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Simmons v Special Projects (Qld) Pty Ltd

 

[2011] QSC 423

 

SUPREME COURT OF QUEENSLAND

PARTIES:

FILE NO:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

DELIVERED ON:

20 December 2011

DELIVERED AT:

Brisbane 

HEARING DATE:

8 December 2011

JUDGE:

Ann Lyons J

ORDER:

 

CATCHWORDS:

Conveyancing – The contract and conditions of sale – Sale of proposed lot – Where land is not clearly identified.

Estoppel – Estoppel by conduct – Matters against which estoppel may not prevail – Statutes and statutory duty – Where there are clear provisions in statute. 

Acquisition of Land Act 1967, s 12

Land Sales Act 1984, s 2, s 5, s 6, s 8, s 9

Land Title Act 1994, s 48A, s 48B, s 48C, s 48D

Birstar Pty Ltd v The Proprietors “Ocean Breeze” Building Units Plan No 4745 [1995] 1 Qd R 117

Considine v City Corp Australia Ltd [1981] 1 NSWLR 657

Francis v NPD Property Development Pty Ltd [2005] 1 Qd R 240

The Commonwealth of Australia v Verwayen (1990) 170 CLR 394

Three P/L v Body Corporate for Savoir Faire Community Title Scheme 38 [2008] QCA 167

Walton Stores (Interstate) Ltd v Maher (1988) 164 CLR 387

COUNSEL:

C J Carrigan for the applicant

M J Campbell for the respondent

SOLICITORS:

Short Punch & Greatorix for the applicant

Philip Shakespeare for the respondent

[1] The respondent has been the registered proprietor of Lots 170 and 171 on RP 21845 since 7 May 2003. The land is on Surfers Paradise Boulevard at Surfers Paradise.  This application relates to the termination of Agreements in relation to that land by the applicant on 30 September 2011.

The Notice of Intention to resume

[2] On 23 July 2010 the Department of Transport and Main Roads (“Main Roads”) gave to the respondent a Notice of Intention to Resume part of his land, namely Lots 170 and 171 as shown on a Plan of Resumption R1-1682, for the purpose of road relocation.

[3] On 4 August 2010 Crown Law registered an Administrative Advice on Lots 170 and 171 advising of the Notice of Intention to Resume.

The Gazettal

[4] On Friday, 18 February 2011 by publication in the Queensland Government Gazette, Main Roads resumed an area of approximately 29.5m2 from Lot 171 and approximately 30.5m2 from Lot 170.  The respondent remained the owner of the balance of the land which comprised approximately 452.6m2 in relation to Lot 170 and approximately 451.2 m2 in relation to Lot 171.

[5] In relation to the resumed land s 12 of the Acquisition of Land Act 1967 (ALA) had effect from the date of the gazettal notice. The effect of that section was that on gazettal the resumed land vested in the Crown or constructing authority and the estate or interest in the respondent in the resumed land was converted into a right to claim compensation under the ALA. 

The Agreement dated 18 March 2011.

[6] On 18 March 2011, that is a month after the publication of the gazettal of the resumption, the respondent entered into a Put and Call Option Deed with the applicant in respect of Lots 170 and 171 which had been subject to the gazettal. The recital to the Put and Call Option provided:

 

“the Seller at the request of the Buyer has agreed to grant an option to the Buyer to purchase the lot and the Buyer is to grant to the Seller a put option in respect of the lot on the terms and conditions set out in the Deed.”

[7] Pursuant to clause 31 the call option is to be exercised by 8 February 2012.

[8] To secure the applicant’s performance the security deposit was payable as follows:

 

(i) $4,999 and the option fee on formation of the Deed; and

(ii) $95,000 within 4 business days by either satisfying or waiving due diligence; and

(iii) $75,000 on or before 30 September 2011. 

[9] The initial security monies of were paid.

[10] Prior to the further sum of $95,000 being paid the parties entered into a Deed of Variation on 1 April 2011 which extended the time for payment of that sum and the applicant waived the due diligence clause in clause 12.

