HOBART, 21 March 1997 (hearing), 27 June 1997 (decision)

2 Judgment appealed from varied by substituting "$15,000" for "$34,250".

I have had the great advantage of reading the reasons for judgment prepared by my learned brother Zeeman. I agree with all that his Honour has said with the exception only of that which is relevant to ground 2.2 of the appeal.

Clearly enough, the relief to be granted to the respondent should not extend beyond compensating her for the detriment which she has sustained but, in my opinion, that does not mean that compensation should be assessed as though this were a quantum meruit claim by an unpaid employee seeking recompense for services rendered. The respondent may well have established a cause of action based on a quantum meruit had she chosen to do so without basing her claim upon the recent modern developments in the law of promissory estoppel (see Stinchcombe v Thomas [1957] VicRp 66; [1957] Argus LR 1027) but, as Zeeman J observes, the Court, when granting relief, should not be constrained by the fact that the parties agreed the value of the respondent's services rendered to the deceased at $6.57 per hour.

Counsel for the respondent submitted that his client had subordinated her own life to that of her father and that her attentive and affectionate service, often no doubt at considerable inconvenience to herself, put her assistance on a higher plane than that of a domestic servant. I accept this submission. That judges may disagree quite significantly as to the factors to be included in an assessment, and thus, the amount of compensation required to achieve the "minimum equity" to a claimant in a case of estoppel based upon unconscionable conduct, is evidenced by the views expressed by Mason CJ and Brennan J (as he then was) on the one hand, and Deane and Dawson JJ on the other in Commonwealth v Verwayen (1990) 170 CLR 394. It has been generally acknowledged that in some cases a proper result will only be achieved by compelling the party acting inequitably to make good the broken promise or representation. It seems to me that this acknowledgement involves acceptance of the propositions (a) that in individual cases there may be differing views as to the method by which a just outcome is to be achieved; and (b) that in cases where an award of compensation is considered appropriate such sum is not necessarily assessed by reference to some predetermined or mathematical yardstick. In The Commonwealth v Verwayen (supra) Dawson J said at 454:

"How exactly the estoppel will operate to take account of that equity is another question. The result of an estoppel at common law was, viewed as a separate and distinct doctrine from equitable estoppel, to preclude the party estopped from denying the assumption upon which the other party acted to his detriment. It followed that the party who acted to his detriment was, in effect, given the benefit of the assumption. It was all or nothing. By contrast, the view is expressed by Mason CJ and Wilson J and by Brennan J in Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR, at pp 404 - 405, 423 respectively, that an estoppel in equity may not entitle the party raising it to the full benefit of the assumption upon which he relied. The equity is said 'not to compel the party bound to fulfil the assumption or expectation; it is to avoid the detriment which, if the assumption or expectation goes unfulfilled, will be suffered by the party who has been induced to act or to abstain from acting thereon' (supra) at p 423, per Brennan J. To avoid the detriment may, however, require that the party estopped make good the assumption: see Crabb v Arun District Council [1976] Ch 179, at pp 190, 192, 199; Ramsden v Dyson (1866) LR 1 HL 129, at p 170 per Lord Kingsdown; Jones (AE) v Jones (FW) [1977] 1 WLR 438, at p 443; [1977] 2 All ER 231, at p 236; Riches v Hogben [1985] 2 Qd R 292, at p 302. But, depending upon the circumstances of the case, the relief required may be considerably less."

Although achieved by differing routes, the practical result actually achieved in Verwayen, Crabb v Arun District Council [1976] Ch 179 and _Re Basham (decease_d) [1987] 1 All ER 405 was to oblige the defaulting party to make good the promise or, perhaps more accurately, the induced assumption. In Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7; (1988) 164 CLR 387, the High Court dismissed the appeal, thereby affirming the orders made at first instance by Kearney J in which he declared there was a valid and enforceable agreement which Waltons was bound to perform, but in respect of which he awarded damages to be assessed in lieu of specific performance. In each case therefore the relief provided was practically equivalent to that which the repudiated promise would have produced if it had been a broken contractual obligation.

In the case of an agreement as to the disposition of an estate or interest in land the court must be careful not to subvert the clear terms of the Conveyancing and Law of Property Act 1884, s36 by compelling the defaulting party to honour an unwritten contractual obligation (see Horton v Jones (1935 - [1935] HCA 7; 1936) 53 CLR 475, cf Deane J in Waltons Stores (supra) at 446), but I am not persuaded that Slicer J overstepped the bounds of proper recompense to the respondent when he made the order which he did in the present case. I adopted a somewhat similar approach in Blazely v Whiley [1995] TASSC 26; (1995) 5 Tas R 254 at 277 et seq and, despite the submission of Mr Turner to the contrary, I am by no means persuaded that that decision was erroneous.

This is not a case where a mere commercial relationship has given rise to an unfulfilled promise or expectation. The respondent fully performed all the obligations which she had undertaken to her father. His non-fulfilment of his undertaking to her must have been a confusing and distressing experience for her, compounded no doubt by the necessity for her to pursue to judgment the proceedings which she had instituted to establish her equitable entitlement. Much of her evidence during the trial, although appearing vague and imprecise, also seems to reflect a continuing love for and loyalty to her late father. In my opinion the solution proposed by Slicer J was a fair and just outcome, notwithstanding that, in part, that assessment proceeded on an erroneous basis as to when the relevant services commenced.

The appellant seeks to have set aside a judgment in favour of the respondent for $34,250 or, alternatively, seeks to have the judgment sum reduced to a lower figure on an assessment by this Court.

The appellant is the administrator of Percy Henry Williams who died intestate on 11 August 1992, when aged about 70 years. The respondent was one of two children of the deceased. She was born on 18 April 1947. Her parents divorced and her mother remarried in 1955, following which she and her sister were adopted by her step-father. She had no contact with the deceased between 1955 and 1971 when he called on her. Thereafter they saw a lot of each other until his death. The respondent's case, at first instance, was that she is beneficially entitled to the deceased's house and land at 47 Gregson Street, East Risdon, and she sought a declaration that the property is held by the appellant upon trust for her. The learned trial judge rejected that claim and no appeal has been brought in that regard. However the learned judge found for the respondent on an alternative basis, that of promissory estoppel. She was awarded $34,250 by way of equitable compensation and it is from the judgment in her favour for that sum that this appeal has been brought.

