partnership” (saying that they related to the means by which the progressive transfer of land might be attained).

23. [135]

    Significantly, his Honour said that the above conclusion was confirmed by the evidence of Kellie (in particular) that Bruce from time to time expressly confirmed to her and Garreth that they were “working for equity” in working on the farm (see at [190]). His Honour expressly accepted that Bruce represented to the Broses that they “will get all the business and most of the land” and that they were “working for equity and most of [the land] will be yours”. His Honour also made clear that the documentation of 2015, 2018 and 2019 had to be read in a context which included the oral assurances given by the Slades to the Broses from time to time (see at [191]). Those oral assurances included that the Broses should exercise patience and “trust us [ie the Slades]” (see [39(d)] of the primary judgment), as well as that the Broses were “working for equity” ([190]), that the Broses “will get all the business and most of the land” ([190]) and that the Broses were “working for equity and most of [the land] will be yours” ([190]).

24. [136]

    The Broses emphasise that his Honour found (and that these findings are unchallenged) that the representations induced an expectation in the Broses that they would eventually acquire all the farm (other than Willawa) as their own (see [21] of the primary judgment), would acquire the bulk, or most, of the Slades’ farmlands ([22], [39(c)], [146]) and would succeed to the family farm ([24]).

25. [137]

    From [192] of the primary judgment, under the heading “Reliance and Reasonability of Reliance”, his Honour turned to address the second of the issues that had been posed for determination by the Slades. His Honour concluded that the Broses did rely, and reasonably rely, on representations by the Slades that they would receive the Slades’ property. In so doing, the Slades argue that his Honour erroneously conflated the representations – see below. His Honour said in this regard that (at [192]):

26. [138]

    His Honour had earlier found that the Slades’ evidence on the topic of the 2013 conversations was not credible (at [111]) and that their contention that the Broses moved to Quandialla with no more than a hope that they might one day acquire the Slades’ farmlands did not accord with reality ([112]).

27. [139]

    At [120], when commencing his consideration of the DOFA, his Honour had referred to a “pattern of assurances of future benefit given by the Slades to the Broses and the Broses’ continuing reliance upon those assurances in moving to Quandialla, selling up their Townsville residence and investing the proceeds of sale in the family business, and remaining on the farm despite working conditions less attractive than those of their sacrificed careers in banking”. The Broses emphasise the importance of context in this regard; whereas the Slades complain that Kellie did not sacrifice her career (since she was still employed, albeit as a part-time remote employee, when at Quandialla).

28. [140]

    His Honour said that the reasonableness of the Broses’ reliance on the Slades’ representations was fairly conceded by Bruce in cross-examination and that, objectively, his concessions of reasonableness were bound up with the assurances given by the Slades that the Broses could trust them to do the right thing by them (assurances which his Honour noted were reflected in the agreements for the transfer of land recorded in the October 2015 Proagtive document, the 2018 December notes of meeting and the 2019 DOFA (see at [193])).

29. [141]

    Next, under the heading “Detriment”, the third issue for determination identified by the Slades, the primary judge found that the Broses had acted upon the Slades’ representations in such a manner that, if those representations were not honoured, they would suffer substantial detriment, “having moved to Quandialla and invested their lives and resources in the Slade family farm and sacrificed professional careers in the process” (see [194] of the primary judgment).

30. [142]

    His Honour had earlier found that Garreth agreed to relocate from Townsville to Quandialla and to give up his career only because of the promise that he and Kellie would be able to establish themselves on the land and that he remained on the land, working for an income much less than that to which he had been accustomed, only because of ongoing assurances of future benefits (see [104] of the primary judgment).

31. [143]

    His Honour went on to say that if the representations made by the Slades were not honoured, the Broses will have lost the opportunity “both to take over the family farm and to pursue their lucrative professional careers off-farm, leaving them in a state of limbo and financial uncertainty, not to mention the disruption of the lives of themselves and their children if forced by economic circumstances or unexpected burdens to move away from Quandialla” (at [195] of the primary judgment).

32. [144]

    As to the fourth issue identified by the Slades (whether any reasonable expectations of the Broses had been fulfilled), at [196] under the heading “Denial of Reasonable Expectations”, his Honour expressed the opinion that this was misdirected. His Honour noted that the Broses did not deny that there had been a partial fulfilment of the expectations that they had when they first moved to Quandialla in 2013 and which they were encouraged more firmly to have in and after 2015. His Honour went on to say that the point was not what expectations had been fulfilled but what reasonable expectations of the Broses had been denied. His Honour said (at [196]):

33. [145]

    His Honour (from [197] of the primary judgment) then went on to consider the question of relief (the conditions that his Honour imposed to reflect the acceleration of the Broses’ interests are not the subject of challenge).

34. [146]

    The primary judgment was delivered on 29 August 2023. His Honour’s reasons included a proposed costs order (at [220(10)]) that “each party pay or bear his, her or its own costs of these proceedings to date, including any costs referable to the balance of the proceedings reserved for consideration by the order made under r28.2 of the UCPR on 30 May 2023”. The parties had an opportunity to consider the orders that should be made (including the proposed costs order) (see [220] of the primary judgment).

35. [147]

    On 5 September 2023, the parties provided agreed orders to the Court, save as to costs. The Broses provided written submissions as to why a costs order should be made in their favour. The Broses’ primary position was that they should have all of their costs of the proceedings to date, or alternatively 75% of their costs of the proceedings to date (at [2]-[3] of their submissions as to costs dated 5 September 2023). The Slades opposed the order for costs sought by the Broses and were content with the proposed order that there be no order as to costs.

36. [148]

    The primary judge dealt with the issue of costs on 5 September 2023, saying (5/9/2023; 2.8-26):

37. [149]

    After briefly hearing further from counsel for the Broses, his Honour went on to say (5/9/2023; T 4.6-11):

38. [150]

    His Honour then made the costs order from which the Broses now seek leave to cross-appeal.

Grounds of Appeal

1. [151]

   I turn now to the grounds of appeal. At the outset, I note that the Broses’ position is that the DOFA solidified many years of the Slades’ assurances (in this regard I note the primary judge referred to “headline representations” at [39(a)] of the primary judgment) and the Broses’ expectations; and that their case concerned the renunciation by the Slades of any obligation to transfer land as contemplated by the fourth and fifth milestones under the DOFA (as recorded by the primary judge at [76]). The Slades, however, argue that the primary judge erroneously conflated the various alleged representatives, the evidence as to reliance thereon, and the alleged detriment suffered as a result. Further, while there is no direct challenge to the findings concerning the renunciation by the Slades of their intention to fulfil the expectations induced in the Broses the Slades submit that it is a mischaracterisation to say that they renounced the DOFA. Rather, the Slades say that they complied with everything contained in the DOFA until the families’ “catastrophic falling out” in January 2022 (from which Garreth stopped working for the partnership altogether, and thereafter did not speak to either of the Slades).

2. [152]

   Insofar as the Broses say that the Slades abandoned them and actively set about to destroy their ability to run a family farming operation which by 2022 needed to support them and their family, the Slades complain that this was not the case that the Broses pleaded, nor the case that they met at trial. Rather, the Slades say that the Broses claimed detrimental reliance by reference to Garreth giving up his banking career, the family moving to Quandialla, Garreth working on the farm for low income, and the Broses guaranteeing the partnership’s debts (which the Slades say ultimately cost them nothing). The Slades say that no allegation was made that the 2,000 acres of family farmland they had already been given (mortgage free and worth $7.44 million) was not viable and that, had that been alleged, the Slades would have brought expert evidence to answer it.

3. [153]

   Grounds 1 and 2 go to the issue of whether the representations (which the Slades say must be considered separately) were sufficient to ground a proprietary estoppel. They are framed as follows:

4. [154]

   The Slades contend that the primary judge erred in finding (at [185]) that they clearly and unambiguously represented that the Broses would receive the Slades’ properties because they say that this finding (and the discussion at [185]-[195]) erroneously conflates nine years of inter-family dealings (the so-called “Conflation Error”).

5. [155]

   The Slades say that there were three “inflection points”: the events leading up to the Broses moving to Quandialla in 2014 (which they refer to as the 2013 Representations); the family meetings convened through Proagtive in 2015 and 2016 (which they refer to as the 2015 Representations); and the meeting in December 2018 that culminated in the entry into of the DOFA in 2019 (which they refer to as the DOFA Representations). They argue that the primary judge erred in conflating those distinct representations (citing the primary judgment at [185]); and they maintain that each of the representations was aspirational or conditional (and insufficient to found a proprietary estoppel by encouragement).

6. [156]

   Complaint is made that the primary judge did not carefully identify each representation, its nature or effect, what, if any, reliance was made upon each representation, and any detriment thereby suffered.

7. [157]

   It is said by the Slades that, at [111]-[112], the primary judge accepted that the 2013 Representations conveyed “mere prospects” (the Slades here also refer to [20]-[21] in that regard). The Slades say that there is inconsistency between that finding and the later treatment (at [48]-[49], [185] and [192]) of the 2013 Representations as forming part of the “rolled up representation” founding the Broses’ estoppel (referring to [188] and the statements by his Honour at [49] and [192] that “the Slades made representations of future benefit to the Broses with the intention that the Broses would be encouraged to take up farming on the Slades’ land”). The Slades point out that the Broses took up farming at Quandialla in January 2014 ([17]-[18]) and make the point (repeatedly) in oral submissions that the Broses cannot have relied (when relocating to Quandialla) on representations made after that time.

8. [158]

   The Slades argue that a reasonable person in the Broses’ positions (i.e., with a high level of financial sophistication and experience in rural property transactions as agribusiness bankers – referring to the primary judgment at [18], [112], [117]) could not have understood the 2013 Representations as clear (or clear and irrevocable) promises that the Broses would receive the Slades’ “existing land holdings” (i.e., Ostenleigh, Ozone Park and Reserve). Complaint is made that his Honour did not carry out any analysis of whether a reasonable person in the Broses’ position would so have understood the 2013 Representations.

9. [159]

   The Slades say that the 2013 Representations concerned the future acquisition of Sandridge Home and Sandridge Farm, which the Broses now have. They say that the NAB Proposal plainly distinguished the position with respect to Sandridge Home and the Broses’ intended interest in Sandridge Farm from the Slades’ interest and their “existing land holdings”; with any transfer of the Slades’ interest in Sandridge Farm being a “mere” view dependent on a future agreement and “both parties being amicable to continue the proposed venture” and any transfer of the “existing land holdings” being expressed as only the Broses’ plans which they acknowledged required future discussion also involving the Slades’ other children and which “may not happen”. The Slades contend that such aspirational and conditional statements are insufficient to ground a proprietary estoppel.

10. [160]

    As to the 2015 Representations, the Slades complain that, despite his Honour’s acceptance that these were “highly qualified” (citing [187]-[189] of the primary judgment), the primary judge went on to treat the representations made in the Family In-Principle Agreement as part of the “rolled-up” representation founding the Broses’ estoppel; and did so without any analysis of whether a reasonable person in the Broses’ positions could have understood the 2015 Representations as clear and irrevocable promises that the Broses would receive Ostenleigh, Reserve and Ozone Park either at all or in the Slades’ lifetimes.

11. [161]

    The Slades contend that, consistently with the findings at [50], [52]-[53], such a person could not have so understood the 2015 Representations. In that regard, the Slades point to the fact that the Family In-Principle Agreement was expressed to be “in principle” and they say that it was concerned with the Slades’ testamentary intentions, which were revocable and subject to change (as they point out in fact occurred at the July 2016 meeting).

12. [162]

    Insofar as the primary judge referred (at [51]) to Bruce’s acceptance that it would have been reasonable for Kellie, looking at the October 2015 document, to form the view that in ten years’ time she would be the legal owner of Ostenleigh, Reserve and Ozone Park (and similarly made such an observation at [193]), the Slades say that this was only after Bruce had rejected the notion several times; eventually accepting it was a mere “possibility”, in the context of earlier questions as to whether the results shown in the column found to relate to testamentary transfers would be a reality. Complaint is made that his Honour here impermissibly applied a subjective test; and that the focus is on a reasonable person in the Broses’ positions not what Bruce (who they point out is not a banker) said in cross-examination.

13. [163]

    The Slades place emphasis on Kellie’s acceptance that, following the October 2015 meeting, she understood that the discussions concerned only testamentary intentions; there was “no formal plan”; the Slades could do whatever they chose with their properties, and that whatever they decided was up to them; and on Garreth’s acceptance that he understood the “In-Principle Agreement” was “only an indication”, that the Slades “could still do whatever they chose to do” and they “might not do it”.

14. [164]

    As to the DOFA Representations, the Slades complain that his Honour’s finding at [143] amounts to a finding that, despite expressly being a “guideline” which acknowledged that “circumstances may change”, it was not a document that the Slades were “free to disregard at will”. I interpose to note that this seems to me to mischaracterise what his Honour was there saying. The reference by the primary judge at [143] to the DOFA (as a document which the Slades were free to disregard at will) was there referring to what his Honour understood to be the Slades’ characterisation of the DOFA (or the import of their submissions as to its non-binding nature) namely their characterisation of it “as no more than a ‘guideline’ which they were free to disregard at will”; a characterisation that his Honour said did not sit comfortably with the nature, form, purpose or context of the Deed.

15. [165]

    The Slades further say that most of his Honour’s reasoning in this regard concerns the Slades’ wills ([149]-[160]), which they point out had not been given to the Broses prior to the proceeding and which cannot, therefore, be relevant to the understanding of a reasonable person in the Broses’ positions.

16. [166]

    Pausing here, the reasoning which the Slades here criticise (i.e., [149]-[160]) follows his Honour’s observation at [146] that the context in which the DOFA is to be viewed includes a common assumption of the parties that most of the Slades’ farmland would be transferred to the Broses in a manner consistent with expectations of succession within a family proud of generations on the land. His Honour then refers to various illustrations of the pride, or importance, to Bruce and/or the Slades attaching to family tradition and the “family farm” (see [147]-[149]). His Honour is not there suggesting that the reason the Slades might be held to the representations in the DOFA (or not be free to disregard the DOFA at will) is to be found in the wills executed by the Slades over the relevant period. Nor is his Honour suggesting that the Broses’ expectations arising out of the DOFA Representations (or the reasonableness of those expectations) were somehow attributable to the contents of the Slades’ wills.

17. [167]

    The Slades submit that sophisticated bankers like the Broses could only have understood the terms of the DOFA as meaning that any transfer of Ostenleigh, Ozone Park and Reserve was aspirational and conditional, akin to a representation of the kind considered in Maunsell v Hedges (1854) 4 HLC 1039; 10 ER 769 where there was a representation as to a testamentary bequest “unless some unforeseen occurrence should take place” and Wodzicki v Wodzicki [2017] EWCA Civ 95, where there was a representation that a transfer of property would occur when the defendant thought the claimant was ready. The Slades thus argue that a reasonable person in the Broses’ position could not have understood the DOFA Representations as a clear and irrevocable promise that they would receive the properties.

