Donis & Ors v Donis [2007] VSCA 89

Procedure - Pleadings - Trial - Issues not apparent from pleadings allowed to be litigated at trial - Failure to amend not precluding judgment on facts as emerged - Terms on which issues allowed to be litigated to include order that pleadings be amended - Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491, applied; Wong v Mura [2001] NSWCA 366, referred to.

1 I have had the considerable advantage of reading in draft the reasons of Nettle JA. For the reasons which his Honour gives, I too would dismiss the appeal.

2 This is an appeal from a judgment given in the Commercial and Equity Division in favour of the respondent. Her claim was based in proprietary estoppel of the Dillwyn v Llewellyn kind.[1] She alleged that the first and second appellants were guilty of unconscientious conduct in failing to honour a promise, on the basis of which she had acted to her detriment, that she would be registered on title as proprietor of a one quarter share in their semi-rural property. They later sold the property at very considerable profit.

The facts

3 The third appellant, Steven Donis, is the elder son of the first and second appellants, Victor and Rosa Donis. Steven Donis has a brother, Michael Donis, who is some four years younger than he. In or about May 1995, Steven Donis met the respondent, Susie Donis, when he visited a mushroom farm in Bundoora at which she was working on a casual basis. He was a newly qualified police constable and she was a recently qualified school teacher. Thereafter they met for coffee and saw each other briefly, until Susie Donis left Australia in July 1995 for a holiday in Europe. Even by that time, however, they were committed to each other and there was talk of marriage. While Susie Donis was in Europe, Steven Donis also holidayed in Europe but without contact with her. Susie Donis returned from Europe on 13 October 1995 sometime after Steven Donis.

4 For a number of years, Victor and Rosa Donis lived in Mill Park and ran a fish and chip shop in Melbourne. But they were looking for a change in life style. On 11 July 1995 they entered into a contract to purchase a property in Plenty Road, Mernda, in what was then described as the "Prime Northern Edge of Melbourne Investment". It consisted of 40 acres of land, two brick veneer houses, farm shedding, cattle yards and pastures.

5 One of the houses was of approximately 18 squares and was about eight years' old. It comprised a lounge room, a dining room, three bedrooms - the master bedroom with an en suite bathroom - and a second bathroom with spa bath. That house was located in a two acre fenced-off section of the property described as 1575 Plenty Road. The other house was an older and smaller three bedroom brick veneer home. It was located in another adjacent fenced-off section of the property which was called 1565 Plenty Road.

6 The purchase price for the property was $350,000 and Victor and Rosa Donis paid the deposit of $38,500 from their own resources. They borrowed the remainder on first mortgage from National Australia Bank Ltd and the sale was completed on 18 November 1995. On 27 November 1995, they were registered on title as joint proprietors, subject to mortgage, which was paid off by 1999.

7 Soon after settlement they moved with their sons into the house at 1575 Plenty Road. Then, after a time, they shifted to the other house because it was closer to the sheds and other farm facilities. Then, some time after that, Steven Donis moved into the house at 1575 Plenty Road and began to make some of the mortgage payments.

8 Steven and Susie Donis were formally engaged to be married on 28 April 1996 and they were married on 16 February 1997. But before they were married, Steven Donis talked to Susie about their future and about "our property". He told her that 20 acres of the property belonged to them and that he had put all his savings towards the purchase of the 20 acres. She told him that she did not want to live at the farm and be isolated from her parents and sisters. He said, however, that it was the best investment they could make being so much land; and that while the house may be old they had 20 acres of land.

9 Victor and Rosa Donis also told Susie Donis that the house at 1575 Plenty Road and half of the 40 acres was Susie's and Steven's and that she and Steven could renovate the house and it would be like a new house. They said: "You don't need a new house, you can renovate the one you own and if you buy a new house, you won't have anywhere near the 20 acres". Victor and Rosa also said they should stay together as a family, the house being close to them, and that all Susie had to worry about was starting her family and giving them grandchildren.

10 Thus encouraged, Susie Donis fell pregnant on her honeymoon in March 1997 and after returning to 1575 Plenty Road she continued to work as a school teacher for only about another six months before stopping to have the child. During that time Steven Donis and she spent a considerable amount of money on making improvements and he and she and members of her family put in a large amount of work cleaning up the property and improving it. Then the child was born on 19 November 1997 and thereafter the respondent remained at home to care for him.

11 Following the birth of the child, the marriage became strained, and the respondent and Steven Donis began to argue. That led to a two week separation in August 1999 and ultimately on 18 January 2000 he left the house and left her with the child.

12 On 1 February 2000 she received a letter from Victor and Rosa Donis requiring her to vacate the property by 31 February 2000 [sic] and then on 5 February 2000 she came home to find that the house had been stripped bare. She was left with no other choice than to return with her child to her parents' home.

13 On 10 October 2002 Victor and Rosa Donis sold the property to a developer for $3.97 million. That led eventually to this proceeding. Susie Donis alleged that Victor and Rosa Donis were bound in equity to make good their promise that she would have a one quarter share in the property and thus that she was entitled to one quarter of the sale proceeds.

The judge's decision

14 The judge found that before Susie Donis married Steven Donis and for some time thereafter Victor and Rosa Donis made statements to her to the effect that she and Steven would be or were registered on title as owners of the house at 1575 Plenty Road and half the land. His Honour also found that Susie Donis acted in reliance on those statements to her detriment by agreeing to marry and by allowing herself to become pregnant sooner than would otherwise have been the case, and by moving into 1575 Plenty Road and spending money and effort in improving it rather than holding out to purchase a new house closer in to Melbourne as she would otherwise have done. As the judge expressed his reasons:

"She was led by the promises, which she reasonably believed to be true and would be acted upon, to marry earlier than she would have, to accept living at the Mernda property rather than purchase a home of their own in the closer-in suburbs which was her preference, to spend their money on their Mernda house, and to have a child and stay at home rather than pursue her career. On the collapse of the marriage and the separation of the parties it could be seen that these decisions had disadvantaged the plaintiff. If she and Steven had taken the course of buying their own home and had applied their money on that home, or even saved it, she would have had an asset. And if she had delayed children and pursued her career she would have been in a much better position financially and generally. But those opportunities were lost when induced thereby she acted on the faith of the defendants' statements and promises. I do not overlook that in the statement of claim the only detriment pleaded was the making of the contributions but all these other factors to which I have referred were raised in evidence and were readily apparent. It is clear, when the facts and circumstances are regarded overall, that the plaintiff's detriment is not confined to the contributions.

