ESTOPPEL in PROPERTY CASES – PRINCIPLES and DEVELOPMENTS
23 Mar 2017
Equity is concerned with good conscience, not a sentimental urge to render sinners virtuous.[1]
Common Law and Equitable Estoppels
Despite the attempt of the High Court in Commonwealth v Verwayen[2] to unify the law of estoppel under a single overarching doctrine grounded in unconscionability, estoppels at common law and in equity continue to be governed by different doctrines and rules. Common law estoppels are essentially rules of evidence. They include estoppel by judgment; estoppel by deed; estoppel by convention; common law estoppel; and estoppel by representation. Estoppel by judgment is known to lawyers as res judicata or issue estoppel. Equity has also developed the Anshun estoppel,[3] preventing a party from raising an issue in subsequent proceedings that could and should have been raised in prior proceedings. Estoppel by deed prevents a party from denying representations set out in recitals to a deed. Estoppel by convention stops parties from denying the agreed or assumed state of facts which had formed the basis of their mutual relations.[4] Common law estoppel prevents a party from denying its conduct, whereas estoppel by representation prevents a party from denying its representations of fact. Read More
* Barrister, Adjunct Associate Professor, Notre Dame University, Australia, School of Law, Sydney.
[1] Meagher R, Hayden D, Leeming M (2002) Meagher Gummow and Lehane’s Equity Doctrines and Remedies Fourth Ed. at [17-075].
[2] (1990) 170 CLR 394
[3] Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
[4] Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Limited (1986) 160 CLR 226 at 244
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