18. [168]

    Accordingly, the Slades submit that none of the 2013 Representations, 2015 Representations or DOFA Representations (considered separately) amounted to a representation of a kind sufficient for a proprietary estoppel by encouragement; and hence the conclusion at [185] was wrong and the Broses’ claim should have failed.

19. [169]

    As to the proposition that “aspirational or conditional representations are insufficient” to found a proprietary estoppel, the Broses say that this is contrary to authority (referring to Waddell v Waddell [2012] NSWCA 214 (Waddell v Waddell) per Campbell JA (with whom Allsop P and Sackville AJA agreed) which I cited in E Co v Q [2018] NSWSC 442 at [962]; and Van Dyke v Sidhu [2013] NSWCA 198 (Van Dyke v Sidhu) at [61]; [68]; [69] per Barrett JA (with whom Basten JA and Tobias AJA agreed)) where it was held that the circumstances in which the promises were made rendered reliance on the promises objectively reasonable despite the obvious preconditions to fulfilment (a finding not challenged in the High Court – see Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19 (Sidhu v Van Dyke) at [34]-[35] (French CJ, Kiefel, Bell and Keane JJ)). The Broses argue that the conditionality of a promise is generally more relevant to whether reliance on it was reasonable than to whether the representation was sufficiently clear and unequivocal.

20. [170]

    Insofar as the Slades submit that the representations must be irrevocable, the Broses say that all promises unsupported by consideration are initially revocable; and that the very purpose of proprietary estoppel is that detrimental reliance can make them irrevocable. The Broses point to the distinction between a mere statement of present (revocable) intention and a promise, arguing that an assurance such as “all this will be yours” is in the latter category (referring to Gillett v Holt [2001] Ch 210 (Gillett v Holt) at 227-228, cited in Delaforce v Simpson-Cook (2010) 78 NSWLR 483; [2010] NSWCA 84 (Delaforce) at [36] (Handley AJA, with whom Allsop P and Giles JA agreed)).

21. [171]

    As to the requirement that the representations relied on must be clear and unambiguous, the Broses note that this is heavily dependent on the context, including the characteristics of the parties and the nature of the relationship between them (citing DHJPM Pty Ltd v Blackthorn Resources Ltd (2011) 83 NSWLR 728; [2011] NSWCA 348 (DHJPM) at [56] (Meagher JA, Macfarlan JA agreeing)). The Broses argue that a lower standard of clarity is required where the representations are made in a familial rather than commercial context (referring to Thorner v Major [2009] 1 WLR 776 (Thorner v Major) at [56], [80]-[85], cited with approval in DHJPM at [56]-[58]).

22. [172]

    The Broses emphasise that what attracts the application of proprietary estoppel is not the promise itself but the expectation which it creates (citing Giumelli v Giumelli (1999) 196 CLR 101; [1999] HCA 10 (Giumelli v Giumelli) at [35]); noting that it is sufficient if it is reasonable for the representee to interpret the representation in a particular way and to rely on that interpretation (citing Galaxidis v Galaxidis [2004] NSWCA 111 (Galaxidis) at [93] (Tobias JA, Giles JA agreeing)).

23. [173]

    While the Broses accept that it is necessary “carefully to identify” each representation and the expectation thereby induced, they say that this does not mean that each representation should be considered separately and in isolation; rather, they argue that where numerous representations are relied on, they must be evaluated together as a series and considered in the context of the whole history of the relationship of the parties (citing Galaxidis at [95]). The Broses submit that the primary judge carefully identified each representation, and the expectation induced by it.

24. [174]

    The Broses argue that the approach of the Slades (to analyse the respective representations in isolation without analysing them in the context of the history of the parties’ relationship) is contrary to authority; and ignores the life changing impact of the decisions that they made.

25. [175]

    As to the 2013 Representations, the Broses say that the NAB Proposal was made in the context of the earlier oral representations that his Honour found had been made (at [108]) and which were not conditioned in the same way as the representations in the NAB Proposal; but in any event they argue that the conditions referred to in the NAB Proposal (such as a succession planning process occurring and the Broses and the Slades being amicable to continue the proposed venture) were unremarkable in the context of the Broses’ relocating to Quandialla and that these conditions did not make the representations incapable of giving rise to an expectation on the part of the Broses, nor make it unreasonable for the Broses to rely on those representations.

26. [176]

    The Broses argue that it was reasonable for them to interpret the representations made by the Slades in 2013 as a promise that, provided the new venture of working together in the partnership business was reasonably successful with a plan to make a succession plan, the Broses would obtain Sandridge Home, Sandridge Farm and a 25% interest each in the partnership, with the potential to obtain further land thereafter; and that the primary judge held as much (at [111]-[112]).

27. [177]

    As to the primary judge’s use of the word “prospect” (at [111]), the Broses note that his Honour referred to the “prospect of substantial gain in the form of an interest in the Slades’ farming operations” and contrast this with a mere hope that they might one day acquire the Slades’ farmlands (as the Slades have expressed it). The Broses say that the prospect of obtaining clearly defined interests in land and the partnership if the Broses’ relocation worked out was capable of, and did, induce an expectation recognised by the principles of proprietary estoppel.

28. [178]

    The Broses emphasise that the question is not whether there was a clear and unequivocal representation in 2013 that the Broses would receive Ostenleigh, Ozone Park and Reserve, come what may; rather, they say the question is what was represented to them at that time to induce them to move to Quandialla, and whether they relied on it. The Broses argue that this enquiry is itself only part of the broader enquiry of considering all of the representations made, the inducement of expectation, the reliance on the representation, the detriment suffered, the Slades’ departure from the expectation and how equity would respond having regard to the whole of the parties’ relationship.

29. [179]

    As to the primary judge’s consideration of the 2015 Representations, the Broses say that the primary judge’s observation (at [51]) as to Bruce’s acceptance that it would be reasonable for Kellie to form the view based on the Family In-Principle Agreement, that she would be the legal owner of all the farmland owned by the Slades within ten years, should be understood as a finding that it was reasonable for the Broses to understand the document as representing that would occur. The Broses submit that, in so doing, his Honour did not apply a subjective test in considering what the representation conveyed; that, rather, his Honour relied on the concession by Bruce as supporting his Honour’s own conclusion that it was objectively reasonable so to have understood the document. The Broses submit that that conclusion is clear from [187], where his Honour found that the estate plan in the Family In-Principle Agreement was to a similar effect as the December 2018 meeting notes, namely, a representation by the Slades that the Broses would receive their properties (noting [185] of the primary judgment).

30. [180]

    The Broses say that his Honour did not compartmentally assess what the Family In-Principle Agreement conveyed to the Broses but, rather, assessed that in the context of the other oral assurances which the Slades had made (pointing to [190]-[191] of the primary judgment). They argue that the evidence relied on by the Slades to support the submission that everything in the Family In-Principle Agreement was aspirational does not overcome the unchallenged factual finding (at [21]) as to the crystallisation during 2015 of the Broses’ expectations and that the Broses remained on the farm in reliance upon what they perceived to be assurances by the Slades that they would eventually acquire all the farm (other than Willawa) as their own. The Broses say that this finding is consistent with what Kellie accepted in cross-examination, namely, that by reference to paragraph 3 of the In-Principle Agreement, the Slades “had the ability to do whatever they chose to begin to make the transition”. They say that it is also consistent with Garreth’s evidence that the agreement reached was a “bigger and better carrot to stay there”, reflecting the fact the representations in 2013 were further solidified by the contents of the Family In-Principle Agreement.

31. [181]

    As to the July 2016 Proagtive meeting (where the Slades foreshadowed the possibility of the transfer of a parcel of land into a self-managed superfund), the Broses say that the expectation induced by the 2015 Family In-Principle Agreement was relevantly unaltered by the outcome of the July 2016 Proagtive meeting (and that this explains why the primary judge made no relevant findings about this meeting).

32. [182]

    The Broses point out that there is no challenge to the finding (at [22] of the primary judgment) that the first Proagtive meeting “fuelled the Broses’ expectations that they would acquire the bulk of the Slades’ farmlands, expectations which Bruce in cross-examination conceded were reasonable” and that the second 2016 Proagtive meeting did not dampen those expectations. The Broses also note that there is no challenge to the finding that the Slades made wills in January 2017 consistent with the representations in the In-Principle Agreement of October 2015 (referring to [157]-[158] of the primary judgment).

33. [183]

    The Broses say that, in accepting their evidence that the Slades made ongoing oral assurances that the Broses would obtain the partnership and most or all of the Slades’ farmland (at [191]), his Honour plainly accepted that oral representations were made by the Slades to induce the Broses to remain working for them in the months after October 2016, when Kellie had the Broses’ second child. They point out that that evidence included that Donna again said “[t]rust us Kellie. This will all be yours. We will build a house in town. Just have faith in us” (citing [133] of Kellie’s affidavit); and that, in rejecting the Broses’ proposal to farm Sandridge separately in October 2018, Bruce made similar representations to Kellie ([149] of Kellie’s affidavit).

34. [184]

    As to the DOFA Representations, the Broses say that the notes of the December 2018 meeting are a clear and specific regime for the progressive transfer of properties and the partnership from the Slades to the Broses; and that the points under the heading “What will a successful succession plan look like” should not be read as conditions precedent to the timeline set out in the notes being implemented.

35. [185]

    As to the Slades’ criticisms of the primary judge’s conclusions in relation to the DOFA (and their emphasis on the words “guideline” and “circumstances may change”), the Broses say that the Slades ignore the specificity and clarity of the balance of the DOFA, and disregard the solemnity of the parties preparing and executing a deed and the context in which that was done. The Broses submit that the DOFA was as close to a clear and unambiguous representation, falling short of a binding contract, that one could imagine; and they maintain that it created a reasonable expectation on their part.

36. [186]

    In their reply submissions, the Slades maintain that, to found a proprietary estoppel, a representation must be a “clear promise to do something” that was, objectively, reasonably capable of being understood as such by the representee; and that aspirational representations which “do not relate to what the other party is bound to do” cannot. It is again submitted that representations which are conditional, in the sense of depending on matters under the control of the representor, are insufficient.

37. [187]

    The Slades accept that, where a promise to do something in the future is subject to a contingency outside the representor’s control, an estoppel may arise if those conditions are eventually fulfilled. They submit that the conditions in Van Dyke v Sidhu could be seen as falling into this class. Conversely, they submit that, if those conditions fail, there is no estoppel (either because a reasonable person could only have expected to receive the interest if the conditions held or because, if the conditions to the promise fail, it would not be unconscionable for the representor to resile therefrom).

38. [188]

    The Slades say that the principles in DHJPM do not assist the Broses. They contend that the primary judge’s findings as to the sophistication of the Broses (noting [18], [111], [117] of the primary judgment) militate against a reasonable understanding by the Broses of the Slades’ future intentions beyond what the contemporaneous documents actually say (including the express reservations therein contained). The Slades say that family succession of the Slades’ farming properties involved a number of competing interests, including the retirement needs of the Slades and the expectations of the other two daughters in the family. It is said that the NAB Proposal expressly envisaged the need to have an all-inclusive succession planning process down the track (citing [112] of the primary judgment). The Slades say that this was carried through into the two Proagtive meetings in 2015 and 2016, and then again in December 2018; and that each of those family meetings resulted in documents being produced reflecting the outcomes of those meetings, culminating in the DOFA of June 2019. The Slades say that this was a consistently-documented, structured process; and that each of those documents made clear that the Slades’ future intentions were qualified aspirations that they could change. The Slades emphasise that the representations were never expressed as promises.

39. [189]

    The Slades also contend that the Broses’ reliance on Galaxidis is misplaced. They submit that the conclusion in that case that each in a series of conversations could not be considered in isolation; but needed to be considered together to ascertain the meaning of the words that had been sent is different from the Conflation Error (which they characterise as linking the move from Townsville to Quandialla in 2014 to a representation made in the DOFA five years later). The Slades say that (contrary to [192] and [196] of the primary judgment) no equity can be generated in respect of a representation made in 2018 from acts of “reliance” on representations made in 2013.

40. [190]

    As to the 2013 Representations, the Slades maintain that the 2013 Representations were all fulfilled; noting that the Broses were given Sandridge Home and half of Sandridge Farm from the start; that the other half of Sandridge Farm was transferred in 2019 (coinciding with the Broses paying $350,000 and the Slades issuing a Deed of Gift for the remaining $55,000 value of that half) (see [64] of the primary judgment); and that the Broses were given 25% of the partnership in 2019 coincident with the DOFA (primary judgment at [118]), and later (as adverted to above, only shortly before the hearing) the other 25%.

41. [191]

    The Slades emphasise that the 2013 Representations contained no promise to transfer Ostenleigh, Ozone Park or Reserve. The Slades say that this is the central question because the core element of the detrimental reliance as found was that Garreth “gave up a substantial, lucrative career in bank management” yet this was only done in response to the 2013 Representations (which made no promise about those three properties and were, they say, in any event fulfilled). I interpose here to note that the emphasis placed by the Slades on the lack of specific reference in 2013 to Ostenleigh, Ozone Park and Reserve does not take in my opinion sufficiently into account the oral representations in 2013 as to “working from equity” and “working for equity in the Partnership and in the rest of the land” (see [25] above).

42. [192]

    As to the 2015 Representations, the Slades emphasise that the findings as to the 2015 Representations were first, as set out in the primary judgment at [50], that at the First Proagtive Meeting the Slades identified a present intention as to their future testamentary intentions, which was a “highly qualified document”, and, second, at [52] of the primary judgment, that the Second Proagtive Meeting in July 2016 produced “no agreement or family harmony”.

43. [193]

    The Slades say that the Broses both accepted that, under the Family In-Principle Agreement arising from the First Proagtive Meeting, the Slades could still do whatever they chose; that Kellie understood that the Slades’ estate plans were subject to change and Garreth understood that the Slades needed to feel comfortable before they would consider any transfer. The Slades say that the finding at [51] about what Bruce thought would have been reasonable for the Broses to understand is divorced from what the Broses said they actually understood at the time; and that it is irrelevant to the question of what was reasonable for them to have understood.

44. [194]

    As to the Broses’ submissions in relation to the 2016 Proagtive Meeting (which emphasised the primary judge’s finding that that meeting did not relevantly alter the expectation induced by the 2015 In-Principle Agreement), the Slades say that at the 2016 Proagtive Meeting they had decided to put some of their properties into superannuation, which upset the Broses, and that there was no agreement on any future transfer of any land.

