Van Dyke v Sidhu

Judgment 1HER HONOUR : Before me for hearing late last year was an application by Ms Van Dyke for relief (invoking the principles of equitable estoppel set out in Waltons Stores (Interstate) Pty Ltd v Maher (1988) 164 CLR 387 at 400 and Giumelli v Giumelli (1999) 196 CLR 101 at 121 or as a remedy for unconscionable conduct) consequent upon the making by Mr Sidhu of certain promises or representations in relation to a property referred to as the "Oaks Property", on which promises or representations Ms Van Dyke says she relied to her detriment in a variety of ways. 2The promises or representations (the making of which was in substance admitted but as to the precise content and reasonable interpretation of which there is some dispute) were made during the course of an ongoing sexual relationship between the two. The relationship commenced at a time when Ms Van Dyke was married to Mr Svenson (the brother of Mr Sidhu's wife, Lajla) and continued for some years after the marriage between Ms Van Dyke and Mr Svenson had come to an end. At all material times, Mr Sidhu lived with his wife in the main homestead on a property at Burra known as Burra Station. For most of that time, Ms Van Dyke lived with her son (and occasionally other occupants who paid rent direct to Mrs Sidhu and stayed in the cottage either at her request or with her consent) in a building known as The Oaks Cottage some 100m away from the main homestead. 3The Oaks Property is described in the Statement of Claim (at [9]) as an area of land on which a cottage (The Oaks Cottage) had stood (during the course of Ms Van Dyke's relationship with Mr Sidhu and until the cottage burnt down in February 2006) "and the acreage surrounding it and on which it stood" (initially of approximately 7 hectares but said to have been expanded by subsequent representations of Mr Sidhu made in 2004 to an area including a permanent water spring and dams of approximately 7.3 or 7.4 hectares). It is broadly identified by reference to a local Council survey plan of the overall Burra Station land on part of which The Oaks Cottage had stood. 4In summary, Ms Van Dyke contends that Mr Sidhu made clear and unambiguous promises and representations to her that the Oaks Property was her home and that he would transfer (or procure the transfer of) the Oaks Property to her (promises made initially in 1998 but repeated and expanded over the course of their relationship) and that she acted reasonably in reliance on the said promises (and the assumption created and encouraged by Mr Sidhu that the Oaks Property was her home and would be transferred to her) to her detriment in a number of ways. 5The conduct pleaded as amounting to detrimental reliance is the performance by Ms Van Dyke of work (alleged to have been extensive) on the maintenance and improvement not only of The Oaks Cottage and the Oaks Property but also of the broader homestead property (referred to as Burra Station), and a neighbouring property the subject of a community title subdivision known as Burra Station Estate (work estimated by Ms Van Dyke to have been worth in the order of $112,400, if assessed at the minimum hourly labouring wage, on the basis of the time she estimates she spent on the various areas of land); her decision not to seek a property settlement at the time of her 1999 divorce from Mr Svenson (an opportunity the loss of which is asserted by her to be somewhere in the order of $35,000-$60,000); and giving up the opportunity to work full time for a greater remunerative income from January 1998 to July 2006 and/or to acquire other real estate. 6Ms Van Dyke contends that Mr Sidhu represented to her that he was able to effect the transfer of the Oaks Property to her (notwithstanding that it was part of a property held in the joint names of he and his wife) and that he was able to do what he wished with his "share" of the Burra Station property. 7Ms Van Dyke claims an entitlement to a constructive trust or equitable charge over Mr Sidhu's interest in the Oaks Property and seeks a variety of other relief (including an order that Mr Sidhu take all necessary steps to procure the transfer of the Oaks Property to her and that he pay equitable compensation to her, reflecting the value of The Oaks Cottage, ie the building which burnt down in 2006). In the alternative to such relief, Ms Van Dyke seeks equitable compensation. Mr Sidhu denies that Ms Van Dyke is entitled to the relief claimed by her. 8Mr Sidhu admits in his defence that he carried on an extra marital affair with Ms Van Dyke "from time to time during the period from 1997 to 2006" ([7] of his Defence). (Although, in the particulars provided of paragraph [7] of his Defence, Mr Sidhu takes issue with at least some aspects of Ms Van Dyke's characterisation of the relationship, the description that it was equivalent to that of man and wife accords with the manner in which Mr Sidhu himself seems, at least in 2005, to have encouraged Ms Van Dyke to represent their relationship to others.) Certainly, at the hearing it was not disputed that there had been an intimate relationship between the two over a number of years. Indeed reliance is placed on this in Mr Sidhu's case for the proposition that Ms Van Dyke would have remained living and working on the property over the relevant period irrespective of the promises made by him. 9Mr Sidhu does not dispute that he made certain promises or statements to Ms Van Dyke in relation to The Oaks Cottage (to the detail of which I will refer in due course) (see [9] of his Defence). By reference to his own written communications, he clearly did. However, it is contended for Mr Sidhu that Ms Van Dyke (or a reasonable person in her position) would have known that no such promise or statement was binding on Mrs Sidhu or her interest in The Oaks Cottage; that any prospect that Ms Van Dyke might have of being given The Oaks Cottage was subject to certain contingencies; and that Mr Sidhu was not bound to perform any statement or promise in any event ([9(e) of his Defence). In her reply, Ms Van Dyke admits that she knew the Oaks Property was not on a separate title and that Mr Sidhu and his wife owned Burra Station as joint tenants but (other than the admission that The Oaks Cottage was surrounded by a fence, which she says was one that she and her then husband had erected) denies the allegations in [9] of the Defence. 10Although Mr Sidhu had affirmed a lengthy affidavit, which was filed and served on Ms Van Dyke in accordance with pre-trial directions, at the trial he chose not to read in his case his affidavit (or, for that matter, an affidavit that had been sworn by his wife) and hence gave no evidence himself to dispute Ms Van Dyke's account of the oral conversations in which the promises or representations were said to have been made to her (or to support the contention made in submissions on his behalf that he did not know of or intend any reliance by Ms Van Dyke on the alleged promises) . A small portion of his affidavit (in which Mr Sidhu deposed to benefits provided by him or his family to Ms Van Dyke over the years), which was put to Ms Van Dyke in cross-examination and the substance of which she did not dispute, was tendered in evidence for the defence. 11Mr Sidhu's position is that Ms Van Dyke is not entitled to the relief claimed because she has not established the making of a clear and unequivocal promise on which it was objectively reasonable for her to rely in the way that she says she did; that the promises made to her were not sufficient to create a reasonable belief affecting the parties' legal rights that was binding and irrevocable; that she has not established that she acted reasonably or to her detriment in reliance on the promises made to her (nor that he knew that she would act, or intended her to act, in reliance on the promises); and that it is not unconscionable for him, in the circumstances, to resile from the promises/statements that were made by him. In particular, it is submitted that the promises were conditional in nature (among other things, on the continuation of the relationship between the two; the consent of Mrs Sidhu to the transfer; and the subdivision of the homestead property to create the lot in question). The time for performance of the promises had not yet arisen as at the time Ms Van Dyke left Burra Station in mid 2006 and for Mr Sidhu it is submitted that Ms Van Dyke's departure from the property made at least some of the conditions to which the promises were subject incapable of fulfilment. 12Further, it is contended for Mr Sidhu that if (which is denied) any claim is maintainable by Ms Van Dyke it could only be the claim for equitable compensation and that the quantum of that claim has not been proven. In that regard, it is submitted that proprietary relief is unavailable as Mrs Sidhu (the joint owner of the homestead property) did not make (and is not bound by) the promises/representations on which Ms Van Dyke claims to have relied and was not joined as a party to the proceedings (hence her interests in the property cannot be affected). While it was quite fairly conceded in closing submissions by Mr Sidhu's Senior Counsel, Mr Newlinds SC, that a constructive trust or charge might conceivably be imposed over Mr Sidhu's interest in the Burra Station property (thus severing the joint tenancy under which the property is presently held, so as to give Ms Van Dyke an interest in the proceeds of a sale of the property), Mr Newlinds submitted that such relief is precluded by the fact that it would necessarily affect Mrs Sidhu's interest in the property. (Mr Newlinds notes that the issue as to the non-joinder of Mrs Sidhu to the proceedings was a matter to which Ms Van Dyke's attention was clearly drawn at an earlier stage in the history of this litigation, when the matter was before the Court of Appeal, and yet no step was thereafter taken by Ms Van Dyke to join Mrs Sidhu to the proceedings.) 13Mr Newlinds further submits (referring to Giumelli ) that, as the occasion for the intervention of equity in cases such as this is the detriment suffered in reliance on the relevant statements/representations, the primary measure of any equitable compensation is the detriment suffered by Ms Van Dyke and that any attempt to calculate such compensation would need to bring to account the benefit that Ms Van Dyke has obtained while living on the property (including the discount on the rent allowed to Ms Van Dyke over the time she occupied The Oaks Cottage and other assistance she concedes she received from Mr Sidhu). It is contended that no compensable detriment has been proved by Ms Van Dyke. Issues 14The parties were broadly agreed as to the issues that arise in this case for determination. In summary, those issues are: (i) whether the promises/representations made by Mr Sidhu to Ms Van Dyke were clear and unambiguous; and what meaning was objectively conveyed by the said promises/representations; (ii) whether Ms Van Dyke reasonably relied, to her detriment, on the promises/representations, or changed her position in reliance thereon, so as to make it unconscionable for Mr Sidhu now to resile therefrom; and (iii) what relief is appropriate in all the circumstances if Ms Van Dyke's claims for relief are made out. Summary 15For the reasons set out below, I am of the view that: (i) there was a sufficiently clear and unambiguous promise made by Mr Sidhu to Ms Van Dyke in 1998 that objectively conveyed the meaning that he would transfer The Oaks Cottage to her (as a gift) once the then proposed subdivision of the Burra Station property had occurred; and the area of land the subject of that promise was later expanded to encompass a total area of approximately 7.3 hectares as identified as Lot 4 in the subdivision plan for Burra Station; (ii) Ms Van Dyke has not established that she in fact relied to her detriment on the promises/representations or changed her position detrimentally in reliance thereon, otherwise than in giving up the opportunity to seek a property settlement from her former husband after their divorce in 1999; in that regard, I am not satisfied that it was objectively reasonable for Ms Van Dyke so to rely on the promises/representations in circumstances where they were, as a practical matter, conditional or predicated upon the subdivision occurring and that was, at the time the promises/representations were made (and still to an extent is), something largely dependent on matters outside Mr Sidhu's control; further, in circumstances where the time for performance of the promise has not yet arisen, it is not possible to say that it will be unconscionable for Mr Sidhu to resile therefrom if and when the time for performance does arrive; and (iii) as I am not satisfied that the pleaded reliance on the promises/representations by Ms Van Dyke was to her detriment other than in relation to the giving up of the opportunity to seek a divorce settlement (since the evidence strongly suggests that Ms Van Dyke would have taken the course she did even had the promises not been made), and there was no independent evidence as to what orders might have been made had there been an application for a property settlement at that time, had the issue of relief arisen I would have been inclined to refer out to an expert family law practitioner the question as to what provision was likely to have been made had there been an application made for a property settlement at the relevant time (and would only have awarded equitable compensation in or about that amount). Background Facts 16I set out below the background to the dispute between the parties. Where there is a divergence between the account given by Ms Van Dyke in her affidavit evidence and that pleaded in Mr Sidhu's defence (and Ms Van Dyke's account is not contradicted or put in doubt by contemporaneous documentary evidence), I accept Ms Van Dyke's account, having regard to the fact that Mr Sidhu has chosen not to give his own account of the conversations and events to which Ms Van Dyke has deposed. The weight to be attributed to Ms Van Dyke's recollection of conversations and events must of course be considered in light of the recognised limitations on human memory and her own acknowledgement of the difficulties in that respect. Broadly, however, I accept her as a credible witness. 