Van Dyke v Sidhu - [2012] NSWSC 118

Supreme Court

New South Wales

Medium Neutral Citation: Van Dyke v Sidhu [2012] NSWSC 118
Hearing dates: 12 and 13 December 2011
Decision date: 23 February 2012
Jurisdiction: Equity Division
Before: Ward J
Decision:
Plaintiff's claim dismissed

Catchwords: EQUITY - proprietary estoppel - promise to transfer property once subdivision of land carried out - no separate promise to subdivide the land - where property was held jointly with wife who was not a party to the promises (or the proceedings) - whether reliance in fact and whether any such reliance in the circumstances was objectively reasonable - whether any detriment established - promisee lived on property - promisee carried out some work on the property - promisee forewent opportunity to seek family law settlement with promisor's encouragement - whether any unconscionability on part of promisor resiling from promise - where promise contingent on conditions yet to be fulfilled - HELD - reliance not objectively reasonable as promise predicated on conditions some of which are outside of promisor's control - only detrimental reliance established was foregone opportunity to seek family law settlement - no unconscionability as time for performance of promise yet to arrive
Legislation Cited: Family Law Act 1975 (Cth)
Cases Cited: Attorney-General (Hong Kong) v Humphreys Estate [1987] AC 114
Austotel Pty Ltd v Franklins Self Serve Pty Ltd (1989) 16 NSWLR 582
Australia and New Zealand Banking Group Ltd v Westpac Banking Corporation (1988) 164 CLR 662; 78 ALR 157; [1988] HCA 17
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199
Australian Crime Commission v Gray [2003] NSWCA 318
Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485
Barnes v Alderton [2008] NSWSC 10
Baumgartner v Baumgartner [1987] HCA 59; (1987) 164 CLR 137
Bryson v Byrant (1992) 29 NSWLR 188
Catanzariti v Whitehouse (1981) 55 FLR 426
Chalmers v Pardoe [1963] 3 All ER 552
Ciavarella v Polimeni [2008] NSWSC 234
Cobbe v Yeoman's Row Management Limited [2008] 1 WLR 1752
Commissioner of State Revenue (Vic) v Royal Insurance Australia Ltd (1994) 182 CLR 51; 126 ALR 1; [1994] HCA 61
Commonwealth v Verwayen (1990) 170 CLR 394
Corin v Patton (1989-1990) 169 CLR 540
Crabb v Arun District Council [1976] Ch 179; [1975] 3 All ER 865
David Securities Pty Ltd v Commonwealth Bank of Australia [1992] HCA 48; (1992) 175 CLR 353
Delaforce v Simpson-Cook [2010] NSWCA 84
DHJM Pty Ltd v Blackthorn Resources Ltd [2011] NSWCA 348
Donis v Donis [2007] VSCA 89
Farah Constructions v Say-Dee [2007] HCA 22; (2002) 230 CLR 89
Flinn v Flinn [1999] 3 VR 712
Galaxidis v Galaxidis [2001] NSWSC 1123
Galaxidis v Galaxidis [2004] NSWCA 111
Gillett v Holt [2001] Ch 210; [2000] 3 WLR 815
Giumelli v Giumelli (1999) 196 CLR 101
Grant v Edwards [1986] Ch 638; 2 All ER 426
Green v Green (1989) 17 NSWLR 343
Hawker Pacific Pty Ltd v Charter Pty Ltd (1991) 22 NSWLR 298
Haxton v Equuscorp (formerly Equus Financial Services Ltd) (ACN 006 012 344) (2010) 265 ALR 336; [2010] VSCA 1
Henderson v Miles [2005] NSWSC 710
Jennings v Rice [2002] EWCA Civ 159
Little v Saunders [2004] NSWSC 655
Lumbers v W Cook Builders Pty Ltd (in liq) [2008] HCA 27; (2008) 232 CLR 635; (2008) 247 ALR 412
Miller v Sutherland (1990) 14 Fam LR 416
Mobil Oil Australia Ltd v Wellcome International Pty Ltd (1998) 81 FCR 475
Morris v Morris [1982] 1 NSWLR 61
Murphy v Overton Investments Pty Ltd [2001] FCA 500
Muschinski v Dodds (1985) 160 CLR 583
Nichols v Nichols (1986) 4 BPR 9240
Parianos v Melluish (Trustee) [2003] FCA 190; (2003) 30 Fam LR 524
Pavey & Matthews Pty Ltd v Paul [1987] HCA 5; (1987) 162 CLR 221
Plimmer v Wellington City Corp (1884) 9 App Cas 699
Public Trustee v Kukula (1990) 14 FamLR 79
Ramsden v Dyson (1866) LR 1 HL 129
Riches v Hogben [1985] 2 Qd R 292
Roxborough v Rothmans of Pall Mall Australia Ltd (2001) 208 CLR 516 ; 185 ALR 335; [2001] HCA 68
Saleh v Romanous [2011] NSWCA 264
Saleh v Romanous [2011] HC Trans 101
Saliba v Tarmo [2009] NSWSC 581
Shepherd v Doolan [2005] NSWSC 42
Silovi Pty Ltd v Barbaro (1988) 13 NSWLR 466
Simpson-Cook v Delaforce [2009] NSWSC 357
Sledmore v Dalby (1996) 72 P & CR 196
Standard Chartered Bank Aust Ltd v Bank of China (1991) 23 NSWLR 164
Stowe v Stowe (1995) 15 WAR 363
Sullivan v Sullivan [2005] NSWSC 10
Sullivan v Sullivan [2006] NSWCA 312
Talevski and Anor v Talevski and Anor [2007] NSWSC 945
Taylor v Dickens [1998] 1 FLR (Eng) 806
Thorner v Major [2009] 1 WLR 776
Tory v Tory [2007] NSWSC 1078
Van Dyke v Sidhu [2011] NSWCA 187
Vukic v Luca Grbin; Estate of Zvonko Grbin [2006] NSWSC 41
Walton v Walton (1994, England and Wales Court of Appeal, Civ Div, unreported)
Waltons Stores (Interstate) Pty Ltd v Maher (1988) 164 CLR 387
Watson v Foxman (1995) 49 NSWLR 315
Williams v Hensman (1861) 1 J&H 546; 70 ER 862
Texts Cited: Meagher, Gummow & Lehane, Equity: Doctrines & Remedies, (4th ed., 2002)
Pawlowski, The Doctrine of Proprietary Estoppel (1996)
Category: Principal judgment
Parties: Lauren Marie Van Dyke )(Plaintiff) (Self represented)
Prithvi Pal Singh Sidhu (Defendant)
Representation: Counsel
C R C Newlinds SC with J C Giles (Defendant)
Solicitors
Henry Davis York (Defendant)

File Number(s): 09/289460

Judgment

HER HONOUR : Before me for hearing late last year was an application by Ms Van Dyke for relief (invoking the principles of equitable estoppel set out in Waltons Stores (Interstate) Pty Ltd v Maher (1988) 164 CLR 387 at 400 and Giumelli v Giumelli (1999) 196 CLR 101 at 121 or as a remedy for unconscionable conduct) consequent upon the making by Mr Sidhu of certain promises or representations in relation to a property referred to as the "Oaks Property", on which promises or representations Ms Van Dyke says she relied to her detriment in a variety of ways.

The promises or representations (the making of which was in substance admitted but as to the precise content and reasonable interpretation of which there is some dispute) were made during the course of an ongoing sexual relationship between the two. The relationship commenced at a time when Ms Van Dyke was married to Mr Svenson (the brother of Mr Sidhu's wife, Lajla) and continued for some years after the marriage between Ms Van Dyke and Mr Svenson had come to an end. At all material times, Mr Sidhu lived with his wife in the main homestead on a property at Burra known as Burra Station. For most of that time, Ms Van Dyke lived with her son (and occasionally other occupants who paid rent direct to Mrs Sidhu and stayed in the cottage either at her request or with her consent) in a building known as The Oaks Cottage some 100m away from the main homestead.

The Oaks Property is described in the Statement of Claim (at [9]) as an area of land on which a cottage (The Oaks Cottage) had stood (during the course of Ms Van Dyke's relationship with Mr Sidhu and until the cottage burnt down in February 2006) "and the acreage surrounding it and on which it stood" (initially of approximately 7 hectares but said to have been expanded by subsequent representations of Mr Sidhu made in 2004 to an area including a permanent water spring and dams of approximately 7.3 or 7.4 hectares). It is broadly identified by reference to a local Council survey plan of the overall Burra Station land on part of which The Oaks Cottage had stood.

In summary, Ms Van Dyke contends that Mr Sidhu made clear and unambiguous promises and representations to her that the Oaks Property was her home and that he would transfer (or procure the transfer of) the Oaks Property to her (promises made initially in 1998 but repeated and expanded over the course of their relationship) and that she acted reasonably in reliance on the said promises (and the assumption created and encouraged by Mr Sidhu that the Oaks Property was her home and would be transferred to her) to her detriment in a number of ways.

The conduct pleaded as amounting to detrimental reliance is the performance by Ms Van Dyke of work (alleged to have been extensive) on the maintenance and improvement not only of The Oaks Cottage and the Oaks Property but also of the broader homestead property (referred to as Burra Station), and a neighbouring property the subject of a community title subdivision known as Burra Station Estate (work estimated by Ms Van Dyke to have been worth in the order of $112,400, if assessed at the minimum hourly labouring wage, on the basis of the time she estimates she spent on the various areas of land); her decision not to seek a property settlement at the time of her 1999 divorce from Mr Svenson (an opportunity the loss of which is asserted by her to be somewhere in the order of $35,000-$60,000); and giving up the opportunity to work full time for a greater remunerative income from January 1998 to July 2006 and/or to acquire other real estate.

Ms Van Dyke contends that Mr Sidhu represented to her that he was able to effect the transfer of the Oaks Property to her (notwithstanding that it was part of a property held in the joint names of he and his wife) and that he was able to do what he wished with his "share" of the Burra Station property.

Ms Van Dyke claims an entitlement to a constructive trust or equitable charge over Mr Sidhu's interest in the Oaks Property and seeks a variety of other relief (including an order that Mr Sidhu take all necessary steps to procure the transfer of the Oaks Property to her and that he pay equitable compensation to her, reflecting the value of The Oaks Cottage, ie the building which burnt down in 2006). In the alternative to such relief, Ms Van Dyke seeks equitable compensation. Mr Sidhu denies that Ms Van Dyke is entitled to the relief claimed by her.

Mr Sidhu admits in his defence that he carried on an extra marital affair with Ms Van Dyke "from time to time during the period from 1997 to 2006" ([7] of his Defence). (Although, in the particulars provided of paragraph [7] of his Defence, Mr Sidhu takes issue with at least some aspects of Ms Van Dyke's characterisation of the relationship, the description that it was equivalent to that of man and wife accords with the manner in which Mr Sidhu himself seems, at least in 2005, to have encouraged Ms Van Dyke to represent their relationship to others.) Certainly, at the hearing it was not disputed that there had been an intimate relationship between the two over a number of years. Indeed reliance is placed on this in Mr Sidhu's case for the proposition that Ms Van Dyke would have remained living and working on the property over the relevant period irrespective of the promises made by him.

Mr Sidhu does not dispute that he made certain promises or statements to Ms Van Dyke in relation to The Oaks Cottage (to the detail of which I will refer in due course) (see [9] of his Defence). By reference to his own written communications, he clearly did. However, it is contended for Mr Sidhu that Ms Van Dyke (or a reasonable person in her position) would have known that no such promise or statement was binding on Mrs Sidhu or her interest in The Oaks Cottage; that any prospect that Ms Van Dyke might have of being given The Oaks Cottage was subject to certain contingencies; and that Mr Sidhu was not bound to perform any statement or promise in any event ([9(e) of his Defence). In her reply, Ms Van Dyke admits that she knew the Oaks Property was not on a separate title and that Mr Sidhu and his wife owned Burra Station as joint tenants but (other than the admission that The Oaks Cottage was surrounded by a fence, which she says was one that she and her then husband had erected) denies the allegations in [9] of the Defence.

