Supreme Court of the NT|1992-08-20|Before: Asche CJ

TERRITORY INSURANCE OFFICE v. STUART GORDON ADLINGTON No. AP 16/1991 Number of pages - 14 Appeal and new trial - estoppel (1992) 84 NTR 7 (1992) 109 FLR 124 (1992) 2 NTLR 55 [1992] NTSC 60 (20 August 1992)

COURT IN THE FULL COURT OF THE COURT OF APPEAL OF THE NORTHERN TERRITORY OF AUSTRALIA ASCHE CJ(1), MARTIN(2) AND MILDREN(3) JJ CWDS Appeal and new trial - Appeal - General principles - Interference with judge's findings of fact - Finding that although insured suffered no specific or identifiable pecuniary loss, being deprived of opportunity to do better founded estoppel - Finding not supported by the evidence. Hansen v Marco Engineering (Aust) Pty Ltd [1948] VicLawRp 37; (1948) VLR 198, not followed and distinguished. Chin v Miller [1981] FCA 135; (1981) 37 ALR 171, applied. Estoppel - General principles - Whether doctrines of common law and equitable estoppel exist or whether only one doctrine of estoppel - In either case proof that insured altered his position to his detriment on the faith of the representation of the insurer is required. Grundt v Great Boulder Mines Pty Ltd ; , applied. Je Maintiendrai Pty Ltd v Quaglia , applied. The Commonwealth v Verwayen (1990) 170 CLR 394, applied. Thompson v Palmer ; , applied. Estoppel - General principles - Detriment required to be shown must be positive, real or material and entail a loss in monies worth rather than be a mere or speculative possibility - Detriment here was speculative rather than real or material - Point at which detriment must arise discussed. Chin v Miller ; , applied. Genders v Ajax Insurance Co Ltd ; , referred to. Soole v Royal Insurance Co Ltd (1971) 2 Lloyd's LR 322, referred to. The Commonwealth v Verwayen (1990) 170 CLR 394, referred to. Northern Assurance Company Ltd v Cooper , distinguished. Hansen v Marco Engineering (Aust) Pty Ltd ; , not followed and distinguished. Holts Corrosion Control Pty Ltd v CML Fire and General Insurance Co Ltd (1984) 3 ANZ Insurance Cas par 60-559, not followed and distinguished. Manufacturer's Mutual Insurance Ltd v New World Fabrications Pty Ltd and Ors (1987) 4 ANZ Insurance Cas par 60-775, not followed and distinguished. Estoppel - General principles - Whether real harm or positive detriment must entail a loss in money or monies worth - Pecuniary loss may not be necessary. Chin v Miller ; , referred to. Je Maintiendrai Pty Ltd v Quaglia , referred to. The Commonwealth v Verwayen (1990) 170 CLR 394, referred to. Insurance - Insurance companies - Public liability insurance

