Giumelli & Anor v Giumelli

[1997] HCATrans 359

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P30 of 1996

B e t w e e n -

GIOVANNI GIUMELLI and ROSA GIUMELLI

Applicants

and

ROBERT JOHN GIUMELLI

Respondent

Application for special leave to appeal

BRENNAN J
TOOHEY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON MONDAY, 8 DECEMBER 1997, AT 11.28 AM

Copyright in the High Court of Australia

MR J.I. FAJGENBAUM, QC:   If the Court  pleases, I appear with my learned friend, MS F.G. PHILLIPS, for the applicant.  (instructed by Michael Rennie).

MR M.J. McCUSKER, QC:   If it please the Court, I appear for the with my learned friend, MR R.A.C. CULLEN, for the respondent.  (instructed by Dwyer Durack)

MR FAJGENBAUM:   There are a number of special leave points that are thrown up by this case which provide an opportunity for clarifying many of the issues which remain unclarified as the law still stands as declared by this Court.  The first question is whether equity will grant relief, whether by way of promissory estoppel or constructive trusts, to enforce a promise, in this case a promise to convey land when there is no contract, because the promise is uncertain for want of a proper description of the subject matter - being what is described in the proceedings as the “promised land” - and also because of a lack of evidence, as found by the learned trial judge, Mr Justice Nicholson, of any agreement in relation to the promise.  In any event, if there was a contract, a contract to convey land that was unenforceable for want of compliance with the statute of frauds.

If equity, secondly, is to grant relief, is it to be by way of promissory estoppel or by way of constructive trust?  If by way of constructive trust, should the relief be confined to preventing the constructive trustee retaining the benefit of the relevant property to the extent that it would be unconscionable for him to so - or for them to do so, in this case.  If that is the limit, is it consistent with principle to grant specific performance of an uncertain promise contained in an incomplete agreement.  Further, is it consistent with principle that relief should go beyond the value of the detriment suffered by the respondent in continuing to work in the partnership?  That is the value of his effort and contribution otherwise unrewarded by the partnership.

We should observe that Justice Ipp, in the Court of Appeal, and in the application book, page 84 at lines 5 to 15, recognised that the uncounscionability of the applicant’s conduct lay in the fact that they retained the benefit they received as a result of the respondent’s labour and the expenditure of his share of the partnership funds when they were not only in breach of their promise to him but where the promises had been made specifically to reassure the appellant that he would not find himself in the situation which now obtains.  That is to say, the measure of the unconscionability was the retention of the contributions of the respondent’s labour to the partnership funds.  Is, in those circumstances, the relief ordered by the Full Court in Western Australia consistent with relief coextensive with the unconscionability of my client’s conduct as found? 

Further, in connection with the remedy of constructive trust, what was meant in both Muschinski v Dodds and Baumgartner, when it was said that the remedies available to restore to any party contributions which had been made in a joint endeavour which fails without attributable blame? 

What is the joint endeavour for this purpose?  Mr Justice Ipp identified it at the application book, page 81, between lines 20 and 29, as:

constituted by the partnership -

and the understanding between the applicants and the respondent -

that the promised lot would be transferred to the -

respondent -

in return for him remaining as a partner, and working on the -

orchard -

for their mutual benefit.

It is difficult, with respect, to characterise this understanding as a joint endeavour when there was an understanding to grant land to the respondent so that it became an independent asset of the son, the respondent, not an asset of a joint endeavour. 

Contrast cases, such as Muschinski and Baumgartner, where the assets, effort and moneys were pooled, and the legal ownership of an asset was held by one party to the joint endeavour, which made it unconscionable for him or her to insist on his or her strict legal rights to the exclusion of the other.

TOOHEY J:   Mr Fajgenbaum, the draft notice of appeal - and I am not tying you down too closely to it, but a reading of it suggests that unconscionability is put at the forefront of the application for special leave to appeal, the argument being that the conduct of the respondent was not unconscionable.  If that were thought, of itself, not to be an appropriate vehicle for special leave, and if one assumes for the moment that the conduct was unconscionable, what is then said - what is the error that was committed by the Full Court?