Although Mr Sidhu had affirmed a lengthy affidavit, which was filed and served on Ms Van Dyke in accordance with pre-trial directions, at the trial he chose not to read in his case his affidavit (or, for that matter, an affidavit that had been sworn by his wife) and hence gave no evidence himself to dispute Ms Van Dyke's account of the oral conversations in which the promises or representations were said to have been made to her (or to support the contention made in submissions on his behalf that he did not know of or intend any reliance by Ms Van Dyke on the alleged promises) . A small portion of his affidavit (in which Mr Sidhu deposed to benefits provided by him or his family to Ms Van Dyke over the years), which was put to Ms Van Dyke in cross-examination and the substance of which she did not dispute, was tendered in evidence for the defence.

Mr Sidhu's position is that Ms Van Dyke is not entitled to the relief claimed because she has not established the making of a clear and unequivocal promise on which it was objectively reasonable for her to rely in the way that she says she did; that the promises made to her were not sufficient to create a reasonable belief affecting the parties' legal rights that was binding and irrevocable; that she has not established that she acted reasonably or to her detriment in reliance on the promises made to her (nor that he knew that she would act, or intended her to act, in reliance on the promises); and that it is not unconscionable for him, in the circumstances, to resile from the promises/statements that were made by him. In particular, it is submitted that the promises were conditional in nature (among other things, on the continuation of the relationship between the two; the consent of Mrs Sidhu to the transfer; and the subdivision of the homestead property to create the lot in question). The time for performance of the promises had not yet arisen as at the time Ms Van Dyke left Burra Station in mid 2006 and for Mr Sidhu it is submitted that Ms Van Dyke's departure from the property made at least some of the conditions to which the promises were subject incapable of fulfilment.

Further, it is contended for Mr Sidhu that if (which is denied) any claim is maintainable by Ms Van Dyke it could only be the claim for equitable compensation and that the quantum of that claim has not been proven. In that regard, it is submitted that proprietary relief is unavailable as Mrs Sidhu (the joint owner of the homestead property) did not make (and is not bound by) the promises/representations on which Ms Van Dyke claims to have relied and was not joined as a party to the proceedings (hence her interests in the property cannot be affected). While it was quite fairly conceded in closing submissions by Mr Sidhu's Senior Counsel, Mr Newlinds SC, that a constructive trust or charge might conceivably be imposed over Mr Sidhu's interest in the Burra Station property (thus severing the joint tenancy under which the property is presently held, so as to give Ms Van Dyke an interest in the proceeds of a sale of the property), Mr Newlinds submitted that such relief is precluded by the fact that it would necessarily affect Mrs Sidhu's interest in the property. (Mr Newlinds notes that the issue as to the non-joinder of Mrs Sidhu to the proceedings was a matter to which Ms Van Dyke's attention was clearly drawn at an earlier stage in the history of this litigation, when the matter was before the Court of Appeal, and yet no step was thereafter taken by Ms Van Dyke to join Mrs Sidhu to the proceedings.)

Mr Newlinds further submits (referring to Giumelli ) that, as the occasion for the intervention of equity in cases such as this is the detriment suffered in reliance on the relevant statements/representations, the primary measure of any equitable compensation is the detriment suffered by Ms Van Dyke and that any attempt to calculate such compensation would need to bring to account the benefit that Ms Van Dyke has obtained while living on the property (including the discount on the rent allowed to Ms Van Dyke over the time she occupied The Oaks Cottage and other assistance she concedes she received from Mr Sidhu). It is contended that no compensable detriment has been proved by Ms Van Dyke.

Issues

The parties were broadly agreed as to the issues that arise in this case for determination. In summary, those issues are:

(i) whether the promises/representations made by Mr Sidhu to Ms Van Dyke were clear and unambiguous; and what meaning was objectively conveyed by the said promises/representations;

(ii) whether Ms Van Dyke reasonably relied, to her detriment, on the promises/representations, or changed her position in reliance thereon, so as to make it unconscionable for Mr Sidhu now to resile therefrom; and

(iii) what relief is appropriate in all the circumstances if Ms Van Dyke's claims for relief are made out.

Summary

For the reasons set out below, I am of the view that:

(i) there was a sufficiently clear and unambiguous promise made by Mr Sidhu to Ms Van Dyke in 1998 that objectively conveyed the meaning that he would transfer The Oaks Cottage to her (as a gift) once the then proposed subdivision of the Burra Station property had occurred; and the area of land the subject of that promise was later expanded to encompass a total area of approximately 7.3 hectares as identified as Lot 4 in the subdivision plan for Burra Station;

(ii) Ms Van Dyke has not established that she in fact relied to her detriment on the promises/representations or changed her position detrimentally in reliance thereon, otherwise than in giving up the opportunity to seek a property settlement from her former husband after their divorce in 1999; in that regard, I am not satisfied that it was objectively reasonable for Ms Van Dyke so to rely on the promises/representations in circumstances where they were, as a practical matter, conditional or predicated upon the subdivision occurring and that was, at the time the promises/representations were made (and still to an extent is), something largely dependent on matters outside Mr Sidhu's control; further, in circumstances where the time for performance of the promise has not yet arisen, it is not possible to say that it will be unconscionable for Mr Sidhu to resile therefrom if and when the time for performance does arrive; and

(iii) as I am not satisfied that the pleaded reliance on the promises/representations by Ms Van Dyke was to her detriment other than in relation to the giving up of the opportunity to seek a divorce settlement (since the evidence strongly suggests that Ms Van Dyke would have taken the course she did even had the promises not been made), and there was no independent evidence as to what orders might have been made had there been an application for a property settlement at that time, had the issue of relief arisen I would have been inclined to refer out to an expert family law practitioner the question as to what provision was likely to have been made had there been an application made for a property settlement at the relevant time (and would only have awarded equitable compensation in or about that amount).

Background Facts

I set out below the background to the dispute between the parties. Where there is a divergence between the account given by Ms Van Dyke in her affidavit evidence and that pleaded in Mr Sidhu's defence (and Ms Van Dyke's account is not contradicted or put in doubt by contemporaneous documentary evidence), I accept Ms Van Dyke's account, having regard to the fact that Mr Sidhu has chosen not to give his own account of the conversations and events to which Ms Van Dyke has deposed. The weight to be attributed to Ms Van Dyke's recollection of conversations and events must of course be considered in light of the recognised limitations on human memory and her own acknowledgement of the difficulties in that respect. Broadly, however, I accept her as a credible witness.

As at 1995, Ms Van Dyke and Mrs Sidhu's brother (Mr Svenson) were living together as a couple in a rented cottage (The Willows) on a property at Burra known as Burra Station. In late 1995, Mr and Mrs Sidhu exchanged contracts for the purchase, as joint tenants, of the Burra Station property (referred to sometimes in the proceedings as the homestead property or homestead block), completion of which sale took place in June 1996. On that property, of approximately 32 hectares, there were at that time three buildings: the main homestead property (in which Mr and Mrs Sidhu have lived at all material times) and two smaller cottages known as The Oaks Cottage, and The Willows. The homestead block was the subject of a mortgage to the Bank of New Zealand granted by Mr and Mrs Sidhu on 21 June 1996. (At the relevant time, Mr and Mrs Sidhu had the benefit of, and paid the premiums for, an insurance policy which covered The Oaks Cottage and on which they claimed when the cottage burnt down.)

What is referred to in the pleadings (and in some of the evidence) as "the Oaks Property" is an area that extends beyond the fenced area of land on which The Oaks Cottage stood and its immediate surrounds. Ms Van Dyke, in her affidavit sworn 8 April 2010, describes the Oaks Property as having an area of approximately 7 hectares and being one that, from a landscape perspective, had a natural boundary (para [7]). At T 54.13-18, Ms Van Dyke explained the natural boundary around the block by reference to a road in front of it that went down to The Willows and another road that ran in a perpendicular line that she says, together with the back boundary, delineated the block. (Ms Van Dyke says it was later physically "stepped out" with Mr Sidhu at 7.4 hectares). The later subdivision plans put this area at 7.3 hectares (and it is accepted that it was the 7.3 hectare lot that was valued by the respective parties' valuation experts.) This expanded area is the area that was the subject of a jointly signed proposal for acquisition by Ms Van Dyke in 2005.

Mr Jeff Brown, the surveyor called to give evidence for Mr Sidhu, did not accept that there was a natural boundary as described by Ms Van Dyke and it was difficult, at least to my untrained eye, to discern such a natural boundary from the photographs tendered of The Oaks Cottage (Exhibit 2). Ms Van Dyke conceded as much at T 55.16. That said, in my view ultimately nothing turns on the changing boundary of the property the subject of Mr Sidhu's promises in circumstances where, by 2006, the parties seem to have had no doubt as to what was comprised by the Oaks Property (it being the subject of the expanded Lot 4 in the proposed subdivision). The real question now between the parties is whether the relevant representation(s) related only to The Oaks Cottage itself or to the expanded acre of land on which it stood (the Oaks Property).

In January 1996, Ms Van Dyke and Mr Svenson were married. From about that time, until their separation in 1998, they rented and lived in The Oaks Cottage (paying a rental of $150 per week initially to the previous owner of Burra Station and, after Mr and Mrs Sidhu acquired Burra Station, to Mrs Sidhu, who seems to have managed at least the financial aspects of the tenancy arrangements). In July 1996, their son (Mr and Mrs Sidhu's nephew) was born. I note this only because the family relationship seems to me to be a material factor in considering the objective reasonableness or otherwise of the reliance Ms Van Dyke says she placed on Mr Sidhu's promises, in that it provides a basis on which it might objectively be thought that generosity on Mr (and Mrs) Sidhu's part to the, by then, single mother of their infant nephew was by no means implausible. Indeed, Mrs Sidhu's later email correspondence with Ms Van Dyke in 2005 (before the relationship between Ms Van Dyke and her husband was openly acknowledged), emphasises that the family relationship was the basis on which Mrs Sidhu had been prepared to agree to a proposal for the transfer of part of the Burra Station land to Ms Van Dyke.

Laylos Pty Ltd, a company in which Mr and Mrs Sidhu each own a quarter of the issued shares (the remainder being owned by Mr Sidhu's brother and sister-in-law), was at the relevant time the registered proprietor of the 'back block' (now known as Burra Station Estate), of approximately 186 hectares adjacent to Burra Station. The back block is mortgaged to the Bendigo and Adelaide bank securing a $3m loan facility in connection with the proposed subdivision of that block.

Sometime from around mid to late 1997, Mr Sidhu and Ms Van Dyke commenced a sexual relationship. Ms Van Dyke pleads that their romantic and physical relationship commenced in about late 1997 (para [4] of her Statement of Claim but in her first affidavit she puts the relationship as commencing in mid to late 1997; Mr Sidhu admits in his defence at [5] to carrying on an extra marital affair with Ms Van Dyke "from time to time (as further pleaded in paragraph 7 of this defence) during the period from 1997 to 2006"). (The reference to [7] of Mr Sidhu's incorporates a further admission as to the carrying on of the affair during the period from 1997 to 2006 but also various allegations (in paras 7(b)-(d)) about the relationship as to which no evidence was ultimately adduced by Mr Sidhu and which are therefore not supported by any evidence.)

In about mid 1998, Ms Van Dyke and her husband separated. Ms Van Dyke had told her husband that she was having an affair with Mr Sidhu. Mr Svenson (who was called by Ms Van Dyke to give evidence in the proceedings) says that he had a conversation with Mr and Mrs Sidhu at the time in which he told them what Ms Van Dyke had said (about the affair) and Mr Sidhu denied it. In paragraph 8(b) of his Defence, Mr Sidhu says, inter alia, that his wife was unaware of his relationship with Ms Van Dyke. Neither gave evidence to support that allegation but it seems to me that an inference can be drawn (from the manner in which Ms Van Dyke says Mr Sidhu explained to her the basis on which she should continue to pay rent for The Oaks Cottage and, later, the basis on which the proposed arrangements for the transfer of The Oaks Cottage were to be structured), that other than the allegation made by Mr Svenson as to the affair (which Mr Sidhu had denied) Mrs Sidhu was not explicitly told of the ongoing relationship until after it was over. (That is consistent with Mrs Sidhu's accusations of betrayal after the relationship became openly acknowledged.)

