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Wilcox v Wilcox [2012] NSWSC 1138. Pembroke J. 

7 The plaintiffs' evidence as to what was said by their grandfather never rose high enough to establish an estoppel. It was never clear and unambiguous: Legione v Hately (1983) 152 CLR 406 at 435-437Summer Hill Business Estate v Equititrust [2010] NSWSC 776 at [42].

Savage v Bianchino & Associates Savage v Bianchino Don [2011] NSWSC 140. Macready AsJ.

[19] In Sivoli Pty Ltd v Barbaro (1988) 13 NSWLR 466 and Austotel Pty Ltd v Franklins Self Serve Pty Ltd (1989) 16 NSWLR 582 at 610, Priestley JA conveniently distilled the reasoning of the majority judges in Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7; (1988) 164 CLR 387 into these propositions (at 472):

(a) Common law and equitable estoppel are separate categories, although they have many ideas in common;

(b) Common law estoppel operates upon a representation of existing fact, and when certain conditions are fulfilled, establishes a state of affairs by reference to which the legal relation between the parties is to be decided.

This estoppel does not itself create a right against the party estopped. The right flows from the court's decision on the state of affairs established by the estoppel;

(c) Equitable estoppel operates upon representations or promises as to future conduct, including promises about legal relations.

When certain conditions are fulfilled, this kind of estoppel is itself an equity, a source of legal obligation;

(d) Cases described as estoppel by encouragement, estoppel by acquiescence, proprietary estoppel and promissory estoppel are all species of equitable estoppel;

(e) For equitable estoppel to operate in circumstances such as those of the present case there must be the creation or encouragement by the defendant in the plaintiff of an assumption that a contract will come into existence or a promise be performed, and reliance on that by the plaintiff, in circumstances where departure from the assumption by the defendant would be unconscionable;

(f) Equitable estoppel may lead to the plaintiff acquiring an estate or interest in land, that is, in the common metaphor, it may be a sword; and

(g) The remedy granted to satisfy the equity (which either is the estoppel or created by it) will be what is necessary to prevent detriment resulting from the unconscionable conduct."

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