Supreme Court New South Wales Medium Neutral Citation: Lauren Marie Van Dyke v Prithvi Pal Singh Sidhu [2011] NSWSC 167 Hearing dates: 7 March 2011 Decision date: 07 March 2011 Jurisdiction: Equity Division Before: Gzell J Decision: Statement of claim struck out. Judgment for defendant with costs. Catchwords: ESTOPPEL - General Principles - promise by one joint tenant to transfer an unsubdivided lot when able to do so - subdivision not taken place - other joint tenant not party to proceedings Cases Cited: Dey v Victorian Railways Commissioners [1949] HCA 1; (1948-1949) 78 CLR 62 General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 Penthouse Publications Ltd v McWilliam (NSW Court of Appeal, 14 March 1991, unreported) Mutual Life & Citizens' Assurance Co Ltd v Evatt (1970) 122 CLR 628 Waltons Stores (Interstate) Limited v Maher [1988] HCA 7; (1987-1988) 164 CLR 387 Giumelli v Giumelli [1999] HCA 10; (1999) 196 CLR 101 Commonweath v Verwayen (1990) 170 CLR 394 Legione v Hateley [1983] HCA 11; (1982-1983) 152 CLR 406 Woodhouse AC Israel Cocoa Ltd SA v Nigerian Produce Marketing Co Ltd [1971] 2 QB 23 The Public Trustee v Kukula (1990) 14 Fam LR 97 Texts Cited: R P Meagher, W M C Gummow and J R F Lehane, Equity: Doctrines & Remedies, 4th ed (2002), Butterworths, LexisNexis Peter W Young, Clyde Croft and Megan Louise Smith, On Equity (2009), Lawbook Co. Category: Principal judgment Parties: Lauren Marie Van Dyke (Plaintiff) Prithvi Pal Singh Sidhu (Defendant) Representation: Counsel: R Newlinds SC/ J Giles (Defendant) Solicitors: Henry Davis York Solicitors (Defendant) File Number(s): 2009/289460 Judgment 1When this matter was called on for hearing I discussed with Lauren Marie Van Dyke, the plaintiff, who appeared in person, whether she was entitled to the relief she claimed. Ms Van Dyke opened her case but I had concluded that she was not entitled to the relief claimed and I struck out her statement of claim and entered judgment for Prithvi Pal Singh Sidhu, the defendant, with costs. These were my reasons. 2At the outset it is acknowledged that summary termination of proceedings is an extreme step. The case must be very clear to justify summary termination to prevent a plaintiff submitting a case for determination in the usual way ( Dey v Victorian Railways Commissioners [1949] HCA 1; (1948-1949) 78 CLR 62 at [13]; 91). 3The court's powers of summary dismissal should not be exercised to deny a plaintiff access to the courts unless the lack of a cause of action is clearly demonstrated ( General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at [8]; 129). It is for the applicant to demonstrate that a statement of claim is beyond saving by legitimate amendment ( Penthouse Publications Ltd v McWilliam 4(NSW Court of Appeal, 14 March 1991, unreported), citing Mutual Life & Citizens' Assurance Co Ltd v Evatt (1970) 122 CLR 628 at 631). 5Ms Van Dyke verified her statement of claim. In it she alleged that Mr Sidhu and his wife were the registered proprietors of a property known as Burra Station; that Mr Sidhu and his wife each owned one share in Laylos Pty Limited, the registered proprietor of land known as the Burra Station Estate; that on Burra Station was a cottage known as the Oaks Cottage; that during the time she and her husband rented the Oaks Cottage she and Mr Sidhu commenced a romantic and physical relationship; and that Mr Sidhu made a number of promises to her with respect to the Oaks Cottage. 6Ms Van Dyke's claim to relief was based totally upon equitable or promissory estoppel as explained in such cases as Waltons Stores (Interstate) Limited v Maher [1988] HCA 7; (1987-1988) 164 CLR 387 and Giumelli v Giumelli [1999] HCA 10; (1999) 196 CLR 101. 7Ms Van Dyke made no claim that she had a binding contract with Mr Sidhu nor did her alternative claim for equitable compensation arise in relation to her expenditure of money or performance of work with respect to Oaks Cottage. The claim was based solely on the promises. 8In her statement of claim Ms Van Dyke alleged that early in 1998 Mr Sidhu said to her: "I will give you the Oaks property Lauren, it is your home. Lauren, there is no need for a settlement from Rolf through your divorce. You have a home in the Oaks Cottage. I am subdividing Burra Station and as soon as this is done I will make sure the Oaks is put into your name. Using my Indian family money to buy this place means I can make my own decision as to how I share it and I want you to have the Oaks property." 9There was no suggestion in the pleading that the Oaks Property has been subdivided from Burra Stations and Mr Newlinds SC who with Mr Giles appeared for Mr Sidhu stated from the Bar table that subdivision of Burra Station had only just commenced. 10In her pleading, Ms Van Dyke alleged that acting on the faith of this promise she lived in the Oaks Cottage with her son as her home and performed extensive work and devoted substantial effort in relation to the improvement and maintenance of the Oaks Cottage, the Oaks Property, Burra Station and Burra Station Estate. 