Roma Lopeman v WIN Corporation Pty Ltd

Existence of an enforceable agreement

1. The plaintiff submits I should find, consistent with the principles in GR Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd (1986) 40 NSWLR 631 and Universal Music Australia Pty Ltd v Pavlovic [2015] NSWSC 791, that the parties had reached a binding and enforceable agreement by the time the defendant signed the two letters to Council (erroneously dated 14 May 2019) on about 13 June 2019 with respect to the provision of a Right of Carriageway by the defendant to the plaintiff in return for the payment of the sum of $10,000 plus GST. The plaintiff submits the outward manifestations of the parties' intentions objectively ascertained indicated the parties had reached agreement on about 5 June 2019 (though, compare the terms of the relief sought) as to all the crucial terms but a further, formal agreement (in the form of the Vehicular Access Deed, proffered by the plaintiff on 5 June 2019) was to be executed at a later time. She submits the case falls into the "fourth" category identified by McClelland J in Baulkham Hills Private Hospital Pty Ltd v GR Securities Pty Ltd (1986) 40 NSWLR 622.
2. The plaintiff submits I should reject any contentions to the effect that there was not a binding and enforceable agreement because of (i) the use of the words "in-principal (sic) agreement" in the letters to Council; and/or (ii) the fact that the Vehicular Access Deed was not signed for the following reasons: 1. That the parties had reached agreement in relation to the main matters of their bargain and were content to be immediately bound (as in GR Securities) is evidenced by the unqualified language used in the letters to Council (e.g. "this letter evidences… the agreement reached… pertaining to a registered Right of Carriageway for vehicular access" and "the terms of this agreement are set out in the attached Deed"); 2. The defendant was aware the letters were being sent to Council for the purpose of the plaintiff seeking development consent, which would not be forthcoming in the absence of a binding commitment from the defendant to agree to the Right of Carriageway. In signing the letters, the defendant was representing and promising to Council and the plaintiff that it would agree to and would grant the easement; 3. As is GR Securities, if the words "in-principal (sic)" did not appear in the letters to Council, it would be impossible to contend that this correspondence did not constitute a binding agreement for the granting of the easement; 4. There was no suggestion or intimation that the "in principle" agreement was conditional upon or subject to some further matters being agreed or the Deed being executed; 5. If it was intended that there was to be no binding agreement until the Deed had been signed and exchanged it would have been simple to say so. In signing the letters to Council, the defendant noted its agreement to the terms of the Deed, and by the time the letters were signed, the defendant had been provided with a revised (and apparently final) version of the Deed (which was ready for execution) and revised survey plan (which was to be Sch 2 of the Deed); 6. The parties' subsequent conduct (e.g. the two emails dated 13 and 20 August 2019 from Ms Dimitrievski relating to the arrangements for the execution of the Deed) indicated that a binding agreement had been formed.
3. The plaintiff also points to the fact the defendant did not request any further amendments to the Deed proffered by the plaintiff on 5 June 2019, and that Ms Dimitrievski forwarded the Deeds to Mr Lancaster for signing after witnessing the plaintiff sign the Deed on 15 October 2019.
4. She submits the allegedly outstanding issue of the proposed cap on legal fees was not an essential term about which agreement had to be reached before the parties would be bound (Pagnan SpA v Feed Products [1987] 2 Lloyd's Rep 601 at 619). In any event, she submits there was no stalemate as to legal fees; the parties had agreed the Lopemans would pay within 7 days of receiving an itemised tax invoice reasonable legal and registration fees (cl 3.1) but no tax invoice had been provided. The parties' subjective considerations regarding the "stalemate" and Mr Lancaster's understanding that the letters to Council only signified "in-principal (sic)" agreement are irrelevant (Pavlovic v Universal Music Australia Pty Ltd [2015] NSWCA 313 at [64]-[65]; Electricity Generation Corporation v Woodside Energy (2014) 251 CLR 640 at [35], Toll v Alphapharm (2004) 219 CLR 165 at 179 [40]; Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153 at 179 [81]).
5. With respect to the defendant's contention that, if there was a binding agreement, the plaintiff was in fundamental breach of it, the plaintiff submits the confidentiality and non-disparagement clauses do not form part of the agreement contended for by the plaintiff (the plaintiff does not contend the parties had agreed, absent execution by both of them, to be bound by each and every one of the terms of the Deed); the evidence does not rise as high as evidence of disparagement which would justify termination of the Deed; and the defendant did not communicate any such termination to the plaintiff .

Estoppel

1. The plaintiff submits (with reference to the six elements of promissory estoppel identified by Brennan J in Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 at 428-429)): 1. She assumed the defendant "had agreed to and/or would (and/or was obliged to) grant the [Right of Carriageway] to her" (see Plaintiff's Closing Submissions at [46] and [48] but compare the Plaintiff's Supplementary Submissions at [12]) and that is evidenced by her submission of the DA on about 20 June 2019 which included (and relied upon) the two letters to Council signed by the CEO of the defendant; 2. The defendant induced the plaintiff to adopt that assumption and expectation, including by signing the letters and providing its consent to the lodgement of the DA. The letters to Council contained the express representation by the defendant that it had agreed to and would grant the easement; 3. The plaintiff acted in reliance on that assumption or expectation (in the sense described by Gageler J in Sidhu v Van Dyke (2014) 251 CLR 505 at [90]-[95]), including by preparing and lodging the DA (and incurring costs in doing so), which included the letters as a fundamental aspect, and obtaining (conditional) development consent. It was further submitted in the plaintiff's Supplementary Submissions that the "concessions" or "admissions" the defendant claims to have extracted from the plaintiff in cross examination, that a binding agreement had not been reached and that she did not rely on anything stated in correspondence or by anyone from WIN to that effect, are flawed because they are based on the "incorrect premise that the relevant representation relied upon was that a binding agreement had been reached". The plaintiff submits her evidence regarding her reliance on the defendant's letters, "and the representation contained in them that the defendant would grant the [Right of Carriageway]/easement", was not seriously challenged, undermined or called into question (my emphasis); 4. The defendant knew or intended that the plaintiff would rely on that assumption or expectation or representation, which is evidenced by the contents of the letters themselves and the fact the plaintiff communicated to the defendant that she required the letters to be signed so she could lodge her DA. The defendant knew the DA was dependent upon the letters being signed; 5. The plaintiff's action will occasion detriment if the assumption or expectation is not fulfilled (i.e. that the easement is not granted) in that the development consent will lapse, the plaintiff will not be able to build the house on the highest and flattest rear part of her land, her costs incurred in obtaining the development consent will have been wasted, and she will, in order to develop her land at all, be required to prepare and lodge another DA which will require consent from Council (which may not be forthcoming) and more complicated and expensive engineering solutions; 6. The defendant has failed to act to avoid that detriment by fulfilling the assumption or expectation by granting the easement (the plaintiff's submissions did not specifically address whether or not the defendant "otherwise" acted to avoid the detriment: see Walton Stores (Interstate) v Maher at 429).
2. The plaintiff further submits (in opening submissions) the defendant encouraged the plaintiff to assume a binding agreement had come into existence (again, compare her closing submissions) and that it would grant the easement, and encouraged her to rely on that state of affairs, in circumstances where departure from that assumption by the defendant would be unconscionable (Austotel Pty Ltd v Franklins Selfserve Pty Ltd (1989) 16 NSWLR 582 at 610)).
3. The plaintiff also submits there can be no doubt the plaintiff made an assumption as to the future acquisition of an interest in property induced by representations made by the defendant and relied upon that assumption to her detriment (Giumelli v Giumelli (1999) 196 CLR 101 at 112[6]).
4. During the hearing, I invited the parties to provide further written submissions as to whether and why the relief sought by the plaintiff in relation to her estoppel case is proportionate in all the circumstances of the case. The plaintiff provided further written submissions dated 31 July 2020.
5. The plaintiff referred to Plimmer v Mayor of Wellington [1884] 9 App Cas 699; [1881-5] All ER Ext 1320; Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641 at 674-675; Giumelli v Giumelli (1999) 196 CLR 101 at 112 [6], 123-125 [40]-[48]; Crabb v Arun District Council [1976] Ch 179; [1975] 3 All ER 865; and Sidhu v Van Dyke (2014) 251 CLR 505 at 529-530. She submits the following principles emerge: 1. The equity raised by the promisor's conduct can only be accounted for by substantial fulfilment of the assumption upon which the respondent's actions were based; 2. Justice between the parties will not be done by a remedy, the value of which falls short of holding the representor to their promise; and 3. Where the unconscionable conduct consists of resiling from a promise or assurance which has induced conduct to the other party's detriment, the relief which is necessary is that which reflects the value of the promise.
6. The plaintiff submits the relevant unconscionable conduct by the defendant in this case comprises it resiling from a representation and assurance (and promise) made to the plaintiff (and Council) that it would grant the easement to her. She submits the only fair inference available on the evidence is that she would not have pursued the development of her land on the basis she did if the defendant did not provide that assurance, and the value of that promise means significantly more to her than the (substantial) monetary cost she has incurred in preparing and lodging the DA and her negotiations with the defendant.
7. The plaintiff further submits that there is some evidence from Ms Denison-Pender that without access, the plaintiff's land would be worth approximately $500,000, but with access it would be worth around $900,000-$950,000 (or $1,000,000 (at best) to the right buyer). The amount of compensation payable by the plaintiff to the defendant in return for the easement was agreed in 2019 as being $10,000 and since the commencement of these proceedings has been agreed as being $17,100. It is recalled that the path of the proposed easement traverses, in large part, an existing right of carriageway over the defendant's land in favour of other (third) parties and submitted that the detriment involved from the defendant's perspective by reason of granting the easement would be reasonably modest and adequately compensated.
8. Therefore, the plaintiff submits, there would be no injustice or absence of proportionality, and no reason has been identified by the defendant which would suggest that good conscience does not require it to be held to its assurances (and promise).

