Ironside v Thisainayagan [No 2] - [2017] WASC 207

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: IRONSIDE -v- THISAINAYAGAN [No 2] [2017] WASC 207

CORAM: BEECH JA

HEARD: 27 JULY 2017

DELIVERED : 27 JULY 2017

PUBLISHED : 28 JULY 2017

FILE NO/S: CIV 1161 of 2013

BETWEEN: NOEL DAVID IRONSIDE
Plaintiff
AND
ANNADEVI THISAINAYAGAN
Defendant

Catchwords:

Practice and procedure - Defendant provides schedule of claims as required by court order - Parties confer and agree which of those claims to be included and which excluded - Meaning and effect of that agreement - Whether defendant at liberty to add new claims - Turns on own facts

Legislation:

Nil

Result:

Directions made

Category: B

Representation:

Counsel:

Plaintiff: Ms W F Gillan
Defendant: Dr P MacMillan

Solicitors:

Plaintiff: Culshaw Miller
Defendant: HHG Legal Group

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

Black Box Control Pty Ltd v Terra Vision Pty Ltd [2016] WASCA 219
Ironside v Thisainayagan [2017] WASC 174
Levingston v Levingston [2017] WASCA 91
BEECH JA:
(This judgment was delivered extemporaneously on 27 July 2017 and has been edited from the transcript.)

In June 2016, I made orders following a trial of preliminary issues between the parties. Regrettably, the parties remain in dispute about the working out of what remains of the action as a result of the decision I gave more than one year ago.[1]
[1] Ironside v Thisainayagan [2017] WASC 174. I will use the terminology in the reasons.
I hear this matter in the General Division of the court with the prior approval of the Chief Justice under s 10C of the Supreme Court Act 1935 (WA).

The primary reasons and the orders of 27 June 2016

On 27 June 2016, I made orders following the delivery of my reasons for decision. Relevantly, par 7(a) of the orders required that within 17 days the defendant provide the plaintiff with a schedule (and any supporting documents) setting out the date and amount of payments that the defendant claims to have made by way of financial contribution to the Property.
Paragraph 7(e) of the orders provided relevantly that if the defendant's claim pursuant to subpar (a) was disputed by the plaintiff, and the dispute was not resolved by conferral between solicitors within a further 14 days, either party was at liberty to apply to the court for further orders to programme a further hearing for determination of the claim.
These orders were made in the context that the effect of the primary reasons was that:
(1)the Agreement was binding on the parties;
(2)under the Agreement upon the sale of the Property, the parties would each be entitled to his or her share of the proceeds of sale, calculated in accordance with the Agreement;
(3)in the absence of agreement between the parties, an amount would be taken to determine the parties' respective entitlements to the proceeds of sale; and
(4)the defendant's contributions to the Property would be one of the integers in the taking of such an account.

