Attorney General of Hong Kong v Humphreys Estate

Julie Ann Sullivan - appellant PARTIES: Robert Brian Sullivan - 1st respondent Dona Sullivan - 2nd respondent Spiralling Coil Pty. Limited - 3rd respondent

COUNSEL: Ms. S. Hill for appellant Mr. R. Harper SC with Mr. T. Bors for respondents

SOLICITORS: CBD Law for appellant Blunden Law, Pennant Hills for respondents

LOWER COURT JURISDICTION: Supreme Court - Equity Division

LOWER COURT DATE OF DECISION: 7 February 2005

LOWER COURT MEDIUM NEUTRAL CITATION: [2005] NSWSC 10

IN THE SUPREME COURT IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40116/05 SC 2476/04

HANDLEY JA HODGSON JA McCOLL JA

Tuesday 14 November 2006 SULLIVAN V. SULLIVAN & ORS. Headnote

FACTS In a Christmas card in 1995, the first and second respondents, husband and wife, represented that they would purchase a house for the appellant, the first respondent's sister, to live in for life with the requirement to pay minimal rent after the first year. In March 1996, the appellant gave up her Housing Commission accommodation and moved to the house bought by the third respondent company, of which the first and second respondents are the sole directors and shareholders. The appellant refused to vacate the property when requested to do so by the first and second respondents on 30 January 2004, and brought proceedings claiming that the respondents were estopped from evicting her since she had acted to her detriment in reliance on the representation by giving up her Housing Commission accommodation and spending money on improving the house.

The primary judge held that, in the absence of evidence concerning her rent or security of tenure at the Housing Commission accommodation, it was not unconscionable for the respondents to go back on their representation and refuse to repay the sums she spent on maintenance. The appellant's appeal from that decision involved four issues: (1) Whether the representation was sufficiently certain to support an estoppel; (2) Whether detriment was proved in the absence of evidence as to rent and security of tenure at the Housing Commission accommodation; (3) Whether proprietary estoppel was made out; and (4) The appropriate extent of relief.

HELD (allowing the appeal) (1) Although there was some uncertainty as to the conditions on which the appellant was to occupy the house, the representation was sufficiently certain to support an estoppel. (2) The primary judge accepted that Housing Commission accommodation is subsidised, the Court can take judicial notice that Housing Commission accommodation is generally below market rent for similar private housing, there was evidence that the appellant had waited 7 years for her Housing Commission accommodation, and the Court can take judicial notice that the Housing Commission generally does not evict tenants without good reason. On this basis, the loss of the Housing Commission accommodation was a significant albeit unquantified detriment, and the Court can infer that the appellant would face a substantial wait to reobtain Housing Commission accommodation and be subject to higher rent for private housing in the meantime. (3) In these circumstances, requiring the appellant to vacate the house in six weeks was unconscionable and proprietary estoppel is made out. (4) Per Hodgson JA and McColl JA: Due to the appellant's failure to quantify her detriment and the significant financial hardship the respondents may suffer if they were bound by their gratuitous promise for the length of appellant's life, an order that the appellant can remain in the house for a further 7 years, subject to payment of rent of $65.00 per week with CPI adjustments, and subject to her taking reasonable care of the property is justified by the requirements of conscionable conduct and is not unjust to the respondents. (5) Per Handley JA (dissenting): An order that the respondents be restrained from disturbing her possession for life is not inequitably harsh to the respondents because the Court will, prima facie, enforce her reasonable expectation which the respondents created and encouraged, there is no evidence that she could reobtain Housing Commission accommodation within 7 years, and the fact that reversal of the detriment is potentially available from public or charitable sources should not reduce the relief to which she is otherwise entitled. **********

