Young v Waterways Authority of New South Wales

COUNSEL : J Gormly SC and D Ash (P) J M Atkin (D14) SOLICITORS : Lincoln Smith & Co (P) Dibbs Barker Gosling (D14) CATCHWORDS : EQUITABLE ESTOPPEL FOUNDING CAUSE OF ACTION, LIMITATION ACT 1969 s 23- Discussion of Waltons Stores v Maher - Commonwealth v Verwayen and Giumelli- Whether a cause of action arising out of equitable estoppel is "for other equitable relief" within s 23- Whether the Limitation Act s 14 applies "by analogy"- Whether since Verwayen the cause of action can no longer be seen as equitable because estoppel is a unified doctrine of common law and equity. PRACTICE AND PROCEDURE- Striking out of statement of claim as statute barred- Caution required by Wardley Australia Ltd v WA- Application of that caution to a case where the limitation is alleged to apply "by analogy". LEGISLATION CITED : Limitation Act 1969, ss 14, 23 Supreme Court Act 1970, s 75A The Commonwealth of Australia v Verwayen (1990) 170 CLR 394 The Crown v McNeil (1922) 31 CLR 76 Dey v Victorian Railways Commissioners (1949) 78 CLR 62 Dillwyn v Llewelyn (1862) 4 DeGF & J 517; 45 ER 1285 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Giumelli v Giumelli (1999) 196 CLR 101 GPG (Australia Trading) Pty Ltd v GIO Australia Holdings Ltd [2000] FCA 875 Graf v Hope Building Corporation (1930) 171 NE 884 CASES CITED : Hillebrand v Penrith Council [2000] NSWSC 1058 Olsson v Dyson (1969) 120 CLR 365 Plimmer v Mayor of the City of Wellington (1884) 9 App Cas 699 Ramsden v Dyson (1886) LR 1 HL 129 Regina v East Sussex County Council; Ex parte Reprotech (Pebsham) Ltd [2002] UK HL 8 Riches v Hogben [1985] 2 Qd R 292 Smith v Clay (1767) 3 Bro CC 646n; 29 ER 743 Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 Williams v Minister, Aboriginal Land Rights Act 1983 (1994) 35 NSWLR 497 Wardley Australia Ltd v The State of Western Australia (1992) 175 CLR 514 DECISION : Appeal from the Master allowed. Application to strike out the relevant parts of the statement of claim dismissed with costs.

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

2806/00 - YOUNG v WATERWAYS AUTHORITY OF NEW SOUTH WALES

1 HIS HONOUR: This is an appeal, under s 75A of the Supreme Court Act 1970, from a decision of Master McLaughlin striking out with costs the plaintiff's statement of claim in proceeding No 2806/2000, as against the 14th defendant, while granting leave to the plaintiff to file and serve a further amended statement of claim against the 14th defendant and making a consequential order summarily dismissing with costs the plaintiff's proceeding in matter No 1640/2001. As the dismissal of matter No 1640/2001 was simply consequential, the argument before me concentrated on the earlier proceeding, and it was accepted that my order in respect of the one matter would determine the fate of the other. It should be stated, at the outset, that the order striking out the statement of claim against the 14th defendant while granting leave to replead appears unusual, when the reasons of the Master are considered. For those reasons proceed on the footing that the plaintiff is wholly barred by a provision of the Limitation Act 1969, so far as she claims in her statement of claim against the 14th defendant. The ordinary result of such a conclusion would be an order, of the kind made by Austin J in Hillebrand v Penrith Council [2000] NSWSC 1058, simply dismissing the plaintiff's claim as against the relevant defendant. The orders made in the present case would be appropriate if all that were involved was the form of the pleading; but in reality, the reasons of the Master, if correct, deny the plaintiff any prospect of success, whatever amendment she makes, so that the liberty granted her is illusory. 2 The point is not merely technical. It affects the appropriate approach to the task before the court. Where some lapse of expression makes a pleading embarrassing, or some omission deprives it of its intended force, the court may readily make an order of the kind made here. But where what is actually involved is whether, however expressed, the cause of action is capable of being sustained, a court must not act too readily, but must consider carefully whether the plaintiff's cause is really hopeless, and if not, must stay its hand. The authority most commonly cited in Australia imposing upon the court a stringent restriction of its power to dispose summarily of a litigant's proceeding is General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, where Barwick CJ said (at 128-129): "The plaintiff rightly points out that the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion. … It is sufficient for me to say that [the] cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action - if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; 'so obviously untenable that it cannot possibly succeed'; 'manifestly groundless'; 'so manifestly faulty that it does not admit of argument'; 'discloses a case which the Court is satisfied cannot succeed'; 'under no possibility can there be a good cause of action'; 'be manifest that to allow them' (the pleadings) 'to stand would involve useless expense'."

