Appellant v Respondent

1 On 20 August 2019, I delivered reasons for judgment ('August 2019 reasons') concerning an appeal brought by the appellant ('Michael')[1] against a magistrate's assessment of compensation payable to the respondent ('Max') for Michael's breach of a representation regarding the entitlement of Max to live in relocatable home ('dwelling') on a property owned by Michael rent-free for the rest of his life.[2]

2 The August 2019 reasons set out the background facts to this proceeding, as follows:

The appellant, Mr Michael Taylor, is the registered proprietor of a property in Youanmite, a small settlement north east of Shepparton ('property'). The respondent, Mr Maxwell Taylor, is his father. The respondent was the plaintiff in a proceeding in the Magistrates' Court at Shepparton, and the appellant was the defendant. The dispute between father and son arose after the appellant in effect evicted the respondent from the property, where the respondent lived in a dwelling moved to the property in 1995 ('dwelling'). The dwelling had been purchased by the respondent and his late wife with the purpose of relocating it to the property. Prior to that time they lived in suburban Melbourne.

The relationship between the appellant and the respondent soured after the respondent's late wife (the appellant's mother) died in 2012, and a friend of the respondent, Ms Lorraine Everett, moved into the dwelling in 2014. Following the respondent's departure from the property, the respondent brought a claim against the appellant for breach of contract and/or relief on the basis of promissory estoppel.

After a hearing held over two sitting days, the learned Magistrate rejected the claim for breach of contract, but found that the respondent had made out a case of promissory estoppel.

In his written outline of submissions, the appellant summarised the key findings of the learned Magistrate, as follows:

(a) the respondent had assumed and/or expected that a legal relationship had existed between himself and the appellant for a grant of a licence for the appellant's parents (the respondent and his late wife) to live on his land in the relocatable home for the rest of their lives, and that the appellant would not be free to withdraw from the relationship;

(b) the appellant induced the respondent to adopt that assumption or expectation;

(c) the respondent did act in reliance on the assumption or expectation in so far as he and his late wife incurred expenses in the cost of buying, moving, and fitting out the relocatable home;

(d) the appellant knew and/or intended that the respondent and his late wife would act in reliance on the assumption and/or expectation;

(e) in causing the respondent to leave the property, the appellant caused damage to the respondent in the loss of the use of the relocatable home, its value and costs associated with it, and the respondent had since May 2014 been incurring rent at a cost of $125 per week, being the respondent's half share of the cost of the rental property.

As a consequence of these findings, the learned Magistrate ordered that:

(a) the appellant pay the respondent the sum of $100,000;

(b) the appellant pay the respondent penalty interest from the commencement date of the proceeding; and

(c) the appellant pay the respondent's costs of the proceeding.

In respect of (a) above, the learned Magistrate found that but for the jurisdictional limit of the Magistrates' Court, the respondent would have been entitled to damages (more accurately, equitable compensation), of $111,500.[3]

3 Michael appealed to this Court on a question of law pursuant to s 109 of the Magistrates' Court Act 1989 (Vic), challenging the learned magistrate's assessment of the compensation payable by Michael to Max. The primary ground of appeal[4] was what was described as the "double counting issue", based upon the learned magistrate's determination that Max was entitled to recover an amount representing his (and his late wife's) expenditure on the dwelling (that is, compensation reflecting the detriment Max had proved he had incurred in reliance upon Michael's promise) along with an estimate for the past and future rental costs incurred by Max as a result of being evicted from the dwelling (that is, compensation for his disappointed expectations). I agreed that the award of compensation for both heads of loss amounted to impermissible double counting, and allowed the appeal.

4 Following delivery of the August 2019 reasons, on 4 September 2019 I made orders that the decision of the learned magistrate be set aside, and the question of the assessment of damages be remitted to the Magistrates' Court to be conducted afresh and determined according to law ('remitter').

5 The August 2019 reasons provided relevantly, as follows:

It seems that it was the learned Magistrate's intention to compensate the respondent for both his reliance loss and his expectation loss, and in doing so (as best she could given the evidentiary difficulties she faced) she fell into error, in that, by making an award for both wasted costs and disappointed expectations, she engaged in impermissible double counting.

I agree with the submissions of counsel for the respondent that the respondent was entitled to compensation for the appellant resiling from his promise to allow the respondent to remain at the dwelling rent free for the rest of his life, and that the particular features and benefits associated with living at the dwelling (as opposed to living in other accommodation of a lesser standard) were relevant matters to be taken into account in calculating that compensation, given that compensation was payable for the appellant's failure to make good the representation he had made. However, the proper approach to compensation in that regard would have been to calculate the damages from the date of the respondent's departure from the property based upon a notional rental value for the dwelling, as opposed to the rent actually paid by the respondent for alternative accommodation after the date of his departure from the property.

I do not agree that the sum of $35,000 should be accepted as a proxy for any discrepancy between the rental value of the dwelling and rent that the respondent is actually paying, being, in effect, the additional value of the respondent's disappointed expectations. Rather, it was clear from her reasons that the learned Magistrate endeavoured to calculate, as best as she was able, the actual detriment incurred by the respondent, and add that sum to the amount necessary to compensate him for his inability to remain at the property going forward. There is no logical basis for the value of the respondent's expenditure which is said to constitute his detriment to be equivalent to his compensable disappointed expectations. Accordingly, the appeal should be allowed.[5]

6 After I made orders on 4 September 2019, it appears that there was some debate between the parties as to the scope of the remitter, and in particular, whether the parties would or should be permitted to adduce fresh evidence regarding the quantum of any equitable compensation payable to Max. Max submitted that those orders did not permit the parties to adduce fresh evidence. In response, Michael submitted as follows:

The Plaintiff[6] has a judgment on liability only. His damages are presently at zero. He still bears the burden of satisfying the Court of his damages. Her Honour has given a clear indication to the parties on the proper method for the calculation of the Plaintiff's damages. However there is no evidence before the Court that enables the Court to calculate the Plaintiff's damages in accordance with this indication. Thus, the burden of proof lying with him, it falls to the Plaintiff to introduce such evidence, and for the Defendant to be afforded the opportunity to respond. The Defendant submits that 'afresh' is to be interpreted in this context. This accords with the procedure outlined in r 49.01 of the MCGCPR[7] and the SCGCPR[8].

The Defendant therefore submits that the proper conduct for the assessment of damages is outlined in Orders 51 and 49 of the SCGCPR - it ought to be conducted in the manner of a hearing/trial.

