Richardson v Armistead [2000] VSC 551

[2000] VSC 551

Supreme Court of Victoria|2000-12-22|Before: Hansen J

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Source facts

Court

Supreme Court of Victoria

Decision date

2000-12-22

Before

Hansen J

Source

Original judgment source is linked above.

Judgment (213 paragraphs)

[1]

[2000] VSC 551

[2]

Contract - Oral agreement - Provision of funds in exchange for inter vivos transfer of an interest in land - Money paid but lot not subdivided and transferred - Part performance - Limitation period - Two further agreements whereby for financial assistance the deceased would devise his land to three named relatives - Part performance - Whether any agreements made.

[3]

In hilly country in the heart of the Otway Ranges at a point about 4 kilometres south-west of Lavers Hill, an access road called Hiders Access leads off the southern side of the Great Ocean Road to a property of 200 acres or thereabouts. The property is on two titles, one a Crown Grant of about 191 acres and the other of an adjoining 8 acres. About 40 acres is cleared, and some timber has been cut in other parts but otherwise it is heavily timbered. Eric Edward Hider owned the property. He lived in a house on the 8 acre lot. The endorsements on the Crown Grant, together with other evidence, show that that part of the land at least had been owned in succession since 1930 by three generations of the Hider family, Eric being the third. He had two sisters, one of whom, Valma Grace Richardson, is a plaintiff. Their childhood was spent with their parents on farms in the Otway Ranges, the last being their parents' property of which Eric became the registered proprietor in 1964. Valma married and had children; her husband and children are also plaintiffs as is the spouse of one child and her parents. They knew Eric and visited him at the property. Eric never married and had no children. The family on Valma's side expected or hoped that Eric would leave the property to Valma's children on his death. In that way it would stay in the family. But when Eric died on 26 September 1995 aged 59 years, it was discovered that by his will dated 4 November 1994 he left his entire estate to a daughter of a near neighbour. The plaintiffs make no attack upon the will, which has been admitted to probate, but seek, principally, an order that the defendant, who is the executor of Eric's estate, specifically perform one or other of two agreements under which he was to devise the property to Valma's children.

[101]

' ... [did you] mean to say that if we help you, you will leave the property to - I think she said Wade, Karen and Trevor, or - I couldn't be sure if she said our names specifically, but I - she might have said the kids. And Eric said, "I will". Barbara continued saying "would it" - perhaps, I think she said, or maybe - "perhaps be better to sell us the property to make it easier for you", I think she said, and I think Eric said maybe. He said something like "maybe that's the way" or - yes, and I'm sure it was "maybe that's the way, it's something we'll have to talk about", I think he said. He did ask the question at that point, he said, "I'd still be able to live and use the property". I don't think he said - "as I do now", I think he said. It was something to that effect. And who answered?---It wasn't as if it was a unanimous "Yes". But it was almost every member of the family said - almost in succession, that we didn't want him to feel that he was being pushed out of the property. I said personally that - I said, "Of course, it goes without saying, we're only here to help you through this problem". And similarly my father, I remember him saying - how did he put it - "We'll help you in any way we can" or something to that effect, and several other comments of support were given by the family members, not in any sort of semblance of order but more as a gesture of the understanding of the situation. I then asked, or made comment about my - I said "Perhaps if we re-finance" - re-finance wasn't the word I used - perhaps if I - "if we buy the land the amount of money I'm paying to the ANZ now would be enough to pay whatever payments were required". Something like that - to that - and Eric asked how much I was paying, he said, "How much are you paying?" Did you tell him? --- At that time I was - I said to him, I said, probably around 12 or $1,300 a month. Eric replied his payments were - he said, "That's more than I pay now for 75,000", I think he said, and he stated the figure, and that's the - it continued along the discussion of amounts of money and who had availability of the money. I know that Karen reiterated that she could - she said that she could get the money we talked about earlier just by filling in a form and it was at that point I said, well, that's a start, the main thing is to get that money and get the initial debt - not initial debt - the debt, I think I called it, paid. '

[150]

Counsel for the plaintiffs next submitted that although the agreement was oral and provided for a disposition of an interest in land, s. 126 did not apply to bar the claim. That was because the Hogans sought only damages. In other words, it would only be if they had sought to enforce the obligation to transfer a portion of the land that s. 126 would be applicable. Counsel for the defendant addressed no submission on this point. That the point is erroneous appears clearly from an analysis of the plaintiffs' case. The pleaded case is that the Hogans agreed with Eric that they would provide $15,000 to Eric in exchange for him transferring a portion of about 15 acres of his property to Wade and Barbara. It is alleged that in furtherance of the agreement they paid the $15,000 to Eric in accordance with his directions but that in breach Eric did not effect the transfer. They claim to have suffered loss and damage as a result and in the prayer for relief seek "an order for damages of $15,000 to Douglas and Mary Hogan pursuant to a breach of the First Agreement, alternatively, based on restitution". Neither counsel addressed a submission on restitution as a basis of relief. Nothing that counsel for the plaintiffs said suggested that any different principle was to be applied than would be in assessing and awarding common law damages for breach of the agreement. It should further be noted that although the claim is for damages no particulars of loss and damage were provided and there is no claim for loss of use of their money. Loss and damage is alleged to have been suffered and $15,000 is the amount claimed. That is the amount paid pursuant to the agreement. It is therefore apparent that in establishing their case of breach the Hogans must rely upon the oral agreement. In other words, as it was put in Delaney v TP Smith Ltd,[10] the oral agreement is "an essential part of the plaintiff's case, without which he could not succeed". The case is within s. 126 and the plaintiffs must establish part performance. In logical order that is the issue I must now consider.

[183]

In his final address, when making submissions as to acts of part performance, counsel referred to and developed an argument concerning Karen's payment of $2,800. Apart from a fleeting reference to "the other payments" he did not develop an argument concerning them. Perhaps this was because the other payments were made by David and he was not a plaintiff in respect of the claim being pursued. Nor did it seem to be submitted on this aspect that in making payments David was acting for an on behalf of Karen, Wade and Trevor pursuant to the alleged agreement. I note at this point, by way of reminder, that once the first alternative claim of an immediate gift to the Richardson Family was abandoned David was not a claimant for any relief at all. Hence the relevant plaintiffs for the purpose of identifying an act of part performance are Karen, Wade and Trevor. Of those plaintiffs only Karen made a payment. It should however be noted that the amended statement of claim alleged that the obligation to make payments was a joint obligation of the Richardson Family. In this respect it did not distinguish between the alternative claims in favour of the Richardson Family on the one hand and Karen, Wade and Trevor on the other hand. Perhaps therefore, at least in the sense of being within the pleading, it is to be taken that the payments by David are to be considered as acts of Karen, Wade and Trevor in relation to the agreement they rely upon. The matter is not so simple however, and I should now say why. Take first David's payment of $1,800. The pleaded case is that in July 1993 it was agreed that in consideration of, inter alia, the payment of $1,800 at Eric's request to Reid, Eric would make the inter vivos or testamentary gift. This part of the pleading is impossible to sustain. There was no reference to that payment at the meeting in July 1993. As I have found above, it was not until early September 1994 that Eric asked David to make that payment. It should never have been in the pleading. This may explain why counsel did not develop argument about the payment. The second point is that David's payments were made at or subsequent to the time (October 1993) when the parties called off the idea of a sale. Notwithstanding these matters I will consider these payments as alleged acts of part performance.