[2026] NSWSC 217

Protheroe v Protheroe (Application to reopen)

(1) Application dismissed. (2) Caveat ordered to be discharged.

Catchwords

CIVIL PROCEDURE – application by Plaintiff to reopen a trial in which the primary judge found (on the Defendant’s cross-claim) that the Plaintiff holds certain real property on constructive trust for the Defendant and where the Plaintiff appealed the outcome and the appeal was dismissed – where grounds for application are: (a) the primary judge found a constructive trust whereas the case had been brought and fought by the Plaintiff on an estoppel basis; (b) the trial judge proceeded on an assurance that the Defendant would operate the properties as a farm, which assurance was false; (c) the trial judge declined to take into account circumstances concerning the Defendant’s financial resources which made it unlikely that the Plaintiff would have made the promises which founded the primary judge’s finding of constructive trust; (d) the primary judgment is infected with the Defendant’s fraud because he gave evidence about his financial circumstances which was not true, failed to reveal relevant financial information and false evidence was given by other witnesses – where Plaintiff has lodged a caveat on the properties inhibiting the Defendant from dealing with them – HELD – none of these grounds are made out and in any event there is no basis for concluding that there is any prospect that the ultimate outcome of the hearing would be any different – application dismissed – orders that the caveat be discharged and the Plaintiff not lodge any further caveats on the properties without leave of the Court