Further to the above, whilst these submissions are not the proper venue to ventilate the issues, it is reasonably foreseeable that the rental value of the dwelling may be significantly less than the rental value of the alternative accommodation owing to location, amenity, unique features of the property. Whilst Her Honour ordered that the parties are not to be bound by earlier findings (and notwithstanding Her Honour's comments about the proper measure of damages) the Defendant notes that the Plaintiff's interest in the property was found to be that of a licence. The value of a licence is inherently less than the value of a lease. To make a decision with the evidence as it currently stands may unfairly prejudice the Defendant and may lead the court into error.

7 Following the filing of submissions concerning the scope of the remitter, the learned magistrate convened a hearing on 4 December 2019. During the course of the hearing her Honour made the following remarks:

[referring to paragraph 42 of the August 2019 reasons] ... her wording is with respect to the proper approach, but the manner in which those comments are referred to in paragraph 42 is not a direction in my view that that is the only method by which damages could've been calculated.

8 The learned magistrate acceded to Max's submissions that while the parties could file further submissions regarding the quantum of equitable compensation Max should be awarded, the parties should not be able to adduce and rely upon fresh evidence. No further hearing was held, with the parties providing written submissions to the learned magistrate for the purposes of the remitter. Neither party took issue with the learned magistrate taking into account the ABS Life Tables for the purpose of quantifying the equitable compensation payable to Max.

9 In his written submissions filed on 16 January 2020, Max submitted, in summary, as follows:

(a) the full $100,000 (the jurisdictional limit of the Magistrates' Court) should be awarded to Max, alternatively, any award should be based upon Max's past and future rental payments, stating that:

Had the expectation at the heart of the estoppel been satisfied, [Max] would not have been compelled to seek or pay for an alternative residence at all.

(b) by reason of Michael's promise, Max had an expectation of permanent residency, given his transfer of his wealth from a freehold property into the dwelling in reliance upon Michael's promise. Part of the detriment incurred by Max arising from Michael resiling from his promise was the rental costs he has incurred and will incur;

(c) my statement in the August 2019 reasons to the effect that compensation should be calculated according to the notional rental value of the dwelling ('comment') was made in the context of the double-counting issue. As such, the learned magistrate was free to exercise the Court's equitable jurisdiction flexibly and appropriately, and in doing so, could properly include the sum of $35,000 originally awarded as compensation for Max's disappointed expectations in addition to the sum awarded for past and future rental payments; and

(d) Max's submissions concluded as follows:

... it is difficult to assess the value of an expectation to live in particular place. Not simply to enjoy particular amenities but to live in a particular place that one has built for oneself. To say that the appropriate basis to assess that expectation is simply to look at comparable properties belies the nature of the expectation which was not merely a commercial one. The defendant did not merely promise a place to live and a right to live in the relocatable home or a comparable property. Had he done so, the defendant would always have been at liberty to simply evict the plaintiff as long as he was given access to a comparable property. That plainly was not the defendant's promise nor the plaintiff's expectation. Rather the defendant promised the plaintiff he could live on the defendant's farm, and bring a relocatable home on to it. The significance of that is that the plaintiff was entitled to expect that his residence in the relocatable home was secure.

That is not to say that the $35,000 should be awarded to allow the plaintiff to recoup his investment. An award of that nature would traverse Daly AsJ's judgment.

But the Court is entitled to compensate for the deprivation of the plaintiff's expectation that he would be entitled to live in that particular house and enjoy the fruits of his efforts in building it up. The Supreme Court accepted that the plaintiff was entitled to compensation for 'the particular features and benefits associated with living at the dwelling' over and above the expectation that he would have a residence and therefore not have to pay rent elsewhere.

The real question is whether the $35,000 is an appropriate sum to compensate that expectation. The $35,000 is not an arbitrary sum that, having arisen in evidence, the plaintiff is seeking to use as a proxy for the loss. Rather, there is a clear logical connection between the $35,000, being the cost of the particular relocatable home, and the expectation that he would be at liberty to enjoy that particular relocatable home. $35,000 was the cost of the very thing of which the plaintiff has been deprived, and that is sought to be compensated. An award of that amount would serve the additional purpose of preventing (to some extent) the defendant from obtaining an unwarranted benefit at the expense of the plaintiff, being the relocatable home. So much is an objective of equity.

Having regard to the authorities which identify a significant flexibility in the equitable discretion to award compensation, a kind of flexibility which would not exist at common law, the learned Magistrate has the discretion to award $35,000 to compensate, and ought to do so.

10 Michael's written submissions to the learned magistrate can be summarised as follows:

(a) he submitted that the effect of the orders made on 4 September 2019 was to release the parties from their original submissions regarding the assessment of compensation;

(b) he submitted that remedies for promissory estoppel are directed at making good the relevant expectation;

(c) in the current case, the relevant expectation was a licence to occupy the dwelling;

(d) given the hostility between the parties, making good the expectation (that is, allowing Max to live at the dwelling for the rest of his life), was not the relief sought, and was in any event impractical;

(e) he referred to the relevant authorities concerning the remedy of equitable compensation, observed that the compensation payable to Max is to be calculated by reference to his disappointed expectations, and submitted:

Thus the measure of [Max's] compensation is to be made by reference to his expectation, however, if this amount is uncertain, or extravagant or out of all proportion to outlay, he should simply be reimbursed for his outlay.

(f) consequently, Michael submitted that the rental value of the dwelling (being $31,482.69) or the sum of $35,000.00, being the detriment incurred by Max ought to be awarded to Max;

(g) alternatively, the rate notice for the dwelling provided a net annual value of $5,350.00, as provided by s 254 of the Local Government Act 1958 (Vic);[9]

(h) the calculation of compensation should reflect the Court's finding that the expectation was a licence for both Max and his late wife to occupy the dwelling, such that the sum calculated should be divided in two. Multiplying the net annual rental value by the period calculated according to the ABS Life Tables and dividing by two results in compensation of $31,482.69 being payable to Max;

(i) alternatively, given the inherent uncertainties of making an award based upon life expectancy, the learned magistrate should award Max the sum of $35,000.00, being the detriment incurred by Max, such as to do the "minimum equity" required to compensate Max for Michael's departure from his promise; and

(j) the past and future rent paid and payable by Max is not an appropriate basis for compensation for Michael's departure from the assumed rights and obligations arising out of his promise, but rather represents consequential losses analogous to what might be payable as damages in contract or tort.

