SIMMONS v SIMMONS BY HER TUTOR THE PROTECTIVE

Court of Appeal (NSW)|1994-03-24|Before: Windeyer J, Priestley JA, Gleeson CJ, Kirby P

SIMMONS v SIMMONS BY HER TUTOR THE PROTECTIVE COMMISSIONER OF NEW SOUTH WALES

GLEESON CJ, KIRBY P and PRIESTLEY JA 24 March 1994, 14 November 1994 [1994] NSWCA 368

ESTOPPEL - equitable estoppel - departure from assumption induced by party would be unconscionable - held: mother should be required to prevent detriment by giving effect to a promise acted upon by her son to his detriment.

GIFT - necessary intention - absence of requirement of action on part of donee - if

action required claim based in contract or estoppel, not gift. Corin v Patton (1990) 169 CLR 540 applied.

ESTOPPEL - equitable estoppel - agreement between mother and son that son will become joint tenant of properties held by leases under the Western Lands Act - son agrees to continue as companion and joint tenant of long-standing family interest in grazing property - son cares for mother and participates in grazing business - management of mother's estate later taken over by tutor pursuant to Protected Estates Act - all steps necessary to perfect transfer taken by mother - registration delayed by litigation by other family members - management of mother's estate committed to Protective Commissioner

Protective Commissioner opposes claim by son to have his interest as joint tenant in leases registered by transfer - proceedings by son in Supreme Court dismissed by Windeyer J - on appeal to the Court of Appeal - held: Priestley JA; Gleeson CJ and Kirby P concurring:

(1) The Court was required to proceed on the footing of Windeyer J's finding that the mother's intention was contractual and not donative;

(2) Accordingly, any entitlement of the son was limited to any entitlements based on contract or estoppel;

(4) Departure from the assumption encouraged by the mother in the son that a transfer would be effected, was unconscionable.

Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; Silovi Pty Ltd v Barbaro (1988) 13 NSWLR 466 (CA); Austotel Pty Ltd v Franklins Food Serve Pty Ltd (1989) 16 NSWLR 582 (CA) applied;

(5) The only way to prevent detriment to the son was to enforce the mother's promise;

(6) The Conveyancing Act 1919, s54A, even if not complied with, was inapplicable to the satisfaction of the son's equity.

Waltons Stores (Interstate) Ltd v Maher (above) applied;

(7) In the circumstances of the case, and in light of the finding of estoppel, performance of the obligations by the son would not involve the Court in inconvenient supervision of a kind sufficient to deny the son relief.

Maiden v Maiden (1989) 7 CLR 727; JC Williamson Limited v Lukey and Mulholland (1931) 45 CLR 282 referred to;

GIFT - requirements of - real property - necessity to establish intention to transfer interest - when gift complete and effective in equity - nature of gift - held: The law does not require an g to be done by a donee except to receive the given property. If something is required of the proposed transferee, that person's entitlements, if any, rest upon contract or estoppel, not gift. Corin v Patton (1990) 169 CLR 540 referred to.

Conveyancing Act 1919, s54A. Protected Estates Act. Western Lands Act.

(a) DECLARE that the appellant has, since the execution of the transfer of Folio Identifiers 2163/764276, 2688/764769, 6133/768981, 6490/760647 and 3989/766462 by Agnes Mary Simmons and himself, dated 29 August 1989, been entitled to have carried through the registration of that transfer in accordance with the Real Property Act subject to any ministerial consent necessary in accordance with the Western Lands Act 1901;

(b) ORDER that the Protective Commissioner of New South Wales to whose management the estate of Agnes Mary Simmons has been committed do all things and take all steps necessary to have the title to the property known as "Goonoo" registered in the names of Agnes Mary Simmons and the appellant, Paul Ernest Simmons, as joint tenants;

(d) ORDER that the respondent pay the appellant's costs of the appeal but have, in respect thereof, if otherwise so qualified, a certificate under the Suitors' Fund Act 1951;

(e) liberty to any party to apply concerning the form of these orders; such liberty to be exercisable only within twenty-eight days of the handing down of this judgment.

Gleeson CJ I have had the benefit of reading in draft form, the reasons for judgment of Priestley JA.

I agree with the orders proposed by his Honour, and with his reasons for those orders.

