[1975] 3 All ER 865
David Securities Pty Ltd v Commonwealth Bank of Australia [1992] HCA 48
[2000] 3 WLR 815
Giumelli v Giumelli (1999) 196 CLR 101
Grant v Edwards [1986] Ch 638
Source
Original judgment source is linked above.
Catchwords
78 ALR 157126 ALR 1[1975] 3 All ER 865
David Securities Pty Ltd v Commonwealth Bank of Australia [1992] HCA 48[2000] 3 WLR 815
Giumelli v Giumelli (1999) 196 CLR 101
Grant v Edwards [1986] Ch 638(2008) 232 CLR 635(2003) 30 Fam LR 524
Pavey & Matthews Pty Ltd v Paul [1987] HCA 5185 ALR 335
Judgment (3 paragraphs)
[1]
Jennings v Rice [2002] EWCA Civ 159
Little v Saunders [2004] NSWSC 655
Lumbers v W Cook Builders Pty Ltd (in liq) [2008] HCA 27; (2008) 232 CLR 635; (2008) 247 ALR 412
Miller v Sutherland (1990) 14 Fam LR 416
Mobil Oil Australia Ltd v Wellcome International Pty Ltd (1998) 81 FCR 475
Morris v Morris [1982] 1 NSWLR 61
Murphy v Overton Investments Pty Ltd [2001] FCA 500
Muschinski v Dodds (1985) 160 CLR 583
Nichols v Nichols (1986) 4 BPR 9240
Parianos v Melluish (Trustee) [2003] FCA 190; (2003) 30 Fam LR 524
Pavey & Matthews Pty Ltd v Paul [1987] HCA 5; (1987) 162 CLR 221
Plimmer v Wellington City Corp (1884) 9 App Cas 699
Public Trustee v Kukula (1990) 14 FamLR 79
Ramsden v Dyson (1866) LR 1 HL 129
Riches v Hogben [1985] 2 Qd R 292
Roxborough v Rothmans of Pall Mall Australia Ltd (2001) 208 CLR 516 ; 185 ALR 335; [2001] HCA 68
Saleh v Romanous [2011] NSWCA 264
Saleh v Romanous [2011] HC Trans 101
Saliba v Tarmo [2009] NSWSC 581
Shepherd v Doolan [2005] NSWSC 42
Silovi Pty Ltd v Barbaro (1988) 13 NSWLR 466
Simpson-Cook v Delaforce [2009] NSWSC 357
Sledmore v Dalby (1996) 72 P & CR 196
Standard Chartered Bank Aust Ltd v Bank of China (1991) 23 NSWLR 164
Stowe v Stowe (1995) 15 WAR 363
Sullivan v Sullivan [2005] NSWSC 10
Sullivan v Sullivan [2006] NSWCA 312
Talevski and Anor v Talevski and Anor [2007] NSWSC 945
Taylor v Dickens [1998] 1 FLR (Eng) 806
Thorner v Major [2009] 1 WLR 776
Tory v Tory [2007] NSWSC 1078
Van Dyke v Sidhu [2011] NSWCA 187
Vukic v Luca Grbin; Estate of Zvonko Grbin [2006] NSWSC 41
Walton v Walton (1994, England and Wales Court of Appeal, Civ Div, unreported)
Waltons Stores (Interstate) Pty Ltd v Maher (1988) 164 CLR 387
Watson v Foxman (1995) 49 NSWLR 315
Williams v Hensman (1861) 1 J&H 546; 70 ER 862
Texts Cited: Meagher, Gummow & Lehane, Equity: Doctrines & Remedies, (4th ed., 2002)
Pawlowski, The Doctrine of Proprietary Estoppel (1996)
Category: Principal judgment
Parties: Lauren Marie Van Dyke )(Plaintiff) (Self represented)
Prithvi Pal Singh Sidhu (Defendant)
Representation: Counsel
C R C Newlinds SC with J C Giles (Defendant)
Solicitors
Henry Davis York (Defendant)
File Number(s): 09/289460
[2]
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
Sell the Oaks Cottage with land to LVD
Agree on a reasonable market price for the property, with advice from an Agent.
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
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]
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
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:
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?
[3]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 23 February 2012
First mortgage to PP and LK for value of property.
L not to pay any interest or repayments on mortgage amount to LK or PP . (my emphasis)
L as owner will pay Council rates and other contributions for community title costs
L can sell or transfer property at any time to any person and borrow on property if she can get a second mortgage
Upon sale or transfer by L, the mortgage amount is repayable to PP & LK plus half of increase in value of property. (eg property today worth 100 and at time of sale worth 200 plus. PP & LK get the 100 - being the mortgage amount. L gets 50 and PP & LK get 50 after costs as deducted).
Issues not yet determined is who pays costs of transfer to Lauren - estimated to be $10-$15,000 Also amount to be lent to Lauren for renovations etc. How much etc and that could be part of mortgage.
75The revised proposal is thus much more akin to a gift in the sense that Ms Van Dyke is not to be liable for the interest on or the repayments for the mortgage (those to be borne by Mr and Mrs Sidhu) and simply is to pay the council rates and other contributions as owner and to share with Mr and Mrs Sidhu any profit on an ultimate sale. Again, there is no restriction on transfer of the property by Ms Van Dyke or any requirement that she continue to live in it or bequeathe it to her son (let alone that she continue her affair with Mr Sidhu).
76Ms Van Dyke says that Mr Sidhu explained the proposal to her (or probably more precisely the arrangement for the proposed mortgage) as being how he had presented it to his wife in order to obtain her agreement ([46]). I accept Ms Van Dyke's evidence that this was how Mr Sidhu had explained the proposal to her and that she was advised by Mr Sidhu to believe this was equivalent to a transfer by way of gift of the property to her.
77In October 2005, the local Council gave approval (on the separate application apparently lodged in 2002) for a 3 lot rural residential subdivision of Burra Station (the homestead block), conditional on the construction of a road for access to the blocks. The consent in its terms was to expire on 19 October 2010. (There is no evidence as to the commencement of construction for that subdivision. However, insofar as consent to the subdivision was obtained, the completion of the only conditions stipulated on the agreement as per the revised August draft were from that the matters within Mr Sidhu's control except perhaps as to any financial constraints.)
78Unfortunately, what then occurred was that The Oaks Cottage burnt down in February 2006. Ms Van Dyke and her son moved into a relocatable cottage that had earlier been built on the homestead block and was vacant at the time. Ms Van Dyke says that Mr Sidhu, who was not on the property at the time of the fire, spoke to her by telephone and said that he would use the insurance money to build another house for her and that "you will not have lost anything as a result of this". Mr Sidhu, in his defence, asserts that he and his wife intended to build or buy accommodation to replace the Oaks Cottage and that he asked Ms Van Dyke to locate a relocatable or kit home for he and his wife to buy and install approximately where the Oaks Cottage had been so that they did not have to spend much more than the insurance moneys received (alleged by him to have been $156,000) under the insurance policy following the destruction of the Oaks Cottage. He denies the allegation in [18] of the Statement of Claim that he represented to Ms Van Dyke that as soon as possible another home would be built in its place using the insurance money.
79Ms Van Dyke deposed (in [138] of her reply affidavit) to a conversation with Mr Sidhu on 25 April 2006 in which he said to her "Lauren you have the security of a property in the Oaks which Lajla supports".
80On 5 May 2006, Ms Van Dyke sent to Mr Sidhu an email re "Document 2" asking "So you think Lajla will be agreeable to gifting the house to me outright" and Mr Sidhu responded "Yes Lajla will sign it as it is . I am confident of that - we can do it this weekend. Without her signature you will have the same concerns. I will print a copy." I would infer from the content of the Statement signed by Mrs Sidhu and bearing a handwritten date 7 May 2006 that the statement in question is the following (albeit that under Mr Sidhu's signature the date appears as 7/6/06):
Over time since we moved to Burra in 1996 I expressed an intention to Lauren Van Dyke that the house she then resided in (The Oaks ... Burra) would be gifted to her.
Lajla agrees with the above and when the house which burned in an accident in mid-February is rebuilt and as soon as it is possible to transfer the property on which the house is rebuilt, it will be done by Lajla and me
81This seems to me to be a clear further acknowledgement by Mr Sidhu of the initial representation or promise that The Oaks Cottage would be the subject of gift to Ms Van Dyke (not that it would be sold to her on favourable vendor finance terms of the like and not that it was conditional on the many things upon which it is now submitted the promise was conditional), though not of the expanded representation or promise. Therefore although Mr Sidhu denies the representation alleged to have been made by he and his wife (by the signing of the statement) that when The Oaks Cottage was rebuilt and as soon as it was possible to transfer the Oaks Property on which it was rebuilt to her this would be done by them, it seems to me difficult for him to deny that there was such a representation by Mr Sidhu but limited to the transfer of The Oaks Cottage.
82In his Defence, Mr Sidhu pleads (at [21]) that the statement was signed on 7 June 2006 (though his wife's signature is noted on the document as having been appended on 7 May 2006) and pleads that the statement was given in circumstances in which Ms Van Dyke had complained to him and his wife as to her lack of security following the destruction of the Oaks Cottage; he asserts that shortly prior to 7 June 2006 he had said to Ms Van Dyke that he and his wife were prepared to give the house that was to be built as a replacement of the Oaks Cottage to her on the condition (rejected by her) that her son live in the house and that it would be left by her to her son; and that Mrs Sidhu had said to Ms Van Dyke that she would be prepared to gift the cottage without any condition as she accepted Ms Van Dyke's declared intent to live her life "in the Oaks estate" with the "likely result" that her son would inherit it from Ms Van Dyke. None of those conditions is consistent with the proposals put in writing to Ms Van Dyke towards the end of 2005. Nor did the Sidhus' give evidence of the conversations alleged to have occurred in this regard.
83Mr Sidhu also pleads that the statement was signed in circumstances in which his relationship with Ms Van Dyke had "effectively ended" and he was aware that Ms Van Dyke was carrying on or planning to carry on a sexual relationship with another (named) man. It is not clear how this is thought to be relevant other than if the initial promise was conditional on the relationship between Mr Sidhu and Ms Van Dyke continuing. However, if it is pleaded as going to that issue, the communications between Mr Sidhu and Ms Van Dyke at the time do not make it clear that the relationship was "effectively ended" and the allegation pleaded in relation to the other relationship is extraordinary given the communications (which were admitted subject to relevance) in which it seems clear that Mr Sidhu was supportive and encouraging of that other relationship (pp 17-20 Exhibit A).
