Morton v Morton No. Scgrg-96-1816 Judgment No. S368

MORTON & ORS v MORTON
[1999] SASC 368

Full Court: Millhouse, Duggan and Lander JJ

MILLHOUSE J. Unhappy family dispute.
The Morton family has lived on the Birdsville Track for generations. The first appellant, Mr George Villiers Morton, is the present pater familias, head of the family. The second and third appellants are his son and daughter. The respondent, Mr Craig Kenneth Morton, is another of his sons. He has other sons and daughters but they play no part in this conflict.
Craig Morton was 42 at the time of the original hearing late last year. He had spent his childhood and growing up on the family property, in the far north-east of the State, Pandie Pandie Station. For several years, as a young man, he worked on other stations. In 1980 he met his future wife Jacqueline. Not wishing after his marriage to live on Pandie Pandie with his family, he and Jacqueline decided to live in Brisbane, from where she came. They took a lease on a house there and he organised a job with Brambles. They married in April 1982.
On the evening of the day of the wedding Craig and George had a discussion. Each gives a different version of what was said but the learned trial Judge preferred what Craig said. They saw each other the following day and George suggested that Craig come home. This is the learned Judge's account:-
"... He suggested that other properties might 'come up', indeed, that his agent Mr Lindsay Olive, an employee of Dalgety's, was looking at one at that time. The plaintiff's father inferred that if he came home, the plaintiff might have an opportunity to get a start on a property.
The plaintiff's evidence continues:
'Q. So did you talk further to your dad about it.
A.... I just went back and said to him 'If you reckon there is a chance that this is the way it is going to go, we will come back again', and dad said to me 'Look, take a couple of weeks off, have a honeymoon and come home', which we did."

Craig and his wife cancelled their arrangements in Brisbane for the house and the job with Brambles.

