Equity - Promissory estoppel - Alleged error of law - Loan agreement - Purported assumption by appellant that respondent would have recourse to security interest before seeking to recover from appellant personally - Whether primary judge misapprehended and misapplied Crown Melbourne Ltd v Cosmopolitan Hotel

1. Mr Wilson challenged the learned primary judge's factual findings on various key integers of the promissory estoppel defence: whether Mr Wilson in fact held the contended for 'trees first' recovery assumption; whether Mr Wilson relied on the alleged assumption; and whether resiling from the alleged assumption would cause a detriment to Mr Wilson. Otherwise there is no challenge to the factual findings made by the learned primary judge.
2. The nature of the relationship between the parties, the relevant transaction and the ensuing claim have been broadly described at [239] to [3] above. In amplification of those matters:
   1. Mr Wilson was the founding partner and, for over 15 years, the managing partner, of a Perth based law firm. He was also the founder of the Quintis group. Over many years, since about 1996, Mr Wilson was the executive chairperson or managing director of the Quintis group of companies. Quintis itself became a listed public company in 2006.
   2. In addition to being the founder of the Quintis group, Mr Wilson was an enthusiastic supporter and investor in its tax effective products.
   3. Arwon was a subsidiary of Quintis. Since 2000 it acted as a financier and lent money to borrowers who would commit to using the funds in the acquisition of sandalwood investments promoted by the Quintis group of companies. As at 30 June 2014, Quintis and Arwon had a common board. That board consisted of Mr Wilson and another four directors. As mentioned, Mr Wilson was CEO of both companies. He thus occupied the senior management position within the two companies.
   4. The loan the subject of the proceedings was used by Mr Wilson to invest in woodlots extending over some 215 hectares of a sandalwood plantation. In that respect Mr Wilson entered into an Investment Management Agreement (IMA). The terms of the IMA were in evidence.[8] However, little attention was given to the express terms of the IMA at trial[9] and there was no mention of them at the appeal hearing. Accordingly, it is not necessary to consider the detail of the IMA's provisions.
   5. Mr Wilson and Arwon entered into a written loan agreement on 30 June 2014. The terms of the loan agreement were varied by a deed of variation dated 20 February 2016. The variations - as distinct from the fact of the variation - are immaterial to the issues on appeal. As part of the loan arrangements, Arwon held a registered security over Mr Wilson's leasehold interest in the sandalwood tree plantation woodlots acquired using the money advanced by Arwon pursuant to the loan (see [15] below).
   6. The express terms of the loan agreement provided for repayment over seven years. However, in the event of default the repayment obligations could be accelerated. Arwon could require immediate repayment of the whole of the debt. That is what occurred. On 7 June 2017 Arwon issued a notice of default. On 18 July 2017 Arwon informed Mr Wilson that the total amount owing under the loan had been accelerated to become due and payable. Demand was made for the outstanding balance.
   7. Mr Wilson did not pay the debt under the loan agreement and the proceedings were commenced.
   8. Arwon took steps to recover the loan the subject of the proceedings after Mr Wilson resigned his board positions. Mr Wilson accepted that Quintis was in financial trouble by the time that Arwon took the relevant steps.
3. The learned primary judge described the nature of Mr Wilson's sandalwood plantation investment by reference to his application to the Australian Taxation Office (ATO) for a private taxation ruling. That document contained a description of the sandalwood tree project in which Mr Wilson invested together with the nature of the related services to be provided to Mr Wilson by various Quintis related entities. The project itself - to be established within 18 months - was a forest managed investment scheme with an expected length of about 15 years. Mr Wilson was to lease 215 hectares from a Quintis related entity on which sandalwood trees would be planted for the afforestation business. The plantation was to be established at a cost of $66,000 per hectare (inclusive of GST). Mr Wilson was to be provided with establishment services, investment services, property management services and selling and marketing services. As a grower Mr Wilson was entitled to receive the net proceeds of sale from the growing and harvesting of the sandalwood trees on his leased woodlots.
4. It will be necessary to return to the application for a private taxation ruling when considering Mr Wilson's challenges to the learned primary judge's factual findings. Accordingly, it is best to mention some of its features now. Relevantly, the application dealt with finance aspects of the project. Among other things it stated:

Finance for the Project is being provided to [Mr Wilson] by Arwon ...

Arwon ... is entitled to a security interest ... over the assets of [Mr Wilson] as security for the repayment of the advanced funds.

The Project does not involve any form of non-recourse or limited recourse financing pursuant to which a Grower can leverage its tax deductions but not be at risk with respect to any of its financial obligations.

A Grower may elect to enter into a loan agreement during the Relevant Period and repay the loan to Arwon ... This Private Ruling will not apply if a finance arrangement entered into by the Grower includes or has the following features:

...

1. there are indemnity arrangements or other collateral agreements in relation to the loan designed to limit the Grower's risk;

1. lenders do not have the capacity under the loan agreement, or a genuine intention, to take legal action against the Grower ...[10] (emphasis added)
2. Mr Wilson's application for a private taxation ruling went on to assert:

As a result of entering the Project, the Grower will be financially at risk even after allowing for the taxation benefits associated with the Project ... Due to the fact that there is no non or limited recourse funding available to the Grower for the Project, the Grower's financial expenditure over the period of the Project far exceeds the taxation benefits which are available to the Grower from the Project. The Grower is at financial risk unless the Project derives sufficient business income for the Grower to recoup the financial outlays on the Project.[11] (emphasis added)

1. The ATO was provided with the written loan agreement between Arwon and Mr Wilson in support of the application for a private taxation ruling.
2. The terms of the loan agreement were in evidence[12] and were substantially reproduced in the primary reasons.[13] There were standard terms as to the advance (cl 2) and repayment (cl 3). Clause 4 provided for the grant of a security interest over the 'Collateral' (essentially Mr Wilson's right, title and interest in relation to the sandalwood plantation woodlots and all proceeds therefrom) as security for the performance of Mr Wilson's obligations. Mr Wilson undertook various borrower's covenants including an obligation to insure the collateral (cl 5). A list of 'Events of Default' were prescribed (cl 7). Among other things, an event of default permitted Arwon to accelerate repayment.
3. Clause 8 of the loan agreement provided for the exercise of rights where, after an event of default, the secured money was not immediately repaid. In addition to exercising 'any other rights provided by law' - consistent only with Arwon having an unconstrained right to exercise any of its legal rights on an event of default including that of seeking recovery in a court of competent jurisdiction - Arwon was entitled to exercise all or any of the following rights:
   1. Immediately enforce its security interest under the loan agreement (cl 8(a)).
   2. Declare all or any part of the secured money to be immediately due and payable (cl 8(b)).
   3. Exercise any rights and powers set out in the Property Law Act 1969 (WA) including the powers of a mortgagee on default and the power to appoint a receiver or a receiver and manager (cl 8(c)).
4. It may immediately be seen that cl 8 of the loan agreement is inconsistent with Mr Wilson's contended for 'trees first' recovery assumption. In his evidence in cross‑examination Mr Wilson said that he did not recall reading the loan agreement but had an understanding of what it contained. Mr Wilson said that he realised it was a full recourse loan and was aware that if he defaulted Arwon would have broad rights of recovery. It was, however, Mr Wilson's evidence that Arwon had a policy and practice that effectively trumped cl 8 of the loan agreement by giving priority to what is found in cl 8(c).[14]
5. Other relevant terms of the written loan agreement were cl 11 (dealing with representations and warranties), cl 15.3 (requiring variations to be in writing if to be effective) and cl 15.5 (an entire agreement provision). By those covenants Mr Wilson was to have disclosed all relevant matters for disclosure (cl 11(a)) and agreed that any representation not contained or referred to in the agreement was of no force or effect (cl 15.5). The loan agreement also confirmed at cl 15.12 that:

The rights, powers and remedies provided in this Agreement are cumulative with and not exclusive of the rights, powers and remedies provided by law independently of this Agreement.[15]

1. Clause 11(a), cl 15.5 and cl 15.12, like cl 8, were inconsistent with Mr Wilson's 'trees first' recovery assumption. Clause 15.3 was relevant so far as certain variations to the terms of the written loan agreement were reflected in a formal deed of variation entered into in February 2016. In this respect, inconsistently with Mr Wilson's contention by way of defence in the proceedings, the parties did observe the strict legal formalities prescribed by the loan agreement.
2. The final area of factual context that ought to be discussed at the outset is Arwon's loan recovery practice and policy. Mr Wilson's contended for 'trees first' recovery assumption relied heavily on this matter.
3. Mr Wilson gave evidence by witness statement, which was accepted by the learned primary judge, that Arwon had a historical practice from 2000 - which was still in existence in mid-2014 - which was applied to all borrowers regardless of their financial status or investor status. That practice was consistent with and became formalised by a 2013 document entitled 'Policy and Procedures' as referred to at [23] - [[[16]](2020_137.html#_Ref Arrange transfer of woodlot/s ownership to Arwon

Determine valuation of woodlot/s (as per adopted method) and seek approval from CEO / CFO in respect to:

(a) Shortfall in assessed woodlot/s value to Arwon Loan - Write off net Arwon Loan or take further legal action for recovery from borrower/s and/or guarantor/s.

(b) Surplus in assessed woodlots / value to Arwon Loan - Return of surplus funds to borrower/s.

Arrange transfer of woodlots to [Quintis][23]

1. Notes referred to various assumptions including that any proceedings were not defended and that the loan was not the subject of an agreement to accept the secured property in full and final payment for the outstanding loan amount. Elsewhere the Policy and Procedures document made reference to enforcement (par 7.3), bankruptcy (par 7.5) and insolvency (par 7.6). As to enforcement, the Policy and Procedures document stated:

If the debt has not been cleared, including principal, interest, fees and collection/recovery costs, then further action against the Borrower(s)(s) [sic] and/or Guarantor(s) should be evaluated from the perspectives of viability of recover [sic] and cost effectiveness.

1. At trial Mr Wilson asserted that the action items in the arrears management timeline were consistent with his suggested inflexible 'trees first' recovery policy. Mr Wilson contended that there was no discretion for the CEO or the Chief Financial Officer to not follow the policy.[24] However, the learned primary judge found that the Policy and Procedures document was no more than an internal procedure document.[25] It was no more than what it presented to be on its face, namely, a policy.[26] His Honour rejected, as illogical and commercially untenable, that the policy and procedures provided for in the document were set in stone and incapable of being departed from across the lifetime of any loan.[27] The learned primary judge found, in terms that are unchallenged on appeal, that the Policy and Procedures document was not a manifestation of an inflexible and universally applied 'trees first' recovery policy on the part of Arwon.[28]
2. There were, however, public statements of Arwon's loan recovery policy. As the learned primary judge noted,[29] Quintis' annual report for the year ended 30 June 2013 stated:

On default on payment of a debtor the Group's policy is to extinguish the receivable and to reclaim the underlying security being the sandalwood plantation. This plantation's fair value is recognised on the same valuation principles outlined in note 12 (Biological Assets) of these financial statements. Any difference between the fair value and extinguished receivable is recognised as a gain on settlement of trade debtor in the statement of profit or loss.[30] (emphasis added)

1. Later in the same report, in a note to the financial statements addressing financial risk management, Quintis stated:

In event of any default by an investor in a plantation investment, [Quintis] will seek to recover the outstanding amount by undertaking normal debt recovery procedures, but if necessary take possession of part or all, of the underlying plantation and either retain ownership or seek to on-sell.

Credit risk in trade receivables is managed in the following ways:

• - a risk assessment process is completed before granting loans to customers
• - timber lots are not allocated to an investor until the minimum initial payment is received;
• - payment terms are 30 days, unless 12 month payments terms are granted, in which case a signed payment plan commitment is obtained from the customer, and
• - if any defaults are recognised the company can claim on its security by reclaiming the underlying sandalwood lot.[31] (emphasis added)

1. There is some inconsistency between the two statements reproduced at [29] and [30] above. The latter, but not the first, refers to undertaking normal debt recovery proceedings. The learned primary judge did not refer to the latter statement and did not seek to reconcile the inconsistency between the two statements. Nor does it appear that the latter statement was brought to Mr Wilson's attention in the course of cross-examination. The earlier statement, and part but not the whole of the latter, were referred to by Mr Wilson in the witness statement that stood as Mr Wil[32]n's evidence-in-chief.32 Mr Wilson omitted any reference to Arwon seeking to recover by undertaking normal debt recovery proceedings.
2. The learned primary judge appears to have accepted that, as a matter of routine practice, the Quintis group preferred to first realise its security rather than embarking on a personal recovery action against a defaulting grower.[33] However, his Honour also found that:
   1. The Quintis' group preference was not some act of generalised waiver limiting Arwon's recovery options for the future against all its borrowers generally.[34]
   2. Arwon had never suggested to borrowers generally 'some truncation' in the loan recovery remedies available to it in the event of future default.[35]
   3. The loan recovery approach favoured by Arwon while Mr Wilson was on its board had not been established, inflexibly, as the only and invariable debt recovery strategy to be applied forever with no room for discretionary application of a different approach (as available under the relevant loan agreement) should Arwon see fit as regards a particular defaulting borrower.[36]
3. Those findings were not challenged on the appeal.

1. The learned primary judge identified, in broad terms, the nature of Mr Wilson's recoverability assumption and the promissory estoppel defence advanced at trial.[37] His Honour then developed at some length Mr Wilson's pleaded defence and Arwon's reply to the defence.[38] None of his Honour's consideration of the pleaded case is challenged in the appeal. What follows is only that as is necessary to put in context the issues raised in the appeal.
2. The substance of the defence was as follows:
   1. Mr Wilson asserted that Arwon had a policy, invariably applied, in relation to recovery of defaulting borrowers' loans: the so-called 'trees first' recovery policy.[39] Mr Wilson relied on three matters in asserting that he understood that there was such a policy and that it would apply to him in relation to the loan agreement:[40]

(a) Arwon's past practice in relation to defaulting borrowers (in particular since 2007);[41]

(b) the 2013 document entitled 'Policy and Procedures' (as referred to at [23] - [28] above) - which was said to manifest Arwon's inflexible and universally applied 'trees[42]irst' recovery policy;42

(c) discussions between Mr Wilson and officers of Arwon immediately prior to execution of the loan agreement.[43]

1. Mr Wilson claimed that, because of Arwon's prior conduct in this regard, he was led to assume that Arwon would always follow the 'trees first' recovery policy on default - without exception - as it was an inflexible and rigidly applied strategy. In entering into the loan agreement Mr Wilson assumed that the 'trees first' recovery policy would apply to him and that it would trump the terms of the written loan agreement.[44]
2. The consequences of the assumption were twofold. Mr Wilson claimed to have been led by Arwon's conduct to believe that notwithstanding the written terms of the loan agreement:[45]

(a) he could only be pursued personally as a debtor for a residual shortfall amount after first being credited with the value of Arwon's security in respect of his woodlots; and

(b) if there was no shortfall after such realisation of the security there could be no personal pursuit of Mr Wilson as a debtor (there being be no residual indebtedness to pursue).

1. Mr Wilson asserted that, as the proceedings constituted a departure from the 'trees first' recovery policy, there had been unconscionable conduct on the part of Arwon. It was alleged to be detrimental to Mr Wilson to pursue him personally for the debt under the loan agreement without first foreclosing against and crediting Mr Wilson with the ascertained value of his sandalwood trees.[46]

1. According to Mr Wilson, the ascertained value of Arwon's security over the sandalwood trees was to be determined in accordance with a fixed valuation formula for 'Self-Generating and Regenerating Assets' known as the SGARA.[47]
2. On Mr Wilson's case, applying the SGARA formula, the value of Mr Wilson's interest in the sandalwood plantation trees the subject of his woodlots exceeded $18 million. Thus the value of the security was more than the outstanding debt pursuant to the loan agreement. There would be no residual shortfall if Arwon foreclosed on its security and credited Mr Wilson with that value in reduction of the debt under the loan agreement. On that basis the alleged promissory estoppel was said to provide a complete defence to Arwon's claim.[48]
3. Turning, then, to the precise terms of Mr Wilson's pleading, the defence referred to the 'Plaintiff's Loan Policy' as a defined term in this way:

[T]he plaintiff did not seek to recover [debts under loan agreements such as Mr Wilson's loan agreement with Arwon] except by recourse only to the Security Interest [ie the security interest granted under the various loan agreements] ... in the Collateral [ie the relevant investor's right, title and interest in relation to his or her woodlots including the sandalwood trees and the product produced therefrom] ... granted by that investor in circumstances where the value of the Collateral exceeded the debt ... [49]

1. The promissory estoppel defence as pleaded then proceeded as follows at par 2(a) of the defence:

(ii) the defendant assumed that the plaintiff would apply the Plaintiff's Loan Policy to the legal relationship between the defendant and the plaintiff such that if there was an event of default with respect to the Loan Agreement the plaintiff would seek to recover the Secured Monies (as defined in the Loan Agreement) (Secured Monies) by having first recourse to the Security Interest in the defendant's collateral and would only seek to recover personally from the defendant to the extent that the value of the defendant's Collateral was less than the Secured Monies (the Recoverability Assumption);

(iii) the defendant entered into the Loan Agreement in reliance on the Recoverability Assumption and would not have entered the Loan Agreement but for the Recoverability Assumption (the Defendant's Reliance on the Recoverability Assumption); and

(iv) the value of the defendant's Collateral exceeds the value of the Secured Monies;[50]

1. Paragraph 2(a)(ii) pleads the contended for assumption said to found the defence; par 2(a)(iii) pleads Mr Wilson's asserted reliance on the assumption. Paragraph 2(a)(iv) alleges as fact the relevant circumstance which would, if Arwon was estopped from resiling from the contended for assumption, prevent Arwon from ever pursuing Mr Wilson for the debt under the loan agreement.
2. On appeal Mr Wilson summarised the contended for assumption as follows. If Arwon sought to recover money advanced under the loan agreement, it would do so by first transferring the secured woodlots to Quintis. In the event that, having regard to the SGARA valuation, the value of the transferred woodlots was less than the secured money, the balance owing would be payable by Mr Wilson.[51] In other words, by reason of Arwon's conduct in respect of its loan recovery policy and practice, in the event of a future default by Mr Wilson, Arwon's first recourse would be to its security interest; Arwon would only proceed against Mr Wilson personally if and to the extent that the value of the security was less than the debt.
3. Mr Wilson pleaded that Arwon induced or acquiesced in the assumption and his reliance on the assumption.[52] Mr Wilson alleged that:
   1. Arwon applied the loan policy since 2007.[53]
   2. Arwon knew that Mr Wilson held the assumption and relied on the assumption.[54]
   3. Despite such knowledge, Arwon remained silent and did not correct the assumption or Mr Wilson's reliance on the assumption before entry into the loan agreement.[55]
4. The pleaded case as to detriment was relatively sparse. Mr Wilson:

[said] further that if the plaintiff is permitted to depart from the Recoverability Assumption, the defendant will suffer detriment to the extent that the plaintiff is permitted to seek to recover any outstanding debt from him instead of seeking recourse only to the Security Interests in the Collateral;[56]

1. However, at trial then senior counsel for Mr Wilson accepted that the reference to 'only' went too far. The estoppel applied absolutely if the security value was greater than the debt but not otherwise. The case advanced at trial was that Arwon was only allowed to pursue Mr Wilson personally after it was ascertained whether the debt was greater than the security value; and, then, only if and to the extent that the debt was greater than the security value.[57]
2. Particulars were sought and provided as to the alleged detriment. As so particularised:

The detriment [Mr Wilson] will suffer, to the extent that [Arwon] is permitted to seek to recover any outstanding debt from him instead of seeking recourse only to the Security Interests in the Collateral, is:

(a) financial loss by reason that the financial value of the Security Interest in the Collateral is likely to be in excess of the money allegedly owed by [Mr Wilson] to [Arwon] under the Loan Arrangement;

(b) his legal and other costs of defending these proceedings; and

(c) further particulars will be provided following discovery and expert evidence.[58]

1. No additional particulars were provided.[59] At trial, although more relevant to the question of reliance, a submission was made on detriment that Mr Wilson would not have entered into the loan agreement but-for the 'trees first' recovery assumption.[60] If, however, Arwon was now permitted to depart from that assumption, it was contended for Mr Wilson that he would be forced to repay the entire amount of the loan without Arwon first having recourse to the security.[61] The detriment was said to be that Mr Wilson would have to pay the whole of the debt from his own funds and - were Mr Wilson to sell the woodlots to do so rather than Arwon having recourse to its security and simply crediting Mr Wilson with the value of the security - he would have to undertake the inconvenience and expense of finding a purchaser (all the while continuing to accrue interest and, presumably, other costs in maintaining the investment).[62]

1. One of Mr Wilson's grounds of appeal asserts that the learned primary judge's reasons were inadequate. Accordingly, it is necessary to outline his Honour's reasoning process in more detail than might otherwise be the case. It is convenient to do so under two headings. The first addresses the learned primary judge's reasons as a whole. The second is confined to the findings that his Honour made in relation to Mr Wilson as a witness. The latter are particularly significant so far as ground 5 - 7 challenge the factual findings of the learned primary judge.