MR FAJGENBAUM:   Well, so far as the majority is concerned, a number of questions arise.  First as to whether the relief should be coextensive with the measure of unconscionability, whereas, the relief should be against the conscionability of the detriment suffered by the respondent in reliance upon the unconscionable conduct of his parents.  Secondly, if the remedy of constructive trust is to apply in this case by reference - as the majority in the Full Court held - to Muschinski v Dodds and to Baumgartner, one needs to, first, identify the joint endeavour and recognise, secondly - and it comes back in the second point to the measure of unconscionability - that the constructive trust is there for the purpose of restoring to one of the parties of the joint endeavour - he, who, in this case, does not have the relevant title - the contributions he has made to that joint endeavour when it has failed, without fault on anybody’s part, to restore the contributions to the joint endeavour; not to perfect, as it were, if there be a joint endeavour - the joint endeavour in that is the result that has been worked by the majority in the Court of Appeal.

BRENNAN CJ:   Do you accept that there is a liability to a charge?

MR FAJGENBAUM:   If, to the extent there is unconscionability, yes.  Except ‑ ‑ ‑

BRENNAN CJ:   To the extent of the contribution of $25,000.

MR FAJGENBAUM:   That goes to the second promise and in relation to the construction of the house and we do, if it is in relation to that, we do accept that, yes.

BRENNAN CJ:   Why cannot the matter proceed on the footing that if there were something in the nature of a promise, and I am using deliberately vague terms, it is not appropriate to grant a remedy on the minimal construction that could be placed upon the promise.  Namely, east to west division, and house with a curtilage no greater than is necessary to meet the local authority requirements.

MR FAJGENBAUM:   Yes.  Well, the difficulty with that is the Court is creating a certain transaction out of an arrangement which lacked relevant certainty.

BRENNAN CJ:   But if it can be certain to that extent, that and no further.  In other words, a promise that he should have the house necessarily carries, as the curtilage, that much land.

MR FAJGENBAUM:   Yes.  With respect, we are not disputing that in this Court but what we are disputing is the grant of the larger orchard.  Sorry, I misunderstood your Honour, yes.

BRENNAN CJ:   Yes, I see.

MR FAJGENBAUM:   That is the third promise whereby the son, in reliance upon his parents’ promise to convey an undefined promised lot to him, remained on the land continuing in the partnership, until he chose, on the occasion of his second marriage, to leave the family and chose his wife instead.

Now, if we are permitted to be able to urge on the Court that the remedy by way of constructive trust has gone too far in this case by fulfilling the promise, the question will then arise as to whether the approach of the concurring/dissenting judge in the Court of Appeal, Mr Justice Rowland, was correct in giving relief by way of promissory estoppel, by reason of the applicants’ failure to fulfil the promise being characterised in an unconscionable departure by them for an assumption which had been adopted by the respondent as the basis of his continuing on the land, and which would operate to the respondent’s detriment if the assumption was not adhered to.

If that is the case, again, similarly, in the case of the constructive trust, should the measure of relief to which the son is entitled be, prima facie, what might be characterised as the reliance detriment suffered by him, in other words, that the measure of his relief should be a charge over the land to secure to him the value of his otherwise unrecouped contribution to the farming enterprise, or should it be the fulfilment of the expectation.  Your Honour the Chief Justice in Walton Stores stated that the primary objective of equity in the case of promissory estoppel has not compelled the party bound to the assumption of expectation but is to avoid the detriment which, if the assumption of expectation goes unfulfilled, will be suffered by the party which has been induced to act or abstain from acting thereon.

To similar effect is that which your Honour said in Verwayen at pages 428 to 429, an extract which I will not detain the Court with, which appears in the book of authorities at page 139.  It is safe to say this:

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.....The remedy is not designed to enforce the promise although, in some situations.....the minimum equity will not be satisfied by anything short of enforcing the promise.....

The relevant detriment in a case of equitable estoppel is detriment occasioned by reliance on a promise.....The relevant detriment does not consist in a loss attributable merely to non‑fulfilment of the promise.

