Williams Adams Leasing Ltd v Clark

[1989] TASSC 49

Serial No 47/1989
List "A"

CITATION:              Williams Adams Leasing Ltd v Clark [1989] TASSC 49; A47/1989

PARTIES:  WILLIAMS ADAMS LEASING LTD
  v
  CLARK

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  1031/1984
DELIVERED ON:  22 August 1989
DELIVERED AT:  Hobart
JUDGMENT OF:  The Master

Judgment Number:  A47/1989
Number of paragraphs:  15

Serial No 47/1989
List "A"
File No 1031/1984

WILLIAMS ADAMS LEASING LTD v CLARK & ORS

REASONS FOR JUDGMENT  THE MASTER

22 August 1989

1. The defendants have filed an interlocutory application seeking that execution of a writ of fieri facias issued in this action by the plaintiff on the 22 December 1988 be stayed absolutely pursuant to O47, r17(b) of the Rules of the Supreme Court.

1. The defendants allege that, firstly, the writ should be stayed on the grounds that it was irregular on the face of it and secondly that the plaintiff is estopped from proceeding upon it. At the first hearing of this application on 28 February 1989 I ruled that the writ was not irregularly issued and reserved the decision on the submissions as to whether the plaintiff was estopped from proceeding upon it. I subsequently referred to counsel for the parties a number of cases and references dealing with the issue of estoppel.

1. The following is a chronology of the relevant events leading up to the issue of the writ of fifa:–

1         Judgment by consent was entered for the plaintiff against the defendants on 29 March 1988 in the sum of $18,510.53, together with costs to be taxed including those costs on the defendant's counterclaim and third party proceedings.

2         Certificates of taxation issued on 1 June 1988 in the sums of $2,709.25 and $290.75.

3         Offers to settle the judgment debt were made by the defendants solicitors to meet the judgment debt and costs. Annexed to an affidavit of John William Avery, the solicitor for the defendants, sworn the 19 January 1989, and tendered upon this application are the correspondence marked "C" and "D" in which agreement was reached between the parties. Annexures "C" and "D" are as follows:

"'C'

26 July, 1988

Messrs Simmons Wolfhagen
Barristers & Solicitors
DX 114 HOBART

Attention: Mr D J D Morris

Dear Sir

william adams leasing ltd v dudley clark pty ltd & d r & a j clark

We refer to the writer's telephone conversation with your Mr Morris concerning the above matter and hereby give our firm undertaking that the judgment debt and costs in the total sum of $21,510.53 will be paid by our client within a period of sixty days from the date hereof.

We further note your undertaking that no further action will be taken to place caveats on any of the properties owned by our client that upon payment of the judgment debt and costs in full you will hand to us a withdrawal of caveat relating to the caveat already placed on one of our client's properties.

Yours faithfully
JOHN W AVERY

Per:

J W AVERY"

"'D'

28 July 1988

John W Avery
Barristers & Solicitors
56 Hopkins Street
MOONAH 7009

Dear Sir

re:      william adams leasing ltd v dudley clark pty ltd & dr & aj clark

Thankyou for your letter of the 26th instant containing your firm's undertaking that the Judgment debt and costs in the total sum of $21,510.53 will be paid by your client within the period of sixty days from the 26th day of July 1988.

We confirm that on the basis of that firm undertaking we will not take any action to place Caveats on any of the properties owned by your client within the sixty day stipulated period.

We shall await payment pursuant to the undertaking.

Yours faithfully
SIMMONS WOLFHAGEN

Per;

D J D MORRIS"

4         On 26 September 1988 the defendants' solicitors effected payment of the sum of $21,510.53 and the plaintiff's solicitors delivered a withdrawal of caveat form, as agreed between the parties, in the correspondence referred to above. (See paragraph 7 of Mr Avery's affidavit).

5         On 4 October 1988, a solicitor in the plaintiff's solicitor's firm, other than the solicitor who had signed the previous correspondence, wrote to the defendants' solicitors in the following terms:

"The judgment debtors are obliged to pay interest on the judgment debt and costs.

Interest is due on the sum of $18,510.53 from the 28th day of March 1988 until the 27th September 1988 at 10% per annum and on the sum of $3,000.00 from the 1st June 1988 to the 27th September 1988 at 10% per annum.

Unless the interest is paid within seven days proceedings will be taken to execute the judgment without notice."

