Trentelman v The Owners - Strata Plan No 76700

l (Vic) Pty Ltd (2016) 260 CLR 1; [2016] HCA 26 Delaforce v Simpson-Cook (2010) 78 NSWLR 483; [2010] NSWCA 84 DHJPM Pty Ltd v Blackthorn Resources Ltd (2011) 83 NSWLR 728; [2011] NSWCA 348 Dillwyn v Llewelyn (1862) 4 De GF & J 517 Doueihi v Construction Technologies Australia Pty Ltd (2016) 92 NSWLR 247; [2016] NSWCA 105 EB 9 & 10 Pty Ltd v The Owners Strata Plan 934 (2018) 98 NSWLR 889; [2018] NSWCA 288 Evans v Evans [2011] NSWCA 92 Flinn v Flinn [1999] 3 VR 712; [1999] VSCA 109 Gallagher v Rainbow (1994) 179 CLR 624; [1994] HCA 24 Giumelli v Giumelli (1999) 196 CLR 101; [1999] HCA 10 Gould v Vaggelas (1985) 157 CLR 215; [1985] HCA 75 Greater Dandenong City Council v Australian Municipal, Clerical and Services Union (2001) 112 FCR 232; [2001] FCA 349 Hanave Pty Ltd v LFOT Pty Ltd [1999] FCA 357; (1999) 43 IPR 545 Ho v Powell (2001) 51 NSWLR 572; [2001] NSWCA 168 Houghton v Immer (No 155) Pty Ltd (1997) 44 NSWLR 46 Huntsman Chemical Co Australia Ltd v International Pools Australia Pty Ltd (1995) 36 NSWLR 242 In re MF Global Australia Ltd (in liq) [2012] NSWSC 994; 267 FLR 27 Jenyns v Public Curator (Q) (1953) 90 CLR 113; [1953] HCA 2 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Kakavas v Crown Melbourne Ltd (2013) 250 CLR 392; [2013] HCA 25 Lin v The Owners - Strata Plan No 50276 [2004] NSWSC 88; 11 BPR 21,463 Maraya Holdings Pty Ltd v Chief Commissioner of State Revenue [2013] NSWCA 408 McElwaine v The Owners Strata Plan 75975 [2017] NSWCA 239; 18 BPR 37,207 Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500 Meskovski v Director of Public Prosecutions [2018] VSCA 293 Mistrina Pty Ltd v Australian Consulting Engineers Pty Ltd [2020] NSWCA 223 Owners - Strata Plan No 43551 v Walter Construction Group Ltd (2004) 62 NSWLR 169; [2004] NSWCA 429 Ramsden v Dyson (1866) LR 1 HL 129 Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19 Smith v Chadwick [1884] 9 App Cas 187 Smith v Chadwick (1881) 20 Ch D 27 Sullivan v Sullivan [2006] NSWCA 312 The Queen v Khazaal (2012) 246 CLR 601; [2012] HCA 26 Thorner v Major [2009] UKHL 18; [2009] 1 WLR 776 Trentelman v The Owners - Strata Plan 76700 (No 2); The Owners - Strata Plan 76700 v Trentelman (No 2) [2021] NSWSC 377 Trentelman v The Owners - Strata Plan 76700 (No 3); The Owners - Strata Plan 76700 v Trentelman (No 3) [2021] NSWSC 578 Trentelman v The Owners - Strata Plan 76700; The Owners - Strata Plan 76700 - Trentelman [2021] NSWSC 155 Vickery v The Owners - Strata Plan No 80412 (2020) 103 NSWLR 352; [2020] NSWCA 284 Texts Cited: L Goddard, A Treatise on the Law of Easements (8th ed, Stevens and Sons Ltd, 1921) P Herzfeld and T Prince, Interpretation (2nd ed, Lawbook Co, 2020) S Worthington, "Corporate Attribution and Agency: Back to Basics" (2017) 133 Law Quarterly Review 118 Category: Principal judgment Parties: Natalia Trentelman (Appellant) The Owners - Strata Plan No 76700 (First Respondent) Registrar General of New South Wales (Second Respondent) Representation: Counsel: M Ashhurst SC with G Farland (Appellant) E Peden SC with J Mee (First Respondent)

Solicitors: Bannermans Lawyers (Appellant) Strata Advisory Services (First Respondent) File Number(s): 2021/101998; 2021/102010 Publication restriction: Nil Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Equity Citation: [2021] NSWSC 155 Date of Decision: 26 February 2021 Before: Parker J File Number(s): 2018/312426; 2018/328341