Section 88K

1. The issue in relation to compensation has been agreed by the parties. Therefore, the only issue arising is whether the proposed easement is reasonably necessary for the effective use or development of the plaintiff's land.
2. The plaintiff submits the Council's attitude is that the easement is reasonably necessary, and further that on any view of the expert evidence, and applying the relevant authorities, the easement is reasonably necessary.
3. The plaintiff submits that any contention by the defendant that the proposed easement is not reasonably necessary because it would be feasible for vehicular access to be achieved via Railway Avenue using either "Cardno Option 1" or "Cardno Option 2" (in the Cardno Pty Ltd joint report dated 25 March 2020) should be rejected. Both options are said to require a steep driveway at the front lower portion of the site, which would pass over Council land and require Council consent and potentially an easement from Council, and significant excavation. The plaintiff submits neither of the experts retained by the defendant expressed the opinion that either of the Cardno options was more favourable or desirable than the proposed easement. The mere fact there is another means of access does not preclude an order being made for an easement (Gordon v Lever (No 2) [2019] NSWCA 275 at [36]).
4. The plaintiff further submits that the evidence of its expert, Mr Lindsay, who was of the opinion that the proposed easement was the safer and more practical option, should be preferred because Mr Lindsay was prepared to make relevant concessions and adopted a more reasonable approach to the conclave process than Ms Harrison and Ms Miller who strayed, at times, into the domain of becoming advocates for the defendant.
5. The plaintiff submits that each of the requirements identified in Moorebank Recyclers v Tanlane Pty Ltd [2012] NSWCA 445 at [153-[159] (applying 117 York Street v Proprietors of Strata Plan No 16123 (1998) NSWLR 504) are satisfied.

Existence of an enforceable agreement

1. The defendant submits the parties had not concluded their negotiations, and objectively intended and conducted themselves on the basis that no agreement would be reached until the execution of a Deed. It submits the case falls within the third class of case in Masters v Cameron (1954) 91 CLR 353.
2. The defendant submits the Vehicular Access Deed attached to Mr Lancaster's letter to Council (dated 14 May 2019) was "at best a scoping document". It submits the parties had reached a stalemate as to the costs to be reimbursed by the plaintiff to the defendant and an invoice already rendered remained unpaid as at 13 August 2019. It is said that Mr Lancaster executed the "in principle letters" on the understanding that there was no binding agreement and only to enable the matter to keep progressing. Further, the plaintiff indicated to the defendant that her solicitors had advised her not to sign the Deed before the defendant because the Deed would immediately become enforceable against any party who signed it. She knew no agreement would be reached until it was executed by the parties, in particular, WIN.
3. The defendant further submits that Ms Dimitrievski did not have actual or ostensible authority to bind the defendants (Left Bank Investments Pty Ltd v Ngunya Jarjum Aboriginal Corporation [2020] NSWCA 144, applying Kelly v Fraser [2013] 1 AC 450).
4. Further, in the alternative, the defendant submits that if there was an agreement, the plaintiff breached cl 7.2 of the Deed by making disparaging comments concerning the defendant in October 2019, telling a Real Estate Agent that the defendant had been "dragging its feet" and left her "high and dry". The defendant submits cl 7.2 is an essential term. It asserts that damages are not an appropriate remedy and the breach entitled it to terminate the agreement (Tramways Advertising Pty Limited v Luna Park (NSW) [1938] NSWStRp 37; (1938) 38 SR (NSW) 632 at 641-642; Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115).

Estoppel

1. The defendant submits that in a case involving land an estoppel must be based on a mutual assumed state of facts (citing Sidhu v Van Dyke [2014] 251 CLR 505 (with no pinpoint reference)). It submits the plaintiff's chosen course of conduct was not based on any representation by the defendant; she had "pre-decided steps" she wanted to take with respect to Council and the placement of her home. She was told any decision was to be made by the defendant's executives and it is submitted that on the facts relied upon by the plaintiff no mutuality exists.
2. The defendant submits that all that had occurred was an expression to assist (made clear in the email of 8 May 2019 from Ms Dimitrievski: "… I really do hope this gets sorted for you soon Roma"). It asserts that it was always within the contemplation of the parties that the proposed Deed was not binding, and absent any agreement concluded in writing, no estoppel can be said to have arisen.
3. The defendant also provided additional written submissions (dated 4 August 2020) on the question of the proportionality of the relief sought by the plaintiff. It accepted the plaintiff's submission as to the principles of law (summarised above at [41]). Ultimately, the defendant submits that the relief sought is not proportional because it would create a blot on the defendant's title in circumstances where the joint experts' report identifies viable alternative access points. It also submits that no order for compensation or damages has been sought by the plaintiff.
4. The defendant also responded further to the plaintiff's submissions on detrimental reliance. The defendant submits that the relief sought by the plaintiff includes a declaration "that the defendant is estopped from departing from the terms of the agreement reached between the Plaintiff and Defendant on about 14 May 2019, the terms of which were set out in … [the] Vehicular Access Deed", and the plaintiff's counsel in opening propounded a case based on a binding agreement and that the defendant should be estopped from departing from its terms. It submits the representations relied upon in the plaintiff's Supplementary Submissions are contrary to what was opened on and the relief sought.
5. The defendant further submits that the established facts are that an easement would only be granted in the event that a binding agreement was entered into, which would only occur when the parties agreed to the issue regarding legal fees and the Deed was executed. It submits the plaintiff was aware of this, and of the fact there was no agreement regarding legal fees, and therefore she cannot have relied on the representation propounded by the plaintiff in its Supplementary Submissions.

Section 88K

1. The defendant submits that the proposed easement is not reasonably necessary because there are alternative access routes. The defendant further submits that the Council's letter/report was not an outright refusal of the plan which located the car port at the front of the site, and the plaintiff declined the Council's invitation to consider variations to that plan and other avenues. The plaintiff's case is said to be one of desirability. The defendant further submits that absent satisfaction as to the terms and conditions of any easement it cannot be determined whether or not it is reasonably necessary (citing Studholme v Rawson [2020] NSWCA 76 at [45]). It submits the order sought by the plaintiff is not capable of being made on the basis of the purported agreement because it "lacks the detail required".

