Brown v Brown-Pavier

These proceedings concern a dispute between members of a family in relation to certain allocations of space (or ground) at various showgrounds.

The first plaintiff, Doreen Brown, is 88 years of age. She holds numerous such allocations, or sites, in her name. Many of these were inherited from her late husband, Bruce Brown, who died in 2006. Doreen Brown has also inherited sites from her late brother (John Davenport), and from her late mother (Doreen Davenport). The numerous sites held by Doreen Brown include 110 sites allocated by the second defendant, The Showmen’s Guild of Australasia, in respect of showgrounds in New South Wales and Queensland. She wishes to transfer her rights in respect of those sites to the second plaintiff, her grandson, Caine Brown. The plaintiff submitted transfer applications to the second defendant in respect of the 110 sites in early 2019. However, the second defendant has not given effect to the transfers by placing the sites into the name of Caine Brown. This is due, it seems, to the existence of objections to the transfers.

Objection to the transfers was made by the first defendant, Susan Brown-Pavier. She is the daughter of Doreen Brown, and the mother of Caine Brown. Susan Brown-Pavier claims that Doreen Brown holds her rights in respect of the 110 sites the subject of the transfers, and also her rights in respect of other sites (including sites allocated by the Victorian Showmen’s Guild), on constructive trust for her as to a two-thirds share. By her Cross-Claim, Susan Brown-Pavier seeks declaratory relief to that effect, and an injunction restraining Doreen Brown from transferring or otherwise dealing with the sites in a manner inconsistent with her claimed interest.

The plaintiffs, by their Summons, seek declaratory relief to the effect that Caine Brown is entitled to be recorded as the owner of the 110 sites the subject of the transfers, and an order that the second defendant so record him as the owner of the sites. The second defendant has filed a submitting appearance in respect of the plaintiffs’ claims, save as to costs.

The plaintiff was born in 1935 in Ipswich, Queensland. She married Bruce Brown in 1956. They remained married for almost 50 years, until his death on 18 September 2006. The plaintiff deposed that from about 1958 they together operated a partnership business as showmen. She further deposed, in effect, that until his death, Bruce Brown owned all of the rights and privileges concerning the various sites (on showgrounds up and down the east coast of Australia) that the couple “worked” together. The plaintiff deposed that after her husband’s death, she became the owner of those rights and privileges by transfer “pursuant to his will”, and became responsible for the business.

Susan Brown-Pavier was the only child of the marriage. She was born in October 1961. When she was about 16, she commenced living with Ricky Stephens, who also worked as a showman. In 1981, she married Ricky Stephens. The couple had one child, namely, Caine Brown. He was born in November 1981. The marriage between Susan Brown-Pavier and Ricky Stephens broke up in about 1983.

At about that time, Caine Brown commenced living with Doreen and Bruce Brown. They, together with Doreen Brown’s mother, became primarily responsible for Caine Brown’s care and upbringing.

In about 1984 or 1985, Susan Brown-Pavier commenced a relationship with Broderick Pavier, who also worked as a showman. The couple remain in that relationship and have operated businesses as showmen. They have had two children, namely, Brooke Pavier (born in 1987) and Blake Pavier (born in 1991).

By the late-1980’s, Susan Brown-Pavier and Broderick Pavier had established a partnership named “Goldenway Amusements” to operate a showman’s business. Susan Brown-Pavier deposed that the business was effectively a combination of the businesses the pair had previously operated. In December 1993, Susan Brown-Pavier and Broderick Pavier became the directors of, and equal shareholders in, a newly formed company known as Super Cinema 3D Pty Ltd. That company changed its name to Goldenway Amusements Pty Ltd in 2001. Broderick Pavier ceased to be a director of the company in December 2015. Susan Brown-Pavier has since been the sole director of the company.

Another company, Goldenway Nominees Pty Ltd, had been incorporated in June 2015. Susan Brown-Pavier and Broderick Pavier were, and remain, the directors of the company and its only shareholders. That company acts as the trustee of a self-managed superannuation fund known as “The Goldenway Superannuation Fund”.

In December 2015, Goldenway Trading Pty Ltd was incorporated. Broderick Pavier became, and remains, the sole director of that company. The only share in the company is held by Goldenway Nominees Pty Ltd. Goldenway Trading Pty Ltd changed its name to Goldenway Amusements Pty Ltd in February 2016. By that time, the original company (established in 1993) had changed its name from Goldenway Amusements Pty Ltd to Goldenway Amusement Holdings Pty Ltd. The shareholdings in Goldenway Amusement Holdings Pty Ltd are now held by Goldenway Nominees Pty Ltd as to 80%, and Susan Brown-Pavier as to 20%.