His Honour found that the newly wedded couple came to Pandie Pandie following an invitation from his father. His Honour went on:-
"... While I am satisfied that Mr George Morton said that he would buy another property or properties and that in that event the plaintiff and his wife could reside on one of the new properties and manage it, I am not satisfied that he said clearly at that stage that he would make a gift of any such property to the plaintiff."
Within a few weeks the father bought a property over the border in New South Wales called Barraroo. He paid $650,000 for it, excluding stock, plant and equipment. Craig and his wife went to live there and Craig managed the place. Sheep were run on Barraroo: previously the family had run only cattle.
Craig has asserted - and the learned Judge accepted - that his father made it known that Barraroo would eventually be his. I use neutral vague terms in saying that because, on appeal, the contest has been as to what was said and the effect in law and equity, of the words used.
His Honour found that, "... when Barraroo was acquired, Mr George Morton promised that it would become the plaintiff's property if he stayed on it and worked it until it became viable."
"Viable" is, I believe, not a word which appears in the evidence and it is, unfortunately not of precise meaning. In the first edition of the Shorter Oxford English Dictionary, the meaning is given as, "Capable of living; able to maintain a separate existence" but in the Addenda (1978) there is added, "feasible, workable, capable of being carried out." In the second edition, (1989) the meaning has continued to expand: "Of immaterial things or concepts. In recent use esp workable, practicable esp economically or financially." In the revised edition of the Macquarie Dictionary (1985), "practicable; workable" and that is reproduced in the third edition, 1997.
What precisely does "viable" mean here? George denied that he had ever made any such promise at all to Craig but the learned judge found that he had. His Honour preferred Craig's evidence. The difficult thing is that Craig has put it in different words at different times, both before the hearing and when giving evidence. In the pleadings it is differently expressed and so it was too by counsel (not the same counsel as argued the appeal) in opening. [That it was differently expressed in the pleadings does not bind the respondent, Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691 @ 697, nor is he bound by what counsel may have said.]
Here are significant examples.
In a letter of 29 July 1996 which Craig wrote to his father:-
"You told me when I came to Barraroo in August 1992 to work hard, learn sheep, make the place pay, the sooner it paid for itself the sooner it was mine."
In examination-in-chief Craig asserted his father said in 1982, "The sooner it pays, the sooner it will be yours."
In cross-examination Craig said his father's words were "the sooner it could be paid for, the sooner the place will become yours."
All these ways of putting it could, I suggest, be comprehended in the word "viable".
However I have digressed. Craig and his wife did go to live on Barraroo and to work it. They have brought up their family on it. They are still there.
Over time other properties have been acquired: one of them is Marrapina, on which the third appellant has lived with her family: she has worked it alone since separation from her husband.
The properties have been worked in partnership by George Morton and the three children, the parties in this action (the late Mrs Morton was a partner until her death some years ago), and each has helped out the others from time to time. George has been in every way the senior partner: not only does he have the biggest share of the assets and does he take the biggest share of the profits but he also has made the decisions without much, if any consultation, with his children. Besides that, the accounts have been kept so haphazardly (and are incompletely before the Court) that it is difficult, if not impossible, to work out the financial affairs of the partnership. His Honour was able to find, though, that Barraroo has contributed substantially to the partnership: its income has exceeded outgoings since about 1989.
As time passed Craig began to ask his father when Barraroo would be his. His father rebuffed him with increasing heat. Relations between them, because of Craig's persistence, became worse and worse. In 1991 George told Craig, "You can collect your chips and get the fucking hell out of it." Craig did not. On 15 March 1996 George dissolved the partnership with this fax to Craig:-
"Craig,
I completely own Pandie, Marrapina, Barraroo and The Selection, which was bought with my own money, (mostly borrowed) no one helped me with the payments or even offered to try and help or pay any interest.
You are now trying to be a parasite and get something from me for nothing.
All I have got out of you is abuse and I am not going to cop any more.
I gave away to you 10% of cattle on Pandie but you try to get more. I gave 10% in a company in Marrapina and now you think you own it.
The company owes me the money for Marrapina if any one wants it that is the position, pay me the full amount of money.
I will not hand around my accounts they are mine, my problems, but you seem to think you own the places, what have you ever offered to pay to get any shares, you draw heaps of money for your own private use and do no good with it.
You are dead set on trying to milk me for free, a parasite. I take all the risks of borrowing money, lose a lot of nights sleep with worry, one slip with my judgment no bank or agent would pay my debt, the whole lot should have to be sold, yet you want to be the parasite and grab when I come good.
The party is over.
You and I don't see eye to eye any more, you have a copy of the agreement, by its terms we must dissolve our association as at the 30th June 1996."
Craig took these proceedings on 30 August 1996. He and his wife and family have stayed on Barraroo pending the outcome of the proceedings: he is being paid a wage.
