De Campo v De Campo

Case [2018] WASC 351


JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   DE CAMPO -v- DE CAMPO [2018] WASC 351

CORAM:   ALLANSON J

HEARD:   5 - 7 SEPTEMBER 2018

DELIVERED          :   16 NOVEMBER 2018

FILE NO/S:   CIV 2139 of 2015

BETWEEN:   ROSANNA DE CAMPO

Plaintiff

AND

GEROLAMO DE CAMPO

First Defendant

MICHAEL COLIN DAWSON as executor of the estate of ROSINA GISELLA DE CAMPO

Second Defendant


Catchwords:

Contract - Where parties the beneficiaries under their mother's will - Whether parties agreed to compromise dispute regarding the distribution of the estate - Whether consideration for agreement - Whether agreement intended to be legally enforceable - Whether agreement contrary to public policy - Whether agreement unenforceable under Property Law Act s 34

Contract - Remedies - Whether order should be made for specific enforcement

Legislation:

Family Provision Act 1972 (WA)
Property Law Act 1969 (WA), s 34, s 36(d)

Result:

Judgment for the plaintiff

Category:    B

Representation:

Counsel:

Plaintiff : Mr S Penglis
First Defendant : Dr P D MacMillan
Second Defendant : No appearance

Solicitors:

Plaintiff : Fletcher Law
First Defendant : Valenti Lawyers
Second Defendant : No appearance

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

Abjornson v Urban Newspapers Pty Ltd [1989] WAR 191

Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540

Barns v Barns [2003] HCA 9, (2003) 196 ALR 65

Brooks v Burns Philp Trustee Co Ltd [1969] HCA 4; (1969) 121 CLR 432

Daebritz v Gandy [2001] WASC 45

Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; (2002) 209 CLR 95

Helton v Allen [1940] HCA 20; (1940) 63 CLR 691

John Holland Pty Ltd v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451

Lieberman v Morris [1944] HCA 13; (1944) 69 CLR 69

Marist Brothers Community Inc v Shire of Harvey (1994) 14 WAR 69

Pipikos v Trayans [2018] HCA 39

Robins v Robins [2006] WASC 301

Smith v Smith [1986] HCA 36; (1986) 161 CLR 217

South Australia v Commonwealth [1962] HCA 10; (19620 108 CLR 130

Thomas v Hollier [1984] HCA 35; (1984) 156 CLR 152

Thompson v White [2006] NSWCA 350

Turner v Bladin (1951) 82 CLR 463

ALLANSON J:

  1. The central issue in this action is whether the plaintiff and first defendant made an enforceable agreement with regard to the distribution of assets in the estate of their mother.

The parties

  1. The plaintiff, Rosanna, and the first defendant, Gerolamo (Gerry), are the children of the late Rosina Gisella De Campo (the deceased).[1] 

    [1] To make these reasons more readable, I will refer to the plaintiff and defendant, and others who have the family name De Campo, by their given names.  I mean no disrespect by this apparent informality.

  2. The deceased died on 27 September 2013, leaving a will dated 4 April 2008.

  3. The second defendant, Michael Colin Dawson, is a solicitor and is the executor of the deceased's estate.  He was called as a witness by Gerry.

The will

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AGLC
De Campo v De Campo [2018] WASC 351
Case
[2018] WASC 351
Decision Date

CaseChat Overview and Summary

In the case of De Campo v De Campo, the dispute arose between Rosanna and Gerry, who were beneficiaries under their mother's will. The issue was whether the parties had agreed to compromise their dispute regarding the distribution of the estate, and if the agreement was intended to be legally enforceable. The court had to determine whether the agreement was supported by consideration, whether it was contrary to public policy, and whether it was unenforceable under section 34 of the Property Law Act. The case also involved the question of specific enforcement as a remedy.

The legal issues that the court had to decide included whether post-contractual statements could be used to construe the terms of a contract, and whether post-contractual conduct was admissible to determine whether a contract existed between the parties. The court also had to consider whether evidence of post-contractual conduct could provide evidence of facts that were against the interests of one party and, as such, were admissible as an admission by that party. The court had to determine whether Gerry's silence in response to correspondence referring to the compromise agreement amounted to an admission of the agreement's existence.

