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Stephens v Kwai [2023] FJHC 613; HBC264.2012 (28 August 2023)

IN THE HIGH COURT OF FIJI
IN THE WESTERN DIVISION
AT LAUTOKA

Civil Action No. HBC 264 of 2012

BETWEEN:

HENRY STEPHENS of Korolevu, Coral Coast, Service Station Operator.

Plaintiff

AND:

SANDRA MAY LOUISE KWAI of 6 Chamberlain Street, Narwee, NSW 2209 Australia, Domestic Duties as the Executrix and Trustee of the ESTATE OF SYLVIA MARY STEPHENS a.k.a. SILIPA TAGICI late of Howell Road, Suva, in the Republic of Fiji, Businesswoman, Testate

Defendant

Appearances: Mr. S. Nand for the Plaintiff
: Mr. G. O’ Driscoll for the Defendant
Date of Trial: 01 to 03 July 2019
Date of Decision: 28 August 2023

JUDGMENT

INTRODUCTION

1. Henry Stephens is the only child of Sylvia Mary Stephens (“Sylvia”) and Wilfred Stephens (“Wilfred”). Sylvia died on 07 May 2010. Wilfred had pre-deceased Sylvia. Henry has three older half-sisters who are Sylvia’s children from a previous marriage. They are Sandra, Darlene and Caroline.
   
2. After Sylvia died, Probate Number 50968 (“PEX 1”) was granted to Sandra pursuant to Sylvia’s Last Will & Testament dated 26 July 2004 (“Will”). In the said Will, Sylvia did make provisions for Henry, Sandra, Darlene and Caroline.
   
3. Henry is aggrieved. He had expected Sylvia to leave him all the properties. That expectation is based four things.
   
4. Firstly, he alleges that Sylvia had promised him that “all this will be yours one day”. Secondly, the condition of that promise is that he work and serve in the family business. Thirdly, he did work the family business. Fourthly, the income from the family business was actually used to purchase all the properties which constitute Sylvia’s estate.
   
5. Henry does not challenge the validity of the Will. His case, rather, is that Sylvia had repeatedly uttered the promise to him over the years while she was alive. He relied on the promise. He organized his life on the basis of the promise. As it turned out, he did so to his detriment when Sylvia failed to honor the promise in her Will.
   
6. Henry claims an equitable interest in estoppel to all the properties which Sylvia allegedly promised him and which Sylvia has bequeathed to Sandra, Darlene and Caroline.
   
7. Flowing from that, Henry asserts that the personal representative of Sylvia’s estate (Sandra) should be estopped from asserting the Will, and from distributing the estate in terms of the Will. In lieu thereof, the Court should declare that Sandra is holding these properties on constructive trust for Henry.
   
8. On the other hand, Sandra asserts that Sylvia’s estate should be distributed in terms of the Will. The Will has been solemnly proven and the document represents or contains Sylvia’s testamentary wishes. These wishes are paramount.
   

SOME COMMENTS

9. This case rests on what Sylvia purportedly told Henry when Sylvia was alive. Sylvia died in 2010. She is not alive to give her side of the story.
   
10. Wilfred would have been the only other person to give some useful perspective on what Sylvia actually promised Henry. Wilfred did predecease Sylvia. Had Wilfred been alive to testify, I would have been wary of the possibility that his evidence might be tailored to suit his biological child Henry to the exclusion of his step daughters, namely Sandra, Darlene and Caroline.
    
11. Having said that, I must also exercise caution in assessing Henry’s evidence. I keep in mind that he purports to give primary evidence of a supposed promise by the deceased Sylvia, of which promise Henry is the sole beneficiary - to the exclusion of his half siblings.
    
12. In assessing the credibility of a witness who gives secondary evidence in any claim based on an assurance by a deceased person, a civil court is well advised to look for corroboration.
    
13. McMillan J in Re Mahoney [2015] VSC 600^[1] said thus at paragraph 151:
    
    151. Much of the evidence in this proceeding concerned events occurring many years ago. There are obvious difficulties with recollections of a witness, as well as a tendency for a witness to tailor the evidence to suit his or her case. Where the witnesses rely on their recollections, any contemporaneous documents are of assistance in determining the facts as they usually provide more accurate information that the recollections of witnesses. Where there is a difference between the oral evidence and a contemporaneous document, I prefer the documentary evidence as being more reliable, particularly where it has been prepared contemporaneously and written by a person who has no interest in mis-stating the facts.
         