The structure and essential components of the learned primary judge's reasons

1. The learned primary judge provided some uncontroversial background to the proceedings[63] and then identified the essential nature of Mr Wilson's promissory estoppel defence.[64] Before turning to the pleadings[65] (already discussed at [34] - [46] above), his Honour addressed Mr Wilson's antecedents and his various roles within the [66]intis group and Arwon.66 His Honour observed, in colloquial terms, that Mr Wilson was on 'both sides'[67]f the loan transaction67 and that Mr Wilson's 'trees first' recovery assumption was founded on knowledge obtained as an officer of Arwon and the Qui[68]is group of companies.68
2. The learned primary judge identified that Mr Wilson's assumption as pleaded relied on conduct as to Arwon's recovery dealings with other investors as leading to the alleged assumption. There was no representation, either express or implied, by Arwon to Mr Wilson - Mr Wilson instead argued that he was led, by Arwon's conduct, to assume that a 'trees first' recovery policy would always be followed in all circumstances of default and without any possibility of exception. However, his Honour also found that a promissory estoppel could arise in the absence of a representation.[69] The learned primary judge was correct to do so. For the purpose of the doctrine of promissory estoppel a relevant assumption or expectation may arise outside of a promise or representation.[70]
3. Following his review of the pleaded case, the learned primary judge addressed the principles applying to the equitable doctrine of promissory estoppel.[71] It will be necessary to return to aspects of this in addressing ground 1. His Honour then identified and discussed three key areas of factual context: the transaction as a whole and the application for a private taxation ruling in particular;[72] the terms of the written loan agreement;[73] and Arwon's loan recovery policy and procedure.[74] These matters, and the relevant conclusions of the learned primary judge in respect of them, have been considered previously.
4. In the course of exploring those factual matters the learned primary judge made several findings as to Mr Wilson's evidence. These will be returned to in the next section of these reasons. His Honour then embarked on a careful and detailed consideration of Mr Wilson's evidence. That consideration was primarily by reference to the witness statement that stood as Mr Wilson's evidence-in-chief. However, as necessary, his Honour considered additional matters arising in cross-examination and on the documentary evidence.[75]
5. Along the way, the learned primary judge rejected a number of critical aspects of Mr Wilson's evidence. Relevantly:
   1. In terms that have already been discussed (see [28] and [32] above), his Honour rejected Mr Wilson's suggestion that Arwon's loan recovery practice and procedure was an inflexible and invariable strategy to be applied forever without room for discretionary application of a different approa[76] should Arwon see fit.76
   2. The learned primary judge expressly rejected Mr Wilson's evidence to the effect that:

(a) it was his (Mr Wilson's) understanding in entering into the loan agreement that in the event of default Arwon would first foreclose on Mr Wilson's sandalwood plantation woodlots;[77]

(b) that understanding was 'the' (or 'a') 'major influencer' in his decision to borrow from Arwon;[78]

(c) had he (Mr Wilson) been told that Arwon would sue him personally in the event of default, rather than having first recourse to its security, Mr Wilson would not have proceeded with the investment.[79]

1. The learned primary judge rejected the evidence of Mr Wilson's 'understanding' (in substance his evidence that he held the 'trees first' recoverability assumption) on the basis that it was implausible.[80] His Honour considered it more probable that Mr Wilson did not direct his mind at all to what might happen on default, it being the furthest thing from his mind given his senior management position and Mr Wilson's status as an enthusiastic supporter and investor in Quintis' tax effective products.[81] The reliance evidence (that the alleged understanding was a major influencer) was 'unreliable, implausible, self-serving and inconsistent with' Mr Wilson's true motivation: to obtain an immediate income tax deduction by making an investment on the last day of the 2014 income year.[82] The rejection of Mr Wilson's hypothetical evidence as to what he would have done had he been told that Arwon would sue him personally, rather than resort to the security and credit Mr Wilson with the value of the sandalwood investment, was rejected for the same reasons.[83]
2. The learned primary judge also referred to portions of Mr Wilson's witness statements where he recounted conversations between himself and two officers of Quintis that occurred before entry into the loan agreement. On Mr Wilson's evidence, he (Mr Wilson) asked the officers whether he was getting the 'same deal' as all the other borrowers. Mr Wilson was told that he was not getting any less favourable terms.[84] The learned primary judge found that the evidence was vague[85] and not directed to the 'trees first' recovery assumption as pleaded.[86] While his Honour did not reject the evidence as to the conversations having occurred, his Honour found Mr Wilson's professed focus on borrowing terms (ie interest rate, term of loan and mixture of principal and interest repayments) to be insightful. Having regard to that, and the cross-examination as a whole, the learned primary judge found - in a finding that is unchallenged on appeal - that at the relevant time Mr Wilson was 'not at all' focussed on his potential exposure as a borrower on default. This, on his Honour's unchallenged finding, would have been the furthest thing from Mr Wilson's mind. The learned primary judge rejected Mr Wilson's evidence to the extent he suggested otherwise.[87]
3. Separately, the learned primary judge concluded that if, in fact (ie contrary to his Honour's rejection of Mr Wilson's evidence), such an 'understanding' was an 'influencer', then the understanding was an uncommercial and unreasonable one for Mr Wilson to have then held.[88] His Honour held that Mr Wilson, as a lawyer, knew or ought to be taken to know what had been agreed by the terms of the loan agreement.[89]
4. As to the value of his woodlots, Mr Wilson relied on a document provided to him by Quintis. However, this was issued only for insurance purposes. The learned primary judge found that it could not be relied on for other purposes.[90] Accordingly, Mr Wilson could not make out that part of his defence as pleaded at par 2(a)(iv) (ie that the value of the collateral exceeded the amount of the debt).[91]
5. Based on the foregoing, the learned primary judge stated that he would assess Mr Wilson's promissory estoppel defence as failing on the basis of his evidence-in-chief alone.[92] At the appeal hearing senior counsel for Arwon relied on this statement as a finding that Mr Wilson's case failed even if Mr Wilson's evidence-in-chief was accepted.[93] That is not what the learned primary judge intended to convey. Had Mr Wilson's evidence-in chief been accepted at face value there would have been findings that the contended for 'trees first' recovery assumption, and reliance thereon, were proven. In context his Honour was observing that, having regard to the findings he had already made in relation to - and in part rejecting - Mr Wilson's evidence-in-chief, the promissory estoppel defence could not succeed.
6. The learned primary judge went on, however, to make further findings about the reliability of Mr Wilson's evidence at trial.[94] Those findings are considered in the next section of these reasons.
7. The learned primary judge made a series of findings by way of conclusion. In substance his Honour concluded:
   1. The 'trees first' recovery assumption was not proved.[95] His Honour considered that it only emerged in the circumstances of Mr Wilson's default having then ceased to hold office as a director of Quintis and Arwon.[96]
   2. If, however, the contended for assumption was held, it was unreasonably reached and was an unreasonable assumption for Mr Wilson to hold in all the circumstances.[97]
   3. In all the circumstances Mr Wilson had not proven that he had relied on the contended for 'trees first' recovery assumption.[98]
   4. By its prior recovery conduct, Arwon made no relevant contribution towards encouraging, acquiescing in, ratifying or providing to Mr Wilson any reasonable basis for him to hold the contended for 'trees first' recovery assumption.[99] (No specific ground of appeal was directed to this finding. At the appeal hearing senior counsel for Mr Wilson suggested that this finding, at [217(d)] of the primary reasons, stood or fell with the findings challenged at [217(b)] of the primary reasons and invited the court to read grounds 4, 5 and 6 as also challenging the finding at [217(d)].)[100]
   5. Mr Wilson had not established that Arwon's debt recovery action amounted to relevant detriment.[101] The learned primary judge stated that Mr Wilson had not provided a persuasive basis to suggest how he was disadvantaged by the debt recovery action insofar as, on his case, the value of the sandalwood plantation woodlots substantially exceeded the amount of the debt.[102] His Honour considered that Mr Wilson looked to be more disadvantaged under a foreclosure scenario.[103]
8. It is not clear whether the learned primary judge made any relevant findings as to whether, assuming (contrary to the findings referred to at [59.1] and [59.3] above) the contended for assumption was held and relied on, Arwon knew of those matters. It is possible that an adverse finding in this respect is subsumed in the finding referred to at [59.4] above. However, on appeal Arwon did not contend this to be the case. Nor was it suggested that the finding referred to at [59.4] above stood in the way of the appeal being allowed if Mr Wilson was successful on his various grounds. In the circumstances we would not rely on the finding referred to at [59.4] above as answering Mr Wilson's plea as to Arwon's knowledge (see [42.2] above).

The learned primary judge's consideration of Mr Wilson's evidence

1. The learned primary judge made a number of adverse findings in relation to Mr Wilson's evidence. In these respects it is plain that the learned primary judge considered Mr Wilson to be an unsatisfactory witness.
2. As to whether Mr Wilson had signed a declaration as contemplated by the application for a private taxation ruling, his Honour found Mr Wilson's answers 'vague and unsatisfactory' and concluded that Mr Wilson was 'seeking to obfuscate'.[104] The learned primary judge recorded his impression that Mr Wilson 'strained unconvincingly' to distance himself from - or to diminish personal responsibility for - the content of the application as lodged on his behalf.[105] The evidence was said to be 'less than impressive' and indicative of a 'strong effort' to avoid direct personal responsibility for obligations where that end served Mr Wilson's purpose.[106]
3. Having regard to Mr Wilson's evidence as to Arwon's loan recovery policy - in substance that Arwon's inflexible first recovery action was recourse to its security by way of foreclosure against the secured sandalwood plantation assets before any personal recourse - the learned primary judge was critical of the lack of disclosure made by Mr Wilson to the ATO.[107] His Honour considered that it was 'less than a fulsome disclosure'[108] and that the position as advanced in support of Mr Wilson's defence was 'well out of alignment with the presentation of Mr Wilson's borrowing arrangements with Arwon to the ATO'[109] (as to which see [12] - [13] above).
4. In this respect there is, in our view, considerable force in the learned primary judge's observation - unchallenged by any ground of appeal - that:

such a significant and inflexible Arwon loan recovery policy (which Mr Wilson described in his evidence as a policy of Arwon that 'effectively trumped what is contained in clause 8 [of the loan agreement] or gave priority to ... what is in clause 8(c)' (ts 104)) ought to have been fully explained and disclosed to the ATO.[110]

1. While not expressly mentioned by the learned primary judge, the inadequate disclosure in this respect had two forensic implications. First, it told on Mr Wilson's credit in a general sense. Second, it impacted on the reliability of Mr Wilson's evidence as to the holding of the contended for 'trees first' recovery assumption and his reliance thereon. It is, to say the least, unusual that an experienced taxation solicitor would make a statement or cause a statement to be made on his behalf to a taxation officer that is potentially misleading in a material particular by reason of omission. The absence of any reference to the alleged recovery policy was potentially so misleading in circumstances where: (1) the ATO was provided with the terms of the written loan agreement; (2) the application for a private taxation ruling was in terms that there was a full recourse loan (ie no 'non-recourse or limited recourse financing') where Mr Wilson was 'at risk' as to his financial obligations, there were no arrangements limiting risk and Arwon, as lender, had the capacity under the loan agreement and a genuine intention to take legal action; and (3) there was no qualification or clarification that informed the ATO that Arwon's ability to recover the debt under the loan agreement against Mr Wilson was subject to Arwon first realising its security and crediting Mr Wilson with the assessed value of the woodlots.
2. Indeed, in cross-examination Mr Wilson seemingly accepted that cl 8(c) was inaccurate and incomplete given the nature of the defence he was propounding in the proceedings. Mr Wilson suggested that, on reflection, the loan agreement should have made it clearer that cl 8(c) effectively trumped the other parts of cl 8 and that cl 8 was not how Arwon operated.[111]
3. The alternate forensic possibility - and the one favoured by the learned primary judge given the findings that his Honour made in rejecting Mr Wilson's evidence (see [52] - [54], [59.1] above) - was that Mr Wilson did not hold the asserted 'trees first' recovery assumption and it was something that only emerged in answer to the debt recovery proceedings commenced by Arwon. This, in our view, is what underpins the observations of the learned primary judge as reproduced at [63] and [64] above. The absence of any relevant disclosure, given what was stated in the application for a private taxation ruling and Mr Wilson's background, was inconsistent with Mr Wilson holding the contended for 'trees first' recovery assumption on entry into the loan agreement: had the assumption been held the expectation is that it would have been fully disclosed and explained to the ATO. The lack of disclosure supported his Honour's eventual rejection of Mr Wilson's evidence as to his professed 'understanding'.
4. In addition to the learned primary judge expressly rejecting key parts of Mr Wilson's evidence in support of the promissory estoppel defence, his Honour found fault with Mr Wilson's evidence in that:
   1. There were inaccuracies in Mr Wilson's witness statement that were exposed in cross-examination.[112]
   2. In cross-examination Mr Wilson responded with 'bravado' when questioned as to Arwon's historical loan recovery practices.[113]
   3. His Honour assessed Mr Wilson as seeking to elevate the status of the 2013 document entitled 'Policy and Procedures' to advance his cause.[114]
5. More generally, reflecting on Mr Wilson's evidence after considering his cross-examination, the learned primary judge expressed doubts as to the reliability of Mr Wilson's evidence: his Honour concluded that he viewed all of Mr Wilson's evidence cautiously.[115] Specifically, so far as Mr Wilson gave self-serving evidence, his Honour was cautious about assessing that evidence unless corroborated from a reliable documentary source.[116] Among other things the learned primary judge had a significant concern that Mr Wilson lacked capacity to draw an appropriate line between his personal interests (as investor and borrower) and his obligations as a former board member and officer of Quintis and Arwon.[117]
6. The learned primary judge plainly formed an impression of the quality and reliability of Mr Wilson's evidence having seen and heard him give evidence at trial. His Honour stated:

Mr Wilson had presented as a witness at trial as a highly self-assured man. He appeared as thoroughly convinced of the righteousness of his position and of, in effect, of what he saw as the discriminatory conduct taken against him by his being exposed to a personal recovery suit pursued against him for his debt. At times, Mr Wilson gave evidence in sweeping fashion, lapsing into broad statements of generality. But some generalisations came to be exposed by cross-examination as lacking in supporting factual detail. Mr Wilson struggled when pressed for the detail and when exposed would seek to obfuscate.[118]

1. By way of conclusion as to his impressions of Mr Wilson's evidence, the learned primary judge criticised Mr Wilson's evidence in two particular respects. First, his Honour essentially repeated his earlier observations as to Mr Wilson's evidence concerning the application for a private taxation ruling - evidence the learned primary judge described as being 'highly unconvincing'.[119] Second, and most importantly, in what his Honour described as being the 'key areas' of Mr Wilson's evidence as regards the promissory estoppel defence, the learned primary judge did not assess Mr Wilson's evidence as being reliable.[120] While his Honour did not further describe those key areas, it is clear, reading the primary reasons as a whole, that his Honour intended this to include Mr Wilson's evidence as to holding the contended for 'trees first' recovery assumption (ie Mr Wilson's alleged 'understanding') and his reliance on the alleged assumption in entering into the loan agreement (ie Mr Wilson's alleged 'major influencer'). That is evident in as much as his Honour expressly rejected those parts of Mr Wilson's evidence-in-chief.

