Order that the further amended Statement of Claim is dismissed.
Orders that the argument on the issue of costs be stood over to a suitable date unless the parties are able to reach agreement on how the costs of the proceedings are to be borne.
Catchwords:
EQUITY - Equitable estoppel by encouragement alleged - Family relationship - Assertion that conversation with father, in about 1983, that Plaintiff son would effectively receive, by Will, one third of certain identified real property amounted to an irrevocable promise or assurance - Where that real property held jointly by father and mother - Alleged silence by mother who was present at time of alleged promise or assurance - Whether court satisfied that any promise or assurance to give property to son - Whether promise or assurance given by mother by silence - Whether son or company acted to his or its detriment in reasonable reliance on alleged promise or assurance - Whether detriment proved - Whether father and/or mother knew of alleged reliance by son or company - Whether any unconscionable conduct by father and/or mother - Revocability of alleged promise or assurance - Subsequent conduct of parties - Onus of proof on son to prove reliance - Son’s alleged reliance upon promise or assurance by both father and mother inconsistent with his and the company’s conduct, years later, and before death of father and mother - Relevance of such conduct - Whether estate of mother bound to give effect to alleged irrevocable promise or assurance
TRUSTS - Common intention constructive trust - Whether elements necessary to be established proved
EVIDENCE - Principles requiring caution when relying on uncorroborated statements said to have been made by deceased person - Father and mother both deceased prior to commencement of proceedings - Relevance of contemporaneous or near contemporaneous documents - Credibility of son’s evidence when events alleged to have taken place many years before claim made - Relevance of conduct of parents inconsistent with alleged promise or assurance that son and company relied upon
FIDUCIARY DUTIES - alleged breach of director’s duties - whether the transfer of real property from company to Governing Director and wife, who was a director, made in breach of director’s duties - Memorandum of Association provided that assets could be used to benefit the company’s employees and their families - Wide powers of Governing Director - Sale of real estate by company to parents - Whether to knowledge of son, also a director of the company
LIMITATION PERIOD - whether 6-year limitation period prescribed by the Limitation Act 1969 (NSW) and the Corporations Act 2001 (Cth) applies by analogy to equitable claim - Unnecessary to decide
[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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AGLC
Evans v Braddock [2015] NSWSC 249
Case
[2015] NSWSC 249
Decision Date
CaseChat Overview and Summary
Evans, the son of Braddock, commenced proceedings in the Supreme Court of New South Wales, alleging that he was led to believe by his father that he would inherit one third of certain identified real property through his father’s Will. Braddock, who was jointly holding the property with his wife, allegedly made this assurance during a conversation in approximately 1983. Braddock’s wife, who was present during this conversation, did not object. Evans claimed that he acted to his detriment in reliance on this assurance, and that it amounted to an irrevocable promise or assurance. Additionally, Evans argued that a common intention constructive trust should be imposed over the property, and that a breach of director’s duties occurred when the property was transferred to Braddock and his wife, who was a director of the company. Braddock and his wife had both died before the proceedings were commenced.
The court was required to determine whether the conversation between Braddock and Evans amounted to an irrevocable promise or assurance, whether Evans acted to his detriment in reasonable reliance on this assurance, whether Braddock and his wife knew of the alleged reliance, whether there was any unconscionable conduct by them, and whether the estate of Braddock’s wife was bound to give effect to the alleged irrevocable promise or assurance. The court was also required to consider whether the elements necessary to establish a common intention constructive trust were proved, and whether there was a breach of director’s duties when the property was transferred to Braddock and his wife.
The court found that Evans had not proved the conversation with Braddock amounted to an irrevocable promise or assurance. The court was not satisfied that any such promise or assurance was made by Braddock, or by Braddock’s wife by silence. The court found that Evans had not proved he acted to his detriment in reasonable reliance on any such promise or assurance. The court found that Braddock and his wife did not know of the alleged reliance by Evans, and that there was no unconscionable conduct by them. The court found that any such promise or assurance was revocable, and that the conduct of Evans and the company was inconsistent with their alleged reliance on any such promise or assurance. The court found that the estate of Braddock’s wife was not bound to give effect to any such irrevocable promise or assurance. The court also found that the elements necessary to establish a common intention constructive trust were not proved, and that there was no breach of director’s duties when the property was transferred to Braddock and his wife.
The court did not need to determine whether the 6-year limitation period prescribed by the Limitation Act 1969 (NSW) and the Corporations Act 2001 (Cth) applied by analogy to the equitable claim. The court dismissed the proceedings with costs.