45. [195]

    As to the DOFA Representations, the Slades submit that the “oral assurances” referred to in the Broses’ submissions (and the primary judgment at [191]) should be understood in the context of the resolutions reached at the facilitated family meeting in December 2018, culminating in the DOFA. It is submitted that all parties were being careful to record the extent of their agreements in writing, with input from all family members. The Slades say that “off-hand, conciliatory statements” by Bruce (a characterisation that seems to me to be self-serving) cannot reasonably have been understood to be binding promises, particularly as they are inconsistent with the written agreements later reached.

46. [196]

    The Slades say that the DOFA expressly qualified their future intentions; and again submit that a reasonable person in the Broses’ positions (sophisticated bankers familiar with agribusiness property transactions) could not have understood the DOFA to involve a binding commitment by the Slades to transfer Ostenleigh, Ozone Park and Reserve, at the very least if the stated conditions to those future transfers failed (as the Slades say they unquestionably did).

47. [197]

    As to the primary judge’s reliance on the Slades’ wills (at [149]- [160] of the primary judgment), which the Slades maintain was misguided, they reiterate that the Broses never saw the Slades’ wills until the trial.

48. [198]

    The Broses’ case concerning estoppel by encouragement invokes the line of authority descending from Dillwyn v Llewelyn [1862] EWHC Ch J67; 45 ER 1285 and the dissenting judgment of Lord Kingsdown in Ramsden v Dyson (1866) LR 1 HL 129 (see at 170-171), i.e., in the words of Handley AJA, the estoppel which may arise when an owner of property has encouraged another to alter his or her position in the expectation of obtaining a proprietary interest and that other, in reliance on the expectation created or encouraged by the property owner, has changed his or her position to his or her detriment (see Delaforce at [21]).

49. [199]

    The Slades have pointed to the well-known formulation of the elements common to the doctrines of equitable estoppel (or which proprietary estoppel by encouragement is one) by Brennan J, as his Honour then was, in Waltons Stores v Maher (1988) 164 CLR 387 at 428-429; [1988] HCA 7 (Waltons Stores), emphasising the first of those elements, namely an assumption or expectation that a particular legal relationship between the parties then existed or would exist (and in the case of the expectation of a future legal relationship that the defendant would not be free to withdraw therefrom the expected legal relationship), in submitting that what was required here was for the Broses to establish that they reasonably understood that the promises made to them were irrevocable.

50. [200]

    However, it has been made clear that his Honour’s elements are not to be applied in every case in a “mechanical fashion” (see Doueihi v Construction Technologies Australia Pty Ltd (2016) 92 NSWLR 247; [2016] NSWCA 105 (Doueihi) at [166] (Gleeson JA, with whom Beazley P and Leeming JA agreed); DHJPM at [47]; Austotel Pty Ltd v Franklins Selfserve Pty Ltd (1989) 16 NSWLR 582 at 615-616 (Priestley JA)).

51. [201]

    In particular, the broader view reflected in the joint judgment of Mason CJ and Wilson J in Waltons Stores has prevailed (as recognised by White J, as his Honour then was, in Construction Technologies Australia Pty Ltd v Doueihi [2014] NSWSC 1717 (at [145]-[147]), affirmed on appeal in Doueihi). It is not necessary for a plaintiff to show that he or she assumed or expected that a “particular legal relationship” existed or would exist (see Doueihi at [153]-[170]). Nor is it necessary to show that the promise was irrevocable. It is unconscionability, rather than “ticking the box” of each of Brennan J’s elements, which will be decisive (Doueihi at [166]-[167]) (see also Giumelli v Giumelli at 121).

52. [202]

    True it is that there must be a careful identification of the nature of the assumption or expectation held by the plaintiff (to be assessed by reference to the circumstances of each case) (Doueihi at [186], citing Commonwealth of Australia v Verwayen (1990) 170 CLR 394 at 445; [1990] HCA 39; see also Thorner v Major at [56]) but the requirement of certainty for a representation or promise in a proprietary estoppel claim is less stringent than in other kinds of estoppel. See Flinn v Flinn [1999] VSCA 109, where Brooking JA (with whom Charles and Batt JJA agreed) concluded (at [80]) that “a promise may be definite in the sense that there is a clear promise to do something even though the something promised is not precisely defined” (see also Delaforce at [55]; Evans v Evans [2011] NSWCA 92 (Evans v Evans) at [116], [121] (Campbell JA, with whom Giles JA and Sackville AJA agreed); DHJPM at [54]).

53. [203]

    In Galaxidis, Tobias JA said (at [93]) that the representation or promise is sufficiently clear “if it is reasonable for the representee to have interpreted the representation in a particular way being a meaning which it is clearly capable of bearing and upon which it is reasonable for the representee to rely”. See also the similar statement by Hodgson JA in Sullivan v Sullivan [2006] NSWCA 312 at [85] (McColl JA agreeing).

54. [204]

    While a distinction has sometimes been drawn in practice between arms-length/commercial cases and domestic/family cases when assessing the adequacy of an assurance or the reasonableness of an expectation or assumption (see, for example, DHJPM at [104]-[105]; Cobbe v Yeoman’s Row Management Ltd [2008] UKHL 55 at [68] per Lord Walker), in the present case this does not assist the Slades since the representations were clearly in a family context (as made clear by the ongoing emphasis on succession planning).

55. [205]

    It is also relevant to note that the expectation reasonably derived from another’s words and actions “need not depend on the words of a single conversation, but could arise from conduct over a period of time” (Evans v Evans at [107]). This is of particular relevance in the present case where the criticism made of the primary judge is that he found a “rolled up” representation.

56. [206]

    Finally, and also of particular relevance to the present case, a proprietary claim does not necessarily fail simply because the representations or promises are conditional or subject to limitations (see Campbell JA in Waddell v Waddell at [53]).

57. [207]

    In the present case, in my opinion, the representations were sufficiently clear. From a very early time there were, as his Honour found, “headline representations” as to future benefits which, by 2015/2016, encompassed that (in an estate planning context) all the land (other than Willawa) would be theirs (not dissimilar to the statement in Gillett v Holt at 227 that “all this will be yours”).

58. [208]

    The criticism that his Honour failed carefully to address the respective sets of representations cannot be accepted. His Honour (as noted earlier) went through each of the sets of representations. Significantly, however, his Honour also pointed out the stages when earlier representations or expectations were fuelled or solidified by later representations.

59. [209]

    The oral assurances by the Slades to “trust us” and the Broses would get all the land put paid to any suggestion that the separate sets of representations could be compartmentalised as the Slades now suggest.

60. [210]

    As to what someone in the position of the Broses would reasonably have understood by the various representations and assurances, I accept that a sophisticated agribusiness consultant would be expected to understand that in a commercial context that representations of the kind made to the Broses were neither binding nor irrevocable. However, in a family context it was in my opinion reasonable for the Broses to rely on the repeated assurances by the Slades that they could and should trust the Slades, keep working on the family farm, and make the partnership the business their priority; and that they would then get most of the land and the partnership business.

61. [211]

    The fact that the context in which the 2018 and DOFA Representations were made was the contemplation of a continued partnership and an “intact” family relationship does not make the promises “aspirational”. Rather, in my view it explains the anxiety of the Broses as to whether (and when) the Slades would eventually honour their promises.

62. [212]

    Grounds 1 and 2 are not made good.

63. [213]

    Grounds 3-5 challenge the finding (at [192]) as to reasonable reliance on the representations:

64. [214]

    The Slades contend that the reasonable reliance finding is infected by the same conflation error as the finding challenged in Grounds 1 and 2.

65. [215]

    The Slades say that the Broses alleged a series of distinct estoppels grounded on separate acts of detrimental reliance on different assumptions induced by the 2013, 2015 and DOFA Representations; and that moving to Quandialla was only alleged to have been done in reliance on the 2013 Representations. The Slades say that this was the case they met at trial; and that the finding by the primary judge found that that move was a relevant detriment arising from their reliance on the later representations cannot be correct.

66. [216]

    The Slades contend that it was necessary for the Broses to show that they changed their position on the basis of the relevant expectation or assumption or that, but for that expectation, they would have acted differently; and that this requires careful identification of the nature of the assumption held, by reference to the particular representation. The Slades argue that the primary judge erroneously conflated at [192] the thinking and conduct of the Broses over of a decade into a single assumption and act of reliance.

67. [217]

    As to the 2013 Representations, the Slades complain that the primary judge did not attend to any discrete analysis or make any findings as to whether these caused the Broses to hold an assumption upon which they relied that they would receive Ostenleigh, Ozone Park and Reserve (cf [192] of the primary judgment), noting his Honour’s earlier observation that up until mid-2015 the Broses expectations “might fairly, but not entirely accurately, be characterised as aspirations” (citing [20]-[21] of the primary judgment). The Slades say that this is consistent with the Broses’ thinking as reflected in the NAB Proposal, namely, that the Broses subjectively understood (prior to their move to Quandialla, Garreth’s career change and their guaranteeing of partnership debts in January 2014) that they had not been promised the Slades’ “existing land holdings” in Ostenleigh, Ozone Park and Reserve.

68. [218]

    The Slades submit that the fact that, in the period up to mid-2015, the Broses had no more than “aspirations” is also affirmed by: first, Kellie’s acceptance that the Slades “never promised their properties before [the Broses] came to Quandialla”, with any later transfer (merely) being a “hope” or “view” that turned on whether “it all worked out” (29/05/2023; T 53.30-50), future family agreement (29/05/2023; T 41.47-50; T 42.1-18; T 42.44-50; T 43.1-50; T 44.13) and the Slades remaining “amicable” to the idea (29/05/2023; T 42.1-7; T 41.15-17); and, secondly, by Garreth’s initial evidence that the proposal put to them in October 2013 was the home block (Sandridge Home) and “in three years’ time, if it worked out” the northern block (Sandridge Farm), “and a share in the business” (30/05/2023; T 108.5). The Slades emphasise Garreth’s omission of any mention of Ostenleigh, Ozone Park and Reserve in this context. They point to his later acceptance that he knew that any acquisition of Sandridge Farm or a share in the partnership was contingent on things “working out” and that it was a “possibility” that they would not, such that he “took a risk” (30/05/2023; T 108.20-40) and any transfer was a “prospect” (30/05/2023; T 112.25-31). The Slades also refer to Kellie’s evidence that in mid-2015 “succession / partnership and our future is undefined with no clear roadmap for us” and that “ultimate decision making still remains with dad” (citing Kellie’s responses to a Proagtive “Family Farm Business Management Questionnaire” in 2015).

69. [219]

    The Slades maintain that everything that was suggested may possibly occur under the 2013 Representations has come to pass: the Broses have Sandridge Home and Sandridge Farm and a half share in the partnership. They say that any assumption created by the aspirations contained in the 2013 Representations has been fulfilled; and that they can play no part in any proprietary estoppel regarding Ostenleigh, Ozone Park and Reserve, which were foreign to those aspirations. Pausing here, this ignores the reference in the oral representations at the time to the rest of the land (though I accept that was far more general in its terms).

70. [220]

    As to the 2015 Representations, the Slades again complain that there was no discrete analysis as to whether the 2015 Representations caused the Broses to hold an assumption upon which they relied that they would receive Ostenleigh, Ozone Park and Reserve (noting the primary judge’s findings at [22], [50]-[56], [192]).

71. [221]

    The Slades say that the Broses’ own evidence makes clear that they knew that they had not been promised ownership of the properties at the October 2015 meeting; as does Kellie’s evidence, following the July 2016 meeting that in October 2016 Garreth complained to her that “we have no plan” and Garreth’s evidence was that at that time he knew “our future was very uncertain” including because the Slades might sell their share of Sandridge Farm or the Broses leave Quandialla and that “we had no idea what the next move of Bruce and Donna might be” (citing Kellie’s affidavit at [134] and Garreth’s second affidavit, sworn 17 May 2023 at [16]). The Slades say that, consistently with this, in November 2018, the Broses wrote to the Slades complaining that they felt “directionless” and that they did not “know what [they] were working towards because [the Slades] haven’t decided”, which letter the Broses in cross-examination accepted reflected their states of mind (citing Kellie’s evidence at 29/05/2023; T 65.10-16 and Garreth’s evidence at 30/05/2023; T 128.26-31). I interpose here to note that Kellie clarified this feeling of not knowing what they were working towards as referring to the timeline on which they were operating, rather than uncertainty as to whether they would be taking over the properties and farming operations at all (29/05/2024; T 65.20-22).

72. [222]

    The Slades say that the primary judge appears to have treated the Broses’ remaining in Quandialla after October 2015 as a form of reliance on an assumption induced by the 2015 Representations (noting [192] of the primary judgment). They argue that, for a person to do nothing and continue as they were, is not to have “changed his or her position”; and, that even if this could be a form of reliance, the Broses would not have “acted differently” absent whatever assumption the 2015 Representations caused them to assume. In this regard, the Slades point to Kellie’s evidence that she wished to raise her children in Quandialla and to the evidence that Garreth stayed (despite some dissatisfaction in this period) for Kellie and the children.

73. [223]

    The Slades submit that it follows (as they say was apparently accepted by his Honour at [20]-[21]), that the Broses did not assume that they would receive those properties in late 2013, nor rely on as much when deciding to move to Quandialla, change Garreth’s career, guarantee the partnership’s (already well-secured) debts and shortly thereafter “[establish] a young family”; rather, at the time of the move, beyond Sandridge Home and half of Sandridge Farm, the Broses hoped, at best, to receive the second half of Sandridge Farm and be brought into the partnership. Similarly, the Slades say that it follows that the Broses did not assume they would receive Ostenleigh, Ozone Park and Reserve following October 2015 up to the date of the DOFA Representations, nor rely on as much in staying in Quandialla in this period (and they argue that, in any event, this was not a relevant “change of position”).

74. [224]

    The Slades says that logic dictates that the Broses cannot have relied on any assumption later induced by the DOFA Representations when engaging in conduct years prior to the making of those representations (as they argue the primary judge suggested at [192], [196]).

75. [225]

    The Broses argue that the Conflation Error submission (that the primary judge conflated the thinking and conduct of the Broses over a decade into a single assumption and act of reliance) fails to have regard to the nature of the case and the judgment as a whole. The Broses submit that an enquiry was required into the expectations induced by the representations found to have been made; and that his Honour found that, from at least July 2015 onwards, the Broses expected that they would receive the Slades’ farming business and farmland if they remained working on the land into the future.

76. [226]

    It is submitted that, with this expectation in the forefront of their mind, the Broses drastically altered their life trajectory, remained working on the farm and took on an increasing workload (as the Slades holidayed) (noting [21]-[22] of the primary judgment). The Broses submit that the primary judge carefully considered the reliance by the Broses on the various representations made by the Slades at the relevant points in time (referring to [39(d)], [41], [49], [56], [104], [110]-[112], [120] of the primary judgment, all of which findings are not challenged).