had been shown that in fact there was anything wrong with the way the case was 'run', it was not established that New World had suffered any detriment with the consequence that the estoppel was not made out. This argument is best met with the quotation of the following passage from Sutton Insurance Law in Australia and New Zealand at 443: 'The argument that the assured suffers no detriment from the acceptance of the invitation is met by saying that there is sufficient prejudice in his being deprived of the opportunity of directing the proceedings himself and of trying to achieve a better result. He loses the chance to see what he can do for himself, although it may well be that he could not achieve a more favourable verdict had he controlled the defence. Estoppel is not a cause of action and need not depend on proof of actual damage.'" 26. On the facts of that case, it is to be observed that the insurer had not only made payments of compensation to the worker, but had entered into a consent award, and then unsuccessfully applied to have the payments stopped. That case is therefore distinguishable on its facts, but in any event I do not accept that these observations of Campbell J are correct in law. 27. The decision of the Federal Court of Australia, on appeal from a single justice of this Court, in Chin v Miller [1981] FCA 135; (1981) 37 ALR 171, is strong authority for the proposition that, to establish detriment, the detriment must be "material," and that a speculative possibility of detriment is insufficient. In that case, the parties had negotiated the sale of a business and the land on which the business was conducted. The appellants signed the relevant contract documents and sent them to the respondent's solicitor for execution. Subsequently the respondent's solicitor informed the appellant's solicitor that the contracts had been signed by his clients, whereupon the appellants permitted joint purchasers with the respondents to enter into possession and guaranteed their bank account. The respondents did not return the contracts and a month later the appellants resumed possession. The court held that the appellants suffered no real or material detriment. Giving up possession was of mutual benefit to the parties, and by resuming possession after a month, the appellants had returned to their original position. The leading judgment was delivered by Fisher J with whom Keely and Gallop JJ agreed. At 181, after considering the observations of Dixon J in Grundt v Great Boulder Gold Mines Pty Ltd [1937] HCA 58; (1937) 59 CLR 641 at 647, his Honour observed: "From this it would appear to follow that the alteration of position must produce 'real detriment or harm', which real detriment or harm must flow as a consequence of the assertion of a different state of affairs. In the circumstances of the present matter, the question arises whether the alteration of position by the appellants by letting into possession and giving of a guarantee was a real detriment or harm, suffered by the appellants in consequence of the departure by the respondents from the assumption that they had signed the agreements. The appellants must accept the onus of satisfying the court that there was a real detriment or harm: Fung Kai Sun v Chang Fui Hing (1951) AC 489." 28. Later, his Honour observed (at 182-4): "But a real harm or positive detriment entailing a loss in money or moneys worth is the condition precedent which the authorities require. It is so stated in Spencer, Bower and Turner Estoppel by Representation 3rd ed at 92, as an essential element of estoppel, namely: '(e) Damage. Finally it must be shown that loss of money or moneys worth was (i) the actual, and (ii) the natural and probable result of the representee having acted as he did on the fact of the representation.' At p 104 appears the following passage: 'Similarly the damage, loss or prejudice which the representee must show to have resulted, in a natural chain of causation, from the alteration of position means, and means only, actual and temporal damage, - some loss of money or moneys worth, which admits of quantification or assessment.' There are many

authorities which establish that the representee who relies upon estoppel must prove that he has been materially affected and I cite dicta from only those which appear to have the greatest relevance. The necessity for material prejudice to be established was noted by the Privy Council in Fung Kai Sun v Chang Fui Hing, supra, where the alleged detriment lay in the fact that

mortgagors delayed for three weeks before they informed the mortgagee that the mortgage was forged. Lord Reid who delivered the judgment of the Judicial Committee said, at 506: 'In their Lordship's judgment this is the true test; the chance of recovering (from the forger) must have been materially prejudiced by the delay. In the present case their Lordships are of opinion that the appellant has not shown that he was materially prejudiced by the delay. The appellant took no action when he was told of the forgery, and he did not give evidence in this case. In the absence of any explanation from him, and the whole trend of the evidence being to show that he would not have taken any action even if he had been told of the forgery earlier, their Lordships are not prepared to assume that he might have done so, and it is only on that assumption that he can have suffered any possible prejudice by the law. In this matter also the trial judge was invited to act on an assumption, namely that the delivering up of possession for one month or thereabouts was in itself a detriment. However, this proposition must be considered in the light of the fact that the appellants appear to have been most anxious to have the purchasers in possession, as much in their own interests as in that of the purchasers. In addition, there was no evidence of what the appellants could or would have done to their benefit if the purchasers had not gone into possession. The court was invited to assume that the appellants lost material advantages or other opportunities during that period. As with their Lordships, this court should not be prepared to make such assumptions. This approach accords with that of Lord Robertson in George Whitechurch Ltd v Cavanagh (1902) AC 117 where he said (at 136): 'No-one has sworn or said that thereby the representee lost money which he would have got if he had not so acted.' The trial judge in his judgment referred to Yovich v Collyer (1972) WAR 143, where Wickham J gave reasons in which the other members of the Full Court concurred. In that case the plaintiffs accepted a contract of sale in reliance upon the representation of their agent that the purchaser had paid the deposit. Wickham J referred to a number of Australian cases where the requisite element of material disadvantage was noted. One of these was Thompson v Palmer [1933] HCA 61; (1933) 49 CLR 507, and he cited, inter alia, the following sentence from the judgment of Dixon J (as he then was): 'But, in each case he is not bound to adhere to the assumption unless as a result of adopting it as the basis of action or inaction, the other party will have placed himself in a position of material disadvantage if departure from the assumption is permitted' ((1972) WAR at 145). Wickham J continued his reasons (at 145) when he said: 'However, to make good the estoppel the representee must show a material disadvantage if departure from the assumption induced be permitted and in this respect the court said in Newbon v City Mutual Life Assurance Society Ltd [1935] HCA 33; (1935) 52 CLR 723 at 734: 'But what makes it unjust to permit the departure from an assumption so induced is that, were it permitted, the party so induced would through making the assumption find himself in a position occasioning material detriment to himself. Without this element there is no estoppel. It must appear that upon the faith of his belief by act or omission he has placed himself in a position which, if his belief proved correct, would be productive of loss.'" 29. Fisher J also referred (at 184-5) to passages in Hansen v Marco Engineering (Aust) Pty Ltd, supra, relied upon by the learned trial judge in this case, and in particular to the passage where Fullagar J said: "There is much other authority to the same effect, and this view is, I think entirely in accord with English principle. In Craine's case [1920] HCA 64; (1920) 28 CLR 305; affirmed (1922) 2 AC 541, it was never suggested that actual damage directly resulting from the mere entry into possession had to be proved." 30. Fisher J observed (at 185): "Counsel for the respondent relied upon this passage. In our opinion the statement that proof of actual damage is not necessary cannot be accepted as a principle of general application, in that it appears that it is in conflict with the requirement of 'material detriment' as enunciated by the High Court and Privy Council in the authorities earlier