The correspondence between the parties

On 5 July 2016, the defendant's solicitor sent an email to the plaintiff's solicitors stating that, pursuant to order 7(a), the defendant's schedules for her financial contributions to the Property were attached.
Over the following months, there was conferral and further correspondence between the parties.
On 2 August 2016, the plaintiff's solicitors wrote in response to the defendant's schedule. By that letter the plaintiff's solicitors:
(1)stated that a large number of the outgoings were disputed either on the basis of being insufficiently supported by documentation or having documentation that did not specifically reference the Property. The letter stated that the exercise of putting the defendant to proof would be costly for both parties and that accordingly the plaintiff was prepared to accept the majority of the unsupported expenses provided that the items detailed below be removed from the list.
(2)raised disputes in relation to identified items in the following categories:
(a)land tax invoices, on the basis that at the time the defendant had resided at the property;
(b)outgoings said to be of a nature that would ordinarily be refunded to the defendant;
(c)outgoings said to have inadequate invoices or receipts;
(d)outgoings said to be in the nature of private expenses and not in relation to the property; and
(e)outgoings that should be apportioned but did not appear to have been apportioned appropriately.
By letter of 1 September 2016, the defendant's solicitors wrote in response. The letter was without prejudice save as to costs. It stated that without admission the defendant was prepared to concede the plaintiff's objections in the letter of 2 August 2016 apart from those objections listed immediately below. Thirteen specific items were listed, with reasons given for the dispute of the objection. There was also comments made about the outgoings said not to have been apportioned.
Following the return of the plaintiff from a period overseas, by letter of 3 October 2016, the plaintiff's solicitors wrote in response to the defendant's solicitors' letter of 1 September 2016. The letter of 3 October 2016 put a without prejudice proposal. It stated that the plaintiff was prepared to accept six of the items referred to in the defendant's solicitors' letter of 1 September 2016, on the basis that the remaining seven be removed; that building insurance be apportioned to remove contents insurance; and Water Corporation invoices be apportioned to remove water use.
The letter stated in conclusion that if the defendant was not prepared to agree to remove the objected to items and apportion the outgoings as set out in the letter, the matter should be immediately listed before the court.
In November 2016, there was further correspondence between the parties' solicitors.
In March 2017, there was correspondence between the parties in which the plaintiff's solicitors were pressing for progress failing which the matter would be relisted before the court. Also, during March 2017, the parties filed a minute of consent to the amendment of the orders made after the trial of preliminary issues in relation to the sale of the Property.
On 28 March 2017, Mr Rogers, the defendant's solicitor, telephoned Mr Clifton, the plaintiff's solicitor, and advised that the defendant would accept the plaintiff's without prejudice offer in the letter of 3 October 2016.[2]
[2] Affidavit of Clifton [12]; affidavit of Rogers [5].
On 4 April 2017, Mr Clifton sent Mr Rogers an email referring to the telephone conversation of 28 March 2017. Mr Clifton's email stated that although Mr Rogers had advised that his client would accept the offer from 3 October 2016, the plaintiff's solicitors had not yet received written confirmation of acceptance of the offer or details of the proposed apportionment. Mr Clifton's email stated that unless a position can be reached on the defendant's outgoings by 7 April 2017, he was instructed to request the matter be relisted before the court.
On 10 April 2017, Mr Rogers sent an email to Mr Clifton in the following terms:
We refer to your email of 4 April 2017 and respond as follows:
(1)as discussed on 28 March 2017, we confirm that our client has, on a without admission basis, agreed to:
(a)remove the items from her contribution schedule at the following numbers: 11, 25, 78, 92, 93, 94, 95, 110, 129, 152, 154, 155, 156, 173, 177, 180, 186, 191,
(b)apportion the water rates and building/home/contents insurance items in her contribution schedule;
(2)we are in the process of preparing the draft minute of consent orders which sets out:
(a)the parties agreed contribution; and
(b)programming orders should the assistance of the court be required to determine how any sale etc proceeds are to be distributed if agreement cannot be reached as to the correct methodology to do so;
(3)we anticipate being in a position to provide you with an updated contribution schedule, proposed apportionments and draft consent orders by mid-week; and
(4)as the parties are still in the process of conferral, we consider that any application to relist the matter at this stage is premature.
On 5 May 2017, the defendant's solicitor sent an email to the plaintiff's solicitors attaching schedule 1 and schedule 2 of the defendant's contributions. The email stated that additional items had been added to schedule 1 including items 288 to 431 which had been inadvertently omitted from previous drafts. Schedule 2 included mortgage payments between June 2016 and April 2017.
By email of 26 May 2017, the plaintiff's solicitors stated that they considered the parties had entered an agreement by 10 April 2017 in relation to the defendant's outgoings, yet by the email of 5 May 2017 a further schedule had been provided which included a further 154 items. The plaintiff's solicitors stated that the plaintiff accepted that outgoings subsequent to 5 July 2016 would appropriately be added, but otherwise objected to the additional outgoings.
By letter of 20 July 2017, the defendant's solicitors asserted that the agreement made in April 2017 does not preclude the defendant from making additional contribution claims.
For the reasons that follow, I do not accept that assertion.

The issues

The parties advance competing minutes of the directions that should be made to complete the determination of the amount of the defendant's contributions to the Property. The issue of substance that divides the parties is whether their communications by April 2017 gave rise to an agreement between them that limited the defendant's claim for contributions to the property to those that had been agreed between the parties, subject to any contributions made after July 2016.

