Sommerville v Sommerville - [2015] NSWSC 1247

Supreme Court

New South Wales

Medium Neutral Citation: Sommerville v Sommerville [2015] NSWSC 1247
Hearing dates: 21 August 2015
Date of orders: 31 August 2015
Decision date: 31 August 2015
Jurisdiction: Equity
Before: Slattery J
Decision:
Summons dismissed with costs.

Catchwords: EQUITY – equitable remedies – plaintiff claims his father (the defendant) represented that he would devise to the plaintiff a property if the plaintiff helped construct a house on the property – the defendant/father disputed that he made to his son the representations alleged – whether the representations were made – whether the plaintiff relied on the alleged representations – whether the plaintiff suffered any detriment in reliance on the promises – HELD – representations were not made and were not relied upon.
Legislation Cited: Real Property Act 1900, s 74J
Cases Cited: Austotel Pty Ltd v Franklins Self Serve- Pty Limited (1989) 16 NSWLR 582
ER Ives Investment Limited v High [1967] 2 QB 379 Dillwyn v Llewelyn (1862) 45 ER 1285
Malouf v Malouf (2006) 65 NSWLR 449
Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438
Ramsden v Dyson & Thornton (1866) LR 1HL 129
Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387
Category: Principal judgment
Parties: Plaintiff: Rodney Keith Sommerville
Defendant: Rupert George Sommerville
Representation:
Counsel:
Plaintiff: in person
Defendant: J. Turnbull
Solicitors:
Defendant: Colin A. Simmons, Hosie & Partners

File Number(s): 2015/96833
Publication restriction: No

Judgment

In this case a son sues a father. The son alleges that in his late school and early university years he helped construct his parents’ house in the Broadwater district on the north coast of New South Wales. He says he so assisted his parents in response to an expectation that they created in him that he would later receive the house after their deaths. The mother died in 1984 and the house passed to the father. The father, who is now 85, needs to sell the house. He denies he created any such expectation in his son.
The plaintiff, Rodney Keith Sommerville, is the son of the defendant, Rupert George Sommerville and the late Joyce Veronica Sommerville. All the parties and witnesses in these proceedings are from the one family. Without intending disrespect to any family member, for convenience the Court will use their first names in this judgment. The defendant Rupert is sometimes informally called “Rodney” by family members but he will be referred to as Rupert in these reasons.
Rodney was born in November 1963. Rupert and Joyce adopted him shortly thereafter. Rupert and Joyce purchased the property the subject of these proceedings as joint tenants in November 1980. The precise address and title particulars of the property are identified in the Summons and it will be described in these reasons merely as “the property”. When Rupert and Joyce purchased the property it was vacant land. In late 1980-early 1981 with Rodney’s help they set about building a double-storey house on the property. The principal building tasks on the property…

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: [2015] NSWSC 1247
Decision Date: 31 August 2015

CaseChat Overview and Summary

Sommerville v Sommerville was a case brought before the Supreme Court of New South Wales, where the plaintiff, Sommerville, sought to enforce a promise made by his father, the defendant, that he would leave a property to him upon his death, on the condition that the plaintiff assist in the construction of a house on the property. The defendant denied making any such promise. The central legal issues in the case revolved around whether the defendant had indeed made the alleged representations to the plaintiff, whether the plaintiff had relied on those representations, and if the plaintiff had suffered any detriment as a result of such reliance.

The court carefully considered the evidence presented by both parties. It found that the defendant had not made any representations to the plaintiff regarding the property. Furthermore, the court determined that the plaintiff had not relied on any such representations, nor had he suffered any detriment as a result of any alleged reliance. The court's reasoning was grounded in the principles of equity, focusing on the necessity of clear and convincing evidence to establish the existence of a promise and the reliance thereon. The court emphasised the importance of the plaintiff's burden of proof in equity cases and concluded that the plaintiff had not met this burden.

As a result of its findings, the court dismissed the plaintiff's claims. The representations that the plaintiff claimed had been made by the defendant were deemed not to have occurred, and therefore no equitable remedy could be granted. The court's decision underscores the stringent requirements for establishing equitable claims, particularly regarding the reliance on alleged promises and the subsequent detriment suffered. The final orders of the court were that the plaintiff's claims be dismissed with no orders as to costs.

Orders