The substantial part of the ratio decidendi for the judgment can be found in the concluding passage of his Honour's reasons:

"The plaintiff relies on the principles encompassed by the term 'proprietary estoppel' in that she is protected against detriment flowing from a change in her father's disposition of the property which was contrary to her expectation or assumption (Legione v Hatley [1983] HCA 11; (1983) 152 CLR 406; Walton Stores (Interstate) Ltd v Maher and Anor [1988] HCA 7; (1988) 164 CLR 387; and The Commonwealth of Australia v Verwayen (1990) 170 CLR 394). There is no doubt that the deceased promised that his daughter would benefit by the inheritance of the house and land upon his death. There is no doubt that she had an expectation of benefit. I accept that she performed services for her father, in part, as a consequence of his promise and her expectation and further that the deceased was cognisant of those circumstances. The conclusion that the plaintiff performed such services only in part because of expectation is not a reflection on her but represents an acknowledgment that she visited her father irrespective of any expectation. Much evidence was directed to the question of the amount of services provided and the tension evident between different members of the family arose because of differing perceptions of the amount of that assistance. The evidence establishes that the plaintiff acted to a real detriment and that such was neither trivial or in the nature of an unfulfilled expectation (Higgins v Winfield and Anor [1987] VicRp 59; [1987] VR 689; Green and Ors v Green [1989] 17 NSWLR 343). It is not necessary to quantify the number of hours and perform calculations since 1979 since I am satisfied that the services provided were substantial and of long standing. But a degree of proportionality is required to determine the amount of the interest created by promissory estoppel. As Brennan J said in The Commonwealth of Australia v Verwayen (supra) at 429:

'... The remedy is to effect what Scarman LJ called "the minimum equity to do justice" in Crabb v Arun District Council [1976] Ch 179 at p 198: ...'

Whilst I accept that the plaintiff's expectation had been raised by the deceased and that she had subordinated her own interests to the needs of her father in reliance of the belief that she would inherit (Re Basham (deceased) [1987] 1 All ER 405), the detriment is not sufficient to justify a full proprietary interest in the property (Morris v Morris [1982] 1 NSWLR 61; Kintominas v Secretary, Department of Social Security [1991] FCA 342; (1991) 103 ALR 82). The plaintiff seeks by way of an alternative remedy, a sum of money as equitable compensation, whilst counsel for the defendant conceded that an order could be expressed in percentage terms. I prefer the latter course. The interest of the plaintiff as determined by detriment is considerable. In my view it is equivalent to one half of the value of the property situate at 47 Gregson Street, either by way of an equitable charge (Re Basham (deceased) (supra)) or as an amount equivalent to equitable compensation."

Upon publishing his reasons the learned judge adjourned and on the resumption the parties agreed that the value of the property was $68,500. Judgment for half that amount was then ordered in the respondent's favour.

From the above passage in the reasons it is reasonable to infer that the learned judge assessed the equitable compensation upon the basis of services provided by the respondent to the deceased from 1979.

By the first ground of appeal, the appellant claims that the services rendered by the respondent, in consequence of the deceased's promise to her that the property would be hers upon his death, were not sufficient to amount to a detriment entitling her to a remedy by way of equitable estoppel. The question of what the learned judge found those services were, or what the evidence established them to have been, also arises when considering the other two grounds of appeal. The third ground complains that the learned judge failed to give adequate reasons for arriving at the judgment sum of $34,250 as the appropriate quantum of compensation, and the second ground complains that a sum equivalent to half the value of the property was unreasonable, manifestly excessive and substantially more than was necessary to do justice between the parties. It should be emphasised that a question was not what services rendered by the respondent to the deceased, but what services were so rendered by her in consequence of the deceased's promise to her that the property would be hers upon his death.

To succeed on the basis of promissory estoppel, the respondent had to establish:

1 that she expected or assumed that a particular legal relationship would exist between her and the deceased, that being that, as promised by him, he would leave his property to her in his will;

2 that the deceased induced or encouraged her to adopt the expectation or assumption;

3 that the respondent acted in reliance on the expectation or assumption;

4 that the deceased knew or intended her to do so;

5 that the respondent's actions in reliance on the expectation or assumption will cause her detriment if the expectation or assumption is not fulfilled;

6 that the deceased failed to act to avoid that detriment either by fulfilling the expectation or assumption by leaving the property to her in his will or otherwise.

See Waltons Stores (Interstate) Ltd v Maher (1987 - [1988] HCA 7; 1988) 164 CLR 387 per Brennan J at 428 - 429.

It was accepted by counsel that it was also necessary for the respondent to establish that the detriment she suffered as a result was "material" or "real" and not merely trivial or a detriment which amounted to no more than an unfulfilled expectation. Indeed, none of the legal propositions stated by the learned judge in his reasons were attacked by the grounds of appeal.

Concerning whether the learned judge accepted the respondent's evidence of the services she provided for the deceased and her reasons for providing them, and her evidence of the promises or statements made by the deceased to her about the property becoming hers when he died, the following passages in the reasons for judgment are relevant. His Honour said:

"In 1979 the deceased caused a house to be built on the property but did not occupy it on a permanent basis until his retirement in 1986. I accept that the plaintiff visited him regularly during this period and performed general house-keeping tasks for him on a regular basis. Reservations which I have concerning the number of hours actually spent in the performance of those tasks do not affect the outcome of these proceedings."

In that passage the learned judge did not explain what his reservations were concerning the number of hours actually spent on housekeeping tasks in the period 1979 - 1986, nor did he explain why his reservations concerning the number of those hours did not affect the outcome of the case although, as can be seen from the concluding passage of the reasons, his Honour said he did not consider it necessary to quantify the number of hours and perform calculations because the services were substantial and long standing. However, his Honour made a specific finding as to the number of hours spent by the respondent on housekeeping tasks for the deceased from 1986, when he said:

"In 1986 the deceased lived permanently at the premises and the plaintiff continued to visit him on a regular basis and continued to perform regular household tasks. I accept that those tasks occupied approximately six hours per week with the remainder of the time of visits being spent in ordinary social contact."