The relief the plaintiff, Craig, sought was:-
"12.1......... a declaration that the partnership between the plaintiff and the defendants called Pandie Proprietors was dissolved on or about the 30th June, 1996, or alternatively a declaration that circumstances have arisen which in the opinion of the court render it just and equitable that the said partnership being (sic) dissolved;
12.2an order for the winding up of the business and affairs of the said partnership and as incidental thereto orders directing ...
12.3........ Further and in the alternative the plaintiff claims:
12.3.1....... A declaration that the first defendant holds Barraroo on trust for the plaintiff;
12.3.2an order that the first defendant do execute and deliver to the plaintiff a transfer of Barraroo to the plaintiff free from any encumbrance.
12.3.3....... a declaration that the first defendant holds all of the plant and equipment, fixtures and fittings and livestock of Barraroo on trust for the plaintiff or alternatively a declaration that the defendants hold their interest as partners in the above on trust for the plaintiff.
12.3.4an order that the first defendant transfer to the plaintiff free of any encumbrance all of the plant and equipment, fixtures and fittings and livestock or alternatively that the defendants transfer to the plaintiff free of any encumbrance their interest as partners in the above to the plaintiff.
12.3.5....... an order releasing the plaintiff from any liability to the defendants.
12.3.6an order that the defendants indemnify the plaintiff from all liabilities of the partnership.
12.3.7....... alternatively to each of 12.3.2 and 12.3.4 an order for sale of the relevant assets and payment of the proceeds of sale to the plaintiff on the basis that the first defendant or alternatively the defendants pay out any encumbrance on the assets sold.
12.4........ That the first and second defendants pay the costs of an incidental to this action to the plaintiff.
12.5 Such other orders as the Court may seem (sic) fit."
The learned Judge found in favour of the respondent. His Order, in relevant part is:-
"2..... That the defendant George Villiers Morton holds his interest as lessee of the property situated in New South Wales ... being the land upon which the property known as Barraroo is situated subject to a constructive trust in favour of the plaintiff.
3.That the defendant George Villiers Morton sign all such documents and do all such things as may be necessary to effect the registration of the said property in the name of the plaintiff free of encumbrances at the expense of the defendant George Villiers Morton in all things, subject to the obtaining of all necessary consents, including the consent of the Minister.
...
6That the partnership between the plaintiff and the defendants known as Pandie proprietors ('the partnership') was on the 15th day of March 1996 dissolved as from the 30th day of June 1996.
...
8.That the affairs of the partnership be wound up, and to that end all necessary accounts and enquires (sic) be taken and made by a Master ... ."
The main thrust of the argument of Mr Alan Sullivan QC with Mr Glenn Davis, for the appellants, is that the promises made by the father to the son were not precise: so equivocal and non-specific as not to justify the intervention of equity: the promises have been described in different ways at different times: they are so vague as to mean that equity would not enforce them. This is His Honour's finding:-
" Having regard to the findings of facts to which I have come, I am in no doubt that in the circumstances of this case, at least by the time the operation of Barraroo became viable in the sense in which I have used that expression, Mr George Morton held the property subject to a constructive trust in favour of the plaintiff.
Apart from the promises by Mr George Morton which I have found were made, there is no doubt that the plaintiff acted to his detriment, in the expectation that they would be honoured, by remaining on Barraroo and working it, building it up to a viable operation, over the years between 1982 and 1996."
Before going to the law I repeat one thing which I said to Mr Sullivan during his address. These people are not particularly well educated: they are certainly not lawyers: they are not used to, because they have no need, to expressing themselves precisely. The conversations between father and son were over many years and in the context of a developing family business. Not surprising that Craig has put it differently at different times. Yet, on Craig's evidence which was accepted, one fact stands out. George promised Craig that Barraroo would be Craig's and George has not honoured that promise. It is clear and unequivocal. Craig has acted on the assumption that the promise would be kept. He has spent his working life on the property. He has no other work skills. He is in his forties: it would be difficult for him at his age to start again. The facts speak for themselves. He has acted to his detriment in making Barraroo his life on the assumption that it would become his. The last nine or ten words of this passage from his wife Jacqueline's cross-examination shews it vividly:-
"Q.... Going to 1982 or thereabouts, you mentioned before that this old homestead that you came to was not snakeproof; that snakes could wander in and out.
A.Which they did.
Q.. I think you became involved in a particular exchange with Craig involving a snake. What was that all about.
A.There was a snake in the laundry behind the hot water system, and luckily, Craig was home, and he was able to kill it, but I was very terrified of snakes, and they were in the house and I was frightened that the kids were going to get bitten, because they'd get in the bathroom or the pantry or the laundry, and I was really, really upset afterwards, and I just said to Craig 'Would you leave Barraroo if I wanted to leave?' because I was just so frightened of the snakes, and Craig just looked at me stunned and said 'I can't leave, dad bought this place for me.' "

