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[2026] NSWCA 73
respondent. Appeal dismissed with costs. The Court did not disturb the primary judge’s dismissal of Paula-Marie’s claims for a constructive trust over the family home and an accounting remedy concerning the...
Paula-Marie said her parents had promised her the family home and business if she worked in the business without pay. The trial judge found that the evidence did not establish a clear promise that the assets would be transferred during the parents’ lifetimes or when Paul retired. The Court of Appeal held that the trial judge was entitled to reach that conclusion, including by assessing witness evidence and comparing the alleged promises with the parties’ conduct. It also rejected an attempt to rely on a different inheritance-based claim that had not been pleaded. The appeal was dismissed with costs.
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2,440 words · generated 08/10/2026
Paula-Marie Penya’s claim arose alongside proceedings by her father, Paul Penya, seeking an order under s 66G of the Conveyancing Act 1919 (NSW) for trustees to sell a home in Eastlakes owned by Paul and Therese Penya as tenants in common in equal shares. Paula-Marie, their only child, brought separate proceedings seeking a constructive trust over the home and an accounting remedy concerning the proceeds from the sale of her parents’ real estate business ([1]–[2]).
1 cited instrument linked from this judgment.
Her case was that, over many years from about March 1996, her parents promised that if she worked in the business without pay, she would receive the business and family home. The disputed question was not simply whether her parents expected her to inherit their estates. The primary judge accepted that they intended her to inherit their estates on their deaths and that there had been conversations to that effect. The critical issue was whether they had also promised to transfer the home and business during their lifetimes, or when Paul retired ([9], [11]–[12]).
The business was modest, with a rent roll of about 30 properties and net income of about $2,000 a month. It was sold in September 2018 for $220,516.46. Paula-Marie agreed to a restraint of trade clause and received $20,000 from the sale proceeds ([6]–[8]). In 2021, Paul gave her a copy of his will, which left his estate to her but did not specifically name the home ([11], [58]–[60]).
Paula-Marie and her family had lived in the home rent-free, while Paul continued paying the mortgage. The judgment also records cash payments and other financial assistance from her parents, and a substantial investment portfolio accumulated by Paula-Marie and her husband ([4]–[5], [15]). Those circumstances formed part of the background against which the primary judge assessed whether Paula-Marie worked without pay in reliance on the alleged promises and suffered detriment.
The primary judge dismissed the claims. The Court of Appeal, with Bell CJ giving the principal reasons and Mitchelmore JA and Adamson JA agreeing, dismissed Paula-Marie’s appeal with costs ([74]–[76]).
The Court’s main legal conclusion concerned the requirement for a clear and unequivocal promise. Bell CJ understood the High Court’s decision in Kramer v Stone to require such a promise for proprietary estoppel, or at least for an estoppel based on representations, as Paula-Marie’s claim was framed. He considered the Court of Appeal required to follow Kramer ([37]–[40]).
Bell CJ acknowledged that Leeming JA had identified difficulties with applying that requirement to proprietary estoppel by encouragement in Kronenberg v Macaulay. But, as Bell CJ described it, Kronenberg did not need to decide the point, and neither did Penya because the claim failed on other grounds. Mitchelmore JA likewise said the issue did not need to be decided independently on the facts, while agreeing that the primary judge could not be criticised for using Kramer’s language ([38], [75]). The judgment therefore applies Kramer; it does not resolve every broader question about the precise content of the promise requirement.
On the facts, the primary judge accepted that Paul said Paula-Marie would “get the business” when he retired. But that phrase did not make clear whether Paula-Marie would own the business or would have the opportunity to take over its management as principal licensee. Bell CJ agreed that the statement was equivocal. He stressed that the question was not ultimately what the statement meant, but whether it was unequivocal ([22], [44]). The judgment also notes that Paula-Marie’s agreement to the business sale and restraint of trade clause was inconsistent with her claimed understanding that she would own the business on Paul’s retirement ([24], [44]).
The Court also upheld the primary judge’s assessment of the home-related evidence. Paul and Therese had separated before the alleged conversations. Paul continued to pay the mortgage and relied on the business for income and to fund alternative accommodation. The primary judge accepted Paul’s evidence that the home would be sold, or Therese would buy out his interest, if he needed funds when he retired. Bell CJ considered that evidence and the financial circumstances relevant to whether a promise to transfer the home on retirement was inherently probable ([21], [32], [48], [61]–[63]).
The Court rejected the challenge to the primary judge’s treatment of witnesses. Bell CJ examined the specific reasons given for rejecting parts of Therese’s and Andrea’s evidence, including inconsistencies with other evidence and the way Andrea’s answers changed during cross-examination. He concluded that the primary judge’s credibility assessments were not based merely on the witnesses’ interests in the outcome ([30]–[36]). The appellate court’s role did not permit it to rehear those factual questions as if it had seen the witnesses. The judgment applied the restraint described in Lee v Lee and Fox v Percy, including the principle that findings affected by a trial judge’s impressions should not be disturbed unless glaringly improbable or contrary to compelling inferences ([43], [52]–[53]).
The primary judge also tested the old alleged representations against objective conduct. Among other matters, Paula-Marie did not ask for title to the home to be transferred when Paul retired; she first sought a loan to buy Paul’s interest after he commenced the sale proceedings; and she commenced the trust proceedings after that loan application failed. The primary judge also considered that Paula-Marie did not assert a claim to the business during the process leading to its sale. Bell CJ held that it was appropriate to examine those circumstances, especially because the alleged promises were said to have been made many years earlier ([23]–[24], [65]–[68]).
A further obstacle concerned the scope of the pleaded case. On appeal, Paula-Marie sought to argue that the parents had promised to preserve the home and business for her to inherit on their deaths. The primary judge had treated that as outside the pleaded case; the relief sought at first instance was immediate transfer. Bell CJ agreed that the alternative formulation was not open, and also considered it unsupported by the evidence ([54]–[57]).
Finally, although the promise-related grounds were enough to dispose of the appeal, Bell CJ addressed the primary judge’s alternative findings about reliance and detriment. The primary judge had found that Paula-Marie’s work was not proved to have been undertaken in reliance on the alleged promises and that she had not shown that another course of employment would have left her better off. Bell CJ considered those findings open, having regard to the support Paula-Marie received and the evidence about the modest business and possible alternative earnings ([26], [70]–[72]).
The judgment’s account of the relevant law is centred on Kramer v Stone. Bell CJ said Kramer stated that there must be a “clear and unequivocal” promise by the party said to be estopped to the person relying on it. The judgment notes that the authorities cited in Kramer for that proposition included Legione v Hateley and Foran v Wight, which were promissory estoppel cases, while the case was treated as one of proprietary estoppel ([37]).
The question whether the promise standard had a variable content was raised in the appeal. Bell CJ described the argument as subtle, but concluded that the formulation in Kramer had to be applied in this Court. He also held that the primary judge had not imposed an impermissibly stringent test by using that language ([37]–[40]).
