Proprietary Estoppel in Australia: Two Options for Exercising Remedial Discretion

Abstract

Giumelli v Giumelli (1999) 196 CLR 101 indicates that, where A successfully makes out a proprietary estoppel claim, courts must positively exercise two distinct sets of remedial discretion. The first concerns whether expectation relief is appropriate or whether it is a disproportionate remedy in view of the detriment A suffers. If expectation relief is held to be justified, a second set of discretion obliges judges ‘to consider all the circumstances of the case’, including ‘the impact upon relevant third parties’, to decide whether to enforce A’s expectations in specie or to provide a monetary award (whether or not coupled with a charge or lien). Upon closer inspection, the decision in Giumelli and the principle it propounds are deeply ambiguous. This article notes the problems with that judgment, both as to principle and as to its application on the facts. It then introduces a fundamental analytical proposition, concerning the relationship between different types of private law remedies and discretion. In the light of this discussion, the article explores the two options available for the future development of proprietary estoppel in Australia. Ultimately, the present state of the law in relation to the exercise of remedial discretion is unsustainable, and a choice of approach urgently needs to be made.