6         The defendants' solicitors disputed the claim for interest (see Annexure "F" to Mr Avery's affidavit) and the plaintiff's solicitors issued the writ of fieri facias on 22 December 1988 which, in addition to the sums for the judgment debt, costs and interest, claims a further sum of $49.00 for the costs of execution and other associated expenses.

7         In an affidavit sworn by the second named defendant, Dudley Robert Clark, on 3 July 1989, he deposed to the advice which he received from and the instructions which he gave to his solicitors in response to the settlement of the judgment debt and costs. In paragraph 13 of his affidavit he deposed to the liability for further costs which he has been exposed to as a result of the plaintiff's subsequent claim for interest.

1. Upon these facts the defendants claim that either by way of promissory or equitable estoppel that the plaintiff should not be allowed to proceed to execution under the writ of fi fa issued against them.

1. At first it might be thought that Foakes v Beer (1884) 9 AC 605 is a case directly in point on the present issue of estoppel, but Foakes v Beer followed Pinnel's case (1602) 5 Co Rep 117a which was decided on a point of pleading in debt rather than assumpsit.

1. The question of promissory or equitable estoppel has led a tortuous trail through a maze of cases since Foakes v Beer and culminating in the recent High Court case of Walton Stores (Interstate) Ltd v Maher and Anor (1988) 76 ALR 513.

1. In considering this question I have derived considerable assistance from the succinct, but comprehensive coverage by the learned authors of the fifth Australian edition of Cheshire and Fifoot's Law of Contract, which significantly adds to the views expressed and cases cited in the earlier editions. From paragraphs 235 to 253 the learned authors deal with the various elements of promissory or equitable estoppel, including consideration and detriment, which are before me for determination upon the present application. The decision reached in Walton Stores v Maher (supra) confirms many of the predictions made by the learned authors on the development which the courts were likely to take on such issues.

1. On the facts of the present application I find that the agreement reached between the parties under the terms of the correspondence was intended to effect a complete and final settlement of the liability pursuant to the judgment. The withdrawal of the caveat by the plaintiff's solicitors on 26 September 1988, when the judgment debt and costs were paid, was, of itself, consistent with a course of conduct leading to this conclusion. It is, having regard to the history of the action between the parties, unlikely that the plaintiff's solicitors would have withdrawn the caveat if they considered some liability remained outstanding.

1. Mrs Ayling submitted that the six steps enunciated by Brennan J in Walton Stores v Maher (supra) which are necessary to establish an equitable estoppel have been proved by the defendants in this action. Those steps are as follows:–

1The defendants assumed or expected that a particular legal relationship exists between the defendants and the plaintiff or that a particular legal relationship will exist between them, and in the latter case, that the plaintiff is not free to withdraw from the expected legal relationship.

2The plaintiff has induced (either actively or by a failure to deny the correctness of the expectation or assumption relied on by the defendants knowing that detriment will be caused to the defendants if the expectation or assumption is not fulfilled) the defendants to adopt that assumption or expectation.

3The defendants act or abstain from acting in reliance of the assumption or expectation.

4The plaintiff knew or intended them to do so.

5The defendants' action or inaction will occasion detriment if the assumption or expectation is not fulfilled.

6.The plaintiff has failed to act to avoid the detriment whether by fulfilling the assumption or expectation or otherwise.

1. I am satisfied that each of these elements have been established in the present case.

1. Further, I am left in no doubt that it would constitute "unconscionable conduct" for the plaintiff to ignore the assumption or expectation which the defendants were under (per Mason CJ and Wilson J).

1. It appears from the judgment of the High Court in Walton Stores v Maher (supra) that consideration is not required in such circumstances, as under the present agreement, to give effect to the promissory or equitable estoppel (see Brennan J at p.538).

1. I hold that the undertaking to pay the judgment debt and costs within 60 days from 26 July 1988 was sufficient to give rise to a promissory estoppel in that it gave the plaintiff the benefit of certain recovery of the full amount of the debt and costs at a time which, if left to other resources, the plaintiff may not have been able to recover the debt in full or at such an early date.

1. As to detriment, the defendants have incurred a detriment by the very agreement itself. They would also suffer a detriment by the incurring of the execution costs of $49 and the further legal costs if the plaintiff, by its conduct, is allowed to proceed upon the writ of fieri facias (see J E Maintiendrai Pty Ltd v Quaglia & Anor (1980) 26 SASR 101).

1. For these reasons I order that the writ of fieri facias issued by the plaintiff on 22 December 1988 be stayed absolutely. I shall hear counsel as to costs.