Legal principles

The legal principles on whether the parties made a contract are well known. I apply the following recent summary in Levingston v Levingston:[3]
It is of the essence of what the law regards as a contract that there is a voluntary assumption by the parties of a legally enforceable duty. In order that a contract be constituted by an offer and acceptance, the putative offer must reveal an intention to give rise, upon acceptance, to an obligation. In this context, as generally elsewhere in the law of contract, intention is assessed objectively; that is done by reference to what is conveyed to a reasonable person in the position of the parties by what was said and done, and having regard to the circumstances in which those statements and conduct happened. In making that assessment, the conduct of the parties subsequent to the making of the alleged agreement may be taken into account.
[3] Levingston v Levingston [2017] WASCA 91 [24].
The principles relevant to the proper construction of an agreement are also well known. They have been recently summarised by the Court of Appeal in Black Box v Terra Vision.[4]
[4] Black Box Control Pty Ltd v Terra VisionPty Ltd [2016] WASCA 219 [42].

Was a contract made and what were its terms?

In my opinion, for the reasons that follow:
(1)The parties made a contract in writing constituted by the defendant's solicitor's email of 10 April 2017, and the plaintiff's solicitors' letter of 3 October 2016, read in the context of the other communications between them.
(2)Properly construed in its context, the substance of the agreement was that the parties agreed that the defendant's contribution to the Property up to 5 July 2016 would be fixed in the amount reflecting the defendant's schedule, with the item numbers listed in the email of 10 April 2017 removed and following apportionment of the water rates and building/home/contents insurance items in accordance with the approach explained in the plaintiff's solicitors' letter of 3 October 2016.
The defendant does not seriously dispute that the communications culminating in the email of 10 April 2017 gave rise to a contract. Rather, the issue is the proper construction and effect of that contract.
The parties' communications occurred in the framework of, and should be construed in the context of, the court's order of 27 June 2016. That order directed that the defendant provide the plaintiff with a schedule setting out the date and amount of payments that the defendant claimed to have made by way of financial contribution to the Property. The defendant's email of 5 July 2016, attaching a detailed schedule, was sent in compliance with that order and was expressed to have been so sent. There was and could have been no reservation by the defendant of liberty to add further claims at a later time. In its context, the email of 5 July 2016 and its schedule revealed an objective intention to state, for the purposes of assessing the parties' entitlements to the proceeds of sale of the Property, the entirety of the claims made by the defendant for financial contribution to the Property.
The communications that followed must be understood in that framework.
Thereafter, the evident object of the parties' communication was to explore whether agreement could be reached in relation to the claims made by the defendant the subject of order 7(a) and detailed in the email of 5 July 2016, and thereby to avoid the need for the court to be involved in the determination of those claims of the defendant.
Consistently with that objective, the communications between the parties thereafter progressively reduced the issues between them in relation to the question of which of the claims made in the defendant's email of 5 July 2016 should be allowed.
The letter of 3 October 2016, read as a whole, evinces an objective intention to resolve, in a final and binding way, the contents of the defendant's claims for contribution to the Property. The plaintiff's willingness to accept the six identified items, all of which he had previously disputed, was expressed to be conditional on the defendant's withdrawing of her claim to the seven identified items to which the plaintiff maintained his objection, failing which the defendant would be put to proof of all items unsupported by documents or supported by documents that do not specifically refer to the Property.
The defendant's solicitor's email of 10 April 2017 'confirmed' what had been said by telephone on 28 March 2017 that the defendant had, on a without admission basis, agreed to remove the identified item numbers from her contribution schedule and to apportion the water rates and building/home/contents insurance items in the contribution schedule. The email also stated that the defendant's solicitors were in the process of preparing a draft minute of consent orders which set out, among other things, the parties' agreed contributions.
Read in its context, that language reveals an objective intention that the parties had thereby reached agreement as to the contents of the contributions made by the defendant to the Property, and that that agreement would constitute the amount of the defendant's contributions up to 5 July 2016 for the purposes of the account to be taken.
The defendant's solicitors have filed an affidavit explaining the omission of items from the 5 July 2016 list. Given that the issues are of the existence and terms of a contract, that evidence does not bear on the resolution of the issues.

Conclusion

Consequently, it is appropriate to make orders to the effect sought by the plaintiff.