The judgment records a qualification rather than a wholesale change to the law. In Kronenberg, Leeming JA had given reasons for questioning whether a clear and unequivocal promise must be established in proprietary estoppel by encouragement. Bell CJ observed that those concerns had force but treated Kramer as binding. Mitchelmore JA agreed that the broader issue did not need to be resolved in Penya ([38], [75]). The judgment thus reinforces the application of Kramer in the Court of Appeal while leaving the identified question unresolved.
For fact-finding on appeal, the judgment applies the approach in Lee v Lee and Fox v Percy. The trial judge’s opportunity to observe witnesses and consider the evidence in its entirety matters, and factual findings affected by those advantages attract appellate restraint. The judgment also relies on Watson v Foxman and Fox v Percy for the use of objective circumstances to test the probability of alleged conversations recalled after a long period ([36], [52]–[53], [67]).
The decision does not purport to set out a complete statement of proprietary estoppel doctrine or change the elements of the cause of action. Its legal contribution in the judgment is narrower: it applies Kramer’s promise formulation, upholds the trial judge’s fact-finding approach, and rejects an unpleaded alternative claim on appeal.
At [38], Bell CJ said that Kramer had determined that a clear and unequivocal promise was required, at least for an estoppel based on representations, and that the Court of Appeal had to follow it. In plain English, Bell CJ treated the High Court authority as controlling, notwithstanding doubts discussed in another Court of Appeal judgment.
At [44], Bell CJ explained that “unequivocal” means “leaving no doubt or unambiguous”. The phrase “get the business” did not meet that description in the circumstances because it did not clearly distinguish ownership from a future opportunity to run the business. The primary judge also considered the surrounding evidence, including that Paula-Marie agreed to the sale.
At [52], the judgment set out the appellate restraint described in Lee v Lee: findings likely affected by the trial judge’s impressions of witnesses should not be disturbed unless they are “glaringly improbable” or “contrary to compelling inferences”. In plain English, an appeal court does not simply substitute its own view of a witness it did not see or hear.
At [67], Bell CJ said it was sound fact-finding technique to test representations said to have been made many years earlier against objective matters. This explains why the Court considered later conduct, such as whether Paula-Marie sought a transfer of the home or asserted a claim during the business sale process. The passage does not mean that any one later act conclusively disproves an earlier promise; it explains why the trial judge could consider the circumstances together.
At [70]–[72], Bell CJ discussed reliance and detriment. The primary judge considered the financial and practical support the family provided, as well as the lack of evidence that alternative work would have put Paula-Marie in a stronger financial position. Bell CJ regarded those findings as open on the evidence, while noting that those issues did not strictly need to be decided after the other grounds failed.
The most direct setting for the decision is a proprietary estoppel claim based on alleged oral assurances made within a family over a long period, where the alleged promise concerns future ownership of property or a business. Penya illustrates the importance, in that setting, of the content and timing of the alleged promise: an assurance that someone will “get” a business may leave uncertainty about whether it means ownership, management, or an opportunity to take over ([14], [22], [44]).
The decision is also relevant where the alleged promise is recalled years later and the parties’ subsequent conduct may provide context. In Penya, the Court considered the business sale, the restraint of trade agreement, the response to the s 66G proceedings, and whether a transfer had been requested after Paul retired ([23]–[24], [65]–[68]). The judgment treats these as evidence the primary judge was entitled to weigh, rather than as automatic rules that determine every family-estoppel dispute.
For appellate challenges, the case concerns findings made after a trial involving oral evidence and credibility assessments. The Court emphasised that a challenge to findings based on the trial judge’s observations must confront the reasons for those findings and the applicable appellate restraint ([31]–[36], [52]–[53]).
The decision also presents a pleading issue: a claim framed for immediate transfer cannot simply be recast on appeal as a different promise to preserve assets for inheritance if that case was not pleaded and the opposing party had not had procedural fairness on that basis ([54]–[57]).
The judgment was decided on 29 April 2026, and the material supplied here does not identify any later judicial treatment of Penya. Its later treatment therefore cannot be established from this judgment alone.
The judgment itself discusses the earlier Court of Appeal decision in Kronenberg v Macaulay, decided in 2025. Bell CJ noted that Leeming JA had identified difficulties with the clear-and-unequivocal-promise formulation in proprietary estoppel by encouragement, but held that Kramer governed the present case. Mitchelmore JA agreed that the broader question did not need to be decided in Penya ([38], [75]). Kronenberg is therefore relevant background to the issue, not later treatment of Penya.
The judgment also refers to Davey v Want, decided in 2026, for the recognised advantages of a primary judge who observed witnesses and the high threshold for appellate intervention in findings made after oral evidence and cross-examination ([53]). That citation supports the appellate-review discussion; it does not establish how later courts have applied Penya.
The judgment leaves open the broader question identified in Kronenberg: whether, and in what circumstances, proprietary estoppel by encouragement requires a clear and unequivocal promise. Bell CJ considered Kramer controlling for the claim before the Court, but both Bell CJ and Mitchelmore JA indicated that they did not need to resolve the wider issue independently in Penya ([38], [75]).
The decision also does not determine how a different factual record might affect the meaning of an assurance such as “you will get the business”. In Penya, the statement was assessed alongside the evidence about the principal licensee role, the business’s finances, and Paula-Marie’s later conduct. Its meaning was therefore evaluated in its particular context ([22], [44]).
Nor does the judgment establish a general rule that family support defeats reliance or detriment. The Court upheld the primary judge’s findings on the evidence in this case, which included rent-free occupation, other financial assistance, the scale of the business, and the absence of evidence establishing that alternative work would have produced a better financial position ([15], [70]–[72]).
Finally, the appeal decision does not give a general account of when a court may permit a new case to be advanced on appeal. It holds that this particular inheritance-based formulation was not open where it had not been pleaded, the relief sought at trial was immediate transfer, and no amendment application had been made ([55]–[57]).
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Penya v Penya [2026] NSWCA 73
Hearing dates: 24 February 2026
Date of orders: 29 April 2026
Decision date: 29 April 2026
Before: Bell CJ at [1];
Mitchelmore JA at [75];
Adamson JA at [76].
Decision: Appeal dismissed with costs.