1. There are seven grounds of appeal. (Originally there were nine; two were abandoned at the appeal hearing.)[121] They fall into three categories: (1) alleged errors of law in his Honour's approach to the promissory estoppel defence; (2) an alleged error of law in failing to give adequate reasons for finding that Mr Wilson did not hold the recoverability assumption; and (3) alleged errors of fact in the learned primary judge's determinations as to the various integers of the promissory estoppel defence.
2. As to the alleged errors of law in assessing the promissory estoppel defence, the grounds advanced at the hearing were as follows:
   1. The learned primary judge erred in law in concluding that a promissory estoppel can only arise where an assumption as to the future, contended by the person asserting an estoppel, was reasonable or reasonably based; Judgment [94] - [101], [164], [174], [175], [190], [217(b)].
   2. The learned primary judge erred in law in concluding that a promissory estoppel cannot arise where the person asserting an estoppel is a director of a public company and makes an assumption as to the future based on 'inside' knowledge, being knowledge acquired by that person as a result of being a director of such publicly listed company; Judgment [167], [172], [190].
3. As will appear, only ground 1 had merit. Ground 9 attributes a finding to the learned primary judge that is not open on a fair reading of his Honour's reasons as a whole.
4. Ground 4 attacks the adequacy of his Honour's reasons:

The learned primary judge erred in law in failing to give adequate reasons for the finding that the assumption contended for by the Appellant (what his Honour referred to as the 'trees first recovery assumption') was not an assumption made and held by the Appellant as at 30 June 2014; Judgment [217(b)].

1. Then there are the grounds of appeal dealing with the learned primary judge's factual findings for rejecting the promissory estoppel defence:
   1. In the alternative to ground 4, the learned primary judge erred in fact in finding that the Appellant had not made the 'trees first recovery assumption' as at 30 June 2014; Judgment [217(b)]. Such finding was against the weight of the evidence.
   2. In the alternative to ground 5, the learned primary judge erred in fact in finding that the Appellant had not proved that he made the 'trees first recovery assumption' as at 30 June 2014; Judgment [217(b)]. Such finding was required by the evidence.
   3. The learned primary judge erred in fact in finding that the Appellant did not rely on the 'trees first recovery assumption' in entering into the loan agreement on 30 June 2014; Judgment [217(c)]. Such finding was against the weight of the evidence.
   4. The learned primary judge erred in fact in finding that had the Appellant made and relied on the 'trees first recovery assumption' in entering into the Loan Agreement with the Respondent on 30 June 2014, the resiling from such assumption by the Respondent would not cause a detriment to the Appellant; Judgment [218]. Such finding was against the weight of the evidence.
2. Grounds 5 and 6 may be considered together. Ground 5 alleges error in finding, positively, that Mr Wilson did not hold the contended for 'trees first' recovery assumption; ground 6 alleges error in not coming to the contrary conclusion - it is said that the learned primary judge was required to find that Mr Wilson held the 'trees first' recovery assumption. Grounds 7 and 8 deal with the finding made as to reliance and detriment but do not seek contrary findings.
3. Putting aside ground 4 (which would, if successful, result in the appeal being allowed), for the appeal to be upheld Mr Wilson must succeed on one or both of grounds 5 and 6 and each of ground 7 and ground 8.[122] That is so even if Mr Wilson succeeds on ground 1. Senior counsel for Mr Wilson suggested, however, that there were difficulties in untangling the learned primary judge's reasoning and the outcome on some grounds would necessarily impact on others, going so far as to submit that if Mr Wilson succeeded on ground 1 alone there would have to be a re-trial as the error represented by ground 1 infected the findings challenged by grounds 5 - 8.[123] We accept that success on ground 1 may inform grounds 5 and 6; and, similarly, the outcome on grounds 1, 5 and 6 may inform consideration of grounds 7 and 8. However, we reject any suggestion that ground 1 is automatically dispositive of any of grounds 5 - 8 or the appeal generally. When regard is had to the doctrine of promissory estoppel - and its various accepted integers - it is necessary for Mr Wilson to succeed on either ground 5 or 6, and to succeed on each of grounds 7 and 8, if he is to succeed on the appeal.
4. All of the grounds require an understanding of the law applying to equitable estoppel. Accordingly, it is convenient at the outset to mention the relevant principles as relied on by the parties.

1. In presenting Mr Wilson's appellant's case, senior counsel for Mr Wilson was at pains to distinguish between various forms of estoppel: common law estoppel as against estoppel in equity; estoppel by representation against estoppel by conduct; and promissory estoppel against proprietary estoppel. We did not understand senior counsel for Mr Wilson to suggest that this exhausted the taxonomic possibilities. For the purpose of this appeal senior counsel for Mr Wilson sought to emphasise equity's concern with conscience and what, on Mr Wilson's reading of the learned primary judge's reasoning process, was a lack of consideration of 'unconscientiousness'[124] on the part of Arwon.
2. There is, as yet, no acceptance of a unifying overarching doctrine of estoppel in Australian law.[125] Moreover, distinctions are recognised even within the prescript of equitable estoppel.[126] However, this appeal does not require consideration of the doctrine of estoppel in all of its possible manifestations. Before the learned primary judge, and indeed on appeal, Mr Wilson's case was put in terms of an estoppel in equity relying on the doctrine of equitable promissory estoppel. It is unnecessary to consider any principles associated with some other species of estoppel.
3. The doctrine of equitable promissory estoppel operates to prevent a party (who we will refer to as the 'charged party') unconscientiously departing from an assumption or expectation which it has induced another party (who we will refer to as the 'claimant') to adopt and to act in reliance on to its detriment. This court has previously approved the following summary of the principle:

[F]or there to be an equitable estoppel there must be the creation or encouragement of an assumption that a contract will come into existence or a promise be performed, and reliance upon that promise in circumstances where departure from the assumption by the [charged party] would be unconscionable.[127]

1. Equitable estoppels (promissory and proprietary) are distinguished from common law estoppels by the circumstance that equitable estoppel is concerned with conscience - in particular with the prevention of unconscionable insistence on strict legal rights.[128] Thus it is said that the equitable doctrines result in new rights between the parties when it is unconscionable for a party to rely on his or her strict legal rights.[129] Nettle J has explained that the 'foundational principle on which equitable estoppel in all its forms is grounded is that equity will not permit an unjust or unconscionable departure from an assumption or expectation of fact or law, present or future, which that party has caused another party to adopt for the purpose of their legal relations'.[130]
2. Equitable estoppel has its basis in unconscionable or unconscientious conduct - and preventing the suffering of detriment occasioned thereby - rather than making good assumptions or expectations or bringing about the enforcement of promises.[131] It is grounded in the body of equitable doctrine that prevents unconscientious assertion of claimed legal rights.[132] The fundamental object of equitable estoppel is to protect a claimant against unjust detriment which would flow from the charged party's change of position if the charged party were permitted to depart from an assumption or expectation held by the claimant as induced by the charged party's representation or conduct.[133] It is the action or inaction of the claimant as induced by the charged party which is the foundation for equitable intervention as '[i]t is not the breach of promise, but the promisor's responsibility for the detrimental reliance by the promisee, which makes it unconscionable for the promisor to resile from his or her promise'.[134] So understood, detriment is relevant both in establishing the basis for the estoppel and in determining the appropriate relief. It also demonstrates that, while distinct concepts, there is a relationship between detriment and unconscionability.
3. More is required than simply a representation or conduct on the part of the charged party that induces the claimant to hold an assumption or expectation. A mere broken promise will not suffice.[135] In Waltons Stores (Interstate) Ltd v Maher Mason CJ and Wilson J stated:

[T]he doctrine of promissory estoppel ... extends to the enforcement of voluntary promises on the footing that a departure from the basic assumptions underlying the transaction between the parties must be unconscionable. As failure to fulfil a promise does not of itself amount to unconscionable conduct, mere reliance on an executory promise to do something, resulting in the promisee [ie the claimant] changing his position or suffering detriment, does not bring promissory estoppel into play. Something more would be required ... this may be found ... in the creation or encouragement by the party estopped [ie the charged party] in the other party of an assumption that a contract will come into existence or a promise will be performed and that the other party relied on that assumption to his detriment to the knowledge of the first party.[136]

1. In Waltons Stores (Interstate) Ltd v Maher four members of the High Court accepted that the elements of reliance and detriment may attract equitable intervention if it is unconscionable for a charged party to depart from an assumption or expectation he or she induced in the claimant.[137] More recently, Keane J has explained that, as the charged party is responsible for creating the assumption or expectation on which the claimant acted, an estoppel arises to prevent the claimant suffering a detriment.[138] So too Nettle J has emphasised the criticality of whether the charged party has played such a part in creating the assumption or expectation, in reliance on which the claimant has acted to his or her detriment, that it would be unconscionable for the charged party to depart from the assumption or expectation.[139]
2. The determination of whether it is unconscionable for the charged party to depart from an assumption or expectation created in the mind of the claimant depends on the facts and circumstances of the case.[140]
3. In Western Australia it has been fashionable to identify the requirements for the doctrine of promissory estoppel by reference to a re-formulated paraphrasing of the criteria enunciated by Brennan J in Waltons Stores (Interstate) Ltd v Maher.[141] They are:
   1. The plaintiff [ie the claimant] has assumed that a particular legal relationship then existed between the plaintiff and the defendant [ie the charged party] or has expected that a particular relationship would exist between them and, in the latter case, that the defendant would not be free to withdraw from the expected legal relationship.
   2. The defendant has induced the plaintiff to adopt that assumption or expectation.
   3. The plaintiff has acted or abstained from acting in reliance on the assumption or expectation.
   4. The defendant knew or intended him to do so.
   5. The plaintiff's action or inaction will occasion detriment if the assumption or expectation is not fulfilled.
   6. The defendant has failed to act to avoid that detriment whether by fulfilling the assumption or expectation or otherwise.[142]
4. Mr Wilson's defence was pleaded so as to pick up the six criteria set out in this passage.
5. Brennan J elaborated on the second element. A charged party who has not actively induced a claimant to adopt an assumption or expectation will nevertheless be held to have done so in certain circumstances. This occurs where the assumption or expectation can be fulfilled only by transfer of the charged party's property, a diminution in his or her rights, or an increase in his or her obligations and the charged party, knowing that the claimant's reliance on the assumption or expectation may cause detriment to the claimant if it is not fulfilled, fails to deny to the claimant the correctness of the assumption or expectation on which the claimant is conducting his or her affairs.[143]
6. The general application of Brennan J's six criteria retains wide judicial support.[144] It may, however, be accepted that where a case involves different circumstances to those considered in Waltons Stores (Interstate) Ltd v Maher Brennan J's general formulation of principles must necessarily be subject to qualification and refinement. In its application to particular circumstances the general formulation must be applied so as reflect and give effect to the broad equitable principles which underlie its application.[145]
7. The six criteria enunciated by Brennan J do not expressly mention the term 'unconscionable conduct'. However, before stating his often cited passage from Waltons Stores (Interstate) Ltd v Maher Brennan J asked himself the question: '[w]hat, then, is unconscionable conduct?'[146] After noting, first, that an exhaustive definition was both impossible and unnecessary,[147] Brennan J went on to consider the question he had posed by reference to authority and principle, identifying - both by example and principle - conduct that would or would not be unconscionable.[148] The six criteria, as amplified, summarise that discussion. As McLure JA has observed, unconscionability derives from the establishment of the six criteria; it is not a separate requirement.[149]
8. Read together the six criteria describe, in a non-exhaustive way, conduct that is unconscionable for the purposes of equitable estoppel. In the circumstances of the other criteria, the conduct attributable to the charged party warranting equity's intervention is found in the second, fourth and sixth criteria (the sixth constituting the charged party's insistence on his or her strict legal rights). However, the importance of the second criterion ought not be overlooked. Since Thompson v Palmer[150] and Grundt v Great Boulder Pty Gold Mines Ltd it has been well understood that the justice of an estoppel depends not only on the fact that a state of affairs has been assumed as the basis for action or inaction and departure therefrom would occasion detriment. The justice of an estoppel depends also on the manner in which the assumption has been occasioned or induced: the charged party must have played such a part in the adoption of the assumption that it would be 'unfair or unjust' (ie unconscionable) if he or she were left free to ignore it (although the concepts of fairness and justice are not at large).[151] Whether a departure by the charged party from the assumption or expectation should be considered unconscientious (or unjust) depends on the part taken by the charged party in its adoption by the claimant.[152] The charged party must have played such a part in the adoption of, or persistence in, the assumption or expectation that he or she would be guilty of 'unjust or oppressive' conduct if he or she were to depart from it.[153]
9. The enduring significance of the part played by the charged party in inducing the assumption or expectation is evident in the observations of Keane J and Nettle J referred to at [86] above. It also explains Beech J's observation that equitable estoppel is not concerned with a self-induced mistake (even if both parties made the same mistake). Rather, the charged party must have contributed to or occasioned the claimant's assumption or [154]ectation.154
10. While Brennan J's criteria for the establishment of an equitable estoppel are much quoted, the following passage from McHugh J's reasons in Commonwealth v Verwayen is also informative as to when conduct will be unconscionable for the purpose of the doctrine of promissory estoppel:

It will be unconscionable for a party to insist on his or her strict legal rights if that party has induced the other party to assume that a different legal relationship exists or will exist between them, if he or she knew that the other party would act or refrain from acting on that assumption and if, as a result, the other party will suffer detriment unless the assumption is maintained.[155]

1. Where an alleged equitable estoppel is grounded in a representation, the authorities have considered the degree of clarity that is required. In Legione v Hateley Mason and Deane JJ said that a representation must be 'clear', 'unequivocal' or 'unambiguous' before it can found a promissory estoppel.[156] It has, however, been suggested that it does not follow from the requirement that a representation be clear and unambiguous, that a representation which is insufficient to give rise to a contract will, on that account, necessarily disqualify (or prevent) the representation from founding an estoppel.[157] This topic has significance in the context of ground 1. Accordingly, it is best to defer more detailed consideration of when a representation is sufficiently certain to support an estoppel to ground 1.
2. It follows from the purpose of the doctrine of promissory estoppel, as discussed at [84] above, that it must be shown that the assumption or expectation created by the charged party's representation or conduct was in fact[158]ted upon.158 In the present case that reliance question - made explicit in Brennan J's third criterion - was the subject of ground 7. Further consideration of the authorities as to reliance is best addressed in the context of ground 7.
3. Detriment is concerned with the consequences that would enure to the disadvantage of a claimant who has been induced to change his or her position if the state of affairs so brought about were to be altered by the reversal of the assumption or expectation on which the change of position occurred.[159] The detriment must flow from reliance on the assumption tested at the time when the assumption is to be departed from.[160] Detriment is not a narrow or technical concept; it must be substantial, but it need not involve the expenditure of money or be quantifiable in monetary terms.[161]
4. However, there can be no real detriment if the claimant asserting the estoppel would have been in the same position in any event.[162] Also, detriment flowing from the charged party's failure to fulfil its promise (ie the claimant's assumption or expectation), but not from any act done or omission made by the claimant in reliance on the promise, is not relevant detriment.[163]
5. When established, equitable estoppel gives rise to an equity (ie an entitlement or obligation of which a court of equity will take cognisance)[164] in favour of the claimant claiming the benefit of the estoppel.[165] The remedy required to satisfy the equity varies according to the circumstances of the case.[166] Depending on the circumstances of the case the equity may, or may not, call for the enforcement of the assumption or expectation on which it is founded.[167] Relief is accorded only to the extent of the minimum content of the assumed state of affairs from which it would be unjust or unconscionable for the charged party to depart[168] - ie the minimum equity needed to avoid the relevant detriment.[169]
6. Thus consideration ought to be given to the extent to which it is unconscionable for the charged party to depart from the assumption or expectation that he or she has created.[170] To act conscionably a charged party need not necessarily make good the assumption or expectation induced by his or her representation or conduct. Good conscience does not, in all circumstances, preclude a departure from an assumed state of affairs - it may be, for example, that the detriment sustained by the claimant may be adequately compensated by other means.[171] The court, as a court of conscience, goes no further than is necessary to prevent the unconscionable conduct.[172] In that respect Waltons Stores (Interstate) Ltd v Maher has been interpreted as a case in which:

a majority of [the High Court] concluded that equitable estoppel entitled a party only to that relief which was necessary to prevent unconscionable conduct and to do justice between the parties.[173]

1. Plainly, however, there are cases where good conscience requires that a charged party be held to the assumption or expectation induced by his or her representation or conduct.[174] In those cases the relief may sometimes reflect the value of the promise inherent in the representation or conduct rather than require the performance of the promise or non-departure from the assumption or expectation.[175]

Alleged errors of principle in approach to the promissory estoppel defence (Grounds 1, 9)

1. The first category of alleged error consists of two grounds which each assert in a different way that the learned primary judge erred in law in his understanding of and approach to the equitable doctrine of promissory estoppel.

Ground 9 misconstrues the learned primary judge's reasons

1. Ground 9 is misconceived. Thus it is convenient to dispose of this ground at the outset. Mr Wilson's written submissions in support of ground 9 noted various passages where the learned primary judge referred to the contended for 'trees first' recovery assumption being based on 'inside knowledge' (or some similar expression).[176] Of itself there is nothing surprising about that and it cannot bespeak error on the part of the learned primary judge. Indeed, Mr Wilson's written submissions accepted that the alleged assumption was based on information that he acquired from or derived by virtue of being an officer of Arwon and other entities within the Quintis group.[177]
2. However, ground 9 then contended - by reference to three paragraphs of the primary reasons - that the learned primary judge erred in law by concluding that a promissory estoppel cannot arise where the putative assumption is based on knowledge acquired by reason of being a director. Mr Wilson contended that the law of Australia did not admit of a proposition that an assumption of a defendant derived from information obtained as a director could not contribute to the making of an assumption - and could not be relied on - so as to estop the company of which he or she was a director from resiling from the assumption.[178] In that way ground 9 and the submissions in support of the ground are premised on a particular construction of the learned primary judge's reasons. That is obvious so far as the submissions contend that the suggested proposition of law was erroneous '[i]f the learned primary judge's reasoning is to be understood' as relying on that proposition.[179]
3. In this respect ground 9 misconstrues the learned primary judge's reasons. His Honour did not enunciate and did not rely on any proposition of law to the effect of that alleged and sought to be challenged by ground 9 and Mr Wilson's submissions in support of that ground.
4. Paragraph [190] of the primary reasons (the only passage attacked by ground 9 which was dealt with specifically in Mr Wilson's written submissions) arises in a context where the learned primary judge is addressing the credibility and reliability of Mr Wilson's evidence. The reference to Mr Wilson 'sheltering exclusively under his Arwon insider's "hat" leading him to an insider's view about his future possible debt recoverability exposure wholly inconsistent with the express terms of his Loan Agreement' was an observation on the evidence. It led, in part, to a rejection of some of Mr Wilson's evidence.[180] In no way could it be understood as a proposition of law as was said to provide the basis for ground 9. Similarly, the passages at [167] and [172] of the primary reasons are dealing with the learned primary judge's examination of Mr Wilson's evidence: [167] simply explains the provenance of the asserted assumption; [172] does much the same - and the learned primary judge then goes on to conclude that taking the evidence at its highest it did not establish the contended for assumption.
5. Ground 9 should be dismissed.

