//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2026] NSWCA 160
respondent. Application for leave to appeal dismissed. Applicant to pay the respondents' costs: [46].
The Court of Appeal refused Christina permission to appeal the refusal to file her latest proposed pleading. Her senior counsel had clearly accepted at the earlier hearing that almost all the alleged statements by her father were contextual, not promises capable of supporting the estoppel claim. The Court held that she should be bound by those concessions and, in any event, agreed that only two alleged promises could potentially support the claim, one of them only if reformulated. This left much of the pleaded reliance case without a foundation. The respondents were awarded their costs.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
2,405 words · generated 05/10/2026
The Court of Appeal considered whether Maria-Christina Perez de la Sala should receive leave to appeal an interlocutory decision refusing her permission to file a proposed second further amended statement of claim, called the 2FASOC in the judgment. The proposed pleading advanced a proprietary estoppel claim based on statements and promises she alleged her late father, Robert Perez de la Sala, known as Bobby, had made about her future share in family assets.
1 cited instrument linked from this judgment.
Bobby's 2019 will and 2020 codicil made no provision for Christina. His estate was valued at approximately A$504 million. The appeal concerned only the proposed proprietary estoppel pleading. The Court expressly noted that the primary judge's orders left untouched Christina's separate family provision claim under the Succession Act 2006 (NSW), in which she sought a lump sum of A$20 million: [1], [3]. The Court was not deciding that family provision claim or the ultimate distribution of the estate.
Christina alleged that statements made over several decades indicated that, if she followed family directions and worked to preserve or grow the family business, she would eventually receive a share of it. The alleged statements included early comments in the 1990s, statements around 2003, representations made around litigation in Singapore in 2011 and 2012, statements during evidence in that litigation, and an alleged promise in January 2017: [13]-[16].
The proposed pleading was already the fourth attempt to plead the equitable claim. The primary judge had previously struck out the proprietary estoppel claim while giving Christina liberty to replead it: [5]. On 4 May 2026, she sought leave to file the 2FASOC. The primary judge refused that application, concluding that the pleading could not be made viable simply by removing its untenable parts: [6], [33].
A central feature of the Court of Appeal hearing was what Christina's senior counsel had said before the primary judge. In substance, counsel accepted that most of the alleged representations were contextual and not themselves promises capable of grounding an estoppel. The two potentially promissory statements were the litigation promise and the 2017 promise, with the latter requiring reformulation: [18]-[28], [31]. The Court of Appeal dismissed the application for leave to appeal and ordered Christina to pay the respondents' costs: [45]-[46].
The Court treated the concessions made at first instance as the threshold question. If Christina remained bound by them, the proposed appeal could not succeed on the basis that the primary judge had wrongly limited the alleged promises. Her counsel had described the early statements as contextual, accepted the same characterisation of the 2003 representations, and agreed that the litigation promise and 2017 promise were the relevant promises: [19]-[28].
The Court closely examined the exchanges rather than treating counsel's statements as an accidental or ambiguous shorthand. It found that the concessions were made expressly and repeatedly, were clear and unambiguous, were volunteered, and were not subject to a relevant qualification: [37]. They were made in the course of arguing the very application before the primary judge, and narrowed the case being advanced. The Court described their practical effect as “clearing the undergrowth”: [37].
The Court relied on established principles about reopening concessions and admissions. It quoted the considerations identified by Gummow J in Dovuro Pty Ltd v Wilkins: finality of litigation, the desirability of having first-instance judicial findings and reasoning before an appellate court addresses the point, and the need to maintain the efficiency and authority of the judicial process: [39]. It also referred to the principle that deliberate admissions made by a legally advised party are not ordinarily withdrawn absent a relevant reason: [40]. The Court considered it significant that Christina had not explained why the concessions were made: [42].
The Court recognised that a concession does not necessarily bind a court on a pure question of law. It distinguished that general point by finding that these concessions did more than concede a legal proposition. They expressly limited which representations Christina relied on as capable of grounding her own estoppel claim: [37]. The Court applied the principle that a party may be bound by the conduct of counsel, citing Smits v Roach and Warrane: [36].
There was also an independent reason for the result. The Court itself examined the proposed pleading and agreed that, apart from the litigation promise and the 2017 promise if reformulated, the alleged representations lacked the necessary character of a promise: [44]. The judgment identified the relevant estoppel feature through Kramer v Stone: a clear and unequivocal promise made by the party said to be estopped, and relied on by the other party to their detriment: [17]. The remaining allegations largely described what Christina was encouraged to do or what benefits she might receive, rather than what Bobby promised to do: [30]-[31].
That narrowed promissory foundation mattered to the reliance allegations. Many claimed acts of reliance pre-dated the two potentially relevant promises. The primary judge had found that such acts “fell away” when the case was reduced to the litigation promise and the 2017 promise: [32]. The Court of Appeal concluded that restricting the possible promises necessarily deprived the pleaded detrimental-reliance case of much of its foundation: [44].
