Ronowska v Kus

Introduction 1The plaintiff is a 67-year-old widow. She was born in Poland and lived there until 2005. Her husband died in 1995. She has a son and a daughter. The defendant is the uncle of the plaintiff. He is now at least 90 years of age, suffering from dementia and unable to give evidence. His wife died a considerable time ago. The plaintiff's case is that at the defendant's request she gave up her life in Poland and came to live with the defendant in his home at Greystanes in Sydney. She says she did so because the defendant promised her that she could live in his house for the rest of her life in return for caring for him. The defendant's sons have now evicted her from the house and entered into a contract for the sale of the property. 2The case raises an issue about the nature and extent of relief to which a plaintiff is entitled in an equitable proprietary estoppel claim. In particular, it concerns the importance of making good an expectation by encouragement or representation and it raises a question as to whether the aim of this type of estoppel is to fulfil the plaintiff's expectations or to quantify her detrimental reliance and compensate her accordingly, or whether some intermediate objective is appropriate. See: Estoppel & The Protection of Expectations, Elizabeth Cooke [1997] 17 LS 258; The Remedial Discretion in Proprietary Estoppel, Simon Gardner (1999) 115 LQR 438. 3There is, I think, no controversy in New South Wales, as to the applicable general principles. They are embodied in the following statements by Allsop P in Delaforce v Simpson-Cook (2010) 78 NSWLR 483 at [3] - [5]: ...relief in such cases is not to be measured by weighing detriment too minutely in order that it be converted into some equivalent of cash or kind, as if one were measuring the consideration for a commercial bargain. Equity will look at all the relevant circumstances that touch upon the conscionability (or not) of resiling from the encouragement or representation previously made, including the nature and character of the detriment, how it can be cured, its proportionality to the terms and character of the encouragement or representation and the conformity with good conscience of keeping a party to any relevant representation or promise made, even if not contractual in character. Equity has always had a place in keeping parties to representations or promises." Proportionality of the claimed interest or remedy...should not, however, be transformed into a necessary constitutive element of a cause of action...To do so would elevate one consideration above others, and in particular above the importance of making good an expectation by encouragement or representation...The equity is a broader one based on the just and conscionable satisfaction in appropriate fashion of the equity arising from the expectation created in another by encouragement or representation. The importance of keeping a party to a representation or encouragement previously made is all the stronger where, as here, the encouragement or representation has been relied upon by a party to abandon a course of conduct that could possibly have led to a different outcome. 4In his judgment in Delaforce (supra), Allsop P was endeavouring to explain the reasoning of the High Court in Giumelli v Giumelli (1999) 196 CLR 101. In that decision Gleeson CJ, Gummow and Callinan JJ at [35] approved certain statements by McPherson J in Riches v Hogben [1985] 2 Qd R 292 including the following: ...what attracts the principle is not the promise itself but the expectation which it creates. ...it represents the precise converse of...the basis for enforcing the contract. It is not the existence of an unperformed promise that invites intervention of equity but the conduct of the plaintiff in acting upon the expectation to which it gives rise.