mentioned. As Wickham J said in Yovich v Collyer, supra, at 147 in commenting upon Hansen v Marco: 'It is not of course,

necessary to show pecuniary loss but the prejudice must be real.'" 31. More recently, there are statements in The Commonwealth v Verwayen, supra, which show that the detriment must be "material" or "real" although pecuniary loss may not be necessary. Dawson J at 461-2 observed that justice cannot always be measured in terms of money, and the Commonwealth's conduct in not raising the Statute of Limitations had led the plaintiff to continue with the litigation and forego any exploration of the possibility of settlement "thereby subjecting himself to a prolonged period of stress in an action in which the damages claimed were for, amongst other things, a high level of anxiety and depression." Deane J was of a similar view (see 448-9) and his Honour elsewhere uses the expression "significant disadvantage" (see 444). Mason CJ (at 416) observed that "... evidence of detriment must be affirmatively demonstrated;" and that a person's change in position is not in itself a detriment; what is protected against is the detriment which flows from reliance upon the deserted assumption: see 415. Brennan J appears to have been of a similar mind, and emphasised the need for the change in position to be a cause of what he called "relevant" detriment: see 429. Clearly a majority of the court was not prepared to consider legal costs to be a relevant detriment as the plaintiff was entitled to an order for costs as a result of the late amendment to the pleadings to raise the Statute of Limitations, although some were prepared to consider any costs incurred over and above those recoverable on taxation could amount to detriment. McHugh J noted that no evidence of any detriment was led, and the only detriment that could be inferred was the unnecessary expenditure in costs which could be avoided by an order for costs (see 504). Most of the members of the High Court referred with apparent approval to Dixon J's classic judgment in Grundt at 674-5 and Thompson v Palmer at 547. In the former, Dixon J uses the expression "real detriment or harm" and in the latter "material disadvantage." Only Gaudron J (at 487) was prepared to accept that the possibility of detriment (such as the possibility of increased stress and anxiety) would be sufficient even though not established on the balance of probabilities. I adopt, with respect, the observations of Cox J in Je Maintiendrai Pty Ltd v Quaglia, supra, at 121: "It seems wrong to me that the court should find that the respondent has made out his defence (of estoppel) simply by devising possible alternative courses of action, and speculating about possible detrimental consequences, and then gratuitously attributing them all to someone who declined - or, it may well be, was unable - to give evidence of them for himself." 32. On the facts as found by the learned trial judge, I am unable to see that any real detriment was established. The detriment to which his Honour referred is entirely speculative. Moreover, on a consideration of the evidence, no real detriment was established. It is important to remember that the time for considering whether there has been any real detriment is the moment when the Territory Insurance Office refused to continue to extend indemnity to the respondent. This occurred in February 1987. As Spencer, Bower and Turner, op cit, observe at 110: "But it is of the utmost importance to notice that the 'detriment' which the representee must be shown to have suffered is judged only at the moment when the representor proposes to resile from his representation." 33. Mr Downes for the respondent submitted that the respondent was prejudiced in a number of respects. Firstly, he was forced to change solicitors but Messrs Turner and Deane, his own solicitors, were not able to act for him as they had already been involved in the matter for another party. But there is nothing to show that the solicitors available to him were unable to competently represent him, or even that, had the representation not been made, Messrs Turner and Deane would have been available to him in 1985. It appears that the respondent changed solicitors on a number of occasions and in the end had to find legal representation with an interstate firm. But there is a specific finding that there was no pecuniary loss established and there is nothing to show that the reason for the changes in legal representation, other than that caused by the inability of Poveys to act, was caused by the appellant's change in position. His Honour's finding that the changes of solicitor (other than the change from Poveys) were not of the respondent's making is not supported by any evidence at all. No reason for these changes was ever given by Mr Adlington. Next, it was suggested by his Honour that Adlington might have approached the