Helmers v Como - [2014] WASC 394

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: HELMERS -v- COMO [2014] WASC 394

CORAM: ACTING MASTER GETHING

HEARD: 21 OCTOBER 2014

DELIVERED : 31 OCTOBER 2014

FILE NO/S: CIV 1517 of 2013

BETWEEN: HELGAEVA HELMERS
Plaintiff
AND
MICHAEL BERND COMO
First Defendant
REGISTRAR OF TITLES
Second Defendant
COMMISSIONER OF TITLES
Third Defendant

Catchwords:

Summary judgment application by defendant to a counterclaim - Promissory estoppe1 - Proprietary estoppel - Issue estoppel

Legislation:

Rules of the Supreme Court 1971 (WA), O 14, O 20 r 19
Transfer of Land Act 1893 (WA), s 138C

Result:

Application dismissed

Category: A

Representation:

Counsel:

Plaintiff:     Mr A J Aristei
First Defendant             :     Mr C Stokes
Second Defendant         :     Not applicable
Third Defendant           :     Not applicable

Solicitors:

Plaintiff:     Corser & Corser
First Defendant             :     Chris Stokes & Associates
Second Defendant         :     Not applicable
Third Defendant           :     Not applicable

Case(s) referred to in judgment(s):

Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552
Anderson v Effexseven (1998) 10 ANZ Ins Cas 61‑424
Ansearch Ltd v Wavtech Pty Ltd [2006] WASC 184
Australian Can Co Pty Ltd v Levin & Co Pty Ltd [1947] VLR 332
Australian Crime Commission v Gray [2003] NSWCA 318
Australian Goldfields NL (in liq) v North Australian Diamonds NL [2009] WASCA 98
Bashford v Bashford [2008] WASC 138
Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256
Blair v Curran [1939] HCA 23; (1939) 62 CLR 464
Burton v The Shire of Bairnsdale [1908] HCA 57; (1908) 7 CLR 76
Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853
Commonwealth of Australia v Albany Port Authority [2006] WASCA 185
Como v Helmers [2011] WASC 179
DP World Australia Ltd v Fremantle Port Authority [2009] WASCA 16
Effem Foods Pty Ltd v Trawl Industries of Australia Pty ltd (in liq) (1993) 43 FCR 510
Eng Mee Yong v Letchumanan [1980] AC 331
Fairworld Holdings Pty Ltd v Burrup Fertilisers Pty Ltd [No 3] [2012] WASC 190
Fremantle Port Authority v DP World Australia Ltd [2007] WADC 202
General Steel Industries Inc v Commissioner for Railways NSW [1964] HCA 69; (1964) 112 CLR 125
Giumelli v Giumelli (1996) 17 WAR 159
Harrison v Harrison [2011] VSC 459
Hospitals Contribution Fund of Australia v Hunt (1983) 44 ALR 365
Hunter v Chief Constable of the West Midlands Police [1982] AC 529
Jackson v Goldsmith [1950] HCA 22; (1950) 81 CLR 446
Joseph Lynch Land Co Ltd v Lynch [1995] 1 NZLR 37
Kimberley Downs Pty Ltd v State of Western Australia (Unreported, WASC, Library No 6414, 25 August 1986)
Kuligowski v Metrobus [2004] HCA 34; (2004) 220 CLR 363
Lill v Merchant Capital (WA) Ltd (1996) 15 WAR 536
Lois Nominees Pty Ltd v QBE Insurance (Australia) Ltd [2011] WASC 208; (2011) 42 WAR 75
Miles v Bull [1969] 1 QB 258
Mondo Di Carne Pty Ltd v David Partridge Pty Ltd [2006] WADC 161
National Australia Bank v McCourt [2010] WASC 237
Neilson v City of Swan [2006] WASCA 94
Northern Star Agriculture Pty Ltd v Morgan and Banks Developments Pty Ltd (2007) 13 BPR 24.163
Prestige Property Services Pty Ltd v Madzoski [2008] WASCA 58
Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251
Silovi Pty Ltd v Barbaro (1988) 13 NSWLR 466
The Bell Group Ltd (in Liq) v Westpac Banking Corporation [2008] WASC 239; (2008) 39 WAR 1
WA Country Builders Pty Ltd v Premium Coastal Property Pty Ltd [2012] WASC 236
Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378
Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7; (1988) 164 CLR 387
Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598
Westpac Banking Corporation v The Bell Group Ltd (in liq) [No 3] [2012] WASCA 157; (2012) 44 WAR 1
Williams v Tedcastle [1994] 1 NZLR 85
Wyatt v MR & RC Smith Pty Ltd [2008] WASCA 55

ACTING MASTER GETHING: The plaintiff, Ms Helmers, and the first defendant, Mr Como, are brother and sister. They were born in Germany; Ms Helmers in 1942 and Mr Como in 1946. In 1949 Mr Como and Ms Helmers emigrated to Australia with their mother, Alice Rose Emme, and her then husband. Ms Helmers returned to Germany in 1967 and has resided there since that time.
In 1954 Ms Emme and her then husband purchased land situated at 125 Coode Street, South Perth ('South Perth Property'). Following her divorce in 1963 Ms Emme became the sole registered proprietor of the South Perth Property. Ms Emme resided at the South Perth Property until about 2007 when she relocated to a nursing home. She passed away on 30 September 2009. She remained the registered proprietor of the South Perth Property at the time of her death. By a will made on 16 May 1982, Ms Emme appointed Ms Helmers sole executrix of her estate and bequeathed all of her property of 'whatsoever nature and wheresoever situated' to Ms Helmers. Probate of the will was granted to Ms Helmers on 30 December 2009. She subsequently transferred the South Perth Property into her own name.
Mr Como continued to reside in Perth, caring for his mother. He asserts that on a number of occasions Ms Helmers promised to transfer the South Perth Property to him on the death of their mother, Ms Emme. He says that this promise was made before Ms Emme's death, and repeated after it.
In around March 2011 it seems that relations broke down between Mr Como and Ms Helmers. In March 2011 Mr Como lodged a caveat over the South Perth Property to protect a proprietary interest which he asserted arose out of the promise made by Ms Helmers. Ms Helmers challenged the caveat, and Mr Como was not able to sustain it pursuant to the process set out in Transfer of Land Act 1893 (WA) ('TLA') s 138C. The decision of Corboy J on this issue is reported as: Como v Helmers [2011] WASC 179.
In addition to the South Perth Property, Ms Helmers is the registered proprietor of a property in Waterford and a property in Collie. Mr Como alleges that he is the beneficial owner of these properties. Ms Helmers has commenced an action to resolve this issue, being the present action, bearing the Supreme Court action number CIV 1517 of 2013 ('First Action').
It also appears that between July 2009 and June 2010 Mr Como deposited an amount of approximately $500,000 into an account in Ms Helmers' name with the Commonwealth Bank. In the First Action, Ms Helmers also seeks a declaration that she is entitled to this money. Mr Como has commenced a separate action in relation to this money, bearing Supreme Court action number CIV 1347 of 2013 ('Second Action'). In the Second Action, Mr Como seeks return of the money pursuant to an agreement by which Ms Helmers agreed to allow him to use the Commonwealth Bank account in her name.
Mr Como has lodged a substantial counterclaim in the First Action, dated 30 June 2014 ('Counterclaim'). In the Counterclaim, Mr Como pleads an estoppel based on Ms Helmers' promise to transfer the South Perth Property to him on the death of their mother.
The First Action and the Second Action are listed for trial for five days commencing 9 February 2015. The two actions are listed for trial concurrently with the evidence in each action standing as the evidence in the other. On 8 August 2014, whilst sitting as a case managing Registrar, I made detailed orders programming the two actions to trial. I also ordered the parties to attend a mediation conference pursuant to the Supreme Court Act 1935 (WA) pt VI shortly prior to the trial.