The judgment did not announce a new general test for proprietary estoppel. It applied the requirement, drawn from Kramer v Stone, that an estoppel claim rest on a clear and unequivocal promise, relied upon to the claimant's detriment: [17]. It also applied existing principles about the circumstances in which a party may be allowed to withdraw a concession made at first instance.
Before this decision, the authorities identified in the judgment already supplied the relevant framework. Dovuro described the public and procedural considerations relevant to reopening an issue conceded at trial: [39]. SLE Worldwide and O'Connor were cited for the proposition that deliberate admissions by a legally advised party are not ordinarily withdrawn without a reason that makes withdrawal just or fair: [40]. Smits and Warrane supported holding a party to counsel's conduct: [36]. Farriss was cited for the prejudice to the administration of justice that may result from permitting a party to traverse a strategic choice made below: [41].
The judgment's contribution is its application of those principles to a pleading application where counsel's concessions narrowed the alleged promises. The Court stressed the quality and context of the concessions: they were repeated, unambiguous and made to define the case then being advanced, not simply to express a view about the law: [37]-[38].
After the decision, the stated outcome in this case was that Christina could not withdraw the concessions for the purpose of the proposed appeal, and the primary judge's refusal of leave to file the 2FASOC remained in place: [43]-[46]. The Court did not hold that all concessions by counsel are irrevocable. It expressly acknowledged that leave to withdraw a concession may be appropriate in some cases, referring to Lafranchi, but found that the interests of justice did not support it on these facts: [43].
The judgment also does not determine whether a differently formulated proprietary estoppel claim could succeed. The primary judge had said that refusal of the particular application would not necessarily close the door to a further application addressing the identified problems, although there would need to be very good reasons to reopen the issue: [33]. The Court of Appeal decided the application before it, not the merits of any future pleading or the separate family provision claim.
At [17], the Court identifies the relevant estoppel requirement from Kramer v Stone: there must be a “clear and unequivocal promise” made by the party said to be estopped, and the promise must be one on which the claimant relied to their detriment. In plain English, a claimant must identify a sufficiently definite promise, rather than relying only on general encouragement, context or an expectation about future benefits.
At [30], the judgment describes a problem with most of the proposed allegations: they were expressed in terms of what Christina could or should do and the benefits she might receive, rather than identifying something Bobby actually promised to do. This distinction mattered because the claim depended on a promise, not simply a course of conduct or a family aspiration.
At [37], the Court says the concessions were “expressly, repeatedly” made and “clear and unambiguous”. In practical terms, the Court considered that the record showed a deliberate narrowing of the case, not an unclear exchange that could fairly be disregarded on appeal.
At [39], the Court quotes the factors for deciding whether to reopen an issue conceded at first instance. The passage explains that the question is not only whether the concession might have been wrong. The court also considers whether reopening it would undermine finality, deprive the appellate court of useful first-instance reasoning, or impair efficient and authoritative court processes.
At [44], the Court says that only the litigation promise or the 2017 promise, if reformulated, had the necessary character of a promise. It adds that this deprived the reliance contentions of much of their pleaded foundation. In plain English, narrowing the promises also narrowed the acts that could plausibly be connected to reliance on those promises.
At [45]-[46], the Court states the result: there was no arguable House v The King error, the application for leave to appeal was dismissed, and the applicant was ordered to pay the respondents' costs.
The decision is relevant to an application to reopen or withdraw a concession made by counsel at an earlier hearing, particularly where the concession was clear, repeated and made to define the case for the application then before the court. The judgment places weight on whether the concession was volunteered, whether it had a relevant qualification, whether there is an explanation for it, and whether the other party or the court process would be prejudiced by allowing the position to be changed: [37], [39]-[42].
It is also relevant where a party seeks leave to appeal an interlocutory pleading decision and the proposed case has been narrowed by concessions at first instance. In this case, the Court considered the procedural context important: the application concerned a fourth attempt to plead the equitable claim, and the primary judge had identified that the reliance and relief allegations had problems as well: [5], [32], [35].
For pleading-based estoppel disputes, the judgment highlights the difference between a statement that provides context and a promise capable of grounding the claim. Allegations about what a claimant should do, what a family member hoped would happen, or what benefit might eventually result do not necessarily identify a promise by the person said to be estopped: [30]-[31], [44]. The judgment does not establish that such statements can never be relevant. It holds that, on this pleading, they did not have the required promissory character.
The decision also shows why the timing of alleged reliance may matter to the way a pleading is assessed. The primary judge found that many alleged acts of reliance pre-dated the only two statements that could potentially be treated as promises: [32]. The Court of Appeal regarded the resulting loss of pleaded foundation as significant: [44]. The judgment does not resolve the evidence or any ultimate factual question about reliance.
The judgment is dated 12 August 2026. The material supplied contains no decisions of later courts applying, distinguishing or interpreting this judgment. It would therefore be unsupported to say how later courts have treated it.
The Court itself relied on earlier authorities. It applied Smits v Roach and Warrane to the principle that a party may be bound by counsel's conduct: [36]. It applied the considerations stated in Dovuro when assessing whether an issue conceded at first instance should be reopened: [37], [39]. It also referred to O'Connor, SLE Worldwide and Farriss in discussing the treatment of admissions and the consequences of reversing a position taken below: [37], [40]-[42].