Barwick CJ went on (at 129) to quote the remarks of Dixon J in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91, where he said: "A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury."

This law has a particular application in a case where what is raised in opposition to the plaintiff's claim is not that the facts cannot possibly sustain the cause of action alleged, but that the cause of action is statute barred. In such a case, Mason CJ, Dawson, Gaudron and McHugh JJ, in their joint judgment in Wardley Australia Ltd v The State of Western Australia (1992) 175 CLR 514 at 533, declared: "We should, however, state in the plainest of terms that we regard it as undesirable that limitation questions of the kind under consideration should be decided in interlocutory proceedings in advance of the hearing of the action, except in the clearest of cases. Generally speaking, in such proceedings, insufficient is known of the damage sustained by the plaintiff and of the circumstances in which it was sustained to justify a confident answer to the question." 3 The further amended statement of claim in the present case is somewhat complex. It contains claims against solicitors who acted for the plaintiff at various times, with which I am not concerned. It also contains claims against the 14th defendant, Waterways Authority of New South Wales, which are alleged to have arisen out of an intricate and sustained history of relations between the parties. By para 9 of the pleading, the plaintiff pleads the making of an agreement on 4 July 1983 to purchase a houseboat located at Pearl Bay in Middle Harbour. By para 10 it is alleged that, in the previous month, a statutory predecessor of the 14th defendant, the Maritime Services Board of New South Wales ("the MSB"), orally represented to the plaintiff (this is referred to as the "first representation") that the houseboat would have continuous rights to occupy its site at Pearl Bay. In particulars, this allegation is expanded to refer to a representation by the MSB that it had no intention to remove the houseboats in the Harbour, but this would only ever happen if the land was to be used for public purposes, in itself unlikely as the MSB placed historical significance on the houseboats, which had permanent residential status. In paras 15 and 16, the pleading goes on to allege the issue of a Port Craft licence on 29 August 1983, a term of which was that the licence was continuous subject to compliance with certain regulations relating to licensed vessels. It is then alleged in para 17 that the purchase was settled on 23 September 1983. The issue of a Services Licence on 19 January 1984 by the MSB to the plaintiff, covering various services such as water, electricity and telephone, is alleged in para 19. 4 A further (or "second") oral representation by the MSB to the plaintiff is pleaded by para 24, made in March or April 1985, that if she replaced the hull of the houseboat with a new ferro-concrete pontoon it would never have to leave the site at Pearl Bay again as the houseboat would then be a permanent facility. According to para 25, the plaintiff instructed a civil engineer in relation to the replacement of the hull, and para 26 alleges that she informed the MSB in about March 1986 that she had engaged him for replacement of the hull and that a marine surveyor would be engaged for the purpose of survey. Then, on 22 September 1986 (as alleged in para 27), the MSB approved the plaintiff's proposal to replace the hull in the manner envisaged by the representation pleaded in para 24. Next, para 28 pleads that between July 1987 and March 1988 the plaintiff submitted to the MSB for approval a series of plans of the proposed replacement of the hull designed to meet the requirements for a permanent facility. 5 Thirdly, by para 29, a series of representations by the MSB between March 1985 and June 1986 is alleged to have been made to the plaintiff, that the new pontoon and superstructure no longer needed to meet the annual requirements of seaworthiness for a transportable vessel, and that the requirements were for it to be seaworthy "to stay afloat at its permanent site in Pearl Bay only". 6 Then the pleading alleges that on about 2 June 1988, in reliance on the second representation, the plaintiff caused a new ferro-concrete pontoon to be fitted to the houseboat at a cost of approximately $80,000. 7 Next, by para 31 it is alleged that in reliance on all the representations the plaintiff engaged an architect in about May 1987 to design a new superstructure and pontoon fit-out for the houseboat, and by para 32, that about 10 December 1987 she submitted plans for a new superstructure, designed to meet the requirements for a permanent facility, to the MSB for approval. The pleading goes on to recount the vicissitudes of the approval procedure, and finally alleges by para 35 that on 6 July 1990 the MSB approved the superstructure plans and requested a specification which (para 37) was approved in September 1990. 8 The pleading then moves back in time a little to allege (in para 38) that by letter of 21 December 1987 the MSB required the plaintiff to pay a rent for the "permanent" site occupied by the houseboat and to enter into a three year lease in respect of the site. By para 39, what are described as the fourth representations, are alleged. These were made on 24 December 1987 orally, and were that the lease was only for the purpose of enabling the MSB to charge rent, and that the plaintiff's permanent rights would not change; that the Port Craft licence would remain; that the rental charges were the only reason for the lease and the occupation of the site would not otherwise be affected; and that the rentals levied were lower than for other private and commercial wetland users because of their historic and permanent status. (I understand the last representation to be intended to mean that, because of the historic and permanent status of the plaintiff's houseboat site, the rental was fixed at the particular level alleged.) The pleading goes on to allege the submission to the plaintiff on 24 May 1998 of a form of lease in respect of the houseboat site, and by para 42 that on 23 August 1988, in reliance on the representations other than the first representation, the plaintiff entered into the lease. 9 Paragraph 43 alleges that the representations other than the first were false and negligently made. 10 Paragraph 44 alleges that the plaintiff relied to her detriment on all the representations. 11 Paragraph 46B alleges that it would be unconscionable to allow the plaintiff to suffer the losses and detriment caused to her by the MSB's failures to adhere to its representations upon which the plaintiff relied to her detriment. (In the way the plaintiff's case was put in argument, this seems to render para 43 otiose, as that paragraph stakes out a much narrower ground than the full ground on which a representer's failure to adhere to his representation may be unconscionable.) 12 Paragraph 55 alleges an assertion by the MSB in about May 1991 that, by the plaintiff's signing of the three year lease, the only tenure at (sic) the houseboat site was a holdover under the lease. 13 Paragraph 57 alleges that, contrary to the representations, the MSB cancelled the Port Craft licence on or about 22 June 1994. 14 The foregoing recital of the allegations against the 14th defendant is not completely exhaustive, and it omits allegations primarily made against other defendants, some of which might have a bearing, if proved at a hearing, on any application of the equitable doctrine of laches. In the concluding portion of the pleading, there are claims against the 14th defendant for declarations, including a declaration that the plaintiff has a continuous and assignable right to occupy the houseboat site subject to compliance with relevant statutory provisions. Among the declarations sought is one that the 14th defendant is estopped from denying a permanent and assignable right of occupation of the houseboat at its present position at Pearl Bay. An injunction, compensation and equitable damages are also claimed. 15 As I have indicated, the defendant relies on the Limitation Act. It says that the general limitation in s 14 is applicable, that is to say, the action was required to be brought within six years from the date on which the cause of action first accrued. There is no dispute that if s 14 is applicable, the plaintiff is out of time against the 14th defendant. What the plaintiff contends is that s 23 applies. This section is headed "Equitable relief", and it relevantly provides: "Sections 14 … do not apply, except so far as they may be applied by analogy, to a cause of action for specific performance of a contract or for an injunction or for other equitable relief."

