Court of Appeal
Supreme Court
New South Wales
- Summary available
Medium Neutral Citation: Milling v Hardie [2014] NSWCA 163 Hearing dates: 7 April 2014 Decision date: 26 May 2014 Before: Beazley P at [1];
Macfarlan JA at [2];
Sackville AJA at [79]Decision: (1) Extend to 28 June 2013 the time for Mr Milling to file his Notice of Appeal.
(2) Appeal allowed in part.
(3) Vary the orders contained in subparagraph (a) of paragraph 2 of the orders made by Lindsay J on 29 May 2013 by deleting the word "non-exclusive".
(4) Set aside subparagraphs (b) and (c) of paragraph 2 of those orders.
(5) Set aside paragraphs 9 and 10 of those orders.
(6) Grant Mrs Hardie a certificate under the Suitors' Fund Act 1951 (NSW), if qualified.
(7) Direct that the parties file and serve submissions, concerning the costs orders to be made in respect of the proceedings at first instance and on appeal, in accordance with the following timetable:
(i) Mr Milling within seven days of the date of this judgment.
(ii) Mr and Mrs Hardie within a further seven days.
(iii) Any reply within a further seven days.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: EQUITY - proprietary estoppel - defendant invited daughter and son-in-law to live in a homestead on one of his properties - they undertook improvements to property with defendant's consent - whether estoppel by encouragement arose - whether defendant's conduct justified expectation that the plaintiffs would inherit property or receive transfer during defendant's lifetime - whether plaintiffs have obtained the full benefit of their improvements such that they have effectively been amortised - held that defendant's conduct gave rise to a reasonable expectation that plaintiffs entitled to occupy relevant parts of property during defendant's lifetime Cases Cited: Delaforce v Simpson-Cook [2010] NSWCA 84; 78 NSWLR 483
Dillwyn v Llewelyn (1862) 4 De GF & J 517; 45 ER 1285
Donis v Donis [2007] VSCA 89; 19 VR 577
Duic v Duic [2013] NSWCA 42
Flinn v Flinn [1999] VSCA 109; 3 VR 712
Giumelli v Giumelli [1999] HCA 10; 196 CLR 101
Gould v Vaggelas [1984] HCA 68; 157 CLR 215
Inwards v Baker [1965] 2 QB 29
Ramsden v Dyson (1866) LR 1 HL 129
Sidhu v Van Dyke [2014] HCA 19
Sledmore v Dalby [1996] EWCA Civ 1305; 72 P & CR 196
Sullivan v Sullivan [2006] NSWCA 312; 13 BPR 24,755
Svenson v Payne [1945] HCA 43; 71 CLR 531
Waddell v Waddell [2012] NSWCA 214; 292 ALR 788
Willmott v Barber (1880) 15 Ch D 96
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- AGLC
- Milling v Hardie [2014] NSWCA 163
- Case
- [2014] NSWCA 163
- Decision Date
CaseChat Overview and Summary
The court considered whether the Hardies had obtained the full benefit of their improvements, effectively amortising their expenditure. The legal principles of proprietary estoppel were central to the determination, focusing on whether Mr Milling's conduct justified the expectation held by the Hardies. The court found that Mr Milling's conduct did indeed give rise to a reasonable expectation that the Hardies were entitled to occupy relevant parts of the property during his lifetime.
The Court of Appeal allowed the appeal in part. It varied the primary judge's orders by deleting the word "non-exclusive" from an order concerning occupation. It also set aside certain other orders relating to the extent of the Hardies' rights and the disposition of the property. The court also granted a certificate under the Suitors' Fund Act 1951 (NSW) to Mrs Hardie, if qualified, and directed the parties to file submissions regarding costs orders for both the first instance and appeal proceedings.
Orders
Orders of the court
(1) Extend to 28 June 2013 the time for Mr Milling to file his Notice of Appeal.
(2) Appeal allowed in part.
(3) Vary the orders contained in subparagraph (a) of paragraph 2 of the orders made by Lindsay J on 29 May 2013 by deleting the word "non-exclusive".
(4) Set aside subparagraphs (b) and (c) of paragraph 2 of those orders.
(5) Set aside paragraphs 9 and 10 of those orders.
(6) Grant Mrs Hardie a certificate under the Suitors' Fund Act 1951 (NSW), if qualified.
(7) Direct that the parties file and serve submissions, concerning the costs orders to be made in respect of the proceedings at first instance and on appeal, in accordance with the following timetable:
(i) Mr Milling within seven days of the date of this judgment.
(ii) Mr and Mrs Hardie within a further seven days.
(iii) Any reply within a further seven days.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
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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