84Certainly, at least as at May 2006, Mr Sidhu appears to have been in discussion with Ms Van Dyke as to the basis on which their relationship might continue. Ms Van Dyke deposes that a few days after 27 May 2006 a Discussion Paper was sent to her by email by Mr Sidhu. (No objection was taken to the admission of this document into evidence, unlike the relevance objection to the document referred to in the preceding paragraph). That discussion paper was sent under cover of an email that said "Lajla has at least some part in this until the land is divided between her and me and then I can agree to do whatever I feel like with my share and she hers. That may not occur for a few years - which could be up to 5 years". The discussion paper outlined 2 options, which essentially turned on whether the relationship between the two would continue or not:
A Move BES house [relocatable cottage] to L's block connect to septic and water tank but hold building main house [ie replacement for the Oaks Cottage] for 6 months to test how it pans out
If OK for next 6 months Lauren lives there permanently and new house built "no going back if things get bad after that"
If not OK after 6 months Option B little less money left from insurance cost of tank and septic
B If negative response [from Lajla] Lauren to start looking for a place to rent - means that Lauren will move out
B/L to give Lauren 160,000 the insurance money for the house and Lauren to explain to Lajla the reason for this move
Later after back blocks are sold and debts paid off B?L to give Lauren 350,000 on the understanding that her house was worth that much today (500,000 - that is 350,000 for land and 150,000 for replacement house)
Note Option B - Lauren leaves Burra forever ...
...
Subdivision of home blocks could take up to years and Lauren will not have titles until that occurs.
85As to what was meant by "negative response" from Lajla, this seems to be a reference to whether there would be a negative response from Mrs Sidhu to a proposal that Mr Sidhu was reluctant himself to put to his wife (and wanted a friend to put on his behalf) whereby, after the relocatable cottage was moved to the area of land on which The Oaks Cottage had stood, he and Ms Van Dyke would have a more open relationship with Mr Sidhu spending some nights per week at the cottage. On 2 June 2006, Mr Sidhu wrote to Ms Van Dyke:
... I certainly don't want our relationship to end and end it will if you move from Burra
...
I certainly and keenly (may I say desperately - but not obsessively!) not only want our relationship to survive but to strengthen
86Around this time, it seems that Ms Van Dyke had put forward to Mr Sidhu a proposal whereby he would give her the insurance proceeds from The Oaks Cottage claim and she might build or buy a house elsewhere (and a proposal that she might take one of the subdivided back blocks. Ms Van Dyke by email 19 June 2006 referred to a "keenness to leave" (attributed to a fear of punishment by Mr Sidhu if he were not pleased with the situation), in which she says: "I am not a gold digger. ... I don't want to feel used or led on - please consider my option" (apparently there referring to the proposal that she use the insurance proceeds to build elsewhere or take one of the lots on the back block in lieu of rebuilding on The Oaks Cottage). On 20 June 2006, Mr Sidhu responded to a query from Ms Van Dyke as to how his wife would respond if Ms Van Dyke were to buy another property with the proceeds of insurance money, saying "emphatically no" and that this would be "totally contrary to the reasons she agreed to give you the property".
87Ms Van Dyke in her reply affidavit deposes to a conversation with Mr Sidhu on 20 June 2006 in which she says he said they should go ahead with Option A (presumably a reference to the Discussion Paper referred to above) and move the relocatable cottage up to the Oaks Property ([157] of her reply affidavit).
88Meanwhile Mrs Sidhu sent an email to Ms Van Dyke on 20 June 2006 in which she said:
The whole idea behind gifting you The Oaks on Burra Station in the first place has many facets, not the least of which is having family as neighbour so close to use. ... if you or [Ms Van Dyke's son's] father were wealthy or earning a fortune, the thought of giving the Oaks to you would never have entered my head (my emphasis)
89Around this time, it seems that Mr Sidhu prepared a document headed "My Response" in which he set out his views as to what would need to be sorted out if the relationship were to end (that document being included at p 67 in a bundle of documents exhibited to Ms Van Dyke's reply affidavit and admitted without objection), including the following:
..What the above means is that unless Lajla accepts our relationship - it ends. That is your choice ...
If our relationship were to end there are things that need to be sorted out especially re the property and money.
You recently reminded me that I first promised to give you your house about 7 years ago. That was approximately a year or two into our relationship. Now even you would concede that the promise, at that stage, was made not as a reward for two years of our relationship but rather that we were deeply and I thought inseparably in love and in that belief I made the promise for you to live in forever.
When Lajla also agreed that we would give you the house she also believed that you would live in it forever and perhaps after you [Ms Van Dyke 's son]
...
What you want me to do is that after a 8 year dysfunctional and troubled relationship, I give you $600,000 for you to set up house with whomever fate (and or serendipity as you like to call it) brings your way. On any standard, legal moral or ethical that is a very unreasonable and unacceptable ask of me. It is one thing to support a partner for life and quite another to compensate someone with whom you had a 8 year broken relationship.
...
...On any assessment the 8 years were hardly a relationship that fits the bill of a steady loving one. If you were unhappy and tormented so was I.
90On 29 June 2006 Mr Sidhu emailed Ms Van Dyke saying "I would like to talk to you to clarify one great misunderstanding you appear to have about what I may have said but all that can wait". It is not clear what that misunderstanding is said to have been but in an email to her of 5 July 2006 Mr Sidhu referred to the "promise" made in 1998 saying:
....... I promised you the property nearly 8 years ago because of our relationship and not friendship .... Today is the first day of confirmation from you and acceptance by me that our relationship has ended and we will see how our friendship binds and endures. Lajla's reasons for agreeing to give you the property were/are of course different. One thing common to both Lajla and me was that you would live here and not sell up and go. Is this still your position...... (my emphasis)
91Ms Van Dyke's response to this was to confirm that "I will not sell up and go after I have put the cottage up on the block". She did not in her short email response demur from the proposition that Mr Sidhu had promised her the property because of their (sexual and/or romantic) relationship and not friendship (but that does not seem to me to amount to any kind of tacit admission that the continuation of the relationship was a condition of the transfer).
92Ms Van Dyke says that Mr Sidhu said to her shortly after that 5 July email that "Lauren I gave you the Oaks because of our relationship and it is only because of that relationship that you are to continue to have any interest. It is not yours to sell or do whatever you wish with". However, there is no evidence of any such condition having been placed on the promise in the first place (and it is inconsistent with the proposals put to Ms Van Dyke in 2005 that the property would be sold to her and it would be free to her to deal with as she wished).
93At [62] of her affidavit, Ms Van Dyke said that she became concerned that she had "no control over the situation" and was keen to get back into the Oaks and at [64] she says that she offered to purchase the relocatable cottage and that Mr and Mrs Sidhu agreed to this course. (In his Defence, Mr Sidhu denies that he and his wife owned the relocatable cottage but there is no evidence as to this so that it is unclear to me whether it was owned by or on behalf of Mr and Mrs Sidhu at the relevant time. Suffice it to say that Ms Van Dyke was in occupation of the relocatable cottage and she maintained that she had paid rent for it and had reached an agreement with Mr and Mrs Sidhu to acquire it and to relocate it to The Oaks Property.)
94Ms Van Dyke says that on 21 July 2006 Mr and Mrs Sidhu resiled from the agreement to sell her the relocatable cottage (saying it was not theirs to sell). Whatever the rights and wrongs in relation to the relocatable cottage, and those are not the subject of this proceeding, this event seems to have been the catalyst for Ms Van Dyke to leave the Burra Station property that day ([67]). (For Mr Sidhu it is submitted that Ms Van Dyke thus failed to fulfil one of the conditions or contingencies to which the promised transfer was subject. However, it is difficult to see that Ms Van Dyke can be treated as having abandoned her side of the promise, as Mr Sidhu has accused her of having so done, when there was no house for her to occupy on the property if she were not to be permitted to remain in the relocatable property (there being no suggestion that she should occupy the main homestead instead).)
95Ms Van Dyke returned the following day and told Mrs Sidhu about the affair (a course of action somewhat inconsistent with the belief that Mrs Sidhu already knew about it but conceivably consistent with an understanding that Mrs Sidhu may have adopted an 'Ostrich philosophy' of keeping her head in the sand about it - a suggestion put by Mr Newlinds to her brother, Mr Svenson, in the witness box and the way in which Mr Sidhu described the situation in the context of the promise to "gift" Ms Van Dyke "the house" when writing to Ms Van Dyke " Why does Lajla think that I am prepared to gift the house (she knows the value of property and the cost of a new house on it) ..." (see Lozzadvice document at pp 17-20 Exhibit A.)
96At [68] Ms Van Dyke deposes to a conversation with Mr Sidhu in November 2006 (and therefore after she had left the property) in which she said that he had promised her the Oaks Property and had trusted him and that his response was simply "well you left". Again, on Ms Van Dyke's version of the conversation Mr Sidhu did not demur from the proposition that he had made such a promise (although it may be that there was some room for debate over whether this was a reference to the initial promise, the expanded promise or the August 2005 Deed of Understanding promises) and seemed to justify his position on the basis that Ms Van Dyke had left the property (and ended the relationship). In that vein, Mr Sidhu, in an undated document contained at p 69 of Exhibit B and headed "Matters that need finalising after decision to leave Burra", said:
My promise to give you the house was made on your promise that you would live in it forever. You repeated that over and over again, as recently as few months ago. There were other understandings that I will not go into. Now that you have abandoned your part of the promise after 8 years, I cannot be bound to my promise. ...
97By email on 16 November 2006 Ms Van Dyke wrote to Mrs Sidhu (sent, perhaps tellingly, in terms that had first been drafted by Mr Sidhu - see his email of 16 November 2006 p 115 exhibit B, which included the words " I have moved on and I don't seek to return to Burra or make claims on you for any favours. Neither do I have any desire to blame or accuse anyone" and seeking Mrs Sidhu's forgiveness). (This was met with a relatively cordial response.) Ms Van Dyke then sent to Mr Sidhu on 19 November 2006 a draft text of an email from her to his wife for him to settle, asking whether she could take the couple's ute.
98On 29 November 2006, Ms Van Dyke sent a further email to Mrs Sidhu, this time seemingly not settled in advance by Mr Sidhu in which she said:
Beat has said I was mistaken thinking he kicked me out of Burra.
...I will admit that it was a tenuous relationship.
...I have some thoughts which include coming back to the property, especially as I misunderstood the situation. You both know how much I adore the property and how it was/is my home.
If this is out of the question then I wish to be recognized and compensed in some way. ... Please also know that I had the best times of my life with you both ...
99Mrs Sidhu's response of 30 November 2006, whether in response to the suggestion that Ms Van Dyke should receive compensation or otherwise, was uncompromising. Unlike Mr Sidhu, who seemed in his communications with Ms Van Dyke to have accepted that they would need to sort out property and money as between themselves, Mrs Sidhu's position was:
... had I been aware of what you told me AFTER leaving the property in July I would have asked you to leave immediately. I will not allow you to come back to the property, or our lives, on any terms in view of what you have done.
Beat has no right to give you anything that is jointly owned by the 2 of us.
