Re Di Giovine; Di Giovine v Bini [2020] VSC 330

2 Antonio died on 5 April 2010, leaving a last will dated 23 July 1999. The will appointed Luciano Bini ('the defendant') as Antonio's executor and divided the estate equally between his three children.

3 At the time of his death, Antonio was the registered proprietor of property at 11 Maggs Street, Doncaster ('the property'). Antonio purchased the property in 1966 and built a house on it. He lived in the property until 1983 when he moved to Templestowe.

4 By writ and statement of claim filed 10 January 2017, the plaintiff alleged that, at the time of Antonio's death, the property was held on trust for him. On 15 February 2017, the defendant filed an appearance in the proceeding but did not file a defence. No further action was taken in the proceeding until 1 June 2018, when the plaintiff filed and served a notice of intention to proceed.

5 Once again, no further action was taken in the proceeding until 15 April 2019. On that date, the plaintiff filed a summons seeking summary judgment against the defendant. The plaintiff sought a declaration that, as from 1998, the property was held by Antonio on trust for the plaintiff absolutely, as well as orders that the defendant transfer title of the property to the plaintiff, and that the defendant's costs of and incidental to this proceeding be paid out of the estate on the standard basis. The plaintiff provided draft orders signed by the defendant's solicitors. In an affidavit sworn 4 April 2019, Sandra and Patrizia consented to the orders sought by the plaintiff.

6 The plaintiff provided written submissions and relied on the following affidavits in support of his application for summary judgment:

(a) an affidavit of the plaintiff sworn 23 January 2019;

(b) an affidavit of Sandra and Patrizia sworn 4 April 2019; and

(c) a supplementary affidavit of the plaintiff sworn 12 April 2019.

7 The Court informed the parties that it was content to consider the application on the papers. After consideration, the proceeding was listed for directions on 5 June 2019 where the Court expressed concerns about the lack of evidence corroborating the plaintiff's claim. As a result, the plaintiff filed the following further material:

(a) a supplementary affidavit of the plaintiff sworn 7 November 2019;

(b) a supplementary affidavit of Sandra sworn 1 October 2019;

(c) a supplementary, corroborating affidavit of Patrizia sworn 1 October 2019; and

(d) an affidavit of Antonino Cavoli sworn 22 October 2019.

8 The defendant did not file a defence in the proceeding, nor any other material. The plaintiff's supplementary affidavit sworn 12 April 2019 deposed to his belief that the defendant has no defence to the claim in this proceeding. The plaintiff's affidavit exhibited copies of two letters from the defendant's solicitors. The first letter is dated 30 January 2019, it states that the defendant has no personal knowledge of the matters deposed to in the plaintiff's affidavit sworn 23 January 2019, and knows of no defence to the claim. The second letter, dated 22 February 2019, states that the defendant would not oppose judgment subject to the plaintiff not seeking his costs against the estate.

9 The plaintiff submitted that his application is made pursuant to Order 23 of the Supreme Court (General Civil Procedure) Rules 2015 ('the Rules'). Order 23 deals with a summary stay or dismissal of claim and striking out a pleading. Rule 23.01 allows the Court to enter summary judgment against a defendant where a defence is 'scandalous, frivolous or vexatious' or is otherwise an abuse of process of the Court. Pursuant to r 23.04(1), evidence on an application under r 23.01 shall be admissible for any party by affidavit.

10 The plaintiff submitted that the application cannot proceed by consent as he seeks final orders for declaratory relief. Pursuant to s 36 of the Supreme Court Act 1986 and r 23.05 of the Rules, the Court may make binding declarations of right, whether or not any consequential relief is claimed. The power to grant declaratory relief is very wide. However, it is a discretionary power to be exercised with extreme care and caution as it declares the legal position of the parties before the Court.[1] Although not an immutable rule,[2] declaratory relief ordinarily requires a Court to be satisfied of the declared issue by evidence, not merely by the consent of the parties.[3] In the present circumstances, where the plaintiff seeks a declaration that property is held on trust, it is appropriate that the Court refrain from making the declaration and consequential orders unless satisfied by evidence of the facts necessary to justify the making of the declaration.