Ms Helmers' application

By application dated 31 July 2014, Ms Helmers sought orders that pars 75 ‑ 94 of the Counterclaim be struck out, or alternatively, that summary judgment be entered for her against Mr Como on the issues in the offending paragraphs. Paragraphs 75 ‑ 94 of the Counterclaim contain Mr Como's pleading that Ms Helmers made certain representations to him about the South Perth Property which she should be estopped from denying ('Estoppel Pleadings'). The facts pleaded in the Estoppel Pleadings have essentially the same factual basis as was considered by Corboy J in Como.
Counsel for Ms Helmers advanced three arguments:
(a)the Estoppel Pleadings ought to be struck out as being frivolous and vexatious, or as an abuse of the processes of the court, as they seek to plead the same issues considered and rejected by Corboy J in Como in circumstances in which Mr Como is estopped from doing so;
(b)the Estoppel Pleadings disclose no reasonable cause of action and ought to be struck out; and
(c)that summary judgment ought to be entered against Mr Como in relation to the Estoppel Pleadings.
It is convenient for the purposes of the analysis which I have undertaken to commence with the second of these arguments.

Do the Estoppel Pleadings disclose no reasonable cause of action?

A pleading 'must contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for his claim … but not the evidence by which those facts are to be proved, and the statement must be as brief as the nature of the case admits': Rules of the Supreme Court 1971 (WA) (RSC) O 20 r 8(1). If the statement of claim does not contain all the material facts necessary to establish the cause of action, the Court may strike out the statement of claim on the ground that 'it discloses no reasonable cause of action': RSC O 20 r 19(1)(a). No evidence is admissible on this application: RSC O 20 r 19(2)
When considering whether to strike out a statement of claim as disclosing no reasonable cause of action:
(a)as a general rule, a party is entitled as of right to have his or her case heard, to have the facts found and then to argue the question of law as it arises before the trial judge upon the facts as found;
(b)all the facts alleged in the pleading must be accepted as true;
(c)the rule is intended to apply only to cases which are really not arguable;
(d)argument, even extensive argument, may be necessary to demonstrate that the case pleaded is so clearly untenable that it cannot possibly succeed;
(e)great care must be exercised to ensure that a party is not improperly deprived of his or her opportunity for the trial of the case by the appointed tribunal; and
(f)it is only in cases in which it can be seen from the outset that, however the facts be found, there is no basis for the legal conclusion contended for by the party that the pleading should be struck out.
General Steel Industries Inc v Commissioner for Railways NSW [1964] HCA 69; (1964) 112 CLR 125, 130 (Barwick CJ); Kimberley Downs Pty Ltd v State of Western Australia (Unreported, WASC, Library No 6414, 25 August 1986) (Master Staples); Neilson v City of Swan [2006] WASCA 94 [18] (Buss JA with whom Wheeler and Pullin JJ agreed); Fairworld Holdings Pty Ltd v Burrup Fertilisers Pty Ltd [No 3] [2012] WASC 190 [26] (Allanson J).
Counsel for Ms Helmers drew a distinction between the representations said to have been made before Ms Emme died and those made after she died. In relation to the representations made before Ms Emme died, it was submitted that these could not provide the foundation for a proprietary estoppel as Ms Helmers did not own the property in question at that time (being the South Perth Property). He referred to a number of cases as authority for the proposition that a proprietary estoppel can only be asserted against the owner of property at the time the representations in issue are made, which are conveniently summarised in the decision of Kaye J in Harrison v Harrison [2011] VSC 459 [362] ‑ [371], in particular [364].
In relation to both the representations made by Ms Helmers before Ms Emme died and those made by her after Ms Emme died, counsel for Ms Helmers submitted that the pleaded representations were too vague to constitute an estoppel and, in any event, were not, in fact, relied on by Mr Como.
Counsel for Mr Como submitted that I did not need to determine whether the facts in the Estoppel Pleadings gave rise to a reasonable cause of action in proprietary estoppel, as, in his submission, the facts give rise to a reasonable cause of action in promissory estoppel, and it is sufficient to survive a strike out application that a reasonable cause of action is identified. It will then be an issue for trial as to whether the Estoppel Pleadings also disclose a cause of action in proprietary estoppel, which may lead to stronger or more extensive remedies being available to Mr Como.
I agree with the submission made on behalf of Mr Como. A pleading is only to be struck out if it discloses no reasonable cause of action.
For the purposes of determining a strike out application, it is sufficient for me to refer to the oft cited summary of the elements of promissory estoppel from the decision of Brennan J in Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7; (1988) 164 CLR 387:
In my opinion, to establish an equitable estoppel, it is necessary for a plaintiff to prove that (1) the plaintiff assumed that a particular legal relationship then existed between the plaintiff and the defendant, or expected that a particular legal relationship would exist between them and, in the latter case, that the defendant would not be free to withdraw from the expected legal relationship; (2) the defendant has induced the plaintiff to adopt that assumption or expectation; (3) the plaintiff acts or abstains from acting in reliance on the assumption or expectation; (4) the defendant knew or intended him to do so; (5) the plaintiff's action or inaction will occasion detriment if the assumption or expectation is not fulfilled; and (6) the defendant has failed to act to avoid the detriment whether by fulfilling the assumption or expectation or otherwise (428 ‑ 429).