100From the above review of the facts emerging on the evidence before me it is clear (and at the hearing it was not disputed) that Mr Sidhu made a number of promises to Ms Van Dyke over the course of their relationship as to the gift or transfer to her (without Ms Van Dyke herself funding any purchase price) of The Oaks Cottage and, at a later stage, in respect of the expanded area known as the Oaks Property. Mrs Sidhu was privy to proposals for the transfer of the expanded Oaks Property to Ms Van Dyke from August 2005; was aware at least from mid 2006 that Mr Sidhu had earlier expressed an intention to give Ms Van Dyke the Oaks Cottage; and as at mid 2006 had been prepared to sign a statement confirming her intention to rebuild the Oaks Cottage and transfer it to Ms Van Dyke. It is abundantly clear that neither Mr nor Mrs Sidhu is now prepared to do so.
101There is no suggestion that there is a contractual obligation on the part of either Mr or Mrs Sidhu to transfer any part of the Burra Station property to Ms Van Dyke. The ultimate question is whether in equity it is unconscionable for Mr Sidhu to resile from his promises to do so and what relief should be granted if it is. Determining those questions requires findings to be made as to the content of the relevant promises and the meaning objectively conveyed thereby as well as to whether there has been reasonable reliance thereon. Hence I have set out above in some detail of the context in which the various promises were made.
Reliability/fallibility of memory
102Before turning to the legal principles and their application to the facts, I first propose to address the weight that should be placed on Ms Van Dyke's recollection of events, she being the only witness (other than Ms Palin whose evidence was in very general terms) to the various conversations in which promises and representations were made by Mr Sidhu.
103Ms Van Dyke accepts that she has the onus of establishing the promise(s) on which she relies. Here, while it is conceded that promises were made by Mr Sidhu, it is submitted by Mr Newlinds that what is critical is the content of the oral promise(s) and that Ms Van Dyke cannot establish that with the certainty required to permit a finding that there was a clear and unequivocal promise.
104The need for caution, when considering evidence of conversations, because of the recognised fallibility of human memory was explained by McLelland CJ in Eq (as his Honour then was) in Watson v Foxman (1995) 49 NSWLR 315 (at 318) as follows:
... human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consider-ation of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience . (my emphasis)
105His Honour noted (at 318-319) that:
Each element of the cause of action [there, for misleading and deceptive conduct although his Honour expressly noted that the principles so espoused were true also for claims based on contract and equitable estoppel] must be proved to the reasonable satisfaction of the court, which means that the court "must feel an actual persuasion of its occurrence or existence". Such satisfaction is "not ... attained or established independently of the nature and consequence of the fact or facts to be proved" including the "seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding": Helton v Allen (1940) 63 CLR 691 at 712.
Considerations of the above kinds can pose serious difficulties of proof for a party relying upon spoken words as the foundation of a cause of action ..., in the absence of some reliable contemporaneous record or other satisfactory corroboration.
106Ms Van Dyke's recollection of the words actually used by Mr Sidhu was tested in cross-examination. Mr Newlinds submits that, although asserting a recollection of the actual words used (referring to her evidence at T 25.43-27.5, T 31.47-32.4, T 37.44-38.1, T 59.41-60.4 and T 70.27-70.36), Ms Van Dyke's evidence in the witness box demonstrated that she did not actually remember the precise words that were used (referring to her evidence at T 58.49-59.8, T 69.6-69.42 and T 70.13-72.20). With respect to Mr Newlinds, what it seemed to me that the cross-examination reflected in this regard was that Ms Van Dyke (who is not a lawyer and who, while representing herself at the hearing, had earlier been represented by lawyers at the time her affidavits were finalised) had difficulty reconciling use of the formulaic "words to the following effect" in the affidavit with her firm belief as to what had been said to her (and regarded the process of recounting conversations in affidavits in that form as artificial and "such a compromised way of getting to the bottom of something"). I do not think Ms Van Dyke can be criticised for the fact that her affidavit, as presumably settled by her former lawyers, adopted the formula "words to the effect"; nor for the fact that at times she struggled to remember precisely the sequence or words in which conversations occurred.
107In the witness box, Ms Van Dyke was adamant that (while she acknowledged that she had had difficulty recalling the exact sequence of conversations or events - T 28.11;.31; T 29.39; T 31.48) she had a clear recollection of the words that had been used when the key representations were made to her (T 30.29; T 37.47) (and that this was more than a general sense of the feeling or idea conveyed by whatever it was that had been said to her). That seems to me to be not in the least implausible.
108In essence, the promise was a simple one and was confirmed by Mr Sidhu in writing on more than one occasion - he promised (or in his written words "expressed the willingness/intention") that the home in which Ms Van Dyke was living (The Oaks Cottage) would be transferred to her by way of gift. The fact that Ms Van Dyke recounted that promise in different ways in her pleading and in her affidavits seems to me not surprising if it was a promise made to her on more than one occasion (as she says it was) and as Mr Sidhu's own written communications indicate.
109What was of some concern to me was the suggestion that emerged from correspondence between Ms Van Dyke and a friend of hers (who was a potential witness but whose affidavit I rejected on the grounds of relevance) as to the difficulties Ms Van Dyke was experiencing when settling her initial affidavit in "clearing up inconsistencies in [her] story" (see email 23 April 2010 from Ms Van Dyke to Ms Howard). Ms Van Dyke was cross-examined as to what had been the perceived "inconsistencies" in her story and was unable to give a clear (or consistent) explanation of this (though broadly she attributed it to the trouble she was having with the sequencing of events around her past life with Mr Sidhu - T 29.26/39; T 32.7; T 37.3, at one stage she suggested it may have related to working through the defendant's request for particulars T 59.5, which from a timing perspective could not have been the case).
110As I understood her evidence, Ms Van Dyke had found the process of preparation of her affidavit evidence stressful (as no doubt do many witnesses) and that the difficulty she had encountered was primarily one of putting into logical or chronological sequence the events that had occurred over a lengthy period. Ms Van Dyke in her correspondence (see her 25 March 2010 email to Ms Howard) suggested that "there are problems in my case where I am inconsistent with what I have said in earlier statements. Not exactly lying but information I am now tabling makes me look that way" and made a similar comment in an earlier email on 23 March 2010. (It is ironic, perhaps, to note that in the document "Lozzadvice", admitted subject to relevance at pp 17-20 of Exhibit A, Mr Sidhu himself suggested that he was not uncomfortable with the concept of bending the truth on occasion, insofar as he opined that "All of us tell lies to protect something. The more valuable the thing we want to protect the bigger the porky", though he has given no evidence in this case and I make no comment on his credit.)
111Ms Van Dyke's comments about the difficulty she experienced in preparing her initial affidavit seem to have been in the context of the process of "having to scratch back across every little discussion or plan which Beat mostly changed days later" not in the context of an attempt to fabricate her evidence and the inconsistency inherent in the rent arrangements can be attributed to the illogicality of the position suggested to her by Mr Sidhu in order to deceive his wife.
112My assessment of Ms Van Dyke in the witness box was that she did her best to answer the questions asked and did so truthfully. I accept that she had difficulty in putting her recollection of events in sequence and in first person speech for the purpose of her affidavit and that the inconsistencies to which she referred are likely to be related to the "facade" that she said had been created in relation to the rental arrangements in order to present an acceptable public face on the relationship. However, ultimately, I considered that the "inconsistencies" were more likely the product of the deception in which Mr Sidhu was engaged (in apparently seeking to hide the relationship from his wife while encouraging Ms Van Dyke to believe that his wife had consented to the relationship) than that Ms Van Dyke was fabricating her account of the relevant conversations. Tellingly, not only did Mr Sidhu not give evidence himself to challenge Ms Van Dyke's account of the conversations; his own written communications support her account of the promises made to her.
113When chastised (albeit relatively gently) by Mr Newlinds for failing to direct herself to particular questions, Ms Van Dyke apologised and re-focussed on the questions. She conceded, with what appeared to me to be some weariness, a number of propositions (as to reliance) that were not in her interest. She seemed to me to be cooperative and attentive in the witness box. Although to some extent Ms Van Dyke sought to go beyond a bare answer to questions and explain the reasons for particular conduct or the context in which the answers were to be understood, that seemed to me to be explicable by reference to her position as a self-represented litigant.
114Overall, Ms Van Dyke gave evidence in a quiet non-confrontational manner and I found her to be a credible and patient witness. (She also conducted herself in court as a self-represented litigant in an exemplary manner.)
115The two other witnesses called by Ms Van Dyke and cross-examined by Mr Newlinds were her ex-husband and a friend, Ms Palin, who gave evidence as to her observations of the relationship between Mr Sidhu and Ms Van Dyke and, more importantly, of being present when Mr Sidhu made promises to Ms Van Dyke in relation to the property. Mr Svenson was matter of fact in the giving of his evidence and there is no reason not to accept his evidence. Ms Palin was prone to make what seemed to me to be rather sweeping generalisations. She clearly has a personal dislike of Mr Sidhu and is (justifiably or otherwise) critical of his conduct and his treatment of Ms Van Dyke. That said, she confirmed the making of statements by Mr Sidhu that are consistent with the allegations made by Ms Van Dyke (and consistent with the statements he himself confirmed in writing). I accept her evidence that Mr Sidhu did promise The Oaks Cottage to Ms Van Dyke in conversations in her presence (T 112).
116As for the witnesses called in Mr Sidhu's case, Mr Brown gave evidence as to the subdivision of the properties and confirmed that the initial concept plan was for an overall subdivision including the area referred to by Ms Van Dyke as the Oaks Property. He also confirmed that Ms Van Dyke had been involved in the subdivision (recalling having met her and her attendance at some meetings). He accepted that Ms Van Dyke could have been in attendance at other meetings not recorded in the materials from which he had prepared his affidavit. Mr Rees, a friend of Mr Sidhu, gave evidence as to work he had carried out (both paid and unpaid) on the property on the one or two occasions a year that he would visit as a friend of the Sidhus. He agreed with Ms Van Dyke that she had assisted him on at least one of the tasks referred to in her affidavit and her cross-examination of him produced the admission that he was unable to recall having performed some of the work referred to in his affidavit (hinging work on the cottage). I was left with the impression from his evidence that the work he had carried out to the exclusion of Ms Van Dyke may have been somewhat overstated but that in any event he did not deny that Ms Van Dyke had carried out work on the property.
Legal Principles
Reasonable belief or assumption as to legal relationship
183Mr Newlinds emphasises the conditional nature of the promise(s) made by Mr Sidhu in the context not only of the question whether any assumption made by Ms Van Dyke as a result of the promise was reasonable but also in the context of the anterior question as to whether the particular promise was sufficient to create a reasonable belief affecting the parties' legal rights which was binding and irrevocable. Reference is there made to what was said in DHJM at [57] and in Cobbe v Yeoman's Row Management Limited [2008] 1 WLR 1752 at [65]-[68] per Lord Walker of Gestinghope, to the effect that a hope or even confident expectation (here, that the necessary conditions for a subdivision would be satisfied) is not enough. (Lord Walker at [66], said that "hopes by themselves are not enough", noting that "in those cases in which an estoppel was established, the claimant believed that the assurance on which he or she relied was binding and irrevocable".)
