Court dismisses estoppel claim by unreliable discharged bankrupt

Dr William (“Bill”) Garrett pioneered the worldwide development of diagnostic ultrasound to monitor pregnancies in the 1960’s died in November 2015.

In 1957, Bill met and married his wife Nancy, whilst he was studying in England; she too graduated in medicine. They returned to Australia where they jointly specialised in obstetrics and gynaecology and where their three children, Jemima, Tom and Cathy were born.
Bill and Nancy had a very happy marriage and they were closely involved in the activities of all his children. In December 1994, Nancy died suddenly and unexpectedly. Following her death, Bill saw little point in continuing to work and retired from medical practice in 1995. The family had been living in Paddington for some time however in 1998, he moved to another property, in Ormond Street, Paddington. (“the Paddington property”)

Bill’s Will

Bill made a will on in June 2008 leaving bequests to his grandchildren and step-grandchildren; a painting and $200,000 to his friend Jason Gill (‘the plaintiff”). Leaving the residue of his estate equally to his three children.

Jemima Tom and Cathy (“the executors”) obtained a grant of probate of Bill’s 2008 will in February 2016. Jason claims that in 2009 Bill promised that he would leave him the Paddington property in return for caring for him until his death. Jason says he fulfilled that promise and is now entitled to the Paddington property either in contract or under doctrines of equitable estoppel.

To establish an equitable estoppel, the plaintiff must prove that


1) the plaintiff assumed that a legal relationship would exist between them (and in the latter case) that the defendant would not be free to withdraw from that expected legal relationship;
2) the defendant has induced the plaintiff to adopt that assumption or expectation;
3) the plaintiff acts or abstains from acting in reliance on the assumption or expectation; 4) the defendant knew or intended him to do so;
4) the plaintiff’s action or inaction will occasion detriment if the assumption of expectation is not fulfilled; and
5) the defendant has failed to act to avoid that detriment whether by fulfilling the assumption or expectation or otherwise.

The executors deny any such promise was made. Alternatively, they contend that if such a promise was made to Jason, it was not contractual or that Jason either did not rely on it or suffered no detriment as a result. Jason continued to live in the Paddington property after Bill’s death.

Jason Gill

After Nancy’s death, Bill developed a circle of friends in the Paddington area including Jason Gill. Jason met Bill in 1996; he was lonely after Nancy’s death and was looking for day-to-day companionship. Jason was quick to fill this gap but in the Court’s view, this wasn’t a spontaneous flowering of a generous, mutually supportive and altruistic friendship. Jason saw Bill as a potential source of financial support; obtaining financial advantages soon after their friendship commenced.

Bill advanced (although Jason disputes this amount) loans of over $160,000. The Court found that Jason was unreliable in almost every part of his life. His failure over 10 years to repay more than a small part of these substantial loans is one marker of that unreliability.

Jason was declared bankrupt on 11 April 2003. The Court concluded that Bill was unaware Jason was bankrupt as nothing in Bill’s papers or the form of the loan records he created with Jason indicated that he was aware of the bankruptcy. Similarly, Bill never told his children that Jason was bankrupt. In late 2003 Jason moved into the Paddington property.

Jason alleges in the alternative that if the claimed promise to him is not established he should be given restitution for the value of the care services he provided to Bill in his declining years. The executors argued that the benefits Jason derived from his living arrangements at the Paddington property, together with advances and other benefits in that Bill conferred on Jason exceed the market value of any casual care services provided.

Finally, and further in the alternative, Jason claims as an “eligible person” he is entitled to make a claim under the Succession Act on the basis that he lived in the same household as Bill and was dependent upon him an order for further provision out of the estate under, s 59 Succession Act 2006.

The Executors defence

The executors contend further that, because of Bill’s declining capacities at the time of the alleged promise, the Court should set aside any contract based upon these promises that Jason may have made with Bill in 2009, either due to unconscionable conduct, undue influence or in the exercise of the Court’s Contracts Review Act 1980 jurisdiction.

The executors have filed a crossclaim. If the plaintiff’s claim to an interest in the Paddington property is unsuccessful, the executors crossclaim against Jason Gill for possession of the property.


In the alternative, if Jason is successful in his claim for the Paddington property, they claim restitution for various expenditures upon and improvements they made to the property in the belief that the property was theirs.

The Judgment

Jason’s claim failed in its entirety. The Court held that no contract existed between Jason and Bill, therefore the claim in equitable estoppel fails. Bill gave Jason a legacy of $200,000 so any claim in restitution fails. Similarly, the will made adequate provision for Jason therefore further provision out of the estate of the deceased under the Succession Act is not warranted.

On the cross-claim, judgment for possession of the Paddington property entered in favour of the executors and Jason found in breach of fiduciary duty and to have engaged in unconscionable conduct concerning the deceased.

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