Public Trustee, As Administrator of the Estate of Percy Henry Williams (Deceased) v Christine Sandra Wadley [1997] TASSC 74;

Public Trustee, As Administrator of the Estate of Percy Henry Williams (Deceased) v Christine Sandra Wadley [1997] TASSC 74; - TASSC 1997 case summary — Zoe

[17]

"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."

[74]

"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."

[79]

"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."

At a glance

Court

Decision date

Before

Source

Judgment (90 paragraphs)

Public Trustee, As Administrator of the Estate of Percy Henry Williams (Deceased) v Christine Sandra Wadley [1997] TASSC 74; (1997) 7 Tas R 35 (27 June 1997)

Parties

Cases Cited (8)