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40116/05 SC 2476/04

HANDLEY JA HODGSON JA McCOLL JA

Tuesday 14 November 2006 SULLIVAN V. SULLIVAN & ORS. Judgment 1 HANDLEY JA: In this appeal I have had the benefit of reading the reasons for judgment of Hodgson JA in draft. His summary of the relevant facts and the history of the proceedings enables me to go to the substance of the case. 2 The appellant relies on a proprietary estoppel by encouragement to establish a right to remain in occupation of 24 Greenvale Road, Green Point. This form of proprietary estoppel requires proof of conduct by the party estopped which created or encouraged an expectation in the plaintiff that he or she has or will acquire an interest or benefit, generally in the property of the party estopped. 3 If the plaintiff, thus encouraged, acts to his or her detriment in that expectation it may become unconscionable for the party estopped to deny that expectation, and if so the plaintiff will have a remedy in equity. 4 Hodgson JA has found that the appellant established all the elements of an estoppel by encouragement binding on the legal owner and I respectfully agree. He considers that the equitable relief to which the appellant is entitled is a right in the nature of a tenancy for a further seven years at a weekly rent of $65 indexed for inflation with an obligation to maintain the property in good repair. In my judgment the appellant is entitled to more ample relief. 5 The voluntary promise made by the appellant's brother in his 1995 Christmas card is quite clear. He promised to provide a home for his sister "to live in as long as you like" which was to be her "home for life". She was living with her then three children in a Housing Commission house at 11 Citrus Close, Wyoming paying a subsidised rent. She had been on the Commission's waiting list for about seven years before 1990 when she obtained this accommodation. 6 The appellant and Nathan, her then de facto, found the house at Green Point which the third respondent, the corporate trustee of her brother's family trust, purchased in February 1996 for $215,000 subject to a 25 year mortgage for $170,000. The house has four bedrooms and a swimming pool and is opposite a park. In March 1996 the appellant gave up her Housing Commission house and moved into the house at Green Point. She continues to occupy it with her children, now five in number, and her current partner David. 7 Detrimental reliance on the brother's promise occurred when the appellant moved out of her Housing Commission house. Further detrimental reliance occurred when she committed money, time, and labour to repainting the inside, carpeting the bedrooms, laying tiling, and renovating the bathroom. The trial Judge found that the direct cost of this work was some $6,300, but the appellant's time and labour are just as important: Eves v Eves [1975] 1 WLR 1338 CA, 1342; Grant v Edwards [1986] Ch 638 CA, 656, 657. 8 At all relevant times the appellant has been, and still is, a pensioner, dependent on Social Security and maintenance payments received for herself and her children and the earnings of her current partner. She suffers from a rare eye disorder know as Puncture Inner Corcodapothy which makes it difficult for her to read print. She has never had the capacity to buy her own home. Her brother was aware of her financial position and knew she was living in a Housing Commission home. He intended to confer a substantial benefit on her and her children, and did so because, as he wrote at the time "we have been fortunate financially and want to share some with you and make life a little more comfortable for you and the kids". 9 The appellant has since had two more children. If she has to go onto the Housing Commission waiting list again she will need a larger house than before. She waited seven years to obtain a Housing Commission home on the Central Coast in 1990 when she only had three children and may now have to wait even longer. 10 There is no evidence that the appellant relied on her brother's promise when she had further children but her larger family makes it more difficult and more expensive for her to obtain accommodation in the private rental market. Her needs in this respect are relevant when considering whether it was unconscionable for her brother to repudiate his promise and deny his sister's expectation when he did. It is also relevant when considering the relief that should be granted. 11 The classic statement of the ingredients of an estoppel by encouragement is that of Lord Kingsdown in Ramsden v Dyson (1866) LR 1 HL 129, 170: "If a man, under a verbal agreement with a landlord for a certain interest in land, or what amounts to the same thing, under an expectation, created or encouraged by the landlord, that he shall have a certain interest, takes possession of such land, with the consent of the landlord, and upon the faith of such promise or expectation, with the knowledge of the landlord, and without objection by him, lays out money upon the land, a Court of equity will compel the landlord to give effect to such promise or expectation." 12 Lord Kingsdown was in dissent because he took a different view of the facts. The majority, Lord Cranworth LC, Lord Wensleydale, and Lord Westbury considered that the only possible equity was an estoppel by standing by which failed on the facts and Lord Cranworth's classic statement (at pp 140-141) of the principles which govern that form of proprietary estoppel is also orthodox. Those principles do not apply to an estoppel by encouragement. 13 The statement of Lord Kingsdown was made in a case where the detriment relied on was expenditure on permanent improvements but the principle applies to other forms of detrimental reliance: Crabb v Arun DC [1976] Ch 179 CA, 194; Greasley v Cooke [1980] 1 WLR 1306 CA, 1311; Riches v Hogben [1986] 1 Qd R 315, 319, 320, 342; Gillett v Holt [2001] Ch 210 CA, 232. 14 In cases such as this equity does not enforce the promise as such. In Giumelli v Giumelli (1999) 196 CLR 101, 121 the joint judgment of Gleeson CJ, Gummow, McHugh, and Callinan JJ quoted with approval the statement of McPherson J in Riches v Hogben [1985] 2 Qd R 292, 301: "… what attracts the principle is not the promise itself, but the expectation which it creates … It is not the … unperformed promise that invites the intervention of equity but the conduct of the plaintiff in acting upon the expectation to which it give rise." 15 McPherson J, having cited the judgment of Kitto J in Olsson v Dyson (1969) 120 CLR 365, 379, said (300) that: "The critical element is the conduct of the defendant after the [promise] in encouraging the plaintiff to act upon it", and this passage was also approved in the joint judgment in Giumelli (at 121). After he made his promise the appellant's brother encouraged her to act on it. She did so by giving up her Housing Commission house and moving into the house that her brother caused to be purchased. 16 A proprietary estoppel by encouragement may be established where the conduct of the party estopped did not define the interest the other party was to expect: Plimmer v Mayor of Wellington (1884) 9 App Cas 699, 713; Flinn v Flinn [1999] 3 VR 712 CA, 738-9, 742, 743; Gillett v Holt [2001] Ch 210 CA, 226 per Robert Walker LJ. This principle is not relevant because her brother's Christmas card defined her interest. "[T]he quality of the assurances which give rise to the claimant's expectations" is an important factor: Jennings v Rice [2003] 1 P & CR 100, 112, 114 per Robert Walker LJ. 17 The relief that Hodgson JA would grant is substantially less than that promised and appears to be directed to reversing the detriment she suffered when she vacated her Housing Commission house rather than enforcing her expectation. 