The Law of Equity in Australia

Equity – Assignment

Question 3

Need essay sample on The Law of Equity in Australia ?We will write a custom essay sample specifically for you for only $13.90/page

order now


As described by Sir Frank Kitto, Justice of the High Court of Australia from 1950 to 1970, the jurisprudence of equity is ‘the salvaging addendum and complement of the Common Law… .’ which prevails over the Common jurisprudence in instance of struggle between both the Torahs and therefore by mending the lacks of the Common Law. [ 1 ]

An estoppel is a rule whereby a party is prevented from asseverating a contrary place to any fact which has already been established. [ 2 ]

Points of differentiation sing Law of Estoppel in common jurisprudence and equity:

As to definition:

  • Estoppel in common jurisprudence occurs where the trusting party acted upon an premise of an bing fact merely every bit confined by the determination of House of Lords inJorden V Money [ 1843–60 ] All ER Rep 350.[ 3 ] For case, when the party represented induced the trusting party to believe that he has signed a contract. [ 4 ]
  • Whereas, an Estoppel in equity is an just claim that prevents person from denying the being of a province of personal businesss in fortunes in order to protect and forestall a party from going from an premise encouraged by the other party ‘s behavior, representations or promises, where to make so would be conscienceless and would do loss and hurt to the party who acted upon that premise. [ 5 ] Equitable estoppel besides occurs in instance of a representation of future behavior where the trusting party acted upon an premise as to the future behavior of the representor. For case, the representor induced the trusting party to believe he will subscribe the contract in the hereafter. [ 6 ]

Therefore from here, it is derived as per Priestley JA inSilovi Pty Ltd V Barbaro( 1988 ) 13 NSWLR 466, at 472, that common jurisprudence estoppel operates when certain conditions are fulfilled, establishes a province of personal businesss by mention to which the legal relation between the parties is to be decided. It does non itself create a right against the party estopped. The right flows from the court’s determination on the province of personal businesss established by the Estoppel.

Whereas, just estoppel operates upon representations as to future behavior, including promises about legal dealingss. When certain conditions are fulfilled, this sort of estoppel is itself equity, a beginning of legal duty. [ 7 ]

As to nature:

The common jurisprudence estoppel is a regulation of grounds and a device used simply to find the facts upon which the legal rights of the parties will so be determined by the tribunal, whereas estoppel in equity may confabulate substantial rights which flow straight from the operation of estoppel in equity. [ 8 ]

As to organize

The common jurisprudence estoppel can merely move as a shield non as a blade as it is merely a manner to set up grounds, non a cause of action. Whereas, the just estoppel can move as both a blade and a shield because it does non merely determines grounds, but it is itself a cause of action. [ 9 ]

As to pertinence

The common jurisprudence of estoppel lone applies to representation of bing legal facts such as promises made in understandings or contracts already signed and non of future representations or behaviors of the representor. The general rule of common jurisprudence estoppel was stated byDixon J in Grundt v Great Boulder Pty Gold Mines Ltd ( 1937 ) 59 CLR 641, at 674as being that, ‘the jurisprudence should non allow an unfair going by a party from an premise of fact which he has caused another party to follow or accept for the intent of their legal relations’ .

Whereas, the range of just estoppel is much wider as it applies to both future facts, representations and bing legal facts. It does non necessitate consideration or an understanding on footings. Therefore in the instance ofMobil Oil Australia Ltd v Lyndel Nominees Pty Ltd ( 1998 )it was held that chief aim of just estoppel is really to avoid hurt instead than implementing promises. [ 10 ]

As to consequence

The consequence of Common Law Estoppel is to forestall the representor from denying his representation in tribunal. The contractual rights and duties will be determined as if the representor’s representation was true. Thus the representor will be ‘estopped’ from denying the asserted facts that he has signed the contract and hence the contract will be deemed to be s signed, and hence enforceable.

Whereas, the consequence of Equitable Estoppel is to forestall the representor from moving inconsistently with his representation without taking stairss to guarantee that the trusting party does non endure hurt as a consequence of his inconsistent behavior. Therefore, the representor will necessitate to give sensible notice of its purpose to move inconsistently with the representation, and in the instance amendss will still be suffered by the Relying Party, counterbalance the Relying Party for those amendss. [ 11 ]

As to types:

At common jurisprudence, estoppel could be of the undermentioned types:

Estoppel by title:

It provides that a statement within a title under seal can non be denied and must be understood as binding by the party who makes it. This was held in the instance ofGreer V Kettle [ 1938 ] AC 156.

Estoppel by record:

This refers to judicial determinations, i.e. one time a tribunal has decided an issue between the parties, it can non be re-litigated.

Estoppel by behavior:

Estoppel by behavior includes within it assorted types of estoppels which can take topographic point before a contract, during and contract and within a relationship. This type of estoppel is sometimes classified into sub-types:

  1. Estoppel by Agreement or Convention: It occurs when the parties involved agree on certain facts, though those facts may be incorrect.If they are both in understanding, each is so estopped from denying this as an in agreement fact.
  2. Estoppel by Representation: It occurs when a party, A has made some representation to another party B, B so move on that representation, nevertheless, A so denies the truth of that representation. A may be estopped from denying the truth.