To similar effect was that which the then Chief Justice said in Verwayen at pages 413 and following, at pages 127 and following of the application book, where he referred to the need for

a proportionality between the remedy and the detriment which is its purpose -

the purpose of the doctrine of promissory estoppel to avoid.  On the other hand, there is the contrast between those two attitudes and that is perhaps revealed as being otherwise understood by Justice Deane in Verwayen at page 442.  This appears in the authorities.  At page 442 of the report, and at page 142 of the book of authorities where, in the paragraph beginning on the centre of the left-hand page, his Honour there referred to a “prima facie entitlement” to have the expectation fulfilled , where his Honour there spoke:

it should be accepted that the prima facie entitlement to relief based on the assumed state of affairs must, under a doctrine which is of general application in a system where equity prevails, be qualified if it appears that that relief would exceed what could be justified by the requirements of conscientious conduct and would be unjust to the estopped party.

In other words, there is a prima facie right to have the expectation fulfilled unless there are countervailing equitable principles.

Mr Justice Rowland, in the Full Court appeared to adopt the attitude, the principle expounded by Mr Justice Deane.  If one turns to the application book at page 64, between lines 19 and 29, one sees Mr Justice Rowland referring to:

The approach favoured by Deane J in Verwayen, and in general terms there appears to be no great dissent from that view, is that, once there is unconscionable conduct, there will be cases where both the detriment and the relief will be measured by giving effect to the promise, unless to do so would be unfair or unjust to the promisor or if the detriment suffered is not commensurate with the unfulfilled promise.

It is to be recalled, in terms of reliance detriment, Mr Justice Nicholson at first instance found as a matter of fact that there was no reliance detriment suffered by the respondent in relying on the third promise, the promise to convey the promised lot.  If I can take the Court to pages 27 to 29 of the application book and read selected passages between lines 10 and 20:

In the case of the third promise it has not been shown that by the rejection of the job offer and return to work in the partnership the plaintiff has suffered a detriment.  The plaintiff was a member of the partnership and chose to continue in it.  The consequence of the third promise was that he did not relinquish his partnership.  In my view that cannot be a detriment in itself.

Then he refers to the Alcoa job offer and the learned trial judge said there was no detriment suffered in that and in conclusion, going through a number of the arguable detriments, the learned trial judge said at the bottom of page 28, at line 50:

In my opinion the plaintiff has not made out with respect to the third promise that by his reliance upon it he suffered an alteration involving a change in his practical or business affairs or condition resulting in actual and temporal damage -

so there is no, if I can call it, in any case, reliance detriment suffered by the respondent as has been found as a fact in relation to the third promise.

TOOHEY J:   Mr Fajgenbaum, could I just ask you this please?  From some of the submissions you have made to date it would seem that the applicants acknowledge some entitlement to relief on the part of the respondent.  Is that a fair inference to draw from what you have been saying?

MR FAJGENBAUM:   It may be that the applicant is entitled to the relief that the learned trial judge granted him, yes, in terms of an ‑ ‑ ‑

TOOHEY J:   That is hardly a concession, I suppose.

MR FAJGENBAUM:   Well, I have difficulty with that, your Honour, because ‑ ‑ ‑

TOOHEY J:   You spoke in answer to a question asked by the Chief Justice of the charge, for instance ‑ ‑ ‑

MR FAJGENBAUM:   I would find difficulty for myself in resiling from the proposition that there is an expectation that he was entitled to the house and the curtilage about it, yes, on a basis similar to that of - proprietary estoppel - Ramsden v Dyson, Dillwyn v Llewelyn.

TOOHEY J:   Was, before the trial judge or before the Court of Appeal - or before the Full Court, was any concession of that nature or of any nature at all made in relation to the claim being made?

MR FAJGENBAUM:   I do not think so because there was a cross‑appeal by the applicants.  My clients in the Full Court seemed to have that measure of relief granted by Mr Justice Nicholson set aside and they failed.

TOOHEY J:   Yes, thank you.

MR FAJGENBAUM:   And the final special leave point that, with respect, did arise in this case is is this simply a case of a mere failure to fulfil a promise?  There was nothing more than the simple promise to convey the land.  There was no additional features such as those that might have been discussed in Walton’s....., a promise that the contract will come into being or there was nothing additional, being that which is sued upon, being a representation that, “I will honour my contract, don’t worry about it”.  The representation that is founding the cause of action, primarily put in contract although ultimately in equity, was a promise to convey the land.  The unenforceable, perhaps, non-existent contractual promise.  And, with respect, the case is much more similar in this regard to the Hong Kong case of Humphreys Estate.