Existence of an enforceable agreement

1. Whether an agreement exists is to be determined objectively and this exercise may involve recourse to events, circumstances and things which are external to the contract itself (see Mount Bruce Mining Pty Limited v Wright Prospecting Pty Limited (S99/2015; S102/2015) (2015) 256 CLR 104 at [46]-[52] (French CJ, Nettle and Gordon JJ)).
2. As the High Court emphasised in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165, the subjective beliefs and understandings of the parties are not relevant. The Court (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ) said (at [36] and [40]): [36] In Codelfa Construction Pty Ltd v State Rail Authority of NSW, Mason J observed: ''We do not take into account the actual intentions of the parties and for the very good reason that an investigation of those matters would not only be time consuming but it would also be unrewarding as it would tend to give too much weight to these factors at the expense of the actual language of the written contract.'' … [40] This Court, in Pacific Carriers Ltd v BNP Paribas, has recently reaffirmed the principle of objectivity by which the rights and liabilities of the parties to a contract are determined. It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction. (citations omitted)
3. Where parties have reached agreement as to the terms of a contract, but have also agreed that a further, formal agreement is to be executed, the question is whether the parties intended to be immediately bound, and again that question is determined by reference to "what each party by words or conduct would have led a reasonable person in the position of either party to believe" (see Pavlovic v Universal Music Australia Pty Ltd [2015] NSWCA 313 at [64]-[65] (Beazley P, Bathurst CJ and Meagher JA agreeing) and the authorities cited there).
4. An instructive starting point for the purposes of determining the binding nature of the parties' agreement, though not a strict nor prescriptive one, is Masters v Cameron (1954) 91 CLR 353 at 360-362, where Dixon CJ, McTiernan and Kitto JJ said: Where parties who have been in negotiation reach agreement upon terms of a contractual nature and also agree that the matter of their negotiation shall be dealt with by a formal contract, the case may belong to any of three classes. It may be one in which the parties have reached finality in arranging all the terms of their bargain and intend to be immediately bound to the performance of those terms, but at the same time propose to have the terms restated in a form which will be fuller or more precise but not different in effect. Or, secondly, it may be a case in which the parties have completely agreed upon all the terms of their bargain and intend no departure from or addition to that which their agreed terms express or imply, but nevertheless have made performance of one or more of the terms conditional upon the execution of a formal document. Or, thirdly, the case may be one in which the intention of the parties is not to make a concluded bargain at all, unless and until they execute a formal contract.
5. In addition to the three categories in Masters v Cameron, there is a fourth category as identified by McClelland J in Baulkham Hills Private Hospital Pty Ltd v GR Securities Pty Ltd (1986) 40 NSWLR 622 at 628: namely, … one in which the parties were content to be bound immediately and exclusively by the terms which they had agreed upon whilst expecting to make a further contract in substitution for the first contract, containing, by consent, additional terms.
6. As Lloyd LJ (O'Connor and Stocker LJJ agreeing) observed in Pagnan SpA v Feed Products Ltd [1987] 2 Lloyd's Rep 601 at 619 (quoted with approval in Feldman v GNM Australia Ltd [2017] NSWCA 107), "there is no legal obstacle which stands in the way of the parties agreeing to be bound now while deferring important matters to be agreed later."
7. In GR Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd (1986) 40 NSWLR 631, the central question was whether letters between the parties constituted a legally binding agreement for the sale of a hospital. A letter (dated 21 March 1986 and which was in the form of a counter-offer) from the vendor's agent to the purchaser stated that "on receipt of such written acceptance, our client would consider there to be a legally binding agreement in principle between yourself and it, until such time as formal Contracts were exchanged" (my emphasis). The subsequent letter from the purchaser accepted "the terms and conditions as laid out in that letter". In finding that the exchange of correspondence did constitute a legally binding and enforceable agreement, McHugh JA (Kirby P and Glass JA agreeing) reasoned as follows (at 635- D-F): … The offer of 20 March 1986 contemplated that contracts would be exchanged within thirty days. A written acceptance of that offer "would constitute a legally binding acceptance until such time as it is superceded (sic) by a formally binding agreement". The letter of 21 March accepted that offer subject to nine conditions. One of them was that formal contracts were to be exchanged by 18 April 1986. Another was that written acceptance "of these additional conditions" was to be received by 25 April 1986. In legal theory, the letter of 21 March was a counter-offer. On receipt of the acceptance of that counter-offer there was "a legally binding agreement in principle" which was to continue "until such time as formal Contracts were exchanged as aforesaid". If the words "in principle" did not appear in the letter of 21 March, it would be impossible to contend that this correspondence did not constitute a binding agreement for the sale of the land, buildings, equipment and business name. Although the words "in principle" are curious, they cannot prevail against the conclusion to be drawn from the words "a legally binding agreement". Those words convincingly indicate that the parties intended to be bound immediately. Probably the phrase "legally binding agreement in principle" was intended to mean that the parties had reached agreement on the main matters and were content to be immediately bound.
8. In Malago Pty Ltd v AW Ellis Engineering Pty Ltd [2012] NSWCA 227, the Court of Appeal was concerned with the binding nature of Heads of Agreement. The Court of Appeal agreed (at [23]) with the decision at first instance that the words "Without affecting the binding nature of these Heads of Agreement" in clause 1(g) were decisive in revealing the parties' intent to be bound by the Heads of Agreement. Macfarlan JA (Bathurst CJ and Meagher JA agreeing) noted (at [24]): The present case is stronger than GR Securities as in that case the relevant document referred to 'a legally binding agreement in principle… until such time as formal Contracts were exchanged' … In the present Heads of Agreement there are no words such as "in principle" to cast doubt upon the parties' intent to be immediately bound.
9. Further, in Pavlovic v Universal Music Australia Pty Limited [2015] NSWCA 313, the Court of Appeal was concerned with the question of whether the parties, who were terminating their joint venture, had reached a binding agreement in circumstances where their lawyers had drafted a deed of release and settlement, with amendments being made to it during the course of negotiations. On 23 December 2014, the solicitors for the respondents sent the proposed deed to the solicitor for the appellant. The appellant's solicitor responded the next day, stating that the appellant "will sign" the proposed deed. In the final correspondence between the parties, the solicitors for the respondent allowed the appellant "a further 48 hours to sign the documents and forward copies to us". The documents were never executed. At trial, it was held that the parties had entered a binding agreement, the respondents' solicitors' email of 23 December constituting an offer that was accepted by the appellant's solicitor's response. However, Beazley P (Bathurst CJ agreeing "generally with [her Honour's] reasons" and Meagher JA agreeing) held that no binding agreement had been reached. Her Honour stated (at [78]-[79]): In my opinion, the formal context in which the parties had always dealt with one another, and the fact that up until 23 December 2014, as Universal accepted, the termination of the relationship was to be concluded in the same formal manner, namely, by execution of the Proposed Deed, do not support Universal's contentions. This context also does not support his Honour's finding that the parties intended to be and were bound by the email exchange that occurred on 23 and 24 December 2014. The negotiations were complex. They dealt not only with the conditions upon which Mr Pavlovic's employment with Universal was to be terminated and the assignment of his shares to Universal, but also the assignment of significant intellectual property rights between the parties, the domain name was to be transferred and his resignation as Managing Director was required. All of these matters were the subject of drafts of the Proposed Deed that passed back and forth between the solicitors during the course of the negotiations. There was no indication in the communications between the parties during that process that once the parties' assent to the various terms and conditions was obtained, they would be bound. The reverse was the case. The negotiations centred on amending the draft documents and neither party had indicated an intention to depart from the formal arrangements envisaged by them throughout the negotiations.