Caine Brown, Brooke Pavier and Blake Pavier each became full-time showmen almost as soon as they left school. In Caine’s case, he commenced working in his grandparents’ business in about 1999. Brooke commenced her own business in about 2004. Blake commenced working in his parents’ business in about 2007. They each became members of the second defendant (hereafter referred to as “the Guild”). Doreen Brown has been a member of the Guild since 1953 (and has been made a life member). Susan Brown-Pavier and Broderick Pavier are also members of the Guild. Broderick Pavier was, for many years, a member of the Committee of the Guild, and thus a Delegate in accordance with the Guild’s Code of Conduct.

The Code of Conduct of the Guild contains various provisions, including provisions that recognise the existence of space (or ground) allocated to individual members (see cl 7), and provisions concerning the transfer, from one member to another, of rights and privileges held by virtue of their membership (see cl 10). Doreen Brown invoked cl 10 of the Code of Conduct in order to effect a transfer of her rights and privileges in respect of the 110 sites the subject of the transfer applications.

The outcome of the Cross-Claim, that seeks the imposition of a constructive trust, could affect the relief that might be given on the plaintiffs’ claim. Nonetheless, it is convenient to commence by considering the substance of the plaintiffs’ claim.

The claim concerns the transfer by Doreen Brown to Caine Brown of her rights and privileges in respect of 110 allocations of space (or ground) made by the Guild.

The Guild is an association registered as an organisation pursuant to the Fair Work (Registered Organisations) Act 2009 (Cth). By s 27 of that Act, such an organisation:

The Guild was sued by Summons filed on 13 April 2021. On 6 May 2021, the Guild filed an appearance whereby it submitted to the making of all orders sought, and the giving or entry of judgment in respect of all claims made, save as to costs. One of the orders sought in the Summons was an order in the nature of a mandatory injunction that it record Caine Brown as the owner of the specified sites on the site plans maintained by the Guild. Of course, notwithstanding the entry of the submitting appearance, relief, as appropriate, can only be granted to the plaintiffs to the extent that they make out their case.

In paragraphs 8 to 12 of her first affidavit, Doreen Brown described the nature of the rights associated with space allocated by the Guild. Those paragraphs are in the following terms:

The above evidence, which was not challenged, may be accepted. I note that in closing submissions, Susan Brown-Pavier appeared to regard the above as an accurate summary. It also seems to be common ground that a site may only be held in the name of one natural person.

Doreen Brown further deposed, in paragraphs 13 to 17 of her first affidavit:

The transfer of rights and privileges held by one Guild member to another is governed by cl 10 of the Code of Conduct. Clause 10 is in the following terms:

In paragraph 20 of her first affidavit, Doreen Brown described the practice of the Guild in respect of transfers as follows:

That evidence, which was not challenged, may also be accepted.

The evidence establishes that at least 14 days prior to the Annual General Meeting of the Guild held in April 2019, Doreen Brown lodged transfer forms with the Guild in respect of 110 sites, nominating Caine Brown as the person to whom the sites were to be transferred. Minutes of the meeting suggest that the transfers were received, and that Guild delegates were to “check and investigate” in the following 12 months.

On 9 December 2019, solicitors acting for Doreen Brown sent a letter to the Guild enquiring as to the progress of the transfers. On 10 December 2019, the Guild responded by a letter which included the following:

However, the transfers were not accepted at the Annual General Meeting held in April 2020.

Doreen Brown sent a letter to the Guild on 28 August 2020 in which she stated that she had done all she could do to transfer the sites to Caine Brown, and requested the Guild to confirm “validation of the transfers and that they are recorded in Caine’s name”.

The Guild responded by a letter dated 16 September 2020. That letter included the following:

On 1 February 2021, the Guild sent a further letter to Doreen Brown. The letter was in the following terms:

It can be inferred that the reference in the above letter to the “Solicitors of both parties” is a reference to the solicitors for Doreen Brown and the solicitors for Susan Brown-Pavier. The latter had retained solicitors by no later than September 2019. On 30 September 2019, those solicitors sent a letter to Doreen Brown which included the following:

Doreen Brown refused the requests made in the above letter, and it seems likely that the solicitors for Susan Brown-Pavier would have then taken steps to notify the Guild of the dispute. Susan Brown-Pavier accepts that she lodged an objection to the transfers, but the terms of the objection itself are not in evidence.

Based upon the above, it seems that when these proceedings were commenced in April 2021, the position was that the Guild:

As noted earlier, following the commencement of the proceedings, the Guild promptly filed a submitting appearance.