17As at 1995, Ms Van Dyke and Mrs Sidhu's brother (Mr Svenson) were living together as a couple in a rented cottage (The Willows) on a property at Burra known as Burra Station. In late 1995, Mr and Mrs Sidhu exchanged contracts for the purchase, as joint tenants, of the Burra Station property (referred to sometimes in the proceedings as the homestead property or homestead block), completion of which sale took place in June 1996. On that property, of approximately 32 hectares, there were at that time three buildings: the main homestead property (in which Mr and Mrs Sidhu have lived at all material times) and two smaller cottages known as The Oaks Cottage, and The Willows. The homestead block was the subject of a mortgage to the Bank of New Zealand granted by Mr and Mrs Sidhu on 21 June 1996. (At the relevant time, Mr and Mrs Sidhu had the benefit of, and paid the premiums for, an insurance policy which covered The Oaks Cottage and on which they claimed when the cottage burnt down.) 18What is referred to in the pleadings (and in some of the evidence) as "the Oaks Property" is an area that extends beyond the fenced area of land on which The Oaks Cottage stood and its immediate surrounds. Ms Van Dyke, in her affidavit sworn 8 April 2010, describes the Oaks Property as having an area of approximately 7 hectares and being one that, from a landscape perspective, had a natural boundary (para [7]). At T 54.13-18, Ms Van Dyke explained the natural boundary around the block by reference to a road in front of it that went down to The Willows and another road that ran in a perpendicular line that she says, together with the back boundary, delineated the block. (Ms Van Dyke says it was later physically "stepped out" with Mr Sidhu at 7.4 hectares). The later subdivision plans put this area at 7.3 hectares (and it is accepted that it was the 7.3 hectare lot that was valued by the respective parties' valuation experts.) This expanded area is the area that was the subject of a jointly signed proposal for acquisition by Ms Van Dyke in 2005. 19Mr Jeff Brown, the surveyor called to give evidence for Mr Sidhu, did not accept that there was a natural boundary as described by Ms Van Dyke and it was difficult, at least to my untrained eye, to discern such a natural boundary from the photographs tendered of The Oaks Cottage (Exhibit 2). Ms Van Dyke conceded as much at T 55.16. That said, in my view ultimately nothing turns on the changing boundary of the property the subject of Mr Sidhu's promises in circumstances where, by 2006, the parties seem to have had no doubt as to what was comprised by the Oaks Property (it being the subject of the expanded Lot 4 in the proposed subdivision). The real question now between the parties is whether the relevant representation(s) related only to The Oaks Cottage itself or to the expanded acre of land on which it stood (the Oaks Property). 20In January 1996, Ms Van Dyke and Mr Svenson were married. From about that time, until their separation in 1998, they rented and lived in The Oaks Cottage (paying a rental of $150 per week initially to the previous owner of Burra Station and, after Mr and Mrs Sidhu acquired Burra Station, to Mrs Sidhu, who seems to have managed at least the financial aspects of the tenancy arrangements). In July 1996, their son (Mr and Mrs Sidhu's nephew) was born. I note this only because the family relationship seems to me to be a material factor in considering the objective reasonableness or otherwise of the reliance Ms Van Dyke says she placed on Mr Sidhu's promises, in that it provides a basis on which it might objectively be thought that generosity on Mr (and Mrs) Sidhu's part to the, by then, single mother of their infant nephew was by no means implausible. Indeed, Mrs Sidhu's later email correspondence with Ms Van Dyke in 2005 (before the relationship between Ms Van Dyke and her husband was openly acknowledged), emphasises that the family relationship was the basis on which Mrs Sidhu had been prepared to agree to a proposal for the transfer of part of the Burra Station land to Ms Van Dyke. 21Laylos Pty Ltd, a company in which Mr and Mrs Sidhu each own a quarter of the issued shares (the remainder being owned by Mr Sidhu's brother and sister-in-law), was at the relevant time the registered proprietor of the 'back block' (now known as Burra Station Estate), of approximately 186 hectares adjacent to Burra Station. The back block is mortgaged to the Bendigo and Adelaide bank securing a $3m loan facility in connection with the proposed subdivision of that block. 22Sometime from around mid to late 1997, Mr Sidhu and Ms Van Dyke commenced a sexual relationship. Ms Van Dyke pleads that their romantic and physical relationship commenced in about late 1997 (para [4] of her Statement of Claim but in her first affidavit she puts the relationship as commencing in mid to late 1997; Mr Sidhu admits in his defence at [5] to carrying on an extra marital affair with Ms Van Dyke "from time to time (as further pleaded in paragraph 7 of this defence) during the period from 1997 to 2006"). (The reference to [7] of Mr Sidhu's incorporates a further admission as to the carrying on of the affair during the period from 1997 to 2006 but also various allegations (in paras 7(b)-(d)) about the relationship as to which no evidence was ultimately adduced by Mr Sidhu and which are therefore not supported by any evidence.) 23In about mid 1998, Ms Van Dyke and her husband separated. Ms Van Dyke had told her husband that she was having an affair with Mr Sidhu. Mr Svenson (who was called by Ms Van Dyke to give evidence in the proceedings) says that he had a conversation with Mr and Mrs Sidhu at the time in which he told them what Ms Van Dyke had said (about the affair) and Mr Sidhu denied it. In paragraph 8(b) of his Defence, Mr Sidhu says, inter alia, that his wife was unaware of his relationship with Ms Van Dyke. Neither gave evidence to support that allegation but it seems to me that an inference can be drawn (from the manner in which Ms Van Dyke says Mr Sidhu explained to her the basis on which she should continue to pay rent for The Oaks Cottage and, later, the basis on which the proposed arrangements for the transfer of The Oaks Cottage were to be structured), that other than the allegation made by Mr Svenson as to the affair (which Mr Sidhu had denied) Mrs Sidhu was not explicitly told of the ongoing relationship until after it was over. (That is consistent with Mrs Sidhu's accusations of betrayal after the relationship became openly acknowledged.) 24Ms Van Dyke's evidence was that Mr Sidhu had told her that, provided they were discreet about the relationship, his wife would be tolerant and accepting of his wishes. (The need for discretion in this regard is the explanation Ms Van Dyke gives for the continued payment of rental to Mrs Sidhu for the cottage after the time at which she says Mr Sidhu told her it was her home. While it was suggested by Mr Newlinds that there was an inconsistency between the payment of rent by Ms Van Dyke and her assertion that she believed that The Oaks Cottage was hers, it seems to me that it is not implausible that Ms Van Dyke was persuaded by Mr Sidhu that the continued payment of rent would, in effect, permit Mrs Sidhu to 'save face' by not publicly acknowledging the affair. Mr Sidhu's own correspondence made reference to his wife's "Ostrich philosophy".) 25I accept Ms Van Dyke's evidence that Mr Sidhu made such a statement to her as to the reason for the continued payment of the rent, though this does not mean that there was any foundation in fact to what was there being conveyed by him to Ms Van Dyke (as Mr Newlinds intimated in cross-examination, it might be that in the course of an "illicit affair" Mr Sidhu said a number of things that were not true or that he did not mean). Ms Van Dyke accepted in the witness box that a lot of her evidence as to Mrs Sidhu's state of mind was based on what Mr Sidhu had told her (T 63.5). 26Mr Sidhu's apparent reluctance, at a later stage in 2006 when Mr Sidhu was canvassing options in relation to the rebuilding of The Oaks Cottage, to speak directly with his wife about the terms on which his relationship with Ms Van Dyke might continue in an open fashion is at least to some extent inconsistent with an understanding on his part at an earlier time that his wife was supportive of an adulterous relationship. 27For the period from the breakdown of Ms Van Dyke's marriage in mid 1998 to February 2006, when the cottage burnt down, Ms Van Dyke remained in The Oaks Cottage (with her son) and paid rent to Mrs Sidhu. From time to time, the cottage was co-tenanted by others who also (with perhaps the exception of a school student who lived there for a time) paid rent to Mrs Sidhu. 28Ms Van Dyke says that in 1998 (in a conversation she initially put in her affidavit of 8 April 2010 as taking place in early January 1998 but which, in cross-examination, she seemed to accept may not have occurred until mid to late 1998, on the basis that she believes the relevant events took place chronologically in the order appearing in her affidavit), after a conversation with her then husband in which she said she wished to end the marriage, Mr Sidhu said to her words to the effect: [19] I want you to have a home here with me. I am planning to subdivide Burra Station. As soon as this is done, I will make sure the Oaks is put into your name ... Using my Indian family money to buy this place means I can make my own decisions as to what I do with it, and I want you to have it because I love you. You need a home of your own to raise [her son] in, I can provide it. (my emphasis) 29Ms Van Dyke says that she asked Mr Sidhu whether this meant that he would be breaking up with Mrs Sidhu and that his response was, in essence, to ask her to be patient with him and to emphasise that it would be best for the relationship to be kept discreet. (Relevantly, in Ms Van Dyke's account of the conversation there is no suggestion that the promise was conditional on the relationship between Mr Sidhu and his wife coming to an end, whether through death or divorce, as it is now submitted for Mr Sidhu that it was.) 30There is nothing in the conversation recounted in [19] of Ms Van Dyke's affidavit to suggest that this initial promise related to more than The Oaks Cottage (and the immediate land on which it then stood) itself and I consider that this is all that the promise objectively conveyed at that time. Further, while the meaning conveyed by the first sentence of [19] (read on its own) could well be (as was contended for by Mr Newlinds) that Mr Sidhu would simply allow Ms Van Dyke to continue to live on the property (whether as his wife's tenant or as his lover), as opposed to a promise that Ms Van Dyke wanted to become the owner of any part of the property, the conversation continued with a statement that he would make sure that the Oaks was in Ms Van Dyke's name. That conveys a promise or representation that Ms Van Dyke would become the owner of the property (a tenant not ordinarily being referred to in the context of having the property, as opposed to a lease, in his or her name). Clearly, however, that promise or representation was predicated on the subdivision of Burra Station occurring (both as a practical matter, given that it was not the subject of a separate title, and by reference to the terms of the promise itself). 31At [20] of her affidavit in chief, Ms Van Dyke says that, in the context of her (some time later) seeking advice from Mr Sidhu as to her divorce, Mr Sidhu said to her words to the effect: [20] Lauren, you have the Oaks you do not need a settlement from him . You can do the divorce yourself, you don't need a lawyer. (my emphasis) 32That statement could not reasonably have been understood as a representation that Ms Van Dyke was at that stage the legal owner of The Oaks Cottage - as she clearly was not and she knew that she was not. It does, however, seem to me to convey more than that Ms Van Dyke had some right of occupation or indefinite tenancy of the cottage, since the statement is made in the context that because Ms Van Dyke had the cottage she did not need a property or financial settlement from Mr Sidhu. Such a statement would only make sense if whatever interest it was that Ms Van Dyke was promised she would have in relation to the cottage was something that gave her some form of financial security and in that context that she was at some point to become the owner. 33At that time, Mr Svenson owned a home (over which there was a mortgage) in Adaminaby and was involved (in conjunction to some extent at least with Mr Sidhu) in various overseas business ventures (which later failed). Mr Svenson nevertheless gave evidence in the witness box of his opinion that, had the Adaminaby property then been sold, there would have been sufficient to pay out the mortgage (and that his father had forgiven or was prepared to forgive the debts of around $135,000 -$140,000 that were owed to him at the time - T 106), thus suggesting that there may have been some equity in the home at that time from which Ms Van Dyke might have had some provision (assuming that she had sought and obtained a property settlement) had she not received and apparently acted upon the advice from Mr Sidhu recounted in [20] of her affidavit. Relevantly, Ms Van Dyke made no application for a property settlement under the provisions of the Family Law Act within the applicable time, following the failure of her 14 month marriage. (She was by that stage a single mother and part-time University student.) 34Ms Van Dyke says that in September 1998 (thus around the time that the conversations in [19] and [20] of her affidavit seem to have taken place), she asked Mr Sidhu "do I stop paying rent now that the Oaks is my property" and that he responded in words to the effect "How about you continue to pay what you can as this will help keep things low key with Lajla [his wife]". She says that she offered to pay $100 per week (the rent at that stage being the $150 that had been set by the former owner) and said that she could claim some rent relief through university support payments. Ms Van Dyke says that Mr Sidhu responded to the effect "Yes lets do that until the property is transferred into your name". 35From about December 1999 a reduced rent of $100 per week was paid to Mrs Sidhu. (By letter dated 10 May 2000, Mrs Sidhu wrote to Ms Van Dyke (and the other then tenant of The Oaks Cottage) as well as to the tenant of The Willows, noting a rental increase effective 1 July 2000 for the cottages. In the case of The Oaks Cottage the increase was from $150 per week to $200 per week. The letter noted Mrs Sidhu's opinion that this was below market rent. There was no reference in this letter to any arrangement whereby part of the occupancy arrangements included the provision of unpaid work on the property.) 36Mr Sidhu alleges that the agreement was that Ms Van Dyke would provide about 6 hours a week assistance on and in relation to Burra Station (presumably in lieu of the balance of the rent) ([3(b)] of his defence). There is nothing in writing between Mr or Mrs Sidhu and Ms Van Dyke to that effect but such an arrangement is consistent with the account Ms Van Dyke later seems to have given of her rental arrangements (when drafting correspondence in response to a complaint that had been made as to her involvement in issues relating to the proposed subdivision of the back block at a time when she was employed part-time in the office of a senator in the Federal Parliament). In September 2004 Ms Van Dyke forwarded to Mr Sidhu a draft letter, responding to a suggestion that had been made to the Senator for whom she was then working part time, that she had a conflict of interest in raising issues that had been raised in relation to the subdivision because of her then position working part-time in the Senator's office, in which Ms Van Dyke wrote: "I work part-time on Lajla (my sister-in-law) and Beat's property to help set off my rent....". (Insofar as the arrangement was that a lesser rent was payable on the basis that Ms Van Dyke provided assistance on the Burra Station property, that would of course be relevant to the question whether such work amounted to detrimental reliance on the alleged promises or representations, which I consider in due course.) 