(a) any award of compensation within the jurisdictional limit of the Magistrates' Court would not be disproportionate given the detriment Max has suffered by reason of being deprived of the home he was promised for the rest of his life;

(b) he rejected the contention that any award based upon the rental value of the dwelling or replacement rental should be divided in two, as Michael's promise to Max and his late wife was not conditioned on both parties being alive;

(c) the use of the ABS Life Tables to calculate any compensation based upon the value of the dwelling or alternative accommodation cures any uncertainty in any such calculation;

(d) contrary to Michael's submissions to the contrary, the statement by Nettle JA in Donis v Donis[10] relied upon by Michael in his submissions confirms that the compensable loss is not the price paid for something, but the expectation of which a person has been deprived; and

(e) Max's submissions concluded as follows:

(i) Max seeks the compensation for past rental payments and estimated future rental costs (being $76,500.00); or

(ii) alternatively, the net annual value of the dwelling as shown by the rates notice in evidence, save that it should not be halved (that is, $62,965.38).

12 The learned magistrate delivered her reasons on 16 April 2020 ('April 2020 reasons'), and ordered that Max's claim in damages be assessed in the sum of $76,500.00, comprising:

(a) the rent incurred by Max between 13 May 2016 and 13 July 2018 in the amount of $14,215.00; and

(b) Max's rental loss from 14 July 2018 to date[11] and continuing in the amount of $62,375.

13 In the April 2020 reasons the learned magistrate stated as follows:

In accordance with Her Honour Associate Justice Daly's comments "the respondent (the Plaintiff in this proceeding) was entitled to compensation for the appellant (the Defendant in this proceeding) resiling from his promise to allow the respondent to remain at the dwelling rent free for the rest of his life, and that the particular features and benefits associated with living at the dwelling (as opposed to living at other accommodation of a lesser standard) were relevant matters to be taken into account in calculating that compensation, given that compensation was payable for the appellant's failure to make good the representation he had made.

Her Honour went on to remark that the proper approach to compensation in that regard would have been to calculate upon a notional rental value for the swelling, as opposed to the rent actually paid by the respondent.

14 In regard to Michael's submissions concerning the calculation of the notional rental value of the dwelling, the learned magistrate observed that:

The Defendant has made further submission as to what a notional rental value for the dwelling ought to be, based on the meaning of "net annual value" of the property with reference to s 265 of the Local Government Act 1958, prior to the transfer of the valuation provisions to the Valuation of Land Act 1960. In the 1958 Local Government Act, the expression "net annual value" was calculated on the basis of "that is to say at the rent at which the same [the property] might reasonably be expected to let from year to year free of all usual tenant's rates and taxes and deducting therefrom the probably [sic] annual average cost of insurance and other expenses (if any) necessary to maintain such property in a state to command such rent (italics added)". Thus, the Defendant submits, the net annual value referred to in the 2015 Moira Shire Council Rates Notice dated 12 August 2015 is the nominal figure for the rental income the dwelling might reasonably be expected to generate year to year allowing for the deduction of landlord insurance and other maintenance expenses.

If this Court relies upon the net annual value of the dwelling ... as set forth in the 2015 rates notice, the net rental that the dwelling might reasonable [sic] be expect to let at from year to year is $350, that is, net of the landlord's insurance and expenses. Net weekly rental on this basis for the dwelling would be $102.88. The Court has no evidence before it upon which to base any calculation of the insurance and maintenance expenses on behalf of the Defendant.

This Court does however have the evidence of the Plaintiff and his friend Ms Everett that the Plaintiff has incurred rent of $125 per week since his eviction from the dwelling on 13 May 2016.

15 Accordingly, the learned magistrate concluded there was insufficient evidence before her to calculate compensation based upon a notional rental value for the dwelling. However, the learned magistrate accepted Max's submission that he should be awarded compensation based upon his actual past and future rental costs, but rejected his submissions that he ought to be paid an additional sum of $35,000 to compensate him for his disappointed expectations. She rejected Michael's submission that as the promise was made to both Max and his deceased wife, Max's claim for compensation based upon his past and future rental payments should be reduced by half. She found that the calculation of compensation had Max and his wife been evicted from the dwelling, or either of them, would have been the same, being the cost of rent incurred by reason of Michael's failure to make good his promise, noting that Max had mitigated his loss by living with Ms Everett, with whom he shared rental costs.

16 Her Honour also referred to the fact that Michael derived a commercial benefit from the arrangement between him and his parents, in that he had an additional dwelling on his property, which would add value to his property, and provide him with the opportunity to derive additional rental income from the dwelling if he chose to do so. She noted that her calculation of compensation based upon past and future rental costs made no adjustment for the risk that Max might be unable to mitigate his losses by continuing to live with Ms Everett. She concluded her remarks by saying:

I consider this award of damages a modest and reasonable value for [Max's] disappointed expectations.

17 In his notice of appeal filed on 18 August 2020, Michael seeks the following relief:

(a) this Court should set aside the orders made on 16 April 2020 ('16 April orders')[12] and order in lieu that Max be awarded nominal damages only;

(b) alternatively, the Court should set aside the 16 April orders and remit the proceeding to the Magistrates' Court for a further assessment of compensation according to law; and

(c) alternatively, the Court should set aside the 16 April orders and make such orders in their place as the Court sees fit.

1. Was it open to the learned Magistrate, in the face of the judgment of Associate Justice Daly published on 20 August 2019 as [2019] VSC 533 to the effect that compensation should be calculated by reference to the notional annual rental value of the dwelling [on Michael's property] ... to award the Respondent compensation by reference to the rent actually paid and payable by the Respondent for alternative accommodation?
2. Was it open to the learned Magistrate to award to the Respondent substantial damages rather than nominal damages in circumstances where:

(a) the Respondent led no evidence of the notional annual rental value of the dwelling; and

(b) evidence of the notional annual rental value of the dwelling was readily available?

1. In assessing compensation payable to the Respondent, the learned Magistrate erred in awarding the Respondent a sum calculated not by reference to the notional annual rental value of the dwelling but by reference to the rent actually paid and payable by the Respondent for alternative accommodation.
2. The learned Magistrate erred in awarding the Respondent substantial damages rather than nominal damages in circumstances where:

(c) the Respondent led no evidence of the notional annual rental value of the dwelling; and

(d) evidence of the notional annual rental value of the dwelling was readily available.

19 In his written submissions, Michael submitted that the learned magistrate wrongly awarded Max a sum calculated by reference to the rent paid and payable by Max for alternative accommodation, rather than calculated by reference to the notional rental value of the dwelling. Michael submitted that the learned magistrate also erred in awarding Max substantial damages in circumstances in which Max led no evidence of the notional rental value of the dwelling, in circumstances where such evidence was readily available.

20 Michael submitted that, in the August 2019 reasons, I considered that compensation should be confined to compensation for Max's disappointed expectations, and indicated that such compensation should be based upon the notional rental value of the dwelling, rather than the rent actually paid and payable by Max for alternative accommodation after he left the dwelling.