184Mr Newlinds submits that no assumption as to the existence of a particular legal right in relation to the property could reasonably be made by Ms Van Dyke until the conditions to which the promise was subject (those being identified as set out above) had been satisfied (and further submits that even if, subjectively, Ms Van Dyke had believed the promise to be unconditional, any such belief would not have been reasonable). As to those matters, Mr Newlinds notes that Ms Van Dyke and Mr Sidhu are no longer in a relationship (and thus will not be by the time the subdivision occurs); that Ms Van Dyke is no longer living at Burra Station; that Mrs Sidhu's consent to the transfer has not been obtained (and Mr Sidhu is not otherwise in a position where he can proceed without Ms Sidhu's consent to transfer the property), it being asserted that in the present circumstances it can be inferred that consent to the transfer "obviously will not now occur"; that the Burra Station subdivision to create the promised lot has not occurred (Exhibit F) (and was in any event something that was far from a foregone conclusion and at least partially out of Mr Sidhu's control); that the financier's consent to the transfer has not occurred (although there is no evidence of this); and that there is no evidence as to Ms Van Dyke's ability to pay the costs of the transfer (although it does not seem to me that there could be said to be a failure of this condition, assuming for the present that it was a condition, in circumstances where Ms Van Dyke has not been called upon to do so).
185Mr Newlinds further submits that the fact that there was no promise to sub-divide is fatal to any reasonable assumption on the part of Ms Van Dyke that Mr Sidhu would transfer the land (though Ms Van Dyke's evidence was that she understood that the subdivision went hand in hand with the promise to transfer - T 49.30).
186In this context, reliance is also placed on the fact that Ms Van Dyke accepted that she knew that if Mr Sidhu died then the whole of Burra Station would be transferred by survivorship to his wife (T 48.6-48.25) and that it must also have been obvious to her that in the event of a divorce (said to be "a potential in the circumstances of the illicit affair") Mr Sidhu might be left without any right to the property or ability to give it away.
187I have considered earlier the conditions to which it is said that the promise to transfer the property to Ms Van Dyke was said implicitly to be subject. I accept that, objectively, any promise to transfer The Oaks Cottage or Oaks Property to Ms Van Dyke must have been predicated on an assumption that the land would be subdivided and that this required not only Council approval but also that Mr Sidhu was in a position (financially, which might depend on his financiers, and legally, which would depend on his wife's consent either being forthcoming or not for some reason necessary at the relevant time) to effect the subdivision.
188The belief that I consider was induced by Mr Sidhu's promise (and which in the circumstances led to the assumption on Ms Van Dyke's part that in the future she would become the owner of The Oaks Cottage) was that if there was a subdivision of the Burra Station land (which Mr Sidhu represented it was then his intention to procure but which, objectively, could not have been taken as assured), then he would transfer or procure the transfer by way of gift to Ms Van Dyke the area of land on which The Oaks Cottage stood. In the context of the relationship it was not unreasonable for Ms Sidhu to understand the promise in that way and to place faith in it.
189Does this make reliance on the promise, in advance of the conditions being satisfied, objectively unreasonable? (If the answer to this is in the affirmative then the claim based on equitable estoppel must fail. If the answer is that reliance was not objectively unreasonable then that would not of itself determine the issue in Ms Van Dyke's favour since it might nevertheless be that as events have transpired it is not now, or will not be at the time that performance of the promise is called for, be unconscionable for Mr Sidhu not to honour the promise - say, if the subdivision could not proceed due to a refusal by the Council to grant approval for it or if, in the interim, his financiers had exercised rights under the mortgage that precluded the fulfilment of the promise.)
190It is submitted by Mr Newlinds that (in circumstances where Ms Van Dyke knew that Burra Station was owned by Mr and Mrs Sidhu as joint tenants and where Mrs Sidhu either did not know of or had ignored the evidence of the affair and had not made the promise in question) no reliance on the promise was reasonable. It is submitted that Ms Van Dyke understood that the promise(s) did not create rights enforceable at law or a binding legal relationship (reliance being placed in this regard on Ms Van Dyke's concerns expressed in both 2000 and in April 2005 for something in writing to record Mr Sidhu's promises and to give her security or assurance in that regard) and that Ms Van Dyke's demands that Mr Sidhu do something further to give effect to the promise show that she knew the promises not to be binding (reference being made to the evidence given in cross-examination at T 80.33-80.50). Mr Newlinds submits that, objectively, this knowledge was reinforced by the changing promises over time. (I do not accept that the fact that the area the subject of the promises
191I accept that the evidence discloses a concern on Ms Van Dyke's part that the verbal promises made to her be recorded in writing and, as time passed, that Mr Sidhu take steps to honour the promises he had made. That is consistent with an understanding on Ms Van Dyke's part that the promises were not contractually binding. However, if the fact that a promise was not contractually binding were sufficient to make reliance on it unreasonable, then the doctrine of proprietary estoppel would have little work to do. It seems to me that the concern being expressed in 2000 and 2005 as to Ms Van Dyke's position is consistent with her having placed her faith in Mr Sidhu honouring his promise and becoming progressively concerned as to whether and when that would happen. It is significant in this regard to note that Mr Sidhu's response when such concerns were raised was not to deny the making of the promise (indeed he readily acknowledged it in the 2000 signed statement) nor to assert that he was not intending to be bound by it in a moral or ethical sense, nor to assert that Ms Van Dyke had not relied or should not in future rely on it. Mr Sidhu's concern (at least as emerges from his written communications in 2005/2006), seems to have been to engineer an outcome whereby the illicit affair (as so described by his Counsel) should continue and that he was seeking to do this by effecting a transfer of the Oaks property (the expanded Lot 4) to Ms Van Dyke in such a way as to placate his mistress while concealing the relationship or the extent of the relationship from his wife.
192On the one hand, the family relationship supports the proposition that it was objectively reasonable for reliance to be placed on Mr Sidhu's promise to transfer the property in question; on the other, the fact that performance of the promise could only occur if and when a number of things happened (and at least one of those was likely to involve the consent of Mrs Sidhu from whom the affair had, if not been concealed, then at the very least not publicly paraded) weighs strongly against it.
193In Standard Chartered Bank Aust Ltd v Bank of China (1991) 23 NSWLR 164 (a case concerning a claim for common law estoppel by representation), Giles J, as his Honour then was, considered the element of reliance necessary to ground an estoppel claim and noted that:
That calls for consideration of the part played by the representor in occasioning the adoption of the assumption by the representee, including the reasonableness of the conduct of the representee in adopting and acting upon the assumption. The question of reasonableness is inherent in reliance, although not always enunciated, and is expressly recognised in, for example, Franklins v Manufacturers Mutual Insurance Ltd (1935) 36 SR 76 at 82; Waltons Stores (Interstate) Ltd v Maher (at 397 and 406) per Mason CJ and Wilson J and Commonwealth v Verwayen (1990) 170 CLR 394 at 414 per Mason CJ and (at 445) per Deane J. Deane J says at the page last-mentioned:
"...Ultimately, however, the question whether departure from the assumption would be unconscionable must be resolved not by reference to some preconceived formula frame to serve as a universal yardstick but by reference to all the circumstances, including the reasonableness of the conduct of the other party in acting upon the assumption and the nature and extent of the detriment which he would sustain by acting upon the assumption if departure from the assumed state of affairs were permitted."
194In Murphy v Overton Investments Pty Ltd [2001] FCA 500, Branson J, considering an equitable estoppel claim, said in relation to reliance, at [68], that:
Further it is, in my view, essential to Mr and Mrs Murphy's claim in estoppel based on an assumption adopted by them as to Overton's future conduct that it was reasonable of them to adopt and act on the assumption ( Standard Chartered Bank of Australia Ltd v Bank of China (1991) 23 NSWLR 164 per Giles J at 180-181 and the cases there considered; Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 per Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ at 506). In my view, it was not reasonable in the circumstances, for the reasons identified above at [63], for Mr and Mrs Murphy to have adopted and acted on any precise assumption as to the future contribution that they might be required to pay under the Lease or as to the relationship between such contributions and the age pension. This is to leave aside the fact that, as Mr and Mrs Murphy may be presumed to have understood, increases in the aged pension are outside the control of Overton . (my emphasis)
195After some hesitation, I have concluded that in the circumstances it was not objectively reasonable for Ms Van Dyke to rely on the promises on the basis that they were necessarily contingent or predicated on the subdivision of the land, something which might or might not have occurred and which was (though Ms Van Dyke did not accept this) at least to some extent dependent on matters largely outside Mr Sidhu's control.
Was there actual reliance by Ms Van Dyke?
196In any event, Mr Newlinds further submits that as a matter of fact Ms Van Dyke did not act in reliance on Mr Sidhu's promise, referring to the evidence given at T 38.9-38.38 and T 39.3-39.40. Given the significance that I place on this evidence I set out the relevant passages below.
197At T 38.9 the exchange commenced:
Q. Isn't this the case, you would have stayed living at The Oaks cottage for the 8 or 9 years that you lived there regardless of any promise that Mr Sidhu made to you, wouldn't you?
A. Not necessarily .
Q. What does "not necessarily" mean?
A. Well, because I believed I was in a long-term relationship and that I would have a home transferred to me and I believed that the, that there was a continuation of that and if I had not been told certain things, those things by the defendant, I may have been, I may have looked at other options for myself and my son. (my emphasis)
198Ms Van Dyke accepted that she had described the period spent at Burra Station as the happiest period in her life (T 25.18-29); that she loved Mr Sidhu (T.25.32) and was in the relationship with Mr Sidhu because she was in love with him (T 38.42); and that she believed that the relationship would continue forever (T 38.46). At T 38.48, the exchange continued:
Q. You naturally suspected that for so long as he [Mr Sidhu] lived on Burra Station that he would allow you to continue to live at The Oaks cottage, correct
A. Well, he had promised to transfer the property into my name and he told me it was my home, so yes.
Q. Now, would you answer the question. You expected that for as long as he lived there, you would live there didn't you?
A. I may have made other decisions if I did not have.
....
Q. Regardless of the promise, because you were so in love with him you would have stayed living at The Oaks property whilst ever he loved on Burra Station for as long as you could, couldn't you?
A. It is hard, it is hard to dissect that.
...
Q. Because of those expectations [that their love and the relationship would last forever], you would have stayed living there regardless of the promises? Wouldn't you?
A. Not necessarily .
Q. What does not necessarily mean?
A. I may have made other decisions too, if the defendant hadn't made representations to me that the Oaks property was my home, I may have thought about making decisions to develop some security for me and my son.
Q. You might have?
A. I might have
Q. But you might not have?
A. It is hard to say (my emphasis)
199Mr Newlinds points to the evidence of Ms Van Dyke that she had loved living on Burra Station (T 25.37-25.38, T 39.42-39.49) and had loved her then part-time employment with a prominent Federal politician (T 25.40-25.41). Ms Van Dyke accepted that she had commenced doing work on the properties in 1998 before the promise was made (T 78). Mr Newlinds submitted that living at Burra Station was of considerable benefit to Ms Van Dyke and points to her evidence that she "probably" would have done that work around the station without the promises (T 79.27) and would have done at least some of the work as a tenant in any event (T 79.32-79.50). At T 79.34, Ms Van Dyke said:
A. I would have helped [keeping the property in tip top condition] but I think the work I did do after the representation was made to me was way above what I would have done if I were just a tenant on the property.