The issue raised by ground 1 and the parties' submissions

1. Ground 1 contended, in effect, that the learned primary judge erroneously reasoned that a promissory estoppel could only arise where Mr Wilson's assumption was reasonable or reasonably based, the learned primary judge then concluding that the contended for 'trees first' recovery assumption did not satisfy that criteria. In this regard the learned primary judge referred to the reasons of French CJ, Kiefel and Bell JJ in Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd where their Honours stated:

It has long been recognised that for a representation to found an estoppel it must be clear. In Low v Bouverie it was said that the language used must be precise and unambiguous. This does not mean that the words used may not be open to different constructions, but rather that they must be able to be understood in a particular sense by the person to whom the words are addressed. The sense in which they may be understood provides the basis for the assumption or expectation upon which the person to whom they are addressed acts. The words must be capable of misleading a reasonable person in the way that the person relying on the estoppel claims he or she has been misled. The statement that the tenants would be 'looked after at renewal time' is not capable of conveying to a reasonable person that the tenants would be offered a further lease.[181] (emphasis added) (citations omitted)

From those observations, a requirement of clinical objectivity in a representation argued to found an estoppel as regards what would be conveyed to the reasonable person, rather than to the particular plaintiff subjectively, is made clear. In my view, that same objective assessment approach must be equally applicable to the assessing of a contended promissory estoppel that is said to emerge out of circumstances other than by an overt representation.[182] (emphasis added)

1. Senior counsel for Mr Wilson criticised this as an erroneous re-statement of the principle in the quoted passage from the reasons of French CJ, Kiefel and Bell JJ in Crown Melbourne Ltd. According to senior counsel, the essence of the principle is that the conduct must be capable of giving rise to the assumption actually made.[183] At the appeal hearing this was expressed in terms that the question was not whether the assumption was reasonable but whether it was open to Mr Wilson to hold the assumption.[184] Senior counsel for Mr Wilson suggested that the relevant question was to ask whether the conduct, taken together, was capable of giving rise to the subjective state of mind that was found to have arisen.[185] On behalf of Mr Wilson it was submitted that the ratio decidendi of Crown Melbourne Ltd was that equity will not permit an unjust or unconscionable departure by B (the charged party) from an assumption that B has caused A (the claimant) to adopt - and B's conduct will have so caused A to adopt such assumption where conduct of B is capable of creating in the mind of A the assumption contended for by A. It is a question of fact whether A made the assumption.[186]
2. Mr Wilson accepted, however, that the notion of whether conduct was 'capable of creating' a belief in the mind of A connoted a qualitative inquiry. He submitted that the notion of whether conduct was 'capable of creating' a belief was the reasonableness requirement.[187]
3. In support of this understanding of the doctrine of promissory estoppel, senior counsel for Mr Wilson referred to observations by French CJ, Kiefel, Bell and Keane JJ in Sidhu v Van Dyke[188] as to the conduct of the claimant induced by the charged party being the 'very foundation' for equitable intervention such that reliance was a fact to be found.[189] Senior counsel for Mr Wilson also contended that:
   1. There was no recent judicial formulation where it is stated that for the doctrine of promissory estoppel to operate the assumption of the claimant based on the representation by or conduct of the charged party must be reasonable.[190]
   2. An objective element of reasonableness could not be infused into the inquiry. This was because most assumptions would not be reasonable, in such a sense, because the claimant could and should have converted the assumption engendered by the representation or conduct into a binding contractual commitment.[191]
4. Returning to the learned primary judge's reasons, his Honour also referred to observations of Keane J from Crown Melbourne Ltd, again in reference to Low v Bouverie,[192] and Nettle J.[193] By reference to Nettle J's reasons his Honour stated:

The key word 'reasonably' ... delivers the application of an objective standard of reasonableness said to be used in the evaluation of the contended estoppel.[194]

1. Senior counsel for Mr Wilson submitted that the learned primary judge focussed wholly, and thereby erroneously, on the second sentence of Nettle J's reasons at [221] in Crown Melbourne Ltd ignoring what was stated elsewhere in [221] and at [210] - [218].[195]
2. Thereafter, in the course of assessing the evidence, the learned primary judge referred to the 'establishment of a reasonably based assumption',[196] Mr Wilson having 'no right to reasonably assume' (original emphasis),[197] Mr Wilson 'not then ... acting or thinking reasonably'[198] and Mr Wilson's contended understanding being 'uncommercial and unreasonable ... a wholly mistaken understanding'.[199] In the learned primary judge's ultimate conclusions, his Honour stated:

Accepting for argument's sake that Mr Wilson at some point had persuaded himself in his mind (based upon his 20 years or so of Quintis group insider knowledge) the uncommunicated to anyone else assumption that Arwon would not pursue him personally until it had first foreclosed and only then if there was a SGARA value ascertained shortfall - then such an assumption was nevertheless an uncommercial and unreasonable assumption for him to hold in all the circumstances. It was commercially naive for Mr Wilson to make that assumption, absent some clearer express written commitment by Arwon confirming such a future position and issued by someone for Arwon other than himself (due to an obvious conflict of interest). But Mr Wilson never discussed obtaining such a written commitment with anyone else at Arwon/Quintis. He never got one. In truth, he simply ignored or took a gamble on the future, in circumstances where he had already obtained a significant tax benefit arising out of this investment by using the proceeds of the loan he received from Arwon. In such circumstances, a 'trees first' recovery assumption, if held, at 30 June 2014 (but which I would find is not proved) would in any event have been unreasonably reached. If anything, this expressed assumption position, I conclude, has emerged only very much later in the circumstances of Mr Wilson's repayment defaults and his cessation in holding board positions with Quintis and Arwon, after 27 March 2017.[200] (emphasis added)

1. Mr Wilson submitted that the reasoning referred to at [116] above demonstrated the learned primary judge's material error having regard to his Honour's legal conclusions as recounted at [110] and [[[201]](2020_13 If Mr Wilson did lead himself into holding such a view, then that was, I would find, an unreasonable state of mind for Mr Wilson to have reached.[202]

[A]ny assumption(s) that Mr Wilson held concerning a necessary future application to him as a defaulting borrower by Arwon of an inflexible future 'trees first' recourse against himself under the Loan Agreement, should he default in the future, would be unreasonable and self-induced. That state of assumption, if held, would be a case of an assumed position reached in the mind of Mr Wilson by his persuading himself of such a likely future recovery position to be followed by Arwon, more by way of a self-delusion, rather than by acting on a body of underlying rational facts to reasonably support that otherwise uncommunicated (by Arwon) state of mind and assumption concerning the extent of a his future risk exposure as a possible defaulting debtor, should he ever default on his repayments as a borrower years off in future.[203] (emphasis added)

What manifests at this point is Mr Wilson looking to capitalise essentially on a personal ignorance asserted as regards his legal exposures - by reference to a future default hypothesis tied to security foreclosure - an issue about which, acting reasonably, Mr Wilson had no right to make any such an assumption, absent some firmer and better express contractual commitment by Arwon to support him.[204] (emphasis added)

1. In responding to ground 1, Arwon contended that the authorities established that the claimant's assumption must be reasonable.[205] In Arwon's written submissions reference was made to a passage from Australian Securities Commission v Marlborough Gold Mines Ltd where, in answering a contention that an equitable estoppel prevented the appellant Commission from changing its attitude to a proposed scheme of arrangement, the court was purported to have stated:

It would have been unreasonable for the Company to assume that the Commission would continue to maintain the same attitude once the Windsor interpretation of the Law came to its attention. Accordingly, the case of equitable estoppel is not made out.[206] (quotation taking the form as contained in Arwon's written submissions)

1. That passage is not authority for Arwon's proposition that the claimant's assumption must be reasonable. It suggests no more than that the assumption cannot be unreasonable. Moreover, as so presented in Arwon's written submissions, the passage is referred to in a manner that is selective and potentially misleading. As it appears in the authorised version of the Commonwealth Law Reports, the sentence commencing '[a]ccordingly' is in its own paragraph rather than continuing on from the preceding sentence as is suggested in Arwon's written submissions.[207] It refers not only to the preceding sentence (the effect as presented in Arwon's submissions as reproduced above) but to the whole of the three paragraphs that precede the conclusion. The High Court found that, having regard to the appellant Commission's responsibilities under the corporations legislation and obligation to assist the court, when the Commission became aware of conflicting authority bearing on the lawfulness of the proposed scheme a departure from the position it took at the first hearing was neither unjust nor unconscionable. The passage relied on by Arwon referred only to what the claimant would have assumed had, at the first hearing, it paused to consider the consequences of Windsor[208] coming to the attention of the Commission: the claimant would have realised that such a decision would necessarily induce the Commission to reconsider its position.[209]
2. Read correctly, Australian Securities Commission v Marlborough Gold Mines Ltd is not authority for the proposition advanced by Arwon, ie that the claimant's assumption must be reasonable. Rather, in all the circumstances of that case - one of which was that the relevant assumption would have been unreasonable had the claimant turned its mind to the issue - the appellant Commission's departure from its position was neither unjust nor unconscionable. Consistent with prevailing authority the court primarily addressed the application of the doctrine of promissory estoppel by reference to unconscionability on the part of the charged party; the reasonableness of the claimant's position was secondary and relevant only to the extent that it bore on the issue of the conduct of the charged party.
3. Another authority, heavily relied on in Arwon's written submissions,[210] spoke of reasonable reliance.[211] That, however, is not the same as discerning a requirement that the claimant must adopt the assumption that would be adopted by a reasonable person. The relationship between the reasonableness of the assumption and the reasonableness of the reliance thereon is considered further below by reference to some observations of Deane J in Commonwealth v Verwayen (see [137] ‑ [138]).
4. One of the cases referred to by Arwon does contain a passage suggesting that it is essential that a claimant's claim for equitable estoppel be based on an assumption 'that it was reasonable of them to adopt and act on'.[212] However, the estoppel claim failed for other reasons.[213] Accordingly, the statement relied on is an obiter dictum. Moreover, beyond referring to two authorities - one of which was Australian Securities Commission v Marlborough Gold Mines Ltd and does not support the proposition stated - no reasoning is provided for the conclusion. In our view the decision is of no persuasive value in circumstances where the issue is given fuller consideration in the more recent High Court decision of Crown Melbourne Ltd.
5. Otherwise, Arwon sought to draw support for its proposition that the assumption must be reasonable from Crown Melbourne Ltd.[214] The proposition advanced was that a representation or conduct must be sufficiently clear and unambiguous to have induced the assumption relied on; reasonableness was said to be relevant to assessing whether the representation or conduct was clear and unambiguous.[215] Arwon accepted in this respect that the learned primary judge's re-statement of the principles his Honour drew from Crown Melbourne Ltd was 'capable of more felicitous expression'.[216] Arwon argued, however, that the learned primary judge's references to reasonableness were squarely in the context of assessing whether the conduct was sufficiently clear and unambiguous[217] and that his Honour's conclusions that, if held, the recoverability assumption was not reasonable or reasonably reached were consistent with the authorities it had referred to which indicate that an assumption must be reasonable for an equitable estoppel to arise.[218]

1. Enough has been said to make it apparent that ground 1 turns on whether the learned primary judge misapprehended and thus misapplied the effect of Crown Melbourne Ltd. It will be necessary to give that case further consideration in a moment. Before doing so, however, there are two matters that should be dispelled at the outset.

1. First, Arwon sought to characterise Mr Wilson as advancing a contention that an unreasonable assumption can support an equitable estoppel.[219] That is a strawman argument that does not deal with the substance of Mr Wilson's contention. Mr Wilson did argue that the question was not whether the assumption was reasonable in the sense that, viewed objectively, the assumption as contended for was an assumption that would have been held by a reasonable person. But the crux of Mr Wilson's argument was that the charged party's conduct only had to be capable of conveying to a reasonable person in the position of the claimant the assumption or expectation as in fact held by the claimant. It was, in that way, accepted that to give rise to a defensive equity the subjective assumption as held had to be open such that the conduct was capable of creating the relevant belief in a reasonable person. Mr Wilson's argument was that there was no independent requirement that the assumption as contended for be objectively 'reasonable' (ie would have been held by a reasonable person) rather than suggesting that an unreasonable assumption might found a promissory estoppel.
2. In this respect, counsel for both parties engaged in some linguistic sophistry. Distinctions were sought to be made between an assumption that was:

1. A (not 'the') reasonable assumption.
2. The assumption that a reasonable person would (not 'could') draw - there being only one such assumption.
3. An assumption that a reasonable person could (not 'would') draw - this being an assumption that is capable of being drawn or is open to be drawn by a reasonable person.
4. An unreasonable assumption.
5. Senior counsel for Arwon suggested that an assumption capable of being reached by a reasonable person and a reasonable assumption were one and the same thing.[220] Senior counsel for Arwon did not, however appear to demur from the proposition that both were different to saying that a claimant had acted reasonably in all the circumstances of the case (as to which see [[130 Ultimately, however, the question whether departure from the assumption would be unconscionable must be resolved not by reference to some preconceived formula framed to serve as a universal yardstick but by reference to all the circumstances of the case, including the reasonableness of the conduct of the other party in acting upon the assumption and the nature and extent of the detriment which he would sustain by acting upon the assumption if departure from the assumed state of affairs were permitted. In cases falling within category (a) [previously described as where the charged party had induced the assumption by express or implied representation], a critical consideration will commonly be that the allegedly estopped party knew or intended or clearly ought to have known that the other party would be induced by his conduct to adopt, and act on the basis of, the assumption.[238] (emphasis added)

1. Thus, for Deane J, the reasonableness of the conduct in acting on the assumption - although not the reasonableness of the assumption itself - was a relevant factor in assessing whether the conduct of the charged party was unconscionable. That may, however, be a distinction without a difference. The reasonableness of the assumption controls the reasonableness of the conduct in acting on the assumption. There are representations and conduct that a claimant may reasonably be expected to appreciate he or she cannot safely rely on.[239]
2. In this respect, in our view, Deane J's reference to reasonableness ought to be understood conformably with the plurality in Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd and the reasons of the court in Australian Securities Commission v Marlborough Gold Mines Ltd.
3. Reasonableness has also been considered in a number of New South Wales cases adverted to in [96] above. In Australian Crime Commission v Gray the predecessor to the ACC, through an officer, made a representation that if the Grays entered into a witness protection program, co-operated and Mr Gray gave evidence, then they 'would be looked after' and 'would not be financially disadvantaged'. Mrs Gray alleged that the promise was broken and the ACC's predecessor thereby acted in an unconscionable manner. Mrs Gray sought equitable compensation basing the claim on promissory estoppel. Among other things the ACC argued that the representation was too ambiguous to found a promissory estoppel.
4. Ipp JA (Mason P and Tobias JA agreeing) referred to authority as to the need to determine how the representation would reasonably be understood.[240] His Honour also noted that implying a notion of reasonableness might give a promise a finite and objective quality.[241] Ipp JA identified that a promise may be definite - in the sense that there was a clear promise to do something - even though the something promised was not precisely defined.[242] As such there was no ambiguity in the representation in that case - the promise was that the Grays would not suffer any financial disadvantage subject to the constraint of reasonableness.[243] Ipp JA went on, however, to state that it was his view that the requirement that a representation must be clear to found a promissory estoppel was not intended as an absolute rule.[244] There were cases where representors had not been able to escape responsibility merely because of ambiguity or lack of clarity in their representations.[245] Ipp JA observed that in Waltons Stores (Interstate) Ltd v Maher there were different meanings that could be drawn from the appellant's conduct. That, however, was not an obstacle to finding the promissory estoppel to be established.[246]
5. Ipp JA stated:

The underlying reason for the rule that, generally speaking, an ambiguous or unclear representation will not give rise to a promissory estoppel is that the foundation of promissory estoppel is unconscionability. Unconscionability is usually difficult to establish when the representation is ambiguous or unclear.[247]

1. In a particular case, ambiguity might mean that no unconscionability could arise.[248] Ipp JA explained the result in Legione v Hateley on this basis stating that it was not unconscionable for Mr and Mrs Legione to deny responsibility for the detriment that arose because of the Hateleys' unreasonable reliance (that being a case where the representation was reasonably capable of bearing an innocent meaning).[249] Ipp JA considered, however, that there may be circumstances where reliance on a representation having an unclear or uncertain meaning might still give rise to an unconscionable result.[250] Accordingly, if, contrary to his view, the representation attributable to the ACC contained some ambiguity, there was nevertheless a basis on which the promissory estoppel was established.[251]
2. In Galaxidis v Galaxidis, a proprietary estoppel case, Australian Crime Commission v Gray was explained in these terms:

[T]he effect of this Court's decision in Gray is that even if a representation is insufficiently precise to give rise to a contract (as in the present case), that fact does not necessarily disqualify the representation from founding a promissory estoppel. Much will depend upon the circumstances in which the representation is made and the context against which it is to be considered. In its context, the representation is sufficiently clear and unambiguous if it is reasonable for the representee to have interpreted the representation in a particular way being a meaning which it is clearly capable of bearing and upon which it is reasonable for the representee to rely. In these circumstances, it would be unconscionable for the representor to deny responsibility for the detriment that arises because of that reliance.