11Ms Van Dyke claimed in her pleading that in or about 2004 Mr Sidhu said to her: "We will expand your Oaks Property to include the permanent water spring and dams so that you will have water for the horses and alpacas. Together we can step out the new survey boundary to get it right." 12Ms Van Dyke alleges that in reliance on this promise and the earlier one she continued to reside in the Oaks Cottage and continued to work on the Oaks Property, Burra Station and Burra Station Estate. 13In the statement of claim Ms Van Dyke alleges that in about 2005, in response to her expression of concern, Mr Sidhu said that he would procure the transfer of the title to the Oaks Property into her name as he had promised; that it was only a matter of time before the subdivision into 30 lots of the Burra Station Estate was completed; that money would then be available to complete the four lot subdivision of Burra Station; that Ms Van Dyke should be patient; that he would procure his wife's agreement to the transfer of the title of the Oaks Property into Ms Van Dyke's name no matter what; that there were a number of ways he could obtain his wife's agreement to transfer the title of the Oaks Property into Ms Van Dyke's name and that he would work out a way of achieving this and to leave it up to him; and that there were tax implications involved and he would figure out how to transfer the title of the Oaks Property into Ms Van Dyke's name under the existing mortgages. 14Ms Van Dyke alleged that in reliance on these representations and the earlier promises she continued to reside at the Oaks Property and continued work on the Oaks property, Burra Station and Burra Station Estate. 15Ms Van Dyke in her pleading alleged that on 21 February 2006 Oaks Cottage burned down. Mr Sidhu told her that as soon as possible another home would be built in its place using the insurance money. 16Ms Van Dyke alleged that in reliance on that representation and the earlier promises she commenced research on suitable project homes; moved into a relocatable cottage on Burra Station and continued to work on the Oaks Property, Burra Station and Burra Station Estate. 17It was alleged in the pleading that on or about 7 May 2006 Mr Sidhu and his wife signed a statement in which they said that when the Oaks Cottage was rebuilt and as soon as it was possible to transfer the Oaks Property on which the house was rebuilt, this would be done by Mr Sidhu and his wife. 18Ms Van Dyke alleged that in reliance on that representation together with the earlier promises she continued to work to prepare for the rebuilding by clearing the Oaks Cottage site and continued to work on the Oaks Property, Burra Station and Burra Station Estate. 19In her pleading Ms Van Dyke alleges that in about July 2006 Mr Sidhu and his wife agreed with her that as the rebuilding of the Oaks Cottage would take a substantial time they would sell her the relocatable cottage for the sum of $24,000 so that she could arrange for its erection on the Oaks Property. 20It is alleged in Ms Van Dyke's pleading that on or about 21 July 2006 Mr Sidhu informed her that he and his wife did not own and could not sell the relocatable cottage and that his long-time male friend who was staying with him would need to live in it. Ms Van Dyke alleges that she then left Burra Station and the Oaks Property. 21The statement of claim alleges that by reason of the above representations Mr Sidhu created and encouraged an assumption on Ms Van Dyke's part that the Oaks Property was her home and that Mr Sidhu would procure the transfer of the title to the Oaks Property into her name and in reliance on that assumption she acted to her detriment as set out above. 22Ms Van Dyke claims that in the circumstances Mr Sidhu is estopped from departing from that assumption. 23Ms Van Dyke claims a declaration that Mr Sidhu is estopped from denying the assumption. She seeks an order that Mr Sidhu take all necessary steps to procure the transfer of the title to the Oaks Property to her. She claims an order that Mr Sidhu pay her equitable compensation reflecting the value of Oaks Cottage. 24In the alternative to the above declaration and orders, Ms Van Dyke seeks a declaration that Mr Sidhu holds his interest in the Oaks Property on constructive trust for her or subject to an equitable charge in her favour. 25In the further alternative to all the above relief, Ms Van Dyke seeks equitable compensation. 26Ms Van Dyke commenced these proceedings on 30 June 2009. 27As is pointed out in Peter W Young, Clyde Croft and Megan Louise Smith, On Equity (2009), Lawbook Co. at [12.230] promissory or equitable estoppel is not about providing remedies for broken promises. 28As was said by Mason CJ in Commonweath v Verwayen (1990) 170 CLR 394 at 416, the breaking of a promise, without more, is morally reprehensible, but not unconscionable in the sense that equity will necessarily prevent its occurrence or remedy the consequent loss. In the same way, with estoppel, something more than a broken promise is required. 