Hardie v Milling [2013] NSWSC 310

Hardie v Milling [2013] NSWSC 310

The defendant, by his words and conduct, encouraged the plaintiffs, particularly the second plaintiff, to expect that she and her family would have security of residence and ultimately inherit the House Paddock at Weeraman. The plaintiffs relied on this to their detriment by making substantial, valuable improvements and remaining on the property. The defendant's later repudiation of this expectation (disinheritance and reservation of the right to evict) was unconscionable. Equity requires him to adhere to the expectation he induced, and relief should be granted to secure the second plaintiff's ongoing occupation and future title to the House Paddock, by way of a constructive trust or like...

Parties
Plaintiff: D Hardie; Plaintiff: T Hardie; Defendant: KJ Milling
Jurisdiction
Australia
Judgment Date
10 April 2013
Procedural Posture
Equity Principal Judgment / Post Trial: Judgment Delivered, Form of Relief to Be Determined on Further Submissions
Outcome
Relief to be granted in favour of the plaintiffs, form of relief subject to further submissions; s 95 order to be set aside; plaintiffs entitled to declarations and constructive trust in respect of occupancy and inheritance of the House Paddock; orders foreshadowed but not finally made as at judgment date.
Legal Topics
Proprietary Estoppel, Equitable Estoppel, Setting Aside Judgments and Orders, Succession and Family Provision, Constructive Trusts
Equity Civil Procedure Succession Law Proprietary Estoppel Equitable Estoppel Setting Aside Judgments and Orders Succession and Family Provision Constructive Trusts

Case Brief

Summary, issues, holding and outcome

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Parties

D Hardie

Plaintiff

T Hardie

Plaintiff

KJ Milling

Defendant

Procedural Posture

Equity Principal Judgment / Post Trial: Judgment Delivered, Form of Relief to Be Determined on Further Submissions

Legal Issues

  1. 1 Whether an estoppel has arisen in favour of the plaintiffs in relation to the House Paddock at Weeraman
  2. 2 Whether the defendant is estopped from denying the second plaintiff's right to occupy and inherit the House Paddock property
  3. 3 Whether the parties' settlement agreement and s 95 Succession Act order should be set aside by consent

Ratio Decidendi

The defendant, by his words and conduct, encouraged the plaintiffs, particularly the second plaintiff, to expect that she and her family would have security of residence and ultimately inherit the House Paddock at Weeraman. The plaintiffs relied on this to their detriment by making substantial, valuable improvements and remaining on the property. The defendant's later repudiation of this expectation (disinheritance and reservation of the right to evict) was unconscionable. Equity requires him to adhere to the expectation he induced, and relief should be granted to secure the second plaintiff's ongoing occupation and future title to the House Paddock, by way of a constructive trust or like...

Court Disposition

Relief to be granted in favour of the plaintiffs, form of relief subject to further submissions; s 95 order to be set aside; plaintiffs entitled to declarations and constructive trust in respect of occupancy and inheritance of the House Paddock; orders foreshadowed but not finally made as at judgment date.

Orders

  • Order (foreshadowed) that the order made by Associate Justice Hallen on 8 March 2012 be set aside.
  • Declaration (foreshadowed) that the Defendant holds 'The House Paddock, Weeraman' (Lots 110 and 118) on trust for himself for life and thereafter for the second plaintiff, with specified rights of occupancy for the second plaintiff and her family, and on the defendant's death, vesting in second plaintiff absolutely,...