No finding was expressed concerning the length of the period from 1986 during which six hours per week was spent on those tasks. His Honour may have been referring to the period from 1986 - 1988, but equally may have been referring to a longer period than that. His Honour continued:

"In 1988 the plaintiff, who had been conducting a small business, commenced employment as a home carer for the Kennerley Children's Home, a position which required her to live within the residential units. She reassured the deceased that, despite her position, she would be able to continue with her assistance. I accept that she continued to provide services for her father on a regular basis until the time of his death. She did so in part because of affection for her father who suffered chronic bronchitis and in part because of an expectation that her services would be eventually rewarded."

That is the only passage in the reasons for judgment in which the learned judge stated he found, with regard to a particular period of time, that the respondent provided services for the deceased because of an expectation that her services would eventually be rewarded by him. That finding related only to the period from 1988.

The learned judge then considered whether the deceased had held the property on trust for the respondent. In the course of doing so he found that the deceased had intended to leave his realty to the respondent and his money to other family members, and had expressed to the respondent his intention to leave his home to her. His Honour said:

"The plaintiff relies on a number of statements made to herself and others commencing in 1979. There is no evidence to the contrary and, although I regard some of the evidence given by the plaintiff as exaggerated, I accept her as an honest witness."

There is probably a connection between the statement that some of the respondent's evidence was exaggerated and the earlier reservations expressed by his Honour concerning the number of hours actually spent by the respondent on housekeeping tasks for the deceased during the period 1979 - 1986. It seems however that the learned judge accepted "without qualification" the respondent's evidence concerning statements made by the deceased about the house becoming hers, one day. His Honour said:

"The evidence of the plaintiff was that the deceased stated on various occasions between 1979 and 1992 that the house would, one day, be hers. Her evidence was that a number of statements were made which evidenced the creation of a trust. Accepting her evidence without qualification those statements were: 1 At the time of fitting out the house in 1979 the deceased asked his daughter to choose the carpets and drapes stating that he wished her to do so 'because when I die the house is yours'. 2 On a number of occasions between 1979 and 1986 the deceased stated that the house would be left to his daughter on his death for helping him do the work. 3 On a number of occasions he said to other members of the family that the house would be left to the plaintiff. 4 On an occasion when the plaintiff was cleaning the walls of the house the deceased said, 'You'd better make a good job of that because one day this will be yours'. 5 At the time when the plaintiff accepted employment at the Kennerley Children's Home the deceased enquired about her ability to continue performing household services and added, '... if you do look after me and do the house for me when I die the house is yours'. 6 In 1991 the deceased requested the plaintiff to choose garden shrubs because 'When I die the house is yours'."

I have referred to all relevant findings of fact to be found in the reasons for judgment. I turn to consider some of the respondent's evidence.

Concerning statements made to her by the deceased, the respondent said that at the end of 1979, when the house was being built, he asked her to pick out the curtains and carpets, giving as his reason for asking that when he died the house would be hers. Between then and 1986 she heard him say to "Nan" that "everything" was going to her (the respondent), and she assumed that "everything" meant the house. She said that on a number of occasions between 1979 and 1986 he said to her that the house would be left to her on his death for helping him do the housework, but she confessed to being unable to recall a specific occasion when he said that. In cross-examination she said she agreed she had a general recollection but not a clear recollection of the occasion or occasions when he said that between 1979 and 1988. She did recall an occasion when she was washing the walls and he said that she had better do a good job because one day the house would be hers, to which she replied "it had better be", but she could not recall whether that occurred before or after 1988. She did not relate that incident as being one when the deceased said that the house would be hers in return for her services.

In October 1988 the respondent obtained live-in employment as a cottage mother at Kennerley Children's Home commencing on 23 November 1988. Her evidence was that she told the deceased, who became a bit agitated and asked if that meant she would not be able to look after him and do his housework for him. She said no, she would arrange the time, and he responded "that's good" and added: "If you do look after me and do the housework for me when I die the house is yours." She replied: "Thank you".

I refer next to the respondent's evidence of her reliance on the deceased's statements by providing him with services. Concerning the period after she commenced to live and work at Kennerley Children's Home in November 1988, she said that she did cleaning and cooking for him for approximately eight hours each week. In her examination-in-chief she was then asked:

"Q Are you able to say why you were doing this cleaning and cooking and looking after your father? ... Well I loved my father - of course I did ... but also I did do things beyond what I wouldn't (sic) normally do for my Dad had he not promised me the house because - I mean I did go Tuesdays, Thursdays and Saturdays but sometimes it was a bit of a drag. And - was in cleaning windows and things like that I done, because he did promise me and it was just a promise we made together and that's why I assumed that there was a will."

That evidence related to the work she did for the deceased after what has been referred to as the 1988 promise or the 1988 agreement had been made. In cross-examination she explained further that she did work for her father because she cared for him, but she did "over and above" because of his promise. She said that lots of the things she did for him were done because she loved him, but not "wholly and solely". She agreed that most of the things she had done for him before 1988 would have been done by her regardless of any statement by him that the house would be hers, but not all of them.

As related by her the only occasion on which she indicated to the deceased that she was doing work for him because she was expecting to gain the house, was the one previously referred to when she was washing the walls, which she conceded may have been after 1988.

Her cross-examination concluded with the appellant's counsel asking her about the work she did for the deceased between 1979 and his death. It was put to her that she would have done that work whether or not he had said he would leave her the house. She said she would have done some of that work because she loved him but she would not have washed walls or washed windows. She agreed that she would have done everything else.

Her counsel referred to the question generally in re-examination which concluded with the following:

"Q Would you have done the cleaning and the cooking and the other things that you did to the same level that you did if your father hadn't promised you the house? ... No, I wouldn't have done. I would have - it's hard to explain fairly and things like that but, no, I wouldn't have done because my father promised me that house. I deserved the house for the work I'd done. And my aunts and all never disputed that until such time as they found out that my nan was beneficiary to the house.