The Court distinguished the circumstances from the possibility recognised in Lafranchi that leave to withdraw a concession may be appropriate: [43]. It did not say that Lafranchi was wrongly decided or set out a comprehensive list of circumstances in which withdrawal should be permitted. Its conclusion was limited to the facts before it.
The Singapore Court of Appeal decision mentioned in the factual background is not an authority on the procedural issue decided in this appeal. It concerned the family-company assets and a resulting trust, and is described as holding that Ernest had wrongfully transferred money and had to account for and return it: [10]. The NSW Court of Appeal did not revisit or decide the Singapore litigation's substantive findings.
The judgment leaves open what circumstances might justify granting leave to withdraw a concession. It acknowledges that such cases exist by referring to Lafranchi, but does not give a comprehensive test or decide how the balance might differ where a concession was mistaken, qualified, made without authority, or followed by a material change of circumstances: [40], [43]. Those circumstances are not findings about this case.
It also leaves unresolved whether a future reformulated pleading could state a viable proprietary estoppel claim. The Court held that the 2017 promise might be capable of grounding an estoppel if reformulated, and that the litigation promise was sufficiently promissory: [31]. But the Court did not determine the ultimate elements of any claim based on those statements, the evidence of reliance, the question of detriment, or the appropriate relief.
The judgment does not decide whether Christina is entitled to provision under the Succession Act. That family provision claim remained on foot and was not the subject of this appeal: [1]. Nor did the Court decide the ultimate beneficial ownership of the relevant family assets or whether any payments to siblings should be treated as notional estate. Those matters appeared in the proposed pleading and its requested relief, but the Court's decision was procedural.
Finally, the Court did not determine the underlying facts about what Bobby said, what Christina understood, or whether she acted to her detriment. The appeal concerned whether leave should be granted in light of the proposed pleading, the concessions, and the primary judge's procedural decision. Its conclusions should be read within those limits.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have a qualified Australian lawyer check it.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Perez de la Sala v Perez de la Sala [2026] NSWCA 160
Hearing dates: 4 August 2026
Date of orders: 12 August 2026
Decision date: 12 August 2026
Before: Bell CJ; Payne JA; Stern JA
Decision: (1) Application for leave to appeal is dismissed.
(2) Applicant to pay the respondents’ costs.
Catchwords: APPEALS — leave to appeal — interlocutory decisions — leave to appeal refused
CIVIL PROCEDURE — withdrawal of concession — whether leave should be granted to withdraw the concessions made by the applicant’s senior counsel before the primary judge — whether in the interests of justice to grant leave to withdraw the concession
CIVIL PROCEDURE — pleadings — amendment — whether primary judge erred in refusing leave to file a second further amended statement of claim — where pleadings failed to allege the elements the applicant must prove
Legislation Cited: Succession Act 2006 (NSW), s 80(3)
Cases Cited: Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317; [2003] HCA 51
Farriss v Axford [2023] NSWCA 255; (2023) 382 FLR 375
Garrard (t/as Arthur Andersen & Co) v Email Furniture Pty Ltd (1993) 32 NSWLR 662
Holcombe v Coulton (1988) 17 NSWLR 71
House v The King (1936) 55 CLR 499; [1936] HCA 40
Kramer v Stone (2024) 281 CLR 484; [2024] HCA 48
Lafranchi v Transport Accident Commission (2006) 14 VR 359; [2006] VSCA 81
O’Connor v O’Connor [2022] NSWCA 97
Perez de la Sala v Compañia de Navegación Palomar, SA [2018] SGCA 16
Perez de la Sala v Perez de la Sala (No 4) [2026] NSWSC 163
Perez de la Sala v Perez de la Sala (No 5) [2026] NSWSC 556
PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48
Resolution Life Australasia Limited v AMP Limited; Munich Reinsurance Company of Australasia Limited v AMP Limited [2025] NSWCA 21; (2025) 173 ACSR 289
SLE Worldwide Australia Pty Ltd v Wyatt Gallagher Bassett Pty Ltd [2005] NSWSC 816
Smits v Roach (2006) 227 CLR 423; [2006] HCA 3
Warrane - Design Construct Fit-Out Pty Ltd v Woonona-Bulli RSL Memorial Club Ltd [2025] NSWCA 223
Category: Principal judgment
Parties: Maria-Christina Perez de la Sala (Applicant)
Felicite Terrill Perez de la Sala (First Respondent)
James Morgan Copinger-Symes (Second Respondent)
Maria-Teresa Perez de la Sala (Third Respondent)
Edward Robert Perez de la Sala (Fourth Respondent)
Maria-Isabel Harry (Fifth Respondent)
Representation: Counsel:
S Chapple SC / S K Hill (Applicant)
D Studdy SC / M Taylor (Respondents)
Solicitors:
L Rundle & Co Solicitors (Applicant)
HWL Ebsworth Lawyers (First Respondent)
Mills Oakley Lawyers (Second to Fifth Respondents)
File Number(s): 2026/134707
Publication restriction: Nil
[This headnote is not to be read as part of the judgment]
The applicant sought leave to appeal from interlocutory orders of Parker J refusing leave to file a proposed second further amended statement of claim (2FASOC): Perez de la Sala v Perez de la Sala (No 5) [2026] NSWSC 556. The only claim pleaded in the 2FASOC was a proprietary estoppel claim based upon representations. The proceedings relate to the will and codicil of the applicant’s late father, Robert Perez de la Sala (Bobby) (together, the will) and assets and funds left in the will to the applicant’s mother. Bobby made no provision in the will for the applicant.
