Brown v Brown-Pavier [2023] NSWSC 537 | Case summary

The plaintiffs' claim

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: 1. is a body corporate; 2. has perpetual succession; 3. has power to purchase, take on lease, hold, sell, lease, mortgage, exchange and otherwise own, possess and deal with, any real or personal property; 4. must have a common seal; and 5. may sue or be sued in its registered name.
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: 8. Each site is a space on a showground known as 'ground' and that space is in effect a right to earn a living at that space during the show so long as the Guild has in place an arrangement for that purpose with the local Show Society. Each site is considered the property of the ground owner and is a transferrable asset. The Guild has a specific format for authorising transfers of its sites. 9. A site is a position on each showground held during a show at that location which includes the rights and privileges to use the site during a local show, and at various locations from time to time. The sites vary in size, and there can be one or more than one site owned at each showground by a showman. These sites are used to display rides, games, food canteens etc to earn a living at each show attended. 10. There is a show circuit organised by the Guild which negotiates with the various local show societies as to the date or dates of shows and the rents established both by the Guild and the Show Society. A site plan retained by the Guild is available for each show, and at the commencement of the show 3 delegates appointed for that show by the Guild will normally identify the sites for each member in accordance with the plan. The site plans are updated from time to time after each show, for new ground, varied space, and the like. 11. Each space is marked out by the Guild using a per foot measurement at each show. There is a common plan established by long standing arrangements between the Guild and the local Show Society for each showground, called a site plan. 12. The Guild negotiates with the Show Society for the allocation of designated Guild areas during the Show. This for example might be '4000 square feet', which is then allocated to the Guild and then the Guild allocates to the members in accordance with sites owned by members and recorded in its records.
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: 13. My husband Leslie Roy Bruce Brown, who died on 18 September 2006, for many years owned all our sites' rights and privileges on showgrounds up and down the East Coast of Australia, as well as in Victoria. Victoria has its own separate Guild. 14. He and I worked our sites together, although sometimes we leased them out to other showmen. Upon his death those sites were transferred to me under his will. The transfers took effect after the Guild, upon learning of Bruce's death, by recording the change of ownership in its records, in particular the site plan for each showground. 15. Since then, my brother John Davenport also a showman gave his sites to me under his will and these transfers were verified by the Guild and transferred to me. 16. The ownership of the Guild sites is recorded in its record. Those sites are recorded and identified in the site plan retained by the Guild with respect to each Showground. Each member of the Guild may also retain a copy of a site plan. 17. I have the rights and privileges for at least 110 showground sites in NSW and Queensland as recognised by the Guild in its records including on site plans for shows in those States. I have had the clear use of the rights and privileges of each site for more than five years. Caine and his wife Amanda now assist me in managing my sites. Caine has helped me with my sites since about 1999 when he became a member of the Guild.
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: 10. Transfer of rights and privileges 10.1 Subject to Clause 10.2, a Member is allowed to transfer his rights and privileges held by virtue of his membership to another Member subject to approval of the Committee and also subject to the following conditions: (a) the Member has had clear use of the rights and privileges for a period of not less than five (5) years; (b) the Member lodges a Guild transfer form with the Secretary not less than fourteen (14) days prior to the general meeting. Only applications received on the official Guild transfer form will be accepted. These are available on request from the Guild office, or the website Members page. (c) the questions regarding transfers must be referred back to the original transferor; (d) Members transferring space must submit the transaction through the Guild within twelve (12) months of obtaining space otherwise the transfer becomes null and void; (e) the Guild has no responsibility for financial transactions between Members; (f) the Member transferring space pays a fee to the Guild Office as fixed by the Guild from time to time. 10.2 A fee is not required for the transfer of rights and privileges to lineal heirs or for the swapping of positions on the same showground in relation to a Guild Show. 10.3 In the case of any dispute as to the transfer of rights and privileges, management of the space shall remain in the name of the Transferor until such time the matter is resolved by all parties or a decision is made by the court.
In paragraph 20 of her first affidavit, Doreen Brown described the practice of the Guild in respect of transfers as follows: The process for transfers in accordance with the longstanding custom and practice of the Guild of which I am aware from my 63 years as a member for many of which I was also a Guild trustee to my knowledge is as follows: Step 1 - The owner prepares a transfer on the Guild form as owner to another member as set out in Annexure "DB4". Step 2 - The owner lodges the form with the Guild 28 days prior to the upcoming AGM of the Guild. Step 3 - the Guild then validates the ownership of the site or sites set out in the transfer forms which it does by its officers and delegates checking over the Guild's site plans and other records for shows referred to and checking over the next 12 months through its delegates at the shows in question for each site such that the sites are correctly described and owned in accordance with the Guild's records. Step 4 - the Guild, at the AGM or the next meeting, then moves to record the transfers on the site plans held by the Guild and other internal records showing the new ownership of the sites and approves the transfers. Step 5 - the Guild then confirms to the former and new owner the new position regarding the sites in question. This can be done orally by one of the 20 Guild delegate or by written notice from the Secretary.