Q Is it possible for you to say now looking back specifically what you would and wouldn't have done and what level you would have done things at if you hadn't been promised the house? ... Well I wouldn't have gone over three days a week which I was doing - I know I was doing it in the first place but I would have cut that back. I can't answer that honestly, I just - no, but I put more into it when the (sic) dad said the house was mine. Do you understand what I - and that doesn't mean I'm a money grabber, I just felt good that dad cared enough for me. I know it was work but if you'd looked at what I had in my childhood for dad to do that for me and me to do that for a promise to him as far as I'm concerned I earned that house with my dad's promise and my work."

Concerning the amount of the services she rendered for her father, the respondent said that from early 1980, when he moved into the house, until February 1987, the deceased only lived there from Friday to Sunday each week. She visited him there almost every Saturday and while there she changed his bed and did dusting and cleaning work for him - cleaning of windows, cupboards, carpets and refrigerators - whatever he wanted doing. She worked in this way for approximately four hours a week, although in cross-examination accepted that it may have been three or three and a half hours. In February 1987 he commenced to live all the time at his house and thereafter she went there on Tuesdays, Thursdays and Saturdays. On Tuesdays she would "go right through the house", taking about three hours. On Thursdays she did "bits and pieces", took his washing home, did the washing and ironing there and returned it to him on Saturday. She also prepared some meals for him. In all she estimated that she spent eight hours each week providing those services for him from February 1987. She estimated that she continued with the same amount of services after 1988. However, by Easter 1991 she was suffering from a ganglion and between then and the death of the deceased on 11 August 1992 she was only able to provide about three hours of care each week. It included cooking and cleaning, but not washing.

The 1979 statement, found by the learned judge to have been made by the deceased to the respondent, that when he died the house would be hers, was a simple one and was not alone a sufficient basis for a claim based on promissory estoppel. The learned trial judge however found, accepting the respondent's evidence about it "without qualification", that thereafter, on a number of occasions between 1979 and 1986 the deceased said to her that he would leave the house to her for helping him do the work, which work she was doing regularly. I do not consider that the court should disregard that finding. It was open on the evidence and it was a material one. The respondent of course carried the onus of establishing the factual basis of her case, but simply because she could not precisely identify the particular occasions between 1979 and 1986 when the deceased made such statements, does not mean that she should not be permitted to rely on them. It is not surprising that ten to fifteen years later she can not identify the occasions with precision.

The learned trial judge seems to have proceeded upon the basis that she was entitled to compensation for her services since 1979 and I think with respect that was erroneous, for it assumed too much in her favour. It is reasonable to conclude, on the respondent's evidence, which was accepted in this regard by his Honour, that on a number of occasions spread over the period from 1979-1986 the deceased made statements to his daughter which induced and encouraged her to believe that, in return for work she was doing for him, the property would become hers when he died. It may reasonably be inferred that the deceased intended by such statements that she be so induced and encouraged. Bearing in mind the onus borne by the respondent, justice would be served by determining that by say 1982, or thereabouts, that state of affairs had been reached. A finding of that kind is I think reasonably open on the evidence but a finding with respect to a date as early as 1979 or 1980, for example, would unfairly favour the respondent, having regard to the lack of precision in her evidence.

The learned judge concluded that the material detriment suffered by the respondent was not sufficient to justify a full proprietary interest in the property being given over to her. With respect his Honour was clearly correct. The doctrine of equitable estoppel permits the court to do what is required, but no more, to prevent a person who has relied upon an assumption as to a present, past or future state of affairs, which assumption the party estopped has induced him or her to hold, from suffering detriment in reliance upon the assumption as a result of the denial of its correctness. "A central element of that doctrine is that there must be a proportionality between the remedy and the detriment which is its purpose to avoid." Commonwealth v Verwayen (1990) 170 CLR 394 at 413 per Mason CJ. The remedy ought do no more than necessary to avoid the relevant detriment, and a court therefore should determine what is "the minimum equity to do justice to the plaintiff". Crabb v Arun District Council [1976] 1 Ch 179 per Scarman LJ at 198; Commonwealth v Verwayen (supra) at 411, 429, 454, 475 - 476 and 487. The remedy is not designed to enforce the promise, although in some circumstances the minimum equity will not be satisfied by anything short of enforcing it. "The relevant detriment in a case of equitable estoppel is detriment occasioned by reliance on a promise, that is, detriment occasioned by acting or abstaining from acting on the faith of a promise that is not fulfilled. The relevant detriment does not consist in a loss attributable merely to non-fulfilment of the promise." Verwayen per Brennan J at 429.

The need for the detriment to have flowed from reliance on the relevant assumption was explained in Osborne Park Co-operative Society Ltd v Wilden Pty Ltd (1989) 2 WAR 77 by Franklyn J at 101-102:

"The plaintiff must also establish that it has acted in reliance on the said assumption and will suffer detriment if that assumption be not adhered to be [sic] the defendant setting up rights against him inconsistent with the assumption: Waltons Stores (Interstate) Ltd v Maher per Brennan J at p 413 and cases there cited and in particular Grunt v Great Boulder Pty Gold Mines Ltd [1937] HCA 58; (1937) 59 CLR 641 at pp 674-675. A detriment to be relevant must be one which would flow from the plaintiff altering its position on the faith of that assumption and that assumption being deserted or abandoned. The assumption giving rise thereto must be a cause of such alteration of position and such alteration must involve a change in the practical or business affairs or condition of the plaintiff which, upon the desertion or abandonment of the assumption, would result, in the natural chain of causation, in actual and temporal damage that is loss of money or moneys worth capable of quantification and assessment. Such detriment is to be judged at the moment when the defendant resiles from assumption: Grundt v Great Boulder Pty Gold Mines Ltd, per Dixon J (at 674 - 675); G Spencer Bower and A R Turner, Estoppel by Misrepresentation (3rd ed, 1977) pp101 - 112. The purpose of the doctrine of estoppel is to avoid or prevent a detriment to the party asserting it.

'The test of detriment ... is whether it appears unjust or inequitable that the representor should now be allowed to resile from his representation, having regard to what the representee has done or refrained from doing in reliance on the respresentation' (Estoppel by Misrepresentation (supra) at p 111)."

