Dear Andrew I agree that there is nothing in the judgment automatically and always produces a remedy that is based only promise fulfillment. It can be also be remedy based on reversing the detriment or something else entirely, although the prima facie starting point would seem to be promise fulfillment but it can then change. The next point that will be made is that this approach is too uncertain. This uncertainty argument then returns us to the old debate about discretionary remedialism. What is old is new again! Regards David ________________________________________ From: Andrew Robertson [a.robertson@unimelb.edu.au] Sent: Thursday, 22 May 2014 8:46 AM To: Jason Neyers; obligations@uwo.ca Subject: Re: HCA on equitable estoppel and reliance Dear Jason, I don't find the statement troubling at all. Views differ as to whether it is really 'necessary' to grant relief which reflects the value of the promise in cases such as Sidhu where the detriment suffered 'involves life-changing decisions with irreversible consequences of a profoundly personal nature' (Sidhu at [84], quoting Nettle JA in Donis v Donis). I recall a debate on that very question in the property section at the SLS conference in Durham in 2007, and of course the issue has also been discussed in print. But that doesn't mean that detrimental reliance makes a promise binding in the same way as the doctrine of consideration. Where the harm resulting from reliance is quantifiable and disproportionate to the value of the promise, then compensation for the reliance loss will be granted, as it was eg in ACN 074 971 109 Pty Ltd (as Trustee for the Argot Unit Trust) v The National Mutual Life Association of Australasia Ltd (2008) 21 VR 351; [2008] VSCA 247 (compensation for reliance loss of $37m awarded where the value of the promise was $1.4b). I agree that the language of conscience obscures rather than illuminates in this area, as it does in the realm of unjust enrichment, but I don't agree that it caused the court to lose its bearings in this case. With best wishes, Andrew On 21/05/14 9:26 PM, "Jason Neyers" <jneyers@uwo.ca> wrote: >Dear Colleagues: > >For a court that created and still nominally believes in the detrimental >reliance view of equitable estoppel, it is troubling to find a statement >such as this: "While it is true to say that "the court, as a court of >conscience, goes no further than is > necessary to prevent unconscionable conduct"[95] ><http://www.austlii.edu.au/au/cases/cth/HCA/2014/19.html#fn95>, where the >unconscionable conduct consists of resiling from a promise or assurance >which > has induced conduct to the other party's detriment, the relief which is >necessary in this sense is usually that which reflects the value of the >promise." TThis is not really in the spirit of Dixon J. > >I guess in Australia, there are now two ways to make a promise binding >qua promise: consideration and detrimental reliance--which seems to be >the opposite of what the High court stated when it created the doctrine >in cases like Verwayen (ie it is never > a substitute for consideration since its function is to protect against >DR not enforce promises). In this instance, I have to agree with the UK >criticism of the High Court that talk of conscience and unconscionable >conduct (an unconscionability fetish) is > causing them to lose their bearings. > >Sincerely, > >On 05/21/14, Katy Eloise Barnett <k.barnett@unimelb.edu.au> wrote: >Thanks so much, Neil. > >List members may be interested to know that I have just written a post on >the case on the MLS blog which includes my analysis of the case: > >http://blogs.unimelb.edu.au/opinionsonhigh/2014/05/21/barnett-sidhu/ > >Please do comment on the blog if you have anything to say on this or any >other private law post (we've had a few in the last week or two). We'd >love your input. > >Kind regards, > >Katy > >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 > > > > > >________________________________________ >From: Neil Foster [neil.foster@newcastle.edu.au] >Sent: Monday, May 19, 2014 11:37 AM >To: obligations@uwo.ca >Subject: [Spam?] ODG: HCA on equitable estoppel and reliance > > >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) >Regards >Neil > > > > >NEIL FOSTER >Associate Professor >Newcastle Law School >Faculty of Business and Law >MC177 McMullin Building > >T: +61 2 49217430+61 > 2 49217430 >E: neil.foster@newcastle.edu.au ><mailto:Firstname.Lastname@newcastle.edu.au> > > >Further details: http://www.newcastle.edu.au/profile/neil-foster >My publications: http://works.bepress.com/neil_foster/ , >http://ssrn.com/author=504828 > > >The University of Newcastle (UoN) >University Drive >Callaghan NSW 2308 >Australia > >CRICOS Provider 00109J > > > <http://www.newcastle.edu.au/> > > > > > > > >Call >Send SMS >Add to Skype >You'll need Skype CreditFree via Skype > > > > > > >-- >-- >Jason Neyers >Professor of Law >Faculty of Law >Western University >N6A 3K7 >(519) 661-2111 x. 88435 > >