To the above matters of detriment is to be added the further factor that shortly after separation the new house was 'stripped' to use the plaintiff's description. On her evidence little was left. As I said earlier, the plaintiff has received no recompense for the improvements effected to the house including fixed items left in it.

All told in my view the plaintiff has suffered substantial detriment as a result of relying on the defendants' statements and promises."[2]

15 Later, in a separate judgment,[3] his Honour determined that Susie Donis was entitled to $600,000 out of the proceeds of sale of the property, as the minimum equity to do justice to her. In effect, the sum of $600,000 was the mid-point between one quarter of the value of the property as at the date of separation on 1 February 2000 with interest at 7% since that date, and one quarter of the value of the property as at the date of sale in 2002. In his reasons for judgment the judge explained that he had adopted that approach, because:

"In my view the present problem is not satisfactorily resolved on an attempted simple arithmetical basis and, for reasons mentioned, it could not be. That is by reason of the nature of the detriment on the one hand, and the specific promise and the value of the land in the various attendant circumstances on the other hand. Taking all relevant matters into account I consider that the amount required to satisfy the plaintiff's equity is not appropriately assessed through or by the channel of the value at separation or on the sale in 2002 as discussed above. In other words, it is not one or the other. Whereas in my assessment the former carries with it injustice to the plaintiff the latter carries with it injustice to the first and second defendants to a degree in each case that is disproportionate and unjust. The true and just position is between those positions at a point that cannot be calculated with precision as to amount for the reasons discussed. Regarding all the relevant circumstances, in my view the plaintiff's equity is appropriately and justly, considering the prejudice on each side, assessed at $600,000."[4]

Grounds of appeal

16 Despite a large number of grounds of appeal, the only grounds pressed in argument were that:

a) The sum of $600,000 bore no apparent relationship to the detriment suffered by the respondent;

b) The sum of $600,000 was "grossly in excess" of the amount required to satisfy the equity, because:

(i) The first and second appellants made the promise on the basis of an assumption which was not fulfilled;

(ii) The promise was gratuitous;

(iii) The obligation to pay the sum of $600,000 would have a significant effect on the appellants; and

(iv) The sum of $600,000 was disproportionate to the detriment suffered; and

c) The judge had erred by taking into account elements of detriment which were not pleaded.

The nature of the appeal

17 Counsel for the appellants conceded that the judge's decision was discretionary and accordingly that the appeal was governed by the principles in House v The King.[5] Assuming without deciding that it was so,[6] the appeal was conducted on that basis. But, for reasons which will appear, I do not consider that it makes any difference in this case.

The minimum equity

18 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[7] and Verwayen v The Commonwealth[8] 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."[9]

19 As the more recent decision in Giumelli v Giumelli[10] 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.[11] 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. [12]

20 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.[13] Thus, as was also said in Giumelli,[14] 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"[15] 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.[16] 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.[17]

The relief was not referenced to detriment

21 The appellants complain that the judge in this case failed to provide any reasoning as to how he came to the figure of $600,000. Further or alternatively, they submit that, even allowing for the degree of flexibility which his Honour was permitted to exercise in order to do equity, the adoption of the mid-point between the value of the property on the date of separation and the date of sale had neither logic nor common sense to commend it, and thus that it is indicative of error.

22 I reject that submission. In my view it is apparent from the way in which the judge approached the matter that, consistently with Giumelli, he began with the prima facie entitlement of the respondent to have the promise made good. It followed, as his Honour reasoned, that the respondent was prima facie entitled to receive a one quarter share of the proceeds of sale of the property. But then, looking at all the circumstances of the case, his Honour came to the conclusion that the full quarter share needed to be reduced to cater for a range of considerations which he outlined as follows:

"It remains, however, to determine the amount sufficient to satisfy the plaintiff's equity. It can be said immediately that the 1995 purchase price and the value at the date of marriage are not appropriate by reason of the significant preponderance of injustice to the plaintiff in determining the relevant amount on the basis of or by reference to either of those bases.

It is then instructive to consider the parameters on the other bases of valuation, taking first the value at the date of separation (1 February 2000) and secondly the sale price (at 10 October 2002). In gross terms, at these dates a one-quarter interest was $275,000 and $949,277.50 respectively.

Taking first the figure of $275,000, the first question that arises is whether it should be reduced by one-quarter of the amount of the costs of sale borne by the first and second defendants, namely $17,022. In my view it should not because the effect of adopting the value of the land at the date of separation for the purpose of assessing the amount to satisfy the equity is to take the plaintiff back to a time prior to the sale, when there was no question of a sale. In other words, the first and second defendants could not have it both ways. If the value determined by the 2002 sale price was adopted for these purposes it would be proper that the plaintiff allow a one-quarter share of the cost of sale. But it would be quite unfair to do so in the situation I am presently considering. The 2002 sale is irrelevant to the value at separation.

I should add, however, that whether the matter is considered from the point of view of the value at separation or the 2002 sale price, it would be proper to allow off an amount as representing a share of the burden of the mortgage following the marriage. I would allow only a modest amount of $2,000 on this account. I would not allow any other amount in respect of the mortgage in view of the specific terms of the promise and that part of the situation between the defendants was that Steven was contributing to the mortgage.