21 In that regard, Michael referred to the comment, as follows:

However, the proper approach to compensation in that regard would have been to calculate the damages from the date of the respondent's departure from the property based upon a notional rental value for the dwelling, as opposed to the rent actually paid by the respondent for alternative accommodation after the date of his departure from the property.[13]

22 Michael also referred to the following passage from the August 2019 reasons:

Given the observations I have made regarding the manner in which the respondent could have put his case regarding the calculation of expectation damages (that is, based upon the rental value of the dwelling, rather than the rent actually paid and payable by him after departing the property) ...[14]

23 Michael submitted that the above passages contain essentially the same observation twice, which indicated that the comment went beyond mere obiter dicta.

24 In this regard, Michael referred to the decision of the Supreme Court of New South Wales in Re Sutherland; French Caledonia Travel Service,[15] as follows (citations omitted):

There is no Australian authority which is binding on me and is to the contrary of the dictum of the Court of Appeal in Keefe's Case that the decision of Kearney J in Hagan v Waterhouse should be approved. That dictum of the Court of Appeal is itself not binding on me. However, that the Court of Appeal pronounced that dictum at all is a matter which, from my position in the judicial hierarchy needs to be accorded considerable weight.[16]

25 Accordingly, Michael submitted that, while the comment was not, strictly speaking, binding on the learned magistrate, the comment should nevertheless have carried considerable weight. Michael went on to submit that the learned magistrate's reasons flew in the face of carefully, seriously considered dictum in the August 2019 reasons, which set the parameters of the remitter.

26 Michael submitted further that the orders made on 4 September 2019 made clear that the re-assessment of damages was to be conducted afresh, with neither party bound by the findings made previously, or by the manner in which they put their case previously. Michael went on to submit that it is therefore clear that the door was left open for further evidence to be adduced by either party in connection with the re‑assessment of damages.

27 Michael submitted that Max failed to adduce any evidence of the rental value of the dwelling. However, Michael noted that there was some evidence of the rental value of the dwelling in the form of the "net annual value" of the dwelling as shown in a 2015 rate notice.

28 Michael noted that the learned magistrate identified a potential difficulty with using the 2015 rate notice to determine the rental value of the dwelling, being that that definition of "net annual value" in the Local Government Act 1958 (Vic) and its successor legislation was the rent at which the property "might reasonably be expected to let from year to year free from all the usual tenant's rates and taxes and deducting therefrom the probable annual average cost of insurance and other expenses (if any) necessary to maintain the property in a state to command that rent". The difficulty with applying that formula was that there was no evidence before the learned magistrate as to the deductions relating to the insurance and maintenance costs applicable to the dwelling.

29 Michael submitted that the learned magistrate proceeded to assess damages on the basis of the evidence led by Max at the initial trial regarding the actual rent paid and payable by him, which was what I had determined in the August 2019 reasons was not the correct approach. Michael submitted that the onus was on Max to adduce evidence as to the notional rental value of the dwelling, which would have been a relatively simple matter of submitting a report prepared by an expert valuer.

30 Michael submitted that, in those circumstances, it was not open to the learned magistrate to assess damages on the rent paid and payable for alternative accommodation, and that doing so constituted appellable error.

31 In relation to whether there should have been an award of substantial damages at all, Michael submitted, that while as a general rule difficulties facing a court in assessing the quantum of damages should not defeat the remedy of damages, with the court required to do the best it can with the available evidence, even if resort to guesswork is required, the position is different where a plaintiff fails to adduce evidence which is otherwise readily available.

32 Michael referred to the decision of the Court of Appeal in Keys Consulting Pty Ltd v CAT Enterprises Pty Ltd,[17] as follows (emphasis in original):

... there is a distinction to be drawn between a situation that does not permit damages to be assessed with certainty, and one in which the plaintiff has simply failed to produce evidence that was otherwise reasonably available. The plaintiff is entitled to have the court do the best it can in the former case, but not in the latter. Where a party is able to produce evidence about loss and damage, they must do so with as much certainty and particularity as is reasonable in the circumstances. This principle is long established.[18]

33 Michael also referred to the following passage from the decision of the Court of Appeal in Longden v Kenalda Nominees Pty Ltd (emphasis in original):[19]

Thus, it is for the plaintiff to prove both the fact of loss arising from the defendant's breach and the amount of the loss. Moreover, the plaintiff is required to establish both matters with as much certainty and particularity as is reasonable in the circumstances. Consequently, where a plaintiff could have produced evidence of loss but has simply failed to do so, it ordinarily means that it has failed to prove its case on damages (so that, where the claim is based on breach of contract, the plaintiff would only recover nominal damages). There are, of course, situations where a plaintiff cannot adduce precise evidence of the amount of loss, in which case the court will do its best in that regard and will estimate the damages and, where appropriate, will engage in a certain amount of guesswork.[20]

34 Michael submitted that Max should not have been awarded substantial damages, as the assessment of damages was required to be made on the basis of the notional rental value of the dwelling. Appropriate evidence as to the notional rental value of the dwelling was reasonably available to Max, but was not adduced at the remitter. Michael submitted that the award of substantial damages in those circumstances thus also constituted an appellable error.

35 Michael referred to the decision of the Supreme Court of New South Wales in Union Bank v Downes[21] as authority for the proposition that, as a general rule, a court in equity will not direct an inquiry unless there is evidence of more than nominal damage. Michael submitted that where there is no evidence as to damage, no enquiry will be directed by the Court.[22]

36 Max submitted that the appeal should be dismissed, as the grounds of appeal were being raised for the first time in Michael's notice of appeal, and were, in any event, unmeritorious.

37 Max submitted that the grounds of appeal essentially assert that the learned magistrate was bound to assess damages by reference to the notional rental value of the dwelling and that, by implication, it was not open for the learned magistrate to measure Max's loss by reference to the actual loss caused by Michael's failure to uphold the expectation he created by his promise to Max.

38 Max submitted that these grounds of appeal raise new issues, and that Michael should not be permitted to rely upon them.

39 Max summarised the principles in relation to raising a new point on appeal as follows (citations omitted):

1. [i]n general, a party is bound by the way it conducts it case at trial and it is not open to a party which has elected not to pursue a particular course at trial then to argue on appeal points not taken below;
2. [e]xcept in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case has been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so;

1. [m]ore than once it has been held by this Court that a point cannot be raised for the first time upon appeal when it could possibly have been met by calling evidence below. Where all the facts have been established beyond controversy or where the point is one of construction or of law, then a court of appeal may find it expedient and in the interests of justice to entertain the point, but otherwise the rule is strictly applied; and

1. [e]ven where the new point sought to be raised is a point not capable of being affected by further evidence, such as an argument as to the construction of a statute or document, the court may not permit it to be relied upon.

