A review of the common law and equitable Estoppel Doctrines within Australian law.
Written in 2008; 3,553 words; 0 sources; MLA; $ 99.95
Paper Summary:
The paper notes that the Estoppel doctrine is in a state of flux, with differing judicial proponents arguing over the existence and need for 'but one doctrine of Estoppel by conduct' within the Australian judicial system. This paper establishes the origins and elements of the common and equitable Estoppel and illustrates that they are, and should remain, separate. The paper also defines the posited unified doctrine, and the subsequent inconsistencies and issues thwarting its judicial acceptance. These include significant differences between the common and equitable Estoppel by conduct doctrines , their underlying purpose, and their remedial application. The paper submits that, until proponents of the unified doctrine refine and reconcile these differences, this doctrine remains largely theoretical, lacking any real judicial consistency.
The paper uses MLA style footnotes but does not include a works cited page.
Outline:
Introduction
Development of Common Law Estoppel
Development of Equitable Estoppel
The Unified Doctrine of Estoppel
Estoppel as an Evidentiary Remedy, or a Separate Cause of Action
The Underlying Purpose of the Two Doctrines
Remedial Differences
From the Paper:
"Their honours held that a mere intention to form a legal relationship surpassed the need for a pre-existing relationship , which was further refined in Verwayen , discarding this requirement altogether. In Verwayen's case, the plaintiff was seeking to estopp the commonwealth from raising a grounds of defence which they had represented they would not utilise ; a representation which was relied upon in engaging legal council. Their honours found that no form of legal relationship could be formed, but held that an 'equity' protecting them from this defence remained.The equitable doctrine can also be utilised as a separate cause of action . Justice Mason and Wilson distinguished Holmes J's contention that the doctrine of consideration would be undermined , relying on the notion of 'unconscionability' as permitting intervention and creation of equitable rights."
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