37Reliance is placed by Mr Newlinds on the payment of rent by Ms Van Dyke (and the payment by her co-tenants of rent direct to Mrs Sidhu) as being inconsistent with a belief by Ms Van Dyke that she actually owned The Oaks Cottage (ie in advance of any transfer of the legal title of the property to her), referring to Ms Van Dyke's evidence in cross-examination from (T 61.29-65.11 and T 72.26-77.43). (It is suggested that Ms Van Dyke's version of events in this regard, namely her assertion that she was in some sense the owner of the property, has the necessary consequence that she behaved dishonestly while living at Burra Station, engaging in a charade of paying rent to Mrs Sidhu in order to deceive her, falsely claiming a government rebate based on the payment of rent (referring to the evidence at T 63.16-63.36, T 73.19-30) and writing a dishonest email in response to a complaint to her employer in which she referred to the payment of rent (see T 173.32-76.21). Mr Newlinds submits that this should not be accepted but, rather, that the court should accept that the payment of rent evidenced not only the real legal relationship between the parties but also Ms Van Dyke's belief as to the legal relationship between the parties. In that regard, I consider Ms Van Dyke's belief that the property was her home to be that she was entitled to treat or regard it as her own and that in due course it would be transferred to her. Understood in that fashion there is no dishonesty in the rental arrangement other than the deception in which Mr Sidhu was himself involved in relation to the affair.) 38I accept that there is a logical inconsistency in paying rent for a property owned by the person paying rent. It would, however, be consistent with an arrangement whereby the property had been promised to Ms Van Dyke (who had been encouraged to regard it as her own) but was not yet legally hers and where the payment of rent was made in order not to alert Mrs Sidhu to the real nature of the relationship between Ms Van Dyke and Mr Sidhu (since the family connection seems not to have been regarded as a cause to waive any rental obligation altogether). However, in that event it would not be consistent with a contention that Mrs Sidhu was aware of the relationship over the 8-9 years that it endured (unless it was indeed part of a complicated face-saving charade and there seems no logical need for that since Ms Van Dyke's presence on the property could readily have been explained to those outside the threesome by reference to the family relationship). 39In circumstances where Ms Van Dyke was aware that the Burra Station property was jointly owned and that there had been no legal transfer of any part of the land to her; had claimed government rebates on the basis that the payments made to Mrs Sidhu were by way of rent; and had described herself as a tenant of The Oaks Cottage, I consider that it would not have been objectively reasonable for Ms Van Dyke at any time up to June 2006 to believe that she was the legal owner of The Oaks Cottage and that statements by Mr Sidhu to the effect that this was 'her home' could only objectively be understood as conveying the meaning that Ms Van Dyke would be able to reside there (as a tenant) for the indefinite future until it was transferred to her. 40Ms Van Dyke in the witness box was reluctant to concede that the payment of this money was properly to be characterised as rent (and pointed out in submissions that she was not in a position to pay the rates or other such amounts as she was not the registered owner of the property, seemingly to suggest thereby that the rent was a quid pro quo for payments that as the legal owner she would be required to make but could not make until title was in her name). However, I consider that her belief that The Oaks Cottage was "her home" can only reasonably have been a belief that Mr Sidhu would in due course honour his promise to transfer it to her. 41In her affidavit, Ms Van Dyke has deposed to the relationship she had with Mr Sidhu for a period of about eight and a half years from 1998. Unconventional as Ms Van Dyke readily conceded it was, she deposed that it was a relationship in which the two regarded themselves as man and wife (paras [23]-[24] of her affidavit). She alleges in her pleading that it was a "committed and extensive relationship and one which both [she and he] regarded as equivalent to a relationship of man and wife" ([8]). While Mr Newlinds emphasised in his cross-examination of Ms Van Dyke (and Ms Van Dyke accepted) that Mr Sidhu was in fact married to and living with Mrs Sidhu during the whole of his relationship with Ms Van Dyke, I note that Mr Sidhu himself seems to have acknowledged in his communications with Ms Van Dyke that the couple saw their relationship in this way and to have encouraged her to convey that to others. By email sent on 24 May 2006 to Ms Van Dyke, sent some 3 months after the cottage burnt down and while Ms Van Dyke was living in a relocatable cottage on the homestead property, Mr Sidhu exhorted Ms Van Dyke to tell another couple "...how we have seen ourselves as man and wife. Tell them if you want to that even though Lajla has not been expressly told it she knows enough over the 10 years to realise that we love each other", going on to confirm that "Lajla and I have now agreed to build and transfer your house to you..." (my emphasis). In another document forwarded to Ms Van Dyke (which I admitted as part of Exhibit A subject to relevance), Mr Sidhu referred to Ms Van Dyke as being "...spoken for in a deeply loving 10 year relationship".) On the documents before me, the suggestion by Mr Sidhu that this was a "troubled" and "dysfunctional" relationship appears to have been made only after it had ended and in the context that Mr Sidhu was then denying any obligation to honour his promise to transfer The Oaks Cottage to Ms Van Dyke; his communications in May 2006 had adverted instead to a "deeply loving" relationship. 42Ms Van Dyke gave evidence of the activities that she and Mr Sidhu had carried out together in relation to the improvement and maintenance of Burra Station and of The Oaks Cottage and of occasions when they had together taken trips away from the property (or stayed with others as a couple together) without Mrs Sidhu. There is no reason not to accept that evidence. Ms Van Dyke deposed, in her first affidavit, that it was her belief (based on what Mr Sidhu had said and that there was no sign of unease on the part of Mrs Sidhu at the time that they had spent together on the property and on trips away from the property) that Mrs Sidhu consented to the relationship and to the gift of the Oaks Property to her ([25]). In that regard, I have already noted that in cross-examination Ms Van Dyke accepted that much of her evidence as to Mrs Sidhu's knowledge or state of mind was based on things that Mr Sidhu had said to her (the reliability of which must in my view be in question having regard to the deception Mr Sidhu seems to have practised in relation to the affair itself). While Mrs Sidhu did not give evidence in the proceedings as to what she did or did not know, there is at least some suggestion in the communication between Mr Sidhu and Ms Van Dyke (referred to above) in which Mr Sidhu spoke of his wife's 'Ostrich philosophy", that Mr Sidhu had not explicitly acknowledged to his wife the fact of the affair with Ms Van Dyke. Tellingly, Mrs Sidhu's response in November 2006 (to a suggestion that Ms Van Dyke might return to the property) was emphatic in her assertion that she had not known of the affair until after Ms Van Dyke left the property and the tenor of at least some of Mrs Sidhu's communications (in which she speaks of betrayal by Ms Van Dyke) is consistent with that of someone who had not been aware of the relationship. 43In any event, while I accept that Ms Van Dyke held the genuine belief (based on what she had been told by Mr Sidhu) that Mrs Sidhu was tolerant of him having other relationships outside of the marriage, and that Mrs Sidhu may well have chosen to shut her eyes to indicia as to the closeness of the relationship between the two, there is no evidence that Mrs Sidhu ever communicated to Ms Van Dyke her consent to the relationship or, more relevantly, to the transfer to Ms Van Dyke of The Oaks Cottage or any part of the Burra Station property to her prior to a statement signed by Mr and Mrs Sidhu in mid 2006 (to which I will refer in due course), in which such an agreement (albeit non-binding in contractual terms) was recorded. The communications between Ms Van Dyke and Mr Sidhu prior to that date, as recounted by Ms Van Dyke, are consistent with Mr Sidhu promising to obtain his wife's consent to the transfer, not with that consent already having been obtained. 44The promises alleged to have been made in 1998 in relation to the transfer of The Oaks Property are as pleaded in para [9] of the Statement of Claim. Mr Sidhu, in his defence, has denied para [9] of the Statement of Claim and says further in relation to that allegation in [9(a)] that: (a) During the period from 1997 to 2006 the defendant did say to the plaintiff that if his wife pre-deceased him and if, at that time, the defendant's and plaintiff's relationship was then continuing and neither had found another partner and if he were still living on Burra Station, he would consider giving her Oaks Cottage (my emphasis) 45At least as at this point in the chronology (1998), there is no suggestion in any document before the Court that the promise was simply to "consider" giving The Oaks Cottage to Ms Van Dyke, let alone that such a promise was to take effect only on the death of Mrs Sidhu (or that it was conditional on the relationship continuing or the other matters pleaded by Mr Sidhu as set out above). It is inconsistent with the statement signed by Mr Sidhu in 2000 in which he recorded the intention that he said he had expressed (to which I will shortly come). Mr Sidhu himself gave no evidence to contradict Ms Van Dyke's version of the initial promise and, subject to what I will say as to the frailty of human memory, I accept her evidence as to what was said. 46In para [9] of Mr Sidhu's defence he goes on to assert that: (b) In early 1998 the defendant also gave to the plaintiff a note [no copy of which was in evidence] on which he had written words to the effect that, if his wife pre-deceased him, he was the sole owner of Burra Station and his and the plaintiff's relationship was then continuing then he would give her Oaks Cottage (c) As the plaintiff at all material times knew, the Oaks Cottage was not on a separate title, the defendant and his wife owned Burra Station as joint tenants and the defendant was unable to give the plaintiff any interest in the Oaks Cottage of procure his wife to make such a gift (d) The Oaks Cottage was surrounded by a fence, which fenced in area of not more than three quarters of an acre, and the defendant's reference to the Oaks Cottage in his statements pleaded above was limited (as the plaintiff knew or a reasonable person would have understood) to the area enclosed by the fence; (e) The plaintiff knew, or a reasonable person would have known, that: (i) No promise or statement made by the defendant was binding on his wife or her interest in Oaks Cottage; (ii) Any prospect that the plaintiff may have (whether or not enforceable) of being given Oaks Cottage was subject to contingencies and there was a real prospect that the contingencies would not occur; (iii) The defendant was not bound to perform any statement or promise in any event. 47The only note that was in evidence as to Mr Sidhu's intentions (prior to a statement he signed with his wife in 2006) is that signed in 2000, the contents of which are inconsistent with para (b) above. As to (c), Ms Van Dyke accepts that she was aware that Mr Sidhu and his wife held the title to Burra Station jointly, but she relies on Mr Sidhu's promises or representations that he could do what he wanted with his share of the property and/or that he would procure his wife's consent. As to (d), I accept that a promise to transfer "The Oaks Cottage", when there was at that time a building of that name sitting on a fenced area of land, would be objectively understood by a reasonable person to mean that area of land and not some extended area of land beyond the immediate environs of the cottage (though this does not take into account later representations as to the expanded size of the property to be transferred). 48This raises the issue as to the nature of the promise that was made in 1998. Accepting that the 1998 promise as recounted by Ms Van Dyke related to a transfer of The Oaks Cottage (and the fenced area of land on which it stood), in order for there to be a transfer to Ms Van Dyke of legal title to that land it was necessary for there to be a subdivision of the homestead block at the very least to excise from the main block the area of land to be transferred to Ms Van Dyke. The initial promise or representation made this clear - Mr Sidhu told Ms Van Dyke he was planning to subdivide Burra Station and that " As soon as this is done , I will make sure the Oaks is put into your name". In substance that involved both a representation as to Mr Sidhu's then state of mind in relation to the subdivision (with which subdivision his wife would have had to concur for it to be effected) and a promise that as soon as the subdivision occurred the title would be transferred to Ms Van Dyke (something not necessarily dependent on his wife's consent at least insofar as Mr Sidhu could unilaterally transfer his 50% interest in the jointly owned property to her). 49At an earlier hearing of this dispute, reliance was placed in submissions for Mr Sidhu on what was said in Public Trustee v Kukula (1990) 14 FamLR 79 as to promises or representations as to matters to occur in the future that are predicated on the happening of some other event - there, a representation concerning marriage at a time when the representor was already married. At the hearing before me, Ms Van Dyke submitted that Kukula is distinguishable on the basis that it related to the question of a representation concerning marriage, noting that Young JA had commented in Van Dyke v Sidhu [2011] NSWCA 187 at [13]) that "... cases such as Gillett v Holt and Jennings v Rice do show the limits of Kukula and perhaps it may even one day have to be reconsidered", referring there also to cases like Morris v Morris [1982] 1 NSWLR 61 and Nichols v Nichols (1986) 4 BPR 9240. I consider this argument in due course. 