Dear all,

This week's decision of the NSWCA in Arfaras v Vosnakis [2016] NSWCA 65 may be of interest for its treatment of the doctrine of consideration and its novel application of equitable estoppel. The plaintiff caused his late wife's body to be interred in a double burial plot controlled by his mother in law (the defendant), in reliance on the defendant's promise to transfer her rights in relation to the plot to the plaintiff so that his remains could in due course be buried alongside those of his late wife. When the defendant resiled from her promise, the plaintiff sought to enforce it by way of contact or equitable estoppel. He failed in contract and succeeded in estoppel at first instance and the decision was upheld by the NSWCA.

At the Contracts in Commercial Law Conference in Sydney in December some of us were discussing the question whether the basis of the decision in Dillwyn v Llewelyn (1862) 4 De GF & J 517, 45 ER 1285 was contract or proprietary estoppel. In Australia, at least, Dillwyn v Llewelyn must be understood as a proprietary estoppel case because there was no quid pro quo relationship between father's promise to transfer the land to the son and the expenditure incurred by the son in building on the land. Similarly, in Arfaras v Vosnakis the NSWCA held that there was no relationship of quid pro quo between the defendant's promise to transfer the licence and any promise by the plaintiff to allow his wife's remains to be buried in the plot. They were not 'mutually dependent promises' (Ward JA at [48]) and so the bargain aspect of the consideration requirement was not satisfied. The same problem arose if the defendant's promise was seen as an offer of a unilateral contract.

The question, then, was whether the plaintiff had made out 'a case of proprietary estoppel by encouragement of the type considered in Dillwyn v Llewelyn' (at 71]). The NSWCA upheld the conclusion that he had. In reliance on the defendant's promise to transfer the burial licence, the plaintiff lost the opportunity to fulfil his wish that his own remains were buried with those of his wife. Of course he could not bind his executors to bury his remains in that plot, but he lost 'the comfort of knowing that his executors were in a position to comply with his wishes'. There was some discussion of the possibility of exhumation at first instance, but the CA assumed that the plaintiff had 'effectively exhausted' his 'right of nomination in respect of his wife’s burial place'. 'It was no longer open to him, as a practical matter, to nominate another burial plot over which he would have the benefit of a burial licence in his own name rather than be left to the whims of [the defendant] as to whether she would at some stage honour the promise made to him.' [106].

Whichever way one looks at it, it was certainly a novel form of detriment and an interesting application of equitable estoppel.

With best wishes,

Andrew