That is the crux of the matter.

Whether George was to transfer Barraroo to Craig when it had been paid for (a difficult concept as George paid for it in the first place without needing a mortgage) or when it was paying its way (which His Honour found it had been for many years) does not matter. Whatever the condition, by now it has been well and truly met.
It is quite inappropriate to analyse words used by people like the parties as though we are construing a document drawn up by lawyers. It would be unfair to rob the respondent of his remedy simply because he has not, could not, express himself with precision and his father may not have either.
His Honour found a constructive trust arising out of equitable estoppel. R P Meagher QC and W M C Gummow, the learned authors of "Law of Trusts in Australia" (Fourth Edition) describe what a constructive trust is:-
"A constructive trust differs from an express trust in that it is raised by operation of law without reference to the intentions of the parties concerned and, certainly, in the cases which come before the courts, contrary to the intentions and desires of one of the parties; ... in the case of a constructive trust, the intention of the parties is irrelevant. Constructive trusts arise where no trust has directly or indirectly been declared, but where, according to the principles of equity, it would be a fraud for the person on whom the court imposes the trust to assert a beneficial ownership.
Both Mr Sullivan and Mr Robert Whitington QC with Mr Kevin Nicholson for the respondent, referred us to the latest High Court decision on Constructive Trusts, Giumelli v Giumelli (1999) 73 ALJR 547. It is a Western Australian case and the facts, coincidently, are not dissimilar. The majority (Gleeson CJ, McHugh, Gummow and Callinan JJ, with whom Kirby J agreed in short separate reasons) reviewed several authorities. In his submissions Mr Whitington complained that Mr Sullivan had argued as if the first appellant had made a contractual promise and there is no suggestion that he had: the argument has led Mr Sullivan into arguing the father's promises must be spelt out precisely. The majority in Giumelli dealt with the point:-
" In their submissions, the appellants stress the need to limit the measure of equitable relief lest the requirement for consideration to support a contractual promise be outflanked and direct enforcement be given to promises which did not give rise to legal rights. However, in Verwayen, Dawson J, after pointing out that at common law the role of estoppel was largely as a rule of evidence, stated that in equity its role has been vastly expanded to raise questions of substance. His Honour continued:
'At the same time, the discretionary nature of the relief in equity marks a further reason why the fear of the common law that promissory estoppel would undermine the doctrine of consideration is unwarranted.' " (@ 554)
The majority then cite with approval passages from the Reasons of McPherson J in Riches v Hogben (1985) 2 Qd R 292 and go on:-
"... His Honour noted that the critical element is the conduct of the defendant after the representation in encouraging the plaintiff to act upon it and continued:
'A consequence of applying the principle may be to complete an otherwise imperfect gift, as in Dillwyn v Llewelyn, or to give effect to an agreement that, for want of certainty or consideration or of some other essential element, falls short of constituting an enforceable contract.' " (@ 554)
The majority also referred extensively to the Commonwealth of Australia v Verwayen (1990) 170 CLR 394. They cited Deane J, one of the majority, who based his decision on estoppel:-
"Prima facie, the operation of an estoppel by conduct is to preclude departure from the assumed state of affairs.
... the question whether departure from the assumption would be unconscionable must be resolved not by reference to some preconceived formula framed to serve as a universal yardstick but by reference to all the circumstances of the case, including the reasonableness of the conduct of the other party in acting upon the assumption and the nature and extent of the detriment which he would sustain by acting upon the assumption if departure from the assumed state of affairs were permitted." (@ 555)
I need go no further. The question which Deane J put is the question to be put in this case too. Answering it, I have no hesitation in saying that it would be unconscionable if George were able to depart from the state of affairs assumed by Craig. The situation should be construed as George holding Barraroo on trust for Craig.
The learned Judge did not have the benefit of the decision of the High Court in Giumelli: that was given only on 24 March 1999 and His Honour had published his Reasons on 8 February. Giumelli does however confirm the correctness of the view which His Honour had already taken. It is decisively in favour of the respondent.
There is one other point I should canvass, a point which Mr Sullivan took: that in negotiations between the parties after George had given notice of dissolution, Craig offered to take Barraroo and abandon any claims (probably worth about $1m) he may have under the partnership agreement. Mr Sullivan argued that he should now be held to the offer. His Honour referred to this:-
" As for the stock and plant on Barraroo, it appears that these belong to the partnership. Although at one stage, the plaintiff was prepared to accept a transfer of Barraroo, including the stock and plant, in exchange for his interest in the partnership, his offer was rejected. In those circumstances, in addition to the transfer to him of Barraroo which I will order, he is entitled to his share of the partnership assets."

I agree with this: an offer once refused lapses: the offeror cannot be held to it.

I suggest the appeal be dismissed.

