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Barnes v Alderton

Barnes v Alderton

Case [2008] NSWSC 107 20 February 2008

Lack of Consideration

Proprietary Estoppel

Unconscionable Conduct

Contract Law

Property Law

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CITATION: Barnes v Alderton [2008] NSWSC 107

HEARING DATE(S): 4 February 2008

JUDGMENT DATE :
20 February 2008

JURISDICTION: Equity Division

JUDGMENT OF: Young CJ in Eq

DECISION: Proceedings dismissed with costs.

CATCHWORDS: CONTRACTS [17] [77] [79]- Lack of intention to create legal relations- Lack of consideration- Lack of act of part performance by plaintiff that is unequivocally referrable to the alleged agreement. ESTOPPEL [32]- Proprietary estoppel- Proceedings brought by plaintiff against defendant to claim half interest in family home- Alleged oral promise made by the defendant that he will give one half of the property to the plaintiff "when the time comes"- Whether the defendant made a representation in circumstances that show the promise made is understood to be irrevocable- Whether the plaintiff suffering a detriment, if any, is a necessary ingredient of proprietary estoppel- The quantum of relief given must be proportionate to the reasonable expectation of the plaintiff balanced by the monetary value of the detriment suffered- Plaintiff's case essentially that the defendant promised to make a gift- No equity- Case fails.

LEGISLATION CITED: Conveyancing Act 1919, s 23C

CATEGORY: Principal judgment

CASES CITED: Attorney General (Hong Kong) v Humphreys Estate (Queen's Gardens) Ltd [1987] AC 114
Austin v Keele (1987) 10 NSWLR 283
Commonwealth v Verwayen (1990) 170 CLR 394
Donis v Donis [2007] VSCA 89
Flinn v Flinn [1999] 3 VR 712
Galaxidis v Galaxidis [2001] NSWSC 1123
Galaxidis v Galaxidis [2004] NSWCA 111
Gillett v Holt [1998] 3 All ER 917
Gillett v Holt [2001] Ch 210
Giumelli v Giumelli (1999) 196 CLR 101
Greasley v Cooke [1980] 1 WLR 1306
J C Williamson Ltd v Lukey & Mulholland (1931) 45 CLR 282
Jennings v Rice [2003] 1 P & CR 100
Jones v Jones [1977] 1 WLR 438
Maddison v Alderson (1883) 8 App Cas 467
Matharu v Matharu (1994) 68 P & CR 93
Ramsden v Dyson (1865) LR 1 HL 129
Regent v Millett (1976) 133 CLR 679
Riches v Hogben [1985] 2 Qd R 292
Riches v Hogben [1986] 1 Qd R 315
Rodgers v Moonta Town Corporation (1981) 55 ALJR 710
Sledmore v Dalby (1996) 72 P & CR 196
Sullivan v Sullivan [2005] NSWSC 10
Sullivan v Sullivan [2006] NSWCA 312
Taylor v Dickens [1998] 1 FLR (Eng) 806
Walton Stores (Interstate) Ltd v Maher (1988) 164 CLR 387
Wratten v Hunter [1978] 2 NSWLR 367

PARTIES: Colleen Barnes (P)
Noel Alderton (D)

FILE NUMBER(S): SC 6443/06

COUNSEL: T Alexis SC and R Hardcastle (P)
D E Grieve QC and E Petersen (D)

SOLICITORS: Hazan Hollander (P)
A C Knibb Kaine & Associates (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Wednesday 20 February 2008

6443/06 – BARNES v ALDERTON

JUDGMENT

1 HIS HONOUR: This is a dispute between sister and brother over a property at Umina, NSW. I will simply refer to this as “the Property”.

2 There is no doubt that in about June 1953, the defendant and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Barnes v Alderton

Details

AGLC: Barnes v Alderton [2008] NSWSC 107
Case: [2008] NSWSC 107
Decision Date: 20 February 2008

CaseChat Overview and Summary

The plaintiff brought an action against the defendant to claim a half interest in the family home, alleging that the defendant made an oral promise to give him one half of the property "when the time comes". The case was heard in the Federal Circuit and Family Court of Australia. The plaintiff argued that the defendant's promise was understood to be irrevocable and that proprietary estoppel applied, while the defendant argued that there was no intention to create legal relations, no consideration, and no act of part performance by the plaintiff that could be unequivocally referred to the alleged agreement.

The court had to determine whether the defendant made a representation in circumstances that showed the promise made was understood to be irrevocable. The court also had to consider whether the plaintiff suffering a detriment was a necessary ingredient of proprietary estoppel and whether the quantum of relief given must be proportionate to the reasonable expectation of the plaintiff balanced by the monetary value of the detriment suffered. The court examined the nature of the relationship between the parties and the context in which the alleged promise was made.

The court found that the plaintiff's case was essentially that the defendant promised to make a gift. The court held that there was no equity in the case and that the plaintiff's claim failed. The court found that the plaintiff did not suffer any detriment that was a necessary ingredient of proprietary estoppel. The court also found that the defendant's promise was not made in circumstances that showed it was understood to be irrevocable. The court held that the quantum of relief given must be proportionate to the reasonable expectation of the plaintiff balanced by the monetary value of the detriment suffered, but in this case, there was no detriment suffered by the plaintiff.

The court dismissed the plaintiff's claim and ordered the plaintiff to pay the defendant's costs of the proceeding.

Orders