Ryan v Ryan - [2016] TASSC 4

[2016] TASSC 4

COURT: SUPREME COURT OF TASMANIA

CITATION: Ryan v Ryan [2016] TASSC 4

PARTIES:  RYAN, John Shane
  v
  RYAN, Christa Freida

RINGIN, Shane Robert

FILE NO:  1119/2013
DELIVERED ON:  10 February 2016
DELIVERED AT:  Hobart
HEARING DATES:  4, 5 February 2016
JUDGMENT OF:  Estcourt J

CATCHWORDS:

Estoppel – Equitable estoppel – Proprietary estoppel – Where promisor made representations to give property to promisee – Whether promisee acted to his detriment in reliance on promisor's representations.
Equity – Relief – Whether relief measured by reference to value of representations – Where equitable compensation is the appropriate measure of relief.

Sidhu v Van Dyke [2014] HCA 19; Van Dyke v Sidhu [2013] NSWCA 198; Giumelli v Giumelli [1999] HCA 10, applied.
Aust Dig Estoppel [1048]

REPRESENTATION:

Counsel:
             Plaintiff:  B R McTaggart SC
             First and Second Defendants:      D F M Zeeman
Solicitors:
             Plaintiff:  Jim Saric Law
             First and Second Defendants:      Butler, McIntyre and Butler

