Kramer v Stone

Case [2023] NSWCA 270

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Kramer v Stone [2023] NSWCA 270
Hearing dates: 4 September 2023
Date of orders: 10 November 2023
Decision date: 10 November 2023
Before: Ward P at [1]; Leeming JA at [257]; Kirk JA at [296]
Decision:

1.   Dismiss the appellants’ notice of motion filed 24 July 2024 with costs.

2.   Dismiss the appeal with costs.

Catchwords:

EQUITY – Proprietary estoppel – Estoppel by encouragement – Knowledge of detriment – Where the deceased promised to leave the property to a sharefarmer who had worked on the property for approximately 40 years – Where the deceased’s will did not do so – Where the sharefarmer continued to share farm on the property in reliance on the representation – Whether the deceased needed to have actual knowledge of detrimental reliance on the representation for estoppel to be established

PROCEDURE – appeals – further evidence – evidence adduced at subsequent hearing before final orders made – whether such evidence “further evidence” for purposes of Supreme Court Act 1970 (NSW), s 75A – whether appellant should be permitted to rely on such evidence following first hearing to impugn findings made after first hearing

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 56

Commonwealth Constitution, s 73

Evidence Act 1995 (NSW), s 136

Supreme Court Act 1970 (NSW), s 75A, 101

Uniform Civil Procedure Rules 2005, rr 36.16, 51.51

Uniform Civil Procedure Rules (Amendment No 15) 2007 (NSW)

Cases Cited:

Air Tahiti Nui Pty Ltd v McKenzie (2009) 77 NSWLR 299; [2009] NSWCA 429

Akins v National Australia Bank (1994) 34 NSWLR 155

Ambridge Investments Pty Ltd (in liq) (rec apptd) v Baker [2010] VSC 59

Austotel Pty Ltd v Franklins Self-Serve Pty Ltd (1989) 16 NSWLR 582

Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485; [1993] HCA 15

Baden v Societe Generale pour Favouriser le Developpement du Commerce et de l’Industrie en France SA [1992] 4 All ER 161

Barnes v Addy (1874) LR 9 Ch App 244

Barnes v Alderton [2008] NSWSC 107

Bartier Perry Pty Ltd v Paltos [2021] NSWCA 158

BP v State of New South Wales [2019] NSWCA 223

Carter v Brine [2015] SASC 204

Cobbe v Yeoman’s Row Management Ltd [2008] 1 WLR 1752; 4 All ER 713

Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447; [1983] HCA 14

Commonwealth of Australia v Verwayen (1990) 170 CLR 394; [1990] HCA 39

Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd (2016) 260 CLR 1; [2016] HCA 26

Delaforce v Simpson-Cook (2010) 78 NSWLR 483; [2010] NSWCA 84

DHJPM Pty Ltd v Blackthorn Resources Ltd (2011) 83 NSWLR 728; [2011] NSWCA 348

Dillwyn v Llewelyn (1862) 4 De GF & J 517; 45 ER 1285

Donis v Donis (2007) 19 VR 577; [2007] VSCA 89

Doueihi v Construction Technologies Australia Pty Ltd (2016) 92 NSWLR 247; [2016] NSWCA 105

Driclad Pty Ltd v…

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AGLC
Kramer v Stone [2023] NSWCA 270
Case
[2023] NSWCA 270
Decision Date

CaseChat Overview and Summary

The appellants, the executors of the estate of the deceased, appealed a decision of the primary judge concerning a claim of proprietary estoppel brought by the respondent, a sharefarmer. The respondent alleged that the deceased had promised to leave him the property on which he had worked for approximately 40 years, and that he had continued to work the property in reliance on this promise, to his detriment. The deceased's will, however, did not reflect this alleged promise.

The central legal issues before the Court of Appeal were whether the deceased needed to have actual knowledge of the respondent's detrimental reliance on the representation for the doctrine of proprietary estoppel to be established, and whether the appellants should be permitted to rely on evidence adduced at a subsequent hearing before final orders were made, for the purposes of an appeal under section 75A of the *Supreme Court Act 1970* (NSW).

The Court of Appeal affirmed that actual knowledge of the specific detriment suffered by the claimant is not a prerequisite for establishing proprietary estoppel. It is sufficient if the promisor intended their representation to be acted upon and that detriment would likely flow from such reliance. The Court also held that the evidence sought to be adduced by the appellants was not "further evidence" within the meaning of section 75A of the *Supreme Court Act 1970* (NSW) as it was not evidence that could not have been obtained with reasonable diligence for the first hearing.

Consequently, the Court of Appeal dismissed the appellants’ notice of motion and the appeal, with costs.

Orders

Orders of the court

1. Dismiss the appellants’ notice of motion filed 24 July 2024 with costs.

2. Dismiss the appeal with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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