18 The detriment that makes an estoppel enforceable is that which the party asserting the estoppel would suffer, as a result of his or her original change of position, if the assumption which induced it was repudiated by the party estopped. This was explained by Dixon J in Grundt v Great Boulder Proprietary Gold Mines Ltd (1938) 59 CLR 641, 674-5: "That other must have so acted or abstained from acting upon the footing of the state of affairs assumed that he would suffer a detriment if the opposite party were afterwards allowed to set up rights against him inconsistent with the assumption. In stating this essential condition, particularly where the estoppel flows from representation, it is often said simply that the party asserting the estoppel must have been induced to act to his detriment. Although substantially such a statement is correct and leads to no misunderstanding, it does not bring out clearly the basal purpose of the doctrine. That purpose is to avoid or prevent a detriment to the party asserting the estoppel by compelling the opposite party to adhere to the assumption upon which the former acted or abstained from acting. This means that the real detriment or harm from which the law seeks to give protection is that which would flow from the change of position if the assumption were deserted that led to it. So long as the assumption is adhered to, the party who altered his situation upon the faith of it cannot complain. His complaint is that when afterwards the other party makes a different state of affairs the basis of an assertion of right against him then, if it is allowed, his own original change of position will operate as a detriment." 19 In Legione v Hateley (1983) 152 CLR 406, 437 Mason and Deane JJ said that this statement of principle applies to a promissory estoppel. In Cameron v Murdoch [1983] WAR 321, 351-2 Brinsden J held that it also applied to an estoppel by encouragement, and in Gillett v Holt [2001] Ch 210 CA, 232-3 Robert Walker LJ came to the same conclusion saying that "the issue of detriment must be judged at the moment when the person who has given the assurance seeks to go back on it" and at the date of trial. The joint judgment in Giumelli (124) is to the same effect. 20 There are statements in Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 and Commonwealth v Verwayen (1990) 170 CLR 394 which suggest that relief in a case such as this must be limited to removing or reversing the detriment suffered by the party entitled to the estoppel. The joint judgment in Giumelli (1999) 196 CLR 101, 120, 125 established that there is no such restriction. 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. 21 The relief depends very much on the facts and, as the Privy Council said in Plimmer (1884) 9 App Cas 699, 714: "… the court must look at the circumstances in each case to decide in what way the equity can be satisfied." 22 This statement has frequently been approved: Chalmers v Pardoe [1963] 1 WLR 677 PC, 682; Crabb v Arun DC [1976] Ch 179 CA, 188, 193; Giumelli (above) at 113, 125. The Court does not exercise an unfettered discretion but adopts a principled approach to prevent unconscionable conduct: Giumelli (above) at 123-4, 125; Gillett v Holt [2001] Ch 210 CA, 225 and Jennings v Rice [2003] 1 P & CR 100 CA, 112. 23 It has been said that the Court should frame the relief to enforce "the minimum equity to do justice to the plaintiff": Crabb v Arun DC [1976] Ch 179 CA, 198 per Scarman LJ. This principle has frequently been applied in England: Yaxley v Gotts [2000] Ch 162 CA, 175; Gillett v Holt [2001] Ch 210 CA, 235, 237; Jennings v Rice [2003] 1 P & CR 100 CA, 110, 113. However, as Robert Walker LJ said in Jennings v Rice at 113 it "does not require the Court to be constitutionally parsimonious, but … recognise[s] that [it] must also do justice to the defendant". The minimum equity principle was applied in Verwayen (1990) 170 CLR 394 by Mason CJ (441), and Brennan J (429, 430), but since Giumelli it is probably not the law in this country. 24 Relief may be moulded to recognise practical considerations such as the need for a clean break: Pascoe v Turner [1979] 1 WLR 431 CA, 438-9; Giumelli (above) at 113-4, 125; Gillett v Holt [2001] Ch 210 CA, 237; Jennings v Rice [2003] 1 P & CR 100 CA, 115. The Court must also take into account the impact of its orders on relevant third parties and any hardship or injustice they would suffer: Giumelli (above) at 113-4, 125; Flinn v Flinn [1999] 3 VR 712 CA, 749, 750. 25 Relief may be refused or reduced if the plaintiff's equity has been diminished by later events. In Sledmore v Dalby (1996) 72 P & CR 196 CA the Court held that the plaintiff's equity based on his improvements had been fully amortized over 18 years of rent free occupation. Subsequent events may also enlarge the plaintiff's equity. This occurred in Crabb v Arun DC [1976] Ch 179 CA where, as a result of the defendant's repudiation of the expectation the plaintiff's land had been landlocked and sterilised for five years: ibid at 189, 199. 26 Relief may also be limited where the enforcement of the plaintiff's expectation would be out of all proportion to the detriment: Jennings v Rice [2003] 1 P & CR 100 CA, 104, 111, 115. This is particularly so where the expectation was not defined and the judicial discretion is enlarged: ibid at 114. In that case a gardener had looked after an elderly widow in her later years and had been promised that "he would be alright" and "this will all be yours one day". He was awarded £200,000 at trial, and the Court of Appeal refused to increase this to an award of the deceased's house and contents valued at £435,000. 27 The Court should, prima facie, enforce a reasonable expectation which the party bound created or encouraged: Meagher Gummow & Lehane "Equity Doctrine and Remedies" 4th ed, pp 567-8. In Ramsden v Dyson (1866) LR 1 HL 129, 170 Lord Kingsdown concluded his statement of principle by saying "a Court of equity will compel the landlord to give effect to such promise or expectation". In Chalmers v Pardoe [1963] 1 WLR 677 PC, 681-2, the Privy Council said that if such an estoppel is established "a court of equity will prima facie require the owner … to fulfil his obligation". In Attorney General of Hong Kong v Humphreys Estate (Queen's Gardens) Ltd [1987] AC 114, 121 Lord Templeman said: "The authorities expound and illustrate the principle upon which a litigant who is led to believe that he will be granted an interest in land and who acts to his detriment in that belief is enabled to obtain that interest." 28 In Giumelli the joint judgment quoted (123) with approval the statement of Deane J in Verwayen (1990) 170 CLR at 443: "Prima facie, the operation of an estoppel by conduct is to preclude departure from the assumed state of affairs. It is only where relief framed on the basis of that assumed state of affairs would be inequitably harsh, that some lesser form of relief should be awarded." 29 This principle is applicable to an estoppel by encouragement, and was quoted in Giumelli in that context. The joint judgment in that case continued (123-4): "The prima facie entitlement to which his Honour had referred would be qualified if that relief 'would exceed what could be justified by the requirements of conscientious conduct and would be unjust to the estopped party'."