The next question is the allowance of interest. At this point I am considering only that which would be appropriate if the value at separation is taken. On that approach it is clear that interest must be allowed. For the plaintiff is to be compensated in an amount assessed by reference to the value of the land at 1 February 2000 yet will not receive payment until 2006. I add as to that that on the defendants' submission the amount payable to the plaintiff is to be held in an account earning interest and not paid to her until some indefinite time in the future. As to the rate at which interest should be allowed, counsel for the defendants suggested 7 percent which seems reasonable and I would allow interest at that rate. I note that counsel for the plaintiff said nothing as to the rate. As I calculate it, interest at 7 percent per annum on $275,000 from 1 February 2000 to 7 April 2006 is $118,986 which would increase the total amount to $393,986. If, however, interest is calculated on a compound basis the total amount produced is $417,758. If account is taken of the allowance for the mortgage those amounts reduce to $391,158 and $414,719 respectively.

Of course the plaintiff would in principle be entitled to interest on judgment which counsel for the defendants conceded would be at the rate prescribed under the Penalty Interest Rates Act 1983. For the moment however I put that aspect of interest, and other machinery orders, aside.

The next step in the exercise is to consider the situation from the point of view of the value determined by the 2002 sale price, one-quarter of which is $949,277.50. If the plaintiff is to have the benefit of the sale price it would be appropriate to allow off a one-quarter share of the costs of sale. I would also allow the amount of $2,000 in respect of the mortgage. This would produce an amount of $930,478.

Then it would be necessary to consider whether interest should be allowed. In my view interest should not be allowed save as might be payable on the judgment. My reasons for that conclusion are as follows. I accept the submission of counsel for the plaintiff that the amount determined as payable to the plaintiff be paid in the first instance by payment of the amount held in the trust account (which would include the interest earned thereon) and the balance out of the instalment of purchase price due on 10 October 2006. In this situation the question becomes whether the plaintiff should have interest on the total amount or on the balance to be paid out of the instalment. As mentioned earlier, it would seem that the instalments of the purchase price do not carry interest, which may explain why counsel for the plaintiff did not seek interest beyond that accrued on the $450,000 in the trust account. Furthermore, there would be difficulty in calculating interest as it would have to relate to a one-quarter share of the deposit and the first two instalments but also making allowance for the $450,000 taken as borne from the sale price and the interest earned thereon. I do not know at what rate interest has been earned on the $450,000. In principle, if such interest has accrued at less than 7 percent consideration could be given to requiring payment of the difference.

However, it is to be remembered that approaching the matter from the point of view of the 2002 sale price, the plaintiff has the advantage of in effect placing herself in that contract with the advantage of its terms. That contract, as I understand it, does not provide for interest on instalments. Hence, although on the one hand the plaintiff has been kept out of her money (one-quarter of the amount received so far by the first and second defendants being $457,617 which may be regarded, in the round, as being covered by the amount held in trust with accrued interest), on the other hand the first and second defendants have not received interest on the unpaid instalments. Although so regarded the balance of these scales is in favour of the first and second defendants as they have had the use of their money, yet the plaintiff has the advantage of the promise and security of payment. I do not overlook that her detriment is unable to be satisfactorily measured in money terms. Regarding the circumstances overall, however, I consider it would not be appropriate to allow interest if the matter is approached from the point of view of the 2002 sale price."[18]

23 The judge therefore concluded that it was not possible precisely to determine the exact figure that should be awarded, but that doing the best he could it seemed that the mid-point was more or less a true measure of the equity.

24 I see no error in that. The approach accords with authority and brings to account all of the considerations which appear to be relevant. Arguably, the respondent was entitled to something more than she was awarded. But so far as I am aware there is no generally accepted calculus which permits of precise valuation of qualitative considerations. Accordingly, like his Honour, I do not see how one could define in terms of mathematical precision the ultimate measure or amount of the qualitative considerations which needed to be allowed for. In the circumstances of this case, the best the judge could do was to make a broad-brush (and to some extent necessarily subjective) assessment of the figure, and that is what he did. To my mind the logic of his Honour's analysis is clear enough, and in accordance with principle, and for the reasons which follow I think that that the quantum is not exorbitant.[19]

Relief grossly in excess of amount required?

25 The appellants argue in the alternative that, even if the method of calculation were logical, the amount awarded was grossly excessive bearing in mind that the promise was made in the expectation that the marriage would endure; that the promise was gratuitous; that the relief accorded would severely affect the appellants and Michael Donis; and that the amount awarded was grossly in excess of any detriment suffered.

26 As appears from the judge's reasons, each of those matters was pressed on the judge and his Honour took them into account in reaching his decision. Accordingly, I propose to take them in turn in the way that his Honour did.

(i) Assumption that the marriage would continue

27 Dealing first with the proposition that the promise was made on the basis of an assumption that the marriage would endure, the judge accepted that the promise was made in the expectation that the marriage would last, but said that the promisors must be taken to have realised that the marriage could fail, and hence that the promise could not now be undone. As his Honour put it:

"... In the second place, the marriage was of two young people in a society in which the incidence of separation and divorce is notoriously high. Doubtless, the couple and their families had the expectation of a long, happy and successful marriage. Unfortunately the marriage failed. That failure was foreseeable to the defendants as a possibility when the subject promise was made. Yet, with such awareness, the promise was made. It was, of course, entirely a matter for the first and second defendants whether to make the promise. They chose to do so. It was their voluntary act made in the circumstances and for the reasons discussed in my judgment. They conditioned the promise on marriage but not otherwise, and the promise or its performance was not deferred for any period or dependent on the occurrence of any other event. In short, the defendants or, more particularly, the first and second defendants, took the risk of the marriage failing."[20]

28 With respect I see no error in that. It may be assumed that Victor and Rosa Donis hoped that the marriage would last for life. They may also have believed that it was likely to do so. But as the judge said, they must be taken to have known that it might fail and thereby come to an end and yet they did not make their promise conditional on the continuation of the marriage or provide that there would be any adjustment in the event of divorce.