Judgment Number: [2016] TASSC 4
Number of paragraphs: 54

Serial No 4/2016
File No 1119/2013

JOHN SHANE RYAN v CHRISTA FREIDA RYAN and
SHANE ROBERT RINGIN

REASONS FOR JUDGMENT ESTCOURT J

10 February 2016

The plaintiff is the eldest surviving child of Denis Bernard Ryan who died on 1 January 2012 ("the deceased"). The deceased had one other surviving child being Nadelle Catherine Beechey.
By his last will and testament dated 27 April 2004 ("the will") the deceased appointed the plaintiff and the second defendant (the son-in-law of the first defendant) as his executors and trustees.
The deceased's will provided that his trustees should hold his residuary estate on trust to pay his just debts and expenses and to hold the residue upon trust for his wife, the first named defendant, Christa Freida Ryan, provided that she survived him by 30 days.
The plaintiff renounced as the deceased's executor and trustee, and probate of the will was not sought by the second defendant.
On 23 December 2002 the deceased purchased a block of land at 5 Chablis Court, Berridale in Tasmania ("the property"). The property was registered in the sole name of the deceased on 22 January 2003.
On 1 December 2003 the deceased transferred the property to himself and the first defendant as joint tenants. The consideration for the transfer was expressed to be natural love and affection.
On 1 January 2012 the deceased died and the first defendant became sole owner of the property by way of survivorship upon his death.
In or about April 2012 the first defendant sold the property and retained the entirety of the net sale proceeds of approximately $500,000.
In a written witness statement admitted by consent as the evidence of the plaintiff and affirmed on oath from the witness box, the plaintiff stated that during the planning and construction of a house to be built by the deceased on the property (but, I note, before the first defendant became a registered joint tenant of the property), the deceased said to the plaintiff "on a couple of occasions" that the property "was going to be mine and my sister's one day".
In oral evidence the plaintiff said that the conversation occurred in early 2003 and that the words his father used in that conversation were "the house will be your sister and yours anyway".
In his oral evidence-in-chief the plaintiff was asked by his counsel, Mr McTaggart SC, whether there was any "further discussion" about what the deceased intended to do with his estate from that time until the planning stage of the Berriedale house. The plaintiff's answer was that there had been "another discussion" in early 2003, regarding the planning of the house and that led to a comment wherein the deceased said, "the house will go to you and your sister".
The references to a "further discussion" and "another discussion" relate back to the plaintiff's oral evidence that in 1998, after the death of the plaintiff's mother, the deceased's first wife, a conversation had occurred at the Surfer's Paradise racecourse where the plaintiff said that as a result of him asking the deceased if he had his affairs in order, the deceased said, "Yes, I have, everything goes to your sister and yourself". (In his witness statement the plaintiff stated that the deceased's words in answer to the plaintiff's enquiry were, "Yes it's easy, everything will go to you and yours [sic] sister". Nothing turns on the difference.)
Given the importance of the plaintiff's evidence concerning the representations that the plaintiff says that the deceased made concerning the house and land at 5 Chablis Court, and the context in which the words were spoken, I set out the relevant parts of both the plaintiff's written and oral evidence.
In his witness statement the plaintiff stated as follows:
"77      During approximately 2002 the initial planning stages of the Berriedale house the deceased advised me it was only going to be a 1 level, 3 bedroom house, 'nothing flash'. I suggested to him that he should build something more substantial as it would be a good investment. He agreed. He built the house with two stories and 4/5 bedrooms.
78        During the planning stage I assisted him by discussed ideas and making suggestions on both the planning and the construction.
79        The plans for the house were provided by Peter Berry. He was a plumber/builder. I knew him as a friend of the deceased and Mr Berry was also involved in horses as was the deceased.
80        Peter Berry did not draw the plans for the Berriedale property, rather it was based on a generic plan that Mr Berry modified for the deceased. The deceased and I had input into the modifications to the generic plan.
81        During the planning and construction of the Berridedale house, the deceased said to me on a couple occasions that the Berriedale property was going to be mine and my sister's one day. One of those occasions was face to face at the carpark of 2/10 Lampton Avenue, Derwent Park.
82        On one occasion during the planning of the Berriedale house when I told the deceased he should build a more substantial house. He said to me, 'well the house will go to Nadelle and you anyway'.
83        After the deceased met Christa I saw him less. I still would talk to him on the phone and saw him regularly through work but I didn't go to his house much.
84        On or about Christmas Eve in 2006 we had dinner together at the Berriedale property. During that evening the deceased and I went and stood out on the deck after dinner. I told him that I had made some changes to my will and that he would be the executor. I also told him how I wanted things dealt with. The deceased then said to me that in his will Nadelle and I would receive the Berriedale property and Christa would be left his superannuation. I assured him in the event of his passing I would do my utmost to carry out to his wishes and suggested that Christa could stay in the Berriedale property as long as she liked as I knew her own home in Victoria had tenants.