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

HEADNOTE [This headnote is not to be read as part of the judgment] The appellant, Natalia Trentelman, brought this appeal from a decision of a judge of the Equity Division of the Court. His Honour rejected a claim in contract but found that the Owners Corporation had established a proprietary estoppel warranting an easement in its favour, allowing the use of a swimming pool and associated structures on lot 53 owned by Ms Trentelman. Ms Trentelman also appealed against the primary judge's decision to refuse to make an order in separate proceedings brought by her that a notation on the Strata Plan with respect to the pool be removed from the register. In October 2007, an easement for the use of the swimming pool which was originally situated on lot 7 in favour of lots 9-48 of the Strata Plan was created. The easement contained a number of conditions, including that it would continue until the earlier of 10 years from the date of registration or until a further easement for the use of the pool benefitting the same lots is created. In July 2009, Ms Trentelman and her husband, Johannes Trentelman, purchased all the lots in the Strata Plan. From September or October 2010, the Trentelmans commenced to sell individual lots in the strata scheme. In 2014, the Trentelmans wanted to free certain lots from the restrictions of the strata scheme for the purpose of development and resale. They also devised plans for the development of lot 7 by building a group of three townhouses on it. A special resolution of the Owners Corporation was required to enable this to occur. In that context, the Trentelmans, who at the time had control of the Strata Committee, caused the requisite resolutions to be brought forward at the Annual General Meeting of the Owners Corporation in July 2014. The notice of meeting proposed two motions, motions 10 and 11, accompanied by explanatory notes, to give effect to the proposal. The motions, explanatory notes and plans accompanying the notice of meeting indicated that easements would exist so that owners and occupiers of lots had a continuing right to use the pool. At the meeting at which the resolutions were passed unanimously, Mr Trentelman emphasised the fact that under the proposal, lot owners would have continuing use of the pool. In December 2014, a further plan of strata re-subdivision was drawn up by a surveyor on the Trentelmans' instructions. The plan of re-subdivision realigned the borders of lots 7 and 6, which became lots 53 and 54 in the Strata Plan. At the 2015 Annual General Meeting of the Owners Corporation, Mr Trentelman was asked to explain what his development looked like and what impact it would have. Mr Trentelman made a number of statements pertaining to the lot holders' use of the pool, including "we will give you the swimming pool". Thereafter, the Trentelmans set about implementing the proposal. The requisite conveyancing steps were taken to give effect to the proposal, but no provision was made for an easement permitting the lot holders to use the pool. In about mid-2017, the Trentelmans completed the construction of the townhouses on lot 53. When the original easement expired in October 2017, they excluded from the pool area the lot owners, except those with whom they were friendly. The main issue on appeal was whether the primary judge had erred in finding that the Owners Corporation had made out its case for relief by way of proprietary estoppel. Did the primary judge err in finding that the Owners Corporation had made out its case for relief by way of proprietary estoppel? i) To establish a claim of proprietary estoppel by encouragement, it must be shown that an owner of property as representor has encouraged another by way of a representation to alter his or her position in the expectation of obtaining a proprietary interest, and that the representee has to their detriment changed his or her position in reliance on the expectation, such that it is unconscionable for the representor to resile from the representation: [116]-[118] (Bathurst CJ); [170] (Bell P); [171] (Leeming JA). Giumelli v Giumelli (1999) 196 CLR 101; [1999] HCA 10; Dillwyn v Llewelyn (1862) 4 De GF & J 517; Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19; Doueihi v Construction Technologies Australia Pty Ltd (2016) 92 NSWLR 247; [2016] NSWCA 105; Delaforce v Simpson-Cook (2010) 78 NSWLR 483; [2010] NSWCA 84; Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd (2016) 260 CLR 1; [2016] HCA 26, referred to. ii) Discussion of the appropriateness of distinguishing between lot holders in their personal capacity and in their constitutive capacity as an organ of the owners corporation: [171]-[209] (Leeming JA). Did Ms Trentelman make a representation? iii) Notwithstanding the requirement that there must be certainty in the promise to give rise to the requisite expectation, an equitable estoppel can be established despite the expectation being based on a promise or representation that would not be sufficiently certain to amount to a valid contract, or is formed on the basis of vague assurances: [120] (Bathurst CJ); [170] (Bell P); [171] (Leeming JA). DHJPM Pty Ltd v Blackthorn Resources Ltd (2011) 83 NSWLR 728; [2011] NSWCA 348; Evans v Evans [2011] NSWCA 92; Flinn v Flinn [1999] 3 VR 712; [1999] VSCA 134, referred to. iv) A promise or representation will generally be sufficiently clear to support an estoppel if it was reasonable for the representee to interpret the promise in a particular way and to act in reliance on that assumption: [121] (Bathurst CJ); [170] (Bell P); [171] (Leeming JA). Sullivan v Sullivan [2006] NSWCA 312; Doueihi v Construction Technologies Australia Pty Ltd (2016) 92 NSWLR 247; [2016] NSWCA 105; Evans v Evans [2011] NSWCA 92, referred to. v) Depending on the particular context, a proprietary estoppel may be established where the promise or representation relied upon did not define the interest the party was expected to receive: [122] (Bathurst CJ); [170] (Bell P); [171] (Leeming JA). Sullivan v Sullivan [2006] NSWCA 312; Flinn v Flinn [1999] 3 VR 712; [1999] VSCA 134; Cobbe v Yeoman's Row Management Ltd [2008] UKHL 55; [2008] 1 WLR 1752, referred to. Thorner v Major [2009] UKHL 18; [2009] 1 WLR 776, considered. vi) A bright line cannot be drawn between categories of cases simply on the basis that some can be classified as commercial and others as domestic/family: [146] (Bathurst CJ); [170] (Bell P); [171], [209] (Leeming JA). Cobbe v Yeoman's Row Management Ltd [2008] UKHL 55; [2008] 1 WLR 1752; Thorner v Major [2009] UKHL 18; [2009] 1 WLR 776; DHJPM Pty Ltd v Blackthorn Resources Ltd (2011) 83 NSWLR 728; [2011] NSWCA 348, referred to. Doueihi v Construction Technologies Australia Pty Ltd (2016) 92 NSWLR 247; [2016] NSWCA 105, applied. vii) What is important is how the representation or promise would be reasonably understood by a person in the position of the persons to whom the representation was made; [147] (Bathurst CJ); [170] (Bell P); [171] (Leeming JA). Cobbe v Yeoman's Row Management Ltd [2008] UKHL 55; [2008] 1 WLR 1752; DHJPM Pty Ltd v Blackthorn Resources Ltd (2011) 83 NSWLR 728; [2011] NSWCA 348, referred to. viii) The representations induced an expectation in the lot owners acting in general meeting that if they voted in favour of the resolutions, thereby permitting the Owners Corporation to enter into and complete the transaction, the Owners Corporation would be granted an ongoing interest in the pool for the benefit of owners or occupiers: [126], [139], [141], [148] (Bathurst CJ); [170] (Bell P); [171] (Leeming JA). Did the Owners Corporation alter its position in reliance on the representation? ix) The reliance can be said to be that of the Owners Corporation such that it is the proper party: [130]-[131] (Bathurst CJ); [170] (Bell P); [171] (Leeming JA). x) Reliance is a question of fact and the onus to prove reliance at all times remains on the representee: [156] (Bathurst CJ); [170] (Bell P); [171] (Leeming JA). Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19, referred to. xi) The question is whether the conduct was so influenced by the representation that it would be unconscionable for the representor thereafter to insist on its strict legal rights: [156] (Bathurst CJ); [170] (Bell P); [171] (Leeming JA). Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19; Amalgamated Investment & Property Co Ltd (in liq) v Texas Commercial International Bank Ltd [1982] QB 84, referred to. xii) The Owners Corporation established that the lot holders in general meeting relied on the representation in voting for the resolutions: [161]-[162] (Bathurst CJ); [170] (Bell P); [171] (Leeming JA). Has there been detrimental reliance by the Owners Corporation such that it is unconscionable for Ms Trentelman to resile from the representation? xiii) The Owners Corporation suffered detriment as a result of the passing of the resolutions: [162]-[163] (Bathurst CJ); [170] (Bell P); [171] (Leeming JA). xiv) It was unconscionable for Ms Trentelman to resile from the representation she made: [164] (Bathurst CJ); [170] (Bell P); [171] (Leeming JA). Relief xv) In the case of proprietary estoppel it is not necessary to mould the relief to reflect the minimum equity necessary to remove the detriment, provided that the relief granted was not out of all proportion to the detriment suffered: [165] (Bathurst CJ); [170] (Bell P); [171] (Leeming JA). Giumelli v Giumelli (1999) 196 CLR 101; [1999] HCA 10; Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19; Delaforce v Simpson-Cook (2010) 78 NSWLR 483; [2010] NSWCA 84; Ashton v Pratt (2015) 88 NSWLR 281; [2015] NSWCA 12, referred to. Consideration, by Leeming JA, of: xvi) the relationship between the owners corporation and the lot holders (at [182]-[195]). xvii) whether the lot holders were necessary parties (at [196]-[203]). xviii) the reliance on Smith v Chadwick (1884) 9 App Cas 187 concerning the failure to adduce evidence from all lot holders (at [210]-[214]).