Q. That is not the other scenario, is it, you would have still been having an affair with Mr Sidhu and living on a property that you loved and that he loved, that is the other universe we have to think about, isn't it?
A. I agree with what you are saying, that the relationship, it is very hard for me to dissect what I would have done had I not had the representation made to me, however I believe that I did the work that I did because I felt I had a future security in the home or I had security at the time but I also had future security that could have gone on for 20 plus years and so my work on the property was in that I was grateful for that security.
200Mr Newlinds thus submits that there was no actual reliance by Ms Van Dyke and that in any event any such reliance was unreasonable given that the promise was conditional and Ms Van Dyke knew of facts showing that Mr Sidhu might not be able to keep the promise (referable to the uncertainty of the approval for the sub-division; the financial difficulties that Mr Sidhu had experienced; and that if Mrs Sidhu had found out about the affair and there had been a divorce then Mr Sidhu may not have owned the property - as to the last, there does not seem to be any suggestion that in the circumstances that transpired the discovery by Mrs Sidhu of the affair led to any such difficulty, although I accept that there must have been a possibility that this would be the case).
201In Simpson-Cook , there was an issue as to whether there had been reliance placed on a belief that the plaintiff would acquire the legal interest in the property or, as submitted by the defendant, that the prospect of receiving the property was regarded by the plaintiff as a mere chance. Bergin CJ in Eq noted that there had been some evidence that the plaintiff's attitude at the time the promise was made was that she was "not counting on it" but it would be "nice if it happens". Ultimately, her Honour was satisfied (with some reservations) as to the plaintiff's explanation in her evidence of the expression "bird in the bush" and accepted that she had relied upon the assurances made by the deceased.
202Here, the evidence as to reliance seems to me to be even more equivocal in that Ms Van Dyke could not discount the possibility that she would have remained on the property and (at least in most respects) done what she had done in any event.
203On this aspect of the matter, I note that Ms Van Dyke (when invited to reply to any matter arising from her cross-examination) emphasised that she had relied on Mr Sidhu because he was a senior lawyer. I have no doubt that Ms Van Dyke placed faith in Mr Sidhu and in the promises he made her and that this played a part in her willingness to spend time and effort in the maintenance and improvement of The Oaks Cottage and assisted on the Burra Station property (although the quantification of that time and effort is largely subjective on Ms Van Dyke's part). However, the performance of work around the property in general is consistent with the arrangement under which part of the rent for The Oaks Cottage was to be satisfied by work in lieu.
204What the concessions by Ms Van Dyke make clear is that it is entirely possible that she would have remained living on the property, carrying out tasks on the property (even if not to the extent of the work she in fact carried out) and working part-time, whether or not the promises had been made. That seems to me to make impossible a finding that she did those things (and refrained from seeking or taking up other opportunities that may have been available to her) acting in reliance on the promises to her detriment . No detriment can have been suffered if Ms Van Dyke would or is likely to have done those things in any event.
205That said, the one area in which it seems to me that there has been actual reliance demonstrated on the initial promise is the giving up of the opportunity to seek a property settlement. I consider the import of this reliance when considering the question of detriment further below.
Knowledge/intention of defendant re reliance
206Insofar as it is an element of the cause of action for proprietary estoppel that the maker of the promise knew or intended it to be acted upon, Brennan J in Waltons Stores said:
When the adoption of an assumption or expectation is induced by the making of a promise, the knowledge or intention that the assumption or expectation will be acted upon may be easily inferred. But if a party encourages another to adhere to an assumption or expectation already formed or acquiesces in the making of an assumption or the entertainment of an expectation when he ought to object to the assumption or expectation - steps which are tantamount to inducing the other to adopt the assumption or expectation - the inference of knowledge or intention that the assumption or expectation will be acted on may be more difficult to draw.
207Mr Newlinds submits that, in circumstances where the promise was conditional, that Ms Van Dyke was living on Burra Station for her own reasons, that she was receiving discounted rent for working around the property, that Mr Sidhu and his wife helped Ms Van Dyke on a daily basis (as Ms Van Dyke accepted when a portion of Mr Sidhu's unread affidavit was put to her in the witness box), and that Mr Sidhu had paid Mr Rees to perform handyman work on the Oaks Property, Mr Sidhu did not know of any reliance (if any) by Ms Van Dyke on the promise(s). I have considerable difficulty with that proposition given the absence of any evidence from Mr Sidhu himself as to the matters of which he was or was not aware. He clearly was aware of work being carried out by Ms Van Dyke on the property in his company (of which Ms Van Dyke gave unchallenged evidence); he was also clearly aware of the fact that she had remained living on the property (since he conducted an ongoing affair with her for over 8 years while she was living in the cottage).
208I do not accept the contention contained in Mr Sidhu's Defence that Mr Sidhu did not know or intend Ms Van Dyke to rely upon the promise that he would transfer The Oaks Cottage to her. Had that been the position, then surely when Ms Van Dyke expressed to him concern that there was nothing in writing in relation to the property Mr Sidhu would have been at pains to make clear his belief that she had not, and could not reasonably have, relied on any such promise and to caution Ms Van Dyke that she should not rely on any such transfer eventuating in the future (emphasising the conditions or contingencies to which it was said to be subject). He did not do so. Instead he signed a note that can only be read (in the context of Ms Van Dyke's expressed concern to him) as calculated to reassure Ms Van Dyke that the property would be transferred to her.
209The inference that Brennan J considered was able easily to be inferred (namely the knowledge or intention that an assumption or expectation induced by the making of a promise will be acted upon) is one that I draw in the present case. It does not seem to me to be open to Mr Sidhu to contend that, having made the promise to transfer by way of gift the cottage, as confirmed by him in writing in 2000 and again in 2006, that he did not intend Ms Van Dyke to rely upon the assumption or expectation thereby induced that (provided the subdivision proceeded) she would become the owner of the cottage. Nor did Mr Sidhu suggest at any time when the issue as to the making of the promise was raised with him that Ms Van Dyke should not rely on it. What he sought to do at the end of the relationship was to justify his departure from the promise (and/or to put conditions on it).
Detriment
210I have adverted above to the difficulty in Ms Van Dyke showing that any reliance by her on the promise(s) was to her detriment (such detriment being required to be established for the purposes of a claim in proprietary estoppel and to establish that it was unconscionable for Mr Sidhu to resile from or not honour the promise).
211The detriment identified by Ms Van Dyke is that from 1998 to 2006 she arranged her life and undertook extensive work both on the property and for Mr Sidhu (and gave Mr Sidhu emotional support) on the basis that she had a home in The Oaks Cottage and that Mr Sidhu would put the relevant property in her name and that she gave up the opportunity to obtain a property settlement from her former husband, engage in full time work elsewhere and acquire her own property for her and her son. (Ms Van Dyke has placed values on the lost opportunities but has not adduced independent evidence as to this.)
212Ms Van Dyke notes that detriment is a broad concept and does not necessarily have to be expenditure of money. Reference is made to the kind of detriment considered in Barnes v Alderton (such as leaving a job, moving in with the promisor and doing housekeeping). Ms Van Dyke in particular notes the reference in Barnes v Alderton to the following passage in Donis :
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.
213Handley JA in Sullivan v Sullivan [2006] NSWCA 312 at [20] said that:
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.
214The concept of "substantial" in this context must be read in the light of the High Court and Court of Appeal authorities, cited by Handley JA in Hawker Pacific Pty Ltd v Charter Pty Ltd (1991) 22 NSWLR 298 at 307E to 308B as concluding that the test of reliance and detriment used the language of "material disadvantage", "material detriment" or "significant disadvantage". Handley JA (in contrast with the position in contract in relation to consideration) had noted that loss of a single peppercorn would not constitute a material disadvantage, material detriment or significant disadvantage for the purpose of estoppel.
215Mr Newlinds points out that Ms Van Dyke lived with a reduced rent (and it is submitted, although the only evidence of this is an assertion contained in Mrs Sidhu's 2000 letter though one which Ms Van Dyke at least tacitly seems to have accepted for some of the period - T 77.29 - at a below market rent) on Burra Station for several years and received free agistment for her horses and alpacas (and the benefit of at least some of the work around the farm whether as being in lieu of rent or generally to her benefit) (T 77.45-78.32, T 79.5-79.23). In this regard, Mr Newlinds notes that Ms Van Dyke accepted that she had started doing work ("small things") around the property before the promises were made (T 78.34-78.39).
216Mr Newlinds also submits that the assertions by Ms Van Dyke as to the assistance she gave as to the subdivision of the back block (by reference to the minutes of meetings) are exaggerated. That said, it was accepted by Mr Brown that the minutes might not disclose the extent of Ms Van Dyke's attendance at meetings and she was also involved in the preparation of at least some submissions in relation to the subdivision, the content of which suggests a familiarity on her part with the issues relating to the subdivision that is indicative of a closer involvement in that process than that for which Mr Newlinds' submissions give her credit.
217I accept that conduct of the kind deposed to by Ms Van Dyke (the work she carried out on the properties in question; the giving up of other work opportunities and the like) is of a kind that may be sufficient to amount to detrimental reliance for the purpose of an equitable estoppel. However, here the difficulty is that Ms Van Dyke's evidence leads to the conclusion that, with one qualification, she may very well have done all or most of those things in any event. The qualification to this is that there is no suggestion that, but for the promise/representation relating to The Oaks Cottage (not at that stage encompassing the expanded area the subject of the subdivision plans), Ms Van Dyke would not have pursued the opportunity to obtain a settlement with her former husband on the breakdown of her marriage. The loss of that opportunity seems to me to be a clear detriment in reliance on the promise made by Mr Sidhu as to her financial security (and in that regard it seems to me immaterial whether the promise is construed as a promise to permit Ms Van Dyke to live on the property indefinitely or to transfer the property to her by way of gift). I note that in Simpson-Cook , the giving up of an opportunity to seek court orders (even if that could not be valued in exact monetary terms) was a sufficient detrimental reliance on the promise there made to the plaintiff.
218Here, Ms Van Dyke's evidence that she sought advice from Mr Sidhu as to a proposed property settlement and that he encouraged her not to do so on the basis of the promise that she had her home (the Oaks Cottage) was not challenged by Mr Sidhu. Given that this conversation followed closely on the heels of the conversation in which the promise was made it must objectively have been understood as a promise by Mr Sidhu that the land would be transferred to Ms Van Dyke (albeit when the subdivision had been completed).
