Whittle & Anor v Parnell Mogas Pty Ltd [2006] HCATrans 626 (10 November 2006)

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Whittle & Anor v Parnell Mogas Pty Ltd [2006] HCATrans 626 (10 November 2006)

Last Updated: 21 November 2006

[2006] HCATrans 626

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A13 of 2006

B e t w e e n -

ALBERT THOMAS WHITTLE AND MARIE JOY WHITTLE

Applicants

and

PARNELL MOGAS PTY LTD

Respondent

Application for special leave to appeal

HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO MELBOURNE

ON FRIDAY, 10 NOVEMBER 2006, AT 10.19 AM

Copyright in the High Court of Australia

MR S. WALSH, QC: If the Court pleases, I appear with my learned friend, MR A.L. TOKLEY, for the applicants. (instructed by Patel & Co)

MR S.T. LANE: If the Court pleases, I appear for the respondent. (instructed by O’Loughlins)

HAYNE J: Yes, Mr Walsh.

MR WALSH: If the Court pleases, it is our submission that in this case there are sufficient prospects of success to justify the grant of appeal; secondly, that it is in the interests of justice that the decision below should be corrected; and thirdly, that the matter is a suitable vehicle.

On the first topic, whether it enjoys sufficient prospect of success, on the question of estoppel and the special leave points there is, at the end of the day, no finding of facts on which the matter might otherwise have turned or has been found against the applicants. It is true that there is an issue of fact relating to a conversation with a Mr Robinson, but that occurred on 14 June 2000 and well before the relevant events when a lease was prepared and forwarded and then action in reliance upon that was taken.

In our respectful submission, there is no finding by the majority of any – there being no encouragement. In fact, there seems to have been as matter of fact encouragement accepted. The issue of inducement, of course, was a matter of contention. But the issue that arose before the Full Court was one which was really open to it at large. If I can take the Court to the trial judge’s reasons commencing at page 3 on the question of estoppel, taking into account that the applicants’ case was that there was an estoppel before a letter of 3 August 2000 and then another one later on, but we are focusing on the estoppel before 3 August. If one looks at page 3, paragraph 3 and the last sentence, the learned trial judge said:

Alternatively it is claimed by the plaintiffs that if there was no agreement, from August 2000 until approximately the end of the year, the defendant behaved in an unconscionable way –

That was not the complete submission that was put both in written submissions and orally before the trial judge. That appeared to become a little more confused at page 4, paragraph 6, when the learned trial judge observed in that paragraph:

In deciding that question I have to decide whether certain condition precedents were waived or not. If there was no agreement, was the behaviour of the defendant from that time onwards such that it was unconscionable for them to withdraw –

which seemed to suggest that he was acknowledging that there was something more than after 3 August. The learned trial judge then dealt with the question of promissory estoppel at page 58 of the application book. Having cited from Waltons Stores, at the foot of that page, paragraph 64, his Honour, after referring to a conversation between Robinson, which we say is not a bar to relief in estoppel in this case, says:

I do not find that Mr Whittle is deliberately not telling the truth . . . In my view that version is supported –

and so forth. Then over the page in paragraph 65:

I find that from the 3^rd August 2000 onwards although serious negotiations were taking place between the parties, there was never a binding agreement –

With the greatest of respect, the learned trial judge never really dealt with the case before him about the question of estoppel prior to 3 August. Insofar as he did, he was misled by his finding in relation to the question of whether there was an agreement or not, and once the matter came before the Court of Appeal, in our respectful submission, there was clearly an obligation then upon the court to make its own decision with respect to that issue. So that in truth, if special leave is granted, this Court will only have to have regard to the reasons of the Full Court based upon the arguments that have been put and not fettered in any way by some exercise of discretion or finding by the learned trial judge at first instance.

In our respectful submission, the next point is that it is in the interests of justice that the decision should be corrected. The reasons of the majority, in our respectful submission, are inconsistent with the principles in Waltons Stores and in the absence of correction the decision of the majority will be applied. It would seem that the majority assume that for estoppel to apply it is necessary that there be a representation of fact and, of course, that is not so. That may be one case, but there may be another case as to future intention, and it was the applicant’s case, as clearly articulated in a careful judgment by his Honour Justice Debelle, that there was a representation that a lease would be entered into. That much is clear on the evidence of the parties and it is clear also on the contemporaneous objective evidence at the time. In that sense this case is very similar in a way to the facts in Waltons Stores v Maher.