77. [227]

    The Broses point to the specific unchallenged finding that the Broses were induced to give up their careers and relocate to Quandialla by the representations made in late 2013, both orally and as recorded in the NAB Proposal (per [110]-[112] of the primary judgment). They say that this is clear from his Honour’s rejection of the contention that the Broses moved with a mere “hope” as involving “an otherworldly generosity of spirit that does not accord with reality”. The Broses say that at [20] there is an unchallenged finding that the Broses had expectations at that time, and the statement by his Honour that they could “not entirely accurately” be characterised as aspirations indicates that his Honour regarded them as more than mere aspirations.

78. [228]

    The Broses argue that the Slades’ submission that there was no representation in 2013 that the Broses would obtain Ostenleigh, Ozone Park and Reserve misses the point. They say that the representations should not be assessed with a view to determining if the Broses had an equity in 2013; rather, that their equity only arose upon the departure from the expectation the Slades induced.

79. [229]

    The Broses maintain that it was never their case that at some time between 2013 and 2021 the Slades had relevantly departed from the expectation they had induced; nor that an actionable representation concerning Ostenleigh, Ozone Park and Reserve was made in 2013. Indeed, the Broses say that it would be remarkable for the Slades to promise those properties to the Broses in that manner before the parties had trialled living and working together on the farm to see whether the proposal was viable.

80. [230]

    Rather, the Broses say that what the Slades promised them in 2013 was Sandridge Home and a 50% share in Sandridge Farm, plus a full share in Sandridge Farm and 50% of the partnership by 1 July 2016, with the possibility of further landholdings being later acquired. The Broses say that this induced them to move to Quandialla. It is noted that they did not obtain full ownership of Sandridge Farm until 1 July 2019, and that they still do not have formal recognition of a 50% stake in the partnership (albeit I note this is the subject of the concession made shortly before the hearing).

81. [231]

    The Broses say that the expectations induced in 2013 were overtaken and solidified in the “bigger carrot” of the expectations induced by the oral representations made by the Slades in 2015 and the contents of the Family In-Principle Agreement, which suggested that within ten years the Broses would own the partnership and the Slades’ farmland. They argue that the Slades’ submission that the representations in 2013 can “play no part” in relation to the Broses’ claims to Ostenleigh, Ozone Park and Reserve is contrary to the principle that all of the representations must be assessed together and in the context of the whole history of the parties’ relationship.

82. [232]

    As to the acceptance by Bruce (noted at [51] of the primary judgment) that it would have been reasonable in 2015 for Kellie to form the view that in ten years she would be the legal owner of the farmland, the Broses say that evidently it was reasonable and that this is reinforced by his Honour’s conclusions at [192]-[193] and other parts of the Broses’ evidence.

83. [233]

    The Broses say that they continued to rely on these representations which were “fuelled” in 2015 and “not dampened” in 2016 with such reliance being in the “context” of further oral assurances (noting [191] of the primary judgment); and that their evidence on this continued reliance was compelling and untarnished by cross-examination. The Broses submit that they were candid in their evidence about the strain the uncertainty over their affairs placed on their relationship between 2016 and 2019. They say that the Slades’ submission to the effect that Kellie was prepared to remain in Quandialla to be a stay-at-home mother dependent on the charity of her parents is divorced from the actual evidence; rather, that Kellie stayed, and convinced Garreth to stay, because the Slades had not departed from the expectations they had induced.

84. [234]

    The Broses point out that there is no appeal ground directed to the primary judge’s finding that the Broses relied on the DOFA; nor do the Slades suggest that the Broses did not rely on the December 2018 meeting notes or DOFA. The Broses say that it is clear that the DOFA induced an expectation in them that they would receive the assets referred to in it on the dates specified. The Broses point out that the meeting notes required them to pay $350,000 to the Slades in connection with the acquisition of the Slades’ interest in Sandridge Farm; and that they sold their apartment in Townsville in August 2019 to do so (as recorded at [64], [120], [140], [192] of the primary judgment).

85. [235]

    Thus, it is submitted that the primary judge was correct to conclude at [192]-[193] that the Broses reasonably relied on the representations made by the Slides.

86. [236]

    The Slades, in reply submissions, argue that any submission that the primary judge was correct in finding that the Broses’ move to Quandialla in 2014 was a relevant detriment arising from the 2015 and DOFA Representations (on the basis that all of the representations must be assessed together and in the context of the whole history of the parties’ relationship) must be rejected. They note that the Broses claimed no reliance on any assumption as to Ostenleigh, Ozone Park and Reserve in moving to Quandialla (and that it was never claimed that Kellie gave up her banking career; nor did she).

87. [237]

    As for reliance on the 2015 Representations (with respect to which they reiterate again their complaint that the primary judge did not make any discrete findings) the Slades say that the respondents’ submissions overlook the Broses’ own evidence (namely that, after an altercation with Bruce in May 2015, Garreth wanted to leave Quandialla, but that Kellie refused for personal and family reasons, so he felt compelled to stay). It is noted that the First Proagtive Meeting in October 2015 was convened after that altercation. The Slades say that Garreth accepted that, after the 2015 Representations (arising from that meeting), his reasons for staying in Quandialla were the same: Kellie had wanted to stay, so he did (the Slades citing Garreth’s responses in cross-examination at 30/05/2023; T 120.15-121.16).

88. [238]

    The Slades note that the Broses asked for a break-away in October 2018, which the Slades refused, causing Garreth to “go missing” (primary judgment at [122]-[123]). They say that Kellie’s letter to her mother of 10 November 2018 (quoted at [124] of the primary judgment) denies the existence of any assumption before (at least) the meeting in December 2018 that the Slades would be transferring Ostenleigh, Ozone Park and Reserve. Further, the Slades say that the Broses’ submissions do not perform the requisite analysis of whether the Broses would “have acted differently” before the DOFA, the Slades saying that the Broses’ own evidence was that they would have carried on as they were regardless.

89. [239]

    There is no presumption of reliance; reliance is a fact to be found (Sidhu v Van Dyke at [58]). What is required is satisfaction from the whole of the evidence of the fact of reliance on the balance of probabilities.

90. [240]

    Reliance in the context of estoppel by encouragement was considered by the High Court in Sidhu v Van Dyke. It is clear that it is not necessary that the relevant assumption be the “sole inducement operating on the mind of the party setting up the estoppel” (Sidhu v Van Dyke at [71]); it need only be a “contributing cause” (at [71]-[73] (French CJ, Kiefel, Bell and Keane JJ); [90] (Gageler J)).

91. [241]

    In Sidhu v Van Dyke the plurality formulated the question as whether (see at [66]) on all the facts there was satisfaction on the balance of probabilities that the promises in question contributed to the respondent’s conduct (there, her conduct in “deciding to commit to her relationship with the appellant and adhering to that relationship” for a number of years). In concluding that there was a compelling case of reliance, the plurality referred, among other things to the “probabilities of human behaviour” (see at [69]). The plurality considered that the assurances made in that case had a “significant effect” upon the respondent’s decision-making process and that it was indeed more likely than not that the respondent would have acted differently, had the promises not been made. At [76], the question posed by the plurality was “whether the respondent would have committed to, and remained in, the relationship with the appellant, with all that that entailed in terms of the effect upon the material well-being of herself and her son, had she not been given the assurances made by the appellant”.

92. [242]

    In a separate judgment, Gageler J, as his Honour then was, agreeing with the plurality’s reasons added (at [91]) that:

93. [243]

    His Honour then went on to frame the question of causation (at [93]) as being “[d]espite any other contributing factors, would the party seeking to establish the estoppel have adopted a different course (of either action or refraining from action) to that which [the party] did had the relevant assumption not been induced?”.

94. [244]

    In Q v E Co [2020] NSWCA 220 (Q v E Co), Meagher JA (with whom Leeming and Payne JJA agreed) agreed with the proposition that the two formulations of the question (i.e., whether the encouragement was a contributing cause and whether the party relying on the estoppel would have acted differently in the absence of the relevant encouragement) were one and the same (see at [88]), stating the test by reference to Sidhu v Van Dyke as the “but for” test (see at [89]).

95. [245]

    The position thus is that it suffices if the encouragement was a “contributing cause” (as distinct from the “sole inducement” or a predominant cause); that the Broses did not need to prove “precisely” or “categorically” how they would have acted differently (see Priestley v Priestley [2017] NSWCA 155 (Priestley v Priestley) at [147] (Emmett AJA, with whom McColl JA agreed)); and that the question is whether, but for the relevant encouragement, the Broses would have acted differently; or, in other words, whether the encouraged assumption or representation “influenced” the Broses’ course of action (or inaction) in a “significant” or “material” way in the sense that they would have acted differently had the (induced) assumption not been held.

96. [246]

    In my opinion, the primary judge committed no conflation error, as is here contended. His Honour was well aware that the relocation to Quandialla occurred in 2014, before the later representations were made. What his Honour nevertheless accepted was that the Broses’ later conduct in remaining on the family farm and working for the partnership was in reliance on the later 2015, 2016, 2018, 2019 representations which fuelled the expectation as to the acquisition of most of the land and the partnership interest.

97. [247]

    Further, it is worth noting that while the relocation to Quandialla obviously occurred before the later representations (and hence cannot logically have been in reliance on them), the prospect that the Broses would take over further of the Slade farming land was clearly contemplated from the start; and significantly the representations in 2015 onwards built upon (or, in his Honour’s words, “fuelled”) that expectation.

98. [248]

    Insofar as Ground 5 contends that the primary judge ought to have held that the Broses did not stay on in Quandialla after 2015 in reliance on either a clear and unambiguous representation that they would receive the Slades’ properties or any of the 2015 Representations which the Slades did not fulfil, in my opinion there was no error in the finding by the primary judge that the Broses remained in Quandialla after 2015 in reliance on the representations made to them up to that time as to their future receipt of the properties if they remained working on the land and gave priority to the partnership business. I do not accept that the evidence warrants a conclusion that the Broses remained solely out of loyalty to Kellie’s family or the inconvenience of moving their young family (as the appellants have submitted) or that their decision to remain was not reliant upon the assurances they were given that they could trust the Slades. Garreth’s description of Kellie having “swallowed the lines” on “trust us” is telling in this regard (see my further discussion on the “but for” reliance issue at #[279]ff below with respect to Ground 6).

99. [249]

    The pattern of ongoing assurances and statements as to trusting the Slades is sufficient to found the primary judge’s conclusion that the Broses relied on the representations that were made to them (which were sufficiently clear and unambiguous) to the effect that the Slade farming land and partnership business would be theirs.

100. [250]

     Grounds 3, 4 and 5 are not made good.

101. [251]

     Ground 6 challenges the detriment finding (at [194] of the primary judgment), which the Slades contend conflates the Broses’ decision to move to Quandialla in response to the 2013 Representations with a detriment said to arise from the non-fulfilment of the DOFA Representations in 2019 (long after they had decided to stay in Quandialla) despite their frustration, expressed by Kellie in the letter to her mother in November 2018 that “[t]hat would be fine if we knew what we were working towards but we don’t because you haven’t decided”.

102. [252]

     The Slades maintain that the analysis (at [195] of the primary judgment) reveals the application of incorrect principle: they say that the test is not how well off the Broses would have been had all their expectations been met, but what is the difference between the position they are in, as against the position they would have been in had they not changed their position in reliance on those expectations. The Slades say that the Broses did not change their position to their detriment in response to the DOFA Representations.

103. [253]

     Ground 6 is framed as follows:

104. [254]

     The Slades maintain that the finding of detriment (at [194]-[195] of the primary judgment) is predicated on four distinct but related errors.

105. [255]

     First, (again) a conflation error. The Slades say that the primary judge’s reasoning conflated detriment said to flow from reliance on assumptions induced by the 2013 Representations, 2015 Representations and DOFA Representations. The Slades say that it was necessary for his Honour separately to consider (by reference to each established representation and any associated assumption and reliance) whether there had been any departure by the Slades and, if so, whether the Broses had suffered detriment in consequence.

106. [256]

     The Slades say that the 2013 Representations and 2015 Representations were not capable of founding an estoppel and/or the Broses did not adopt and rely on any assumption that they would receive Ostenleigh, Ozone Park and Reserve because of those representations; and they argue that even on the hypothesis that the DOFA Representations were so capable and the Broses did so assume and rely thereon, the issue was whether the Broses would suffer detriment because of reliance specifically on those representations (saying that any detriment flowing from the Broses’ move to Quandialla and Garreth’s career change in January 2014 were irrelevant) (cf [194] of the primary judgment).

107. [257]

     Second, the Slades say that the primary judge’s conflated reasoning centred on the loss by the Broses of the benefits they expected they would have obtained had the Slades not departed from any assumptions induced by the DOFA Representations (referring to his Honour’s finding at [195] that they will have lost the opportunity to take over the family farm). The Slades point out that (as the authorities make clear) the relevant detriment is not the loss flowing from non-fulfilment of the promise or assurance.

108. [258]

     Third, complaint is made that his Honour expressly dismissed the significance of the countervailing benefits obtained by the Broses (referring at [195] of the primary judgment where his Honour noted that the Broses will have acquired land on favourable terms but said that this did not detract from the fact that, if the representations were not honoured, the Broses would have lost the opportunity identified both to take over the family farm and to pursue their lucrative professional careers off-farm). The Slades complain that his Honour did not perform the counterfactual comparison mandated by Q v E Co. I note that counterfactual reasoning can be seen in the judgment of the plurality in Sidhu v Van Dyke (at [77]). See also the statement of Hoffmann LJ in Walton v Walton (1994, England and Wales Court of Appeal, Civ Div, unreported) (Walton v Walton) at [12] that “one does not test reliance by asking what B would have done if [the promise] had never been made. One asks what B would have done, if the promise having been made, he had been told that it would not be kept”.

109. [259]

     Fourth, insofar as the primary judge found at [195] that if the representations were not honoured the Broses would be left “in a state of limbo and financial uncertainty” and might suffer “disruption of the lives of themselves and their children if forced by economic circumstances or unexpected burdens to move away from Quandialla”, the Slades say that potential future disruption caused by future economic circumstances or unexpected burdens is not a proven “loss flowing from non-fulfilment of the promise or assurance”.

110. [260]

     Further, the Slades complain that the Broses never alleged that departure from any assumption would place them in “a state of limbo and financial uncertainty”. The Slades say that, accordingly, no expert evidence was adduced capable of demonstrating that the Broses (with almost 2,000 acres of unencumbered farmland worth $7.44 million and other assets) would have been left in such a state; and nor did the Slades have the opportunity to adduce expert evidence to the contrary. In these circumstances, the Slades say that not only did the finding lack a proper or adequate foundation in the evidence (and was inconsistent with the observation at [30] of the primary judgment that it was not necessary or appropriate to make a determination of the amount of land reasonably required for a viable farming business) but also it was not open to his Honour consistently with the requirements of procedural fairness.