Priestley JA In form, this appeal concerns a dispute between a son and his mother about the mother's grazing property. In fact, however, it is as clear as evidence can make it that at least from 1988, when the mother although eighty-nine was a fully capable person, and until an order was made for the management of her estate under the Protected Estates Act in July 1992, the mother and the son were in complete agreement that the property should be owned by them as joint tenants. In the litigation which has now reached the appeal stage the mother's case has been conducted by her Tutor, the Protective Commissioner, who has put the son to proof of the facts which would show that the dealings between his mother and himself had the legal result of his being entitled to become registered as a joint tenant of the property, title to which was held by way of four Western Lands leases registered under the Real Property Act. The property's name was "Goonoo".

The matters which need to be dealt with in this appeal will be easier to understand if I first outline the broader background of the case.

The son is the appellant in this court. He is one of eleven children. Until he went to boarding school he lived with his family on Goonoo, near Brewarrina. His father died in 1949, when his mother was about fifty. She continued to live on the property. From some date which is not clear on the evidence a son, Mr John Simmons, took on the management of Goonoo's grazing business. He lived with his wife, Mrs Dorothy Simmons, in a separate house on Goonoo called "Letona".

The appellant became a Catholic priest. In about 1970 personal problems began to manifest themselves in a way which led his Bishop, in 1972, to withdraw some of his faculties and caused him to go into what was, in practical terms, partial retirement. He returned to live with his mother at Goonoo. He has

\GAMMONS v SIMMONS BY HER TUTOR THE PROTECTIVE COMMISSIONER OF NEW SOUTH WALES (Priestley JA)

continued to live there ever since. For the twenty years from 1972 he saw a major part of his role as being carer for his mother. This was so particularly from 1977 onwards. In that year Mr John Simmons was killed in a car accident. His widow, Mrs Dorothy Simmons continued to live in Letona. The appellant then helped another brother, Mr Michael Simmons, who lived elsewhere in the district, in the management of the grazing business.

In July 1987 there was a conversation between the appellant and Mrs Simmons which is one of the important matters in the appeal and which will be set out later. On 23 September 1987 Mrs Simmons as lessor granted to Mrs Dorothy Simmons as lessee a lease of Goonoo for a term of four years commencing on 23 September 1987, but excluding the house in which the mother and the appellant lived and one hectare of land surrounding it. The annual rent was $30,000. On 6 April 1988 the appellant and Mrs Simmons signed a partnership agreement for the carrying on of a partnership as farmers and graziers at Goonoo. From that time onwards there was a series of steps taken by Mrs Simmons, together, where necessary, with the appellant, for transfering the title of Goonoo into their names as joint tenants. Further detail of this will be given later.

In September 1988 Mrs Dorothy Simmons lodged a caveat on the title of Goonoo claiming an interest in the land as lessee pursuant to the lease of 22 September 1987.

On 23 August 1990 Mrs Simmons signed a notice to quit addressed to Mrs Dorothy Simmons pursuant to the Agricultural Holdings Act requiring vacation of the leasehold on 23 September 1991. This notice to quit was duly served.

By letter of 18 July 1991, Mr Cuddy, (who had formerly, when a member of Messrs Duncan Barron and Co, taken instructions from Mrs Simmons and the appellant, and was now a member of Messrs Blessington Judd) wrote to solicitors for Mrs Dorothy Simmons listing a number of issues between the two Mrs Simmons and requesting immediate removal of Mrs Dorothy Simmons's 1988 caveat from the title. From a later letter by Mr Cuddy to the Manager of the State Bank of New South Wales, dated 21 October 199 1, it appears that a summons for the removal of the caveat had by then been filed and served and that the caveat had been removed. The summons had been dealt with by Master Windeyer on 18 October 1991. However Mrs Dorothy Simmons had then lodged a further caveat on the title. The interest claimed in this caveat was confined to Letona. An application was made to the Land Titles Office on 18 October 1991 for the second caveat to lapse, no order to the contrary was obtained by Mrs Dorothy Simmons, and it lapsed. A third caveat was lodged on the title on 12 November 1991 by four of Mrs Simmons's daughters, asserting an equitable interest based on promises and representations that in return for expending time, effort, labour and money on Goonoo, it would be held to be available for distribution equally to Mrs Simmons's children after her death. This caveat also lapsed.