And one can say this, that the failure to fulfil a promise itself does not amount to unconscionable conduct, that here is a case of mere reliance on the executory promise to do something resulting in the promisee changing his position.  And that, as was said by the Chief Justice Justice Mason and Justice Wilson in Walton’s Stores, does not bring promissory estoppel into play.  So there is another special leave point, with respect.  What is the addition to the unenforceable contractual promise, as it were, that is necessary to bring doctrines into play. 

And, finally, your Honours, we say the special leave point provides this Court with an opportunity to bring the doctrines of promissory estoppel and constructive trus,t to the extent they are both founded on unconscionable conduct, into alignment and to settle whether one remedy ‑ ‑ ‑

BRENNAN CJ:   What do you mean by “into alignment”?  If they are distinct doctrines, they remain distinct doctrines.

MR FAJGENBAUM:   Some of the text writers, with respect, have noticed an overlapping of them, in the latest edition of Meagher, Gummow and Lehayne, for example, in their chapter on promissory estoppel.  There seems to be, according to their discussions, an overlap between the two doctrines and here we have an opportunity, if unconscionable conduct does not work in this case because of the lack of a joint endeavour or, for other reasons, promissory estoppel does work, should the measure of relief in the second case, judged by reference to the unconscionability of the conduct, be more extensive than that which would be available under the doctrine of constructive trust, if that were otherwise available.  They are the submissions for the applicants, if the Court pleases.

TOOHEY J:   Yes, thank you, Mr Fajgenbaum.  Mr McCusker?

MR McCUSKER:   May it please the Court, it is our submission that the court below did not err in principle, and that there is no new issue of principle that arises which would warrant the grant of special leave in this case.  Could I start by referring the Court to the finding of the trial judge, which was relied upon and adverted to by the Full Court, which appears at page 26 of the appeal book, starting at line 40, where the trial judge said, having reviewed the evidence relating to the second and third promises:

I am satisfied that the defendants induced the plaintiff to adopt the expectations in the second and third promises, the plaintiff acted in reliance on them; was intended so to do by the defendants; and that the defendants did not act to fulfil the assumption or expectation.  In the case of the second promise reliance is established by the expenditure of the plaintiff’s money and labour on the building of the  house -

and pausing there, your Honours, that was all that was promised in the second promise, that he would have the house -

and in the case of the third promise the reliance is shown by the plaintiff’s rejection of the job offer, his return to the property and, it is claimed, his work in establishing the new orchard.  There remains then the element of detriment.

The establishment of the new orchard - quite extensive evidence was given that, included in what has been described as “the promised lot” in the minimalist approach to that definition - included was an area of approximately 15 acres on which the plaintiff, the present respondent, had worked for a long time in establishing a new orchard; worked, indeed, laboriously seven days a week in the expectation, which was repeated to him by way of the promise that his parents made, that this lot would be his.

It is true, on the question of uncertainty, that there was no precise definition of where the boundary line would be, but what was promised to him was a lot which would contain the house and the orchard.  The Full Court, with respect, has taken an equitable and, indeed, sensible approach by its order that would have “the promised lot” with a southern boundary at the closest point to the house that was possible, given the requirements of the authorities, running from east to west.

Your Honours, taking what the learned trial judge said there, what the Full Court held on appeal was, where he later went on to consider the question of detriment, he had taken too narrow a view of what constitutes detriment and, indeed, looking, in particular, at the question of detriment arising from his work on the orchard - his establishing a new orchard on the lot which he understood and had promised would be his - the learned trial judge said there is no detriment there, because the expectation also was that he, as a member of the partnership, would benefit from the ultimate fruits of his labours.

Whilst that is true, as the Full Court pointed out, there was no security of tenure to him, and it was for that very reason that, before commencing work on this establishment of the orchard, he have the assurance, on which he relied, that the promised lot would be his.  Had it not been for that, he would not have gone ahead.