In oral submissions before the primary judge, senior counsel then representing the applicant made a number of concessions that only two representations pleaded in the 2FASOC, described as the litigation promise and the 2017 promise, could ground an estoppel. In light of this, and in any event, the primary judge found that only these two promises could ground the claim advanced in the 2FASOC. The primary judge held that it was not possible to salvage a viable claim from the 2FASOC by omitting the “untenable” parts of it. In these circumstances, his Honour refused the applicant’s application for leave to file the 2FASOC.
The Court (Bell CJ, Payne JA and Stern JA) held, refusing leave to appeal:
(1) The concessions made by the applicant’s senior counsel before the primary judge, that only the litigation promise and the 2017 promise were capable of grounding an estoppel, were made expressly, repeatedly and were clear and unambiguous. They were volunteered by senior counsel and were not subject to any relevant qualification. The primary judge was entitled to rely upon them: at [17]-[29].
(2) Leave should not be granted for the applicant to withdraw the concessions. The applicant should be bound by the conduct of her senior counsel at first instance. The concessions were made for the purpose of the application before the primary judge and necessarily confined the case advanced by the applicant. Further, the concessions went well beyond concessions as to law (which would not bind the Court): at [35]-[43].
Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317; [2003] HCA 51; Smits v Roach (2006) 227 CLR 423; [2006] HCA 36; O’Connor v O’Connor [2022] NSWCA 97; Warrane - Design Construct Fit-Out Pty Ltd v Woonona-Bulli RSL Memorial Club Ltd [2025] NSWCA 223, applied.
SLE Worldwide Australia Pty Ltd v Wyatt Gallagher Bassett Pty Ltd [2005] NSWSC 816; Farriss v Axford [2023] NSWCA 255; (2023) 382 FLR 375, cited.
Lafranchi v Transport Accident Commission (2006) 14 VR 359; [2006] VSCA 81, distinguished.
(3) In any event, other than the litigation promise or the 2017 promise (if reformulated), none of the pleaded representations had the necessary character of being a promise that could ground the claimed estoppel: at [44].
(4) The primary judge did not err in finding that only a very small subset of the pleaded representations could found an estoppel. That necessarily deprived the contentions as to detrimental reliance of much of their pleaded foundation: at [44].
THE COURT: The applicant, Maria-Christina Perez de la Sala, seeks leave to appeal against interlocutory orders of Parker J in Perez de la Sala v Perez de la Sala (No 5) [2026] NSWSC 556, made on 19 May 2026 with reasons for decision published on 20 May 2026, refusing Christina leave to file a proposed second further amended statement of claim (2FASOC). The only claim pleaded in the 2FASOC is a proprietary estoppel claim based upon representations. His Honour’s orders leave untouched an ongoing family provision claim under the Succession Act 2006 (NSW) which Christina commenced by summons filed on 5 July 2023, claiming provision by way of a lump sum of A$20 million.
Christina accepts that she bears a heavy burden in seeking leave to appeal against an interlocutory decision on a matter of practice and procedure: PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 at [5], albeit that she contends that the orders effectively determine, with finality, her legal rights such that leave to appeal will more readily be granted, relying upon Garrard (t/as Arthur Andersen & Co) v Email Furniture Pty Ltd (1993) 32 NSWLR 662 at 664-665 and Resolution Life Australasia Limited v AMP Limited; Munich Reinsurance Company of Australasia Limited v AMP Limited [2025] NSWCA 21; (2025) 173 ACSR 289 at [42]. She also accepts that appellate review of the primary judge’s decision is subject to the principles in House v The King (1936) 55 CLR 499; [1936] HCA 40.
The proceedings relate to the will dated 19 July 2019 and a codicil dated 24 January 2020 (together, the will) of Christina’s late father, Robert Perez de la Sala (Bobby) who died on 7 July 2022, and assets and funds left in the will to Christina’s mother, Felicite Terrill Perez de la Sala (the first respondent). Bobby’s estate was valued at approximately A$504,053,569.00. He made no provision in the will for Christina. Terrill is the executor of the will. The second respondent is Christina’s ex-husband, James Morgan Copinger-Symes. The third to fifth respondents are Christina’s siblings, Maria-Teresa Perez de la Sala, Edward Perez de la Sala, and Maria-Isabel Harry, respectively. The involvement of the second to fifth respondents is consequent upon the fact that, in the 2FASOC, Christina alleges that each of the siblings were given substantial amounts of money by Bobby (shortly before his death) and/or by Terrill (shortly after Bobby’s death). Christina alleges that these sums were paid out of assets or funds which she contends were impressed with a constructive trust in her favour.