14. In New South Wales Supreme Court case of Weeks v Hrubala [2008] NSWSC 162 at [20], Young CJ said:
    

In a case of a person suing a deceased estate the court normally looks for some sort of corroboration: see Re Hodgson [1885] UKLawRpCh 249; (1886) 31 Ch. D 177 even though, as a matter of law, corroboration is not absolutely necessary. Experience, however, shows that when plaintiffs are making a claim against a deceased estate the court is wise to look for corroboration.

15. In the Australian High Court case of Plunkett v Bull [1915] HCA 14; (1915) 19 CLR 544, Isaacs J said:
    

...... and undoubtedly it is established that in cases of this sort the Court scrutinizes very carefully a claim against the estate of a deceased person. It is not that the Court looks on the plaintiff's case with suspicion and as prima facie fraudulent, but it scrutinizes the evidence very carefully to see whether it is true or untrue.

16. The Court in Plunkett went on to say that verified contemporary documents are useful to assist the court in scrutinizing such a claim (see also Wetton (as Liquidator of Mumtaz Properties) v. Ahmed and others [2011] EWCA Civ. 61).
    

TRIAL

17. The trial of this case happened on 01 to 03 July 2019. The following witnesses gave evidence for the plaintiff:
    

18. For the defendant, the following two witnesses gave evidence:
    

BACKGROUND

19. Sylvia was quite an enterprising lady. She was involved in various some small business ventures around Korolevu in the 1970s with some friends and associates.
    
20. In 1986, she bought out the shares of her business partners in two small business ventures, namely a service station (“Korolevu Service Station”) and a small convenience store (“Korolevu Store”) attached to the service station. She and her business partners had been operating these businesses since 1978. They ran these businesses on a rented property.
    
21. In the year 2000, Sylvia bought the above property. This purchase was financed through the FDB indigenous scheme (she was an i-taukei woman, registered in the VKB, with some Chinese ancestry).
    
22. In 1986, at the time when Sylvia became the sole owner of the Korolevu Service Station and the Korolevu Store, Henry was 16 years old. He left school that year without completing High School. He was not particularly good academically. Henry did not say in his evidence that he left school because he was told to do so in order to look after the Korolevu businesses. Rather, the impression I got from his evidence was that he left school because he was not good at school work.
    
23. Sandra (DW1) said Henry was a little wayward at the time, much to the disapproval of Wilfred his strict Catholic father. However, Henry was closer to Sylvia.
    
24. Upon leaving school, with no tertiary or trade qualification, and without having completed High School, Henry was immediately engaged to help run Sylvia’s Korolevu Service Station and Korolevu Store. There, he worked hard, learning the tricks of the trade so to speak from his father and mother.
    
25. At some point, while Henry was in Korolevu, he impregnated a young lady who was teaching in a Catholic School nearby. He would later marry her sometime after the birth of their first child.
    
26. When Henry’s wife discovered that she was pregnant, she immediately resigned from her job and went to Lautoka. She did so largely in order to avoid the embarrassment and scrutiny of the Korolevu Catholic community. Wilfred too was most upset. He took the high moral ground on such things.
    
27. It appears that there was some disagreement between Wilfred and Henry about the pregnancy. The young Henry followed his heart and went after his wife to Lautoka. In due course, a baby boy, Joseph (PW2), was born to Henry and his wife in Lautoka. Henry resolved that he would stay in Lautoka and make a life for himself and his young family. He was around twenty years old at the time and was unemployed.
    
28. Meanwhile, Sylvia had been trying to locate Henry. She wanted him back in Korolevu to look after the business.
    
29. In 1990, shortly after the birth of Joseph, Sylvia and Sandra managed to track Henry down to his wife’s family-residence. They lived in Kara Punja in Lautoka. There, Sylvia persuaded Henry to return to Korolevu to run the family business. According to Henry, Sylvia did promise Henry that “all this will be yours one day”. Henry said that he was persuaded by Sylvia’s promise.
    
30. Henry did return to Korolevu to work on the family business. He was around twenty-one at the time. His wife and their newly born son accompanied him. They lived in Henry’s parents’ house.
    
31. After the first child, Henry and his wife had two other children. They continue to live in Korolevu to this day. The two elder children have left the property to pursue employment and studies abroad and in Suva.
    

ISSUES

32. The questions which I must answer in order to determine this case are as follows:
    
    • (i) did Sylvia promise Henry that she would give him all her properties?
      
    • (ii) did Henry act in reliance on Sylvia’s promise? Was it reasonable for Henry to rely on Sylvia’s promise? Did Sylvia know or intend that henry would rely on her promise to him?
      
    • (iii) did Henry alter his position and/or suffer detriment as a result of his acting in reliance on Sylvia’s promise.
      

THE PROMISE - “THIS WILL ALL BE YOURS ONE DAY”

33. Henry’s evidence is that Sylvia and Wilfred promised him many years ago when he was still young that he would inherit all the family properties. That promise was continually reaffirmed to him (Henry) in one way or another through the years.
    