DUGGAN J. I have had the advantage of reading the draft judgments of Millhouse and Lander JJ.
I agree that the appeal should be dismissed. A number of representations were made to the respondent by his father in relation to the future ownership of the property. An expectation was created in the mind of the respondent as a result of the representations and he acted upon them to his detriment. When all the circumstances are considered, it was appropriate to grant the discretionary remedy available in equity so as to prevent unconscionable conduct on the part of the first appellant who had attempted to resile from the promises which he made.

LANDER J. I have had the advantage of reading in draft the reasons of Millhouse J.
As his Honour’s reasons show this is an appeal from a decision of a judge of this Court in which the Judge held that the appellant, George Morton, holds his interest in a property known as Barraroo subject to a constructive trust in favour of the respondent, Craig Morton.
His Honour ordered the appellant, George Morton, to sign all such documents and do all such things as are necessary to effect registration of the leasehold interest (which George Morton presently holds in Barraroo) in the name of the respondent, Craig Morton.
A number of grounds of appeal are raised but essentially the appellant claims that there was no or no sufficient evidence upon which the Trial Judge could have found that the property was held upon a constructive trust for the respondent.
In support of the appeal the appellant pointed to a number of inconsistencies in the respondents’ pleadings, respondents’ counsel’s opening and the evidence adduced through the respondent in support of his claim.
The appellant has emphasised, in support of this appeal, the discrepancies in the assertions of the representations made by the appellant which the appellant say demonstrate first, that the representations were not of a kind which would give rise to legal obligations and secondly, could not have led the respondent to assume that he would become entitled, at any particular time, to this property.
It is right, as the appellant has argued, that it is necessary to identify the representations upon which the respondent relied and from which it would be unconscionable to allow the appellant to depart.
In this case the respondents’ claim was that there had been a series of representations over a period of time commencing on the respondents’ wedding night which led the respondent to believe or assume that at a point of time the appellant would convey to him the appellant’s interest in Barraroo.
The learned Trial Judge found that it was a combination of a number of statements over the period of time which gave rise to the assumption, the expectation and reliance.
The first statement was that made on the evening of the wedding night. The second was about a week or so after the respondent and his wife took up residence at Barraroo. His father said to him at that stage:
“You’ll have to learn sheep. You will have to work hard. You will have to make the place pay. The sooner it pays, the sooner it will be yours.”
He further found that the appellant said to the respondent before 1986 when Rainie married that the respondent’s brother would:
“end up in on Pandie Pandie and that he would like to get something to help Rainie get a start as well.”
The Trial Judge also accepted that in 1987, when the appellant and the respondent were travelling home from an inspection of another station, in response to a question from the respondent as to what was happening with the partnership the appellant said that he would start:
“handing things over bit by bit ... that would take four or five years ... You will eventually own Barraroo.”
The Trial Judge also found that the respondent kept asking his father about the transfer to the respondent of Barraroo and he found that the appellant’s response was that:
“You’ve got a big debt now. Marrapina has to be paid for before I can do anything else at the moment.”
The Trial Judge was prepared to make those findings notwithstanding some apparently inconsistent statements in some correspondence that passed from the respondent to the appellant in 1996.
In a letter of 29 July 1996 to his father the respondent wrote: [AB 485]
“Dad, I have been thinking back over the past 14 years. Trying to figure out why we have got to where we are now. I have done what you asked me to do. You told me when I came to Barraroo in August 1982 to work hard, learn sheep, make the place pay, the sooner it paid for itself the sooner it was mine.”
In that same letter he wrote:
“Dad I never expected to own the place overnight, but I believed you meant it, and it would happen. That was a goal I thought I had.”
He further wrote:
“You first told me in 1987 that you were splitting things up. Coming back from inspecting Netley. Said it would take about four years but you would sign over land each year. Mum told me that is why I was being taxed on the huge amounts of money, that’s how you were doing it to sign things over.”
None of those statements are inconsistent with the general thrust of the respondent’s case. Those statements indicate to me, as they did to the Trial Judge, that the appellant encouraged the respondent to believe that he would become entitled to Barraroo when the property could pay for itself. The Trial Judge found that the representation was that the respondent would become entitled when the property became ‘viable’. I would not disagree with that finding which is a conclusion open on the evidence.