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: Mrs Browns transfers were lodged at our Easter AGM on 9th April 2019. Final approval comes into effect once all positions have been validated at the 'next' show and confirmed at the AGM 2020. All transactions must go through this 12month cycle so that sites can be recognised and confirmed by the Delegates that attend those various shows. For example, the Show Society may have built a structure on a particular site. There is no delay, our normal procedure is in effect as with other transfers of a similar nature. Transfers put forward must be validated at the next show as our office cannot confirm these applications until they are checked. These 'transfers' will be accepted at out next AGM 2020 subject to all criteria being met throughout clause 10.0 and including clause 10.3. We hope this addresses all concerns Mrs Brown has regarding her transfers.
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: As per the Minutes of the General Meeting, held at Dooley's Catholic Club on Wednesday 10 April, 2019 we tender the following information - (1) A request was made by Mrs Doreen Brown to transfer a number of allotments that are to her lineal maternal grandson, a Mr. Caine Brown. This request has listed all the Show/s where Mrs Doreen Brown has held this [sic] spaces and the area/s, of such spaces, as well as other significant features of some of the spaces The current owner of these areas is not in dispute as far as the Showmens Guild of Australasia (further named as "SGA'') is concerned. (2) As per these Minutes, endorsed by the President, Mr. George Pink, the "Delegates are to check and further investigate". By this the SGA, via each and every Show delegate, are to examine each and every plot to ascertain actual size and actual position correctness & accuracy. In the first instance, the Showmens Guild of Australasia do not believe that the current ownership of these show sites is in dispute. Secondly, the Showmens Guild of Australasia believe that the transfer process has been initiated, created and implemented in the correct manner, according to our current Code of Conduct © Allens Arthur Robinson 2009, (Amended 2017) The President and the Committee understands that a challenge to these transfer items has been made and this is duly noted. It is the decision of the President and the Committee to provide each of the parties with their support of Clause 10.3 of our current Code of Conduct © Allens Arthur Robinson 2009, (Amended 2017). As in - ''In the case of any dispute as to the transfer of rights and privileges, management of the space shall remain in the name of the space shall remain in the name of the Transferor or until such time the matter is resolved by all parties or a decision is made by the Court." Furthermore, the Showmens Guild of Australasia await advice of an appropriate resolution, either by the parties themselves or a decision by due judicial process to finalise this matter.
On 1 February 2021, the Guild sent a further letter to Doreen Brown. The letter was in the following terms: In response to your emails of Friday 29 January & Sunday 31 January 2021, I advise the following - We are aware that there are objections in place, so transfers have not been approved, until further notice. We await correspondence from the Solicitors of both parties that the matter has been settled. As soon as the Guild is informed of this, all transfers will be attended to -
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: We act for Susanne Brown Pavier and Goldenway Amusements Pty Ltd in relation to your most recent adverse conduct being: 1. Refusing access to Spaces previously operated by them and others, and 2. Notices of Transfer of Spaces being lodged with the Showmens Guild of Australasia. The conduct complained of commenced in or about January 2019, and our clients have been denied the opportunity to generate income as has been their practice for many years. We are instructed that it is established practice that Spaces be transferred within families, from generation to generation and that you obtained rights to the Spaces in that manner and by survivorship. Notwithstanding the benefits you have received, you now seek to deny the same benefits to our clients so that not only are they denied the opportunity to work the Spaces, they will also be denied the opportunity to take over the Spaces by virtue of the established intergenerational transfers. Your conduct is without foundation and unprecedented and is causing and will continue to cause our clients considerable financial and emotional distress. The purpose of this letter is to invite you to restore our clients' rights, and those of their children, Blake and Brooke and to withdraw the Transfer Notifications prior to the next meeting of the Showmens Guild of Australasia. Should you fail to accede to our clients' reasonable requests, our clients will have little alternative other than to commence proceedings against you and to notify the Showmens Guild of Australasia of the dispute so as to prevent the transfers taking place.
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: 1. accepted that Doreen Brown was the owner of the 110 sites, the subject of the transfers; 2. accepted that the transfer process had been initiated and implemented correctly and in accordance with the Code of Conduct; but 3. in circumstances where a challenge had been made by Susan Brown-Pavier to the transfers, cl 10.3 of the Code of Conduct operated such that the Guild was required to await resolution of the matter (either by the parties themselves or by judicial process) before finalising the transfers.
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

