Thanks very much to Andrew for
highlighting this case.
As one of people who was part of the conversation on consideration
in Sydney, and who took a wider view of it than Andrew does, I
thought I might respond. My position on the consideration issue in
Arfaras is that it all depends on whether the mother-in-law
(A), in promising V, 'If you bury your wife/my daughter in the
plot beside my mother, then I'll give you the rights to be buried
in that plot as well' was trying to persuade or induce V to bury
his wife in the plot beside A's mother - in the same way that in Carlill
v Carbolic Smoke Ball Co, the smoke ball company was
trying to induce people like Mrs Carlill to buy their product when
they promised 'If you catch flu using our smoke ball, we will pay
you £100' or in the same way that in Shanklin Pier v Detel,
Detel were trying to induce Shanklin Pier to use their paint in
repairing the pier when they assured Shanklin Pier that 'Our paint
is great'. I think there was enough evidence here to find that A was
trying to induce V to use the plot beside the plot where A's
mother was buried when she made her promise to V, and that V's
using that plot therefore amounted to consideration for A's
promise: (1) A said 'I won't take no for an answer' (para [8]);
and (2) A planned to be buried in her mother's plot, which would
mean that if V went along with her proposal, A would end up being
laid to rest beside her daughter.
On the estoppel point, the conduct of the mother-in-law in Arfaras
is so shocking and offensive that I think Arfaras is a
great case for people who might regret the expansion of the law on
equitable estoppel in Australia, and the current scope of the law
on proprietary estoppel in the UK, to reflect on and consider how
they would want the law to deal with the case had the promise in Arfaras
been genuinely gratuitous. Suppose after P's wife dies, P's best
friend D says to P, 'I'm devastated for you. You have so much on
your plate, and funerals are so expensive at the moment, I want to
do this for you - I have a burial plot that my wife and I were
planning to be buried in, but I'll give it you so that your wife
can be buried there now, and you when your time comes. My gift to
you. We'll sort out the formalities later on.' On my view of
things, P's burying his wife in D's plot would not amount to
consideration for D's promise to give P the plot because D is not
trying, by making that promise, to persuade or induce P to bury
his wife in that plot - if P had responded to D, 'That's so good
of you to offer, but I already have a burial plot lined up', D
wouldn't have minded at all. If, after the funeral, P and D fell
out (perhaps P got drunk a few nights later and made a pass at D's
wife) and then D refused to keep his promise to transfer the
rights over the burial plot to P, I think the case for giving P
some kind of remedy against D would be very strong.
All best wishes,
Nick
On 10/04/2016 03:10, Andrew Robertson wrote:
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