Abstract:
In the recent decision of Wilson Parking New Zealand Ltd v Fanshawe 136 Ltd the New Zealand Court of Appeal considered the appropriate remedy that should flow from a finding of equitable estoppel. It rejected that there was a presumption in providing relief that only protected the reliance interest of the plaintiff. At the same time, the Court also distanced itself from the Australian position of prima facie granting a remedy to protect the plaintiff's expectation interest by enforcing the promise in question. Instead, the Court decided to follow the English approach of fashioning a just outcome which should be “flexibly applied” and that does not have a prima facie starting point. This paper will critically examine the Wilson Parking decision and discuss whether the Court was right to provide such open-ended and factually-contextual guidance for the remedy to be granted when estoppel has been successfully pleaded. It will draw on the jurisprudence and literature from Australia and the United Kingdom to try and decide if the Court of Appeal made the right decision. In so doing, this paper will grapple with the nature of equitable estoppel and what exactly the grant of a remedy after a finding of estoppel is for. What exactly is it about the defendant's conduct that is unconscionable in a finding of estoppel and what should be done to remedy it?