I find myself in disagreement with Zeeman J in two particular respects. The first, which I have already mentioned, is that I regard 1982, or thereabouts, as the appropriate time from when it ought to be found in the respondent's favour that she, as the deceased knew or intended her to do, acted in reliance on her expectation or assumption which was induced and encouraged by him, that he would leave the property to her on his death. The second, concerns the nature and extent of the relevant detriment suffered by the respondent for which she is entitled to be compensated in equity. Contrary to the view of Zeeman J, I agree with the submission of counsel for the appellant that the relevant detriment ought not to have been assessed having regard to the work the respondent performed for the deceased which she would have performed for him in any event, unaffected by her expectation or assumption. In my view, what she would have done for her father in any event ought not in equity or good conscience be considered as part of the detriment suffered by her consequent upon the failure of the deceased to leave her the property. The court is only obliged to determine what was the minimum equity to do justice to the respondent, the minimum relief necessary to do justice between her and the deceased. Naturally she is upset about the failure of the deceased to leave her the property as promised. But the doctrine of promissory estoppel provides compensation only for the detriment she suffered as a result of her reliance upon his unfulfilled promise.

I regard the first ground of appeal as not having been made out because I consider that the services provided by the respondent as a result of her reliance on her expectation were "material" and "real" and not merely trivial, to the extent that the relevant detriment suffered by her ought to be similarly regarded. However I conclude that the second ground of appeal has been established. The judgment sum of $34,250 was manifestly excessive compensation having regard to the detriment suffered by her.

I turn to consider the appropriate amount of compensation which ought to have been awarded in my view. The respondent deserves to be compensated with respect to the services she rendered to the deceased, which she would not have rendered to him, if she had not relied on her expectation, over a period of nine or ten years. I do not think she should be held to what she said at the conclusion of her cross-examination, about washing walls and windows. A finding is plainly open on all the evidence that she was encouraged to do, and did do, more than that arising out of her expectation that the deceased would leave his home to her. As a rough rule of thumb I would calculate the compensation upon the basis of, say, about two hours a week for about ten years at $10 per hour, a total of about $10,500. I note that it was agreed by the parties that $6.56 per hour was the value of the services rendered by the respondent for the deceased, that sum being reached as an average rate throughout the years in question. I do not think that it should however be strictly applied to the calculation of the compensation. The detriment was to be judged at the moment when the deceased resiled from his promise, that is to say when he died without leaving the property to the respondent (Grundt v Great Boulder Pty Gold Mines Ltd [1937] HCA 58; (1937) 59 CLR 641 at 674 - 675, Osborne Park Co-operative Society Ltd v Wilden Pty Ltd (1989) 2 WAR 77 at 101) and it would be unfair to value the detriment suffered by the respondent upon the basis of values which applied many years ago. It may well be that there is merit in the third ground of the appeal, but it is unnecessary to determine that question.

For the purpose of ensuring that the compensation which is received by the respondent is closest to the sum I would have awarded, I will agree with Zeeman J that the judgment appealed from should be varied by substituting "$15,000" for "$34,250".

The appellant was the defendant in an action brought by the respondent whereby she claimed that the appellant held the land and premises at 47 Gregson Street, East Risdon ("the property") upon trust for her or, alternatively, that she had an equitable interest therein on the basis of promissory estoppel as explained by the High Court in Legione v Hateley (1982 - [1983] HCA 11; 1983) 152 CLR 406 and Waltons Stores (Interstate) Limited v Maher and Another (1987 - 88) [1988] HCA 7; 164 CLR 387. The learned trial judge concluded that the appellant did not hold the property on trust for the respondent but that she did have an equitable interest therein. In lieu of that interest, he awarded her the sum of $34,250 by way of equitable compensation. That sum was calculated on the basis that it represented one-half of the value of the property as at the date of judgment.

The appellant has appealed. The grounds of appeal are as follows:

"2.1 The learned trial judge, having found:

(a) that the deceased had promised the plaintiff that the property to which the action related would be hers upon his death;

(b) that the plaintiff performed services for the deceased partly in consequence of an expectation that the promise would be kept, and

(c) that the deceased knew that the plaintiff was performing such services partly in consequence of his said promise,

erred in holding that the plaintiff acted to a real detriment, which was not trivial, when the services that she rendered in consequence of the deceased's said promise were not sufficient to amount to a detriment entitling the plaintiff to a remedy by way of equitable estoppel.

2.2 The award to the plaintiff of a sum equivalent to one-half of the value of the said property was unreasonable, manifestly excessive, and substantially more than was necessary to do justice between the parties.

2.3 The learned trial judge failed to give reasons, or adequate reasons, for his conclusion as to the quantum of compensation the plaintiff was to have."

The respondent was born on 18 April 1947, one of two children of the marriage of the deceased and his then wife. Subsequently the respondent's parents were divorced. On 11 February 1955 the respondent's mother remarried. In July 1955 the respondent and her sister were adopted by her mother's new husband. The respondent lost contact with the deceased until they met again early in 1971. Thereafter she maintained a close relationship with him, seeing him on a regular basis, until his death on 11 August 1992.

At some stage the deceased purchased the land at 47 Gregson Street and in 1979 he built a modest house on it. Once the house had been completed it was occupied by the deceased. He lived there at weekends and lived with his mother during the week. He suffered from bronchitis and generally was not in good health. The respondent gave an account of various statements made by her father from time as to his intention that she should have the property upon his death and of the services she provided for him by way of cleaning the house, doing the deceased's washing and performing other domestic tasks. Those statements and the performance of those services were relied upon by the respondent as founding her entitlement to the property or some interest in it.

By reference to that evidence, the learned trial judge found as follows:

"The evidence of the plaintiff was that the deceased stated on various occasions between 1979 and 1992 that the house would, one day, be hers. Her evidence was that a number of statements were made which evidenced the creation of a trust. Accepting her evidence without qualification those statements were:

1 At the time of fitting out the house in 1979 the deceased asked his daughter to choose the carpets and drapes stating that he wished her to do so "because when I die the house is yours".