I note further that counsel for Susan Brown-Pavier accepted that Doreen Brown had done all that she could do in accordance with the rules of the Guild to effect a transfer of her rights in relation to the 110 sites to Caine Brown.

In these circumstances, it is my opinion that, subject only to the potential effect of any success on the Cross-Claim, it would be appropriate to grant relief to similar effect as that which is sought in the Summons. In particular, it would be appropriate to give declaratory relief to the effect that Doreen Brown, as the owner entitled to the 110 sites the subject of the transfers, has validly and properly invoked cl 10 of the Code of Conduct of the Guild as far as she can do so, to effect transfers of her rights and privileges in respect of such sites to Caine Brown. Further, notwithstanding that cl 10.1 makes transfers of such rights subject to the approval of the Committee, in the circumstances described above at [32], and where the Guild has since submitted to the making of all orders sought, I think it would also be appropriate to make an order (similar to the injunction claimed in prayer 6 of the Summons) requiring the Guild to take steps to have Caine Brown recorded as the owner entitled to the 110 sites the subject of the transfers. The making of that order would facilitate the giving of legal effect to the voluntary assignment of the rights and privileges from Doreen Brown to Caine Brown. That assignment is treated in equity as a valid and effectual gift, the donor having done everything which is necessary for her to have done to effect a transfer of the legal title, and the legal transfer can be effected without further action on her part (see Corin v Patton (1990) 169 CLR 540 at 559 per Mason CJ and McHugh J, and 582 per Deane J).

The Cross-Claim was commenced by Cross-Summons filed on 6 December 2021. However, an order was made for the claim to be pleaded, and a Statement of Cross-Claim was filed on 21 June 2022. The latest response to the Cross-Claim is an Amended Defence filed on 18 November 2022.

The primary relief sought by Susan Brown-Pavier is a declaration that Doreen Brown holds a total of 163 sites in New South Wales, Queensland and Victoria, and the rights and privileges associated with such sites, on constructive trust for Susan Brown-Pavier as to two-thirds. In the alternative, a declaration is sought to the effect that Doreen Brown is estopped from denying that a two-thirds share of such property is held for the benefit of Susan Brown-Pavier. I note at the outset that Doreen Brown takes the point that the 163 sites (or at least those sites separate from the 110 sites the subject of the plaintiffs’ claim) have not been identified, sufficiently or at all, in the evidence.

The essence of the constructive trust claim, as pleaded, is found in paragraphs 57 to 62 of the Cross-Claim. The cross-claimant alleges the existence of a joint relationship with the cross-defendant whereby:

It is pleaded that the joint relationship terminated in about November 2014 when the relationship between the cross-claimant and the cross-defendant “irretrievably broke down” following an argument about a decision of the cross-claimant not to offer Caine Brown an opportunity to buy a certain showground ride. It is pleaded, in the alternative, that the joint relationship terminated around Christmas 2018 following a physical altercation between Caine Brown and other family members.

It is alleged that the conduct of Doreen Brown, in seeking to transfer her rights and privileges in respect of the Brown Ground, and in disavowing any obligation towards Susan Brown-Pavier in relation to such rights and privileges, is in the pleaded circumstances unconscionable, and that the rights and privileges are subject to a constructive trust in favour of Susan Brown-Pavier as to a two-thirds share (or as to such proportion as would prevent the unconscionable retention of property by Doreen Brown).

The essence of the estoppel claim, as pleaded, is found in paragraphs 50 to 53 and 63-64 of the Cross-Claim. Those paragraphs are set out below:

In closing submissions, counsel for Susan Brown-Pavier placed primary emphasis upon the estoppel claim, which was said to be in the nature of a proprietary estoppel, but could also be supported as a promissory estoppel. The claim based upon the alleged joint relationship (or joint endeavour) was also pressed, although it is fair to say that counsel recognised the existence of substantial difficulties standing in the way of establishing the existence of the alleged joint relationship.

Before turning to the salient evidence, I should make some general observations about the evidence and the witnesses.

First, it must be noted that there is clearly, indeed palpably, a great deal of bitterness between the main protagonists, namely, Doreen Brown and Susan Brown-Pavier. It is clear that whatever relationship formerly existed between them, they are now utterly estranged from each other. That seems to have been the position from at least the end of 2018, and likely from about November 2014 when the pair had an argument, and Doreen Brown said that she would be transferring the Brown Ground to Caine Brown.

In fact, the relationship between the two seems to have been problematic even before that time. As Susan Brown-Pavier deposed at paragraph 81 of her first affidavit:

Doreen Brown deposed, at paragraph 88 of her second affidavit, that she has had “a poor and dysfunctional relationship” with Susan Brown-Pavier “for most of her adult life”.

