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Roma Lopeman v WIN Corporation Pty Ltd

Roma Lopeman v WIN Corporation Pty Ltd

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Case Copied 28 September 2020 71 min read

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Supreme Court

New South Wales

Medium Neutral Citation: Roma Lopeman v WIN Corporation Pty Ltd [2020] NSWSC 1305
Hearing dates: 22, 23, 24, 28 July 2020, further submissions on estoppel, 31 July 2020
Decision date: 28 September 2020
Jurisdiction: Equity - Expedition List
Before: Sackar J
Decision:
See para 206

Catchwords:
CONTRACTS — Formation — Whether binding agreement existed between the parties —Where defendant provided letter to Council stating that parties had reached in principle agreement regarding the grant of easement by the defendant in favour of the plaintiff — Where parties had negotiated the terms of a Deed providing for the grant of the easement — Whether intention of the parties was not to make a concluded bargain unless and until they executed the Deed —Where the Deed was not signed by the defendant
ESTOPPEL — Promissory or proprietary estoppel — Whether the defendant represented that it agreed to or would grant an easement to the plaintiff— Whether plaintiff relied on such a representation or promise — Where defendant provided letter to Council that parties had reached in principle agreement regarding the grant of easement — Discussion as to appropriate relief if estoppel made out
LAND LAW — Easements — Whether easement should be granted pursuant to s 88K of the Conveyancing Act — Whether easement reasonably necessary — Where alternative access routes potentially available — Where proposed easement provided the safer and more practical route

Legislation Cited:
Conveyancing Act 1919 (NSW) s 88K
Evidence Act 1995 (NSW) 29(2)

Cases Cited:
117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 (1998) 43 NSWLR 504
Ashton v Pratt (2015) 88 NSWLR 281
Austotel Pty Ltd v Franklins Selfserve Pty Ltd (1989) 16 NSWLR 582
Baulkham Hills Private Hospital Pty Ltd v GR Securities Pty Ltd (1986) 40 NSWLR 622
Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153
Caringbah Investments Pty Ltd v Caringbah Business and Sports Club Ltd (in liq) [2016] NSWCA 165
Commonwealth of Australia v Verwayen (1990) 170 CLR 394
Construction Technologies Australia Pty Ltd v Doueihi [2014] NSWSC 1717; 17 BPR 33,457
Crabb v Arun District Council [1976] Ch 179; [1975] 3 All ER 865
DHJPM Pty Limited v Blackthorn Resources Limited (formerly called AIM Resources Ltd) (2011) 83 NSWLR 728
Dillwyn v Llewelyn (1862) 4 De GF & J 517; 45 ER 1285
Electricity Generation Corporation t/as Verve Energy v Woodside Energy (2014) 251 CLR 640
Feldman v GNM Australia Ltd [2017] NSWCA 107
Giumelli v Giumelli (1999) 196 CLR 101
Gordon v Lever (No 2) [2019] NSWCA 275
GR Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd (1986) 40 NSWLR 631
Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641
Kelly v Fraser [2013] 1 AC 450
Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115
Left Bank Investments Pty Ltd v NgunyaJarjum Aboriginal Corporation [2020] NSWCA 144
Malago Pty Ltd v AW Ellis Engineering Pty…

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.

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Details

Case: [2020] NSWSC 1305
Decision Date: 28 September 2020

CaseChat Overview and Summary

Roma Lopeman initiated legal proceedings against WIN Corporation Pty Ltd, contending that a binding agreement existed for the grant of an easement on WIN's property, which would benefit Roma's land. The case was heard in the Supreme Court of New South Wales. Roma argued that despite the parties negotiating the terms of a Deed for the easement and WIN providing a letter to the Council stating that they had reached an in-principle agreement, the failure to execute the Deed did not negate the existence of a binding contract. WIN Corporation contended that the intention of the parties was not to make a concluded bargain unless and until they executed the Deed, and that no binding agreement existed.

The court was required to determine whether a binding agreement existed between the parties, and if so, whether promissory or proprietary estoppel applied to prevent WIN Corporation from denying the existence of such an agreement. Additionally, the court had to consider whether an easement should be granted pursuant to s 88K of the Conveyancing Act, given the alternative access routes potentially available.

The court found that while the parties had reached an in-principle agreement and Roma had reasonably relied on the letter provided by WIN to the Council, the intention of the parties was not to create a binding agreement unless and until the Deed was executed. However, the court found that promissory estoppel applied, preventing WIN Corporation from denying the existence of the agreement. The court also found that an easement should be granted pursuant to s 88K of the Conveyancing Act, as the proposed easement provided the safer and more practical route.

The court ordered that an easement be granted to Roma over the relevant portion of WIN's property, and that the terms of the easement be set out in a Deed to be executed by the parties. The court also ordered that WIN Corporation pay Roma's costs of the proceedings.

Orders