40 Max submitted that Michael's grounds of appeal were not raised earlier in the proceeding, including at the original hearing, the first appeal or in the course of the remitter. Max observed that, contrary to Michael's submissions at the hearing on 4 December 2019, where he made submissions as to what amount the learned magistrate should award as appropriate compensation, Michael now submits for the first time that no compensation should be awarded at all. It was never contended before the learned magistrate that there was no evidence upon which she could calculate appropriate compensation for Max.

41 Max submitted that he will suffer significant prejudice if Michael is permitted to raise new arguments on appeal. Max submitted that he has already incurred liability to pay solicitor-client costs of the original hearing, the first appeal and the remitter, and the parties have filed and been required to consider numerous sets of written submissions. Max submitted that, due to Michael's appeals, it is doubtful Max will see any fruits of the litigation, even if the current appeal is dismissed.

42 Max went on to submit that allowing new grounds of appeal at this stage of the proceeding would undermine the overarching obligations contained in the Civil Procedure Act 2010 (Vic) ('CPA'). Max submitted that the following factors lead to the conclusion that the current appeal ought be dismissed:

(a) the history of the proceeding, including the prejudice Max has suffered and will continue to suffer

(b) the general principle that new points should not be permitted on appeal;

(c) the overarching obligations in the CPA; and

(d) the absence of any explanation for raising the new points on the second appeal.

43 Max submitted that Michael has not demonstrated any exceptional circumstances such as to justify the waste of court resources and the depletion of the financial resources of the litigants involved in raising new points on appeal.

44 In the alternative, Max submitted that Michael's grounds of appeal are unmeritorious. Max submitted that Michael relies heavily upon the comment, asserting that the comment was the ratio decidendi of the first appeal, and now contends that the learned magistrate was bound to assess the entitlement to damages by reference to the notional rental value of the dwelling.

45 In response to Michael's submission that the failure to adduce evidence as to the rental value of the dwelling at the remitter was "perplexing", Max submitted that the question of the scope of the remitter was thoroughly debated in written submissions and at the hearing on 4 December 2019. This was not an occasion where there was evidence available, or readily obtainable, which Max failed to adduce: the learned magistrate refused to permit the parties to adduce additional evidence for the purposes of the remitter.[23]

46 Max submitted further that, if not dismissed on the ground that the appeal impermissibly raises fresh issues, the appeal should be dismissed for the following reasons:

(a) the contention that the learned magistrate was bound by the comment to assess damages by reference to the notional rental value of the dwelling misinterprets the August 2019 reasons;

(b) if the August 2019 reasons did state that damages should be assessed by reference to the notional rental value of the dwelling, such comment was merely obiter dicta, and did not bind the learned magistrate; and

(c) if Michael is correct in submitting that even if the August 2019 reasons required the learned magistrate to assess damages by reference to the notional rental value of the dwelling, the proper measure of equitable compensation did not require such a determination and consequently the learned magistrate was not in error.

47 Max submitted that the comment was made in the context of the Court dealing with the question of how the $35,000 awarded as "reliance damages" could be awarded in addition to an amount calculated in accordance with Max's past and future rental costs. Max submitted that in the August 2019 reasons I acknowledged that Max had an expectation for a particular amenity and was entitled to be compensated for that, but that adding the $35,000 (the detriment incurred by Max in reliance upon Michael's promise) to the rental loss amounted to impermissible double‑counting. In this regard, Max referred to the following passage from the August 2019 reasons:

I do not agree that the sum of $35,000 should be accepted as a proxy for any discrepancy between the rental value of the dwelling and rent that the respondent is actually paying, being, in effect, the additional value of the respondent's disappointed expectations. Rather, it was clear from her reasons that the learned Magistrate endeavoured to calculate, as best as she was able, the actual detriment incurred by the respondent, and add that sum to the amount necessary to compensate him for his inability to remain at the property going forward. There is no logical basis for the value of the respondent's expenditure which is said to constitute his detriment to be equivalent to his compensable disappointed expectations. Accordingly, the appeal should be allowed.[24]

48 Max submitted that the reference to "respondent's expenditure" in the passage above was a reference to the $35,000 spent by Max and his late wife on the dwelling, and not Max's expenditure generally. Max submitted further that the comment was made without reference to authority, and was made in the context of the discussion about the double-counting issue. Max submitted that it does not follow from the comment that he could not claim at least one element of his expectation, namely his expectation that he would have free accommodation for the rest of his life. Max submitted that the learned magistrate followed the August 2019 reasons by removing the sum of $35,000 from the total award, thus addressing the double-counting issue.

49 Max submitted further that, even if the comment did amount to a finding that Max was restricted to seeking equitable compensation by adducing evidence as to the notional rental value of the dwelling, then that finding is incorrect and the learned magistrate did not err in failing to apply it.

50 Max submitted that there is no reason why equitable compensation should be restricted in a manner which did not compensate litigants for their actual loss caused by the denial of an expectation. Max submitted that such a conclusion would imply that the rules governing equitable compensation are more restrictive than those governing damages at common law.

51 In this regard, Max referred to the decision of the High Court in Sidhu v Van Dyke,[25] as follows:

In The Commonwealth v Verwayen, Mason CJ described estoppel as "a label which covers a complex array of rules spanning various categories". His Honour went on to say of "titles such as promissory estoppel, proprietary estoppel and estoppel by acquiescence" that they are all "intended to serve the same fundamental purpose, name 'protection against the detriment which would flow from a party's change of position if the assumption (or expectation) that led to it were deserted'".[26]

52 Max submitted that the following principles apply to the assessment of compensation in the current case:

(a) equitable remedies are discretionary;

(b) equitable remedies are flexible;

(c) a court exercising its equitable jurisdiction endeavours to do what is practically just;

(d) it is not necessary that any loss claimed be capable of being measured with precision; and

(e) the High Court has taken an expansive view of what is necessary to achieve the minimum equity. In Giumelli[27] the High Court rejected the "minimum equity" approach referred to in Commonwealth v Verwayen,[28] stating that a broader view of the requirements to "do equity" must be taken.

53 Accordingly, in addressing compensation based upon Max's past rental payments and an estimate of his future rental costs, the learned magistrate acted consistently with principle, and that there was no error of law on her part.

54 Michael submitted that the grounds of appeal were not new, and had been raised several times during the course of the hearing on 4 December 2019. In this regard, Michael referred to the transcript of the hearing on 4 December 2019, and submitted that the question of the appropriate basis for calculating compensation in accordance with the comment was raised on a number of occasions during the hearing on 4 December 2019.