Whereas, in equity, the followerss are the types:

  1. Proprietary estoppel: It relates to issues that arise environing land ownership that is disputed transportations of land and the right to utilize the land of the proprietor. This philosophy aims to protect people who have relied or acted upon the promise of land but suffered hurt a alteration in place as a consequence of the promise being withdrawn.

Such as inDillwyn V Llwellyn[ 12 ] in Chancery a male parent promised a belongings to his boy, who took ownership, expended a big amount of money on the house and otherwise improved the belongings. The male parent ne’er really gifted the belongings to the boy. After his decease the boy, claiming to be the just proprietor, obtained a tribunal judgement coercing the legal guardians to convey the land to him. [ 13 ]

  1. Promissory estoppel: In just promissory estoppel, [ 14 ] it is necessary for a complainant to set up ( 1 ) that it has adopted an premise as to the footings of a legal relationship with the suspect ; ( 2 ) that the suspect has induced or acquiesced in the plaintiff’s acceptance of that premise ; ( 3 ) that the complainant has acted in trust on its premise ; ( 4 ) that the suspect knew or intended that the complainant so act ; and ( 5 ) that it will occasion hurt to the complainant if the premise is non fulfilled. [ 15 ]

Whereas, in common jurisprudence estoppel, it is necessary for a complainant to set up: ( 1 ) that it has adopted an premise as to the footings of its legal relationship with the suspect ; ( 2 ) that the suspect has adopted the same premise ; ( 3 ) that both parties have conducted their relationship on the footing of that common premise ; ( 4 ) that each party knew or intended that the other act on that footing ; and ( 5 ) that going from the premise will occasion hurt to the complainant. [ 16 ]

  • In Australia, the philosophy of promissory estoppel was foremost magisterially accepted by the High Court inLegione V Hateley( 1983 ) [ 17 ] . Unlike common jurisprudence estoppel, it is discretional as provided in the instance ofD & A ; C Builders v Rees[ 18 ] , where the tribunals refused to recognize a promise to accept a portion payment of ?300 on a debt of ?482 on the footing that it was extracted by duress.
  • InWilliam waltons Shops ( Interstate ) Ltd V Maher[ 19 ] is a landmark instance since it upheld that:
  • It is a general rule which could run in any legal dealingss, non merely bing contractual dealingss.
  • In this instance the undermentioned impression as distinctive from common jurisprudence of estoppel was established: ‘A common thread’ : Equity will move to alleviate a complainant who has acted to his hurt on a basic premise where the other party has played such a portion in its acceptance that it would be unjust or unfair if he were left free to disregard it.


Harmonizing to the above facts it is clear that there are clear differentiation can be seen in between Common Law Estoppel and the Equity Estoppel.



Cardinal London Property Trust Ltd v High Trees House Ltd[ 1947 ] 1 KB 130.

D & A ; C Builders v Rees[ 1965 ] EWCA Civ 3.

Dillwyn V Llwellyn[ 1862 ] All ER 384.

Greer V Kettle[ 1938 ] AC 156.

Grundt v Great Boulder Pty Gold Mines Ltd( 1937 ) 59 CLR 641, at 674.

Legione V Hateley( 1983 ) 152 CLR 406.

Mobil Oil Australia Ltd v Lyndel Nominees Pty Ltd( 1998 ) 153 ALR 198.

William waltons Shops ( Interstate ) Ltd V Maher( 1988 ) 164 CLR 387.

Waterman v Gerling Australia Insurance Company Pty Ltd( 2005 ) 65 NSWLR 300, [ 83 ] , [ 96 ] .


Radan & A ; Stewart,Principles of Australian Equity and Trusts: Equitable Estoppel( Reed International Books Australia Pty Limited, LexisNexis,2009 ) & lt ; hypertext transfer protocol: // SUMMER 2009-10/Radan & A ; Stewart Ch 12.pdf & gt ;

Study Guide:

Jaani Riordan,Contracts:Part VIII Estoppel( 2004 ) p. 1.

& lt ; hypertext transfer protocol: // & gt ;

Seminar paper

Michael Kirby, ‘Full text of Michael Kirby ‘s address: Equity ‘s Australian isolationism’ ,The Australian Business Review,( online ) 20 November 2008.

& lt ; hypertext transfer protocol: // & gt ; .

Conference Paper

P L G Brereton RFD, ‘Equitable Estoppel In Australia: The Court Of Conscience In The Antipodes’ ( Paper presented at the Australian Law Journal Conference, 16 March 2007 ) .

& lt ; hypertext transfer protocol: // & gt ;

Internet Materials:

UniStudy Guides, Estoppel( 19 March, 2013 ) & lt ; hypertext transfer protocol: // & gt ;

UniStudyGuides,William waltons Shops ( Interstate ) Ltd V Maher ( LAWS1071)

& lt ; hypertext transfer protocol: // ( Interstate ) _Ltd_v_Maher_ ( LAWS1071 ) & gt ;

Wikipedia, D & A ; C Builders Ltd V Rees( 25 June 2014 )

& lt ; hypertext transfer protocol: // & A ; _C_Builders_Ltd_v_Rees & gt ; .

WikiSpace,Group 8- Estoppel( 2014 ) & lt ; hypertext transfer protocol: // & gt ;

Vedini Herath – u3104205



Get your custom essay sample

Let us write you a custom essay sample

from Essaylead

Hey! So you need an essay done? We have something that you might like - do you want to check it out?

Check it out