These matters have caused me to treat with considerable caution the evidence given by each of Doreen Brown and Susan Brown-Pavier, including as to the conduct of the various showman’s businesses over the years and as to the manner in which showground sites were used. I think that in each case their testimony on these matters was infected with partisan bitterness such that it casts doubt upon the accuracy and reliability of their accounts.

Secondly, although numerous other witnesses were called to give evidence about these matters, many of them were family members with an interest in the outcome of the litigation, or persons who expressed dislike of Doreen Brown, and, in one case, a person who had had a falling out with Susan Brown-Pavier. (I should state, however, that Gary Johnson and Veronica Caton, called by the cross-defendant, and Marjorie Chant, called by the cross-claimant, did not fall into either of those categories.)

Thirdly, there was an almost complete absence of documentary evidence in relation to the financial transactions that were described in the affidavits. That absence meant that it was generally not possible to test the reliability of the testimony of a witness by reference to contemporaneous documents likely to be accurate.

Lastly, the assessment of the testimony given, insofar as it relates to any conversations with Bruce Brown, who is now deceased, must on that account be treated with particular care.

The most salient aspects of the evidence of Susan Brown-Pavier (as contained in her two affidavits) are summarised in the following paragraphs.

Susan Brown-Pavier deposed that when she was about 14 years of age, she began working in her father’s (or her parents’) canteens at shows, and was sporadically paid a small wage in cash. She says that this continued until about 1981 when she married Ricky Stephens. She says that she then relocated to Tasmania for a portion of each year, but returned in the May-August period to work for her parents at shows in North Queensland. She deposed that she would work in their “second” canteen. She says that after she and Ricky Stephens separated, she recommenced working shows with her parents, on Brown Ground, on a full-time basis, receiving a wage of $400 per week in cash (the same amount other employees received).

Susan Brown-Pavier deposed that after she met Broderick Pavier (it seems in about 1984), her father suggested that she “run” the canteen. She says that she then commenced the management of the second canteen on behalf of her parents. She deposed that she was responsible for paying the usual canteen costs, and was paid a wage by her parents who “retained the profit of the business”. She further deposed that her father insisted that she pay him $10,000 per year for operating the second canteen on the showgrounds. She says that the second canteen operated on Brown Ground, but not in as good a position as that made available for the “first” canteen. Susan Brown-Pavier deposed that Broderick Pavier operated his business on showground owned by his family.

Susan Brown-Pavier deposed that subsequently it was agreed between herself and her father that she would operate the second canteen and retain its profits “as if it was my own business”. She says that she continued to pay $10,000 per year for the use of the Brown Ground.

She deposed that she and Broderick Pavier entered into a partnership named “Goldenway Amusements”. This seems to have occurred by the late 1980’s. She says that the Goldenway partnership was effectively a combination of the businesses that she and Broderick Pavier had previously operated. She further deposed that “as part of Goldenway” she invested some of the money made from the second canteen into games and rides. She says that Goldenway purchased a 70ft cinema “with the intention of it being positioned on the Brown Ground”.

She further says that Broderick Pavier then became the owner of some additional sites at showgrounds in Queensland and Victoria. When those additional sites are added to the Brown Ground, she refers to the sites collectively, as “Brown Family Ground”. In paragraph 33 of her first affidavit, Susan Brown-Pavier deposed that these additional showgrounds “became part of the pooling system of the Brown Ground that I have described above”. I note, however, that no description of such a system seems to be present in her affidavit apart, perhaps, from an earlier reference to a practice whereby ground is “thrown into a hat”. That reference appears in a part of the affidavit that was ruled to be inadmissible. However, the practice of “throwing into a hat” was the subject of evidence given by other witnesses, including Gary Johnson and Marjorie Chant. Reference will be made to that evidence later in these reasons.

Susan Brown-Pavier deposed that from about 1989, the order of allocation of ground (presumably Brown Ground) was to the first canteen, then to the second canteen, and then to Goldenway’s rides and games. She says that when Brooke Pavier commenced her business, she operated on Brown Family Ground. She says that, years later, Caine Brown operated a ride (the Avenger) on Brown Family Ground. She further deposed that when Caine Brown joined the industry, the order of allocation changed so that his equipment had ground allocated next after the first canteen.

At paragraphs 42 to 48 of her first affidavit, Susan Brown-Pavier deposed:

The above evidence, together with paragraph 16 of Susan Brown-Pavier’s second affidavit, is central to her estoppel claim.

Paragraph 16 of her second affidavit is in the following terms:

Susan Brown-Pavier deposed that, after Bruce Brown’s death in 2006, arrangements were made for Ivan Silver to operate the first canteen. She deposed that on occasions she and Broderick Pavier assisted with the operation of the canteen.