11 By his written submissions, the plaintiff sought that the declaration and consequential orders be made on the basis of:

(a) estoppel;

(b) breach of a promise by Antonio to leave the property to the plaintiff in his will; and /or

(c) uncontentious or unconscionable dealing.

12 The plaintiff submitted that all of the elements necessary to bring about an equitable estoppel, promissory estoppel or estoppel by conduct, in his favour exist in respect of the property and that the Court can make a declaration that Antonio held the property on trust for him.

13 In Commonwealth v Verwayen, Mason CJ described estoppel as 'a label which covers a complex array or rules spanning various categories' and went on to state:

There are the divisions between common law and equitable estoppel, between estoppel by conduct and estoppel by representation, and the distinction between present and future fact. There are titles such as promissory estoppel, proprietary estoppel and estoppel by acquiescence. Yet all of these categories and distinctions are intended to serve the same fundamental purpose, namely 'protection against the detriment which would flow from a party's change of position if the assumption (or expectation) that led to it were deserted'.[4]

14 For present purposes, the principles of estoppel can be succinctly stated as requiring the plaintiff to establish that:

(a) Antonio represented to the plaintiff that the property was or would be his;

(b) the plaintiff acted in reliance on that representation;

(c) the plaintiff acted reasonably in so relying on Antonio's representation;

(d) Antonio knew or intended that the plaintiff would rely on the representation and would thereby act in the manner referred to above; and

(e) that the plaintiff suffered detriment as a consequence of the failure of the deceased to adhere to the representation.[5]

15 The plaintiff claims that Antonio made direct representations to him in 1998 that he should treat the property as his own, that he would transfer the property to him, and that the plaintiff should not purchase another property of his own but that he should live in the property. These representations were said to have been directly confirmed between Antonio and the plaintiff in 2000 and the following years. Subsequently, in about 2007, Antonio made direct statements to the plaintiff that he would make a will leaving the property to him.

16 In his affidavit sworn 23 January 2019, the plaintiff deposed that for many years from his middle teens he had expressed to Antonio that he would eventually like to have the property as his own and that as the years progressed it was understood among the family that the property would eventually be his. The relevant representations that the plaintiff says were made by Antonio are set out in his affidavit as follows:

(a) in 1998, when the plaintiff told his father he was planning to get married and looking for a property of his own, Antonio said words to the effect that he had kept the property as he intended it to be the plaintiff's property and that he could have the property as his matrimonial home and could treat it as his own making any changes to the property he wished;

(b) in 2000, Antonio said that the property should then be transferred to the plaintiff's name, although the plaintiff asked Antonio not to transfer the property at that stage due to marital problems;

(c) in 2001, Antonio again said that the property should be transferred to the plaintiff, but once again the plaintiff asked him not to do so at that stage; and

(d) in 2007, Antonio told the plaintiff that he was going to make a new will leaving the property to him.[6]

17 The plaintiff also deposed that, in 1999, when Antonio said that he would assist Sandra and Patrizia to purchase their own homes, he had told his father to ensure he was fair with his sisters bearing in mind their arrangement in relation to the property. The plaintiff stated that to his knowledge Antonio provided his sisters with $200,000 each and stated that at the time the property was worth a similar amount, with the council capital improved value of the property being $239,000 at the time. In her supplementary affidavit, Sandra stated that Antonio provided her and Patrizia with $200,000 each to assist with paying down their home loans. However, Sandra states that those payments were made in two instalments, the first in 2006 and the second in 2009. Sandra does not depose to any conversations relating to such assistance occurring in 1999.

