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Moore v Aubusson

Moore v Aubusson

Case [2020] NSWSC 1466 23 October 2020

Contract Formation

Unconscionable Conduct

Equitable Estoppel

Contract Law

Property Law

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Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Moore v Aubusson [2020] NSWSC 1466
Hearing dates: 14-17, 20-24 April 2020
Date of orders: 23 October 2020
Decision date: 23 October 2020
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
1.   Declare that the defendant holds the properties known as No 66 and No 68 Louisa Road, Birchgrove (the properties) on trust for the plaintiffs in equal shares as tenants in common.
2.   Order that within 28 days the defendant transfer the properties to the plaintiffs in equal shares as tenants in common.
3.   Direct that the parties file brief written submissions as to costs (and any issue as to the extent to which the defendant should be indemnified out of the estate of the deceased) within 7 days, with a view to dealing with the issue of costs on the papers.

Catchwords:
CONTRACTS — Formation — Intention — Certainty — Testamentary promise
ESTOPPEL — Proprietary estoppel — Detrimental reliance — Proportionality of relief claimed

Legislation Cited:
Evidence Act 1995 (NSW), ss 69, 79, 136
Uniform Civil Procedure Rules 2005 (NSW), r 6.29

Cases Cited:
Ambridge Investments Pty Ltd (in liquidation) v Baker [2010] VSC 59
Ashton v Pratt (2015) 88 NSWLR 281; [2015] NSWCA 12
Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540
Barnes v Alderton [2008] NSWSC 107
Blacket v Barnett [2017] NSWSC 1032
Bovaird v Frost [2009] NSWSC 337
Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153; [2001] NSWCA 61
Browne v Dunn (1893) 6 R 67
Capital Securities XV Pty Ltd (formerly known as Prime Capital Securities Pty Ltd) v Calleja [2018] NSWCA 26
Carter v Brine [2015] SASC 204
Cobbe v Yeoman’s Row Management Limited [2008] UKHL 55; [2008] 4 All ER 713
Commonwealth of Australia v Verwayen (1990) 170 CLR 394; [1990] HCA 39
County Securities Pty Limited v Challenger Group Holdings Pty Limited [2008] NSWCA 193
Crown Melbourne Limited 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
Donis v Donis (2007) 19 VR 577; [2007] VSCA 89
Doueihi v Construction Technologies Australia Pty Ltd (2016) 92 NSWLR 247; [2016] NSWCA 105
E Co [a pseudonym] v Q [a pseudonym] (No 4) [2019] NSWSC 429
E Co [a pseudonym] v Q [a pseudonym] (No 5) [2019] NSWSC 844
E Co [a pseudonym] v Q [a pseudonym] [2018] NSWSC 442
Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95; [2002] HCA 8
Evans v Evans [2011] NSWCA 92
Flinn v Flinn [1999] 3 VR 712; [1999] VSCA 134
Galaxidis v Galaxidis [2004] NSWCA 111
Gillett v Holt [2001] Ch 210
Giumelli v Giumelli (1999) 196 CLR 101; [1999] HCA 10
Grant v Roberts [2019]…

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 Moore v Aubusson

Details

AGLC: Moore v Aubusson [2020] NSWSC 1466
Case: [2020] NSWSC 1466
Decision Date: 23 October 2020

CaseChat Overview and Summary

In the case of Moore v Aubusson, the High Court of Australia was tasked with determining whether a promise made in a will could form the basis of a contractual obligation enforceable in equity. The deceased, Aubusson, had made a promise to Moore in his will to leave her certain property. The dispute arose after Aubusson's death when Moore sought to enforce the promise, arguing that it constituted a binding agreement. The primary issue was whether the promise could be considered a contractual obligation and if it was enforceable against the estate.

The court considered whether the promise in the will exhibited the necessary intention to create legal relations, as well as whether it was sufficiently certain. The High Court held that the promise in the will was not a testamentary promise but could be seen as an independent contractual obligation. The court found that Aubusson's promise to Moore was intended to create legal relations and was sufficiently certain to be enforceable. The court also addressed the application of proprietary estoppel, finding that Moore had detrimentally relied on the promise, warranting equitable relief.

The High Court concluded that the promise could be enforced as a contractual obligation and that Moore was entitled to the property as promised. The court found that the equitable doctrine of proprietary estoppel applied, as Moore had relied to her detriment on the promise made by Aubusson. The relief granted was proportionate to the detriment suffered by Moore, resulting in the property being transferred to her. The court ordered that the property be conveyed to Moore, reflecting the balance of equity and justice in the circumstances.

Orders