2 On a number of occasions between 1979 and 1986 the deceased stated that the house would be left to his daughter on his death for helping him do the work.

3 On a number of occasions he said to other members of the family that the house would be left to the plaintiff.

4 On an occasion when the plaintiff was cleaning the walls of the house the deceased said, 'You'd better make a good job of that because one day this will be yours'.

5 At the time when the plaintiff accepted employment at the Kennerley Children's Home the deceased enquired about her ability to continue performing household services and added, '... if you do look after me and do the house for me when I die the house is yours'.

6 In 1991 the deceased requested the plaintiff to choose garden shrubs because 'When I die the house is yours'."

On a literal reading of that passage it might be thought that his Honour was doing no more than stating the respondent's evidence at its highest, without making any finding of fact. However the learned trial judge subsequently referred to that evidence as having been corroborated in general terms and I infer from that, that he accepted the thrust of the respondent's evidence. It is however clear that the learned trial judge did not accept her evidence in its entirety, because he said that some of it was exaggerated. His Honour did not identify the evidence which he considered to amount to having been exaggerated. The absence from the learned trial judge's reasons for judgment of express and detailed findings of fact on the crucial issues of the statements made by the deceased and the services rendered by the respondent creates some difficulties. Those difficulties no doubt have prompted ground 2.3, although the conclusion which I have reached, that the judgment appealed from should not stand because of specific error, makes it unnecessary to consider that ground.

The respondent said that in late 1979, when the construction of the house in Gregson Street had been completed, there was a discussion between her and her father concerning the curtains and carpet. He asked her if she would select them. When she asked why, he responded "because when I die the house is yours". She duly assisted in selecting the curtains and carpet for the house. There was no suggestion that anything was then said about the respondent assisting her father with domestic chores. This statement by the deceased is incapable of giving rise to a cause of action.

The respondent gave evidence that after her father moved into the house she visited him on most Saturdays and that, until about 1986, on each of those occasions she spent approximately four hours in performing domestic tasks, in particular, cleaning. As to any statements which the deceased had made during this period as to his intentions concerning the property, the respondent gave the following evidence:

"And during that period, 1979 to 1986, did your father, on any occasion, represent to you that the house - anything about the house? ... Well on a number of occasions that at that time - I mean when it happened you don't sort of think you've got the right dates and times and that down. Lots of the times my Nan would be there but -

WITNESS: He did tell me that if I done the housework for him - I don't know, I'm all - can I have the question again?

Certainly. Between 1979 and 1986 were there any occasions that Percy Williams made any representations to you about what would happen to the house upon his death? ... Well he'd told me that the house would be left to me on his death for helping him do the work and things like that and I just assumed dad had a will. I mean I know you shouldn't assume things but I did.

Did you ever have any discussion with him about whether he had a will nor not? ... No, I didn't, because I never ever thought about my father dying; you know what I mean, as death.

You say between 1979 and 1986 that he did make representation about the property being - - - ... He did.

- going to you after he died, was that a frequent occurrence or did that happen only once or twice? ... Yeah, it was sort of - well nan would be there and they'd be talking about my grandmother Daphne's will and things like that and my father would say - well at that time he would say 'everything was going to San', and I just - I wasn't a stickybeak and I just assumed that the house was 'everything' and - - -

You use the word 'San', did your father use to refer to you as 'San'? ... He did, most of the time, yes."

The respondent said that she recalled that on one occasion, some time between 1979 and 1986, when she was washing the walls of the house, her father said to her that she had better do a good job because one day the house would be hers. She was unable to recall any other specific occasion between 1979 and 1986 when there was a discussion about the property being left to her. At best the evidence concerning the period between 1979 and 1986 was capable of establishing that at some time during that period, on one or more occasions, the deceased told the respondent that he would leave the property to her "for helping him do the work". I do not understand the respondent to have suggested in evidence that any work which she did during this period was done by her in reliance on any promise that she would be left the property.

The deceased retired from his employment at the end of 1986. At about that time he ceased to live with his mother and resided solely in his own house. The respondent said that thereafter she visited him each Tuesday, Thursday and Saturday. She said that on Tuesdays she cleaned the house for about three hours; on Thursdays she performed a variety of tasks and took home with her, her father's clothing which was to be washed; and that on Saturdays she returned to him his clothing which she had washed and ironed in the meantime. She estimated that from 1986 she spent about eight hours each week in attending to her father's requirements.

In 1988 the respondent disposed of a small business which she had been conducting from her home. She obtained employment as a cottage mother at the Kennerley Children's Home. She said that when she told the deceased that she had obtained this position he became somewhat agitated at the prospect that, as result of the commitments of her employment, the respondent no longer would be able to look after him and do his housework. The respondent said that she told her father that she would continue to do his housework and that he then told her that if she did look after him and did his housework, the house would be hers when he died. The respondent said that thereafter, until 1991, she continued doing housework for her father for about eight hours each week.

As to her motive in assisting her father, the respondent gave the following evidence, in terms which indicated that she had in mind that period when she was doing housework for about eight hours each week:

"Are you able to say whey you were doing this cleaning and cooking and looking after your father? ... Well I loved my father - of course I did. I mean I didn't see this man for all these years and then he come back and I mean my step-father used to abuse me so of course I never had any - and then my ex-husband abused me and then I met my Dad and then I met Barry who were both wonderful men and I loved him, but also I did do things beyond what I wouldn't normally do for my Dad had he not promised me the house because - I mean I did go Tuesdays, Thursdays and Saturdays but sometimes it was a bit of a drag. And - was in cleaning windows and things like that I done, because he did promise me and it was just a promise we made together and that's why I assumed that there was a will."

The respondent and other witnesses gave evidence of subsequent occasions when the question of the property was mentioned. That evidence added little to her case beyond providing confirmation that the deceased had promised that she would have the property when he died. In 1991, the respondent ceased working at Kennerley as a result of her own ill-health. That ill-health also had the result that she no longer was able to assist her father to the extent that she had previously. She said that thereafter she visited him once a week when she brought him a meal, which she shared with him, and did some housework for a few hours. She said that there were other occasions when she provided him with meals. The respondent said that she last visited her father on 6 August 1992 when he told her that when he died everything would go to her. He died a few days later, intestate.

