Stone v Kramer [2021] NSWSC 1456

Supreme Court New South Wales

Medium Neutral Citation: Stone v Kramer [2021] NSWSC 1456 Hearing dates: 20 to 27 November 2020 Decision date: 10 November 2021 Jurisdiction: Equity Before: Robb J Decision: The plaintiff has established his case that he is beneficially entitled to the property known in these proceedings as the Colo Property. However, the granting of that relief to the plaintiff will be subject to the condition that the plaintiff is to return to the estate of the deceased the $200,000 legacy. See pars [250], [251], [252], [338]-[345]. The parties should consider these reasons and confer as to appropriate short minutes of order to give effect to them and provide draft short minutes of order to the Associate to Robb J. Catchwords: ESTOPPEL — Proprietary estoppel — Encouragement — Where the plaintiff was a sharefarmer on property owned by the deceased for approximately 40 years — Where the defendants are the executors of the deceased's estate — Where the plaintiff claimed the deceased made an oral representation to him years ago that she would leave the property to the plaintiff — Where the deceased failed to do so — Where there was no witness to the representation and it was not in writing — Where the Court considered the credibility of the witness and circumstantial evidence to determine whether the representation was made — Where the Court found the plaintiff to be an exceptionally credible witness who was both truthful and reliable — Where the Court found on the balance of probabilities and on the basis of both credibility and circumstantial evidence that the representation was made — Where the defendant argued that the deceased did not know that the plaintiff was relying on the assumption — Where the Court found the deceased had constructive knowledge — Where the defendants argued that even if the representation was made, the representation was not the sole reason why the deceased stayed on the property and continued share farming — Where the Court held that it was sufficient for the plaintiff to have established that the representation was a significant factor in his decision to stay and continue share farming — Where the defendants argued that if the Court found the representation had been made, it would also have to make a finding that the deceased was dishonest — Where the Court held that it did not have to make a finding of dishonesty in order to find that the deceased acted unconscionably ESTOPPEL — Proprietary estoppel — Encouragement — Where the defendants raised defences as to why the plaintiff's conduct disentitled him to equitable relief — Where the defences raised were to the effect that the plaintiff deceived the deceased in relation to accounting matters, that the plaintiff failed to conduct the share farming operation in a proper and workmanlike manner, that the plaintiff had received rent-free accommodation for the period in which he performed the share farming agreement, that the plaintiff failed to maintain his house on the farm, that the plaintiff received loans from the deceased which were forgiven over time, and that the deceased made a considerable monetary gift to the plaintiff in her will — Where the Court dismissed all defences raised by the defendants Legislation Cited: Evidence Act 1995 (NSW) Cases Cited: Commonwealth v Verwayen (1990) 170 CLR 394 Dable v Peisley [2009] NSWSC 772 Delaforce v Simpson-Cook (2010) 78 NSWLR 483; [2010] NSWCA 84 DHJPM Pty Ltd v Blackthorn Resources Ltd (2011) 83 NSWLR 728; [2011] NSWCA 348 Doueihi v Construction Technologies Australia Pty Ltd (2016) 92 NSWLR 247; [2016] NSWCA 105 Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd (1999) 161 ALR 599 Foran v Wight (1989) 168 CLR 385 Fox v Percy (2003) 214 CLR 118 at 129; [2003] HCA 22 Gautam v Health Care Complaints Commission [2021] NSWCA 85 In the matter of Hillsea Pty Ltd [2019] NSWSC 1152 John Holland Pty Ltd v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451 Leading Synthetics Pty Ltd v Adroit Insurance Group Pty Ltd [2011] VSC 467 Moore v Aubusson [2020] NSWSC 1466 Nigel Watts Fashion Agencies Pty Ltd v GIO General Ltd [1994] NSWCA 365 Nguyen v Cosmopolitan Homes [2008] NSWCA 246 Priestley v Priestley [2017] NSWCA 155 Q (a pseudonym) v E Co (a pseudonym) (Q v E Co) [2020] NSWCA 220; (2020) 383 ALR 469 Silovi Pty Ltd v Barbaro (1988) 13 NSWLR 466 Simpson-Cook v Delaforce [2009] NSWSC 357 Trentelman v The Owners – Strata Plan No 76700 [2021] NSWCA 242 Vukic v Luca Grbin; Estate of Zvonko Grbin [2006] NSWSC 41 Waddell v Waddell [2012] NSWCA 214 Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 Warner v Hung; Bellpac Pty Ltd (recs and mgrs apptd) (in liq), Re [2011] FCA 1123; (2011) 297 ALR 56 Watson v Foxman (1995) 49 NSWLR 315 Withyman v NSW [2013] NSWCA 10 Category: Principal judgment Parties: David Stone (plaintiff) Hilary Kramer (first defendant) Jamie Ferrer (second defendant) Representation: Counsel: L Ellison SC/ Dr H Bennett (plaintiff) C Harris SC (first and second defendants)