Judgment

1. BATHURST CJ: This is an appeal from a decision of a judge of the Equity Division of the Court whereby invoking the doctrine of proprietary estoppel his Honour ordered that the appellant, Natalia Trentelman (Ms Trentelman or the appellant) grant an easement in favour of the first respondent, The Owners - Strata Plan No 76700 (the Owners Corporation or the respondent), allowing the Owners Corporation the right to use a swimming pool and associated structures on lot 53 of Strata Plan No 76700 (the Strata Plan) which was owned by Ms Trentelman (Trentelman v The Owners - Strata Plan 76700; The Owners - Strata Plan 76700 - Trentelman [2021] NSWSC 155 (the substantive judgment)). Annexure 'A' to the judgment is the easement ordered by the primary judge. The primary judge also granted certain ancillary relief which is not necessary to set out.
2. Ms Trentelman has also appealed against the primary judge's refusal to make an order in separate proceedings brought by her that a notation on the Strata Plan to the effect the pool building and the pool itself formed part of the common property under the strata scheme (the pool notation) be removed from the register (Trentelman v The Owners - Strata Plan 76700 (No 2); The Owners - Strata Plan 76700 v Trentelman (No 2) [2021] NSWSC 377 (the subsequent judgment)).

The background facts

1. There was little dispute as to the primary facts, although there was considerable controversy as to the inferences and conclusions which should be drawn from them.
2. The property in question is situated at Bogangar on the far north coast of New South Wales, just inland from Cabarita Beach, midway between Byron Bay and Tweed Heads. The development on the property up to and including 2014 comprised a four-storey apartment building and surrounding land.
3. Strata Plan 76700 was registered in March 2006. Originally it included eight lots, lot 1 being the apartment building which was used as a motel. The pool the subject of the proceedings was on lot 7. Apart from the pool and its ancillary structures, lot 7 was vacant. Lots 2-6 and 8 were also vacant.
4. The registration of the Strata Plan was accompanied by a strata development contract. Such a contract was required for staged development of a strata scheme. The relevant contract contemplated the upgrading of the apartment building on lot 1, and the construction of three storey buildings, each comprising 10 two-bedroom units with basement car parking, on each of lots 2-7, with a sporting complex consisting of a tennis court, pool and recreation facilities on lot 8. The relevant contract stated that the work was to be completed by July 2011, although cl 8 of that contract specified the "Date of Conclusion of Development Scheme" as September 2010.
5. In August 2007, by Strata Plan of Subdivision No 79344, the motel on lot 1 was subdivided to create lots 9-51 in the strata scheme.
6. In October 2007, an easement for the use of the swimming pool situated on lot 7 in favour of lots 9-48 was created. It is not clear why lots 49-51 were excluded from the dominant tenement. The easement contained the following conditions: "The lots in the dominant tenement shall bear the cost of operation, repairs and maintenance of the pool and surrounding facilities in the proportions of their unit entitlement in SP79344. Such easement shall continue until the earlier of 10 years from the date of registration or until a further easement for the use of a swimming pool benefitting the same parcels is created in any of the other lots in SP76700."
7. In July 2009, Ms Trentelman and her husband, Johannes Trentelman (Mr Trentelman), purchased all the lots in the Strata Plan. The lots acquired by Ms Trentelman included the development lots 2-8.

1. His Honour also conveniently summarised the evidence given in cross-examination on this issue (at [149] of the substantive judgment): Witness Question Answer Mr Lofthouse What do you claim was said in relation to the proposal by Mr Trentelman? Mr Trentelman put the proposal through to us that he would incise what he called were development blocks. He would leave three blocks with the strata, that he would build two 2 storey townhouses on. In exchange, he would give us the pool forever. We already had it until 2017, so that's why he was stressing the forever. When you say that Mr Trentelman said he was going to give you the pool, you're referring to that passage that I just read out to you [Motion 10]? To that passage and the talk that was after the passage. He, he read out that passage, and then he went on to talk to us in layman terms, bearing in mind I'm an upholsterer et cetera he turned and then went on to explain it in layman's terms when he made it quite clear that he'll give us the pool forever and that would be an obvious thing to do. As I said, we already had the pool to 2017, sir. In layman terms, what he said to you was that, "This proposal would not interfere with your use of the pool", correct? He said we'd have continuous use of the pool. Mr Flynn Is it possible that what Mr Trentelman said at this meeting about the pool is that the owners corporation would be authorised to sign such documents for the surrender or creation of such easements or covenants - I withdraw that. If you just have a look at the words at VI, it might be easier rather than me reading them out. So, so my understanding of the meeting is that he was offering up the pool to be part of the, of the strata plan and it would be put in as common property and any of the paperwork required and costs associated would be borne by him and done by him, and he was the executive part of the owners corp. at page 266? The pool was very much a side issue at this meeting, would you agree with that? Yes, because we were told quite certainly that we would have continued access to the pool. The new complexes and our existing complex would form one strata and share the pool. Ms Chatterjee That's your recollection of what he said, that you would continue to have Yes, correct. use of the pool?

Is it possible that what was said at this meeting was that the proposal that was being put forward Yes, there was no indication that there would be interference with the use of the pool at any time. would not interfere with the then existing use of the pool? In fact you were told that this would not interfere with your use of the pool, weren't you? Correct. Mrs Lofthouse So what you understood was being discussed at this meeting was the extension of the easement that's at page 443? No it's not - it wasn't like that. It's not the extension. The deal that was given to us is we're going to have the swimming pool indefinitely in return for the three townhouses instead of those six by ten apartments and the excision of those vacant lots which carries 310 unit entitlements which they never paid levies anyway. That was the deal. Mr Kelly Did you understand, firstly, that to be a reference to a continuation of the easement that I've just shown you? No, I don't understand that it was just referring to the easement because I read the minutes of the meeting, the proposed meeting, which indicated that the pool would be transferred to common property. You understood that on that page that "explanatory note, motion 11" was an alternative way that may not occur? Correct. Can I explain? Please. As I was not at that meeting, the meeting I had with Mr Trentelman was designed to give my own peace of mind in relation to the future development and the ongoing use of the swimming pool. I saw - in the wording of those 15 minutes and the explanatory notes, I saw that we would either get the pool by common property or an extension of the easement.