In the early 1920s, Bobby’s father, Robert Perez de la Sala Snr (Robert Snr) worked his way up within a shipping company in Hong Kong, John Manners & Co Limited (JMC), eventually becoming the majority shareholder and chair of its board. Robert Snr’s eldest son, Ernest Perez de la Sala, followed him into the family business. In the 1950s, Robert Snr wrote a letter to his children (the Tokyo letter), expressing his wish that JMC and another company, Northern Enterprises Limited (NEL) remain in the family. At some time (which is not specified in the 2FASOC) there was a corporate restructure and the assets of JMC and NEL were transferred to six nominee companies. For convenience, unless it is necessary to distinguish between them, I will refer to JMC, NEL and the nominee companies, and their business, simply as the family companies or the family business. Robert Snr died in 1967, and Ernest took his place as the controller of his business empire.
In 1994 Christina worked for Ernest in the family companies for one year before moving to London and pursuing other employment. By 2011, Edward, Christina and James were living in Singapore and working with Ernest in the family business. Christina was a director of four of the nominee companies.
In around 2011, Ernest transferred assets of the nominee companies with an estimated value of between US$600 million and US$800 million to two entities associated solely with himself. In 2012, the nominee companies, authorised by Christina, James and Edward as directors, commenced proceedings against Ernest in the High Court of Singapore in respect of those transactions (the Singapore litigation). Those proceedings were ultimately resolved by a decision of the Singapore Court of Appeal (SGCA) in Perez de la Sala v Compañia de Navegación Palomar*,* SA [2018] SGCA 16, in which it was held that Ernest wrongfully and in breach of fiduciary duty transferred US$600 million from the nominee companies’ bank accounts to his personal account. Ernest was ordered to account for and return the money to the nominee companies. The SGCA held, however, that the companies took the assets subject to a resulting trust in favour of NEL and JMC, without making any finding as to the distribution of beneficial interests in the nominee companies and their assets.
In March 2019, the nominee companies commenced further proceedings in Singapore for a determination of the precise beneficial ownership of the resulting trust. By then, Christina was estranged from her family. In September 2020 she filed an application to be joined as an interested party to this litigation but her application was not heard because the proceedings were discontinued after a settlement deed was entered into on 11 September 2020 ( ). As a result of the Settlement Deed the family’s assets were largely divided between Ernest and Bobby. Christina alleged in the 2FASOC that, as at the date of his death, Bobby held significant assets derived from the Settlement Deed, including some A$502,656,341.
In the 2FASOC Christina identified a number of representations by Bobby that she alleged were to the effect that “if she followed Ernest’s direction and worked to preserve and grow the said family business and assets she would one day receive a share of them”. These comprised:
oral representations between 1990 and 1995, described as the early representations, including that she should move to the United Kingdom to undertake a master’s degree, that she should quit her job and take up a position in the family companies, and that if she listened to Ernest and followed his direction then “the next generation of descendants would benefit in the same way Bobby and his siblings had”. Christina said that, in reliance upon the early representations, she moved to London to undertake a master’s degree, undertook an internship arranged by Ernest at Lloyd’s Bank in Madrid and took up various other roles, including a role with Ernest in the family business for one year in 1994;
representations made to Christina in about 2003, either orally or by showing her the Tokyo letter, described as the 2003 representations, that Christina should relocate to Singapore to assist Ernest in managing the family business and assets, that she should keep in mind Robert Snr’s scheme for the management of the family assets for future generations as set out in the Tokyo letter, that she should accept Ernest’s request to relocate to manage the family legacy and that there would always be a place for Christina to work within the family business. Christina contended that in making the 2003 representations Bobby promised her that she would receive an equal share of his entitlement in the family business and assets, that the Tokyo letter would be the basis upon which she would move to Singapore to work in the family business and that she would be remunerated from the profits of the family business which she understood to be ten percent of the profits from assets under management. She contended she relied upon the 2003 representations in relocating her family to Singapore, taking up directorships of four companies within the family business and working under Ernest’s direction; and
11 representations made to Christina in 2011 and 2012 (labelled in the 2FASOC as (A)-(K)), following Ernest’s transfer of assets from the nominee companies to entities associated with himself and prior to commencement of the Singapore litigation, described as the litigation representations. These included:
(a) if Christina and her siblings won the proceedings against Ernest they would be recovering the share of the family business and assets to which they were entitled and the deceased would honour his own father and mother’s intentions and give the assets to his children in equal shares. This is one of two representations the primary judge found were capable of supporting an estoppel (referred to by the primary judge as the l****itigation p****romise and labelled in the 2FASOC as (J)); and (b) if Christina and her siblings succeeded in the litigation then she would be one of the custodians who would manage those assets outside of Australia and be entitled to receive a share of profits from the investment of monies (representation K).
Christina alleged that she relied upon the early representations, the 2003 representations and the litigation representations in authorising, together with Edward and Teresa, the commencement of the Singapore litigation as majority directors of the nominee companies.