Although an injunction is sought to restrain the 14th defendant "from any action which would interfere with the presence and quiet enjoyment of [the houseboat] at its present position", and a mandatory injunction is sought in respect of the approval for the superstructure of the houseboat, the main thrust of the plaintiff's case is undoubtedly concerned with the declaratory relief, compensation and equitable damages that are sought on the basis of her reliance to her detriment, in the circumstances alleged, upon the representations. The respondent Waterways Authority says that these are not claims "for other equitable relief", and that if they are, s 14 should still be applied by analogy. Those were the submissions that the Master accepted. 16 For the Waterways Authority, it is submitted that the "critical question is whether equitable estoppel is available as a cause of action in a case such as this, ie where the parties enter into a concluded agreement, and if so whether the equitable estoppel alleged is covered by the doctrine of analogy and therefore covered by s 23 of the Limitation Act." This argument replicates the position taken by the Master. He said the plaintiff relied on Waltons Stores (Interstate) Limited v Maher (1988) 164 CLR 387 at 404. I would prefer to begin the citation at the foot of the previous page: "In Taylors Fashions Ltd v Liverpool Victoria Trustees Co Ltd [1982] QB 133, Oliver J … remarked that what gave rise to the need for the court to intervene was the defendants' unconscionable attempt to go back on the assumptions which were the foundation of their dealings."