1. It should be noted Mr Kelly was not present at the meeting but had had a separate conversation with Mr Trentelman concerning the proposal. Mr Kelly's evidence was that Mr Trentelman told him that, "As well as getting a more attractive development, which wouldn't in any way affect the value of the properties, owners will have continued access to the swimming pool. The tenants will be able to use the pool as well." Mr Kelly said that as a result of the answer, he either appointed Mr Trentelman as his proxy or confirmed that appointment.
2. The motion was passed unanimously. Of the 113 votes in favour, 63 votes were cast by Mr and Ms Trentelman, 17 in their own right and 46 as proxy for other unit holders. Ms McConnell, who was on the Strata Committee of the Owners Corporation at the time, cast 3 votes in her own right and 8 votes as proxy, whilst other unit holders cast 39 votes, 32 in their own right and 7 as proxy for other unit holders.
3. Thereafter, the Trentelmans, in Ms Trentelman's capacity as owner of the development lots and in their capacity as members of the Strata Committee of the Owners Corporation, proceeded with the implementation of the proposal.
4. In December 2014, a further plan of strata re-subdivision was drawn up by a surveyor, Mr Wyper, on the Trentelmans' instructions. The plan was registered with certain amendments as Strata Plan 91510. The plan of re-subdivision realigned the borders of lots 7 and 6, which became lots 53 and 54 in the Strata Plan. The plan contained the pool notation.
5. By the time of the 2015 Annual General Meeting of the Owners Corporation, the plan with the pool notation had been registered. At the meeting, in dealing with general business, Mr Trentelman was asked to explain what his development looked like and what impact it would have. The meeting was recorded, and the primary judge set out the discussion which took place as follows (at [121]-[126] of the substantive judgment): "[121] When Mr Trentelman had done so [explained the impact of the proposal], the transcript records an intervention from David Adam, one of the lot owners about the pool: Mr Adam: Technically, he's not passing it on. Mr Trentelman: No, no, it belongs to lot 53. Now when we bought the (inaudible) complex and we bought the complex and what was the, this was already existing, the boomerang [motel building] there, ok that was already existing. Now there were development approvals for all these lots. Now the development approval here was for a block of 10 apartments. Block of 10 apartments. Now that block of 10 apartments would have taken the whole of that and may have taken the pool as well. [122] … Mr Luddington protested that Mr Trentelman 'assured many of us that we would never lose our view'. [123] Mr Trentelman denied this, and brought the discussion back to the original development proposal, stating that it would have involved 80 to 100 further units. The transcript continues (emphasis added): Mr Trentelman: Ok so, we went to, to you guys and said look we don't want that, we, you guys have bought in here, and we don't want that for you, alright. Ms McConnell: That was the meeting last time. Mr Trentelman: We've said, we would try and make it as attractive as we possibly can. Okay, so we've said we will not build this, we will not build any of these. Ok. We will keep the development down and what we are going to do here is build 3 townhouses, 3 townhouses and the maximum height is 2 levels, ok being ground and next level and that's the maximum height. We also said because that we are building those, we will give you the swimming pool. [124] The transcript then continues: Mr Luddington: Well that's all tied into the original [development] contract, the right of use for the pool as (inaudible) ... community pool, (inaudible) no issues (inaudible). Mr Trentelman: If you look at the swimming pool ... the swimming pool, if you, actually Charito [Lofthouse] actually found it, the swimming pool has an easement for 10 years only. In 2 years time, that easement that easement is diminished, is gone. Mr Luddington: So we lose our right of access? Mr Trentelman: You lose your right of access to that pool. [125] Mr Luddington replied that this was 'something you have assured us would never happen'. After some disjointed exchanges, the transcript continues (emphasis added): Mr Trentelman: John, what we have said... we look we don't agree with that, we don't agree with taking the pool away from you. Mr Luddington: Yeah that's fine, I understand that. Mr Trentelman: We have said, we will give you the swimming pool. Mr Luddington: Yep. Mr Trentelman: Ok We will get. We will not have a block of 10 apartments there. We will keep our development to a minimum. That's what we've done here (inaudible). We will section this off. We will not have all the blocks of townhouses there. Look I reckon it's a fair cop what we're (inaudible) giving you. [126] … The transcript ends with these comments from Mr Adam and another participant identified as 'Malcolm': Mr Adam: Legally John can do whatever he likes, he doesn't have to give us that pool right (inaudible arguing). Malcolm: Give you nothing, the way you have treated him he has paid all this money out of his own pocket he has given you the shed, he has given the pool and you treat him like shit. Mr Trentelman: And you still want it. Malcolm: And you are still after blood. I've never seen people like you, you are not very business minded people."

The manner in which the case was put by the Owners Corporation

1. As I indicated at the outset of this judgment, the Owners Corporation relied on a proprietary estoppel to assert its claim. That basis first seems to have been propounded in opening submissions in the Court below. Although it was objected to by senior counsel for Ms Trentelman, the Owners Corporation was permitted to put its case on that basis. The relevant portions of the opening submissions are as follows: 51 The OC relies upon both promissory and proprietary estoppel to the extent that there is a difference, asserting that the Trentelmans ought not be entitled to resile from the representation/promise that the OC/owners were to receive a legal interest in the pool and facilities in return for approval of the Trentelmans' motions at the 2014 AGM (with the relevant documentation being prepared by the Trentelmans and executive committee of the OC). … 56 The OC's case is that the Court ought to find: a. The representations made by the Trentelmans at the 2014 AGM were sufficiently certain in the non-commercial circumstances with the relevant background. b. There was reasonable reliance in passing the Resolutions, and in the circumstances there ought to be a presumption of reliance - where 'inducement by the promise may be inferred from the claimant's conduct, as is the case here, the onus or burden of proof shifts to the defendant to establish that the claimant did not rely on the promise.' c. The OC and owners/occupiers clearly suffered a detriment that was not insubstantial when the Trentelmans sought to assert that the easement had expired, at least by agreeing to the removal of the development lots and the consequent loss of levies from those lots. d. It was within the capacity of the Trentelmans, who controlled the 3 person executive committee, to ensure that the relevant documentation was completed to implement the representation to give indefinite access to the Pool, by transferring the land into common property, as they had done with the rooftop, or by granting a permanent easement for the benefit of the OC and owners." (Footnotes omitted.)

