EQUITY – Estoppel – Proprietary estoppel – Promise to transfer an interest in real property to promisee following marriage of promisee to promisors’ son – Promise made on basis of assumption marriage would endure – Promisee entering into marriage and giving up work to have child in reliance on promise – Marriage ending in divorce – Minimum equity – Whether promisors bound to give effect to promise – Property sold – Whether promisors bound to pay commensurate proportion of sale price to promisee – Whether payment of commensurate proportion of sale price grossly in excess of amount required to satisfy equity – Detriment – Whether payment of commensurate proportion of sale price disproportionate to detriment suffered – Whether payment of commensurate proportion of sale price went beyond requirements of conscientious conduct or would do injustice to others – Giumelli v Giumelli (1999) 196 CLR 101, applied; Sullivan v Sullivan [2006] NSWCA 312, considered.
Procedure – Pleadings – Trial – Issues not apparent from pleadings allowed to be litigated at trial – Failure to amend not precluding judgment on facts as emerged – Terms on which issues allowed to be litigated to include order that pleadings be amended – Water Board v Moustakas (1988) 180 CLR 491, applied; Wong v Mura [2001] NSWCA 366, referred to.
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APPEARANCES:
Counsel
Solicitors
For the Appellants
Mr P J Riordan SC with Mr A P Trichardt
Michael Fleming & Assoc
For the Respondent
Mr N J O’Bryan SC with Mr R J Spicer
Pearce Webster Dugdales
MAXWELL ACJ:
I have had the considerable advantage of reading in draft the reasons of Nettle JA. For the reasons which his Honour gives, I too would dismiss the appeal.
NETTLE JA:
This is an appeal from a judgment given in the Commercial and Equity Division in favour of the respondent. Her claim was based in proprietary estoppel of the Dillwyn v Llewellyn kind.[1] She alleged that the first and second appellants were guilty of unconscientious conduct in failing to honour a promise, on the basis of which she had acted to her detriment, that she would be registered on title as proprietor of a one quarter share in their semi-rural property. They later sold the property at very considerable profit.
The third appellant, Steven Donis, is the elder son of the first and second appellants, Victor and Rosa Donis. Steven Donis has a brother, Michael Donis, who is some four years younger than he. In or about May 1995, Steven Donis met the respondent, Susie Donis, when he visited a mushroom farm in Bundoora at which…
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.
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AGLC
Donis v Donis [2007] VSCA 89
Case
[2007] VSCA 89
Decision Date
CaseChat Overview and Summary
In Donis v Donis, the plaintiff sought to enforce a promise made by the defendants to transfer an interest in real property following her marriage to the defendants' son. The dispute arose after the marriage ended in divorce and the property was sold. The plaintiff claimed that she had relied on the promise by giving up her career and having a child, and sought a commensurate proportion of the sale price of the property. The case was heard in the Supreme Court of New South Wales.
The legal issues before the court included whether the defendants were bound to give effect to the promise made, whether they were required to pay the plaintiff a commensurate proportion of the sale price, and whether such a payment would be grossly in excess of the amount required to satisfy the equity. The court also had to consider whether the payment would be disproportionate to the detriment suffered by the plaintiff and whether it would go beyond the requirements of conscientious conduct or cause injustice to others.
The court found that the defendants were bound to give effect to the promise, as the plaintiff had relied on it to her detriment. However, the court also found that the payment of a commensurate proportion of the sale price would be grossly in excess of the amount required to satisfy the equity. The court held that the detriment suffered by the plaintiff was not sufficient to justify such a payment, and that it would go beyond the requirements of conscientious conduct and cause injustice to others. The court also noted that the issues that were not apparent from the pleadings were allowed to be litigated at trial, and that the failure to amend the pleadings did not preclude judgment on the facts as they emerged.
The court ordered that the defendants pay the plaintiff a sum that reflected the equity arising from the promise, but did not include a commensurate proportion of the sale price. The court held that this amount was sufficient to satisfy the equity and did not cause injustice to others. The court also ordered that the pleadings be amended to reflect the issues that were litigated at trial.