The appellant also referred to the respondent’s Statement of Claim to indicate consistency. In par 6 of the Amended Statement Of Claim the respondent pleaded:
“Prior to the purchase of Barraroo and on numerous occasions thereafter and up to and including June, 1996 the first defendant on his own behalf and/or on behalf of the defendants and Lorrie Marie Morton and later the defendants represented orally to the plaintiff that we would become the owner of a pastoral property and later after the first defendant had purchased Barraroo of Barraroo once Barraroo had become financially self sufficient and in doing so implied that the plaintiff would receive the pastoral property (laster Barraroo):-
a) free of encumbrance and/or
b)..... together with all plant and equipment, fixtures, fittings and livestock then on the property which would be free of any encumbrance and/or
c) towards or alternatively in satisfaction of his entitlement to a share of the capital of the partnership and/or
d)..... in conjunction with a release from any liability he might have to the defendants and an indemnity from all liabilities of the partnership.
The numerous occasions referred to herein include but are not limited to the following discussions namely -
6.1... on or about the 11th day of April, 1982 at Brisbane in the State of Queensland that he would purchase a property for the plaintiff which property would eventually be owned by the plaintiff.
6.2between the date of purchase of Barraroo by the first defendant and the date of the settlement thereof the first defendant enquired on a regular basis of the plaintiff as to his thoughts of the property, its location, its appropriateness for running sheep etc.
6.3... during 1986 and up to June, 1987 the first defendant had a number of discussions with the plaintiff for the building of a homestead on Barraroo which the first defendant required be designed to suit the palintiff as the plaintiff was going to be living in the premises and eventually it would become the plaintiff’s.
6.4in or about the month of August, 1982 the first defendant said to the plaintiff at Barraroo words to the effect that if the plaintiff “worked hard, knuckled down and learnt sheep, ran the property as if it were his own and made it pay for itself it would be the plaintiff’s.”
6.5... in early 1987 the first defendant said to the plaintiff when returning from Netley Station sough of Broken Hill that he was going to start transferring Barraroo to the plaintiff over a 4 to 5 year period whereupon it would eventually be owned by the plaintiff save and except for a small share which the first defendant would retain in the stock.
6.6after the purchase of Marrapina Station (Marrapina) by Marrapina Pty Limited and whilst the plaintiff worked on Marrapina the first defendant indicated to the plaintiff on a number of occasions that Barraroo would be eventually transferred to the palintiff.
6.7... in or about the month of September, 1995 at Pandie Pandie Station the first defendant said to the plaintiff words to the effect that he would attend to causing Barraroo to be transferred to the plaintiff and he would retain a 10% interest in the property or alternatively a wage and that he would instruct the accountant Mr. Sach to cause that to occur.
6.8in the month of October, 1995 the first defendant said to the plaintiff at Barraroo that he was going to cause Barraroo to be transferred to the plaintiff and would arrange for the accountant to effect the transfer.
6.9... on 26th June 1996 at the first defendant’s home at Wynn Vale the first defendant and the plaintiff had discussions relating to transferring Barraroo to the plaintiff and the first defendant said that he would discus some options with Sach.”
The appellant has asserted, on this appeal, that the allegations in par 6(c) and par 6(d) are inconsistent with the assertions made by the respondent in her evidence and thereby inconsistent with the findings made by the Trial Judge.
It was put that the pleadings are inconsistent with the evidentiary case presented by the respondent but consistent with the respondent’s counsel’s opening. In that opening there was an exchange between the judge and respondent’s counsel (who is different counsel than on appeal) when respondent’s counsel indicated to the judge that the respondent was to obtain the property in satisfaction of his share in the partnership.
I am not sure why it was that respondent’s counsel indicated that the respondent’s entitlement to Barraroo was in any way contingent upon the respondent relinquishing his share in the partnership. I am also not sure why it was that his counsel made the concession which was made.
I am not sure why the respondent elected to plead his case in the manner in which he did.
In any event, neither the pleading nor the concession were in accordance with the respondent’s evidence. That might have been a reason for the Trial Judge to reject the respondent’s case if he was satisfied that the inconsistency demonstrated unreliability on the part of the respondent.