111. [261]

     The Slades contend that, absent these four errors, the primary judge could not have found that the Broses suffered any detriment in reliance on any relevant assumption. The Slades emphasise that, after the DOFA Representations (and prior to the parties’ “catastrophic falling out” at the end of 2021), the Broses received some 1,000 acres of unencumbered farmland worth $4.01 million and were brought into the partnership (receiving drawings and other benefits, and today being entitled to 50% of its substantial net assets) as the representations anticipated might occur up to that time. It is noted that this was in addition to Sandridge Home and their initial half share in Sandridge Farm, worth $3.42 million. The Slades point out that, as against this, the Broses contributed $350,000 either towards the purchase from the Slades of Sandridge Farm in June 2019 (at an undervalue) or towards “the family’s ... common cause” (referring to [17], [62]-[66] of the primary judgment, and noting that the primary judge refrained from making any finding in this regard) and otherwise continued their existing lives in Quandialla.

112. [262]

     Comparing the position the Broses would have occupied had they not stayed in Quandialla from June 2019 with the positions they occupy today, the Slades say that the Broses have thus benefited greatly, noting that the primary judge accepted at [195] that the Broses’ acquisitions were “on favourable terms”. The Slades say that the Broses would suffer no substantial prejudice or disadvantage (of the requisite kind) if there were to be a departure from any expectation that they would receive Osteneleigh, Ozone Park and Reserve; and that this is so even if the Broses might face some future financial uncertainty. The Slades say that the Broses can only be in a better position by their receipt of these benefits than had they left Quandialla in June 2019.

113. [263]

     The Broses characterise his Honour’s findings at [194]-[195] as in conformity with their fundamental submission on detriment, namely that they sacrificed Garreth’s well-established and lucrative career in banking and, at the time of the hearing at first instance, were in a position where they had neither that career nor sufficient land for a viable farm. They submit that the primary judge’s description of “a state of limbo and financial uncertainty” was apt.

114. [264]

     The Broses submit that none of the matters identified by the Slades in their submissions reveals error in the primary judge’s assessment of detriment.

115. [265]

     As to the first (the asserted conflation error), the Broses say that detriment is not to be considered in isolation, by reference to each representation made, but is rather to “be understood neither narrowly nor technically” as part of a broad enquiry, just as all of the representations are to be analysed together in the context of the parties’ whole relationship.

116. [266]

     As to the second (the submission that his Honour focused, wrongly, on the loss flowing from non-fulfilment of the promise or assurance), the Broses argue that his Honour did not focus on the loss of the benefits they expected to obtain. The Broses say that the reference to “the opportunity … to take over the family farm” at [195], followed by the reference to them being left in a state of “limbo” and “financial uncertainty”, should be understood as a finding that the land the Broses had received was insufficient for them to operate a viable farm as a going concern, which “taking over the family farm” would have enabled. They say that his Honour’s reference to the Broses’ perspective as “persons engaged in ongoing farming operations which focus on the viability of the farm” (at [36]) fortifies that conclusion. The Broses say that this case is no different from Q v E Co, in which the sacrifice of other employment and the investment of time and energy in a farming business which had no value as a going concern without the assurance and use of the defendant’s properties constituted sufficient detriment (see Q v E Co at [159]-[163]).

117. [267]

     As to the third (the complaint as to the lack of a counterfactual comparison), the Broses say that his Honour clearly regarded viability as decisive and must be taken to have accepted the Broses’ evidence in this regard (referring to [28]-[30], [36], [42] of the primary judgment). They say that so much is clear from the relief ultimately ordered, by which the Broses obtained 1,672 acres in addition to the 1,943 they held at the time of the hearing, a total of 3,615 acres (that being consistent with the Broses’ evidence that 3,000-3,500 acres is required for a viable operation) (citing [9], [13], [28] of the primary judgment). The Broses say that the asset value of the land the Broses had already obtained was not a countervailing benefit of any significance; nor was their 25% interest in a partnership whose assets had been sold and which had ceased to trade (necessitating the Broses expending $1.3 million just to be able to continue farming) (citing [39(d)], [170], [213] of the primary judgment).

118. [268]

     As to the fourth (the complaint as to his Honour’s reference to them being left in a state of limbo and financial uncertainty if the representations were not honoured), the Broses point to the detailed evidence in chief in relation to viability. The Broses say that, apart from one paragraph, there was no objection to that evidence; and that none of it was challenged. The Broses note that it was open to the Slades to lead evidence in response but they did not do so. The Broses say that expert evidence was not required on these issues, especially given their “high level of financial sophistication and experience in rural property transactions as agribusiness bankers” (adopting the words of the Slades’ own written submissions at [20]). Further, the Broses say that it was the Slades who brought about the need for an expedited hearing by entering into contracts to sell all five parcels of land in issue in the face of caveats and a filed statement of claim (per [79]-[100] of the primary judgment); and that any asserted deficiencies in the evidence lie at their feet.

119. [269]

     In reply submissions, the Slades again place emphasis on the fact that the Broses’ relocation to Quandialla can only have been (as was pleaded) in reliance on the 2013 Representations, which they say have been fulfilled. The Slades argue that making a broad enquiry does not obviate the necessity carefully to identify the representation; to show that this induced the representee to hold an assumption that he or she would have an interest in the relevant property; and to establish that but for that assumption the representee would have acted differently. The Slades note that the purpose of the equity is to prevent that detriment by compelling the representor to adhere to the assumption. They say that the “Conflation Error” fails to link each of these elements.

120. [270]

     The Slades say that the Broses’ only allegation of detrimental reliance on the DOFA Representations was that they sold their Townsville apartment, from which they realised $350,000 which they paid to the Slades. It is noted that, at the same time as making that $350,000 payment, the Slades transferred to the Broses the other half of Sandridge Farm, which was worth $405,000 (the Slades gifting them the other $55,000 (primary judgment at [64], [65])). The Slades say that the Broses thus obtained a countervailing benefit that exceeded their claimed detriment.

121. [271]

     The Slades maintain that at [195] the primary judge expressly but erroneously focused on the lost opportunity to take over the family farm. The Slades argue that this case is vastly different from Q v E Co: that the Broses were not working for a pittance in a farming business which had no value as a going concern without the assurance and use of the Disputed Properties; rather, they had been given $7.44 million worth of prime farmland, salaries and benefits and had been made the Slades’ partners (while Kellie also continued her banking career).

122. [272]

     As to the response by the Broses to the lack of a counterfactual comparison, the Slades say that there is “an air of unreality” in suggesting that 2,000 acres of unencumbered prime farmland worth $7.44 million, plus 50% of the partnership assets worth about $1 million, was “not a countervailing benefit of any significance”.

123. [273]

     Finally, as to the Broses’ focus on viability and the primary judge’s suggestion that the Broses were left in a state of “financial limbo and uncertainty”, the Slades maintain that no finding of “unviability” was made (referring again to the primary judge’s statement at [30]); and they say that nor was such a finding open having regard to the pleaded case. The Slades say that the Broses carefully and distinctly particularised their asserted detrimental reliance; and did not allege that the farming business was not viable without Ostenleigh, Ozone Park and Reserve. Again, the Slades say that they met the pleaded case (and that the viability issue was not part of that case).

124. [274]

     It is trite to note that detriment is a necessary element of a proprietary estoppel. There is no presumption of detriment; rather, detriment must be established on the balance of probabilities (see Sidhu v Van Dyke). However, the concept of detriment in the context of proprietary estoppel is neither narrow nor technical (Donis v Donis (2007) 19 VR 577; [2007] VSCA 89 at [20] (Nettle JA, with whom Maxwell ACJ and Ashley JA agreed)).

125. [275]

     As the Broses have noted, the question of detriment is assessed as at the time of departure from the relevant assumption or expectation (DHJPM at [72]). In the present case, therefore, detriment must be established as at October 2021/January 2022, when the Slades renounced any intention to honour the representations made at the December 2018 meeting and confirmed in the DOFA.

126. [276]

     Insofar as the Slades complain that the primary judge did not engage in the counterfactual comparison “mandated” by Q v E Co, it is worth noting that Meagher JA did not in terms mandate the means by which the “but for” test was to be approached, and indeed identified (at [90]) a particular difficulty with the use of a counterfactual analysis of the kind that had there been posed by the appellant in the circumstances of the case. That said, his Honour did there address the counterfactual question as framed by the appellant (noting that it was consistent with the counterfactual reasoning in Sidhu v Van Dyke at [77], Priestley v Priestley at [124] and Walton v Walton per Lord Hoffman). There is no doubt that the use of counterfactual reasoning can be of assistance in determining whether detriment has been established but the fact that it was not expressly framed as such in the primary judge’s reasons does not render the finding of detriment erroneous.

127. [277]

     Turning to the first of the four complaints made by the Broses as to the finding of detriment by the primary judge, I do not accept that his Honour erroneously conflated the various representations when determining whether there was detriment at the time that the Slades departed therefrom. What his Honour was noting (when he referred at [194] to the Broses “having moved to Quandialla”) was simply the fact that they had moved there. His Honour was not there suggesting that they had done so in reliance on representations made after the relocation had occurred. Rather, his Honour was assessing the relevant detriment by reference to the position that the Broses were in (as at 2021/2022), having moved to Quandialla and having invested their lives and resources in the Slade family farm and sacrificed secure professional careers. This was a recognition of what the Broses had done over the whole of the period up to 2021/2022.

128. [278]

     As to the second complaint, that his Honour assessed the relevant detriment as the loss flowing from non-fulfilment of the promise or assurance, i.e., by reference to the loss of the benefits that the Broses expected to receive, it is important to note that the reference to loss of the opportunity to take over the family farm (if the representations were not honoured) is coupled with loss of the opportunity to pursue their lucrative professional careers off-farm. It is clear that his Honour was there contrasting the position of the Broses in two scenarios (taking over the family farm and pursuing off-farm careers); it is the latter which represents the detrimental reliance. Had they not relied on the promises or assurances made to them, and instead pursued their off-farm careers, they would not have been in the present state of limbo and financial uncertainty. This is linked to the unconscionability of departure from the promise (as I discuss below). Thus, fairly read, I do not accept that his Honour was wrongly assessing detriment by reference to the loss of what the Broses expected to receive but, correctly, assessing their detriment by reference to the loss of the career opportunities that were foregone when they chose to remain in Quandialla working in the family partnership.

129. [279]

     As to the third complaint (lack of a counterfactual comparison), while not expressed in terms of a counterfactual analysis, the reference at [195] of the primary judgment to the fact that (if the representations were not honoured) the Broses will have lost the opportunity “to pursue their lucrative professional careers off-farm” to my mind (as indicated above) answers the “but for” question, i.e., his Honour was identifying the different action that would have been taken by the Broses as the pursuit of professional careers “off-farm”.

130. [280]

     It is clear that, in juxtaposing loss of the opportunity to take over the family farm with loss of the opportunity to pursue lucrative off-farm careers, his Honour was accepting that, had the Slades made clear that they would not honour the representations as to the Broses acquiring all the land (other than Willawa) and the partnership business (or had they made clear that those representations were to be entirely at their whim whether to fulfil them or not), the Broses would have pursued career opportunities elsewhere (and would not have remained working on the Slade family land). The fact that his Honour referred to “careers” in the plural, even though Kellie had not given up her career as an agri-business banker, must either have been a typographical error or (perhaps more likely given the earlier references to Garreth sacrificing his career “in particular”) a recognition that Kellie did not receive any remuneration for the work she performed for Slade Pastoral Co (which was particularised as one aspect of the detrimental reliance – see [35B(iiI)] of the Second Further Amended Statement of Claim) from which loss of an opportunity to pursue a more lucrative career off-farm might perhaps be inferred.

131. [281]

     The Broses’ decisions to remain on the property in Quandialla, to increase their share of work in the farming business, and not to pursue job offers or contracting opportunities were all particularised as part of their detrimental reliance not simply on the 2015 representations but also on the 2018 representations (see [35B] of the Second Further Amended Statement of Claim). It is not correct to say, as the Slades here seem to suggest, that the only detrimental reliance particularised in relation to the December 2018 Representations was the sale of the Townsville apartment and payment of the sum of $350,000. Though that conduct was the only detrimental reliance pleaded by reference to the June 2019 (DOFA) representations it is relevant to note that those representations were pleaded as in effect confirming (“again agreed and represented”) the December 2018 Representations pleaded at [29].

132. [282]

     The evidence clearly supports the conclusion that, but for the representations and assurances made in 2015 and 2018, the Broses would not have done the things particularised as constituting their detrimental reliance. The fact that, by 2016, they wanted to stay on the farm and to remain at Quandialla does not lead to the opposite conclusion – rather, it is confirmation of the life-changing nature of the decision not only to move to Quandialla in the first place (in reliance on the 2013 Representations) but also the decision to remain there in reliance on the later representations (in 2015) that gave substance to the earlier promise of further land (and the oral promises that all the land would be theirs and assurances that they could trust the Slades). Further, the suggestion that the decision to stay on the farm was simply motivated by Kellie’s wish to remain there (and Garreth’s decision to stay with his wife) ignores the fact that the relevant promise or representation need not be the sole inducement (it is sufficient that it be a contributing cause) and fails to take into account that, in a practical sense, the longer that the “trust us” assurances continued and the longer the Broses invested their time and effort into the partnership business in reliance on the representations, the more difficult it no doubt became for the Broses to uproot their family (as his Honour clearly recognised by reference to the potential disruption if they were forced to move away from Quandialla).

133. [283]

     The decision to remain, and not to take up opportunities elsewhere, over a lengthy period was in my opinion more than sufficient to amount to detrimental reliance when assessed as at October 2021 or January 2022 (when the Slades renounced their “agreement” in relation to the partnership and made clear their intention to act in accordance with the remaining milestones in the DOFA). Applying the approach of the plurality in Sidhu v Van Dyke, as a matter of the “probabilities of human behaviour”, the assurances made to the Broses must have had a “significant effect” upon the Broses’ decision-making process and the conclusion follows that it was more likely than not that they would have acted differently had the promises and assurances not been made. That is evidenced by the very fact that they considered the options of job opportunities off-farm and of operating on their own behalf but did not pursue those in light of the assurances made to them.