Catchwords: APPEALS — from finding of fact — function of appellate court — whether appropriate for appellate court to interfere with findings of primary judge based on observations of witnesses in the course of the trial
ESTOPPEL — proprietary estoppel — encouragement — nature of promise — where daughter claims parents promised to transfer family home and family business to her during their lifetimes — whether promise clear and unequivocal
Legislation Cited: Conveyancing Act 1919 (NSW) s 66G
Cases Cited: Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 ALJR 842; [1985] HCA 61
Chambers v Jobling (1986) 7 NSWLR 1
Davey v Want [2026] NSWCA 12
Foran v Wight (1989) 168 CLR 385; [1989] HCA 51
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Kramer v Stone (2024) 281 CLR 484; [2024] HCA 48
Kronenberg v Macaulay [2025] NSWCA 195
Lee v Lee (2019) 266 CLR 129; [2019] HCA 28
Legione v Hateley (1983) 152 CLR 406; [1983] HCA 11
Trentelman v The Owners – Strata Plan No 76700 (2021) 106 NSWLR 227; [2021] NSWCA 242
Watson v Foxman (1995) 49 NSWLR 315
Category: Principal judgment
Parties: Paula-Marie Penya (Appellant)
Paul Penya (First Respondent)
Therese Penya (Second Respondent)
Representation: Counsel:
J Mee (Appellant)
G George (First Respondent)
Submitting appearance (Second Respondent)
Solicitors:
Russell Kennedy (Appellant)
Eaves Legal (First Respondent)
File Number(s): 2025/00320135
Publication restriction: N/A
[This headnote is not to be read as part of the judgment]
Ms Paula-Marie Penya (Paula-Marie) brought proceedings against her parents, Mr Paul Penya (Paul) and Ms Therese Penya (Therese), following an application by Paul to appoint trustees for the sale of a home at Eastlakes (the family home) held by him and Therese as tenants in common in equal shares.
In the proceedings, Paula-Marie sought equitable relief by way of a constructive trust over the family home and an accounting remedy in respect of the proceeds of sale of a real estate business once owned by her parents (the family business). She claimed that her parents had made promises to her to the effect that, if she worked in the family business without remuneration, she would receive the family home and the family business during her parents’ lifetime. She claimed that she worked in the family business without remuneration in reliance on these promises to her detriment.
The primary judge held that Paula-Marie was not entitled to the relief she sought because no “clear and unequivocal” promise of the kind she claimed had been made. Her Honour also held that, even if such a promise had been made, Paula-Marie had not relied on it to her detriment. Paula-Marie appealed to this Court.
The Court (Bell CJ, Mitchelmore JA and Adamson JA agreeing) held, dismissing the appeal:
Kramer v Stone (2024) 281 CLR 484; [2024] HCA 48, considered.
Legione v Hateley (1983) 152 CLR 406; [1983] HCA 11; Foran v Wight (1989) 168 CLR 385; [1989] HCA 51, cited.
Trentelman v The Owners – Strata Plan No 76700 (2021) 106 NSWLR 227; [2021] NSWCA 242, not followed in part.
Kronenberg v Macaulay [2025] NSWCA 195, referred to.
Lee v Lee (2019) 266 CLR 129; [2019] HCA 28; Fox v Percy (2003) 214 CLR 118; [2003] HCA 22; Watson v Foxman (1995) 49 NSWLR 315; Davey v Want [2026] NSWCA 12; Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 ALJR 842; [1985] HCA 61; Chambers v Jobling (1986) 7 NSWLR 1, cited.
BELL CJ: This is an appeal from a judgment and costs order of Williams J (the primary judge) sitting in the Equity Division of the Supreme Court: Penya v Penya [2025] NSWSC 805 (PJ); Penya v Penya [2025] NSWSC 890. It arises from a hearing of a Summons for relief under s 66G of the Conveyancing Act 1919 (NSW) to appoint trustees for the sale of a family home at Eastlakes (the family home or the Property), the parties to those proceedings being Mr Paul Penya (Paul or the First Respondent) and Ms Therese Penya (Therese or the Second Respondent).
In separate proceedings heard in conjunction with the s 66G proceedings (with evidence in one case being evidence in the other), Ms Paula-Marie Penya (Paula-Marie or the Appellant), the only child of Paul and Therese, brought proceedings against her parents seeking equitable relief by way of a constructive trust over the family home, and sought an accounting remedy in respect of the proceeds of sale of the Matra Real Estate business owned by Paul and Therese (the family business or the Business).
The convention adopted by the parties and the primary judge of referring to those involved in this matter by their first names has been maintained in these reasons. No disrespect is intended thereby.
Paul and Therese were both directors of the family business although Therese appears to have been a passive director and did not participate in the business. Paul and Therese separated in 1995 and, although Paul moved out, he continued to pay the mortgage over the family home of which he and his wife were joint tenants. Paula-Marie lived in the family home rent-free before her marriage and she and her husband, Mr Andrea Pizzimento (Andrea), whom she married in 2004, have continued to live rent free in the home up until this day, together with their two children who are now 11 and 12 years old.
That fact, together with a degree of financial assistance received from Paul and Therese as well as from Andrea’s family, has allowed Paula-Marie and Andrea to amass a substantial investment portfolio, the realisation value of which as at the time of the hearing was $2,096,000 net of debt and selling costs.
The family business was a modest one. Its activities involved the sale and rental management of properties. It was acquired in 1986 and operated through Matra Real Estate Pty Ltd, of which Paul and Therese are directors and shareholders. The business had a modest rent roll of 30 properties from which a net income of about $2,000 each month was earned.
Paula-Marie principally founded her claim on the doctrine of proprietary estoppel, alleging that her parents had over many years from about March 1996 made promises to her in relation to what would happen to the family business and the family home if she agreed to work in the family business without remuneration. In short, her claim was that, in reliance on several promises made by both parents at particular times, she worked in the family business without remuneration for many years and to her detriment on the basis that she would be given the family home and the family business.
Therese did not oppose the s 66G proceedings, and entered a submitting appearance in Paula-Marie’s proceedings and on appeal, but broadly supported Paula-Marie. Certain aspects of her evidence, however, did not support Paula-Marie’s case including her evidence noted at [8] above.
The starting point for considering the case is that the primary judge accepted that Paul and Therese did intend for Paula-Marie to inherit the whole of their estates on their death, and that there were many conversations to that effect: see PJ [169]. Consistent with this, in about November 2021, Paul gave Paula-Marie a copy of his will dated 23 August 2021, in which he bequeathed the whole of his estate to her. The will did not specifically refer to the family home.
The critical issue before the primary judge related to whether, to the extent representations had been made, they had been to the effect that the parents would transfer the family home and the family business to Paula-Marie during the parents’ lifetimes or on Paul’s retirement or on their death, by way of inheritance and as part of their respective estates as constituted at their deaths rather than as specific bequests.
The primary judge dismissed Paula-Marie’s claims for equitable relief. The essence of her Honour’s reasoning was that no clear and unequivocal promises had been made that Paula-Marie would receive the family business or the family home during her parents’ lifetime. Her Honour pointed out that Therese only supported this version of events when cross-examined (having been present in Court for Paula-Marie’s cross-examination) and noted that it was inconsistent with her written evidence: PJ [91]-[94].
The primary judge’s conclusion about the lack of clarity of the representations is borne out when one has regard to the terms of a conversation in March 1996 relied upon by Paula-Marie (PJ [21]):
“… Dad told me that I wouldn’t get paid anything but it didn’t matter because everything was going to be mine anyway. He said that everything that he and Mum owned including the business and the Property would be mine, but if I needed money for anything I should just let him know and he would give me money, which he could do by getting a cash advance on his credit card. He said that I was their only child and he and Mum were going to give me everything. Dad said that if I worked in the business this would be like sacrificing my wage to get a business when he retired and also the house.”