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: (a) the cross-claimant's only livelihood since childhood has been to operate and assist her parents in running their business on the Brown Ground. (The Brown Ground is a reference to the sites originally held in the name of Bruce Brown, until his death in 2006.); (b) the cross-claimant made substantial contributions of money and monies worth towards the retention and improvement of the Brown Grounds [sic] and the cross-defendant's and her own businesses operated thereon; (c) the cross-claimant forwent an opportunity to acquire further showground spaces on the understanding that there would be sufficient Brown Ground spaces for her, and her children, to continue [to] operate their equipment on; (d) the cross-claimant acted in the manner referred to in paragraphs (a), (b) and (c) above on the basis that the rights and privileges associate[d] with the Brown Ground would be held by the cross-defendant for the benefit of the cross-claimant as well as Caine in proportions that recognised the passing of the cross-claimant's interests to her other children, Brooke and Blake.
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: 50 In 2004, prior to his death, Bruce, in the presence of the Cross-Defendant, persuaded the Cross-Claimant and Broderick not to buy another Showman's space in North Queensland by stating, on several occasions, that the Cross-Claimant and Broderick would be all right and advising them not to buy it because the family had enough ground to work on. 51 The Cross-Defendant did not raise an objection to Bruce's assurances and, in acquiescing, adopted them. 52 In reliance on the above, the Cross-Claimant did not proceed to buy the space on the basis that she, and her children, would continue to operate their businesses on Brown Ground. 53 By reason of the matter in paragraph 52 above, the Cross-Defendant created an assumption on the part of the Cross-Claimant that the rights and privileges associated with the two-thirds of the Brown Ground were to be held for the benefit of the Cross-Claimant (and, ultimately, her children Brooke and Blake). … 63 Further and in the alternative, the Cross-Claimant acted to her detriment in the manner set out in paragraphs 52 in reliance on the assurances adopted by the Cross-Defendant as pleaded in paragraphs 50 and 51. 64 In those circumstances, the Cross-Defendant is estopped from denying the assumption pleaded in paragraph 53.
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: Unfortunately however my relationship with my mother is very different. She has always been a very tough and difficult woman who has found it difficult to show me love or respect during my adult life.
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: 42 In or about 2006 or 2007 Blake began working with Goldenway. Blake was responsible for helping Broderick and I operate Goldenway rides. In addition, Blake would help with the operations of the second canteen. 43 In or about 2004 Broderick and I seriously considered buying more Showman's ground as we were concerned there was not enough ground for the whole family given Caine and Brooke were now operating on Brown Family Ground. 44 Around this time the Wittingslows Showman's Ground was for sale. This ground consisted of a 'run' of Showman's ground in Northern Queensland (a 'run' refers to a number of different showgrounds in a certain geographic area on which shows are held in a predetermined order). Broderick and I decided to make an offer to purchase the Showman's run. It is rare a whole Showman's run in Northern Queensland is for sale and Broderick and l had first right of refusal to buy the Showman's run. 45 Bruce was aware that Broderick and I were seriously considering purchasing this 'run'. At one point while we were considering this, Bruce came into our caravan and said words to the effect of: 'you'll be right' 'don't buy anything we have enough ground to work on" 46 Bruce repeated the above statement multiple times in the course of discussions regarding the acquisition of this 'run'. 47 I recall the above statement at paragraph 45 being made numerous times by Bruce in front of Doreen. At no stage did Doreen disagree or make any comment to refute Bruce's statement. 48 The above statement is the reason why Broderick and I ultimately decided not to purchase this 'run'.
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: In my Affidavit sworn 14th September-2021 at paragraphs 44 to 48 inclusive, I made reference to Witingslow grounds. I now have further recollection of the events referred to therein and say that when I was informed that the Witingslow ground was up for sale, I spoke to my father. My father said to me "If Broderick and Gary can buy them (referring to the spaces) we need a couple of good parcels at the Ingham and Ayr shows". I said "OK. I will go and tell Broderick". I then spoke to Broderick who at that stage was unaware of the [sic] what was going on and informed him of the conversation with my father. I was good friends with Lisa Witingslow, having both been on the show circuit all our lives, and I recall saying to Lisa "There are some key positions that I asked her if I could buy from her". These key positions I refer to were two ten foot positions which were located beside the Brown ground and therefore of significant value to the family. I did not hear back from Lisa and I understand that ultimately the grounds were transferred to another showman. I do not know the amount paid to the Witingslows however I have heard estimates ranging from $350,000 to $1,000,000.