[11] On or about 30 September 2011, the respondent requested that the applicant pay the further sum of $75,000. That amount has not been paid.

[12] It would seem clear, therefore, that at the time the Deed was entered into, because of the operation of s 12 of the ALA, an area of 29.5 m2 was actually vested in the Crown in relation to Lot 171 and in relation to Lot 170 an area of 30.5m2 was actually vested in the Crown. The balance was vested in the respondent and the respondent also had a right to claim compensation over those two areas of resumed land.

[13] This division of ownership was indeed recognised in the terms of the Put and Call Option Deed and the term “property” has the same meaning as contained in the contract attached to the Put and Call Option Deed.

[14] Clause 2 of that Deed provided:

 

“2.1In consideration of the payment of the option fee by the buyer to the seller the seller hereby offers to sell to the buyer the property upon the terms and conditions set out in the contract.”

[15] The contract describes the land sold as Lots 170 and 171 on Registered Plan 21845 however Special Condition 6 of the contract then provided:

 

“6.1The Buyer acknowledges that part of the Land is subject to be taken, pursuant to the Acquisition of Land Act, by the Department of Transport and Main Roads. The area of the land to be taken is shown in the attached diagram marked ‘Resumed Land’.

 

6.2Provided the area and location of Land to be resumed is the same or less than the area shown on the diagram marked “Resumed Land”, the buyer will raise no objection and is not entitled to terminate this Contract. If the Land is otherwise affected, the buyer’s rights are not affected by this choice.”

[16] That attached plan which was marked ‘Resumed Land’ contained a diagrammatical layout of both Lots 170 and 171 which indicated the resumed land by ‘shading’ the area resumed. It is clear that the resumed land plan that was attached to the Notice of Resumption as well as the resumed land plan attached to the contract showed approximate areas to be resumed only and in particular the plan attached clearly shows that the area to be acquired in relation to Lot 170 is ‘abt 30.5m2’ and in relation to 171 is ‘abt 29.5m2’ and that the areas to be retained were ‘abt 452.6m2’ and ‘abt 451.2m2’.

[17] It was also clear that the respondent was not selling the whole of Lot 170 and the whole of Lot 171 not only because of the content of clause 6.2 but also because of Clause 6.3 of the Special Conditions. Clause 6.2 provided that the applicant would raise no objection to the resumption provided the area and location of the land was the same or less than that shown on the attached diagram and the applicant’s rights are otherwise not restricted. Clause 6.3 then provided that the respondent assigned its rights to compensation to the applicant and would do all things necessary to ensure the applicant receives any compensation payable in respect of the resumption of the land.

[18] It is not disputed that on 18 March 2011 when this Put and Call Option Deed was entered into and also on 1 April 2011 when the Deed of Variation was entered into that there were no plans of survey then in existence which showed the actual boundaries of the newly proposed lots.

[19] The first plan of survey is dated 21 April 2011.

The plan of survey

[20] On 26 July 2011 Crown Law provided to the respondent for the first time a plan of survey dated 21 April 2011 which showed the reconfigured Lots 170 and 171 after the resumption. That letter indicates that the old Title Reference 50439248 was changed to Survey Plan 243229 and that it consisted of Lots 17, 18 19, and 20. Lots 17 and 19 were the areas resumed and Lots 18 and 20 were the balance of the land retained by the respondent.

[21] Accordingly, the respondent was from that point in time the registered proprietor of Lots 18 and 20 on Survey Plan 243229 and the Crown was the registered proprietor of Lots 17 and 19 on Survey Plan 243229.

[22] On 4 August 2011 Crown Law wrote to the respondent advising that the new title reference SP243229 had been registered and that that title reference cancelled Lots 170 and 171 on Registered Plan 21845.