On the other hand, if it is not reasonable for the representee to rely on the meaning he attributes to the representation in that had he acted reasonably he would have attributed an innocent meaning to the representation, then it cannot be unconscionable for the representor to deny responsibility for the detriment that the representee sustains because of that unreasonable reliance.[252] (emphasis added)

1. In short, if it is not reasonable (ie if it is unreasonable) for the claimant to rely on the meaning he or she attributes to the representation or conduct, then it cannot be unconscionable for the charged party to deny responsibility for the detriment that the claimant sustains because of that unreasonable reliance.
2. In Sullivan v Sullivan (another proprietary estoppel case) Hodgson JA stated (with McColl JA agreeing):

Generally, a promise or representation will be sufficiently certain to support an estoppel if it was reasonable for the representee to interpret the representation or promise in a particular way and to act in reliance on that interpretation, thereby suffering detriment if the representor departs from what was represented or promised. Generally, if there is a grey area in what is represented or promised, but it was reasonable for the representee to interpret it as extending at least to the lower limit of the grey area and to act in reliance on it as so understood, I see no reason why the Court should not regard the representation or promise as sufficiently certain up to this lower limit.[253]

The reasons in Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd

1. The learned primary judge and the parties referred to Crown Melbourne Ltd in detail. It is convenient, at this point, to refer to the facts of the case and identify the relevant matter in issue in the case. In Crown Melbourne Ltd a landlord, the owner of a casino and entertainment complex, entered into two leases of restaurant premises with commercial tenants. The leases were for a term of five years with no option to renew. The leases contained a covenant requiring the tenant to complete a major refurbishment. After the leases had been executed, but before they were delivered to the landlord, a representative of the landlord said to the tenants that, if money was spent to achieve the refurbishment to a high standard, the tenants would be 'looked after at renewal time'. However, at the end of the lease the landlord gave notice requiring the tenants to vacate. The tenants commenced proceedings claiming, among other things, that the statement gave rise to an estoppel which prevented the landlord from denying the existence of an obligation to offer to renew the leases.
2. The Victorian Civil and Administrative Tribunal held that the statement could found a promissory estoppel. The Tribunal did so on the basis that the statement engendered an expectation, namely, that the tenants would be offered further five year leases on terms to be decided by the landlord. However, this was different to what the tenants submitted they were led to believe. On the tenants' case, they assumed there would be a renewal, or offer of renewal, on the same terms as the original leases - a more precise and more demanding commitment as far as the landlord was concerned. An appeal to a single judge was successful. However, the Court of Appeal in Victoria allowed a further appeal, remitting the matter to the Tribunal, on the ground that the learned primary judge erred in holding that the landlord was not estopped.
3. On appeal in the High Court the landlord argued that the statement was ambiguous and an ambiguous statement could not found a promissory estoppel. It was said that the statement must be of a kind that would mislead a reasonable person and the claimant must in fact have been misled. The landlord also said that it could not be estopped from departing from an expectation never in fact engendered in the tenants.
4. The plurality (French CJ, Kiefel and Bell JJ) identified two reasons why the tenants' estoppel case failed:
   1. First, for the reasons set out in full in the passage reproduced at [109] above, because the statement that the tenants would be looked after at renewal time was not capable of conveying to a reasonable person that the tenants would be offered a fu[254]er lease.254
   2. Second, because the expectation that was found by the Tribunal to have been engendered by the statement was not the expectation on which the tenants said they had acted. Not only must the representation be such as to be able to create the assumption or expectation in question; it must be shown that the assumption or expectation engendered by the relevant representation or conduct was in fact acted upon.[255]
5. The first reason drew upon the English decision in Low v Bouverie.[256] That was a decision where a plaintiff sought to estop a defendant from denying the truth of his representation. Low v Bouverie has been influential in Australian consideration of the requirement that a representation must be clear before it can found an estoppel[257] and was referred to in the reasons of the plurality in Crown Melbourne Ltd and was also considered in each of the separate reasons of Keane J and Nettle J.[258] In Low v Bouverie the plaintiff was found to have 'too hastily' drawn an inference from the defendant's letters.[259] In terms of principle, however, Bowen LJ observed that the language upon which an estoppel is founded must be 'precise and unambiguous'. However, that did 'not necessarily mean that the language must be such that it cannot be open to different constructions, but that it must be such as will be reasonably understood in a particular sense by the person to whom it is addressed'.[260] Kay LJ expressed the requirement in terms that the statement must be 'clear and unambiguous'[261] and that:

it is essential to shew that the statement was of such a nature that it would have misled any reasonable man, and that the Plaintiff was in fact misled by it.[262]

1. The plurality's requirement that the relevant conduct be capable of misleading a reasonable person in the way contended for by the claimant echoed the language of Bowen LJ and Kay LJ in Low v Bouverie. It has the consequence that the defence of promissory estoppel must fail if the meaning which the claimant seeks to attribute to the charged party's representation or conduct goes beyond the meaning that it could reasonably bear in the circumstances.
2. Turning back to Crown Melbourne Ltd, Keane J, in separate reasons, rejected the estoppel case on the same two grounds as the plurality.[263] As to the first ground, Keane J held that it was 'clear beyond reasonable misunderstanding' that the landlord refused to bind itself to renew the leases and that no person in the tenants' position 'could reasonably have expected a renewal'.[264] Keane J suggested that the requirement of certainty was more demanding in promissory estoppel than proprietary estoppel and, in that connection, said that the observations in Sullivan v Sullivan (see [146] above) were not applicable to the case befor[265]he court.265 However, even so:

Where the expectation of the party asserting the estoppel which led to detrimental reliance was not reasonably attributable to the conduct of the 'opposite party', then the conscience of the opposite party is not fixed with an obligation not to resile from the expectation.[266]

1. Keane J also referred to Low v Bouverie[267] and went on to mention other authority which explained that the observations of Bowen LJ excluded far-fetched or strained but still possible interpretations.[268] His Honour approved a requirement of 'sufficient precision and freedom from ambiguity to ensure that the representation will (not may) be reasonably understood in the particular sense' as contended.[269] Arguably that is more demanding than the plurality's formulation that the words 'must be capable of misleading a reasonable person' in the way that the claimant claims he or she has been misled.[270] Keane J explained that the limit ensures that the operation of estoppel in equity is 'not allowed to underwrite unrealistic expectations or wishful thinking' so as to operate as an instrument of injustice.[271]
2. Nettle J, who also provided separate reasons, rejected as misplaced the notion that it takes a representation of contractual certainty to found a promissory estoppel[272] and in that respect - differing from Keane J - rejected the suggestion that there is or should be some distinction between the degree of objective certainty required to found a promissory estoppel as compared to that required for a proprietary estoppel.[273] Nettle J referred, on a number of occasions, to the doctrine of promissory estoppel being grounded in unconscionable conduct[274] and said the requirement that the representation be clear was to be understood in that sense.[275] However, it was not necessary that a statement be objectively unambiguous.[276] Nettle J considered that the equivocal or objectively ambiguous nature of a representation was but one, albeit important, consideration in assessing whether and to what extent an assumption or expectation is fairly and reasonably to be attributed to the charged party.[277]
3. In a passage that was reproduced by the learned primary judge,[278] Nettle J addressed the necessary correspondence between the claimant's assumption or expectation and the charged party's representation:

[B]efore a party charged can be estopped by representation, the party charged must have played such a part in the adoption of the assumption or expectation on which the other party has acted to the latter's detriment that it would be unconscionable for the party charged to be left free to ignore that assumption or understanding. But it does not follow that, because the claimant has made an assumption or reached an understanding of the meaning of the representation that goes beyond the meaning that could reasonably be attributed to it, the party charged is altogether free to ignore it. Depending on the facts and circumstances of a given case, it may still appear that it would be unconscionable if the party charged were free to depart from the meaning that may reasonably be attributed to the representation.[279]

1. Thus, because the doctrine of promissory estoppel is rooted in unconscionable conduct, the limit of the equity that may be asserted by the claimant is based on such assumption or expectation as 'may reasonably' be attributed to the representation. Anything further goes beyond what might be considered to be induced by the representation or conduct of the charged party. For this reason Nettle J considered that the landlord might be chargeable with such assumptions or expectations as might reasonably be attributed to the landlord's statement in the circumstances in which it was made (with the question of unconscionability requiring consideration of additional factual matters).[280]
2. In applying his legal conclusions to the facts, Nettle J noted that the Tribunal had found that the landlord's statement was capable of giving rise to a lesser assumption than that contended for by the tenants. However, the tenants had never sought relief according to what might reasonably have been regarded as the meaning of the statement. That, in Nettle J's view, was determinative of the appeal.[281]
3. Nettle J's formulation admits of the possibility that an unreasonable assumption does not preclude the operation of the doctrine of promissory estoppel - it may, in all the circumstances, still be unconscionable for the charged party to depart from the meaning that may reasonably be attributed to the representation or conduct. Thus lesser relief is accorded based on the meaning that is reasonably attributable. In a similar way Ipp JA, in Australian Crime Commission v Gray, offered illustrations of circumstances in which reliance on an ambiguous representation might nonetheless found unconscientious conduct on the part of the charged party giving rise to a promissory estoppel where equity intervened by fashioning relief based on the concept of minimum detriment.[282]

1. There are differences between the reasons of the plurality in Crown Melbourne Ltd and the reasons of Keane J and Nettle J. There are also differences in the reasons of Keane J and Nettle J. It may be that, in some cases, those differences will have significance. This is not such a case. Accordingly, now is not the time to linger over those differences and expatiate on what they might mean for the doctrine of promissory estoppel. The differences do not detract from the recognition that there is a basal common position. That common position is dispositive of ground 1.
2. Nothing in Crown Melbourne Ltd departs from the established position that the representation or conduct said to found a promissory estoppel must be clear. Nor is there any departure from the general principles applicable to the doctrine of promissory estoppel. However, while the overt representation or conduct on the part of the charged party must be clear, Crown Melbourne Ltd accepts that an equity may arise by operation of the doctrine of promissory estoppel notwithstanding that the representation or conduct is open to different constructions - the requirement that the representation or conduct be precise and unambiguous does not require that objectively it only convey a single meaning. That recognition is express in the reasons of the plurality[283] and Nettle J,[284] who together comprise an effective majority on this point.[285]
3. There was, in addition, a limit on the operation of the doctrine of promissory estoppel that was adopted by all five members of the High Court who considered the promissory estoppel case. The equity could not operate beyond a meaning as might reasonably be attributed to the representation or conduct. This was expressed in slightly different ways as has been developed earlier in these reasons.[286] Nevertheless, each of the plurality, and also Keane J and Nettle J, endorsed the view in Low v Bouverie that such a claim for an estoppel would fail where the meaning that the claimant sought to attribute to the representation and conduct went beyond the meaning that it could reasonably bear.
4. As it commanded the combined authority of the plurality, we consider it preferable to express the limit in terms to the effect of that employed by French CJ, Kiefel and Bell JJ. The representation or conduct must be capable of conveying to a reasonable person the meaning that the claimant asserts by way of assumption or expectation. The representation or conduct must be such that it is capable of creating the assumption or expectation in question.[287]
5. So understood, Crown Melbourne Ltd does not mean that the doctrine of promissory estoppel is approached by assessing, in a purely objective manner, what the charged party's representation or conduct would have conveyed to a reasonable person or that it is, in that sense, a 'reasonable assumption'. Rather, the objective limitation that arises to exclude certain assumptions or expectations from the operation of the doctrine of promissory estoppel is that the representation or conduct must be capable of causing a reasonable person to hold the belief that the claimant claims to hold. In this regard, we agree with the submission made on behalf of Mr Wilson (see [129] - [130] above) that there is a substantive difference between a reasonable assumption and an assumption that was capable of being conveyed to a reasonable person.
6. Keane J[288] and Nettle J[289] tied this limitation to promissory estoppel's grounding in unconscionable or unconscientious conduct.[290] The connection is plain having regard to the principles recounted at [80] - [102] above. It is necessary, having regard to the foundation for and object of the doctrine of promissory estoppel, that there be examination of whether the charged party played such a part in the claimant's detrimental change of position that it would be unconscionable for the charged party to depart from the assumption or expectation held by the claimant. If the claimant's assumption or expectation leading to detrimental reliance is not reasonably attributable to the conduct of the charged party it cannot be the case that the charged party's conscience is affected by an obligation not to depart from the assumption or expectation. Put alternatively, in terms of Brennan J's six criteria it cannot be said that the second criterion is satisfied. An assumption or expectation is not relevantly induced by the charged person where the impugned representation or conduct is not capable of conveying the same to a reasonable person in the position of the claimant. An unreasonable assumption or expectation is self-induced rather than being induced by the representation or conduct of the charged person.
7. The same sort of reasoning underpins the New South Wales line of authority referred to at [140] - [146] above. It explains the factual accuracy of Ipp JA's observation - advanced in terms of typical forensic outcome rather than a principle of law of general application - that unconscionability is difficult to establish when the representation or conduct is ambiguous or unclear. Moreover, the reasoning and result in Crown Melbourne Ltd supports the conclusion in Galaxidis v Galaxidis that it cannot be unconscionable for a charged party to deny responsibility for detriment sustained by a claimant where it is unreasonable for the claimant to rely on the meaning he or she attributes to the charged party's representation or conduct.
8. When Crown Melbourne Ltd is understood in the terms set out above, it is the case that the learned primary judge was, with respect, in error insofar as his Honour equated the requirement that Arwon's conduct must be capable of conveying the 'trees first' recovery assumption with a requirement that it be a reasonable assumption for Mr Wilson to have made.
9. In that regard, however, the learned primary judge's multiple findings that the contended for 'trees first' recovery assumption was unreasonable do not necessarily bespeak error. To say that an assumption or expectation is unreasonable might well simply be a shorthand way of expressing that Arwon's conduct was not capable of conveying to a reasonable person that Arwon would not exercise its strict legal rights under the loan agreement (being instead required to resort to its security and credit Mr Wilson with the value of his sandalwood plantation woodlots). So far as the assumption was found to be 'unreasonable' that might mean no more than that the conduct was not capable of giving rise to the assumption actually made for the purpose of the doctrine of promissory estoppel: the contended for assumption was not reasonably attributable to Arwon's conduct. Indeed, there are suggestions of this in the primary reasons. For example, at one point the learned primary judge says that any assumption in terms of that contended for 'would be unreasonable and self-induced'.[291] His Honour also put it in terms of being 'a wholly mistaken understanding'.[292]
10. There are, however, two reasons why we are unable to construe the learned primary judge's reasoning as meaning no more than that Arwon's conduct was not capable of giving rise to the 'trees first' recovery assumption.
11. First, we respectfully agree with Mr Wilson's submission that the learned primary judge's restatement of the observations of the plurality and Nettle J in Crown Melbourne Ltd was erroneous (see [110] and [114] above). The learned primary judge identified a requirement to evaluate the contended for assumption by an objective standard of reasonableness - identification of that which 'would be' conveyed to a reasonable person - as opposed to Mr Wilson's subjective belief. Such an approach was discordant with Crown Melbourne Ltd. The learned primary judge was correct to identify that Mr Wilson's subjectively held belief could not be determinative. But to ask what Arwon's conduct would have conveyed to a reasonable person - a question which admits of a single answer - is not the same as asking whether Arwon's conduct was capable of conveying to a reasonable person that instead of exercising its strict legal rights under the loan agreement Arwon would, on default, first resort to its security and credit Mr Wilson with the value of his sandalwood plantation woodlots. Accordingly, in our respectful view, the learned primary judge misapprehended the evaluative task required by Crown Melbourne Ltd.
12. Second, and more tellingly, the learned primary judge's eventual conclusion that the contended for recovery assumption was unreasonable was not solely dependent on Arwon's conduct, as it would have been had Crown Melbourne Ltd been adhered to. His Honour's conclusion did not rest solely on whether Arwon's conduct would have conveyed to a reasonable person the contended for assumption (that itself being too narrow a formulation for the reasons previously explained). To the contrary, as was accepted by senior counsel for Arwon (see [134] above), the learned primary judge's conclusion that the 'trees first' recovery assumption was unreasonable rested in part on Mr Wilson's own conduct and his Honour's conclusion that the assumption was unreasonably reached because of steps not taken by Mr Wilson. The learned primary judge took account of the reasonableness of Mr Wilson's conduct in reaching the contended for assumption rather than assessing whether Arwon's conduct was capable of causing a reasonable person to hold the asserted belief.
13. On the basis of those two matters we are unable to accept that in holding the contended for 'trees first' recovery assumption to be unreasonable the learned primary judge was finding, in terms of Crown Melbourne Ltd, that Arwon's conduct was not capable of conveying the assumption to a reasonable person. Rather, the learned primary judge was considering whether the asserted assumption was objectively reasonable and reasonably reached. Accordingly, we would uphold ground 1.

1. At the appeal hearing a question arose as to whether - if ground 1 was upheld - this court was in a position to perform the task that should have been undertaken. Senior counsel for Mr Wilson submitted that the matter would have to go back for a retrial.[293] It is not necessary to deal with that submission at this point. Before that issue arises there must be consideration of Mr Wilson's challenge to the other grounds on which the learned primary judge decided the case adversely to Mr Wilson. Mr Wilson's case as to the contended for recovery assumption and reliance thereon was independently rejected as a matter of fact. Success on ground 1 does not impugn those factual findings. Accordingly, despite having succeeded on ground 1, for Mr Wilson to succeed on appeal it is necessary for him to also succeed on ground 4, or alternatively, one of grounds 5 - 6 and grounds 7 - 8.
2. It is worthwhile briefly summarising the nature of what Mr Wilson had to prove before turning to the remaining grounds.
3. Mr Wilson alleged that a defensive equity arose. Ignoring the question that Mr Wilson said required that there be a re-trial, Mr Wilson had to establish that, by its conduct, Arwon (either knowingly or intending to do so) caused Mr Wilson to assume or expect that Arwon would not exercise its strict legal rights under the loan agreement - instead being required to first resort to its security and credit Mr Wilson with the value of his sandalwood plantation woodlots. Mr Wilson also had to establish that departure by Arwon from that assumption or expectation would operate to Mr Wilson's detriment by reason of his having acted on the basis of the assumption - Arwon's conduct being, in all of the circumstances, unconscionable.
4. Mr Wilson's case was heavily dependent on Arwon's past and existing policy and practice as to defaulting borrowers.
5. Once this is appreciated, the forensic difficulties of Mr Wilson's promissory estoppel defence become readily apparent. The existence of a present intention which does not exclude the possibility of a future change of mind will seldom be adequate to found an effective estoppel.[294] A mere 'hope' or 'confident expectation' that a person who has given assurances will do the proper thing is insufficient to give rise to an equitable estoppel.[295] The conduct must be such as to induce an assumption or expectation affecting legal relations which is binding and irrevocable; it is to be treated between the parties as something that the charged party is unconditionally bound to do or - in this case - not to do.[296]
6. Accordingly, it was never going to be sufficient for Mr Wilson to simply establish that there was a relevant policy and practice on the part of Arwon. Putting aside whether Arwon's conduct was capable of conveying the meaning contended for to a reasonable person, it was necessary for Mr Wilson to establish a personal belief that Arwon was not free to - and would not - change its policy and practice by pursuing personal recovery before resorting to its security. On Mr Wilson's case the assumption was that Arwon was bound to and would always, without exception into the future, follow its 'trees first' recovery policy. Mr Wilson had to establish that he understood and believed Arwon's policy and practice to have an enduring significance to the legal relationship between Arwon and himself that exceeded and supplanted the written terms of the loan agreement he had subscribed to.