18 The plaintiff bears the burden of establishing that Antonio made the relevant representations. Aside from the assertions in his affidavit that the representations were made, the plaintiff relies on affidavit evidence from his sisters to the effect that it was an understanding within the family that the property would be the plaintiff's, as well as works the plaintiff says that he undertook on the property in reliance on Antonio's representations.

19 In a case of this kind a plaintiff can usually provide contemporaneous evidence corroborating or referable to the alleged representations. For example, it would be expected that at the time of plaintiff's divorce in 2001 there would be documents recording his asserted interest in the property. However, the plaintiff stated in his affidavit that he refused Antonio's offers to then transfer the property to him in 2000 due to problems in his marriage and again in 2001, following his divorce, due to legal advice that his former wife may have a claim on the property.

20 In his supplementary affidavit sworn 7 November 2019, the plaintiff deposed that following his separation with his former wife, no property proceedings were brought in the Family Court nor was there any negotiated settlement of their matrimonial assets. The plaintiff stated that at the time of his separation he then believed that whether he received the property was a matter entirely for Antonio to decide, although he expected him to honour his promises to give him the property, either during his life time or by his will.

21 In her supplementary affidavit sworn 1 October 2019, Sandra deposed that in mid-1999 her parents told her that they intended to leave the property to the plaintiff. This intention is contrary to the representations said by the plaintiff to have occurred in 2000 and 2001 that it was then Antonio's intention to transfer the property to the plaintiff. It is also contrary to Antonio's will dated 23 July 1999, which did not provide for the property to be left to plaintiff.

22 Sandra also deposed to other occasions in which Antonio told her that the property would go to the plaintiff. However, it does not appear from her affidavit that the plaintiff was present on any of these occasions.

23 For her part, Patrizia merely deposed in her supplementary corroborating affidavit sworn 1 October 2019 that she had read Sandra's supplementary affidavit and, insofar as the matters deposed involve her and were within her knowledge, they were true and correct.

24 The plaintiff submitted that in reliance on Antonio's representations he moved into the property in 1998 and continued to live there. He treated the property as his own by undertaking renovations and improvements to the property in 1998. However, this conduct is not necessarily referable to a representation that Antonio intended the property to be the plaintiff's absolutely. Since 1998, the plaintiff has lived in the property rent-free and, until his death in 2010, Antonio paid the rates on the property. Nor is the plaintiff's assertion that these works were done in reliance on Antonio's alleged representations consistent with his view, at the time of his separation in 2001, that whether he received the property was entirely a matter for Antonio decide.

25 Furthermore, the affidavit evidence fails to establish that it was the plaintiff who paid for the renovations and improvements. The only documentary evidence of the works done in 1998 supplied by the plaintiff was a copy of the plan for the kitchen works and receipts issued by Smith & Smith Pty Ltd for a total of $8,030. While the plans list the client as the plaintiff and the receipts were emailed to him, they are issued merely to 'DIGIOVNE' (sic) and do not list a payment method. The plaintiff has not provided any documentation, such as bank statements or cheques demonstrating that he paid for the renovations. The plaintiff also deposed that Antonio assisted with these works.

26 Other activities that the plaintiff says he undertook in detrimental reliance on Antonio's representations were:

(a) the installation of shutters in 2010, evidenced by a receipt dated 4 October 2010;

(b) window tinting in 2011;

(c) installation of a new door in 2012;

(d) the construction of a large shed in 2012;

(e) laying of a concrete driveway on the property in 2014; and

(f) installation of fencing on the boundary of the property in 2016.

27 In her supplementary affidavit, Sandra deposed that she and Patrizia knew that the plaintiff undertook works on the property between 2010 and 2012, including the construction of a large shed on the property for his own personal use and enjoyment. She also stated that her husband and Patrizia's husband assisted with pouring the concrete slab for the shed. Sandra also deposed that she and Patrizia knew that the plaintiff undertook further works on the property in 2014 and 2016. She stated that they had no personal involvement in those works, but they did have some discussions with the plaintiff about them and they had no concerns or issues with the work.

