Waddell v Waddell [2012] NSWCA 214

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Waddell v Waddell [2012] NSWCA 214 Hearing dates: 27 June 2012 Decision date: 19 July 2012 Before: Allsop P at [1] Campbell JA at [2] Sackville AJA at [72] Decision: 1. Appeal dismissed. 2. The Appellant to pay the costs of the Respondent and in that regard to have an indemnity out of the estate of the deceased. 3. The Appellant's costs on the indemnity basis be paid out of the estate of the deceased. 4. The Respondent's share of residue should not bear any part of the estate's liability in respect of the Respondent's costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: ESTOPPEL - equitable estoppel - creation or encouragement of assumption - respondent left school at age of 15 to work in father's orchard business - business conducted partly on land owned by respondent's grandfather - representation made by grandfather that his land would pass to respondent, but would first pass to the respondent's father so property could be worked as a whole - respondent continued to work in business after grandfather's death - representation that will had been made leaving land to respondent, or that respondent would inherit the land confirmed by father over a course of years to numerous persons in family and community who interacted regularly with respondent - respondent continued to work on farm - evidence given that this deliberate choice of a hard career was at least in part motivated by his assumption of the specific devise - the father's will was at a much later date changed so as to no longer specifically devise portion of property to respondent - action in estoppel brought against estate after death of father to enforce reliance on representations made during lifetime - representations and reliance established and estate estopped - appeal against decision below dismissed