1. An equitable estoppel of the type asserted by Mr Wilson could not arise unless he adopted the 'trees first' recovery assumption, relied on it in entering into the loan agreement, and thereby would be materially disadvantaged if the alleged assumption was departed from. Thus, as recognised by the learned primary judge, assessment of Mr Wilson's defence of promissory estoppel involved examination of the pertinent belief, actions and position of Mr Wilson. In that regard Mr Wilson's defence failed at the first hurdle: the learned primary judge was not satisfied as a matter of fact that Mr Wilson held the contended for 'trees first' recovery assumption at the time of entry into the loan agreement. That alone was fatal to Mr Wilson's defence. A party seeking to rely on equitable estoppel must establish that he or she held the particular assumption or expectation on which the estoppel is said to be based.
2. Ground 4 raised the question of whether the learned primary judge gave adequate reasons for the factual finding that Mr Wilson did not hold the contended for 'trees first' recovery assumption. In substance Mr Wilson submitted that the finding was no more than a conclusion without reasoning.
3. In Browne v Browne this court summarised the principles relevant to an evaluation of the adequacy of reasons:

(1) Reasons for decision need not be lengthy or elaborate.

(2) Reasons should disclose the intellectual process that led to the decision in sufficient detail and with sufficient certainty to enable the litigant to know why they were unsuccessful and to enable an appeal court to determine whether the decision involved appellable error.

(3) It is certainly not necessary to refer to every submission advanced by a party. However, a tribunal or court must engage with the central element(s) of a losing party's case and explain why that case fails. Considering that party's submissions is an aspect of what procedural fairness requires.

(4) In determining the adequacy of the reasons, the reasons must be read as a whole, and, if necessary, considered in the context of the evidence. An appellate court may take into account what can legitimately be inferred from the reasons. Whether reasons are adequate will depend upon the circumstances of the case and the matters that arose for the judge's consideration.[297] (citations omitted)

1. The critical question is whether the essential path of reasoning to the impugned conclusion is disclosed with sufficient detail and in sufficient certainty to meet the objects referred to in [181.2]. In that respect the adequacy of the reasons is to be assessed in the context of the evidence, issues and submissions [298]the case.298 Nevertheless, the obligation to give adequate reasons does not require an elaborate explanation of each expression used to describe particular evidence. There is no obligation to give 'reasons f[299]reasons'.299
2. On appeal Mr Wilson referred to the relevant evidence that was provided by his witness statement and the statements he made in cross-examination that were confirmatory of his witness statement evidence. Mr Wilson put store on the circumstance that it was never put to him, directly, that he did not hold the contended for assumption. It was submitted, in the circumstances, that determining the intellectual process undertaken by the learned primary judge in making the finding that Mr Wilson did not hold the asserted assumption required speculation rather than interpretation of the primary reasons, such that it should be concluded that his Honour did not give adequate reasons for the factual finding.[300]
3. Mr Wilson's argument in support of ground 4 focussed selectively on the bare factual finding that the contended for 'trees first' recovery assumption was not proved - first stated at [217(b)] of the primary reasons and then repeated at [217(d)] - without giving proper consideration to the reasons as a whole. That is readily apparent so far as, in support of ground 4, Mr Wilson submitted that:[301]
   1. Consideration of the learned primary judge's reasoning 'commences best' at [208] of the primary reasons.
   2. The credit observations made at [209] and [213] of the primary reasons were not stated by the primary judge to be relevant to the finding that Mr Wilson did not hold the contended for 'trees first' recovery assumption.
4. To contend that consideration of the learned primary judge's reasoning best commences at [208] of the primary reasons is to ignore the structure and content of the primary reasons as a whole. When the primary reasons are considered as a whole they amply satisfy the requirements for adequacy. The learned primary judge exposed his reasoning in clear terms in a manner that ought to have resulted in Mr Wilson appreciating why he was unsuccessful in establishing the contended for assumption and undoubtedly enables this court to assess whether there was appellable error.
5. Initially, well before [208] of the primary reasons, the learned primary judge identified the contended for 'trees first' recovery assumption that had to be established by Mr Wilson.[302] His Honour then identified how Mr Wilson sought to establish that burden and the wider factual context in which the question arose including the contemporaneous conversations that Mr Wilson relied on in his witness statement (the significance of which were discounted by the learned primary judge for reasons in respect of which no complaint is levied on appeal).[303] His Honour gave particular attention to Arwon's loan recovery practice and policy, as relied on by Mr Wilson, and rejected Mr Wilson's suggestion that it was an inflexible and invariable strategy, giving detailed reasons for that conclusion (a finding and the reasons for which are not challenged by any ground of appeal).[304] The learned primary judge's finding in relation to the status and effect of Arwon's loan recovery policy was significant to the asserted 'trees first' recovery assumption. The learned primary judge well understood, and referred to, Mr Wilson's background as a commercial solicitor who had a considerable experience in commerce.[305] It was difficult to see how a person such as Mr Wilson could reasonably hold the contended for assumption in circumstances where Arwon's loan recovery practice and policy had the limited effect as found by the learned primary judge. His Honour made findings accordingly.[306] That is all the more so where Mr Wilson, as a lawyer, was found to know or to be taken to have known what he had signed up to by the terms of the loan agreement.[307]
6. Critically, as part of a comprehensive consideration of Mr Wilson's evidence-in-chief, the learned primary judge expressly rejected Mr Wilson's evidence as to having an 'understanding', on entry into the loan agreement, that in the event of his default Arwon must first foreclose on its security.[308] That, in terms, constituted an express rejection that Mr Wilson held the contended for 'trees first' recovery assumption at the relevant time. The reasons for the rejection of Mr Wilson's evidence are readily discernible and have been summarised at [53] above. In so expressing his reasons the learned primary judge engaged with the substance of the evidence, in the context in which the asserted assumption was said to arise, and gave adequate reasons (in the sense discussed in Browne v Browne) for rejecting the evidence as implausible given the competing hypothesis that Mr Wilson did not direct his mind at all to what might happen on default. To suggest that anything more is required would be to require reasons for reasons. In truth Mr Wilson's complaint was not as to the adequacy of the learned primary judge's reasons - in the sense of disclosing the intellectual process undertaken by his Honour - but rather whether the learned primary judge's reasoning ought to be accepted. That is a complaint to be considered under the auspices of grounds 5 and 6 rather than ground 4.
7. This is not, however, the limit of the learned primary judge's relevant reasoning in concluding that Mr Wilson did not in fact hold the contended for assumption in entering into the loan agreement. Two further aspects of his Honour's reasoning for this conclusion are apparent when there is consideration of the primary reasons as a whole.
8. First, the rejection of this aspect of Mr Wilson's evidence should not be considered in isolation. The learned primary judge also rejected Mr Wilson's evidence as to having relied on the contended for assumption in entering into the loan agreement.[309] Again, his Honour's reasons for this finding are readily discernible and have been summarised.[310] While it is always open to accept part of a witness' evidence, but reject other aspects of his or her evidence, this is a situation in which the relevant evidence was bundled - Mr Wilson suggested that his asserted 'understanding' was a 'major influencer' on his actions. In rejecting Mr Wilson's evidence as to holding the recovery assumption and relying thereon in entering into the loan agreement the learned primary judge rejected the totality of Mr Wilson's evidence on the subject. It is, in our view, relatively clear - and in any case we would infer from the primary reasons as a whole - that the matters his Honour had regard to in reaching his conclusion as to lack of reliance also applied to his conclusion that Mr Wilson did not hold the contended for assumption.
9. Second, consideration must be given to the credibility and reliability findings made by the learned primary judge in relation to Mr Wilson's evidence. These, together with certain implications arising therefrom, have been set out at [61] - [71] above. Importantly, for reasons that were developed by his Honour and have attracted no independent challenge by ground of appeal, the learned primary judge concluded that Mr Wilson's evidence concerning the application for a private taxation ruling was highly unconvincing and the evidence as to key areas of the promissory estoppel defence - which must include whether the contended for assumption was in fact held - could not be ass[311]ed as being reliable.311
10. In relation to ground 4, Mr Wilson acknowledges the adverse credibility and reliability findings, but seeks to avoid them by suggesting that the learned primary judge did not state that they were relevant to his finding that Mr Wilson did not hold the contended for 'trees first' recovery assumption. We accept that the observations were not expressly referred to at the points at [217(b)] and [217(d)] of the primary reasons where the learned primary judge finds in terms that the recovery assumption was not proven. But it is hardly necessary for a trial judge to continue to repeat his or her prior findings on every occasion where they have relevance. Mr Wilson's relevant evidence-in-chief had been expressly rejected for reasons as given. The learned primary judge then made the further, more general, finding that he did not assess Mr Wilson's evidence to be reliable so far as it concerned the key areas of his evidence as regards the promissory estoppel defence - one of which was whether in fact Mr Wilson held the contended for recovery assumption. The learned primary judge's general reliability finding was relevant to and fortified his Honour's earlier specific finding rejecting Mr Wilson's evidence as to his holding the alleged understanding at the relevant time.
11. The learned primary judge's reasoning for concluding that the contended for 'trees first' assumption was not proved is disclosed - indeed it is obvious - when the primary reasons are read as a whole. The rejection of Mr Wilson's evidence is self-evident, and his Honour's reasons for doing so are provided in sufficient detail, so as to inform Mr Wilson why he lost and to assess whether there was appellable error. Ground 4 should be dismissed.

Alleged factual errors in determining the promissory estoppel defence (Grounds 5 - 8) Approach to appellate intervention based on alleged factual error

1. The principles of appellate review of findings of fact have been analysed and recited in a number of recent decisions of this court.[312] In summary:
   1. In an appeal by way of rehearing an appellate court is obliged to conduct a real review of the trial and of the primary judge's reasons to determine whether the trial judge erred in fact; it cannot excuse itself from the task of weighing conflicting evidence and drawing its own inferences and conclusions.
   2. In conducting its review of the case, the appellate court must observe the natural limitations that exist in the case of any appellate court proceeding wholly or substantially on the record. An appellate court has disadvantages compared to the trial judge. These include, but are not limited to, not having seen and heard the witnesses. The trial judge also has advantages that derive from receiving and considering the entirety of the evidence - thereby obtaining the 'feel' of the case - and the opportunity to reflect on that evidence and draw conclusions from it viewed as a whole.
   3. The assessment of whether there is appellable error requires attention to the nature of the findings said by an appellant to be erroneous. The nature of the finding, and the reasoning by which it was made, affects what is required in order to demonstrate error.
   4. The nature and extent of the trial judge's advantage informs what is required in order to reach, and the extent of any appellate restraint in reaching, a conclusion of error. For example, it is necessary to distinguish between the reasoning of a trial judge which is based on a credibility determination and his or her reasoning based on inferences drawn from facts that were undisputed or found.
   5. In the case of a finding that is based, at least to any substantial degree, on an assessment of the credibility and reliability of one or more witnesses as a result of seeing and hearing them give their evidence, an appellate court will not interfere with the finding unless it is demonstrated to be wrong: (a) by reference to incontrovertible facts or uncontested testimony; (b) because the finding is glaringly improbable or contrary to compelling inferences; or (c) because the trial judge failed to use, or has palpably misused, his or her advantage as trial judge.
   6. By contrast, in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding the proper inference to be drawn the appellate court gives respect and weight to the conclusion of the trial judge. However, if the appellate court reaches a different conclusion, it must give effect to that conclusion.
2. The circumstance that the appeal is by way of rehearing does not detract from the need to identify error on the part of a primary judge where the challenge is to a finding of fact. It is, for example, insufficient to contend that a primary judge should have accepted certain evidence. An appellant must demonstrate why the primary judge was in error in not having done so.[313]
3. Before turning to grounds 5 - 8, there are two further general matters to be noted.
4. First, there is a difference between grounds 5 - 7, on the one hand, and ground 8, on the other. Grounds 5 - 7 concern the findings that Mr Wilson did not hold the contended for 'trees first' recovery assumption and did not rely on any such assumption. Those conclusions depended in part on the learned primary judge's credibility and reliability findings in relation to Mr Wilson's evidence. Accordingly, these grounds attract the standard of appellate review referred to in [193.5] above. By contrast, ground 8's finding as to detriment was not based in any anterior credibility or reliability finding. Ground 8 attracts the standard of appellate review referred to in [193.6] above.
5. Second, in advancing grounds 5 - 8, senior counsel for Mr Wilson emphasised that in cross-examining Mr Wilson there was no direct confrontation as to his evidence of professed understanding and reliance thereon. It was not put to Mr Wilson directly that the evidence was false or unreliable. In making that observation Mr Wilson did not invoke the rule in Browne v Dunn.[314] It was always plain from the way the case was conducted that these matters were in contention.[315] Rather, as we understood the reference to the absence of any such direct challenge, it was a factor to be taken into account in assessing whether the learned primary judge was correct in coming to a factual conclusion that was contrary to Mr Wilson's evidence. It was also something that this court might take into account in reviewing his Honour's assessment of the credibility and reliability of Mr Wilson's evidence.
6. We have taken this matter into account in reviewing Mr Wilson's evidence and assessing whether error has been demonstrated in relation to the impugned factual findings. We accept that it was never put to Mr Wilson, in express terms, that his assumption and reliance evidence was false. Nor was it put to Mr Wilson that his true driver in entering into the transaction was that he wished to obtain a tax deduction or that his evidence about not investing in Quintis products for tax reasons alone was incorrect or incomplete.
7. Nevertheless, having reviewed the cross-examination evidence as a whole, it is plain that Mr Wilson was challenged as to the material matters that arose in the case. These included: Mr Wilson's undoubted expertise and experience as a lawyer and businessman;[316] errors and omissions in his witness statement;[317] the basis for Mr Wilson's defence;[318] Arwon's loan recovery policy and practice and Mr Wilson's understanding as to whether it was inflexible or could be subject to change;[319] Mr Wilson's appetite for the taxation deductions that flowed from investing in Quintis' tax effective investments;[320] the conversations and dealings Mr Wilson had with other officers of Quintis around the time of entering into the loan agreement;[321] Mr Wilson's ability as the CEO of Arwon to control the steps that might be taken to recover the loan;[322] whether Mr Wilson approached financiers other than Arwon;[323] the application for a private taxation ruling;[324] the terms of the loan agreement and how that stood as against Mr Wilson's asserted understanding;[325] whether the loan was full recourse;[326] and the way in which the recovery assumption was first raised and had been formulated in his initial defence.[327] There were a number of robust exchanges - many initiated by Mr Wilson rather than the cross-examiner.
8. There is no requirement that a trial judge must accept a party witness' evidence simply because it is not put to him or her that the evidence is false or wrong. Putting that aside, having regard to its breadth and depth, we are comfortably satisfied that the nature of Mr Wilson's cross‑examination was more than sufficient to expose for the learned primary judge all that was required to form an assessment of the credibility and reliability of Mr Wilson's evidence on the key components of his promissory estoppel defence. So too, especially when regard is had to the documentary evidence as comprised by Mr Wilson's income tax return for the 2014 income year,[328] it was open to the learned primary judge to conclude that Mr Wilson's 'true driver' in entering into the transaction was that he wished to obtain a large taxation deduction on the last day of the income year.[329]
9. Accordingly, the omission to put to Mr Wilson that his assumption and reliance evidence was false was of little consequence. Having read the cross-examination transcript in full, and bearing in mind the learned primary judge's other findings as to the way in which Mr Wilson gave evidence (see eg [70] above), it was inevitable that such a direct confrontation would simply have resulted in a rejection of the proposition - and would not, in all the circumstances, have been of any real assistance to the learned primary judge in reaching a conclusion as to the credibility and reliability of Mr Wilson's evidence. The same applies to the omission to confront Mr Wilson as to his evidence that he did not invest for tax reasons alone.
10. A review of the transcript of Mr Wilson's cross-examination is important in two other respects.
11. First, there was ample basis for the learned primary judge's conclusion that Mr Wilson's answers to the questioning about the application for a private taxation ruling were vague, unconvincing and unsatisfactory - and also the more serious finding that Mr Wilson sought to obfuscate.[330] A reading of the relevant portion of the transcript reveals Mr Wilson's reluctance to address in a substantive manner the questions posed of him and the apparent inconsistency between what was advanced in the application for a private taxation ruling and the understanding Mr Wilson professed to have, based on an inflexible no-exception loan recovery policy and practice, as formed the basis for the alleged recovery assumption.[331] For example, on occasions where the documentary evidence might be thought to be inconsistent with the contended for assumption, and Mr Wilson is pressed for an explanation, Mr Wilson's 'answers' are recorded as 'mmm'.[332]
12. Second, we are also satisfied that there was a sound basis for the learned primary judge's more general finding as to the difference between the way Mr Wilson presented as a witness (highly self-assured and thoroughly convinced of the righteousness of his position) and the quality of Mr Wilson's evidence (sweeping and broad statements of generality lacking supporting factual detail).[333] To this it should be added that there are other aspects of Mr Wilson's evidence which the learned primary judge found to be deficient which are clearly made out on the transcript; for example, the inaccuracies in Mr Wilson's witness statement. While no specific ground of appeal challenged these and other similar observations of the learned primary judge, it should be recorded that there is no basis to suggest any material error by his Honour in this assessment of Mr Wilson's evidence - one that has obvious consequences for his Honour's further finding as to the unreliability of Mr Wilson's evidence in the key areas of his promissory estoppel defence.