In the 2FASOC Christina also contended that she relied upon:
representations of which Christina was aware, made by Bobby in about 2014 during, and to some extent in the course of his evidence in, the Singapore litigation (described as the hearing representations). These were to the effect that Robert Snr had planted a tree, being a trust he had set up for his lifetime and for future generations, that Bobby’s children went to Singapore “to help secure and for the second generation to carry on the Family Trust” and that Edward, Christina and James were the new generation who came to be known as the “Singapore team”, “Ernest’s partners” and “custodians”; and
a promise by Bobby in about January 2017 (described as the 2017 promise), shortly after the reasons were delivered in the Singapore proceedings at first instance, that “I will keep my mother and father’s wish alive. You and your brother and sisters are going to receive an equal share”.
Christina alleged that she relied upon the representations and promise set out above: (i) in the manner set out above; (ii) in forsaking more lucrative employment opportunities in 1994 and 2003; (iii) in personally funding advice in relation to the Singapore litigation in about 2011 and 2012; (iv) in causing that litigation to be funded in her capacity as director and shareholder of a further family entity, Paternoster Partners Ltd; (v) in providing instructions from 2011 until 2020 in the Singapore litigation and in litigation in Hong Kong; (vi) in working on a minimum wage as a director of companies until 2021; (vii) in voting with Teresa and Edward to ensure majority control of the nominee companies in order to conduct the Singapore litigation; and, (viii) in rejecting Ernest’s request to remove Teresa and Edward from the boards of the nominee companies. She alleged this reliance had caused her detriment such that it would be unconscionable for Terrill, as executor of Bobby’s estate, to deny that she held her interest in the monies received by Bobby by reason of the Settlement Deed.
In Christina’s submissions in support of her application for leave to file the 2FASOC, Christina relied upon the statement of principle in Kramer v Stone (2024) 281 CLR 484; [2024] HCA 48 at [37]-[41] (Gageler CJ, Gordon, Edelman and Beech-Jones JJ), including, critically that the first requirement of a claim based upon equitable estoppel is that there be a clear and unequivocal promise made by the party estopped to the party who relies upon the promise. It is this promise that the party must have relied upon to their detriment.
In that context, in oral submissions before the primary judge, senior counsel then representing Christina made five significant concessions as to the character of the representations pleaded in the 2FASOC. These were made in the context of an interchange as to the distinction between a representation that met the requirement in Kramer v Stone of a clear and unequivocal promise, and a representation that was merely “contextual” in the sense that it might be relevant in characterising a separate representation as meeting the requirements set out in Kramer v Stone.
First, as regards the litigation representations (at [13(3)] above), senior counsel was asked by the primary judge whether all the representations except the litigation promise were “contextual” and he replied “I think so, yes”. There was then some discussion about whether representation K was also “the promise”, and he responded “Certainly J” (referring to the litigation promise). Whilst perhaps this concession is equivocal as regards representation K, it is otherwise a clear and unequivocal concession that none of the other litigation representations could themselves ground an estoppel.
Second, as regards the early representations (at [13(1)] above), his submission was that they were “more contextual”. There was then the following exchange:
HIS HONOUR: Right, so they’re just contextual, there’s no promise in them.
[SENIOR COUNSEL]: Well, for the purposes of today
HIS HONOUR: I certainly didn’t read them as containing any promise.
[SENIOR COUNSEL]: No.
HIS HONOUR: No, okay. …
Again, given that “the purposes of today” obviously included the purpose of his Honour determining whether to accede to Christina’s application for leave to file the 2FASOC, this was another clear and unequivocal concession.
Third, there was then some discussion about the promise pleaded to arise from the 2003 representations at [31] of the 2FASOC (at [13(2)] above). As to these, senior counsel first nominated [31(C)] and [31(D)] as promises. His Honour then observed that there was no promise by Bobby to do anything in those sub-paragraphs, which was “the difficulty”. There was then the following exchange:
[SENIOR COUNSEL]: I understand your Honour’s point, but that doesn’t affect, because I’ve got others.
HIS HONOUR: I just want to clear the undergrowth if we can.
[SENIOR COUNSEL]: No, undergrowth are gone, your Honour.
HIS HONOUR: All right. So, I should treat this as contextual as well.
[SENIOR COUNSEL]: I think so, yes.
This was a further clear and unequivocal concession that the representations considered at [19] and [20] above, and those in the 2FASOC at [31], were not relied upon by Christina before the primary judge as capable of grounding an estoppel.
Fourth, after this exchange, his Honour observed that there was the litigation promise and asked “what’s the next promise?”. Senior counsel for Christina responded:
[SENIOR COUNSEL]: Next promise, your Honour, is 2017. I’m sorry, just bear with me. There’s para 38, the January 2017 promise.
HIS HONOUR: Yes, okay.
[SENIOR COUNSEL]: And then the last one’s 39, your Honour. That’s the composite relying on the and the last of 39.
[SENIOR COUNSEL]: What 39 says that in making those representations, looking at them in a composite way … [your Honour] is entitled now to say that when one looks at all of the representations and indeed the promises I’ve taken your Honour to, including the 2017 promise, the Court is entitled to conclude having regard to that contextual matters and earlier promises that the deceased promised the plaintiff that as one of the four children of the deceased and one of the second generation, she would receive an equal share, such part of the family business and family assets to which her father was entitled.