Susan Brown-Pavier deposed that in about 2012 there was a restructure of the Goldenway business that involved the sale of two large rides (the Scorpion and the Ghost ride). She deposed that around that time Blake Pavier (and his partner Bianca Townsend) commenced operating a canteen “at the second canteen spot”, and commenced paying $10,000 per year to Doreen Brown (with Goldenway paying a further $10,000 per year). Susan Brown-Pavier says that the second canteen was largely “retired” at that time.

She further deposed that in about 2014, Brooke Pavier purchased a ride, and that she operated that ride on Brown Family Ground, albeit “only when we have enough remaining space on that ground”.

Susan Brown-Pavier deposed that she and Broderick Pavier have spent about $40,000 “on repairs and restoration on the ride and the [second] canteen”, and that since Bruce Brown’s death, Goldenway has paid insurance on “both canteens”.

After referring to the major disputes that occurred in November 2014 and at Christmas 2018, Susan Brown-Pavier deposed (in paragraph 80 of her first affidavit) that:

Susan Brown-Pavier’s second affidavit largely consists of a repetition of some of the matters contained in her earlier affidavit, and a response to some aspects of Doreen Brown’s second affidavit. At paragraph 14, Susan Brown-Pavier deposed that her parents, particularly her father, always referred to the Brown spaces as “the family ground”, and that people outside the family referred to it as “Brown Ground”. Paragraph 16 of the second affidavit, which is relevant to the estoppel case, has already been set out above.

The above account is extensively disputed by Doreen Brown. For example, she disputes:

In addition, Doreen Brown deposed that since about 1983, Susan Brown-Pavier and Broderick Pavier “have worked for themselves and not as part of Bruce or my family business”. She further denied that the additional sites acquired by Broderick Pavier became part of a “pooling system” of ground collectively known as Brown Family Ground. She says that ownership has been distinguished between Brown Ground and Pavier Ground. Doreen Brown also deposed that she does not recall ever hearing Bruce Brown say to Susan Brown-Pavier words to the effect of “You will get part of it”.

In order to determine the claims made in the Cross-Claim, it is not necessary to resolve many of the conflicts between the accounts given by the cross-claimant and her mother. That is not the case, however, in relation to the claim insofar as it rests upon the asserted proprietary or promissory estoppel. A central element of the claimed estoppel is the assertion that, in about 2004, Bruce Brown on several occasions in the presence of Doreen Brown said to Susan Brown-Pavier words to the effect of: “You’ll be right”; “Don’t buy anything we have enough ground to work on”. These statements are said to have been made in circumstances where the grounds held by the Wittingslow family in relation to various showgrounds in North Queensland were for sale.

The evidence given by Susan Brown-Pavier on this matter is contained in paragraphs 44 to 48 of her first affidavit, and paragraph 16 of her second affidavit. The evidence is set out above at [58] and [60].

For the reasons which follow, I am not satisfied that Bruce Brown made statements to that effect as alleged. The evidence given by Susan Brown-Pavier is in my view vague, and not corroborated by any documentary evidence or by any other witness, including Broderick Pavier. In that regard, I note that whilst the terms of her affidavits do not make it clear whether Broderick Pavier was present on any of the occasions the statements were said to have been made (including the occasion when Bruce Brown “came into our caravan”), the particulars to paragraph 50 of the Cross-Claim state that Broderick Pavier was indeed present on at least one occasion.

However, the evidence given by Broderick Pavier in relation to this matter (at paragraph 10 of his affidavit) goes no further than a suggestion that Bruce Brown had told Susan Brown-Pavier that they needed some good parcels of land at the Ingham and Ayr shows. That suggestion is broadly consistent with the evidence given by Susan Brown-Pavier in paragraph 16 of her second affidavit where she deposed that her father suggested that if Broderick Pavier and Gary Johnson bought the Wittingslow spaces “we need a couple of good parcels at the Ingham and Ayr shows”. Nevertheless, that evidence contradicts the evidence that Bruce Brown had said “don’t buy anything”, and does not accord with the fundamental allegation made in paragraph 50 of the Cross-Claim that Bruce Brown persuaded Susan Brown-Pavier and Broderick Pavier not to buy another showman’s space in North Queensland.

At one stage in the course of cross-examination, Susan Brown-Pavier appeared to accept that paragraph 16 of her second affidavit was intended to replace what she had said in paragraphs 44 to 48 of her first affidavit. In the course of re-examination (including in answer to questions asked by me), she suggested that she had not understood the proposition that had been put to her and accepted by her. This suggested explanation for her earlier answer seemed to me unconvincing, but even if she were given the benefit of the doubt on this matter, it remains the case that her account is to at least some degree contradictory. I would add that in cross-examination, Susan Brown-Pavier said she had no recollection of having any first right of refusal in respect of the Wittingslow Grounds, despite having deposed to that effect in paragraph 44 of her first affidavit.