134. [284]

     As to the fourth complaint (that his Honour took into account that not honouring the representations would leave the Broses in a state of limbo and financial uncertainty), at the very least that was relevant to the consideration of whether it would be unconscionable for the Slades to depart from the representations (that being the issue to which the observations at [195] seem at least partially to have addressed). The complaint that “unviability” of the land was not pleaded or particularised as part of the case on detrimental reliance goes to the question of countervailing benefits or unconscionability and will be considered in that context. Similarly, I do not read the reference by his Honour to potential disruption if the Broses were forced to relocate as suggesting a finding of some form of future detriment or loss flowing from non-fulfilment of the promises or assurances. Rather, it is a recognition of the position in which the Broses found themselves at the time of renunciation of the promises and relevant to the question whether it was unconscionable for the Slades to resile from those promises.

135. [285]

     This brings me to the complaint by the Slades as to countervailing benefits obtained by the Broses (more relevant for the consideration as to the unconscionability of departure from the promise than to the question of detrimental reliance). I propose to address that complaint in the context of Ground 7. Suffice it here to note, however, that detriment is not to be determined by some form of precise arithmetical calculation or balance sheet-like approach in which the counterfactual opportunities are quantified and valued. That is made clear in Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd (2014) 253 CLR 560; [2014] HCA 14 at [88]; Q v E Co at [157]-[158] per Meagher JA; Soulos v Pagones [2023] NSWCA 243 at [389]-[392].

136. [286]

     In that sense, though the Slades deride the comparison, the analogy drawn by the Broses between the position of the claimants in Q v E Co and their own position is not inapt. In both cases, the claimants chose not to pursue business opportunities elsewhere (the value of which would have been difficult to quantify) and chose to remain involved in the family partnership in reliance on promises and assurances as to the ultimate transfer of the land or business to them. In the present case it is true (and the primary judge recognised this) that the Broses obtained benefits (and indeed significant benefits in terms of the value of the land already transferred to them) along the way from their reliance on the representations up to the time of the renunciation of those promises. But they also invested significant time and effort in remaining at Quandialla and working in the family partnership business (for the benefit to a large degree of the Slades) for many years and gave up opportunities elsewhere.

137. [287]

     The real question is whether the countervailing benefits in effect subsumed or sufficiently made good the representations so as to make it not unconscionable for the Slades to depart from those representations. There are, of course, cases where a benefit (such as rent-free accommodation over a long period) might be treated as making good the promise or representation of an interest in property. Here, however, in the context of a farming operation conducted over a number of properties and over a number of years in reliance on the expectation that those properties (and business) would be transferred to the Broses (“all this will be yours”) there was no error in my opinion in his Honour concluding that the countervailing benefits (valuable as they were) did not assuage the equity raised by the Broses’ detrimental reliance on the Slades’ representations and the renunciation of those representations by the Slades. This was not a case where expert evidence was needed as to the ongoing viability of the farming operation if the acreage farmed was drastically reduced; nor did viability of the land need to be pleaded or particularised as an element of detrimental reliance.

138. [288]

     Finally, on this issue, I should note that there is no little irony in the Slades maintaining that the countervailing benefits obtained by the Broses included their interest in the partnership. That is because up to very shortly before the hearing (and indeed at the time Bruce verified the cross-claim) the Slades were adamantly denying that the Broses had an equal interest in the partnership; and they used what they maintained was their majority interest in the partnership to pull the rug out from under the Broses (to use a common metaphor) when they unilaterally (and pre-emptively) chose to conduct a fire sale of the partnership assets, depriving the Broses of the ability to continue their farming operations with the use of those assets. Indeed, as the primary judge noted, it was only belated self-interest (in minimising their tax exposure) that led to the Slades conceding that the Broses had an equal interest in a (now non trading) partnership.

139. [289]

     Ground 6 is not made good.

140. [290]

     Finally, by Ground 7, the Slades challenge the finding (at [196]) that the Broses’ reasonable expectations had been denied. The Slades say that this overlooks the fundamental changes in the underlying circumstances in 2021 and 2022, and say that the guidelines in the DOFA were conditional on those changes not happening. Ground 7 is framed as follows:

141. [291]

     Similar complaints are made within Ground 2 at (d) and (e), in which the Slades contend that the primary judge ought to have held that the DOFA Representations were conditional, and that those conditions had not been met. The Slades’ written submissions appear to address Grounds 2(d)-(e) and Ground 7 together.

142. [292]

     The Slades say that even if the representations, particularly the DOFA Representations, could reasonably have been understood as clear and unequivocal promises that the Broses would receive Ostenleigh, Ozone Park and Reserve (cf Grounds 1 and 2), they could only have been so understood if the pre-conditions to their application “held” (i.e., as I understand it, were satisfied or remained open to be satisfied).

143. [293]

     The Slades say that if a clear and unequivocal promise is nevertheless subject to conditions, a reasonable person in the representee’s position could only expect to receive an interest in the relevant property if those conditions are fulfilled or not. The Slades argue that if those conditions fail (as they submit is here the case) there would be no unconscionability in the representor resiling from the representations. They emphasise that the task is to “assess whether it would be unconscientious for a promisor or representor to depart from a promise or representation at the time of the threatened departure”, “in the circumstances which have actually happened” (citing E v Q Co at [80]).

144. [294]

     The Slades argue that, typically, a promise to give a farm in the future would implicitly be subject to “qualifications” the failure of which would defease any expectation (citing Guest v Guest [2022] 3 WLR 911 where Lord Leggatt at [242]-[243] gave the example of such a situation, being where the claimant were to assault the defendant in the course of a row or to humiliate him in front of members of the local farming community). The Slades say that, similarly, in circumstances where there is an implicit link between the promise of a farm and its farming by the representor in partnership with the representee, where the partnership was part of the package proposed by the representor, the change of circumstances represented by the collapse of the partnership would mean that a representor’s conscience is not bound (referring to Uglow v Uglow [2004] EWCA Civ at [28]-[29]).

145. [295]

     The Slades refer in this context to Germanotta v Germanotta [2012] QSC 116 at [141]-[151] where it was held that vicissitudes of life had come to pass such that “it is difficult to conceive of equity ignoring them” for this would be to “require the parents to meet an obligation in radically different circumstances than were ever envisaged”.

146. [296]

     The Slades complain that the primary judge failed to engage with these principles. They say that the 2013 Representations, 2015 Representations and DOFA Representations were all not only impliedly but expressly contingent upon the parties’ relationships remaining intact.

147. [297]

     In particular, as to the DOFA Representations, the Slades say that adherence to the “guideline” was contingent upon there being no change in circumstances beyond the control of the parties, with the guideline itself being predicated upon: the parties’ “relationships [being] intact”, the partnership continuing (including so as to support the Slades’ retirement) and the partnership continuing to have substantial debts, which debts the Broses were to assume in return for the Slades’ properties and the assets of the partnership (noting [68]-[72], [130], [137], [143] of the primary judgment). The Slades point to the statement that a “fair outcome ... may change over time”.

148. [298]

     The Slades argue that, for so long as those conditions held true following the DOFA Representations, the Slades gave the Broses everything that was contemplated; but that every one of these conditions failed by the parties’ “catastrophic falling out” in December 2021 and January 2022; and they submit that the primary judge found as much at [24], [44], [83], [62], [164], and [171]. The Slades say that this meant that the Broses could have no reasonable expectation to Ostenleigh, Ozone Park and Reserve (in 2024 and 2026) in the “circumstances that had actually happened”. The Slades complain that the primary judge mistakenly stated at [184] that the Slades did not suggest that the change in circumstances meant there had been a “change [in circumstances] beyond the control of the parties” or which might otherwise engage the relevant principles; rather, they contend that that was the Slades’ case (pointing to the references to which I have already referred).

149. [299]

     The Broses say that, as a matter of principle, the assessment of whether circumstances had changed is but one aspect of the broader unconscionability enquiry (citing Q v E Co at [80]; Delaforce at [79]-[82]).

150. [300]

     The Broses note that the parties conducted the case at first instance on the basis that findings were not sought as to what occurred during the confrontation in January 2022, and that the primary judge declined to attribute blame to either side in the confrontations between Garreth and Bruce and found that the conflict “was the product of tensions arising from reciprocal anxieties associated with the process of succession” (at [107] of the primary judgment).

151. [301]

     The Broses accept that the parties’ relationship had broken down in late 2021 but they emphasise that, by that time, the Slades had had the benefit of the Broses working for them for eight years, had significantly reduced their involvement in the daily operations of the partnership, and had moved to a house in West Wyalong in July 2021 (referring to the primary judgment at [15]). The Broses submit that, in light of the substantial benefits the Slades had derived (as intended) from the Broses’ reliance on the representations, it would be unconscionable to permit them to depart from those representations notwithstanding the breakdown of the relationship.

152. [302]

     The Broses point out that the Slades, in October 2021, unilaterally declared that the partnership was over, that they would not be complying with the DOFA and that they were not giving the Broses anything (referring to the primary judgment at [83]). The Broses say that, in so doing, the Slades effectively brought the parties’ relationship to an end (and they maintain that this is unexplained). The Broses thus say that it was the Slades who departed from the expectations they induced.

153. [303]

     The Broses submit that the ultimate relief fairly balanced the competing needs and positions of the parties: the Slades retained two of the claimed properties which were originally intended to go to the Broses at the appropriate milestone (Misery and the one-third share of Gilgowrie that had been promised) and received $500,000; while Ostenleigh, Ozone Park and Reserve were transferred to the Broses. The Broses submit that, as a result, those three properties will stay, as always desired, in the family (the Slades cavil with this on the basis that they regard the Broses as no longer part of the family).

154. [304]

     The Slades emphasise in reply submissions their proposition that the conditions on which the DOFA Representations were expressly conditioned all failed. The Slades contend that the fact of the falling out, and the failure of the DOFA conditions, meant that it could not be unconscionable for the Slades not to give “yet more” of their farmland to the Broses “at the expense of their other daughters and themselves” beyond what the DOFA envisaged to the point in time at which the family disintegrated, and the conditions on which the transfers were envisaged to be made after 2021 had collapsed.

155. [305]

     The complaint raised by this ground in my opinion highlights the fundamental complaint in this appeal – namely, the proposition by the Slades that it was not unconscionable for them to depart from the representations and assurances they had made over the years to the Broses because of the fact that the “conditions” on which the DOFA was predicated (the family relationship remaining intact and the partnership being a viable business) had failed. Aligned to this is the contention as to the countervailing benefits that the Broses had obtained by the time that the Slades announced their intention not to proceed with the DOFA.

156. [306]

     I do not accept that his Honour erred in reaching the view that, in all the circumstances, it was unconscionable for the Slades to depart from the representations they had made and to act otherwise than in accordance with the expectations they had induced. The Broses had spent from 2013 working in the family business. After the initial promises of transfer of land and partnership interests in 2016 had not been made good, and the Broses then expressed concerns, they were encouraged to remain working in the family business from 2016 through to 2021/2022 with exhortations to trust the Slades.

157. [307]

     There were certainly countervailing benefits in the land that was transferred to them including transfer of Glendlyn in 2019 and the belated acknowledgment in 2019 of a 25% share in the partnership. However, the primary judge in my opinion correctly concluded that the circumstances in which the Slades renounced the “agreement” and acted as they did amounted to an unconscionable failure to honour their previous assurances.

158. [308]

     For completeness (since the submissions of the Slades on Ground 7 included submissions in relation to the conditional nature of the representations – as per Grounds 2(d) and (e)), I note that (with one qualification) I do not accept the characterisation by the Slades of the DOFA text and representations as being conditional in the sense that if the matters there set out were no longer capable of satisfaction then there would be no reasonable expectation that the Slades would comply with the transfers of the properties at all (as opposed to the possibility that the milestones might be altered). Rather, matters such as the intent that family relationships remain intact and that there be a fair outcome appear to me more readily to be seen as the assumptions underlying what was contemplated in the DOFA. The calculation of asset values and partnership liabilities might well explain the manner in which the milestones were set (i.e., that there would be a need for more land to enable loan to asset ratios to be met as values changed over time seems to me more a matter of when transfers were to occur rather than whether they were to occur at all).

159. [309]

     The one qualification is as to the import of the cl 2 of the DOFA, which (as set out earlier) contained an acknowledgement that “circumstances may change beyond the control of each of them [the parties] whereby despite the best intentions of the parties the agenda previously agreed to marked ‘A’ cannot be complied with however all parties agree to make ever [sic] endeavour to comply with that agenda in the future”. While not a condition as such, it did contemplate that there might be circumstances in which compliance with the milestones for transfers of the properties might not be able to be met. I have already expressed my opinion that the circumstances of the catastrophic falling out would not fit within the changed circumstances there contemplated but in any event what that clause certainly did not contemplate was a unilateral renunciation by the Slades of the “agenda” and action taken by them to make impossible compliance with that agenda in the future (which is what occurred). Whoever was responsible for the disastrous falling out between Bruce and Garreth (and human experience suggests that there was probably blame on both sides), it was Bruce who unilaterally declared that the “agreement” was over. That conduct does not in any way defease the reasonable expectations of the Broses.

160. [310]

     Accordingly, Ground 7 is not made good (nor are Grounds 2(d)-(e)).

161. [311]

     As adverted to earlier, in their submissions the Broses argued that there was not power to grant the relief sought in the Notice of Appeal (the re-transfer to the Slades of the three properties the subject of the appeal – Ostenleigh, Ozone Park and Reserve); and hence that the appeal should be dismissed as futile (relying on Ta Lee at [59]-[78] per Bathurst CJ, Beazley P and Macfarlan JA).

162. [312]

     The Slades’ primary position in this regard was to argue that Ta Lee is distinguishable on its facts, but, in the alternative, they argued that Ta Lee is not binding authority on the issue, and rather that the decision of the Queensland Court of Appeal in White v Tomasel [2003] 2 Qd R 438 (Tomasel) makes clear that there is power to grant the relief sought (and further that the appeal was not futile as relief by way of equitable compensation is available).

163. [313]

     Given the conclusion reached as to the outcome of the appeal, this issue does not strictly arise. However, I address it briefly.

164. [314]

     The facts in Ta Lee are summarised as follows.

165. [315]

     In 2011, the second respondent (MV Developments) borrowed some $1.5 million from the appellant (Ta Lee) pursuant to a Deed of Loan and Guarantee (Deed) to finance the development of land into an apartment block. The Deed entitled Ta Lee, following an event of default, to lodge and maintain a caveat on the respective titles to the land until it received a full payment of all moneys due under the Deed. In respect of the impugned property (Lot 34), Ta Lee lodged caveats on 23 June and 4 August 2015 respectively.