50There is evidence that in around 1999/2000 Mr and Mrs Sidhu were contemplating the development of both the homestead and back blocks in an overall subdivision. On 20 July 1999, Laylos lodged an application to subdivide two lots (the homestead lot and the back block) into 22 rural residential lots. Mr Brown confirmed in the witness box that his firm had been commissioned to prepare a concept plan for subdivision that included the homestead block (and hence that included the area on which The Oaks Cottage then stood). It is therefore not objectively unreasonable to regard the statements made to Ms Van Dyke as amounting to a representation that the homestead block would be subdivided and a promise that (assuming the application were to be successful and the subdivision proceeded - the latter conceivably being dependent on a number of potential contingencies including appropriate finance for any work required in relation to the subdivision) once the subdivision occurred the area of land on which The Oaks Cottage stood would be transferred to Ms Van Dyke. The promise to transfer the land would not be enforceable as a contract without consideration nor would the time at which the promise was to operate have arisen until the land was in fact subdivided. However, for present purposes, the question is whether the inability to transfer the land absent a successful subdivision having occurred made it unreasonable for Ms Van Dyke to rely on the promise so as to give rise to a proprietary estoppel or that it would not be unconscionable for Mr Sidhu to resile from the promise prior to the subdivision having occurred. 51Ms Van Dyke says that in around 2000, she had a conversation with Mr Sidhu in which she expressed her concern as to the fact that there was nothing in writing about the Oaks Property and in particular as to what would happen if something were to happen to Mr Sidhu (para [34] of her affidavit). She says that Mr Sidhu then handwrote and signed a note (later typed) in which he recorded in writing the promise/representation made to her. That document was in evidence and reads as follows: During the years 1996 to 2000 I Beat Sidhu expressed to Lauren that I was willing to gift [sic] Lauren the house in which she resided at the time (Oaks Cottage, ... Burra NSW) 52Insofar as there seemed to be a suggestion in the course of submissions that Ms Van Dyke could not have relied on the promise made in 1998 if she thought in 2000 that it was necessary to have something in writing to record that promise, I do not accept that such a conclusion would follow. It is consistent with Ms Van Dyke being concerned that, having taken steps on the faith of the promise, she would have greater security if it were to be recorded in writing. In hindsight, the above acknowledgment (worded in the past tense) might be thought to have been carefully expressed so as to be drafted as an expression of willingness or intent (rather than as a promise to do what was said to have been intended), adopting the distinction drawn between the two in Gillett v Holt. However, whatever may have been Mr Sidhu's intention in the drafting of that note, it is the meaning objectively conveyed by the note that is relevant. 53Having regard to the circumstances in which the note was signed (Ms Van Dyke having expressed a concern as to her position with there being nothing in writing as to the property), I consider that the note should be construed as an acknowledgement that Mr Sidhu had promised or represented to Ms Van Dyke that he would transfer the Oaks Cottage (though not anything more than the cottage and land on which it then stood) to her and the failure to articulate that he no longer had that intention would itself be apt to mislead. I also consider significant the fact that the statement of willingness was not expressly conditioned on the death of Mrs Sidhu or a divorce from Mrs Sidhu or the relationship between Ms Van Dyke and Mr Sidhu continuing (or the other matters contended in the latter's Defence). This belies the suggestion that the promise made in 2000 was understood to be conditional on any of those events (since, if so, one would have expected Mr Sidhu to make that clear). 54I note that in Catanzariti v Whitehouse (1981) 55 FLR 426 it was said that a joint tenant of an estate in land can deal separately with his or her share of the estate, though is unable to bind his or her co-tenant. Such conduct would of course sever the joint tenancy - Corin v Patton (1989-1990) 169 CLR at 546, that being the first of the three modes of severance recognised in Williams v Hensman (1861) 1 J&H 546; 70 ER 862. Nevertheless, since The Oaks Cottage formed part of the Burra Station property, the promise so made by Mr Sidhu was clearly one that, in order to be capable of fulfilment, was predicated on the subdivision of the homestead land (and that was made clear in the conversation with Ms Van Dyke in which the promise was made in the first place). 55In cross-examination, it was suggested to Ms Van Dyke that there was another condition attaching to the promise to transfer The Oaks Cottage to her, namely that Mr Sidhu was then in a financial position to do so; it being put to Ms Van Dyke that she knew that if Mr Sidhu were forced to sell off the whole property because of financial circumstances then this would be the end of any promise to her (see T 60.24-61.21). 56Ms Van Dyke accepted that there had been difficult times (over the years in which the two were in a relationship) in which Mr Sidhu had been worried about his finances and that she had not raised an objection (by reference to the promise that had been made to her in relation to the Oaks Cottage) when at one stage Mr Sidhu had said to her that he might have to sell the whole property (although Ms Van Dyke also commented that she also thought that perhaps in that event he would compensate her - T 61.11). In that regard, there was evidence that in October 2000 there was some communication by Mr Sidhu with a real estate agent as to a possible appointment for the sale of "Burra" (with reference being made to the subdivision and the price of blocks) but there is nothing to suggest that Ms Van Dyke was aware of financial difficulties at that particular stage or of any proposal to sell the entire property at that stage, so the fact that she accepted that she had not raised an issue about the promise made to her in that context does not take matters any further. 57Ms Van Dyke's evidence in cross-examination confirmed that she was aware that at some stage there were financial difficulties surrounding the proposed subdivision but she was not aware of any proposal in 2000 to sell the entire property, if indeed that was a serious proposal. (In 2001, a different real estate agent prepared advertising material in relation to the Burra Station subdivision seeking registrations of interest in a limited first stage release of 5 blocks then anticipated to take place but this seems to have related to the Burra Station Estate.) 58On 31 October 2001, an application was made by the surveyors to the local council seeking to excise from the proposed subdivision of the Burra Station properties the homestead land (and referring to the latter being made the subject of a new application for a 3 lot community title subdivision), retaining the current application (ie the 1999 Laylos application) for a 19 lot subdivision. This was apparently thought to involve some cost or time savings in relation to the subdivision of the back block. 59Meetings took place in 2003 from March onwards in relation to the subdivision of the back block (Ms Van Dyke being recorded as being in attendance at a number of those meetings, there representing Laylos; Mr Sidhu also attending most such meetings on behalf of that company). Insofar as it was suggested in cross-examination of Ms Van Dyke that her role in relation to the subdivision (as evidenced by the only action item noted under her initials relating to the passing on of information) was minor, this does not appear to take into account the role that Ms Van Dyke seems (from the documents in evidence) to have played in preparing submissions for use by Mr Sidhu in meetings with Council or others in relation to the subdivision and her involvement in submissions on the threat posed to the subdivision by the presence or otherwise of native animals on the land. I accept that Ms Van Dyke played a not insignificant role in the work for the proposed subdivision (although I do not think it is clear that this was done in reliance on the earlier promises made to her). 60Ms Van Dyke alleges that in about 2004, Mr Sidhu represented to her that " her Oaks property" (my emphasis) would be expanded to include an area which included a permanent water spring and dams (so that she would have water for her horses and alpacas - those being at that time agisted free of charge on the Burra Station property) and that he had represented the position of the expanded boundary by physically stepping out the boundary with her ([11] of her Statement of Claim; [42]-[43] of her first affidavit). 61In response to this (at [11] of his defence), Mr Sidhu denies paragraph [11] of the Statement of Claim (repeating paras [7], [9] and [10] of the defence) but he did not give direct evidence to deny the assertion that the couple had physically stepped out an expended boundary for the land he had promised to give Ms Van Dyke. He goes on to plead that, following Ms Van Dyke asking about her future in The Oaks Cottage, he and his wife offered to sell The Oaks Cottage to Ms Van Dyke for market value on the basis that he and his wife would provide vendor finance on favourable terms; that in the course of discussing that offer Ms Van Dyke requested that the boundary around The Oaks Cottage be enlarged (which consequently reduced the area of an adjoining lot with a consequential change in the respective market values of the lots); and that, after "discussing the issue" with his wife, he caused the boundaries of the lots to be adjusted and instructed his surveyor to amend the drawings accordingly. 62In similar vein, at [14(b)], Mr Sidhu asserts that during the period from 2002 to 2005 he and Ms Van Dyke from time to time discussed that offer and that he told Ms Van Dyke that his wife was prepared to sell The Oaks Cottage to her on favourable vendor finance terms due to her love for Ms Van Dyke's son (Mrs Sidhu's nephew). 63Where neither Mr nor Mrs Sidhu has gone into evidence on the discussions in this regard, I accept Ms Van Dyke's version of events. The area in the survey plans for the proposed subdivision is consistent with Mr Sidhu having promised or represented to Ms Van Dyke that the boundary of the land he had promised to transfer to her would be extended. The fact that he may have promised something additional to that contemplated in 1998 may not be surprising given that the relationship had continued for some time and that it would mean that Ms Van Dyke would not be dependent on agistment on the remaining part of the Burra Station property in the future. There was no evidence from Mrs Sidhu to support Mr Sidhu's assertion as to the basis on which he told Ms Van Dyke that Mrs Sidhu was prepared to sell the cottage (ie referable to her love for her nephew), although there are statements in later correspondence that make such an assertion. In any event, there is nothing in writing before 2005 to suggest that what was contemplated by anyone was a sale as opposed to a gift of the cottage. 64I note that, insofar as para [14(b)] asserts that there was a discussion with Ms Van Dyke of a proposal to sell her The Oaks Cottage with favourable vendor finance over the period from 2002 to 2005, that is not only inconsistent with Mr Sidhu's earlier note as to the "gift" of the property to Ms Van Dyke but it is also inconsistent with the note signed by he and his wife in mid 2006, neither of which suggest that there is to be a sale as opposed to a gift. The genuine confusion in the witness box of Ms Van Dyke as to the mechanics of the provision of any vendor finance suggests to me that she was unfamiliar with such arrangements, making it unlikely in my view that there had been any discussion with Mr Sidhu over the period 2002 to 2005 in which he had explained any such arrangements. 65On 29 March 2005, Bendigo Bank wrote to Laylos offering a commercial term facility with a limit of over $3m and a bank guarantee/performance bond of around half a million dollars, apparently to be used in connection with the back block subdivision. That was accepted by Mr Sidhu and his brother, as directors of Laylos, and the back block was, at least from that time, the subject of a mortgage from Laylos to Bendigo and Adelaide Bank. 66On 21 April 2005, Ms Van Dyke sent an email to Mr Sidhu in which she referred to a conversation in which she had apparently said to Mr Sidhu that she was becoming very insecure and went on to say: It is time now that I had something that gives me some security and your continued promise that the house would be myown [sic] some day are becoming weaker verbal promises. As you would agree, I have been every bit a part of Burra Station and as you have said so many times, you wouldn't be there without me. Lets be honest and open with eachother [sic] and live a long and happy life on the farm 67That email is inconsistent with Mr Sidhu having by then already made offers to Ms Van Dyke on behalf of he and his wife to sell the property to her with the assistance of vendor finance. Nor was there any response from Mr Sidhu to deny that he had made continued promises (or had continued an earlier promise) that The Oaks Cottage would be Ms Van Dyke's. In that context, the reference to the house being Ms Van Dyke's own could only sensibly mean it being owned by her. 68Ms Van Dyke deposes, at [44] of her first affidavit, that Mr Sidhu said to her in mid-2005 (presumably at some time after the above email) words to the effect that it was only a 'matter of time' before the subdivision of the Burra Station Estate was selling and that money would then be available to complete lot 4 of the Burra Station subdivision (ie the expanded Oaks Property) and public road (the latter subdivision being conditional on the road to provide access to all 4 lots) and that "Lajla and I will then sign all the papers to transfer the expanded Oaks Property Lot 4 into your name"; that he had obtained Lajla's agreement; and that " Nothing has changed ... the property will be transferred to your name as I have always promised ". (my emphasis). Again, there is nothing in this email that suggests that the promise was conditional on Mrs Sidhu's death (as pleaded in the Defence) or on the Sidhus' divorcing (as pleaded in the Defence) or on the relationship between Ms Van Dyke and Mr Sidhu continuing (as also pleaded in the Defence). The only matter on which this email suggests the transfer was conditional was the money being available for the completion of the subdivision (which would enable the subdivision then to be completed). This email in my view belies the attempt by Mr Sidhu now to suggest that the promises made to Ms Van Dyke were anything less than promises to transfer property to Ms Van Dyke (first The Oaks Cottage and, by mid 2005, the expanded Oaks Property). 69By August 2005, the basis on which it was proposed that there would be a transfer of the land on which The Oaks Cottage had stood (expanded in accordance with the subdivision plans) was the matter of some careful consideration and communications to which Mrs Sidhu was a party. Mrs Sidhu, by an affectionately signed email forwarded to Ms Van Dyke and copied to Mr Sidhu (saying "here are our thoughts - discussed - whaddya reckon??????"), sent Ms Van Dyke a document headed "Draft of Understanding between LVD and L&B Sidhu - Property known as the Oaks Cottage and approximately 14 acres ", (my emphasis) dated 16 August 2005: When subdivision of Home Block (80 acres) is approved by Council and the infrastructure completed, then we agree to

