Priestley v Priestley [2016] NSWSC 1096

Supreme Court New South Wales

Medium Neutral Citation: Priestley v Priestley [2016] NSWSC 1096 Hearing dates: 17-20 August 2015 Decision date: 15 August 2016 Jurisdiction: Equity Before: White J Decision: 1. Judgment for the plaintiff against the defendant for $293,071.98 plus interest pursuant to s 100 of the Civil Procedure Act 2005 (NSW) calculated from 26 April 2010.

2. Order that the plaintiff's claims for relief be otherwise dismissed. Catchwords: CONTRACT — Deceased made a will leaving entire estate to the plaintiff — Plaintiff provided services and made payments for the deceased in the belief that he would inherit the deceased's estate — Deceased changed his will without informing the plaintiff — Whether testamentary contract entered into between the plaintiff and deceased — Deceased did not promise to make a will in the plaintiffs favour and not revoke it — Parties did not intend to enter into a contract — No testamentary contract found;

ESTOPPEL – Proprietary estoppel — Whether executrix of deceased's estate estopped from denying that the plaintiff is to inherit the deceased's estate — Deceased knew plaintiff expected to inherit his estate — Deceased feared plaintiff would cease offering assistance if informed of changes to the will — Plaintiff knew deceased could change his will — Whether plaintiff would have continued to assist the deceased had he known of changes to the will — Not unconscionable for deceased to depart from state of affairs that plaintiff assumed would obtain — Proprietary estoppel not established;

RESTITUTION - Whether deceased's estate unjustly enriched by plaintiff's actions — Plaintiff laboured and made payments for expenses incurred by the deceased under a present mistake of fact — Plaintiff entitled to reasonable remuneration Cases Cited: Air Great Lakes Pty Ltd v KS Easter (Holdings) Pty Ltd (1985) 2 NSWLR 309 Amalgamated Investment & Property Co Ltd (in liq) v Texas Commerce International Bank Limited [1982] QB 84 Austotel Pty Ltd v Franklins Self-Serve Pty Ltd (1989) 16 NSWLR 582 Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 Barnes v Alderton [2008] NSWSC 107; (2008) 13 BPR 25,281 Brambles Holdings Limited v Bathurst City Council [2001] NSWCA 61; (2001) 53 NSWLR 153 Cadorange Pty Ltd (in liq) v Tanga Holdings Pty Ltd (1990) 20 NSWLR 26 Carmichael v National Power plc [1999] 1 WLR 2042 Commonwealth v Verwayen (1990) 170 CLR 394 Construction Technologies Australia Pty Ltd v Doueihi [2014] NSWSC 1717; (2015) 17 BPR 33,457 Dann v Spurrier (1802) 7 Ves 231 David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353 Delaforce v Simpson-Cook [2010] NSWCA 84; (2010) 78 NSWLR 483 Dextra Bank & Trust Co v Bank of Jamaica [2002] 1 All ER (Comm) 193 Doueihi v Construction Technologies Australia Pty Ltd [2016] NSWCA 105 Edgington v Fitzmaurice (1885) 29 Ch D 459 Gillett v Holt [2001] Ch 210 Giumelli v Giumelli [1999] HCA 10; (1996) 196 CLR 101 Henville v Walker [2001] HCA 52; (2001) 206 CLR 459 Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 11,110 Lahoud v Lahoud [2010] NSWSC 1297 Milling v Hardy [2014] NSWCA 163 Newbon v City Mutual Life Assurance Society Ltd (1935) 52 CLR 723 Pavlovic v Universal Music Australia Pty Ltd [2015] NSWCA 313 Pitt v Holt [2013] 2 AC 108 Porter v Latec Finance (Qld) Pty Ltd (1964) 111 CLR 177 Ramsden v Dyson (1866) LR 1 HL 129 Salib v Gakas [2010] NSWSC 505 Sidhu v van Dyke [2014] HCA 19; (2014) 251 CLR 505 Dillwyn v Llewellyn (1862) 4 De GF & J 517; 45 ER 1285 Steria Limited v Hutchison [2007] ICR 445 Taylor v Dickens [1998] 1 FLR 806 Thorner v Major [2009] UKHL 18; [2009] 1 WLR 776 Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7; (1988) 164 CLR 387 Willmott v Barber (1880) 15 Ch D 96 Texts Cited: Birks, An Introduction to the Law of Restitution (1985 ed) Bullen and Leake, Precedents of Pleadings, 3 ed Gough and Jones, The Law of Unjust Enrichment, 8 ed Handley, Estoppel by Conduct and Election (2006) P 170 Mason and Carter, Restitution Law in Australia, 3 ed Category: Principal judgment Parties: Duncan James Priestley (Plaintiff) Beverley Joy Priestley as executor of the estate of the late Gordon Wedlock Priestley (Defendant) Representation: Counsel: T Alexis with M Cairns (Plaintiff) M B Evans (Defendant)