By Paul Martin -
Snapshot
- The NSW Court of Appeal has found that a proprietary estoppel may arise in certain cases where a plaintiff seeks to exercise only personal or contractual rights.
- Even in personal or family dealings, it is possible for proprietary estoppel or other kinds of equitable estoppel, to arise if the requirements set out in Waltons Store (Interstate) Ltd v Maher (1988) 164 CLR 387 are fulfilled.
The principles of equitable estoppel have long existed in Australian law and have been endorsed on multiple occasions by the High Court of Australia and inferior appellate courts. If an equitable estoppel is found to exist, it can have the effect that a person is bound by a promise that he or she makes, even if the promise does not take the form of a contract.
The recent case of Arfaras v Vosnakis, [2016] NSWCA 65 applied principles of equitable estoppel and even appears to have expanded one category of the estoppel, known as proprietary estoppel by encouragement.
Factual background
The appellant, Mrs Arfaras, is the mother-in-law of Mr Vosnakis, the respondent. Mrs Arafas’s daughter (Mrs Vosnakis) died in 2012. Mrs Arfaras held a burial licence for two adjacent cemetery plots. She and her son in-law had several conversations regarding burial arrangements, during which they agreed that Mrs Vosnakis would be buried in one of the two adjacent plots. Mrs Arfaras also offered to transfer the burial licence to Mr Vosnakis so he could, in time, be buried next to his late wife. Mr Vosnakis, as administrator of his late wife’s estate, exercised the right to have her remains interred in one plot. However, Mrs Arfaras later declined to transfer the burial licence. Mr Vosnakis then brought proceedings to compel the transfer of the burial licence.