1. Sell the Oaks Cottage with land to LVD
2. Agree on a reasonable market price for the property, with advice from an Agent.
3. L to secure loan or part loan to buy the property and L & B to finance any balance as second mortgagor; if no lender is available then L&B agree to finance the property as first mortgagor
4. L&B agree to lend L a sum of money to be agreed upon for renovations to the cottage such as gutters, windows, doors, etccetera [sic]
5. L to have complete freedom with the property to do with as she pleases ! (my emphasis) 70Relevantly, there is no doubt that this related not simply to the sale of the immediate area of land on which The Oaks Cottage stood but also to the area of land around it. Nor is there any suggestion that the parties were in doubt as to the area to be transferred (presumably identifiable by reference to the subdivision plans). The proposal is consistent with an agreement to transfer the land only becoming operative when the subdivision is approved and the infrastructure (as I understand it, the construction of the required public road for access to the blocks) is approved. 71The express recognition in this (admittedly draft) proposal that Ms Van Dyke was to have "complete freedom" to do with the property as she wished is inconsistent with any restriction on the later sale of the property by her (or that it was subject to an agreement that she would bequeathe the property to her son) as later suggested. There is also no suggestion in the document that the agreement to sell the property would be conditional on Ms Van Dyke continuing to live on the property (nor, unsurprisingly if Mrs Sidhu was unaware of or shutting her eyes to the affair, was there any reference to the need for the relationship between Ms Van Dyke and Mr Sidhu continuing). 72That said, the proposed arrangement is also inconsistent with the proposed transfer being a gift and therefore it might be said that it contemplated a new proposal in that regard. However, and perhaps significantly, once Mr Sidhu reviewed the terms there were changes made to the proposal that brought it, in effect, much closer to an outright gift (and thus might be seen to have been an attempt to honour his previous promises in that regard). 73Either the first draft understanding or the revised proposal sent by Mrs Sidhu after discussion with her husband to which I refer below seems to be the proposal referred to in [16] of Mr Sidhu's defence and which he describes as being a "written proposal to the plaintiff ... which was unconnected to any statement or promise previously made by [him]" and says was made following Ms Van Dyke telling his wife that she would like to buy the Oaks Cottage on favourable terms as she would not afford it otherwise. (Neither Mr nor Mrs Sidhu gave evidence of this alleged conversation.) 74On 2 September 2005, Mrs Sidhu sent to Ms Van Dyke an email headed "Draft of understanding, noting that this was "Beat's email from yesterday". That email from Mr Sidhu, dated 1 September 2005, read: My thoughts were
6. LK & PP [the Sidhus'] to sell (or transfer) property (cottage located on 16 acres) to L (Ms Van Dyke) at a price based on valuation by agent(s). L therefore is owner of property.

• Equitable Estoppel 117As noted above, Ms Van Dyke bases her claims for relief principally on the principles of equitable estoppel outlined in Waltons and in Giumelli . In Waltons Stores, Brennan J, contrasting equitable estoppel with estoppel in pais (though noting that where the estoppel relates to an assumption of an existing contract these may lead to the grant of similar remedies), said: Equitable estoppel, on the other hand, does not operate by establishing an assumed state of affairs. Unlike an estoppel in pais, an equitable estoppel is a source of legal obligation. It is not enforceable against the party estopped because a cause of action or ground of defence would arise on an assumed state of affairs; it is the source of a legal obligation arising on an actual state of affairs. An equitable estoppel is binding in conscience on the party estopped, and it is to be satisfied by that party doing or abstaining from doing something in order to prevent detriment to the party raising the estoppel which that party would otherwise suffer by having acted or abstained from acting in reliance on the assumption or expectation which he has been induced to adopt. Perhaps equitable estoppel is more accurately described as an equity created by estoppel. 118Brennan J there noted that the element attracting the jurisdiction of a court of equity (and shaping the remedy to be given) is unconscionable conduct on the part of the person bound by the equity and that some indication of what constitutes unconscionable conduct may be gleaned from the instances in which an equity created by estoppel has been held to arise. 119Although his Honour expressed the opinion that "If cases of equitable estoppel are in truth but particular instances of the operation of the general principles of equity, there is little purpose in dividing those cases into the categories of promissory and proprietary estoppel which are not necessarily exhaustive of the cases in which equity will intervene" (and considered that there was no logical basis for distinguishing between the enforcement of non-contractual promises to create new proprietary rights and the enforcement of non-contractual promises to create a non-proprietary legal right on another), and there are comments by Mason CJ and Deane J in Commonwealth v Verwayen (1990) 170 CLR 394 that suggest a convergence of the different classifications of estoppel toward a unified doctrine based on the commonality of elements across the different forms, in Giumelli the High Court expressly refrained from addressing the issue as to the relationship between the different types of estoppel. In Guimelli , the plurality said: There is no occasion in this appeal to consider whether the various doctrines and remedies in the field of estoppel are to be brought under what Mason CJ called "a single overarching doctrine" or what Deane J identified as a "general doctrine of estoppel by conduct". These theses were advanced by their Honours in The Commonwealth v Verwayen but not accepted by Dawson J or McHugh J. Brennan J approached the subject on the footing that "equitable estoppel yields a remedy in order to prevent unconscionable conduct on the part of the party who, having made a promise to another who acts on it to his detriment, seeks to resile from the promise". Subsequently, in the joint judgment of Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ in Australian Securities Commission v Marlborough Gold Mines Ltd , reference was made to "an equitable estoppel of the kind upheld in Verwayen ". 120The Court of Appeal has recently confirmed the distinction as to the relief available under the doctrines of proprietary and promissory estoppel. In Saleh v Romanous [2011] NSWCA 264 (from which an application for special leave was refused - [2011] HC Trans 101) and DHJM Pty Ltd v Blackthorn Resources Ltd [2011] NSWCA 348, Handley AJA analysed and followed authority for the proposition that the doctrine of promissory estoppel does not create new rights (but, rather, operates to restrain enforcement of existing legal rights by the promisor). That said, although there remain distinct forms of estoppels in Australian law, illustrations and propositions from cases considering the same element arising in different contexts, such as promissory estoppel and common law estoppel by representation, may still be instructive for a case of proprietary estoppel such as this. (In DHJM , Meagher JA, with whom Macfarlan JA agreed, did not consider the that outcome of the appeal was dependent on whether the equitable estoppel relied upon was "a proprietary estoppel or a promissory estoppel with respect to a promise to create new rights" (at [48]).) 121Ms Van Dyke does not expressly base her claim on a proprietary (as opposed to promissory) estoppel. However, in accordance with Saleh , insofar as she seeks positive relief (including an order for the transfer of the Oaks Property to her) rather than negative relief (in the sense of a restraint on the enforcement of Mr Sidhu's legal rights), her claim must be one brought under the rubric of proprietary estoppel. 122In Barnes v Alderton [2008] NSWSC 10 per Young CJ in Eq (as his Honour then was) noted at [39] the two branches of proprietary estoppel (estoppel by acquiescence, being the passive form of proprietary estoppel, and estoppel by encouragement, being its active form. In the present case, Ms Van Dyke relies on the latter. 123Turning to what must be established for an equitable estoppel to arise, in Waltons Stores , Brennan J said: In my opinion, to establish an equitable estoppel, it is necessary for a plaintiff to prove that (1) the plaintiff assumed that a particular legal relationship then existed between the plaintiff and the defendant or expected that a particular legal relationship would exist between them and, in the latter case, that the defendant would not be free to withdraw from the expected legal relationship; (2) the defendant has induced the plaintiff to adopt that assumption or expectation; (3) the plaintiff acts or abstains from acting in reliance on the assumption or expectation; (4) the defendant knew or intended him to do so; (5) the plaintiffs action or inaction will occasion detriment if the assumption or expectation is not fulfilled; and (6) the defendant has failed to act to avoid that detriment whether by fulfilling the assumption or expectation or otherwise. For the purposes of the second element, a defendant who has not actively induced the plaintiff to adopt an assumption or expectation will nevertheless be held to have done so if the assumption or expectation can be fulfilled only by a transfer of the defendant's property, a diminution of his rights or an increase in his obligations and he, knowing that the plaintiff's reliance on the assumption or expectation may cause detriment to the plaintiff if it is not fulfilled, fails to deny to the plaintiff the correctness of the assumption or expectation on which the plaintiff is conducting his affairs. 124In Giumelli , Gleeson CJ, McHugh, Gummow and Callinan JJ, referring to the earlier cases of Dillwyn v Llewelyn and Riches v Hogben , noted that the equity which founded the relief granted in those cases was found in an assumption as to the future acquisition of ownership of property which had been induced by representations upon which there had been detrimental reliance by the plaintiff. 125Reliance was also placed by Ms Van Dyke on the proposition stated by Priestley JA, with which Kirby P expressly concurred, in Austotel Pty Ltd v Franklins Self Serve Pty Ltd (1989) 16 NSWLR 582 (expanding the fifth of the propositions set out in Silovi Pty Ltd v Barbaro (1988) 13 NSWLR 466) that:

5. 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. 126In Vukic v Luca Grbin; Estate of Zvonko Grbin [2006] NSWSC 41, Brereton J, with reference to Waltons Stores , 428-429 (per Brennan J) and Meagher, Gummow & Lehane, Equity: Doctrines & Remedies, (4th ed., 2002), [17-105], summarised the matters which a plaintiff must establish to found an equitable estoppel as follows (though disclaiming any attempt at being exhaustive in this description): First , in relation to the plaintiff's conduct: that the plaintiff acted (or abstained from acting) in reliance upon an assumption or expectation that a particular legal relationship existed or would exist between the plaintiff and the defendant, or that the plaintiff had or would acquire some interest in the defendant's property; Secondly, in relation to the defendant's conduct: that the defendant induced the plaintiff to adopt the assumption or expectation and encouraged the reliant activities of the plaintiff, or at least failed to deny the assumption or expectation with knowledge that the plaintiff was relying on it to the plaintiff's potential detriment and that it could be fulfilled only by transfer of the defendant's property, a diminution of the defendant's rights or an increase in the defendant's obligations; Thirdly, in relation to the interest or property: that the assumption or expectation was one which the defendant could lawfully satisfy. 127That summary of the relevant principles was adopted by Nicholas J in Saliba v Tarmo [2009] NSWSC 581 and referred to with apparent approval by Bergin CJ in Eq in Simpson-Cook v Delaforce [2009] NSWSC 357. In Simpson-Cook , Bergin CJ in Eq said (at [29]): It is also important to remember Walker LJ's caution [in Gillett v Holt ] that: (1) the "flexible doctrine" of proprietary estoppel cannot be treated as subdivided into three or four watertight compartments; (2) the quality of the relevant assurances may influence the issue of reliance; (3) reliance and detriment are often intertwined; and (4) whether there is a distinct need for a "mutual understanding" may depend on how the other elements are formulated and understood: at 227 and 230. The following principles relevant to the circumstances of this case may be gleaned from Walker LJ's analysis in Gillett v Holt : (1) promises unsupported by consideration are initially revocable, however detrimental reliance on such promises make them irrevocable; (2) there must be a sufficient link between the promises relied on and the conduct which constitutes the detriment; and (3) detriment can be financial or otherwise, however if other than financial it has to be substantial. 128In Waltons Stores , Brennan J observed that the basic object of the doctrine of equitable estoppel is to avoid the detriment which the promisee would suffer if the promisor fails to fulfil the promise, noting that the doctrine has no application to an assumption or expectation induced by a promise which is not intended by the promisor and understood by the promisee to affect their legal relations (and referring by way of illustration of this proposition to Attorney-General (Hong Kong) v Humphreys Estate [1987] AC 114, where the promise was expressly stated as being "subject to contract" and hopes or reasonable expectations that a contract might eventuate were not sufficient to ground an equitable estoppel). His Honour said: It follows that an assumption or expectation by one party which does not relate to what the other party is bound to do or not to do gives no foundation for an equitable estoppel, though the assumption or expectation relates to the prospect of the other party conducting himself in a particular way. The risk that the other party who, being free to conduct himself in whatever way he chooses, may choose to conduct himself in a way different from that assumed or expected rests with the party who adopts the assumption or expectation. 