The court found that post-contractual statements could not be used to construe the terms of a contract, but post-contractual conduct was admissible to determine whether a contract existed between the parties. The court held that evidence of post-contractual conduct could provide evidence of facts that were against the interests of one party and could be admissible as an admission by that party. The court found that Gerry's silence in response to correspondence referring to the compromise agreement amounted to an admission of the agreement's existence. The court also found that the letter from Gerry's lawyers on 29 July 2014 was an express admission of the agreement and its terms. Finally, the court found that there was evidence of some conduct consistent with the compromise agreement and, arguably, in furtherance of it, in the division of items such as furniture and motor vehicles.

The court found that there was at least one meeting at the Bakery before the meeting in Mr Dawson's office on 6 December 2013, at which Rosanna and Gerry agreed on the essential terms of an agreement, which Rosanna recorded in a note. Rosanna and Gerry then met in Mr Dawson's office on 6 December 2013, and Rosanna gave Mr Dawson the note recording what had been agreed. Gerry implicitly acknowledged by his conduct after the meeting that an agreement had been made, and explicitly admitted both the agreement and its terms through his lawyers' letter of 29 July 2014. The court found that the essential terms of the agreement were to be found in Rosanna's note, given to Mr Dawson, and in the letter of 29 July 2014.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Post contractual statements cannot be used to construe the terms of a contract. But it is uncontroversial that post-contractual conduct is admissible to determine whether a contract exists between the parties.[61] Evidence of post contractual conduct may provide evidence of facts, the assertion of which is against the interests of one party, and may be admissible as an admission by that party.[61] Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540, 547 ‑ 548. Evidence that someone has remained silent when speech could have been expected, or has failed to raise a matter in correspondence where the relationship between the parties is such that a particular reply might be expected, may amount to an admission, and is at least relevant evidence. In Thomas v Hollier, Gibbs CJ said:The failure to answer a letter may amount to an admission if there are circumstances which render it more reasonably probable that a man who denied the assertions made against him in the letter would answer those assertions than that he would not.[62][62] Thomas v Hollier[1984] HCA 35; (1984) 156 CLR 152, 157. Citation of authorities omitted. Over a period of several months, Gerry received correspondence referring to the compromise agreement, and made no response denying any agreement. Gerry said that he told Mr Dawson in about April 2014 that he had not made any agreement. The time when Gerry said that he made these comments to Mr Dawson is about the time he was asked for and provided his son's details for the proposed trust deed. Gerry also said that he attended a meeting at Dawson Davies in March 2014, at which Rosanna attended by telephone. Mr Dawson's account of the meeting is that Rosanna and Gerry discussed which agent should be used to market Cheriton Street.[63] Mr Dawson also recalled another meeting with Gerry on 20 March 2014, but not what they discussed.[64] I would expect Mr Dawson to have remembered if Gerry denied the agreement that he was then attempting to move forward, including by drafting of the required deeds.[63] Exhibit 8.1 [50][64] Exhibit 8.1 [51] - [52]. The letter from Valenti Lawyers of 29 July 2014 is an express admission not only that an agreement was made, but of what terms had been agreed. Finally, there is evidence of some conduct consistent with the compromise agreement and, arguably, in furtherance of it, in the division of items such as furniture and the motor vehicles. This is a distinct issue from the question of part performance for the purposes of s 36 of the Property Law Act.[65] The question is whether the conduct of Rosanna and Gerry is probative of the existence of an agreement between them in the terms alleged. It is not necessary, for that purpose, that the acts be unequivocally, and in their own nature, referable to an agreement for the disposition of an interest in the Bakery. On the evidence, I am satisfied that the following findings should be made:(1)There was at least one meeting at the Bakery before the meeting in Mr Dawson's office on 6 December 2013. At the meeting, Rosanna and Gerry agreed the essential terms of an agreement, which Rosanna recorded in a note.(2)Rosanna and Gerry then met in Mr Dawson's office on 6 December 2013. Either then, or soon afterwards (having regard to where the note was found in Mr Dawson's files) Rosanna gave Mr Dawson the note recording what had been agreed. Mr Dawson gave some advice to Rosanna and Gerry.(3)Gerry implicitly acknowledged by his conduct after the meeting, that an agreement had been made. Explicitly, through his lawyers' letter of 29 July 2014, he admitted both the agreement and its terms.(4)The essential terms of the agreement are to be found in Rosanna's note, given to Mr Dawson, and in the letter of 29 July 2014.