Kelly v Kelly [2012] NSWSC 557

Kelly v Kelly [2012] NSWSC 557

The proprietary estoppel claims failed because there were no representational promises sufficient to found proprietary estoppel by encouragement, no change of position by Robert in reliance on encouragement, and no established detriment. The winding up application was not determined immediately because, despite apparent insolvency and cessation of trading, the application had not been advertised and the opposition based on disproportionate liquidation costs was reasonably well founded, so the parties should have an opportunity to consider alternatives.

Jurisdiction
Australia
Judgment Date
25 May 2012
Procedural Posture
Equity Division Proceedings Involving Proprietary Estoppel Cross Claim and Corporations Act Winding Up Application / Reasons for Orders Already Made on the Estoppel Claim; Winding Up Application Stood Over
Outcome
Proprietary estoppel claims for interests in Starrs and Devon Point or equitable compensation failed; winding up application stood over to a future date.
Legal Topics
['proprietary Estoppel by Encouragement' 'winding Up on Just and Equitable Ground' 'trustees for Sale' 'family Farming Property Dispute']
['equity' 'corporations' 'property'] ['proprietary Estoppel by Encouragement' 'winding Up on Just and Equitable Ground' 'trustees for Sale' 'family Farming Property Dispute']

Case Brief

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Procedural Posture

Equity Division Proceedings Involving Proprietary Estoppel Cross Claim and Corporations Act Winding Up Application / Reasons for Orders Already Made on the Estoppel Claim; Winding Up Application Stood Over

Legal Issues

  1. 1 ['Whether Robert George Kelly was entitled by proprietary estoppel to interests in Starrs or Devon Point or equitable compensation in lieu.' 'Whether alleged statements by Richard Kelly or conduct by Ann Kelly, Nicholas Kelly or others amounted to representational promises or encouragement on which Robert relied to his detriment.' 'Whether Devon Point Pastoral Company Pty Limited should be wound up on the just and equitable ground.']

Ratio Decidendi

The proprietary estoppel claims failed because there were no representational promises sufficient to found proprietary estoppel by encouragement, no change of position by Robert in reliance on encouragement, and no established detriment. The winding up application was not determined immediately because, despite apparent insolvency and cessation of trading, the application had not been advertised and the opposition based on disproportionate liquidation costs was reasonably well founded, so the parties should have an opportunity to consider alternatives.

Court Disposition

Proprietary estoppel claims for interests in Starrs and Devon Point or equitable compensation failed; winding up application stood over to a future date.

Orders

  • ['Reasons given for orders already made on the estoppel claim.' 'An order under s 66G of the Conveyancing Act 1919 should be made in respect of Starrs.' 'The winding up application was stood over to a future date.' 'Costs, other than the costs of the unconcluded winding up application, were to be dealt with after...