After referring to the question "whether an equity had arisen from the conduct and relationship of the parties" and to "the principle of proprietary estoppel applied in Ramsden v Dyson (1886) LR 1 HL 129", that "a person whose conduct creates or lends force to an assumption by another that he will obtain an interest in the first person's land and on the basis of that expectation the other person alters his position or acts to his detriment, may bring into existence an equity in favour of that other person, the nature and extent of the equity depending on the circumstances", Mason CJ and Wilson J, in their joint judgment, continued (and this is the passage the Master took to lie at the heart of the plaintiff's case in the present matter): "One may therefore discern in the cases a common thread which links them together, namely, the principle that equity will come to the relief of a plaintiff who has acted to his detriment on the basis of a basic assumption in relation to which the other party to the transaction has 'played such a part in the adoption of the assumption that it would be unfair or unjust if he were left free to ignore it': per Dixon J in Grundt v Great Boulder Pty Goldmines Ltd (1937) 59 CLR 641 at 675; see also Thompson v Palmer (1933) 49 CLR 507 at 547. Equity comes to the relief of such a plaintiff on the footing that it would be unconscionable conduct on the part of the other party to ignore the assumption."

Having commented (at 405) that "equitable estoppel has its basis in unconscionable conduct, rather than the making good of representations", their Honours made a summary statement (at 406): "The foregoing review of the doctrine of promissory estoppel indicates that the doctrine extends to the enforcement of voluntary promises on the footing that a departure from the basic assumptions underlying the transaction between the parties must be unconscionable. As failure to fulfil a promise does not of itself amount to unconscionable conduct, mere reliance on an executory promise to do something, resulting in the promisee changing his position or suffering detriment, does not bring promissory estoppel into play. Something more would be required. Attorney-General (Hong Kong) v Humphreys Estate Ltd [1987] 1 AC 114 suggests that this may be found, if at all, in the creation or encouragement by the party estopped in the other party of an assumption that a contract will come into existence or a promise will be performed and that the other party relied on that assumption to his detriment to the knowledge of the first party. Humphreys Estate referred in terms to an assumption that the plaintiff would not exercise an existing legal right or liberty, the right or liberty to withdraw from the negotiations, but as a matter of substance such an assumption is indistinguishable from an assumption that a binding contract would eventuate. On the other hand the United States experience, distilled in the Restatement (2d, 90), suggests that the principle is to be expressed in terms of a reasonable expectation on the part of the promisor that his promise will induce action or forbearance by the promisee, the promise inducing such action or forbearance in circumstances where injustice arising from unconscionable conduct can only be avoided by holding the promisor to his promise." 17 In the same case, Brennan J set out (at 428-429) what he saw as the elements of a plaintiff's case based on equitable estoppel. 18 It will be noted that the High Court in Waltons Stores was speaking of relief which equity would provide on the footing of unconscionable conduct, a familiar concern of a court of equity. The authorities relied on were cases dealing with principles of equity, including Ramsden v Dyson (1866) LR 1 HL 129; Dillwyn v Llewelyn (1862) 4 DeGF & J 517; 45 ER 1285; and Plimmer v Mayor of the City of Wellington (1884) 9 App Cas 699. There are, of course, echoes of Plimmer in the present matter. In that case, the advice of the Privy Council makes it clear (at 710) that Plimmer "must be taken to have occupied the ground under a revocable license [sic] to use it for special purposes, viz, those of a wharfinger". Nevertheless, their Lordships reached the conclusion (at 713) "that this case falls within the principle … as to expectations created or encouraged by the landlord, with the addition that in this case the landlord did more than encourage the expenditure, for he took the initiative in requesting it." Their Lordships decided (at 714): "[T]he licence given by the Government to John Plimmer, which was indefinite in point of duration but was revocable at will, became irrevocable by the transactions of 1856 [when the jetty was enlarged at the instance of the Government], because those transactions were sufficient to create in his mind a reasonable expectation that his occupation would not be disturbed; and because they and the subsequent dealings of the parties cannot be reasonably explained on any other supposition. Nothing was done to limit the use of the jetty in point of duration. The consequence is that Plimmer acquired an indefinite, that is practically a perpetual, right to the jetty for the purposes of the original licence, and if the ground was afterwards wanted for public purposes, it could only be taken from him by the legislature."