This formulation was adopted by Corboy J in Como [85]. See also The Bell Group Ltd (in Liq) v Westpac Banking Corporation [2008] WASC 239; (2008) 39 WAR 1 [3535] ‑ [3549] (Owen J); Silovi Pty Ltd v Barbaro (1988) 13 NSWLR 466, 472 (Priestley JA, with whom Hope and McHugh JJA agreed).
These elements are seen in the Counterclaim, in the following pleas:
(a)Mr Como expected that a particular legal relationship would exist between himself and Ms Helmers, namely an agreement to transfer the South Perth Property to him on the death of Ms Emme (Counterclaim [79] ‑ [82], [88], [89]);
(b)Ms Helmers induced Mr Como to adopt the expectation (Counterclaim [83], [89]);
(c)Mr Como both acted, and abstained from acting, in reliance on the expectation (Counterclaim [86], [92]);
(d)Ms Helmers knew or intended him to do so (Counterclaim [84], [90]); and
(e)Ms Helmers has failed to act to avoid the detriment whether by fulfilling the expectation or otherwise (Counterclaim [94]).
The self‑evident detriment is that Mr Como has not received either the South Perth Property or the proceeds of its sale.
In his supplementary submissions, counsel for the plaintiff was critical of the Counterclaim for not containing a specific plea to the effect that it would be unconscionable for Ms Helmers to depart from the representations she is said to have made. However, it is a moot point as to whether the facts set out in the paragraphs of the Counterclaim identified in [19] above lead to the legal conclusion that the conduct of Ms Helmers was unconscionable, or whether this should be explicitly pleaded. I do not regard the law on this point as being sufficiently settled to strike out a pleading which adopts the former rather than the latter course.
The remedies claimed by Mr Como in relation to the South Perth Property are:
(a)a declaration that he was the beneficial owner of the property;
(b)a declaration that Ms Helmers holds the sale proceeds of the property on a constructive or resulting trust for him;
(c)alternatively to (b), a declaration that Ms Helmers is liable to account to him for the sale proceeds of the property; and
(d)an order that Ms Helmers pay him the sale proceeds of the property or such other sum as the court thinks fit.
The suite of remedies sought reflect claims in both promissory estoppel and proprietary estoppel, see generally: Giumelli v Giumelli (1996) 17 WAR 159, 168 (Ipp J with whom Franklyn J agreed).
Accepting all the facts alleged in the Counterclaim to be true, I am not satisfied that the plea of promissory estoppel in relation to the South Perth Property and the proceeds of its sale is so clearly untenable that it cannot possibly succeed. This is not a case in which it can be seen from the outset that, however the facts be found, there is no basis for the legal conclusion contended for by Mr Como. Accordingly, Ms Helmers has not satisfied me that it is appropriate to strike out the Estoppel Pleadings as disclosing no reasonable cause of action.
I am conscious that the precise scope of the doctrine of promissory estoppel remains unsettled - see, for example: Westpac Banking Corporation v The Bell Group Ltd (in liq) [No 3] [2012] WASCA 157; (2012) 44 WAR 1 [1738] ‑ [1768] (Drummond AJA); Robertson A, (2013) 7 Journal of Equity 226, 'Three models of promissory estoppel'. However, to the extent that this uncertainty may go against Mr Como, I ought to allow the case to proceed to trial and not seek to resolve the issues on a summary basis. A court should be careful not to risk stifling the development of the law by summarily disposing of actions where there was a reasonable possibility that, as the law develops, it will be found that a cause of action and remedy lies: Hospitals Contribution Fund of Australia v Hunt (1983) 44 ALR 365, 373 ‑ 374 (Master Allen); Neilson [18]; Lois Nominees Pty Ltd v QBE Insurance (Australia) Ltd [2011] WASC 208; (2011) 42 WAR 75 [35] (Beech J).

Is Mr Como estopped from making the claim set out in the Estoppel Pleadings?

Ms Helmers claims that Mr Como is estopped from making the Estoppel Pleadings on the basis of an issue estoppel arising out of the decision of Corboy J in Como.
The doctrine of issue estoppel was explained by Dixon J in Blair v Curran [1939] HCA 23; (1939) 62 CLR 464 in the following terms:
A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared. The distinction between res judicata and issue-estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order (531 ‑ 532).
The doctrine of issue estoppel is based on three principles of public policy: the need for judicial decisions to be final, binding and conclusive; the need to avoid an individual suffering the injustice that would occur if he or she were required to litigate matters afresh which have already been determined by a court; and the need for decisions of courts, unless set aside or quashed, to be accepted as incontrovertibly correct: Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251, 273 ‑ 274 (Deane and Gaudron JJ).
Given the public policy underpinnings of issue estoppel, where a party is estopped from denying certain facts due to the existence of an issue estoppel, a pleading containing those facts is liable to be struck out pursuant to RSC O 20 r 19(1)(d) as being an abuse of the processes of the court: Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378, 393 (Mason CJ, Deane & Dawson JJ); Hunter v Chief Constable of the West Midlands Police [1982] AC 529, 536 (Lord Diplock); Commonwealth of Australia v Albany Port Authority [2006] WASCA 185 [20] (Steytler P). The extent of the issue estoppel may also be sufficient to make it appropriate for the court to grant summary judgment to the party claiming the benefit of the estoppel - see, for example, Fremantle Port Authority v DP World Australia Ltd [2007] WADC 202; DP World Australia Ltd v Fremantle Port Authority [2009] WASCA 16 (though on the facts, summary judgment was not granted).