The finding that Mr Wilson did not hold the 'trees first' recoverability assumption (Grounds 5 and 6)

1. Grounds 5 and 6 were concerned with the learned primary judge's factual finding as to the contended for 'trees first' recovery assumption. Mr Wilson alleged that the learned primary judge was in error in finding that he (Mr Wilson) did not make and hold the assumption as at 30 June 2014 (ground 5); and said that his Honour should have found the contrary proved, ie that he (Mr Wilson) did hold the assumption (ground 6).
2. Mr Wilson's PD 7.4 schedule in relation to these grounds relied on three aspects of the evidence before the learned primary judge:[334]
   1. Arwon's 2013 'Policy and Procedures' document (see [23] - [27] above).
   2. Mr Wilson's evidence-in-chief. Mr Wilson relied on his evidence to the effect that:

(a) the 2013 'Policy and Procedures' document was consistent with Arwon's historical and existing practice since 2000 and was applied to all borrowers;[335]

(b) Arwon's loan recovery policy was enforced - specifically, where a plantation was assessed to have a value in excess of the amount owing, Arwon would foreclose on the plantation rather than recover the debt personally;[336]

(c) Mr Wilson could not recall any occasion where Arwon's solicitors were instructed to sue a borrower personally where his or her plantation was assessed to have a value in excess of the debt under the loan agreement;[337]

(d) Arwon's loan recovery policy was applied to all borrowers regardless of their financial status;[338]

(e) Arwon's consistent approach over 20 years with respect to all non-performing loans, where the value of the plantation held as security was greater than the loan, was to terminate the agreement and acquire ownership of the woodlots;[339]

(f) his understanding in entering into the loan agreement was consistent with the 'trees first' recovery assumption.[340] (In this respect Mr Wilson referred to the paragraphs of the witness statement that were expressly rejected by the learned primary judge at [187] - [192] of the primary reasons.)[341]

1. Mr Wilson's evidence in cross-examination.[342] This was said to support a conclusion that Arwon's loan enforcement practice had been applied consistently without exception. That undoubtedly was the tenor of Mr Wilson's oral evidence at the places identified in the PD 7.4 schedule. Mr Wilson gave evidence that the policy was inflexibly applied in every circumstance.[343] In oral submissions senior counsel for Mr Wilson also directed attention to parts of Mr Wilson's cross-examination where he provided evidence to the effect that neither he nor anyone else within the Quintis group had entertained the loan recovery policy being subject to retrospective change and he entered into the loan agreement under the assumption that the policy would apply to him.[344]

1. In written submissions Mr Wilson posited that the finding that he did not hold the contended for assumption might be based on three aspects of the learned primary judge's reasoning: (1) the finding, at [127] of the primary reasons, that it was commercially untenable that the enforcement procedure approach at pt 7 of the 'Policy and Procedures' document was incapable of being departed from across the time of any loan;[345] (2) the learned primary judge's reasoning concerning the application for a private taxation ruling;[346] and (3) the finding, at [217(d)] of the primary reasons, that Arwon made no relevant contribution to the contended for recovery assumption - past recovery conduct by Arwon of itself setting no precedent.[347] Mr Wilson sought to challenge the learned primary judge's reasoning in these three respects.
2. The matters referred to by Mr Wilson as being the basis for the factual finding the subject of grounds 5 and 6 are neither accurate nor complete.
3. We have endeavoured, in the section of these reasons dealing with ground 4, to summarise the basis for the learned primary judge's conclusion that Mr Wilson did not hold the 'trees first' recoverability assumption in entering into the loan agreement. In part it relied on his Honour's conclusion as to the status of Arwon's loan recovery policy. But here the learned primary judge's reasoning was more than just that which is found at [127] of the primary reasons (see eg [20] - [32] and [52.1] above). Mr Wilson does not seek to challenge his Honour's other reasons for concluding that Arwon's loan recovery policy was not an inflexible and invariable strategy to be applied forever without exception. Nor, indeed, are the relevant intermediate factual findings to this effect challenged by any ground of appeal. It follows that this aspect of the challenge to the learned primary judge's factual finding that Mr Wilson did not hold the recovery assumption cannot be sustained. So too we accept that the rejection of Mr Wilson's asserted understanding relied on the learned primary judge's reasoning as to Mr Wilson's evidence in relation to the application for a private taxation ruling (see in particular [63] - [67] and [71] above). There is, however, no material error that may be identified in relation to that aspect of the learned primary judge's reasoning. To the contrary, in our view, the reasoning was not only open but was correct. As to the third matter identified in Mr Wilson's submissions, we do not accept that the assumption finding depended on the inducement or acquiescence finding at [217(d)] of the primary reasons. That finding, summarised at [[[348]](202 Reliance is a fact to be found; it is not to be imputed on the basis of evidence which falls short of proof of the fact. It is actual reliance by the promisee, and the state of affairs so created, which answers the concern that equitable estoppel not be allowed to outflank Jorden v Money by dispensing with the need for consideration if a promise is to be enforceable as a contract.[356] (citations omitted)

1. Thus the relevant question is whether, despite any other contributing causes, the party seeking to establish the estoppel would have acted differently (either by action or inaction) had the assumption or expectation not been induced.[357]
2. Senior counsel for Mr Wilson submitted that reliance was obvious. The contention was that, had Mr Wilson had the understanding Mr Wilson said he had, it would be astonishing if Mr Wilson did not rely on it in entering into the loan agreement.[358] The proposition that the assumption played no part in Mr Wilson entering into the transaction was said to be 'simply absurd'[359] as only a fool would not have regard to such an assumption if actually held.[360] According to Mr Wilson's argument, it would have been irrational to ignore the assumption.[361]
3. Accordingly, the submissions in support of ground 7 depended on establishing that the contended for assumption was held at the time of entry into the loan agreement. The failure of grounds 5 and 6 stand as an insurmountable hurdle to that type of argument. These submissions in support of ground 7 must be rejected.
4. Senior counsel for Mr Wilson also submitted that the learned primary judge ought to have dealt with, and rejected, Mr Wilson's evidence that he would not have invested in any Quintis investment product for tax reasons alone to come to the conclusion that in all of the circumstances Mr Wilson had not proved his case on reliance.[362] In that connection senior counsel emphasised that it was not put to Mr Wilson, squarely or at all, that the motivating factor on which he relied in entering into the transaction was the tax deduction.[363] We have already dealt with that argument so far as it concerns the suggested omission in Mr Wilson's cross-examination. Otherwise these submissions overlook the circumstance that the learned primary judge expressly rejected Mr Wilson's reliance evidence[364] and did so in terms whereby his Honour found that the 'true driver' for Mr Wilson's sandalwood plantation investment - and thus his entry into the loan agreement - was to obtain the immediate taxation deduction that could be obtained through the investment.[365] Necessarily the learned primary judge implicitly rejected Mr Wilson's evidence at these points. Such evidence was assessed as being unreliable in any event as part of his Honour's general credibility and reliability findings in relation to the key areas of Mr Wilson's evidence.[366]
5. Often a reliance finding will be established by inference from the objective facts. On occasions - as occurred in the present case - a witness will give direct evidence to the effect that he or she took particular steps (or refrained from taking particular steps) on the faith of or induced by an understanding or belief brought about by a representation or other conduct on the part of another. Any such evidence is inherently self-serving. It will usually be treated with caution and scrutinised carefully by a trial judge in much the same way, and for much the same reasons, as a trial judge will carefully consider the veracity and reliability of hypothetical evidence (where such evidence may be lead).[367] Such hypothetical evidence is normally assessed in light of the surrounding objective facts and circumstances.[368] Unless objective evidence confirms its reliability such evidence often has little probative value.[369] Demeanour can play little part in accepting the evidence; it may, however, be ground for rejecting the evidence.[370] The last observation demonstrates that rejection of a party witness' direct evidence of reliance may result in him or her failing to establish reliance.
6. The present case provides a good example of why direct evidence of reliance will often attract the same type of approach as hypothetical evidence. Among other things, Mr Wilson's evidence was to the effect that had he been told something different about the terms of the loan agreement - specifically had he been told that Arwon would sue him, personally rather than first having recourse to its security - he would not have proceeded with the investment.[371] That evidence is hypothetical in nature.
7. Factual conclusions are best reached, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. [372] That admonition has its usual force when considering a question of reliance in light of a party witness' direct evidence that he or she relied in a particular way. The real question is the appropriate inference to be drawn from the whole of the evidence.[373] Accordingly, if, on the whole of the evidence, the court is not satisfied on the balance of probabilities that the asserted assumption or expectation contributed to the claimant's actions (or inactions), he or she will fail to make out the required connection between the charged party's representation or other conduct - leading to the claimant's relevant assumption or expectation - and the asserted detriment.
8. The learned primary judge rejected Mr Wilson's reliance evidence as being unreliable, implausible, self-serving and inconsistent with what his Honour considered to be Mr Wilson's 'true driver': to obtain the immediate $12.9 million taxation deduction.[374] The reference to the 'true driver' demonstrates that in coming to his reliance finding the learned primary judge had regard to - and was influenced by - the objective facts and circumstances as established by the evidence. More generally, having regard to Mr Wilson's evidence as a whole, the reliance evidence was one key area of Mr Wilson's evidence as regards the promissory estoppel defence which was assessed as not being reliable.[375]
9. The finding of lack of reliance was grounded in part on the learned primary judge's assessment of Mr Wilson's credibility and reliability. In that respect Mr Wilson has not established a proper basis for appellate intervention having regard to the principles enunciated at [193] above. What has been said in this regard as to ground 5 and 6 applies equally here. To the extent, however, that the learned primary judge had regard to objective factors, the restrictions on appellate review have less force in their application. In our view, however, the objective established facts and apparent logic of events provided a compelling basis for the learned primary judge's conclusion that the relevant 'true driver' for Mr Wilson in entering into the transaction was to obtain an immediate tax deduction - thus leading to his Honour's rejection of Mr Wilson's self-serving evidence that his contended for understanding was 'the' or 'a' major influencer in his decision to borrow from Arwon. No error can be identified in this respect.
10. The objective established facts included the following:
    1. On Mr Wilson's own evidence, he was 'more focussed' on borrowing terms, ie interest rate, term of loan and the mixture and principal and interest repayment.[376]
    2. Mr Wilson did not approach any alternative lender with respect to the investment.[377]
    3. The transaction occurred on 30 June 2014 (a Monday). The IMA is dated 30 June 2014.[378] So too is the loan agreement.[379] 30 June 2014 was the last day of the 2014 income year. That is a fact that would have been well known to Mr Wilson given his background as both a taxation solicitor and executive of a company whose main business was promoting tax effective investments. The investment saw Mr Wilson able to claim an immediate taxation deduction of $12.9 million in the 2014 income year.[380]
    4. Mr Wilson applied for the private taxation ruling on 16 July 2014.[381] The shortness of time between the investment and the application supports the inference - already arising from the timing of the investment - that the investment was tax driven.
    5. Mr Wilson's oral evidence did not deny that one of his motivations was to obtain a taxation deduction. Mr Wilson said only that: 'I wouldn't have invested in any Quintis products for tax reasons alone' going on to express a belief in the products being a profitable long-term investment and investing in Quintis' plantations predominantly for that reason.[382] Nevertheless, consistent with the learned primary judge's finding that the investment was tax driven, in context the answer by Mr Wilson accepted that one of his reasons for the investments was the obtaining of the tax deductions derived thereby.
    6. Mr Wilson had assessable income in the 2014 income year in an amount that exceeded $12.95 million.[383] Excluding salary the bulk of that income was derived from trust distributions.[384] Trust income must be distributed by resolution within the income year; if no beneficiary is presently entitled the trustee is taxed. It follows that the relevant instruments of distribution must have been effected before or at the time of the transaction. In any case the taxation deduction obtained by Mr Wilson through the investment was such that it reduced his taxable income to $33,323[385] - the taxation deduction broadly approximating Mr Wilson's assessable income - and resulted in Mr Wilson having an expected tax refund of $993,650.79.[386]
11. Those objective facts provided a sound basis for the learned primary judge's conclusion, by inference, that the true driver for Mr Wilson's investment and borrowing decision on 30 June 2014 was to obtain a taxation deduction. There was no error in so concluding. There are difficulties in establishing error in such circumstances. It is well established that an appellate court is unlikely to be satisfied of error if all that is shown is that the trial judge made a choice between competing inferences - being a choice the appellate court may not have been inclined to make but not a choice the trial judge should not have made.[387] In the present case, however, we would not rest on the requirement to exercise appellate restraint by giving respect and weight to the conclusion of the learned primary judge. Rather, we are satisfied that the objective facts and apparent logic of events lead to the conclusion that his Honour was correct to find that Mr Wilson's true driver was to obtain an immediate taxation deduction. Once that finding was made there was a proper platform for his Honour to reject - as unreliable and self-serving - Mr Wilson's direct reliance evidence. The rejection of Mr Wilson's evidence provided the basis for the conclusion that Mr Wilson had not proved his case as to reliance.
12. Mr Wilson's challenge to the learned primary judge's lack of reliance finding has not been sustained. Ground 7 should be dismissed.

1. On its face there is possible merit to Mr Wilson's challenge by ground 8 to the learned primary judge's detriment finding. His Honour did not address Mr Wilson's pleaded case as expounded in closing submissions. Rather, his Honour considered the question of detriment by reference to evidence elicited from Mr Wilson in cross-examination which distracted from the burden of his contention as to detriment. Accordingly, the learned primary judge did not consider whether there was detriment in that, contrary to the contended for assumption, Mr Wilson was being required to pay the whole of the debt under the loan agreement rather than being credited with the assessed value of his sandalwood plantation woodlots following recourse to the security.
2. It is, however, unnecessary to finally determine whether - contrary to the learned primary judge's finding - there was relevant detriment in this respect. Mr Wilson's appeal would fail even if ground 8 succeeded. Moreover, the question of detriment is very much tied to the relevant assumption. Identification of the relevant assumption is a necessary first step in determining whether the elements of an estoppel are established. Having not accepted Mr Wilson's contended for 'trees first' recovery assumption we would decline, as a matter of judicial economy, to offer an unnecessary and incorrectly premised conclusion on ground 8.

1. We accept that Mr Wilson has established error in terms of ground 1. However, that error was not material insofar as the learned primary judge made other factual findings which resulted in the failure of Mr Wilson's promissory estoppel defence. The challenge to those factual findings fails. We would uphold the learned primary judge's rejection of the promissory estoppel defence on two bases. First, that Mr Wilson did not hold the contended for 'trees first' recovery assumption on entry into the loan agreement: Mr Wilson did not establish that he held the assumption on which the estoppel defence was based. Second, Mr Wilson did not establish that he relied on the contended for assumption in entering into the loan agreement.
2. Accordingly, Mr Wilson's appeal should be dismissed. There should be an order to this effect. Otherwise we would hear from the parties as to costs.

1. I respectfully agree with the reasoning and conclusions reached in the joint judgment in respect of grounds 4 - 7 and ground 9 of the Grounds of Appeal. I also agree with their Honours, for the reasons set out at [235] - [236] of the joint judgment, that it is not necessary to finally determine ground 8, because the appeal would fail even if Mr Wilson succeeded on that ground.
2. For the reasons explained in the joint judgment, Mr Wilson's failure to succeed in respect of ground 4, or on one of grounds 5 ‑ 6 and grounds 7 ‑ 8, means that the appeal must be dismissed, irrespective of the outcome of ground 1.
3. That being the case, in my respectful view it is neither necessary nor is it the preferable course, having regard to all of the circumstances, to determine ground 1, and for that purpose to express a concluded view on the application of the principles concerning promissory estoppel in the factual context of this case.
4. The appeal must be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Arwon Finance Pty Ltd v Wilson [2019] WASC 244 (primary reasons) [28].

[3] Primary reasons [217(b)]. See also Primary reasons [183], [187], [213], [217(d)].

[5] Primary reasons [217(c)]. See also Primary reasons [187], [189], [191], [213].

[9] See Primary reasons [159] - [160].

[10] GAB 482; see Primary reasons [109].

[11] GAB 482; see Primary reasons [109].

[12] GAB 395 - 416 (loan agreement); GAB 657 - 666 (deed of variation).

[15] GAB 410; see Primary reasons [130].

[16] Primary reasons [155] - [156]. See also Primary reasons [162] - [172].

[17] See eg ts 105 - 106 ('Arwon always ... no exception, applied to foreclose the loan'). See also ts 110, 114, 121 - 122, 152.

[18] Primary reasons [144] - [153]. The pursuit of a business strategy involving an increase in Quintis' ownership of sandalwood plantation holdings was common ground: Primary reasons [77]. See also Primary reasons [163] - [164].

[19] GAB 464 - 474. See Primary reasons [123].

[20] Primary reasons [103(c)], [120] - [121].

[24] Primary reasons [124] - [125].

[27] Primary reasons [126], [127]. See also Primary reasons [156].

[28] Primary reasons [128]. See also Primary reasons [156], [172].

[30] GAB 327. There is a similar statement in Quintis' annual report for the year ended 30 June 2014: GAB 576. However, that post-dates the date of the contended for 'trees first' recovery assumption.

[31] GAB 358. See also GAB 247. There is a similar statement in Quintis' annual report for the year ended 30 June 2014: GAB 609. However, that post-dates the date of the contended for 'trees first' recovery assumption.

[33] Primary reasons [157]. But compare Primary reasons [158] where the primary judge puts this in terms of assumption rather than a finding as to the Quintis group practice.

[36] Primary reasons [158]. See also Primary reasons [156], [172].

[37] Primary reasons [25] - [30], [48] - [55].

[41] See Appellant's consolidated third amended defence dated 29 April 2019 pars 2(a)(i), 2(b)(i) BAB 93 - 95.

[43] See Appellant's consolidated third amended defence dated 29 April 2019 par 2(b)(iii)(C) BAB 96.

[44] Primary reasons [25] - [26], [32], [51] - [52], [103(b)].

[47] Primary reasons [27], [30], [53]. See Primary reasons [150] for an explanation of the SGARA.

[49] Appellant's consolidated third amended defence dated 29 April 2019 par 2(a)(i) BAB 93 - 94. See Primary reasons [60].

[50] Appellant's consolidated third amended defence dated 29 April 2019 par 2(a)(ii) - (iv) BAB 93 - 94. See Primary reasons [69].

[51] Appellant's submissions par 25 WAB 14.

[52] Appellant's consolidated third amended defence dated 29 April 2019 par 2(b) BAB 94. See Primary reasons [74].

[53] Appellant's consolidated third amended defence dated 29 April 2019 par 2(b)(i) BAB 95. See Primary reasons [74].

[54] Appellant's consolidated third amended defence dated 29 April 2019 par 2(b)(ii) - (iii) BAB 95 - 97. See Primary reasons [74].

[55] Appellant's consolidated third amended defence dated 29 April 2019 par 2(b)(iv) BAB 97. See Primary reasons [74].

[56] Appellant's consolidated third amended defence dated 29 April 2019 par 2(c) BAB 97. See Primary reasons [78].

[58] Appellant's answers to the respondent's request for further and better particulars dated 15 November 2018 answer 1 BAB 100. See Primary reasons [80].

[64] Primary reasons [24] - [32], [48] - [55].

