O'Brien & Smith Lawyers
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Our firm’s principal, Patrick Smith, is the author of ‘It’s the Law’, a regular column in the Weekly Advertiser. Below you will find links to some of these columns.

‘It’s The Law’ – A reminder to put plans in writing

I recently assisted a client in a claim worth approximately $2,400,000.00 in the County Court. Importantly, this claim was not based on a well-known cause of action and I believe there are likely many people in the Wimmera who have similar potential claims but have not discussed their situation with a lawyer.

Many people have heard of well-known causes of action such as breach of contract or negligence but will not have heard of the cause of action relied on in this case: proprietary estoppel. Estoppel is a difficult are of law to understand but can be used when someone promises something to another person and then does not fulfil that promise. My recent case involved the promise of a gift of substantial farm land from my client’s parents to my client.

My client had worked on the family farm for a period of almost 40 years in reliance on a promise from his parents that he would be given the farm. My client had been promised he would receive the farm over fifty times starting when he was a child. My client left school to work on the family farm where he worked numerous years without being paid for his work.

When my client was around 30 years old his parents left the farm and retired to a new home on the coast. Around the time of his parent’s departure, all the machinery on the farm was transferred into my client’s name and my client was told the farm was his. However, the land remained in his parents’ name. Less than 12 months after leaving the farm my client’s father made the comment to my client “I’ll transfer the land to you now”. My client trusted that the land would be transferred to him as promised and in the following years, my client spent a great deal of money and labour improving the homestead, installing new shedding, silos, water tanks and making other improvements to the farm.

Unfortunately, the transfer of land did not occur and after several years of patiently waiting our client was forced to ask his father when the transfer would occur. Our client’s father informed our client that he wouldn’t receive the farm until his father died. My client was disappointed that his father had changed his mind but accepted this and continued to work on the farm.

My client’s relationship with his father worsened to the point where they stopped speaking to each other. My client was then notified of an event which led him to become concerned that the farm was going to be sold to another farmer in the area. This is when my client sought legal advice and we lodged a caveat on his behalf to prevent the land being sold. The parents challenged the caveat which led to a lengthy trial. At the conclusion of the trial the Judge found in my client’s favour finding that that it would be unconscionable for my client’s parents to not transfer the land to him as promised.

Many people in my client’s position would have thought that they no options to enforce the promise because there was no contract. However, because my client decided to see a solicitor, he has ensured that he will receive the farm he has worked so hard on for so many years.

I recommend that if you feel you have been hard done by, even when unsure whether any cause of action exists to help you, you should visit your solicitor. This visit should be made sooner rather than later as limitation periods exist for most types of claim which prevent court proceedings being initiated too long after the claim arose.

This article is intended to be used as a guide only. It is not, and is not intended to be, advice on any specific matter. Neither Patrick nor O’Brien Lawyers accept responsibility for any acts or omissions resulting from reliance upon the content of this article. Before acting on the basis of any material in this article, we recommend that you consult your lawyer.

Patrick Smith