Today the High Court of Australia handed down its decision in Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd [2016] HCA 26, available at:

http://www.austlii.edu.au/au/cases/cth/HCA/2016/26.html

The case was decided in favour of the appellant by a 5-2 majority on the basis of principles related to equitable estoppel . Gageler & Gordon JJ dissented and found for the respondent on the basis of principles related to collateral contracts.

The major interest in the decision lies in the judgments of Keane J and Nettle J. Although they agreed on the outcome of the case they disagreed on the test of clarity or certainty in relation to representations that can ground an equitable estoppel claim.

Keane J was of the view that the test for certainty in promissory estoppel cases was higher than for proprietary estoppel cases. For him the test in the former was the same as the test for certainty in cases of formation or variation of contracts. He recognised that the test in proprietary estoppel cases was less demanding. His Honour's views echoed those of Drummond AJA in the earlier Court of Appeal decision in Western Australia of Westpac Banking Corp v The Bell Group (in liq) (No 3) (2012) 44 WAR 1 at 310, although that case was not referred to in his judgment (nor that of any of the judgments of his fellow judges).

Nettle J was of the view that the test for certainty for both varieties of equitable estoppel was the same and that the test was not as stringent as the test for certainty in cases of  formation or variation of contracts.

The joint judgment of French CJ, Kiefel & Bell JJ did not address the issue of certainty.

Peter Radan