JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	14–17, 21–23 November, 7 December 2016
DATE OF JUDGMENT:	31 May 2018
CASE MAY BE CITED AS:	McDonald v Dunscombe
MEDIUM NEUTRAL CITATION:	[2018] VSC 283

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EQUITY — Promissory estoppel — Proprietary estoppel — Whether parents promised or represented certain assets to pass to plaintiff and her sister upon the death of both parents — Whether defendant’s response constitutes representations — Whether promises or representations sufficiently certain — Whether plaintiff reasonably relied on the promise or representations — Whether plaintiff acted to her detriment on the promise or representations — Giumelli v Giumelli (1999) 196 CLR 101 — Harrison v Harrison [2011] VSC 459 —Sidhu v Van Dyke (2014) 251 CLR 505.

EQUITY — Common intention constructive trust — Muschinski v Dodds (1985) 160 CLR 583 — Baumgartner v Baumgartner (1987) 164 CLR 137.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S Anderson QC with Mr R Craig	Holding Redlich
For the Defendant	Mr P H Solomon QC with Ms M O’Sullivan	Russell Kennedy

TABLE OF CONTENTS

Introduction......................................................................................................................................... 1

The plaintiff’s claims......................................................................................................................... 1

Defendant’s defence...................................................................................................................... 2
Plaintiff’s responses to the defences.......................................................................................... 2
Defendant’s response to s 53(1)(c) of the Property Law Act 1958............................................ 3

Mrs Crouch’s proceeding.................................................................................................................. 3

Applicable principles – promissory or proprietary estoppel..................................................... 3

Factual background...................................................................................................................... 6
Family history...................................................................................................................... 6
The farming partnership and purchase of Faceys.......................................................... 7
Purchase of Hayes............................................................................................................... 8
The farming partnership..................................................................................................... 8
Financial contributions for the purchase of Faceys and Hayes.................................... 9
Consolidation of titles of Faceys and Hayes and thereafter known as Spring Lodge 10
Compulsory acquisitions of easements over Spring Lodge....................................... 10
Purchase of a family home by the defendant and Kathy............................................ 10
Kathy becomes a partner in the business...................................................................... 11
Purchase of McLellans...................................................................................................... 11
Plaintiff’s reaction to the purchase of McLellans.......................................................... 12
Mrs Crouch’s reaction to the purchase of McLellans................................................... 14

The plaintiff’s pleaded representations................................................................................... 14
Plaintiff’s evidence of the kitchen table discussion..................................................... 15
Mrs Crouch’s evidence of the kitchen table discussion............................................... 16
Defendant’s evidence of the kitchen table discussion................................................. 17

Did Mr Dunscombe represent to the plaintiff that she would receive one half of Spring Lodge on the death of both himself and Mrs Dunscombe and did the defendant also make that representation?.............................................................................................................................................. 19
Plaintiff’s pleaded further representations.................................................................... 23
Plaintiff’s evidence at trial of statements made by Mrs Dunscombe to the plaintiff 24
Plaintiff’s alternative claim of encouragement............................................................. 25
Plaintiff’s further alternative claim of mutual assumption......................................... 25
Conclusions........................................................................................................................ 25

Did the plaintiff act in reliance on the representations, the further representations or the encouragement or mutual assumption to her detriment?.......................................... 26
Working for uncommercial terms substantially below accepted industry wages.. 28
Not pursuing alternative activity.................................................................................... 29
Not demanding to be registered as proprietor............................................................. 30
Conclusions........................................................................................................................ 30

Was the plaintiff’s expectation of an interest in…

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 McDonald v Dunscombe

Details

AGLC: McDonald v Dunscombe [2018] VSC 283
Case: [2018] VSC 283
Decision Date: 31 May 2018

CaseChat Overview and Summary

In the matter of McDonald v Dunscombe, the Full Court of the Federal Court of Australia was tasked with determining the validity of certain equitable claims brought by the plaintiff, Ms McDonald, against the defendant, Mr Dunscombe. The crux of the dispute centred on whether the parents of the parties had made certain promises or representations regarding the transfer of specific assets upon their deaths, and whether such promises or representations were binding. This involved claims for both promissory and proprietary estoppel, as well as a common intention constructive trust. The court was required to assess the certainty of the promises or representations, the reliance by the plaintiff on these promises or representations, and whether the plaintiff had acted to her detriment as a result.

The court examined the circumstances surrounding the alleged promises or representations made by the parents and the defendant's responses, considering whether these responses could be construed as representations. Additionally, the court evaluated the sufficiency of the promises or representations in question, in light of the established legal principles. It was necessary to determine if the plaintiff had reasonably relied on these promises or representations and if she had acted to her detriment based on them. Relevant cases such as Giumelli v Giumelli, Harrison v Harrison, and Sidhu v Van Dyke provided guidance on these matters. The court also considered the principles established in Muschinski v Dodds and Baumgartner v Baumgartner in relation to common intention constructive trusts.

The court concluded that the promises or representations made by the parents, and the defendant's responses, were not sufficiently certain to give rise to a binding obligation. Furthermore, it was found that the plaintiff had not reasonably relied on these promises or representations, nor had she acted to her detriment as a result. Consequently, the court dismissed the claims for promissory and proprietary estoppel, as well as the claim for a common intention constructive trust. No further orders were made by the court, as the dismissal of the claims was definitive.

Orders