Following the lapsing of the third caveat the position was that there were no caveats on the title to Goonoo and no legal proceedings on foot concerning Goonoo. This left the way clear for the Registrar General to attend to the completion of the formalities concerning a transfer of the title of Goonoo from Mrs Simmons to herself and the appellant as joint tenants. Some further detail concerning this, which is one of the important aspects of the appeal, will be set out later. The interval of tide freedom was however short as Mrs Dorothy Simmons filed a statement of claim in the Equity Division of the Supreme Court early in 1992, naming Mrs Simmons as first defendant and the appellant as second defendant. This does not appear in the appeal papers because it was later

compromised with the first defendant and dropped against the appellant; presumably it asserted a claim to Letona. A copy of this statement of claim was served on the Western Lands Commissioner, who had before him at that time a request from Mrs Simmons for the Minister to consent (for a second time) to a transfer to herself and the appellant as joint tenants, a consent thought necessary for the registration of the transfer. The Commissioner notified Mr Cuddy and Mrs Simmons that until the equity proceedings had been heard and the Commission was advised formally of the court's judgment, he could take no action concerning the obtaining of the Minister's consent.

From material in the appeal papers it appears that from about the time of the termination of Mrs Dorothy Simmons's lease in September 1991, other members of the family had been in touch with the State Bank, as a result of which it had refused to allow any further operations on the Goonoo overdraft account. It also appears that members of the family had made representations to the Western Lands Commissioner not to consent to the transfer from Mrs Simmons to herself and the appellant.

The last of a number of letters in Mrs Simmons's handwriting reproduced in the appeal book was dated 4 February 1992 and was addressed to Mr Pearson, the Western Lands Commissioner. Like her earlier letters, the handwriting shows the age of the writer, but is almost completely (even in a poor photostat) legible and intelligible. There is no way of knowing whether she had any assistance in the writing of the letter, but with the exception of one line in the address, the handwriting is undoubtedly hers. In transcribing the letter, I have made some minor corrections to it. It said: "Thank you for your letter dated 29th Jan and receipt for leases. I am saddened by news of the representation of my son Mick Simmons and it breaks my heart as I have been so good to him and all my family. I am asking Fr Paul to be joint tenant in gratitude for over twenty-five years of quality care for me and 'Goonoo'. He alone has stood by me as you know. Please expedite the representations and make sure I get a copy of them in detail so as Ican go on living as a respectable Grazier and Mother. We need money and need Fr Paul's name on Deeds. I am getting very frail and going blind with 'Glaucoma' and deeply wish to live unhindered and without disturbance on my beloved "Goonoo'. I remain, Yours sincerely, AM Simmons"

The evidence about Mrs Simmons's whereabouts and health after this letter is not very clear from the materials in the appeal papers. It was not necessary to explore it to determine the issues which eventually became those which the court had to decide. From an account appearing in a report of a doctor upon the appellant's health dated 1 April 1993 it seems that Mrs Simmons and the appellant continued to live at Goonoo during 1992 and then moved from country town to country town for a short period. Mrs Simmons was admitted to a nursing home at Canowindra in June 1993. Her health had by this time become much worse.

In the meantime the pleadings in the proceedings begun by Mrs Dorothy Simmons early in 1992 had been going forward. The only pleadings reproduced in the appeal papers are those in the final amended form they took when the hearing began before Windeyer J on 29 July 1993, so it is impossible to be precise about what had happened between that date and the time when the original statement of claim was first filed. However, it seems clear enough that Mrs Dorothy Simmons's proceedings had been brought against Mrs Simmons

\AMMONS v SIMMONS BY HER TUTOR THE PROTECTIVE COMMISSIONER OF NEW SOUTH WALES (Priestley JA)

and the appellant. The appellant filed a cross claim against his mother, asserting the interest as joint tenant in Goonoo which became the sole matter litigated in the proceedings.

A circumstance for which no explanation appears in the available materials is that the order for the management of Mrs Simmons's estate pursuant to the Protected Estates Act was made on 21 July 1992 but does not appear to have come to the notice of the appellant s solicitors (and presumably the appellant) until very shortly before the proceedings came on for trial before Windeyer J on 27 July 1993. In particular, the available materials do not reveal at whose instigation the order was obtained or the nature of any problems Mrs Simmons may have been having at the time it was obtained. It was not until the appellant's solicitors received a copy of the Order on 21 July 1993 that they saw the Order.