Ms Van Dyke's evidence was that Mr Sidhu had told her that, provided they were discreet about the relationship, his wife would be tolerant and accepting of his wishes. (The need for discretion in this regard is the explanation Ms Van Dyke gives for the continued payment of rental to Mrs Sidhu for the cottage after the time at which she says Mr Sidhu told her it was her home. While it was suggested by Mr Newlinds that there was an inconsistency between the payment of rent by Ms Van Dyke and her assertion that she believed that The Oaks Cottage was hers, it seems to me that it is not implausible that Ms Van Dyke was persuaded by Mr Sidhu that the continued payment of rent would, in effect, permit Mrs Sidhu to 'save face' by not publicly acknowledging the affair. Mr Sidhu's own correspondence made reference to his wife's "Ostrich philosophy".)

I accept Ms Van Dyke's evidence that Mr Sidhu made such a statement to her as to the reason for the continued payment of the rent, though this does not mean that there was any foundation in fact to what was there being conveyed by him to Ms Van Dyke (as Mr Newlinds intimated in cross-examination, it might be that in the course of an "illicit affair" Mr Sidhu said a number of things that were not true or that he did not mean). Ms Van Dyke accepted in the witness box that a lot of her evidence as to Mrs Sidhu's state of mind was based on what Mr Sidhu had told her (T 63.5).

Mr Sidhu's apparent reluctance, at a later stage in 2006 when Mr Sidhu was canvassing options in relation to the rebuilding of The Oaks Cottage, to speak directly with his wife about the terms on which his relationship with Ms Van Dyke might continue in an open fashion is at least to some extent inconsistent with an understanding on his part at an earlier time that his wife was supportive of an adulterous relationship.

For the period from the breakdown of Ms Van Dyke's marriage in mid 1998 to February 2006, when the cottage burnt down, Ms Van Dyke remained in The Oaks Cottage (with her son) and paid rent to Mrs Sidhu. From time to time, the cottage was co-tenanted by others who also (with perhaps the exception of a school student who lived there for a time) paid rent to Mrs Sidhu.

Ms Van Dyke says that in 1998 (in a conversation she initially put in her affidavit of 8 April 2010 as taking place in early January 1998 but which, in cross-examination, she seemed to accept may not have occurred until mid to late 1998, on the basis that she believes the relevant events took place chronologically in the order appearing in her affidavit), after a conversation with her then husband in which she said she wished to end the marriage, Mr Sidhu said to her words to the effect:

[19] I want you to have a home here with me. I am planning to subdivide Burra Station. As soon as this is done, I will make sure the Oaks is put into your name ... Using my Indian family money to buy this place means I can make my own decisions as to what I do with it, and I want you to have it because I love you. You need a home of your own to raise [her son] in, I can provide it. (my emphasis)

Ms Van Dyke says that she asked Mr Sidhu whether this meant that he would be breaking up with Mrs Sidhu and that his response was, in essence, to ask her to be patient with him and to emphasise that it would be best for the relationship to be kept discreet. (Relevantly, in Ms Van Dyke's account of the conversation there is no suggestion that the promise was conditional on the relationship between Mr Sidhu and his wife coming to an end, whether through death or divorce, as it is now submitted for Mr Sidhu that it was.)

There is nothing in the conversation recounted in [19] of Ms Van Dyke's affidavit to suggest that this initial promise related to more than The Oaks Cottage (and the immediate land on which it then stood) itself and I consider that this is all that the promise objectively conveyed at that time. Further, while the meaning conveyed by the first sentence of [19] (read on its own) could well be (as was contended for by Mr Newlinds) that Mr Sidhu would simply allow Ms Van Dyke to continue to live on the property (whether as his wife's tenant or as his lover), as opposed to a promise that Ms Van Dyke wanted to become the owner of any part of the property, the conversation continued with a statement that he would make sure that the Oaks was in Ms Van Dyke's name. That conveys a promise or representation that Ms Van Dyke would become the owner of the property (a tenant not ordinarily being referred to in the context of having the property, as opposed to a lease, in his or her name). Clearly, however, that promise or representation was predicated on the subdivision of Burra Station occurring (both as a practical matter, given that it was not the subject of a separate title, and by reference to the terms of the promise itself).

At [20] of her affidavit in chief, Ms Van Dyke says that, in the context of her (some time later) seeking advice from Mr Sidhu as to her divorce, Mr Sidhu said to her words to the effect:

[20] Lauren, you have the Oaks you do not need a settlement from him . You can do the divorce yourself, you don't need a lawyer. (my emphasis)

That statement could not reasonably have been understood as a representation that Ms Van Dyke was at that stage the legal owner of The Oaks Cottage - as she clearly was not and she knew that she was not. It does, however, seem to me to convey more than that Ms Van Dyke had some right of occupation or indefinite tenancy of the cottage, since the statement is made in the context that because Ms Van Dyke had the cottage she did not need a property or financial settlement from Mr Sidhu. Such a statement would only make sense if whatever interest it was that Ms Van Dyke was promised she would have in relation to the cottage was something that gave her some form of financial security and in that context that she was at some point to become the owner.

At that time, Mr Svenson owned a home (over which there was a mortgage) in Adaminaby and was involved (in conjunction to some extent at least with Mr Sidhu) in various overseas business ventures (which later failed). Mr Svenson nevertheless gave evidence in the witness box of his opinion that, had the Adaminaby property then been sold, there would have been sufficient to pay out the mortgage (and that his father had forgiven or was prepared to forgive the debts of around $135,000 -$140,000 that were owed to him at the time - T 106), thus suggesting that there may have been some equity in the home at that time from which Ms Van Dyke might have had some provision (assuming that she had sought and obtained a property settlement) had she not received and apparently acted upon the advice from Mr Sidhu recounted in [20] of her affidavit. Relevantly, Ms Van Dyke made no application for a property settlement under the provisions of the Family Law Act within the applicable time, following the failure of her 14 month marriage. (She was by that stage a single mother and part-time University student.)

Ms Van Dyke says that in September 1998 (thus around the time that the conversations in [19] and [20] of her affidavit seem to have taken place), she asked Mr Sidhu "do I stop paying rent now that the Oaks is my property" and that he responded in words to the effect "How about you continue to pay what you can as this will help keep things low key with Lajla [his wife]". She says that she offered to pay $100 per week (the rent at that stage being the $150 that had been set by the former owner) and said that she could claim some rent relief through university support payments. Ms Van Dyke says that Mr Sidhu responded to the effect "Yes lets do that until the property is transferred into your name".

From about December 1999 a reduced rent of $100 per week was paid to Mrs Sidhu. (By letter dated 10 May 2000, Mrs Sidhu wrote to Ms Van Dyke (and the other then tenant of The Oaks Cottage) as well as to the tenant of The Willows, noting a rental increase effective 1 July 2000 for the cottages. In the case of The Oaks Cottage the increase was from $150 per week to $200 per week. The letter noted Mrs Sidhu's opinion that this was below market rent. There was no reference in this letter to any arrangement whereby part of the occupancy arrangements included the provision of unpaid work on the property.)

Mr Sidhu alleges that the agreement was that Ms Van Dyke would provide about 6 hours a week assistance on and in relation to Burra Station (presumably in lieu of the balance of the rent) ([3(b)] of his defence). There is nothing in writing between Mr or Mrs Sidhu and Ms Van Dyke to that effect but such an arrangement is consistent with the account Ms Van Dyke later seems to have given of her rental arrangements (when drafting correspondence in response to a complaint that had been made as to her involvement in issues relating to the proposed subdivision of the back block at a time when she was employed part-time in the office of a senator in the Federal Parliament). In September 2004 Ms Van Dyke forwarded to Mr Sidhu a draft letter, responding to a suggestion that had been made to the Senator for whom she was then working part time, that she had a conflict of interest in raising issues that had been raised in relation to the subdivision because of her then position working part-time in the Senator's office, in which Ms Van Dyke wrote: "I work part-time on Lajla (my sister-in-law) and Beat's property to help set off my rent....". (Insofar as the arrangement was that a lesser rent was payable on the basis that Ms Van Dyke provided assistance on the Burra Station property, that would of course be relevant to the question whether such work amounted to detrimental reliance on the alleged promises or representations, which I consider in due course.)

Reliance is placed by Mr Newlinds on the payment of rent by Ms Van Dyke (and the payment by her co-tenants of rent direct to Mrs Sidhu) as being inconsistent with a belief by Ms Van Dyke that she actually owned The Oaks Cottage (ie in advance of any transfer of the legal title of the property to her), referring to Ms Van Dyke's evidence in cross-examination from (T 61.29-65.11 and T 72.26-77.43). (It is suggested that Ms Van Dyke's version of events in this regard, namely her assertion that she was in some sense the owner of the property, has the necessary consequence that she behaved dishonestly while living at Burra Station, engaging in a charade of paying rent to Mrs Sidhu in order to deceive her, falsely claiming a government rebate based on the payment of rent (referring to the evidence at T 63.16-63.36, T 73.19-30) and writing a dishonest email in response to a complaint to her employer in which she referred to the payment of rent (see T 173.32-76.21). Mr Newlinds submits that this should not be accepted but, rather, that the court should accept that the payment of rent evidenced not only the real legal relationship between the parties but also Ms Van Dyke's belief as to the legal relationship between the parties. In that regard, I consider Ms Van Dyke's belief that the property was her home to be that she was entitled to treat or regard it as her own and that in due course it would be transferred to her. Understood in that fashion there is no dishonesty in the rental arrangement other than the deception in which Mr Sidhu was himself involved in relation to the affair.)

I accept that there is a logical inconsistency in paying rent for a property owned by the person paying rent. It would, however, be consistent with an arrangement whereby the property had been promised to Ms Van Dyke (who had been encouraged to regard it as her own) but was not yet legally hers and where the payment of rent was made in order not to alert Mrs Sidhu to the real nature of the relationship between Ms Van Dyke and Mr Sidhu (since the family connection seems not to have been regarded as a cause to waive any rental obligation altogether). However, in that event it would not be consistent with a contention that Mrs Sidhu was aware of the relationship over the 8-9 years that it endured (unless it was indeed part of a complicated face-saving charade and there seems no logical need for that since Ms Van Dyke's presence on the property could readily have been explained to those outside the threesome by reference to the family relationship).

In circumstances where Ms Van Dyke was aware that the Burra Station property was jointly owned and that there had been no legal transfer of any part of the land to her; had claimed government rebates on the basis that the payments made to Mrs Sidhu were by way of rent; and had described herself as a tenant of The Oaks Cottage, I consider that it would not have been objectively reasonable for Ms Van Dyke at any time up to June 2006 to believe that she was the legal owner of The Oaks Cottage and that statements by Mr Sidhu to the effect that this was 'her home' could only objectively be understood as conveying the meaning that Ms Van Dyke would be able to reside there (as a tenant) for the indefinite future until it was transferred to her.

Ms Van Dyke in the witness box was reluctant to concede that the payment of this money was properly to be characterised as rent (and pointed out in submissions that she was not in a position to pay the rates or other such amounts as she was not the registered owner of the property, seemingly to suggest thereby that the rent was a quid pro quo for payments that as the legal owner she would be required to make but could not make until title was in her name). However, I consider that her belief that The Oaks Cottage was "her home" can only reasonably have been a belief that Mr Sidhu would in due course honour his promise to transfer it to her.

In her affidavit, Ms Van Dyke has deposed to the relationship she had with Mr Sidhu for a period of about eight and a half years from 1998. Unconventional as Ms Van Dyke readily conceded it was, she deposed that it was a relationship in which the two regarded themselves as man and wife (paras [23]-[24] of her affidavit). She alleges in her pleading that it was a "committed and extensive relationship and one which both [she and he] regarded as equivalent to a relationship of man and wife" ([8]). While Mr Newlinds emphasised in his cross-examination of Ms Van Dyke (and Ms Van Dyke accepted) that Mr Sidhu was in fact married to and living with Mrs Sidhu during the whole of his relationship with Ms Van Dyke, I note that Mr Sidhu himself seems to have acknowledged in his communications with Ms Van Dyke that the couple saw their relationship in this way and to have encouraged her to convey that to others. By email sent on 24 May 2006 to Ms Van Dyke, sent some 3 months after the cottage burnt down and while Ms Van Dyke was living in a relocatable cottage on the homestead property, Mr Sidhu exhorted Ms Van Dyke to tell another couple "...how we have seen ourselves as man and wife. Tell them if you want to that even though Lajla has not been expressly told it she knows enough over the 10 years to realise that we love each other", going on to confirm that "Lajla and I have now agreed to build and transfer your house to you..." (my emphasis). In another document forwarded to Ms Van Dyke (which I admitted as part of Exhibit A subject to relevance), Mr Sidhu referred to Ms Van Dyke as being "...spoken for in a deeply loving 10 year relationship".) On the documents before me, the suggestion by Mr Sidhu that this was a "troubled" and "dysfunctional" relationship appears to have been made only after it had ended and in the context that Mr Sidhu was then denying any obligation to honour his promise to transfer The Oaks Cottage to Ms Van Dyke; his communications in May 2006 had adverted instead to a "deeply loving" relationship.

