CONTRACTS - Whether deceased made certain promises to plaintiff in 2003 in consideration of her leaving escort industry to become his non-exclusive mistress -alleged promises include establishment of multi-million dollar trust funds for plaintiff's children, and half a million dollar annual allowance and allowances for accommodation and business expenses for plaintiff - whether deceased made promises question of fact - defendant calls no evidence, save for tendering some documents - plaintiff's evidence challenged but uncontradicted - cases against deceased estates founded on oral utterances of deceased which only deceased can refute require Court to closely scrutinise plaintiff's evidence - no legal requirement for corroboration but corroboration ordinarily sought - plaintiff's version of events of doubtful reliability - in context of a case involving extraordinary wealth deceased who had other "mistress" relationships plaintiff's evidence not inherently incredible - some limited corroboration of plaintiff's version - plaintiff consulted solicitors about claim prior to death of deceased - defendant could have called associate of deceased to deny subsequent conversation detailing promises allegedly made to plaintiff - witness in defendant's camp and practically available to defendant - Jones v Dunkel inference drawn that associate's evidence would not have assisted defendant's case - held that deceased made promises as alleged in 2003 conversation. CONTRACTS - Certainty - terms of agreement discussed in 2003 conversation sufficiently certain and complete. CONTRACTS - Intention to create legal relations - absence of express statement that arrangements are legally binding -inference of fact whether intention to create legal relations - intention objectively determined - parties to family, social and domestic arrangements or agreements generally do not intend to create legal relations - rebuttable presumption that in such contexts parties do not intend arrangements and agreements to be legally binding - creation of "mistress" relationship determines that context of present case social - not obvious plaintiff relied on enforceable promise - parties did not seek legal advice and agreement not recorded in writing - incongruous to assume deceased could have obtained injunction restraining plaintiff from returning to escort industry or claimed damages for disappointment if plaintiff did not adequately discharge "mistress" role - subsequent conduct considered in assessing whether legally binding agreement intended - plaintiff's subsequent letter to deceased does not assert legal right to performance of promise - presumption no intention to create legal relations not rebutted - parties did not intend to make contract. CONTRACTS - Contracts that are void, illegal or unenforceable on grounds of public policy - contracts that are sexually immoral and/or prejudicial to the status of marriage - historically contracts for an 'immoral purpose' unenforceable - changing social mores result in liberalised attitude to extramarital cohabitation - rule as to unenforceability of contracts that are sexually immoral and/or prejudicial to status…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Ashton v Pratt (No 2) [2012] NSWSC 3
Case
[2012] NSWSC 3
Decision Date
CaseChat Overview and Summary
The case of Ashton v Pratt (No 2) involved a claim by the plaintiff, a former escort, against the estate of the deceased, a wealthy businessman, who she alleged had promised her substantial financial support in 2003 in consideration for her leaving the escort industry to become his mistress. The deceased had died before the trial, leaving the defendant, his estate's executor, to contest the claim. The primary issues before the court were whether the deceased had made the alleged promises, whether there was an intention to create legal relations, and whether any agreement made was contrary to public policy or void.
The court found that the deceased had made the alleged promises, despite the defendant not providing any evidence to contradict the plaintiff's testimony. The court noted that the plaintiff's evidence, though challenged, was not inherently incredible given the circumstances and the wealth of the deceased. The court also found that the terms of the agreement discussed in the 2003 conversation were sufficiently certain and complete, and thus enforceable. However, the court held that there was no intention to create legal relations between the parties, as the agreement was part of a social relationship and not intended to be legally binding.
Furthermore, the court ruled that any agreement made would be contrary to public policy and thus void. The court found that the arrangement was for meretricious sexual services, which are illegal and against public policy. The court also held that the plaintiff's equitable estoppel claim failed, as she could not establish that she had acted to her detriment on the basis of any assumption made by the deceased. The court further found that the plaintiff's claims were barred by two accords and satisfactions, where the plaintiff had accepted money and a car in settlement of her claims.
The court's final orders were that the plaintiff's claims against the deceased's estate were dismissed, with the plaintiff to pay the defendant's costs of the proceeding.