28 The plaintiff exhibited various receipts, invoices and quotations referable to these works, as well as records of two cash withdrawals from an unidentified Westpac bank account in 2015, which he asserted as being for concreting the driveway. However, no documentary evidence was provided to establish that the plaintiff had personally paid for these works. Further, all of these activities post-date Antonio's death and, particularly in circumstances where he was aware that Antonio's final will left the property to the three children rather than to the plaintiff solely, cannot be seen as directly referable to any representations made by Antonio in 1998, 2000, 2001 or 2007.

29 In relation to the representations said to have been made by Antonio, the plaintiff has not satisfied the threshold element for his claims based on estoppel. Given the lack of corroborating evidence and inconsistencies between matters deposed by the plaintiff and Sandra, the Court cannot be satisfied that Antonio made the alleged representations, nor encouraged the plaintiff to assume that the property was, or would be, his property. Nor can the Court be satisfied that, assuming the alleged representations were made, the plaintiff acted in reliance on those representations to his detriment. The conduct of the plaintiff said to be in reliance on the representations is equivocal and has not been shown to be referable to the alleged representations. In addition, the plaintiff has expressed that it was his own understanding in 2001 that whether the property would be his remained a matter for Antonio.

30 The plaintiff also submitted that since Antonio's death in 2010, the defendant has been aware that the plaintiff was undertaking works at the property and did not raise any concerns or state that the property was not the plaintiff's property. The plaintiff submitted that in doing so the defendant confirmed Antonio's representations. The plaintiff also submitted that the family accepted that the property would be his, and his sisters, being the other beneficiaries under Antonio's will, had agreed that the property should go to him and, accordingly, in 2012 and 2014 two deeds of release were prepared to that effect. However, neither deed was executed as Sandra and Patrizia were unwilling to accede to the defendant's request for an indemnity.

31 The plaintiff deposed that since Antonio's death he has continued to live in the property and, between 2010 and 2016, conducted the further works on the property as set out above. However, the arrangements in regard to the property since Antonio's death have been made with the knowledge and consent of Sandra and Patrizia. On the evidence, any acquiescence to these arrangements by the defendant cannot be seen as confirming any representations made by Antonio during his lifetime. There is no evidence that the defendant has made any representations in relation to the ownership of the property. Indeed, in a letter dated 30 January 2019, the defendant's solicitors stated that the defendant has no personal knowledge of the matters deposed to in the plaintiff's affidavit dated 23 January 2019. Furthermore, the 2012 draft deed of release states that the defendant had been instructed by the beneficiaries not to seek payment of rent from the plaintiff.

32 Sandra and Patrizia appear to be of the belief that the property should be transferred to the plaintiff, however, in the absence of evidence sufficient to satisfy the Court that Antonio made any of the alleged representations and that the plaintiff acted in reliance on those representations to his detriment, the Court cannot make the declaration sought on the basis of equitable estoppel, promissory estoppel or estoppel by conduct.

33 By reference to the decision of the English Court of Appeal in Unglow v Unglow,[7] the plaintiff submitted that an assumption as to a legacy being granted under a will may give rise to an estoppel restraining the operation of the testator's will to the extent that it contradicts the assumption as to the legacy. In Unglow v Unglow the Court of Appeal considered the principles of proprietary estoppel and made the following observations as to their relevance to a promise to leave property under a will:[8]

(1) The overriding concern of equity to prevent unconscionable conduct permeates all the different elements of the doctrine of proprietary estoppel: assurance, reliance, detriment and satisfaction are all intertwined.

(2) The broad inquiry in a case such as this is whether, in all the circumstances, it is unconscionable for a testator to make a will giving specific property to one person, if by his conduct he has previously created the expectation in a different person that he will inherit it.