Estoppel

1. In Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387, Brennan J explained the relevant requirements for the doctrine of promissory estoppel to operate in the following terms (at 428-429): … it is necessary for the plaintiff to prove that (1) the plaintiff assumed that a particular legal relationship then existed between the plaintiff and the defendant or expected that a particular legal relationship would exist between them and, in the latter case, that the defendant would not be free to withdraw from the expected legal relationship; (2) the defendant has induced the plaintiff to adopt that assumption or expectation; (3) the plaintiff acts or abstains from acting in reliance on the assumption or expectation; (4) the defendant knew or intended him to do so; (5) the plaintiff's action or inaction will occasion detriment if the assumption or expectation is not fulfilled; and (6) the defendant has failed to act to avoid that detriment whether by fulfilling the assumption or expectation or otherwise.
2. Brennan J's formulation has been cited with approval and applied by the New South Wales Court of Appeal, at least in cases where the relevant estoppel has operated negatively (see, e.g., Caringbah Investments Pty Ltd v Caringbah Business and Sports Club Ltd (in liq) [2016] NSWCA 165 at [72] (Bathurst CJ, McColl and Macfarlan JJA agreeing)). On a number of occasions, the Court of Appeal has said that a promissory estoppel must be negative in substance, entailing restraint upon the enforcement of existing rights inconsistently with a promise (see, e.g., Saleh v Romanous (2010) 79 NSWLR 453; [2010] NSWCA 274 at [73]-[74] (Handley AJA, Giles JA and Sackville AJA agreeing)]; DHJPM Pty Limited v Blackthorn Resources Limited (formerly called AIM Resources Ltd) (2011) 83 NSWLR 728 at [43] (Meagher JA, Macfarlan JA agreeing), [93] (Handley AJA); Van Dyke v Sidhu [2013] NSWCA 198 at [39] (Barrett JA, Basten JA and Tobias AJA agreeing)). However, there is also "significant dicta contrary to this limitation on promissory estoppel" (Ashton v Pratt (2015) 88 NSWLR 281 at [138] (Bathurst CJ, McColl and Meagher JJA agreeing), having referred to Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387, 425 (Brennan J), 406 (Mason CJ and Wilson J), 450-452 (Deane J); Commonwealth of Australia v Verwayen (1990) 170 CLR 394, 413 (Mason CJ), 428-429 (Brennan J), 440 (Deane J); Giumelli v Giumelli (1999) 196 CLR 101 at [35] where the plurality cited Riches v Hogben [1985] 2 Qd R 292 at 300-30 (McPherson J); Construction Technologies Australia Pty Ltd v Doueihi [2014] NSWSC 1717; 17 BPR 33,457 at [130] (White J); Silovi Pty Ltd v Barbaro (1988) 13 NSWLR 466, 472 (Priestley JA, Hope and McHugh JJA agreeing); Austotel Pty Ltd v Franklins Selfserve Pty Ltd (1989) 16 NSWLR 582, 610 (Priestley JA, Kirby P agreeing with Priestley JA's statement of principle)).
3. Proprietary estoppel can operate positively to create rights. Whether estoppel by encouragement or estoppel by acquiescence, the essence of proprietary estoppel is that "the person seeking to assert it has been led to alter his or her position detrimentally in the belief that he or she would have an interest in property of the defendant" (Ashton v Pratt (2015) 88 NSWLR 281 at [108] (Bathurst CJ, McColl and Meagher JJA agreeing); Dillwyn v Llewelyn (1862) 4 De GF & J 517; 45 ER 1285; Ramsden v Dyson (1866) LR 1 HL 129; see also Giumelli v Giumelli (1999) 196 CLR 101 at 112 [6] (Gleeson CJ, McHugh, Gummow and Callinan JJ); Sidhu v Van Dyke (2014) 251 CLR 505 at 511 [2] (French CJ, Kiefel, Bell and Keane JJ)).
4. Common law estoppel, in contrast, operates upon a representation of existing fact, and when certain conditions are fulfilled, establishes a state of affairs by reference to which the legal relation between the parties is to be decided (see, e.g., Silovi Pty Ltd v Barbaro (1988) 13 NSWLR 466, 472 (Priestley JA, Hope and McHugh JJA agreeing)).
5. In Sidhu v Van Dyke, the High Court considered the relevant principles for determining the appropriate relief where an equitable estoppel is made out. French CJ, Kiefel, Bell and Keane JJ referred (at [79]) to Brennan J's judgment in Walton Stores (Interstate) v Maher, where his Honour said (at 109): The protection which equity extends is analogous to the protection given by estoppel in pais to which Dixon J referred in Grundt v Great Boulder, ie, 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.
6. Their Honours went on to observe (at 529 [82]-[86]): In Giumelli v Giumelli, Gleeson CJ, McHugh, Gummow and Callinan JJ held that, because the fundamental purpose of equitable estoppel is to protect the plaintiff from the detriment which would flow from the defendant's change of position if the defendant were to be permitted to resile from his or her promise, the relief granted may require the taking of active steps by the defendant including the performance of the promise and the performance of the expectation generated by the promise. That holding is supported by the leading decisions to which this category of equitable estoppel is usually traced. The requirements of good conscience may mean that in some cases the value of the promise may not be the just measure of relief. In The Commonwealth v Verwayen, Deane J noted that: "There could be circumstances in which the potential damage to an allegedly estopped party was disproportionately greater than any detriment which would be sustained by the other party to an extent that good conscience could not reasonably be seen as precluding a departure from the assumed state of affairs if adequate compensation were made or offered by the allegedly estopped party for any detriment sustained by the other party." If the respondent had been induced to make a relatively small, readily quantifiable monetary outlay on the faith of the appellant's assurances, then it might not be unconscionable for the appellant to resile from his promises to the respondent on condition that he reimburse her for her outlay. But this case is one to which the observations of Nettle JA in Donis v Donis are apposite: "[H]ere, the detriment suffered is of a kind and extent that involves life-changing decisions with irreversible consequences of a profoundly personal nature … beyond the measure of money and such that the equity raised by the promisor's conduct can only be accounted for by substantial fulfilment of the assumption upon which the respondent's actions were based." The appellant's argument, rightly, sought no support from the discussion in cases decided before Giumelli v Giumelli of the need to mould the remedy to reflect the "minimum relief necessary to 'do justice' between the parties". There may be cases where "[i]t would be wholly inequitable and unjust to insist upon a disproportionate making good of the relevant assumption"; but in the circumstances of the present case, as in Giumelli v Giumelli, justice between the parties will not be done by a remedy the value of which falls short of holding the appellant to his promises. While it is true to say that "the court, as a court of conscience, goes no further than is necessary to prevent unconscionable conduct", where the unconscionable conduct consists of resiling from a promise or assurance which has induced conduct to the other party's detriment, the relief which is necessary in this sense is usually that which reflects the value of the promise. In the circumstances of the present case, no reason has been identified by the appellant to conclude that good conscience does not require that the appellant be held to his promises. In particular, it is no answer for the appellant to say that the performance of his promises was conditional on the completion of the subdivision and the consent of his wife to the transfer to the respondent. His assurances to the respondent were expressed categorically so as to leave no room for doubt that he would ensure that the subdivision would proceed and that the consent of the appellant's wife would be forthcoming. (citations omitted)

Section 88K

1. Section 88K provides that: (1) The Court may make an order imposing an easement over land if the easement is reasonably necessary for the effective use or development of other land that will have the benefit of the easement. (2) Such an order may be made only if the Court is satisfied that - (a) use of the land having the benefit of the easement will not be inconsistent with the public interest, and (b) the owner of the land to be burdened by the easement and each other person having an estate or interest in that land that is evidenced by an instrument registered in the General Register of Deeds or the Register kept under the Real Property Act 1900 can be adequately compensated for any loss or other disadvantage that will arise from imposition of the easement, and (c) all reasonable attempts have been made by the applicant for the order to obtain the easement or an easement having the same effect but have been unsuccessful. (3) The Court is to specify in the order the nature and terms of the easement and such of the particulars referred to in section 88(1)(a)-(d) as are appropriate and is to identify its site by reference to a plan that is, or is capable of being, registered or recorded under Division 3 of Part 23. The terms may limit the times at which the easement applies. (4) The Court is to provide in the order for payment by the applicant to specified persons of such compensation as the Court considers appropriate, unless the Court determines that compensation is not payable because of the special circumstances of the case. (5) The costs of the proceedings are payable by the applicant, subject to any order of the Court to the contrary. …
2. In 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 (1998) 43 NSWLR 504 at 508-509, Hodgson J said: It is clear that "reasonably necessary" in s 88K(1) does not mean "absolutely necessary", and thus that the requirement may possibly be satisfied even when the plaintiff's land could be effectively used or developed without the easement. In my opinion: (1) the proposed easement must be reasonably necessary either for all reasonable uses or developments of the land, or else for some one or more proposed uses or developments which are (at least) reasonable as compared with the possible alternative uses and developments; and (2) in order that an easement be reasonably necessary for a use or development, that use or development with the easement must be (at least) substantially preferable to the use or development without the easement. (citations omitted)
3. In Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445, the Court of Appeal (Bathurst CJ, Beazley and Meagher JJA) referred to Hodgson J's statement as the "correct approach" to the requirement of reasonable necessity. The Court said (at [154]-[159]): The requirement that the easement be reasonably necessary for the effective use and development of the land means something more than mere desirability or preferability over the alternative means available. However, reasonable necessity does not mean absolute necessity. The correct approach to the question, in our opinion, was stated by Hodgson J (as his Honour then was) in 117 York Street… In Rainbowforce supra, Preston CJ of the Land and Environment Court, gave a relatively wide meaning to the concept of effective use and development (at [72]) stating that if use or development of land for some planning purpose such as residential, commercial or industrial cannot be achieved without the creation of the easement, the easement is reasonably necessary for such use or development to be effective. To the extent that Preston CJ was suggesting that subject to the other matters which he stated required consideration, an easement would be reasonably necessary for the effective use and development of the land if it was required for any proposed development, regardless of the development's desirability or economic effect, the proposition, with respect, is too wide. That approach would not take adequate account of the word effective. Equally, we do not believe, as suggested by Moorebank, that it is necessary to show that the easement is necessary to achieve the highest and best use of the land. In a case such as the present, where the easement is said to be necessary for the commercial development of the land, it is sufficient in our opinion to show that the proposed development is one which is appropriate to the area in which the land is situated and is at least an economically rational use of the land…. That is not to say that an easement will always be granted in these circumstances. As we have indicated the authorities have established that the concept of reasonable necessity requires consideration of the effect of the grant of the easement on the servient tenement: O'Shea supra. Further, it is correct in our opinion, that the greater the burden on the servient tenement, the stronger the case needed to justify a finding of reasonable necessity. As we indicated earlier (par [131]) in Bloom v Lepre supra, Young J stated that where the effect of the easement was to sterilise the servient tenement insofar as the person's own development or use is concerned, the Court is not necessarily quite so favourable to the application. We would put the proposition more strongly. If the effect of the imposition of an easement was to effectively preclude a reasonably available development or use of the servient tenement appropriate to that land, then it would require a strong case of reasonable necessity before the easement would be imposed. The determination of whether an easement is reasonably necessary for the use or development of the land also involves consideration of the alternative methods by which such use or development could be achieved. That is implicit in the concept of reasonable necessity. In the present case it involves the consideration of whether there is alternative access to give effect to the development. None of the factors to which we have referred above can be considered in isolation from the others. Ultimately the question of whether an easement is reasonably necessary for the use or development of the land will be determined by an evaluation of those factors in conjunction with each other.
4. The plaintiff points out that in that case, the Court of Appeal considered whether access to the respondent's land by an alternative route was a viable alternative to the grant of the easement over the appellant's land. It determined it was not because the relevant Council planning instrument made it clear that a link road, which would provide the respondent's land with access to a nearby road and was dependent on the proposed easement, was a necessary precondition of the subdivision development for which development consent had been provided.
5. Similarly, in Gordon v Lever (No 2) [2019] NSWCA 275, Bell P (Payne JA and Emmett AJA agreeing) observed (at [35]): Implicit in the concept of reasonable necessity is a consideration of the alternative methods by which the proposed use or development could be achieved: Moorebank at [158]. Further, as the primary judge observed at [64], "[t]here may still be a necessity for the easement sought, notwithstanding that there are alternative sites for an easement: Re Seaforth Land Sales Pty Ltd's Land (No 2) [1977] Qd R 317".