In assessing the evidence on this matter, I have borne in mind the difficulties inherent in recalling, with a reasonable degree of accuracy, oral statements made many years previously (here, in about 2004). I have also taken into account the existence of the partisan bitterness that appears to have infected the evidence given by Susan Brown-Pavier (and Doreen Brown). Considering the evidence as a whole, I am unable to be satisfied that in about 2004, Bruce Brown said words to the effect of those attributed to him in paragraph 45 of Susan Brown-Pavier’s first affidavit. I am prepared to accept Doreen Brown’s denials that he said words to that effect in her presence. It follows that I reject Susan Brown-Pavier’s evidence that such statements were the reason why she and Broderick Pavier ultimately decided not to purchase the Wittingslow grounds in North Queensland.

The central allegation that Bruce Brown persuaded Susan Brown-Pavier and Broderick Pavier not to buy any further showman’s space in North Queensland is not made out. Neither is the allegation that, in reliance upon what was said by Bruce Brown, Susan Brown-Pavier did not proceed to buy those spaces. The failure to make out those allegations is fatal to the estoppel case, whether viewed as a proprietary estoppel or as a promissory estoppel (see Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19 at [58]). That is so regardless of whether Bruce Brown ever said to Susan Brown-Pavier words to the effect of “You will get part of it”. The question of the effect those words may have had upon Susan Brown-Pavier’s understanding does not arise where the statements that are fundamental to the estoppel are found not to have occurred.

It is unnecessary to consider a number of the objections raised by Doreen Brown to the estoppel case. These include that the representations attributed to Bruce Brown were not sufficiently clear or certain to give rise to any estoppel, and that there was no evidence that any belief held by Susan Brown-Pavier as a result of such representations was ever made known to Doreen Brown. It is also unnecessary to consider questions concerning the extent of any reliance upon statements made by Bruce Brown, and any detriment that would be suffered if there were a departure from any assumption or expectation arising from such statements.

I turn now to consider Susan Brown-Pavier’s claim to a constructive trust arising from the termination of the alleged joint relationship between herself and her mother. This aspect of the case was put on the basis of the principles enunciated by the High Court in Muschinski v Dodds (1985) 160 CLR 583 and Baumgartner v Baumgartner (1987) 164 CLR 137.

The alleged joint relationship, as pleaded, is set out above at [38]. In summary, the nature of the alleged relationship seems to be one where Susan Brown-Pavier has since an early age worked in and contributed to her parents’ business and her own businesses that were operated on Brown Ground, and forwent an opportunity to acquire further showground spaces, on the basis that the rights and privileges associated with the Brown Ground would be held by Doreen Brown for the benefit of Susan Brown-Pavier as well as Caine Brown “in proportions that recognised the passing of the cross-claimant’s interests to her other children, Brooke and Blake”.

The alleged joint relationship is said to arise from the circumstances referred to in paragraphs 26 to 56 of the Cross-Claim. It is difficult to discern from a reading of those paragraphs precisely how the relationship is said to be “joint”. Many of the paragraphs appear to describe dealings between the parties that do not seem to bear that character, such as employment relationships or commercial arrangements for the operation of canteens. However, paragraphs 43 and 44 of the Cross-Claim are in the following terms:

Counsel for Susan Brown-Pavier emphasised that the joint enterprise “only worked because all of the grounds were pooled together and allocated to the family”. The notion of a “pool” of showground sites thus assumed central significance to this aspect of the case. Doreen Brown denied that there was ever any pooling of Brown Ground and Pavier Ground. She says that ownership has always been distinguished between Brown Ground and Pavier Ground.

It is necessary to refer to some of the detail of the evidence which bears upon the notion of a pooling of grounds.

I have already referred (at [56] above) to a reference in paragraph 33 of Susan Brown-Pavier’s first affidavit to a “pooling system of the Brown Ground”, and noted that no such system was in fact described in her affidavit. Paragraph 34 of that affidavit (which referred to Broderick Pavier’s responsibilities in relation to the “Brown Family Ground”) was ruled inadmissible. However, Broderick Pavier gave evidence to the effect that since about 1989 he was “looking after the Brown family grounds” for Bruce Brown. In paragraph 7 of his affidavit he deposed:

Broderick Pavier also gave evidence about “organising spaces within the Guild over many years” and being a Delegate of the Guild over many years.

