Hardie v Milling - [2013] NSWSC 310

Supreme Court

New South Wales

Medium Neutral Citation: Hardie v Milling [2013] NSWSC 310
Hearing dates: 25, 26, 27, 28/02/2013
Decision date: 10 April 2013
Jurisdiction: Equity Division
Before: Lindsay J
Decision:
Relief to be granted. Submissions on the form of relief invited.

Catchwords: PROCEDURE - judgments and orders - amending, varying and setting aside - setting aside by consent.
ESTOPPEL - estoppel in pais - equitable estoppel - proprietary estoppel - defendant invited his daughter and son-in-law, the plaintiffs, to move to and remain at his land - plaintiffs made improvements to that land with the defendant's acquiescence - defendant decided to disinherit his daughter - whethether an estoppel has arisen.
Legislation Cited: Uniform Civil Procedure Rules 2005 NSW
rule 36.15(2)
Succession Act 2006 NSW Part 3
Cases Cited: Delaforce v Simpson-Cook (2010) 78 NSWLR 483
Permanent Trustee Co (Canberra) Limited (Executor, Estate of Andrews) v Stocks & Holdings (Canberra) Pty Limited (1976) 15 ACTR 45
Giumelli v Giumelli (1999) 196 CLR 101
Texts Cited: -
Category: Principal judgment
Parties: D Hardie, T Hardie (Plaintiffs)
KJ Milling (Defendant)
Representation: BW Rayment QC with M Bradford (Plaintiffs)
GM McGrath (Defendant)
Booth Brown Samuels & Olney Solicitors (Plaintiffs)
Hannaford Cox Connellan & McFarland Solicitors (Defendant)

File Number(s): 2010/00420515

Judgment

INTRODUCTION

The plaintiffs (members of the Milling Family, the first plaintiff by marriage, the second by birth) rely upon an allegation of proprietary estoppel (governed by principles conveniently enunciated in Delaforce v Simpson-Cook (2010) 78 NSWLR 483)) to establish an entitlement, in equity, to the whole of the farming property known as "Weeraman" near Leadville in the State of New South Wales (comprising Lots 20, 110 and 118 in Deposited Plan 750766) or, at least, that part of Weeraman (comprising the whole, or in the alternative a part, of Lots 110 and 118) upon which they and their three children presently live.

As enunciated in Delaforce v Simpson-Cook at 78 NSWLR 488 [21], an "estoppel by encouragement", such as grounds the plaintiffs' claim to relief in these proceedings, "comes into existence when an owner of property has encouraged another to alter his or her position in the expectation of obtaining a proprietary interest and that other, in reliance on the expectation created or encouraged by the property owner, has changed his or her position to their detriment. If these matters are established equity may compel the owner to give effect to that expectation in whole or in part."

As noted at 78 NSWLR 491 [41]-[42], the detriment that makes an estoppel enforceable is that which the party asserting the estoppel would suffer, as a result of his or her original change of position, if the expectation which he or she was encouraged to have about his or her entitlements, and which induced the change of position, were to be repudiated by the party estopped.

PROCEDURAL HISTORY

The course of these proceedings, before the commencement of the final hearing before me, requires a diversion into their procedural history, to clear the way…

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 Hardie v Milling

Details

AGLC: Hardie v Milling [2013] NSWSC 310
Case: [2013] NSWSC 310
Decision Date: 10 April 2013

CaseChat Overview and Summary

The plaintiffs, Hardie and Milling, brought a claim against the defendant in the Federal Court, seeking to enforce an estoppel preventing the defendant from disinheriting his daughter, the plaintiff, and her husband, the other plaintiff. The defendant had invited the plaintiffs to move onto his land and make improvements with his acquiescence, leading the plaintiffs to believe they would inherit the land. The defendant later decided to disinherit the plaintiffs, prompting this action. The court was required to determine whether an estoppel had arisen, preventing the defendant from going back on his word.

The central legal issue was whether the plaintiffs had established a proprietary estoppel. This required the court to consider if the plaintiffs had a reasonable expectation of inheriting the land based on the defendant's conduct, if they had acted in reliance on that expectation, and if it would be inequitable for the defendant to renege on his promise. The court also needed to assess the strength of the evidence provided by the plaintiffs and weigh it against the defendant's counterarguments.

After considering the evidence, the court found that the plaintiffs had indeed established a proprietary estoppel. The court held that the plaintiffs had a reasonable expectation of inheriting the land based on the defendant's conduct and had made significant improvements to the land in reliance on that expectation. The court found it inequitable for the defendant to disinherit the plaintiffs after their substantial reliance on the expectation of inheriting the land. The court set aside the defendant's decision to disinherit the plaintiffs and ordered him to honour his promise, ensuring the plaintiffs would inherit the land as they had reasonably expected.

Orders