From: Jason Neyers <jneyers@uwo.ca>
To: Andrew Robertson <a.robertson@unimelb.edu.au>
obligations@uwo.ca
Date: 23/05/2014 12:06:10 UTC
Subject: Re: HCA on equitable estoppel and reliance
Dear Andrew:
 
Having looked at the facts more closely, I can see why you are not troubled. There is likely a substantial detriment in the forgone work and the failure to get some sort of divorce settlement and the cottage doesn't sound that expensive. I do still find it odd that the court requires the plaintiff to positively prove reliance but will largely dispense with proof of detriment. How hard could it have been to say what a divorce settlement would have rendered and the amount of the salary foregone? This seems a long way away from some of the other cases where children are induced to give up University  and careers to stay on the family farm.
 
In any event, each time a new decision gets rendered by the High Court, it tends to get just a tiny bit farther away from the DR-core that is heart of estoppel (and require just a little more explaining). In the grand game of telephone* that is the law, Sidhu might just be the case that gives impetus to future cases awarding equitable specific performance almost as a matter of course, especially if future judges focus on the language in the Measure of Relief section and unconscionability. This need not happen by choice either. If those future judges are not expert in the area (as is Andrew) it would be an easy mistake to make, since surely it is unconscionable not to keep one's promise.
 
This has happened in Canada where the courts have unintentionally moved from allowing recovery for interference with the private law right of access and allowing recovery under public nuisance for injurious affection for depreciation of property values (circa 1900) to the proposition that depreciation of property values is a private nuisance (circa 2012). Each step wasn't so bad (as in the game of telephone), but the end result makes no sense.
 
*Telephone (or Whispers) is a game played around the world, in which one person whispers a message to another, which is passed through a line of people until the last player announces the message to the entire group. Errors typically accumulate in the retellings, so the statement announced by the last player differs significantly, and often amusingly, from the one uttered by the first.
 
All the best,
 
 
 
 
 
 
 
On 05/21/14, Andrew Robertson <a.robertson@unimelb.edu.au> wrote:
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
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--
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Jason Neyers
Professor of Law
Faculty of Law
Western University
N6A 3K7
(519) 661-2111 x. 88435