85        On or about April or May 2011 at my office in Lampton Avenue, Derwent Park, I discussed with my father an argument Nadelle and I had at my holiday home in Orford the weekend before. Nadelle had expressed her dismay about matters regarding to the passing of our mother and that she could not understand why she was not an executor of Dad's will. I told him I explained to Nadelle the decision was purely based on the fact I was older and more experienced with these matters. Dad said he would leave it for a bit and see if Nadelle settled down. During that conversation I had told my father that I had again changed my will and that he was going to be an executor. Dad said you know what I want to happen when I am gone but hopefully that's a long way off for both of us."
As to the plaintiff's oral evidence-in-chief the transcript records as follows:
"Was there any further discussion about what your father intended to do with his estate from that time, until the planning stage of the Berriedale house?.....Yes there was another discussion in early 2003, regarding the planning of the house but that led to a comment where my father said, 'the house will go to you and your sister'.
Well just - ?.....Sorry, 'the house will be your sister and yours anyway'.
Okay well let's just go to the planning stage of the house, did you have any discussion with your father about the size of the house?.....Yes, he initially spoke of building, you know, very early in the stage, building a single storey home and something basic and simple. I encouraged him to build something a bit more substantial. Being that I thought it may be - have ended a better investment for him, ultimately.
What was his response to that suggestion?.....I think he tended to agree because he ended up building a more substantial home. Well he told me he agreed.
Did he say anything to you about what would ultimately happen to the house at that time?.....Yes, he did. He told me that the house would end up my sister and I's.
What about during the actual construction of the Berriedale house? Did you have any further discussion with him about what would happen to the house during that time?......Yes, at the start of the construction period he had actually made that comment to me earlier that we would ultimately, the house would end up my sister and I's.
Yes, you've already---……That was in 2003.
All right. What about during the construction of the house? Was there any further discussion about what would happen to the house?.......Not that I recall, no.
Did your father ever come to your workplace?.......Yes.
Now where was your workplace?.......Lampton Avenue, Derwent Park, number 10.
Do you recall whether your father came to your workplace at any time in early 2003?......Yes, he did.
Do you recall having any discussion with him?.......Yes, I do.
And where would the discussion take place?........The discussion occurred in the car park, where we'd walked out of a noisy workshop and an office with other people in it and we were literally leaning against cars having a conversation, and he added to me at that point that the house would end up my sister and I's.
What did you understand he meant by the house would end up you and your sister's anyway?.......My understanding of that was that in the event of his passing it would be in the will to be left to my sister and I.
Can you recall any other discussions with your father about what would happen to the house during the construction of it?........No, I can't, not during the construction of it, no.
I'll take you forward to Christmas Eve 2006, where were you that night?.......In the house at Chablis Court on Christmas Eve having dinner.
Who else was present?........My sister and her husband, and Nadelle and Graham, of course Christa, and there at that time I do believe that Shane and Renata and there might have been somebody else there too, my daughter I think was there, but essentially, yeah, the family group.
Did you have any discussion with your father that night?......Yes, I did.
Where did that take place?.......Out on the deck, out the front after dinner.
What did you say to your father and what did he say to you?........I said to my father I'd changed my will and he remained to be executor. He was executor of the new will, and had some discussions regarding what was in that will, and he in turn said to me 'Well you know you're executor of my will, the house goes to you and your sister and the superannuation goes to Christa'.
What ultimately happened of the superannuation after your father died?.......Christa received that.
Can I take you forward to April/May 2011. Do you recall any discussion with your father during that period?........Yes, yes I do. That was---
Where did that take place?........In my workplace as well, in the building or somewhere, we were there.
What did you say and what did he say?.......I'd actually was informing – I'd had an argument with my sister and it related back to Mum's death and a few things that had occurred that she wasn't aware of that I didn't know. Anyway, I was telling him, I told him that I'd had an argument with my sister. I told him what some of the issues were and one of the issues was she wasn't sure why she wasn't an executor of the will and why I was. I explained to that – explained that Dad purely thought I was a bit older and probably would be slightly more experienced, and he –
So, if we could just – if we could just focus on what you discussed with your father?......-he in turn responded – responded saying, "You know what I want to happen," and hopefully it's – it's not in any time soon. For both of us.
Did you have any further discussion with your father after that, before he died, about the terms of his will?......No."
The plaintiff's evidence concerning the deceased's representations was corroborated to a significant degree by the evidence of the plaintiff's sister Nadelle Beechey.
In her witness statement admitted into evidence and confirmed on oath Ms Beechey stated:
"38      I recall that the plaintiff did assist with the building on the property and was in the project but I cannot state specifics.
39        During the construction of the house I was surprised as to how substantial in size it was. I said to my father 'How big do you want this to be'. He replied 'it is not that big, but it will be yours and John's one day'.
40        On multiple occasions during the construction of the house my father told me that John and I would be looked after once he was gone".
As to the oral evidence-in-chief of Ms Beechey, the transcript reads as follows:
"MR McTAGGART SC: (Resuming). I want to take you to the time at which the house at Chablis Court was being constructed?......Mmhm?
And I'm going to ask you whether you recall having any discussion with your late father regarding the construction?......I did. It was early on in the stages when it was being built and I went around there – it was early in 2003 and I said to him, 'My God, Dad – it's big.' You know, how big do you actually want this house? And he said, 'Don't worry about it – Bill' – 'cause he used to call me Bill – 'one day it will be yours and John's.'"
It was not suggested to the plaintiff or to Ms Beechey in cross-examination that the deceased did not make the representations attributed to him by them.
In Sidhu v Van Dyke [2014] HCA 19, French CJ, Kiefel, Bell and Keane JJ said at [1]-[2]:
"1 FRENCH CJ, KIEFEL, BELL AND KEANE JJ. In The Commonwealth v Verwayen , Mason CJ described estoppel as 'a label which covers a complex array of rules spanning various categories.' His Honour went on to say of 'titles such as promissory estoppel, proprietary estoppel and estoppel by acquiescence' that they are all 'intended to serve the same fundamental purpose, namely 'protection against the detriment which would flow from a party's change of position if the assumption (or expectation) that led to it were deserted.'
2 In Giumelli v Giumelli, it was said that the category of equitable estoppel that is usually traced back to the decisions in Dillwyn v Llewellyn and Ramsden v Dyson is now a 'well recognised variety of estoppel as understood in equity', which affords relief 'found in an assumption as to the future acquisition of ownership of property … induced by representations upon which there had been detrimental reliance by the plaintiff.'" [Footnotes omitted.]
The plaintiff bears the onus of establishing that it was objectively reasonable for him to rely on the deceased's representations and of establishing that he did in fact rely upon them to his detriment. The plurality in Sidhu said at [58]:
"… Reliance is a fact to be found; it is not to be imputed on the basis of evidence which falls short of proof of the fact. It is actual reliance by the promisee, and the state of affairs so created, which answers the concern that equitable estoppel not be allowed to outflank Jorden v Money by dispensing with the need for consideration if a promise is to be enforceable as a contract. It is not the breach of promise, but the promisor's responsibility for the detrimental reliance by the promisee, which makes it unconscionable for the promisor to resile from his or her promise." [Footnote omitted.]
The plaintiff is not required to prove that the conduct of the deceased was the sole inducement operating on the plaintiff's mind in acting to his detriment. The detriment claimed in this case is that the plaintiff asserts that he suffered as a result of providing the deceased with advice and labour and materials in connection with the construction of the house on the property. In Sidhu, the plurality said at [71]–[73]:
"Her Honour's finding that the appellant's promises 'played a part in her willingness to spend time and effort in the maintenance and improvement of The Oaks Cottage and assisted on the Burra Station property' warranted the conclusion that the respondent had discharged the onus she bore on the basis that to establish estoppel by encouragement it is not necessary that the conduct of the party estopped should be the sole inducement operating on the mind of the party setting up the estoppel. Counsel for the appellant disputed this proposition but did not cite any authority in support of their position. The respondent's position is amply supported by authority.
72 In Amalgamated Investment & Property Co Ltd (in liq) v Texas Commerce International Bank Ltd , Robert Goff J said that:
'the question is not whether the representee acted, or desisted from acting, solely in reliance on the encouragement or representation of the other party; the question is rather whether his conduct was so influenced by the encouragement or representation … that it would be unconscionable for the representor thereafter to enforce his strict legal rights.' (emphasis in original)
73 Similarly, in Steria Ltd v Hutchison, Neuberger LJ said that it is sufficient for the representee to show that 'the representation was a significant factor which he took into account when deciding whether to [act as he did].' This approach conforms to that taken by the High Court as long ago as Newbon v City Mutual Life Assurance Society Ltd , where it was said that the 'supposed belief' of the representee as 'a contributing cause' of the representee's conduct was a 'sufficient connection between the assumption and the position of detriment'. It is the view which continued to prevail in Gould v Vaggelas." [Footnotes omitted.]
In his oral evidence-in-chief the plaintiff was asked whether he had charged the deceased for labour or for certain materials he supplied in connection with the construction of the house. The following exchange is relevant:
"Now, just focusing on that invoice, what was that for?......Aluminium extrusion, double glazed units, sealants, fixings – anything involved – to take a window from materials to a window in a house.
Was there – was it at cost, or was there some sort of mark up?......It was at cost.
Did it include any labour component?......No.
Did you ever charge your father any labour component for the work you did?......Nope, no. No, I didn't.
Why didn't you?......Well, I was trying to help him, I was in a good position at the time and I was under the understanding that the house was going to end up my sister and I's.
Did you charge your father for the additional materials you supplied?......No, I did not.
Why didn't you do that?......I was of the understanding I didn't need to at the time, and I was just under the understanding that ultimately it would come back to me anyway." [Emphasis added]
It is clear from that exchange that while the deceased's representations may not have been the sole inducement in carrying out the work referred to, it was a significant factor which he took into account when deciding whether to act as he did. That is sufficient to establish reliance as can be seen from the passages from Sidhu set out above.

