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16 Pages Topic Notes Year: Pre-2021

A. What is Estoppel? 3 B. Nature of Estoppel: 3 Circumstances giving rise to Estoppel 3 Different forms of estoppel at Common Law 3 Equitable estoppel is different to CL estoppel 4 Modern expression of Equitable Estoppel in Australia 4 C. CATEGORIES OF ESTOPPEL AT COMMON LAW 5 1. Estoppel by Record/ Judgment (CL) 6 (a) Issue Estoppel (issues of fact or law) 6 (b) Res Judicata (“res judicata pro veritate accipitur”) (cause of action) 6 (c) Anshun estoppel (claim/defence a party unreasonably failed to raise in earlier proceedings) 6 2. Estoppel by Writing or by Deed (CL) 6 3. Estoppel by Conduct (or ‘In pais’) 6 (a) Ordinary Common Law Estoppel 7 (b) Common Law Estoppel by Convention 7 (c) Estoppel by Representation 7 D. EQUITABLE ESTOPPEL 8 Proprietary Estoppel in Equity 8 Merging of Promissory and Proprietary Estoppel? 8 Fusion between CL and Equitable Estoppel? 9 E. Proprietary Estoppel; Classification: 10 (i) Proprietary estoppel by encouragement 10 (ii) Proprietary estoppel by acquiescence 11 Remedies 11 F. PROMISSORY ESTOPPEL 12 A. History of equity’s jurisdiction in the nineteenth century to enforce promises 13 Early History 13 Representations of future intention enforced in equity 13 B. How it was lost – Jorden v Money in the House of Lords 14 C. Its resurrection in a limited form under English law 15 D. The landmark decision of Waltons Stores (Interstate) Ltd v Maher (1988) and its impact for promissory estoppel under Australian law. 16 Brennan J’s probanda: Waltons Stores 17 E. How it was applied as a cause of action leading to the creation of new rights 17 F. Saleh v Romanous & its implications for NSW and the common law. 17


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