plaintiff and sought to extricate himself on the basis of lack of means. But Adlington gave no evidence to this effect, and such evidence as there was, suggested that Adlington was not a man without means. Further, Adlington, if he was without means, had the same opportunity to extricate himself in 1987. Next his Honour refers to the possibility that Adlington might have persuaded the plaintiff to have accepted a small sum in settlement of the claim against him, but such a possibility was no longer feasible because substantial costs had been incurred with a consequent reduction in the chances of settlement. Again this is speculation. There is no evidence that Adlington attempted to settle the litigation after February 1987. On the contrary, Adlington fought the action to judgment, and it appears that he maintained a denial of liability to the plaintiff throughout. Next his Honour refers to involving Adlington's partner in some arrangement; but this appears to be contradicted by the finding that Adlington could have sought contribution from his partner Walsh in February 1987, and that such a claim was not then statute barred. Some further matters were raised by Mr Downes which were not dealt with by the learned trial judge. The first was an amendment made by the plaintiff at the trial in May 1991 which changed the manner in which the plaintiff claimed that the accident occurred from falling off a step-ladder to being upon the roof when it collapsed. But this change in the plaintiff's case was not caused by anything which flowed from the appellant withdrawing its indemnity to Adlington. In any event, the evidence was that Adlington knew that McCraith fell from the roof, and not the step-ladder, in May 1985. Next it was suggested that but for the insurer's representations, Adlington would have himself attended the accident scene. But there was no evidence that had Adlington inspected the premises this would have benefited him in any way. The appellant's assessors had visited the scene, and their report was made available to Adlington's advisers prior to the trial. It was not suggested that their investigation was in any way incompetent. I am unable to see how Adlington's failure to inspect the premises has been demonstrated to show any real prejudice. There was some complaint that the assessors' report was provided to Adlington's advisers only shortly before trial, but there was no evidence that this caused any embarrassment to Adlington or his legal advisers. Accordingly I am of the view that there was no evidence upon which a finding of material detriment to Adlington could be made. 34. Finally, it is necessary to deal with the respondent's notice of contention which is based on his Honour's finding that Adlington had told Powell that he wanted to be covered for "every eventuality." It was submitted by Mr Downes that in the circumstances, Powell's conduct in advising the type of public liability insurance which Adlington proposed to the appellant amounted to a representation by Powell that that policy would cover Adlington for acts of negligence caused during the period of the policy no matter when the loss occurred. It is to be observed that Adlington never sought rectification of the policy, nor did Adlington give evidence that this was his understanding of the cover he had. Without evidence of this kind there is no basis for inferring that Adlington's position was altered in any way. Furthermore, even if such a representation could be inferred, as a result of which Adlington altered his position by not seeking alternative cover elsewhere, there is no evidence that had Adlington known that the cover under the policy existed only if damage occurred or a claim was made whilst the policy was still on foot, that Adlington would have sought cover elsewhere or that any other insurer would have been likely to offer indemnity on the basis suggested. There was no evidence that Adlington suffered any material detriment based upon the alleged representation of Powell. In those circumstances, it seems to me to be unarguable that the learned trial judge's conclusion that no estoppel could arise from the circumstances of the original discussions that Adlington had with Powell was correct. 35. In conclusion, I consider that the appeal should be allowed, the judgment in favour of the respondent upon the Third Party Notice be set aside, that the Third Party Notice should be dismissed, and that the respondent should be ordered to pay the appellant's costs of defending the third party proceedings as well as the costs of this appeal.

by the evidence. Hansen v Marco

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TERRITORY INSURANCE OFFICE v. STUART GORDON ADLINGTON No. AP 16/1991 Number of pages - 14 Appeal and new trial - estoppel (1992) 84 NTR 7 (1992) 109 FLR 124 (1992) 2 NTLR 55 [1992] NTSC 60 (20 August 1992)

Parties

Cases Cited (12)