Q (A Pseudonym) v E Co (A Pseudonym)

Case [2020] NSWCA 220


Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Q (a pseudonym) v E Co (a pseudonym) [2020] NSWCA 220
Hearing dates: 25, 26 and 27 March 2020
Decision date: 21 September 2020
Before: Meagher JA at [1];
Leeming JA at [207];
Payne JA at [208]
Decision:

1. Direct that the parties attempt to agree within 14 days short minutes of order giving effect to these reasons.

2. Direct that failing such agreement, the parties exchange written submissions supporting the orders contended for and remaining in issue. Those written submissions, not to exceed 5 pages, to be exchanged and filed with the Court within a further 14 days. In the absence of any further direction, the final orders to be made will then be determined on the papers.

Catchwords:

ESTOPPEL – Proprietary estoppel – Encouragement – Where claim of encouragement not based on specific words – Where primary judge emphasised defendant’s knowledge of plaintiffs’ expectation – Whether estoppel as found properly characterised as estoppel by encouragement or acquiescence

ESTOPPEL – Proprietary estoppel – Nature of promise – Where relief encompassed property acquired after encouragement and initial reliance – Where detrimental reliance by plaintiffs continuing – Whether necessary for all property the subject of relief to have been identified and owned by defendant at the time of encouragement and initial reliance

ESTOPPEL – Proprietary estoppel – Detrimental reliance – Where plaintiffs found to have made “life-changing” decisions – Whether error in giving significant weight to plaintiff’s “hypothetical” evidence of counterfactual behaviour in making finding of reliance – Whether “countervailing benefits” received by plaintiffs by reason of reliance relevant to assessment of detriment – Whether plaintiffs would suffer substantial detriment if expectation departed from

ESTOPPEL – Proprietary estoppel – Relief – Where relief involved “acceleration” of the encouraged expectation – Where constructive trust declared by primary judge – Whether to impose conditions on relief – Whether conditions necessary to “do equity” – Whether condition for payment of rent “conceptually inconsistent” with recognition of constructive trust   

Legislation Cited:

Court Suppression and Non-publication Orders Act 2010 (NSW)

Uniform Civil Procedure Rules 2005, rr 51.17(1), 51.40(1)

Cases Cited:

Amalgamated Investment & Property Co Ltd (in liq) v Texas Commerce International Bank Ltd [1984] QB 84

Ashton v Pratt (2015) 88 NSWLR 281; [2015] NSWCA 12

Australian Financial Services and Leasing Pty Ltd v Hill Industries Ltd (2014) 253 CLR 560; [2014] HCA 14

Bofinger v Kingsway Group Ltd (2009) 239 CLR 269; [2009] HCA 44

Browne v Browne [2019] WASCA 1

Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304; [2009] HCA 25

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

Crabb v Arun District Council [1976] Ch 179

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

Dann v Spurrier (1802) 7 Ves Jun 231; 32 ER 94

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

DHJPM Pty Ltd v…

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AGLC
Q (a pseudonym) v E Co (a pseudonym) [2020] NSWCA 220
Case
[2020] NSWCA 220
Decision Date

CaseChat Overview and Summary

The appeal concerned a claim of proprietary estoppel brought by the plaintiffs against E Co. The dispute arose from representations allegedly made by E Co that encouraged the plaintiffs to expect they would acquire an interest in certain property. The primary judge found that proprietary estoppel had been established and made orders granting relief. E Co appealed this decision to the Court of Appeal of New South Wales.

The central legal issues before the Court of Appeal were whether the primary judge had erred in characterising the estoppel as one by encouragement or acquiescence, particularly given the absence of specific words forming the basis of the encouragement. The court also considered whether the nature of the promise was sufficiently established, especially concerning property acquired after the initial encouragement and reliance, and whether the plaintiffs' detrimental reliance was correctly assessed, including the weight given to hypothetical counterfactual behaviour and the relevance of countervailing benefits. Finally, the court examined the appropriateness of the relief granted, specifically the imposition of conditions on the constructive trust declared by the primary judge.

The Court of Appeal held that the primary judge’s finding of estoppel by encouragement was not erroneous, even in the absence of specific words, as the judge had correctly emphasised E Co’s knowledge of the plaintiffs’ expectations. The court found that the relief granted, which encompassed property acquired after the initial encouragement and reliance, was permissible because the detrimental reliance by the plaintiffs was ongoing. The court also determined that the primary judge had not erred in giving significant weight to the plaintiffs’ counterfactual evidence, nor in considering the countervailing benefits received, as these were relevant to assessing the substantial detriment the plaintiffs would suffer if their expectations were not met. The court found that the condition for payment of rent imposed by the primary judge was conceptually inconsistent with the recognition of a constructive trust and therefore should not be imposed.

The Court of Appeal directed the parties to attempt to agree on short minutes of order giving effect to the court's reasons within 14 days. If agreement could not be reached, the parties were to exchange written submissions on the outstanding orders within a further 14 days, after which the final orders would be determined on the papers.

Orders

Orders of the court

1. Direct that the parties attempt to agree within 14 days short minutes of order giving effect to these reasons.

2. Direct that failing such agreement, the parties exchange written submissions supporting the orders contended for and remaining in issue. Those written submissions, not to exceed 5 pages, to be exchanged and filed with the Court within a further 14 days. In the absence of any further direction, the final orders to be made will then be determined on the papers.

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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