Over the years, Paul did provide some money to Paula-Marie in the form of cash payments having an aggregate value of $79,000 together with other financial benefits such as permitting her to live in the family home rent-free together with her husband and subsequently her children while Paul was continuing to service the mortgage, as well as providing financial support to Paula-Marie and her husband which assisted them in acquiring a valuable investment property portfolio which had a net value of over $2 million as at the time of the hearing.
Paul denied Paula-Marie’s account; his evidence was that he merely told Paula-Marie that everything he owned, including the family business and the home, would be hers one day in any event when he died, and that he intended for her to take over the business by becoming the principal licensee when he retired. The primary judge rejected the last sentence of Paula-Marie’s account as set out at [14] above and, in particular, the notion of “sacrificing [a] wage”, describing it as “inherently improbable” (because her parents had assured her that she would be inheriting everything anyway) and as “part of Paula-Marie’s overt narrative in the trust proceedings”: PJ [170].
The primary judge concluded that “Paula-Marie’s impressions of what Paul said to her in March 1996 have been consciously or subconsciously overlaid with that self-interested narrative in the context of her prosecution of the trust proceedings”: PJ [170]. This was a polite way of rejecting an important component of Paula-Marie’s evidence. The primary judge also said that she did “not feel actual persuasion that Paul and Therese said during [a] 1997 conversation that Paula-Marie working without a wage ‘was a small sacrifice for what I was going to end up with’”: PJ [172].
The primary judge indicated that, even if there had been the requisite clarity as to the representations relied upon (as to which, see Kramer v Stone (2024) 281 CLR 484; [2024] HCA 48 (Kramer) at [37] – a decision handed down after final submissions in the case but before judgment), she would nevertheless have dismissed the claim on the basis that Paula-Marie had not relied on any of the alleged promises to her detriment.
Her Honour held (at PJ [191]):
Paula-Marie had failed to establish the first necessary element of her proprietary estoppel claim — a clear and unequivocal promise made to her by Paul and Therese that, if she worked full-time in the Business without pay, then they would give her the Business and the Property during their lifetime;
Paul was “not estopped from seeking an order under s 66G of the Conveyancing Act for sale of the … [P]roperty”;
Paula-Marie appeals on some 14 grounds although the final ground relating to costs is contingent on success on the other grounds.
Grounds 1-9 are grouped under the heading “Proprietary estoppel: clear and unequivocal promise”.
Although it is the last ground of appeal, it is both convenient and logical to commence with ground 13 which relates to the primary judge’s assessment of the credibility of the witnesses who gave evidence in the four day trial. These findings affected a number of the other findings by the primary judge that are subject to other grounds of appeal.
The written submissions made in support of ground 13 were confined to the following single paragraph:
“…The primary judge played down the credibility of Therese’s evidence on the basis that Therese perceived her interests to be aligned with Paula-Marie’s interests, taking no account of the fact that these would be to Therese’s own financial disadvantage. The primary judge was also negatively disposed to Andrea’s evidence, noting his interest in living free of charge in the Property. On the other hand, when approaching [Ms Irene Brennan]’s evidence, the primary judge took no equivalent account of Irene’s own clear interest in the proceedings by virtue of the fact that she had been Paul’s partner for many years, and Paul had changed his will to leave everything to her. Accordingly, the primary judge applied inconsistent standards to the credibility of witnesses, having regard to their respective interests in the subject matter of the proceedings.” (footnotes omitted)
It should immediately be noted that no attack was made as to the primary judge’s significant findings as to both Paul and Paula-Marie’s credibility. In particular, in relation to Paula-Marie, the primary judge accepted some but rejected other important parts of her evidence: see, for example, PJ [172]. Her Honour held that Paula-Marie’s “evidence that she was doing the work of three or four people in managing a rent roll of only about 30 properties lack[ed] credibility” and that she, together with Andrea and Therese, “grossly exaggerated the extent of Paula-Marie’s work in the small business that made no profits”: PJ [193].
A particularly significant aspect of Paul’s evidence (because it was inconsistent with Paula-Marie’s case) which was accepted by the primary judge was her Honour’s finding at PJ [182] that:
“I accept as inherently probable Paul’s evidence that he had agreed with Therese not to sell the Eastlakes property at the time of their separation, provided that the property would be sold or Therese would buy out his interest in the property if Paul was in need of funds when he retired. …”
“I reject Therese’s evidence denying that she and Paul ever discussed selling the Eastlakes property to enable him to realise his share to fund his retirement, and that they only ever discussed that the property would go to Paula-Marie. That evidence is inconsistent with Therese’s immediate response to Paul’s commencement of the s 66G proceedings, which was to see if Paula-Marie could borrow money to buy Paul’s share of the property. It is also inconsistent with Therese’s text message sent to Paul in early April 2023 (after Paula-Marie’s loan application had been rejected) in which Therese heaped emotional blackmail on Paul in an effort to dissuade him from continuing with the s 66G proceedings. Therese did not refer in that message to any previous discussion or agreement with Paul to the effect that the Eastlakes property was to be given [to] Paula-Marie. I reject the submission made by counsel on behalf of Paula-Marie that these responses were an example of Therese trying to ‘keep the peace’. The tone and substance of the text message do not reflect an attempt to keep the peace.” (footnotes omitted).
Other examples of detailed reasoning for rejecting aspects of Therese’s evidence may be seen at PJ [175], [181]. Moreover, the assertion in relation to Therese’s financial disadvantage in supporting Paula-Marie’s case reflected form over substance when the closeness of the relationship between Therese and Paula-Marie as reflected in the evidence was properly taken into account, as it was by the primary judge.
“… Andrea was a most unimpressive witness, whose evidence in cross-examination was tailored according to his perception at the time of the answer that would be most likely to assist Paula-Marie in the trust proceedings and thereby assure his family’s future living free of charge in the Eastlakes property. The most striking example of this occurred within the space of about five minutes at the beginning of his relatively short cross-examination. Andrea gave evidence that he believed Paul had cheated him and Paula-Marie in 2004 by arranging for them to purchase their first investment property at an inflated price on the basis that the vendor or the vendor’s agent sold the adjoining unit to Paul at a reduced price. Andrea gave evidence that it seemed to him that the price that he and Paula-Marie paid for their unit was loaded up so as to give Paul a cheaper price for his unit. Andrea gave evidence that, since that time, he had never trusted Paul. The potentially adverse consequences of this answer for Paula-Marie’s claim to have relied on representations allegedly made by Paul, often in the presence of Andrea, became apparent to Andrea when the cross-examiner then asked him whether it was the case that, after 2004, he wouldn’t accept anything Paul said. Clearly flustered, Andrea answered: ‘No. No, that’s not true’. It was put to him: ‘You didn’t trust him’. Andrea answered: ‘I trusted him’. The cross-examiner asked: ‘Even though you thought he had ripped you off?’. Andrea answered: ‘Yes’. I place no weight on Andrea’s evidence unless it is contrary to his own interests and Paula-Marie’s interests, inherently probable, consistent with objective facts, or corroborated by documentary or other reliable evidence.”
