Van Dyke v Sidhu

[1]

The Public Trustee v Kukula (1990) 14 Fam LR 97 Van Dyke v Sidhu [2012] NSWSC 118 Vukic v Luca Grbin; Estate of Zvonko Grbin [2006] NSWSC 41 Waddell v Waddell [2012] NSWCA 214; (2012) 292 ALR 788 Walsh v Walsh [2012] NSWCA 57 Waltons Stores (Interstate) Pty Ltd v Maher [1988] HCA 7; (1988) 164 CLR 387 Wayling v Jones (1993) 69 P & CR 170 Texts Cited: K R Handley, Estoppel by Conduct and Election, (2006) Sweet and Maxwell Michael Spence, Protecting Reliance: The Emergent Doctrine of Equitable Estoppel, (1999) Hart Publishing Category: Principal judgment Parties: Lauren Marie Van Dyke - Appellant Ptrithvi Pal Singh Sidhu - Respondent Representation: Self-represented - Appellant Mr J C Giles - Respondent Self-represented - Appellant Henry Davis York Lawyers - Respondent File Number(s): 2012/88758 Decision under appeal Citation: Van Dyke v Sidhu [2012] NSWSC 118 Date of Decision: 2012-02-23 00:00:00 Before: Ward J File Number(s): 2009/289460

[2]

Judgment 1BASTEN JA: In this appeal, I agree with the orders proposed by Barrett JA and with his reasons. 2BARRETT JA: In proceedings brought in the Equity Division of the Supreme Court, the appellant (as plaintiff) claimed an entitlement to certain real property known as "Oaks Cottage" (or an interest in it) by reason of an estoppel binding on the respondent (who was the sole defendant). The appellant also maintained that, even if no estoppel operated, the respondent had acted unconscionably in such a way as to entitle her to equitable relief. The proceedings were dismissed with costs on 23 February 2012 after a hearing in December 2011: Van Dyke v Sidhu [2012] NSWSC 118. 3The primary judge (Ward J, as she then was) held that, although the respondent had made certain representations or promises to the appellant regarding transfer of Oaks Cottage to her, the circumstances as a whole were not such as to raise any proprietary estoppel as against the respondent or to make unconscionable later conduct of the respondent inconsistent with those statements. 4The appellant's case at trial was that the respondent, with whom she was in a romantic and sexual relationship over several years, made clear and unambiguous representations to her on several occasions that Oaks Cottage was her home and that he would transfer it to her (or procure its transfer to her) and that she acted reasonably in reliance on those representations (and a corresponding assumption created and encouraged by the respondent) to her detriment in a number of ways. On that basis, she claimed an order that Oaks Cottage be transferred to her or a declaration recognising her interest in Oaks Cottage by way of constructive trust or charge or an order for the payment of equitable compensation to her. 5In relation to the appellant's estoppel case, the primary judge found that the respondent had made relevant representations and promises to the appellant but that: (a) the representations and promises were conditional, in the sense that the envisaged transfer of Oaks Cottage was not to occur unless certain events outside the respondent's control occurred; (b) the conditional nature of the representations and promises did not, however, compromise their clarity and certainty; (c) given the existence of the conditions, it was not objectively reasonable for the appellant to rely on the representations and promises; (d) things that the appellant said she had done in reliance on the representations and promises would have been done by her in any event, so that she had not shown that any detriment accrued to her by reason of any such reliance; (e) it was, in the circumstances, not unconscionable for the respondent to depart from the representations and promises; and (f) the appellant was not entitled to any of the relief she sought. 6The appellant's proprietary estoppel case thus failed. Her unconscionable conduct claim was dismissed for the same reasons. 7The appellant appeals on a number of grounds which challenge the primary judge's findings of fact and evaluative judgments. The respondent says that the judge's decision was correct; and should, in any event, be upheld on bases stated in a notice of contention.

[3]

Factual background 8The central facts are not in dispute. In January 1996, the appellant (Lauren Van Dyke) married the brother of the respondent's wife and, later in that year, the appellant and her husband Rolf commenced living in Oaks Cottage, a house on Burra Station, a rural property near Queanbeyan. The respondent (Ptrithvi Pal Singh Sidhu, known as "Beat") and his wife ("Lajla"), with their child, lived in another house on Burra Station, a few hundred metres from Oaks Cottage. Both houses were situated on the "Homestead Block", a part of Burra Station consisting of an unsubdivided lot of which the respondent and his wife were the registered proprietors as joint tenants. 9The appellant and her husband paid rent for Oaks Cottage to the respondent and his wife. A child was born to the appellant and her husband soon after they had taken up residence at Oaks Cottage. 10The romantic and sexual relationship between the appellant and the respondent began in mid to late 1997. The appellant's husband learned of this and, in mid-1998, he and she separated. They were later divorced. The appellant did not seek a property settlement as part of the divorce proceedings. On her case, this was because, as a result of the representations made to her by the respondent, she believed that she had already been promised Oaks Cottage and did not need to seek financial provision from her husband. 11The appellant remained at Oaks Cottage with her child after the departure of her husband. She continued to pay rent to the respondent and his wife, but at a rate less than market rent. The respondent said that he wished her to continue paying rent (albeit at the discounted rate) because, in effect, it would make things easier with his wife. 12The appellant rendered assistance of various kinds on and about Burra Station, including, in and after 2001, in relation to subdivision and development of the part known as the "Back Block" which was owned by a company of which the respondent, his wife, his brother and the brother's wife were the shareholders. The appellant had no ownership interest in the company or the Back Block. 13In October 2005, the local Council approved a subdivision of the Homestead Block into three lots, one of which included Oaks Cottage. The approval was conditional. Among the conditions were requirements for road construction and other works. 14In February 2006, Oaks Cottage was destroyed by fire. The appellant and her child later moved into a relocatable cottage which was installed nearby on the Homestead Block. It had been acquired in 2000 as a home for the father of the respondent's wife. The respondent and his wife received fire insurance proceeds of $175,000. 15In the period May to July 2006, the appellant and the respondent discussed and corresponded about longer-term accommodation for the appellant following the destruction of Oaks Cottage. This led to no consensus and, on 21 July 2006, the appellant left Burra Station. At around that time, the respondent said that he would not give Oaks Cottage (then, effectively, vacant land plus insurance proceeds) to the appellant; and the respondent's wife made a statement consistent with her husband's being unable to give Oaks Cottage to the appellant. The relationship between the appellant and the respondent ended in mid-2006. 16There was not, at any material time, a subdivision of the Homestead Block (owned by the respondent and his wife as joint tenants) of the kind that would have been necessary to enable a transfer of Oaks Cottage as a separate property. As mentioned, however, the local Council did grant conditional approval of a plan of subdivision of the Homestead Block in October 2005.

