Background
Maria-Christina Perez de la Sala was left no provision under the will and codicil of her father, Robert “Bobby” Perez de la Sala, whose estate was valued at approximately A$504 million. Her continuing family-provision proceeding sought a A$20 million lump sum. Separately, she attempted to plead proprietary estoppel based on alleged representations that she would receive a share of family assets if she worked to preserve and grow the family business.
After earlier versions of her equitable claims were dismissed or struck out, she sought leave to file a second further amended statement of claim—her fourth attempt to plead the proprietary-estoppel claim. Before the primary judge, her senior counsel repeatedly conceded that only two alleged statements, identified as the “litigation promise” and the “2017 promise,” were capable of grounding an estoppel; the other representations were contextual. Parker J refused leave to file the proposed pleading, finding that its viable portions could not be salvaged merely by removing the untenable allegations.
The Court’s Holding
The Court of Appeal dismissed the application for leave to appeal. It held that counsel’s concessions were express, repeated, clear and unambiguous, were volunteered without relevant qualification, and confined the case advanced before the primary judge. The applicant was not permitted to withdraw them on appeal, and Parker J was entitled to rely on them.
The Court also held that the concessions were correct. Apart from the litigation promise and the 2017 promise— with the latter requiring reformulation—none of the pleaded representations had the promissory character necessary to support the claimed proprietary estoppel. Because much of the alleged detrimental reliance depended on those other representations, the claim’s pleaded foundation was substantially undermined. No arguable discretionary error under House v The King was shown.
Key Takeaways
- Clear and deliberate concessions by counsel at first instance ordinarily bind the client and cannot be withdrawn on appeal merely because they prove fatal to the case advanced.
- A proprietary-estoppel pleading based on representations must identify a clear and unequivocal promise; contextual statements about what a claimant should do or might receive are not enough.
- Leave to appeal an interlocutory pleading decision will not be granted without arguable error, particularly where the proposed claim has undergone repeated unsuccessful attempts at formulation.
Why It Matters
The decision underscores the procedural consequences of concessions made during argument: counsel’s narrowing of a case can determine both the application below and the prospects of appellate review. Courts will weigh finality, procedural efficiency and the authority of first-instance proceedings before allowing a party to reopen a deliberately conceded issue.
It also illustrates the importance of matching pleaded reliance and detriment to an actionable promise in proprietary-estoppel claims. The ruling did not determine the applicant’s continuing family-provision claim, which remained to proceed toward trial.