The plaintiff denies that there was any discussion of an expectation to keep the place properly maintained. The first defendant struck me as someone whose recollection was not as good as that of the plaintiff. I accept the plaintiff's denial of words about maintenance of the place being said.
6 During January 1996 the plaintiff and Nathan began looking for a home. They found a home at 24 Greenvale Road, Green Point which had four bedrooms, was opposite a park, was about four or five years old, and had a swimming pool. They inspected that house in February 1996, and told the first defendant and his wife about it.
7 In February 1996 the third defendant purchased that house for $215,000. The purchase price was made up of $45,000 which was paid from trust funds held by the third defendant, and $170,000 which the third defendant borrowed from the Commonwealth Bank of Australia on a 25-year loan. The interest was fixed for the first two years. The initial monthly repayments on that loan were $1,364.
8 In March 1996 the plaintiff gave up her Housing Commission home, and moved, with Nathan and her three children, into the home at Green Point. For the first twelve months she did not pay rent. From early 1997, by agreement with the first defendant, she paid rent at the rate of $50 per week.
Payments for Work Done at the Green Point House
9 The first defendant lived overseas from August 1998 until October 2000. After he returned from overseas, he reimbursed the plaintiff $1,000 for amounts she had spent on the garden of the property. The first and second defendants ordered, and paid for, the installation of down lights, repairs to the clothesline, and repaired doors to the TV room. They organised and paid for the installation of a new hot water system.
10 The plaintiff, for her part, carried out various items of work at the home. She caused the whole of the house to be painted inside. The painting was done by herself and various friends and family members, at a cost of about $500 for paint. Four bedrooms have been recently carpeted, at a cost of $800. After Christmas 2003 the home was tiled throughout at a cost of $4,000 (a cost covering both tiles and labour). The bathroom was renovated, at a cost of $1,000. As well, she has carried out various items of work in the garden. Though there was no specific cross-examination on this topic, in light of the first defendant's evidence that he paid her $1,000 for her work in the garden, the plaintiff has not proved that she did any work in, or expended any money in connection with, the garden which has not been paid for by the first defendant.
Payment of Rental
11 The rental remained at $50 per week until about May 2003, when the first defendant raised the rent to $65 per week. This occurred after the first and second defendants had visited the house, and been dissatisfied with some aspects of its maintenance. The first defendant told the plaintiff that $65 per week would barely cover the council rates and insurance. He said to her:
"I expect that from now on, you will pay for all maintenance and repairs, as that was our original offer. I am happy to not make money on the house while you are living here - but I don't think that it should cost me money to have you living here. I am very disappointed at the state that this house is in."
12 There has been a significant dispute about whether the plaintiff is up to date in paying rental. On the view which I take of the case, this dispute does not affect the outcome, but I make findings about it in case the Court of Appeal takes a different view to me.
13 For some years the plaintiff paid the rent by asking her mother to transfer money from the mother's bank account to the first defendant's bank account, and by the plaintiff reimbursing her mother. Part of the reason for adopting this procedure is that the plaintiff is visually impaired, and has difficulty dealing with ordinary bank forms. However, there have been three times when the plaintiff endeavoured unsuccessfully to set up a system for directly debiting her own credit union account with the rent payable. On each of those three occasions her attempt failed. The result was that, during a period from May to December 2001, during a period of several months commencing May 2003, and during another period of several months commencing August 2003, the rent was not paid on time.
14 The plaintiff's mother gave the following evidence. On 23 April 2003 the plaintiff's mother withdrew money from her own bank account, and gave $1,000 to the first defendant to pay what she understood were the then arrears. In January 2004 the first defendant claimed that $3,000 of arrears had built up. The plaintiff's mother telephoned the first defendant's accountant, Mr Bennetts, sent Mr Bennetts various deposit receipts which she had, and received a telephone call from Mr Bennetts in which he stated that he had studied the documents and that $1,840 was the amount owing. On 19 February 2004 the plaintiff's mother paid $1,840 into the first defendant's account.
15 The plaintiff's mother was not cross-examined on this evidence. There was nothing in the demeanour of the plaintiff's mother to cause me to doubt her word, and no inherent unlikelihood in the evidence she gave. Mr Bennetts was in Court on the day of the hearing, and no attempt was made to call him to contradict the evidence of the plaintiff's mother on this score. The first defendant accepted in cross-examination, that he did not have a precise recollection of what was paid, or when. He is a man who relies on his accountant, and gives his accountant authority to deal with debtors. In these circumstances I find that the payment of $1,840 cleared all arrears to the time the payment was made.
16 The plaintiff tendered the statements of her credit union account from 1 January 2004 to 3 November 2004. Those statements identified each payment to the first defendant by the notation "Tfr to Rb Sullivan CTB SA". The statements showed that a total of $2,430 had been transferred to the first defendant's account in this fashion up to 3 November 2004. As well, the deposit receipt was tendered for a payment of $105 made on 4 November 2004. That establishes that a total of $2,535 was paid up to 4 November 2004. I accept that plaintiff's evidence that she has paid $65 per week from 4 November 2004 to the time of the hearing, making a further $130. I accept that that is a payment of the amount which accrued due, at $65 per week, over the period from 5 February 2004 until the time of the hearing.