55 Michael submitted that, accordingly, nothing new had been raised in the grounds of appeal. The issues raised by the grounds of appeal had been "on the table" since the delivery of the August 2019 reasons. Michael went on to submit that the argument that no compensation should be awarded at all is a matter arising from the remitter, as there can be no order for substantial damages without any evidence. Michael submitted that it was not necessary or even proper to have raised this argument at an earlier point in the proceeding.

56 Michael submitted that the comment made clear the exercise to be undertaken at the remitter, and that it would not have been difficult for Max to put on evidence of the notional rental value of the dwelling before the learned magistrate. Michael submitted further that Max's submission that the notional rental value of the dwelling could be determined on the basis of evidence of rental actually paid for an alternative dwelling contravenes the findings in the August 2019 reasons, and that, in basing the assessment of damages on the rental paid by Max for alternative accommodation, the learned magistrate fell into error.

57 Accordingly the key issues for determination in this appeal are:

(a) whether Michael should be permitted to rely upon his grounds of appeal; and

(b) if so, whether the learned magistrate erred in awarding compensation by reference to the rent paid and payable by Max for alternative accommodation following his eviction from the dwelling.

58 Turning first to Max's submissions that Michael should not be permitted to agitate his grounds of appeal, on the basis that the grounds of appeal raise matters which were not raised before the learned magistrate, or in the first appeal, it is evident from the transcript of the hearing before the learned magistrate on 4 December 2019 that the issues with which the grounds of appeal are concerned were ventilated before her Honour, and could not therefore be said to be arguments which were not put by Michael when he had an opportunity to do so. Accordingly, it is not necessary for present purposes to canvass the authorities concerning whether a party is able to rely upon new matters when pursuing an appeal.

59 To elaborate, the first ground of appeal, which relates to the basis upon which the learned magistrate calculated the compensation payable to Max for his disappointed expectations, is largely reliant upon the comment, which put forward a methodology by which compensation for Max's disappointed expectations could be calculated. That the issue was not raised by Michael at the original hearing before the learned magistrate or at the first appeal did not, in my view, preclude Max from raising the question of whether any departure from that methodology was lawful and appropriate following the delivery of the August 2019 reasons. While, as will become clear, I disagree with Michael as to whether the methodology referred to in the comment was binding on the learned magistrate, I accept that upon the remitter, Michael was entitled to rely upon the comment, and the transcript of the hearing on 4 December 2019 discloses that he did so.

60 Max complains that the second ground of appeal, being what can be described as the "no evidence" ground, was not raised by Michael at the hearing on 4 December 2019. I accept that Michael's contentions in that regard were not put in the direct manner as they have been put in the notice of appeal, but I disagree that the issue was not raised before the learned magistrate in the remitter. That much is clear from the following extract from the transcript of the hearing on 4 December 2019:

MR BERGER: As with respect to costs, but in my submission that would be independent of the measure of damages - this refactors [sic] how the original cases were put and given what Her Honour's indicated, the crux of my submissions is there's a vacuum of evidence on point and that's not a fault of the way the party ran that case, it's just an incident of the pleadings and the way it was run.

MR BERGER: And I agree with my submissions on ambiguity or the silence of that point. We do need to look outside for the - look at the broader context and construe those Orders. I guess the crux of my submission is that the Court is not in receipt of the correct evidence that could lead to the correct measure of damages and I think we're just repeating ourselves here.

MR BERGER: Ok. What moved Your Honour at hearing to make the Order for expectation damages was just a few lines in the transcript about the rental that the plaintiff and his partner were paying at the new rental property. Of course there are [sic] evidence enough to get that result but I still must point to the vacuum of direct evidence toward the true measure of expectation.

63 It should be noted that those submissions were made prior to the learned magistrate's decision not to allow the parties to adduce further evidence. What was being advanced on behalf of Michael before the learned magistrate was that the evidence previously led at trial did not address the methodology referred to in the comment.

64 Turning now to the first ground of appeal, Michael contended that the learned magistrate erred in awarding Max compensation calculated not by reference to the notional rental value of the dwelling but rather, by reference to the rent already paid or payable by Max for alternative accommodation. This ground relies upon Michael's contention that the comment bound the learned magistrate to calculate damages to be calculated by reference to the notional rental value of that dwelling, submitting that, as the comment formed part of the ratio decidendi underpinning the August 2019 reasons, the learned magistrate was bound to calculate compensation in that way, and her failure to do so amounted to an appellable point of law.

65 In Woolcock Street Investments Pty Ltd v CDG Pty Ltd,[29] McHugh J described the distinction between ratio decidendi, the rule of a case and the holding of a case as follows:

The common law distinguishes between the holding of a case, the rule of the case and its ratio decidendi. The holding of a case is the decision of the court on the precise point in issue - for the plaintiff or the defendant. The rule of the case is the principle for which the case stands - although sometimes judges describe the rule of the case as its holding. The ratio decidendi of the case is the general rule of law that the court propounded as its reason for the decision.[30]

66 In Garcia v National Australia Bank Ltd,[31] Kirby J stated, as follows:

It is fundamental to the ascertainment of the binding rule of a judicial decision that it should be derived from (1) the reasons of the judges agreeing in the order disposing of the proceedings; (2) upon a matter in issue in the proceedings; (3) upon which a decision is necessary to arrive at that order. Thus, the opinions of judges in dissent are disregarded for this purpose, however valuable they may otherwise be. Judicial remarks of a general character upon tangential questions or issues not necessary to the decision are likewise discarded, however persuasive the reasoning may appear.[32]

67 I do not agree with Michael's submission that the comment was so central to the resolution of the first appeal such as to make it binding upon the learned magistrate at the remitter. In my view, the fundamental issue in the first appeal was the double‑counting issue: that is, my finding that it was open to the learned magistrate to award compensation on a "reliance" basis, or on an "expectation" basis, but not both. That was the legal principle upon which the first appeal was decided. The comment did no more than describe one conceptually sound mechanism by which compensation for Max's disappointed expectations could be calculated: it did not lay down any prescriptive rule which the learned magistrate was required to slavishly follow at the remitter. I agree that, provided that she did not fall into error by engaging in double‑counting, or by failing to apply the general principles governing the award of equitable compensation, her Honour was not constrained by the comment in calculating the appropriate compensation for Max's disappointed expectations.

