Fifteenth Eestin Nominees Pty Ltd & Ors v Rosenberg & Anor

(2009) 24 VR 155; [2009] VSCA 112

Victorian Court of Appeal

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Interrogate

Catchwords

1. Equity
2. › Estoppel
3. › Equitable estoppel
4. › Promissory estoppel
5. › Whether representations made
6. › Whether detriment suffered in reliance on representations
7. › Whether unconscionable to resile from representations
1. Equity
2. › Estoppel
3. › Equitable estoppel
4. › Proprietary estoppel
5. › Remedy
6. › Whether enforcement of representation or equitable compensation appropriate
7. › Minimum equity to do justice
1. Equity
2. › Constructive trust
3. › Whether constructive trust of assets established on basis of representations
1. Trusts
2. › Discretionary trusts
3. › Power of appointment
4. › Removal and appointment of trustee
5. › Whether exercise of power to remove trustee could be restrained by estoppel

Quick Take

The case confirms that in assessing detriment for equitable estoppel, the court must consider the overall position of the claimant including benefits received, and that it is not unconscionable to resile from promises unsupported by consideration where the claimant has not suffered net detriment. The prima facie remedy of enforcing the representation in proprietary estoppel cases may not apply where the promise is to allow continued management and control of a trust rather than to confer a proprietary interest. An executor named in a will is the personal representative from the date of death even before probate is granted, and can be substituted as a party under r 9.09(2).