It will be observed that their Lordships were not deterred from taking this view by the terms of the licence itself. 19 All these authorities depend upon the proposition, affirmed once again by the House of Lords in Regina v East Sussex County Council; Ex parte Reprotech (Pebsham) Ltd [2002] UK HL 8 at para 33, that "estoppels bind individuals on the ground that it would [be] unconscionable for them to deny what they have represented or agreed." This, as the House there pointed out, is not a public law concept, but in Plimmer v Mayor of Wellington the Council was entering into a private law transaction with Mr Plimmer, and in the present case the plaintiff says the same about her transaction with the Maritime Services Board. 20 However, the respondent's argument, to which the Master acceded, asserts that since the decision of the High Court in The Commonwealth of Australia v Verwayen (1990) 170 CLR 394, a case which would formerly have been seen as a case of equitable estoppel must no longer be seen as an action "for … equitable relief", and therefore s 23 of the Limitation Act cannot apply to the plaintiff's pleading. I have a number of difficulties with this approach. In the first place, the question is not so much how a cause of action based on the line of authority which includes Ramsden v Dyson , Plimmer v Mayor of Wellington and Waltons Stores should properly be described by a jurist in the year 2002, but whether it falls within the true meaning of s 23. History, the authorities, and the leading textbooks unite in describing such an action as one for equitable relief. But in any case, it is not easy to understand the basis of the proposition. Having regard to the argument and to the Master's reasons, it seems either to stem from the statement of Deane J in Verwayen at 439 (see also GPG (Australia Trading) Pty Ltd v GIO Australia Holdings Ltd [2000] FCA 875) of "the basic proposition that estoppel does not of itself provide a cause of action either in law or in equity"; or else from the proposition stated by Mason CJ at 413 that "it should be accepted that there is but one doctrine of estoppel, which provides that a court of common law or equity may do what is required, but not more, to prevent a person who has relied upon an assumption as to a present, past or future state of affairs (including a legal state of affairs), which assumption the party estopped has induced him to hold, from suffering detriment in reliance upon the assumption as a result of the denial of its correctness"; and the statement of Deane J in the same case (at 445) indicating that estoppel by conduct is to be recognized "as a doctrine operating consistently in law and equity". But of course Deane J, when he said that estoppel "does not of itself provide a cause of action either in law or in equity", was not meaning to brush aside the availability of "equitable remedies when equitable principle entitles a party to relief framed on the basis of the assumed state of affairs" to which he had just referred a few lines earlier. The principle invoked in Waltons Stores, and which the plaintiff invokes here, depends upon estoppel, but not upon estoppel alone, as Mason CJ and Wilson J pointed out in a passage I have quoted. Nor do I think that the dicta of Mason CJ and Deane J in Verwayen about a unified doctrine of estoppel, embraced by both the common law and equity, can be regarded as uprooting the equitable cause of action discussed in Waltons Stores, in order to replant it as some sort of amorphous procedure which is not one "for … equitable relief". 21 It is necessary to keep two things firmly in mind:

(1) Athough Mason CJ and Deane J in Verwayen spoke of a single doctrine of estoppel, neither of them suggested that this view radically changed the nature of an equitable claim to relief of the kind for which Ramsden v Dyson or Dillwyn v Llewelyn stands.