The role of such Delegates is described in cll 4 to 7 of the Code of Conduct. Clause 7 is specifically concerned with the allocation of space to individual members at each show.

That Broderick Pavier acted as the agent of Bruce Brown, or Doreen Brown, in relation to the allocation of ground is supported by evidence given in the cross-claimant’s case by Brooke Pavier (at paragraph 30 of her affidavit), Blake Pavier (at paragraph 18 of his affidavit) and Kym Silver (at paragraph 8 of her affidavit).

In the cross-defendant’s case, Gary Johnson deposed at paragraph 23 of his affidavit that:

For her part, Doreen Brown deposed (at paragraphs 46 and 58 of her second affidavit):

Doreen Brown further deposed in her third affidavit (at paragraph 57):

As mentioned earlier, evidence was given by Gary Johnson and Marjorie Chant concerning the practice of “throwing into a hat”. Gary Johnson deposed (at paragraph 20 of his affidavit):

Marjorie Chant deposed (at paragraphs 14 and 15 of her affidavit):

Susan Brown-Pavier herself gave evidence that the “throwing into a hat” practice operated in relation to “excess” ground.

Having considered all of the evidence, I do not accept that there has been any “pooling” of the Brown Ground with any other ground (such as spaces acquired by Broderick Pavier) so as to give rise to a joint relationship or endeavour with Susan Brown-Pavier. I accept the evidence given by Doreen Brown to that effect, and also her evidence to the effect that ownership of the Brown Ground was always distinguished from that of Pavier Ground.

In my view, the evidence establishes that at all times the Brown Ground has not only been held in the name of Bruce Brown and then in the name of Doreen Brown, its use has always been controlled by Bruce and/or Doreen Brown. To the extent that Broderick Pavier has made decisions about the allocation of spaces held by either Bruce Brown or Doreen Brown, he has acted as the agent of the owner of the space. To the extent that he had dealings with respect to such spaces in his capacity as a Delegate of the Guild (including in relation to any disputes), he was acting for the Guild in accordance with its Code of Conduct and in the interests of the members as a whole.

Moreover, the mere fact that on occasions “excess” Brown Ground has been “thrown into a hat” at a particular show does not demonstrate the existence of any “pooling” of ground, except perhaps on an ad hoc basis. It certainly does not demonstrate the existence of a general pooling of Brown Ground with any other ground, including ground owned by Broderick Pavier (see Craig v Silverbrook [2013] NSWSC 1687 at [511] per Sackar J).

That is not to say that over the years (or at least until the end of 2018) there has not been a degree of co-operation or mutual assistance as between Bruce and Doreen Brown on the one hand, and Susan Brown-Pavier and Broderick Pavier on the other, in relation to the operation of their respective businesses on showgrounds throughout eastern Australia. There was evidence, for example, that on occasions Broderick Pavier would assist by moving the canteens operated by Bruce or Doreen Brown into the designated space at a showground. I think it is likely that there were countless instances where cooperation or assistance was provided by one business to another, but that does not establish the existence of any pooling of ground as alleged.

The failure to establish that there was such a pooling of the Brown Ground removes an important plank from the case that a joint relationship or endeavour existed between Susan Brown-Pavier and Doreen Brown. Further, it is my view that any involvement by Susan Brown-Pavier in the business operated by Bruce and Doreen Brown, and since Bruce’s death by Doreen Brown, whether as an employee, the manager or operator of a canteen, or otherwise, cannot be regarded as a contribution made to a joint enterprise to which the parties each contributed showground space. Rather, such involvement should be seen as occurring pursuant to particular arrangements made between Susan Brown-Pavier and Bruce and/or Doreen Brown as the proprietors of the business, or otherwise as occurring on a casual or ad hoc basis.

I reach these conclusions regardless of whether Susan Brown-Pavier’s account or Doreen Brown’s account of such involvement is accepted. It is not necessary, for example, to decide (assuming that to be possible in the absence of reliable corroborative evidence) whether Susan Brown-Pavier was ever an employee of the business, or whether she paid $10,000 per year to operate the second canteen. Similarly, it is not necessary to decide where the truth lies in relation to the retention of the profits from that canteen. The point is that whatever the detail of the arrangements as advanced by Susan Brown-Pavier on the one hand, and Doreen Brown on the other, they do not bespeak of, let alone establish, the existence of a joint relationship or endeavour between them.

For the above reasons, I do not accept that the joint relationship, said to arise from the circumstances referred to in paragraphs 26 to 56 of the Cross-Claim (which include the allegations of pooling of ground), has been established.