29 Counsel for the appellants contended that despite the unconditional terms of the promise, the respondent could not reasonably have expected that she would be entitled to retain the promised interest if the marriage came to an end or that, if she did expect that she would, her expectation was an "extravagant expectation" out of all proportion to the detriment which she had suffered; accordingly, that her equity did not extend to holding Victor and Rosa Donis to their promise; and thus that it should be satisfied in "another and more limited way". Counsel prayed in aid of that contention the decisions of the English Court of Appeal in Jennings v Rice[21] and Otto v Grundy[22] and he submitted that his argument also found support in the observation of Deane J in Verwayen[23] that it would go beyond the requirements of conscientious conduct to hold a promisor to a commitment to convey land worth $1 million if the only detriment suffered were the erection on the land of a shed worth a few hundred dollars.

30 In my view those submissions are not persuasive. The English cases which speak of an "extravagant expectation" appear to be directed to situations where the terms of the promise or assurance are vague or imprecise. The point is illustrated in Jennings v Rice[24] in which the subject assurances were that if the plaintiff slept at the promisor's house she would "see him right" and that "this will all be yours one day". Given the imprecision of the terms in which the assurances were expressed, it was thought to be extravagant for the plaintiff to have assumed that the promisor meant thereby that she would give him her house. Robert Walker LJ explained the reasoning thus:

"Sometimes the assurances, and the claimant's reliance on them, have a consensual character falling not far short of an enforceable contract...A typical case would be an elderly benefactor who reaches a clear understanding with the claimant (who may be a relative, a friend, or a remunerated companion or carer) that if the claimant resides with and cares for the benefactor, the claimant will inherit the benefactor's house (or will have a home for life). In a case like that the consensual element of what has happened suggests that the claimant and the benefactor probably regarded the expected benefit and the accepted detriment as being (in a general, imprecise way) equivalent, or at any rate not obviously disproportionate. Cases of that sort, if free from other complications, fit fairly comfortably into Dr Gardner's first or second hypothesis (both of which aim to vindicate the claimant's expectations as far as possible, and if possible by providing the claimant with the specific property which the benefactor has promised).

However, the claimant's expectations may not be focused on any specific property... Moreover (as the judge's findings in this case vividly illustrate) the claimant's expectations may have been formed on the basis of vague and inconsistent assurances...

If the claimant's expectations are uncertain (as will be the case with many honest claimants) then their specific vindication cannot be the appropriate test. A similar problem arises if the court, although satisfied that the claimant has a genuine claim, is not satisfied that the high level of the claimant's expectation is fairly derived from his deceased patron's assurances, which may have justified only a lower level of expectation. In such cases the court may still take the claimant's expectation (or the upper end of any range of expectations) as a starting point, but unless constrained by authority I would regard it as no more than a starting point."[25]

31 In Ottey v Grundy[26] Arden LJ referred with apparent approval to that passage but added that she did not take it as detracting from what she described as the general proposition that the relationship between the promise and the remedy must be proportionate and that if the claimant's expectations are 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.[27] Arden LJ thus held it to be relevant to the choice of the appropriate remedy that a promise or assurance to convey property to the promisor's common law wife was made in the expectation that the parties would continue to live together.[28] Her Ladyship said that the trial judge had been entitled to treat it as a "special factor" which deprived the wife of "any expectation to have the assurances enforced to the letter".[29]

32 As the latter aspect of that analysis demonstrates, however, the English notion of "minimum equity" is different to the approach to proprietary estoppel which was sanctioned by the High Court in Giumelli v Giumelli. In England, the court looks at all the circumstances of the case in order to do what Lord Scarman LJ described in Crabb v Arun District Council[30] as the "minimum equity to do justice to the plaintiff".[31] The exercise is conceived of as requiring "proportionality" (which I take to mean substantial correspondence) between remedy and detriment, in much the same way that Mason CJ conceived of it in Waltons Stores v Maher[32] and The Commonwealth of Australia v Verwayen.[33] But, as has been seen, the effect of Giumelli is that, assuming that the promise, reliance and detriment have been established, the promisee is prima facie entitled to have the promisor held to the promise, and the court then considers all the circumstances of the case in order to determine whether it is necessary to mould or modify the relief to avoid going beyond what is required for conscientious conduct. As Brooking JA explained in Flinn v Flinn,[34] Giumelli means that departure from the assumed state of affairs is contrary to the requirements of conscientious conduct and it is a question depending on all the circumstances of each case whether departure is to be permitted.

33 There was nothing in this case which was vague or imprecise about the terms of the promises and assurances. On the facts as found, they were as clear as that if the respondent married Steven Donis she would be on title in respect of a half interest in the property. Nor do I accept that the promises and assurances only justified a level of expectation less than that. In my view it cannot reasonably be supposed that an educated young woman contemplating marriage, and bent on buying a new matrimonial home in which she would have an unconditional half interest, would be prepared to go to an older home (which she did not like) in an area well removed from her family (which she found to be disagreeable); put her and her husband's funds into improving the property and defraying mortgage payments; put her own efforts and those of her family into renovating the property; and allow herself to become pregnant and give up teaching sooner than she otherwise would have done, unless she had been assured that she had the unconditional half interest in the property.

34 Bearing in mind what Deane J said in Verwayen, I allow that an estopped party would not be held to a promise to transfer property worth $1 million if the only detriment suffered by the party entitled to the benefit of the estoppel were the outlay of a couple of hundred dollars in constructing a shed on the land. But I take the reason for that to be that the outlay of a couple of hundred dollars on something as insignificant as a shed would be such a small and impersonal degree of detriment as to be wholly compensable in cash. Where, however, as here, the detriment suffered is of a kind and extent that involves life-changing decisions with irreversible consequences of a profoundly personal nature, it is in my view beyond the measure of money and such that the equity raised by the promisor's conduct can only be accounted for by substantial fulfilment of the assumption upon which the respondent's actions were based.[35]

35 Of course it may have been different if the respondent had entered into the marriage without an intention that it should last. If the promises and assurances were premised on an assumption that the respondent intended to remain with Steven Donis for the rest of her life, and if it were later discovered that she had not had that intention at the time of the marriage, it is hard to see that it would have been unconscionable for the appellants to resile from their promises. But that is not this case. To the contrary, the facts as the judge found are that Steven Donis walked out on the respondent, leaving her to care for his child without a roof over her head and without any other form of support.

