Legal Research
Cases
Harrison v Harrison

Harrison v Harrison

Case [2013] VSCA 170 27 June 2013

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2012 0043

CHRISTOPHER BARTON HARRISON	Appellant
	v
LOUISE HELEN HARRISON & ORS	Respondents

---

JUDGES	HARPER and TATE JJA and GARDE AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	10 April 2013
DATE OF JUDGMENT	27 June 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 170
JUDGMENT APPEALED FROM	Harrison & Ors v Harrison [2011] VSC 459 (Kaye J)

---

ESTOPPEL – Proprietary estoppel – Appellant brother of respondents – Promises by appellant to provide for respondents from bequest to him in their father’s will – Respondents induced not to seek provision under Part IV of the Administration and Probate Act 1958 (Vic) – Appeal on matters of fact – Relief in cases of proprietary estoppel – Moulding relief – Definition of the expectation – Loss of chance – Application of Donis v Donis (2007) 19 VR 577 and Delaforce v Simpson-Cook (2010) 78 NSWLR 483 – Appeal dismissed.

---

Appearances:

Counsel

Solicitors

For the Appellant

Mr D J Higgs SC with

Mr R D Shepherd

Barker & Associates

For the Respondents

Mr R T A Waddell

Beck Legal Pty Ltd

HARPER JA:

I agree with Garde AJA.

TATE JA:

I also agree with Garde AJA.

GARDE AJA:

Background

This is an appeal by Christopher Barton Harrison (‘Christopher’),[1] the son of the late Kenneth Humphrey Harrison (‘Kenneth’) and Joyce Jillian Harrison (‘Jillian’), against orders made on 6 March 2012 in favour of the respondents Louise Helen Harrison (‘Louise’), Sue Elizabeth Harrison (‘Sue’) and Kathryn Jean Harrison (‘Kathryn’). Louise, Sue and Kathryn are daughters of Kenneth and Jillian, and brought a claim against Christopher based on proprietary estoppel concerning a farming property known as ‘Hopefield’ at Pyramid Hill in Northern Victoria.
[1]For ease of identification, the appellant, respondents and other family members are referred to by their first names.

Kenneth died on 17 April 2003. By his will dated 3 December 1998, he appointed Christopher as the executor and trustee of his estate. He devised to Christopher all of his interest in Hopefield, which interest was for probate purposes valued at $3,250,000, and the balance of his estate, valued at $101,000 for probate purposes, to Jillian. On 21 May 2004, Christopher was granted probate of Kenneth’s will. Final distribution of the estate took place on 29 July 2008, when Kenneth’s interest in the farming land was transferred to Christopher.

The Hopefield farm has been in the Harrison family for more than 130 years. It comprises 42 parcels of land, amounting in total to some 15,000 acres. Kenneth had three brothers, Noel, Clifford and John Harrison, each of whom survived Kenneth.

Two of the 42 parcels of land were held by John Harrison in his own name, and four parcels were held by Clifford Harrison. The remaining 36 parcels of land were held, in various combinations of co-ownership, by Kenneth and his brothers, as tenants in common. Despite this combination of ownership, I shall for convenience refer to Kenneth’s interest in the property as ‘Hopefield’, and…

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 Harrison v Harrison

Details

AGLC: Harrison v Harrison [2013] VSCA 170
Case: [2013] VSCA 170
Decision Date: 27 June 2013

CaseChat Overview and Summary

In the matter of Harrison v Harrison, the dispute arose between siblings, with the respondents seeking relief based on proprietary estoppel. The respondents contended that their brother, the appellant, had promised to provide for them from a bequest he received from their father’s will. These promises induced the respondents not to seek provision under Part IV of the Administration and Probate Act 1958 (Vic). The case was heard in the Court of Appeal, which was tasked with addressing several legal issues, including the appropriate relief for proprietary estoppel and the definition of the expectation in these circumstances.

The court examined whether the respondents had a legitimate expectation that the appellant would provide for them from the bequest, and if so, the extent to which this expectation should be satisfied. A significant aspect of the appeal was the nature of the relief in proprietary estoppel cases, particularly the moulding of relief as discussed in Donis v Donis and Delaforce v Simpson-Cook. The respondents argued for a more comprehensive fulfilment of their expectation, whereas the appellant contended that the expectation was too vague to warrant such relief. The court also considered whether the respondents suffered a loss of chance due to their reliance on the appellant’s promises.

The Court of Appeal found that the respondents had indeed been induced by the appellant's promises, and their expectation was sufficiently defined to warrant relief. However, the court held that the expectation did not extend to a comprehensive provision from the bequest, and instead, the relief should be moulded to balance the respondents’ reliance on the appellant’s promises against the appellant’s entitlement to the bequest. The court dismissed the appeal, upholding the lower court’s decision on the facts and the relief granted.

Orders