It is apparent from the foregoing that the primary judge’s adverse views as to Therese’s and Andrea’s evidence were based on far more than their self-interest. Accordingly, the premise of this ground of appeal, namely inconsistency with the primary judge’s treatment of the evidence of Irene, falls away. At PJ [147], the primary judge noted Irene’s evidence that “she was aware that Paul may leave her something in his will, but she considers his will to be his own business, she prefers not to know about it, she is more than capable of providing for herself, and she does not want the tension and friction that she believes will flow to her from Paul’s family if he leaves her part of his estate.” At PJ [182], the primary judge noted that Irene “gave her evidence in a forthright but considered manner and without appearing to pay any attention to the consequences of her answers for Paul’s prospects of success in these proceedings.”
Ground 13 should, for the foregoing reasons, fail. My conclusion in this regard is only buttressed by the familiar observations by the High Court in Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 (Fox) at [23] and [28]-[29] to which the First Respondent unsurprisingly referred. It is also important to emphasise in this context that, in rejecting Paula-Marie’s proprietary estoppel case, the primary judge had regard to that claim “as a whole”, Watson considerations and, consistent with that case, a testing of the claim by reference to what her Honour described as a number of “strikingly inconsistent” objective facts: PJ [162], [184] and see [23] above.
It is convenient next to turn to ground 8 which was that the primary judge erred in applying “too high a standard for a ‘clear and unequivocal promise’.” It appears from this formulation that Paula-Marie accepted that the expression “clear and unequivocal promise” accurately stated an element of a claim based upon proprietary estoppel (and the parties in Kramer agreed to the estoppel claim in that case as being one of proprietary estoppel: see Kramer at [32]) but appeared to contend that this element had a variable content. That was a subtle submission. The phrase “clear and unequivocal promise” derives directly from the plurality in Kramer at [37] where it was stated that “there must be a ‘clear and unequivocal’ promise made by the party estopped (the promisor) to the party who relies upon the promise (the promisee)”, citing Legione v Hateley (1983) 152 CLR 406 at 440, 435-437, 439; [1983] HCA 11; Foran v Wight (1989) 168 CLR 385 at 410-411, 435-436; [1989] HCA 51. As with the parties, the plurality in Kramer appeared to treat the case as one of proprietary estoppel (see at [32]) although the authorities cited for the “clear and unequivocal promise” element derived from promissory estoppel cases.
“… notwithstanding the requirement that there must be certainty in the promise to give rise to the requisite expectation, an equitable estoppel can be established notwithstanding the expectation is based on a promise or representation that would not be sufficiently certain to amount to a valid contract, or is formed on the basis of vague assurances: DHJPM Pty Ltd v Blackthorn Resources Ltd at [54]; Evans v Evans at [121]-[125]; Flinn v Flinn at [80]-[81].” (emphasis added)
To the extent that this passage made reference to “vague assurances”, it cannot, in my view, sit with Kramer and should not be followed to this extent.
The primary judge cannot be criticised for employing the language endorsed in Kramer, especially where the plurality in Kramer appeared (at [32]) to treat the case as one of proprietary estoppel. Her Honour did not apply too stringent a test for the purposes of assessing whether a proprietary estoppel had been made out and ground 8 must consequently be dismissed.
Ground 1 challenges the findings at PJ [170] and [172] that:
it was “inherently improbable that Paul said anything suggesting that Paula-Marie needed to make any sacrifice to get the [family] business and the [family home]”; and
the “notion of sacrifice” was a “self-interested narrative” on the part of Paula-Marie.
As to the first of these propositions, the primary judge’s view was formed in the context of her Honour’s acceptance that both parents had told Paula-Marie that she would be inheriting everything from their estates: no “sacrifice” would be involved because that was their clearly and consistently expressed testamentary intention in respect of their only child: see PJ [169].
As to the primary judge’s assessment that the “notion of sacrifice” was a “self-interested narrative” on the part of Paula-Marie, that was an impression formed by the primary judge who had all the benefits and advantages of observing the witness in the course of the entire trial (which an appellate court necessarily lacks): see Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 (Lee) at [55]. Her Honour plainly formed a view of Paula-Marie’s credibility, which included Paula-Marie’s gross exaggeration of the extent to which she worked in the family business: see [31] above. Her Honour’s conclusion was supported by a text message Therese sent to Paul in January 2020 which included the following: “Well she had her babies & she had to look after them. And with no one at the office all those years the business could not grow. Let’s not stress over the past or what should have been.” (emphasis added). This ground of appeal must fail.
Ground 2 attacked the primary judge’s finding at PJ [174] (see [22] above). It was submitted that, although accepting that Paul did say during the March 1996 conversation that Paula-Marie would “get the business” when Paul retired, her Honour erred in not regarding this as “a clear and unequivocal promise that Paula-Marie would be given ownership of the business on Paul’s retirement, as opposed to being given the opportunity to step up at that time into the role of principal licensee in charge of the business that she would later inherit.” I agree with her Honour that this was an equivocal statement. Her Honour was correct to note that her conclusion was consistent with Therese’s affidavit evidence that “she and Paul told Paula-Marie over the years that she needed to get her real estate licence in order to be able [to] ‘’”: PJ [174]. “Unequivocal” means leaving no doubt or unambiguous. The statement relied upon did not have this character and insofar as it is relevant to examine how Paula-Marie, as the representee, understood this statement, her acquiescence in the sale of the business in 2018 is inconsistent with her understanding that she was to own it on her father’s retirement. The fact that moneys earned from the business were being used to service the mortgages on the family home and Paul’s unit was an objective matter that also tended to support the primary judge’s interpretation of the representation rather than that contended for by Paula-Marie. In any event, the critical point is not what the representation in fact meant but that it was not unequivocal. This ground of appeal must fail.
“The learned primary judge erred in finding, at [175] of the Primary Judgment, that Therese's evidence that she and Paul had intended to give and discussed giving the Business and the Property to Paula-Marie when Paul retired rather than by way of inheritance:
a. is inherently improbable; and
b. is irreconcilably inconsistent with Therese's affidavit evidence,
in circumstances where:
c. the primary judge failed to consider separately the time at which Paula-Marie would be given the Business and the time at which Paula-Marie would be given the Property;
d. it is inherently probable that the time at which Paula-Marie would be given the Business would be when Paul retired rather than when he died; and
e. Therese's affidavit evidence, on its proper interpretation, was to the effect that as Paula-Marie (as their only child) would inherit everything anyway, Paula-Marie would be given the Business before that time, when Paula-Marie was ready.”
To the extent that this ground rests on acceptance of Therese’s evidence, it runs headlong into the primary judge’s rejection of key elements of that evidence which has already been referred to: see [33] above.
