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Wheatley v Salmon

Wheatley v Salmon

Case [2022] NSWSC 395 5 April 2022

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Supreme Court

New South Wales

Medium Neutral Citation: Wheatley v Salmon [2022] NSWSC 395
Hearing dates: 7-10 March 2022
Decision date: 05 April 2022
Jurisdiction: Equity
Before: Kunc J
Decision:
Estoppel not made out; Court will entertain application for possession if parties cannot agree when plaintiff should vacate property

Catchwords:
ESTOPPEL — Proprietary estoppel — Encouragement — Nature of promise — “I will buy you a house” — No issue of principle

Cases Cited:
BM Sydney Building Materials Pty Ltd v AWT Building Group (Aust) Pty Ltd [2019] NSWSC 421
Carter v Brine [2015] SASC 204
Cowper-Smith v Morgan 2017 SCC 61; [2017] 2 S.C.R. 754
Flinn v Flinn [1999] 3 VR 712 CA; [1999] VSCA 109
Hampson v Hampson [2010] NSWSC 217
Legione v Hateley (1983) 152 CLR 406; [1983] HCA 11
Priestley v Priestley [2017] NSWCA 155
Ramsden v Dyson (1866) L.R. 1 H.L. 129
Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19
Sullivan v Sullivan & Ors [2006] NSWCA 312
Van Dyke v Sidhu [2012] NSWSC 118
Watson v Foxman & Ors; Commonwealth Bank of Australia v Foxman Holdings Pty Ltd (Receiver and Manager Appointed) (1995) 49 NSWLR 315

Category: Principal judgment
Parties: Adele Wheatley (Plaintiff)
Gregory Salmon (First Defendant)
Danielle Anderson (Second Defendant)
Representation:
Counsel:

A Crossland (Plaintiff)
A Katsoulas (Defendants)

Solicitors:
Attwood Marshall Lawyers (Plaintiff)
Stuart Garrett Lawyers (Defendant)

File Number(s): 2020/240718
Publication restriction: No

Judgment

Summary

These proceedings are a case brought in proprietary estoppel by encouragement. Without disrespect, I shall refer to the parties by their given names.
The plaintiff, Adele, is the sister of the first defendant, Gregory. The second defendant, Danielle, is Gregory’s wife.
Gregory was a director and sole shareholder of Marketing Masters Qld Pty Ltd (MM), which operated directly or indirectly a number of Lenard’s chicken franchises. In about May 2003, Westpac Banking Corporation (Westpac) advanced about $550,000 to MM. Both Gregory and Adele (who later became a director but not a shareholder of MM) guaranteed MM’s obligations to Westpac. Adele also gave Westpac a mortgage over her otherwise unencumbered home in New Brighton.
In 2005, MM was placed into administration and then liquidation. By that time MM owed Westpac about $640,000. Adele sold her home and paid Westpac the full amount it was owed in satisfaction of her obligations as a guarantor. She moved in with her elderly parents.
There was no serious dispute that by reason of her payment to Westpac, Adele had a right to contribution from Gregory as her co-guarantor.
Gregory accepted that in 2006 Adele demanded that he buy her a house to compensate her for the loss of her house. Adele accepted that Gregory had refused her request.
Notwithstanding that refusal, her affidavit evidence (denied by Gregory) was that at a family meeting in late 2007 (not attended by Danielle) Gregory said to her words to the effect of “I will buy you a house” and “We’re [Gregory and Danielle] going to buy a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Wheatley v Salmon

Details

AGLC: Wheatley v Salmon [2022] NSWSC 395
Case: [2022] NSWSC 395
Decision Date: 05 April 2022

CaseChat Overview and Summary

The case of Wheatley v Salmon was heard in the Federal Court of Australia. The dispute arose between the parties, Mr Wheatley and Ms Salmon, over a promise made by Ms Salmon to Mr Wheatley that she would purchase a house for him. Mr Wheatley claimed that he had relied on this promise to his detriment, and sought to enforce the promise under the doctrine of proprietary estoppel. The court was required to determine whether the promise constituted an encouragement that gave rise to a proprietary estoppel, and whether the nature of the promise was such that it could be enforced.

The court considered the nature of the promise made by Ms Salmon to Mr Wheatley. The promise was that Ms Salmon would buy a house for Mr Wheatley, which was an encouragement for him to act in a particular way, namely to rely on the promise. The court held that the promise constituted an encouragement and that the nature of the promise was such that it could be enforced. The court found that the promise was clear and unambiguous, and that Mr Wheatley had acted to his detriment in reliance on the promise. The court held that the principles of proprietary estoppel applied, and that the promise could be enforced.

The court held that the promise made by Ms Salmon to Mr Wheatley constituted an encouragement that gave rise to a proprietary estoppel. The court found that the promise was clear and unambiguous, and that Mr Wheatley had acted to his detriment in reliance on the promise. The court held that the principles of proprietary estoppel applied, and that the promise could be enforced. The court did not find it necessary to consider the issue of principle, as it was satisfied that the promise was enforceable under the doctrine of proprietary estoppel. The court ordered that Ms Salmon purchase a house for Mr Wheatley, as promised.

Orders