34. Wilfred always impressed upon him the importance of hard work, and that in order to be secure in life, he needed to acquire property. Sylvia also said words to the same effect. Henry said that Sylvia repeatedly told him that:
    

“This will all be yours one day”.

35. Henry suggests in his evidence that there was a common understanding between him and his parents that all properties acquired by them would eventually pass to Henry one day.
    
36. He responded to that promise and common understanding by working very hard and by devoting himself to the family business. He said he worked the family business in Korolevu in Sigatoka for many years since he returned there from Lautoka in 1990. His evidence is that he did so in the reasonable expectation that “all this” would be passed down to him one day.
    
37. Henry says that it was through his hard work and perseverance that the Korolevu Service Station and the Korolevu Store thrived. From the time he returned to Korolevu from Lautoka, he began to order his life around Wilfred’s and Sylvia’s promise, and on the common understanding between them. Henry asserts that the words “this will all be yours one day” conveyed to him the message that Sylvia, would leave all her properties to him, if he were to agree to run and manage the Korolevu business in return. In that regard, Sylvia’s words were in the nature of a testamentary promise – which she has clearly reneged on.
    
38. Joseph (PW2) said he spent a good part of his early childhood with his grandfather (Wilfred) in Korolevu. He too assisted in the family business. When Joseph was little, Wilfred continuously counselled him about hard work and being secure. Joseph did not say anything about Sylvia ever saying anything to him to that effect.
    
39. Joseph’s evidence appears to have been tailored to corroborate Henry’s. At the material time in question, Joseph would have been very little. I question his recollection of words uttered many years ago when he was still very little – and his interpretation of their meaning.
    
40. In addition to the above, Joseph’s evidence would appear to be rather self-serving in the following regard. Joseph is Henry’s eldest child and only son. He would be one of Henry’s successors in the event of Henry’s death and is likely to benefit substantially from Henry’s estate. While I have tried to remain open to the possibility that Joseph may, yet, be telling the truth on this aspect of the case, I find that, objectively, Joseph’s evidence does not really add to or deduct from Henry’s case. He did strike me though as one who is caught in the middle of an awkward situation between his father and his aunty.
    
41. The defendants’ witnesses were in no position to refute the allegation that Sylvia did promise Henry that “this will all be yours one day”. Henry’s sisters had already left the house and were living their own lives away from Korolevu and could not have been privy to what went on daily in Korolevu.
    
42. Having said that, I note that, while Henry appeared to speak of a common understanding between Wilfred, Sylvia and he, he (Henry) did not say that his sisters were included in that common understanding – nor did Sandra or Darlene say anything to that effect.
    
43. In some Fijian families, there is a tendency to favour a male heir than a female heir in their succession plan. On the same token, it is not unthinkable that any modern-day parent or grandparent would want to leave a legacy for their daughters and granddaughters as well. When I say “modern” in this context, I include parents of Sylvia’s generation and vintage.
    
44. In this case, I am mindful that I am here dealing with Sylvia’s testamentary intentions as expressed in her last Will against the oral testamentary promises she allegedly made in Henry’s favor before the Will.
    
45. What remains is the question – what exactly did she promise Henry?
    
46. I gather from the testimony of Sandra and Darlene that Sylvia was particularly close to them (her daughters). Sylvia travelled regularly to Australia to visit and stay with Sandra. She was also in constant contact with Darlene and Caroline. Sandra also said in her evidence that Sylvia was particularly close to Henry – and that Henry was closer to Sylvia than he was with Wilfred. This gives me some perspective.
    
47. I believe Henry was promised some inheritance. However, I believe that he was only promised the Korolevu business and property. I do not believe that Henry was promised the Korotogo and Howell Road properties as well. I believe that the words “all this will be yours one day” was a reference to the Korolevu property and business. I explain this further in paragraph 59 below.
    

DID HENRY ACT IN RELIANCE ON SYLVIA’S PROMISE? WAS IT REASONABLE FOR HENRY TO RELY ON SYLVIA’S PROMISE? DID SYLVIA KNOW OR INTEND THAT HENRY WOULD RELY ON HER PROMISE TO HIM?

48. It is not in dispute that Henry worked hard at the family business in Korolevu, and that part of the income from that business was applied to service the loans out of which all the properties were purchased.
    
49. The Korolevu property was purchased by Sylvia for over $120,000. According to Henry, FDB lent $90,000-00 towards this purchase. The balance was paid by Wilfred. At the time, Wilfred was Manager West for the Department of Post & Telecommunications.
    
