Harbour Port Consulting v NSW Maritime [2011] NSWSC 813

Supreme Court New South Wales

Medium Neutral Citation: Harbour Port Consulting v NSW Maritime [2011] NSWSC 813 Hearing dates: 06/07/2011, 07/07/2011 Decision date: 05 August 2011 Jurisdiction: Equity Division Before: McDougall J Decision: Interlocutory injunction dissolved. Summons dismissed with costs. Catchwords: ESTOPPEL - proprietary estoppel - arising by representation or acquiescence - oral representations - whether any representations made - whether plaintiff acted to detriment. Legislation Cited: Australian Consumer Law 2010 Fair Trading Act 1987 (NSW) Trade Practices Act 1974 (Cth) Cases Cited: Attorney General of Hong Kong v Humphreys Estate (Queen's Gardens) Ltd [1987] AC 114 Delaforce v Simpson-Cook [2010] NSWCA 84 Evans v Evans [2011] NSWCA 92 Giumelli v Giumelli (1999) 196 CLR 101 Nguyen v Cosmopolitan Homes [2008] NSWCA 246 Ramsden v Dyson (1866) LR 1 HL 129 Sullivan v Sullivan [2006] NSWCA 312 Watson v Foxman (1995) 49 NSWLR 315 Category: Principal judgment Parties: Harbour Port Consulting Pty Ltd (Plaintiff) NSW Maritime (Defendant) Representation: Counsel: M W Sneddon / C E Alexander (Plaintiff) J A C Potts (Defendant) Solicitors: Moray & Agnew (Plaintiff) Clayton Utz (Defendant) File Number(s): 2011/166255

Judgment 1The plaintiff (Consulting) claims a proprietary interest in land at Woolooware Bay (which it is convenient to call "lot 7") owned by the defendant (Maritime). The proprietary interest is said to arise by estoppel. Consulting claims that Maritime encouraged it to believe that it would have a leasehold interest in the land; that it acted to its detriment in reliance on that encouragement; and that Maritime was aware that it so acted. The result, Consulting says, is that it is entitled to a lease of lot 7 expiring on 31 December 2016. 2The sole director of Consulting is Mr Craig Turner. He appears to control its business activities. However, all the issued shares in Consulting are owned by Mr Turner's wife. 3Consulting started to carry on business on the land in about October 2008. Before then, an equivalent business had been carried on by a company known as Harbour Port Constructions Pty Limited (Constructions). Again, Mr Turner was the sole director of, and appeared to control the business of Constructions; but his wife was the sole shareholder. Constructions went into liquidation pursuant to a creditors' voluntary winding up. It has been deregistered. Consulting seems in effect to have taken over, or appropriated, the business of Constructions without any formal agreement. There is some controversy as to whether Consulting made any payment for the business. The evidence does not satisfy me that it did. 4The case of encouragement, as "pleaded" in the commercial list statement, relies on representations said to have been made by officers of Maritime to Mr Turner on four occasions: (1) 12 December 2007; (2) 8 or 31 January 2008; (3) 15 September 2009; and (4) 12 November 2009. 5This aspect of Consulting's case was somewhat amplified in the evidence and submissions. In addition to the representations that I have identified, Consulting sought to rely on representations made on: (1) 16 August 2006; and (2) 10 March 2009. 6Any representations found to have been made by officers of Maritime to Mr Turner prior to October 2008 must be taken to have been made to him in his capacity as the sole director of Constructions. Consulting contends that representations made to Mr Turner after that month were made to him in his capacity as the sole director of Consulting. That may be so as a matter of fact; but there is a live question as to when officers of Maritime became aware that ownership and conduct of the business had passed from Constructions to Consulting.