Secondly, it seeks to call for separate consideration as to when Paula-Marie would be given the Business and the time at which Paula-Marie would be given the Property. This was inconsistent with how the case was advanced at first instance. In any event, in relation to the Business, as explained in [43] above, the primary judge’s conclusion was not inherently improbable.
The primary judge was correct to find that it was inherently improbable that Paula-Marie would be given the Business and the family home on Paul’s retirement in circumstances where Paul and Therese had separated prior to any representations being made; where Paul relied upon the Business for his income and to fund his alternative accommodation (ie outside the family home); and, where on the evidence, Paul only had his share in the house by way of equity to support his retirement. The primary judge gave the following cogent reasons for reaching the conclusion which her Honour did at PJ [175]:
“Therese was unable to offer any coherent explanation of how she and Paul would have been able to give the property to Paula-Marie on Paula’s [sic] retirement and fund alternative accommodation for themselves. Therese’s claim in cross-examination that she and Paul had discussed moving into the granny flat at the rear of the Eastlakes property in order to give the house to Paula-Marie on Paul’s retirement is highly improbable. Therese and Paul had already separated before the March 1996 and 1997 discussions about Paula-Marie ‘getting’ the business and the house. In my opinion, this aspect of Therese’s evidence was coloured by the evidence that she heard Paula-Marie give in cross-examination that she had been promised the Eastlakes property and the business when Paul retired, and by Therese’s admitted keen interest in making sure that Paula-Marie and her family get the Eastlakes property because ‘[t]hey’re my life’. Therese’s commitment to that outcome is evident from the tone and terms of her text messages sent to Paul after he commenced the s 66G proceedings, and from the fact that she has deferred her retirement in order to fund Paula-Marie’s legal costs of the trust proceedings.”
Ground 3 is rejected.
Ground 4 relates to what was pleaded as the third alleged promise based upon the following evidence of Paula-Marie (which Paul denied) of a conversation in 2012:
“… I had a conversation with Dad in which I said that Andrea and I couldn’t afford to purchase this [investment] property as I was not earning any money from Matra and even though I knew I was going to get the house and the business I had no money coming in at all. Dad said ‘What are you worried about Paula? Don’t worry about the money, let the bank managers lose sleep about that, not you’. He told me that everything was going to be mine anyway and instead of paying rent I would be putting money into my property. He told me I had nothing to worry about and I was going to be ‘a very rich little girl’ when I got everything from him and Mum.”
“I do not feel actual persuasion that Paula-Marie had a conversation with Paul in 2012 in the terms that I have set out at [118] above. It is very difficult to reconcile the worry that Paula-Marie claims to have been feeling about whether she and Andrea could afford to purchase the commercial property, with her evidence that, even after ING Direct declined to lend against the security of the commercial property and would not lend all of the funds they needed against the security of their existing investment properties, she embraced her finance broker’s suggestion to ask permission to use Paul and Therese’s $170,000 line of credit to make up the shortfall so that she and Andrea could proceed with the purchase.
Even assuming that the conversation did occur in the terms set out …, nothing was said in the conversation about when it was that ‘everything was going to be mine anyway’. The conversation contains no promise or representation by Paul that either the Matra Real Estate business or the Eastlakes property would be given to Paula-Marie prior to the death of Paul and Therese.”
“… Appellate restraint with respect to interference with a trial judge's findings unless they are ‘glaringly improbable’ or ‘contrary to compelling inferences’ is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts.” (footnotes omitted)
And, as Gleeson CJ, Gummow and Kirby JJ observed in Fox at [23]:
“…the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.” (footnote omitted).
“As is well recognised, however, when evaluating findings of fact made following a trial involving oral evidence and cross-examination of key witnesses, an appellate court must be mindful of the advantages enjoyed by a primary judge who observed the trial and the evidence as it unfolded. The high bar set for a challenge such as that brought by the appellant here reflects the advantages of a primary judge ‘by reason of having seen the witnesses and having been immersed in the milieu of the trial’: J and E Vella Pty Ltd v Hobson [2023] NSWCA 234 at [214] (Stern JA, Mitchelmore JA agreeing).”
“even if the conversation were reasonably to be understood by Paula-Marie as a promise to inherit the Property or the Business or either of them after the death of Paul and Therese, rather than during their lifetimes, the primary judge failed to recognise any grounds for any of the remedies sought, including a declaration of trust in relation to the Property (even if a transfer were not to be presently granted) and an accounting for the proceeds of the sale of the Business.”
This aspect of ground 4 (which was in effect repeated in appeal ground 9b) was an illegitimate attempt on appeal to seek to introduce a claim that was rejected as not open on the pleadings by the primary judge, the late introduction of which would have amounted to a denial of procedural fairness: see PJ [196]. This was a point made by Mr George who appeared for Paul at the outset of the hearing at first instance, and Paula-Marie did not make any application to amend her claim to contend that “the representations that were made should be interpreted as a commitment to preserve the Eastlakes property and the [B]usiness for Paula-Marie to inherit on their death”: PJ [196]. Appeal ground 9a challenges the primary judge’s finding that “to interpret the representations as a commitment to preserve the Property and the Business for Paula-Marie to inherit on the death of Paul and Therese would be beyond the scope of Paula-Marie's pleaded case”.
On the hearing of the appeal, the following exchange occurred:
“MEE: This is ground 9 of the notice of appeal. There was no amendment. It was always within the pleadings is the short point. And it was always within the way the case was put right from the outset.
BELL CJ: So where in the pleadings is it alleged that the representations should be interpreted as being to preserve the property and the business for Paula-Marie to inherit on death?
MEE: Your Honour, I say that is inherent in the way the case was put. While all of those particular words weren’t used, that was entirely consistent with the relief sought and the way that the pleading was put.”
This answer really made the primary judge’s point. As Mr George pointed out in argument, the relief sought in the Amended Statement of Claim was the immediate transfer of the claimed equitable property to Paula-Marie. This is inconsistent with what was sought to be contended, in the alternative, by Ms Mee on behalf of Paula-Marie. I agree with her Honour’s assessment as to the scope of the pleaded case and that the alternative formulation was not open. In any event, it was not only not supported by the pleading; it was not supported by the evidence.
Ground 5 relates to the fourth alleged promise and the fact that Paul gave Paula-Marie a copy of his will in or about November 2021. It attacked the finding of the primary judge at PJ [179] that the evidence of this alleged promise “is consistent only with Paula-Marie having been told that she would inherit Paul’s estate, including his share in the Eastlakes property if he still owned it, when he died” (emphasis added).
The relevant evidence was set out by the primary judge at PJ [86]-[89] of her reasons. These were in the following terms:
“Paula-Marie gave evidence that Paul told her in October 2021 after he had been to see a solicitor together with Therese that, if he died, the house would automatically go to Therese even though they were divorced, and that he wanted his share to go to Paula-Marie if he died. Paul told Paula-Marie that he was going to have to see his solicitor about this because he did not want Therese to have ‘full control’.
