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Waltons v. Maher: History, Unconscientiousness and Remedy - The 'Minimum Equity'

An account of the course of the litigation in Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 from the trial to the High Court of Australia and the previous history of promissory estoppel shows the radical alteration that the High Court decision made to the previous understanding of the operation of equitable estoppel. While Waltons sets out some minimum requirements for when an equitable estoppel concerning an assumption that the defendant has induced in the plaintiff about future conduct is made out, it is still necessary to find that departure from the induced assumption would be unconscientious before the estoppel arises. The requirement articulated in Waltons that the remedy granted when an equitable estoppel is made out should be ‘the minimum equity’ means that the court should grant the least extensive remedy that will undo or counter the unconscientiousness that has been established. It does not mean that the remedy should be one that will undo the detriment sustained in reliance on the induced assumption. Giumelli v Giumelli (1999) 196 CLR 101 has not altered the law as established in Waltons concerning the appropriate type of remedy. There are two senses of ‘detriment’ in Waltons - detriment that has resulted from acting on the basis of the promise, and detriment that would result from departure from the induced assumption. The objective of the remedy is to undo the latter type of detriment. That type of detriment has two components - having acted in reliance on the induced assumption, and having the induced assumption not adhered to. It will depend upon the facts of the individual case whether the appropriate remedy is one that seeks to reverse or counter the acts of detrimental reliance, or one that seeks to make good the induced assumption or provide compensation for failing to make that assumption good. There is no basis in either Waltons or Giumelli for saying that when an equitable estoppel is made out there is a ‘prima facie entitlement’ to relief that requires the making good of the assumption or expectation. The article discusses some factors relevant to deciding whether a departure from an induced assumption about future events is unconscientious, and to identifying the appropriate remedy to undo that unconscientiousness.