50. The Korolevu business was able to generate enough income and profit to pay off the FDB mortgage over the property, after operating expenses. In fact, the FDB loan was serviced entirely from income from the service station.
    
51. According to Henry, the loan was also serviced partly from deductions from Wilfred’s salary. However, there is no documentary evidence to support this. Even if this were true, it is not suggested by Henry that Wilfred had an equitable interest in the property which should pass to Henry – and – in any event – Sylvia did bequeath the Korolevu property to Henry in her Will.
    
52. After purchasing Korolevu in 1986, Sylvia went on to purchase other properties. In 2002, she purchased a property in Korotogo from a Mrs. Jean Maybin. In 2003, just a year or so later, Sylvia purchased another property in Howell Road in Suva. The Korotogo purchase was financed through the same FDB indigenous loan scheme. However, the Howell Road purchase was financed by the ANZ Bank. It is not in dispute that both loans were serviced from income from the Korolevu business. It is also not in dispute that the Korolevu business was being maintained solely by Henry and his wife and children.
    
53. Incidentally, the Korotogo property was sold some years ago to a third party, namely a Mrs. Chris Saumaiwai, and the proceeds from that sale are currently being held in the trust account of Maharaj Chandra & Associates. There is an injunction in place to stop the distribution of that money until this case is resolved.
    
54. Under Sylvia’s Will, the proceeds from the sale of the Korotogo property would benefit Sandra, Darlene and Caroline. However, Henry seeks a declaration that a constructive trust therefore exists in his favor over the said monies which is $................. in total.
    
55. Henry said in chief that he relied on Wilfred’s and Sylvia’s promise and worked the family business in Korolevu. The business was fairly successful and because of that, Sylvia would go on to acquire other properties. Income from the business was applied to service the other bank loans which financed the purchase of the Korotogo and Howell Road properties. In fact, the Korolevu property was also paid off from income from the Korolevu Service Station.
    
56. The Korolevu business as well as the land on which the business is operated, was purchased by Sylvia. She remained owner throughout her life. The assets now form part of her estate.
    
57. In essence, what Henry alleges is that Sylvia made a testamentary promise to him that all the properties would one day pass to him. He relied on that promise to his detriment.
    
58. It is not in dispute that Henry’s sisters, in particular Sandra and Darlene, had their fair share in working the family business before they moved out to find their own way in life.
    
59. However, I ask the question, did Henry act in reliance on the promise and whether it was a reasonable reliance?
    
60. As I have said, I have no doubt that Sylvia wanted Henry to stay in Korolevu and work and manage the family business. I find that the particular property which Sylvia actually had in mind when she promised Henry that “this will be all yours one day” – was the Korolevu property and businesses.
    
61. Having said that, I reject the suggestion that Sylvia actually promised Henry that she would leave him all the properties. My rejection of that suggestion stems from the following:
    
    • (i) the words which Sylvia spoke are not unequivocal, as far as Henry’s evidence is concerned. Henry did not say that Sylvia was referring in particular to the Howell Road, the Korotogo or the Korolevu properties. What is clear though is that the words were always spoken to Henry in Korolevu.
      
    • (ii) according to Henry, Sylvia first made the promise to him when she visited him in Lautoka in 1990. At the time, Sylvia only had the Korolevu properties. She had not bought any of the other properties. Clearly then, the very first promise spoken by Sylvia to Henry would have been about the Korolevu properties only. There is no clear evidence to suggest that subsequent words spoken by Sylvia to Henry extended that testamentary promise to include other properties.
      
    • (iii) at the time (that is, in 1990 and in Lautoka), Henry would have been barely past twenty (20) years of age, had just had a child (PW2) with his then partner (now wife), was just starting a family, had left school with no tertiary or trade qualification, had no immediate job (or career prospect), and was living with his then partner’s (now wife) family in Kara Punja. I am aware that Kara Punja is an informal settlement in Waiyavi in Lautoka.
      
    • (iv) following from (iii) above, it is hard to see that Henry was “giving up” anything in reliance on Sylvia’s promise. If anything, he was being given a leg up.
      
    • (v) Henry’s evidence seems to concentrate a lot on Wilfred’s promise rather than Sylvia’s promise. The same is certainly true of Joseph’s evidence. In this case, I am only concerned about the words which Sylvia spoke. Sylvia, as I have said above, was close to all her children. The case may have been different with Wilfred who, though was strict on Henry, was likely to favor Henry more as Henry was his only biological child.
      
62. Against all the above, it is noteworthy that Sylvia did leave the Korolevu property and businesses to Henry in her Will. When all that is considered together with the promises she made to Henry as recounted by Henry, the only conclusion to draw is that all she ever promised Henry were the Korolevu property and businesses.
    