In order for an issue estoppel to arise, three requirements must be established being that:
(a)the same question has been decided;
(b) the judicial decision which is said to create the estoppel was final; and
(c)the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.
See generally: Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853, 935 (Lord Guest); Kuligowski v Metrobus [2004] HCA 34; (2004) 220 CLR 363 [21] (Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan & Heydon JJ); Wyatt v MR & RC Smith Pty Ltd [2008] WASCA 55 [38] (Buss JA, with whom Wheeler and Pullin JJA agreed); Prestige Property Services Pty Ltd v Madzoski [2008] WASCA 58 [42] (Pullin JA, with whom Wheeler J agreed), [60] (Buss JA).
In the present application, the third element is not in issue, only the first two.
Ordinarily, an issue estoppel should be raised by pleading: Effem Foods Pty Ltd v Trawl Industries of Australia Pty ltd (in liq) (1993) 43 FCR 510, 519 (Northrop & Lee JJ). Ms Helmers has not yet filed a defence to the Counterclaim. The significance for present purposes is that I am considering the issue estoppel in an interlocutory context, either to strike out the Estoppel Pleadings as an abuse of process or grant summary judgment on this point. The general principles in relation to summary determination apply. In particular, before preventing Mr Como from raising this issue at trial, I am required to have the high degree of certainty about the ultimate outcome of the case required by the High Court in Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552, where Gaudron, McHugh, Gummow and Hayne JJ observed:
It is, of course, well accepted that a court whose jurisdiction is regularly invoked in respect of a local defendant (most often by service of process on that defendant within the geographic limitations of the court's jurisdiction) should not decide the issues raised in those proceedings in a summary way except in the clearest of cases. Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways … but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way [57]. (citations omitted)
These observations were adopted in Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256 [46] (Gleeson CJ, Gummow, Hayne & Crennan JJ).
In relation to the first element, the doctrine of issue estoppel is concerned not only with findings of fact or decisions of law expressly declared in a judgment or order, but to any 'matter which it was necessary to decide and which was actually decided as the groundwork for the decision itself': Blair (532); Prestige Property [41], [63]. A 'critical step, therefore, is to identify the issue of fact or law which is said to be involved in the earlier decision': DP World Australia [57] (Newnes AJA, with whom McLure JA agreed). In making this determination, the court may examine the record of the first set of proceedings, including the reasons for decision, for the purpose of identifying the issues of fact and of law that were raised and determined in those proceedings: DP World [58]; Wyatt [39]; Prestige Property [60]; Jackson v Goldsmith [1950] HCA 22; (1950) 81 CLR 446, 467 (Fullagar J); Rogers (263) (Brennan J).
The decision made by Corboy J in Como was whether to extend the operation of a caveat pursuant to the TLA s 138C. Central to the exercise of this power is a finding as to whether the caveator's claim 'has or may have substance'. The Court if 'not satisfied that the caveator's claim has or may have substance, shall dismiss the application': the TLA s 138C(2)(b).
In Bashford v Bashford [2008] WASC 138, Beech J summarised the relevant principles relating to the exercise of the power in the TLA s 138C in the following terms [42] ‑ [49]:
Section 137 of the Transfer of Land Act 1893 (WA) enables a person who claims 'any estate or interest' in land to lodge a caveat. By its nature, a caveatable interest must be a proprietary interest in land: Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42, 50.
A caveat is a form of statutory injunction preventing registration of a dealing against land until the caveator has been given a reasonable opportunity to justify the caveat by pursuing such remedies as he or she may have:   J and H Just (Holdings) Pty Ltd v Bank of New South Wales [1971] HCA 57; (1971) 125 CLR 546, 552, 558; Custom Credit (44 ‑ 45); Brogue Tableau Pty Ltd v Binningup Nominees Pty Ltd [2007] WASCA 179; (2007) 35 WAR 27 [68].
Section 138C(2) of the Transfer of Land Act is in the following terms.
'On the hearing of an application under subsection (1), the Supreme Court -
(a)if satisfied that the caveator's claim has or may have substance -
(i)may make an order extending the operation of the caveat for such period as is specified in the order;
(ii)may make an order extending the operation of the caveat until the further order of the court; or
(iii)may make such other orders as it thinks fit concerning the caveat or the land in respect of which the caveat was lodged;
(b)if not satisfied that the caveator's claim has or may have substance, shall dismiss the application; and
(c)may make such ancillary orders in relation to the application as it thinks fit.'
It can be seen that the power of the court to make orders in favour of a caveator arises only if the court is satisfied that the caveator's claim 'has or may have substance'.
The 'caveator's claim' refers to the claim by the caveator of the estate or interest that is claimed in the caveat:   Professional Services of Australia Pty Ltd v Mila Properties Pty Ltd [2004] WASC 30 [17].
On an application for an extension, the onus is on the caveator to demonstrate that there is a serious question to be tried as to whether a caveatable interest exists:   Custom Credit (48); Jandric v Jandric [1999] WASC 22 [5].
In an application for an extension of caveat it is not appropriate to attempt to resolve conflicts of evidence on affidavit:   Porter v McDonald [1984] WAR 271, 276.
The caveat will not be removed unless the claim to an estate or interest in the land appears to be without foundation:   Porter v McDonald (276); Custom Credit (48).