The ultimate question relating to unconscionability was posed by the plurality in Sidhu at [77] in the following way:
"This category of equitable estoppel serves to vindicate the expectations of the representee against a party who seeks unconscionably to resile from an expectation he or she has created . The extent to which it is unconscionable of the appellant to seek to resile from the position expressed in his assurances to the respondent may be gauged by reflecting on the likely response of the respondent if the appellant had told her in January 1998: 'I am happy for you to remain at Oaks Cottage, but only for so long as it suits me and my wife to have you here; and, while you remain on the property, you must care for it as if you were the owner of the property and do unpaid work on parts of Burra Station other than the property. Until I make the property over to you, you must pay rent sufficient to content my wife. Should you choose to leave, you will leave with nothing in return for the value of your work here.'"
The plaintiff was asked just such a question in the present case. In cross-examination he was asked by counsel for the defendants, Mr D Zeeman, "If your father hadn't said anything to you about you and Nadelle receiving his property, would you have helped him with his house at 5 Chablis Court?" His answer was, "Yes". That answer was not however, by any means unqualified. The plaintiff said that he would have helped the deceased "to a degree", and that the deceased would have got "father's rates". The entire exchange appears from the transcript as follows:
"If your father hadn't said anything to you about you and Nadelle receiving his property, would you have helped him with his house at 5 Chablis Court?......Yes.
So you would have helped him regardless of what he said to you?......I would have helped him to a degree.
Such as labour?......He would have got father's rates, if I may answer it like that.
And what does father's rates mean, Mr Ryan?......There's mate's rates – would mean that it would be a cost plus a minimal margin to cover costs.
So you're talking only about labour when you answer that question?......No.
Well, I did ask about labour I think, perhaps I'll rephrase it. What does it mean in the context of providing labour?......He would've certainly got the project done at less than commercial rates.
And he did get this project done at less than commercial rates, but he did pay didn't he?.....He got the project done for the cost of the materials."
The allusion in the last question in the passage from the transcript set out above relates to an invoice from the plaintiff's company Hobart Glass and Aluminium to the deceased dated 28 April 2003 in the sum of $17,000. The invoice specifies that it relates "to supply and install aluminium windows and doors as per quotation". It was suggested to the plaintiff that the deceased, upon paying that invoice and having expected to have been charged more, and having been willing to pay more, was in truth making payment in full to the plaintiff (via his company), for all aspects of the glass and glazing work carried out on the house.
The plaintiff's explanation was that the invoice was a "generic" invoice automatically generated by the company's computer, and that the amount charged did not in fact include any amount for the cost of labour, for which the plaintiff now claims. I have no reason to doubt that explanation. I accept the plaintiff as an honest witness. It was not suggested otherwise on behalf of the defendants.
There was also a suggestion made to the plaintiff in cross-examination that he had given the deceased an "estimate" for his labour and materials in connection with the construction of the house, and that the deceased had "accepted" that estimate. The plaintiff agreed that he had given at least a verbal estimate to the deceased but that the estimate was never intended to be for the price of the windows in the building. Rather, the plaintiff said, it was an estimate given by him to the deceased prior to the construction so the deceased's bank knew what the house was going to cost.
The plaintiff said that the deceased knew that the plaintiff was charging him only for materials, whereas the estimate for the bank would have covered "a standard job", that is, the cost of manufacturing, supplying and installing the windows and doors. Again I accept the plaintiff's evidence as truthful.
In Van Dyke v Sidhu [2013] NSWCA 198 Barrett JA with whom Basten JA and Tobias AJA agreed said at [55]-[56]:
"The primary judge approached the matter of detrimental reliance by considering three separate questions:
1Was it objectively reasonable for the appellant to rely on the promise made to her by the respondent?
2Did the appellant actually rely on the promises made to her by the respondent?
3 Did the appellant thereby suffer detriment?
56 There is no challenge to that approach. It is correct and orthodox."