Mrs Lopeman

1. The plaintiff, Mrs Lopeman, filed two affidavits, one on 17 February 2020 and one on 29 April 2020.
2. In her first affidavit, she set out the history of the property. Her parents had purchased the land in April 1966 and she inherited it in 2000 ([2]-[4]).
3. In 2009, the Council rezoned the land which then allowed construction of dwelling houses. So in 2015, she sold her home in Sydney with the view to build a home for retirement on the block ([5]-[6]).
4. She states that the subject property had always been vacant land. She sets out her attempts in 2015 to negotiate an easement with the defendant ([14]-[18]).
5. In July 2017, she lodged a DA with the Council prepared by Mr Adam Roser. The Council raised a number of concerns and indicated that substantial excavation would be required, together with the construction of a number of retaining walls. On 25 September 2017, the Council advised that she should first consider access over the defendant's land. She withdrew the application on 3 October 2017 ([19]-[25]).
6. As a result of discussions with Council (set out at [26]-[27]), on 10 April 2018, she had her solicitor write to the defendant requesting an agreement in principle with respect to a grant of an easement over its land. She then organised a valuation which came in at $10,000 ([30]-[32]). That amount has been accepted ([33]).
7. A second DA was lodged in February 2019 but this was rejected on the basis there was no "in principle" agreement under cl 51 of the Environmental Planning and Assessment Regulation 2000 (NSW) (EP&A Regulation). The rejection occurred on 8 March 2019 ([34]-[35]).
8. A third DA was proposed but a lead up meeting took place with Ms Dimitrievski who expressed concern over the width of the proposed right of way at 6m and requested that it be reduced to 3m in width. A compromise was reached ([36]-[39]). On 20 June 2019, a third DA was lodged.
9. On 14 May 2019, the defendant wrote to the Council under the hand of Mr Andrew Lancaster giving landowner's consent to the DA ([44], annexure 'N').
10. A further letter went to Council on the same day, signed by her and Mr Lancaster, attached to which was a 'Vehicular Access Deed' ([46]-[47], annexure 'O').
11. On 30 September 2019, the Council granted deferred commencement development consent for the construction of a dwelling ([51]-[53]).
12. She stated that she relied on the representations made by the defendant in its two letters to the Council providing consent and in principle agreement when lodging her development application on 20 June 2019 ([58]).
13. As a result of the defendant's representations, she has spent $83,300 "to my detriment" ([66]).
14. In her affidavit of 29 April 2020, Mrs Lopeman largely responds to Ms Dimitrievski's evidence. She explains in greater detail the meeting of 8 May and the discussions surrounding the proposed 6m wide driveway and the negotiations reducing it to 3m ([8]-[11]).
15. The balance of her affidavit is to some extent argumentative.
16. She also deals with her meeting with Ms Vanessa Denison-Pender and the remarks she allegedly made ([25]-[34]).
17. In cross examination, Mrs Lopeman agreed she understood from the outset she would have to pay WIN's costs (T36.39). She understood there was no concluded agreement in 2015 (T37.3-4).
18. She agreed she had retained solicitors to formalise any agreement that was reached (T38.11). She agreed the Council had not said an outright 'No' in 2017 to the carport at the front of the property (T42.31, T42.35). She agreed that in due course she abandoned that particular plan (T42.40). She understood at some point that WIN would not agree to a 6m wide easement (T47.6). She agreed that she wanted her solicitors to finalise any negotiations (T47.36). She understood she would pay WIN's costs and that there would be a Deed which would come into existence (T48.40, T49.1). She understood that an agreement would not come "into play" unless executed by the parties (T50.12-21).
19. She acknowledged that as at January 2019 she had no agreement (T57.47). Further, she agreed that at the time of her 8 March 2019 DA there was no agreement as to what the terms of the Deed would be (T59.4). She was prepared to lodge a DA without any consent or approval across the land owned by the defendant (T59.16).
20. She also agreed that as at the time when the Deed was "provided as a basis for the attachment to a letter [to Council]", the Deed was not finalised because at the time there was still discussion about the width of the easement (T61.2)
21. An agreed survey plan was necessary for her to have relied upon the proposed Deed (T62.21). She agreed that she would pay professional costs and at no point has she ever paid costs of 1,133 plus GST (T63.24).
22. She agreed that as at 21 May 2019 there was tweaking that had to be done (T66.25). On 6 June 2019, she had said in an email that a stalemate had been reached in relation to legal fees and that by 6 June 2019 she still had not paid the $1,133 invoice (T67.41).
23. She knew from the commencement of any dealings with WIN that she would have to pay all of their legal fees (T68.18). She also agreed that there was a discussion about capping fees (T71.40-50, T72.1-14). She agreed that at no time did she ever appreciate that WIN would cap their fees (T62.33-39).
24. She also agreed that she had instructed her solicitor at one point to indicate to WIN that she would only pay a maximum of $2,500 for WIN's fees (T74.15) and that absent its agreement there was no agreement (T74.20).
25. She accepted that there was no agreement until the Deed was signed (T77.3). She believed she needed the Deed signed "to move" (T77.8). She was also concerned about committing herself to the Deed before WIN signed it (T77.29). But she thought she would not have an agreement until she had signed the Deed (T78.3).
26. She denied she told a real estate agent she was going to sell the land and that she was no longer interested in developing the land. She was just looking at her options (T78.35-36).
27. She knew the Deed contained a confidentiality clause and non disparagement clause but she denied saying anything to the real estate agent that was adverse to WIN (T81.8-19).

Mr Roser

1. The next witness called for the plaintiff was Mr Adam Roser. He made two affidavits, one on 17 February 2020 and the second on 29 April 2020.
2. In the first, he stated that he was retained by the plaintiff on 25 June 2015 to assist her with the preparation of her development application for Lot 1 at Railway Avenue, Scarborough ([1]).
3. He has been a draftsman for about 19 years. He regularly prepares applications for residential developments with the Council in the greater Wollongong region ([2]-[3]).
4. He was the point of contact with Council's assessing officer and arranged meetings and dealt with various aspects of technical information ([6]).
5. He was instructed to submit an application for a DA on 4 August 2017, however, shortly after on 25 September 2017, Council responded indicating that there were a number of threshold issues which needed to be resolved and recommended that the plaintiff withdraw the application and re-lodge the application having addressed those threshold issues ([7]-[8]).
6. In its response, the Council indicated that significant excavation was necessary into the Council verge and therefore the Council recommended that the plaintiff "first" consider whether access is possible over the adjacent lot to provide compliant parking towards the rear of the site ([9]).
7. He was instructed to withdraw the application on 3 October 2017. He had a meeting with the Council in November 2017 and was told that Council would only consider a further application for front access if any alternative option for providing vehicular access to the rear had been exhausted ([11]-[12]).
8. A further application was made in February 2019 but was refused on 8 March 2019 because the new DA failed to comply with the EP&A Regulation, namely that the Council required evidence that there was an in principle agreement between the plaintiff and defendant that the Right of Carriageway was agreed to ([16]).
9. On 8 May 2019, Mr Roser attended a meeting with Ms Rachel Dimitrievski at which he explained the situation. However, she expressed concern over the width of the proposed Right of Carriageway of 6m and asked for the entire width to be reduced to 3m ([17]). After some discussion, it was accepted that the turning circle be retained at 6m and the balance be reduced to 3m ([18]). He thereafter sent an email to Ms Dimitrievski with a DA and the proposed new drawings ([19]).
10. The new DA was lodged on 20 June 2019, together with the consent signed by Mr Lancaster dated 14 May 2019 ([21]).
11. Council gave approval on 30 September 2019 for the construction of a residence and double garage ([25]).
12. In his second affidavit, Mr Roser responds to the expert report of 25 March 2020 prepared by Ms Grainne Miller and Ms Sonya Harrison (the Cardno Report).
13. His general response was to the effect that their report did not take into account the amount of excavation required for access to the front. His view was that Council did not regard the application involving front of site access as "ideal" and suggested that consideration be given to the back of the site. The expert report of Cardno failed in his view to take sufficiently into account Council's recommendation in that regard and the fact that Council invited a withdrawal of the application ([10]-[12]).
14. Further, he thought insufficient attention had been given by Cardno to the amount of excavation required and the viability of their proposal on the site. Further, that the Council demonstrated their support for the easement proposal ([17]-[18]).
15. In cross examination, Mr Roser was asked about his qualifications and said he had a diploma in architectural technology and was an accredited building designer (T89.50- T90.1-2).
16. He was taken to a number of photographs to explain the topography of the site, TT93-94). He agreed that the site was heavily vegetated (T45.43). He agreed that the plaintiff initially wanted the carport at the front of the block (T97.12, T97.31).
17. He thought the first application was viable otherwise he would not have lodged it with Council (T97.47).
18. He agreed that the first application was "not an out and out rejection" but it "was not as black and white as that" (T99.17-18).
19. He agreed that the Council indicated that they might consider a variation to the retaining walls. He also agreed that the Council was telling him that it was not ideal but they were not going to say they were going to reject the application (T101.12-20). But he said there were many other issues other than the carport issue, including zone objectives (T101.48-49). It was put that consideration should have been given to retaining a structural engineer and that the Council was saying that the soil profile had insufficient information (TT102-103).
20. He thought it was not viable to continue with that design given the number of matters raised and the additional reports required (T104.11-14) He also agreed that one solution was to change the design of the house (T112.43). But he stated that even if the footprint of the house was reduced, the problems at the front of the carport would still have to be addressed (T113.30-31).
21. He accepted that the easement now sought would not allow cars to come and park (T114.32). There would be nothing stopping someone reducing the footprint of the house. His instructions were to maximise the footprint within the confines of the site (T116.26-33­). He did not agree that the Cardno Report Option A or B significantly reduces the need for excavation as opposed to his plan (T124.13, T124.44-45).