These observations were relied on, and augmented, by Corboy J in National Australia Bank v McCourt [2010] WASC 237 [39], which his Honour relied on in Como [66].
In Como, for present purposes, the relevant decision made by Corboy J was whether Mr Como's claim that he had a proprietary interest in the South Perth Property 'has or may have substance'. In this context, Corboy J reviewed both the claim for proprietary estoppel and the claim for promissory estoppel ([24] ‑ [65], [73] ‑ [92]). His Honour concluded that 'the evidence given by Mr Como does not establish a prima facie case that he acquired an interest in the South Perth Property through an estoppel by encouragement', estoppel by encouragement being an example of proprietary estoppel: Westpac Banking Corporation [1748] (Drummond AJA). Further, as to equitable or promissory estoppel, his Honour did not 'consider that the evidence discloses a case with sufficient prospects of success to justify preserving the status quo by extending the caveat [on the ground] that it would be unconscionable for Ms Helmers to deny that Mr Como has an equitable interest in the South Perth Property …' [92]. Although not expressed in the language of the TLA s 138C, it is clear that His Honour was not satisfied that Mr Como's claim that he had a proprietary interest in the South Perth Property 'has or may have substance'.
It was not necessary for Corboy J to decide whether Mr Como's claim for promissory estoppel to the extent that it did not involve a claim for a proprietary interest in the South Perth Property. Specifically, his Honour observed:
Further, I consider that Mr Como's dealings with Ms Helmers following Ms Emme's death indicate that he has abandoned any claim that he might have possessed to the legal and equitable title to the South Perth property. If he had such a claim (a constructive trust over the property), it was effectively replaced with a claim to the proceeds or part of the proceeds from the sale of the property (a constructive trust over the proceeds). He might be entitled in other proceedings to relief in relation to that claim but it is not a claim to an interest in the title to the property; that is, to a proprietary interest that is capable of being protected by a caveat. The effect of the dealings between Mr Como and Ms Helmers is that it is not unconscionable for Ms Helmers to deny that Mr Como has an interest in the South Perth property (equitable title to the property) even if it is thought that he once possessed such an interest, that the interest arose out of dealings between Mr Como and Ms Emme and that he possesses a claim to the proceeds or part of the proceeds from the sale of the property that can be traced back to his dealings with Ms Emme [83]. (emphasis added)
His Honour further observed in relation to promissory estoppel:
I also consider that any promise or representation made by Ms Helmers that she would transfer the South Perth property to Mr Como was withdrawn and Mr Como accepted that withdrawal, albeit that it is possible that he did so on an understanding that he would receive instead the proceeds or part of the proceeds from the sale of the property. As I have indicated, that might entitle Mr Como to make a claim in respect of the sale proceeds but that is not a claim that is capable of being protected by the Caveat. I do not consider that the evidence discloses a case with sufficient prospects of success to justify preserving the status quo by extending the caveat that it would be unconscionable for Ms Helmers to deny that Mr Como has an equitable interest in the South Perth property having regard to what has occurred since July 2010 [92]. (emphasis added)
As I have already found, Mr Como has a reasonable cause of action for promissory estoppel in relation to the South Perth Property or the proceeds of its sale. That being so, I am in a similar position to that which arose in DP World Australia. Ms Helmers has been unable to identify any issue of fact or law determined in Como which was capable of being a complete defence to the cause of action set out in the Estoppel Pleadings so as to justify the grant of summary judgment: DP World Australia [1] (McLure JA), [70] (Newnes AJA). Put slightly differently, I do not have the high degree of certainty about the ultimate outcome of the case required by the High Court in Agar [57] and Batistatos [46] to justify either striking out the Estoppel Pleading as an abuse of process, or granting Ms Helmers summary judgment in relation to this aspect of the Counterclaim.
I likewise do not have a high degree of certainty as to the outcome on the second element necessary to establish issue estoppel, whether the decision in Como on the application pursuant to the TLA s 138C is a 'final' decision. Counsel for Mr Como drew my attention to two New Zealand authorities in which it was held that applications to remove or to hold a caveat will not ordinarily be regarded as finally determining the rights of the parties: Joseph Lynch Land Co Ltd v Lynch [1995] 1 NZLR 37, 42 (Judgment of the Court); Williams v Tedcastle [1994] 1 NZLR 85, 92 ‑ 94 (Master Kennedy‑Grant). Counsel for Ms Helmers referred to the decision in Northern Star Agriculture Pty Ltd v Morgan and Banks Developments Pty Ltd (2007) 13 BPR 24.163, in which Young CJ in Eq held that, on the facts before the court, an earlier decision on an application for an extension of a caveat was a final decision. However, it is sufficient for present purposes that I consider that the reasoning set out in Joseph Lynch and Williams is at least arguably applicable to an application pursuant to the TLA s 138C. Further, at a couple of points in the decision in Como, Corboy J emphasised the interlocutory nature of the application then before the court, noting that 'it is not possible in an interlocutory application to resolve conflicts in evidence' [49], [50], [82], [88]. Consequently, this issue is also inappropriate to determine on a summary basis.
As I stated above in [32], Ms Helmers has not yet filed a defence to the Counterclaim. It is open to her to plead the issue estoppel arguments raised before me in the defence.