219I consider that Ms Van Dyke has established reliance on Mr Sidhu's promise by not seeking a property settlement and I accept that this would be of sufficient detriment to found an equity in Ms Van Dyke on the principles outlined in Simpson-Cook but only if it were objectively reasonable for Ms Van Dyke to have relied on the promise (that being a promise the performance of which might be affected by matters outside Mr Sidhu's control and therefore might or might not ever come to fruition) and if it would be unconscionable in the circumstances for Mr Sidhu now to resile from that promise.
220For the reasons set out above, I have concluded that it was not objectively reasonable for Ms Van Dyke to rely on a promise that she would in the future be transferred title to The Oaks Cottage where that promise was necessarily dependent on the ultimate subdivision of the land (and either the consent of Mrs Sidhu or circumstances arising where such consent was not necessary), when deciding not to seek a property settlement from her former husband. That, unfortunately for Ms Van Dyke, of itself disposes of Ms Van Dyke's claim. Had I not so found, then the question would be whether it is unconscionable for Mr Sidhu now to resile from the promise. I consider this issue below.
Is departure from the promise unconscionable?
221Is it unconscionable for Mr Sidhu to have resiled from the promises he made (and, indeed, is relief available in circumstances where the time for performance of those promises has not occurred)?
222Mr Newlinds submits that Mr Sidhu did not act unconscionably for two reasons: first, that it was Ms Van Dyke who left him ("for reasons unconnected to the promise") before it could be said that Mr Sidhu had resiled from the promise (in this regard it is submitted that the promise has no content once Ms Van Dyke has left both Burra Station and Mr Sidhu; and that Mr Sidhu "did not promise the property to the plaintiff so she could simply sell it at a profit") and, second, that the time for performance of the promise has not yet arisen since the conditions have not yet been fulfilled.
223As to the first of those reasons, at T 90.48, it was put to Ms Van Dyke that she had herself resiled from two of the conditions to which the promise was subject. Ms Van Dyke did not in terms accept that this was the case, although she accepts that she had left the property and that she had ended the sexual relationship with Mr Sidhu. (Insofar as Ms Van Dyke later sought to return to the property and this was adamantly refused by Mrs Sidhu, it may not be the case that the failure of those conditions, assuming they were conditions, was attributable to Ms Van Dyke alone). However, in any event, I do not accept that the promises were in fact conditional on the relationship continuing or on Ms Van Dyke remaining on the property.
224As to the time for performance of the promise, until the subdivision is complete (that being dependent at this stage on the completion of the infrastructure works on which the approval is conditional) that will not have arisen. Mr Newlinds submits that it is only at that time which unconscionability is judged (though in argument he conceded that Mr Sidhu's present position in effect is that he will not transfer the property to Ms Van Dyke even when and if the subdivision is later completed). Mr Newlinds submits that nothing in the Court of Appeal's judgment in the present case is contrary to the proposition that the time at which unconscionability is judged is at the time for performance of the promise.
225I have extracted above the passage from the judgment of Handley JA in Kukula to the effect that "because the parties never married the time for performance of that promise never arrived". His Honour reached that conclusion because in that case there was no independent promise to pool assets; that promise being dependent on a marriage occurring. This proposition is cited with approval in Meagher, Gummow and Lehane ' s Equity Doctrines and Remedies (4 th ed, 2002) at [17-050] (p 551) as an example of a case where the assumption of the plaintiff was not reasonably induced by the representation of the defendant and therefore reliance could not be established.
226The observation by Young JA in the Court of Appeal in Van Dyke as to the availability of equitable compensation, to which Ms Van Dyke has pointed, was made in the context that his Honour was addressing the remedial powers of the Court. It does not seem to be directed at the issue to be determined as to whether the reliance of the plaintiff is objectively reasonable, considering the existence of an unfulfilled precondition to the relevant promise. This seems to me to be demonstrated by reference to the cases that his Honour there cites - Morris v Morris (where the plaintiff expended money on a property with the "expectation, induced or encouraged by the defendants that he would be able to live there indefinitely as a member of their family" and, the encouragement by the defendants of that expectation having raised an equity in the plaintiff's favour, the appropriate relief was to impose an equitable charge over the property for the amount expended by the plaintiff, with interest); Nichols v Nichols (where Needham J considered that the real question was whether it would be inequitable, in the circumstances, for the defendant to retain the benefit of the plaintiff's expenditure); Gillett v Holt and Jennings v Rice [2002] EWCA Civ 159 where there was emphasis on the 'overarching role' of unconscionability in assessing equitable estoppel and the need to look at the case "in the round" but where the question as to whether a promise, the time for performance of which has not arrived, can found a proprietary estoppel was not addressed.
227Just as I do not read Kukula as standing for the broad proposition that reliance on any promise which is contingent on a precondition would be unreasonable, I do not read it as standing for the proposition that it can never be unconscionable to resile from a contingent promise. No doubt preconditions regarding events that are bound to happen, such as the effluxion of time, would not make reliance on the contingent promise unreasonable. Where there are factors that make the precondition less likely to eventuate, reliance would be less likely to be reasonable.
228In Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485, the Australian Securities Commission initially, at the stage of the first Court hearing, indicated it did not object to an application for a scheme of arrangement under s 411 of the Corporations Act 2001 (Cth). Subsequently, the Commission became aware of an authority to the effect that there was not power under s 411 to effect the change sought. In relation to a claim by the company that the Commission was estopped from later objecting to the scheme, Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ said at 506:
In these circumstances, the Commission's departure from the position which it took up at the first hearing and in its communications with the Company before that hearing was neither "unjust" nor "unconscionable", to use the expressions found in Thompson v. Palmer (59) and Verwayen (60). On the contrary, had the Company paused to consider at the first hearing what the consequences would be of a decision to the effect of Windsor coming to the attention of the Commission before the second hearing, it would have realized that such a decision would necessarily induce the Commission to reconsider its position. It would have been unreasonable for the Company to assume that the Commission would continue to maintain the same attitude once the Windsor interpretation of the Law came to its attention.
229Here, the event on which performance of the promise was reliant (and at which time the promise was to be performed), namely the subdivision, is an event outside the immediate control of Mr Sidhu and one that has not yet occurred. It may be that future events (even now that the subdivision has been approved), such as a refusal by Mrs Sidhu to proceed with the subdivision or a refusal by the financier to consent to a transfer of one of the subdivided lots for no consideration would make a failure by Mr Sidhu to honour his undoubted promise not unconscionable in all the circumstances. (Equally, it may be that as events transpire there could be a finding that it was unconscionable for him to resile therefrom. In that regard, I do not consider that the fact that Ms Van Dyke has left the property or her termination of the sexual relationship between them would be sufficient to render it not unconscionable for Mr Sidhu to resile from his promise.)
230Before an equity could be said to have arisen of the kind considered in Morris v Morris , it would in my view be necessary for Ms Van Dyke to show that it is unconscionable for Mr Sidhu to depart from the representations/promises made having regard to the circumstances as they may be at the time when performance of the promise would otherwise be required. In the circumstances, I am not satisfied that it is unconscionable for Mr Sidhu (in advance of completion of the subdivision) not to honour a promise predicated on the occurrence of the subdivision. To the extent that he has, in effect, made it clear in advance that if and when the time comes he will not honour the promise, it nevertheless remains the case that before a determination could be made that it is unconscionable for him to resile from the promise to transfer the land, it would be necessary to take into account the circumstances at that time.
(iii) Appropriate relief in all the circumstances
231Given the conclusions I have reached above, this question does not arise. However, I consider below what would have been my conclusion had I reached a different result on the above issues.
232In Waltons Stores , Brennan J said:
The unconscionable conduct which it is the object of equity to prevent is the failure of a party, who has induced the adoption of the assumption or expectation and who knew or intended that it would be relied on, to fulfil the assumption or expectation or otherwise to avoid the detriment which that failure would occasion. The object of the equity is not to compel the party bound to fulfil the assumption or expectation; it is to avoid the detriment which, if the assumption or expectation goes unfulfilled, will be suffered by the party who has been induced to act or to abstain from acting thereon.
233In Giumelli , Gleeson CJ, McHugh, Gummow and Callinan JJ described the case before them as a case within the category identified by the Privy Council in Plimmer v Wellington City Corp (1884) 9 App Cas 699 where "the Court must look at the circumstances to decide in what way the equity can be satisfied", saying that at the heart of the appeal in Giumelli was the question whether the relief that had been granted was appropriate and whether sufficient weight was given to the various factors to be taken into account "including the impact upon relevant third parties", in determining the nature and quantum of the equitable relief to be granted. Their Honours said that "Before a constructive trust is imposed, the court should first decide whether, having regard to the issues in the litigation, there is an appropriate equitable remedy which falls short of the imposition of a trust".
234Referring to Verwayen , their Honours noted that Deane J had there emphasised that, prima facie, the operation of an estoppel by conduct is to preclude departure from the assumed state of affairs and that it is only where relief framed on the basis of that assumed state of affairs would be inequitably harsh, that some lesser form of relief should be awarded, but that his Honour had added that:
...the question whether departure from the assumption would be unconscionable must be resolved not by reference to some preconceived formula framed to serve as a universal yardstick but by reference to all the circumstances of the case, including the reasonableness of the conduct of the other party in acting upon the assumption and the nature and extent of the detriment which he would sustain by acting upon the assumption if departure from the assumed state of affairs were permitted
and that the prima facie entitlement to which Deane J had referred would be qualified if that relief would "exceed what could be justified by the requirements of conscientious conduct and would be unjust to the estopped party".
235In Ciavarella v Polimeni [2008] NSWSC 234, similarly, Young CJ in Eq said (at [157]-159]):
The authorities indicate that where there is a proprietary estoppel by encouragement, the usual remedy is the fulfilment of the promise: see Barnes v Alderton at [67] et seq and cases there cited.
However, the usual rule as to remedy does not apply where the fulfilment of the promise would be disproportionate to the detriment suffered or would otherwise be inequitably harsh.
Thus I must ask myself whether the fulfilment of the expectation would be disproportionate or otherwise inequitable: see Jennings v Rice [2003] 1 P & CR 100 and Barnes v Alderton .
236In Simpson-Cook , as to the question of relief, Bergin CJ in Eq referred to the discussion by Brereton J in Vukic and Honour noted (at [19]) that:
Such a remedy may be declined where it would be disproportionate; for example, a claimant who established a proprietary estoppel on the basis of his expenditure on improvements to the subject was refused relief because he enjoyed 18 years of rent-free accommodation: Sledmore v Dalby (1996) 72 P & CR 196 CA. It may also be declined where there are special circumstances; for example, in Giumelli v Giumelli (1999) 196 CLR 101, the plaintiff's younger brother who had done considerable work on the subject property, was awarded the alternative remedy of a monetary sum.
237In Jennings v Rice, Robert Walker LJ said at [50] (though I note the criticism of this decision in Meagher Gummow & Lehane [17-110]):
The court's natural response is to fulfil the claimant's expectations. But if the claimant's expectations are uncertain, or extravagant, or out of all proportion to the detriment which the claimant has suffered, the court can and should recognise that the claimant's equity should be satisfied in another (and generally more limited) way.