Ms Van Dyke gave evidence of the activities that she and Mr Sidhu had carried out together in relation to the improvement and maintenance of Burra Station and of The Oaks Cottage and of occasions when they had together taken trips away from the property (or stayed with others as a couple together) without Mrs Sidhu. There is no reason not to accept that evidence. Ms Van Dyke deposed, in her first affidavit, that it was her belief (based on what Mr Sidhu had said and that there was no sign of unease on the part of Mrs Sidhu at the time that they had spent together on the property and on trips away from the property) that Mrs Sidhu consented to the relationship and to the gift of the Oaks Property to her ([25]). In that regard, I have already noted that in cross-examination Ms Van Dyke accepted that much of her evidence as to Mrs Sidhu's knowledge or state of mind was based on things that Mr Sidhu had said to her (the reliability of which must in my view be in question having regard to the deception Mr Sidhu seems to have practised in relation to the affair itself). While Mrs Sidhu did not give evidence in the proceedings as to what she did or did not know, there is at least some suggestion in the communication between Mr Sidhu and Ms Van Dyke (referred to above) in which Mr Sidhu spoke of his wife's 'Ostrich philosophy", that Mr Sidhu had not explicitly acknowledged to his wife the fact of the affair with Ms Van Dyke. Tellingly, Mrs Sidhu's response in November 2006 (to a suggestion that Ms Van Dyke might return to the property) was emphatic in her assertion that she had not known of the affair until after Ms Van Dyke left the property and the tenor of at least some of Mrs Sidhu's communications (in which she speaks of betrayal by Ms Van Dyke) is consistent with that of someone who had not been aware of the relationship.

In any event, while I accept that Ms Van Dyke held the genuine belief (based on what she had been told by Mr Sidhu) that Mrs Sidhu was tolerant of him having other relationships outside of the marriage, and that Mrs Sidhu may well have chosen to shut her eyes to indicia as to the closeness of the relationship between the two, there is no evidence that Mrs Sidhu ever communicated to Ms Van Dyke her consent to the relationship or, more relevantly, to the transfer to Ms Van Dyke of The Oaks Cottage or any part of the Burra Station property to her prior to a statement signed by Mr and Mrs Sidhu in mid 2006 (to which I will refer in due course), in which such an agreement (albeit non-binding in contractual terms) was recorded. The communications between Ms Van Dyke and Mr Sidhu prior to that date, as recounted by Ms Van Dyke, are consistent with Mr Sidhu promising to obtain his wife's consent to the transfer, not with that consent already having been obtained.

The promises alleged to have been made in 1998 in relation to the transfer of The Oaks Property are as pleaded in para [9] of the Statement of Claim. Mr Sidhu, in his defence, has denied para [9] of the Statement of Claim and says further in relation to that allegation in [9(a)] that:

(a) During the period from 1997 to 2006 the defendant did say to the plaintiff that if his wife pre-deceased him and if, at that time, the defendant's and plaintiff's relationship was then continuing and neither had found another partner and if he were still living on Burra Station, he would consider giving her Oaks Cottage (my emphasis)

At least as at this point in the chronology (1998), there is no suggestion in any document before the Court that the promise was simply to "consider" giving The Oaks Cottage to Ms Van Dyke, let alone that such a promise was to take effect only on the death of Mrs Sidhu (or that it was conditional on the relationship continuing or the other matters pleaded by Mr Sidhu as set out above). It is inconsistent with the statement signed by Mr Sidhu in 2000 in which he recorded the intention that he said he had expressed (to which I will shortly come). Mr Sidhu himself gave no evidence to contradict Ms Van Dyke's version of the initial promise and, subject to what I will say as to the frailty of human memory, I accept her evidence as to what was said.

In para [9] of Mr Sidhu's defence he goes on to assert that:

(b) In early 1998 the defendant also gave to the plaintiff a note [no copy of which was in evidence] on which he had written words to the effect that, if his wife pre-deceased him, he was the sole owner of Burra Station and his and the plaintiff's relationship was then continuing then he would give her Oaks Cottage

(c) As the plaintiff at all material times knew, the Oaks Cottage was not on a separate title, the defendant and his wife owned Burra Station as joint tenants and the defendant was unable to give the plaintiff any interest in the Oaks Cottage of procure his wife to make such a gift

(d) The Oaks Cottage was surrounded by a fence, which fenced in area of not more than three quarters of an acre, and the defendant's reference to the Oaks Cottage in his statements pleaded above was limited (as the plaintiff knew or a reasonable person would have understood) to the area enclosed by the fence;

(e) The plaintiff knew, or a reasonable person would have known, that:

(i) No promise or statement made by the defendant was binding on his wife or her interest in Oaks Cottage;

(ii) Any prospect that the plaintiff may have (whether or not enforceable) of being given Oaks Cottage was subject to contingencies and there was a real prospect that the contingencies would not occur;

(iii) The defendant was not bound to perform any statement or promise in any event.

The only note that was in evidence as to Mr Sidhu's intentions (prior to a statement he signed with his wife in 2006) is that signed in 2000, the contents of which are inconsistent with para (b) above. As to (c), Ms Van Dyke accepts that she was aware that Mr Sidhu and his wife held the title to Burra Station jointly, but she relies on Mr Sidhu's promises or representations that he could do what he wanted with his share of the property and/or that he would procure his wife's consent. As to (d), I accept that a promise to transfer "The Oaks Cottage", when there was at that time a building of that name sitting on a fenced area of land, would be objectively understood by a reasonable person to mean that area of land and not some extended area of land beyond the immediate environs of the cottage (though this does not take into account later representations as to the expanded size of the property to be transferred).

This raises the issue as to the nature of the promise that was made in 1998. Accepting that the 1998 promise as recounted by Ms Van Dyke related to a transfer of The Oaks Cottage (and the fenced area of land on which it stood), in order for there to be a transfer to Ms Van Dyke of legal title to that land it was necessary for there to be a subdivision of the homestead block at the very least to excise from the main block the area of land to be transferred to Ms Van Dyke. The initial promise or representation made this clear - Mr Sidhu told Ms Van Dyke he was planning to subdivide Burra Station and that " As soon as this is done , I will make sure the Oaks is put into your name". In substance that involved both a representation as to Mr Sidhu's then state of mind in relation to the subdivision (with which subdivision his wife would have had to concur for it to be effected) and a promise that as soon as the subdivision occurred the title would be transferred to Ms Van Dyke (something not necessarily dependent on his wife's consent at least insofar as Mr Sidhu could unilaterally transfer his 50% interest in the jointly owned property to her).

At an earlier hearing of this dispute, reliance was placed in submissions for Mr Sidhu on what was said in Public Trustee v Kukula (1990) 14 FamLR 79 as to promises or representations as to matters to occur in the future that are predicated on the happening of some other event - there, a representation concerning marriage at a time when the representor was already married. At the hearing before me, Ms Van Dyke submitted that Kukula is distinguishable on the basis that it related to the question of a representation concerning marriage, noting that Young JA had commented in Van Dyke v Sidhu [2011] NSWCA 187 at [13]) that "... cases such as Gillett v Holt and Jennings v Rice do show the limits of Kukula and perhaps it may even one day have to be reconsidered", referring there also to cases like Morris v Morris [1982] 1 NSWLR 61 and Nichols v Nichols (1986) 4 BPR 9240. I consider this argument in due course.

There is evidence that in around 1999/2000 Mr and Mrs Sidhu were contemplating the development of both the homestead and back blocks in an overall subdivision. On 20 July 1999, Laylos lodged an application to subdivide two lots (the homestead lot and the back block) into 22 rural residential lots. Mr Brown confirmed in the witness box that his firm had been commissioned to prepare a concept plan for subdivision that included the homestead block (and hence that included the area on which The Oaks Cottage then stood). It is therefore not objectively unreasonable to regard the statements made to Ms Van Dyke as amounting to a representation that the homestead block would be subdivided and a promise that (assuming the application were to be successful and the subdivision proceeded - the latter conceivably being dependent on a number of potential contingencies including appropriate finance for any work required in relation to the subdivision) once the subdivision occurred the area of land on which The Oaks Cottage stood would be transferred to Ms Van Dyke. The promise to transfer the land would not be enforceable as a contract without consideration nor would the time at which the promise was to operate have arisen until the land was in fact subdivided. However, for present purposes, the question is whether the inability to transfer the land absent a successful subdivision having occurred made it unreasonable for Ms Van Dyke to rely on the promise so as to give rise to a proprietary estoppel or that it would not be unconscionable for Mr Sidhu to resile from the promise prior to the subdivision having occurred.

Ms Van Dyke says that in around 2000, she had a conversation with Mr Sidhu in which she expressed her concern as to the fact that there was nothing in writing about the Oaks Property and in particular as to what would happen if something were to happen to Mr Sidhu (para [34] of her affidavit). She says that Mr Sidhu then handwrote and signed a note (later typed) in which he recorded in writing the promise/representation made to her. That document was in evidence and reads as follows:

During the years 1996 to 2000 I Beat Sidhu expressed to Lauren that I was willing to gift [sic] Lauren the house in which she resided at the time (Oaks Cottage, ... Burra NSW)

Insofar as there seemed to be a suggestion in the course of submissions that Ms Van Dyke could not have relied on the promise made in 1998 if she thought in 2000 that it was necessary to have something in writing to record that promise, I do not accept that such a conclusion would follow. It is consistent with Ms Van Dyke being concerned that, having taken steps on the faith of the promise, she would have greater security if it were to be recorded in writing. In hindsight, the above acknowledgment (worded in the past tense) might be thought to have been carefully expressed so as to be drafted as an expression of willingness or intent (rather than as a promise to do what was said to have been intended), adopting the distinction drawn between the two in Gillett v Holt. However, whatever may have been Mr Sidhu's intention in the drafting of that note, it is the meaning objectively conveyed by the note that is relevant.

Having regard to the circumstances in which the note was signed (Ms Van Dyke having expressed a concern as to her position with there being nothing in writing as to the property), I consider that the note should be construed as an acknowledgement that Mr Sidhu had promised or represented to Ms Van Dyke that he would transfer the Oaks Cottage (though not anything more than the cottage and land on which it then stood) to her and the failure to articulate that he no longer had that intention would itself be apt to mislead. I also consider significant the fact that the statement of willingness was not expressly conditioned on the death of Mrs Sidhu or a divorce from Mrs Sidhu or the relationship between Ms Van Dyke and Mr Sidhu continuing (or the other matters contended in the latter's Defence). This belies the suggestion that the promise made in 2000 was understood to be conditional on any of those events (since, if so, one would have expected Mr Sidhu to make that clear).

I note that in Catanzariti v Whitehouse (1981) 55 FLR 426 it was said that a joint tenant of an estate in land can deal separately with his or her share of the estate, though is unable to bind his or her co-tenant. Such conduct would of course sever the joint tenancy - Corin v Patton (1989-1990) 169 CLR at 546, that being the first of the three modes of severance recognised in Williams v Hensman (1861) 1 J&H 546; 70 ER 862. Nevertheless, since The Oaks Cottage formed part of the Burra Station property, the promise so made by Mr Sidhu was clearly one that, in order to be capable of fulfilment, was predicated on the subdivision of the homestead land (and that was made clear in the conversation with Ms Van Dyke in which the promise was made in the first place).

In cross-examination, it was suggested to Ms Van Dyke that there was another condition attaching to the promise to transfer The Oaks Cottage to her, namely that Mr Sidhu was then in a financial position to do so; it being put to Ms Van Dyke that she knew that if Mr Sidhu were forced to sell off the whole property because of financial circumstances then this would be the end of any promise to her (see T 60.24-61.21).

