Dr Katy Barnett
Senior Lecturer
University of Melbourne
Parkville 3010 VIC
AUSTRALIA

+ 61 3 9035 4699+ 61 3 9035 4699

k.barnett@unimelb.edu.au

Dear Colleagues;

A couple of days late, but I thought list members may be interested to hear about the latest private law decision from the High Court of Australia in Sidhu v Van Dyke [2014] HCA 19 (16 May 2014) http://www.austlii.edu.au/au/cases/cth/HCA/2014/19.html . A claim for relief in equitable estoppel was upheld based on assurances that had been given over some years that the respondent would be given an interest in a property on which she lived owned by the appellant and his wife. There is a good summary of the decision on the excellent Melbourne Law School blog at http://blogs.unimelb.edu.au/opinionsonhigh/2014/05/16/sidhu-case-page/ . The two main issues on which comment was made on the appeal are (1) whether there can be said to be a “presumption of reliance” in cases like this where there has been a promise- held, no, over-ruling the approach of the NSWCA here following some older dicta of Denning LJ, and (2) whether detrimental reliance can be established where relying on the promise may have been only one of a number of factors influencing the conduct of the promisee. On the second question the court held that it is not necessary that reliance on the promise be the only reason for the action: it is sufficient if the promise was a “significant factor” in decision making (at [73] per the majority) or, after a more detailed discussion, it "made a difference to her taking the course of action or inaction” (at [91] per Gageler J.) In other words, the issue of causation once again rears its head, and really the test that is adopted seems to my eyes at least to be very little different to the classic “but for” test used in tort- see eg Gageler J at [95]: "were it not for her belief in the appellant's representations, the respondent would not have remained on the property and done what she had done.” (my emphasis)

Neil