Commonwealth v Verwayen (LAWS2381)

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Citation: Commonwealth v Verwayen (1990) 170 CLR 394.

This information can be found in the Textbook: Edgeworth et all, Sackville and Neave's Property Law Cases and Materials, 8th edition, Lexis Nexis, 2008, pp. 392-401 [4.132].

Contents

Background facts

  • Verwayn was a soldier, claimed damages from the Commonwealth for negligence.
  • Commonwealth made representations that a policy has been made not to try defend those claims in court.
  • In reliance on those assumptions, Verwayn continued with his claim in reliance on those representations.
  • Commonwealth changed its policy, tried to defend itself in court

Argument

  • Commonwealth irrevocably waived its right to plead defence
  • Or alternatively, the Commonwealth should be estopped from going back on its promise not to defend.

Legal issues

Judgement

  • Traditionally, the remedies of estoppel were aimed at making good of the representation ('estopping' the party from departing from the promise).
  • However, equitable estoppel is aimed simply at avoiding the detriment, in whatever way.
  • In accordance with other principles of equity, the court should apply the minimum remedy necessary to rectify the detriment (ie,specific performance is not always the solution).
  • The government had created an assumption, upon which Verwayen brought his case. In tis case, the appropriate remedy is to estopp them from acting contrary to the assumptions they encouraged.

References

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