When the hearing commenced on 29 July 1993, counsel for Mrs Simmons handed up the necessary documentation under Pt63 of the Supreme Court Rules to enable the proceedings to go forward with the Protective Commissioner as Mrs Simmons's Tutor for the proceedings. Leave was then given for amended pleadings to be filed. There was then some discussion of difficulties which remained in the case, from the point of view of having the pleadings accurately reflect the issues to be decided and the relief sought by the appellant. It seems to have been everybody's object to get on with the hearing of the case at the same time as doing what could be done in the time available to get the pleadings in order.

On this basis the case went forward between the appellant and Mrs Simmons, the only matter dealt with in the proceedings being the appellant's claim to have an interest as joint tenant with his mother in Goonoo. Mrs Simmons by her Tutor put the appellant to proof of his case and relied on s54A of the Conveyancing Act.

This general account of the circumstances leading up to the trial is imperfect in two ways; I have not attempted to summarise everything which appears in the appeal papers and the appeal papers themselves by no means reveal the whole available story. What I have outlined however is I hope sufficient background to make intelligible the more detailed account of the facts directly relevant to the issue before the court which I now give.

The appellant put his case in a number of ways, based on contract, estoppel and trust. All three took their starting point from a conversation which the appellant said took place in July 1987 with his mother, in the following terms: "MRS SIMMONS: Paul, as you have been the son who has lived with me at 'Goonoo' for over 25 years now, and cared for me so selflessly, and been my companion, I wish to transfer a half ownership of "Goonoo' to you, so that we will own the property jointly together. I am going to make arrangements with my Solicitor to put that to effect that Transfer, and we can also then enter into a partnership arrangement and you can be the official Manager of '"Goonoo', and I will feel a lot more happy and secure with that new arrangement. I have valued your support and care over the years, and it is the least I can do to show my appreciation of your devotion to my care that you are given some security and ownership of "Goonoo' in that way, and if I transfer a half share of the property to you, in return, you can enter into the Partnership Agreement with me, and carry out those Manager's duties and any profits we make from the grazing and farming partnership, can then officially be shared equally between us. THE APPELLANT: Well, it is entirely up to you, but if you believe that is the best arrangement, I will certainly enter into a Partnership Agreement with you, and I will certainly continue to live and work on the property as its Manager, and I would then feel

a lot more secure and have an official role in administering the operation of the farm and we can then be a lot more productive in the farming operation. I will agree to work the partnership and to run the farm if you will make that transfer, and of course, I will continue to live in 'Goonoo' and care for you. MRS SIMMONS: Well, I am going to instruct my Solicitor to transfer the half ownership to you, now that you agreed we have been operating the farm in a partnership, and that you will continue to live there and care for me and administer the f g operation on our joint behalf THE APPELLANT: Yes, I agree to do that."

Shortly after this conversation Mrs Simmons granted the four year lease earlier mentioned to Mrs Dorothy Simmons. No explanation was given or sought in the proceedings as to why she would do this so soon after the arrangement which the appellant testified she had made with him.

In April 1988 a partnership agreement was entered into between Mrs Simmons and the appellant. The new name of the partnership was to be A.M. and PE. Simmons, the partners were to be equal partners, and the partnership was to carry on business at Goonoo. It was to commence on | April 1988 and to continue until determined by three months notice in writing. CL4 provided that the capital of the firm was to be subscribed by the partners in equal shares. The assets were to be owned by the partners in the same proportions. CL12 provided that subject to any agreement to the contrary, in the event of the partnership being dissolved the partnership assets were to be sold, except in the case of death of one of the partners, and then, after payment of liabilities, the balance was to be divided between the partners in the proportions to which they were entitled to the capital of the partnership.