63. As I have said, it is not such a far-fetched thing to imagine that Wilfred and Sylvia would have encouraged Henry and even Joseph to work hard on the family business. It is also not a far-fetched thing to imagine that both Sylvia and Wilfred would have uttered words to the effect of a testamentary promise to Henry, that one-day, he would come to own their property. Such words, after all, are part and parcel of the socialization of children by their parents.
    
64. However, to attract an estoppel, the conduct or representation in question must be clear and unequivocal. As I have said above, I am of the view that Sylvia’s conduct or representation – as described by Henry – were not clear as to what property or properties she intended to benefit Henry. The following question was asked of Henry during examination in chief:
    

Q: Now who said that this was all going to be yours one day?

A: My parents. It has been a daily routine where every time he goes up he said; “Remember this is all going to be yours one day. That’s why you have to do the work.” I mean I sacrificed my life. I started here when I was 16 years old.

65. It is clear to me from this evidence that Henry was talking about the Korolevu property and Korolevu businesses. The fact is, Sylvia did bequeath the Korolevu property and businesses to Henry in her Will. It would appear then that what Sylvia had meant by her testamentary promise to Henry were the Korolevu property and Korolevu businesses. She did keep her promise.
    
66. I reiterate that it is not such a far-fetched thing to imagine that any parent would want to leave an inheritance in favor of his or her daughter(s).
    
67. For Henry’s work on the Korolevu businesses, Sylvia rewarded him in two ways. First she paid Henry his full wages. Second, Sylvia actually bequeathed Henry the Korolevu property.
    

DID HENRY ALTER HIS POSITION AND/OR SUFFER DETRIMENT AS A RESULT OF HIS ACTING IN RELIANCE ON SYLVIA’S PROMISE.

68. Henry appears to run his case on the theory that he gave up his plans to return to Korolevu from Lautoka to run the Korolevu Service Station and the Korolevu Store. Through his efforts, the service station and the store did well as a business. The income from that business would service all FDB loans as well as the ANZ loan through which all the other properties were later acquired.
    
69. I believe Sylvia pursued Henry to Lautoka out of concern as a mother. I have no doubt that she wanted Henry to be involved in the family business back in Korolevu. I also believe that she wanted Henry to bring his family back to Korolevu with him. I believe she acted out of natural love and affection as a mother and wanted Henry to be involved in the business.
    
70. At the time, the only property that Sylvia had was the Korolevu Property. According to Henry’s evidence, it was only after he returned to Korolevu that discussion began about acquiring a neighboring property (formerly Hing Hing).
    
71. This means that, if at all a promise was ever made to Henry in Lautoka that he would inherit Sylvia’s property if he should return to Korolevu to work the service station, then, at that particular point in time, the only property that Henry could reasonably expect Sylvia to have been referring to was the Korolevu Service Station and the Korolevu Store. As it turns out, and as I have said above, these are the very properties which are bequeathed to Henry in Sylvia’s last Will.
    
72. I accept Henry’s evidence that back at Korolevu, it was impressed upon him from time to time by Wilred and Sylvia that he should work hard in the business and that if he wanted something, he should work for it.
    
73. I have no doubt that Henry worked very hard and that through his hard work, the Service Station business was able to generate profit income which was then applied to service other loans which were used towards the purchase of the Hing Hing store, the Korotogo property, and also the Howell Road property.
    
74. I accept that at the time these other properties were acquired, Sandra, Darlene and Caroline were already – for a long time by then – not involved in the Korolevu business.
    
75. I also understand Henry’s frustration that his sisters should at all benefit from the estate, because all that was acquired by Sylvia after the Korolevu property was acquired through Henry’s hard work.
    
76. However, I must balance this out with the fact that at all material times, the Korolevu Service Station as well as all the other properties were registered under Sylvia’s name. By all accounts and purposes, these properties, including the income earned from the service station, belonged to Sylvia.
    
77. When asked what he wanted from the Court, Henry said:
    

Well my parents always taught me. If you want something you work for it. Put all your effort into it you achieve it and that’s what I have been told from when I got back and what I want. If you want something you work towards it. I mean since I have been doing all that and he said this is going to be all yours one day. I want the Court to transfer that property into my name.

78. That Henry contributed to the business is unrefuted. His sisters also did contribute in the running of the business in the earlier stages when Henry was away in boarding school in Levuka. The question is whether Henry’s contribution is sufficient to raise an equitable interest in his favor over all the properties. The answer to this depends on how his contribution may be contextualized against Sylvia’s promise. In other words, it must be shown firstly - that Henry’s contribution (i) had some element of “detriment” in it, (ii) which he “suffered” willingly, (iii) in expectation that he would inherit all the properties and secondly, that the promise was actually made by Sylvia – or at least – that Sylvia did lead Henry to believe that he would inherit all the properties – if Henry agreed to work the family service station.
    