In about November 2021, Paul gave Paula-Marie a copy of his will dated 23 August 2021, in which he bequeathed the whole of his estate to her. The will did not specifically refer to the Eastlakes property.
According to Therese’s evidence, Paul severed their joint tenancy in respect of the Eastlakes property in about September 2022 without telling her that he was going to do so. They now hold the title [to] the property as tenants in common in equal shares.
According to Paula-Marie’s evidence, Paul told her that ‘he had “fixed up” the ownership so it would be the same as what is in his Will and there would be no question that he would give everything that he had to me after he died’.”
Even accepting, as Paula-Marie contended, that these interactions occurred in the context of discussions about ensuring Paul’s interest in the family home went to Paula-Marie, that does not change the nature of the act of giving Paula-Marie a copy of Paul’s will which remained merely a statement that, at that time, Paul had “bequeathed the whole of his estate to her”. There is no evidence that Paul promised never to revoke his will or that he would preserve his estate, or even merely the family business and his share of the family home, for Paula-Marie to inherit. This ground must be rejected.
Ground 6 relates to the primary judge’s finding at PJ [182] which is set out at [32] above to the effect that it was inherently probable that the basis of Paul and Therese’s decision not to sell the Property at the time of their separation in 1995 was that they had agreed the Property would be sold or Therese would buy out Paul’s interest if he was in need of funds when he retired. This finding is challenged on the basis that there was no evidence that Paul had mentioned it to Paula-Marie regarding her inheritance.
It is important to note that her Honour’s finding entailed an acceptance of Paul’s evidence. Her Honour’s finding that the agreement was inherently probable is entirely understandable when it is appreciated that the agreement was made many years before Paul would retire and at a time when he did not know what his financial position would be many years hence. It was a contingent agreement that would be performed if he was in need of funds when he retired. This contingency also explains why he may not have mentioned it to Paula-Marie, as does the fact that his intention was evidently to leave his estate, whatever it was, to Paula-Marie when he died.
Further, it was open to her Honour to infer that Paul had a good reason for not mentioning the agreement in his conversations with Paula-Marie. Given that Paul “expected or hoped that Paula-Marie would cause the business to pay his expenses after he retired”, just as he had caused it to fund the mortgage on the family home where she lived, it was reasonable for her Honour to infer that Paul did not mention the agreement to Paula-Marie simply because he did not believe it was likely that he would actually have to rely on the agreement and sell the home.
This ground should be dismissed.
Ground 7 involves Paula-Marie’s challenge to the primary judge’s reliance upon the four “objective facts” outlined at [23] above as being “strikingly inconsistent” with her principal case.
It was relevant and appropriate for the primary judge to test Paula-Marie’s case by reference to objective facts for a number of reasons.
First, the original alleged representations were said to have been made many years before the proceedings. As both Watson and teach, it is sound fact-finding technique to test the probability of the representations having been made as alleged by reference to objective matters. It was not submitted on appeal that the primary judge should not have adopted this course: rather, what was submitted was that the facts relied upon by the primary judge were capable of other explanations which were not inconsistent with the alleged representations having been made. While that may or may not have been correct, it was open to the primary judge to form the assessment which her Honour did as part of her overall exercise in fact-finding. The inferences her Honour drew from the four objective matters identified were not “glaringly improbable” or “contrary to compelling inferences”: at [29], quoting (1985) 59 ALJR 842 at 844; [1985] HCA 61 and (1986) 7 NSWLR 1 at 10. Moreover, to the extent that Paula-Marie sought to explain away some of these matters, the primary judge rejected that attempt: see [24] above.
For the foregoing reasons, the appeal should be dismissed with costs.
MITCHELMORE JA: I agree with the order proposed by Bell CJ. In relation to ground 8, his Honour has referred to the observations of Leeming JA in Kronenberg v Macaulay [2025] NSWCA 195 at [151]-[160], with which I agreed, regarding what the plurality said in Kramer v Stone (2024) 281 CLR 484; [2024] HCA 48 (“Kramer”) at [36]-[37]. Leeming JA did not need to decide the issue in that case, and nor need it be decided in the present case, the factual substratum not having been established for reasons the Chief Justice has addressed in other grounds of appeal. That said, I certainly agree with the Chief Justice that the primary judge cannot be criticised for employing the language endorsed in Kramer at [37], for the reasons his Honour has given. I otherwise agree with his Honour’s reasons for dismissing the appeal.
ADAMSON JA: I agree with Bell CJ.
Penya
Penya
[2003] HCA 22
(1985) 59 ALJR 842
(1986) 7 NSWLR 1
(1989) 168 CLR 385
(2003) 214 CLR 118
(2024) 281 CLR 484
(2019) 266 CLR 129
(1983) 152 CLR 406
(2021) 106 NSWLR 227
(1995) 49 NSWLR 315
Appeal dismissed with costs. The Court did not disturb the primary judge’s dismissal of Paula-Marie’s claims for a constructive trust over the family home and an accounting remedy concerning the business sale proceeds.
The family business was sold for $220,516.46 in September 2018 in circumstances where, on Paul’s evidence and, to a certain extent, Therese’s evidence, Paula-Marie did not wish to take it over.
The contract for the sale of the Business was signed by Therese and Paula-Marie separately agreed to a restraint of trade clause. Therese gave evidence that she signed the sale contract because “Paula had agreed to it” and because Paul promised to pay Therese some money that she says he owed to her: PJ [73]. Therese gave evidence that she was unhappy when Paul told her that he would be paying Paula-Marie $20,000 out of the sale proceeds because “it appeared to me that Paula wasn’t getting much from the sale of the Matra business, but she had accepted it and I understood that she would still eventually get the property”. Therese asked Paula-Marie, “Are you OK with this?”. Paula-Marie replied: “I trust [my] Dad to do what he says*.**”*: PJ [73].
Therese and Paul did not hold the Property on constructive trust for Paula-Marie; and
“the doctrine of proprietary estoppel [did not] operate to require Paul to account to Paula-Marie for the proceeds of sale of the rent roll of the … [B]usiness.”
The first finding meant that the first element of Kramer at [36]-[41] was not satisfied. Her Honour noted the length of time since the alleged representations, referred to the well-known passage in Watson v Foxman (1995) 49 NSWLR 315 at 319 (Watson) and concluded, in familiar language at PJ [167], that she did not feel an “actual persuasion” that the representation alleged was made. Her Honour pointed to an internal inconsistency on Paula-Marie’s account between the promise to leave everything to her in her parents’ wills and the promise to leave their two principal assets, namely the family home and the family business to her during their lifetimes: see PJ [169]-[170].
The claimed representations in relation to the family home were also inconsistent with what her Honour considered to be Paul’s inherently probable evidence that “he had agreed with Therese not to sell the … [P]roperty at the time of their separation, provided that the property would be sold or Therese would buy out his interest in the property if Paul was in need of funds when he retired”: PJ [182] (emphasis added). In this context, it should be remembered that Paul and Therese had separated in 1995 and Paul had moved out of the family home but continued to pay the mortgage.