Should summary judgment be entered against Mr Como in relation to the Estoppel Pleadings?

A preliminary issue arises as to whether an application for summary judgment may be brought by a plaintiff who is a defendant to an action brought by counterclaim. RSC O 14 r 6 allows a defendant to seek summary judgment against a plaintiff on a counterclaim. However, there is no express equivalent power in RSC O 16 allowing a plaintiff to seek summary judgment against a defendant on a counterclaim. The power in O 16 to enter judgment for a defendant makes explicit provision for what is, in any event, the court's inherent jurisdiction to protect its processes from abuse by summarily disposing of an action as being frivolous or vexatious where the action is so obviously untenable that it cannot possibly succeed: Burton v The Shire of Bairnsdale [1908] HCA 57; (1908) 7 CLR 76, 92 (O'Connor J). Order 1 r 3A provides that '[t]he inherent power of the court to control the conduct of a proceeding is not affected by the Rules'. An example of where the inherent jurisdiction may be used is where a third party, who cannot rely on O 16, seeks summary judgment against a plaintiff: Mondo Di Carne Pty Ltd v David Partridge Pty Ltd [2006] WADC 161 [31] (Principal Registrar Gething). Accordingly, it has been accepted that the court has the power in its inherent jurisdiction to grant summary judgment to a plaintiff in relation to a counterclaim brought by a defendant: WA Country Builders Pty Ltd v Premium Coastal Property Pty Ltd [2012] WASC 236 [11] (Master Sanderson); Lill v Merchant Capital (WA) Ltd (1996) 15 WAR 536, 550 (Ipp J).
Ms Helmers bears the onus of showing that there is no serious question to be tried on any cause of action raised by Mr Como: Anderson v Effexseven (1998) 10 ANZ Ins Cas 61‑424, 74, 757 (Parker J, with whom Owen J agreed); Lois Nominees [34] (Beech J).
In contrast to an application to strike out a pleading on the ground that it discloses no reasonable cause of action, evidence is admissible on an application for summary judgment. An application for summary judgment is to be determined on the basis that the version of the facts put forward by the party opposing the application, assuming that it is not inherently incredible, would ultimately be accepted at the trial of the action: Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598, 608 (Mason CJ, Deane & Dawson JJ). The court is, however, not bound to accept uncritically as raising a dispute of fact calling for further investigation every statement in an affidavit, however equivocal, lacking in precision or inconsistent with contemporary documents or other statements by the deponent: Ansearch Ltd v Wavtech Pty Ltd [2006] WASC 184 [28] (Master Newnes); Eng Mee Yong v Letchumanan [1980] AC 331, 341 (Reasons of the Court). If after argument there remains real uncertainty as to the applicant's right to judgment without further investigation of the facts, summary judgment must be refused: Ansearch [28]; Australian Can Co Pty Ltd v Levin & Co Pty Ltd [1947] VLR 332, 335 (Herring CJ, Lowe & Fullagar JJ).
As with the submissions in relation to the strike out application, in relation to both the representations made by Ms Helmers before Ms Emme died and those made by her after Ms Emme died, counsel for Ms Helmers submitted that the pleaded representations were too vague to constitute an estoppel and, in any event, were not, in fact, relied on by Mr Como.
I have before me Mr Como's signed witness statement for the trial of the two actions. The parties were content for me to rely on the material set out in this statement in determining the summary judgment application. It is not appropriate for me to undertake a comprehensive review of the evidence which is proposed to be led at trial. It is sufficient to determine the application to refer to the salient parts of Mr Como's statement and some correspondence in 2010.
Mr Como's statement relevantly provides:
118.In March - April 2000 my mother seriously injured her shoulder on a trip to Germany visiting my sister. The injury reduced her capacity to look after herself and her ability to cook, clean and travel any distance on her own. After this accident she always used a walking stick until about 2008, when she needed a Zimmer frame.
119.From about this time onwards I began reducing my consulting geology work hours, and substantially increasing the number of hours I spent looking after my mother. I began preparing her daily lunch and evening meals for her at my home, taking them around to her in a thermal hot box and eating meals with her. I initially organised 'Meals on Wheels' to deliver meals to her daily but very soon found that she simply didn't eat them.
120.From about this time onwards I also took on the responsibility of making sure my mother took her daily medication.
121.My mother first made her promise to leave me the Coode Street home within a year or so of her shoulder injury, and as my care of her increased. I remember her saying that she was going to leave the home to me on her death. From about this time onwards my mother then repeated on a large number of occasions (almost weekly) her promise to leave me her home on her death:
(a)On my regular visits, when we were sitting at the kitchen table having lunch or dinner she said that she was leaving her home to me.
(b)[O]n a number of those occasions my mother said that she had arranged with m y sister to leave the home to my sister in her will and that my sister would transfer it to me after [Ms Emme's] death, to protect me from my former wife.
(c)From about 2002 onwards I took my mother for a walk almost every day around South Perth (apart from the 2 days each fortnight that I spent on the Collie farm). Typically as we were leaving the home or walking back towards the home she almost always asked me 'what will you do with the home after I've gone?' and I would often say, to please her, that 'I will always keep it in the family and never sell it'.
122.My sister was aware of these promises by my mother.
123.In August 2000 my sister made her first visit to Perth in almost 20 years, and thereafter visited Perth almost every year …
124.On those visits while my sister was staying with my mother, I met her nearly every day for lunch or dinner and every evening after dinner I took her out for a coffee and a walk, and to give her a break from our mother. Also, while my sister was in Perth she never hired a car and I drove her around.
125.On one of my sister's first visits to Perth I told her that our mother had said she was going to leave the home to me. My sister said to me words in effect that that was only right because I was looking after our mother and the home.
126.I had a number of other conversations with my sister when she visited Perth in which we discussed the family home:
(a)On one occasion my sister asked me what I was going to do with the home. I recall telling her that one of my proposals was to demolish the 2 garages and build a two‑storey house matching the existing;
(b)On a number of occasions my sister said to me what a good job I was doing caring for our mother and that 'you will be rewarded with the home when she dies'.
(c)On another occasion, in around January 2007 the reticulation bore broke down and I telephoned my sister to discuss the matter. I recall her saying words to the effect 'well, fix it, the home is going to be yours on day. Just give me a quote and tell me how much it will cost'.
(d)On another occasion, in around May 2007, I spoke to my sister by telephone when our mother wanted to leave the RAAF nursing home in [B]ull Creek. My sister asked me: 'Can you take mum home and look after [her] again like you [did] before. You will be rewarded in the end with the house anyway'.
127.On separate occasions on my sister's visits to Perth while our mother was alive my sister also made a specific promise to me to transfer the Coode Street home to me after our mother's death:
(a)On one occasion my sister said that our mother had left the home to her 'to stop your wife … getting her hands on it' and that she (my sister) will transfer the home to me after our mother's death.
(b)On another occasion we were discussing the home and my sister said that she considered our mother's German war widow[']s pension to be her legacy because she had lost her father in the war. My sister said to me that I should never tell [Centrelink] … about the German war widow[']s pension because it would reduce our mother's Australian pension. My sister also said to me that 'seeing I am getting the whole German estate derived from the pension you will get the Australian estate'.
128.I relied on my mother's promises, and my sister's promises, to leave me the Coode Street home after [my mother's] death:
(a)From about 2020 onwards I increased the number of hours I spent looking after my mother and reduced the number of hours working. I have always cared for my mother and would have continued to care for her in any event but in reliance on her promise I devoted most of my time (when I wasn't on the Collie farm) in looking after her needs.
(b)I continued to maintain the Coode Street house and gardens and to do all the maintenance works that were required to be done. If I was not being left the home I would not have spent the number of hours that I did, or any time at all, from 2002 onwards in maintaining the lawns and gardens and the house. I only did this because I was promised by my mother and my sister that the home would be mine after my mother's death.
(c)Between 2000 and 2009 I took no steps to ask my mother about her will or to arrange for her to see a solicitor.
(d)In 2009, at the time my sister moved our mother to Regency Gardens nursing home, my mother asked me to arrange for a lawyer to come to her and make a new will. I spoke to Stephen Fiddock, a mobile will lawyer on 3 occasions, but ultimately decided not to make an appointment. I believed I could rely on the promises by my mother and my sister.
…
185.My mother was only at Regency Gardens nursing home for about 3 weeks before she became [critically] ill on about 29 September 2009.
186.When this happened I telephone my sister and gave her an opportunity to speak to our mother before she died.
187.Our mother then died on 30 September 2009.
188.My sister then flew to Perth for the funeral and was in Perth between 2 and 28 October 2009. She stayed for her friend … in Mount Pleasant.
189.After the funeral my sister spent a number of days at the Coode Street home sorting out our mother's clothes and furniture.
190.On one occasion while my sister was in Perth she asked me what I was going to do with the Coode Street home [and] whether I was going to sell it. I told her that I did not know what I was going to do although I did [say] that I might demolish the 2 garages and build a [second storey] keeping in character with the rest of the home.