See also Flinn v Flinn [1999] 3 VR 712 CA, 749. 30 In Sledmore v Dalby (1996) 72 P & CR 196 CA, 203 Roch LJ, delivering the principal judgment, approved the statement in Snell's Equity 29th ed p 576: "The extent of the equity is to have made good, so far as may fairly be done between the parties, the expectations of A which O has encouraged." 31 Sledmore v Dalby was followed in Mobil Oil Australia Ltd v Wellcome International Pty Ltd (1998) 81 FCR 475, 517-8. 32 In Jennings v Rice [2003] 1 P & CR 100 CA, 114 Robert Walker LJ said: "… there is a category of case in which the benefactor and the claimant have reached a mutual understanding which is in reasonably clear terms but does not amount to a contract. … In such a case the Court's natural response is to fulfil the claimant's expectations. But if a claimant's expectations are uncertain, or extravagant, or out of all proportion to the detriment which the claimant has suffered, the Court can and should recognise that the claimant's equity should be satisfied in another (and generally more limited) way." 33 The appropriate relief where the plaintiff's expectation was a home for life has been considered in a number of cases. In Jones v Jones [1977] 1 WLR 438 CA, 442 Lord Denning MR said: "Old Mr Jones' conduct was such as to lead his son Frederick reasonably to believe that he could stay there and regard Philmona as his home for the rest of his life. On the basis of that reasonable expectation, the son gave up his work at Kingston-upon-Thames and moved to Blundeston. He paid the £1000 too in the same expectation. He did work on the house as well. It was all because he had been led to believe that his father would never turn him out of the house: it would be his family's home for the rest of his life. He and the rest of the family thought that the father would alter his will or make over the house to the son. The father did not do it, but nevertheless he led the son to believe that he could stay there for the rest of his life. … it is clear that old Mr Jones would be estopped from turning the son out." 34 In another such case Griffiths v Williams (1977) 248 EG 947 CA, 949 Goff LJ (Sir Reginald Goff) said: "I therefore pass to the second question … What is the equity? That must be an equity to have made good, so far as may fairly be done between the parties, the representation that Mrs Williams should be entitled to live in the house rent-free for the rest of her life." 35 This passage was applied by Nugee QC, sitting as a Deputy Judge of the Chancery Division, in Re Basham [1986] 1 WLR 1498, 1510, 1511, a case involving testamentary promises. 36 In Pascoe v Turner [1979] 1 WLR 431 CA the parties had lived in the house in a domestic relationship. The plaintiff began another relationship and moved out but told the defendant that the house was hers and everything in it. Relying on the plaintiff's declarations she spent money and did work on redecoration, improvements, and repairs. When the relationship ended she had about £1000 and spent some £230 on the property. Cumming-Bruce LJ, delivering the judgment of the Court said (438): "… the Court must decide what is the minimum equity to do justice to [the defendant] having regard to the way in which she changed her position for the worse by reason of the … encouragement of the legal owner." 37 He acknowledged that the money spent by the defendant was less than in some of the cases but concluded (439): "Weighing such considerations this Court concludes that the equity to which the facts in this case give rise can only be satisfied by compelling the plaintiff to give effect to his promise and her expectations." 38 In the present case there was a clear promise which created a reasonable expectation on the appellant's part that she could continue to live in the house at Green Point with her children. Detrimental reliance is established because she was induced to give up her Housing Commission house. This was a detriment of substance and she also spent some $6,300 of her meagre resources on the property. 39 At law the appellant is a weekly tenant liable to eviction at short notice subject to the orders of the Consumer Trader and Tenancy Tribunal. She would need a large house for herself, her partner and her five children. As a Social Security pensioner largely dependent on welfare payments she would not be an attractive tenant to a private landlord. If she could not obtain or afford suitable accommodation some of her children may have to be fostered: Children and Young Persons (Care and Protection) Act 1998 s 71(1)(b), (d). 40 Private landlords are entitled to require their tenants to pay a month's rent in advance and lodge a "bond" with the Rental Bond Board for up to four weeks rent. The appellant's bank statements (blue 34/53) show that at the date of trial she could not have made these payments. 41 The trial Judge referred to the brother's generosity in giving the appellant the benefit of some nine years occupation of the house at a very low rental apart from his other expenditures on repairs and improvements. These were benefits that her brother must have envisaged when he made his promise. 42 The appellant, to the knowledge of her brother, was just as vulnerable when asked to vacate in January 2004 as she would have been in April 1996. The benefits she had received in the meantime did not diminish her equity, and the lapse of time has increased it because there are two more children to be housed. 43 If a Court of equity will prima facie enforce the reasonable expectation of a plaintiff who establishes an estoppel of this kind the relevant enquiry is whether there is anything which would diminish that entitlement. 44 The issue of fact at the trial about the arrears of rent was only marginally relevant. The appellant's equity would not be lost or forfeited simply because she was in arrears at some stage and on proper terms equity would relieve against a forfeiture. The relief in such a case may be conditional: Crabb v Arun DC [1976] Ch 179 CA, 198-9; Giumelli (above) at 123-4; Flinn v Flinn [1999] 3 VR 712, 750. 45 The appellant did not establish what her prospects were of obtaining accommodation from the Housing Commission, the approximate rent she would have to pay, and how long she would have to wait. There is also no evidence of the availability of emergency accommodation on the Central Coast for a family of this size. 46 The appellant had to wait seven years before she obtained a Housing Commission house in 1990. There is no reason for thinking that the waiting period would be any less in 2006 and it would be dependent on vacancies. A defendant who seeks to cut down the plaintiff's prima facie entitlement has an evidentiary onus of bringing forward material which would have that effect. There is no such material. 47 Hodgson JA considers that the appellant's possession should only be protected for seven years but there is no basis for finding that she would obtain a Housing Commission house within that period. 48 The Court will frame its relief to achieve a clean break if this is possible, but not at the plaintiff's expense. These parties do not live together or next to each other and the appellant's obligations in the relationship of landlord and tenant would continue under the orders proposed by the majority. In these circumstances there can be no objection on this ground to an order that would protect her possession for a longer period. 49 The reported cases in which equity has enforced an expectation of accommodation for life or its equivalent do not support the limited relief proposed. In Jones v Jones [1977] 1 WLR 438 CA; Griffiths v Williams (1977) 248 EG 947 CA; Pascoe v Turner [1979] 1 WLR 431 CA; Riches v Hogben [1985] 2 Qd R 292, [1986] 1 Qd R 315 and Crompton v Wheat (1983) 71 FLR 346, the plaintiffs' prima facie expectations were protected, even where there could not be a clean break. 50 Where the estoppel arises as a result of a plaintiff being encouraged to construct permanent improvements on vacant land, the owner is not entitled to buy off the estoppel by reimbursing the plaintiff for his expenditure and reversing his detriment. If there are no title problems the Court enforces his expectation: Dillwyn v Llewelyn (1862) 4 De GF & J 517; Inwards v Baker [1965] 2 QB 29 CA. 51 The fact that reversal of the detriment is potentially available from public or charitable sources should not reduce the relief to which the appellant is otherwise entitled. 52 The decision of the Privy Council in Bank Negara Indonesia v Haolim [1973] 2 MLJ 3, although based on a promissory estoppel, supports the appellant's entitlement to her full expectation. The respondent, who was a protected tenant of the Bank, was induced to move into other premises, where he had no statutory protection, by a promise that he would not be asked to leave as long as he practised his profession. While he was still in practice the Bank gave him a notice to quit, but it was restrained from relying on it. Lord Wilberforce said (5): "The fact that the respondent, as a result of the assurances given, entered into a legal situation which was less favourable than that which he previously enjoyed supports, rather than negatives, the equity of protecting him in the new position … It is of course quite clear that it was not possible for him to resume the position which he held prior to the assurances. Their Lordships therefore consider that … he enjoyed the benefit of an estoppel which would prevent the appellants from availing themselves of their legal right to remove him so long as he carried on his profession there." 53 The appellant's legal position as a tenant of her brother is "less favourable" than her position as a tenant of the Housing Commission. The Court is entitled to know that in normal circumstances the Commission would not attempt to evict her. It is not possible for her to resume her former position or its equivalent at short notice, and there is no certainty that she could do so on seven years notice. 54 Counsel for the respondents submitted that cases such as Pascoe v Turner [1979] 1 WLR 431 CA and Riches v Hogben [1985] 2 Qd R 292 are distinguishable because the plaintiff's expectations were reinforced by the existing moral obligations of the defendants. This was not part of the Court's reasoning in those cases and estoppels by encouragement have frequently been enforced where the defendant had no prior moral obligation to the plaintiff. 55 In my judgment the enforcement of the appellant's expectation would not be inequitably harsh: para [28], or unjust to the defendants: para [29], and would fairly make good as between the parties the expectation that the respondents had encouraged: para [30], which is not extravagant or out of all proportion to the detriment she has or will suffer: para [32]. 56 I would therefore allow the appeal and grant an injunction restraining the respondents from disturbing the appellant's possession or causing or allowing her possession of the property at Green Point to be disturbed. Since mine are minority views there is no need for me to frame detailed orders. 57 HODGSON JA: On 7 February 2005, Campbell J dismissed claims for relief made by the appellant against the respondents. On 25 October 2005, the appellant was granted leave to appeal from that decision.