[68] Primary reasons [48] - [55]. See also at [62] - [63], [68], [74], [167], [172], [174], [190].

[69] Primary reasons [64], [91] - [92], [168].

[70] See eg Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7; (1988) 164 CLR 387, 427 - 428.

[72] Primary reasons [103(a)], [104] - [119].

[73] Primary reasons [103(b)], [130] - [135].

[74] Primary reasons [103(c)], [120] - [129]. See also Primary reasons [154] - [158].

[75] Primary reasons [136] - [207].

[76] Primary reasons [158]. See also Primary reasons [172].

[77] Primary reasons [183], [187]. See Exhibit 1 par 144 GAB 141 (referred to at Primary reasons [186]).

[78] Primary reasons [187], [189]. See Exhibit 1 par 145 GAB 141 (referred to at Primary reasons [186]).

[79] Primary reasons [191]. See Exhibit 1 pars 146 GAB 141 (referred to at Primary reasons [186]).

[84] Primary reasons [177]. See Exhibit 1 pars 138 - 142 GAB 140 - 141.

[87] Primary reasons [183]. See also Primary reasons [187].

[88] Primary reasons [190]. See also Primary reasons [191].

[89] Primary reasons [192]. See also Primary reasons [190].

[90] Primary reasons [200] - [201].

[91] See [39] above.

[92] Primary reasons [208]. See also Primary reasons [215].

[94] Primary reasons [209] - [214].

[95] Primary reasons [217(b)]. See also Primary reasons [217(d)].

[99] Primary reasons [217(d)]. In context the finding is directed to the inducement and acquiescence plea referred to at [42] above.

[107] Primary reasons [116] - [118].

[112] Primary reasons [141], [152].

[114] Primary reasons [126]. See also Primary reasons [128].

[118] Primary reasons [212]. (As to the finding of obfuscation, the primary judge referred to ts 113 - 114.)

[122] A point accepted on behalf of Mr Wilson: Appeal ts 10.

[125] Giumelli v Giumelli [1999] HCA 10; (1999) 196 CLR 101 [7]; Sidhu v Van Dyke [2014] HCA 19; (2014) 251 CLR 505 [1] (fn 26); Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd [2016] HCA 26; (2016) 260 CLR 1 [37], [139], [217]. Compare Commonwealth v Verwayen [1990] HCA 39; (1990) 170 CLR 394, 410 - 411, 413, 432, 440, 445; but compare 454, 499 - 501.

[126] For example, in Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd [141] Keane J accepted that the separate categories of promissory and proprietary estoppel allowed for different approaches to the determination of whether a defendant was responsible for creating an assumption or expectation in different contexts (see also [145] - [146], [148] - [149]). See also Nettle J at [215].

[127] Bell Group Ltd (in liq) v Westpac Banking Corporation [No 9] [2008] WASC 239; (2008) 39 WAR 1 [3543(e)]. The quotation is part of a substantially longer passage all of which has been referred to with approval in this court. See Australian Goldfields NL (in liq) v North Australian Diamonds NL [2009] WASCA 98; (2009) 40 WAR 191 [194]; Birla Nifty Pty Ltd v International Mining Industry Underwriters Ltd [2014] WASCA 180; (2014) 47 WAR 522 [110]. To similar effect see Commonwealth v Verwayen (444 par 2), (455 - 456).

[128] P Brereton Equitable Estoppel in Australia: The Court of Conscience in the Antipodes page 5. See also at pages 7, 11 - 12.

[129] Commonwealth v Verwayen (500). See also (436 - 437), (440 - 441).

[130] Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd [213]. See also [211].

[131] Waltons Stores (Interstate) Ltd v Maher (405); Commonwealth v Verwayen (411), (429), (501).

[132] Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd [2014] HCA 14; (2014) 253 CLR 560 [86]. See also Commonwealth v Verwayen (428 - 429) where Brennan J summarises the effect of the judgments of the majority in Waltons Stores (Interstate) Ltd v Maher.

[133] Waltons Stores (Interstate) Ltd v Maher (404), (416), (418 - 419), (421), (423), (426 - 427), (453), (458); Commonwealth v Verwayen (409 - 411), (423), (453), (501); Sidhu v Van Dyke [1], [77], [82]; Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd [84] - [86]; Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd [39], [139] - [141], [217] - [218]. See also Grundt v Great Boulder Pty Gold Mines Ltd [1937] HCA 58; (1937) 59 CLR 641, 674 - 675 (Dixon J's passage there being the source for many of the later statements as to the purpose of an estoppel).

[134] Sidhu v Van Dyke [58]. See also Giumelli v Giumelli [35].

[136] Waltons Stores (Interstate) Ltd v Maher (406).

[137] Waltons Stores (Interstate) Ltd v Maher (401), (404 - 405), (407 - 408) (Mason CJ and Wilson J); (419) Brennan J; (453) Deane J. Gaudron J relied on common law estoppel rather than equitable estoppel.

[138] Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd [141].

[139] Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd [211], [217], [221].

[140] Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd [217]. See also Commonwealth v Verwayen (444 par 4).

[141] Waltons Stores (Interstate) Ltd v Maher (428 - 429).

[142] Bell Group Ltd (in liq) v Westpac Banking Corporation [No 9] [3539] (again part of the passage referred to with approval in Australian Goldfields NL (in liq) v North Australian Diamonds NL and Birla Nifty Pty Ltd v International Mining Industry Underwriters Ltd.)

[143] Waltons Stores (Interstate) Ltd v Maher (429).

[144] See eg Elvidge Pty Ltd v BGC Construction Pty Ltd [2006] WASCA 264 [40]; Caringbah Investments Pty Ltd v Caringbah Business and Sports Club Ltd (in liq) [2016] NSWCA 165 [72]; Risi Pty Ltd v Pin Oak Holdings Pty Ltd [2017] VSCA 317 [62] (fn 43).

[145] Doueihi v Construction Technologies Australia Pty Ltd [2016] NSWCA 105; (2016) 92 NSWLR 247 [162] - [163].

[146] Waltons Stores (Interstate) Ltd v Maher (419).

[147] Waltons Stores (Interstate) Ltd v Maher (419 - 420). Similarly, Deane J has stated that 'the notion of unconscionability is better described than defined': Commonwealth v Verwayen (440).

[148] Waltons Stores (Interstate) Ltd v Maher (420 - 428).

[149] Elvidge Pty Ltd v BGC Construction Pty Ltd [41].

[150] Thompson v Palmer [1933] HCA 61; (1933) 49 CLR 507.

[151] Grundt v Great Boulder Pty Gold Mines Ltd (675).

[153] Commonwealth v Verwayen (444 par 4).

[154] Merilla Pty Ltd v Commonwealth of Australia [2015] WASCA 309 [202].

[156] Legione v Hateley [1983] HCA 11; (1983) 152 CLR 406, 435 - 437. See also (439), (440).

[157] Galaxidis v Galaxidis [2004] NSWCA 111 [93] (referring to Australian Crime Commission v Gray [2003] NSWCA 318 [193] - [207]); Sullivan v Sullivan [2006] NSWCA 312; (2006) 13 BPR 24,755 [84] - [85]; Bell Group Ltd (in liq) v Westpac Banking Corporation [No 9] [3473]; Australian Goldfields NL (in liq) v North Australian Diamonds NL [196] - [197]. Compare Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd [143], [147] - [149].

[158] Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd [39], [43].

[159] Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd [84].

[160] Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd [87]. See also Commonwealth v Verwayen (417).

[161] Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd [88].

[165] Waltons Stores (Interstate) Ltd v Maher (403 - 404), (416), (419 - 420), (423), (430 - 432), (448).

[166] Waltons Stores (Interstate) Ltd v Maher (419).

[167] Commonwealth v Verwayen (412 - 413), (429 - 430), (441 - 443), (454), (487), (501); Sidhu v Van Dyke [82] - [86].

[168] Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd [218].

[169] Commonwealth v Verwayen (429). See also (475 - 476).

[171] Commonwealth v Verwayen (441); Sidhu v Van Dyke [83] - [84]; Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd [218].

[172] Waltons Stores (Interstate) Ltd v Maher (419); see also (425) (where it is said that the measure of the equity varies according to what is necessary to prevent detriment resulting from unconscionable conduct). See also: Commonwealth v Verwayen (501); Giumelli v Giumelli [50] - [51]; Sidhu v Van Dyke [85].

[174] See eg Commonwealth v Verwayen (412), (416), (429), (454), (462), (487), (501).

[175] See, albeit in the context of proprietary estoppel: Giumelli v Giumelli [50] - [51]; Sidhu v Van Dyke [84] ‑ [85].

[176] Appellant's submissions par 55 WAB 21. The passages referred to are at Primary reasons [49] - [55], [61] - [63], [68], [74], [128], [167], [172], [174], [188], [190], [210], [217(b)].

[177] Appellant's submissions par 57 WAB 21 - 22.

[178] Appellant's submissions pars 58, 59 WAB 22.

[179] Appellant's submissions pars 58, 59 WAB 22.

[180] See Primary reasons [189], [191].

[181] Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd [35].

[183] Appellant's submissions par 8 WAB 10.

[184] Appeal ts 31. See also Appeal ts 23, 36, 40, 42, 44, 47, 54 - 55, 70.

[186] Appellant's submissions par 14 WAB 11.

[187] Appellant's submissions par 15 WAB 12.

[189] Appellant's submissions par 16 WAB 12.

[190] Appellant's submissions par 17 WAB 12.

[191] Appellant's submissions par 18 WAB 13.

[192] Primary reasons [97] - [99] (referring to Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd [151] - [153]).

[193] Primary reasons [100] (referring to Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd [221]).

[195] Appellant's submissions par 12 WAB 11.

[201] Appellant's submissions pars 1, 19 WAB 8, 13.

[205] Respondent's submissions par 21 WAB 35.

[206] Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; (1993) 177 CLR 485, 506 - 507.

[207] Australian Securities Commission v Marlborough Gold Mines Ltd (507).

[208] Windsor v National Mutual Life Association of Australia Ltd (1992) FCR 580.

[209] Australian Securities Commission v Marlborough Gold Mines Ltd (506).

[210] Respondent's submissions pars 24 - 28 WAB 36 - 38; Appeal ts 83 - 84.

[211] Summer Hill Business Estate v Equititrust Ltd [2010] NSWSC 776 [42] - [43].

[212] Murphy v Overton Investments Pty Ltd [2001] FCA 500; (2001) 112 FCR 182 [68], [96].

[213]Murphy v Overton Investments Pty Ltd [61] - [67], [96].

[214] Respondent's submissions pars 32 - 37 WAB 38 - 39.

[215] Respondent's submissions par 30 WAB 38.

[216] Respondent's submissions par 39 WAB 40.

[217] Respondent's submissions par 40 WAB 40.

[218] Respondent's submissions par 41 WAB 40.

[219] Respondent's submissions par 37 WAB 39; Appeal ts 79.

[223] Appeal ts 42, 94. See also ts 44, 47 - 48.

[225] See eg Appeal ts 37, 42 - 49, 54, 76 - 80.

[228] Compare Respondent's submissions par 40 WAB 40.

[234] Waltons Stores (Interstate) Ltd v Maher (397).

[235] Waltons Stores (Interstate) Ltd v Maher (397).

[236] Mason CJ also considered the reasonableness of an alleged assumption as a factual indicator as to whether an assumption was in fact held in Commonwealth v Verwayen (414).

[237] See eg Primary reasons [190] - [191].

[239] Waltons Stores (Interstate) Ltd v Maher (406); Commonwealth v Verwayen (503).

[240] Australian Crime Commission v Gray [184].

[241] Australian Crime Commission v Gray [188].

[242] Australian Crime Commission v Gray [190].

[243] Australian Crime Commission v Gray [192].

[244] Australian Crime Commission v Gray [193].

[245] Australian Crime Commission v Gray [193] - [196].

[246] Australian Crime Commission v Gray [196] - [199].

[247] Australian Crime Commission v Gray [200].

[248] Australian Crime Commission v Gray [201] - [202].

[249] Australian Crime Commission v Gray [203].

[250] Australian Crime Commission v Gray [204] - [205].

[251] Australian Crime Commission v Gray [207].

[252] Galaxidis v Galaxidis [93] - [94].

[254] Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd [35].

[255] Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd [39] - [44].

[256] Low v Bouverie [1891] UKLawRpCh 106; [1891] 3 Ch 82.

[257] See eg Western Australian Insurance Co Ltd v Dayton [1924] HCA 58; (1924) 35 CLR 355, 375; Legione v Hateley (435 - 437).

[258] Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd [151] - [153] (Keane J); [213] - [214] (Nettle J).

[263] Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd [160].

[264] Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd [160].

[265] Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd [147] - [149].

[266] Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd [150].

[267] Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd [151].

[268] Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd [152].

[269] Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd [152] - [153].

[270] Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd [35].

[271] Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd [151] - [153].

[272] Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd [211]. See also at [212], [218].

[273] Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd [217].

[274] See Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd [211], [217] - [218], [221].

[275] Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd [212].

[276] Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd [212].

[277] Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd [218].

[279] Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd [221].

[280] Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd [223] - [224].

[281] Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd [225] - [227].

[282] Australian Crime Commission v Gray [204] - [206].

[283] Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd [35].

[284] Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd [211] - [212], [218].

[285] Keane J seemingly taking a more demanding view. See [153] - [154] above.

[286] Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd [35] (plurality); [149] - [153], [160] (Keane J); [211] - [212], [218], [221] (Nettle J). See [109], [150], [152] - [157] above.

[287] Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd [35], [39].

[288] Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd [147] - [153] (esp [150]).

[289] Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd [211] - [212], [217], [221], [223] - [224].

[290] The plurality did not do so expressly. However, French CJ, Kiefel and Bell JJ referred to the purpose of the doctrine of estoppel in conventional terms: Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd [39].

[294] Waltons Stores (Interstate) Ltd v Maher (450); Commonwealth v Verwayen (503).

[295] Yeoman's Row Management Ltd v Cobbe [2008] UKHL 55; [2008] 4 All ER 713 [65]; DHJPM Pty Ltd v Blackthorn Resources Ltd [2011] NSWCA 348; (2011) 83 NSWLR 728 [57], [67].

[296] DHJPM Pty Ltd v Blackthorn Resources Ltd [49]. See also at [66] - [69].

[297] Browne v Browne [2019] WASCA 1 [80].

[299] Child and Adolescent Health Service v Mabior [2019] WASCA 151 [100].

[300] Appellant's submissions pars 26, 27 - 28 WAB 14 - 15; Appeal ts 18 - 22, 32, 55.

[301] Appellant's submissions par 27 WAB 15.

[302] See [34] - [35], [38] - [42], [48] above.

[303] See [35], [48] - [50], [54] above.

[304] See [20] - [32], [52.1] above.

[305] See [48] above.

[306] Primary reasons [128] - [129], [164], [174] - [175], [188], [190] - [192], [217(b)].

[307] See [55] above.

[308] Primary reasons [183], [187], [189]. See [52.2] above.

[309] See [59.3] above.

[310] See [53] above.

[311] See [71] above.

[312] See Smart v Power [2019] WASCA 106 [101] ‑ [105]; Child and Adolescent Health Service v Mabior [93]; Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40 [95] - [96]; Joyce v Anderson [2020] WASCA 48; (2020) 91 MVR 334 [105] - [108], [132], [205] - [213], [244], [262] - [263].

[313] Smart v Power [100]; Child and Adolescent Health Service v Mabior [96].

[315] For example: (1) Mr Wilson's pleaded case as to the assumption and his reliance thereon were denied: Respondent's second further amended reply par 4 BAB 104 - 105; and (2) Respondent's outline of written submissions for trial pars 63, 104 - 110.

[319] ts 107 - 114, 117 - 119, 121 - 128, 132, 136, 138 - 143, 149, 151 - 153.

[325] ts 103 - 106, 108 - 112, 139 - 143, 151 - 152.

[329] Primary reasons [189]. See also [231] - [233] below.

[330] Primary reasons [112], [212].

[333] Primary reasons [212]. See [70] above.

[334] Appellant's PD 7.4 schedule of findings and evidence rows 1 - 2 WAB 27 - 29.

[335] Exhibit 1 pars 61 - 63 GAB 130. See Primary reasons [154] - [156].

[336] Exhibit 1 pars 105 GAB 136. See Primary reasons [169].

[337] Exhibit 1 par 106 GAB 136. See Primary reasons [170].

[338] Exhibit 1 par 111 GAB 137. See Primary reasons [171].

[339] Exhibit 1 par 114 GAB 138. See Primary reasons [171].

[340] Exhibit 1 pars 144 - 146 GAB 141. See Primary reasons [186].

[341] See [52.2], [53] - [55] above.

[344] Appeal ts 18 - 23 (referring to ts 114, 123, 124).

[345] Appellant's submissions pars 31 - 41 WAB 15 - 17.

[346] Appellant's submissions par 42 WAB 17 - 18.

[347] Appellant's submissions par 43 WAB 18.

[348] See [42] above.

[350] Primary reasons [51], [52], [103(c)], [116], [120], [124], [128], [156], [158].

[352] Appellant's PD 7.4 schedule of findings and evidence row 3 WAB 29.

[353] Appeal ts 27, 29, 55, 65 (referring to ts 101).

[354] Sidhu v Van Dyke [61]. Sidhu v Van Dyke was a proprietary estoppel case. However, so far as it is referred to here and in following references we consider the principles it establishes to be equally applicable to the doctrine of promissory estoppel.

[355] Sidhu v Van Dyke [90] - [91]. See also [66], [71] - [73].

[359] Appeal ts 67. See also Appeal ts 27.

[360] Appellant's submissions par 47 WAB 19.

[361] Appellant's submissions par 49 WAB 20.

[364] Primary reasons [189] - [191].

[367] See eg Falkingham v Hoffmans (a firm) ) [2014] WASCA 140; (2014) 46 WAR 510 [247] (referring to Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232 [32] (fn 64)); Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434 [15] - [17], [44] - [45], [87] - [91], [157] - [158], [221].

[368] Falkingham v Hoffmans (a firm) [41].

[369] Attard v James Legal Pty Ltd [2010] NSWCA 311; (2010) 80 ACSR 585 [120], [126].

[371] Exhibit 1 par 146 GAB 141. See Primary reasons [186].

[372] Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 [31].

[374] Primary reasons [189] - [190].

[376] Exhibit 1 par 141 GAB 141. See [177].

[387] Minister for Immigration, Local Government and Ethnic Affairs v Hamsher [1992] FCA 223; (1992) 35 FCR 359, 369.