17 The first defendant's bank statements for the period 31 January 2004 to 29 October 2004 were tendered. The submission was made that not all payments coming out of the plaintiff's bank account had been received. I have checked the two sets of bank accounts, and there is no payment shown in the plaintiff's account as going to the defendant's account which is not also shown in the defendant's account as having been received from the plaintiff, during the period covered by the first defendant's bank account records which were tendered. The submission that there was any such discrepancy is an irresponsible one, which should not have been made.
18 In these circumstances I find that the plaintiff had no arrears of rental at the date of the hearing.
19 I record that the plaintiff proffered an undertaking that if I should find any rent was outstanding, she would pay it forthwith. In light of my finding, there is no occasion to accept that undertaking.
Legal Basis of the Plaintiff's Claim
20 The plaintiff's claim is based upon an equitable estoppel. She says that in reliance on the representations in the Christmas card, she acted to her detriment both by giving up her Housing Commission property, and also by moving into the Green Point property and spending money on improving it. The plaintiff submits that the interest in the property to which she is entitled is a personal right to stay in the property for as long as she wishes. The terms of that occupancy are that she should pay a minimum amount which is consistent with her financial position - Mr Wilson, for the plaintiff, suggested that perhaps $65 per week subject to CPI increases would be a proper way of quantifying that amount, or perhaps, instead, it could be quantified by imposing on her an obligation to pay rates, taxes, insurance and repairs.
Clarity of the Representation
21 It is well established that an estoppel of this type requires a representation which is sufficiently clear and unambiguous to give rise to the estoppel. As the Court of Appeal has held in Galaxidis v Galaxidis [2004] NSWCA 111 at [82] - [93] that does not mean that the representation must be clear and precise in all respects. Rather, what is needed is a representation which is of such a nature that it would have misled any reasonable person, and that the plaintiff was in fact misled by it. Tobias JA (with whom Giles and Hodgson JJA agreed on this matter) concluded, at [93]:
"… even if a representation is insufficiently precise to give rise to a contract (as in the present case), that fact does not necessarily disqualify the representation from founding a promissory estoppel. Much will depend upon the circumstances in which the representation is made and the context against which it is to be considered. In its context, the representation is sufficiently clear and unambiguous if it is reasonable for the representee to have interpreted the interpretation in a particular way being a meaning which it is clearly capable of bearing and upon which it is reasonable for the representee to rely. In these circumstances, it would be unconscionable for the representor to deny responsibility for the detriment that arises because of that reliance."
22 I have some doubt about whether the terms of the "Christmas present" offered by the Christmas card meet that test, when those terms included "certain basic conditions which I am sure you'll agree with", which were not articulated in any way. The plaintiff has not given evidence of her understanding of what the conditions of occupancy were to be, so I am not in a position to decide whether her understanding was one which the representation made by the Christmas card was capable of bearing, and on which it was reasonable for her to rely.
23 Notwithstanding these doubts, I shall assume, without deciding, that the representation was sufficiently precise to be able to give rise to an estoppel.
Position of the Third Defendant
24 Mr Harper SC, counsel for the defendants, pointed out that the Christmas card contemplated a house being purchased by the first and second defendants, whereas the house was in fact purchased by the third defendant. He pointed out that the third defendant was trustee of a discretionary trust, under which it had limited powers, and that there was no evidence that the third defendant had adopted the terms of the Christmas card. Rather, Mr Harper submitted, the third defendant had become the registered proprietor of the property, which was Real Property Act 1900 land, and held it free of any equity which might have existed between the plaintiff and the first and second defendants, arising from the Christmas card.
25 These are arguments of law, which the Court of Appeal will be in a position to resolve, should it be necessary for it to do so, without the need for any findings by me about disputed matters of fact. There is no dispute that it is the third defendant which is, and at all relevant times has been, the registered proprietor, that the third defendant provided the purchase price of the house, nor about the terms of the discretionary trust. I shall assume, without deciding, that the fact that the third defendant is completely under the control of the first and second defendant, and that the third defendant purchased the house so that the first and second defendant could carry through the plan outlined in the Christmas card, have the consequence that third defendant is bound by any equity which exists between the plaintiff on the one hand, and the first and second defendants on the other.
Reliance, Detriment and Unconscionability
26 There is uncertainty in the law at present concerning whether a plaintiff who invokes the law of proprietary estoppel must prove not only reliance on an encouraged assumption in circumstances where departure from the assumption would be unconscionable, but also that the reliance was detrimental, in order to be entitled to relief. In Galaxidis v Galaxidis [2001] NSWSC 1123 at [142] - [157] Austin J reviewed the cases which have resulted in that uncertainty. When Galaxidis went to the Court of Appeal (Galaxidis v Galaxidis [2004] NSWCA 111) the Court of Appeal did not resolve that uncertainty, though Tobias JA (with whom Giles and Hodgson JJA agreed on this point) said, at [118]:
"In my opinion, it is unnecessary finally to determine whether or not reliance to the representee's detriment is a requirement to be satisfied before equity will grant relief. In all probability it is, for equity generally only relieves the representee from that detriment. In other words, the relief equity will afford is only that which is necessary to avoid the detriment suffered as a consequence of the representee's reliance."