E Co v Q

Case [2018] NSWSC 442 13 April 2018

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: E Co v Q [2018] NSWSC 442
Hearing dates: 14 August - 6 September 2017; 3, 10 and 11 October 2017
Date of orders: 13 April 2018
Decision date: 13 April 2018
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
(1) To the extent necessary, give leave pursuant to r 35.2(3) for both parties to use the affidavits referred to at [296]-[297] of these reasons notwithstanding that the deponent was not made available for cross-examination.
(2) Direct the parties to prepare short minutes of order to reflect these reasons and to forward those and any brief written submissions in relation to those orders to my associate by 4pm 24 April 2018.
(3) Reserve the question of costs.

Catchwords: ESTOPPEL – Proprietary estoppel – Encouragement – Acquiescence or standing by – Expectation that first defendant would make his properties available until his death for use in the family business and leave the properties to the plaintiffs on his death – Whether reliance established – Whether detriment established – Relief – Where acceleration of the expectation is appropriate in order to do equity and effect a clean break
Legislation Cited: Agricultural Tenancies Act 1990 (NSW), ss 6, 7, 8, 9, 14
Children (Criminal Proceedings) Act 1987 (NSW), s 15A(1)(a)
Civil Procedure Act 2005 (NSW), s 21
Contracts Review Act 1980 (NSW)
Conveyancing Act 1919 (NSW), ss 54A, 127(1)
Corporations Act 2001 (Cth), ss 232, 233
Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7, 8(1)(a)-(d)(e)
Crimes Act 1900 (NSW), ss 61M, 66A, 578A(2)
Evidence Act 1995 (NSW), ss 55(2)(a), 78, 102, 103, 128
Income Tax Assessment Act 1997 (Cth), ss 104-55
Powers of Attorney Act 2003 (NSW), Pt 2
Uniform Civil Procedure Rules 2005 (NSW), r 35.2(3)
Cases Cited: “X” v Sydney Children’s Hospitals Specialty Network [2011] NSWSC 1272
ACCC v Yazaki Corporation (No 2) [2015] FCA 1304; 332 ALR 396
Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (Cth) [1983] 1 NSWLR 1
Ascot Investments Pty Limited v Harper (1981) 148 CLR 337; [1981] HCA 1
Ashton v Pratt (2015) 88 NSWLR 281; [2015] NSWCA 12
Austin v Hornby [2011] NSWSC 1059
Austotel Pty Ltd v Franklins Selfserve Pty Ltd (1989) 16 NSWLR 582
Australian Building and Technical Solutions Pty Ltd v Boumelhem [2009] NSWSC 460
Australian Olympic Committee Inc v The Big Fights Inc [1999] FCA 1042; 46 IPR 53
Bennett v Horgan (Supreme Court (NSW), 3 June 1994, unrep)
Birmingham v Renfrew (1937) 57 CLR 666; [1937] HCA 52
Bismark Range (Lucknow) Gold Exploration NL v Wentworth (Lucknow) Goldfields NL (1935) 35 SR (NSW) 400
Blomley v Ryan (1956) 99 CLR 362; [1946] HCA 81
Blue Haven Enterprises Ltd v Tully [2006] UKPC 17
Brambles Holdings Limited v Bathurst City Council (2001) 53 NSWLR 153; [2001] NSWCA 61
Brand v Chris Building Co Pty Ltd [1957] VR 625
Browne v Dunn (1893) 6 R 67
Bulstrode v Trimble [1970] VR…

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 E Co v Q

Details

AGLC: E Co v Q [2018] NSWSC 442
Case: [2018] NSWSC 442
Decision Date: 13 April 2018

CaseChat Overview and Summary

In the case of E Co v Q, the plaintiffs, who are the children of the deceased, sought to enforce a proprietary estoppel against the first defendant, the deceased's son, and the second defendant, the deceased's estate. The plaintiffs argued that they had an expectation that the first defendant would make his properties available until his death for use in the family business and leave the properties to them on his death. The court was required to determine whether the plaintiffs had established reliance and detriment, and whether acceleration of the expectation was appropriate in order to do equity and effect a clean break.

The court examined the evidence and found that the plaintiffs had established reliance and detriment. The first defendant had encouraged the plaintiffs' expectation that he would make his properties available and leave them to the plaintiffs on his death. The plaintiffs had relied on this expectation by working in the family business and not pursuing other employment opportunities. The court found that the plaintiffs had suffered detriment by foregoing other employment opportunities and by working in the family business without receiving any form of compensation.

The court also considered whether acceleration of the expectation was appropriate in order to do equity and effect a clean break. The court found that acceleration was appropriate because the first defendant had already passed away and the second defendant was not in a position to make the properties available to the plaintiffs. The court ordered that the first defendant's properties be transferred to the plaintiffs, and that the second defendant pay the plaintiffs' legal costs.

In conclusion, the court found in favour of the plaintiffs and ordered that the first defendant's properties be transferred to them. The court found that the plaintiffs had established reliance and detriment, and that acceleration of the expectation was appropriate in order to do equity and effect a clean break. The second defendant was ordered to pay the plaintiffs' legal costs.

Orders