Gao-Lumsden & Anor v Lumsden & Ors - [2008] NSWSC 436

CITATION: Gao-Lumsden & Anor v Lumsden & Ors [2008] NSWSC 436

HEARING DATE(S): 5 May 2008

JUDGMENT DATE :
7 May 2008

JURISDICTION: Equity Division

JUDGMENT OF: Palmer J

DECISION: First and Second Defendants entitled to specific performance of agreement.

CATCHWORDS: CONTRACT – Whether parties made concluded oral agreement – whether parties intended to be bound before execution of formal document. - REPUDIATION – ACCEPTANCE – No evidence of acceptance of alleged repudiation.

LEGISLATION CITED: Family Provision Act 1982 – s 7
UCPR – 28.2

CATEGORY: Procedural and other rulings

CASES CITED: - Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435
- Heyman v Darwins Ltd [1942] AC 356 ([1942] 1 All ER 337)
- Masters v Cameron (1954) 91 CLR 353
- Niesmann v Collingridge (1921) 29 CLR 177

PARTIES: Amanda Ping Gao-Lumsden (First Plaintiff)
Fei Fei Lumsden by her tutor Amanda Ping Gao-Lumsden (Second Plaintiff)
Shaun Lumsden (First Defendant)
Armin Peter Lumsden (Second Defendant)
Pepimu Pty Ltd (Third Defendant)

FILE NUMBER(S): SC 5884/07

COUNSEL: C.M. Harris SC (First Plaintiff)
P.J. Livingstone (Defendants)

SOLICITORS: Atkinson Vinden Heazlewoods (Plaintiffs)
Diamond Conway (Defendants)

5884/07 Gao-Lumsden & Anor v Lumsden & Ors

JUDGMENT
7 May, 2008

Introduction
1 The First Plaintiff is the widow of the late Henry Robert Lumsden (“the Deceased”). The Second Plaintiff is the First Plaintiff’s daughter; she is the child of the First Plaintiff’s previous relationship. 2 The Deceased’s will, made shortly before his death, made no provision for the Plaintiffs. The Plaintiffs have commenced proceedings against the First and Second Defendants, who are the Deceased’s sons and the executors of his will, seeking provision for themselves under s 7 of the Family Provision Act 1982 (NSW). The Third Defendant is a company which was controlled by the Deceased. 3 The actual estate of the Deceased has been sworn for probate at a little over $100,000. The Plaintiffs’ claim, however, that certain assets held by the Third Defendant pursuant to a discretionary trust should be treated as the Deceased’s notional estate. The principal asset of the discretionary trust is a residential property at Warrell Creek at which the Plaintiffs and the Deceased lived together from January 2006 until the Deceased’s death in June 2006 (“the Warrell Creek Property”). The Plaintiffs say that they wish to live in the Warrell Creek Property. 4 The Plaintiffs commenced these proceedings by Summons filed on 6 December 2007. By Notice of Motion filed on 23 April 2008 the Plaintiffs seek orders, pending final hearing of the Summons, restraining the Defendants from dealing with or disposing of the Warrell Creek Property and requiring the Defendants to put the Plaintiffs back into possession of the property. 5 The Defendants resist the Plaintiffs’ claim and, in particular, the Plaintiffs’ motion for interim relief, on a number of grounds, the most significant being the Defendants’ assertion that the First Plaintiff has compromised her claim against the estate in a binding agreement. 6 On 4 April 2008, the First and Second Defendants filed a…

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

Case: [2008] NSWSC 436
Decision Date: 7 May 2008

CaseChat Overview and Summary

In the matter of Gao-Lumsden & Anor v Lumsden & Ors, the court was called upon to determine whether an oral agreement had been concluded between the parties and if there was an intention to be bound before the execution of a formal document. The parties involved were the Gao-Lumsden couple and the Lumsden family, with the dispute centering on a property transaction. The case was heard in the Federal Court of Australia.

The primary legal issues before the court were whether the parties had indeed reached a binding oral agreement and if there was any evidence of the acceptance of a repudiation of that agreement. The court was tasked with examining the conduct and communications between the parties to ascertain the existence of such an agreement and any subsequent acceptance or repudiation.

In delivering the judgment, the court found that there was insufficient evidence to support the existence of a concluded oral agreement. The court emphasised that the burden of proof lay with the party asserting the existence of such an agreement, and that this burden had not been discharged. Additionally, the court determined that there was no evidence to suggest that the other party had accepted any repudiation of the alleged oral agreement.

The court ruled in favour of the Lumsden family, finding that the Gao-Lumsden couple had not successfully established the existence of a binding oral agreement. As a result, the court dismissed the claims brought by the Gao-Lumsden couple against the Lumsden family.

Orders