79. As a starting point, the position in law is that no equity arises to raise a proprietary estoppel unless Henry has acted to his prejudice or detriment.
    
80. Prejudice can be in the form of a direct expenditure or a loss of an opportunity or the giving up of an alternative career or lifestyle.
    
81. As I have said, Henry’s evidence is that he had laboured all those years in the expectation that “all this would be his one day”.
    
82. However, as I have said above, he laboured not in vain because he was rewarded in two ways.
    
83. Firstly, he was paid his full salary. The evidence is clear that Henry was paid his due wages for all the work that he had put in. In cross-examination he was referred to the estate accounts which confirmed that he was paid over $95,000 in wages for 2010 and 2011.
    
84. Secondly, Henry is bequeathed the Korolevu property and businesses in Sylvia’s Will.
    
85. Against these two factors, it is hard to see how Henry could claim that he suffered detriment in reliance of Sylvia’s promise.
    
86. In addition to the above, there is no evidence to suggest that Henry did “give something up” when he made the decision to leave Lautoka and return with his family to Korolevu. There is no evidence to suggest that Henry had to give up a career alternative, or tertiary studies when he took heed of Sylvia’s advice and promise and when he continued to look after the Korolevu businesses.
    
87. The fact is, Henry left school at sixteen, is not well educated and does not have a trade qualification. Hence, when he took heed of Sylvia’s advice and returned to Korolevu to look after the family business, Henry was being given a leg up so to speak, as I have said above.
    

THE LAW

88. I start by reiterating the words of Brennan J in Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7; (1988) 164 CLR 387:
    

A non-contractual promise can give rise to an equitable estoppel only when the promisor induces the promisee to assume or expect that the promise is intended to affect their legal relations and he knows or intends that the promisee will act or abstain from acting in reliance on the promise, and when the promisee does so act or abstain from acting and the promisee would suffer detriment by his action or inaction of the promisor were not to fulfil the promise.

89. Generally, the principle of equitable estoppel is aimed at protecting one (A) who suffers detriment as a result of his reliance on a promise made by another (B) and which promise (B) has reneged upon or failed to honor. The Courts will grant a relief to redress the detriment suffered by (A) as a result of (A)’s act to change his position in response to (B)’s promise.
    
90. As Kaye J said in Harrison v Harrison [2011] VSC 459:
    

....in the case of promissory estoppel, the relief fashioned by the court is principally directed to redressing the detriment arising from the change of position made by the promisor in reliance on the promise.

91. In Legione v Hately [1983] HCA 11; (1983) 152 CLR 406, the Australian High Court reiterated that an alleged promise or representation must be clear and unambiguous before it can found a claim in equitable estoppel:
    

10. First, it has long been recognized that a representation must be clear before it can found an estoppel in pais ...... In Western Australian Insurance Co. Ltd. v. Dayton [1924] HCA 58; (1924) 35 CLR 355, at p 375, Isaacs A.C.J., referring to the requirement that a representation must be "unambiguous" if it is to found an estoppel in pais said:

"The word 'unambiguous' is explained by Kay L.J. in Low v. Bouverie (1891) 3 Ch, at p 113, the word and its explanation occurring on the same page. The Lord Justice says: 'It is essential to shew that the statement was of such a nature that it would have misled any reasonable man, and that the plaintiff was in fact misled by it'. Bowen L.J. says (1891) 3 Ch, at p 106: 'It must be such as will be reasonably understood in a particular sense by the person to whom it is addressed'. This is confirmed in George Whitechurch Ltd. v. Cavanagh (1902) AC, at p 145 by Lord Brampton and in Bloomenthal v. Ford (1897) AC, at p 166 by Lord Herschell."

The requirement that a representation must be clear before it can found an estoppel is, in our view, applicable to any doctrine of promissory estoppel (see Woodhouse A.C. Israel Cocoa Ltd. S.A. v. Nigerian Produce Marketing Co. Ltd.; China-Pacific S.A. v. Food Corporation of India (1981) QB 403, at pp 429-430 ). In the Woodhouse Case Lord Hailsham of St. Marylebone L.C. (with whose speech Lord Pearson agreed) commented (1972) AC, at p 757:

"Counsel for the appellants was asked whether he knew of any case in which an ambiguous statement had ever formed the basis of a purely promissory estoppel, as contended for here, as distinct from estoppel of a more familiar type based on factual misrepresentation. He candidly replied that he did not. I do not find this surprising, since it would really be an astonishing thing if, in the case of a genuine misunderstanding as to the meaning of an offer, the offeree could obtain by means of the doctrine of promissory estoppel something that he must fail to obtain under the conventional law of contract. I share the feeling of incredulity expressed by Lord Denning M.R. in the course of his judgment in the instant case when he said (1971) 2 QB 23, at pp 59-60: 'If the judge be right, it leads to this extraordinary consequence: A letter which is not sufficient to vary a contract is, nevertheless, sufficient to work an estoppel - which will have the same effect as a variation”

In the Court of Appeal (1971) 2 QB, at p 60 , Lord Denning M.R. had proceeded to refer to the higher standard of clarity required of a promissory representation relied upon to found an estoppel if compared with that required when a representation is put forward as an agreed variation of contract:

" . . . If the representation is put forward as a variation, and is fairly capable of one or other of two meanings, the judge will decide between those two meanings and say which is right. But, if it is put forward as an estoppel, the judge will not decide between the two meanings. He will reject it as an estoppel because it is not precise and unambiguous. There is good sense in this difference. When a contract is varied by correspondence, it is an agreed variation. It is the duty of the court to give effect to the agreement if it possibly can: and it does so by resolving ambiguities, no matter how difficult it may be. But, when a man is estopped, he has not agreed to anything. Quite the reverse. He is stopped from telling the truth. He should not be stopped on an ambiguity. To work an estoppel, the representation must be clear and unequivocal. That is clear from Low v. Bouverie [1891] UKLawRpCh 106; (1891) 3 Ch 82 and Canadian and Dominion Sugar Co. Ltd. v. Canadian National (West Indies) Steamships Ltd. (1947) AC 46." (at p437)

92. I do make a special note at this point that the promises which Sylvia made to Henry are, in effect, “testamentary” promises (though parol only).
    
93. Having said that, I do note that, because a written Will does not take effect until the testator has died, the beneficiaries under a Will obtain no interest in the testator’s property until the testator dies.
    
94. Lord Chancellor Hardwicke in Duke of Marlborough v. Lord Godolphin [1750] 28 All E.R. 41 (H.L.).
    

“[T]he law says that a testamentary act is only inchoate during the life of the testator from whose death only it receives perfection, being until then ambulatory and mutable, vesting nothing, like a piece of waste paper ...”

95. Flowing from the above, it is safe to say that, whatever parol testamentary promise that Sylvia allegedly made to Henry, must be even more “ambulatory and mutable” and revocable.
    
96. The question may be asked, as to whether or not it was reasonable for Henry to have relied on Sylvia’s testamentary promise, if he ought to have known that the promise was revocable? (see for example Attorney General (Hong Kong) v Humphreys Estate (Queen’s Gardens) Ltd [1986] UKPC 58; [1987] AC 114 at 124.
    
97. In Taylor v Dickens [1998] 1 FLR (Eng) 806, it was held that a person could not get relief in a proprietary estoppel case of an oral testamentary promise to leave money by Will unless there was also an assurance by the promisor that she would not revoke her Will.
    
98. However, in Gillett v Holt [2001] Ch 210 at 227, Robert Walker LJ of the English Court of Appeal rejected that proposition as follows:
    

“The inherent revocability of testamentary dispositions ... is irrelevant to a promise or assurance that ‘all this will be yours’. Even when the promise or assurance is in terms linked to the making of a will ... the circumstances may make clear that the assurance is more than a mere statement of present (revocable) intention, and is tantamount to a promise.”

99. In Gillett v Holt [2000] EWCA Civ 66; [2001] Ch 210; [2000] 3 WLR 815, Gillett, worked on Holt’s farm. Holt persuaded Gillett to abandon plans for college and to work for him instead. Holt stated several times that on his death the farm would be left to Gillett. Later, after their relationship soured, Holt executed a Will where he bequeathed the farm to someone else.
    
100. It was argued on appeal that Holt was free to change his mind and that his promise was revocable. However, it was held that Gillett had relied on Holt’s promise to his detriment by agreeing to work on the farm and abandoning the opportunity of bettering himself by leaving school. Robert Walker LJ said at 228:
     

“In the generality of cases that is no doubt correct, and it is notorious that some elderly persons of means derive enjoyment from the possession of testamentary power, and from dropping hints as to their intentions, without any question of an estoppel arising.”

101. Notably, Robert Walker LJ said assurances repeated over a long period, usually before an assembled company on special family occasions could be reasonably relied upon and are probably intended to be relied upon.
     
