Hardie v Milling [2013] NSWSC 310

Supreme Court New South Wales

Medium Neutral Citation: Hardie v Milling [2013] NSWSC 310 Hearing dates: 25, 26, 27, 28/02/2013 Decision date: 10 April 2013 Jurisdiction: Equity Division Before: Lindsay J Decision: Relief to be granted. Submissions on the form of relief invited. Catchwords: PROCEDURE - judgments and orders - amending, varying and setting aside - setting aside by consent. ESTOPPEL - estoppel in pais - equitable estoppel - proprietary estoppel - defendant invited his daughter and son-in-law, the plaintiffs, to move to and remain at his land - plaintiffs made improvements to that land with the defendant's acquiescence - defendant decided to disinherit his daughter - whethether an estoppel has arisen. Legislation Cited: Uniform Civil Procedure Rules 2005 NSW rule 36.15(2) Succession Act 2006 NSW Part 3 Cases Cited: Delaforce v Simpson-Cook (2010) 78 NSWLR 483 Permanent Trustee Co (Canberra) Limited (Executor, Estate of Andrews) v Stocks & Holdings (Canberra) Pty Limited (1976) 15 ACTR 45 Giumelli v Giumelli (1999) 196 CLR 101 Texts Cited: - Category: Principal judgment Parties: D Hardie, T Hardie (Plaintiffs) KJ Milling (Defendant) Representation: BW Rayment QC with M Bradford (Plaintiffs) GM McGrath (Defendant) Booth Brown Samuels & Olney Solicitors (Plaintiffs) Hannaford Cox Connellan & McFarland Solicitors (Defendant) File Number(s): 2010/00420515

Judgment

INTRODUCTION 1The plaintiffs (members of the Milling Family, the first plaintiff by marriage, the second by birth) rely upon an allegation of proprietary estoppel (governed by principles conveniently enunciated in Delaforce v Simpson-Cook (2010) 78 NSWLR 483)) to establish an entitlement, in equity, to the whole of the farming property known as "Weeraman" near Leadville in the State of New South Wales (comprising Lots 20, 110 and 118 in Deposited Plan 750766) or, at least, that part of Weeraman (comprising the whole, or in the alternative a part, of Lots 110 and 118) upon which they and their three children presently live. 2As enunciated in Delaforce v Simpson-Cook at 78 NSWLR 488 [21], an "estoppel by encouragement", such as grounds the plaintiffs' claim to relief in these proceedings, "comes into existence when an owner of property has encouraged another to alter his or her position in the expectation of obtaining a proprietary interest and that other, in reliance on the expectation created or encouraged by the property owner, has changed his or her position to their detriment. If these matters are established equity may compel the owner to give effect to that expectation in whole or in part." 3As noted at 78 NSWLR 491 [41]-[42], the detriment that makes an estoppel enforceable is that which the party asserting the estoppel would suffer, as a result of his or her original change of position, if the expectation which he or she was encouraged to have about his or her entitlements, and which induced the change of position, were to be repudiated by the party estopped.