CIRCUMSTANCES 58 The circumstances of the case are set out in the following paragraphs of the primary judge's reasons, about which there is no dispute on appeal: 1 The plaintiff in this case is the sister of the first defendant. The second defendant is the wife of the first defendant. The third defendant is a company of which the first and second defendants are the sole directors and shareholders. The third defendant is also the trustee of a discretionary trust which benefits members of the first defendant's family. 2 The plaintiff is aged 38. She has, now, five children. In about 1984, not long after her eldest child was born, she applied for subsidised accommodation with the Housing Commission, and put her name on the Housing Commission list for such accommodation. After being on that list and waiting for a period of about seven years, she obtained accommodation from the Housing Commission in a three bedroom house at 11 Citrus Close, Wyoming, which is outside Gosford. In about 1990 she moved into 11 Citrus Close, Wyoming, and commenced to pay rent to the Housing Commission. She continued living there from about 1990, with such children as she had from time to time. She had a daughter Koe, born on 27 February 1990, and another daughter, Tory, born on 30 June 1995. In 1995 she was living with a man called Nathan.

Circumstances of Purchase of the Green Point House 3 On Christmas Day 1995 the first defendant gave the plaintiff a Christmas card. Its front page was headed "With Love Dear Sister" , and contained the start of a verse, which continued over another two pages, which elaborated upon how specially she was regarded. An unprinted page of the card had various small pictures of houses, of the kind one finds in brochures advertising real estate for sale, stuck to it. It also contained a handwritten letter as follows: "This is your Christmas present. Donna & I & you & Nathan ASAP will look for a home of your/our choice for you to live in as long as you like. It'll be a modern & good quality home in a good location for schools transport etc. You won't have to pay any rent for the first 12 months & at that time we'll consider your financial situation and have you pay a minimal comfortable rent from then on. We want you to look at it as your home & take pride in it accordingly. You can do 'almost' anything you like to it, modifications design, painting etc & make it your style. Naturally, as the owners we will want you to abide by certain basic conditions which I'm sure you'll agree with, but it is you [sic] home for life. Now I say the following causiously [sic] & cannot promise that what I'm about to say will happen, but it's possible that after a period of time Donna & I would consider our & your situation & if we feel it appropriate would allow you to buy the home off us at a realistic & reduced payment schedule. Julie, this comes from our heart, we have been fortunate financially & want to share some with you & make life a little more comfortable for you & the kids. Love from Robert & Donna X X" Donna is the first defendant's wife. 4 The plaintiff thanked them effusively, and the first defendant said "Donna and I are happy to do this to get you out of the Housing Commission and to give you something you couldn't give to yourself and the children." 5 The first defendant says that at the time of giving her the card he said: "For the first year, I won't charge you any rent. After that, I will charge you a small rent based on your financial situation. We will expect you to keep the place properly maintained." The plaintiff denies that there was any discussion of an expectation to keep the place properly maintained. The first defendant struck me as someone whose recollection was not as good as that of the plaintiff. I accept the plaintiff's denial of words about maintenance of the place being said. 6 During January 1996 the plaintiff and Nathan began looking for a home. They found a home at 24 Greenvale Road, Green Point which had four bedrooms, was opposite a park, was about four or five years old, and had a swimming pool. They inspected that house in February 1996, and told the first defendant and his wife about it. 7 In February 1996 the third defendant purchased that house for $215,000. The purchase price was made up of $45,000 which was paid from trust funds held by the third defendant, and $170,000 which the third defendant borrowed from the Commonwealth Bank of Australia on a 25-year loan. The interest was fixed for the first two years. The initial monthly repayments on that loan were $1,364. 8 In March 1996 the plaintiff gave up her Housing Commission home, and moved, with Nathan and her three children, into the home at Green Point. For the first twelve months she did not pay rent. From early 1997, by agreement with the first defendant, she paid rent at the rate of $50 per week. Payments for Work Done at the Green Point House 9 The first defendant lived overseas from August 1998 until October 2000. After he returned from overseas, he reimbursed the plaintiff $1,000 for amounts she had spent on the garden of the property. The first and second defendants ordered, and paid for, the installation of down lights, repairs to the clothesline, and repaired doors to the TV room. They organised and paid for the installation of a new hot water system. 10 The plaintiff, for her part, carried out various items of work at the home. She caused the whole of the house to be painted inside. The painting was done by herself and various friends and family members, at a cost of about $500 for paint. Four bedrooms have been recently carpeted, at a cost of $800. After Christmas 2003 the home was tiled throughout at a cost of $4,000 (a cost covering both tiles and labour). The bathroom was renovated, at a cost of $1,000. As well, she has carried out various items of work in the garden. Though there was no specific cross-examination on this topic, in light of the first defendant's evidence that he paid her $1,000 for her work in the garden, the plaintiff has not proved that she did any work in, or expended any money in connection with, the garden which has not been paid for by the first defendant. Payment of Rental 11 The rental remained at $50 per week until about May 2003, when the first defendant raised the rent to $65 per week. This occurred after the first and second defendants had visited the house, and been dissatisfied with some aspects of its maintenance. The first defendant told the plaintiff that $65 per week would barely cover the council rates and insurance. He said to her: "I expect that from now on, you will pay for all maintenance and repairs, as that was our original offer. I am happy to not make money on the house while you are living here - but I don't think that it should cost me money to have you living here. I am very disappointed at the state that this house is in." 12 There has been a significant dispute about whether the plaintiff is up to date in paying rental. On the view which I take of the case, this dispute does not affect the outcome, but I make findings about it in case the Court of Appeal takes a different view to me. 59 The judgment of the primary judge continued with a discussion of the evidence concerning payment of rent. He found that the system adopted for payment of rent by the appellant, who is visually impaired and has difficulty dealing with ordinary bank forms, broke down on some occasions, so that during some periods rent was not paid on time. However, the primary judge found that there were no arrears of rent at the date of hearing. 60 The primary judge also found that the expenditure by the appellant on the house was made after the first respondent had written her a letter on 20 November 2003, which included: You remember our talk a few months ago in the house & Mum & Dad were present. We discussed the financial arrangements & I recall we all agreed that what I said was reasonable. I said the $65 pw you are paying covers house insurance & rates that I pay. I didn't want to make money on the house, but I also didn't want to lose. So you were responsible for all maintenance. Literally everything, to live in the house. I said that obviously I'd get things fixed with insurance if there was a major catastrophe. So I want to make it super clear that you cover EVERYTHING because if you try & find something that seems to be an exception to the rule, something you perceive as totally out of control & something that you believe I should pay for, I guess I have to tell you don't fix it, wait 'til you can afford it, because otherwise I'll be paying for more than insurance & rates & I'm not using the house, or I could put the rent up to cover the cost. The bottom line is this. You have a totally free house, all you have to do is cover your own wear & tear in terms of the entire house. 61 On 30 January 2004, solicitors for the first and second respondents wrote to the appellant giving her six weeks' notice to vacate the property, so that it could be sold. The appellant refused to vacate the property, and commenced the proceedings.