Similarly, his rejection of a job offer, although there was no evidence as to the disparity of any between what he would have got by alternative employment and what he got or might have got from the partnership of which he remained a member, the fact remains that he forwent an alternative career choice which he wanted to take but which he was persuaded not to take, together with an offer from his father‑in‑law then as to alternative accommodation.

Coming to the question of principle, your Honours, could I refer your Honour to what your Honour Chief Justice Brennan said at page 416 of Waltons Stores which appears at page 95 of the bundle of authorities, starting at the second full paragraph your Honour referred to:

An equitable estoppel is binding in conscience on the party estopped,  and it is to be satisfied by that party doing or abstaining from doing something in order to prevent detriment to the party raising the estoppel which that party would otherwise suffer by having acted or abstained from acting in reliance on the assumption or expectation which he has been induced to adopt.  Perhaps equitable estoppel is more accurately described as an equity created by estoppel.

Your Honour went on to refer to a case as illustrative of the point, Chalmers v Pardoe (1963) 1 WLR 677 and referred there with approval to what Sir Terence Donovan, speaking for the Privy Council, said. That concerned a case which had some remarkable similarities to the present and in that case Sir Terence Donovan said, in the second paragraph quoted:

There can be no doubt upon the authorities that where an owner of land has invited or expressly encouraged another to expend money upon part of his land upon the faith of an assurance or promise that that part of the land will be made over to the person so expending his money, a court of equity will prima facie require the owner by appropriate conveyance to fulfil his obligation -

Now it is true, as my learned friend, Mr Fajgenbaum, has said that equity will only make an order which is commensurate with the degree, as it were, of detriment that would otherwise be suffered but he conceded, indeed it has been said many times, that it may be in the appropriate case that the only way that the detriment can be avoided or dealt with is by a conveyance of the land on which the party suffering the detriment has relied, that is, he has relied upon a promise of that conveyance and has expended money and, of course, here time and labour and effort in the expectation which was repeated to him that he would ultimately be the owner of the promised lot.

On the question, your Honour, of principle therefore, it is our submission that the court below did not err, that they correctly viewed what his Honour Justice Nicholson said at first instance regarding detriment as being too narrow a view and, indeed, that it was unnecessary to establish detriment in the sense that his Honour Justice Nicholson put it.  The case was primarily argued at first instance and on appeal on the question of whether there was a promise at all and, if so, whether there was unconscionability.

The question of the nature of the remedy, if there was a promise, and unconscionability giving rise to an equity was not dealt with in any detail at all by the applicant.  The argument or the thrust of it was not that if there was a remedy it should be limited to a particular, for example, charge assessed by reference to the value of the respondent’s efforts, the thrust of the argument was all directed to the question of whether there was a promise at all and, if so, whether it would be unconscionable not to provide a remedy or relief.

On the question of section 34 of the Property Law Act and the application of the statute of frauds, which has been raised by my learned friend as an additional special leave point, the argument that my learned friend would seek to raise was one which was expressly rejected by this Court in Bahr v Nicolay.  I refer your Honours to page 75 of the volume.  It starts, in fact, at the foot of page 74, which is page 655 of the report of Bahr v Nicolay, dealing with a question of the application of section 34 of the Property Law Act, where the undertaking from which the constructive trust originates is found in an oral collateral agreement.  Your Honour Chief Justice Brennan referred at the top of page 656 to what Lord Justice Scott held in Bannister v Bannister:

that it presents no obstacle to the imposition of a constructive trust in cases where the constructive trust has its origin in an oral agreement.

That approach, your Honours, was also taken by the other members of the Court in rejecting the proposition that the statute of frauds or section 34 of the Property Law Act would be a bar to the relief which was sought, based on whether it be a constructive trust or equitable estoppel.  Section 34(2), of course, of the Property Law Act of Western Australia expressly excludes constructive trusts from its ambit in any event.  Justice Deane, in ‑ ‑ ‑

BRENNAN CJ:   But there is this distinction, is there not, in the Bahr v Nicolay situation?  In the Bannister v Bannister kind of case you have got an express promise which is susceptible of specific performance were it only in writing.  In other words, questions of uncertainty or evaluation of unconscionable conduct do not arise.  All that one is concerned with is the fact that there is not a contract in writing in compliance with the statute.  Then, says equity, you cannot rely on that if in conscience you must obey the oral agreement that has been made.  Here, it is not quite the same situation, is it?