Ms Van Dyke accepted that there had been difficult times (over the years in which the two were in a relationship) in which Mr Sidhu had been worried about his finances and that she had not raised an objection (by reference to the promise that had been made to her in relation to the Oaks Cottage) when at one stage Mr Sidhu had said to her that he might have to sell the whole property (although Ms Van Dyke also commented that she also thought that perhaps in that event he would compensate her - T 61.11). In that regard, there was evidence that in October 2000 there was some communication by Mr Sidhu with a real estate agent as to a possible appointment for the sale of "Burra" (with reference being made to the subdivision and the price of blocks) but there is nothing to suggest that Ms Van Dyke was aware of financial difficulties at that particular stage or of any proposal to sell the entire property at that stage, so the fact that she accepted that she had not raised an issue about the promise made to her in that context does not take matters any further.

Ms Van Dyke's evidence in cross-examination confirmed that she was aware that at some stage there were financial difficulties surrounding the proposed subdivision but she was not aware of any proposal in 2000 to sell the entire property, if indeed that was a serious proposal. (In 2001, a different real estate agent prepared advertising material in relation to the Burra Station subdivision seeking registrations of interest in a limited first stage release of 5 blocks then anticipated to take place but this seems to have related to the Burra Station Estate.)

On 31 October 2001, an application was made by the surveyors to the local council seeking to excise from the proposed subdivision of the Burra Station properties the homestead land (and referring to the latter being made the subject of a new application for a 3 lot community title subdivision), retaining the current application (ie the 1999 Laylos application) for a 19 lot subdivision. This was apparently thought to involve some cost or time savings in relation to the subdivision of the back block.

Meetings took place in 2003 from March onwards in relation to the subdivision of the back block (Ms Van Dyke being recorded as being in attendance at a number of those meetings, there representing Laylos; Mr Sidhu also attending most such meetings on behalf of that company). Insofar as it was suggested in cross-examination of Ms Van Dyke that her role in relation to the subdivision (as evidenced by the only action item noted under her initials relating to the passing on of information) was minor, this does not appear to take into account the role that Ms Van Dyke seems (from the documents in evidence) to have played in preparing submissions for use by Mr Sidhu in meetings with Council or others in relation to the subdivision and her involvement in submissions on the threat posed to the subdivision by the presence or otherwise of native animals on the land. I accept that Ms Van Dyke played a not insignificant role in the work for the proposed subdivision (although I do not think it is clear that this was done in reliance on the earlier promises made to her).

Ms Van Dyke alleges that in about 2004, Mr Sidhu represented to her that " her Oaks property" (my emphasis) would be expanded to include an area which included a permanent water spring and dams (so that she would have water for her horses and alpacas - those being at that time agisted free of charge on the Burra Station property) and that he had represented the position of the expanded boundary by physically stepping out the boundary with her ([11] of her Statement of Claim; [42]-[43] of her first affidavit).

In response to this (at [11] of his defence), Mr Sidhu denies paragraph [11] of the Statement of Claim (repeating paras [7], [9] and [10] of the defence) but he did not give direct evidence to deny the assertion that the couple had physically stepped out an expended boundary for the land he had promised to give Ms Van Dyke. He goes on to plead that, following Ms Van Dyke asking about her future in The Oaks Cottage, he and his wife offered to sell The Oaks Cottage to Ms Van Dyke for market value on the basis that he and his wife would provide vendor finance on favourable terms; that in the course of discussing that offer Ms Van Dyke requested that the boundary around The Oaks Cottage be enlarged (which consequently reduced the area of an adjoining lot with a consequential change in the respective market values of the lots); and that, after "discussing the issue" with his wife, he caused the boundaries of the lots to be adjusted and instructed his surveyor to amend the drawings accordingly.

In similar vein, at [14(b)], Mr Sidhu asserts that during the period from 2002 to 2005 he and Ms Van Dyke from time to time discussed that offer and that he told Ms Van Dyke that his wife was prepared to sell The Oaks Cottage to her on favourable vendor finance terms due to her love for Ms Van Dyke's son (Mrs Sidhu's nephew).

Where neither Mr nor Mrs Sidhu has gone into evidence on the discussions in this regard, I accept Ms Van Dyke's version of events. The area in the survey plans for the proposed subdivision is consistent with Mr Sidhu having promised or represented to Ms Van Dyke that the boundary of the land he had promised to transfer to her would be extended. The fact that he may have promised something additional to that contemplated in 1998 may not be surprising given that the relationship had continued for some time and that it would mean that Ms Van Dyke would not be dependent on agistment on the remaining part of the Burra Station property in the future. There was no evidence from Mrs Sidhu to support Mr Sidhu's assertion as to the basis on which he told Ms Van Dyke that Mrs Sidhu was prepared to sell the cottage (ie referable to her love for her nephew), although there are statements in later correspondence that make such an assertion. In any event, there is nothing in writing before 2005 to suggest that what was contemplated by anyone was a sale as opposed to a gift of the cottage.

I note that, insofar as para [14(b)] asserts that there was a discussion with Ms Van Dyke of a proposal to sell her The Oaks Cottage with favourable vendor finance over the period from 2002 to 2005, that is not only inconsistent with Mr Sidhu's earlier note as to the "gift" of the property to Ms Van Dyke but it is also inconsistent with the note signed by he and his wife in mid 2006, neither of which suggest that there is to be a sale as opposed to a gift. The genuine confusion in the witness box of Ms Van Dyke as to the mechanics of the provision of any vendor finance suggests to me that she was unfamiliar with such arrangements, making it unlikely in my view that there had been any discussion with Mr Sidhu over the period 2002 to 2005 in which he had explained any such arrangements.

On 29 March 2005, Bendigo Bank wrote to Laylos offering a commercial term facility with a limit of over $3m and a bank guarantee/performance bond of around half a million dollars, apparently to be used in connection with the back block subdivision. That was accepted by Mr Sidhu and his brother, as directors of Laylos, and the back block was, at least from that time, the subject of a mortgage from Laylos to Bendigo and Adelaide Bank.

On 21 April 2005, Ms Van Dyke sent an email to Mr Sidhu in which she referred to a conversation in which she had apparently said to Mr Sidhu that she was becoming very insecure and went on to say:

It is time now that I had something that gives me some security and your continued promise that the house would be myown [sic] some day are becoming weaker verbal promises. As you would agree, I have been every bit a part of Burra Station and as you have said so many times, you wouldn't be there without me. Lets be honest and open with eachother [sic] and live a long and happy life on the farm

That email is inconsistent with Mr Sidhu having by then already made offers to Ms Van Dyke on behalf of he and his wife to sell the property to her with the assistance of vendor finance. Nor was there any response from Mr Sidhu to deny that he had made continued promises (or had continued an earlier promise) that The Oaks Cottage would be Ms Van Dyke's. In that context, the reference to the house being Ms Van Dyke's own could only sensibly mean it being owned by her.

Ms Van Dyke deposes, at [44] of her first affidavit, that Mr Sidhu said to her in mid-2005 (presumably at some time after the above email) words to the effect that it was only a 'matter of time' before the subdivision of the Burra Station Estate was selling and that money would then be available to complete lot 4 of the Burra Station subdivision (ie the expanded Oaks Property) and public road (the latter subdivision being conditional on the road to provide access to all 4 lots) and that "Lajla and I will then sign all the papers to transfer the expanded Oaks Property Lot 4 into your name"; that he had obtained Lajla's agreement; and that " Nothing has changed ... the property will be transferred to your name as I have always promised ". (my emphasis). Again, there is nothing in this email that suggests that the promise was conditional on Mrs Sidhu's death (as pleaded in the Defence) or on the Sidhus' divorcing (as pleaded in the Defence) or on the relationship between Ms Van Dyke and Mr Sidhu continuing (as also pleaded in the Defence). The only matter on which this email suggests the transfer was conditional was the money being available for the completion of the subdivision (which would enable the subdivision then to be completed). This email in my view belies the attempt by Mr Sidhu now to suggest that the promises made to Ms Van Dyke were anything less than promises to transfer property to Ms Van Dyke (first The Oaks Cottage and, by mid 2005, the expanded Oaks Property).

By August 2005, the basis on which it was proposed that there would be a transfer of the land on which The Oaks Cottage had stood (expanded in accordance with the subdivision plans) was the matter of some careful consideration and communications to which Mrs Sidhu was a party. Mrs Sidhu, by an affectionately signed email forwarded to Ms Van Dyke and copied to Mr Sidhu (saying "here are our thoughts - discussed - whaddya reckon??????"), sent Ms Van Dyke a document headed "Draft of Understanding between LVD and L&B Sidhu - Property known as the Oaks Cottage and approximately 14 acres ", (my emphasis) dated 16 August 2005:

When subdivision of Home Block (80 acres) is approved by Council and the infrastructure completed, then we agree to

1. Sell the Oaks Cottage with land to LVD

2. Agree on a reasonable market price for the property, with advice from an Agent.

3. L to secure loan or part loan to buy the property and L & B to finance any balance as second mortgagor; if no lender is available then L&B agree to finance the property as first mortgagor

4. L&B agree to lend L a sum of money to be agreed upon for renovations to the cottage such as gutters, windows, doors, etccetera [sic]

5. L to have complete freedom with the property to do with as she pleases ! (my emphasis)

Relevantly, there is no doubt that this related not simply to the sale of the immediate area of land on which The Oaks Cottage stood but also to the area of land around it. Nor is there any suggestion that the parties were in doubt as to the area to be transferred (presumably identifiable by reference to the subdivision plans). The proposal is consistent with an agreement to transfer the land only becoming operative when the subdivision is approved and the infrastructure (as I understand it, the construction of the required public road for access to the blocks) is approved.

The express recognition in this (admittedly draft) proposal that Ms Van Dyke was to have "complete freedom" to do with the property as she wished is inconsistent with any restriction on the later sale of the property by her (or that it was subject to an agreement that she would bequeathe the property to her son) as later suggested. There is also no suggestion in the document that the agreement to sell the property would be conditional on Ms Van Dyke continuing to live on the property (nor, unsurprisingly if Mrs Sidhu was unaware of or shutting her eyes to the affair, was there any reference to the need for the relationship between Ms Van Dyke and Mr Sidhu continuing).

That said, the proposed arrangement is also inconsistent with the proposed transfer being a gift and therefore it might be said that it contemplated a new proposal in that regard. However, and perhaps significantly, once Mr Sidhu reviewed the terms there were changes made to the proposal that brought it, in effect, much closer to an outright gift (and thus might be seen to have been an attempt to honour his previous promises in that regard).

Either the first draft understanding or the revised proposal sent by Mrs Sidhu after discussion with her husband to which I refer below seems to be the proposal referred to in [16] of Mr Sidhu's defence and which he describes as being a "written proposal to the plaintiff ... which was unconnected to any statement or promise previously made by [him]" and says was made following Ms Van Dyke telling his wife that she would like to buy the Oaks Cottage on favourable terms as she would not afford it otherwise. (Neither Mr nor Mrs Sidhu gave evidence of this alleged conversation.)

On 2 September 2005, Mrs Sidhu sent to Ms Van Dyke an email headed "Draft of understanding, noting that this was "Beat's email from yesterday". That email from Mr Sidhu, dated 1 September 2005, read:

My thoughts were

1. LK & PP [the Sidhus'] to sell (or transfer) property (cottage located on 16 acres) to L (Ms Van Dyke) at a price based on valuation by agent(s). L therefore is owner of property.

2. First mortgage to PP and LK for value of property.

3. L not to pay any interest or repayments on mortgage amount to LK or PP . (my emphasis)

4. L as owner will pay Council rates and other contributions for community title costs

5. L can sell or transfer property at any time to any person and borrow on property if she can get a second mortgage

6. Upon sale or transfer by L, the mortgage amount is repayable to PP & LK plus half of increase in value of property. (eg property today worth 100 and at time of sale worth 200 plus. PP & LK get the 100 - being the mortgage amount. L gets 50 and PP & LK get 50 after costs as deducted).

Issues not yet determined is who pays costs of transfer to Lauren - estimated to be $10-$15,000 Also amount to be lent to Lauren for renovations etc. How much etc and that could be part of mortgage.

