Milling v Hardie [2014] NSWCA 163

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Milling v Hardie [2014] NSWCA 163 Hearing dates: 7 April 2014 Decision date: 26 May 2014 Before: Beazley P at [1]; Macfarlan JA at [2]; Sackville AJA at [79] Decision: (1) Extend to 28 June 2013 the time for Mr Milling to file his Notice of Appeal. (2) Appeal allowed in part. (3) Vary the orders contained in subparagraph (a) of paragraph 2 of the orders made by Lindsay J on 29 May 2013 by deleting the word "non-exclusive". (4) Set aside subparagraphs (b) and (c) of paragraph 2 of those orders. (5) Set aside paragraphs 9 and 10 of those orders. (6) Grant Mrs Hardie a certificate under the Suitors' Fund Act 1951 (NSW), if qualified. (7) Direct that the parties file and serve submissions, concerning the costs orders to be made in respect of the proceedings at first instance and on appeal, in accordance with the following timetable: (i) Mr Milling within seven days of the date of this judgment. (ii) Mr and Mrs Hardie within a further seven days. (iii) Any reply within a further seven days. [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: EQUITY - proprietary estoppel - defendant invited daughter and son-in-law to live in a homestead on one of his properties - they undertook improvements to property with defendant's consent - whether estoppel by encouragement arose - whether defendant's conduct justified expectation that the plaintiffs would inherit property or receive transfer during defendant's lifetime - whether plaintiffs have obtained the full benefit of their improvements such that they have effectively been amortised - held that defendant's conduct gave rise to a reasonable expectation that plaintiffs entitled to occupy relevant parts of property during defendant's lifetime Cases Cited: Delaforce v Simpson-Cook [2010] NSWCA 84; 78 NSWLR 483 Dillwyn v Llewelyn (1862) 4 De GF & J 517; 45 ER 1285 Donis v Donis [2007] VSCA 89; 19 VR 577 Duic v Duic [2013] NSWCA 42 Flinn v Flinn [1999] VSCA 109; 3 VR 712 Giumelli v Giumelli [1999] HCA 10; 196 CLR 101 Gould v Vaggelas [1984] HCA 68; 157 CLR 215 Inwards v Baker [1965] 2 QB 29 Ramsden v Dyson (1866) LR 1 HL 129 Sidhu v Van Dyke [2014] HCA 19 Sledmore v Dalby [1996] EWCA Civ 1305; 72 P & CR 196 Sullivan v Sullivan [2006] NSWCA 312; 13 BPR 24,755 Svenson v Payne [1945] HCA 43; 71 CLR 531 Waddell v Waddell [2012] NSWCA 214; 292 ALR 788 Willmott v Barber (1880) 15 Ch D 96 Texts Cited: Meagher, Gummow and Lehane's Equity: Doctrines and Remedies, (4th ed 2002, Butterworths LexisNexis) Category: Principal judgment Parties: Kenneth Milling (Appellant) David Hardie (First Respondent) Tracey Hardie (Second Respondent) Representation: Counsel: G M McGrath (Appellant) B W Rayment QC/M A Bradford (Respondents) Solicitors: Hannaford Cox Connellan & McFarland (Appellant) Booth Brown Samuels & Olney (Respondents) File Number(s): CA 2013/140710 Decision under appeal Jurisdiction: 9111 Citation: Hardie v Milling [2013] NSWSC 310 Date of Decision: 2013-04-10 00:00:00 Before: Lindsay J File Number(s): SC 2010/00420515