MR McCUSKER:   Here, your Honour, there is an express promise - and that has been found - an express promise to convey a lot by subdividing the whole of the area of which the lot, the promised lot, would form less than a third.  The promise was to convey to the respondent a lot on which the house and the orchard which he developed stood.  It is appreciated that that is not a definition which is precise but it is one, in our respectful submission, which is met and is capable of determination by the minimalist approach which the Full Court took; that is you cannot get any more than is adequate to meet that promise.  Such a promise would carry with it the implication that the subdivided lot would be one which met with the approval of the State Planning Commission.  That is why the Full Court put it in those terms:  a boundary line as close to the house as would be permitted in order to obtain planning permission.  So although there might

appear to be some uncertainty, it is not in truth, on analysis, an uncertainty about it. 

The question of unconscionability has been dealt with by the judge at first instance and by all members of the Court of Appeal who all held, with respect, we would submit, with clear reason for doing so, that for the applicant to refuse to convey the promised lot to the respondent would be unconscionable by reason of the acts of reliance on the part of the respondent.

That being so, there is no issue raised as to whether or not there is unconscionability or no issue with respect could be raised as a special leave point because the acts relied upon were clearly acts which would give rise to unconscionability in the event that the promise was not fulfilled.  I do not know if I have adequately addressed your Honour the Chief Justice’s question in relation to section 34.

BRENNAN CJ:   Yes.

MR McCUSKER:   But, his Honour Justice Ipp in the court below at pages 84 to 85 of the application book dealt with this question, surveyed the law relating to it and, in our submission, there is no point of distinction between the authorities to which he referred at page 84 to 85 under the heading “Absence of writing and other statutory formalities”, and the present case.

He did not refer there to what all members of this Court said about the non-application of the statute to the equity in Walton Stores but there was a clear and authoritative statement by this Court that the statute has no application to the equity, as your Honour Justice Brennan said at page 433 and Justice Deane at page 445 to 446.  So, the law in this area, in our submission, is well settled and that is that once there is established an unconscionability giving rise to the equity, then the fact that the promise on which reliance has been placed was an oral promise, is no bar to the relief.  Certainly it is no bar to the relief under section 34 of the Property Law Act if a constructive trust is found as was held by the majority in the Full Court.  Your Honours, they are our submissions in reply unless there is anything further.

BRENNAN CJ:   Yes, thank you.  Yes, Mr Fajgenbaum.

MR FAJGENBAUM:   Briefly, if the Court pleases.  With respect, much of the difficulty arises because of the confusion between what I have described as expectation detriment and reliance detriment.  To be sure, there is no doubt that the respondent suffered an expectation detriment.  His expectation that the land would be conveyed, had been frustrated.  But what we submit is that the fulfilment of the expectation in these circumstances is not the necessary measure of equitable relief, it is the reliance detriment.  If we are dealing with unconscionability, the remedy should be coextensive or reflect the measure of unconscionability.  There is, with respect, confusion in the cases between expectation detriment and reliance detriment.

BRENNAN CJ:   But what was done here was that there is a continuing partnership business being carried on on land owned by some of the partners, and one of the partners is induced to return to participate in the work of the partnership on an understanding, as found against your client, that the house and orchard would be transferred.  Now, it is not simply, is it, a question of detriment suffered as the result of returning to perform the work in the partnership, after all, we do not have the partnership account?

MR FAJGENBAUM:   No.

BRENNAN CJ:   But it is a question of joining in the partnership venture, or rejoining the partnership venture, on a footing, namely, that, at the end of the day, he would have the property.

MR FAJGENBAUM:   Yes.

BRENNAN CJ:   Well, now, why is that not the relevant detriment?

MR FAJGENBAUM:   That is a relevant detriment to found, for example, the promissory estoppel that - - -

BRENNAN CJ:   If it was a question of promissory estoppel, but what about constructive trust?  How do you distinguish it from Muschinski v Dodds?

