New South Wales Court of Appeal - Decisions of Interest Search - Area of law: Estoppel
estoppel by convention; assumption as to contract of guarantee; common assumption; whether finding of assumption could be challenged on appeal; assumption mixed fact and law
George 218 and other companies within the Bazzo group received a number of loans from two companies. Each of the loans was supported by a guarantee. In 2008, the assets of these two companies, including the loan agreements, were transferred to Bank of Queensland. Companies within the group defaulted on their loan repayments and the Bank sought to enforce the guarantee.
The appellants alleged the Guarantees were not enforceable by the Bank and the Bank argued that the parties conducted their relationship on the common assumption that the previous guarantees had legal effect as between them. The trial judge found that there was a common assumption that the guarantees secured the money due. On this basis, he found that estoppel by convention was made out.
Court findings: An assumption of mixed fact and law as to private legal rights may be regarded as an assumption of fact for the purposes of the law of estoppel by convention. Such an assumption could ground an estoppel by convention.
NSWCA cases cited:
MK & JA Roche Pty Ltd v Metro Edgley Pty Ltd  NSWCA 39Ryledar Pty Ltd v Euphoric Pty Ltd  NSWCA 65;  69 NSWLR 603
George 218 Pty Ltd v Bank of Queensland Ltd [No 2]  WASCA 182
Estoppel: issue estoppel by consent orders; finding by consent that respondent had “fully recovered” from effects of any psychological injury; subsequent claim for compensation for permanent impairment; existence of asserted issue estoppel inconsistent with statutory scheme as to jurisdiction of Workers Compensation Commission; whether consent orders gave rise to issue estoppel for purposes of determining that there was any “medical dispute” as to permanent impairment and as to how such a dispute to be resolved
Trustees for the Roman Catholic Church for the Diocese of Bathurst v Hine  NSWCA 213
Estoppel: recovery of legal fees; former solicitor refused to provide tax invoices and bills of costs during party/party assessment; whether former solicitor estopped from subsequently recovering legal fees; whether former solicitor created assumption or expectation that no additional fees would be recovered; whether detrimental reliance by former client; appropriate remedy.
Calvo v Ellimark Pty Ltd  NSWCA 136
Estoppel: Anshun estoppel; whether appellant acted unreasonably in not raising claims made in District Court in earlier proceedings in Local Court that were settled; whether consent judgment in Local Court gives rise to issue estoppels; no risk of inconsistent judgments; whether raising of later claims in earlier proceedings would have required refusal of settlement, delay of proceedings and transfer to District Court; whether unreasonableness in separately pursuing later claims and settling earlier proceedings.
Conference & Exhibition Organisers Pty Ltd v Johnson  NSWCA 118
Estoppel: conversion; estoppel by omission; whether owner companies were under a duty to make known or discoverable by the appellants their claim to the goods; whether companies breached this duty by failing to notify authorities of the attack, threats of violence and deprivation of control of the companies; whether this inaction or silence was conduct sufficient to give rise to an estoppel by omission; whether appellants relied on this conduct; whether owners otherwise precluded from reliance on the protection afforded by the defence in s 26(1) of the Sale of Goods Act 1923 (NSW); relevance of common law concepts of estoppel in formulating the ambit of s 26; relevance of need for equivalence of knowledge as to factual circumstances surrounding the transaction.
Haines Bros Earthmoving Pty Ltd v Rosecell Pty Ltd  NSWCA 112
Estoppel: whether promise to transfer burial licence gave rise to binding contract; whether mutual promises offered in consideration of one another; whether objective intention to create legally binding relations; estoppel by conduct; proprietary estoppel by encouragement; promise by applicant to transfer burial plot to respondent to enable him to be buried next to his late wife in due course; whether loss of ability to be buried next to wife as a result of applicant’s failure to honour promise sufficient detrimental reliance for purposes of equitable estoppel.
Arfaras v Vosnakis  NSWCA 65
Estoppel: res judicata or cause of action estoppel; order for specific performance made; condition as to payment of part purchase price not fulfilled; vendor sought on earlier appeal to maintain order for specific performance but vary condition as to payment; whether judgment obtained in earlier appeal constitutes res judicata that prevents vendor from later seeking to set aside order for specific performance.
Despot v Registrar General of New South Wales  NSWCA 5
Estoppel: equitable estoppel; conventional estoppel; whether assumption adopted between parties as to ongoing obligation of original supplier to provide to distributor and reseller parts and support necessary to ensure effective operation of systems for their lifetime; whether conduct, including statements between parties, points plainly to adoption of assumption said to constitute conventional basis of supply relationship
TMA Australia Pty Ltd v Indect Electronics & Distribution GmbH  NSWCA 343
Estoppel: issue estoppel; Anshun estoppel; Res judicata; estoppel in the face of a statute
Coshott v Barry  NSWCA 257
Estoppel: estoppel in pais; estoppel by representation; representation of law; defective deeds; whether members of Gleeds pension scheme were estopped from denying that deeds of amendment and deeds of appointment and retirement of trustees had been validly executed; whether representation of law founding estoppel; whether estoppel preventing assertion that statutory requirements not satisfied; Miscellaneous Provisions Act 1989 s 1(3); members of the scheme could not be estopped from denying defective deeds had been validly executed
Briggs and others v Gleeds (Head Office) and others  EWHC 1178