68 I also agree with the submissions advanced on behalf of Max to the effect that equitable compensation is an inherently flexible remedy. In my view, it would have been open to the learned magistrate to calculate the compensation payable to Max (subject of course to there being an evidentiary foundation for the calculation) on any of the following bases (if not more):

(a) compensation for the detriment Max had incurred in reliance upon Michael's promise, which, on the factual findings of the learned magistrate was the sum of $35,000. This sum could be characterised as the "minimum equity" required to do justice between the parties;

(b) compensation based upon the capital value of the dwelling (which would be difficult to value because it was not on a separate title);

(c) compensation based upon the notional rental value for the dwelling (as suggested by the comment); or

(d) compensation for the actual pecuniary loss suffered by Max as a result of having been evicted from the dwelling (which was the basis upon which compensation was ultimately awarded by the learned magistrate in the 16 April orders).

69 If one was starting with a blank slate, it may well be that the measure of damage most closely aligned with the value of Max's disappointed expectations would be compensation calculated in accordance with the notional rental value of the dwelling, as Michael's promise was that Max could reside in the dwelling for the rest of his life, and enjoy the amenity of doing so. But we are not starting with a blank slate here. There has been a trial, the first appeal, and the remitter. It would have been open to the learned magistrate to allow the parties to adduce further evidence for the purposes of the remitter, but she declined to do so. Her exercise of discretion in that regard has not been challenged, and, given the nature and circumstances of the remitter, and the learned magistrate's concerns about whether the parties were in breach of the CPA by continuing to litigate the dispute between them in the manner they have, her decision to now allow the parties to adduce further evidence would have been difficult to impugn.

70 In choosing to calculate compensation in accordance with (d) above, the learned magistrate did not err in law, noting that, in determining an appropriate remedy for a claim of equitable estoppel, the Court is not restricted to doing the minimum necessary to avoid the detriment incurred by reliance upon the relevant[33]ssumption.33

71 In Donis,[34] the Court of Appeal in stated as follows (footnotes omitted and emphasis added):

Each of the appellants' arguments is to some extent premised on the idea that equitable estoppel "permits a court to do what is required in order to avoid detriment to the party who has relied on the assumption induced by the party estopped, but no more". That idea finds support in some of the judgments in Waltons Stores (Interstate) Ltd v Maher and Commonwealth v Verwayen and in particular in the observations of Mason CJ in Verwayen that:

... equitable estoppel will permit a court to do what is required in order to avoid detriment to the party who has relied on the assumption induced by the party estopped, but no more.

As the more recent decision in Giumelli v Giumelli shows, however, there is no such restriction in cases where the expectation which is encouraged is the acquisition of an interest in property. In such cases the remedy relates to the understanding of the parties and the expectation that has been encouraged. Prima facie the estopped party can only fulfil his or her equitable obligation by making good the expectation which he or she has encouraged. The estopped party, having promised to confer a proprietary interest on the party entitled to the benefit of the estoppel, and the latter having acted upon the promise to his or her detriment, is bound in conscience to make good the expectation. It follows that the detrimental reliance that supports the estoppel need not constitute in any sense a consideration moving to the party bound. It is a unilateral element of the estoppel and not the price paid for it.

The prima facie position will yield to individual circumstances. Principle and authority compel the view that where a plaintiff's expectation or assumption is uncertain or extravagant or out of all proportion to the detriment which the plaintiff has suffered, the court should recognise that the claimant's equity may be better satisfied in another and possibly more limited way. Thus, as was also said in Giumelli v Giumelli, before granting relief the court is required to consider all of the circumstances of the case, including the possible effects on third parties, and to avoid going beyond what is required for conscientious conduct or would do injustice to others. But that does not mean that the court is required to be "constitutionally parsimonious" or that it is necessary for there to be substantial correspondence between expectation and the monetary value of the detriment suffered, or which but for the relief to be accorded would be suffered. The object of the exercise is to do equity and for that purpose "detriment" is no narrow or technical concept. It need not consist of expenditure of money or other quantifiable financial disadvantage so long as it is something substantial. The requirement must be approached as part of a broad inquiry as to whether departure from a promise would be unconscionable in all the circumstances.[35]

72 In Sidhu,[36] the majority of the High Court stated relevantly, as follows:

This category of equitable estoppel serves to vindicate the expectations of the representee against a party who seeks unconscionably to resile from an expectation he or she has created.[37]

73 The majority in Sidhu[38] stated further, as follows:

In Giumelli v Giumelli, Gleeson CJ, McHugh, Gummow and Callinan JJ held that, because the fundamental purpose of equitable estoppel is to protect the plaintiff from the detriment which would flow from the defendant's change of position if the defendant were to be permitted to resile from his or her promise, the relief granted may require the taking of active steps by the defendant including the performance of the promise and the performance of the expectation generated by the promise. That holding is supported by the leading decisions to which this category of equitable estoppel is usually traced.[39]

The appellant's argument, rightly, sought no support from the discussion in cases decided before Giumelli v Giumelli of the need to mould the remedy to reflect the "minimum relief necessary to 'do justice' between the parties". There may be cases where "[i]t would be wholly inequitable and unjust to insist upon a disproportionate making good of the relevant assumption"; but in the circumstances of the present case, as in Giumelli v Giumelli, justice between the parties will not be done by a remedy the value of which falls short of holding the appellant to his promises. While it is true to say that "the court, as a court of conscience, goes no further than is necessary to prevent unconscionable conduct", where the unconscionable conduct consists of resiling from a promise or assurance which has induced conduct to the other party's detriment, the relief which is necessary in this sense is usually that which reflects the value of the promise.[40]

75 The Court of Appeal, in a decision delivered while judgment in the current appeal was reserved, reaffirmed and applied the reasoning of the High Court in Giumelli.[41] In Harris v Harris,[42] the appellant contended that a decision of the trial judge to impose a constructive trust over a number of farming properties on the basis that the respondent's claim for relief for proprietary estoppel was made out was disproportionate, as the relief exceeded the extent of any remedy required to ameliorate the respondent's detrimental reliance and to avoid an unconscionable outcome.

76 The Court of Appeal granted leave to appeal, but dismissed the appeal, noting that in Giumelli[43] the High Court rejected the proposition that equitable relief was limited to the reversal of the detriment incurred by the party entitled to relief.

77 The Court also referred to the decision of the New South Wales Court of Appeal in Delaforce v Simpson-Cook,[44] where Handley AJA, after an extensive review of the authorities, concluded that there was no positive obligation upon a plaintiff to establish that the relief sought was proportionate: rather, in order to deny a plaintiff relief based upon their disappointed expectation, the enforcement of the expectation must be shown to be disproportionate. Further, he also stated that where the expectation was undefined or uncertain, equity would need to fashion relief from the circumstances.