While her Honour accepted Paula-Marie’s evidence that Paul did say during a conversation in March 1996 that she would “get the business” when Paul retired, her Honour did not “regard this as a clear and unequivocal promise that Paula-Marie would be given ownership of the business on Paul’s retirement, as opposed to being given the opportunity to step up at that time into the role of principal licensee in charge of the business that she would later inherit”: PJ [174].
The primary judge also rejected Paula-Marie’s evidence that “Paul and Therese made a promise or representation to her at any time that was capable of meaning, and that she reasonably interpreted as meaning, that she would be given the … [P]roperty and ownership of the [B]usiness when Paul retired”: PJ [184]. Her Honour considered that this evidence was “strikingly inconsistent” with four “objective facts” detailed at PJ [184]-[188]. In short form, these facts were:
“Paula-Marie did not seek legal advice about asserting the claim that she now makes to the business or its sale proceeds at any time during the drawn-out process of completing the sale of the rent roll from September 2018 to December 2020”;
“Paula-Marie did not ask Paul and Therese to transfer the title to the Eastlakes property into her name when Paul retired or at any time thereafter before she commenced the trust proceedings.” At PJ [79], the primary judge had held that “[t]here is no evidence that Paula-Marie asked Paul or Therese to transfer the legal title to the property to her when Paul retired in September 2018, or at any time thereafter prior to the commencement of the trust proceedings”;
“Paula-Marie’s initial response to Paul commencing the s 66G proceedings was to apply for a loan to buy out his interest in the Eastlakes property”; and
“Paula-Marie commenced the trust proceedings only after that loan application was unsuccessful and Paul told her that she would need to sue him if she wanted to have the Eastlakes property for herself.”
In relation to the first of these four matters, the primary judge made adverse credit findings in relation to Paula-Marie’s attempt to explain away this conduct on the basis that Paul had forced her to agree to or acquiesce in the sale of the business: PJ [185]. Therese’s signing of the contract for the sale of the business was an act inconsistent with a promise she and Paul had made to give their daughter the family business in their lifetimes or on his retirement. Further, Paula-Marie’s acquiescence in the sale of the family business and acceptance of a restraint of trade clause was also an act inconsistent with her reliance on any promise that she would be given the family business in her parents’ lifetimes or on her father’s retirement. That acquiescence or agreement was supported by Therese’s evidence set out at [8] above.
Consistent with the finding referred to at [21] above, the primary judge also rejected Therese’s evidence that she and Paul had intended and discussed giving the family business and the family home to Paula-Marie when Paul retired rather than by way of inheritance: PJ [175].
Her Honour also made a number of other significant factual findings (at PJ [193]) which should be identified at an early stage of these reasons and which entailed a finding that the third and fourth elements of Kramer were not satisfied:
Paula-Marie’s “evidence that she worked at [the family business] without being paid a wage in reliance on the alleged promises” was rejected;
Paula-Marie’s “evidence that she was doing the work of three or four people in managing a rent roll of only about 30 properties lack[ed] credibility”;
“Paula-Marie, Andrea and Therese grossly exaggerated the extent of Paula-Marie’s work in the small business that made no profits”; and
on the balance of probabilities, “Paula-Marie continued working at [the family business] because it was a relatively easy existence for her given the very modest size of the rent roll which she did not grow in more than 20 years of working there, and her ability to arrange her working hours in a way that suited her life, in circumstances where she and Andrea were accumulating investment properties with financial assistance from Paul and Therese while they and their children lived rent-free at the [family home] and Therese subsidised their other living expenses leaving them free to spend Andrea’s income and the income from their investment properties as they saw fit.”
In Kronenberg v Macaulay [2025] NSWCA 195 at [158] (Kronenberg), Leeming JA (with whom Mitchelmore and Free JJA expressed their agreement) identified no less than nine reasons as to why there are arguably “some difficulties in accepting that if the case be one of proprietary estoppel by encouragement from a promise, the promise must be clear and unequivocal”. That decision was not relied upon in terms by Paula-Marie although she did submit in reply that, although Kramer did refer to the need for a “clear and unequivocal promise”, that decision did not affect “the existing jurisprudence on the issue”. There is much to be said for Leeming JA’s observations in Kronenberg although his Honour did not ultimately need to pursue the point in that case (see at [160]) and the same may be said in the present case because of Paula-Marie’s failure on other grounds. For my own part, however, it does appear that the plurality in Kramer has determined that a “clear and unequivocal promise” is required to found a proprietary estoppel or at least such an estoppel based, as in the present case, upon representations with the consequence that that decision must be followed in this Court.
Paula-Marie relied upon Trentelman v The Owners – Strata Plan No 76700 (2021) 106 NSWLR 227; [2021] NSWCA 242 at [120] where it was said:
The third ground of appeal was as follows:
For these reasons, I would reject ground 7.
Grounds 8 and 9 have already been dealt with.
Ground 10, relating to reliance, and ground 11, relating to detriment, do not strictly arise for consideration in light of the rejection of grounds 1-9. As to reliance, the primary judge made a strong finding at PJ [193] which is summarised at [26] above. It is plainly a finding based upon her Honour’s command of a significant body of evidence in the context of informal family arrangements over nearly 30 years. Her Honour’s finding that there was effectively a broad quid pro quo for Paula-Marie working without wages was well open to her especially when one takes into account that she and her family were provided with substantial financial and in kind support by both of her parents over a continued period of time in a manner that allowed Paula-Marie and her husband to generate a very strong financial position through their property investments while not having to meet their own accommodation expenses.
These matters also bore on the question of detriment upon which Paula-Marie bore the onus of proof to show that she would have been in a stronger position had she pursued and secured an alternative source of work. The primary judge gave extensive reasons for her finding as to the absence of any demonstrated detriment at PJ [194]. Those reasons are cogent and were not the subject of close criticism. In particular, it was not sought to establish, other than by speculation, that the alternative course that Paula-Marie might have pursued, had she not relied on the representations as she claimed them to be, would have left her in a superior financial position to that which she was in.
Further, the findings of the primary judge still remain that Paula-Marie would have been unlikely to pursue work at another business, would have earned at best a modest wage and superannuation there, and would not have been able to afford to buy a home together with Andrea on such modest earnings. It was also speculative whether she would have secured the level of financial and other assistance from her parents had she not worked in the family business. Paula-Marie also presented no evidence to the effect that the value of any home bought together with Andrea, combined with any savings remaining after the purchase, would have exceeded the value of the investment properties she in fact acquired with the support of Paul and Therese during her working career. Ground 11 must therefore also fail.
Ground 12 and ground 14 were both contingent on the success of the other grounds of appeal. As that contingency has not been engaged, these grounds must also be dismissed. This also obviates the need to deal with the Notice of Contention filed on Paul’s behalf.