Further findings of fact made by the primary judge and his conclusions

1. In addition to referring to the factual matters which I have outlined above, the primary judge referred to certain other matters which he considered relevant to the Owners Corporation's claim.
2. In that context, his Honour referred to correspondence between the solicitor for Ms Trentelman and the solicitor for one of the unitholders, Mr Luddington, who was considering purchasing lot 7. In a letter dated 8 January 2015 from the solicitor for Mr Luddington to Ms Trentelman's solicitor, she expressed the understanding that "the pool will remain on the proposed lot and our client [as purchaser] is to provide certain rights of use to the body corporate". She also sought advice of whether the contents of resolutions the subject of motions 10 and 11 of the Annual General Meeting held on 28 July 2014 "are still the proposed way moving forward", expressing the understanding that the current proposal was that the three lots "our client proposes to develop will form part of the current strata rather than a community association".
3. In response, Ms Trentelman's solicitor advised the pool would remain on the proposed lot 53 and, referring to motions 10 and 11, stated that it was resolved that the pool would become part of the common property and would remain part of the current strata. The primary judge (at [189] of the substantive judgment) rejected Ms Trentelman's evidence that her solicitor's statement was made without instructions as "far-fetched", and declined to draw an inference that the solicitor misunderstood his instructions in the absence of him being called.
4. The primary judge stated that the evidence of the lot holders who attended the meeting was entirely consistent with the documentary evidence, particularly the notice of meeting for the 2014 Annual General Meeting. His Honour rejected the submission that the failure to call five other witnesses who had given affidavits meant that a Jones v Dunkel inference should be drawn against the Owners Corporation (Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8). His Honour (at [196] of the substantive judgment) described the failure to call these witnesses as "nothing more than a commendable attempt to save time".
5. The primary judge (at [200]-[209] of the substantive judgment) also rejected the submission that the evidence of Ms Chatterjee, in which she stated that she agreed that what was being put forward was that there would not be interference with the "then existing" use of the pool, demonstrated that all that was said was that there would not be interference with the lot owners' rights under the easement, and that no promise was made about access after the easement expired. His Honour stated that the submission had a number of difficulties. His Honour said that first, it overstated the significance of Ms Chatterjee's evidence and it was never squarely put to her or any of the other witnesses the difference between a promise to respect the existing easement and a promise to give them the pool.

The grounds of appeal

1. In the proceedings brought by the Owners Corporation, Ms Trentelman relied on the following grounds of appeal: "1 The learned primary judge erred in finding that the Respondent 'had made out its case for relief by way of proprietary estoppel' (paragraph [310] of the substantive judgment) in respect of the swimming pool the subject of these proceedings. 2 More specifically the learned primary judge made the following errors in reaching the conclusion referred to in [1] above: (a) Concluding that the representation made on behalf of the Appellant that 'we would give you continued use of the pool' was directed to the Respondent (Owners Corporation) rather than to the individual lot owners of lots 9 to 48 in Strata Plan 76[7]00 who at the time of the meeting held an easement of use in respect of the pool (the 'Benefited Lot Owners') or (more probably) that the statement was not directed specifically or conclusively to either the Respondent or to the Benefited Lot Holders because the offer was, at this time inchoate as to whether the 'use' of the pool would be to the Benefited Lot Owners or would be to the Respondent; (b) Further, or in the alternative to paragraph 2(a) above, concluding (paragraph [209] of the substantive judgment) that 'at the 2014 AGM Mr Trentelman did indeed make representations to the effect that "we" would "give" "you" continued use of the pool' when the evidence did not warrant that conclusion, in the face of the variances in the statements made by each of the witnesses called by the Respondent; (c) Misconstruing the terms of a written Proposal that had been provided to the members of the Respondent as implying a promise by the Appellant to provide the use of the pool to the Respondent when on a proper construction of the Proposal it was recording a protection of the existing use of the pool by the Benefited Lot Owners; (d) In concluding (at paragraph [291] of the substantive judgment) that there was sufficient certainty in the representation described in paragraph [1(a)] above to found a claim of proprietary estoppel notwithstanding the conclusion (at paragraph [282] of the substantive judgment) that the Appellant 'did not define in clear terms the interest which [the Respondent] would receive' and (at [291] of the substantive judgment) that 'the parties contemplated that formal dispositions would be drawn up and registered' and the uncertainty as to the identity of the benefit of any beneficiary of this offer; (e) By distinguishing the authorities of DHJPM Pty Ltd Blackthorn Resources (2011) 83 NSWLR 728 at [56]-[58] and [104]-[134] and Doueihi v Construction Technologies Australia Pty Ltd (2016) 92 NSWLR 247 at [175]-[177] on the basis (at paragraph [291] of the substantive judgment) that the act performed by the Respondent in exchange for the 'promised' interest in the pool had already been performed and on the basis that the proposed interest was not properly characterised as occurring in a 'commercial context'; (f) Notwithstanding the finding that the Respondent 'did not take possession of the pool land or lay out money on if' (at paragraph [281] of the judgment) nevertheless finding that the vote by the members of the Respondent to approve the 'Proposal' constituted sufficient detriment or change of position in reliance on receiving this interest in the pool; (g) Dismissing the argument by the Appellant that the Respondent's failure to call evidence that established that at least 25% of the members of the Respondent voted in favour of the proposition because (at least in part) they had relied on receiving an interest in the pool meant that the Respondent had not established reliance in the manner described in Sidhu v Van Dyke (2013) 251 CLR 505 at [61]; (h) Failing to conclude that as there were considerable advantages to the members of the Respondent in accepting the Proposal that were unconnected with the use of the pool, such as substantially limiting the scope of future developments on lot 7 from that for which existing development approval had occurred and the removal of the development lots from Strata Plan 76700, then the Respondent's failure to call direct evidence of reliance meant that an inference to that effect could not be drawn in favour of the Respondent; (i) Notwithstanding the finding at [281] of the judgment that the Respondent 'did not take possession of the pool or lay out any money on it' nevertheless found that an act of 'reliance', sufficient to establish proprietary estoppel, was the passing of motion 10, instead of finding that at its highest the passing of this motion represented nothing more than the Respondent performing an act in return for a promise by the Appellant to offer of an interest in property that the Respondent was free to reject. That is to say the necessary requirement that the Appellant's conscience be affected by the knowledge that the Respondent had acted to its detriment in reliance on the understanding that it was receiving an interest in land was not present. 3 The learned primary judge erred in making orders in the form in which those orders were made, when the findings did not support such orders. 4 More specifically the learned primary judge made the following errors in making the orders referred to in [3] above: (a) Making a declaration in terms of order 1, when there was no utility to such a declaration as no damages had been claimed as part of the proceedings, and the learned trial judge made no finding as to the date (in the past) at which the equitable interest arose. (b) Making an order in the nature of an injunction, in terms of order 2, when there was no power, or cause of action on which to base the injunction, absent an existing registered easement to support such an order. (c) making an order in terms of order 3 in the form of the obligation to grant an easement on the terms in Annexure A to the form of orders, when those terms of the easement did not arise from the findings of the learned primary judge (paragraph [314] of the substantive judgment), which required, as 'the proper form of relief ... an easement in favour of the Corporation in the same terms, or substantially the same terms, as the previous easement.'"