Later, senior counsel for Christina expressly agreed that his Honour should treat [39] of the 2FASOC as effectively a statement that the litigation promise and the 2017 promise had a certain quality in light of what had gone before.
This amounts to a further clear and unambiguous concession that [39] of the 2FASOC was not relied upon as a separate promise capable of grounding an estoppel, and that the only representations pleaded in the 2FASOC capable of doing so were the litigation promise and the 2017 promise.
Finally, there was a subsequent exchange where his Honour asked senior counsel for Christina: “I thought we’d agreed that, for instance, the deceased’s early representations were not promissory” to which senior counsel responded: “Correct”. Again, this is a clear and unequivocal concession.
In light of this analysis, Christina’s submission that the concessions of senior counsel were caveated, were prompted by erroneous analysis of the primary judge or that the primary judge erred in relying upon them, should be rejected. Whilst the primary judge shared his own thinking in the course of these exchanges, senior counsel was in no way pressed to agree with his Honour’s analysis. There was no reservation of position which had any significance for the purposes of the application which his Honour was considering. His Honour was entitled to rely upon these concessions in determining Christina’s application for leave to rely upon the 2FASOC.
identified two alleged statements by [Bobby] which had been pleaded as promises. They accepted that all of the other “representations” were merely contextual.
This is plainly a reference to the concessions identified above, the promises being the litigation promise and the 2017 promise. His Honour found that the litigation promise was sufficiently pleaded to ground an estoppel and that, if reformulated to be pleaded in promissory terms (which, in the 2FASOC it was not), the 2017 promise could also ground an estoppel. His Honour later said that there was only a “small subset of the existing allegations which might support a viable claim” and referred to “all of [the] spurious pleadings of ‘Representations’ and the like” in the 2FASOC. Reading these observations together with his Honour’s analysis summarised at [30] above, it is clear that, whilst his Honour relied upon the concessions, his Honour’s own assessment (consistent with the concessions) was also that only the litigation promise and 2017 promise could properly ground an estoppel (and the latter only if reformulated).
The primary judge then turned to the question of detrimental reliance, observing that many of the acts pleaded as detrimental reliance pre-dated the litigation promise and the 2017 promise and thus “fell away”. His Honour also identified a number of problems with the pleading of acts of detrimental reliance and in the prayers for relief.
His Honour ultimately held that it was not possible to salvage a viable claim from the 2FASOC by omitting the “untenable” parts of it. Rather, what was needed was a reformulation of the estoppel claim, focussing only upon “the small subset of the existing allegations which might support a viable claim”. In these circumstances, his Honour refused Christina’s application for leave to file the 2FASOC. His Honour added:
Refusal will not close the door completely on a further application which deals with the problems identified in this judgment, if that proves possible. The present application is not, and could not really be, “final” in that sense. But it is final in the sense that the Court will now need to proceed towards trial of Christina’s remaining family provision claim. If the door is to be re-opened on proprietary estoppel, there will need to be very good reasons for doing so.
Given our analysis of senior counsel’s concessions, it is clear that the threshold question on this application is whether leave should be granted to Christina to withdraw the concessions made by her senior counsel before the primary judge. As senior counsel for Christina accepted at the hearing of this application, if the concessions are “given their full force [and] effect, they’re fatal” to Christina’s application for leave to appeal. This is plainly right. If his Honour did not err in relying upon senior counsel’s concessions, there could be no possible error in dismissing Christina’s application for leave to file the 2FASOC in circumstances where her allegations in the 2FASOC as to detrimental reliance were predicated upon multiple representations covering broad periods of time. Moreover, as set out at [5] above, this was already Christina’s fourth attempt to plead her equitable claim.
In our view this is a clear case where leave should not be granted for Christina to withdraw the concessions. Christina should be bound by the conduct of her senior counsel at first instance: see eg Smits v Roach (2006) 227 CLR 423; [2006] HCA 36 at [46] (Gleeson CJ, Heydon and Crennan JJ) and the recent application of this principle in Warrane - Design Construct Fit-Out Pty Ltd v Woonona-Bulli RSL Memorial Club Ltd [2025] NSWCA 223 at [12].
The concessions were made expressly, repeatedly and were clear and unambiguous. They were volunteered by senior counsel and were not subject to any relevant qualification. They were made for the purpose of the application before the primary judge and necessarily confined the case advanced by Christina before the primary judge, using the language of one of the concessions, “clearing the undergrowth”. Further, the concessions went well beyond concessions as to law (which would not bind the Court: see eg Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317; [2003] HCA 51 at [89] (Gummow J) adopted with approval by this Court in O’Connor v O’Connor [2022] NSWCA 97 at [67]). The concessions expressly limited the ambit of Christina’s proprietary estoppel claim by limiting the representations she contended could properly ground that claim.