129His Honour further noted that it is essential to the existence of an equity created by estoppel that the party who induces the adoption of the assumption or expectation knows or intends that the party who adopts it will act or abstain from acting in reliance on the assumption or expectation (citing Lord Denning MR in Crabb v Arun District Council [1976] Ch 179; [1975] 3 All ER 865). 130As to the need for detrimental reliance on the promise or representation, although there was a question raised by Austin J in Galaxidis v Galaxidis [2001] NSWSC 1123 at [157] as to whether detriment is a necessary ingredient for the application of the equitable doctrine and Campbell J (as his Honour then was) noted in Sullivan v Sullivan [2005] NSWSC 10 (at [26]) noted there was then some uncertainty in the law 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, subsequent authorities make clear the need for the plaintiff's reliance on the promise or representation to have been detrimental. 131In Barnes v Alderton , Young CJ in Eq (as his Honour was then) confirmed the need for the plaintiff to have actually changed his or her position or suffered some prejudice in reliance on the relevant representation (at [46]) and said (at [42]): No equity arises to raise a proprietary estoppel unless the person in whose favour it is being raised, has acted to their prejudice or detriment in some way whether in terms of direct expenditure or on some other basis: Greasley v Cooke [1980] 1 WLR 1306 at 1314. However, the detriment may not necessarily be expenditure of money, commonly a claimant leaves her job, moves in with the promisor and does his housekeeping for many years, such as in Jones v Jones [1977] 1 WLR 438. However, as set out in Pawlowski on the Doctrine of Proprietary Estoppel (Sweet & Maxwell, London, 1996) at pp 69 and following, minor expenditure such as day to day living expenses or minor repairs will not qualify. 132His Honour also referred with approval to what had been said by Nettle JA in Donis v Donis [2007] VSCA 89 at [19] - [20]: The estopped party, having promised to confer a proprietary interest on the party entitled to the benefit of the estoppel, and the latter having acted upon the promise to his or her detriment, is bound in conscience to make good the expectation. It follows that the detrimental reliance that supports the estoppel need not constitute in any sense a consideration moving to the party bound. It is a unilateral element of the estoppel and not the price paid for it. ... The object of the exercise is to do equity and for that purpose 'detriment' is no narrow or technical concept. It need not consist of expenditure of money or other quantifiable financial disadvantage so long as it is something substantial. The requirement must be approached as part of a broad inquiry as to whether departure from a promise would be unconscionable in all the circumstances. 133In Riches v Hogben [1985] 2 Qd R 292, in a passage referred to with approval by the High Court in Giumelli , McPherson J noted (at 301) that "[i]t is not the existence of an unperformed promise that invites the intervention of equity but the conduct of the plaintiff in acting upon the expectation to which it gives rise." 134In Walton v Walton (1994, England and Wales Court of Appeal, Civ Div, unreported), Hoffman LJ said: ... equitable estoppel ... does not look forward into the future and guess what might happen. It looks backwards from the moment when the promise falls due to be performed and asks whether, in the circumstances which have actually happened, it would be unconscionable for the promise not to be kept. 135Drawing generally from the above authorities, it is submitted by Mr Newlinds, and broadly speaking I agree, that for Ms Van Dyke to establish an entitlement to relief on the basis of the principles of proprietary estoppel, relying on the promises/representations made to her by Mr Sidhu, it is necessary that she establish: the making of a clear and unequivocal promise (such that it was objectively reasonable for Ms Van Dyke to interpret the promise in a particular way and to act in reliance on that interpretation); that Mr Sidhu's promise caused Ms Van Dyke reasonably to assume that a particular legal relationship existed between her and Mr Sidhu; that Ms Van Dyke acted reasonably in reliance on the promise; that Mr Sidhu knew or intended that Ms Van Dyke would act in reliance on the promise; that Ms Van Dyke's reliance on the promise was to her detriment; and that Mr Sidhu has acted unconscionably in resiling from the promise. Those matters are addressed below.

• Unconscionable Conduct 136Ms Van Dyke also bases her claims for relief in the alternative on the alleged unconscionable conduct of Mr Sidhu in resiling from the promise(s) made by him. 137While unconscionability as a concept underlies the basis for many instances of equitable relief (including proprietary estoppel - it having been said in Gillett v Holt [2001] Ch 210; [2000] 3 WLR 815 that "the fundamental principle that equity is concerned to prevent unconscionable conduct permeates all the elements of the doctrine [of proprietary estoppel]"), it does not operate wholly at large ( Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199) and does not create rights merely on the grounds of what is thought to be fair ( Muschinski v Dodds (1985) 160 CLR 583). 138What is required is that a plaintiff point to the reason why the impugned conduct is said to be unconscionable ( Tory v Tory [2007] NSWSC 1078 at [58]). In the present case, Ms Van Dyke points to the detriment or change of position suffered by her in reliance on the respective promises for the conclusion that Mr Sidhu's conduct in not honouring those promises is unconscionable. In essence, that seems to me to take the position no further than the estoppel case since the basis on which Ms Van Dyke submits that Mr Sidhu's conduct is unconscionable is that he would thereby retain the benefit of the things done by her in reliance on this promises. 139Ms Van Dyke submits that she has contributed "financially or otherwise" for the purposes of the joint relationship with Mr Sidhu on the assumption that she was being provided with a home; that she had no intention of leaving the property when Mr Sidhu said to her on 21 July 2006 that the temporary relocatable cottage in which she was living (and which she was proposing to moving onto the Oaks Property site) was no longer available to her to live in; and that Mr Sidhu's assertion that the Oaks property is his, to the exclusion of any interest at all on her part, amounts to unconscionable conduct which would justify the imposition of a constructive trust over the property (or at least over Mr Sidhu's interest in the property) or equitable compensation in lieu. 140The claim by Ms Van Dyke was not put in terms of an unjust enrichment claim as such but even had it been so pleaded more would have been required than proof of the conferral and receipt of a benefit (see Lumbers v W Cook Builders Pty Ltd (in liq) [2008] HCA 27; (2008) 232 CLR 635; (2008) 247 ALR 412 (at [85]); Farah Constructions v Say-Dee [2007] HCA 22; (2002) 230 CLR 89 at [150]-[151]). 141The bare fact that Mr Sidhu has obtained the benefit of work carried out by Ms Van Dyke on the Oaks Property (or the Burra Station property generally) in the expectation or assumption that The Oaks Cottage (or the Oaks Property) would ultimately be hers would not be sufficient to give rise to relief based on unconscionable conduct just as it would not of itself give rise to a restitutionary remedy. Insofar as the unconscionable conduct alleged by Ms Van Dyke is concerned is the failure by Mr Sidhu to honour his promise after detrimental reliance by Ms Van Dyke thereon, this would bring the claim within the bounds of equitable estoppel. 142In Haxton v Equuscorp (formerly Equus Financial Services Ltd) (ACN 006 012 344) (2010) 265 ALR 336; [2010] VSCA 1, the Victorian Court of Appeal, after extensively reviewing the High Court's discussion concerning the availability of restitution on the basis on unjust enrichment in Australia, (referring to Pavey & Mathews ; Australia and New Zealand Banking Group Ltd v Westpac Banking Corporation (1988) 164 CLR 662; 78 ALR 157; [1988] HCA 17; David Securities ; Commissioner of State Revenue (Vic) v Royal Insurance Australia Ltd (1994) 182 CLR 51; 126 ALR 1; [1994] HCA 61; Roxborough v Rothmans of Pall Mall Australia Ltd (2001) 208 CLR 516; 185 ALR 335; [2001] HCA 68; and considering Lumbers v Cook ) said (at [127]): The High Court's post- Pavey elaboration of unjust enrichment signals a caveat against loose applications of overly general principles and associated "idiosyncratic notions of unfairness (my emphasis) 143In this regard, Mr Newlinds submits, and I accept, that to break a promise is not, of itself, unconscionable in the sense necessary to give rise to an entitlement to relief in equity. What makes it unconscionable in particular cases is the detrimental reliance placed on the promise in circumstances where the promisor knew or should have known of that reliance. In the present case, the claim for unconscionable conduct must stand or fall with the claim based on equitable estoppel. Issues for determination 144With the above legal principles in mind, I turn to the issues that the parties have agreed arise for determination in the present case. (i) the promises/representations made by Mr Sidhu 145Ms Van Dyke submits that the promises/representations made to her were clear and unambiguous: namely, that The Oaks Property was her home and that Mr Sidhu would transfer or procure its transfer to her (Mr Sidhu having represented to her that he was able to effect such a transfer and to do what he wished with his share of the Burra Station property). Ms Van Dyke does not assert or rely upon any such promise or representation by Mrs Sidhu (the only conceivable promise or representation by Mrs Sidhu to that effect being the written statement recording her agreement to the transfer of the Oaks Cottage, which was signed by her on 7 May 2006 and on which it is not suggested that any detrimental reliance was placed by Ms Van Dyke). 146Mr Newlinds does not dispute (nor on the evidence could it seriously be disputed) that promises were made by Mr Sidhu during the course of his relationship with Ms Van Dyke. I consider that these promises went beyond a statement as to Ms Van Dyke's occupation of The Oaks Cottage. However, Mr Newlinds contends that whatever promise was made was only to be performed when the subdivision of the "Oaks Property" was completed (which event has not occurred); that the various promises were not clear and unequivocal; and that the promises were the subject of various conditions. As to the conditional nature of the promises, this submission seems to be one going both to the meaning that could therefore objectively be said to be conveyed by the promises (in which regard Mr Newlinds places weight on the context in which they were made being that of an "illicit affair" and the subject matter of the promises being property jointly owned by Mr Sidhu and his wife), and the reasonableness of any reliance placed thereon. 147Mr Newlinds submits that the promise (by which I understand him to refer to the promise or intention acknowledged in the document signed by Mr Sidhu in 2000, to "gift" The Oaks Cottage to Ms Van Dyke) was either not continued or had been changed, or had been resiled from, long before most of the acts of reliance pointed to by Ms Van Dyke. (While the content did change, I do not accept that the promise was resiled from before the commencement of the acts of reliance pleaded by Ms Van Dyke.) 148As adverted to above, Mr Newlinds submits that, whatever the actual words (spoken or written), the meaning conveyed by them is driven by the context in which they were communicated, that context being the affair between the two. He submits that Ms Van Dyke should be taken as having understood the promise that The Oaks Cottage was "her home" as conveying no more than that she could stay there (as a tenant) as long as she wished, at least if and until the sub-division was completed. Reference is made to the evidence given in cross-examination by Ms Van Dyke in relation to the promise recounted in para [19] of her affidavit (at T 65.19-66.19) in that regard. 149Ms Van Dyke accepts that Mr Sidhu said to her that he wanted her to have a home "here with me" (T 65) and that this could have been achieved simply by allowing her to remain as a tenant in The Oaks Cottage. If the statement by Mr Sidhu had been simply to the effect that The Oaks Cottage was (or would be) Ms Van Dyke's home, then I would accept that this was not an unequivocal promise to transfer the land on which it stood to Ms Van Dyke (and that it could objectively be understood as a promise to allow Ms Van Dyke to remain on the property as a tenant, consistent with what thereafter happened with the ongoing payment of rent by her). However, that is not all that Mr Sidhu said to Ms Van Dyke in relation to The Oaks Cottage (he also said that when Burra Station was subdivided he would make sure the cottage was put in her name) and the context in which the promises that it was he now was later repealed (in relation to the lack of any need for a property settlement and when Ms Van Dyke expressed concern that she had nothing in writing) seems to me to go beyond the limited meaning that Mr Newlinds submits it should bear. 150Insofar as Mr Newlinds points to the difference between the way in which the promise was particularised in the pleading ("I will give you the Oaks property ... it is your home") and the words attributed to Mr Sidhu in Ms Van Dyke's affidavit ("I want you to have a home here with me. I'm planning to subdivide Burra Station. As soon as this is done I will make sure the Oaks is put into your name"), it seems to me that the relevant distinction is between whether the statement as to the Oaks (whether that be the Oaks property or The Oaks Cottage) being Ms Van Dyke's 'home' was as to the present or the future. However, there seems to me to be no relevant distinction between a promise to give (or "to gift") the Oaks to Ms Van Dyke and the promise to put it into her name. 151Significantly, in my view, the evidence goes beyond a statement that The Oaks (property or cottage) is or would be Ms Van Dyke's home. Ms Van Dyke deposes (and Mr Sidhu did not give evidence himself to deny) that Mr Sidhu said to her that as soon as the subdivision of Burra Station was done he would make sure that "the Oaks" was put into her name. That does not seem to me to be apt to refer to the grant of a lease. Further, the substance of that statement as being a promise to transfer property to Ms Van Dyke was effectively conceded when Mr Sidhu signed the statement in 2000 acknowledging that he had "expressed the willingness" to "gift" the property to Ms Van Dyke. 152Mr Newlinds submits that such a promise was not clear and unequivocal, since it was subject to a number of express or implied conditions, each of those being put to Ms Van Dyke in cross-examination. 