SIMMONS v SIMMONS BY HER TUTOR THE PROTECTIVE COMMISSIONER OF NEW SOUTH WALES [1994] NSWCA 368

SIMMONS v SIMMONS BY HER TUTOR THE PROTECTIVE COMMISSIONER OF NEW SOUTH WALES

SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

GLEESON CJ, KIRBY P and PRIESTLEY JA 24 March 1994, 14 November 1994 [1994] NSWCA 368

ESTOPPEL — equitable estoppel — departure from assumption induced by party would be unconscionable — held: mother should be required to prevent detriment by giving effect to a promise acted upon by her son to his detriment.

Silovi Pty Ltd v Barbaro (1988) 13 NSWLR 466 (CA) applied.

GIFT - necessary intention - absence of requirement of action on part of donee - if

action required claim based in contract or estoppel, not gift. Corin v Patton (1990) 169 CLR 540 applied.

ESTOPPEL - equitable estoppel - agreement between mother and son that son will become joint tenant of properties held by leases under the Western Lands Act - son agrees to continue as companion and joint tenant of long-standing family interest in grazing property - son cares for mother and participates in grazing business - management of mother's estate later taken over by tutor pursuant to Protected Estates Act - all steps necessary to perfect transfer taken by mother - registration delayed by litigation by other family members - management of mother's estate committed to Protective Commissioner - Protective Commissioner opposes claim by son to have his interest as joint tenant in leases registered by transfer - proceedings by son in Supreme Court dismissed by Windeyer J - on appeal to the Court of Appeal - held: Priestley JA; Gleeson CJ and Kirby P concurring:

(1) The Court was required to proceed on the footing of Windeyer J's finding that the mother's intention was contractual and not donative;

(2) Accordingly, any entitlement of the son was limited to any entitlements based on contract or estoppel;

(3) The claim in estoppel should succeed;