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: