WISE v WISE

1. The first ground concerns the nature of the case made by the appellants at trial. It alleges that the trial judge erred in law in determining that the appellants' case must fail if they did not establish that, in May 2008, Audrey made a promise to Stephen and Kathy that if Stephen and Kathy returned to the farm, Stephen would inherit the farm.
2. The trial judge said at Primary reasons [65] that Stephen and Kathy accepted that their case was properly characterised as one of proprietary estoppel by encouragement, not of acquiescence. The trial judge identified that the 'encouragement' was said to be the Promise made by Audrey to Stephen and Kathy at the meeting in May 2008. Upon this basis, the trial judge said at Primary reasons [66] that the appellants' case depended upon the court finding, on the balance of probabilities, that Audrey made them the Promise.
3. The appellants say that an equitable estoppel can be established based on a promise or representation that would not be sufficiently clear to amount to a valid contract, and that it is sufficiently clear if it was reasonable for the plaintiffs to interpret the promise in a particular way and act in reliance upon it.
4. The appellants also say that the trial judge ought to have considered any subsequent conduct and representations made by Audrey, and whether these induced and encouraged Stephen and Kathy to hold an expectation that Stephen would inherit the farm. They maintain that it was an error for the judge to approach the evidence about the events and documents after May 2008 through the perspective of whether those documents and evidence supported or corroborated the appellants' evidence about the existence of a promise made at the meeting in May 2008, instead of whether those events and documents created the expectation.
5. No criticism can be made of the trial judge for approaching the case in the manner that she did. We have been referred to a number of matters in the written submissions of the respondent, which demonstrate that the case was conducted at all points upon the basis of a promise having been made at the meeting in May 2008. However, there was a particular exchange which occurred between the trial judge and counsel for the appellants during the course of closing addresses which puts the point well beyond doubt (ts 953 ‑ 954):

However, as in this case, conduct giving rise to an estoppel may include conduct of the parties sought to be estopped apart from representations, including inaction and including after the other (indistinct) party embarks on the detrimental course. In other words ‑ ‑ ‑

WHITBY J: That's not what you're relying upon in your pleadings, is it? Your pleading you say is the other type of proprietary estoppel in paragraph 10, 11 and 12. You're not saying it's the inaction of Audrey that results in proprietary estoppel. It's a positive expectation or offer, promise, that is the foundation of this claim, is it ‑ ‑ ‑

PARK, MR: Yes, your Honour.

WHITBY J: ‑ ‑ ‑ not?

PARK, MR: But if you ‑ ‑ ‑

WHITBY J: But there are two types of proprietary ‑ ‑ ‑

PARK, MR: Yes.

WHITBY J: ‑ ‑ ‑ estoppel. You're not relying upon the second type of inaction, are you?

PARK, MR: No, but the law in relation to that ‑ as I addressed in my opening, I think the decision in Sidhu ‑ ‑ ‑

WHITBY J: Yes.

PARK, MR: ‑ ‑ ‑ talks about - well, the tests are essentially the same and it's really the two different types but the tests and what can prove the estoppel are essentially the same. So whilst we say ‑ even if you ‑ even in this case, Audrey is standing by and letting the other party embark on this, would still be ‑ ‑ ‑

WHITBY J: Not on its own, would it?

PARK, MR: It ‑ ‑ ‑

WHITBY J: You would still have to ‑ that May 2008 meeting is ‑ ‑ ‑

PARK, MR: ‑ ‑ ‑ is essential.

WHITBY J: All right.

PARK, MR: Without that ‑ yes, it's not that case, your Honour. It's not the case ‑ ‑ ‑

WHITBY J: No, all right.

PARK, MR: ‑ ‑ ‑ to say ‑ ‑ ‑

WHITBY J: I just wanted to make sure there's not an alternative case here.

PARK, MR: No, no, no.

WHITBY J: No.

PARK, MR: No, your Honour.

WHITBY J: No, you say that that reinforces that promise.

PARK, MR: Yes ‑ ‑ ‑

WHITBY J: All right.

PARK, MR: ‑ ‑ ‑ it corroborates, to use my friend's language. It corroborates it.

WHITBY J: All right. That's fine. I was - just ‑ ‑ ‑

PARK, MR: And ‑ ‑ ‑

WHITBY J: ‑ ‑ ‑ wanted to clarify.

1. In their oral submissions in the appeal, the appellants emphasised that there were other elements of their claim not determined by the trial judge, such as expectation, reliance and detriment. That may be so, but it remains the case that, as this proceeding was conducted, success depended upon the making of the Promise. The appellants did not suggest how their case could have succeeded according to any orthodox legal doctrine, without the representation or Promise by Audrey. No attempt was made to address the elements of a proprietary estoppel of any other form.
2. I would dismiss this ground of appeal.

1. The remaining grounds of appeal allege errors of fact. The approach to be taken by an appellate court in respect of such allegations has been mentioned a number of times recently in this Court. The principles were summarised in Sampey v Doherty.[2] The court said that the proper approach to be taken on appeal involving allegations of factual errors made by the trial judge was as follows:

(a) An appellant who challenges a primary judge's finding of fact must demonstrate that the finding was wrong, not merely that an alternative finding was open.

(b) The principles of appellate restraint do not apply only to credibility based findings. Appellate restraint in relation to interfering with a primary judge's findings applies when a finding is likely to have been affected by impressions the judge has formed about the credibility and reliability of a witness as a result of seeing and hearing the witness give evidence.

(c) Where an assessment of the reliability of a witness involves the kind of issues and the approach to fact‑finding that apply to the assessment of the credibility of a witness, an appellate court will not interfere with a primary judge's finding of fact, unless the finding is demonstrated to be wrong:

(i) by reference to incontrovertible facts or uncontested testimony;

(ii) because the finding is glaringly improbable or contrary to compelling inferences; or

(iii) because the primary judge failed to use, or has palpably misused, his or her advantage as the primary judge.

(d) The nature and extent of a primary judge's advantage over an appellate court informs both what must be demonstrated to establish error in the primary judge's findings and the extent of appellate restraint in relation to those findings. For example, there is a distinction between a finding based on the credibility of a witness and a finding based on inferences drawn from undisputed facts or facts as found. Accordingly, the nature of the challenged finding and the process of reasoning by which the finding was made affect what must be demonstrated in order to establish appellable error.

(e) The principle of appellate restraint is derived from the 'natural limitations' of the appellate process and the degree of 'comparative advantage' or 'relative advantage' possessed by a primary judge as a result of the primary judge having seen and heard the witnesses. Those advantages have been described as many and varied and may vary from case to case.

(f) Where a primary judge's finding concerns an issue involving impression or judgment, the primary judge's 'comparative advantage' or 'relative advantage' in making that finding should be given 'proper weight'.

1. I will adopt this approach to the remaining grounds.

1. Ground 2 alleges that the trial judge made an error of fact at [89] in determining that the evidence of Stephen and Kathy was unreliable and could only be accepted where it was against their interest or if it was both plausible and consistent with other facts found to be established.
2. The written submissions filed by the appellants do not address this ground. Instead, they refer to Primary reasons [71] and comments made by the trial judge about family relationships.
3. In any event, the conclusion reached by the trial judge at Primary reasons [89] involved an orthodox assessment of credibility, based upon reasoning set out at Primary reasons [80] ‑ [88]. Essentially, the trial judge considered that, given the length of time since the important events in question, much of the evidence of the witnesses was based upon reconstruction. As a result, the trial judge considered that greater weight ought to be afforded to evidence which was consistent with surrounding facts and contemporaneous documents than upon reconstructed memories: Primary reasons [84], [86]. The trial judge referred to the interest which all parties had in the outcome of the proceedings and a sense of entitlement that was part of the tenor of Stephen's evidence: Primary reasons [85], [87]. The trial judge expressly said that the distance in time from the relevant events, the fact that the evidence appeared to be reconstruction and the sense of entitlement in respect of Stephen's evidence, all led her to only accept the evidence of all the main witnesses, namely Stephen, Kathy and Keilo, where the evidence was against their own interest or if it was both plausible and consistent with other facts or contemporaneous documents. She expressly said that this conclusion did not reflect on the honesty of the witnesses. Rather it was a consequence of the difficult task they faced in giving evidence of events that happened some time ago: Primary reasons [86].
4. None of this reasoning gives rise to any appellable error. It is, with respect, entirely correct. I would dismiss this ground of appeal.

1. The fourth ground is that the trial judge made an error of fact in determining that the inconsistency between the first and last version of the statement of claim supported a finding that the promise allegedly made by Audrey had evolved during the proceedings.
2. There is no doubt that different versions of what occurred at the meeting in May 2008 were contained in the initial statement of claim compared to the Re-amended Substituted Statement of Claim dated 8 April 2024. That is evident from comparing [19] of the initial statement of claim and [10] of the Re-amended Substituted Statement of Claim. The trial judge accurately captured the nature of the change in Primary reasons [278].
3. Consequently, there is no error, strictly speaking, for the trial judge to say that the claim of the Promise had evolved during the proceedings. Indeed, it is correct to add that neither version of the statement of claim refers specifically to a 'promise'.
4. The submissions made by appellants are to the effect that the evidence which they gave about the May 2008 meeting was consistent, notwithstanding the change in the versions of the Statement of Claim. The written submissions of the appellants suggest that this may be explained by advice given to them by different lawyers.
5. The only significance attributed to the evolution of the Promise by the trial judge was that it supported her view that the appellants were reconstructing the evidence as they prepared for trial. She said that she made no criticism of them in doing so, but it was simply a product of the time that had passed, the fallibility of human memory and the litigation process: Primary reasons [278].
6. That remark was entirely open to the trial judge. As I have said, there was evidently a change between the first and last versions of the Statement of Claim. It is not adequate to explain that change as simply a matter of emphasis, based upon legal advice. The nature of the change concerned what occurred at the May 2008 meeting. A change in the allegations over what happened, as a matter of fact, at that meeting is not explicable only by reference to legal advice. It is certainly consistent with the prospect of reconstructed evidence, in line with the trial judge's comments.
7. I would dismiss this ground of appeal.

1. Ground 5 is that the trial judge erred in fact in determining that it was implausible that Stephen would not have told Sandra Knight about the Promise. The particular factual finding which is challenged is at Primary reasons [279], and is in the following terms:

Secondly, I find it implausible that Stephen, on his evidence, sought financial advice from Sandra Knight about how to give effect to the transfer of the farm to him either during his parents' lifetime or after their death without telling Sandra about the promise Audrey had made him.

1. Sandra Knight was, at least at one stage, an accountant to Stephen's parents. Stephen sought financial advice from her about how to give effect to the transfer of the farm to him either during his parents' lifetime or after their death.
2. There is some overlap between this ground and ground 7, where it is alleged that the trial judge made an error of fact in finding that there was no meeting between Stephen, Keilo, Audrey, Leslie Wise and Sandra in September 2008. A meeting at which Stephen might have disclosed the Promise to Sandra Knight is this one, which the trial judge found did not in fact occur. However, the factual finding challenged by ground 5 relates to a failure by Stephen to disclose the alleged Promise to Sandra Knight at any time either during his parents' lifetime or after their death.
3. The appellants contend that the finding by the trial judge is inconsistent with the comment of the trial judge that she accepted that it was not inherently unusual for parties to a promise not to tell others of the promise for fear of disrupting family harmony: Primary reasons [71].
4. The appellants also say that there was no reason for Stephen to tell Sandra Knight that the farm had been promised to him, because it was not something that he sought to have occur until after the death of his parents.
5. In the context of somebody who was familiar with the financial affairs of Leslie and Audrey, and the prospect of a transfer of the farm being made to Stephen, it was entirely open to the trial judge to consider that it was implausible that no comment would have been made by Stephen about the proposed disposition of the farm. This is not simply a matter of withholding information generally, but it is in the context of a discussion said to have occurred about the particular question of transferring the farm. For that reason, I do not see any inconsistency between the general observation made by the trial judge at Primary reasons [71] and the finding about implausibility at Primary reasons [279].
6. Further, I do not understand why there would be no need for Stephen to say that the farm had been promised to him to Sandra Knight if it was something that ought to occur after the death of his parents. It is still a matter relevant to the question of financial advice which was under discussion, according to Stephen.
7. I would dismiss this ground of appeal.

1. Ground 6 alleges that the judge made an error of fact in determining that it was improbable that Stephen would not have asked Audrey to record the Promise in writing: Primary reasons [280].
2. The trial judge reasoned that other important matters were recorded in writing, and therefore the probability would have been that a matter of the significance of the alleged Promise would also have been reflected in writing at some point: see Primary reasons [280].
3. The appellants say that the matters which were recorded in writing were not sufficiently similar to the alleged Promise, and therefore the inference by the trial judge is not open. They say that all of the documents referred to by the trial judge were necessary so as to provide information to a third party, whereas there was no imperative for that to occur in relation to the Promise.
4. In my view, the inference drawn by the trial judge was available to her as a possible alternative inference. The nature of the matters which were written down included a list of responsibilities of each party upon Stephen and Kathy after moving to the farm, and a letter addressed to 'whom it may concern' concerning a gift of $23,000 to Stephen from his parents for the purposes of purchasing a property in 2001. These types of matters are of lesser importance than a promise about how to dispose of the farm. Hence, the trial judge would be able to draw the alternative inference, if she considered it appropriate to do so.
5. I would dismiss this ground of appeal.

1. Ground 7 alleges that the judge made an error of fact in finding that there was no meeting between Stephen, Keilo, Audrey, Leslie and Sandra Knight in September 2008: Primary reasons [142]
2. This ground depends upon the evidence of Stephen being accepted, because he gave detailed evidence of the meeting. However, as already mentioned, the trial judge did not consider that Stephen's evidence was reliable, unless it was supported by documents or against his interest. The appeal ground against that finding should not succeed. Consequently, the basis for ground 7 does not exist. Further, the submissions that have been filed in support of this ground are an exercise in reconstruction.
3. For example, Stephen relies upon his memory of Exhibit 220 to say that it is consistent with his evidence, because he used the stamp duty figure in that exhibit for the purpose of clarifying for Audrey the option she thought they were facing based upon the meeting in September 2008.
4. This ground of appeal should be dismissed.

1. Ground 8 is that the trial judge made an error of fact in determining that Exhibit 7 was prepared during the meeting on 23 October 2011, and was entirely inconsistent with the Promise.
2. The trial judge made the following findings about Exhibit 7 at Primary reasons [196]:

For reasons which I will outline when I come to consider the 23 October 2011 meeting, I find that exhibit 7 was written by Stephen at the 23 October 2011 meeting, not at this meeting. However, nothing ultimately turns on when Stephen wrote this note. What is important and not in dispute is that Stephen wrote it sometime after May 2008 Meeting. Exhibit 7 is entirely inconsistent with the promise alleged to have been made by Audrey at the May 2008 Meeting in the following respects - it refers to an 'equal division' of Audrey's assets, it includes a value of the farm that is 'inclusive' of Stephen and Kathy's inputs into the farm and it refers to a 'cheque (Steve)' for $200,000 which makes up Keilo's share to half the estate - referred to as an 'equitable division'. I do not accept Stephen's evidence that 'inclusive' was meant to say 'exclusive' - the document is otherwise entirely consistent with the use of the word inclusive. I also do not accept Stephen's evidence that the $200,000 was a reference to the value of the work done on the farm by Stephen and Kathy - that explanation is irreconcilable with the word 'cheque'. Exhibit 7 is a document in Stephen's own hand that is entirely consistent with the promise not having been made. Regardless of whether Stephen wrote exhibit 7 at this meeting or the 23 October 2011 meeting, it is highly persuasive of the fact that Audrey had not made a previous promise that Stephen and Kathy would inherit the farm.

1. Once again, this ground depends upon accepting evidence of Stephen to explain the meaning of Exhibit 7, which on its face contains handwritten entries which support the finding of the trial judge.
2. As I have said, the ground of appeal relating to the trial judge's assessment of the credibility of Stephen should be dismissed. Without that ground succeeding, the evidence of Stephen about how to understand Exhibit 7 cannot be accepted.
3. Further, I would respectfully endorse the trial judge's observation that Exhibit 7 is a document in Stephen's own hand that is entirely consistent with the Promise not having been made.
4. I would dismiss this ground of appeal.