In these circumstances, there was no arguable error, still less a House v The King error, in the primary judge relying upon the concessions in determining the application (albeit that, as we have already explained, we are satisfied that his Honour also independently characterised only the litigation promise and the 2017 promise as capable of grounding an estoppel).
As set out in Dovuro at [90] (Gummow J), in deciding whether to grant leave to allow a party to reopen an issue conceded at first instance:
[e]ven where the issue is one of pure law or of legal construction and its consideration involves no procedural unfairness, a court may nonetheless refuse to allow a party to reopen an issue earlier conceded. The court must weigh the public interest in the finality of litigation; the desirability that appellate courts should normally have judicial findings and reasoning before considering the point; and the need to uphold the efficiency and authority of the judicial process.
Where a party, who is legally advised and does not suffer any disability, deliberately and without mistake, admits liability in whole or in part, and there are no relevant changes of circumstance, prima facie, justice or fairness to both parties does not require that it be allowed to change its mind. That is why admissions made with deliberateness and formality are not ordinarily permitted to be withdrawn.
As this Court emphasised in Farriss v Axford [2023] NSWCA 255; (2023) 382 FLR 375 at [58], there is “prejudice to the administration of justice in permitting [a party] to traverse the strategic decision that they made at first instance”.
It is also of some significance that Christina has not, in her submissions, sought to explain why the concessions were made, a matter identified as relevant in SLE Worldwide at [65] and O’Connor at [80].
Having regard to all of the matters set out above, whilst we recognise that there may be some cases where, as in Lafranchi v Transport Accident Commission (2006) 14 VR 359; [2006] VSCA 81 at [28] (Maxwell P and Neave JA), leave to withdraw a concession should be granted on appeal, in this case we are not satisfied that it is in the interests of justice that Christina be granted leave to withdraw the concessions made by her senior counsel before the primary judge.
In any event, we are satisfied that the concessions were plainly correct. None of the pleaded representations other than the litigation promise or the 2017 promise (if reformulated) had the necessary character of being a promise such as could ground the estoppel Christina claimed. Thus, on our own analysis of the 2FASOC, we are satisfied that the primary judge did not err in his findings that only a very small subset of what was pleaded could found an estoppel. That necessarily deprived the contentions as to detrimental reliance of much of their pleaded foundation.
In these circumstances, leave to appeal should be refused. There is no arguable House v The King error in the primary judge’s decision. Consistent with the principles set out above at [2], and irrespective of whether the principles of appellate restraint apply, Christina’s application for leave to appeal should be dismissed.
Our orders are:
Application for leave to appeal is dismissed.
Applicant to pay the respondents’ costs.
**********
Perez de la Sala
Perez de la Sala
[1936] HCA 40
[2026] NSWSC 556
(2003) 215 CLR 317
(2023) 382 FLR 375
(1993) 32 NSWLR 662
(1988) 17 NSWLR 71
(1936) 55 CLR 499
(2024) 281 CLR 484
(2006) 14 VR 359
(2006) 227 CLR 423
Application for leave to appeal dismissed. Applicant to pay the respondents' costs: [46].
With no disrespect intended, we refer to each of the family members by their first names to avoid confusion.
The 2FASOC comprises Christina’s fourth attempt to plead the proprietary estoppel claim. This claim was initially advanced in a statement of claim filed on 16 October 2023, as one of a number of equitable claims. Christina then agreed to amend this statement of claim after the primary judge expressed concerns about the formulation of the claim during a hearing on 2 October 2025. Accordingly, an amended statement of claim was filed on 28 October 2025. On 24 November 2025, a further amended statement of claim was filed following further comments by the primary judge during a hearing on 10 November 2025. On 26 November 2025 the respondents filed a notice of motion seeking to have Christina’s equitable claims summarily dismissed or struck out. The primary judge summarily dismissed two of the equitable claims and struck out the proprietary estoppel claim but granted Christina liberty to replead that claim: Perez de la Sala v Perez de la Sala (No 4) [2026] NSWSC 163.
On 4 May 2026 Christina filed a notice of motion seeking leave to file the 2FASOC, in which she sought: (i) declaratory relief, (ii) in the alternative, either an order that Terrill pay her A$125,664,098.00 or such other amount as reflects Bobby’s intentions or an account or equitable compensation; (iii) an order that certain payments by Terrill to the other respondents be designated as notional estate of Bobby pursuant to s 80(3) of the Succession Act; (iv) interest; and (v) costs. As already noted, it is the orders of the primary judge dismissing this application which are the subject of this application for leave to appeal.
For the reasons set out below, Christina’s application for leave to appeal should be dismissed with costs.
Christina does not contend in the 2FASOC that Bobby had any role in the family companies or the family business but contends that in January 2017, shortly after reasons at first instance in the Singapore litigation were delivered, he “knew of the finding of the Court that he both directly owned a share of the family assets and/or monies and indirectly through [his mother’s] estate”. By way of context for this contention, in the 2FASOC Christina pleads that in 2011 or 2012 Bobby represented to her that, if they lost the Singapore litigation, she and her siblings “would lose the share of the family assets left for them by Robert Snr and [his wife]” and that he “believed that he had already received his share of the family assets”.