a Ms Trentelman

1. Senior counsel for Ms Trentelman stated that the appeal against the decision in the proceedings brought by the Owners Corporation had two aspects. First, he submitted that the primary judge erred in inferring reliance by the Owners Corporation to establish proprietary estoppel, and second, that there was insufficient certainty as to whether any interest in the land was to be created, and if so, in whose favour to satisfy the requirements for a proprietary estoppel.
2. He contended that to succeed, the Owners Corporation had to establish two matters. First, that the respondent as distinct from the actual lot owners who were the beneficiaries of the existing easements, formed an assumption that it would receive a proprietary interest in the swimming pool, and second, that the respondent had relied on that assumption.
3. Senior counsel for Ms Trentelman submitted that when it was understood that the relevant act of reliance was the vote on motion 10, the question was whether the respondent had established by direct evidence or inference that at least 25 per cent of its members voted in favour of the resolution because they understood that the respondent, and not them personally, would be receiving an interest in land. He submitted that if any right existed, it would be in the lot owners personally who would have been the correct parties to have brought the action.
4. Senior counsel for Ms Trentelman (referring to his written submissions in reply) stated that there were eight matters which demonstrated that an inference of the type found by the primary judge could not be drawn. The first of these was that it was not obvious what the lot owners would understand from the representation found by the primary judge, "we will give you continuing use of the pool" and, in particular, whether the Owners Corporation was to be given a proprietary interest. He submitted that what was most likely to have been understood was an extension of the existing easement which would not have been for the benefit of the Owners Corporation.
5. The second matter relied upon was that as the existing easement was not in favour of the Owners Corporation but only in favour of lots 9-48, it was not clear that members of the respondent would have understood that the Owners Corporation was receiving a proprietary interest in the pool, as distinct from their own existing easement being extended. Senior counsel in this context referred to the finding of the primary judge (at [144] of the substantive judgment) that lot owners, Mr and Mrs Lofthouse, Mr Kelly and Mr Luddington knew of the easement. Senior counsel referred to evidence given by Mr Luddington to the effect that he believed that everyone was fully under the impression that the easement would be renewed. He also referred to the evidence of Mr Kelly (see at [24] above) that he believed "we would either get the pool by common property or an extension of the easement" and that, at the time of the meeting, his understanding was that the most likely means by which the owners would get continuing use of the pool was by an extension of the existing easement. He also referred to the evidence of Mr Lofthouse that he understood there would be an extension of the existing easement so it would become indefinite.

b The respondent

1. Senior counsel for the respondent submitted that the effect of Strata Plan 85596 was that part of lot 9 became common property. She submitted that that did not mean that the part of lot 9 which became common property did not retain the benefit of the easement. She referred to s 28 of the Strata Schemes Development Act 2015 (NSW), which provides that an owners corporation holds common property as agent for the owners, whilst s 34(1)(b) provides that the owners corporation can accept easements which benefit the common property. She pointed to equivalent legislation in the preceding Act, Strata Schemes (Freehold Development) Act 1973 (NSW) s 20 and s 26.
2. She submitted that as a matter of construction of the easement, the clear language was that it benefitted the whole of lot 9. She submitted that common property can be accommodated by an easement and that there was nothing to suggest that owners or occupiers did not use the car park or the terrace before it became common property.
3. Senior counsel for the respondent further submitted that the benefit of the easement so held by the Owners Corporation was held as agent for all the lot owners. She also pointed to s 254 of the Strata Schemes Management Act 2015, which provided that in respect of common property, if the owners of lots of the strata scheme are jointly entitled to take proceedings, the proceedings may be taken by the Owners Corporation.
4. She submitted that where notice was sent to all the lot owners and it was the intention of the Trentelmans that all lot owners would receive the notice and receive the benefit of anything described in it, it was appropriate to bring the proceedings on behalf of all lot owners. That may solve any difficulties relating to the joinder of parties but it does not necessarily deal with the principal contention of Ms Trentelman that the Owners Corporation had failed to prove that the lot owners relied on the representation that the Owners Corporation would be granted an easement if they voted in favour of the motion.
5. Senior counsel for the Owners Corporation pointed out that at the time of the 2014 meeting, the Trentelmans proposing the motion could not have held the intention to only make a representation to those lot owners who had the benefit of the easement as the Trentelmans did not understand that the beneficiary of the easement was other than the Owners Corporation. She pointed out that the cost of the pool was being treated as an expense of the Owners Corporation, and whilst the Trentelmans were in control of the Strata Committee and responsible for raising levies, they were doing so through the Owners Corporation, even though, in reality, they owned the pool and the easement was restricted.

Consideration

1. In Giumelli v Giumelli (1999) 196 CLR 101; [1999] HCA 10, the plurality stated at [6] that the equity which founded the relief claimed in such cases as Dillwyn v Llewelyn (1862) 4 De GF & J 517 at 523 was founded on the assumption of future ownership of property which had been induced by representations upon which there had been detrimental reliance by the plaintiff. That reasoning was adopted by the plurality in Sidhu v Van Dyke at [2], see also Doueihi v Construction Technologies Australia Pty Ltd (2016) 92 NSWLR 247; [2016] NSWCA 105 at [131]-[136].
2. In Delaforce v Simpson-Cook (2010) 78 NSWLR 483; [2010] NSWCA 84, Handley AJA, in dealing with a claim of proprietary estoppel by encouragement, summarised the circumstances in which such an estoppel came into existence in the following terms (at [21]): "[21] The proprietary estoppel upheld by the judge was an estoppel by encouragement. Such an estoppel comes into existence when an owner of property has encouraged another to alter his or her position in the expectation of obtaining a proprietary interest and that other, in reliance on the expectation created or encouraged by the property owner, has changed his or her position to their detriment. If these matters are established equity may compel the owner to give effect to that expectation in whole or in part. The general principles governing this form of estoppel were not in dispute, here or below."
3. What needs to be added to that summary is that it must be shown that the detrimental reliance makes it unconscionable for the promisor or representor to depart from the promise or representation: see Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd (2016) 260 CLR 1; [2016] HCA 26 at [147]-[150].
4. As can be seen from the submissions of the appellant to which I have referred, the first basis on which she seeks to challenge the conclusion of the primary judge is that the representation was incapable of creating an expectation in the Owners Corporation that the lot owners would have the use of the pool. In that context, there are a number of matters which may be noted at the outset.
5. First, notwithstanding the requirement that there must be certainty in the promise to give rise to the requisite expectation, an equitable estoppel can be established notwithstanding the expectation is based on a promise or representation that would not be sufficiently certain to amount to a valid contract, or is formed on the basis of vague assurances: DHJPM Pty Ltd v Blackthorn Resources Ltd at [54]; Evans v Evans at [121]-[125]; Flinn v Flinn at [80]-[81].

