Last week the NSW Court of Appeal delivered judgment in Pirrottina v Pirrottina [2025] NSWCA 55. The decision determined property of partnership issues, equitable estoppel and equitable interests in land, and the validity of buyout relief over the appointment of a trustee for sale.
The Appellant, Rocco, and the Respondent, Sam, are brothers. Their parents owned and operated a 100 acre farm. The brothers worked the farm, and in 1994 the parents promised Sam that they would build a house for him on the farm. Sam acted in reliance on this promise, including by refusing other offers to acquire land. In 1996 the house was constructed and the keys were handed to Sam.
In 2002 the parents transferred the farming business to the brothers as tenants in common for nil consideration on the express condition it be operated as a partnership. The parents retained control of the land and improvements. After the parents died in 2022, Rocco sought dissolution of the partnership and orders that the farm be sold. Sam cross claimed for a declaration that he had an equitable interest in the house and curtilage, and sought a buy out order for Rocco’s interest in the farm. Sam was successful at trial. Rocco appealed.
The Appeal Court held, amongst other things:
1. That the Appellant’s contention that the 1994 promise did not include the lot on which the promised house stood was a not raised at trial. The appellant did not establish that the trial judge’s finding that the house promise included the land was wrong by “incontrovertible facts or uncontested testimony”; and
2. That the promised lot was incapable of subdivision was immaterial. Sam relied on the promise and did not consider issues of title. The brothers accepted the 2002 transfer on the conditions that the family business and the occupation of the land would go on as it had before. The buy out order in Sam’s favour was upheld;
Consideration of an indefeasibility of title defence was assessed at [104] – [120]. The assessment of relief as between a buyout order or appointment of a trustee is at [137] – [152]. A consideration of the facts telling against the farm being partnership property: [177] – [186].
Kellie Dyon of Banco Chambers appeared for the Respondent. She was led by Mark Ashurst SC.