78 The Court of Appeal referred also to the decisions of Donis[45] and Sidhu,[46] and went on to summarise the principles governing the determination of a remedy in a case of proprietary estoppel as follows (omitting footnotes):

• the promisee is prima facie entitled to have the promisor held to the promise or expectation, ie the relief which is necessary is 'usually' that which reflects the value of the promise;
• the court will then consider all the circumstances to determine whether it is necessary to mould or modify the relief to avoid going beyond what is required for conscientious conduct, or to avoid injustice to others. The equity may be satisfied in another more limited way where a plaintiff's expectation or assumption is uncertain, or extravagant, or out of all proportion to the detriment suffered;
• proportionality is a relevant consideration, but it should not be viewed as a 'necessary constitutive element' to be proved by the party seeking relief;
• the character of the promise/expectation is also a relevant consideration, including whether it is vague or imprecise;
• while the character of the detriment is a relevant consideration, the exercise is not one of 'weighing detriment too minutely in order that it be converted into some equivalent of cash or kind', nor does it require 'substantial correspondence' between the expectation and the monetary value of the detriment. The detriment should also not be treated as 'consideration' for the proprietary interest;
• the detriment need not consist of expenditure of money or other quantifiable financial disadvantage, so long as it is something substantial.[47]

79 In the current case (as previously observed), the "minimum equity" required to do justice between the parties would have been to award compensation to Max based upon his (proven) expenditure upon the dwelling, that is, to reverse the detriment he had incurred. However, such an approach was not mandated by the authorities, as was implicitly recognised by the comment. However, unremarkably, the learned magistrate did not consider that awarding damages based upon Max's wasted expenditure sufficiently compensated Max for his disappointed expectations, that expectation being that he would be able to live in the dwelling, health permitting, for the rest of his life. That finding was not contrary to principle, and was open to the learned magistrate to make.

80 Applying the principles summarised by the Court of Appeal in Harris[48] to the current case:

(a) the learned magistrate correctly concluded that Max was prima facie entitled to relief for his disappointed expectation, that is, Michael's failure to permit him to live at the dwelling for the rest of his life;

(b) it was not necessary for Max to establish that the relief claimed by him was proportionate;

(c) however, it can be implied from the learned magistrate's rejection of Max's claims for an additional $35,000 in compensation that she gave some attention to what might be appropriate, and not disproportionate relief;

(d) any uncertainty in calculating compensation for Max's disappointed expectations was ameliorated through the application of the reputable actuarial evidence in the ABS Life Tables;

(e) in any event, the amount of rent paid and payable by Max was capable of being precisely calculated; and

(f) Further, the learned magistrate's calculation of compensation did not include any allowance for the additional financial burden upon Max should he live longer than provided for by the actuarial forecast in the ABS Life Tables, or if the rent payable by him was to increase, or if he ceased to share the burden of rental costs with his current companion. Those matters, along with the learned magistrate's factual finding that the value of the promise made by Michael to Max and his late wife was indivisible, support the learned magistrate's rejection of Michael's submission that any compensation calculated in accordance with his past and future rental costs ought be reduced by half. The matters referred to above also supports a conclusion that the compensation awarded to Max was not extravagant or disproportionate to the losses suffered by Max as a result of Michael's failure to make good his promise.

81 Given my findings upon the first ground of appeal, it is not necessary for me to determine the second ground of appeal, tied as it is to the resolution of the first ground. The second ground contends that the learned magistrate was in error in awarding Max substantial damages rather than nominal damages in circumstances where Max had adduced no evidence of the notional rental value of the dwelling, in circumstances where such evidence was readily available.

82 This ground of appeal is premised upon the proposition that the only basis for calculating compensation was based upon the notional rental value of the dwelling. If that ground was made out, then Michael's submissions to the effect that there was no evidence upon which the learned magistrate could make an award of the substantial compensation would be correct. However, given that it was open to the learned magistrate to calculate compensation based upon Max's actual past and future rental costs, there was clearly evidence upon which she could make that calculation, and the learned magistrate expressly referred to what evidence she had, and what evidence she did not have in her reasons. There was no appellable error on her part in that regard.

83 Accordingly, the appeal will be dismissed. I shall hear further from the parties on the question of costs.

[1] For the sake of clarity I have referred to the appellant and respondent by their first names, but do not intend any disrespect to the parties.

[2] Taylor v Taylor [2019] VSC 533.

[4] Another ground of appeal concerned the learned magistrate's use of the ABS Life Tables for the purpose of estimating the compensation payable to Max for his future rental costs, which is not relevant for present purposes.

[7] Magistrates' Court General Civil Procedure Rules 2020 (Vic).

[8] Supreme Court (General Civil Procedure) Rules 2015 (Vic).

[9] Which is now to be found in s 2 of the Valuation of Land Act 1960 (Vic).

[10] [2007] VSCA 89; (2007) 19 VR 577 ('Donis').

[12] The orders initially sent to the parties did not include the sum payable to Max by way of compensation. The error was corrected by the Magistrates' Court on or about 24 July 2020. Accordingly, Michael's appeal was issued within time.

[13] [2019] VSC 533 [28].

[15] [2003] NSWSC 1008; (2003) 59 NSWLR 361.

[17] [2019] VSC 136 ('Keys Consulting').

[19] [2003] VSCA 128, referred to in Keys Consulting at [76].

[21] (1896) 12 WN NSW 131.

[22] Referring to Edward Street Properties Pty Ltd v Collins [1977] Qd R 399; Enkelmann v Glissan (1982) 2 BPR 9640.

[23] Noting, however, that this was urged upon her by counsel for Max at the hearing on 4 December 2019.

[24] [2019] VSC 533 [29].

[25] (2014) 251 CLR 505 ('Sidhu').

[27] [1999] HCA 10; (1999) 196 CLR 101.

[29] [2004] HCA 16; (2004) 216 CLR 515.

[31] [1998] HCA 48; (1998) 194 CLR 395.

[33] Giumelli v Giumelli [1999] HCA 10; (1999) 196 CLR 101 [33].

[34] [2007] VSCA 89; (2007) 19 VR 577.

[36] (2014) 251 CLR 505.

[41] [1999] HCA 10; (1990) 196 CLR 101.

[42] [2021] VSCA 138 ('Harris').

[43] [1999] HCA 10; (1999) 196 CLR 101.

[44] [2010] NSWCA 84; (2010) 78 NSWLR 483.

[45] [2007] VSCA 89; (2007) 19 VR 577.

[46] (2014) 251 CLR 505.

[47] [2021] VSCA 138 [79]. Given that this passage of Harris does not involve any departure from established principle, but merely provides a convenient summary of the relevant principles, I did not consider it necessary to seek further submissions from the parties on the relevance of the decision in Harris (the underlying facts of which differed substantially from the current case) to the current appeal.