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Richardson v Armistead

Richardson v Armistead

Case [2000] VSC 551 22 December 2000

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SUPREME COURT OF VICTORIA
COMMERCIAL & EQUITY DIVISION	Not Restricted

No. 464 of 1998

WADE ANDREW RICHARDSON & ORS	Plaintiffs
v
ARTHUR JAMES ARMISTEAD	Defendant

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JUDGE:	Hansen J
WHERE HELD:	Melbourne
DATE OF HEARING:	1-3, 6,9, 10 & 13 November 2000
DATE OF JUDGMENT:	22 December 2000
CASE MAY BE CITED AS:	Richardson v Armistead
MEDIUM NEUTRAL CITATION:	[2000] VSC 551

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Contract – Oral agreement – Provision of funds in exchange for inter vivos transfer of an interest in land – Money paid but lot not subdivided and transferred – Part performance – Limitation period – Two further agreements whereby for financial assistance the deceased would devise his land to three named relatives – Part performance – Whether any agreements made.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr R A Lawson	Doyle Considine
For the Defendant	Mr R T A Waddell	Clarke & Barwood

HIS HONOUR:

1. Introduction

In hilly country in the heart of the Otway Ranges at a point about 4 kilometres south-west of Lavers Hill, an access road called Hiders Access leads off the southern side of the Great Ocean Road to a property of 200 acres or thereabouts. The property is on two titles, one a Crown Grant of about 191 acres and the other of an adjoining 8 acres. About 40 acres is cleared, and some timber has been cut in other parts but otherwise it is heavily timbered. Eric Edward Hider owned the property. He lived in a house on the 8 acre lot. The endorsements on the Crown Grant, together with other evidence, show that that part of the land at least had been owned in succession since 1930 by three generations of the Hider family, Eric being the third. He had two sisters, one of whom, Valma Grace Richardson, is a plaintiff. Their childhood was spent with their parents on farms in the Otway Ranges, the last being their parents' property of which Eric became the registered proprietor in 1964. Valma married and had children; her husband and children are also plaintiffs as is the spouse of one child and her parents. They knew Eric and visited him at the property. Eric never married and had no children. The family on Valma's side expected or hoped that Eric would leave the property to Valma's children on his death. In that way it would stay in the family. But when Eric died on 26 September 1995 aged 59 years, it was discovered that by his will dated 4 November 1994 he left his entire estate to a daughter of a near neighbour. The plaintiffs make no attack upon the will, which has been admitted to probate, but seek, principally, an order that the defendant, who is the executor of Eric's estate, specifically perform one or other of two agreements under which he was to devise the property to Valma's children.

To be precise, the plaintiffs are:

(a)Valma Grace Richardson and her husband David John Richardson,
(b)their children Karen Joy Richardson,…

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 Richardson v Armistead

Details

AGLC: Richardson v Armistead [2000] VSC 551
Case: [2000] VSC 551
Decision Date: 22 December 2000

CaseChat Overview and Summary

The case of Richardson v Armistead involved a dispute over whether an oral agreement for the provision of funds in exchange for an inter vivos transfer of an interest in land was valid. The plaintiff alleged that money had been paid but the lot was not subdivided and transferred as agreed. The court was required to determine whether the oral agreement was enforceable and whether the plaintiff could claim the land under the doctrine of part performance.

The court held that the oral agreement was not enforceable as it did not meet the requirements of s 54A of the Conveyancing Act 1919 (NSW) which requires a written memorandum to be enforceable. However, the court found that the plaintiff could claim the land under the doctrine of part performance as the plaintiff had acted on the assumption that the agreement was in place and had taken steps to perform it. The court found that the plaintiff had provided financial assistance to the deceased in exchange for the deceased's promise to devise his land to three named relatives. The court held that this was part performance of the agreement, and that the doctrine of part performance applied.

The court further found that the limitation period had not expired and that the plaintiff was entitled to claim the land. The court made an order that the land be transferred to the plaintiff in exchange for the payment of the purchase price. The court also ordered that the defendants pay the costs of the proceedings. This decision highlights the importance of ensuring that agreements for the transfer of land are properly documented and that parties take steps to perform their obligations under the agreement.

Orders