[23] The applicant submits that Survey Plan 243229 provides for the first time the boundaries of the single parcel of land retained by the respondent after resumption and that this plan of survey which was registered pursuant to the Land Title Act 1994, (“LTA”) was not registered until some time after 21 April 2011. It is submitted that this date is significant as it was after the entry into the Agreements.

[24] An examination of the survey plan in fact shows that the area acquired in Lot 17 pursuant to the resumption was 29m2 rather than the estimated 29.5m2 and that the area acquired in Lot 19 pursuant to the resumption was 30m2 rather than the estimated 30.5m2.      

This application

[25] Accordingly, on 18 March 2011 when the option deed was entered into and on 1 April 2011 when the Deed of Variation was entered into, the applicant argues that the balance of the land to be sold was “a proposed allotment” within the meaning of s 8 and s 9 of the Land Sales Act 1984 (Qld) (the “LSA”).

[26] The applicant further submits that the requirements of the LSA have not been complied with, particularly in relation to s 8 and accordingly the Put and Call Option Deed of 18 March 2011 and/or the Deed of Variation of 1 April 2011 were in contravention of s 8 and, accordingly, by operation of s 8(2) of the LSA those agreements are void.

[27] Furthermore, it is submitted that by operation of s 8(2) money paid under the Put and Call Option Deed and the Deed of Variation is to be recovered together with interest.

[28] It is also argued that there is no evidence that before the applicant entered into the purchase of the proposed lot the respondent gave a disclosure plan or disclosure statement for the proposed allotment or a copy of a plan of survey for the proposed allotments approved by the local government under the Planning Act.

[29] Accordingly, it is argued that there has been a contravention of s 9 and that the applicant was entitled pursuant to s 9(5) to avoid the two agreements by written notice.

[30] On 30 September 2011 the applicant’s solicitors gave notice to the respondent’s solicitors terminating both those agreements pursuant to s 9(5) of the LSA.

Relevant legislation

[31] There are a number of provisions of the LSA which need to be considered;

 

5 Application of Act

(1)This Act applies to a sale or purchase of a proposed allotment, or a proposed lot, wherever the agreement under which the sale or purchase was entered upon was made, if—

 

(a) when the proposed allotment becomes an allotment, it will be situated in Queensland; or

(b) when the proposed lot becomes a registered lot, it will be situated in Queensland.

 

(2) A reference in any provision of this Act to a sale or purchase of a proposed allotment or a proposed lot shall be construed as a reference to a sale or purchase entered upon by a vendor or purchaser under an agreement made after the commencement of the provision in which the reference occurs.

 

6 Definitions

In this Act—

proposed allotment means a single parcel of land, other than a lot within the meaning of this Act, the boundaries of which are shown, or to be shown, on a plan of survey that is to be registered under the Land Act 1994 or Land Title Act 1994.

 

8 Restriction on selling

(1) A person may sell a proposed allotment of freehold land only if, when the purchaser enters upon the purchase of the allotment—

 

(a)if there is no operational work for the proposed allotment—there is an effective development permit or compliance permit for reconfiguring a lot for the allotment; or

(b) if paragraph (a) does not apply—there is an effective development permit or compliance permit for the operational work associated with reconfiguring a lot for the allotment.

 

Maximum penalty—200 penalty units or 1 year’s imprisonment.

 

(1A) A person may sell a proposed allotment of State leasehold land only if, when the purchaser enters upon the purchase of the allotment, the lessee has the Minister’s approval, under the Land Act 1994, (See the Land Act 1994, section 351 (Minister’s approval required for subdivision) to subdivide the land.

 

Maximum penalty—200 penalty units or 1 year’s imprisonment.

 

(2)An agreement made in contravention of this section is void and any person who had paid money thereunder shall be entitled to recover the amount thereof, together with the amount of interest (if any) that has accrued in respect of that amount since the money was so paid, by action as for a debt due and owing to the person by the person to whom the money was paid.