1. Ground 9 is that the trial judge made an error of fact by determining that Stephen and Kathy's evidence about the Promise was implausible and inconsistent with the Promise because of Audrey's attempts after May 2008 to divide her assets equally.
2. The appellants say that the trial judge ought not to have taken into account attempts by Audrey a long time after May 2008 (in February 2009 and in 2011) to divide her assets equally, because these events did not prove anything about the intentions of Audrey, and what she may have said to give effect to her intentions, in May 2008.
3. With respect, the subsequent conduct of a person may be probative of what they said on a previous occasion, assuming that they act consistently with previous statements. The trial judge made that particular link, by referring to the fact that Audrey was regarded by Stephen as a 'woman of her word': Primary reasons [285].
4. It was therefore open to the trial judge to make the finding which is challenged by ground 9. That is, it was open to the trial judge to find that evidence of Audrey subsequently attempting to divide her assets equally made it more likely than not that Audrey had not made any alleged Promise in May 2008 as claimed by the appellants. I would dismiss this ground of appeal.

1. Ground 10 is that the judge made an error of fact by determining that Stephen and Kathy's evidence about the Promise was implausible and inconsistent with the Promise because it was 'inconceivable' that Stephen would not mention the Promise to Keilo during their exchange of correspondence in June or July 2018.
2. The particular finding which is the subject of this challenge is contained in Primary reasons [286]. It is in the following terms:

Sixthly, in correspondence from Stephen to Keilo in June and July 2018, after Audrey had died, Stephen refers to the fact that he and Keilo have previously reached a 'stalemate' many times regarding the inheritance of the farm and that 'many options' have been discussed. Stephen still does not mention the promise, despite the fact that Audrey has died and he is now in a dispute with Keilo about the division of Audrey's assets. If the promise had been made by Audrey at the May 2008 Meeting, it is inconceivable that Stephen would not mention it to Keilo at this point in time."

1. With respect, the reasoning of the trial judge appears entirely sound, and certainly open to her as the trial judge. It would be a surprising thing for Stephen not to mention that he had been promised the farm when corresponding with his sister after the death of his mother, if such a promise had in fact been made.
2. The submissions of the appellants are that 'it is conceivable' that Stephen would not mention the promise to Keilo in correspondence, because Stephen had given evidence that he was told that Audrey would tell Keilo about the Promise.
3. There are two difficulties about this submission. First, whether something is 'conceivable' is not a basis for finding error by the trial judge in drawing a different inference. Secondly, the alleged error depends upon accepting evidence that Stephen had given. Once more, the ground of appeal challenging the finding of the trial judge about the unreliability of Stephen's evidence has not succeeded. Consequently, a ground based upon the evidence of Stephen being accepted cannot itself advance the appellants' position.
4. I would dismiss this ground of appeal.

1. Ground 11 is that the trial judge made an error of fact by determining that the work that Stephen and Kathy did on the farm was equally consistent with Stephen paying a sum to Keilo to retain the farm upon Audrey's death and remaining on the farm.
2. The trial judge said, at Primary reasons [272]:

The work that Stephen and Kathy did on the farm, while consistent with the promise having been made, is equally consistent with Stephen paying a sum to Keilo to retain the farm upon Audrey's death and remaining on the farm. It is also important to note that Stephen and Kathy do not bring a cause of action other than for proprietary estoppel by encouragement ‑ the threshold issue is whether the promise was made by Audrey at the May 2008 Meeting.

1. In this passage, the trial judge simply observed that the presence of Stephen and Kathy upon the farm was not a matter which necessarily grounded an inference that any promise had been made to them at the May 2008 Meeting. Other explanations were available. That is self‑evidently correct. No error can be based upon that consideration.
2. I would dismiss this ground of appeal.

1. For all of these reasons I would dismiss the appeal.

1. I agree with the reasons given by the learned President that none of the grounds of appeal have been established and that the appeal must be dismissed. I have nothing to add.

1. I agree with the President for the reasons he has given that the appeal must be dismissed.

I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.

Principal Associate to the Hon Chief Justice Quinlan

[1] Wise v Wise [2024] WASC 217 (Primary reasons).

[2] Sampey v Doherty [2024] WASCA 105 [210].