238In Donis (in a passage quoted with approval in Barnes v Alderton ), Nettle JA said (at [20]) that the prima facie position (that the estopped party can only fulfil his or her equitable obligation by making good the expectation that he or she has encouraged):
... will yield to individual circumstances. Principle and authority compel the view that where a plaintiff's expectation or assumption is uncertain or extravagant or out of all proportion to the detriment which the plaintiff has suffered, the court should recognise that the claimant's equity may be better satisfied in another and possibly more limited way. Thus, as was also said in Giumelli v Giumelli, before granting relief the court is required to consider all of the circumstances of the case, including the possible effects on third parties, and to avoid going beyond what is required for conscientious conduct or would do injustice to others . But that does not mean that the court is required to be "constitutionally parsimonious" or that it is necessary for there to be substantial correspondence between expectation and the monetary value of the detriment suffered, or which but for the relief to be accorded would be suffered. 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. (my emphasis)
239At [32] his Honour noted that:
... the English notion of "minimum equity" is different to the approach to proprietary estoppel which was sanctioned by the High Court in Giumelli v Giumelli . In England, the court looks at all the circumstances of the case in order to do what Lord Scarman LJ described in Crabb v Arun District Council as the "minimum equity to do justice to the plaintiff". The exercise is conceived of as requiring "proportionality" (which I take to mean substantial correspondence) between remedy and detriment, in much the same way that Mason CJ conceived of it in Waltons Stores and Commonwealth v Verwayen . But, as has been seen, the effect of Giumelli is that, assuming that the promise, reliance and detriment have been established, the promisee is prima facie entitled to have the promisor held to the promise, and the court then considers all the circumstances of the case in order to determine whether it is necessary to mould or modify the relief to avoid going beyond what is required for conscientious conduct. As Brooking JA explained in Flinn v Flinn, Giumelli means that departure from the assumed state of affairs is contrary to the requirements of conscientious conduct and it is a question depending on all the circumstances of each case whether departure is to be permitted . (my emphasis)
240In Donis , the Court of Appeal in Victoria considered that there was nothing vague or imprecise about the terms of the promises and assurances and did not accept that the promises and assurances only justified a level of expectation less than the half share in the property that was promised. At [34] Nettle JA said:
Bearing in mind what Deane J said in Verwayen , I allow that an estopped party would not be held to a promise to transfer property worth $1m if the only detriment suffered by the party entitled to the benefit of the estoppel were the outlay of a couple of hundred dollars in constructing a shed on the land. But I take the reason for that to be that the outlay of a couple of hundred dollars on something as insignificant as a shed would be such a small and impersonal degree of detriment as to be wholly compensable in cash. Where, however, as here, the detriment suffered is of a kind and extent that involves life-changing decisions with irreversible consequences of a profoundly personal nature, it is in my view beyond the measure of money and such that the equity raised by the promisor's conduct can only be accounted for by substantial fulfilment of the assumption upon which the respondent's actions were based. ( my emphasis)
241Later, at [41], Nettle JA said:
I add, for completeness, that the existence or lack of an existing moral obligation may sometimes throw light upon the question of whether enforcement of the promise or assurance would be excessive. As the decision in Jennings v Rice serves to demonstrate, in a case where the meaning of a promise or assurance is uncertain, a lack of existing moral obligation may reveal that the plaintiff's expectation or assumption is extravagant and thus that equity is better satisfied in another and more limited way. But once again that is not this case. ... Despite the lack of prior moral obligation, the fact that the respondent was about to marry Steven Donis entitled her reasonably to believe that Victor and Rosa Donis meant what they said. At least in the circumstances which obtained in this case, there was nothing extravagant about that assumption . (my emphasis)
242The question as to when relief may be limited due to the disproportion between the relief calimed and the detriment was also considered in Sullivan v Sullivan , Handley JA noting that Giumelli established that there is no restriction in respect of the relief being limited to removing or reversing the detriment suffered by the party entitled to the estoppel; that relief may be moulded to recognise practical considerations and to take into account the impact of orders on third parties and any hardship or injustice they would suffer.
243Mr Newlinds submits that even if representation/detrimental reliance is made out by Ms Van Dyke, the relief sought is disproportionate and not justified in all the circumstances. He points to the evidence (namely the conditional approval for the sub-division) that suggests that the sub-division will be expensive. The joint valuation report itself indicates the market value of the area comprised by the Oaks Property (assuming a subdivision as planned) in an unimproved state but clear of debris as at February 2006 and again in 2010 as being in the order of $320,000 to $350,000.
244In Delaforce v Simpson-Cook , on appeal, Allsop P, said at [4]-[5], agreeing with the view expressed by Handley AJA as to the import of Giumelli in this regard:
Proportionality of the claimed interest or remedy to the prejudice or detriment is undeniably a relevant consideration, and sometimes of considerable importance. It should not, however, be transformed into a necessary constitutive element of a cause of action to be pleaded or proved by the party seeking relief. To do so would elevate one consideration above others, and in particular above the importance of making good an expectation by encouragement or representation: Plimmer v Mayor of Wellington (1884) 9 App Cas 699 at 713-714; Riches v Hogben [1985] 2 Qd R 292; Giumelli at 113-114 [10] and 121-122 [35]. It would tend to equate the analysis to one requiring that the party encouraged receive no more than it can prove that it suffered in detriment. This would see the equity become one of compensation for proved equivalent detriment. The equity is a broader one based on the just and conscionable satisfaction in appropriate fashion of the equity arising from the expectation created in another by encouragement or representation. As Handley AJA says, the role of proportionality is better understood, in a doctrine dealing with the legitimacy or otherwise of resiling from an encouragement or representation that has created an expectation, as assisting in an assessment whether what is claimed or contemplated to be granted is disproportionate or unjust in all the circumstances.
The importance of keeping a party to a representation or encouragement previously made is all the stronger where, as here, the encouragement or representation has been relied upon by a party to abandon a course of conduct that could possibly have led to a different outcome. This can be described in the language of loss of a chance that is not fanciful or unrealistic, or in the language of proceeding thereafter on the basis of a new or changed convention or conventional basis. Such expression of the matter is not different to how Dixon J put the matter in Grundt v Great Boulder Pty Gold Mines Ltd [1937] HCA 58 ; 59 CLR 641 at 674-675. For instance, if, as here, in reliance upon a representation or encouragement, a court case is abandoned and the representation or encouragement is later sought to be resiled from, the party to whom the representation or encouragement was made and in whom the expectation was raised is left in the position not only of the loss of the entitlement to pursue his or her rights in the case in the past, but also is likely to be in the position of being unable to demonstrate what would, or even may, have happened in the case, it being an alternative, complex and now hypothetical body of human conduct. That the party encouraged cannot show that he or she would have been better off in the posited alternative reality is not fatal to the making out of the estoppel. Indeed, the inability to prove such things reveals a central aspect of the detriment: being left, now, in that position . Of course, if it is self-evident or can be clearly demonstrated that the case was fanciful or otherwise doomed to fail, there may be no real detriment; but that was not the case here. The respondent gave up her right to propound her case in the Family Court on the faith of the deceased's representation. It was not self-evident, or otherwise clearly demonstrated, that she could not have been successful in securing her rights to the subject property after the death of the deceased. (my emphasis)
245The Court of Appeal in Delaforce upheld the finding of Bergin CJ in Eq that the plaintiff was entitled to rely on the promise made to her and that her reliance was reasonable. There, the plaintiff had relied on two detriments to support her claim to a proprietary estoppel: the giving up of the opportunity to have the Family Court determine her property rights on the merits and her acquiescence in the loss of the $50,000 previously offered for her share of the property in question. The Court of Appeal said that the relevant detriment was not the loss flowing from non-fulfilment of the promise or assurance, it was that which the party asserting the estoppel would suffer, as a result of his or her original change of position, if the assumption which induced it was repudiated by the party estopped. Their Honours held that the relevant detriment in that case was the plaintiff's change of position when she signed the draft consent orders and allowed the Family Court to act on her consent, giving up not only any claim to the $50,000 but also the right to ask the Family Court to determine her entitlements. Thus the Court of Appeal held that the plaintiff's detriment was not limited to the loss of the $50,000, but included the loss of the chance of obtaining an enforceable order giving her a right to the subject property after the death of the deceased and was not limited to relief by reference to the sum of $50,000 appropriately indexed.
246Handley JA in Delaforce summarised from [55] the views he had outlined in Sullivan v Sullivan at [11]-[32] as governing the grant of relief in an estoppel by encouragement case. In so doing, his Honour stated the following principles:
A proprietary estoppel by encouragement may be established where the conduct of the party estopped did not define the expectation ( Plimmer v Mayor of Wellington (1884) 9 App Cas 699 at 713; Flinn v Flinn [1999] 3 VR 712 CA, 738-9, 742, 743; Gillett v Holt [2001] Ch 210 CA, 226) noting that the "quality of the assurances which give rise to the claimant's expectations" is an important factor ( Jennings v Rice [2003] 1 P & CR 100 at 112 and 114 per Robert Walker LJ and that "the quality of the relevant assurances may influence the issue of reliance [and] reliance and detriment are often intertwined", Gillett v Holt , approved by the Privy Council in Henry v Henry [2010] 1 All ER 988 PC, 995, 1000).
Relief is not limited to removing or reversing the detriment suffered by the party entitled to the estoppel ( Giumelli [1999] HCA 10 ; 196 CLR 101, 120, 125); 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.
Relief depends very much on the facts and the court must look at the circumstances in each case to decide in what way the equity can be satisfied ( Plimmer (1884) 9 App Cas 699 at 714)
The court does not exercise an unfettered discretion but adopts a principled approach ( Giumelli at 123-4, 125; Gillett v Holt [2001] Ch 210 CA, 225 and Jennings v Rice [2003] 1 P & CR 100 CA, 112).
The 'minimum equity' principle applied in Verwayen [1990] HCA 7; 170 CLR 394 by Mason CJ at 441, and Brennan J at 429, 430, is probably not the law in this country since Giumelli .
Relief may be moulded to recognise practical considerations (such as the need for a clean break) and the court must take into account the impact of its orders on third parties and any hardship or injustice they would suffer ( Giumelli ; Flinn v Flin n [1999] 3 VR 712 CA, 749, 750). (my emphasis)
Relief may be refused or reduced if the plaintiff's equity has been diminished by later events (citing Sledmore v Dalby (1996) 72 P & CR 196 where the court held that the plaintiff's equity based on his improvements had been fully amortized over 18 years of rent free occupation) or, conversely subsequent events may enlarge the plaintiff's equity (as in Crabb v Arun DC [1976] Ch 179 CA where the defendant's repudiation of the expectation had landlocked the plaintiff's land for five years)
Relief may also be limited where the enforcement of the plaintiff's expectation would be out of all proportion to the detriment, particularly where the expectation was not defined and the court has a broader discretion ( Jennings v Rice [2003] 1 P & CR 100 CA, 104, 111, 114, 115).