 

9 Identification of land

(1)Before a purchaser enters upon a purchase of a proposed allotment, the vendor must give the purchaser—

 

(a)a disclosure plan and disclosure statement for the proposed allotment; or

(b) a copy of the plan of survey for the proposed allotment approved by the local government under the Planning Act.

 

Maximum penalty—100 penalty units or 6 months imprisonment.

(5)   If the vendor or the vendor’s agent contravenes this section, other than subsection (3)(a), (b) or (h), the purchaser may avoid the instrument relating to the sale by written notice given to the vendor or vendor’s agent before the vendor gives the purchaser the registrable instrument of transfer for the allotment.

[32] The LTA defines “Plan of Survey” in the Dictionary as follows:-

 

plan of survey includes a plan that the registrar requires the registered proprietor of a lot to lodge.

[33] The LTA describes the format of a plan of survey in the following sections:-

PART 4Registration of Land

 

Division 2AFormat of plans of survey

 

48AAvailable formats for plans

 

(1)A plan of survey may be in a standard, building or volumetric format.

(2)The format to be used in the plan depends on how the plan is to define the land to which it relates.

 

48BStandard format plan

A standard format plan of survey defines land using a horizontal plane and references to marks on the ground.

Example of marks— posts in the ground

 

48C Building format plan

 

(1) A building format plan of survey defines land using the structural elements of a building, including, for example, floors, walls and ceilings.

(2)For subsection (1)—

structural elements, of a building, includes projections of, and references to, structural elements of the building.

Example for subsection (2)

Projections might be used to define a lot that includes a balcony, courtyard, roof garden or other area not bounded, or completely bounded, by a floor, walls and a ceiling.

 

48D Volumetric format plan

A volumetric format plan of survey defines land using 3 dimensionally located points to identify the position, shape and dimensions of each bounding surface.”

[34] In relation then to what is relevant “plan of survey” in respect of this application it is clear that there is a plan of resumption referred to in the correspondence dated 23 July 2010 as well as an actual survey plan dated 21 April 2011which was attached to the letter from Crown Law dated 26 July 2011 and which would appear to have been registered on 2 August 2011.

[35] Having considered the resumption plan I consider that the only plan which meets the definition of “plan of survey” in this case is the later plan which cancelled Lots 170 and 171 on RP 21845 and on subsequent registration on 2 August 2011 established the new lots of 18 and 20. I am satisfied that resumption plan is not a plan of survey.

The questions to be determined

[36] The first issue to be determined is whether the LSA applies to the Put and Call Option Deed dated 18 March 2011 and/or the Deed of Variation dated 1 April 2011 which related to the sale of property at 2945 to 2947 Surfers Paradise Boulevard, Surfers Paradise.

[37] If the LSA did apply then the next question to be determined is whether those agreements were in fact terminated on or about 30 September 2011 pursuant to s 9(5) of the LSA and/or whether the agreements were void pursuant to s 8(2) of the LSA.

[38] The applicant also argues that if the LSA does not apply that the agreements are nevertheless void by reason of the respondent attempting to sell those lots when, at the material times, the respondent was not the owner of all of the subject matter of that sale.

[39] Section 19 of the LSA allows for exemptions from the operation of s 8 and s 9 of the Act. On 22 September 2011 the applicant’s solicitors requested a copy of any exemption pursuant to s 19 but no answer was received.

Is this a contract in relation to a proposed allotment?

[40] It is clear that s 2 of the LSA provides that the objects of the Act are to facilitate property development in Queensland, to protect the interests of consumers in relation to property development and to ensure that proposed allotments and proposed lots are clearly identified (my emphasis).

[41] Section 5 makes it clear that the LSA applies to the sale or purchase of a “proposed allotment”. The scheme of the Act was recently referred to by Fraser JA in Three P/L v Body Corporate for Savoir Faire Community Title Scheme 38:[1]

 

[32] When the Land Sales Act 1984 (Qld) commenced on 1 July 1985 it prohibited the sale and purchase of freehold land unless the plan of subdivision had been approved by the local authority ‘before the event that marks the entry of a person upon the purchase’. The only significant difference between the original definition of that expression (which was then in s 6(2)(a)) and the definition in the version of the Act relevant in this case is that the original definition included the following clause after the words "the purchaser":

 

", and the person who is entitled to enforce obligations under the instrument against him shall be taken to be the vendor of the land or lot in relation to that person and in this Act is referred to as 'his vendor'."