DECISION OF PRIMARY JUDGE 62 The primary judge set out the basis of the appellant's claim as follows: 20 The plaintiff's claim is based upon an equitable estoppel. She says that in reliance on the representations in the Christmas card, she acted to her detriment both by giving up her Housing Commission property, and also by moving into the Green Point property and spending money on improving it. The plaintiff submits that the interest in the property to which she is entitled is a personal right to stay in the property for as long as she wishes. The terms of that occupancy are that she should pay a minimum amount which is consistent with her financial position - Mr Wilson, for the plaintiff, suggested that perhaps $65 per week subject to CPI increases would be a proper way of quantifying that amount, or perhaps, instead, it could be quantified by imposing on her an obligation to pay rates, taxes, insurance and repairs. 63 He assumed, without deciding, that the representation in the Christmas card was sufficiently precise to be able to give rise to an estoppel. 64 He assumed, without deciding, that the fact that the third respondent was completely under the control of the first and second respondents, and purchased the house so that the first and second respondents could carry through the plan outlined in the Christmas card, had the consequence that the third respondent was bound by any equity with existed between the appellant on the one hand and the first and second respondents on the other. 65 The primary judge raised the question whether a plaintiff who invokes the law of proprietary estoppel must prove, not only reliance on an encouraged assumption in circumstances where departure from the assumption would be unconscionable, but also that the reliance was detrimental. He assumed, without deciding, that detriment was not a separate element. 66 The primary judge then continued: 27 Here, the plaintiff has relied upon the representation of the first and second defendants in moving out of the Housing Commission house, and into the Green Point house. The plaintiff has the onus of showing facts which made it unconscionable for the defendants to go back on their representation. She has had the occupancy of the house for nearly nine years, at a rental well below market rental. Considered by itself, that looks like a significant act of generosity on the part of the defendants. The plaintiff has the onus of proving facts which show that notwithstanding this apparent generosity, her moving out of the Housing Commission house involved her putting herself in a position such that it would be unconscionable for the defendants not to keep on allowing her to live in the house. There is no evidence concerning the rent she was paying to the Housing Commission, nor concerning what, if any, security of tenure she had in the Housing Commission house. Nor is there any evidence of the practices or policies of the Housing Commission, which might have given some feel for what the plaintiff might, in reality, have had happen to her if she had not given up the Housing Commission house, regardless of whether she had a legal entitlement to be so treated by the Housing Commission. In these circumstances, the plaintiff has not established that her giving up the Housing Commission house at the instigation of the first and second defendants, is something which makes it unconscionable for the first and second defendants to now go back on their representation that the house would be hers to live in for life. 67 He then said that the appellant had not established that it would be unequitable for the first and second respondents to fail to carry out their representation because she had spent $6,300.00, or to do so without repaying her that $6,300.00. 68 The primary judge concluded that the appellant had no personal right of occupancy of the house, or to any charge against the house.

GROUNDS OF APPEAL 69 The appellant relies on the following grounds of appeal: 1 The learned trial judge erred in finding that there was no evidence concerning the rent the appellant was paying to the Housing Commission nor concerning what, if any, security of tenure the appellant had in the Housing Commission house (J27) in that: (a) there was evidence that the rent was subsidised (J2); (b) there was evidence of security of tenure as the appellant had waited for a period of seven years for Housing Commission accommodation and had resided in such accommodation since 1990 (J2).

2. The learned trial judge erred in failing to find that the appellant had acted to her detriment in giving up the Housing Commission home at the instigation of the respondent having regard to ground of appeal 1 above.

3. The learned trial judge erred in finding that it was not unconscionable for the first and second respondents to go back on their representation contained in the Christmas card (J27) that the property at 24 Greenvale Road, Green Point ("the Green Point property") would be the appellants to live in for life in that: (a) there was evidence of the rent the appellant was paying to the Housing Commission and of the security of tenure over the Housing Commission home; (b) the appellant had acted to her detriment in giving up the Housing Commission home at the instigation of the first and second respondents; (c) the appellant continued to live in the Green Point property from 1996 to the present time in reliance upon the representation that it would be hers to live in for life; (d) it was unconscionable for the first, second respondents to deprive the appellant of her legitimate expectation that the Green Point property would be hers to live in for life; (e) the detriment the appellant would suffer if the first and second respondents were permitted to resile from their promise could not be compensated for by "significant act of generosity" on the part of the respondents (J27) as the respondents had promised that the Green Point property would be the appellants to live in for life; (f) the learned trial judge failed to have regard to material conduct on the part of the first and second respondents, namely (i) inducing the appellant to leave the Housing Commission home and move to the Green Point property in the belief that it would be hers to live in for life; (ii) resiling from the promise that the Green Point property would be hers to live in for live and in seeking possession and sale of that property on six weeks' notice; (g) the learned trial judge failed to have regard to the consequences to the appellant of the respondents resiling from their promise, namely, she would have to leave the Green Point property; (h) the appellant paid for work to be done at the Green Point property in reliance upon the representation that the Green Point property would be hers to live in for life (J9-10). 70 The respondent's rely on the following grounds in a Notice of Contention: 1. That the effect of the representation contained' in the Christmas card and said to have been relied upon by the Appellant is not sufficiently clear and unambiguous as to found an estoppel, contrary to the assumption made by the learned trial judge at paragraph 23 of the judgment. 2. That the third respondent would not be bound by any equity said to arise as between the appellant and the first and second respondents, contrary to the assumption made by the learned trial judge at paragraph 25 of the judgment.