(3) The expectation may be created by (a) an assurance to the other person by the testator and intended by him to be relied upon that he will leave specific property to him; (b) consequent reliance on the assurance; and (c) real detriment (not necessarily financial) consequent on the reliance.

(4) The nature and quality of the assurance must be established in order to see what expectation it creates and whether it is unconscionable for the testator to repudiate his assurance by leaving the property to someone else.

(5) It is necessary to stand back and look at the claim in the round in order to decide whether the conduct of the testator had given rise to an estoppel and, if so, what is the minimum equity necessary to do justice to the claimant and to avoid an unconscionable or disproportionate result.

(6) The testator's assurance that he will leave specific property to a person by will may thus become irrevocable as a result of the other's detrimental reliance on the assurance, even though the testator's power of testamentary disposition to which the assurance is linked is inherently revocable.

34 In this regard, the plaintiff submitted that from 2007 Antonio told him that he would leave the property to him in his will and that subsequently Antonio instructed his solicitor to prepare a will whereby the property would be left to him, which, although never executed, was in Antonio's possession at the time of his death.

35 In his affidavit dated 23 January 2019, the plaintiff stated that in 2007 Antonio told him that he was going to make a new will leaving the property to him. The plaintiff also stated that Antonio told him that he had had a similar discussion with Sandra and Patrizia, where he told them the reason the property would be left only to the plaintiff in this proposed new will. The plaintiff did not provide any documentary material corroborating his assertion that this or any similar conversation occurred.

36 In her supplementary affidavit, Sandra stated that on two occasions in 2009 Antonio told her that the plaintiff was to have the property, once at the family home in March and the other at Antonio's business at the time Antonio made the second payment to her and Patrizia to assist in paying down their home loans. However, Sandra does not depose of any such conversation occurring in 2007.

37 In his first affidavit, the plaintiff further stated that in 2007 Antonio asked him to collect a will which had been prepared for him by the family solicitor, Mr Cavoli. The plaintiff says that he collected this will from Mr Cavoli's office and that before giving the will to his father he looked at it and saw that it contained a clause leaving the property to him.

38 The plaintiff also stated that sometime later, in 2007 or 2008, Mr Cavoli asked him how Antonio had gone with the will he collected. The plaintiff says that it was at this point that he realised that Mr Cavoli did not know whether Antonio had signed the new will. The plaintiff told Mr Cavoli that he would have to ask Antonio whether he had signed the will. The plaintiff said that at this time his father was emotionally fragile following the death of his wife, and the plaintiff did not want to press him about transferring the property, particularly after Antonio developed cancer a year later. The plaintiff said that he assumed Antonio's promises would be honoured and he would leave him the property in his will as he had told him in 2007.

39 The plaintiff also deposed that in 2010, while he was visiting Antonio in hospital, his father asked him to have a will brought to him. The plaintiff was aware that Sandra had received a will in the mail from Mr Cavoli in April 2010. The plaintiff says that he did as his father requested and collected the will and took it to him. The plaintiff says he also looked at this will before he gave it to his father and saw it contained the same clause leaving the property to him that he had seen in the earlier will. Antonio's physical and mental condition continued to deteriorate and, to the plaintiff's knowledge, Antonio never signed the will, or any will produced by Mr Cavoli.

40 In her affidavit dated 1 October 2019, Sandra deposed that in November 2009, she attended a meeting with her father and Mr Cavoli and, in her presence, Antonio instructed Mr Cavoli that the property was to be left to the plaintiff. She also deposed that in late December 2009, Antonio asked her to contact Mr Cavoli and see whether his will had been prepared. Sandra stated that she spoke to Mr Cavoli telling him that Antonio wanted Mr Cavoli to send the will to him. Sandra deposed that Mr Cavoli told her that he would like Antonio to come to his office and provide further detailed instructions.