Ms Dimitrievski

1. The first witness for the defendant was Ms Rachel Dimitrievski. She made one affidavit on 20 March 2020.
2. She first met the Lopemans in 2015 and assisted them in communicating their request for vehicular access to the executives of WIN and made clear that she had no authority to make any decision about the matter ([6]).
3. She deals with a series of emails from the plaintiff and meetings with Mr Andrew Lancaster and the CFO, Mr Halios-Lewis ([7]-[10]). She also liaised with the lawyers for WIN and was involved in discussions with them about the width of the proposed easement and the entry point of the easement and that it was not utilising existing WIN land with easements and entering the Lopemans land from the side ([16]).
4. She then responds to a number of paragraphs of the plaintiff's affidavits. She also prepared the letters to be signed by Mr Lancaster who had told her that he intended to try and find a way for access to the Lopeman land ([21]).
5. She also set out her involvement with the drafting of the Deed and the unresolved invoice for WIN's lawyer ([23]-[26]).
6. When the DA (Application 2019/636) was lodged on 20 June 2019, no specific pathway had been agreed and there had been no representation that WIN had approved the proposed easement ([27]).
7. She communicated by email with the plaintiff on 13 August 2019. She enquired about when the proposed Deed would be signed and whether the plaintiff had paid the invoice for the lawyer ([30]). On 20 August 2019, she indicated that if the plaintiff signed the Deed and dropped it off she would have it signed by the executives. However, on 21 August 2019, the plaintiff responded by saying she would not sign until WIN had signed because the Deed would be binding on the party who signed it ([31]).
8. On 11 October 2019, she was contacted by Ms Angela Weeks, Executive Assistant to Andrew Lancaster, who advised that Andrew Gordon (WIN's Executive Chairman) reported that a personal friend of his, Ms Vanessa Denison-Pender, who ran a real estate firm, had a meeting with the plaintiff in which she made disparaging remarks about WIN and the Gordon family ([32]). She subsequently spoke to Ms Denison-Pender who confirmed that the plaintiff had said some unkind things about the Gordons ([33]). On 15 October 2019, the plaintiff attended the WIN offices to sign the Deed ([34]).
9. She was then instructed to inform the plaintiff that WIN would no longer conclude an agreement with the plaintiff ([35]-[34]).
10. She agreed that in 2015 she indicated to the plaintiff that WIN would have no problem in allowing a Right of Carriageway (T142.32).
11. She accepted that negotiations had gone on between the lawyers about the Deed (TT147-148,157.4).
12. She also indicated that she had a meeting with Mr Roser about the width of the proposed easement (T149.43).
13. As at 30 May 2019, she had reviewed the Deed and there was only one matter to clarify and that was the legal fees (T159.17-24). She agreed the revised copy of the Deed that she was referring to is at CB.768 (T160.38). She also agreed that the revised survey plan which provided for the 3m is at CB.769 (T161.26).
14. She accepted that Mr Lancaster signed the letters on 13 June 2019 (T163.7).
15. On 20 August, when she sent an email to the plaintiff, she expected WIN executives such as Mr Lancaster to sign the Deed if they were happy with it (T168.32). An issue regarding the quantum of legal fees remained (TT169-171).
16. She agreed that the plaintiff told her she had received the DA on 8 October 2019 (T175.5-11). An arrangement was then made for the plaintiff to sign the Deed and on 15 October the plaintiff attended the WIN offices to sign two copies of the Deed (T178.41-49). The copies of the Deed have been destroyed by Ms Dimitrievski herself (T179.40-45).

Mr Lancaster

1. The next witness was Mr Andrew Lancaster, the CEO of the defendant. He made one affidavit of 24 March 2020.
2. He stated that he and Ms Dimitrievski met on a weekly basis to review property matters ([6]).
3. The general protocol at WIN is that the Directors sign off on property matters including sales, purchases and leases. Board authority is delegated to two directors for the signing of documents. Ms Dimitrievski was not delegated authority but he was to execute the easement arrangement with the plaintiff ([7]).
4. He wanted to assist the plaintiff as the easement would not have a large financial impact on WIN, but WIN was not to incur any costs associated with the easement ([9]).
5. During cross-examination, Mr Lancaster accepted that he signed the letters dated 14 May 2019 and that he had full authority to sign them (T.184.23-42).
6. He was aware that he was telling Wollongong Council that there was an in principle agreement and he was happy with the arrangement provided WIN did not bear any cost (T185.16-17, T185.43).
7. He would not have attached the Deed without having regard to it (T186.44) and he assumes that he did (T188.14).
8. He understood that if the easement was granted it would be a permanent easement (T188.34). He also accepted that he may not have signed the letters until 13 June 2019 (T189.16). He thought the terms of the Deed were finalised subject to some haggling over legal fees (T190.13).
9. On the basis, however, of information he had received from Ms Dimitrievski he decided not to have the Deed signed (T193.21-25).
10. When he heard about the conversation the plaintiff had with the real estate agent he thought WIN had been taken for a ride (T192.31). He was not acting out of spite; there was no agreement (T192.42-43). He was aware that the plaintiff attended WIN's offices to sign the Deed (T195.42-43).

Ms Denison-Pender

1. The third witness for the defendant was Ms Denison-Pender who swore one affidavit of 26 March 2020.
2. Ms Denison-Pender is a Director of One Agency Real Estate based in Thirroul. She stated that on or around 2 October 2019, Mrs Lopeman contacted her office, seeking that she undertake an appraisal of the property at Railway Avenue in Scarborough ([1]-[2]).
3. She said that on 4 October 2019, she met with Mr and Mrs Lopeman at the property and Mrs Lopeman informed her she was seeking to list the property. She said they had a conversation during which Mrs Lopeman said words to the effect of "We are anticipating getting an easement to access the land via a neighbours (sic) land shortly … We should already have it. WIN has been dragging their feet. Now one of their key people is on leave which has left us high and dry… WIN has held us up" ([4]).
4. During cross-examination, Ms Denison-Pender agreed that during the meeting on 4 October Mrs Lopeman "didn't mention Bruce Gordon or a Gordon, but she made reference to one of their senior staff not being available" (T198.3-4). She was taken to an email sent by her to Mrs Lopeman on 10 October 2019 at 3:44pm in which she wrote "Thanks for your call just now. Appreciate you getting back to me and your feedback" (EX.P3). She agreed she sent this email after Mrs Lopeman called her at some stage in the afternoon of 10 October to tell her she did not require her services to market the property and she was potentially going to take her business to another agency (T200.9, T200.13). She agreed it is "apparent" from the time stamp on an email sent by her to Cara Pincombe at 4:17pm on 10 October that she emailed Ms Pincombe about 30 minutes later about Mrs Lopeman (T201.6). She agreed Ms Pincombe is "a very dear, long-standing friend" of hers and that Ms Pincombe is married to Andrew Gordon, the chairman of WIN (T201.27, T201.31). She agreed she "apparently" waited six days between meeting with Mrs Lopeman and sending the email to Ms Pinnicombe (T201.43) but said she had drawn her conversation with Mrs Lopeman to WIN's attention "verbally" (T202.1).

The Experts

1. Three experts provided reports to the Court in relation to the various applications that were made to Council and which were relevant to the question of reasonable necessity in s 88K of the Conveyancing Act. I directed that the experts confer and they produced a joint report indicating agreement and differences. The experts were called at the conclusion of the lay evidence.