166. [316]

     The first respondent (Mr Antonios) subsequently lodged a caveat claiming an interest in Lot 34, as the purchaser of Lot 34. Mr Antonios claimed that he had entered into a contract to purchase Lot 34 with MV Developments in April 2015. The form of contract was alleged to have been comprised of a front page of a contract for sale signed by the sole director of MV Developments on 15 April 2015, and a further 122 pages sent by email to Mr Antonios by MV Developments’ director on 21 July 2015. Mr Antonios also claimed that he had paid the entire purchase price for Lot 34, notwithstanding that the method of payment did not comply strictly with the terms of the contract.

167. [317]

     At first instance, Ta Lee accepted that if Mr Antonios’ claim was upheld then, even if Ta Lee had a caveatable interest in Lot 34, Mr Antonios would take priority. The trial judge found that Ta Lee did not have an equitable charge over Lot 34 and that Mr Antonios had entered into a contract to purchase Lot 34, thus upholding Mr Antonios’ claim and rejecting that of Ta Lee (both of which findings were subsequently upheld on appeal). The trial judge ordered the withdrawal of Ta Lee’s caveats and the transfer of Lot 34 to Mr Antonios. Ta Lee complied with the order for withdrawal of its caveats and the liquidator of MV Developments transferred Lot 34 to Mr Antonios, who registered the transfer and thus became the registered proprietor of Lot 34 with indefeasible title pursuant to s 42(1) of the Real Property Act.

168. [318]

     Ta Lee, which had not sought a stay of the primary judge’s orders (pursuant to which Mr Antonios had become registered proprietor of Lot 34), appealed the decision.

169. [319]

     At the hearing of the appeal, a question was raised as to whether Ta Lee had standing to appeal and, if it did, whether the reversal of the Court’s orders below would defeat Mr Antonios’ indefeasible title. Mr Antonios argued that Ta Lee did not have a claim in personam against him; that any such rights could only arise as between MV Developments and Ta Lee. The Slades say that this is a fundamental point of departure from the facts in the present case.

170. [320]

     This Court (Bathurst CJ, Beazley P and Macfarlan JA) found that Ta Lee did have standing but dismissed the appeal as futile (at [78]).

171. [321]

     Relevantly, the Court acknowledged the general principle in Bahr v Nicolay (No 2) (1988) 164 CLR 604; [1988] HCA 16 that the principle of indefeasibility does not prevent the enforcement of a personal equity against a registered proprietor. However, having affirmed that indefeasibility does not prevent the enforcement of a personal equity or claim in personam against a registered proprietor, the Court found that there was no evidence of any conduct of Mr Antonios (such as the giving of an undertaking or the making of a promise to Ta Lee) which would have given rise to such an equity against him. On that premise, the Court concluded that Mr Antonis’ title could not be disturbed even if Ta Lee succeeded on appeal (and the appeal lacked utility).

172. [322]

     The Court in Ta Lee was not referred to Tomasel, where such relief was granted. In Tomasel, the appellant (White) had offered a property for sale by auction with a reserve price of $190,000; the highest bid at the auction was by the respondent (Tomasel) for $182,000; and the estate agent signed the contract of sale for White, who had left thinking the property had passed in. The primary judge made orders requiring the contract to be completed, from which White appealed, and a stay was refused. The question arose whether the Court could order the reconveyance of the land back to White (on reimbursement of the purchase price) despite Tomasel having since been registered as proprietor. The majority of the Court held that it could.

173. [323]

     Williams JA and McMurdo J each held that, where an appellant’s land is transferred in execution of a court order which is subsequently set aside on appeal, the appellant’s right to restoration of the land is a personal equity or claim in personam falling within the exception to indefeasibility.

174. [324]

     McMurdo J (at [67]) said that “a successful appellant has a restitutionary right in relation to any money paid or property transferred which is still in the respondent’s possession under the judgment which is reversed”; and that whether a stay was sought (or if sought was granted) did not affect an unsuccessful respondent’s obligation to restore to the appellant what was the appellant’s property prior to the judgment. McMurdo J observed at [73] that there is no tension between a successful appellant’s entitlement to restoration and the policy objectives of the Torrens system; and that to hold otherwise would undermine the administration of justice by impairing the Court’s ability to correct erroneous judgments. Relevant to the question whether it was necessary to establish unconscionability on the part of the respondent (which was the basis of Davies JA’s dissenting judgment), McMurdo J stated at [74] that Tomasel’s “refusal to comply with their restitutionary obligation provides an element of unconscionability, if any be required” for the in personam exception to apply.

175. [325]

     Williams JA, who agreed with McMurdo J, considered that, by seeking the assistance of the court, the respondents had submitted to the jurisdiction of the court and that meant that their rights and obligations were subject to any order made by the court, including an order (in personam) on appeal that they “restore the appellant’s rights to the property”. Williams JA held that a party has a right to recover money or other benefits, including property, transferred in obedience to a court order that is later set aside (“the corollary of the obligation to obey an unstayed judgment or order [being] the right to be restored if it is reversed”).

176. [326]

     As the Slades point out, the relevant passages in Tomasel were referred to with approval by the High Court in Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22, and Tomasel has been treated as authoritative in Queensland for two decades (citing Merker v Merker [2022] QCA 277 at [56], [61]-[62]; Karam Group P/L v Hca Queensland P/L (2022) 13 QR 84 at [116]; Trouton v Trouton [2022] QSC 210 at [371]-[372]; Proprietors Cathedral Village BUP 106957 v Cathedral Place Community BC [2021] QCA 186 at [34]; Margeorg v Cavanagh [2009] QSC 211 at [25]). It was endorsed by Brereton J, as his Honour then was, in Harris v Smith [2008] NSWSC 545 at [55]-[56] (in which his Honour explicitly rejected the reasoning in the dissenting judgment of Davies JA that there was a need to establish unconscionability); by Murray ACJ in the Western Australian Court of Appeal in Ardrey v Bartlett [2004] WASCA 256 at [35], and in this Court in Anderson v Anderson (2017) 94 NSWLR 591; [2017] NSWCA 131 at [51]-[53] (per Leeming JA, Basten JA and Sackville AJA agreeing) (though it should be noted that Leeming JA did not explicitly adopt the majority’s reasoning in Tomasel, but came to a conclusion that implicitly rejected the reasoning underpinning the dissent of Davies JA).

177. [327]

     The Slades therefore argue that Ta Lee is of no precedential force and/or must be confined to its facts. The Slades accept that, if successful, they would need to make counter-restitution of the $500,000 paid by the Broses, plus statutory interest. In any event, the Slades say that the appeal would not be futile; rather, if the Slades were otherwise to succeed, the Broses must be ordered to pay or make restitution to the Slades of the market value of Ostenleigh, Ozone Park and Reserve as at the date of their original transfer (less $500,000), or that Order 1 of the orders should be varied so as to make it a condition of that transfer that the Broses pay the Slades that further sum.

178. [328]

     The key point of distinction between the two decisions is as to the finding whether there was a personal equity or claim in personam falling within the exception to indefeasibility. It was the lack of such an in personam claim that was fatal to Ta Lee’s contention. In those circumstances, and given the late stage at which the issue was raised, a five judge bench was not convened to hear this point; and it does not here need to be determined.

Disposition of the appeal

1. [329]

   For the above reasons the appeal should be dismissed. I see no reason for costs not to follow the event.

Cross-Appeal re costs

1. [330]

   In the proceedings below, as already explained, the Broses claimed that the Disputed Properties (in the case of Gilgowrie, only as to one-third) were held on trust for them (those comprising some 2,162 acres of land). The Broses acknowledged that because the representations upon which they relied involved them obtaining title to all five properties by 1 July 2026 (a date in the future) they needed to “do equity” to reflect the acceleration of their proprietary interest in the properties (if they were now transferred to them). At [42A(c)] of the Second Further Amended Statement of Claim, the Broses proposed that a payment of $730,500 be made to the Slades out of the assets of the partnership between them and Broses as a condition on relief.

2. [331]

   His Honour found that the claim in proprietary estoppel was made good but placed conditions on the grant of relief (including that the Slades retain Misery and the claimed share of Gilgowrie) and ordered that, save for costs orders already made in the proceedings, each party pay its own costs of the proceedings to date.

3. [332]

   The Broses contend that the primary judge erred in exercising his discretion to order that each party pay its own costs of the proceedings to date; and should instead have ordered that the Slades pay the Broses’ costs of the proceedings up to and including 5 September 2023. They raise the following grounds:

4. [333]

   The Broses seek orders setting aside the costs order (Order 15) made on 5 September 2023 and, in lieu thereof, order, subject to any costs orders previously made, that the defendants (the Slades) pay the plaintiffs’ (the Broses’) costs of the proceedings to date, including their costs of and incidental to the relief sought in prayer 8 of the Second Further Amended Statement of Claim (and associated relief sought in earlier versions of that pleading).

5. [334]

   The Broses accept that the primary judge’s costs order was discretionary (s 98 of the Civil Procedure Act 2005 (NSW)) and that they must show error of the kind referred to in House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40 (House v The King) in order to succeed.

6. [335]

   The Broses submit that the primary judge’s costs order should be overturned for the following four reasons.

7. [336]

   First, they contend that the primary judge acted on a misapprehension of the applicable principles in the House v The King sense by reasoning that because the Broses “had substantial success, but it’s equally true that they did not get everything” each party should pay its own costs of the proceedings to date (5/09/2023; T 4.6-11). The Broses say that the acknowledgment that they had had “substantial success” (T 2.10) (and the apparent acceptance by his Honour that this was the relevant “event” for the purposes of costs) meant that they were entitled to their costs unless the matters upon which they were unsuccessful were clearly separable and took up a significant part of the trial (relying on authorities such as Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219 (at [15]); Elite Protective Personally Pty Ltd v Salmon (No 2) Pty Ltd [2007] NSWCA 373 (Elite) at [6]; [7] (Beazley, McColl and Basten JJA); and Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 (Bostik) at [38] (Beazley, Ipp and Basten JJA)).

8. [337]

   The Broses emphasise that his Honour found that their entitlement to the Disputed Properties on the basis of proprietary estoppel was established but simply placed certain conditions on the relief granted. Hence the Broses say that they succeeded on the separate question as to their entitlement to the Disputed Properties and ultimately the Slades were ordered to transfer 1,672 of the 2,162 acres they claimed (77%).

9. [338]

   The Broses say that the only sense in which they did not obtain everything they claimed was that the Court required them to “do more equity” than they had proposed (namely, they were required to release 23% of the acreage they claimed, and pay $500,000 from their own funds rather than $730,500 from the partnership assets in which they had a 50% share, which they say would have been, in effect, $365,250 of their own funds). They say that they therefore had to pay $134,750 more from their own funds than they had proposed. It is noted that this was in the context that the Slades had contracted to sell all five Disputed Properties in October 2022 for a total price of $10,183.135 (the sale price of the contract for Ostenleigh, Ozone Park and Reserve being $6,442,013).

10. [339]

    The Broses submit that the fact that they “did not get everything” in these limited respects was not a basis to deprive them of their costs, unless it could be said that their claims to Misery and one-third of Gilgowrie were clearly dominant and separable issues and took up a substantial part of the trial. The Broses point out that the primary judge undertook no analysis of that kind, but instead simply concluded that because the Broses “did not get everything”, that was a sufficient basis to deprive them of a costs order in their favour. In adopting that approach, the Broses say that the primary judge acted upon a wrong principle and fell into House v The King error in the exercise of his discretion.

11. [340]

    Second, and in any event, the Broses say that their claims to Misery and one-third of Gilgowrie were not clearly dominant or separable issues; and did not take up a substantial part of the trial. They say that the evidence led in support of their claims was equally relevant to all five properties claimed, in that it addressed the course of the parties’ relationship over many years. The Broses say that almost all of the same evidence would have been necessary whether one, three or five properties had been claimed.

12. [341]

    The Broses point out that they relied on the same causes of action in relation to Misery and Gilgowrie as the other Disputed Properties, albeit that there was some slight additional legal complexity as a result of Misery and Gilgowrie having been transferred to IJAAMOTT. The Broses say that the additional hearing time required because of the claims in relation to Misery and Gilgowrie was de minimis. The Broses contend that there was no basis to conclude that these matters were sufficiently separable or substantial to justify depriving the Broses of any part of their costs, let alone all of them.

13. [342]

    Third, and in any event, the Broses point out that, at the level of principle, their claims to Misery and one-third of Gilgowrie were established. It is noted that the primary judge held at [185] that “the Slades clearly and unambiguously did represent that the Broses would receive their properties”, and then referred to the notes taken by Ms Officer of the 18 December 2018 meeting and the DOFA, both of which referred to the Broses obtaining Misery and a one-third interest in Gilgowrie and which pre-dated the Slades’ transfer of Misery and Gilgowrie to IJAAMOTT on 19 November 2019. Accordingly, the Broses say that a reason that they did not also obtain the interest they claimed in those properties is because relief was moulded to require the Broses to do equity by allowing the Slades to retain those blocks through the release of the Broses’ claims (in addition to the $500,000 payment). Thus, it is submitted that, even if the Broses’ claims to Misery and one-third of Gilgowrie can be regarded as discrete and separable, the Broses did not fail in those claims in any sense relevant to the exercise of the Court’s discretion on costs.

14. [343]

    Fourth, the Broses say that (as a result of a belated concession by the Slades) they also obtained the relief sought in prayer 8 of their pleading, by which they sought a finding that the Slades were required to recognise them as having a 50% interest in the partnership between the Broses and the Slades from 1 July 2021. The chronology of events in this regard has been set out above.

15. [344]

    The Broses point out that, initially, the claim for relief under prayer 8 was also intended to form part of the expedited hearing; noting that on 17 March 2023, the expedition list judge (Parker J) ordered that the Broses serve their evidence by 17 April 2023, and that the proceedings be listed for directions on 21 April 2023 to confirm the prayers for relief that would be the subject of an expedited hearing. The Broses served their evidence in the week of 17 April, on the basis that the partnership interests issue was in dispute. On 21 April 2023, the proceedings were stood over for a week to 28 April 2023. The day before the listing on 28 April 2023, the Slades’ solicitors sent a letter stating that “[o]ur clients have therefore instructed us that they agree that 25% interest in the Slade Pastoral Co. partnership can be taken to have been transferred to your clients with effect from 1 July 2021”. As a result, the orders made on 28 April 2023 provided only for prayers 1 to 5A of the Second Further Amended Statement of Claim to be determined at the expedited hearing.

16. [345]

    Thus, the Broses say that they also obtained success on the only other matter which had been in contest prior to the expedited hearing, which they maintain fortifies the conclusion that there was no basis to deprive them of any part of their costs, let alone all of them.