41 Sandra stated that, to her recollection, Mr Cavoli sent a will to her father's Templestowe property in late February or early March. She stated that at the beginning of March 2010, when she and the plaintiff were visiting Antonio, Antonio asked for the will to be brought to him. About a week later, the plaintiff collected the will and took it to Antonio but by then Antonio's condition had deteriorated to the extent that he could not execute it. Sandra did not depose to any conversation between Mr Cavoli and herself in March 2010.

42 In his affidavit sworn 22 October 2019, Mr Cavoli stated that he acted for Antonio in relation to his business and personal affairs from 25 July 2000 until Antonio's death. Mr Cavoli states that the first record he has in relation to the preparation of a will for Antonio was a conference with him on 12 May 2008. Mr Cavoli's notes from that meeting record, inter alia, that Antonio instructed him that he wanted the property to be given to the plaintiff. Mr Cavoli stated that this was a constant factor in Antonio's subsequent dealings with him as to what he wanted in his will, although Mr Cavoli does not outline any later conversations about Antonio's desired contents of a new will.

43 Of his subsequent dealings with Antonio regarding a new will, Mr Cavoli's affidavit reveals that on 7 August 2009 Mr Cavoli wrote to Antonio seeking further instructions in order for a new will to be prepared. Subsequently, on 25 August 2009 Antonio sent Mr Cavoli a fax asking him to 'prepare the new will as we discussed last year'. In response, Mr Cavoli sent a letter dated 27 August 2009 stating that until further instructions were received he would be unable to advance the matter further. Mr Cavoli made additional requests for further instructions in relation to the will in letters dated 22 October 2009 and 5 February 2010, however, Antonio did not provide the necessary further instructions.

44 Mr Cavoli stated that after he received a telephone call form Sandra on 31 March 2010 informing him that Antonio only had days to live, he produced a 'simple will' that gave effect to the two main matters Antonio had advised him he had wanted to change - appointing Sandra and Patrizia as executors and leaving the property to the plaintiff. At that time, Mr Cavoli had a discussion with Antonio's treating specialist who advised him that Antonio was not lucid and barely conscious. Mr Cavoli sent the will under cover of a letter dated 1 April 2010 which explained how it could be executed if Antonio were to sufficiently recover. Prior to Antonio's death on 5 April 2010, Mr Cavoli did not hear anything further from Antonio's treating specialist or the family regarding any changes in Antonio's condition or capacity to execute the will he had prepared.

45 Mr Cavoli's evidence was to the effect that the will he sent under cover of a letter dated 1 April 2010 was the only will that he prepared for Antonio. Mr Cavoli also deposed that he has no file notes or recollection of a meeting with Antonio attended by Sandra in November 2009, nor any conversation with her in December 2009.

46 In his supplementary affidavit of 7 November 2019, the plaintiff stated that while he has a clear memory of the events detailed in his affidavit dated 23 January 2019 in relation to picking up a will prepared for Antonio by Mr Cavoli in 2007 and a subsequent conversation with Mr Cavoli in 2007 and 2008, he concedes that after reading Mr Cavoli's affidavit, he must have been mistaken. The plaintiff stated that, in 2007, Mr Cavoli was Antonio's only solicitor and, other than conceding he must have been mistaken, the plaintiff did not provide any explanation for this discrepancy. There was also no explanation for the inconsistencies between the events recounted by Sandra and Mr Cavoli.

47 It can be accepted that in 2008 Antonio informed Mr Cavoli that he intended to make a new will leaving the property to the plaintiff, and that in April 2010 Mr Cavoli produced a will, which was never executed, that provided for the plaintiff to receive the property. However, on the evidence, particularly given the inconsistencies between the evidence of the plaintiff, Sandra and Mr Cavoli, the Court cannot be satisfied that Antonio made any representation to the plaintiff in 2007, or otherwise, that he would leave the property to him in his will. Further, as above, even if the Court were to accept that such a representation was made to the plaintiff by Antonio, the plaintiff has failed to provide sufficient evidence to satisfy the Court that he relied on such a representation to his detriment.