I accept that the deceased made the representations attributed to him by the plaintiff and Ms Beechey, and I accept that those representations were a significant factor in the plaintiff carrying out the work and supplying the materials that he did without charge (save for the cost of the glass and aluminium works the subject of the invoice of 28 April 2003). Actual reliance is established.
I also accept that in doing so the plaintiff acted to his detriment to the extent that had the deceased told him that he wished to resile from his promise concerning inheritance of the house and property, the plaintiff would have charged the deceased at "cost plus a minimal margin to cover costs". Detriment is established.
The only remaining question is whether it was objectively reasonable for the plaintiff to have relied on the deceased's representations.
Counsel for the defendants submits that I should not be satisfied that it was. He submits that the words used by the deceased were too ambiguous to constitute representations capable of reasonable reliance, that they were mere passing temporal expressions of testamentary intention, and that it was totally unreasonable of the plaintiff to expect that he should receive half of a house and land valued at $500,000 for the mere outlay of some work and materials which, at commercial rates and costs, amounted only to some $44,190.
Counsel for the defendants also submits that it was not objectively reasonable for the plaintiff to have relied on the deceased's representations when the evidence established that he knew that the deceased had formed a relationship with the first defendant in mid-2002 and married her in July 2003, and that the house on the property was being built for the deceased and the first defendant to live in.
Counsel for the defendants submits that it is wholly unreasonable for the plaintiff to expect that he and his sister would inherit the house and land when that would result in no provision being made for the first defendant.
I do not accept that it was not objectively reasonable for the plaintiff to have relied on the deceased's representations.
The question of the quantum of the detriment suffered, when compared to the value of the promise, goes to the measure of relief to which the plaintiff may be entitled.
As to what provision might be made for the deceased's widow, the evidence does not establish that the plaintiff knew the extent of the deceased's assets and superannuation or other entitlements on death. Nor does the evidence establish that the plaintiff knew what provision the deceased had made for his widow.
I place no reliance on the conversation between the plaintiff and the deceased at the racecourse in Surfer's Paradise in 1998 given its age and the fact that it occurred before the deceased formed a relationship with the first defendant. The only relevance that conversation has it that it would tend to establish that the deceased's later representations need not have come as any surprise to the plaintiff.
What is important to my mind in determining, as I do, that it was objectively reasonable for the plaintiff to rely on the deceased's representations concerning the house and land at 5 Chablis Place, is that they occurred in the context of discussions concerning the planning of the house and its construction in a way that justifies reliance.
For example, the plaintiff gave evidence, as already noted, that on one occasion during the planning of the house when he told the deceased he should build a more substantial house, the deceased, who had originally planned to build "nothing flash", just a one level three bedroom house, said, "well the house will go to Nadelle and you anyway".
That statement cannot be characterised as a mere passing statement of temporal intention because in a similar vein the deceased said to Ms Beechey that it should not concern her that the house was so big and that it was not "really that big" because it would be hers and the plaintiff's one day.
On all of the evidence, I am satisfied that it was objectively reasonable for the plaintiff to have relied on the representations made to him by the deceased and, that the deceased having resiled from his promise by transferring the property to himself and the first defendant as joint tenants, it would be unconscionable for the first defendant to retain the entire proceeds of sale of the property without compensating the plaintiff for the detriment that he suffered as a result of his reliance.
As to the measure of relief, plainly this is not a case where the Court should declare a constructive trust, or to hold the first defendant to the full value of the deceased's promise.
In Giumelli v Giumelli (1999) 196 CLR 101 at 123 Gleeson CJ, McHugh, Gummow and Callinan JJ said at [9]-[10]:
"9 The relief granted by the Full Court indicates that the equity of the respondent was more than a 'defensive equity'. This phrase was used by Deane J in The Commonwealth v Verwayen to denote laches, acquiescence or delay or a mere set-off. Further, by obliging the appellants to execute a conveyance, the equity established by the respondent did more than prevent the appellants from insisting upon their strict legal rights as present owners. On the other hand, the respondent did not establish an immediate right to positive equitable relief as understood in the same sense that a right to recover damages may be seen as consequent upon a breach of contract.
10 The present case fell within the category identified by the Privy Council in Plimmer v Mayor, &c, of Wellington where 'the Court must look at the circumstances in each case to decide in what way the equity can be satisfied'. Before a constructive trust is imposed, the court should first decide whether, having regard to the issues in the litigation, there is an appropriate equitable remedy which falls short of the imposition of a trust. At the heart of this appeal is the question whether the relief granted by the Full Court was appropriate and whether sufficient weight was given by the Full Court to the various factors to be taken into account, including the impact upon relevant third parties, in determining the nature and quantum of the equitable relief to be granted." [Footnote omitted.]
In Sidhu at [82]-[84] the plurality said:
"82      In Giumelli v Giumelli , Gleeson CJ, McHugh, Gummow and Callinan JJ held that, because the fundamental purpose of equitable estoppel is to protect the plaintiff from the detriment which would flow from the defendant's change of position if the defendant were to be permitted to resile from his or her promise, the relief granted may require the taking of active steps by the defendant including the performance of the promise and the performance of the expectation generated by the promise. That holding is supported by the leading decisions to which this category of equitable estoppel is usually traced .
83        The requirements of good conscience may mean that in some cases the value of the promise may not be the just measure of relief. In The Commonwealth v Verwayen, Deane J noted that:
'There could be circumstances in which the potential damage to an allegedly estopped party was disproportionately greater than any detriment which would be sustained by the other party to an extent that good conscience could not reasonably be seen as precluding a departure from the assumed state of affairs if adequate compensation were made or offered by the allegedly estopped party for any detriment sustained by the other party.'
84        If the respondent had been induced to make a relatively small, readily quantifiable monetary outlay on the faith of the appellant's assurances, then it might not be unconscionable for the appellant to resile from his promises to the respondent on condition that he reimburse her for her outlay. But this case is one to which the observations of Nettle JA in Donis v Donis are apposite:
'[H]ere, the detriment suffered is of a kind and extent that involves life changing decisions with irreversible consequences of a profoundly personal nature … beyond the measure of money and such that the equity raised by the promisor's conduct can only be accounted for by substantial fulfilment of the assumption upon which the respondent's actions were based'." [Footnotes omitted.]
The present case is not one where the observations of Nettle JA, as he then was, in Donis are apposite. On the contrary, this is a case where the plaintiff had been induced to make a relatively small, readily quantifiable monetary outlay on the faith of the deceased's assurances, and it would not be unconscionable for the deceased to have resiled from his promises to the plaintiff as long as the first defendant reimburse the plaintiff for his outlay.
The appropriate order in the present case is that the first defendant pay to the plaintiff by way of equitable compensation a sum representing his actual loss in not charging the deceased as he would have done had there been no promise made.
That amount should be calculated as the cost to the plaintiff in providing the labour and supplying the materials he did "plus a minimal margin to cover costs". Unfortunately the evidence does not allow me to calculate what "a minimal margin to cover costs" might have been.
I am however, able to discern from the plaintiff's witness statement the actual costs, as opposed to then existing commercial rates, of providing the labour and supplying the materials that he did.
That amount is $28,582, comprising consultancy work - $210 (five hours at $42 an hour, based on the lowest labour rate about which I have evidence); labour for the roof for the rear of the house - $4,032; materials for the rear roof - $3,100; labour for the installation of glass and aluminium works - $13,440, and labour for the fabrication of the glass and aluminium for the project - $7,800.
Accordingly, I fix the sum of money representing the value of the plaintiff's equitable claim as $28,582 and I order that sum to be paid by the first defendant to the plaintiff.