MR FAJGENBAUM:   Because in Muschinksi v Dodds the property ultimately was not found to be held by the legal owners on constructive trust for the co-venturers in equal proportions, but the property in Muschinski v Dodds which was held in the name of both parties to the relationship was found to be held on trust to secure to each of them their contributions to the joint venture and, having regard to what the joint venture was all about, the remainder to be held in trust for them equally. 

In Baumgartner v Baumgartner, where only one of the parties held the legal title, the property was found to be held on constructive trust for the benefit of both parties in proportion to their contributions to the pooling of assets.  They pooled their assets for living expenses and so forth, and there was an agreed ratio of 55 to 45.  It was a constructive trust to secure contributions, not to perfect an understanding that the real estate, the subject of the legal title, was to be held on constructive trust absolutely in any given - for another, or in a particular proportion for another, regardless of contribution to the joint endeavour.

BRENNAN CJ:   But is the son’s return to the partnership here to be regarded as his contribution, which was agreed as between the parties to sound in terms of the division that was promised?

MR FAJGENBAUM:   We do not know, as your Honour said, because the partnership accounts are not before the Court.  But the contribution - - -

BRENNAN CJ:   No, I am not suggesting that.  What I am suggesting is that the arrangement that is made is we take it that your contribution by returning will be adequately met by the allocation of this property to you.

MR FAJGENBAUM:   Well, with respect, the evidence does not go that far.  It was not put on the basis of “Your contribution to the partnership will be rewarded both by partnership returns and by a gift of property.”  Rather, it was “If you come and continue in the partnership, we will ensure that you get a gift of the promised lot.”

BRENNAN CJ:   Does it, then, come down to this, that the special leave point is whether or not the true construction of the facts is that the son returned on the footing that he expected that the promise would be fulfilled, or did he return on the basis that, by joining in the work of the partnership once more, the value of what he had done would be satisfied by the allocation of property?

MR FAJGENBAUM:   With respect, no, your Honour.  We are prepared to accept that the son returned to the partnership on the assumption that he would get the promised lot.  But, the question is ‑ ‑ ‑

BRENNAN CJ:   I think I have occupied your time.  You can take another three minutes if you wish to.

MR FAJGENBAUM:   I am indebted to your Honour.  He returned to the partnership on the assumption that he would get the promised lot.  That has been found.  That expectation was frustrated by his parents, unconscionably, as has been found, but the question then arises as to whether, if it is to be by way of promissory estoppel - the frustration of the expectation is that which founds, or provides the occasion for the operation of the doctrine of estoppel.  It does not provide for the remedy.  With respect, what we say, in contradistinction to what the court below said, was that the remedy is by reference to the detriment suffered as a result of reliance upon the

representation, as your Honour the Chief Justice has said on a number of occasions in the passages to which I took the Court a moment ago.

In relation to the third promise, there is a clear finding by the learned trial judge that there was no reliance detriment.  There was an expectation detriment, of course.  The respondent’s son did not get the promised lot.  The parents did not give it to him but, nevertheless, the learned trial judge found as a fact, and we do not dispute that; nor can it be canvassed on on appeal here, that there was no reliance detriment proved.  Having proved no reliance detriment, with respect, we would submit, in due course, that the measure of relief that has been granted by the Full Court below has gone too far and extends far beyond that which is required by any doctrine of unconscionability which governs both, as it were, promissory estoppel or constructive trust in these circumstances.

Finally, we make the point:  if there is this uncertainty about what was promised to the son, as has been found by the learned trial judge below, do we have a representation that is sufficiently clear to found a promissory estoppel or to found a remedy by way of constructive trust?  With respect, these are a whole range of issues thrown up by this case which warrant the grant of special leave so that many of these hitherto unresolved issues thrown up by cases recently decided by this Court can be further considered.  Unless there are any further submission that I can be of assistance with, they are the submissions for the applicants.  If the Court pleases.

BRENNAN CJ:   Thank you, Mr Fajgenbaum.  Special leave will be granted in this case.

MR FAJGENBAUM:   If the Court pleases.

AT 12.15 PM THE MATTER WAS CONCLUDED