153First, it is said that the promise was conditional on the romantic relationship continuing between the couple continuing. Ms Van Dyke, when asked to accept that she understood that what Mr Sidhu was saying to her (when he spoke about the property being her home) was conditional on the romantic relationship continuing, agreed with the proposition (T 49.46). However, as the cross-examination proceeded it did not seem to me that Ms Van Dyke had understood the series of questions there being put to her as going to her understanding at the time that the promise was conditional on a number of things. When that was clarified with Ms Van Dyke her immediate response was that she did not believe they were conditions and that they were not put to her as conditions (T 50.23). After further cross-examination, Ms Van Dyke made clear in my view what she had meant when she accepted (at T 51.11) that she "knew that all this was conditional on your relationship continuing", namely that she understood that the relationship was the reason that Mr Sidhu had represented to her that she would have the property (T 51.24). Later, at T 80.4, Ms Van Dyke somewhat equivocally responded "perhaps" to a question as to her knowledge that such a promise would always be conditional on the relationship continuing. I understood the thrust of Ms Van Dyke's evidence to this point to be that she knew that the reason Mr Sidhu had promised her the cottage was because of their relationship and that she had assumed that the relationship would be continuing when the cottage was transferred to her but not that she had understood that the promise as made to her was conditional on the relationship continuing (that, I think, is the meaning to be taken from Ms Van Dyke's answer at T 51.45). At T 90.30, however, Ms Van Dyke affirmed that she had earlier agreed with the proposition that whatever else the content of the promises were they were conditional on the relationship between herself and Mr Sidhu continuing (T 90.30). 154I consider that there is a difference between an assumption that a state of affairs will exist or continue to exist at the time for performance of a promise and the promise being conditional upon that state of affairs existing or continuing to exist at the relevant time. What Mr Sidhu's case on this point in effect seems to be is that the promise was one which it was at all times within his discretion whether or not to fulfil (since by bringing the relationship to an end he would also bring the promise to an end). While I accept that a promise unsupported by consideration is, in the words of Bergin CJ in Eq in Simpson-Cook , 'initially revocable', as her Honour noted in that case detrimental reliance on such a promise may make it irrevocable. 155I find it difficult to accept that the evidence establishes that the promise initially made by Mr Sidhu (namely, that as soon as the subdivision of Burra Station was effected he would put The Oaks Cottage in Ms Van Dyke's name) was objectively to be understood as conditional on the relationship between the two continuing. It was not suggested by Mr Newlinds that this was expressed to be a condition of the promise, in whatever words that promise was made and it was not a necessary pre-condition in the same way as the subdivision of the property was. (On this point, Mr Sidhu's correspondence after the relationship ceased suggests that he too did not consider the promise, which he had acknowledged more than once, to be conditional on the relationship continuing since he referred to the need to sort out property and money issues, something seemingly unnecessary if Ms Van Dyke were no more than a tenant with an expectation that the property might be transferred to her if she remained in a romantic relationship with Mr Sidhu.) 156While I take into account the fact that Ms Van Dyke, who I consider to have been a truthful witness genuinely attempting to answer the questions put to her, did ultimately agree that the promises made to her were conditional on the relationship continuing (T 90.30), it seemed to me that this concession was made on the basis that it was the witness' assumption that the relationship would continue. Therefore, although Ms Van Dyke accepted that before the time for fulfilment of the promise (ie before the subdivision was finished) she had left the relationship (T 90.36), I do not see this as justification for the departure by Mr Sidhu from the promises he had made. 157Second, it is submitted that the promise was conditional on Ms Van Dyke continuing to live at Burra Station. This was the subject of cross-examination at T 53.3-53.36. Again, however, while Ms Van Dyke initially agreed that she understood that when the promises were made to her they were conditional on her continuing to live on the property, by that she seems to have meant that "it was assumed that I would be living there" and she denied that she knew that whatever was being promised would not be fulfilled if she stopped living there. Ms Van Dyke's evidence was (and this is supported by the lack of any reference to this as a condition not only in the signed statements of 2000 and 2006 recording the promise but also in the two drafts of the 'understanding' in relation to the transfer of the expanded Lot 4 in the proposed subdivision in late 2005) that the issue as to her remaining on the property only arose in around 2005. I do not accept that the promise initially made was conditional (expressly or impliedly) on Ms Van Dyke continuing to live on the property. 158Third, it is submitted that the promise was conditional on Mrs Sidhu's consent to the transfer or, (as put to Ms Van Dyke in cross-examination at T 49.48) on Mrs Sidhu having died or there having been a divorce in which Mr Sidhu obtained that part of the land on which The Oaks Cottage stood). Ms Van Dyke knew that the property was jointly owned by Mr and Mrs Sidhu (T 43.15; T 66.26) but insofar as Mrs Sidhu's consent to a transfer was necessary for the property to be transferred (which Ms Van Dyke also accepted that she knew T 44.26) Ms Van Dyke says that she relied on Mr Sidhu's representation that he could do what he wanted with "his share" of the property. At T 51.1, Ms Van Dyke said "I understood that the defendant was representing to me that the Oaks property would be transferred into my name and that he would get his wife's permission on that". However confident Mr Sidhu may have been (or may have represented to Ms Van Dyke that he was) of obtaining his wife's permission, I accept that the promise to transfer the property was implicitly conditional on Mrs Sidhu's consent being obtained (or events otherwise occurring that made such consent unnecessary) and that Ms Van Dyke or a reasonable person in her position would have understood that. (That said, the fact that the promise would objectively have been understood as being for practical purposes conditional on the consent of Mrs Sidhu to the transfer does not make the promise itself vague or equivocal, particularly when coupled with a representation that Mr Sidhu was in a position to deal with his share of the property as he wished - which might well have been the case had there been some form of agreement in place with Mrs Sidhu to that effect). 159Fourth, it is submitted that the promise was conditional on Mr Sidhu not being compelled (because of his financial circumstances) to sell the land in the meantime. Ms Van Dyke accepted that she "would have known" that if Mr Sidhu had been forced to sell the property (by which Mr Newlinds' question seemed to refer at least to the Burra Station or homestead property, but which may also have been intended to refer also to the back block owned by the company Laylos) then he would have had to sell the whole property (ie including that part on which The Oaks Cottage stood) (T 60.28) but suggested that "well perhaps I also thought that perhaps he'd compensate me in some way if he did do that" (T 61.11), though conceding that this had not been discussed. Ms Van Dyke said she was not aware of the front block having been put on the market, although she thought that Mr Sidhu may have said he would enquire into it at one stage (T 60.36) and she was aware that there were difficult times during the years and Mr Sidhu was worried about his finances, and that there was an overdraft on the back block (T 61.20). Ms Van Dyke did not recall having protested at the possibility of a sale (though that would have included the Oaks Cottage land) (T 80.21; T 60.44-46), though she remembered being concerned that that was a possibility. I accept that the promise must in a practical sense have been understood as conditional on Mr Sidhu's financial ability to perform the promise - since if the land were sold due to financial constraints it would no longer be available to be transferred to Ms Van Dyke. However, again, that does not render the promise itself vague or unequivocal. 160Fifth, it is submitted that the promise was conditional on the subdivision of the homestead block occurring (Ms Van Dyke acknowledging that this was the case at T 44.31; T 45.36; 49.39-49.42) and being consistent with the area of land that Ms Van Dyke says she was promised (ie the Oaks Property comprising the Oaks Cottage and its natural boundary) (which Ms Van Dyke also acknowledged at T 55.39). There can be no doubt (given the manner in which the title was held and Ms Van Dyke's knowledge that the overall property was jointly owned, that from a practical point of view it was necessary, before any provision to transfer The Oaks Cottage or property to her, for there to be a subdivision of the homestead block. 161Sixth, it is submitted that the promise was conditional on the secured lender consenting to the transfer of the lot to Ms Van Dyke. Mr Newlinds notes that Ms Van Dyke accepted at T 47.46 that there was a mortgage over the back block securing a "huge loan involved in getting the back blocks subdivided" (T 47.24) but her evidence was that she did not know whether Burra Station was mortgaged. She nevertheless was prepared to accept that if the bank had a mortgage over the front block then Mr Sidhu would have to obtain the bank's agreement to the transfer of a part of the property to her (T 48.4). 162Finally, it is submitted that the promise was conditional upon the payment by Ms Van Dyke of the costs of the transfer. Reference was made in this context to the evidence given by Ms Van Dyke during her cross-examination from T 86.28-86.43 that she was going to try to meet the costs of a transfer to her by way of borrowings. In this regard, there is nothing in the initial discussions as recounted by Ms Van Dyke or in the signed acknowledgement of 2000 that suggested that Ms Van Dyke was to meet any of the costs of the transfer - rather what was contemplated was a gift to Ms Van Dyke (and the payment of associated costs was not a part of the discussion). It was the 2005 draft "Understanding" document that raised the issue as to how the stamp duty and other costs associated with the transfer were to be borne. However, in her cross-examination Ms Van Dyke seemed to suggest that she had understood the earlier arrangement also to have involved the payment of her of the costs of the transfer. 163Mr Newlinds submits that in light of the conditions on the promises, the circumstances of the promises and the changing content of the promises asserted by Ms Van Dyke, she cannot establish that there was a clear and unequivocal promise made to her in relation to the property but, rather, the relevant promises were vague, equivocal and beyond the control of Mr Sidhu. 