Cases cited

Protheroe v Protheroe[2023] NSWSC 188
Protheroe v Protheroe[2023] NSWCA 328

Judgment

[1]
The Plaintiff, Mr Colin Henry Protheroe (Colin), is 77 years old. He has been locked in litigation with his son, the Defendant, Brian William Protheroe (Brian), for at least seven years. I will use their first names without any disrespect. They are farmers, and their dispute relates to farmland near Narrandera, in the central Riverina Region of south-western New South Wales.
[2]
Colin started these proceedings as a claim in detinue and conversion of stock, plant and equipment on two properties, Elmore (Certificate of Title F/I/72/754538) and Shannon Vale (Certificate of Title F/I/52/754571), which have been farmed by the family for over a century. This spawned a cross-claim by Brian for orders declaring that he is the beneficial owner of both.
[3]
The trial was heard by Slattery J in September and October 2022 and his Honour handed down judgment on 9 March 2023 declaring that Colin holds both Elmore and Shannon Vale on constructive trust for Brian on terms that Brian is entitled to require Colin to transfer them to him at a time that the parties would have reasonably expected from their mutual dealings that Colin was likely to retire from farming on the properties and upon payment by Brian to Colin of a sum to enable Colin to acquire and conduct a viable small rural hospitality business: see Protheroe v Protheroe [2023] NSWSC 188.
[4]
One of the defences run by Colin at the trial was that Brian’s claims were barred by a release in a Deed of Settlement to which they both were a party with the National Australia Bank (NAB) by which debt recovery proceedings by that bank against Colin and the trustee of the CH Protheroe Family Trust were resolved. Those proceedings involved the sale of another piece of land over which NAB had security.
[5]
At [272] Slattery J noted that Brian’s submissions to date indicated that returning to Elmore and Shannon Vale was the course he wished to take and the Court did not wish to dislodge Colin from Elmore and Shannon Vale unless Brian was committed to returning there and farming them. It may be accepted that in moulding the relief he ultimately ordered, Slattery J proceeded on the footing that Brian was so committed. Brian took possession of both properties on 26 August 2024, after a writ of possession had been issued. Brian says that he attended (sic) to raise finance to pay the mortgage debt on the properties and to discharge a mortgage held by ANZ Bank on his family property, Ingaladdie, at Grenfell, and to pay legal costs from the proceedings, by selling Ingalladie but was not able to secure a purchaser (Colin says that this was a charade because Brian put that property on the market at a significant overvalue). Brian says that they (presumably him and his wife) made the difficult decision to list Elmore and Shannon Vale for sale (because of their financial difficulties) but then were able to refinance and remove them from listing (Colin says they only did this because he had lodged a caveat on Elmore and Shannon Vale).
[6]
Colin appealed Slattery J. The appeal was heard by the Court of Appeal on 13 November 2023 and was dismissed on 21 December 2023: see Protheroe v Protheroe [2023] NSWCA 328.
[7]
At the trial Colin was represented by two junior counsel and on appeal by junior counsel.
[8]
The Court of Appeal recorded at [4] that Colin did not challenge Slattery J’s finding as to the elements of Brian’s proprietary estoppel claim. Rather Colin made two arguments. The first was that the primary judge erred in moulding the relief and the second was that Brian’s claim was released by the Deed of Settlement. Ground one was that in determining the relief, Slattery J failed to take into account material financial benefits received by Brian as a result of Colin’s settlement of the NAB proceedings. The Court of Appeal at [6] identified that this had not been argued before the primary judge; at [7] and [8] recorded that it was not apparent that the primary judge had failed to take the financial consequences of the Deed of Settlement into account; and that, Brian having objected to the raising of this argument on appeal where it could have been the subject of further evidence, Colin’s counsel abandoned it.
[9]
The appeal was ultimately limited to the contention that Brian’s claim was barred by the release in the Deed of Settlement. This argument was rejected by the Court of Appeal.
[10]
By a series of motions (dated 24 February 2025, 11 August 2025, 18 August 2025, 15 October 2025 and 2 November 2025) in differing terms but with the same underlying object, Colin seeks orders setting aside Slattery J’s judgment which would have the effect of giving Colin the ability to relitigate the case. He seeks to file an amended Statement of Claim dated 2 March 2026 which seeks retransfer of the two properties to himself (together with the return of certain machinery). He relies on his own affidavit sworn on 2 March 2026.
[11]
Colin has lodged a caveat (AU914007) on the titles of both Elmore and Shannon Vale.
[12]
Colin’s grounds for his motions were articulated by him in oral argument as follows (paraphrased by me):
1. (1)
  Slattery J found against him on a constructive trust basis whereas the case had been brought and fought by him on an estoppel basis;
2. (2)
  Slattery J proceeded on the assumption that Brian would operate Elmore and Shannon Vale based on an assurance given by Brian, which assurance was false;
3. (3)
  Slattery J declined to take into account relevant circumstances surrounding the transaction in connection with the Deed of Settlement and material which established that Brian had financial resources, which made it unlikely that Colin would have made the promises in relation to the properties, which promises Slattery J found had been made and which formed the basis for his Honour finding the constructive trust; and
4. (4)
  the primary judgment is infected with Brian’s fraud because he gave evidence about his financial circumstances which was not true or which deliberately failed to reveal relevant financial information such as his access to money and the operation by him of having various bank accounts. He also asserts that false evidence was given by Amanda (Brian’s wife) and Barbara Eadie (Colin’s first wife).
[13]
Colin told the Court that he has had to leave his home, has had to pay significant legal costs, now has no resources and together with his wife Henriette may turn out to be homeless. These unfortunate circumstances have at least in part been brought about by Colin’s steadfast opposition to the relief sought by Brian which was granted by Slattery J and upheld on appeal. Whatever sympathies these travails may deserve (and they probably deserve some) they do not translate into grounds for reopening a case which is well and truly over. For the following reasons (dealt with in the order of the grounds), the grounds now raised by Colin cannot succeed and he has fallen short of discharging the burden on him to establish some basis to reopen the case:
1. (1)
  on appeal the constructive trust finding by the primary judge was not challenged;
2. (2)
  Brian is in fact operating the two properties and the material does not establish that he did not, and does not now, intend to farm them. Even accepting that Slattery J proceeded on the assumption of that expressed intention by Brian, circumstances can change, and if they did, it would not form a basis to go back and reopen the relief. I posited the example in oral argument that what if unfortunately Brian became ill and could not farm the properties. Moreover, had Slattery J not been satisfied that Brian would farm there, the relief might have been different but there still would have been relief;
3. (3)
  this too was dealt with by the Court of Appeal and the issue was abandoned by deliberate forensic decision made by counsel at the appeal; and
4. (4)
  Colin has not established that there was any deliberate withholding of evidence or giving of false evidence. He has also not established to my satisfaction that he or his legal team did not have, or did not have access to, material which he says he would have relied upon then and would rely upon now. But even had he raised some serious question about the testimony given or not given at the trial as the case may be, I am not satisfied that there is any basis for concluding that there is any prospect that the ultimate outcome of the hearing would be any different.
[14]
This means that his motions must be dismissed and I so order.
[15]
It turned out that there is a relatively tiny sliver of land which should have been included in the relief granted by Slattery J and which was overlooked. One Vivienne Grace Halbisch is Colin’s sister and Brian’s aunt. Under the will of Colin and Vivienne Grace Halbisch’s father, she has an interest in this sliver but accepts that it should be part of the primary judge’s orders. Colin himself does not oppose the making of an order having that effect.
[16]
By motion filed on 29 September 2025 Brian seeks orders that:
1. (1)
  Vivienne Grace Halbisch be joined as a second defendant;
2. (2)
  the caveat earlier referred to be discharged;
3. (3)
  without leave Colin be prevented from lodging any further caveats;
4. (4)
  the sliver of land (being Lots 1-3 in Deposited Plan 134958) be included in the orders made by the primary judge; and
5. (5)
  the Registrar in Equity be authorised to sign the necessary documents to give effect to this.
[17]
At the commencement of the hearing I made the following orders in relation to the sliver, without prejudice to the outcome of Colin’s application to reopen:
1. (1)
  Vivienne Grace Halbisch is joined as the Second Defendant to these proceedings.
2. (2)
  The parcels of land described as and comprised in Certificates of Titles Lots 1-3 in Deposited Plan 134958 with a total area of approximately 1.493 hectares and a perimeter of 700 metres are to be transferred to Brian William Protheroe and included in the judgment orders made by Slattery J on 1 March 2023 pursuant to Uniform Civil Procedure Rules 2005 (NSW) r 36.17 or the Court’s inherent power.
3. (3)
  The Registrar in Equity be authorised to sign the transmission or transfer from the Plaintiff and the Second Defendant to the First Defendant in compliance with the immediately preceding order.
4. (4)
  The Plaintiff’s motions dated 24 February 2025, 11 August 2025, 18 August 2025, 15 October 2025 and 2 November 2025 are dismissed.
5. (5)
  Caveat AU914007 registered on:
6. (6)
  Without further leave of the Court, the Plaintiff, Colin Protheroe, is prevented from lodging any further caveats on the Certificates of Title referred to in the immediately preceding order.
[18]
The Plaintiff is to pay the Defendant’s costs of the Plaintiff’s motions, and the Plaintiff is to pay 75% of the costs of the Defendant’s motion filed 29 September 2025.