29In Waltons Stores , Brennan J enunciated six propositions with respect to promissory estoppel to which reference is often made. At 428-429 his Honour said: "In my opinion, to establish an equitable estoppel, it is necessary for a plaintiff to prove that (1) the plaintiff assumed that a particular legal relationship then existed between the plaintiff and the defendant or expected that a particular legal relationship would exist between them and, in the latter case, that the defendant would not be free to withdraw from the expected legal relationship; (2) the defendant has induced the plaintiff to adopt that assumption or expectation; (3) the plaintiff acts or abstains from acting in reliance on the assumption or expectation; (4) the defendant knew or intended him to do so; (5) the plaintiff's action or inaction will occasion detriment if the assumption or expectation is not fulfilled; and (6) the defendant has failed to act to avoid that detriment whether by fulfilling the assumption or expectation or otherwise." 30In Giumelli the High Court overturned the order of the Full Court of the Supreme Court of Western Australia declaring that the parents held the whole of the property on trust to convey to their son an unsubdivided portion identified as the promised lot. The High Court held that an order for conveyance should not be made and the appropriate relief was an order for payment of a monetary sum representing the present value of the son's claim to the promised lot calculated so as to do equity between the parties to the action. 31While I doubt that the extensive work and substantial effort in relation to the improvement and maintenance of the Oaks Cottage, the Oaks Property, Burra Station and Burra Station Estate that Ms Van Dyke claims to have performed, as particularised in her statement of claim, is sufficient detriment to justify the orders sought for conveyance or constructive trust, I did not base my judgment on that issue in the absence of a hearing on the merits, because it is possible that further evidence might have been adduced at trial. 32Nor did I base my judgment upon the absence of a clear and unequivocal promise. In Legione v Hateley [1983] HCA 11; (1982-1983) 152 CLR 406 at 436-437 Mason and Deane JJ cited with approval what Lord Denning MR had said in Woodhouse AC Israel Cocoa Ltd SA v Nigerian Produce Marketing Co Ltd [1971] 2 QB 23 at 60: "If the representation is put forward as a variation, and is fairly capable of one or other of two meanings, the judge will decide between those two meanings and say which is right. But, if it is forward as an estoppel, the judge will not decide between the two meanings. He will reject it as an estoppel because it is not precise and unambiguous. There is good sense in this difference. When a contract is varied by correspondence, it is an agreed variation. It is the duty of the court to give effect to the agreement if it possibly can: and it does so by resolving ambiguities, no matter how difficult it may be. But, when a man is estopped, he has not agreed to anything. Quite the reverse. He is stopped from telling the truth. He should not be stopped on an ambiguity. To work an estoppel, the representation must be clear and unequivocal." 33Whatever the terms of the promise upon which Ms Van Dyke alleges she acted to her detriment, the complaint is premature. It was only to be performed when the subdivision of the Oaks Property was completed. That event has not occurred. 34In The Public Trustee v Kukula (1990) 14 Fam LR 97 the plaintiff formed a relationship with the deceased. He promised to marry her when free to do so and afterwards to pool their assets as joint tenants. He died before remarriage. As Handley JA pointed out at 100 there was no scope for the enforcement of any promissory estoppel. The promises the deceased made that in any sense were capable of affecting his legal relationships, were to marry the plaintiff and afterwards to pool their assets as joint tenants. There was no independent promise to pool assets and because the parties never married the time for performance of that promise never arrive. 35Kukula was cited with approval in R P Meagher, W M C Gummow and J R F Lehane, Equity: Doctrines & Remedies , 4 th ed (2002), Butterworths, LexisNexis, 551 [17-050]. 36The position in this case is the same as that in Kukula . The occasion for the performance of the promise has not occurred. 37And, whatever the precise terms of the promises alleged in the statement of claim, there could be no reasonable reliance upon them to the detriment of Ms Van Dyke prior to the subdivision of a portion of Burra Station as the Oaks Property. 38In addition, the order that Mr Sidhu take all necessary steps to procure the transfer of the title to the Oaks Property to Ms Van Dyke should not be made. Burra Station is owned by Mr Sidhu and his wife. His wife is not a party to the proceedings. No order can be made that she transfer her interest in the Oaks Property. Since her interests in Burra Station are involved, the court should not make an order that Mr Sidhu procure the transfer of title to the Oaks Property without his wife having the opportunity to protect her interest in it. 39These are the reasons why I summarily terminated Ms Van Dyke's proceedings. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 March 2011