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: I recall my father saying on many occasions words to the effect "You will get part of it". I never thought that I would get it all but I thought I would get a fair share.
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: 1. that Susan Brown-Pavier was ever an employee of Bruce Brown or herself; 2. that she or Bruce Brown ever received any of the profits from the canteens operated by Susan Brown-Pavier; 3. that Susan Brown-Pavier ever paid $10,000 per year for operating the second canteen; and 4. that, in her presence, Bruce Brown had said: "You'll be right"; "Don't buy anything we have enough ground to work on".
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: 43 As part of that partnership [Goldenway Amusements], Broderick and Susan acquired ground spaces at Townsville, Cairns, Mackay, Shepparton and Bendigo. Those ground spaces were registered in Broderick's name, but were pooled with the Brown Ground so that it was available to all of the Brown family (the Brown Family Ground). 44 From about 1989, Broderick began looking after the Brown Family Ground for Bruce which required the organisation and allocation of the different spaces at the various shows, as well as the physical movement of the equipment into the designated spaces.
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: I had many conversations with Bruce and Doreen in relation to the Brown spaces. At all times Bruce and Doreen referred to the spaces as "family ground". Amongst the show community the grounds were referred to as "Brown ground". When Bruce was alive I used to speak to him at least once a week and after Bruce's death I spoke to Doreen on a similar frequency. Because of my role in organising family spaces and show spaces more generally both Bruce and Doreen used to call me "Agent". When it was put to Broderick Pavier in cross-examination that he did not have control over Bruce and Doreen's spaces, he said: "I was the agent".
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: …When Bruce Brown was alive, he was the boss. Bruce was in charge of how his grounds were allocated. Since Bruce passed, Doreen was in charge of the ground and passed the running and responsibility of space over to Caine Brown.
For her part, Doreen Brown deposed (at paragraphs 46 and 58 of her second affidavit): 46 …Broderick may have helped as a delegate from time to time, but he did not have control of Brown Ground nor did he control how Brown Ground would be used or allocated. Grounds have never been referred to as "Brown Family Ground". Ownership has been distinguished between Brown Ground and Pavier Ground. … 58 …Following Bruce's death, I became responsible for the family business. Caine and I, with Amanda's help, are responsible for overseeing and running the family business and managing Brown Ground.
Doreen Brown further deposed in her third affidavit (at paragraph 57): From about 1984 to 1986 to December 2018, Bruce and I helped Susan and Broderick out by allowing them to preferentially use any ground spaces that were in either of our names, which Bruce, Caine or I were not going to use or did not intend to rent out to third parties at that particular show, before it was "thrown in the hat". Bruce and I received no payment in exchange.
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): It is not just members of a family that can participate in this practice. Importantly, the allocation of sites via the practice to throw in the hat is only year by year or show by show. The allocation of sites one year may be different the next and this practice does not lead to a permanent allocation of a particular site to a particular showman.
Marjorie Chant deposed (at paragraphs 14 and 15 of her affidavit): 14 I refer to the Affidavit of Gary Johnson sworn 25th November 2021. At paragraphs 19 and 20 Gary Johnson describes the practice of collectively "throw into a hat". This is one of the methods by which members and owners of spaces can trade spaces on a show by show basis. Usually, prior to this process taking place, member and space owners will negotiate amongst themselves for arrangements to allow one member to occupy another member's space for a particular show. Often there is a monetary consideration attached to these arrangements and it involves a lot of what I would call "horse trading". 15 The throw in the hat process usually occurs after the direct negotiations are completed and it is not usual that there is a monetary consideration. The purpose of these processes is to allow members to arrange spaces that best suit their needs for particular shows. For example, a member may have a 24ft space in Queensland but it may only be 6ft deep. If that member wants a larger and possibly deeper space in order to make it more workable for the operation of a particular ride, they may throw it in the hat and then try and obtain a site more suitable for their purposes. It is always the case that the better spaces in terms of size, shape and location will be more valuable to [a] member than lesser spaces and the money that changes hands will often reflect this reality.
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).

Brown v Brown-Pavier

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Judgment (6 paragraphs)

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Legislation Cited (2)

Cases Cited (6)