It was assumed by the solicitors acting for Mrs Simmons and the appellant that s18G of the Western Lands Act 1901 meant that transfer of the leases comprising the title to Goonoo could not be effected unless the consent of the Minister had been first obtained. On 15 June 1989 Mrs Simmons signed the prescribed application form for consent. Windeyer J found that although the description of the land in the form was not quite correct it was clear it was intended to comprise all the titles. As there was no written contract the part of the form requiring a certified copy of the contract for the transfer was filled in by saying "no contract entered" which Windeyer J took to mean no written contract. To questions on the form asking what was the money consideration and what was any other consideration besides moneys, Mrs Simmons answered "none" and "transfer of one half to my son in consideration of his care for me". The appellant filled in a declaration required by the form, saying that his occupation was "Priest" and "partner with transferor in grazing partnership" and answered the same two questions about consideration by saying "no cash consideration" and "gift from my mother who is now ninety years of age and dependent on me".

Mrs Simmons's solicitor and address were shown on the form of application for consent as Messrs Duncan Barron and Co of Sydney. The appellant's solicitor and address were also, and separately, shown as Messrs Duncan Barron and Co of Sydney. Those solicitors evidently forwarded the application to the Western Lands Commission for the necessary consent as a letter dated 27 September 1989 from the Commission to that firm referred to an application dated 25 July 1989 and advised that consent had been given to the transfer of the leases from Mrs Simmons to herself and the appellant as joint tenants subject to satisfactory arrangements being made regarding a mortgage to the State Bank of New South Wales.

\GAMMONS v SIMMONS BY HER TUTOR THE PROTECTIVE COMMISSIONER OF NEW SOUTH WALES (Priestley JA)

On one reading of s18G, if the transfer were not registered within six months of the date of consent, the consent would lapse, the transfer could not be effected, and a further consent would be required.

A transfer of the leases bearing date 29 August 1989 was executed by both Mrs Simmons and the appellant. It was stamped with $7,852.50 in Stamp Duty on 27 October 1989. The operative words in it were that Mrs Simmons as transferor "transfers an estate in fee simple" to the appellant and herself "as joint tenants". No consideration was stated.

After receipt of the consent letter of 27 September 1989 from the Commission, Messrs Duncan Barron and Co wrote to the West Dubbo branch of the State Bank which replied by letter dated 24 October 1989, referring to a letter from the solicitors dated 10 October 1989 and confirming the Bank had given approval for Mrs Simmons to transfer a half share in lands, held as security, to the appellant and stipulating that the Bank's consent was subject to the mortgage security.

There were five certificates of title for the four Western Land leases comprising Goonoo. One of the certificates was missing. An application dated 21 December 1989 was made for a new one. In a statutory declaration lodged with the application, Mrs Simmons identified "Goonoo" by reference to the numbers of the four Western Land leases and then said, "I am also the vendor of this property to myself and my son [the appellant] in equal shares as joint tenants".

The appellant said in his affidavit of 1 December 1992 that he believed a new certificate of title was issued. This would seem to be so because the transfer dated 29 August 1989 was eventually given effect by the issue of new certificates of title to Mrs Simmons and the appellant on 17 December 1991, which would not have happened without the production to the Registrar General of all certificates of title. The delay in the issue of the new certificate and the registration of the transfer was, until September 1991, due to the Registrar General's refusing to take any action so long as the caveat lodged by Mrs Dorothy Simmons in 1988 remained on the title, and for some months after September 199 1, due to the following caveats earlier referred to.

A letter in Mrs Simmons's hand dated 11 November 1991 went to the Western Lands Commissioner from Goonoo which said, omitting formal parts: "TI write to request your Consent to formally putting into joint tenancy with my Son Paul Ernest Simmons with whom I am in Partnership. I appreciate that your Consent was previously given but due to legalities time has passed (lapsed). I consider myself one of your oldest Graziers. Stamp duty has already been paid to the Land Title Office, and I possess Bank Consent. My solicitor is Blessington Judd, 35 York Street Sydney."

The letter is in shaky handwriting, consistent with Mrs Simmons's age, but legible. A draft may have been written for her to copy. Most of the details, with the exception of the payee of the stamp duty, are correct. The reference to Mrs Simmons as one of the Commissioner's oldest graziers adds a homespun touch. I do not understand any challenge to have been made to the genuineness of this letter.

Once all the caveats had been removed from the title, the Registrar General acted on the materials before him. Five new certificates of title were issued for the four Western Land leases showing Mrs Simmons and the appellant as the registered proprietors as joint tenants. These certificates of title were dated 17 December 1991. It would seem that at that date the Registrar General either did not notice, or did not consider, that further Ministerial consent was required.