(ii) The promise was gratuitous

36 The judge treated the fact that the promise was gratuitous as in effect irrelevant. So do I. Properly understood the cases following Dillwyn v Llewelyn[36] are exceptions to the rule that equity will not assist a volunteer and not compel the completion of an incomplete gift.[37] As it is put in Meagher Gummow and Lehane's Equity,[38] the fraud of the promisor and the action of the complainant are sufficient to produce equity's intervention where it would otherwise decline interest. The underlying principle is that conduct of the promisor in engaging the complainant to change his or her position to their detriment on the footing that the promised property will be theirs, when acted upon by the complainant, creates an equity which binds the promisor to make good the expectation. Hence, the detrimental reliance which supports the estoppel need not constitute consideration in any sense.

37 The appellants point to the fact that in Sullivan v Sullivan Hodgson JA, with whom Beazley JA agreed, treated as a relevant consideration that the promise in that case was "gratuitous, given in the absence of any substantial moral obligation or any kind of trade off".[39] They argue that the judge in this case erred by failing to follow a similar approach.

38 I do not accept that argument. The suggestion that a promisor should not be held to his promise because it was made gratuitously without any kind of trade-off is tantamount to the idea, already rejected, that a promisor will not be estopped from abandoning his or her promise unless the promise is supported by consideration or unless there is some degree of financial correspondence between the value of the detriment and the value of the promise.

39 The idea that a promisor should not be held to his promise because of lack of prior moral obligation appears to me also to be flawed. It is true that Hodgson and Beazley JJA stated in Sullivan that one of their reasons for denying the promisee her prima facie entitlement was that the promise was given in the absence of any substantial moral obligation. But with respect it is not clear what their Honours meant by that observation. On the facts as found in that case it seems that the promise was moved by a sense of substantial moral obligation. The promisor was a relatively rich man. He had a home of his own and sufficient resources in his family trust to be able to purchase a second home in a nice area. The promisee was his sister and suffered from a rare eye disorder which made it difficult for her to read print. She was dependent on a social security pension and never had the capacity to buy her own home. She was living with her three children in a housing commission house, on subsidised rental, in a not very nice area. Not surprisingly, the terms of the letter in which the promise was made bespeak the promisor's consciousness of her position and the need to do something about it.

40 In any event, as Handley JA pointed out in his dissenting judgment in Sullivan,[40] proprietary estoppels of the Dillwyn v Llewellyn variety have not infrequently been enforced in the absence of any prior moral obligation. The equity which binds the promisor to adhere to his promise inheres in the detriment which the promisee suffers by acting in reliance upon the promise.

41 I add, for completeness, that the existence or lack of an existing moral obligation may sometimes throw light upon the question of whether enforcement of the promise or assurance would be excessive. As the decision in Jennings v Rice[41] serves to demonstrate, in a case where the meaning of a promise or assurance is uncertain, a lack of existing moral obligation may reveal that the plaintiff's expectation or assumption is extravagant and thus that equity is better satisfied in another and more limited way. But once again that is not this case. On the facts as found, the promise was as plain as that the respondent would have a half share or interest in the house at 1575 Plenty Road and half of the property and that her name would be on title. Despite the lack of prior moral obligation, the fact that the respondent was about to marry Steven Donis entitled her reasonably to believe that Victor and Rosa Donis meant what they said. At least in the circumstances which obtained in this case, there was nothing extravagant about that assumption.

(iii) Effect on the Donis family

42 The appellants contend that the effect of the order to pay out a one-quarter share of the sale proceeds of the property is a plainly relevant consideration in the formulation of equitable relief and that the judge was in error in giving it as little weight as he did. In the appellants' submission, the promise was given in the context of an affectionate family relationship which has since unfortunately broken down and, in those circumstances, the enforcement of the promise would ultimately impact on the ability of Victor and Rosa Donis to provide for the support of Steven Donis and his brother Michael.

43 At first blush that submission might seem to derive support from Giumelli, inasmuch as the High Court there allowed a degree of departure from the plaintiff's prima facie entitlement to have the promise made good because of circumstances which included a still pending partnership action between the plaintiff and members of his family; improvements to the promised land having since been made by members of the family other than the plaintiff, both before and after his residency there; a breakdown in the family relationship; and the continued residence on the promised land of one of the plaintiff's brothers and his family. The court held that in those circumstances qualification of the prima facie entitlement to the promised land was necessary in order to avoid relief which went beyond what was required for conscientious conduct by the promisors. Instead of being required to make good the promise by conveying the promised land, the promisors were ordered to pay what was in effect the value of the promised land to the plaintiff.

44 But upon closer examination, it does not appear that anything said in Giumelli is support for the idea that when a promised property has already been converted to cash, and a plaintiff seeks no more than payment of the cash, the amount to be paid should be reduced in order to mitigate detrimental effects upon the children of the promisor. Although the decision in Giumelli has been attributed to the court's concern for third parties,[42] that concern has to be seen in the context of the facts of the case. They included that the promised land was within a larger holding on which a family partnership (of which the plaintiff had once been a member) had at all relevant times carried on and continued to carry on its business, and that the plaintiff had left the land and the business after a breakdown in family relations in order to pursue another life. One of the innocent members of the partnership, who was a son of the promisor and the plaintiff's brother, had since moved into the promised property and spent money and effort effecting improvements. The plaintiff was still engaged in proceedings against the partnership for the winding up of the partnership. And for all intents and purposes, cash in hand equal to the value of the promised property was to the plaintiff just as acceptable as the promised land in specie. More significantly for present purposes, there was no suggestion that the amount of cash to be paid should be reduced because of the financial burden of the payment falling on or being felt by the innocent members of the partnership.

