Ainsworth v Roberts

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   AINSWORTH -v- ROBERTS [2008] WASC 289

CORAM:   MARTIN CJ

HEARD:   11 - 13, 16 & 20 JUNE 2008

DELIVERED          :   12 DECEMBER 2008

FILE NO/S:   CIV 1677 of 2006

BETWEEN:   ERIC JOHN AINSWORTH

First Plaintiff

JOAN LORRAINE MARSHALL
KAYE PITT
LESLEY JUNE KINGDON
Second Plaintiffs

JOHN AINSWORTH
ELLEN MAY AINSWORTH
Third Plaintiff

AND

JUDITH DAWN ROBERTS
Defendant

Catchwords:

Trusts - Variation - Turns on own facts

Agreements - Ready, willing and able - Renunciation - Repudiation - Breach - Without prejudice privilege - Mistake - Turns on own facts

Legislation:

Business Names Act 1962 (WA)
Property Law Act 1969 (WA)
Statute of Frauds (1677) (Imp)

Result:

Plaintiffs' application allowed
Counterclaim dismissed

Category:    B

Representation:

Counsel:

First Plaintiff                  :     Mr G M Abbott

Second Plaintiffs           :     Mr G M Abbott

Third Plaintiff                :     Mr G M Abbott

Defendant:     Mr E Carlose & Mr P J Mugliston (16 & 20 June 2008 only)

Solicitors:

First Plaintiff                  :     Bostock & Ryan

Second Plaintiffs           :     Bostock & Ryan

Third Plaintiff                :     Bostock & Ryan

Defendant:     Eapon Carlose

Case(s) referred to in judgment(s):

Bentley v Nelson [1963] WAR 89

Burg Design Pty Ltd v Wolki (1999) 162 ALR 639

Frederick E Rose (London) Ltd v William H Pim Junior & Co Ltd [1953] 2 QB 450

Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd [2007] HCA 61

Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623

MacKenzie v Coulson (1869) LR 8 Eq 368

Maralinga Pty Ltd v Major Enterprises Pty Ltd (1973) 128 CLR 336

Nicholson v Southern Star Fire Insurance Co [1927] 28 SR (NSW) 124

Rigg v Lee Loy Seng [1987] WAR 333

MARTIN CJ: 

Introduction

1. In these proceedings, the plaintiffs claim declarations that an agreement for the restructure of assets held by a family through certain trusts is at an end, and for an order that land known as Chippendale Cherry Farm situated in Albany, Western Australia be transferred from the defendant to the defendant and the first plaintiff as trustees of one of the family trusts.  By her defence, the defendant denies that the agreement is at an end and seeks, in effect, orders for its performance.  The third plaintiff also claims $11,000 pursuant to an agreement for the sale of a motor vehicle to the defendant.  The defendant counterclaims against the first plaintiff for the sum of $25,000 which she alleges she advanced by way of a loan and further alleges has not been repaid.  She also claims interest on that amount.

The parties

1. The third plaintiffs named on the writ, which was issued in June 2006, are John Ainsworth (known to all as Jock) and Ellen May Ainsworth.  Ellen May Ainsworth died in December 2006.  An order was made to the effect that the proceedings continue without her estate taking any further part in them, although curiously, the headings to the proceedings have continued to refer to her as a party.