The revised proposal is thus much more akin to a gift in the sense that Ms Van Dyke is not to be liable for the interest on or the repayments for the mortgage (those to be borne by Mr and Mrs Sidhu) and simply is to pay the council rates and other contributions as owner and to share with Mr and Mrs Sidhu any profit on an ultimate sale. Again, there is no restriction on transfer of the property by Ms Van Dyke or any requirement that she continue to live in it or bequeathe it to her son (let alone that she continue her affair with Mr Sidhu).

Ms Van Dyke says that Mr Sidhu explained the proposal to her (or probably more precisely the arrangement for the proposed mortgage) as being how he had presented it to his wife in order to obtain her agreement ([46]). I accept Ms Van Dyke's evidence that this was how Mr Sidhu had explained the proposal to her and that she was advised by Mr Sidhu to believe this was equivalent to a transfer by way of gift of the property to her.

In October 2005, the local Council gave approval (on the separate application apparently lodged in 2002) for a 3 lot rural residential subdivision of Burra Station (the homestead block), conditional on the construction of a road for access to the blocks. The consent in its terms was to expire on 19 October 2010. (There is no evidence as to the commencement of construction for that subdivision. However, insofar as consent to the subdivision was obtained, the completion of the only conditions stipulated on the agreement as per the revised August draft were from that the matters within Mr Sidhu's control except perhaps as to any financial constraints.)

Unfortunately, what then occurred was that The Oaks Cottage burnt down in February 2006. Ms Van Dyke and her son moved into a relocatable cottage that had earlier been built on the homestead block and was vacant at the time. Ms Van Dyke says that Mr Sidhu, who was not on the property at the time of the fire, spoke to her by telephone and said that he would use the insurance money to build another house for her and that "you will not have lost anything as a result of this". Mr Sidhu, in his defence, asserts that he and his wife intended to build or buy accommodation to replace the Oaks Cottage and that he asked Ms Van Dyke to locate a relocatable or kit home for he and his wife to buy and install approximately where the Oaks Cottage had been so that they did not have to spend much more than the insurance moneys received (alleged by him to have been $156,000) under the insurance policy following the destruction of the Oaks Cottage. He denies the allegation in [18] of the Statement of Claim that he represented to Ms Van Dyke that as soon as possible another home would be built in its place using the insurance money.

Ms Van Dyke deposed (in [138] of her reply affidavit) to a conversation with Mr Sidhu on 25 April 2006 in which he said to her "Lauren you have the security of a property in the Oaks which Lajla supports".

On 5 May 2006, Ms Van Dyke sent to Mr Sidhu an email re "Document 2" asking "So you think Lajla will be agreeable to gifting the house to me outright" and Mr Sidhu responded "Yes Lajla will sign it as it is . I am confident of that - we can do it this weekend. Without her signature you will have the same concerns. I will print a copy." I would infer from the content of the Statement signed by Mrs Sidhu and bearing a handwritten date 7 May 2006 that the statement in question is the following (albeit that under Mr Sidhu's signature the date appears as 7/6/06):

Over time since we moved to Burra in 1996 I expressed an intention to Lauren Van Dyke that the house she then resided in (The Oaks ... Burra) would be gifted to her.

Lajla agrees with the above and when the house which burned in an accident in mid-February is rebuilt and as soon as it is possible to transfer the property on which the house is rebuilt, it will be done by Lajla and me

This seems to me to be a clear further acknowledgement by Mr Sidhu of the initial representation or promise that The Oaks Cottage would be the subject of gift to Ms Van Dyke (not that it would be sold to her on favourable vendor finance terms of the like and not that it was conditional on the many things upon which it is now submitted the promise was conditional), though not of the expanded representation or promise. Therefore although Mr Sidhu denies the representation alleged to have been made by he and his wife (by the signing of the statement) that when The Oaks Cottage was rebuilt and as soon as it was possible to transfer the Oaks Property on which it was rebuilt to her this would be done by them, it seems to me difficult for him to deny that there was such a representation by Mr Sidhu but limited to the transfer of The Oaks Cottage.

In his Defence, Mr Sidhu pleads (at [21]) that the statement was signed on 7 June 2006 (though his wife's signature is noted on the document as having been appended on 7 May 2006) and pleads that the statement was given in circumstances in which Ms Van Dyke had complained to him and his wife as to her lack of security following the destruction of the Oaks Cottage; he asserts that shortly prior to 7 June 2006 he had said to Ms Van Dyke that he and his wife were prepared to give the house that was to be built as a replacement of the Oaks Cottage to her on the condition (rejected by her) that her son live in the house and that it would be left by her to her son; and that Mrs Sidhu had said to Ms Van Dyke that she would be prepared to gift the cottage without any condition as she accepted Ms Van Dyke's declared intent to live her life "in the Oaks estate" with the "likely result" that her son would inherit it from Ms Van Dyke. None of those conditions is consistent with the proposals put in writing to Ms Van Dyke towards the end of 2005. Nor did the Sidhus' give evidence of the conversations alleged to have occurred in this regard.

Mr Sidhu also pleads that the statement was signed in circumstances in which his relationship with Ms Van Dyke had "effectively ended" and he was aware that Ms Van Dyke was carrying on or planning to carry on a sexual relationship with another (named) man. It is not clear how this is thought to be relevant other than if the initial promise was conditional on the relationship between Mr Sidhu and Ms Van Dyke continuing. However, if it is pleaded as going to that issue, the communications between Mr Sidhu and Ms Van Dyke at the time do not make it clear that the relationship was "effectively ended" and the allegation pleaded in relation to the other relationship is extraordinary given the communications (which were admitted subject to relevance) in which it seems clear that Mr Sidhu was supportive and encouraging of that other relationship (pp 17-20 Exhibit A).

Certainly, at least as at May 2006, Mr Sidhu appears to have been in discussion with Ms Van Dyke as to the basis on which their relationship might continue. Ms Van Dyke deposes that a few days after 27 May 2006 a Discussion Paper was sent to her by email by Mr Sidhu. (No objection was taken to the admission of this document into evidence, unlike the relevance objection to the document referred to in the preceding paragraph). That discussion paper was sent under cover of an email that said "Lajla has at least some part in this until the land is divided between her and me and then I can agree to do whatever I feel like with my share and she hers. That may not occur for a few years - which could be up to 5 years". The discussion paper outlined 2 options, which essentially turned on whether the relationship between the two would continue or not:

A Move BES house [relocatable cottage] to L's block connect to septic and water tank but hold building main house [ie replacement for the Oaks Cottage] for 6 months to test how it pans out

If OK for next 6 months Lauren lives there permanently and new house built "no going back if things get bad after that"

If not OK after 6 months Option B little less money left from insurance cost of tank and septic

B If negative response [from Lajla] Lauren to start looking for a place to rent - means that Lauren will move out

B/L to give Lauren 160,000 the insurance money for the house and Lauren to explain to Lajla the reason for this move

Later after back blocks are sold and debts paid off B?L to give Lauren 350,000 on the understanding that her house was worth that much today (500,000 - that is 350,000 for land and 150,000 for replacement house)

Note Option B - Lauren leaves Burra forever ...

...

3. Subdivision of home blocks could take up to years and Lauren will not have titles until that occurs.

As to what was meant by "negative response" from Lajla, this seems to be a reference to whether there would be a negative response from Mrs Sidhu to a proposal that Mr Sidhu was reluctant himself to put to his wife (and wanted a friend to put on his behalf) whereby, after the relocatable cottage was moved to the area of land on which The Oaks Cottage had stood, he and Ms Van Dyke would have a more open relationship with Mr Sidhu spending some nights per week at the cottage. On 2 June 2006, Mr Sidhu wrote to Ms Van Dyke:

2. ... I certainly don't want our relationship to end and end it will if you move from Burra

...

7. I certainly and keenly (may I say desperately - but not obsessively!) not only want our relationship to survive but to strengthen

Around this time, it seems that Ms Van Dyke had put forward to Mr Sidhu a proposal whereby he would give her the insurance proceeds from The Oaks Cottage claim and she might build or buy a house elsewhere (and a proposal that she might take one of the subdivided back blocks. Ms Van Dyke by email 19 June 2006 referred to a "keenness to leave" (attributed to a fear of punishment by Mr Sidhu if he were not pleased with the situation), in which she says: "I am not a gold digger. ... I don't want to feel used or led on - please consider my option" (apparently there referring to the proposal that she use the insurance proceeds to build elsewhere or take one of the lots on the back block in lieu of rebuilding on The Oaks Cottage). On 20 June 2006, Mr Sidhu responded to a query from Ms Van Dyke as to how his wife would respond if Ms Van Dyke were to buy another property with the proceeds of insurance money, saying "emphatically no" and that this would be "totally contrary to the reasons she agreed to give you the property".

Ms Van Dyke in her reply affidavit deposes to a conversation with Mr Sidhu on 20 June 2006 in which she says he said they should go ahead with Option A (presumably a reference to the Discussion Paper referred to above) and move the relocatable cottage up to the Oaks Property ([157] of her reply affidavit).

Meanwhile Mrs Sidhu sent an email to Ms Van Dyke on 20 June 2006 in which she said:

The whole idea behind gifting you The Oaks on Burra Station in the first place has many facets, not the least of which is having family as neighbour so close to use. ... if you or [Ms Van Dyke's son's] father were wealthy or earning a fortune, the thought of giving the Oaks to you would never have entered my head (my emphasis)

Around this time, it seems that Mr Sidhu prepared a document headed "My Response" in which he set out his views as to what would need to be sorted out if the relationship were to end (that document being included at p 67 in a bundle of documents exhibited to Ms Van Dyke's reply affidavit and admitted without objection), including the following:

At [32] his Honour noted that:

... the English notion of "minimum equity" is different to the approach to proprietary estoppel which was sanctioned by the High Court in Giumelli v Giumelli . In England, the court looks at all the circumstances of the case in order to do what Lord Scarman LJ described in Crabb v Arun District Council as the "minimum equity to do justice to the plaintiff". The exercise is conceived of as requiring "proportionality" (which I take to mean substantial correspondence) between remedy and detriment, in much the same way that Mason CJ conceived of it in Waltons Stores and Commonwealth v Verwayen . But, as has been seen, the effect of Giumelli is that, assuming that the promise, reliance and detriment have been established, the promisee is prima facie entitled to have the promisor held to the promise, and the court then considers all the circumstances of the case in order to determine whether it is necessary to mould or modify the relief to avoid going beyond what is required for conscientious conduct. As Brooking JA explained in Flinn v Flinn, Giumelli means that departure from the assumed state of affairs is contrary to the requirements of conscientious conduct and it is a question depending on all the circumstances of each case whether departure is to be permitted . (my emphasis)

In Donis , the Court of Appeal in Victoria considered that there was nothing vague or imprecise about the terms of the promises and assurances and did not accept that the promises and assurances only justified a level of expectation less than the half share in the property that was promised. At [34] Nettle JA said:

Bearing in mind what Deane J said in Verwayen , I allow that an estopped party would not be held to a promise to transfer property worth $1m if the only detriment suffered by the party entitled to the benefit of the estoppel were the outlay of a couple of hundred dollars in constructing a shed on the land. But I take the reason for that to be that the outlay of a couple of hundred dollars on something as insignificant as a shed would be such a small and impersonal degree of detriment as to be wholly compensable in cash. Where, however, as here, the detriment suffered is of a kind and extent that involves life-changing decisions with irreversible consequences of a profoundly personal nature, it is in my view 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. ( my emphasis)

Later, at [41], Nettle JA said:

I add, for completeness, that the existence or lack of an existing moral obligation may sometimes throw light upon the question of whether enforcement of the promise or assurance would be excessive. As the decision in Jennings v Rice serves to demonstrate, in a case where the meaning of a promise or assurance is uncertain, a lack of existing moral obligation may reveal that the plaintiff's expectation or assumption is extravagant and thus that equity is better satisfied in another and more limited way. But once again that is not this case. ... Despite the lack of prior moral obligation, the fact that the respondent was about to marry Steven Donis entitled her reasonably to believe that Victor and Rosa Donis meant what they said. At least in the circumstances which obtained in this case, there was nothing extravagant about that assumption . (my emphasis)

The question as to when relief may be limited due to the disproportion between the relief calimed and the detriment was also considered in Sullivan v Sullivan , Handley JA noting that Giumelli established that there is no restriction in respect of the relief being limited to removing or reversing the detriment suffered by the party entitled to the estoppel; that relief may be moulded to recognise practical considerations and to take into account the impact of orders on third parties and any hardship or injustice they would suffer.