He did not do that. He did not find the respondent to be an unreliable witness. On the contrary he preferred the respondent’s evidence to that of the appellant. He was entitlement to do that. He need not have concluded, as the appellant has suggested, in this Court, that he was almost bound to find that the respondent’s evidence was, by reason of these discrepancies, unreliable.
The respondent’s case was consistent in that he claimed that the appellant led him to believe, from representations over a period of time, that if the respondent worked on Barraroo after his marriage that Barraroo would become his when Barraroo was in a position to support itself. He used different words at different times but the thrust of his evidence was always the same.
In my view it was open to the Trial Judge to make the findings, which he did, in relation to the representations made by the appellant. It was also open to the Trial Judge to conclude that those representations gave rise to an expectation or assumption on the part of the respondent.
It was put by the appellant that whatever the expectation or assumption generated in the respondent’s mind it was not to the effect that the respondent would become entitled to Barraroo and also retain his share of the partnership.
I disagree with that submission.
It is true, as the appellant has complained, that respondent’s counsel indicated that the respondent’s entitlement to Barraroo was dependent upon the respondent relinquishing his share in Barraroo. However, that was not the respondent’s evidence.
I cannot discern why it was that the respondent’s counsel made such a concession in his opening but, in my opinion, the concession did not cause any injustice to the appellant in the way that the parties’ cases were conducted.
It was submitted by the respondent, on appeal, that the statements made by the respondent’s counsel at trial involved legal conclusions not assertions of fact or evidence. I am not sure that that is so. However, I am satisfied that the statements made by the respondent’s counsel did not mislead the appellant in the conduct of his defence.
I do not think there is any doubt that the respondent worked Barraroo in reliance on the representations made by the appellant. I think that is clear from the whole of the respondent’s conduct and the letter which he wrote to his father on 29 July 1996.
I am also satisfied, as was the Trial Judge, that by reason of the respondent’s reliance on those representations the respondent suffered detriment. He stayed on the property for fifteen years in an expectation that the property would become his in accordance with the representations which had been made to him.
In this case the respondent was entitled to the remedy given by equity when it is appropriate to impose a constructive trust and thus became entitled to a declaration that the property was held by his father on trust for him. This constructive trust was proprietary in nature and attached to Barraroo. It arose because it would be unconscionable on the part of the appellant for the appellant to be permitted to depart from the promises which he made to the respondent over a period of years. In the Commonwealth v Verwayen (1990) 170 CLR 394 at 428/429 Brennan J said:
“... equitable estoppel yields a remedy in order to prevent unconscionable conduct on the part of the party who, having made a promise to another who acts on it to its detriment seeks to resile from the promise.”
Dean said at 445:
“... the question whether departure from the assumption would be unconscionable must be resolved not by reference to some preconceived formula framed to serve as a universal yardstick but by reference to all the circumstances of the case, including the reasonableness of the conduct of the other party in acting upon the assumption and the nature and extent of the detriment which he would sustain by acting upon the assumption if departure from the assumed state of affairs were permitted.”
In this case, in my opinion, the respondent has made out the representations, the assumptions and expectations raised, the reasonableness of his own conduct in acting in reliance upon those representations, the detriment which would ensue if the appellant was entitled to depart from the promises made and thereby has become entitled to the remedy of a constructive trust.
I am mindful, of course, that before a constructive trust can be imposed by the Court the Court should first decide whether there is some other remedy which would be available to the respondent which would, in fairness, compensate the respondent for the detriment which the respondent had or would suffer by reason of the appellant departing from his established promises; Giumelli v Giumelli (1999) 73 ALJR 547.
In this case the promises were made directly by the appellant to the respondent and all related to the one property. No other party would suffer any loss or any inconvenience by reason of the order made by the Trial Judge.
In this case, having regard to the promises made to the respondent over the period of time, the nature of the promises, the property to which the promises related, the absence of any other party’s interest in the property, the reasonableness of the respondent’s conduct the extent of the detriment which would be otherwise suffered, the appropriate remedy was the one arrived at by the Trial Judge; Giumelli v Giumelli (supra).
I agree that the appeal should be dismissed.

[1999] SASC 368

2 December 1999