(2) The proposition asserting a unified doctrine of estoppel was not embraced by other members of the High Court. 22 Bearing in mind the strong statement I have quoted from Wardley Australia Limited confining a summary application of a time bar to "the clearest of cases", the court should not leap to the conclusion that Verwayen has so radically changed the principles on which the plaintiff relies as to require a summary striking out of her claim. In the third edition of Equity Doctrines & Remedies by Meagher, Gummow & Lehane, issued in 1992, after the decision in Verwayen, the learned authors' comments at 405 et seq are couched in terms calculated to deny the validity of any such conclusion as the respondent urges upon me. They refer (at 405) to the law in the field of estoppel in equity as "in a state of flux", and as exhibiting an "unsatisfactory state of affairs" which is "most forcefully illustrated by the absence of any clear ratio decidendi in … Verwayen." They make (at 422) the pregnant comment that McHugh J in Verwayen at 500 "stressed that the common law doctrine of estoppel in pais, unlike the equitable doctrines of promissory and proprietary estoppel, is not concerned with the creation of new rights between the parties", and comment that Brennan J "had spoken to similar effect in Waltons Stores at 415-416". Under the heading "Acquisition by estoppel", the authors refer to equity's concern with good conscience, and to Dillwyn v Llewelyn, Ramsden v Dyson, Waltons Stores and Plimmer v Mayor of Wellington in a detailed discussion which proceeds on the footing that the principles of these cases are principles of equity. 23 Similarly, in an essay entitled "Where There's a Wrong There's a Remedy": The Approach of Modern Equity? published in Equity and Contemporary Legal Developments (1992) edited by Professor S Goldstein, Godfrey J of the Supreme Court of Hong Kong quoted (at 18) the remarks of Mason CJ and Wilson J in Waltons Stores (which I have quoted earlier in these reasons) discerning as a "common thread" linking the cases "the principle that equity will come to the relief of a plaintiff who has acted to his detriment on the basis of a basic assumption in relation to which the other party to the transaction has played such a part in the adoption of the assumption that it would be unfair or unjust if he were left free to ignore it", and continued (at 18-19): "In the course of a discussion of promissory estoppel it was suggested that promissory estoppel may in some circumstances extend to the enforcement of a right not previously in existence where the promisor has encouraged in the promisee the belief that it will be granted and has acquiesced in action taken by the promisee to his own detriment in that belief; promissory estoppel and proprietary estoppel could be treated as mere facets of the same general principle, ie of equitable estoppel, which was considered to be more accurately described as an equity created by estoppel [emphasis added]."

Godfrey J continued (at 19): "It is pointed out, in the Australian case, that there was in the authorities support for the exercise of a general equitable jurisdiction to make good expectations created or encouraged by a defendant, and Hammersley v de Biel (1845) 12 Cl & Fin 45 (per Lord Chancellor Cottenham ) was cited." 24 The idea that the dicta of Mason CJ and Deane J in Verwayen, which clearly enough were intended to harmonize legal doctrines so as to facilitate their application, had somehow forced the developing equitable doctrine with which Waltons Stores is concerned into the straitjacket of common law limitations, so as actually to restrict the scope of the remedy, is quite inconsistent with the discussion in Meagher, Gummow & Lehane and with the comments of Godfrey J. In any case, the High Court returned to the topic in Giumelli v Giumelli (1999) 196 CLR 101, where Gleeson CJ, McHugh, Gummow and Callinan JJ, in their joint judgment (at 112), referred to Dillwyn v Llewelyn and a modern case in which it was applied, Riches v Hogben [1985) 2 Qd R 292 at 302, and said: "In these cases, the equity which founded the relief obtained was found in an assumption as to the future acquisition of ownership of property which had been induced by representations upon which there had been detrimental reliance by the plaintiff. This is a well recognised variety of estoppel as understood in equity [emphasis added] and may found relief which requires the taking of active steps by the defendant."

Their Honours expressly referred (at 112-113) to what they described as the "theses [that] were advanced" by Mason CJ and Deane J in Verwayen , commenting that they were "not accepted by Dawson J or McHugh J" and that "Brennan J approached the subject on the footing that 'equitable estoppel yields a remedy in order to prevent unconscionable conduct on the part of the party who, having made a promise to another who acts on it to his detriment, seeks to resile from the promise' ".

It was because their Honours viewed the matter as depending upon equitable doctrine that they were able (at 113) to state: "Before a constructive trust is imposed, the court should first decide whether, having regard to the issues in the litigation, there is an appropriate equitable remedy which falls short of the imposition of a trust."