The next issue is whether it is a suitable vehicle. In our respectful submission, it is for the reasons put before. Secondly, the issue touched upon in Waltons Stores of the question of what is necessary for detriment, namely, sufficiency of detriment, whilst touched upon, has not really been dealt with since. There was clear evidence in this case of detriment in the nature of, one, the fact that after the lease had been agreed or the terms had been agreed there had been work undertaken and money expended, two, to the knowledge of the defendants or the respondent in this case Caltex lease had been terminated – very, very similar in a broad sense, depending on their facts, of course, but very similar to Waltons Stores v Maher.

On the other hand, turning back to the decision of the majority, Justice Vanstone seemed to focus solely on that conversation with Mr Robinson. If one turns to page 98, paragraph 99, firstly, we observe in paragraph 95 that her Honour did concede that:

Mr Whittle allowed the work to start without a lease being signed. No doubt he did so because he believed that the lease would be signed. Perhaps both parties did.

That is a curious observation when one comes to look at the question of estoppel and the legal principles. Her Honour seems to conclude in paragraph 100 that:

The judge was justified in finding that there was no inducement by the defendant to the plaintiffs to adopt the assumption that an agreement had been reached.

Well, with the greatest of respect, his Honour did not make that finding, as we know from what we have looked at already in the reasons for the decision of the learned trial judge. Her Honour seemed to assume that it was necessary for there to be a representation as to fact. Her Honour deals with that in paragraph 98 where her Honour said that:

In terms of this case it seems to me that to demonstrate estoppel, the plaintiffs had to show, at least, that the defendant induced in them an assumption or belief that both parties were bound by an agreement –

Now, that is not so. In our respectful submission, her Honour Justice Layton in dealing with this topic – if I may turn to page 101 of the application book where her Honour turns to the question of estoppel, I will not read from it – but in dealing with the question seems to elevate the Humphreys Estate Case to the proposition that if there is a condition precedent that it can never be an estoppel. But, of course, we know from what happened in Humphreys Estate that the issue there, which was an agreement subject to contract, was that the House of Lords specifically found that the group, in that case, had failed to show that the group created
or encouraged a belief or expectation that they would not withdraw from the negotiations and that it relied on that expectation.

Well, this is a case where that is satisfied. So it is not correct to say or imply that it is necessary to have (1) a representation that there was an agreement, in fact, or (2) that you cannot have an estoppel merely because there is a contract that has been entered into with a condition. So, in our respectful submission, it is not only a suitable vehicle, but the interests of justice for that reason require that this Court intervene and correct the position.

If the Court pleases, it has been put by the respondents that the applicant is putting something new. That is simply not so. If it were so, then one would have thought that the Full Court would have said something about that in its reasons and it simply did not.

Secondly, in our respectful submission, it is not correct to imply, as the respondent does, that Humphreys Estate is some barrier to success in this case. In our respectful submission, Justice Debelle was the only one to deal with the real issues in the case, the only one to recognise the necessity to deal with the position from 14 June onwards to the period just prior to 3 August 2000 and, in our respectful submission, his Honour was correct in his reasoning process.

If the Court pleases, we recognise that there are factual issues relating to the ground of appeal that is sought to be agitated relating to whether there was an agreement in fact concluded, so that if the Court determined that that was not appropriate for special leave, then, of course, we must accept that the special leave might be confined to the question of estoppel and thus raise only the issues of importance which we raise on the special leave application. That is not our preferred course but, of course, we would accept that position if it was thought that special leave would otherwise not be granted. If the Court pleases, they are our submissions.

HAYNE J: Yes, thank you, Mr Walsh. We will not trouble you, Mr Lane.

We are not persuaded that an appeal to this Court would enjoy sufficient prospects of success to warrant a grant of special leave to appeal. Accordingly special leave is refused. It must be refused with costs.

The Court will adjourn to reconstitute at level 17.

AT 10.31 AM THE MATTER WAS CONCLUDED