45 Arguably, the appellants' submission derives some support from the judgment of Hodgson JA in Sullivan. His Honour said there that one of the reasons that the requirements of conscientious conduct did not warrant holding the promisor to his promise was that the promise had been given in the context of an affectionate family relationship "which has since unfortunately broken down".[43] But again with respect, it is not wholly clear what significance his Honour intended to attribute to that fact. Many of the proprietary estoppel cases of the Dillwyn v Llewellyn kind have arisen in contexts of a breakdown in a family or other relationship leading to a promisor's refusal to honour his promise. Consequently, the fact that a family relationship has broken down since a promise was made is not ordinarily regarded as a reason to deny a plaintiff his or her prima facie entitlement to have the promise made good. In those circumstances it is to be doubted that Hodgson JA intended to state that it should be. With respect it seems to me that his Honour may have meant no more than to suggest that the plaintiff could not reasonably have expected her brother's promise to continue to bind in the circumstances of a family breakdown and that, if she did, her expectation was extravagant in the sense explained by Robert Walker LJ in Jennings v Rice .

46 In any event, the judge in this case gave careful consideration to the effects upon Michael Donis of the order to pay the respondent the sum of $600,000. His Honour said:

"The next point concerns the effect of an order on the expectation of the younger son Michael. While I do not overlook his position as a son in the family, I am yet concerned with the consequence in equity of detriment suffered by the plaintiff as a result of the breach of a specific promise made to her by Michael's parents. Furthermore, it is not as though the order to be made in this case will leave the first and second defendants without appreciable assets. At the worst they will have the benefit of three-quarters of the purchase price which is what they would have had if they had honoured their promise to place the plaintiff on title. As counsel for the plaintiff pointed out, the only prejudice they suffer is that which is consequent on the allowance of the amount assessed as sufficient to satisfy the equity arising in favour of the plaintiff as a result of their breach of promise."

47 With respect, I agree with his Honour's analysis. If the effect of the order on the Donis sons is a relevant consideration, which I doubt, then for the reasons given by the judge, the financial impact of the payment on Michael Donis, and for that matter on Steven Donis also, is in my view not so harsh or unconscionable as to warrant some reduction in the amount to be paid.

Disproportion between payment and detriment suffered?

48 The appellants further contend that, having regard to what they say was the detriment suffered by the respondent by acting in reliance on the promise, "it would be wholly inequitable and unjust to insist upon a disproportionate making good of the relevant assumption".[44]

49 They begin by pointing to the fact that the only elements of detriment which were pleaded were the improvements which the respondent made to the property, which the court valued at $40,000; mortgage payments made by Steven Donis during the marriage, which the court was unable to quantify but of which there was some evidence that around $20,000 had been paid; and the work which the respondent and her family did in cleaning up and improving the property themselves, the worth of which the court did not assess but which the appellants suggest is unlikely to have exceeded $20,000.

50 The appellants then say that if the respondent and Steven Donis had determined to purchase a house of their own, the evidence was that they had no more than $20,000 in cash available to put down as a deposit and therefore that they would have been limited to purchasing a house of no more than $200,000 in value. Furthermore, as the appellants would have it, there is no evidence as to whether such a house would have appreciated in value during the period of the marriage; and so, after allowing for stamp duty on the purchase and selling costs on sale upon the dissolution of the marriage, the assessment of the respondent's capital loss in respect of the house she did not buy is probably no more than $25,000. It follows, in the appellants' submission, that the financial value of a half share of the pleaded detriment is unlikely to have exceeded $15,000 and that any such amount has further to be reduced to allow for the rent-free accommodation which the respondent enjoyed for the period of the marriage.

51 There were then a number of further elements of detriment which, although not pleaded, were relied on at trial, including that the respondent would have sought to buy a newer house closer to her parents in which she had a financial interest; she married and became pregnant sooner than she would otherwise have done; and, consequently, she was obliged to suspend her school teaching career sooner than she otherwise would have done.

52 As to that the appellants argue that the court should have rejected or at least treated as being doubtful the respondent's evidence that but for the promises and assurances she would have delayed the marriage and having a child and giving up teaching, because: (1) it did not emerge until cross-examination and only then in the form of a non-responsive answer; (2) there was evidence that she was committed to Steven Donis and that she would have married him regardless of whether the promise was made; (3) inasmuch as a decision to have children is normally a decision made jointly by husband and wife, there can be no certainty that she would have delayed having a child or delayed giving up teaching any longer than she did; and (4) apart from her statement in cross-examination that suspending her career earlier had made it more difficult for her later to get back into teaching, there was no evidence to that effect. Further or alternatively, it was submitted that one simply cannot say on the balance of probabilities that a young woman suffers any detriment by reason of marrying earlier or having a child sooner than would otherwise have been the case; since for all one knows she may have done something else which put her in no better position.

53 In my view the appellants' contentions as to detriment break down at a number of levels. In the first place, the detriment constituted of spending $40,000 in effecting improvements to the promised property was not just the $40,000 outlaid but the fact that it was not outlaid in acquiring or improving a property in which the respondent would have had an interest. Whereas if the promise had not been made it may be supposed that the $40,000 would have gone to the acquisition of a home of the respondent's choice and in which she would have had a half interest, in fact it was spent on a property which she will not now ever own. The same is true of the amounts applied to mortgage payments in respect of the promised property and the work done on renovating the property. As the judge found, and is inherently probable, but for the promise of the property the respondent's and Steven Donis' resources and effort would have gone into a home of their own. Accordingly, the detriment is not just the value outlaid or the value of the work done or the value of what it may now have amounted to with capital appreciation. It is that because the respondent relied on the promise she was deprived of the substantial equity which she and Steven Donis would probably have acquired in a home of their own.