In general, it may be said that relief at common law could not be so nicely moulded. 25 Later in the same judgment (at 122), their Honours referred to the judgment of Kitto J in Olsson v Dyson (1969) 120 CLR 365 at 378, where one of the lines of reasoning involved in Dillwyn v Llewelyn was identified as being "that the father's conduct in encouraging the son to build the house on the footing that the land would be his, when acted upon by the son, created an equity which bound the father to make good the son's expectation". And they made it clear (at 123) that in Verwayen it was an "equity … raised by the Commonwealth's conduct" which gave effect to the estoppel found by Deane and Dawson JJ in that case. 26 If it was wrong of the Master to conclude, as I think it was, that the plaintiff's further amended statement of claim does not plead against the 14th defendant a cause of action "for other equitable relief" within the meaning of s 23 of the Limitation Act, or at least so to conclude with the degree of certainty required for a summary dismissal, the question arises whether it would be right to reach a conclusion equally fatal to the plaintiff's action on the basis that s 14 "may be applied by analogy". In Ford & Lee on Principles of the Law of Trusts, 3rd ed (1996) section 18170, after referring in the preceding section to the flexibility of the equitable doctrine of laches, the learned authors quote the remarks of Lord Camden LC in Smith v Clay (1767) 3 Bro CC 646n; 29 ER 743 at 744, affirming that equity "was governed by circumstances", but nevertheless "as often as parliament had limited the time of actions and remedies, to a certain period, in legal proceedings, the Court of Chancery adopted that rule, and applied [it] to similar cases in equity. … And therefore in all cases where the legal right has been barred by parliament, the equitable right to the same thing [emphasis added] has been concluded by the same bar." The authors go on to qualify this by reference to the remark of Cardozo J in Graf v Hope Building Corporation (1930) 171 NE 884 at 887, that "equity follows the law, but not slavishly or always", and the decision of the Court of Appeal in Williams v Minister, Aboriginal Land Rights Act 1983 (1994) 35 NSWLR 497. The position is neatly summarized in the remarks of Isaacs J in The Crown v McNeil (1922) 31 CLR 76 at 100: "Where a Court of equity finds that a legal right, for which it is asked to give a better remedy than is given at law, is barred by an Act of Parliament, it has no more power to remove or lower that bar than has a Court of law. But where equity has created a new right founded on its own doctrines exclusively, and no Act bars that specific right, then equity is free [emphasis original]. It usually applies, from a sense of fitness, its own equitable doctrine of laches and adopts the measure of time which Parliament has indicated in analogous cases, but, when a greater equity caused by fraud arises, it modifies the practice it has itself created and gives play to the greater equity." 27 These principles have only to be stated for it to be clear that their implementation involves the very kind of concern with the whole of the evidence which underlies the admonition delivered by the High Court in Wardley Australia Limited v Western Australia. An application of the statute by analogy could very rarely indeed lead to a summary dismissal of an action. 28 To summarize. At bottom, the question is one of statutory construction: what does s 23 of the Limitation Act mean by "a cause of action … for other equitable relief"? Section 23 assumes the existence of such causes of action, and when shortly after it came into effect, the judicature system was adopted in New South Wales by the coming into effect of the Supreme Court Act 1970, s 23 did not change its meaning. Sir Frank Kitto, in his 1975 introduction to Equity Doctrines and Remedies by Meagher, Gummow & Lehane, labelled it a "fallacy" to see the judicature system as having worked a fusion of Common Law and Equity. But even if it did, to see it as also having worked an amendment of s 23 would be to give it an extraordinary effect. Nor, in my opinion, did the doctrines of equity at that time undergo a sudden change so as to apply a common law limitation "by analogy" to a cause of action for equitable relief to which it would not have been applied under s 23 before the Supreme Court Act came into effect. 29 I can find nothing in The Commonwealth v Verwayen or Waltons Stores to require me to take a different view in the particular case of a cause of action founded upon equitable estoppel. Indeed, the opinion of Meagher, Gummow & Lehane that the law in this area is "in a state of flux" requires the conclusion that there is no foundation for the clear conviction that the law is settled in a particular new sense which would be required to justify a summary striking out of this statement of claim, as against the 14th defendant, on the basis it pleads a hopelessly barred cause of action. Accordingly, the appeal from the Master should be allowed and the application to strike out the relevant parts of the statement of claim should be dismissed with costs. However, it is conceded that some reformulation of the pleading is required, and I think justice would be done if the 14th defendant were required in respect of the hearing before the Master to pay half of the plaintiff's costs. I grant leave to the plaintiff to file the proposed further further amended statement of claim within 28 days. *********************************

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