SUBMISSIONS 71 Ms. Hill for the appellant submitted that the appellant's expenditure on the house was such as to justify relief, relying on Pascoe v. Turner [1979] 2 All ER 945 and Crompton v. Wheat (1983) 71 FLR 346. 72 Ms. Hill submitted that the primary judge erred in saying that there was "no evidence concerning the rent she was paying to the Housing Commission", in circumstances where he had found that the rent was subsidised. Ms. Hill submitted that the primary judge was in error in saying there was "no evidence concerning what, if any, security of tenure she had in the Housing Commission house", in circumstances where judicial notice could be taken of the fact that public housing is granted generally on advantageous terms and that tenants of public housing are generally not evicted without good cause, particularly tenants with a disability. 73 Ms. Hill submitted that the primary judge was in error in not adverting to the evidence of the appellant's seven-year wait for Housing Commission accommodation, and the circumstance, of which judicial notice could be taken, that such advantageous public housing is not freely available. 74 Ms. Hill submitted that it was not necessary to have precise quantification of the detriment suffered by the appellant in relying on the relevant assumption, or of the detriment caused to her by the respondent's seeking to depart from that assumption: Riches v. Hogben [1986] 1 Qd.R. 315. 75 Ms. Hill submitted that the hardship to the appellant, should she be put out of the respondent's house, was plain: she was a pensioner with five children. She submitted there was no evidence of any financial hardship to the respondents. She submitted that the appeal should be allowed, and that the appropriate order was one which would ensure that the appellant could stay in the house for life, on condition that she pay rent of $65.00 per week adjusted for inflation, and keep the house in repair. The order should be in such terms as to give the appellant a caveatable interest. 76 Mr. Harper SC submitted that the primary judge was correct in his statements about absence of evidence. There was no evidence as to what the appellant's position was before she left her previous Housing Commission house, or of what her position would be if she had to leave the respondent's house. There was no evidence concerning the availability of alternative accommodation, and it was not possible to infer what, if any, waiting time there would be before she could get other Housing Commission accommodation. So far as the evidence went, it could be a few weeks or a few years. Judicial notice that the Housing Commission is a benevolent landlord could only be at a level of generality that would not allow the Court to make a meaningful assessment of detriment or unconscionability. 77 Accordingly, Mr. Harper submitted, there was such an absence of evidence that the primary judge was correct to find there was no unconscionability, and that finding should not be overturned on appeal. Further, he submitted, it was appropriate to take into account that this was a case of pure generosity, not a case where something was done to fulfil a moral responsibility or by way of some trade-off. Where there was a change of circumstances involving a breakdown of the previous affectionate relationship, the respondent's action was not unconscionable; and any possible detriment to the appellant could be considered discharged and paid for by her enjoyment of nine years in the respondents' house. 78 Mr. Harper submitted that there was in this case nothing like the circumstances in Riches, where there was a complete change of life circumstances by reason of leaving England to come to Australia. 79 In relation to the Notice of Contention, Mr. Harper submitted that the representation in the Christmas card was not clear enough to support an estoppel, because the conditions of occupation of the house were unexpressed and left for further discussion. Further, he submitted, the representations made by the first and second respondents did not bind the third respondent.