The identification of a promise or promises made by the deceased upon which the respondent relied is of critical importance in this case. There was express evidence of such a promise made in 1988 and the learned trial judge must be taken as having accepted that evidence. As to whether there was any prior promise, the evidence to which I have referred is extremely vague. There is other evidence which indicates that the respondent was not asserting that any such prior promise had been made. In cross-examination the following exchanges occurred:

"Now in October or November of 1988 you concluded the agreement with your father, is that so? You mention an agreement between he and you to the effect that you would look after him and the house would become yours? ... That he said to me: 'What do you --' - when I told him about the house - the Kennerley Childrens Home he did say to me: 'Well what about me? Who will look after me? Can you still do the house cleaning?' and I said: 'I can' and at that time he said: 'Well you look after me, do the housework. When I die the house is yours' and my nan was there at the time.

At that point you considered there to be a promise, an agreement between you and your father? ... Well I promised him I would do the work for him. He promised me the house and I'm a very - yeah, I'm sort of - well I just assumed there was a will anyway, but as far as my father and me making that promise to each other that was --

It is just that in your evidence-in-chief that seemed to be fairly important to you, that agreement concluded in the latter part of 1988, is that so, that it was important to you? ... It was important to me that my dad had promised me the house?

In that --- ... In 1988, well, yes, it was, because as I said before I loved my father, I'd done cleaning for my father, but I feel as if what I done for my dad, yes, I done on the promise of the house and I know that that can sound callous, but it is not. I done work for my dad because I care for him, but also I done over and above.

Yes, I understand that. What I'm really getting at is that up until that agreement you did things for your dad because you loved him? ... No, I did things for dad because he said when he died the house was going to be mine anyway. I mean I done lots of things for my dad because I loved him, that - I can't say that I done it wholly and solely because I loved him. I mean you have a man that leaves you at five, comes back at twenty - no, I can't ---

Isn't it fair to say that until that agreement you did things for your dad because you loved him and after the agreement you did them partly because of the agreement? ... You'd have to know my dad and me to know that - no, I can't honestly say that I done that all for my dad for love, because ---

Well can I ask you this question: if your father had never said to you before 1988 that the house would be yours would you have done the things that you did for him? ... No, not all of them, no. But ---

Would you have done most of them? ... My dad always told me the house would be mine anyway, so if I hadn't have wanted to do it I wouldn't have done it. I must admit that, yes. I agree with that."

Those answers might be thought to convey an earlier promise, vague though they are. However, her counsel took up the matter in re-examination when the following exchanges occurred:

"Would you have done the cleaning and the cooking and the other things that you did to the same level that you did if your father hadn't promised you the house? ... No, I wouldn't have done. I would have - it's hard to explain fairly and things like that but, no, I wouldn't have done because my father promised me that house. I deserved the house for the work I'd done. And my aunts and all never disputed that until such time as they found out that my nan was beneficiary to the house.

Is it possible for you to say now looking back specifically what you would and wouldn't have done and at what level you would have done things at if you hadn't been promised the house? ... Well I wouldn't have gone over three days a week which I was doing - I know I was doing it in the first place but I would have cut that back. I can't answer that honestly, I just - no, but I put more into it when dad said the house was mine. Do you understand what I - and that doesn't mean I'm a money grabber, I just felt good that dad cared enough for me. I know it was work but if you'd looked at what I had in my childhood for dad to do that for me and me to do that for a promise to him as far as I'm concerned I earned that house with my dad's promise and my work." [My emphasis].

That part of the evidence given by the respondent which I have emphasised clearly amounts to an acknowledgment that the respondent was not relying on any promise made by the deceased made prior to the promise made when she told him that she had obtained employment at Kennerley.

Having found against the respondent on the question of whether the appellant held the property on trust for her, the learned trial judge then proceeded to deal with the question whether the respondent had established that she had an equitable interest in the property. That question was dealt with quite briefly in the following passage appearing from his Honour's reasons for judgment:

"The plaintiff relies on the principles encompassed by the term 'proprietary estoppel' in that she is protected against detriment flowing from a change in her father's disposition of the property which was contrary to her expectation or assumption (Legione v Hateley [1983] HCA 11; (1983) 152 CLR 406; Walton Stores (Interstate) Ltd v Maher and Anor [1988] HCA 7; (1988) 164 CLR 387; and The Commonwealth of Australia v Verwayen (1990) 170 CLR 394). There is no doubt that the deceased promised that his daughter would benefit by the inheritance of the house and land upon his death. There is no doubt that she had an expectation of benefit. I accept that she performed services for her father, in part, as a consequence of his promise and her expectation and further that the deceased was cognisant of those circumstances. The conclusion that the plaintiff performed such services only in part because of expectation is not a reflection on her but represents an acknowledgment that she visited her father irrespective of any expectation. Much evidence was directed to the question of the amount of services provided and the tension evident between different members of the family arose because of differing perceptions of the amount of that assistance. The evidence establishes that the plaintiff acted to a real detriment and that such was neither trivial or in the nature of an unfulfilled expectation (Higgins v Winfield and Anor [1987] VicRp 59; [1987] VR 689; Green and Ors v Green [1989] 17 NSWLR 343). It is not necessary to quantify the number of hours and perform calculations since 1979 since I am satisfied that the services provided were substantial and of long standing. But a degree of proportionality is required to determine the amount of the interest created by promissory estoppel. As Brennan J said in The Commonwealth of Australia v Verwayen (supra) at 429:

'... The remedy is to effect what Scarman LJ called 'the minimum equity to do justice' in Crabb v Arun District Council [1976] Ch 179 at p 198: ...'

