LORIMER v STATE BANK OF NEW SOUTH WALES [1991] NSWCA 176

LORIMER vy STATE BANK OF NEW SOUTH WALES

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, PRIESTLEY and HANDLEY JJA 13 and 14 August 1990, 5 July 1991

[1991] NSWCA 176

ESTOPPEL — cotton farmer in financial difficulties discussion with bank officers — farmer proceeds to expand operations — bank provided funding for a time — thereafter terminates funds — farmer alleges (a) bank contractually bound to provide funding as promised; and (b) bank estopped from denying agreement to provide funds — trial judge (Brownie J) dismissed both claims — on appeal to the Court of Appeal — held: (by the Court) (1) Having regard to the findings of the trial judge, the conclusion that there was no binding contract could not be disturbed. Jones v Hyde (1989) 63 ALJR 349, Abalos v Australian Postal Commission (1990) 171 CLR 167 applied; (2) (per Kirby P (diss); Priestley and Handley JJA not deciding) The trial judge erred in holding that it was necessary for the parties to have a common mistaken assumption to found an estoppel. Thompson v Palmer (1933) 49 CLR 507 and Grundt v Great Boulder Pty Ltd Mines Limited (1937) 59 CLR 641 applied; (3) (per Priestley and Handley JJA: Kirby P dissenting) The findings made by the trial judge and the pleading and conduct of the trial precluded the establishment of an estoppel by silence on the part of the bank. Waltons Stores (Interstate) Limited vy Maher (1988) 164 CLR 387 applied; (5) Appeal, accordingly, dismissed.

EQUITY — estoppel — distinction from estoppel in pais at common law — appropriateness and availability of a unified theory of estoppel — held: (per Kirby P (diss); Priestley and Handley JJA not deciding) The law of estoppel in Australia is in a stage of development. Although a single substantive doctrine of estoppel is favoured by some Justices of the High Court in The Commonwealth v Verwayen (1990) 170 CLR 394 and is desirable, it is not yet a binding rule and accordingly the distinction between common law estoppel in pais and equitable estoppel survives and should be applied subject to the operation of the Law Reform (Law and Equity) Act 1972 85.