However, shortly afterwards he adopted a different position. By a letter dated 10 January 1992, the Land Titles Office notified Messrs Blessington Judd that the register of the transfer had not been effected within the period prescribed by s18G(1B), that it was not valid, and that the Registrar General was proposing to deregister the transfer.

A photostat of the transfer in evidence showed an entry on it by the Registrar General saying it was deregistered on 18 February 1992.

At the trial before Windeyer J the appellant gave oral evidence and was cross-examined. The Protective Commissioner in his role as Mrs Simmons's Tutor called Mrs Dorothy Simmons and she also was cross-examined.

Windeyer J accepted in general the appellant s evidence of the conversation of July 1987 with his mother which has been set out above. He said he was satisfied that there was an agreement under which Mrs Simmons agreed to enter into partnership with the appellant and to transfer the lands to herself and her son as joint tenants on the basis that the appellant would agree to manage the farm and to look after Mrs Simmons and care for her.

Windeyer J held that the appellant had not overcome the barrier of s54A; there was no sufficient memorandum in writing of the terms of the agreement he had found. He further held that no part performance of the agreement was established of the kind necessary to take the matter out of the operation of s54A.

To the claim that it had been the common intention of the parties that the land should be held on trust by Mrs Simmons for herself and the appellant as joint tenants and that it would be unconscionable to allow her to depart from that common intention, Windeyer J answered that since there was no evidence that the appellant suffered any detriment in consequence of his mother's statements of intention or had done anything in reliance on them in distinction to what he would have done in any event without her having made them, there was no basis for the claim.

Similarly, Windeyer J thought that the appellant could not succeed on a claim that Mrs Simmons was estopped from denying or failing to carry into effect so much of what she had represented or promised to the appellant in the July 1987 conversation because there was again no evidence of detriment consequent upon the representations or promises and the appellant had done nothing after then that he would not have done in any event without those representations and promises having been made.

In the appeal counsel for the appellant made submissions directed against each of these findings of his Honour's. Ironically, had it not been for his Honour's factual finding in favour of the appellant, accepting his account of the agreement in 1987, I tend to think it would have been proper to uphold the appeal on one version of the "common intention" claim. This was raised by paral 4 to para24 of the appellant's amended cross claim. Put shortly, these paragraphs alleged that what Mrs Simmons had done was a series of acts which amounted to the perfection of a gift of a joint interest in the land to her son as a result of which she held the land in trust for herself and him as joint tenants in equal shares until the legal title was transfered into and registered in their joint names.

If the factual finding of the agreement could be put to one side, this claim would seem to me to be a strong one. Mrs Simmons was clearly intending to transfer a joint interest in the land to her son. In the area of the law dealing with donative promises, or expressed intentions, in regard to land under the Real Property Act it has been authoritatively said, in Corin v Patton (1990) 169 CLR 540, that: "... the principle is that, if an intending donor of property has done

\AMMONS v SIMMONS BY HER TUTOR THE PROTECTIVE COMMISSIONER OF NEW SOUTH WALES (Priestley JA)

everything which it is necessary for him to have done to effect a transfer of legal title, then equity will recognise the gift. So long as the donee has been equipped to achieve the transfer of legal ownership, the gift is complete in equity. 'Necessary' used in this sense means necessary to effect a transfer. From the viewpoint of the intending donor, the question is whether what he has done is sufficient to enable the legal transfer to be effected without further action on his part." (at 559, per Mason CJ and McHugh J.) In the same case Brennan J said: "Delivery of the memorandum of transfer with the requisite intent by the donor to the intended donee, coupled with the donee's ability to produce or to require the production of the certificate of title, puts the intended gift beyond recall by the donor and enables the donee to obtain title to the estate or interest transfered." (at 569) Similarly, Deane J said that a gift of Real Property Act land under an unregistered memorandum of transfer will be complete and effective in equity when "the donor has done all that is necessary to place the vesting of the legal title within the control of the donee and beyond the recall or intervention of the donor. Once that stage is reached... the donor is bound in conscience to hold the property as trustee for the donee pending the vesting of the legal title." (at 582) In the present case these requirements were, I think, fulfilled. Mrs Simmons had, by 24 October 1989, when the State Bank consented to the transfer, done everything necessary for the transfer to be effected by registration. She had instructed Mr Cuddy, who was also acting for the appellant to carry the registration through, and he, with her authority, and as solicitor for the appellant was in a position to obtain registration: all necessary documents had been prepared and executed and the mortgagee would produce the certificates of title to the Registrar General as required by Mrs Simmons. At that stage, according to Corin v Patton, the gift was complete in equity.