17. [346]

    The Broses submit that, in circumstances where they obtained $6.442 million dollars’ worth of land (representing 77% of the land they claimed by acreage) and were substantially successful on the separate question, the primary judge acted upon a wrong principle in reasoning that, because they did not obtain everything they claimed, it was open to depart from the default position that costs followed the event, without considering whether the matters on which they did not succeed were clearly separable or took up a significant part of the trial. Moreover, it is submitted that requiring the Broses to bear their own costs despite their substantial success after a costly expedited four-day hearing was an unreasonable or plainly unjust outcome, such that it can be inferred that there was a failure in some way by the primary judge properly to exercise the discretion as to costs reposed in him.

18. [347]

    Alternatively, if, contrary to the Broses’ submissions, it were to be concluded that some allowance should be made for the fact the Broses did not succeed in obtaining an order for the transfer of Misery and one-third of Gilgowrie to them, the Broses say that the cross-respondents should be ordered to pay 75% of the proceedings at first instance. That percentage is based on the proportion of the total acreage claimed by the Broses which Misery and one-third of Gilgowrie constitute, namely 23%.

19. [348]

    The Broses say that that approach reflects the relative importance of the claims to Misery and one-third of Gilgowrie in the proceedings overall (i.e., that they were relatively minor) and avoids the difficulty (and resultant additional cost) that would arise in a costs assessment process of attributing a proportion of each individual task carried out by the Broses’ legal representatives to the claims in relation to Misery and one-third of Gilgowrie.

20. [349]

    The Broses accept that, in order for leave to be granted, they must show an issue of principle, a question of public importance, or a reasonably clear injustice going beyond what is merely arguable (noting Be Financial Pty Limited as Trustee for Be Financial Operations Trust v DAS [2012] NSWCA 164 at [32]-[38]; The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 at [13]).

21. [350]

    It is noted that in cases before this Court in which the appellant has raised substantive grounds of appeal, and the cross-appellant appeals only as to the costs orders below, the cross-appellant has been treated as requiring leave, albeit that there has been no significant contest on the topic (see Coope v LCM Litigation Fund Pty Ltd (No 2) [2016] NSWCA 174 at [16], Coffs Harbour City Council v Polglase [2020] NSWCA 265 at [179]-[180]). Hence the Broses have sought such leave.

22. [351]

    The Broses submit that leave should be granted for two reasons. First, that the costs order visited a reasonably clear injustice upon them, the order being unreasonable or plainly unjust. As noted, the Broses submit that it was plainly unjust to deprive parties who were overwhelmingly successful of a costs order in their favour on the basis they “did not get everything”. Second, that the Slades have appealed against the whole of the primary judgment (other than the orders in relation to the claims against Misery and Gilgowrie) and hence the Broses say that the Slades will have an opportunity to disturb the costs order. In circumstances where argument on the costs issue will add only marginally to the length and cost of the appeal, the Broses submit that they ought be afforded the same opportunity.

23. [352]

    The Slades submit that leave to appeal should not be granted in respect of the costs judgment, which was a discretionary judgment on a matter of practice and procedure and well within the primary judge’s broad discretion as to costs.

24. [353]

    The Slades point out that his Honour dismissed the Broses’ claims to one-third of Gilgowrie and Misery (held by the Slades’ superannuation fund) and imposed substantially more onerous conditions on the grant of relief in relation to the three properties found to be held on constructive trust for the Broses than those proposed by the Broses (for the first time) in their Second Further Amended Statement of Claim.

25. [354]

    The Slades say that the ex tempore reasons given by the primary judge on 5 September 2023 for making the costs order that had been proposed in the primary judgment focused principally on the mixed result of the proceeding, but they also say that the Broses had, following publication of the primary judgment, sought belatedly to expand their claim so as to seek for the first time water rights and other entitlements associated with but not tied to Ostenleigh, Ozone Park and Reserve. The Slades say that in oral argument, it was submitted that water rights were obviously critical to the viability of the land as farming land (though they had not been raised in the course of the hearing) and that it was in this context that his Honour said that he thought the correct order was not to make an order as to costs.

26. [355]

    The Slades submit that the Broses have failed to show that the costs order is infected with error of the kind referred to in House v The King. Noting the breadth of the discretion, and that its overriding principle of doing justice in the particular case, the Slades nevertheless point to the discretion typically being exercised in accordance with the general proposition that costs follow the event, citing Short v Crawley (No 40) [2008] NSWSC 1032 per White J, as his Honour then was; and Hughes v Western Australian Cricket Association [1986] FCA 511 per Toohey J.

27. [356]

    As to the four reasons proffered by the Broses for overturning the costs order, the Slades make the following submissions.

28. [357]

    As to the first (the argument that his Honour acted on a misapprehension of the applicable principles by reasoning that while the Broses had substantial success they did not get everything), the Slades say that his Honour’s reasoning is consistent with Short, where White J noted that, while the plaintiffs had enjoyed substantial success, there were various matters which modified any entitlement to costs (including the various issues on which the plaintiffs in that case had failed in whole or part, the significance of those issues and the plaintiffs’ conduct).

29. [358]

    As to the second (that the claims in relation to Misery and Gilgowrie were not dominant and separable issues), the Slades say that it is unnecessary that the Broses’ claims to one-third of Gilgowrie and Misery be “clearly dominant or separable issues” for their failure to obtain such relief to be relevant but in any event the question whether the Broses were entitled to relief in respect of each of the Slades’ properties, or their claim to each property ought to be dismissed, was a separate issue of fact and law grounding a separate claim for relief. The Slades point to the pleading, which dealt separately with the Broses’ claims to each property and they say that this distinctness is further underlined by the fact that Gilgowrie and Misery were held by a separate entity, the Slades’ self-managed superannuation fund (with the consequence that the Broses’ claims to those properties had a distinct legal basis). The Slades say that this is also reinforced by the fact that, unlike Ostenleigh, Ozone Park and Reserve, Gilgowrie and Misery were only acquired by the Slades in 2018 (and accordingly were not the subject of the 2013 or 2015 Representations).

30. [359]

    As to the third (the argument that the Broses’ claims to Misery and one-third of Gilgowrie were established), the Slades argue that the primary judge did not err in treating the Broses’ claims in respect of Gilgowrie and Misery as unsuccessful, noting that Order (8) of the orders was that “prayers 4, 5 and 5A of the Second Further Amended Statement of Claim be dismissed”. The Slades point out that prayers 4 and 5 concerned, respectively, the Broses’ claims to Misery and Gilgowrie, which claims were thus dismissed by Order (8). The Slades say that, to the extent that the primary judge at [185] speaks (the Slades say loosely) of a representation in respect of all the Slades’ properties, the Slades say that this exemplifies the erroneous conflation of the various properties and representations which characterised the primary judge’s substantive reasons for judgment (referring to [3], [15]-[16]). The Slades say that that conflation cannot change either the orders (being the judgment in respect of which the appeal and contemplated cross-appeal lie) or the consequent practical reality that the Broses did not receive one-third of Gilgowrie and Misery as a result of the proceeding.

31. [360]

    As to the fourth (the concession as to the partnership issue), the Slades say that the fact that, prior to the close of pleadings following the Broses’ service of their Second Further Amended Statement of Claim on 1 May 2023 and the Slades’ service of their Defence thereto on 5 May 2023, the issues in dispute had narrowed (such that the Slades accepted on 21 April 2023 that the Broses were 50% partners in the partnership) does not reveal error in the costs order. The Slades say that, as a result of that narrowing and the parties’ agreement that other issues relating to the partnership would be dealt with after their dispute as to the Slades’ properties, issues relating to the partnership were not the subject of the substantive primary judgment. Reference is made to the primary judge’s recording at [78] that “it is also common ground that the question of land ownership can be determined as a question separate from any financial adjustments consequential upon dissolution of the [P]artnership”. The Slades say that this is reflected in the order his Honour made at the commencement of the hearing at first instance pursuant to r 28.2 of the UCPR (see primary judgment at [78]) and the earlier understanding reached while the proceeding was before the Expedition List Judge.

32. [361]

    Accordingly, the Slades submit that none of the reasons pointed to by the Broses demonstrates that the costs order was infected by House v The King error; and they submit that, given the mixed result, it was open to the primary judge, in exercise of his Honour’s broad costs discretion, to determine that each party should bear its own costs of the issues that were before the Court. It is submitted that to do so was also open to his Honour, given the inappropriate and belated raising by the Broses, after publication of the substantive primary judgment, of a new claim to the Slades’ water rights (which the Slades say was nevertheless acceded to by them in order not to prolong the litigation at first instance). The Slades say that such conduct is a further matter relevant to what was fair and just between the parties in the circumstances.

33. [362]

    The Slades say that the Broses accept that their contemplated cross-appeal involves no question of principle nor any question of public importance; and the Slades maintain that there is nothing in the present case to overcome the appellate restraint in granting leave to review discretionary decisions of this kind, submitting that the proceeding at first instance involved a “deeply mixed” result and again noting that the Broses very belatedly expanded their claims.

34. [363]

    Finally, the Slades point out that, contrary to the Broses’ submissions at [34], they have not appealed against the whole of the primary judgment (in particular that they have not appealed against Order (8), dismissing the Broses’ claims to one-third of Gilgowrie and Misery) (an order I note is in their favour). Nor do the Slades here cavil with the conditions upon the primary judge held that they held Ostenleigh, Ozone Park and Reserve on constructive trust for the Broses. The Slades emphaise that they do not directly seek to disturb the costs order (save in the event that the appeal is allowed such that, as in the usual way, the premises upon which it rests fall away). Accordingly, they submit that fairness or equality does not demand that the Broses be permitted to mount a discrete attack on a discretionary judgment on a matter of practice and procedure.

35. [364]

    In my respectful opinion, his Honour did err in acting on the basis that, because of the conditions to which the grant of relief was subject (in particular, that the claims in relation to Misery and one-third of Gilgowrie were dismissed), the Broses “did not get everything” and hence they were not substantially successful in the “event” so as to give rise to the general rule that costs follow the event.

36. [365]

    The proprietary estoppel claim was made good in respect of all the Disputed Properties (and the partnership dispute was resolved by the belated and self-interested concession by the Slades). Thus, in the sense that the “event” was whether the proprietary estoppel claim was made good, the Broses had success in establishing that claim. The fact that, to do equity, conditions were imposed to reflect the acceleration of their interest in the properties that were to be transferred to them (such that, as a condition of the grant of relief, among other things they effectively lost the right to have Misery and one-third of Gilgowrie transferred to them) does not change the fact that there was substantial success on the “event”. To frame it differently, they succeeded in obtaining substantial relief that they would not have obtained but for the litigation.

37. [366]

    However, as the Slades emphasise, leave is necessary to bring a cross-appeal as to costs only; and caution is exercised in that regard. Accepting that this is not a case where an issue of principle or public importance arises, is it a case where there is an error that goes beyond the arguable and means that there would be an injustice in not permitting leave to cross-appeal?

38. [367]

    Certainly, the costs authorities in cases where there are multiple issues and a mixed outcome, speak of identifying whether an issue is dominant or separable; and it has been said on more than one occasion that the discretion to apportion costs across issues should be exercised only in exceptional circumstances. What is also said is that it is unwise to be too technical about what is meant by “event” or “issue” in this context – and that “one does not look at issues as if they were pleaders’ issues but approaches the matter with a broad brush” (see Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (No 3) (1998) 30 ACSR 20 per Young J, as his Honour then was (cited by Barrett J, as his Honour then was, in Golding v Vella (No 2) [2001] NSWSC 731 at [8])).

39. [368]

    The primary judge did not carry out an assessment of the issues in the case so as to determine whether they were dominant or severable so as to warrant a conclusion that it was appropriate for each party to bear its own costs. In that regard, his Honour may be said to have adopted the kind of broad brush approach to the issues that is recognised as available in the exercise of the costs discretion. However, while I am unable to conclude that the primary judge erred in the application of principle in making the order that he did, I am forced to the conclusion that the result was plainly unjust. The Broses enjoyed substantial success (both as to their proprietary estoppel claims, including in respect of Misery and Gilgowrie albeit that those properties ultimately remained with the Slades, but also in relation to the partnership dispute). That they should not have the benefit of a costs order at all does not to my mind reflect the practical outcome of the litigation. Hence, I consider that the case falls within that last category of House v The King error where the outcome bespeaks an error of principle or application of principle albeit that one may not be able to be identified with precision.

40. [369]

    In that regard, the complaint as to the belated raising of a claim to water rights seems to me to be beside the point. It was apparently able to be resolved by consent without the cost of a further hearing in any event. As to the additional legal complexity attending the separate ownership of Misery and Gilgowrie, it is not apparent that this caused any significant increase in the costs at first instance and I note that, despite their separate ownership by the trustee of the Slades’ self-managed superannuation fund, the Slades argued in this Court that that separate ownership did not preclude the Slades from honouring the representations in the DOFA (though of course their argument was they were free in all the circumstances to depart from those representations). Therefore, the Slades did not appear to place much weight on that additional legal complexity in the course of argument on the appeal.

41. [370]

    I would therefore grant leave to cross-appeal. That means that the discretion should be re-exercised. In the circumstances, I consider the appropriate order, reflecting that the Broses had substantial success on the claims determined by the primary judge on the hearing of the separate question (including the dispute as to their partnership interest), but that the requirement to do equity meant that the Broses did not receive all of the Disputed Properties (even though they established their claim to them), is that the Slades should pay 75% of the Broses’ costs of the proceedings at first instance. I acknowledge that this is a broad brush approach and that I have not sought to undertake the very exercise that the Broses say that the primary judge should have undertaken but it seems to me the appropriate course in the just, quick and cheap resolution of this last issue in dispute before this Court (and it was proffered as the Broses’ alternative position in their submissions). The cross-respondents should pay the costs of the cross-appeal.

Orders

1. [371]

   For the above reasons, I propose the following orders:

   1. (1)

      Dismiss the appeal with costs.

   2. (2)

      Grant leave to cross-appeal.

   3. (3)

      Allow the cross-appeal with costs.

   4. (4)

      Set aside order 15 made on 5 September 2023.

   5. (5)

      In lieu thereof, order, subject to any costs orders previously made in the proceedings at first instance to 5 September 2023, that the defendants (the appellants/cross-respondents in this Court) pay 75% of the plaintiffs” (the respondents/cross-appellants’) costs of the proceedings at first instance to 5 September 2023, including their costs of and incidental to the relief sought in prayer 8 of the Second Further Amended Statement of Claim (and associated relief sought in earlier versions of that pleading).

2. [372]

   WHITE JA: I agree with Ward P.

3. [373]

   STERN JA: I agree with the orders proposed by Ward P and with her Honour’s careful and detailed reasons for proposing those orders.

4. [374]

   I agree with Ward P that it is unnecessary in this case to resolve the issue which arose as to the ambit of what was decided in Ta Lee, the precedential force of Ta Lee and as to the question whether Ta Lee is consistent with Tomasel or with the line of authority identified by Ward P at [326].