Milling v Hardie [2014] NSWCA 163

Milling v Hardie [2014] NSWCA 163

Mr Milling's invitation to the Hardies to occupy the Weeraman homestead and his consent to their improvements did not reasonably justify an expectation that they would inherit or receive a transfer of Weeraman or any part of it. The conduct did, however, justify an expectation that Mrs Hardie and her invitees could occupy the homestead and its surrounds as their home during Mr Milling's lifetime. Given more than 20 years of rent-free occupation and use of the improvements, the improvements had been largely, if not wholly, amortised, and the equity was satisfied by estopping Mr Milling from denying that right of occupation during his lifetime.

Jurisdiction
Australia
Judgment Date
26 May 2014
Procedural Posture
Appeal From Equity Division Judgment Concerning Proprietary Estoppel / Appeal to the New South Wales Court of Appeal From Hardie V Milling [2013] NSWSC 310
Outcome
Appeal allowed in part.
Legal Topics
['proprietary Estoppel' 'estoppel by Encouragement' 'expectation of Inheritance or Transfer of Land' 'licence to Occupy Land' 'equitable Relief' 'costs']
['equity' 'property Law'] ['proprietary Estoppel' 'estoppel by Encouragement' 'expectation of Inheritance or Transfer of Land' 'licence to Occupy Land' 'equitable Relief' 'costs']

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Procedural Posture

Appeal From Equity Division Judgment Concerning Proprietary Estoppel / Appeal to the New South Wales Court of Appeal From Hardie V Milling [2013] NSWSC 310

Legal Issues

  1. 1 ["Whether Mr Milling's conduct gave rise to a reasonable expectation that the Hardies would inherit or receive a transfer of any part of Weeraman." "Whether Mr Milling's conduct gave rise to a reasonable expectation that the Hardies could occupy the Weeraman homestead and surrounds for a lengthy period." "Whether the Hardies relied on Mr Milling's proven conduct rather than alleged representations that were not proved." 'Whether Mr Milling repudiated or threatened to repudiate any equitable obligation so as to warrant relief.' 'What relief should be granted if proprietary estoppel by encouragement was established.' "Whether the primary judge erred in failing to order Mr Hardie to pay Mr Milling's costs."]

Ratio Decidendi

Mr Milling's invitation to the Hardies to occupy the Weeraman homestead and his consent to their improvements did not reasonably justify an expectation that they would inherit or receive a transfer of Weeraman or any part of it. The conduct did, however, justify an expectation that Mrs Hardie and her invitees could occupy the homestead and its surrounds as their home during Mr Milling's lifetime. Given more than 20 years of rent-free occupation and use of the improvements, the improvements had been largely, if not wholly, amortised, and the equity was satisfied by estopping Mr Milling from denying that right of occupation during his lifetime.

Court Disposition

Appeal allowed in part.

Orders

  • ['Extend to 28 June 2013 the time for Mr Milling to file his Notice of Appeal.' 'Appeal allowed in part.' 'Vary the orders contained in subparagraph (a) of paragraph 2 of the orders made by Lindsay J on 29 May 2013 by deleting the word "non-exclusive".' 'Set aside subparagraphs (b) and (c) of paragraph 2 of those...