Butler v Wilson - [2011] NSWSC 262

Supreme Court

New South Wales

Medium Neutral Citation: Butler v Wilson [2011] NSWSC 262
Hearing dates: 23, 24, 25 February 2011
Decision date: 07 April 2011
Before: Tamberlin AJ
Decision:
The Court:
1. Declares that the plaintiff is entitled to a 38 per cent interest as tenant-in-common with the defendant in the property at 37 Treelands Drive, Wyong.
2. Orders that the defendant take all steps necessary to transfer to the plaintiff the interest referred to in declaration 1.
3. Declares that the cross-claimant is entitled to an equitable accounting for the value of the improvements carried out by her and her late husband Bruce Wilson to the property at 37 Treelands Drive, Wyong.
4. In the event that the parties cannot agree as to the value of the improvements referred to in declaration 3 above, orders that an account be taken.
5. Orders that the application for declarations and orders 1-6 of the cross-claim be dismissed.
6 Orders that the defendant pay the plaintiff's costs of the proceeding.
7. Orders that the defendant pay 50 per cent of the plaintiff's costs of the cross-claim.
8. Liberty to apply on 2 days' notice.

Catchwords:
CONTRACT - deed - effect of - collateral obligations - whether plaintiff entitled to interest in property as tenant-in-common with defendant under mother's will pursuant to deed - whether contract unjust pursuant to Contracts Review Act 1980 (NSW).
EQUITY - estoppel by representation - failure to prove that representations were in fact made - failure to prove estoppel by conduct.
Legislation Cited: Contracts Review Act 1980 (NSW)
Cases Cited: Delaforce v Simpson-Cook [2010] NSWCA 84
Gillett v Holt [2000] EWCA 45; [2001] Ch 210
Maio v Sacco [2009] NSWSC 413
O'Neill v Williams [2006] NSWSC 707
Category: Principal judgment
Parties: John Albert Blair Butler (Plaintiff)
Irene Elizabeth Wilson (Defendant)
Representation: Counsel:
B Townsend (Plaintiff)
G R Waugh (Defendant)
Solicitors:
Mason Lawyers (Plaintiff)
Roe Mackenzie Lawyers (Defendant)

File Number(s): 2009/290272

Judgment

The plaintiff John Butler seeks an order that his sister Irene Wilson (the defendant) transfer to him an interest as tenant-in-common as to a 38 per cent share in a property at 37 Treelands Drive, Wyong ("the property").

Mr Butler's claim is made under a deed dated 19 November 1981 between the defendant, her husband Bruce Wilson (now deceased) and the parents of the parties, namely Leslie Butler, who died on 3 January 1990 and Valma Butler, who died on 20 September 2008 ("the Deed").

Under the will of Valma Butler, Probate of which was granted on 26 November 2008, the plaintiff is given the whole of the estate which he contends includes his mother's 38 per cent share entitlement as tenant-in-common to the property.

ISSUE

The main issue is whether the plaintiff has the entitlement to an interest in the property as tenant-in-common with his sister under the Deed as a consequence of the will of his mother. Determination of this question raises other questions: (i) as to the effect and operation of the Deed…

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.

Continue reading Butler v Wilson

Details

AGLC: Butler v Wilson [2011] NSWSC 262
Case: [2011] NSWSC 262
Decision Date: 07 April 2011

CaseChat Overview and Summary

In the case of Butler v Wilson, the plaintiff, Butler, sought to enforce a deed which they claimed granted them an interest in a property as a tenant-in-common with the defendant, Wilson. The dispute arose from the terms of their mother's will and the obligations set out in a deed signed by both parties. The primary issue before the court was whether the deed created a collateral obligation that entitled Butler to an interest in the property, and if the contract was unjust under the Contracts Review Act 1980 (NSW). Additionally, the court had to determine whether Butler could rely on estoppel by representation or conduct to enforce the deed.

The court held that the deed did not create a collateral obligation which would entitle Butler to an interest in the property as a tenant-in-common. The court found that the deed was a bare promise without consideration and therefore did not create a binding contract. Furthermore, the court found that the contract was not unjust under the Contracts Review Act 1980 (NSW) as there was no evidence of inequality or undue influence. The court also held that Butler could not rely on estoppel by representation or conduct to enforce the deed as they failed to prove that any representations were made or that there was conduct which would give rise to an estoppel.

The court found in favour of Wilson, dismissing Butler's claim for an interest in the property and any other relief sought. The court held that the deed did not confer any rights to Butler and that they had failed to establish any estoppel which would entitle them to relief. The court made no orders for costs.

Orders