Mr Como sent Ms Helmers a letter dated 13 July 2010. It relevantly provides:
Dear Eva
I want to communicate with you on the matter of mum's will and estate.
I mentioned it twice in the last 10 months and received a short reply and you moved on without elaborating, eg, 'Were you the executor and beneficiary?' 'Yes' what will you do with mum's house, 'don't know'.
I left it at that because I thought you were still grieving and working on a plan for our future.
Last week whilst cleaning mum's front yard Allan Bourke of Allan Burke [sic] Real Estate walked by and we chatted about the houses being built on Reid's site.
Allan is the current president of the Real Estate Board of WA and has a thorough knowledge of land prices and movements in WA and specialises in South Perth. I told him of our situation and he asked me if I would like an evaluation. I agreed. Two days later I received his report in the name of 'Michael Helmers' which I promptly queried.
He replied that in his title search (he has access to Landgate info online) he discovered that mum's house has been transferred into your name on 14 January 2010.
Yesterday I searched mum's title at Landgate and … her will at the Probate office.
The transfer of land form T1 was signed and dated by you, witnessed by Bob Broadway and lodged on the 14 January 2010.
Were you in Australia on that occasion? And why did you not make contact?
Mum's will was even more interesting, drafted by you, signed by Mum, and witnessed by Gabbedy on 16 May 1982.
Amazing, 28 years and no updates and amendments.
You said you didn't know what to do with the house and you had 28 years to think about it.
On the 16 May 1982 Mum and you must have planned and discussed the contents of the will before preparing it, why wasn't I mentioned? If Mum wasn't forthcoming with my interests why didn't you mention me? I always looked to you as a fair minded person who stood up for me.
I can now understand why you never discussed mum's will or had shown me a copy.
What was your intention in transferring the house into your name?
I have a good knowledge of Titles Office procedure as I worked there as a searcher for the Water Supply.
Transferring Mum's house into your name was totally unnecessary if you intended to sell it to the public or to me.
I did indicate that I would like to buy your share and develop the two garage site into a two-storey building to compliment [sic] the existing building, I remember a no comment response.
That share buyout cannot now be done as the first transfer to you is free of stamp duty under the Probate Act, the next transfer, if you considered me would attract a stamp duty fee of $42,000.
You mentioned a few times that you would like to pay for my trip to Germany out of mum's estate, I did appreciate that offer of $2,000 for the airfare but that is small consideration when compared to the total estate.
What I really need is to buy Jenny and Eve a modest home as a divorce settlement and free up the rest of my life.
I need money to start divorce litigation so could you please transfer my $35,000 to me.
What I can't understand is why did you transfer the house, lodge the will for probate, use the Broadways to sign and witness documents when I could have helped you, driven you, and been kept informed?
…
I have been looking after mum and her house for 56 years starting in 1954 by planting and cutting and watering the lawn and still doing so for you.
Looking after mum has been difficult as you know, I suffered much abuse but carried out my responsibility till the end.
For many years I prayed that she would return to the church …
During the last few years between RAAF and [Regents] Gardens I gave up much of my life, Masons, country jobs, farm visits, no holidays for 31 years, time with Eve, socialising with friends, to attend to mum.
During our evening walks and ice cream stops, around Anstey St block, mum and I reconciled and she came to appreciate me and be nice to me.
On several occasions as we walked out of the front gate mum looked back at her house and looked at me for approval and said 'Do you think I did well in life in achieving and maintaining this house[?]', I agreed, she then said 'What are you going to do with it when you get it, after I'm gone?['], I said keep it, just to please her, knowing full well in the back of my mind that she had left the house to you.
Towards the end she must have remembered something and she asked the carer and me to arrange a solicitor and make a new Will.
I arranged Mr Fiddock a solicitor specialising in mobile wills to visit mum with his laptop to prepare a new will, but after much afterthought I came to the conclusion that you might get the wrong impression of me or my motives in circumventing the existing will that you had carefully prepared so long ago.
My thoughts at that time were that I could trust you to do the 'right thing' by me without constructing another Will, so I cancelled Mr Fiddock. He was fully informed of the prior will and our relationship with mum. You may speak to him to verify.
The statement towards the end of the letter that Mr Como trusted Ms Helmers to do the 'right thing' is clear evidence of reliance.
Ms Helmers wrote two letters in response. The first is dated 22 July 2010 and relevantly provides:
Dear Michael
…
First with regard to Mum's will. I had nothing to do with the draft and I was not in Australia between 1980 and 1984. The will you mention in your letter was done in 1982. It was a time when there was considerable conflict between you and Mum as your wife was terrorising Mum on the phone and similar. Mum made the will without any influence or knowledge on my part.
When the topic of wills came up in the last years of Mum's life I told you she had put things down in my name to stop your wife getting her fingers on Mum's house by forcing a divorce or similar. I told you we would share when the time comes and I still want to do that. But you were afraid of having property and accounts in your own name because of your wife's cunning and aggressiveness. At least that is what you always told me.
…
The money that came back from the Regents Bond has been put into an award savers account for the present. I have not used any of that to 'finance my trips to Australia' - I haven't been to Australia since then, remember? I want to give you access to that account if you want to, but I hope you will use it wisely.
But just for the record - most of that money from Germany from Mum's widow pension connected to my father. I have no father to give me an inheritance so Mum considered her assets in Germany should go to me. But I decided you should have all the money and property in Australia when there is no danger of your wife taking her share. In my will deposited at the [Commonwealth] Bank in [South Perth] I have left all monies and property in Australia to you, hoping that you have a clear status between yourself and your wife by then. If you had been divorced I would have transferred the whole house into your name right from the start as I feel it should have been yours after all the years you spent in looking after Mum and her garden and house. When we discussed what to do with the house you did mention that you may want to do some building on the site you felt it not worth going to all that trouble at your age and I agreed with you. (original emphasis)
The second is dated 26 July 2010, and relevantly provides:
Dear Michael
…
Michael, I am terribly sad about your feelings as expressed in your letter dated 13th July. I wish I could discuss all on the telephone but I am scared you may brush me off and say you don't believe me. Hence I am trying to get our emotions back on the right track with this letter. Please re‑read the fax (letter) I wrote to you on 22 July in response to your letter dated 13 July. I tried to explain my actions which I was forced to take because of the constant fear that your wife will try to get a big portion of your estate and inheritance. In no way was it my intention to take away what is due to you. The feeling of distrust that seems to have arisen on your part makes me very, very sad after all these years of a good relationship. Be fair - have you had any reason to distrust me in the past? I have always tried to do the right thing for you and tried to be worthy of the trust you showed towards me.