164The fact that there was some imprecision in the promise is not necessarily fatal to Ms Van Dyke's claim. In Thorner v Major [2009] 1 WLR 776, in the House of Lords, Lord Hoffmann said (at [3]): The Court of Appeal said, correctly, that the fact that Peter had actually intended David to inherit the farm was irrelevant. The question was whether his words and acts would reasonably have conveyed to David an assurance that he would do so. ....But Lloyd LJ accepted, at para 66, that the finding as to what Peter would reasonably have been understood to mean by his words and acts was a finding of fact which was not open to challenge. That must be right. The fact that he spoke in oblique and allusive terms does not matter if it was reasonable for David, given his knowledge of Peter and the background circumstances, to have understood him to mean not merely that his present intention was to leave David the farm but that he definitely would do so . (my emphasis) and at [5]: ... In my opinion it did not matter whether Peter knew of any specific alternatives which David might be contemplating. It was enough that the meaning he conveyed would reasonably have been understood as intended to be taken seriously as an assurance which could be relied upon. If David did then rely upon it to his detriment, the necessary element of the estoppel is in my opinion established. It is not necessary that Peter should have known or foreseen the particular act of reliance. (my emphasis) 165Lord Walker of Gestingthorpe in Thorner v Major noted at [54] and then at [56] that: There is some authority for the view that the "clear and unequivocal" test does not apply to proprietary estoppel. That view was expressed by Slade LJ in Jones v Watkins (unreported) 26 November 1987; [1987] CA Transcript No 1200 . The same view has been expressed in at least the past three editions of Treitel, Law of Contract . The current (12th) edition (2007) by Mr Edwin Peel, in a passage comparing promissory and proprietary estoppel, states, at para 3-144: "promissory estoppel arises only out of a representation or promise that is 'clear' or 'precise and unambiguous'. Proprietary estoppel, on the other hand, can arise where there is no actual promise: eg where one party makes improvements to another's land under a mistake and the other either knows of the mistake or seeks to take unconscionable advantage of it." ... I would prefer to say (while conscious that it is a thoroughly question-begging formulation) that to establish a proprietary estoppel the relevant assurance must be clear enough. What amounts to sufficient clarity, in a case of this sort, is hugely dependent on context. (my emphasis) I respectfully concur in the way Hoffmann LJ put it in Walton v Walton [1994] CA Transcript No 479 ... at para 16: "The promise must be unambiguous and must appear to have been intended to be taken seriously. Taken in its context, it must have been a promise which one might reasonably expect to be relied upon by the person to whom it was made." 166Lord Neuberger of Abbotsbury said at [85] - [86]: Secondly, it would be quite wrong to be unrealistically rigorous when applying the "clear and unambiguous" test. The court should not search for ambiguity or uncertainty, but should assess the question of clarity and certainty practically and sensibly, as well as contextually. ..., at least normally, it is sufficient for the person invoking the estoppel to establish that he reasonably understood the statement or action to be an assurance on which he could rely. Thirdly, as pointed out in argument by my noble and learned friend, Lord Rodger of Earlsferry, there may be cases where the statement relied on to found an estoppel could amount to an assurance which could reasonably be understood as having more than one possible meaning. In such a case, if the facts otherwise satisfy all the requirements of an estoppel, it seems to me that, at least normally, the ambiguity should not deprive a person who reasonably relied on the assurance of all relief: it may well be right, however, that he should be accorded relief on the basis of the interpretation least beneficial to him. 167I do not accept that the fact that the promise was conditional (expressly or implicitly), in the sense that it depended in a practical sense on one or more of the matters identified by Mr Newlinds, renders it vague or equivocal. Nor does the fact that it changed from time to time (although that may affect the question of reliance - since some of the acts of reliance, such as the giving up of the opportunity to seek a family law settlement, occurred prior to the expansion of the promise to the extended Oaks Property land). 168In Gillett v Holt at 301, it was noted: ... that the quality of the relevant assurances may influence the issue of reliance, that reliance and detriment are often intertwined, and that whether there is a distinct need for a 'mutual understanding' may depend on how other elements are formulated and understood. ...In the end the court must look at the matter in the round. 169The question is what would objectively have been conveyed by the promise. I am satisfied that there was initially a promise that the Oaks Cottage (and the land on which it stood) would be the subject of a gift to Ms Van Dyke. The fact that it was obviously conditional on the sub-division of the Burra Station (and that this was a matter not wholly within Mr Sidhu's control, since it depended at the very least on Council approval and may also have depended on his ability to arrange finance for the works associated with the subdivision) goes to the question of reasonable reliance on (and time for performance of) the promise (and hence whether it is unconscionable for Mr Sidhu in the now changed circumstances of the relationship to resile from the promise) but does not seem to me to go to the clarity or certainty of the promise itself. 170In Van Dyke v Sidhu in the Court of Appeal, Young JA observed that: Again, cases like Morris v Morris [1982] 1 NSWLR 61 and the decision of Needham J in the Lord Howe Island case, Nichols v Nichols (1986) 4 BPR 9240, show that it is not necessarily a complete bar to a claim that there is some law preventing transfer of an interest In the subject property or some other party holds an interest in the property which is the subject of the claim: the Court can give equitable compensation. 171Ms Van Dyke referred in her submissions in this regard to the further observation by Young JA (his Honour there referring to Gillett v Holt ) that a cause of action can be made out when a defendant promises to provide a property to the plaintiff even when the defendant does not own the property at the time of the representation. 172Mr Newlinds also relies, in this context (though conceding that this is not of itself fatal to Ms Van Dyke's claim), on the uncertainty as to the area and shape of the property the subject of the promise. It is submitted that the property was uncertain at least until sub-division approval was obtained. Mr Newlinds submits that the assertion of there being a natural boundary to the land is too vague. 173Ms Van Dyke accepted that the outer limits of the Oaks Property had not been the subject of discussion (at least up until the lot was physically stepped out and became the subject of the amended plan of subdivision) (T 54.23). However, insofar as Mr Newlinds submits that there is no suggestion that the area claimed by Ms Van Dyke equates to any lot in the sub-division which was approved, Ms Van Dyke's evidence is that the expanded Lot 4 (as it is described in the documents tendered) identifies the area in question and Mr Sidhu gave no evidence to dispute that he physically stepped out a boundary that accords with the amended subdivision plans. 174At the time of the initial promise the discussion went no further than a promise to transfer the Oaks Cottage and land on which it stood. It seems to me that the natural or obvious boundary to this would be understood objectively to be the fence surrounding the cottage. It was not until at least 2004 (when the enlarged boundary was physically stepped out) that I think it could be said that the promise extended beyond the Oaks Cottage and its immediate environs (and that may be relevant when considering the question of reliance, since any earlier acts of reliance would be attributable to the promises in relation to the smaller area of land not the expanded area). However, by at least 2005 there seems to have been no uncertainty that what was contemplated by the promised transfer was the area included in the plan of subdivision (it being conceded that this is the 7.3 hectares valued by the experts). 175In Flinn v Flinn [1999] 3 VR 712 at 738-739 Brooking AJA noted that Lord Kingsdown's speech in Ramsden v Dyson (1866) LR 1 HL 129 had been invoked in support of the proposition that a proprietary estoppel may give rise to an equity even though the interest to be taken is unclear or the promised or expected interest is uncertain. In that case, Brooking AJA had said that a promise may be definite, "[I]n the sense that there is a clear promise to do something, even though the something promised is not precisely defined". 176In Australian Crime Commission v Gray [2003] NSWCA 318 at [193], Ipp JA noted that "[w]hile, often, an ambiguous or imprecise representation will not give rise to a promissory estoppel that could not inevitably be the case. In virtually every statement of existing fact or future intent some ambiguity or imprecision of language may be found". Ipp JA considered (at [192]) that, while it might have been difficult to work out what was reasonable and what was not, and what constituted financial disadvantage (the alleged representation there being that the plaintiff would not be financially disadvantaged): this does not give to the promise any element of ambiguity or lack of clarity sufficient to preclude a promissary estoppel arising. The element of 'reasonableness' requires an objective assessment; it is not an ambiguous term. The promise, as a whole, was unambiguous and clear, albeit that the monetary compensation required to satisfy the promise fell within a discretionary range and its determination was by no means a simple matter. 177In Galaxidis v Galaxidis [2004] NSWCA 111, where the Court of Appeal considered a proprietary estoppel claim, Hodgson JA quoted Ipp JA's view that the underlying reason for the rule that the promise or representation relied upon must not be ambiguous as follows: The underlying reason for the rule that, generally speaking, an ambiguous or unclear representation will not give rise to a promissory estoppel is that the foundation of promissory estoppel is unconscionability. Unconscionability is difficult to establish when the representation is ambiguous or unclear. 178In Galaxidis , Hodgson JA said (at [93]-[94]): In my opinion, the effect of this Court's decision in Gray is that 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 representation 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. ... On the other hand, if it is not reasonable for the representee to rely on the meaning he attributes to the representation in that had he acted reasonably he would have attributed an innocent meaning to the representation, then it cannot be unconscionable for the representor to deny responsibility for the detriment that the representee sustains because of that unreasonable reliance. (my emphasis) 179In Gillett v Holt , on appeal, Robert Walker LJ contrasted a mere statement of present (revocable) intention and an assurance that was "tantamount" to promise. Although Mr Sidhu's written note in 2000 adopts language suggestive of intent not promise, I accept Ms Van Dyke's evidence as to the content of the promise made to her. When considering that content, the time of performance of the promise is also relevant. There is no doubt that, on Ms Van Dyke's own evidence, the promise to transfer her the property was a promise that was not to be performed until the subdivision of Burra Station. Although the plan of subdivision was approved in October 2005, as I understand it the subdivision has not been completed. If so, then the time for performance of the promise has not yet arisen. It is in this context that consideration must be given to what was said in Kukula . 180In The Public Trustee v Kukula , the Court of Appeal considered a claim based on a promise made by the deceased (who was married at the time) to marry the plaintiff and thereupon to pool their assets, including the deceased's farm, in their joint names. The deceased subsequently obtained a divorce from his wife but did not marry the plaintiff (she not being aware of the divorce having been obtained). The plaintiff did some labour on the deceased's farm and claimed an interest in the property on the basis of a proprietary/promissory estoppel. Handley JA said: It is important to record what was not established in this case. The joint relationship between these parties did not involve any pooling of assets or incomes for the purpose of paying expenses incurred in the course of and for the purposes of that joint relationship. The case therefore is not covered by the principles established in Baumgartner v Baumgartner (1987) 164 CLR 137 and Grant v Edwards [1986] Ch 638 (CA). Furthermore this case does not concern the rights of the parties to assets acquired for the purposes of a joint relationship with funds contributed by the parties from their capital or their earnings. Accordingly the principles in such a case as established and applied in Muschinski v Dodds (1985) 160 CLR 583, Baumgartner v Baumgartner (above) and Grant v Edwards (above) have no direct application. The deceased made no promise to the plaintiff that she would acquire any proprietary interest in his assets by providing unpaid labour on his farm. His only promise in that regard was that she would acquire such an interest pursuant to the pooling of their assets to take place after they were married. On the evidence and the findings of the trial judge the deceased at no stage represented to the plaintiff that she had already acquired a proprietary interest in his property. Had the plaintiff been asked between 1965 and 1977 whether she had an interest in the deceased's farm the correct answer, on the findings of the trial judge, must have been "no" but that she would acquire such an interest after they got married and pooled their assets. This case therefore is not governed by the principles relating to proprietary estoppel which were applied in Maharaj v Jai Chand [1986] AC 898, Silovi Pty Limited v Barbaro [1988] 13 NSWLR 466 and Green v Green [1989] 17 NSWLR 343. Moreover there is no scope for the enforcement of any promissory estoppel. The promises which the deceased made that in any sense were capable of affecting his legal relationships were to marry the plaintiff and afterwards to pool their assets as joint tenants. There was no independent promise to pool assets and because the parties never married the time for performance of that promise never arrived . (my emphasis) 181In Kukula when considering the question of unconscionability, Handley JA said: Furthermore in my opinion the plaintiff failed to establish that she made a disproportionately larger contribution of work for the benefit of the deceased than the contribution he made for her. A finding that the plaintiff's contribution was disproportionately greater was essential if an ultimate finding of unconscionability on his part was to be made. 182Therefore, I consider that there was a sufficiently certain promise made to Ms Van Dyke in 1998 (and confirmed thereafter) that Mr Sidhu would transfer The Oaks Cottage to her name by way of gift. Thereafter a further or amended promise was made to transfer by way of gift an expanded area of land as physically stepped out by the two (and reflected in the amended subdivision plans). The first promise was expressly conditional on the then proposed subdivision taking place. The latter was implicitly conditional on the same event. ( ii) was there reasonable reliance to Ms Van Dyke's detriment so as to make it unconscionable for Mr Sidhu now to resile from his promise to transfer the land to her?

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