48 Accordingly, the Court is unable to make the declaration sought on the basis of Antonio's alleged promise to leave the property to him in his will.

49 The plaintiff submitted that by virtue of the events said by the plaintiff to have occurred and the nature of his father/son relationship with Antonio, it would be unconscionable for the defendant or Antonio's estate to deny that the plaintiff is entitled to the property.

50 In this regard, the plaintiff's submissions referred to the decision of Austin J in Turner v Windever which set out the following elements associated with unconscionable dealing:

(a) the weaker party must at the time of entering the transaction, suffer from a special disadvantage vis-a-vis the stronger party;

(b) the special disadvantage must seriously affect the weaker party's capacity to judge or protect his or her own interests;

(c) the stronger party must know of the special disadvantage (or know of facts which would raise that possibility in the mind of any reasonable person);

(d) that party must take advantage of the opportunity presented by the disadvantage; and

(e) the taking of advantage must have been unconscientious.[9]

51 The plaintiff submitted that in respect of the first two elements, he was a loving Italian son who did what his father wanted. In respect of the third element, the plaintiff submitted that Antonio knew that the plaintiff was carrying out his father's wishes and spending time and money renovating and improving the property over several years during Antonio's life time and Antonio assisted him with those works. In respect of the fifth element it was submitted that while Antonio took some steps to transfer the property to the plaintiff, ultimately he did not, nor did he make a will devising the property to the plaintiff as he had undertaken to do.

52 The plaintiff's reliance on the principles of unconscionable dealing discussed in Turner v Windever is misplaced. In Turner v Windever Austin J was considering an equitable doctrine that enables a court to refuse its aid or set a transaction aside where unconscionable advantage has been taken of an innocent party.[10] In this proceeding there is no 'transaction' on which the doctrine could operate. In any event, even if the above elements were satisfied they would not themselves enable the Court to grant the relief sought by the plaintiff.

53 Although Sandra, Patrizia and the defendant have consented to the declaration and orders sought by the plaintiff, the Court cannot make the declaration and the consequential orders on the basis of the evidence filed in support of the application.

(a) the plaintiff's application for summary judgment and the proceeding be dismissed; and

(b) in the event the parties are unable to agree on costs, written submissions must be filed by 26 June 2020 to be considered on the papers.

[1] Minogue v Dougherty [2017] VSC 724, [51] (John Dixon J); Rich v Groningen [1997] VSC 35; (1997) 95 A Crim R 272, 278-79 (Gillard J).

[2] See, eg, Director of Consumer Affairs Victoria v Alpha Flight Services Pty Ltd [2014] FCA 1434, [3] (Pagone J).

[3] See Wallersteiner v Moir [1974] 3 All ER 217; Mobileworld Operating Pty Ltd v Telstra Corp Ltd [2006] VSC 164, [80] (Whelan J) citing Bass v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334, 357 [49] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ); Director of Consumer Affairs (Vic) v DW International Trading Pty Ltd [2010] VSC 515, [42] (John Dixon J).

[4] (1990) 170 CLR 394, 409, citing Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387, 404 (Mason CJ and Wilson J) 419 (Brennan J) and Grundt v Great Boulder Pty Gold Mines Ltd [1937] HCA 58; (1937) 59 CLR 641, 674-5.

[5] See, eg, Clementi v Rossi [2019] VSC 725, [298]; McDonald v Dunscombe [2018] VSC 283, [20].

[6] This alleged representation is dealt with in greater detail in the following section.

[7] [2004] EWCA (Civ) 987.

[8] Ibid [9] (Mummery LJ, Jonathan Parker and Waller LJJ agreeing).

[9] [2003] NSWSC 1147, [105].

[10] See, eg, Blomley v Ryan [1956] HCA 81; (1956) 99 CLR 362, 405 (Fullagar J); Commercial Bank of Australia v Amadio (1983) 151 CLR 337, 461 (Mason J).