There’s property in a promise - Court of Appeal confirms the decision in Currie v Currie

In our article dated 18 May 2018 we discussed the decision of the Honourable Justice Le Miere in Currie v Currie when he ordered that a farmer, Mr Graeme Currie (Graeme) held a share in his properties, which formed part of a farming operation called Glenayr Farms, on constructive trust for his son, Mr Bruce Currie (Bruce).¹

Bruce alleged that he had been induced by Graeme’s representations and conduct over the period from early 2003 until a meeting in March 2011 to expect that Graeme would assign or pass ownership of certain properties to him.²

Le Miere J found that Graeme had informed Bruce in early 2003 that he would divide the farming property between Bruce and his brother and assign Bruce a portion of the farming property.

Graeme further advised Bruce in 2006 that he could treat the land as his own and that he would transfer it to him in his will; but if Bruce wanted the land transferred prior to Graeme’s death, Bruce would have to pay the stamp duty.³

Graeme’s conduct after 2006 was consistent with those representations.

Bruce relied on Graeme’s promise to his detriment by:

• pursuing a career in farming for the duration of his adult life to the exclusion of other career paths;
• establishing a loan facility with the bank;
• borrowing $1.551 million to repay half of Graeme’s bank debt; 
• borrowing $1.25 million to purchase adjoining farmland;
• registering a business ‘Glenayr Farms’ and running a farming business on his prospective share of the farm, incurring operational expenditures and operational losses;
• making monthly payments to Graeme of between $4,000 - $5,500 which in aggregate totalled $447,000; and 
• suffering significant stress and health issues which resulted in his hospitalisation.⁴ 

Le Miere J found it would be unconscionable for Graeme not to fulfil Bruce’s assumption that the title to land would ultimately be transferred to him, which Graeme had encouraged both through oral statements and by preparing draft succession plans.⁵

Graeme was ordered to transfer the title to certain properties to Bruce on the condition that Bruce paid $100,000 to Graeme and caused any guarantees by Graeme over the properties to be discharged.⁶ 

Graeme appealed against the decision.

In a joint judgement delivered on 11 January 2019, the Supreme Court of Western Australia Court of Appeal dismissed Graeme’s appeal and affirmed the first instance decision.⁷ 

The Appeal

Graeme relied on 12 grounds of appeal, the majority of which alleged both errors of law and fact.

In summary, Graeme alleged that:

• Le Miere J erred in finding that Bruce assumed or expected that Graeme would pass ownership of the relevant properties to him as it was open to Graeme to change his mind if Bruce became alienated from the family, ceased farming, failed to make agreed monthly payments to Graeme, or ‘circumstances’ changed.⁸ This ground of appeal was dismissed.  Le Miere J had found Bruce and his wife to be credible witnesses and an appellant who seeks to overturn credibility-based findings faces a ‘high hurdle’.⁹ 
• Le Miere J erred in finding that Bruce acted in reliance on anything said or done by Graeme.¹⁰  This ground of appeal was dismissed as being ‘hopeless’, based on the direct and circumstantial evidence, and Le Miere J’s assessment of Bruce’s credibility.¹¹ 
• Le Miere J erred in finding that Bruce had suffered any detriment acting in reliance on any statement or conduct of Graeme regarding the ownership of land being assigned or passed to Bruce.¹²  This ground of appeal was dismissed on the basis that it had no merit.¹³ 
• Le Miere J erred in finding that it would be against the conscience of Graeme not to fulfil Bruce’s assumption that Graeme would assign or pass ownership of the land to Bruce.¹⁴ 

This ground of appeal was also dismissed. Importantly, the Court of Appeal stated:

‘the fact that a family relationship has broken down since a promise was made is not ordinarily regarded as a reason to deny a plaintiff his or her prima facie entitlement to have the promise, and the reasonable expectations it engendered, made good.’¹⁵ 

The Court of Appeal decision confirms the position in relation to the elements of proprietary estoppel as follows:

• The plaintiff assumes that he or she will in the future acquire ownership of certain property;
• The plaintiff’s assumption was either induced, encouraged, or acquiesced in by the defendant;
• The plaintiff detrimentally relies upon the assumption;
• It would be against the conscience for the defendant to be permitted to depart from an assumed state of affairs;¹⁶ 
• The fact that a plaintiff would not assume that a ‘particular legal relationship’ would exist between the parties is not determinative of a proprietary estoppel claim;¹⁷ 
• There may be circumstances, particularly in domestic/family cases, where the parties did not contemplate that a particular legal relationship would exist, but simply that an interest in land would be granted;¹⁸ 
• An assumption that land will be received by will is capable of giving rise to a proprietary estoppel;¹⁹ 
• The words used in the representation must be clear and must be capable of misleading a reasonable person in the way that the representee claims that he or she has been misled;²⁰ and
• It is not necessary that the representation or conduct should be the sole inducement to the representee; it is sufficient that the representations were an inducement to the representee doing the things that constituted the detrimental reliance.²¹

Lavan comment

This Court of Appeal decision highlights the importance of the consequences of making representations on which others may rely to their detriment.

As a result of Graeme’s representations, Bruce had spent his entire adult working life building the family farming business on the expectation that one day he would own the land.

Australia is about to undergo the largest generational wealth transfer in its history over the next 20 years.

It is important for will makers to understand that, whilst they have the right to revoke or change a will at any time, equity may intervene to enforce a promise upon which someone has relied to their detriment, irrespective of the terms of a later will.

If a person acts in reliance on that promise (to their detriment), the property which has been promised may ultimately be deemed to be held on constructive trust for that person.

The proposition underlying the question which Graeme asked Bruce during an argument, “who gets their inheritance from a person before that person dies?” is no answer to valid claim based on proprietary estoppel.²² 

If you have any questions in relation to this article, or require assistance in relation to your own testamentary arrangements, or any other issues which might give rise to a future proprietary estoppel claim, please do not hesitate to contact James Steedman or Lorraine Madden.