 

[33] The second reading speech quoted above is admissible support for the view that this expanded form of the provision was intended to treat offers to purchase as constituting "entry into a purchase" for the purposes of the Act.

 

[34] That definition remained in the Act, with inconsequential amendments, until the commencement of the Land Sales and Land Title Amendment Act 1997 (Qld). The purpose of that Act was to reduce the restrictions on the sale of allotments prior to the approval of the plan of subdivision and correspondingly to strengthen provisions aimed at ensuring that the land was accurately described to the purchaser. Many provisions (including s 8) were amended to give effect to that policy. Relevantly to the issue in this appeal, the definition in s 6(2)(a) was amended by the omission of the concluding part of the definition.” (my emphasis)

[42] The respondent argues however that in the present case the applicant was a sophisticated buyer and that the scheme as established by the LSA does not apply to consumers such as the applicant. Reliance in this regard is placed on Francis v NPD Property Development Pty Ltd[2] where McPherson JA noted that the expression ‘consumer’ was not defined in the Act but generally means “members of the general public who acquire the benefit of goods and services from suppliers. In relation to land, the word “consumer” plainly involves a metaphorical rather than a literal use of the word”. He continued:

 

“25.  In my opinion the Land Sales Act was not designed or needed to protect the interests of persons like the sellers in this case under contracts containing provisions of the nature of those contained in Special Condition 12; and that s 8(1) should not be so broadly construed as to provide such protection. Provisions similar to that Special Condition in the contract with Mr and Mrs Francis are also contained in the Special Condition of the contracts entered into with Ms Dippel, and in those with Mr Giles-Duffy and Giles-Duffy and Schmidt, as well as LG & SE Fisher, with the single difference in the latter three cases that two Seller’s Blocks are to be provided, but of smaller dimensions. There are no considerations of principle to distinguish these contracts from what has been said about the contract with Mr and Mrs Francis.”

[43] In my view both the applicant and the respondent are sophisticated commercial entities but I do not consider that means the requirements of the LSA are not intended to apply to them. The factual situation in Francis was clearly distinguishable as it related to contracts where there were obligations to retransfer which constituted equitable obligations to carry out the terms of express or constructive trusts.

[44] It would seem clear that from 7 May 2003 the respondent was the registered proprietor of clearly identified land described as Lots 170 and 171 on Registered Plan 21845. After the gazettal on 18 February 2011 two areas of land of approximately 29.5 m2 and 39.5m2 respectively were resumed from those lots. Clearly then, after that gazettal on 18 February 2011, the respondent was the registered proprietor of land which was no longer accurately reflected on RP21845. 

[45] However a month later the applicant as buyer entered into the Put and Call Option Deed with the respondent as seller in relation to those lots.  Did the resumption have the effect that the remaining land thereby became a ‘proposed allotment’ such that the restrictions of the LSA applied? In my view the answer is ‘yes’.

[46] It is clear that it was not until 26 July 2011 that a new survey plan issued in respect of former Lots 170 and 171. That plan identified that the former Lot 170 was now Lots 19 and 20 on Survey Plan 243229 and the former Lot 171 was now Lots 17 and 18 on SP243229.

[47] It is also clear that the survey plan shows the areas of Lots 18 and 20 as 462m2 and 454m2 respectively. The area of the resumed land Lots 17 and 19 is 29m2 and 30m2 respectively. At this point I note that the area of resumed land is not in fact the area of resumed land which was in fact foreshadowed in the Resumed Land Plan which was attached to the contract. In that regard the areas of resumed land was foreshadowed as 29.5m2 in relation to Lot 17 and 30.5m2 in relation to Lot 19. The area resumed therefore was .5 of a metre less than the area which was anticipated in respect of each lot. That is, the land which is the subject of the agreement is greater in area than anticipated and the area of land for which there is a right of compensation is less in area than anticipated.