[4]

The judge's central findings 17It was in the context of these basic facts that the representations and promises found by the primary judge were made. Her Honour's central findings were that the respondent had made representations and promises to the appellant as follows:

January 1998: "I love you and can tell you love me too. 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 [appellant's child] in. I can provide it."
Mid-1998: "Lauren, you have the Oaks, you do not need a settlement from him [the appellant's husband]. You can do the divorce yourself. You don't need a lawyer". (This was said in response to a statement by the appellant that she needed to find a lawyer to assist her with her divorce and property settlement).
About September 1998: "How about you continue to pay what you can as this will keep things low key with [the respondent's wife]". (This was said in response to a question by the appellant whether she should stop paying rent for Oaks Cottage because it was "now my [ie, the appellant's] property".) 18There were also findings as to various other statements made, but the primary judge did not see any of those as an operative representation or promise of the relevant kind. 19After citing authority and expressing a view (at [121]) that, although not expressly framed as such, the appellant's case was necessarily "one brought under the rubric of promissory estoppel", her Honour referred (at [135]) to the things that the appellant had to establish in order to make good an entitlement to relief on the basis of that species of estoppel: "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." 20It was submitted before the primary judge that the respondent's representations or promises, being conditional, were not clear and unequivocal. Several possible conditions were identified: first, continuation of the romantic and sexual relationship between the parties; second, the appellant's continuing to live at Burra Station; third, concurrence of the respondent's wife in a transfer of Oaks Cottage to the appellant (or, perhaps, the wife's death or a divorce settlement making the respondent the sole owner); fourth, absence of any compelling financial need for the respondent (and his wife) to sell the land in the meantime; fifth, subdivision of Burra Station so as to make Oaks Cottage and its agreed curtilage separately transferable; sixth, concurrence or co-operation by a financier which held a mortgage from the respondent and his wife over the Homestead Block; and, seventh, payment by the appellant of the costs of the transfer. 21The primary judge held that the appellant's representations or promises were subject to the third, fourth, fifth and sixth of the conditions - and that the appellant understood those conditions to be operative (also that a reasonable person in her position would have had the same understanding); but that this did not make the representations so vague or imprecise as to be incapable of founding an estoppel. 22As to the belief induced in the appellant by the conditional representations or promises, the primary judge said (at [188]): "The 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." 23The judge then said (also at [188]): "In the context of the relationship it was not unreasonable for Ms Sidhu [sic; scil: Ms Van Dyke] to understand the promise in that way and to place faith in it." 24With the question of subjective reasonableness dealt with in that way, attention was directed to the question of whether reliance on the representations and promises in advance of satisfaction of the conditions was objectively reasonable. With "some hesitation", her Honour (at [195]) answered that question in the negative particularly since fulfilment of the promise was clearly dependent to some extent on matters largely outside the respondent's control. Her Honour returned to that matter (at [220]): "For 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." 25Counsel for the respondent submitted at trial that, as a matter of fact, the appellant did not rely on the representations and promises made by the respondent. After a careful review of the evidence, the judge concluded that the appellant would have done work on and about the property (while in part-time employment elsewhere) and otherwise assisted the respondent and his wife whether or not the promises had been made and that her doing so was consistent with the fact that she was paying rent for Oaks Cottage at a reduced rate only. Her Honour did find, however (at [219]), that there was actual reliance on the promise when the appellant gave up the opportunity to seek a divorce settlement: "I 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." 26The judge's consideration of the question of the respondent's knowledge of reliance by the appellant on the representations and promises (and whether he intended reliance by her) was made difficult by the fact that no affidavit of the respondent was read and he was therefore not cross-examined (a small part of his affidavit was tendered when he put the appellant in the witness box). Her Honour found, however that there was relevant knowledge and intention on the part of the respondent. The finding was based largely on evidence of conduct of the respondent in acceding to a request of the appellant that he sign a note reassuring her that the property would be transferred to her. There were in fact two such written confirmations, one in 2000 and the other in 2006. 27The question whether it was unconscionable, in the sense relevant to proprietary estoppel, for the respondent to resile from the promise was answered in the negative; and the overall conclusions on the estoppel case were as stated at [5] above. 28The primary judge then gave attention to the relief that would have been appropriate had she found that the appellant had established her estoppel claim. There is no need to deal with that aspect at this point. Finally, she addressed the appellant's separate case based on unconscionable conduct. Her conclusion was as follows (at [253]): "The 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."

[5]

Contentions on appeal 29At this stage, I leave the unconscionability case to one side and deal with the estoppel case. 30The appellant contends on appeal (Grounds 1 to 3) that the judge erred in considering only representations and promises concerning transfer of Oaks Cottage into the appellant's name. She submits that her Honour should have had regard to what she termed in submissions "wider representations", including a statement by the respondent to the appellant in 1998, "You have the Oaks"; and the respondent's positive response (or, perhaps, lack of negative response) to a statement by the appellant to him, "Now that the Oaks is my property ...". The appellant says that the judge should have found that, in or about 1998, the respondent represented to her that he had the ability to deal with Oaks Cottage as he chose, that he was giving her the property (in an immediate sense) and that it therefore became owned by her (with the result that she need not seek a property settlement in her divorce). 31In substance, the appellant contends that the judge should have found representations of immediate and present benefaction by a person capable of bestowing it, not merely representations as to future actions if and when conditions necessary for legal transfer of a subdivided lot were satisfied. 32The appellant also challenges (by Ground 4) the judge's finding that she did not act to her detriment in reliance on the respondent's representations, except by foregoing the opportunity to seek a property settlement in connection with her divorce. The appellant points to what she says were numerous aspects of her evidence making clear her reliance on what the respondent had promised her; and that she would have conducted her life differently in the absence of the promises. She refers to renovations and maintenance of Oaks Cottage, work she did in connection with the location and installation of the relocatable cottage after the destruction of Oaks Cottage, her decision not to engage in full-time paid work between January 1998 and July 2006, active steps she took to assist with and facilitate the Back Block subdivision, work she did in removing an extensive fence, research she did relevant to the rebuilding of Oaks Cottage, her efforts in caretaking Burra Station while the respondent and his wife were absent and, in general terms, time and effort spent on care, maintenance and attention to Burra Station and activities concerning it. 33In pointing to these matters, the appellant observes that she had ended her relationship with her husband and had been told by the respondent that she had his assurance of a home at Oaks Cottage and did not need a property settlement. In those circumstances, the appellant says, it was a rational and obvious course of action for her to regard the cottage as her own and to treat it accordingly by expending effort on maintaining and improving it and assisting the man who had given it to her. 34By Ground 5, the appellant challenges the judge's finding that it was objectively not reasonable for the appellant to rely on the respondent's representations. She says that once the "wider representations" are taken into account, a finding of objectively reasonable reliance was warranted by a combination of factors: the respondent's representation that he had used his "Indian family money" to buy the property (indicating, in effect, that whatever might appear on the title, he had paid for it so that it was in truth his); that he wanted the appellant to have Oaks Cottage because he loved her; that she did not need a property settlement from her husband; and that, although Oaks Cottage was her property, she should continue to pay rent to keep things "low key" with his wife. The appellant emphasises that the "wider representations" were not conditional on completion of a subdivision. The appellant also says that, even if the relevant representations are those found by the judge, it is significant that the judge found that the respondent knew and intended that the appellant would rely on them. 35By Ground 6, the appellant challenges the judge's finding that the appellant's only reliance on the representations was in foregoing the opportunity of seeking a property settlement on her divorce. She says (Ground 7) that that finding was made on the basis of "equivocal answers to hypothetical questions" put to her in cross-examination. The true position, she says (Grounds 9, 10 and 12), is that she relied on the representation when making substantial contributions to Oaks Cottage and the land around it, as well as to Burra Station more generally; and (Ground 11) that she gave up the opportunity to work full time or to acquire other real estate or to do both those things. 36Finally, the appellant contends that the judge was in error in finding that her claim failed because the time for performance of the promises had not arrived (Ground 13) and in finding that it was not unconscionable for the respondent to resile from his promise (Ground 14). 37Ground 8 challenges a finding about the precise area of land involved in the representations and promises.

[6]

The legal principles 38The appellant sought relief on principles of equitable estoppel referred to in Waltons Stores (Interstate) Pty Ltd v Maher [1988] HCA 7; (1988) 164 CLR 387 at 400 and Giumelli v Giumelli [1999] HCA 10; (1999) 196 CLR 101. As the primary judge correctly noted at [121] and [122], the foundation of the appellant's case, properly characterised, is the branch of proprietary estoppel known as estoppel by encouragement. In Delaforce v Simpson-Cook [2010] NSWCA 84; [2010] 78 NSWLR 483, Handley AJA described estoppel by encouragement in the following way (at [21]): "Such an estoppel comes into existence when an owner of property has encouraged another to alter his or her position in the expectation of obtaining a proprietary interest and that other, in reliance on the expectation created or encouraged by the property owner, has changed his or her position to their detriment. If these matters are established equity may compel the owner to give effect to that expectation in whole or in part." 39The doctrine of proprietary estoppel enables a court to grant positive relief to a promisee by, for example, ordering a transfer of promised property by the promisor. Promissory estoppel, by contrast, entails restraint upon enforcement of existing legal rights inconsistently with a promise: Saleh v Romanous [2010] NSWCA 274; (2010) 79 NSWLR 453 at [74]; DHJPM Pty Ltd v Blackthorn Resources Ltd [2011] NSWCA 348; (2011) 285 ALR 311 at [93] per Handley AJA. 40The principles to be applied in determining the appellant's claim are not in dispute and were set out by the primary judge at [117] to [135]. As noted above, her Honour proceeded on the basis (at [135]) that the appellant had to establish the following to succeed in her estoppel claim: (a) the making of a clear and unequivocal promise (such that it was objectively reasonable for the appellant to interpret the promise in a particular way and to act in reliance on that interpretation); (b) that the respondent's promise caused the appellant reasonably to assume that a particular legal relationship existed between her and the respondent; (c) that the appellant acted reasonably in reliance on the promise; (d) that the respondent knew or intended that the appellant would act in reliance on the promise; (e) that the appellant's reliance on the promise was to her detriment; and (f) that the respondent acted unconscionably in not honouring the promise. 41Her Honour drew these principles from various authorities, including Waltons Stores (Interstate) Ltd v Maher (above) where Brennan J said at 428-429 of the requirements for establishing an equitable estoppel: "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 plaintiff's 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." 42These principles have been applied to proprietary estoppel claims. 43The primary judge also referred to Brereton J's summary of the matters which a plaintiff must establish to found an equitable estoppel in Vukic v Luca Grbin; Estate of Zvonko Grbin [2006] NSWSC 41 at [28]: "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."

[7]

The content of the respondent's promises 44The first step in addressing the applicant's case is to identify promises made by the respondent. 45The primary judge found that the respondent made two separate promises to the appellant during the relevant period, concluding at [182]: "[T]here 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". 46The second promise thus referred to by the judge (made at a time when the appellant and the respondent together stepped out the area of the land) was made in mid-2004. The subject matter of that promise was an area of somewhat more than 7 hectares. The respondent repeated or confirmed that promise on subsequent occasions in 2005: see [65] below. 47The appellant challenges the judge's finding in relation to the first promise (the promise made in 1998). The judge, it is said, erred in basing her decision as to the content of the first promise (as a promise to transfer Oaks Cottage to the appellant upon subdivision of the property) solely on the following representation made by the respondent to the appellant in early January 1998: "[Respondent]: 'I love you and I can tell you love me too. 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.' [Appellant]: 'Are you sure? What does Lajla think about all this?' [Respondent]: 'Yes I am sure. 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 Karl in. I can provide it.'" (emphasis added) 48Instead, the appellant says, the judge should also have taken into account the "wider representations" (referred to at [30] above). The first of the "wider representations" is said to have been made in mid-1998 during an exchange between the appellant and the respondent: "[Appellant]: 'Beat, I believe I need to find a lawyer to assist me with my divorce and property settlement with Rolf.' [Respondent]: '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.'" (emphasis added) 49The second "wider representation" is said to have been made in these terms in September 1998: "[Appellant]: 'Beat, do I stop paying rent now that the Oaks is my property?' [Respondent]: 'How about you continue to pay what you can as this will keep things low key with Lajla.'" (emphasis added) 50The appellant also referred to documents from 2006 suggesting that Oaks Cottage was already her property, including a letter from the respondent sent via email on 24 May 2006 which stated: "You are deeply loved and adored by me, finally you have stability about your life and property and looming outdoor career". (emphasis added) 51Another email of 29 May 2006 sent to the appellant by the respondent regarding her "options" stated: "Beat/Lajla to give Lauren $350,000 on the understanding that her house was worth that much today ...". (emphasis added) 52Based on these "wider representations", the appellant seeks to draw a distinction between, on the one hand, a promise to transfer Oaks Cottage to her in the future and, on the other, a representation that the property was immediately hers. The appellant submitted that, properly construed and taking into account the "wider representations", the first promise was a representation that the property was already hers. 53The construction for which the appellant contends envisages a type of immediate confirmation as distinct from an executory promise to transfer in the future (subject to, at the very least, the subdivision of the land) that was adopted by the primary judge. But it is difficult to see how such a construction can be accepted. The distinction between an "immediate" promise and a "future" promise effectively disappears when it is recognised that both representations practically depended on a subdivision of the property. Any gift of Oaks Cottage - whether immediate or in the future - could not be effected and completed until the subdivision of the property had occurred. This was accepted by the primary judge at [54]: "[S]ince 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)". 54For these reasons, I am of the opinion that the judge did not err in determining the content of the relevant promises. The promises were, in substance, promises to give Oaks Cottage to the appellant once Oaks Cottage site existed in subdivided form. I should also note that the matter of the consent or concurrence of the respondent's wife was not an explicit part of the promises.

[8]

Detrimental reliance 55The primary judge approached the matter of detrimental reliance by considering three separate questions:

Was it objectively reasonable for the appellant to rely on the promise made to her by the respondent?
Did the appellant actually rely on the promises made to her by the respondent?
Did the appellant thereby suffer detriment? 56There is no challenge to that approach. It is correct and orthodox. The appellant does, however, challenge the primary judge's findings and, in approaching that issue, I note that a negative answer to Question 1 will dispose of the matter, in the sense that there will then be no occasion to consider Questions 2 and 3; and that a negative answer to Question 2 will likewise make Question 3 academic.

[9]

The objective reasonableness of reliance 57The primary judge made a finding adverse to the appellant on the question of the reasonableness of her reliance on the respondent's promises to give her Oaks Cottage. Her Honour's conclusion, reached with "some hesitation" (at [195]), was: "[I]n 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". 58The matters that were "largely outside" the respondent's control (and that the appellant should have seen as destructive of reasonable reliance on his word) were Council approval of subdivision making Oaks Cottage site separately transferable, concurrence of the respondent's wife in an application for subdivision and the availability of finance to complete subdivision. 59The wife's concurrence was seen as an obstacle to a finding of objective reasonableness at another level as well. The judge stated (at [158]) 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" (see also [260]). Given this, the judge said (at [220]): "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". (emphasis added) 60The primary judge recorded (at [158]) a concession by the appellant that she knew that the respondent's wife's consent was necessary for a transfer. Mr Giles, counsel for the respondent, emphasised in his submissions on appeal that the respondent's wife did not know of the promise and did not consent to the transfer of Oaks Cottage to the appellant (otherwise than on different terms offered in 2006).

[10]

Performance preconditions and reasonableness 61The fact that something else has to happen before a promise can be performed does not mean that there is some form of prima facie presumption that reliance on the promise is unreasonable. The primary judge said as much at [227] when discussing The Public Trustee v Kukula (1990) 14 Fam LR 97: "...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... 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". 62Because the judge found that the three preconditions to the effecting of the necessary subdivision (one of which also applied independently to any subsequent transfer of a subdivided lot) were "out of the control" of the respondent, her Honour considered the situation to be one of sufficient uncertainty to make any reliance on the respondent's promises objectively unreasonable. The appellant challenges this. She says that nothing in the objective circumstances suggested that completion of the subdivision was in fact a "risky or uncertain proposition". It is therefore necessary to consider whether the three matters should have been perceived as barriers, in the sense that it was unreasonable to rely on an assumption that promises dependent on them would be fulfilled. 63As to the need for Council approval of a subdivision, there was nothing in the objective circumstances to suggest that obtaining of the approval would be problematic. Nothing in the evidence suggests that there were obstacles to the Council's favourable treatment of a subdivision application made in proper form. There is no indication, for example, that an appropriate subdivision was outside the Council's parameters for such approvals; and it is clear that the land was zoned in a way that permitted a three-lot subdivision. As has been mentioned, the Council in fact approved such a subdivision in October 2005. One of the lots (Lot 4) was Oaks Cottage site. Mr Giles submitted that this Court should take into account difficulties experienced by the respondent in undertaking the 30 lot subdivision of the "Back Block". There is, however, no demonstrated basis on which any such comparison with a three-lot subdivision would be valid or meaningful. Indeed, there is no demonstrated basis on which the need for subdivision approval should have been seen as involving anything beyond the respondent's control. 64Nor do I think that the obvious need for finance for the subdivision made reliance on the promise objectively unreasonable, particularly after October 2005 when real and tangible steps towards subdivision had been taken. People unable to afford a particular venture usually do not undertake it. 65That leaves the third precondition to subdivision, being the concurrence of the respondent's wife. The appellant knew that the wife was a necessary party. An assessment of the reasonableness of the appellant's acting on an assumption that promises she knew to be affected in that way would be fulfilled must be made according to the whole of the context of the relationship between the parties and the other circumstances of the case. The appellant relied on the respondent's promises in circumstances where he had given her repeated assurances that obtaining of his wife's consent to the subdivision and transfer would not be a problem. The appellant's affidavit described a conversation between herself and the respondent in mid-2005 about the transfer of the property: "[Respondent]: 'Lajla and I will then sign all the papers to transfer the expanded Oaks Property Lot 4 into your name.' ... [Appellant]: 'Ok then. Are you sure Lajla is OK with this too?' [Respondent]: 'I can obtain Lajla's agreement. You leave that to me.' [Appellant]: 'I was just beginning to wonder whether Lajla doesn't agree to this, and whether that is the cause of the delay. I have put everything I have into this place and I am just worried, that's all. You keep saying that she will do whatever you want but you don't want her and me to speak about these matters. I'm beginning to feel uncomfortable about the situation.' [Respondent]: 'Don't worry, Lajla will be supportive...All you need to know is that nothing has changed and that the property will be transferred to your name as I have always promised...'" 66In the earlier years, the respondent's promises to the appellant did not refer to any perceived difficulty concerning the wife and her concurrence. For example, the respondent said in 1998, as part of his initial promise: "As soon as [Burra Station is subdivided], I will make sure the Oaks is put into your name". 67The appellant was led to believe that the appellant was in control. His comments about his having used his "Indian family money" to purchase Burra Station confirmed his assertion of control over the property and of an ability to transfer property to the appellant unhindered. 68There were continuing assurances by the respondent that his wife would co-operate in the transfer of Oaks Cottage and that the respondent was in control of the situation. A measure of objective confirmation of his control came from the fact that, as he informed the appellant, he had himself paid for the purchase of Burra Station out of his own separate funds, so that, on one view of the economic circumstances, the property belonged to him. 69Viewed as a whole, the circumstances in which the promises were made rendered reliance on the promises objectively reasonable despite the obvious preconditions to fulfilment.

[11]

Did the appellant rely on the promises? 70The appellant claimed that she relied on the respondent's promises to her detriment. She said that she did so in several ways described by the primary judge at [5]: "The 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." 71Although the appellant placed approximate values on the lost opportunities alleged, she did not adduce evidence as to those values (at [211]). 72In order to prove detriment, a claimant must show that he or she actually changed his or her position or suffered some prejudice. The court determines detriment at the time that the defendant seeks to disappoint the expectation: Evans v Evans [2011] NSWCA 92 at [107]. The detriment must be linked in some relevant way to the promises or their subject matter. Expenditure of money is an example of detriment. The loss of an opportunity can also amount to detriment. In Delaforce v Simpson-Cook (above), for example, the claimant, relying on her ex-husband's assurance that he would bequeath a property to her, gave up the opportunity to seek property adjustment orders from the Family Court. That was found to be relevant detriment. 73The primary judge found (at [15]) that the only relevant detriment suffered by the appellant was in not pursuing a claim against her former husband for property adjustment orders in 1998. Her Honour held that the other matters relied on by the appellant (work performed on the property and giving up opportunities to undertake full time employment or acquire another home), while of their nature capable of involving detriment, were not relevant to the issue of detrimental reliance in the circumstances of the case because the evidence "strongly" suggested that the appellant "would have taken the course she did even had the promises not been made". The appellant challenges that conclusion. 74The judge's conclusion was based on certain answers given by the appellant in cross-examination. The relevant passages were extracted by the primary judge at [197] to [199]: "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. ... 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 lived 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. . . . 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." (emphasis added) 75The primary judge said (at [202]) that this evidence as to reliance was "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". At [204], her Honour said that the particular answers (or concessions, as she saw them) made it: "entirely possible that [the appellant] 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." (emphasis added). 76The only exception to this finding of lack of reliance was with respect to the appellant's decision to give up the opportunity of seeking a property settlement from her ex-husband (at [205]). 77The appellant contends that her answers given during cross-examination were not concessions but, rather, merely responses to hypothetical questions which should not form the basis of a finding of lack of detrimental reliance. The respondent says that the correct legal test for determining actual reliance is whether the claimant would have acted differently if the promise had not been made or was likely to have done so. On this approach, it was for the appellant to prove at trial, on the balance of probabilities, that the respondent's promises operated as an inducement for her to work on the property and to refrain from taking particular work opportunities. 78The judge found that the appellant failed in that task because it was "entirely possible" that the appellant would have remained on the property, performed the particular tasks and continued in part-time employment only regardless of the promise. The case put by the appellant was to the effect that that conclusion was based on a misapplication of the relevant principle and cannot stand. I accept that submission. Proof of detrimental reliance does not mean that the plaintiff must go to the extent of proving that, "but for" the promise, he or she would not have acted or abstained from acting in the way he or she did. Such a requirement denies the plaintiff the benefit of the "presumption of reliance".

[12]

The presumption of reliance 79Flinn v Flinn [1999] VSCA 109; (1999) 3 VR 712 was an estoppel by encouragement case. In discussing the question whether the plaintiffs in that case suffered detriment in reliance on the relevant promise, Brooking JA said (at [117]): "But it would be remarkable if that promise was not, to say the least, an inducement, and this is all that is necessary: Greasley v Cooke [1980] 1 WLR 1306; Amalgamated Investment & Property Co Ltd v Texas Commerce International Bank Ltd [1982] QB 84 at 104-105; Wayling v Jones (1993) 69 P & CR 170 at 173; compare Gould v Vaggelas (1985) 157 CLR 215 at 236 per Wilson J (concurred in by Gibbs CJ at 219 and by Dawson J at 262). Indeed, in the present case it would be remarkable if the promise of July 1993 did not operate most forcefully as an inducement. The judge had no doubt about this. In considering inducement one should not forget the commonsense and rebuttable presumption of fact that may arise from the natural tendency of a promise: Greasley v Cooke; Cameron v Murdoch [1983] WAR 321 at 351; Grimison v Union Fidelity Trustee Co of Australia Ltd (1984) 3 BPR 9469 at 9474; Riches v Hogben [1986] 1 Qd R 315 at 319-320; Grant v Edwards [1986] Ch 638 at 657; Austin v Keele (1987) 72 ALR 579 at 588-589; Wayling v Jones at 173-175; compare Gould v Vaggelas. A number of other authorities are discussed in Pawlowski, The Doctrine of Proprietary Estoppel, p44-p47." (emphasis added) 80This passage (together with the decisions in Amalgamated Investment & Property Co Ltd v Texas Commerce International Bank Ltd [1982] QB 84, 104-105 and Gillett v Holt [2001] Ch 210 at 226) is cited by the Hon K R Handley in Estoppel by Conduct and Election (2006) Sweet and Maxwell at 170 in support of the proposition that, in estoppel by encouragement cases, "the conduct of the party estopped need not be the sole cause of the detriment relied on, it is enough that it is a cause". That proposition is particularly important in personal relationship cases such as the present because "it would do no credit to the law if an honest witness who admitted that he had mixed motives were to fail in a claim which might have succeeded if supported by less candid evidence": Campbell v Griffin [2001] EWCA Civ 990; (2001) 82 P & CR D43 at [29] per Robert Walker LJ. 81In the present case, the primary judge made the following findings (at [188] and [203]):

The respondent's promise "induced" the appellant to believe that "if there was a subdivision of the Burra Station land . . . 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".

[13]

Rebutting the presumption of reliance 94Michael Spence in Protecting Reliance: The Emergent Doctrine of Equitable Estoppel (1999) Hart Publishing at 43 provides guidance on how the party against whom an estoppel is asserted may rebut the presumption. He says that the presumption will be rebutted if the party shows: "(i) that it was impossible for the other party to adopt any course of action or inaction than that which he did adopt, or (ii) that it is improbable that the other party would have adopted a different course to that which he did adopt". 95Answers to hypothetical questions must be approached with great caution when deciding whether the presumption has been rebutted. In Wayling v Jones (above), Balcombe LJ did not consider the plaintiff's answers to hypothetical questions about how he would have acted if the relevant promises had not been made as sufficient to rebut the presumption of reliance. This was expanded upon in Campbell v Griffin (above), to which I now turn. 96Campbell v Griffin concerned a promise by an elderly couple, Mr and Mrs Ascough, to their lodger, Mr Campbell, that he would have a "home for life" in their house. Campbell had, over many years, become "like a son" to the elderly couple. He also acted as their full-time carer when their health deteriorated. Campbell had once paid rent but stopped doing so over a number of years. After the Ascoughs died, Campbell brought proceedings against the survivor's legal personal representative claiming an interest in the house on the basis of proprietary estoppel. He was unsuccessful at first instance. The judge found that Campbell's conduct in caring for the Ascoughs was not undertaken in reliance on the promise of "a home for life"; and that he would have cared for them anyway out of "friendship and a sense of responsibility". The judge said (quoted at [20]): "As I have indicated my finding in this case is that the acts which Mr Campbell undertook, and which amount to the detriment which he claims as set out in the schedule of expenditure, together with the other acts which he undertook - the cooking, the shopping, the help, the undoubted help that he gave to Mr and Mrs Ascough when they were living at the property, do not, in my judgment, amount to detriment and do not amount to detriment that was undertaken by Mr Campbell because he was relying upon the assurances which he claims to have been made by Mr and Mrs Ascough. My finding is that Mr Campbell quite properly - and I pay respect to him for his acts - acted out of friendship and a sense of responsibility. My finding is that in the circumstances of the relationship between him and Mr and Mrs Ascough he would have so acted in any event." 97In cross-examination, for example, Campbell agreed that he would have acted so even if the promise of "a home for life" had not been made (at [26]): "Q. So you would have done these things, would you not, even if they had said nothing to you about living there for the rest of your life. A. Yes, I would not have walked past them, if he had been lying on the floor, and had not eaten for two days, you have to do something." 98On appeal, Robert Walker LJ (with whom Dame Elizabeth Butler-Sloss P and Thorne LJ agreed) found (at [27]) that the trial judge had "overlooked the presumption of reliance" and in the context of the relationship, there was "a strong presumption that the assurances given to him (to treat him, in effect, as a member of the family with moral claims on the Ascoughs) were influencing his conduct". The Court of Appeal was of the opinion that Mr Campbell's concession that he would have helped his landlords regardless of the promise "under skilful cross-examination" was "not sufficient to rebut that presumption" at [28]. Of particular significance is the following observation of Robert Walker LJ at [27]: "Cases of this sort ought not to be decided by meticulous analysis of every single answer made during cross-examination by an honest but diffident witness who was (to his credit) not trying to exaggerate his claim [...] there was a strong presumption that the assurances given to him (to treat him, in effect as a member of the family with moral claims on the Ascoughs) were influencing his conduct". 99His Lordship continued (at [28] and [29]): "The fact that Mr Campbell agreed, under skilful cross-examination, that he would not in any event have ignored his elderly landlord '...if he had been lying on the floor, and had not eaten for two days' is not sufficient to rebut that presumption. In my judgment the judge was wrong on the issue of reliance also. In cases of this sort it is inevitable that claimants should be asked hypothetical questions of the 'what if' variety but the court is not bound to attach great importance to the answers to such hypothetical questions. As Lord Denning MR said in Greasley v Cooke [1980] 1 WLR 1306, 1311, 'No one can say what she [the claimant] would have done if Kenneth and Hedley [the two brothers who owned the property] had not made those statements.' The court must of course pay close attention, and give due weight, to the oral evidence given by the witnesses who have lived through the events into which the court has to enquire. But it would do no credit to the law if an honest witness who admitted that he had mixed motives were to fail in a claim which might have succeeded if supported by less candid evidence. As Balcombe LJ said in Wayling v Jones (at p 173): 'The promises relied upon do not have to be the sole inducement for the conduct: it is sufficient if they are an inducement.'" (emphasis added).

[14]

Conclusion on detrimental reliance 100The respondent placed weight on the appellant's answers to the hypothetical questions asked in cross-examination as evidence of the fact that she would not have acted differently had the promise not been made (see [75] above). For example, he pointed to the appellant's love of the property, love for the respondent and university commitments as indicative of the fact that the appellant would have adopted the same course regardless of what he had said to her about Oaks Cottage. 101I am of the opinion that the equivocal or inconclusive answers given by the appellant in cross-examination were an insufficient basis on which to regard the presumption of reliance as displaced. The appellant's answer that she "may" have sought out other "options" for herself and her son in terms of security are symptomatic of the difficulties that arise in this type of personal relationship case, as is her difficulty in answering in a simple "yes" or "no" way whether her love of the property and for the respondent would have caused her to continue to live at Burra Station (and in Oaks Cottage) "regardless of the promise". The process of "dissecting", to use the appellant's own word, what parties would have done had promises not been made presents formidable obstacles 102A finding of reliance is open even though the promise or representation is not the sole inducement for the relevant conduct. Once it is seen that the promise or representation played a part in shaping the conduct of the person to whom it was made, it is for the person who made the representation or promise to show that reliance was absent. 103I am satisfied that the promises made by the respondent to the appellant concerning Oaks Cottage were at least part of the reason for the appellant's conduct in refraining from seeking alternative accommodation, a property settlement or a full-time job and part of the reason for the work she performed on the farm and on the subdivision. A presumption of reliance therefore arose. The appellant's answers in the witness box to hypothetical questions, as set out at [74] above, did not rebut the presumption and establish lack of reliance. And, of course, the respondent did not lead any evidence. The appellant must therefore be regarded as having satisfied the need to show detrimental reliance on the respondent's promises. 104That detrimental reliance went beyond something that was insubstantial or theoretical (as in Duic v Duic [2013] NSWCA 42 at [33]). In Sullivan v Sullivan [20006] NSWCA 312; (2006) 13 BPR 24,755, Handley JA observed that "detriment" in the relevant sense, "need not consist of expenditure of money or other quantifiable financial disadvantage so long as it is something substantial". That requirement was satisfied, in this case, not only by the appellant's foregoing of the opportunity to seek a property settlement in connection with her divorce but also in other ways. The appellant estimated that the maintenance and improvement work she carried out at Burra Station was worth $112,400 (assessed at the minimum hourly labouring wage, based on the time she estimates she spent on the various parts of the property). She said in her affidavit that she could have found work as a natural resource catchment officer or ranger earning up to $40,000 per year in the first years and then, after promotions, up to $80,000. Her salary could have been more than $400,000 over a period of eight and a half years. The failure to seek to acquire another home could also amount to substantial detriment. It is not necessary to undertake any precise quantification. It is sufficient to note that, the appellant's reliance involved material detriment.

[15]

Unconscionable departure 105It was submitted for the respondent at trial that a finding of unconscionable conduct on the part of the respondent was not open since, as the conditions of the promise had not been fulfilled, the time for performance of the promise had not yet arrived. According to that submission, unconscionability can only be judged at the time for performance of the promise. 106The submission has some support in authorities summarised by Campbell JA in Waddell v Waddell [2012] NSWCA 214; (2012) 292 ALR 788 (at [54]). His Honour referred, in particular, to the observation in Evans v Evans (above) at [108] that equitable estoppel, by contrast with contract: " ... does not look forward into the future [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." (emphasis added) 107It follows, according to the respondent, that, until subdivision was completed so as to permit transfer of Oaks Cottage site as a separate parcel of land, the time for performance of the respondent's promise had not arrived and it was not unconscionable for the respondent not to give effect to the promise. 108In The Public Trustee v Kukula (above), an equitable estoppel claim failed because the time for performance of the promise never arrived. The primary judge (at [227]) did not regard that case as "standing for the proposition that it can never be unconscionable to resile from a contingent promise". I respectfully agree. Gillett v Holt (above) concerned promises to leave property by will but this did not prevent the Court of Appeal upholding the estoppel claim (and enforcing the remedy) before the death of the promisor, that is, the time for performance of the promise. 109The primary judge accepted that the appellant had 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" (at [230]) (emphasis added). 110Her Honour observed (at [229]) that the fact that the condition on which performance of the promise relies (the subdivision) was outside the immediate control of the respondent meant that future events could render it not unconscionable for the respondent to resile from his promise. For example, her Honour found that a refusal by the respondent's wife 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 it not unconscionable in all the circumstances for the respondent not to honour his promise and transfer the land to the appellant. Consequently, her Honour found "in the circumstances" that it was not unconscionable for the respondent, in advance of completion of the subdivision, not to honour a promise predicated on the occurrence of the subdivision (at [230]). 111The primary judge made a further finding on unconscionability. This was necessitated by the concession of counsel for the respondent in argument that the respondent's position at the time of trial was, in effect, that he would not transfer the property to the appellant even if and when the subdivision was later completed. Her Honour therefore found (at [230]): "To the extent that [the respondent] 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". 112The time at which the necessary assessment of unconscionability is to be made is the time at which the defendant seeks to disappoint the expectation engendered by his or her conduct: see, for example, Delaforce v Simpson-Cook (above) at [81]; Evans v Evans (above) at [107]; DHJPM Pty Ltd v Blackthorn Resources Ltd (above) at [72]. 113The time at which the expectation is disappointed (or the promisor seeks to disappoint it) will, as stated, often be the time at which fulfilment of the promise according to the terms of the promise is not forthcoming. In cases of that kind, it may be judged unconscionable for the promisor not to do the promised thing at the time promised. But an expectation may be disappointed at an earlier point because the promisor disowns the promise in advance of the time for performance. In Clarke v Meadus [2010] EWHC 3117 (Ch), Warren J said at [74]: "That is not to say that effect cannot be given to an estoppel before the time when the promise falls due. In a case where a claimant has a clear right to expect that a property will be left to him by another, an attempt to circumvent a promise to that effect by changing the will or by selling the property may give rise to enforceable rights even before the death of the promisor. It all depends on the facts of the case." 114It is therefore necessary to consider whether and, if so, when, the respondent resiled from his promises concerning the gift of Oaks Cottage. 115By the time of the trial, the respondent had made it clear that he would not honour his promises or in any way be party to a transfer of Oaks Cottage site to the appellant. But the evidence shows a much earlier disowning of his promises. 116The parties' relationship was under strain by May 2006. After the Oaks Cottage fire in February 2006, the appellant had taken up residence in the relocatable cottage installed near Oaks Cottage site. At some time after May 2006, the appellant oversaw preparations to move the relocatable dwelling to the Oaks Cottage site. Steps were taken towards that end, including necessary excavation. On 21 July 2006, while the excavation works were in progress, the respondent informed the appellant that the relocatable cottage was needed to accommodate his friend Mohni. That was a negation of both the proposition that the appellant should live in the cottage and the wider proposition that the Oaks Cottage site (not otherwise habitable) should be available to the appellant. The respondent thus acted inconsistently with his promise that the appellant should have Oaks Cottage. 117At some undefined time (which must have been before 8 July 2006, given an internal reference to that date as being in the future), the respondent gave the appellant an undated document headed "Matters that need finalising after decision to leave Burra" which canvassed various aspects of the parties' personal relationship, the circumstances in which it had come to an end and consequences of its termination. The respondent said, among other things: "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. ..." 118By that document, the respondent clearly resiled from his promise "to give you the house" - albeit in a context where he maintained that that promise was a reciprocal of a promise by the appellant that she "would live in it forever", in other words, that the personal relationship should continue indefinitely. The judge correctly found that continuation of the relationship did not represent any form of quid pro quo for the respondent's promises. 119In her affidavit in reply, the appellant describes her return to Burra Station two days after she left on 21 July 2006 to meet with the respondent and his wife. She recounts a private conversation between herself and the respondent at the relocatable cottage in the following words: "[Appellant]: 'It looks like my fears did come to pass. You have let me down. Something you promised you would never do.' [Respondent]: 'Not much I could do. I am not good at this.' [Appellant]: 'This is a very bad and sad situation. I don't know what I am going to do. You'd better go." 120It is, in my view, clear that, by the end of July 2006, the respondent had, by express words, repudiated and disowned the promises made by him to the appellant. The question of unconscionability falls to be considered in that light and according to circumstances prevailing at that time. 121That brings me back to the issues of subdivision, financial capacity and the wife's concurrence and the question whether, as at the time the respondent disowned his promise in late July 2006, those matters made his disappointment of the appellant's expectation unconscionable. 122By the time the respondent disowned his promises, the Council had granted conditional approval to a suitable subdivision. The approval was given in October 2005. There was, in that respect, a very significant reduction of the obstacles or perceived obstacles. Beyond that, the position remained in the state described at [64] to [69] above. In short, there was, as at late July 2006, nothing to suggest that financial burdens were insurmountable or that the respondent did not have practical control or influence such as to be able to procure the concurrence of his wife. Inferences that that state of affairs continued to exist are warranted. The circumstances that, at the time of the making of the promises, had made it reasonable for reliance to be placed on those promises operated, at the time of the respondent's disowning of the promises, in such a way as to make the refusal to perform contrary to good conscience - but with the added assurance that came from the progress actually made regarding subdivision. 123A further point must be made. The respondent did not seek at trial to prove that he lacked the necessary financial capacity or that his wife would not join in necessary steps. Applying the principle in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298, this court is entitled to infer from the respondent's failure to lead evidence that such evidence as he could have deployed would not have assisted him. 124In my opinion, therefore, there should have been a finding that the respondent departed from his promises in late July 2006 and that his action in doing so was unconscionable.

[16]

Area of the Oaks Cottage site 125The appellant maintains that the land to which she is entitled by virtue of the respondent's promises and her detrimental reliance is Lot 4 in the plan of subdivision approved by the local Council in October 2005. 126The primary judge found (at [47] and [174]) that the initial promise in 1998 to transfer Oaks Cottage extended (and would have been understood objectively by a reasonable person to extend) to the building and the fenced in area of land within which it stood. Her Honour also found, however, that the respondent subsequently promised to transfer the larger area of 7.3 or 7.4 hectares to the appellant: see [46] above. In the plan of subdivision, Oaks Cottage block was 7.3 hectares. The appellant knew this. 127After 2005, the respondent repeated his mid-2004 promise to transfer Oaks Cottage to the appellant. From at least 2005 onwards, the appellant relied on a promise to transfer the 7.3 hectares. 128The appellant says that the primary judge should have found that the Oaks Cottage property, as initially promised in 1998, was of approximately 7 hectares - this being the "natural boundary" of the property according to the appellant. In contrast, the fenced area was only about three quarters of an acre (slightly less than one-third of a hectare). 129Since I have found that the appellant relied on the respondent's promises (including the promise in 2005 in respect of the larger Oaks Cottage property), there is no need to deal with that submission as to the precise area promised in 1998. As ultimately made and relied on, the respondent's promises extended to Lot 4 in the plan of subdivision approved in October 2005.

[17]

The notice of contention 130I referred above (at [7]) to a notice of contention filed by the respondent. The respondent there argues that: (a)the judge should have held that respondent's promises were conditional on continuation of the parties' personal relationship, with the result that, since the relationship came to an end, the respondent was not bound by any estoppel; (b) the conditions to which the promises were subject caused them to be too uncertain to be capable of founding a relevant estoppel; and (c) the claim should be dismissed because the appellant failed to establish sufficient detriment. 131The respondent made no submissions on issue (a) either in writing or in the course of oral address. Since the contention was thus not pressed, I need say no more about it, save that I am of the opinion that the primary judge's decision on the matter was borne out by the evidence. Issue (b) is dealt with at [61] to [69] above and, for the reasons there stated, the respondent's contention cannot be accepted. Issue (c) is determined adversely to the respondent at [107] to [113] above.

[18]

Conclusions 132Grounds 1 to 3 set out in the notice of appeal are not made out, although the appellant is correct in her contention that it should be found that the respondent represented that he had the ability to deal with Oaks Cottage as he chose. 133Ground 4 is made out, given my conclusion that, allowing for the operation of the presumption of reliance, the appellant must be taken to have shown that she acted to her detriment in ways going beyond her failure to seek a property settlement in her divorce. 134Grounds 5, 6, 7, 9, 10, 11 and 12, concerning whether it was objectively reasonable for the appellant to rely on the respondent's promises and the extent to which she actually did so are also made out, as are grounds 13 and 14 which go to unconscionability. 135Ground 8 is dealt with at [125] to [129] above. 136The appellant has thus established an entitlement to equitable relief.

[19]

Relief 137In the ordinary course, the appropriate equitable relief would be such as to preclude departure by the respondent from the state of affairs assumed by the appellant as a result of the respondent's promises. On that approach, the appellant might be considered entitled to an order that the respondent do all such things as are necessary to cause the Oaks Cottage site to be transferred to the appellant without consideration. 138A factor to be taken into account in determining the appropriate relief, however, is the impact on relevant third parties and the need to avoid injustice to others. The primary judge recognised this in her discussion of the relief that it would have been appropriate to grant had the appellant's case been upheld at trial. Her Honour said that, in those circumstances, an order that the property be transferred without consideration would have affected the rights of the respondent's wife as a co-owner. The judge's conclusion was that the appropriate order would have been one that compensated the appellant for the detriment she suffered on the faith of the respondent's promises (limited, on the judge's approach, to the giving up of an opportunity to seek a property settlement in the divorce). 139For the reason her Honour gave, an award of equitable compensation would, in this case, satisfy the appellant's equity. I am of the opinion, however, that the relevant measure - that is, the factor by reference to which the compensation is to be awarded - is not the quantum of the detriment suffered through reliance on the promises. As the Court of Appeal of Victoria recently observed in Harrison v Harrison [2013] VSCA 170 (at [159]), equitable relief in cases of proprietary estoppel must be "moulded around the engendered expectations". The monetary substitute for preclusion of the respondent from disappointing the expectation that his promises engendered in the appellant (that is, that Oaks Cottage would be given to her) should therefore be equal to the loss the appellant suffered because, contrary to that expectation, the property was not given to her. In the words of Gleeson CJ, McHugh, Gummow and Callinan JJ in Giumelli v Giumelli (above) at 125: "This is a case for the fixing of a money sum to represent the value of the equitable claim of the respondent to the promised lot." 140The appellant's equitable claim was a claim to prevent departure by the respondent from his promises and thus to have the benefit of all action necessary to bring about a transfer of the relevant property to the appellant. The appellant should therefore have a sum equal to the value she would now have had the promises been fulfilled. 141There was evidence before the primary judge of the value of the property as agreed by valuer witnesses retained by the parties. Elements of speculation arose from the fact that the Oaks Cottage building had been destroyed by fire. Alternative dates and alternative assumptions (for, example, that the Oaks Cottage building still existed, that a new project home was built and that a relocatable cottage was installed) were put to the valuers and they were instructed to make alternative assessments accordingly. 142In my opinion, however, that valuation evidence does not indicate the appropriate outcome. The appropriate measure is whichever is the smallest of (a) today's open market value of Lot 4 in the plan of subdivision approved in October 2005 determined as if that lot was a subdivided lot capable of being transferred and as if the Oaks Cottage building destroyed by fire in February 2006 was still standing; (b) the aggregate of, first, today's open market value of that Lot 4 determined as if that lot was a subdivided lot capable of being transferred and as if it were unimproved vacant land and, second, the amount of the insurance proceeds received as a result of the destruction of the Oaks Cottage building in February 2006 (plus interest at a commercial rate on the amount of the insurance proceeds from 1 August 2006 to the date of judgment); (c) the open market value of Lot 4 as at 31 July 2006 determined as if that lot was a subdivided lot capable of being transferred and also as if the Oaks Cottage building destroyed by fire in February 2006 had been standing at 31 July 2006, plus interest at a commercial rate on that value from 1 August 2006 to the date of judgment; and (d) the aggregate of, first, the open market value of Lot 4 as at 31 July 2006 determined as if that lot was a subdivided lot capable of being transferred and also as if it were unimproved vacant land and, second, the amount of the insurance proceeds received as a result of the destruction of the Oaks Cottage building in February 2006 (plus interest at a commercial rate on that aggregate from 1 August 2006 to the date of judgment). 143This Court is not in a position to assess that sum. The appropriate course (corresponding with that in Giumelli v Giumelli) is to remit the matter to the Equity Division so that the quantum of equitable compensation can be determined on the basis of further submissions and, if the court so determines, additional evidence.

[20]

The appellant's unconscionability claim 144The appellant made submissions with respect to the judge's findings on her separate unconscionability claim. These were the subject of Grounds 15 to 19 in the notice of appeal. The legal principles governing the unconscionability claim were set out by her Honour at [137] to [138] and [142] in terms with which I respectfully agree. 145As Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ pointed out in Tanwar Enterprises Pty Ltd v Cauchi [2003] HCA 57; (2003) 217 CLR 315 at [23]-[24], the phrase "unconscionable conduct" tends to mislead because it "encourages the false notions that . . . there is a distinct cause of action, akin to an equitable tort, wherever a plaintiff points to conduct which merits the epithet 'unconscionable'" (see also Kakavas v Crown Melbourne Ltd [2013] HCA 25 at [19]). 146Since I have found that the appellant's proprietary estoppel claim succeeds, it is not necessary to make findings on the unconscionable conduct claim or, for that matter, on any argument based on Muschinski v Dodds [1985] HCA 78; (1985) 160 CLR 583 or Baumgartner v Baumgartner [1987] HCA 59; (1987) 164 CLR 137.

[21]

Disposition 147I propose the following orders:

Appeal allowed.
Set aside the orders made in the Equity Division on 23 February 2012.
Order in lieu thereof as follows: (a) That the defendant pay to the plaintiff by way of equitable compensation a sum to be determined in accordance with the decision of the Court of Appeal. (b) That the defendant pay the plaintiff's costs of the proceedings.
Remit the matter to the Equity Division for determination of the quantum of equitable compensation in accordance with the decision of this Court on the basis of further submissions and, if the court so determines, additional evidence.
Order that the respondent pay the appellant's costs of the appeal.
Order that the respondent have a certificate under the Suitors' Fund Act 1951 if qualified. 148TOBIAS AJA: I agree with the orders proposed by Barrett JA for the reasons that he has expressed.

[22]

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: 04 July 2013

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