Mr Lindsay's report

1. The expert called by the plaintiff was a Mr Colin Lindsay. He is a structural engineer. His affidavit annexing his Expert Report on Vehicular Access is dated 17 February 2020.
2. He reviewed the letter from Wollongong Council dated 25 September 2017 and agreed with the various views expressed by Council. He thought there would be difficulties with the carport at the front because of the gradient, the size of the verge, and because the proposed carport would require retaining walls approximately 4.2 m high. He also thought that due to the depth of the cut and the existing slope of the site this would require extensive terracing to be constructed, with the terracing extending in the order of 7.0 to 8.0 metres beyond the internal face of the carport retaining wall ([6.8] of his report).
3. He also expressed the view that a maximum depth of cut of approximately 2.2 metres would be required for the driveway. As a result, a batter width required at 25% for this cut is approximately 8.0 metres from either side of the driveway. This, in his view, would result in the batter extending beyond the projection of the side boundaries of the property ([6.9] of his report). Further, as a result of a report of A W Geotechnics, and as a result of the amount of sand and rock encountered at a depth of 1.55 metres, he thought that extensive excavation would be required which in turn would require significant cost and time ([6.13]-[6.14] of his report).
4. Mr Lindsay inspected the site on 13 February 2020. In his view, the contours of the land and the slope of approximately the rear third of the site makes that portion of the site the most suitable for development. He thought the construction of the carport at the front of the site is not a feasible solution. To put the residence at the rear but the driveway at the front would require in his view a driveway in the order of 45 metres. There would be site distance and safety issues with the daily operation of the driveway ([7.1]-[7.3] of his report). Building the dwelling closer to the front would not alleviate the problems, and again, is not feasible ([7.4]).
5. The Right of Carriageway in the location identified would allow the developable portion of the land to be safely accessed and utilised. It would also provide, in his view, safer access for emergency services ([7.6]-[7.7]).

Cardno Pty Ltd joint report

1. A joint report was obtained from two consultants at Cardno Pty Ltd, Ms Grainne Miller, a Senior Town Planner, and Ms Sonya Harrison, Technical Director. It was prepared on 25 March 2020.
2. In their report, they in turn where appropriate responded to Mr Lindsay's report.
3. In their view, alternate compliant access routes as designed by their firm provide options for a driveway which would reduce the level of cut and height of the retaining walls in comparison to that proposed in the DA prepared by Mr Roser, namely DA-2017/957.
4. Section 3 of their report describes in some detail the alternate access routes designed by Cardno. Option A (Figure 3-1) uses a bend in the driveway to lengthen the distance of the driveway, which has the effect of minimising the cut required. In effect, it would by its design need a greater area of the road. They also proposed an Option B (Figure 3-2). The driveway in this option is straight. Both options, however, would be compliant with Council requirements and the batters required in both cases would be less than was required for DA-2017/957. Overall excavation depth, in their view, for both options is significantly less than DA-2017/957.
5. In a helpful table (Section 4 of their report), they each again in turn identify aspects of the matter in which they concur or disagree with Mr Lindsay. As an overall comment, they express the view that a functional driveway can be achieved notwithstanding the grade and that a carport at the front of the lot is feasible, subject to detailed design.
6. They were also of the view that, because of the heavy vegetation, access from the rear may also pose challenges.
7. They express the view that a carport at the front of the lot "is entirely possible" as they propose, but they do concede that safe sight distance would "require further analysis/investigation".
8. Even in relation to their proposed options they concede that they are concept plans and that detailed designs would be required to be presented to Council for approval.
9. Importantly, they express the view that with a compliant driveway design emergency services "can still access Lot 1 … from Railway Avenue safely" and that "it would be more difficult for emergency services to determine the location of a right of carriageway access for Lot 1" at the rear of the lot. But they do accept that "[i]f access is solely based on grades, access at the rear would be the most suitable option". This option would, as they point out, require removal of vegetation.

The conclaves

1. Most helpfully, the experts conferred twice, on 24 and 30 June 2020.
2. As a result of the first conclave, they all agreed that the Cardno concept plan reduces the excavation from the original design and that DA-2017/957 did not explore DA options prior to withdrawal of the DA. Next, that similar amounts of vegetation is required to be removed for any proposal, namely DA-2017/957 and DA-2019/636. Further, geotechnical investigation of the site is required. The Cardno design was feasible but improvements could be made to it. It was noted that Council described the 2017 DA as "not ideal" but that does not mean it could not be improved. It was also agreed that Cardno design Option A was the more favourable because it requires less excavation.
3. However, there was disagreement about a number of matters. One of the main points of disagreement was the question of retaining walls close to the site boundary. Mr Lindsay leaned in favour of rear access via the easement, whereas Ms Harrison and Ms Miller leaned in favour of their Options A or B. The latter did concede that the site gradients could be revisited with the benefit of an engineer and architect to produce a more favourable house design.
4. In the second conclave, much the same areas were identified as leading to agreement or disagreement. One of the areas centred around the role played by a Mr Nathan McBriarty, a Senior Town Planner with Wollongong Council, who displayed a level of satisfaction with the original DA on 2017. The point being that the withdrawal of the DA was premature. One measure of agreement was that the site was complex from the viewpoint of development. Mr Lindsay was still of the view that Council may not approve significant retaining walls so close to the boundary, whereas Cardno thought an improved driveway design would overcome the problem. But notwithstanding Mr McBriarty's assessment, the Council in its letter described the DA as "not ideal". Mr Lindsay maintained his view that the Right of Carriageway over WIN's land was the most practical and safer option. There was no guarantee that even if Cardno's designs were improved they would be approved as there were significantly more engineering constraints in their options. However, it was agreed again that both of Cardno's options were feasible "civil and structural engineering wise".

Oral evidence and cross examination of the experts

1. The course adopted with the experts was that each was invited pursuant to s 29(2) of the Evidence Act to give a short narrative as to the opinion each held and why and then each was cross examined.
2. Mr Lindsay went first. He in terms amplified his reasons already outlined in the joint reports for why the 2017 DA was not ideal and went on to reiterate his views as to why the Right of Carriageway option was his preferred choice. Largely, his view was very much affected by the gradient and excavation issues (TT209-211).
3. Ms Harrison maintained her view that access via Railway Avenue could be made compliant with Council requirements. But she described the process as involving a "complex" DA application (T211.47). Again, she thought the 2017 DA had prematurely been withdrawn (T212.36-39). She also referred to the note of Mr McBriarty of 14 September that there were significant gaps in the DA application and the applicant never produced a variation to the retaining wall design (TT212-214).
4. Ms Miller followed. Again, she criticised DA-2017/957 as incomplete and that one problem was the failure to retain a town planner. She also thought that the overall design would be better for having the driveway at the front (TT214-215).
5. In cross examination, Mr Lindsay agreed that sites like this one are not uncommon in the Illawarra (T217.30-31). He said if there was no alternative you could have access from the front but the rear provided an option which was much safer and more practical (T217.37-44). The Cardno Option A would involve reversing down a driveway that is curved. If a turning circle was included, it would mean significant excavation, (T218.4-7).
6. He agreed that option A is feasible and does reduce the amount of excavation, but it would have to subject to a favourable geotechnical testing (T219.19-20).
7. He thought Option B was similar to the original 2017 DA (T220.5-9). Because of the need to do the geotechnical testing, there is no guarantee you would get an acceptable batter (T220.21-29). This could in turn lead to the removal of more vegetation at the front (T220.42-46). He agreed that the Cardno design could be improved but the steepness of the driveway would not change in his view (T221.49-50) and the driveway on the street frontage is always going to be steep (T222.1-3).
8. Ms Harrison was cross examined. She agreed the letter from Council on 25 September 2017 was suggesting that the applicant should first give consideration to access via the adjacent site (T224.23, T224.33-34). She also said that there is extra engineering work to be done at the front. But she did not think it was unsafe (T.224.47-49). She also described the site as being "complex" (T224.49).
9. She conceded that she was not asked to consider any issues from an engineering perspective in relation to access over WIN's property (T225.9-11). Her focus was on the front (T224.23-24). Again, she indicated that she did not investigate the rear access option from a safety point of view (T226.31-32). She said in her view the option to the rear was feasible and would require further investigation (T226.39-42). She agreed that in terms of grade the rear option would be less complicated but there are other implications such as emergency vehicles (T227.44-45). She also agreed that notwithstanding Mr McBriarty's views the Council was of the view that the amount of excavation was not ideal (T230.38).
10. Ms Miller was also cross examined. She thought the rear of the site from the point of view of grade could potentially be a suitable option but you would need to check with an engineer (T231.34-37). She was aware that the Wollongong Council has already granted conditional approval dependent on Mrs Lopeman having vehicular access (T232.28). She was aware that would also involve the removal of vegetation (T232.33-34). She accepted it would involve the removal of at least 14 trees but was not aware of that detail (T232.39-40). She would not agree that Council would be unlikely to approve a DA that required works to be done beyond the side boundaries of the plaintiff's land, because that option had not been explored (T234.35). She thought the plaintiff should as result of the letter from Council of 25 September have engaged a town planner (T235.8-10).