Mr Newlinds submits that even if representation/detrimental reliance is made out by Ms Van Dyke, the relief sought is disproportionate and not justified in all the circumstances. He points to the evidence (namely the conditional approval for the sub-division) that suggests that the sub-division will be expensive. The joint valuation report itself indicates the market value of the area comprised by the Oaks Property (assuming a subdivision as planned) in an unimproved state but clear of debris as at February 2006 and again in 2010 as being in the order of $320,000 to $350,000.

In Delaforce v Simpson-Cook , on appeal, Allsop P, said at [4]-[5], agreeing with the view expressed by Handley AJA as to the import of Giumelli in this regard:

Proportionality of the claimed interest or remedy to the prejudice or detriment is undeniably a relevant consideration, and sometimes of considerable importance. It should not, however, be transformed into a necessary constitutive element of a cause of action to be pleaded or proved by the party seeking relief. To do so would elevate one consideration above others, and in particular above the importance of making good an expectation by encouragement or representation: Plimmer v Mayor of Wellington (1884) 9 App Cas 699 at 713-714; Riches v Hogben [1985] 2 Qd R 292; Giumelli at 113-114 [10] and 121-122 [35]. It would tend to equate the analysis to one requiring that the party encouraged receive no more than it can prove that it suffered in detriment. This would see the equity become one of compensation for proved equivalent detriment. The equity is a broader one based on the just and conscionable satisfaction in appropriate fashion of the equity arising from the expectation created in another by encouragement or representation. As Handley AJA says, the role of proportionality is better understood, in a doctrine dealing with the legitimacy or otherwise of resiling from an encouragement or representation that has created an expectation, as assisting in an assessment whether what is claimed or contemplated to be granted is disproportionate or unjust in all the circumstances.

The importance of keeping a party to a representation or encouragement previously made is all the stronger where, as here, the encouragement or representation has been relied upon by a party to abandon a course of conduct that could possibly have led to a different outcome. This can be described in the language of loss of a chance that is not fanciful or unrealistic, or in the language of proceeding thereafter on the basis of a new or changed convention or conventional basis. Such expression of the matter is not different to how Dixon J put the matter in Grundt v Great Boulder Pty Gold Mines Ltd [1937] HCA 58 ; 59 CLR 641 at 674-675. For instance, if, as here, in reliance upon a representation or encouragement, a court case is abandoned and the representation or encouragement is later sought to be resiled from, the party to whom the representation or encouragement was made and in whom the expectation was raised is left in the position not only of the loss of the entitlement to pursue his or her rights in the case in the past, but also is likely to be in the position of being unable to demonstrate what would, or even may, have happened in the case, it being an alternative, complex and now hypothetical body of human conduct. That the party encouraged cannot show that he or she would have been better off in the posited alternative reality is not fatal to the making out of the estoppel. Indeed, the inability to prove such things reveals a central aspect of the detriment: being left, now, in that position . Of course, if it is self-evident or can be clearly demonstrated that the case was fanciful or otherwise doomed to fail, there may be no real detriment; but that was not the case here. The respondent gave up her right to propound her case in the Family Court on the faith of the deceased's representation. It was not self-evident, or otherwise clearly demonstrated, that she could not have been successful in securing her rights to the subject property after the death of the deceased. (my emphasis)

The Court of Appeal in Delaforce upheld the finding of Bergin CJ in Eq that the plaintiff was entitled to rely on the promise made to her and that her reliance was reasonable. There, the plaintiff had relied on two detriments to support her claim to a proprietary estoppel: the giving up of the opportunity to have the Family Court determine her property rights on the merits and her acquiescence in the loss of the $50,000 previously offered for her share of the property in question. The Court of Appeal said that the relevant detriment was not the loss flowing from non-fulfilment of the promise or assurance, it was that which the party asserting the estoppel would suffer, as a result of his or her original change of position, if the assumption which induced it was repudiated by the party estopped. Their Honours held that the relevant detriment in that case was the plaintiff's change of position when she signed the draft consent orders and allowed the Family Court to act on her consent, giving up not only any claim to the $50,000 but also the right to ask the Family Court to determine her entitlements. Thus the Court of Appeal held that the plaintiff's detriment was not limited to the loss of the $50,000, but included the loss of the chance of obtaining an enforceable order giving her a right to the subject property after the death of the deceased and was not limited to relief by reference to the sum of $50,000 appropriately indexed.

Handley JA in Delaforce summarised from [55] the views he had outlined in Sullivan v Sullivan at [11]-[32] as governing the grant of relief in an estoppel by encouragement case. In so doing, his Honour stated the following principles:

A proprietary estoppel by encouragement may be established where the conduct of the party estopped did not define the expectation ( Plimmer v Mayor of Wellington (1884) 9 App Cas 699 at 713; Flinn v Flinn [1999] 3 VR 712 CA, 738-9, 742, 743; Gillett v Holt [2001] Ch 210 CA, 226) noting that the "quality of the assurances which give rise to the claimant's expectations" is an important factor ( Jennings v Rice [2003] 1 P & CR 100 at 112 and 114 per Robert Walker LJ and that "the quality of the relevant assurances may influence the issue of reliance [and] reliance and detriment are often intertwined", Gillett v Holt , approved by the Privy Council in Henry v Henry [2010] 1 All ER 988 PC, 995, 1000).

Relief is not limited to removing or reversing the detriment suffered by the party entitled to the estoppel ( Giumelli [1999] HCA 10 ; 196 CLR 101, 120, 125); the detrimental reliance that supports the estoppel need not constitute, in any sense, a consideration moving to the party bound. It is a unilateral element of the estoppel and not the price paid for it.

Relief depends very much on the facts and the court must look at the circumstances in each case to decide in what way the equity can be satisfied ( Plimmer (1884) 9 App Cas 699 at 714)

The court does not exercise an unfettered discretion but adopts a principled approach ( Giumelli at 123-4, 125; Gillett v Holt [2001] Ch 210 CA, 225 and Jennings v Rice [2003] 1 P & CR 100 CA, 112).

The 'minimum equity' principle applied in Verwayen [1990] HCA 7; 170 CLR 394 by Mason CJ at 441, and Brennan J at 429, 430, is probably not the law in this country since Giumelli .

Relief may be moulded to recognise practical considerations (such as the need for a clean break) and the court must take into account the impact of its orders on third parties and any hardship or injustice they would suffer ( Giumelli ; Flinn v Flin n [1999] 3 VR 712 CA, 749, 750). (my emphasis)

Relief may be refused or reduced if the plaintiff's equity has been diminished by later events (citing Sledmore v Dalby (1996) 72 P & CR 196 where the court held that the plaintiff's equity based on his improvements had been fully amortized over 18 years of rent free occupation) or, conversely subsequent events may enlarge the plaintiff's equity (as in Crabb v Arun DC [1976] Ch 179 CA where the defendant's repudiation of the expectation had landlocked the plaintiff's land for five years)

Relief may also be limited where the enforcement of the plaintiff's expectation would be out of all proportion to the detriment, particularly where the expectation was not defined and the court has a broader discretion ( Jennings v Rice [2003] 1 P & CR 100 CA, 104, 111, 114, 115).

The court should, prima facie, enforce a reasonable expectation which the party bound created or encouraged: (Meagher Gummow & Lehane " Equity Doctrine and Remedies" 4th ed 2002, pp 567-8; Ramsden v Dyson (1866) LR 1 HL 129 at 170 ; Chalmers v Pardoe [1963] 1 WLR 677 PC, 681-2; Attorney-General (Hong Kong) v Humphreys Estate (Queen's Gardens) Ltd [1987] AC 114 at 121 per Lord Templeman).

Prima facie, the operation of an estoppel by conduct is to preclude departure from the assumed state of affairs. It is only where relief framed on the basis of that assumed state of affairs would be inequitably harsh, that some lesser form of relief should be awarded ( Giumelli ) but this prima facie entitlement would be qualified if that relief "would exceed what could be justified by the requirements of conscientious conduct and would be unjust to the estopped party".

His Honour noted at [67] that in Sledmore v Dalby (1996) 72 P & CR 196 CA, 203 Roch LJ, delivering the principal judgment, approved the statement that "the extent of the equity is to have made good, so far as may fairly be done between the parties, the expectations [of the plaintiff] which [the defendant] has encouraged" ( Snell's Equity 29th ed p 576) and that Sledmore was followed in Mobil Oil Australia Ltd v Wellcome International Pty Ltd (1998) 81 FCR 475 at 517-8. His Honour also noted that in Jennings v Rice , Robert Walker LJ had said:

... there is a category of case in which the benefactor and the claimant have reached a mutual understanding which is in reasonably clear terms but does not amount to a contract ... In such a case the Court's natural response is to fulfil the claimant's expectations. But if a claimant's expectations are uncertain, or extravagant, or out of all proportion to the detriment which the claimant has suffered, the Court can and should recognise that the claimant's equity should be satisfied in another (and generally more limited) way (emphasis supplied).

Handley JA went on in Delaforce at [77] to express the view that:

... there is no positive requirement for a plaintiff to prove that the relief sought is proportionate. The principle, a negative one, is that enforcement of the expectation must not be disproportionate.

I have concluded above that the basis of an equitable estoppel is not made out (since it was not objectively reasonable for Ms Van Dyke to rely on the promises, noting that the only detrimental reliance established in fact was the giving up of the opportunity to seek a property settlement from her former husband). Had I accepted that it was objectively reasonable for Ms Van Dyke to rely on the initial promise when giving up the opportunity to make a claim for a property settlement at the time of her divorce, then I would have considered that an order for the transfer of the Oaks Property to her (even assuming that could be done in advance of the subdivision) even if not disproportionate in all the circumstances would have affected the rights of Mrs Sidhu who was not joined as a party to the proceedings (and to whose interests it is clear from the authorities cited above I must have regard).

In those circumstances I would have concluded that the appropriate relief in the present case was not to make good the expectation as to the transfer of the property but to compensate Ms Van Dyke for the detriment suffered by giving up the opportunity to obtain a settlement from her former husband. In that regard, the difficulty would have been that there is no evidence (beyond Ms Van Dyke's stated opinion) as to what the likely property settlement would have been or as to the likelihood that leave might even now be obtained to make such an application. The marriage was of short duration but there was a child of the marriage the need for financial support for whom would no doubt have been a factor in considering any settlement. Mr Svenson's financial ability to meet a property settlement was also in issue. Had the quantum of relief been necessary to determine I would have been inclined to refer the question as to the likely range of a property settlement had this issue been the subject of an application to the Family Court in or around the time of the divorce out for determination by a Court appointed referee. As it is, the issue does not arise.

Unconscionable conduct claim

In essence this turns on the same issues addressed above.

In Barnes v Alderton , his Honour also noted that the trend had been away from listing fixed criteria in proprietary estoppel cases towards a broader formulation based on the notion of unconscionability (citing Pawlowski at 181) (at [49]), a trend his Honour considered had culminated in Jennings v Rice [2003] 1 P & CR 100, where Robert Walker LJ in the English Court of Appeal said at [44]:

The need to search for the right principles cannot be avoided. But it is unlikely to be a short or simple search because (as appears from both the English and Australian authorities) proprietary estoppel can apply in a wide variety of factual situations, and any summary formula is likely to prove to be an over-simplification. The cases show a wide range of variation in both of the main elements, that is the quality of the assurance which give rise to the claimant's expectations and the extent of the claimant's detrimental reliance on the assurances. The doctrine applies only if these elements in combination, make it unconscionable for the person giving the assurances ... to go back on them.

The reasons that have led me to conclude that it is not unconscionable for Mr Sidhu, in advance of completion of the subdivision, to resile from the promises he made (and to conclude that it was objectively not reasonable for Ms Van Dyke to rely on those promises in all the circumstances) lead to the conclusion that the alternative unconscionable conduct claim is also not established.