54 In the second place, I regard the so-called benefit of "rent-free" accommodation as substantially irrelevant. As Robert Walker LJ said in Gillett v Holt:[45]

"The point made in the passage [from Jones v Watkins[46]] may be thought obvious, but sometimes it is useful to spell out even basic points. If in a situation like that in Inwards v Baker,[47] a man is encouraged to build a bungalow on his father's land and does so, the question of detriment is, so long as no dispute arises, equivocal. Viewed from one angle (which ignores the assurance implicit in the encouragement) the son suffers the detriment of spending his own money in improving land which he does not own. But viewed from another angle (which takes account of the assurance) he is getting the benefit of a free building plot. If and when the father (or his personal representative) decides to go back on the assurance and assert an adverse claim then, as Dixon, J. put it in the passages just quoted from Grundt v Great Boulder Pty Gold Mines Ltd,[48] 'if [the assertion] is allowed, his own original change of position will operate as a detriment.'"

55 In the third place, while the evidence may be that the respondent and Steven Donis had no more than $20,000 in cash to put down as a deposit, it does not follow that they would have been limited to the purchase of a house of a value of no more than $200,000. One does not need to sit in the civil jurisdiction of this court for very long to appreciate that small deposits and soft loans are de rigueur in the purchase of homes in new housing estates. But, apart from that, if the respondent and Steven Donis had $20,000 in cash as well as the $40,000 which it was found that they spent in making improvements to the promised property as well as the $20,000 which it appears that Steven Donis may have paid by way of mortgage payments in respect of the promised property during the period of the marriage, there is indeed every reason to suppose that had they purchased a new home, as the respondent wished, it would have had a purchase price of several times $200,000.

56 Fourthly, and contrary to submissions put on behalf of the appellants, the law of proprietary estoppel is not a manifestation of the concept of unjust enrichment as understood in the law relating to restitution.[49] It is the product of a discrete equitable principle that the conduct of a promisor in engaging a promisee to change his or her position to the promisee's detriment binds the promisor to make good the promisee's expectation. The detrimental reliance which supports the estoppel is, therefore, not to be conceived of as consideration in any sense. It is not a case of quid pro quo and even less one which requires correspondence as between the financial value of whatever may move each way. It is only when adherence to the promise or assumption would cause injustice to others or go beyond what is required for conscientious conduct that the court should recognise that the promisee's equity may be better satisfied in another and more limited way.

57 Fifthly, the contention that the respondent should not be believed in her evidence that she would have delayed children and so delayed the suspension of her teaching career appears to me to be beyond the appellant's grounds of appeal. But putting that aside, it is simply not the case that the evidence did not emerge until cross-examination. It was plainly set out in the respondent's witness statement, which was filed and served in advance of the trial and tendered and received on the first day of the trial as the respondent's evidence in chief. The viva voce evidence which she gave thereafter on the point was not non-responsive but directly responsive to the questions which were asked of her in cross-examination. The respondent was extensively tested on it in cross-examination. And the judge accepted her as being a witness of truth. Additionally, it seems to me that what she said about her state of mind is likely to have been right. For granted that she was deeply committed to Steven Donis and would have married him whether or not the promise had been made, I take it to be commonplace for young couples who intend to marry, but lack the resources to purchase a house, to delay marriage and children until they have saved sufficient for the purpose.

58 Sixthly, counsel for the appellants submitted that it is probable that the respondent would not have acted any differently if she had been promised only that her husband was to have an interest in the property. If so, it was said to follow that she had failed to establish relevant detriment. But in point of fact that submission flies in the face of the respondent's evidence, of which the substance was that it was a matter of real importance to her that she be on title, and in point of principle it is a logical non sequitur. While it is clear for the purposes of the law of proprietary estoppel that there must be a sufficient link between the promise relied upon and the conduct which constitutes the detriment, the fact that a plaintiff might have acted in a particular fashion on the faith of a promise of one kind in no way detracts from the conclusion that she has acted to her detriment in acting in the same fashion on the faith of a different promise of another kind.

59 Finally on this aspect of the matter, I see no reason to doubt that giving up teaching to have children very early in a woman's career would make it more difficult for her to get back into teaching than it would be for a woman who taught for longer before taking time out. Without pretending particular knowledge of the teaching profession or of the attitude of the teaching service to women who take time to have children, it stands to reason that the longer a teacher goes on teaching before taking a substantial break from the job, the more confident she is likely to be in coming back to the job at a later time, and the more likely she is to have built up a reputation and associations able to smooth the way.

Detriment not pleaded

60 Last, the appellants contend that the judge erred in allowing the respondent to rely on the un-pleaded elements of detriment, and that the appellants were seriously prejudiced by being taken by surprise by the emphasis which was placed on those aspects of detriment.

61 In my view, that contention should also be rejected. It is true that there never was an application to amend the statement of claim to include the un-pleaded elements of detriment. With respect, the judge should have insisted that the matter be attended to.[50] As Priestley JA said in Wong v Mura,[51] if issues not apparent from the pleadings are allowed to be litigated at a trial, the terms on which it is permitted should include an order that the pleadings be amended accordingly.[52] Nevertheless, authority is clear that failure to amend does not necessarily preclude a judgment upon the facts as have emerged.[53] It is necessary to look at the actual conduct of the case to see whether the point was taken at trial. And in this case it is plain that from the first day of the trial to the last the matters now complained of were squarely in issue.

62 As already noticed they were set out in the respondent's witness statement which was tendered on the first day of the trial. They were then the subject of the respondent's cross-examination which in total extended over more than three days. They were then dealt with expressly in the appellants' final written submissions at trial, which were filed and delivered before the respondent's submissions. In that context the only thing said in opposition to them was that the respondent's evidence on them should not be believed. They were dealt with in the judge's reasons for judgment on liability[54] after which the judge heard further oral argument on remedies. And it was not suggested at that point, or at any other point before this appeal, that they were not in issue or ought not properly be considered.

