Walsh v Walsh

[2012] NSWCA 57

Court of Appeal

New South Wales

Case Title:

Walsh v Walsh

Medium Neutral Citation:

[2012] NSWCA 57

Hearing Date(s):

8 March 2012

Decision Date:

29 March 2012

Jurisdiction:

Before:

Macfarlan JA at [1]
Meagher JA at [2]
Barrett JA at [35]

Decision:

(1) Appeal dismissed.
(2) The appellant pay the respondent's costs of the appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

ESTOPPEL - equitable proprietary estoppel - co-owners of rice growing property and shares with attached water entitlements - respondent purchased appellant's interest in property on understanding encouraged by appellant that would also obtain his interest in shares - whether respondent would suffer detriment from change of position in reliance on encouraged expectation if that expectation repudiated.
REMEDIES - equitable proprietary estoppel - whether respondent entitled to have encouraged expectation made good.

Legislation Cited:

Conveyancing Act 1919
Testator's Family Maintenance Act 1916
Water Act 2007 (Cth)

Cases Cited:

Austotel Pty Ltd v Franklins Self-Serve Pty Ltd (1989) 16 NSWLR 582
Barnes v Alderton [2008] NSWSC 107; (2008) 13 BPR 25,281
Delaforce v Simpson-Cook [2010] NSWCA 84; (2010) 78 NSWLR 483
Donis v Donis [2007] VSCA 89; (2007) 19 VR 577
Gillett v Holt [2001] Ch 210
Giumelli v Giumelli [1999] HCA 10; (1999) 196 CLR 101
Grundt v Great Boulder Proprietary Gold Mines Ltd (1937) 59 CLR 641
Plimmer v Mayor of Wellington (1884) 9 App Cas 695
Ramsden v Dyson (1866) LR 1 HL 129
Riches v Hogben [1985] 2 Qd R 292
Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7; (1988) 164 CLR 387

Texts Cited:

Category:

Principal judgment

Parties:

Graham Ernest Walsh (Appellant)
Maurice Geoffrey Walsh (Respondent)

Representation

- Counsel:

Counsel:
Mr T Hall (Hall Partners, Strathfield) (Appellant)
Dr G C Dempsey (Respondent)

- Solicitors:

Solicitors:
Hall Partners, Strathfield (Appellant)
Noyce Salmon & D'Aquino, Griffith (Respondent)

File number(s):

CA 2009/291730

Decision Under Appeal

- Court / Tribunal:

- Before:

Slattery J

- Date of Decision:

07 April 2011

- Citation:

Walsh v Walsh [2011] NSWSC 271

- Court File Number(s)

SC 2009/5696

Publication Restriction:

JUDGMENT

1. MACFARLAN JA: I agree with Meagher JA.

2. MEAGHER JA: The appellant and respondent are brothers and were the owners as tenants in common in unequal shares of a rice growing property at Bridge Road, Murrami (Farm 1077) in the Murrumbidgee Irrigation Area (MIA) in southern New South Wales. In June 2000, the respondent acquired the appellant's two-fifths interest in that property on the understanding that he would also obtain the appellant's interest as co-owner of certain shares in Murrumbidgee Irrigation Limited (MIL) to which…