Gill v Garrett

[2021] NSWCA 117

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Gill v Garrett [2021] NSWCA 117

Hearing dates:

29, 30 March 2021

Date of orders:

4 June 2021

Decision date:

04 June 2021

Before:

Macfarlan JA at [1];
Leeming JA at [2];
Emmett AJA at [3]

Decision:

Order that the appeal be dismissed with costs.

Catchwords:

ESTOPPEL — estoppel by representation — detrimental reliance — whether terms of representation proved — whether claimant actually relied upon alleged representation

SUCCESSION — family provision — claim by member of household for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 — whether factors warranting —provision of household care to deceased — conscious misuse of special disadvantage of deceased — significance of reliance upon alleged agreement to leave real estate in will

EQUITY — fiduciary duties — unauthorised profit — bank cards and personal identification number entrusted for certain purposes — retention of excess cash for fiduciary’s personal use

EQUITY — unconscionable conduct — special disability or disadvantage — whether unconscientious advantage taken

Legislation Cited:

Bankruptcy Act 1966 (Cth)

Civil Procedure Act 2005 (NSW), s 100

Succession Act 2006 (NSW), ss 57, 59

Cases Cited:

Churton v Christian (1988) 13 NSWLR 241

Re Fulop (1987) 8 NSWLR 679

Sassoon v Rose [2013] NSWCA 220

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Jason Adrian Francis Gill (Appellant)
Alice Jemima Mary Garrett (First Respondent)
Catherine Sarah Jane Garrett (Second Respondent)
Thomas Peter John Garrett (Third Respondent)

Representation:

Counsel:
D W Robertson (Appellant)
M R Pesman SC with E Glover (Respondents)

Solicitors:
Holman Webb Lawyers (Appellant)
LHD Lawyers (Respondents)

File Number(s):

2020/236446

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity

Citation:

[2020] NSWSC 795; [2020] NSWSC 1473

Date of Decision:

16 July 2020; 23 October 2020

Before:

Slattery J

File Number(s):

2016/328585

HEADNOTE

[This headnote is not to be read as part of the judgment]

Mr Gill, the appellant, challenged a decision of a judge of the Equity Division dismissing his summons and statement of claim that sought a declaration that the executors of the late Dr Garrett held certain property on trust for him, and in the alternative, sought family provision under s 59 of the Succession Act 2006 (NSW) out of the estate. He also challenged the primary judge’s findings in favour of the executors under a cross-claim filed against the appellant.

The appellant met the deceased in 1996 and commenced a friendship that centred upon drinking and socialising in and around the Royal Hotel in Paddington. The relationship between the deceased and the appellant developed into one of greater mutual dependence. On the one hand, the deceased loaned money to the appellant and covered other expenses. In late 2003, the appellant moved into the Paddington home of the deceased, where he continued to reside until after the deceased died in 2015. The deceased paid for the storage of the appellant’s property and continued to loan him money and provide…