Turnbull v Turnbull [2017] NSWSC 1316

Turnbull v Turnbull [2017] NSWSC 1316

Roger and Annette Turnbull failed to prove that Ian Turnbull made the alleged representation before the Roydon auction, in Robeena Turnbull's presence or otherwise. The objective evidence, including the absence of any mention of such a representation until the 2017 caveat, the terms of the December 2014 permission document, and the correspondence in January 2017, pointed against the pleaded representation. Without that representation, there was no estoppel. In any event, reliance and detriment were not established: Annette did not know of any pre-auction access arrangement before signing the purchase contract, there was no financial analysis showing the impact of access on the decision or...

Jurisdiction
Australia
Judgment Date
29 September 2017
Procedural Posture
Equity Proceedings Concerning Claimed Easement or Irrevocable Licence Over Land and Cross Claim for Trespass and Nuisance / Principal Judgment After Hearing; Damages and Costs Issues on the Cross Claim to Be Dealt With Separately
Outcome
All claims for relief by Roger and Annette Turnbull were dismissed; issues of damages and costs on Robeena Turnbull's cross-claim were left for further directions.
Legal Topics
['licences Over Land' 'termination of Licence' 'proprietary Estoppel' 'right of Carriageway' 'reliance and Detriment' 'trespass' 'nuisance']
['real Property' 'equity'] ['licences Over Land' 'termination of Licence' 'proprietary Estoppel' 'right of Carriageway' 'reliance and Detriment' 'trespass' 'nuisance']

Case Brief

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Procedural Posture

Equity Proceedings Concerning Claimed Easement or Irrevocable Licence Over Land and Cross Claim for Trespass and Nuisance / Principal Judgment After Hearing; Damages and Costs Issues on the Cross Claim to Be Dealt With Separately

Legal Issues

  1. 1 ['Whether Ian and Robeena Turnbull represented before the auction of Roydon that Roger and Annette Turnbull would have a right of carriageway or access over Yambin if they bought Roydon.' 'Whether Roger and Annette Turnbull relied on any such representation in purchasing Roydon and suffered detriment.' 'Whether Robeena Turnbull was estopped from denying that any licence over Yambin was irrevocable while Roger and Annette Turnbull, or either of them, owned Wallam and Roydon.' 'Whether expenditure on the alleged road and creek crossing made it unconscionable for Robeena Turnbull to revoke access.']

Ratio Decidendi

Roger and Annette Turnbull failed to prove that Ian Turnbull made the alleged representation before the Roydon auction, in Robeena Turnbull's presence or otherwise. The objective evidence, including the absence of any mention of such a representation until the 2017 caveat, the terms of the December 2014 permission document, and the correspondence in January 2017, pointed against the pleaded representation. Without that representation, there was no estoppel. In any event, reliance and detriment were not established: Annette did not know of any pre-auction access arrangement before signing the purchase contract, there was no financial analysis showing the impact of access on the decision or...

Court Disposition

All claims for relief by Roger and Annette Turnbull were dismissed; issues of damages and costs on Robeena Turnbull's cross-claim were left for further directions.

Orders

  • ['All of the claims for relief made in the Summons and Statement of Claim be dismissed.' "Order the Plaintiffs to pay the Defendants' costs of those claims." 'The Cross Claimant is to bring in short minutes of directions no later than 13 October 2017 for the further conduct of the proceedings insofar as issues of...