DECISION 80 In my opinion, the primary judge was in error in saying that there was no evidence concerning the rent the appellant was paying to the Housing Commission. It is true that there was no evidence as to the amount of that rent, or as to the difference between that rent and the market rent for private housing; but the primary judge accepted that the rent for the Housing Commission accommodation was subsidised, and in my opinion also the Court can take judicial notice that rent for Housing Commission accommodation is generally below market rent for similar private housing. It would have been desirable that there be quantification of this advantage of Housing Commission accommodation, but this was not absolutely necessary, and in my opinion the case should not have been decided against the appellant on the basis that no material rental advantage had been shown. 81 Also, the primary judge was literally correct to say there was "no evidence what if any security of tenure she had in the Housing Commission house", but that was not the end of that issue. The appellant had waited about seven years for that accommodation, and had been in that accommodation for about five years; and in my opinion the Court can take judicial notice that the Housing Commission generally does not evict tenants without good reason. In those circumstances, it was in my opinion wrong to decide the case on the basis that security of tenure of the Housing Commission accommodation had not been proved. 82 In my opinion, those two matters are sufficient to justify this Court considering whether, on the facts otherwise found by the primary judge, a case for relief is made out. It is not necessary to consider whether the primary judge erred in the way he dealt with the expenditure of $6,300. 83 The first question I consider is that raised by the first ground of the Notice of Contention, that is, was the representation or promise sufficiently certain to support an estoppel? 84 It has been said that in some respects at least more certainty is required for an estoppel than for a contractual variation (Woodhouse AC Israel Cocoa Limited SA v. Nigerian Produce Manufacturing Co. Limited [1971] 2 QB 23 at 60, Legione v. Hateley (1983) 152 CLR 406 at 436-7); but it is also the case that a promise or representation may support an estoppel even though it is not sufficiently certain to operate as a contract (Australian Crime Commission v. Gray [2003] NSWCA 318 at [184]-[200], Galaxidis v. Galaxidis [2004] NSWCA 111 at [82]-[94]). 85 Generally, a promise or representation will be sufficiently certain to support an estoppel if it was reasonable for the representee to interpret the representation or promise in a particular way and to act in reliance on that interpretation, thereby suffering detriment if the representor departs from what was represented or promised. Generally, if there is a grey area in what is represented or promised, but it was reasonable for the representee to interpret it as extending at least to the lower limit of the grey area and to act in reliance on it as so understood, I see no reason why the Court should not regard the representation or promise as sufficiently certain up to this lower limit. 86 In the present case, even though there was some uncertainty as to conditions on which the appellant was to occupy the house, it was clear that the rent was to be favourable ("minimum comfortable rent") and that there were to be no more than reasonable conditions as to care of the property. The appellant gave direct evidence that she did give up her Housing Commission accommodation in reliance on what was thus represented or promised; and plainly this was what the first and second respondents intended she should do, and it was reasonable for her to do it. In those circumstances, in my opinion the representation or promise was sufficiently certain. 87 The second question is whether the third respondent was bound, this issue being raised by the second ground in the Notice of Contention. 88 The third respondent was at all material times controlled by the first and second respondents; it was caused by them to buy the property for the purpose of carrying through the representation or promise; the third respondent through the first and second respondent knew of all the circumstances; and there is no third party interest suggested which could weigh against any interest of the appellant. In those circumstances, in my opinion, the third respondent would be bound to the same extent as the first and second respondents. 89 The next issue is whether there was relevant detriment. Whether or not this is an independent element in making out an estoppel, the existence or otherwise of detriment is plainly relevant to any question of unconscionability. 90 For reasons given previously, the loss of the Housing Commission accommodation with its subsidised rent, for which the appellant had waited about seven years, is a detriment to the appellant suffered through her reliance on the representation or promise; and although there is no evidence explicitly addressing the present availability of Housing Commission accommodation, the Court can infer that the appellant would have to wait a substantial time to obtain Housing Commission accommodation, and that until then she would be subject to payment of higher rent so as to obtain appropriate accommodation in privately owned housing. 91 I conclude that there is substantial detriment, though due to the paucity of evidence it is not possible to quantify it more precisely. The onus to show detriment is on the appellant, so it would not be appropriate for the Court to quantify the detriment in a manner generous to the appellant: where there is uncertainty due to paucity of evidence, that uncertainty should generally be resolved adversely to the party that could and should have called that evidence: Ho v. Powell [2001] NSWCA 168, 57 NSWLR 572; Oran Park Motor Sport Pty. Limited v. Fleissig [2002] NSWCA 371 at [66], and cases there cited. 92 However, I think it would be wrong to apply this approach to the extent of denying the appellant relief. Substantial albeit unquantified detriment can be inferred; and the respondents in correspondence acknowledged the reality that the appellant would be out on the street and have to do her best. 93 In my opinion, the circumstances of the promise, the giving up of Housing Commission accommodation in reliance on it (this being both reasonable and intended by the first and second respondents), the expenditure of $6,300, and the detriment in losing the promised accommodation and not readily being able to go back to Housing Commission accommodation, is sufficient to justify a finding that the respondents' conduct in requiring the appellant to vacate the house in six weeks was unconscionable, and to justify consideration of what relief would be justified. 94 I agree with Handley JA, in accordance with Guimelli v. Guimelli [1999] HCA 10, 196 CLR 110 at [40]-[50], that prima facie the operation of estoppel by conduct is to preclude departure from the assumed state of affairs, but that this entitlement would be qualified if relief on this basis would exceed what would be justified by the requirements of conscionable conduct and would be unjust to the estopped party. 95 In my opinion, to give relief that would in substance hold the respondents to a promise that the house would be the appellant's for life would go beyond what is justified by the requirements of conscientious conduct and/or would be unjust to the respondents, for the following reasons: (1) the promise was gratuitous, given in the absence of any substantial moral obligation or any kind of trade off; (2) the promise was given in the context of an affectionate family relationship, which has since unfortunately broken down; (3) the appellant is now about 40, so has a life expectancy that could be of the order of 40 years; (4) although there is no evidence of the respondents' financial circumstances, an order that bound the respondents for up to a further 40 years or so could work significant hardship if their financial circumstances change; (5) all this must be considered in the light of the paucity of evidence referred to earlier, which should not operate in favour of the appellant. 96 I accept that there can be an evidentiary onus on a defendant to bring forward material that would cut down the entitlement to continuance of the assumed state of affairs. But it is still the case, in my opinion, that an ultimate onus is on the plaintiff to prove that the extent of the detriment, flowing from the original change of position, if the assumed state of affairs is not continued, is such as to justify the relief sought. I think the potential availability from public sources of reversal of the detriment can be a ground for reducing relief, particularly when the original detriment consists of giving up the benefit of support from the very same public sources. I also accept that the absence of a pre-existing moral obligation does not preclude reliance on estoppel; but in my opinion it is relevant to the extent of relief to be granted, in circumstances where the affectionate family relationship which brought about the promise has broken down. 97 It was suggested in argument that a possible alternative to accommodation for life would be accommodation for up to when the youngest child, now 2 years old, reaches 18. I do not think this would be appropriate. In my opinion, a period of 16 years would still be excessive, particularly in circumstances where the child in question had not been born at the time of the representation or promise. 98 Doing the best I can, I would hold that what is justified by the requirements of conscientious conduct and is not unjust to the respondents would be to make an order ensuring that the appellant can remain in the house for a further period of seven years from the present, subject to payment of rent of $65.00 per week with CPI adjustments, and subject to her taking reasonable care of the property. This would give her a reasonable time for seeking suitable Housing Commission accommodation, although in the absence of evidence the Court cannot conclude that this time is likely to be sufficient for her to obtain such accommodation; and in my opinion it would not be unfairly burdensome on the respondents. 99 In my opinion also, there should be some protection against any possible purchaser of the property. This could either take the form of a restraint on disposition of the property, or expressing relief in terms of a constructive trust so that a caveat could be lodged. 100 The respondents sought an opportunity to make further submissions about costs, in the event that the appellant was partially successful in the appeal. Beyond indicating that the appeal should be allowed, I will not propose any definite order at this stage, but I would direct that the appellant within 21 days bring in either agreed Short Minutes of Order or else bring in her proposed Short Minutes of Order, including orders as to costs, and submissions in support thereof; and in the latter event, that the respondents within a further 14 days submit their proposed Short Minutes and submissions in support thereof. I would give the appellant a further 7 days to submit submissions strictly in reply. 101 McCOLL JA: I agree with Hodgson JA. **********

14/11/2006 - Amendment to name of appellant's solicitors - Paragraph(s) coversheet

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