[48] A proposed allotment is defined by the Act as a single parcel of land, other than a lot within the meaning of the Act, the boundaries of which are shown, or to be shown, on a plan of survey that is to be registered under the Land Act 1994 or Land Title Act 1994. Clearly then the land the subject of the contract was a ‘proposed allotment’ because the boundaries of the land were not then shown on a plan of survey.

[49] Were the boundaries as a plan of subdivision approved before the event that marks the entry of the applicant into the purchase? Was the land the subject of the agreement in fact “clearly identified” land?

[50] It would seem clear to me that at the time of the entry into the Put and Call Option Deed on 18 March 2011 and in fact on the date of the variation on 1 April 2011 the boundaries of the land the subject of the contract were not at that point in time shown on a plan of survey but rather were yet to be shown on a plan of survey to be registered under the Land Act 1994 or LTA. Those boundaries were, as at 18 March and 1 April, yet to be shown on a plan of survey and that plan of survey was yet to be registered under the Land Act 1994 or LTA.

[51] Accordingly the land the subject of the agreement was a proposed allotment for which there was no relevant and accurate plan of survey yet in existence. It is not in dispute that requirements of the LSA have not been met with respect to proposed allotments. It is clear that the requirements of s 8 in relation to an effective development permit or a compliance permit applied and were not met.

[52] I consider that the agreement entered into between the parties was therefore void pursuant to s 8(2) of the LSA.

[53] Similarly s 9 required that before the applicant entered into the agreement a disclosure plan or disclosure statement for the proposed allotment or a copy of a plan of survey approved by the local government under the Planning Act was required.

[54] Section 9 was not complied with.

[55] I also consider that in any event the agreement between the parties would have been validly terminated pursuant to s 9(5) of the LSA.

Can estoppel be invoked?

[56] The respondent argues that the applicant is estopped from purporting to rescind the agreement for contravention of the LSA. It is quite clear however that estoppel cannot override the clear provisions of a statute. Halsbury’s Law of Australia provides:

 

“Estoppel cannot be invoked to negative the operation of a statute. Estoppel by representation or conduct cannot render valid a transaction which is invalid by statute as no estoppel will prevail against the law. An estoppel by representation or conduct cannot be used to expand the scope of a statutory power nor preclude the exercise of a statutory duty or discretion. Further, there cannot be an issue estoppel against the operation of a statute which creates public rights and duties or which enacts imperative provisions.”

[57] A number of authorities are quoted in support of that proposition including the decision of Considine v City Corp Australia Ltd:[3]

 

If it was open to the finance company to rely on estoppel against the operation of the section it would have a very strong case indeed. However, as Buckley J said of promissory estoppel, estoppel "cannot ... be invoked... to negative the operation of a statute" (Beesly v Hallwood Estates Ltd [1960] 1 WLR 549, at p 561; [1960] 2 All ER 314, at p 324, this point not being argued on the appeal [1961] Ch 105), at all events where:

 

‘... the law that confronts the estoppel can be seen to represent a social policy to which the court must give effect in the interests of the public generally or some section of the public, despite any rules of evidence as between themselves that the parties may have created by their conduct or otherwise. Thus the laws of gaming or usury (Carter v. James (1844) 13 M. & W. 138) override an estoppel: so do the provisions of the Rent Restriction Acts with regard to orders for possession of controlled tenancies (Welch v. Nagy [1950] 1 K.B. 455).’ (Kok Hoong v Leong Cheong Kweng Mines Ltd [1964] AC 993, at p 1016.) (See also Barilla v James (1964) 81 WN (Pt 1) (NSW) 457, and generally Spencer Bower & Turner on Estoppel by Representation, 3rd ed, p 139 et seq.)