Whilst I accept that the plaintiff's expectation had been raised by the deceased and that she had subordinated her own interests to the needs of her father in reliance of the belief that she would inherit (Re Basham (deceased) [1987] 1 All ER 405), the detriment is not sufficient to justify a full proprietary interest in the property (Morris v Morris [1982] 1 NSWLR 61; Kintominas v Secretary, Department of Social Security [1991] FCA 342; (1991) 103 ALR 82). The plaintiff seeks by way of an alternative remedy, a sum of money as equitable compensation, whilst counsel for the defendant conceded that an order could be expressed in percentage terms. I prefer the latter course. The interest of the plaintiff as determined by detriment is considerable. In my view it is equivalent to one half of the value of the property situate at 47 Gregson Street, either by way of an equitable charge (Re Basham (deceased) (supra)) or as an amount equivalent to equitable compensation. Given that the form of the remedy sought by the plaintiff is dependent upon the primary determination, liberty will be afforded to both parties to make submissions in relation to the form of the order and any ancillary or consequential orders."

The learned trial judge did not make any findings as to the value of the property, although he had unchallenged opinion evidence from one witness that at the time of trial it was worth about $60,000 to $65,000. Subsequent to the publication of the reasons for judgment, the learned trial judge received submissions as to what his final orders should be. He was told that it was an agreed fact that the property was then valued at $68,500. That value provided the basis of the amount of compensation awarded to the respondent.

The decision of the High Court in Waltons Stores (Interstate) Limited v Maher (supra) establishes that promissory estoppel is a specific manifestation of the more general equitable jurisdiction to preclude the unconscionable departure by one party from an assumption upon which another has acted to his detriment. It authoritatively determines when the jurisdiction arises. Upon the basis of the principles laid down in that case, in order for the respondent to succeed, it was necessary for her to establish the following:

(a) that she assumed that a particular legal relationship would come into existence between her and the deceased, namely an assumption that his promise to leave the property to her by will would be performed;

(b) that the assumption was made, or an assumption previously made was encouraged, by the words or conduct of the deceased;

(c) that the respondent acted in reliance upon the assumption and the deceased either knew of this reliance or intended that the respondent would so act;

(d) that the deceased departed from his promise, causing the respondent to suffer detriment; and

(e) that the detriment was more than trivial.

Those being the relevant elements of the respondent's cause of action, it was necessary for the learned trial judge to make findings of fact relevant to the existence or otherwise of each of those elements. The learned trial judge found that the deceased promised the respondent that she would benefit by the inheritance of the property upon his death, that she performed services for him in part as a consequence of that promise and her expectation, and that the deceased knew of those circumstances. However, his Honour made no sufficient express findings as to all those elements and, in particular, made no express finding as to the time when the deceased first made a promise which was operative for relevant purposes.

It may that it should be inferred that the learned trial judge found that it was made in 1979. That inference may be appropriate because his Honour said that it was unnecessary to quantify the number of hours for which the respondent provided services for the benefit of the deceased since that year, indicating that he considered that all services rendered had been rendered, at least in part, in reliance on a promise. If such a finding of fact is to be inferred, then I do not consider that it was one which was reasonably open to the learned trial judge. There was no evidence that the statement made by the deceased in 1979, in response to the respondent's question why he was asking her to assist in selecting curtains and carpets, that the house would be hers when he died played, any part in the respondent subsequently performing some household tasks.

The vague evidence concerning statements made by the deceased between 1979 and 1986 was incapable of supporting a finding that such a statement had been made at any particular time during that period. In particular, it was incapable of supporting a finding that it had been made as early as 1979 and before any services had been rendered by the respondent. As the learned trial judge made no express finding as to when a relevant promise was made and as the finding which he made by inference is one which was not open on the evidence, it is for this Court to make its own findings. The learned trial judge accepted the evidence of the respondent concerning the promise made in 1988 and this Court should not disturb that finding. It is the earliest relevant promise which can fairly be found on the evidence. I would find that it was a promise made by the deceased which had relevant operative effect. This Court should consider grounds 2.1 and 2.2 on that basis.

Ground 2.1 requires consideration of the nature of the detriment suffered by the respondent. The appellant's submission was to the effect that the detriment ought to be limited to such work which the respondent would not have done had she not been given the expectation that she would inherit the property. I do not accept that as being the appropriate approach. It may well have been that had the deceased not made any promise that the respondent, out of natural love and affection for him, would have done some work. However the respondent was under no obligation to do anything at the time that the promise was made. The promise was that, if she continued to do what she had been doing, she would inherit the property. She continued to do it until ill health prevented it. Thereafter she provided services on a reduced scale but that reduction did not make the promise inoperative. The fact that the respondent might well have performed some of her services even if no promise been made is of no relevance.

The services which the respondent rendered were not insignificant. For some three years she worked for eight hours each week and thereafter, until the death of the deceased, she worked for a few hours and provided some meals in addition. In no sense can the provision of the totality of those services be described as a trivial detriment. The provision of the services required a substantial commitment by the respondent to attending to her father's welfare. Ground 2.1 fails.

It is necessary that the relief granted should not extend beyond compensating the respondent for the detriment suffered (see Commonwealth v Verwayen (1990) 170 CLR 394, per Mason CJ at 411 - 412, Brennan J at 428 - 429, and Dawson J at 454). Ground 2.2 asserts that the sum awarded by the learned trial judge went beyond that authorised. The conclusions which I have expressed lead to the result that the learned trial judge assessed compensation on an erroneous basis, namely that services provided since 1979, rather than since 1988, should be compensated for. This ground is to be considered on the basis of what is proper compensation for the services rendered by the respondent from the making of the promise in October 1988 until the death of the deceased.

At the trial it was an agreed fact that the services rendered by the respondent from 1979 until the death of the deceased should be valued at $6.57 per hour. Although the hourly rate was an agreed fact, it is implicit that that fact was agreed on the basis of it being an average over the period. As compensation is to be assessed from 1988 only, I do not think that the Court should be constrained by that agreement from awarding other than proper compensation. The Court is required to do the minimum equity required to achieve justice (Crabb v Arun District Council [1976] Ch 179 at 198). That minimum equity requires something more than the agreed value of the services rendered and must take into account that fact that the respondent was not actually paid for her services at the time that those services were rendered. On the evidence, the relevant services rendered between October 1988 and August 1992 were rendered over somewhat fewer than 1,500 hours. I consider that the sum of $15,000 would represent minimum but fair compensation.

Accordingly, I would allow the appeal and vary the judgment appealed from by substituting "$15,000" for "$34,250".