Richardson v Lindsay

[2019] NSWCA 148

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Richardson v Lindsay [2019] NSWCA 148
Hearing dates:	17 April 2019
Decision date:	20 June 2019
Before:	Macfarlan JA at [1]; Gleeson JA at [45]; White JA at [46]
Decision:	Appeal dismissed with costs
Catchwords:	EQUITY – estoppel – rights arising out of deed of family arrangement – appellant provided capital to fund purchase of property in which she would live with respondents – appellant consented to subsequent move away from that property – respondents relied to their detriment on consent – appellant estopped from complaining of move
Cases Cited:	Commonwealth v Verwayen (1990) 170 CLR 394; [1990] HCA 39 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Giumelli v Giumelli (1999) 196 CLR 101; [1999] HCA 10 Miller Heiman Pty Ltd v Sales Principles Pty Ltd (2017) 94 NSWLR 500; [2017] NSWCA 106 Morris v Morris (1982) 1 NSWLR 61
Category:	Principal judgment
Parties:	Lurline Faith Richardson (Appellant) John David Lindsay (First Respondent) Fiona Judy Lindsay (Second Respondent)
Representation:	Counsel: M Painter SC with H Jewell (Applicant) D Neggo (Respondent)   Solicitors: Seniors Rights Service (Appellant) Whiteley Ironside Shillington (Respondent)
File Number(s):	2018/325406
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Equity Citation: [2018] NSWSC 1457 Date of Decision: 28 September 2018 Before: Sackar J File Number(s): 2018/107944

HEADNOTE

[This headnote is not to be read as part of the judgment]

Under a Deed of Family Arrangement (“the Deed”), the appellant (“Faith”) conditionally gave $220,000 to one of her daughters (“Fiona”) and Fiona’s Husband (“John”) to assist them to purchase a property in Orange, New South Wales. By the Deed, Fiona and John undertook to care for Faith, allow her to live with them and to fund her transition to an aged person’s unit or care facility when necessary.

Fiona and John subsequently sold the Orange property and purchased another property at Lewis Ponds, about 25 kilometres outside of Orange. Faith initially moved with Fiona and John to the Lewis Ponds property but later moved out and has not since returned to live there.

By her statement of claim filed in the Equity Division on 26 March 2018, Faith claimed the return of $220,000. The primary judge found that Faith was estopped from complaining of the move and was not entitled to the return of her “conditional gift”.

The issues on appeal were:

1. Whether the primary judge erred in concluding that it was unnecessary to determine whether, but for her representation, Faith would have had an equitable charge and Fiona and John would have breached the Deed.

2. Whether the primary judge erred in finding that Faith was estopped from seeking the return of her conditional gift on the basis of the move.

3. Whether holding Faith bound by an estoppel causes loss to her which is disproportionate to any detriment suffered by Fiona and John.

Macfarlan JA, Gleeson JA, White JA held, dismissing the appeal:

In relation to question (1)

(Per…