 

In Brown v Universal Guarantee Pty Ltd [1968] WAR 23, a similar contention was sought to be raised in relation to the corresponding Western Australian provision. The only member of the court to express a view was Nevile J who said (at p 29) that ‘there can be no estoppel against relying on the provisions of the Act which was enacted for the protection of hirers.”

[58] In any event it was argued by counsel for the applicant that in Birstar Pty Ltd v The Proprietors “Ocean Breeze” Building Units Plan No 4745[4] it was held that the majority judgments in Walton Stores (Interstate) Ltd v Maher[5] and The Commonwealth of Australia v Verwayen[6] establish a number of propositions:

 

In recent years there have been two authoritative pronouncements by the High Court dealing with what used to be categorised as promissory or equitable estoppel: Waltons Stores (Interstate) Ltd v. Maher [1988] HCA 7; (1988) 164 CLR 387 and The Commonwealth of Australia v. Verwayen (1990) 170 CLR 394. There is some reason for thinking now that the old division of estoppel into categories should not be as rigidly insisted upon. However that may be, from the majority judgments in these two cases a number of propositions emerge which assist in the resolution of the estoppel claim raised here. Even in the minority judgments, there is a degree of broad assent to some or all of the propositions. They may be stated as follows:

 

1. There need not be a preexisting contractual relationship between the parties to ground an estoppel;

2. The estoppel may relate to an indication given concerning future conduct and not just an existing state of affairs. This conclusion would bypass the need to make a distinction between two categories which is often difficult to draw and it would render irrelevant the point sometimes made that indications of conduct to be undertaken in the future will often involve representations of existing matters of fact, e.g. in the simplest case by amounting to a representation as to what is a party's present intention. (cf. the often repeated observation of Bowen LJ in Edgington v. Fitzmaurice (1885) 29 Ch D 459 at 483 that "the state of a man's mind is as much a fact as the state of his digestion");

3. To grant the estoppel there must exist some encouragement of the assumption on which the party acting relies and this encouragement must be apparent to the party inducing the assumption;

4. The party making reliance must suffer detriment as a result of its assumption;

5. Encouragement of the assumption may be the result of silence but in that case it must be in circumstances in which the party providing the encouragement should have spoken;

6. It must in the circumstances be unconscionable to allow the representing party to depart from the assumption conveyed by it;

7. The relief which will be granted will be determined by the requirements of equity as it operates in the particular situation. The relief will not exceed what is necessary to avoid the resulting detriment and will not always guarantee to the representee the whole of the benefits of the assumption on which it acted.”

[59] It would seem to me that those propositions have not been established in any event in the present case. There is no evidence before me that there was encouragement on the part of the applicant and there is no evidence of established detriment. Furthermore it cannot be unconscionable when the respondent has failed to comply with the provisions of a statute. Accordingly, in my view the applicant is entitled to the orders sought.

[60] I will hear from Counsel as to the form of the order and as to costs.

 

 

Footnotes

[1] [2008] QCA 167.

[2] [2005] 1 Qd R 240.

[3] [1981] 1 NSWLR 657 at 662.

[4] [1995] 1 Qd R 117.

[5] (1988) 164 CLR 387.

[6] (1990) 170 CLR 394.

Close

Editorial Notes

  • Published Case Name:

    Michael Simmons as trustee for the Fate Trust v Special Projects (Qld) Pty Ltd

  • Shortened Case Name:

    Simmons v Special Projects (Qld) Pty Ltd

  • MNC:

    [2011] QSC 423

  • Court:

    QSC

  • Judge(s):

    A Lyons J

  • Date:

    20 Dec 2011

  • White Star Case:

    Yes

Litigation History

Event Citation or File Date Notes
Primary Judgment [2011] QSC 423 20 Dec 2011 -
Appeal Determined (QCA) [2012] QCA 205 10 Aug 2012 -

Appeal Status

{solid} Appeal Determined (QCA)