The court should, prima facie, enforce a reasonable expectation which the party bound created or encouraged: (Meagher Gummow & Lehane " Equity Doctrine and Remedies" 4th ed 2002, pp 567-8; Ramsden v Dyson (1866) LR 1 HL 129 at 170 ; Chalmers v Pardoe [1963] 1 WLR 677 PC, 681-2; Attorney-General (Hong Kong) v Humphreys Estate (Queen's Gardens) Ltd [1987] AC 114 at 121 per Lord Templeman).
Prima facie, the operation of an estoppel by conduct is to preclude departure from the assumed state of affairs. It is only where relief framed on the basis of that assumed state of affairs would be inequitably harsh, that some lesser form of relief should be awarded ( Giumelli ) but this prima facie entitlement would be qualified if that relief "would exceed what could be justified by the requirements of conscientious conduct and would be unjust to the estopped party".
247His Honour noted at [67] that in Sledmore v Dalby (1996) 72 P & CR 196 CA, 203 Roch LJ, delivering the principal judgment, approved the statement that "the extent of the equity is to have made good, so far as may fairly be done between the parties, the expectations [of the plaintiff] which [the defendant] has encouraged" ( Snell's Equity 29th ed p 576) and that Sledmore was followed in Mobil Oil Australia Ltd v Wellcome International Pty Ltd (1998) 81 FCR 475 at 517-8. His Honour also noted that in Jennings v Rice , Robert Walker LJ had said:
... there is a category of case in which the benefactor and the claimant have reached a mutual understanding which is in reasonably clear terms but does not amount to a contract ... In such a case the Court's natural response is to fulfil the claimant's expectations. But if a claimant's expectations are uncertain, or extravagant, or out of all proportion to the detriment which the claimant has suffered, the Court can and should recognise that the claimant's equity should be satisfied in another (and generally more limited) way (emphasis supplied).
248Handley JA went on in Delaforce at [77] to express the view that:
... there is no positive requirement for a plaintiff to prove that the relief sought is proportionate. The principle, a negative one, is that enforcement of the expectation must not be disproportionate.
249I have concluded above that the basis of an equitable estoppel is not made out (since it was not objectively reasonable for Ms Van Dyke to rely on the promises, noting that the only detrimental reliance established in fact was the giving up of the opportunity to seek a property settlement from her former husband). Had I accepted that it was objectively reasonable for Ms Van Dyke to rely on the initial promise when giving up the opportunity to make a claim for a property settlement at the time of her divorce, then I would have considered that an order for the transfer of the Oaks Property to her (even assuming that could be done in advance of the subdivision) even if not disproportionate in all the circumstances would have affected the rights of Mrs Sidhu who was not joined as a party to the proceedings (and to whose interests it is clear from the authorities cited above I must have regard).
250In those circumstances I would have concluded that the appropriate relief in the present case was not to make good the expectation as to the transfer of the property but to compensate Ms Van Dyke for the detriment suffered by giving up the opportunity to obtain a settlement from her former husband. In that regard, the difficulty would have been that there is no evidence (beyond Ms Van Dyke's stated opinion) as to what the likely property settlement would have been or as to the likelihood that leave might even now be obtained to make such an application. The marriage was of short duration but there was a child of the marriage the need for financial support for whom would no doubt have been a factor in considering any settlement. Mr Svenson's financial ability to meet a property settlement was also in issue. Had the quantum of relief been necessary to determine I would have been inclined to refer the question as to the likely range of a property settlement had this issue been the subject of an application to the Family Court in or around the time of the divorce out for determination by a Court appointed referee. As it is, the issue does not arise.
Unconscionable conduct claim
251In essence this turns on the same issues addressed above.
252In Barnes v Alderton , his Honour also noted that the trend had been away from listing fixed criteria in proprietary estoppel cases towards a broader formulation based on the notion of unconscionability (citing Pawlowski at 181) (at [49]), a trend his Honour considered had culminated in Jennings v Rice [2003] 1 P & CR 100, where Robert Walker LJ in the English Court of Appeal said at [44]:
The need to search for the right principles cannot be avoided. But it is unlikely to be a short or simple search because (as appears from both the English and Australian authorities) proprietary estoppel can apply in a wide variety of factual situations, and any summary formula is likely to prove to be an over-simplification. The cases show a wide range of variation in both of the main elements, that is the quality of the assurance which give rise to the claimant's expectations and the extent of the claimant's detrimental reliance on the assurances. The doctrine applies only if these elements in combination, make it unconscionable for the person giving the assurances ... to go back on them.
253The reasons that have led me to conclude that it is not unconscionable for Mr Sidhu, in advance of completion of the subdivision, to resile from the promises he made (and to conclude that it was objectively not reasonable for Ms Van Dyke to rely on those promises in all the circumstances) lead to the conclusion that the alternative unconscionable conduct claim is also not established.
254For completeness I note that in the course of submissions I raised the question whether the circumstances of the case might (though not pleaded) have given rise to a claim of the kind falling within the principles expounded in Muschinski v Dodds [1985] HCA 78; (1985) 160 CLR 583 and Baumgartner v Baumgartner [1987] HCA 59; (1987) 164 CLR 137 (namely for the imposition of a constructive trust where there is a joint endeavour between the parties in which expenditure is shared for their common benefit; that joint endeavour has come to an end without attributable blame in the sense in which that expression has been understood in later authorities; and it is found to be unconscionable for the contributions to, or benefit, of that joint endeavour to be retained by one of the parties thereto. Mason CJ, Wilson and Deane JJ in Baumgartner v Baumgartner referred to:
...the general equitable principle which restores to a party contributions which he or she has made to a joint endeavour which fails when the contributions have been made in circumstances in which it was not intended that the other party should enjoy them.
255In Muschinski, Deane J said (at [618]) that a constructive trust may arise when an assertion of a legal right would be unconscionable:
Those circumstances can be more precisely defined by saying that the principle operates in a case where the substratum of a joint relationship or endeavour is removed without attributable blame and where the benefit of money or other property contributed by one party on the basis and for the purposes of the relationship or endeavour would otherwise be enjoyed by the other party in circumstances in which it was not specifically intended or specifically provided that that other party would so enjoy it. The content of the principle is that, in such a case, equity will not permit the other party to assert or retain the benefit of the relevant property to the extent that it would be unconscionable to do so ... (at p 620).
256The pooling of labour by or on behalf of both parties, in the absence of the pooling of financial resources, has been found to give rise to a constructive trust (see Miller v Sutherland (1990) 14 Fam LR 416 at [424] per Cohen J) as have contributions to family welfare by way of domestic assistance ( Baumgartner at [155] - [156] per Gaudron J; Bryson v Bryant (1992) 29 NSWLR 188; Stowe v Stowe (1995) 15 WAR 363). White J, considering a claim based on a common intention constructive trust in Shepherd v Doolan [2005] NSWSC 42, noted that in Green v Green (1989) 17 NSWLR 343 Gleeson CJ (at [357]), (with whom Priestley JA agreed), had approved the test taken from the judgment of Sir Nicholas Browne-Wilkinson VC in Grant v Edwards [1986] Ch 638; 2 All ER 426 (at [657]) that:
Once it has been shown that there was a common intention that the claimant should have an interest in the house, any act done by her to her detriment relating to the joint lives of the parties is, in my judgment, sufficient detriment to qualify. The acts do not have to be inherently referable to the house. ... The holding out to the claimant that she had a beneficial interest in the house is an act of such a nature as to be part of the inducement to her to do the acts relied on. Accordingly in the absence of evidence to the contrary, the right inference is that the claimant acted in reliance on such holding out and the burden lies on the legal owner to show that she did not do so ...
257The substantiality of the contribution in question will be a factor in determining the issue of unconscionability. The quantum of the claimant's beneficial interest is that which the parties agreed or intended. However, where the parties did not turn their minds to the particular form of the title that they intended to have the court can impose a constructive trust which best gives effect to the intentions of the parties (White J in Shepherd v Doolan noting Green v Green and Parianos v Melluish (Trustee) [2003] FCA 190; (2003) 30 Fam LR 524 in this regard).
258In Little v Saunders [2004] NSWSC 655, Campbell J (as his Honour then was) said (at [41]):
... the fundamental matter which guides equity in deciding whether there is a constructive trust in this area, is whether the property would come to be enjoyed by a party in circumstances in which it was not specifically intended or specifically provided that the other party should so enjoy it.
259Ms Van Dyke did not plead an entitlement to relief based on such a constructive trust, although she told me that she had in a previous draft of the submissions had a reference to Baumgartner .
260In any event, for the reasons that led Handley JA to determine in Kukula that no relief based on the pooling of contributions would lie, that also seems to be the case here. The contributions seem to me to be broadly matched in terms of the benefit of the work carried out by Ms Van Dyke and the benefits received by her so as to make it difficult to argue that there was a disproportionate contribution that should be redressed in the current case on the breakdown of the relationship between the two (assuming that can be treated as a joint endeavour of the kind considered in the Muschinski line of cases). Further, it is clear that the joint understanding between Ms Van Dyke and Mr Sidhu in relation to The Oaks Cottage (and later the Oaks Property) was that any transfer of the property was only to occur (as could from a practical matter only be the case) after the subdivision of Burra Station (and either with the consent of Mrs Sidhu or in circumstances where that was not necessary).
Conclusion
261In Taylor v Dickens [1998] 1 FLR (Eng) 806) (criticised on other aspects in Gillett v Holt ), Weeks J said:
In my judgment, there was no equitable jurisdiction to hold a person to a promise simply because the court thought it unfair, unconscionable or morally objectionable for him to go back on it. If there were such jurisdiction one might as well forget the law of contract and judge every civil dispute with a portable palm tree. The days of justice varying with the length of the Lord Chancellor's foot would have returned.
262I have no doubt that promises were made by Mr Sidhu to Ms Van Dyke and that she placed her faith in them and expected that Mr Sidhu would honour them. It is very clear that Mr Sidhu is now not prepared to do so (and is not in a position to do so without affecting the interests of his wife in relation to their jointly owned property - despite his assurances to Ms Van Dyke that he was in a position to deal with his share of the property as he liked).
263I consider that, as between he and Ms Van Dyke, Mr Sidhu's conduct is morally objectionable, to adopt the words in Taylor v Dickens . (It is not to the point in the present proceedings to express any view as to the conduct of both Mr Sidhu and Ms Van Dyke vis a vis Mrs Sidhu and I do not do so.) Mr Sidhu himself seems to have acknowledged a moral obligation to Ms Van Dyke in communications with her after the break-up of their relationship (though he considered it unreasonable for her to expect the transfer of the property itself in circumstances where the relationship was at an end). However, it is not for this Court to impose notions of what is or is not subjectively fair. I am not satisfied that Ms Van Dyke has established an entitlement to the relief she has sought whether on the basis of equitable estoppel or on the basis of a more general principle of unconscionable and therefore I am bound to dismiss her claim. I will so order.