From the legal side of things, I had to get the probate done within 6 months. I know you think differently but what you call my naïve honesty has been a constant part of my life. The $42,000 stamp duty you mention when things are transferred to you are not welcome, admittedly, but they are a better option than losing to your wife - at least that's my opinion on this subject. As I wrote in my last letter, I have intended to give you all the assets in Perth when the time comes (when you are not in danger of losing to your wife). That would be a lot more than half of Mum's entire assets.
…
I want to stress, that I will share at least half of the estates left by mum but please give me time to sort things out. It is a giant problem I have to solve with the taxation dept and there are health problems keeping us 'busy' at the same time.
The letter contains clear statements of intention to give Mr Como 'all the assets in Perth' and 'at least half of the estates'. From the probate information in evidence before me, Ms Emme's 'assets in Perth' comprise the South Perth Property and around $25,000 in cash. A statement of intention to transfer Ms Emme's 'assets in Perth' is thus arguably the same in substance as a promise to transfer the South Perth Property.
As to the level of 'vagueness' permitted on a claim for promissory estoppel, the issue is to be determined in the context of the first and second elements identified by Brennan J in Waltons Stores (428 ‑ 429), being that:
(a)'the plaintiff assumed that a particular legal relationship then existed between the plaintiff and the defendant or expected that a particular legal relationship would exist between them and, in the latter case, that the defendant would not be free to withdraw from the expected legal relationship'; and
(b)'the defendant has induced the plaintiff to adopt that assumption or expectation'.
The law in relation to the level of certainty required for both proprietary estoppel and promissory estoppel was considered by Drummond AJA in Westpac Banking Corporation [1748], [1749], [1755]:
In my opinion, a clear representation or promise about future matters relating to property is not an essential element of equitable estoppel by encouragement or by acquiescence or proprietary estoppel (of which the first two are examples) though it will usually suffice: vague and imprecise conduct is often enough to give rise to an equitable proprietary estoppel.
…
However, certainty of the representation or promise remains a requirement of a promissory estoppel.
….
In some cases, vague, equivocal and ambiguous statements of future intention have been held sufficient to give rise to an equitable estoppel. Properly understood, these in my opinion are cases of equitable proprietary estoppel by encouragement or acquiescence and so do not depend on proof of clear representations or promises but on conduct with respect to property of the parties said to be estopped that is often diffuse and ambiguous, but which is sufficient, in the circumstances of the particular case, to attract the intervention of equity.
Drummond AJA also referred to the decision in Australian Crime Commission v Gray [2003] NSWCA 318 which is to the effect that an element of ambiguity or lack of clarity in the representations made will not prevent a promissory estoppel being found to exist: see [195] (Ipp JA, with whom Mason P and Tobias JA agreed on this point). However, his Honour had difficulty in accepting this position [1758]. There is a similar discussion as to the extent of the precision required in the judgment of Buss JA in Australian Goldfields NL (in liq) v North Australian Diamonds NL [2009] WASCA 98 [195] ‑ [204]. His Honour concluded his analysis with the following summary:
A representation can found an estoppel even though the representation (while definite) is not precisely defined, because equity does not enforce the representation itself. Rather, it is the plaintiff's conduct in acting to his or her detriment upon the representation, or the assumption or expectation to which it gave rise, which invites the intervention of equity [204].
It is apparent that the principles relating to the level of precision required of a representation to found an estoppel (whether proprietary or promissory) are not yet settled. As I have already observed, where the law is not yet settled a court should be careful not to risk stifling the development of the law by summarily disposing of actions where there was a reasonable possibility that, as the law develops, it will be found that a cause of action and remedy lies: Hospitals Contribution Fund (373 ‑ 374); Neilson [18]; Lois Nominees [35].
At face value, the evidence I have set out above is capable of supporting the representation that Mr Como would receive the South Perth Property (or at least the proceeds of its sale) or, alternatively, half the proceeds of Ms Emme's estate. It is also capable of supporting the plea of reliance. The existence of this evidence means Ms Helmers has not discharged the onus on her to establish that there is no serious question to be tried. The ultimate findings of fact at trial will take into account cross‑examination of Mr Como, the evidence in chief of Ms Helmers, any further documents she tenders and the impact of her cross‑examination. Again, I do not have the high degree of certainty about the ultimate outcome of the case required by the High Court in Agar [57] and Batistatos [46] to make it appropriate to award summary judgment to Ms Helmers on this point.
There is another highly cogent reason why it is not appropriate to grant summary judgment of part only of the claims brought by Mr Como. In the context of RSC O 14, the court may decline to award summary judgment if the defendant satisfies the court 'that there ought for some other reason to be a trial of that claim': O 14 r 3(1). In Miles v Bull [1969] 1 QB 258, Megarry J said with reference to this phrase:
If the defendant cannot point to a specific issue which ought to be tried but nevertheless satisfies the court that there are circumstances that ought to be investigated, then I think that those concluding words are invoked. There are cases when the plaintiff ought to be put to strict proof of his claim, and exposed to the full investigation possible at a trial; and in such cases it would, in my judgment, be wrong to enter summary judgment for the plaintiff (265 ‑ 266).
This passage was endorsed by O'Brien DCJ in Fremantle Port Authority [48], and applied to a defendant's application for summary judgment. It likewise applies as an element of the consideration of whether the processes of the court have been abused in the context of an application for summary judgment by a defendant to a counterclaim.
It is readily apparent from Mr Como's witness statement that his evidence in relation to the estoppel claim is interwoven into the factual narrative of the remainder of the facts relevant to the issues to be decided at trial in the two actions. The series of dealings between Mr Como and Ms Helmers are characterised by each (allegedly) holding money or property of the other in their own name, in the context of a relationship of mutual trust which has now evaporated. The entire series of dealings between them should, in my view, be 'exposed to the full investigation possible at trial', to quote Megarry J. It would not be just to summarily exclude one aspect of the dealings from the trial process.

What final orders are appropriate?

The application was made a few days out of the time set down in RSC O 20 r 19(3)(a). However, this was due to ongoing conferral. The plaintiff ought to be given leave to bring the application.
However, substantively, the application should be dismissed.
I will hear from counsel as to costs.