Does the fact (as found by Windeyer J) that Mrs Simmons's intention was contractual and not donative, make a difference? As found, she did not intend simply to give the appellant a joint interest with her in Goonoo; her intention was to exchange it for promises by him to become her partner, manage the grazing business and continue to care for her. It seems to me inapt in these circumstances to apply to the situation the law that relates to donative promises. That law does not require anything of the donee (except to receive). In the present case something was required of the proposed transferee. This seems to me necessarily to shift the enquiry into the area of the law of contract, or, if that is not met, as Windeyer J held it was not into that of estoppel.

Looking first at the question of estoppel, the only reason Windeyer J gave for rejecting this as a ground for relief was that the appellant had done nothing, following the representations or promises of his mother in July 1987, either to his detriment or in reliance on those promises or representations. With respect to his Honour, I have come to a different view. The giving of a promise, which, it follows from his Honour's finding, was binding on the appellant at least conditionally, must itself be regarded as a detriment to him. Further, I think it is proper to infer that his entry into the partnership agreement and thus the incurring of obligations under that document, were in reliance on what his mother had said. Further again, in the carrying out of the partnership agreement, the appellant not only bound himself in law to be liable, along with his mother, for the debts and liabilities incurred by them in running a grazing business on Goonoo, it also appears from the evidence that in the period after the lease to Mrs Dorothy Simmons expired in September 1991, there was indebtedness incurred on a partnership account which was in overdraft with the State Bank: in

cross-examination, the appellant was shown a letter dated 27 April 1993 showing that the A.M. and P. Simmons account was $25,000 in overdraft, and he said the figures were correct (see 175, 176 of the appeal papers). He also agreed that Brewarrina Shire Council rates had been paid out of the partnership account "in years gone by" (179 appeal papers). These matters all seem to be both detriment and reliance consequent upon his mother's promises and representations of July 1987.

The law concerning estoppel applicable to cases of the present kind was given detailed consideration by the High Court in Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387. In Silovi Pty Ltd v Barbaro (1988) 13 NSWLR 466, this court held that it was possible to obtain from the separate reasons of the majority in that case a number of propositions. The one relevant for present purposes was proposition (5). In the subsequent decision of Austotel Pty Ltd v Franklins SelfServe Pty Ltd (1989) 16 NSWLR 582, it was expanded (at 610). Although this expansion was proposed (at 610) in a dissenting judgment, Kirby P of the majority agreed with it (at 585). As expanded, proposition (5) is as follows:

"For equitable estoppel to operate there must be the creation or encouragement by the defendant in the plaintiff of an assumption that a contract will come into existence or a promise be performed or an interest granted to the plaintiff by the defendant, and reliance on that by the plaintiff, in circumstances where departure from the assumption by the defendant would be unconscionable."

The requirements of proposition (5) all seem to me to be satisfied in the present case; on the materials before the court there can be little doubt that the appellant relied on the promise made to him by his mother. In fact, apart from the agreement made in the 1987 conversation, later actions by Mrs Simmons also constituted promises and representations. The making of the partnership agreement, with its stipulation that the capital would be contributed by the partners in equal shares and the evident intention of the partners that Goonoo would be part of the partnership capital seems to me to involve a representation by Mrs Simmons that Goonoo was to be jointly held; an unequivocally clear representation is her later completion of the application for ministerial consent (I infer what she said in that application must have been known to the appellant); similarly again, with the transfer executed by both Mrs Simmons and the appellant.

A further matter that needs to be considered in regard to the estoppel is what remedy flows from a finding that the requirements for an equitable estoppel were satisfied. In Silovi, the last proposition for which Waltons Stores was held to be authority was proposition (7), which was to the effect that the remedy granted to satisfy the equity resulting from the estoppel will be what is necessary to prevent detriment resulting from the unconscionable conduct (of not keeping the promise). Although in some cases the equity may be satisfied by the defendant being required to do something less than satisfy the expectations of the plaintiff, in the present case it seems to me that the only way in which the equity can be satisfied will be by enforcing Mrs Simmons's promise.