63 The appellants contend that they were seriously prejudiced by the failure of the respondent to seek leave to amend because on that basis they did not cross-examine the respondent as to whether her decision to have a baby when she did and suspend her career as a teacher were related to the promise. In the circumstances, that idea is untenable.[55]

64 The appellants further contend that they were seriously prejudiced because they did not give evidence on the issue of whether the decisions were related to the promise and whether they knew or intended the respondent to have a baby and suspend work on the basis of the promise. In my view that proposition is equally hopeless. The appellants were represented by very experienced Queen's Counsel. He can have been in no doubt about what was involved. The only defence run at trial, however, was that the appellants did not make any of the promises or give any of the assurances which it was found that they did make and give. It was never part of their case that, if they made or gave the promises or assurances, they did not know or intend that the respondent would take them seriously and rely upon them. If, therefore, the appellants were prejudiced by their failure to give evidence on those matters, it was not because they were not on notice that the respondent alleged that she had taken the promises and assurances seriously and relied upon them to her detriment. It was the product of a rational forensic decision.

Conclusion

65 I would dismiss the appeal.

66 I agree with Nettle JA, for the reasons which his Honour gives, that this appeal should be dismissed.

- - -

[1] [1862] EngR 908; (1862) 4 De G F & J 517; 45 ER 1284.

[2] [2005] VSC 365 at [389]- [390].

[3] [2006] VSC 125.

[4] Ibid at [74].

[5] [1936] HCA 40; (1936) 55 CLR 499; and see Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513 at 518, albeit that it concerned a statutory discretion to dispense relief which was "just and equitable"; AMP General Insurance Ltd v Workcover Authority & Ors [2006] VSCA 236 at [27] and [28].

[6] cf. Flinn v Flinn [1993] 3 VR 712 at 750[119].

[7] [1988] HCA 7; (1988) 164 CLR 387.

[8] The Commonwealth of Australia v Verwayen (1990) 170 CLR 394.

[9] Ibid at 412, emphasis added.

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

[11] Olsson v Dyson (1969) 120 CLR 365 at 378-9; Meagher, Heydon, Leeming, Meagher Gummow & Lehanes Equity, Doctrines & Remedies at [17-085]; see also Pascoe v Turner [1978] EWCA Civ 2; [1979] 1 WLR 431 at 436.

[12] Sullivan v Sullivan [2006] NSWCA 312 at [20], per Handley JA, who dissented in the result but whose judgment contains a thorough and, with respect, persuasive analysis of the relevant authorities. See also, Handley, The three High Court Decisions on estoppel 1988-1990, (2006) 80 (11) ALJ 724.

[13] Jennings v Rice [2003] EWCA Civ 159 at [48], per Robert Walker LJ.

[14] Giumelli v Giumelli [1999] HCA 10; (1999) 196 CLR 101 at 125[49].

[15] Jennings v Rice, ibid; Sullivan v Sullivan at [23].

[16] Plimmer v The Mayor, Councillors and Citizens of the City of Wellington (1884) 9 App Cas 699 at 714_; Pascoe v Turner_ [1978] EWCA Civ 2; [1979] 1 WLR 431 at 436.

[17] Flinn v Flinn [1999] VSCA 109; [1999] 3 VR 712 at 744[96]; Gillett v Holt [2001] Ch 210 at 232.

[18] [2006] VSCA 125 at [65]- [73].

[19] cf. Jennings v Rice [2002] EWCA Civ. 159 at [3].

[20] [2006] VSCA 125[43].

[21] [2002] EWCA Civ 159.

[22] [2003] EWCA Civ 1176.

[23] (1990) 170 CLR 394 at 441.

[24] cf. Campbell v Griffin (2001) 82 P & CR DG 23, where the assurance was that the plaintiff would have a home for life.

[25] [2002] EWCA Civ 159 at [45]- [47].

[26] [2003] EWCA Civ 1176.

[27] Ibid at [57].

[28] Ibid at [49].

[29] Ibid at [62].

[30] [1976] Ch 179 at 198.

[31] See Campbell v Griffin (2001) 82 P & CR DG 23[5], per Robert Walker LJ.

[32] Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7; (1988) 164 CLR 387 at 404.

[33] (1990) 170 CLR 394 at 411. See further, Nicholas Hopkins, Understanding Unconscionability in Proprietary Estoppel (2004) 20 Journal of Contract Law 210 at 228.

[34] [1999] VSCA 109; [1999] 3 VR 712 at 749 [119].

[35] Verwayen at 462, per Deane J; and see also Gillett v Holt [2001] Ch 210 at 233, per Robert Walker LJ.

[36] [1862] EngR 908; (1862) 4 De G F & J 517; 45 ER 1284.

[37] Spry, Equitable Remedies, 6th Ed at 58.

[38] Meaher Gummow & Lehane's Equity, Doctrines & Remedies, at [17-110].

[39] [2006] NSWCA 312[95].

[40] [2006] NSWCA 312 at [54].

[41] [2002] EWCA Civ 159; cf Ottey v Grundy [2003] EWCA Civ 1176 at [57].

[42] Meagher Gummow & Lehane's Equity at [17-110].

[43] [2006] NSWCA 312 at [95].

[44] The Commonwealth v Verwayen (1990) 170 CLR 394 at 413.

[45] [2001] Ch 210 at 223.

[46] 26 November 1987 EWCA Civ Unreported per Slade LJ.

[47] [1965] EWCA Civ 4; [1965] 2 QB 29.

[48] [1937] HCA 58; (1938) 59 CLR 641 at 674-675.

[49] Roxborough v Rothmans of Pall Mall (2001) 208 CLR 516 at 544-5.

[50] Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491 at 497.

[51] Wong v Mura [2001] NSWCA 366 at [4].

[52] Counsel for the respondent accepted that it was so and, in order to regularise the position, was directed to file and serve an amended pleading within seven days of the hearing of the appeal.

[53] Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658; Water Board v Mousakas at 497; Tourello Nominees Pty Ltd v Begg Dow Priday Advertising Pty Ltd [1986] ANZ Conv R 613, (1986) V Conv R 54-185.

[54] [2005] VSC 365 at [14].

[55] cf Isaacs v Hobhouse [1919] 1 KB 398 at 409; Preston v Green (1944) 61 WN (NSW) 204.