1 Trentelman v The Owners - Strata Plan No 76700; Proceedings No 2021/102010 1. (1) Appeal dismissed. 2. (2) Order the appellant pay the respondent's costs of the appeal.

2 Trentelman v The Owners - Strata Plan No 76700; Proceedings No 2021/101998 1. (1) Appeal dismissed. 2. (2) Order the appellant pay the respondent's costs of the appeal.

1. BELL P: I agree with the reasons of the Chief Justice and the additional reasons of Leeming JA.
2. LEEMING JA: I have had the considerable advantage of reading the judgment of the Chief Justice in draft. I agree with his reasons and the orders he proposes. In deference to the quality of the parties' submissions, I would add the following, which presupposes familiarity with the Chief Justice's reasons.
3. Ms Trentelman's submissions did not challenge the large majority of findings of primary fact. That reflected the conclusions of the primary judge that he was "generally unimpressed with the reliability of the Trentelmans' evidence" (at [171]) and "left with the impression that [Ms Trentelman] had little if any actual recollection of events": at [174]. I do not doubt that Ms Trentelman appreciated the difficulties confronting appellate challenge to findings to which demeanour had contributed. Instead, Ms Trentelman's submissions focussed upon the inchoateness of the proposal put forward by the Trentelmans, the difference between a property right owned as common property by the owners corporation and a property right owned by individual lot holders, the owners corporation's failure to call more than a minority of lot holders to explain why they voted in favour of the proposal in July 2014, and the absence of the lot holders as parties to the litigation.
4. The matters raised by Ms Trentelman may be analysed on at least two levels. I think the correct level is reflected in the parties' detailed submissions, which I shall address below. But at a higher level, it is as well to bear in mind that the owners corporation is an artificial person, that the meeting giving rise to the estoppel found by the primary judge was that artificial person's annual general meeting, and that the distinction between property owned by the owners corporation as agent for the lot holders and property owned by individual lot holders directly is a fine one, as a result of all of which there is a degree of artificiality in seeking to propound the distinctions on which Ms Trentelman relies.
5. As the Chief Justice explains, the Trentelmans wanted to secure the passage of a special resolution, involving a strata re-subdivision and then a transfer of common property to themselves. The ability of lot holders to withhold their consent to the resolutions propounded by the Trentelmans was, unquestionably, a valuable right (see for example Houghton v Immer (No 155) Pty Ltd (1997) 44 NSWLR 46 at 59). On the other hand, the lot holders wanted to enjoy the continuing use of the swimming pool, which, at the time, was achieved by registered easement over the land occupied by the pool in favour of nearly all other lots, but which expired in October 2017.

The relationship between owners corporation and lot holders

1. The legislative regime creating the individual lots, the common property and the owners corporation is now somewhat different from that in place when the owners corporation was created.
2. Strata Plan 76700 was registered in 2006. At that time, s 11(1) of the Strata Schemes Management Act 1996 (NSW) provided that the owners of the lots from time to time constituted a body corporate under the name "The Owners - Strata Plan No 76700". The legislation provided (in Schedule 2) for meetings of lot owners at which ordinary and special resolutions of the body corporate could be passed, but made further provision for the owners corporation to act by an executive committee. Such a committee was mandatory (s 16), and its decision was (speaking generally) "taken to be the decision of the owners corporation": s 21(1). The owners corporation and all owners, lessees and occupiers were bound by the by-laws "as if the by-laws had been signed and sealed by the owners corporation and each owner and each ... lessee and occupier": s 44(1). The by-laws thus resembled the deemed contract binding members of companies to which the Corporations Act 2001 (Cth) applied but went further insofar as they also bound lessees and occupiers (the Corporations Act did not apply to the body corporate created by s 11(1), by dint of s 11(2) read with s 5F of the Corporations Act).
3. Section 20 of the Strata Schemes (Freehold Development) Act 1973 (NSW) vested the common property in the body corporate "as agent" for the proprietors of the lots as tenants in common in shares proportional to their unit entitlements. Section 24(2) of the latter statute provided that "[t]he beneficial interest of a proprietor of a lot in the estate or interest in the common property, if any, held by the body corporate as agent for that proprietor shall not be capable of being severed from, or dealt with except in conjunction with, the lot".
4. A series of decisions culminating in Owners - Strata Plan No 43551 v Walter Construction Group Ltd (2004) 62 NSWLR 169; [2004] NSWCA 429 at [42]-[45] held that the word "agent" in ss 20 and 24 was not used in the technical sense of the law of agency at common law, that the owners corporation was not the beneficial owner of the common property and that the lot owners had a beneficial interest in the common property as tenants in common with other lot owners. To the same effect, in EB 9 & 10 Pty Ltd v The Owners Strata Plan 934 (2018) 98 NSWLR 889; [2018] NSWCA 288 at [31], Barrett AJA with the agreement of Meagher and Gleeson JJA endorsed what had been said by White JA in McElwaine v The Owners Strata Plan 75975 [2017] NSWCA 239; 18 BPR 37,207 at [37]: "The interest of a lot owner in the common property is an equitable interest as a tenant in common with other lot owners. The relationship between the owners corporation as legal owner of the common property and the lot owners as beneficial tenants in common is that of trustee and beneficiary or analogous thereto."

Absence of the lot holders as necessary parties

1. The primary judge had regard to the constitution of the litigation when ordering an easement in favour of the owners corporation (which was a party) rather than the lot owners (who were not). Ms Trentelman contended that the lot owners personally should have been parties to the litigation. That submission was advanced both at trial and on appeal.
2. This problem is created by statute creating an artificial person which owns the common property. It is also solved by statute. Section 254 of the Strata Schemes Management Act 2015 (NSW) provides as follows: "254 Owners corporation may represent owners in certain proceedings (1) This section applies to proceedings in relation to common property. (2) If the owners of the lots in a strata scheme are jointly entitled to take proceedings against any person or are liable to have proceedings taken against them jointly, the proceedings may be taken by or against the owners corporation. (3) Any judgment or order given or made in favour of or against the owners corporation in any such proceedings has effect as if it were a judgment or order given or made in favour of or against the owners. (4) A contribution required to be made by an owner of a lot to another owner in relation to the judgment debt is to bear the same proportion to the judgment debt as the unit entitlement of the contributing owner bears to the aggregate unit entitlement."
3. Such a provision has been present in the legislation since at least 1973 (see s 147 of the Strata Titles Act 1973 (NSW)).
4. Mr Ashhurst conceded, very properly, that Ms Trentelman's proceedings concerning the notation were proceedings in relation to common property within the meaning of s 254(1). However, he said that the proprietary estoppel claim was not.
5. There are two answers to that submission. The first is that, as it happens, the owners corporation itself was, as owner of the common property, one of the dominant tenements of the existing easement. This came about because of the subdivision of what had been lot 9 into the caretaker's unit and the car park and the rooftop veranda in circumstances where lot 9 had been one of the dominant tenements of the easement as originally created. This gave rise to a debate about the application of the principles stated in Gallagher v Rainbow (1994) 179 CLR 624 at 632-634; [1994] HCA 24, as to the circumstances in which the benefit of an easement enures when the land benefited by it is subdivided. The general rule is that the benefit enures to all of the subdivided lots, unless the distribution of the benefit of the easement would be at variance with the actual or presumed grant under which the right was acquired, to pick up the language of Goddard, A Treatise on the Law of Easements (8th ed, Stevens and Sons Ltd, 1921), p 392 which was endorsed in Gallagher v Rainbow. Applying that rule, the newly created lot which became owned by the owners corporation obtained the benefit of the existing easement, which was expressed generally, with the dominant tenement described as "[Lots] 9-48/sp79344" and on terms that "The lots in the dominant tenement shall bear the cost of operation, repairs and maintenance of the pool and surrounding facilities in the proportions of their unit entitlement in SP79344". I would add that there is no reason to doubt that the land occupied by the car park, which was after all immediately adjacent to the swimming pool, was not continuing to enjoy the benefit of the easement.