For completeness I note that in the course of submissions I raised the question whether the circumstances of the case might (though not pleaded) have given rise to a claim of the kind falling within the principles expounded in Muschinski v Dodds [1985] HCA 78; (1985) 160 CLR 583 and Baumgartner v Baumgartner [1987] HCA 59; (1987) 164 CLR 137 (namely for the imposition of a constructive trust where there is a joint endeavour between the parties in which expenditure is shared for their common benefit; that joint endeavour has come to an end without attributable blame in the sense in which that expression has been understood in later authorities; and it is found to be unconscionable for the contributions to, or benefit, of that joint endeavour to be retained by one of the parties thereto. Mason CJ, Wilson and Deane JJ in Baumgartner v Baumgartner referred to:

...the general equitable principle which restores to a party contributions which he or she has made to a joint endeavour which fails when the contributions have been made in circumstances in which it was not intended that the other party should enjoy them.

In Muschinski, Deane J said (at [618]) that a constructive trust may arise when an assertion of a legal right would be unconscionable:

Those circumstances can be more precisely defined by saying that the principle operates in a case where the substratum of a joint relationship or endeavour is removed without attributable blame and where the benefit of money or other property contributed by one party on the basis and for the purposes of the relationship or endeavour would otherwise be enjoyed by the other party in circumstances in which it was not specifically intended or specifically provided that that other party would so enjoy it. The content of the principle is that, in such a case, equity will not permit the other party to assert or retain the benefit of the relevant property to the extent that it would be unconscionable to do so ... (at p 620).

The pooling of labour by or on behalf of both parties, in the absence of the pooling of financial resources, has been found to give rise to a constructive trust (see Miller v Sutherland (1990) 14 Fam LR 416 at [424] per Cohen J) as have contributions to family welfare by way of domestic assistance ( Baumgartner at [155] - [156] per Gaudron J; Bryson v Bryant (1992) 29 NSWLR 188; Stowe v Stowe (1995) 15 WAR 363). White J, considering a claim based on a common intention constructive trust in Shepherd v Doolan [2005] NSWSC 42, noted that in Green v Green (1989) 17 NSWLR 343 Gleeson CJ (at [357]), (with whom Priestley JA agreed), had approved the test taken from the judgment of Sir Nicholas Browne-Wilkinson VC in Grant v Edwards [1986] Ch 638; 2 All ER 426 (at [657]) that:

Once it has been shown that there was a common intention that the claimant should have an interest in the house, any act done by her to her detriment relating to the joint lives of the parties is, in my judgment, sufficient detriment to qualify. The acts do not have to be inherently referable to the house. ... The holding out to the claimant that she had a beneficial interest in the house is an act of such a nature as to be part of the inducement to her to do the acts relied on. Accordingly in the absence of evidence to the contrary, the right inference is that the claimant acted in reliance on such holding out and the burden lies on the legal owner to show that she did not do so ...

The substantiality of the contribution in question will be a factor in determining the issue of unconscionability. The quantum of the claimant's beneficial interest is that which the parties agreed or intended. However, where the parties did not turn their minds to the particular form of the title that they intended to have the court can impose a constructive trust which best gives effect to the intentions of the parties (White J in Shepherd v Doolan noting Green v Green and Parianos v Melluish (Trustee) [2003] FCA 190; (2003) 30 Fam LR 524 in this regard).

In Little v Saunders [2004] NSWSC 655, Campbell J (as his Honour then was) said (at [41]):

... the fundamental matter which guides equity in deciding whether there is a constructive trust in this area, is whether the property would come to be enjoyed by a party in circumstances in which it was not specifically intended or specifically provided that the other party should so enjoy it.

Ms Van Dyke did not plead an entitlement to relief based on such a constructive trust, although she told me that she had in a previous draft of the submissions had a reference to Baumgartner .

In any event, for the reasons that led Handley JA to determine in Kukula that no relief based on the pooling of contributions would lie, that also seems to be the case here. The contributions seem to me to be broadly matched in terms of the benefit of the work carried out by Ms Van Dyke and the benefits received by her so as to make it difficult to argue that there was a disproportionate contribution that should be redressed in the current case on the breakdown of the relationship between the two (assuming that can be treated as a joint endeavour of the kind considered in the Muschinski line of cases). Further, it is clear that the joint understanding between Ms Van Dyke and Mr Sidhu in relation to The Oaks Cottage (and later the Oaks Property) was that any transfer of the property was only to occur (as could from a practical matter only be the case) after the subdivision of Burra Station (and either with the consent of Mrs Sidhu or in circumstances where that was not necessary).

Conclusion

In Taylor v Dickens [1998] 1 FLR (Eng) 806) (criticised on other aspects in Gillett v Holt ), Weeks J said:

In my judgment, there was no equitable jurisdiction to hold a person to a promise simply because the court thought it unfair, unconscionable or morally objectionable for him to go back on it. If there were such jurisdiction one might as well forget the law of contract and judge every civil dispute with a portable palm tree. The days of justice varying with the length of the Lord Chancellor's foot would have returned.

I have no doubt that promises were made by Mr Sidhu to Ms Van Dyke and that she placed her faith in them and expected that Mr Sidhu would honour them. It is very clear that Mr Sidhu is now not prepared to do so (and is not in a position to do so without affecting the interests of his wife in relation to their jointly owned property - despite his assurances to Ms Van Dyke that he was in a position to deal with his share of the property as he liked).

I consider that, as between he and Ms Van Dyke, Mr Sidhu's conduct is morally objectionable, to adopt the words in Taylor v Dickens . (It is not to the point in the present proceedings to express any view as to the conduct of both Mr Sidhu and Ms Van Dyke vis a vis Mrs Sidhu and I do not do so.) Mr Sidhu himself seems to have acknowledged a moral obligation to Ms Van Dyke in communications with her after the break-up of their relationship (though he considered it unreasonable for her to expect the transfer of the property itself in circumstances where the relationship was at an end). However, it is not for this Court to impose notions of what is or is not subjectively fair. I am not satisfied that Ms Van Dyke has established an entitlement to the relief she has sought whether on the basis of equitable estoppel or on the basis of a more general principle of unconscionable and therefore I am bound to dismiss her claim. I will so order.

**********

Decision last updated: 23 February 2012

Medium Neutral Citation:	Van Dyke v Sidhu [2012] NSWSC 118
Hearing dates:	12 and 13 December 2011
Decision date:	23 February 2012
Jurisdiction:	Equity Division
Before:	Ward J
Decision:	Plaintiff's claim dismissed
Catchwords:	EQUITY - proprietary estoppel - promise to transfer property once subdivision of land carried out - no separate promise to subdivide the land - where property was held jointly with wife who was not a party to the promises (or the proceedings) - whether reliance in fact and whether any such reliance in the circumstances was objectively reasonable - whether any detriment established - promisee lived on property - promisee carried out some work on the property - promisee forewent opportunity to seek family law settlement with promisor's encouragement - whether any unconscionability on part of promisor resiling from promise - where promise contingent on conditions yet to be fulfilled - HELD - reliance not objectively reasonable as promise predicated on conditions some of which are outside of promisor's control - only detrimental reliance established was foregone opportunity to seek family law settlement - no unconscionability as time for performance of promise yet to arrive
Legislation Cited:	Family Law Act 1975 (Cth)
Cases Cited:	Attorney-General (Hong Kong) v Humphreys Estate [1987] AC 114 Austotel Pty Ltd v Franklins Self Serve Pty Ltd (1989) 16 NSWLR 582 Australia and New Zealand Banking Group Ltd v Westpac Banking Corporation (1988) 164 CLR 662; 78 ALR 157; [1988] HCA 17 Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 Australian Crime Commission v Gray [2003] NSWCA 318 Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 Barnes v Alderton [2008] NSWSC 10 Baumgartner v Baumgartner [1987] HCA 59; (1987) 164 CLR 137 Bryson v Byrant (1992) 29 NSWLR 188 Catanzariti v Whitehouse (1981) 55 FLR 426 Chalmers v Pardoe [1963] 3 All ER 552 Ciavarella v Polimeni [2008] NSWSC 234 Cobbe v Yeoman's Row Management Limited [2008] 1 WLR 1752 Commissioner of State Revenue (Vic) v Royal Insurance Australia Ltd (1994) 182 CLR 51; 126 ALR 1; [1994] HCA 61 Commonwealth v Verwayen (1990) 170 CLR 394 Corin v Patton (1989-1990) 169 CLR 540 Crabb v Arun District Council [1976] Ch 179; [1975] 3 All ER 865 David Securities Pty Ltd v Commonwealth Bank of Australia [1992] HCA 48; (1992) 175 CLR 353 Delaforce v Simpson-Cook [2010] NSWCA 84 DHJM Pty Ltd v Blackthorn Resources Ltd [2011] NSWCA 348 Donis v Donis [2007] VSCA 89 Farah Constructions v Say-Dee [2007] HCA 22; (2002) 230 CLR 89 Flinn v Flinn [1999] 3 VR 712 Galaxidis v Galaxidis [2001] NSWSC 1123 Galaxidis v Galaxidis [2004] NSWCA 111 Gillett v Holt [2001] Ch 210; [2000] 3 WLR 815 Giumelli v Giumelli (1999) 196 CLR 101 Grant v Edwards [1986] Ch 638; 2 All ER 426 Green v Green (1989) 17 NSWLR 343 Hawker Pacific Pty Ltd v Charter Pty Ltd (1991) 22 NSWLR 298 Haxton v Equuscorp (formerly Equus Financial Services Ltd) (ACN 006 012 344) (2010) 265 ALR 336; [2010] VSCA 1 Henderson v Miles [2005] NSWSC 710 Jennings v Rice [2002] EWCA Civ 159 Little v Saunders [2004] NSWSC 655 Lumbers v W Cook Builders Pty Ltd (in liq) [2008] HCA 27; (2008) 232 CLR 635; (2008) 247 ALR 412 Miller v Sutherland (1990) 14 Fam LR 416 Mobil Oil Australia Ltd v Wellcome International Pty Ltd (1998) 81 FCR 475 Morris v Morris [1982] 1 NSWLR 61 Murphy v Overton Investments Pty Ltd [2001] FCA 500 Muschinski v Dodds (1985) 160 CLR 583 Nichols v Nichols (1986) 4 BPR 9240 Parianos v Melluish (Trustee) [2003] FCA 190; (2003) 30 Fam LR 524 Pavey & Matthews Pty Ltd v Paul [1987] HCA 5; (1987) 162 CLR 221 Plimmer v Wellington City Corp (1884) 9 App Cas 699 Public Trustee v Kukula (1990) 14 FamLR 79 Ramsden v Dyson (1866) LR 1 HL 129 Riches v Hogben [1985] 2 Qd R 292 Roxborough v Rothmans of Pall Mall Australia Ltd (2001) 208 CLR 516 ; 185 ALR 335; [2001] HCA 68 Saleh v Romanous [2011] NSWCA 264 Saleh v Romanous [2011] HC Trans 101 Saliba v Tarmo [2009] NSWSC 581 Shepherd v Doolan [2005] NSWSC 42 Silovi Pty Ltd v Barbaro (1988) 13 NSWLR 466 Simpson-Cook v Delaforce [2009] NSWSC 357 Sledmore v Dalby (1996) 72 P & CR 196 Standard Chartered Bank Aust Ltd v Bank of China (1991) 23 NSWLR 164 Stowe v Stowe (1995) 15 WAR 363 Sullivan v Sullivan [2005] NSWSC 10 Sullivan v Sullivan [2006] NSWCA 312 Talevski and Anor v Talevski and Anor [2007] NSWSC 945 Taylor v Dickens [1998] 1 FLR (Eng) 806 Thorner v Major [2009] 1 WLR 776 Tory v Tory [2007] NSWSC 1078 Van Dyke v Sidhu [2011] NSWCA 187 Vukic v Luca Grbin; Estate of Zvonko Grbin [2006] NSWSC 41 Walton v Walton (1994, England and Wales Court of Appeal, Civ Div, unreported) Waltons Stores (Interstate) Pty Ltd v Maher (1988) 164 CLR 387 Watson v Foxman (1995) 49 NSWLR 315 Williams v Hensman (1861) 1 J&H 546; 70 ER 862
Texts Cited:	Meagher, Gummow & Lehane, Equity: Doctrines & Remedies, (4th ed., 2002) Pawlowski, The Doctrine of Proprietary Estoppel (1996)
Category:	Principal judgment
Parties:	Lauren Marie Van Dyke )(Plaintiff) (Self represented) Prithvi Pal Singh Sidhu (Defendant)
Representation:	Counsel C R C Newlinds SC with J C Giles (Defendant) Solicitors Henry Davis York (Defendant)
File Number(s):	09/289460