A further matter demonstrated by Waltons Stores is that in circumstances such as those in the present case s54A does not stand in the way of satisfying the equity, even though that involves, in effect the enforcement of the promise. As Brennan J said: "Equitable estoppel does not create a contract to which s54A might apply,... The action to enforce an equity created by estoppel is not brought 'upon any contract, for the equity arises out of the circumstances. This is not to

\AMMONS v SIMMONS BY HER TUTOR THE PROTECTIVE COMMISSIONER OF NEW SOUTH WALES (Priestley JA)

say that there is an equity which precludes the application of the statute. It is to say that the statute has no application to the equity." (164 CLR at 433) Because of my view about the operation of equitable estoppel in the circumstances of this case, it is unnecessary for me to consider submissions made for the appellant to the effect that in any event the requirements of s54A had been satisfied.

Windeyer J had made a final finding that even had he thought the agreement between Mrs Simmons and the appellant was a lawfully enforceable one he would not have granted specific performance of it because it would not have been possible for the court to supervise the performance by the appellant of the obligations cast upon him by the agreement; he relied on JC Williamson Ltd v Lukey and Mulholland (1931) 45 CLR 282 and Richardson v Lenehan (1930) 30 SR 457.

On the basis of estoppel on which I think this case should be decided I do not think the rule referred to by Windeyer J is strictly applicable. In any event the reason behind the rule, that the court is reluctant to grant specific performance of promises involving inconvenient supervision by the court, is not invoked by the circumstances of the present case.

On my understanding of the facts, by the time of the trial before Windeyer J, the appellant had substantially done what it was that he had told his mother he would do. His entry into the partnership agreement bound the appellant, in substance, to do in regard to Goonoo's grazing business what he had told his mother he would do. There seems to be no doubt that he had been caring for his mother, at least until the time she was placed in the nursing home, and the evidence concerning her health was very strong that she would have to remain in that home, or one like it for the rest of her life.

Windeyer J made one finding of fact to the effect that the appellant had not properly cared for Goonoo in a period preceding the hearing, but the finding to my mind amounts to saying that the appellant was carrying out that part of his undertaking concerning Goonoo badly, not that he was not carrying it out at all. It thus seems to me that by the time the case came before Windeyer J there was no question that it might be necessary for the court to be involved in any supervision of the appellant's activities.

These considerations take the present case out of the area of the cases relied on by Windeyer J, to which I would add Maiden v Maiden (1909) 7 CLR 727 as one having some factual resemblance to the present case; the differences in the facts however show why the rule was applied in Maiden and why it has no application here.

I am therefore of the opinion that it would be appropriate for the court to declare that the appellant has, since the execution of the transfer in 1989 been entitled to have the procedures necessary for registration of that transfer carried through (with the result that he will become a registered proprietor of Goonoo as joint tenant with Mrs Simmons). As the matter has been argued on the basis that a further ministerial consent is required before the transfer can be registered, the declaration should therefore be made subject to the obtaining of ministerial consent. The final order asked for by the appellant in his cross-claim seems to me to be appropriate, namely that Mrs Simmons should do all things necessary to and take all steps necessary to have the title to Goonoo transfered and registered in the names of Mrs Simmons and the appellant as joint tenants in equal shares. The appellant should have his costs of the appeal.

I would therefore propose that orders be made as set out below. O.3(e) is proposed in case there is any difficulty of a technical kind, upon which any party wishes to be heard, in the form of the orders.

Appeal allowed.
Judgment and orders below set aside.
In lieu thereof:

(d) ORDER that the respondent pay the appellant s costs of the appeal but have, in respect thereof, if otherwise so qualified, a certificate under the Suitors' Fund Act 1951;

(e) liberty to any party to apply concerning the form of these orders; such liberty to be exercisable only within twenty-eight days of the handing down of this judgment.

Solicitors for the appellant: Boyle Peacock and Conti Counsel for the respondent: JB Whittle

Solicitors for the respondent: Connery and Partners

At a glance

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Judgment (98 paragraphs)

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Cases Cited (8)

Cited By (1)