Mr Curtis

1. Finally, I should mention the evidence of Mr Matthew Curtis. He is a valuer and he made an affidavit of 17 February 2020. He was tasked with valuing the reasonable compensation for the creation of the easement for the Right of Carriageway across the defendant's land. He does so at $10,000. He was not required for cross examination.

Consideration

1. The first question to be addressed is whether the parties had made a legally binding agreement to the effect that the defendant agreed to the terms of the relevant easement. In my opinion, they had not.
2. There are a number of reasons for that conclusion. The first is that the letter dated 14 May 2019 which was relied on by the plaintiff and signed by her and Mr Lancaster as CEO of WIN, only speaks about an "in-principal agreement" (sic). That phrase is twice used in the letter. The plaintiff says that phrase was considered in GR Securities and it was decided in that case that a binding agreement had been made. It is also said that the terms of the attached Deed (although, not all of them) are part of the agreement.
3. The term "in principle" can, obviously, depending on the context, give rise to a binding agreement. In GR Securities, however, it was immediately juxtaposed against the words "legally binding agreement"; a careful reading of McHugh JA's reasoning is of critical importance. The term can, however, also mean that the bare bones of a potentially binding agreement have been arrived at but that it is not intended to be binding as it is incomplete.
4. Here, the letter was attached to a draft Deed which had been the subject of considerable negotiations. The better view of the matter, objectively, in my view, is that the parties in all the circumstances, including their conduct, did not intend to create formal, legally binding relations until the Deed was executed and exchanged.
5. First, they were dealing with an interest in land and it is clear in my view that they saw the need for a formal Deed. A mere letter was not going to be sufficient. It was also a requirement that it be executed. The parties conducted themselves on that basis, but, more importantly, although called a Deed, it was really a hybrid, because compensation and other costs, that is consideration, were to be paid for the easement. But also importantly, the "Effective Date" of the Deed was to be the date that the counterparts were first exchanged (see cl.5).
6. In my view then, I consider that objectively the parties did not intend to be bound to each other at law unless and until the Deed was executed and exchanged. The Council gave Development Consent. However, that was subject to proof not of an agreement but of a registered easement (see Council letter of 30 September 2019, annexure Q, affidavit of the plaintiff, 29 June 2020).
7. In my view, the plaintiff fails on this part of her case. However, I should mention that, had I found a binding agreement to exist, I would not have found the plaintiff repudiated it by breaching the non-disparagement clause. In my view, the comments made by Mrs Lopeman to Ms Denison-Pender (summarised at [156]-[157]) were de minimis in the scheme of things and not conduct which the parties would have objectively intended to be covered by such a clause. The actual remarks made by Mrs Lopeman, relayed by Ms Denison-Pender in her evidence, did not rise as high as the hearsay version contained in Ms Dimitrievski's affidavit and the emails annexed to it. It is therefore not necessary for me to determine whether the non-disparagement clause formed part of the parties' agreement (see plaintiff's submissions summarised at [36]), nor whether it was an essential term (defendant's submissions summarised at [53]).
8. The next point is whether an estoppel arises such that the defendant cannot depart from its alleged consent to the easement. The plaintiff's formulation of the relevant representation in opening and closing submissions (e.g. that the defendant "had agreed to and/or would (and/or was obliged to) grant the [Right of Carriageway] to her") arguably could form the basis of a promissory estoppel or proprietary estoppel (the defendant would grant the easement) or common law estoppel (the defendant had agreed to grant the easement). However, in her supplementary submissions, the plaintiff eschewed any reliance on a representation by the defendant that a binding agreement had been reached. Nothing much turns on this, however, as I would not find that the defendant made any of the representations or promises asserted by the plaintiff, nor that the plaintiff assumed the defendant did. In my view, this aspect of the plaintiff's case also fails.
9. The plaintiff conceded that she at all times believed that there would be no agreement until the Deed was signed. In the light of that answer alone, it is difficult, if not impossible, for the plaintiff to rely on the conduct of the defendant in providing the letters and draft agreement to Council. The representation to Council was that the form of the easement was agreed to but a legally binding arrangement was subject to execution to the attached Deed and hence was the provision of the easement. There was no promise that the easement would be granted, only an indication by the defendant to the Council that an "in-principal (sic) agreement had been reached". To that extent, the defendant could not be estopped in the circumstances.
10. The plaintiffs' concessions in cross-examination, as well as her conduct in making an appointment to sign the Deed, and not regarding herself as bound until she had signed it, would also lead me to find that she did not rely on any representation or promise by the defendant that it had agreed to or would grant the easement.
11. Further, even had I been in favour of the plaintiff on estoppel, I would have had serious reservations about the relief sought. The plaintiff sought a declaration that the defendant is estopped from departing from the terms of the agreement reached between the parties, which were set out in the Vehicular Access Deed, and an order that the defendant perform its obligations pursuant to that agreement by granting the proposed easement. A claim for an easement is unlike a claim for damages or other like compensation, and while appropriate compensation is required to be paid (and was in fact agreed as $17,100 in this case), it is a claim for an interest in property which creates a blot on the title of the defendant's land (see, e.g. Shi v ABI-K Pty Ltd (2014) 87 NSWLR 568; [2014] NSWCA 293 at [98]). The plaintiff did not in this case seek reliance damages. In my view, consistent the discussion of the plurality in Sidhu, that remedy was arguably disproportionate to the damage suffered, namely $83,300 (which the plaintiff spent on a draftsman, the DA application, valuation, surveyor, engineering and arborist fees, and legal costs).
12. Finally, to the extent that the plaintiff's case relies on promissory estoppel (as opposed to proprietary estoppel), it is doubtful she would be able to obtain the sort of positive relief sought by her (see the discussion of the relevant authorities at [70]), although this was not raised by the parties.
13. The last issue involves the plaintiff's alternative claim for an easement under s 88K of the Conveyancing Act. In my view, such an easement is in all the circumstances reasonably necessary in accordance with the authorities.
14. In my view, the plaintiff has by her application in 2017, along with the negotiations with the defendant, taken all reasonable steps to secure an alternative. It is not contrary to the public interest and of course compensation has been agreed.
15. Again, the reasons are as follows. First, I do not consider the plaintiff failed to act reasonably in failing to persevere by re-applying for her DA to build at the front of the property. The Council in its 25 September 2017 letter gave as heavy a hint as was necessary to clearly convey its decided preference for the plaintiff to explore access via the rear of her property. A very important aspect of the matter was the gradient at the front of the property and the amount of excavation required by reason of the gradient. It is clearly not irrelevant that the Council, which had suggested exploration of the rear of the property, has approved the relevant 2019 DA that provides for access via the rear, subject to registration of the proposed easement.
16. All of the experts agreed the site is "complex". True, Ms Harrison and Ms Miller from Cardno devised two sophisticated alternatives to those of Mr Roser for front access to the property. However, it was conceded that their designs are "concept plans". More detailed designs would be required if those options were to be presented to Council for approval and they are subject to further geotechnical investigation. In other words, there is no guarantee their designs are feasible and would be approved. To that extent and notwithstanding the views of Ms Harrison and Ms Miller as to the potential feasibility of their two options, I am not satisfied, given the potential geotechnical problems, that any more positive outcome is likely.
17. Ms Harrison and Ms Miller were not asked to compare the relative safety and cost efficiency of access via the front and rear of the property, whereas Mr Lindsay was. This put Mr Lindsay in a better position to express an opinion and is why I accept and prefer his evidence. Mr Lindsay was of the view that the access via the proposed easement at the rear of the property was the safer and more practical option. He said the rear of the property is the most suitable for development and that there would likely be difficulties at the front because of the gradient and need for extensive excavation. That is why I regard the grant of the easement over the defendant's land to be reasonably necessary, especially because the authorities do not require absolute necessity.
18. Further, the proposed easement is in my view reasonably necessary for the effective use and development of the land for the construction of a residential dwelling, which is an economically rational use of the land and substantially preferable to the use or development of the land without the easement, which may cause it to be left undeveloped. Further, whilst it would have the effect of placing another "blot" on the title of the defendant's land, the proposed easement would not "sterilise the servient tenement" in the sense discussed in Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd, particularly given that it runs primarily over an existing easement.
19. I would therefore be disposed to grant the easement as identified in annexure A to the Summons (CB.7) pursuant to s 88K of the Conveyancing Act 1919 (NSW). In my view, the easement proposed in that document is appropriate and seems to reflect a consent position between the parties (it is the revised version as at 22 May 2019 which was devised following negotiations between Ms Dimitrievski, Mr Roser and the plaintiff). However, I would hear the parties further on that if required. I would also hear the parties further as to the appropriate orders to be made, having regard to s 88K(3) of the Conveyancing Act, and on the question of costs if those matters require debate.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 September 2020