I should add that the particular aspects of the nature of the alleged joint relationship that are pleaded in paragraph 57 of the Cross-Claim, have also not been established. I accept the submission made by Doreen Brown that the allegation that Susan Brown-Pavier’s only livelihood since childhood has been to operate and assist her parents in running their business on the Brown Ground, is plainly incorrect. The allegation (which Susan Brown-Pavier would not concede to be incorrect) completely ignores the contribution made to her livelihood by the businesses conducted by the Goldenway Amusements partnership, and later by the corporate entities established by Susan Brown-Pavier and Broderick Pavier. No detailed evidence was adduced concerning the financial performance and scale of those businesses, and I discerned a reluctance on the part of both Susan Brown-Pavier and Broderick Pavier to yield such information, but they both accepted that Goldenway Amusements was successful.

I am also unable to accept (even on Susan Brown-Pavier’s own evidence) that she made substantial contributions of money or monies worth “towards the retention and improvement of the Brown Grounds”, even if she made some contribution to the business conducted by Bruce and/or Doreen Brown.

The findings I have made in relation to the claimed estoppel mean that I also do not accept that Susan Brown-Pavier forwent an opportunity to acquire further showground spaces on an understanding (gained from statements made by Bruce Brown) that there would be sufficient Brown Ground spaces for her and her children to continue to operate upon.

Susan Brown-Pavier alleged (in paragraph 57(d) of the Cross-Claim) that she acted as described above on the basis that the rights and privileges associated with the Brown Ground would be held by Doreen Brown “for the benefit of [herself] as well as Caine in proportions that recognised the passing of the cross-claimant’s interests to her other children, Brooke and Blake”. The allegation seems to be the foundation for the claim that the sites are held on constructive trust for her as to two-thirds. It further appears that the allegation rests in part upon Susan Brown-Pavier’s evidence that her father had on many occasions said to her words to the effect of “You will get part of it”. However, even if such words had been said (and I make no express finding about that), I do not think that they could reasonably give rise to any expectation beyond one relating to Bruce Brown’s estate. The time for making any claim against that estate has long since passed. Moreover, it is not suggested that Doreen Brown was a party to such statements or that she has made any statements herself that might give rise to an expectation in relation to her property. In that regard, I note that the letter sent by Susan Brown-Pavier’s solicitors to Doreen Brown on 30 September 2019 refers only to an “established practice that Spaces be transferred within families, from generation to generation”.

In any case, Susan Brown-Pavier has failed to establish the existence of the joint relationship that is alleged in the Cross-Claim. Accordingly, the case that a constructive trust arises from the termination of the alleged joint relationship must also fail. Doreen Brown’s rights in respect of any sites have never been held subject to the equitable obligations asserted in the Cross-Claim. In my opinion, she remained free to deal with those rights as she chose, including by taking steps to have the rights transferred solely to Caine Brown. It is not unconscionable of Doreen Brown to take those steps, or to seek to have the transfer completed.

Again, it is unnecessary to consider a number of the objections raised by Doreen Brown in relation to the constructive trust case, including that the sites the subject of the claim have not been sufficiently identified, and that the claim should fail by reason of laches or the operation of the Limitation Act 1969 (NSW).

As both the estoppel claim, and the claim to a constructive trust arising from the termination of the alleged joint relationship, have failed, the Cross-Claim must be dismissed.

On the plaintiffs’ claim, declaratory relief will be given to the effect that Doreen Brown, as the owner entitled to the 110 sites the subject of the transfers, has validly and properly invoked cl 10 of the Code of Conduct of the Guild as far as she can do so, to effect transfers of her rights and privileges in respect of such sites to Caine Brown. In addition, an order will be made requiring the Guild to take steps to have Caine Brown recorded as the owner entitled to the 110 sites the subject of the transfers.

The plaintiffs also sought an order that Susan Brown-Pavier be restrained from taking any steps to interfere with the transfer of the sites to Caine Brown. Counsel for Susan Brown-Pavier informed the Court that if an order was made that the transfers be effected, she would not interfere. Counsel for Doreen Brown said in closing submissions that Doreen Brown would be prepared to accept that undertaking, but subject to liberty to apply. In circumstances where no precise undertaking has been formulated and proffered, in the interests of finality and avoiding the possibility of a need to exercise a liberty to apply, I consider that the Court should also make an order restraining Susan Brown-Pavier from taking any further steps to interfere with the transfer of the sites to Caine Brown. The order will make it clear that it does not prevent her from filing and prosecuting any appeal against my orders.

As to costs, there would seem to be no reason why costs should not follow the event. Accordingly, the Court will also make orders that Susan Brown-Pavier pay the plaintiffs’ costs of the proceedings on the Summons, and Doreen Brown’s costs of the proceedings on the Cross-Claim.