Stadler v Roberts

[2018] WASC 82

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   STADLER -v- ROBERTS [2018] WASC 82

CORAM:   MASTER SANDERSON

HEARD:   9 MARCH 2018

DELIVERED          :   20 MARCH 2018

FILE NO/S:   CIV 1190 of 2018

BETWEEN:   EVE STADLER

Plaintiff

AND

BRUCE HAROLD ROBERTS
First Defendant

LYNETTE JOY ROBINSON
Second Defendant

DENNIS WILLIAM ROBINSON
Third Defendant

RICHARD ROBINSON
Fourth Defendant

Catchwords:

Summary judgment - Application by second and fourth defendants - Turns on own facts

Legislation:

Nil

Result:

Judgment granted

Category:    B

Representation:

Counsel:

Plaintiff:     Mr G M G McIntyre SC

First Defendant            :     No appearance

Second Defendant        :     Mr M C Macdonald

Third Defendant           :     No appearance

Fourth Defendant         :     Mr M S Macdonald

Solicitors:

Plaintiff:     Saharan Family & Criminal Lawyers

First Defendant            :     No appearance

Second Defendant        :     Macdonald Rudder

Third Defendant           :     No appearance

Fourth Defendant         :     Macdonald Rudder

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

Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7; (1988) 164 CLR 387

1. MASTER SANDERSON:  This is the second and fourth defendants' application for summary judgment.  The statement of claim pleads that Edna Reby Dillon (the deceased) died on 6 June 2016.  The first and third defendants are nephews of the deceased.  The second defendant is the niece of the deceased and the fourth defendant is the son of the second defendant.

2. It is pleaded that in January 2013 the deceased was living alone in a residence in Victoria Park.  Paragraph 8 of the statement of claim reads as follows:

   In January 2013 the Plaintiff entered into an oral agreement with the First Defendant, acting as agent for the deceased to be provided with lodging in a room in the Residence for a lodging fee of $55 per week.  And the Plaintiff moved into the Residence in the second week of January 2013.  That agreement terminated in April 2013 and the Plaintiff departed from the Residence in April 2013 ('the First Period of the lodgement of agreement').

3. After some short hiatus it would appear the plaintiff resumed lodging with the deceased.  Paragraph 10 is then in the following terms:

   In June 2013 the First Defendant arranged to meet with the Plaintiff, advised the Plaintiff that the deceased had requested that the Plaintiff return to reside in the Residence and made an oral offer to the Plaintiff that, if she moved back into the Residence and acted as a carer for the deceased until her death, the Plaintiff would receive remuneration for the service she provided from the proceeds of the sale of the Residence following the deceased's death ('the Promise').

4. It is thereafter pleaded the plaintiff resided with the deceased until the date of death of the deceased.  She acted as the deceased's carer.  By par 14 the plaintiff pleads as follows:

   The Care was provided by the Plaintiff at the Residence, on the basis of the Promise of the First Defendant, and with the knowledge and acquiescence of the Second, Third and Fourth Defendants, in consideration of the Promise made by the First Defendant.

5. By par 15 it is pleaded the Promise induced an assumption the plaintiff would be reasonably renumerated for care and by par 16 it is pleaded the plaintiff acted in reliance upon the Promise to her detriment.  By par 18 it is pleaded the four defendants are beneficiaries of the deceased's estate.  Paragraph 19 is then in the following terms:

   The First, Second, Third and Fourth Defendants' entitlement to a share of the deceased's estate is subject to a constructive trust in respect of a sum realisable from the estate equivalent to the reasonable remuneration for the Care which the Plaintiff provided to the deceased, to which the Plaintiff is entitled as a consequence of the Promise and the Care she provided in reliance upon and induced by the Promise ('the Plaintiff's Entitlement').

6. It was submitted on behalf of the second and fourth defendants that as the executor of the estate is not a party to the action the Promise must have been made by the first defendant on his own behalf.  It is not alleged he made the Promise as agent for the second and fourth defendants.  What is alleged is that because the second and fourth defendants are beneficiaries of the estate and because they knew of the Promise and did nothing, they are jointly and severally liable with the other defendants to pay the full amount of the plaintiff's claim under her agreement with the first defendant.

7. No claim is made in contract.  What is said is there is estoppel by acquiescence giving rise to the court imposing a constructive trust.  Reliance is placed on the High Court decision in Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7; (1988) 164 CLR 387.

8. In support of the application the second and fourth defendants rely on an affidavit of the second defendant sworn 21 December 2017.  By par 5 of that affidavit, the second defendant says she was not involved in the financial affairs of the deceased and had no knowledge of any alleged promise.  She says she has been advised by her son, the fourth defendant, that he too had no knowledge of any promise.  There is no evidence to the contrary provided by the plaintiff.

9. Whatever may be the merits of the plaintiff's claim against the first and third defendants, it is clear she can have no claim against the second and fourth defendants.  They did not make any promise and there is no pleaded basis upon which they could be held to account for any promise that might have been made by the first defendant.  They cannot have been knowingly concerned in any alleged breach of fiduciary duty because the estoppel pleaded does not appear to arise out of any fiduciary obligations.

10. In my view, there is no merit in the plaintiff's claim against the second and fourth defendants.  While I am conscious of the need not to stifle development of the law, it is not possible to discern any reasonable basis for the claim as pleaded in the statement of claim.

11. There should be judgment in favour of the second and fourth defendants against the plaintiff.  I will hear the parties as to the precise form of orders and as to costs.