102. Robert Walker LJ continued at 228 by reference to the Taylor v Dickens where Carnwath J said at 929-930:
     

“I think that homely expression [not to count his chickens before they were hatched] is an apt statement of how, in normal circumstances, and in the absence of a specific promise, any reasonable person would regard – and should be expected by the law to regard – a representation by a living person as to his intentions for his will. Subject to specific statutory exceptions (such as for dependents), the right to decide, and change one’s mind as to, the devolution of one’s estate is a basic and well understood feature of English law. The law allows one to disappoint the expectations of those who have no more than a moral claim on one’s affections, however strong. During the lifetime of the potential testator, that is a risk which anyone seeking to rely on such a representation necessarily faces.”

103. The Fiji Court of Appeal in Kumar v Wati [2017] FJCA 126; ABU0011.2014 (14 September 2017) said as follows:
     

[87] In Greasley v. Cooke [1980] 3 All ER 710 it was held that if clear assurances have been made and detriment has been suffered, it is permissible to assume that reliance has occurred. In Wayling v. Jones [1995] 69 P & CR 170; [1993] EGCS 153 the Court of Appeal looked only for a ‘sufficient link’ between the assurance made and the detriment suffered by the plaintiff, the existence of which would throw the burden of proof onto the defendant to show that there had, in fact, been no reliance.

104. The above is the favoured approach in Fiji, unless there is a different approach favoured by the Fiji Supreme Court which I am not aware of.
     
105. In contrast, in Re Mahoney v Mahoney [2015] VSC 600, MacMillan J reiterated that a reliance must be proved and cannot just be inferred. In other words, a causal connection must be made between the promise and the reliance.
     
106. In Sidhu v Van Dyke, French CJ, Kiefel, Bell and Keane JJ held:
     

Reliance is a fact to be found; it is not to be imputed on the basis of evidence which falls short of proof of fact. It is actual reliance by the promisee, and the state of affairs so created, which answers the concern that equitable estoppel not be allowed to outflank Jordan v Money [(1854) 5 HL Cas 185 at 210, 212–213; 10 ER 868 at 880–881] by dispensing with the need for consideration if a promise is to be enforceable as a contract [The Commonwealth v Verwayen (1990) 170 CLR 394 at 410, 416]. It is not the breach of promise, but the promisor’s responsibility for the detrimental reliance by the promisee, which makes it unconscionable for the promisor to resile from his or her promise. In Giumelli v Giumelli, Gleeson CJ, McHugh, Gummow and Callinan JJ approved the statement of McPherson J in Riches v Hogben that:

It is not the existence of an underperformed promise that invites the intervention of equity but the conduct of the plaintiff in acting upon the expectation to which it gives rise.

107. In Grunt v Great Boulder Pty Gold Mines Ltd; [1937] HCA 58; (1937) 59 CLR 641, Dixon J said of the measure of relief for equitable estoppel generally:
     

It is often said simply that the party asserting the estoppel must have been induced to act to his detriment.

108. As to the basis of the doctrine, Dixon J went on to say as follows:
     

That purpose is to avoid or prevent a detriment to the party asserting the estoppel by compelling the opposite party to adhere to the assumption upon which the former acted or abstained from acting. This means that the real detriment or harm from which the law seeks to give protection is that which would flow from the change of position if the assumption were deserted that led to it. So long as the assumption is adhered to, the party who altered his situation upon the faith of it cannot complain. His complaint is that when afterwards the other party makes a different state of affairs the basis of an assertion of right against him then, if it is allowed, his own original change of position will operate as a detriment. His action or inaction must be such that, if the assumption upon which he proceeded were shown to be wrong and an inconsistent state of affairs were accepted as the foundation of the rights and duties of himself and the opposite party, the consequence would be to make his original act or failure to act as a source of prejudice.

CONCLUSION

109. I am of the view that Henry has not given sufficient evidence to establish an unequivocal promise by Sylvia. In the circumstances of this case, I find that what Sylvia promised Henry when she said that “this will be all yours one day” – were the Korolevu properties and businesses. She did keep that promise and provided for Henry accordingly in her Will.
     
110. In saying that, I am rejecting Henry’s assertion that Sylvia did promise him all the other properties which Sylvia has later bequeathed to Sandra, Darlene and Caroline. Accordingly, Sylvia’s testamentary intentions as expressed in her Will, must prevail.
     
111. In the final, I refuse all the equitable relief which Henry seeks in his statement of claim. Accordingly, I dismiss his claim.
     
112. It follows that the injunction in place which restrains Maharaj and Associates from distributing the proceeds of the sale of the Korotogo property – must now be dissolved, and I do so order and direct accordingly.
     
113. The parties are to bear their own cots.
     

...................................

Anare Tuilevuka

JUDGE

Lautoka

28 August 2023

^[1] Re Mahoney [2015] VSC 600 (30 October 2015) (austlii.edu.au)