Uncertainty of the representation

1. The gravamen of these submissions was that there was vagueness in the terms of the promise, which expressly contemplated further details being agreed, and which extended to uncertainty as to whether the continued enjoyment of the swimming pool would be effected by an extension of the existing easements benefitting lot holders, as opposed to the easement benefitting the owners corporation ordered by the primary judge.
2. Mr Ashhurst contended that "proprietary estoppel cannot lie when it is uncertain as to whether any interest in land is to be created as distinct from uncertainty as to the form of the interest in land". He prayed in aid Lord Kingsdown's (influential albeit dissenting) speech in Ramsden v Dyson (1866) LR 1 HL 129 at 170 with its reference to a verbal agreement for "a certain interest in land". As the Chief Justice explains, neither side to this litigation had an especially precise understanding of the legal relationships or conveyancing concepts. The issue is resolved by looking at the substance of what was said to the particular audience and what would have been understood by that particular audience.
3. Much the same point was made in this Court's decision in Evans v Evans [2011] NSWCA 92 at [116], on which the owners corporation relied, in circumstances where as here a precise legal analysis would be both difficult and foreign to those relying on the estoppel: "While professional training would impel a lawyer to seek to impose a legal categorisation on the $200 per week, Peter was a builder and Sophie was a clerk in an accountant's office - there was no reason to expect them to think like lawyers. Accordingly, their understanding was not in terms that they had been given an 'absolute beneficial interest' - that is lawyers' language, and foreign to their way of thinking. The upshot of their evidence is that their understanding was that they had been given the house, and that they had the obligation to make the payments. They organised their lives around that understanding for decades. It would be belittling for a lawyer to denigrate or deny the reality of their understanding on the basis that it did not fit into a lawyer's categories of analysis. An equity concerning proprietary estoppel arises by virtue of the expectations that the plaintiffs actually had, that were induced or encouraged by the defendant and on which the plaintiffs actually acted to their detriment. Those are questions of fact, not of legal analysis." (original emphasis)

Reliance

1. I only wish to add to what the Chief Justice has said in relation to one aspect of this part of the appeal. Ms Trentelman placed reliance upon Lord Blackburn's speech in Smith v Chadwick (1884) 9 App Cas 187, especially at 196: "And whenever that is a matter of doubt I think the tribunal which has to decide the fact should remember that now, and for some years past, the plaintiff can be called as a witness on his own behalf, and that if he is not so called, or being so called does not swear that he is induced, it adds much weight to the doubts whether the inference was a true one."
2. Smith v Chadwick is far removed from the present case. Mr Smith brought proceedings for deceit based upon a statement in the prospectus, namely, that "the present value of the turnover or output of the entire works is over £1,000,000 sterling per annum". The trial before Fry J was conducted over some five days, during which an interrogatory administered to Mr Smith was tendered. Its effect may be seen from what is recorded in the decision of the Court of Appeal: "That being so, I come to consider this: What does the Plaintiff tell us as to the effect of the representations on his mind? Here we have an answer to the interrogatories, and I must say it is not the answer I should have expected to get from a man who comes into Court and says, I have been deceived by false representations, and thereby induced to enter into a contract. I should expect him to say: 'I was deceived by such and such false representations.' But he will not say it. He is interrogated as to what he understood the thing to mean, and this is his answer. Having given a long string of alleged misrepresentations, he says: 'As to each and every of the allegations of misrepresentations contained in the statement of claim, First, I understood the meaning of such misrepresentations respectively to be that which the words composing them obviously convey, and I am unable to express in any other words what I understood to be the meaning thereof.' Is a man to come into Court with such a statement as that? It means this, 'You please to find out what the words mean, and that is how I understood them.' I must say that I do not think that is dealing fairly with the Court, nor is it dealing fairly with the Defendants. I agree that if there are any obvious misstatements he is entitled to rely upon them, but he is not to tell us in this way, 'I relied on a misrepresentation according to what the words obviously convey, and I will not tell you what that is; I am unable to express in any other words what I meant.' So that we are dealing with a Plaintiff who says he has been deceived, but will not condescend to particulars, and will not tell us in what respect he was deceived": (1881) 20 Ch D 27 at 48-49.

Costs

1. Finally, I note for completeness that the appellant flagged that she would amend her notice of appeal to challenge the exercise of the discretion to award costs in the most recent judgment of the primary judge. That did not happen. This was squarely raised in oral address by the respondent. Even so, no application was made to amend. This Court accordingly cannot alter the costs orders made in the third judgment. In any event, there is no occasion in light of these reasons to interfere in the exercise of costs which, in relation to Ms Trentelman's case, was principally determined by reference to her failure on rectification and mistake: [2021] NSWSC 578 at [44].

Annexure A _ ATTACH TO JUDGMENT (71460, pdf)

Amendments 06 June 2022 - Coversheet - "Rainbow v Gallagher" changed to "Gallagher v Rainbow" and reordered to maintain alphabetical order Coversheet - "[1999] VSCA 134" changed to "[1999] VSCA 109" in citation for Flinn v Flinn [177] - "which is has legal significance" changed to "which has legal significance" [188] - "view as its effect" changed to "view as to its effect" [200] - "Rainbow v Gallagher" changed to "Gallagher v Rainbow" twice [207] - "[1999] VSCA 134" changed to "[1999] VSCA 109" in citation for Flinn v Flinn [214] - "found that that the" changed to "found that the" 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: 06 June 2022