Taylor v Giampaolo
[2004] WASC 109
TAYLOR & ORS -v- GIAMPAOLO & ANOR [2004] WASC 109
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASC 109 | |
| Case No: | CIV:1014/2004 | 17 MAY 2004 | |
| Coram: | MASTER NEWNES | 27/05/04 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Application for judgment dismissed | ||
| B | |||
| PDF Version |
| Parties: | HOWARD RAYMOND CLIFTON TAYLOR COLIN HOWARD TAYLOR JENNIFER ELLEN BAKER DOMINIC GIAMPAOLO MARIA PEPE |
Catchwords: | Practice and procedure Summary judgment Whether contract for sale of land before probate enforceable Turns on own facts |
Legislation: | Administration Act 1903 (WA), s 8 Property Law Act 1969 (WA), s 33, s 34 Public Trustee Act 1941 (WA), s 9 Transfer of Land Act 1893 (WA), s 85 |
Case References: | Cash v Nominal Defendant (1960) 90 WN (Pt I) (NSW) 77 Duskwood Pty Ltd v Bellara Willows Pty Ltd [2002] WASCA 353 Gertsch v Roberts; Estate of Gertsch (1993) 35 NSWLR 631 Laybutt v Amoco Australia Pty Ltd (1974) 132 CLR 57 Marist Bros Community Inc v Shire of Harvey (1995) 14 WAR 69 Mohamidu Mohideen Hadjir v Pitchey [1894] AC 437 Nagel v Hough (1927) 27 SR (NSW) 418 Sorna Pty Ltd v Flint & Anor [2000] WASCA 22 The Estate of Spencer Ex Parte Vincent (1963) 19 ABC 90 Collen v Wright (1857) 7 E&B 301 Estate of Just (No 2) (1974) 7 SASR 515 Harvell v Foster (1954) 2 QB 367 Tiverton Estates Ltd v Wearwell Ltd [1974] 1 All ER 209 Webster v Lampard (1993) 177 CLR 598 Will of Lyndon (1960) VR 112 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- COLIN HOWARD TAYLOR
JENNIFER ELLEN BAKER
Plaintiffs
AND
DOMINIC GIAMPAOLO
MARIA PEPE
Defendants
Catchwords:
Practice and procedure - Summary judgment - Whether contract for sale of land before probate enforceable - Turns on own facts
Legislation:
Administration Act 1903 (WA), s 8
Property Law Act 1969 (WA), s 33, s 34
Public Trustee Act 1941 (WA), s 9
Transfer of Land Act 1893 (WA), s 85
(Page 2)
Result:
Application for judgment dismissed
Category: B
Representation:
Counsel:
Plaintiffs : Mr B P Wheatley
Defendants : Mr M L Segler
Solicitors:
Plaintiffs : Nicholson Clement
Defendants : Shane Michael Brennan
Case(s) referred to in judgment(s):
Cash v Nominal Defendant (1960) 90 WN (Pt I) (NSW) 77
Duskwood Pty Ltd v Bellara Willows Pty Ltd [2002] WASCA 353
Gertsch v Roberts; Estate of Gertsch (1993) 35 NSWLR 631
Laybutt v Amoco Australia Pty Ltd (1974) 132 CLR 57
Marist Bros Community Inc v Shire of Harvey (1995) 14 WAR 69
Mohamidu Mohideen Hadjir v Pitchey [1894] AC 437
Nagel v Hough (1927) 27 SR (NSW) 418
Sorna Pty Ltd v Flint & Anor [2000] WASCA 22
The Estate of Spencer Ex Parte Vincent (1963) 19 ABC 90
Case(s) also cited:
Collen v Wright (1857) 7 E&B 301
Estate of Just (No 2) (1974) 7 SASR 515
Harvell v Foster (1954) 2 QB 367
Tiverton Estates Ltd v Wearwell Ltd [1974] 1 All ER 209
Webster v Lampard (1993) 177 CLR 598
Will of Lyndon (1960) VR 112
(Page 3)
1 MASTER NEWNES: This is an application by the defendants for summary judgment.
2 In the action, the plaintiffs claim against the defendants specific performance of an agreement in writing dated 5 March 2003, made between the second-named plaintiff on behalf of the plaintiffs and the first-named defendant ("Mr Giampaolo") on behalf of the defendants as trustees or executors of their late mother's estate, by which the defendants agreed to sell a property in Pinjarra to the plaintiffs for the sum of $150,000. The plaintiffs say that, pursuant to the agreement, on about 5 March 2003 they paid to Mr Giampaolo the sum of $2,000 by way of deposit. The plaintiffs say that subsequently, in reliance on the agreement, they incurred expenditure on the development of the property and, on 20 August 2003, they closed the existing supermarket they were operating on the land adjoining the property.
3 The plaintiffs plead in the amended statement of claim that settlement was to take place on 31 July 2003. It did not occur on that date, but on 16 December 2003 the plaintiffs informed the defendants that the plaintiffs were ready, willing and able to complete the agreement. The defendants refused to complete and an order for specific performance of the agreement is now sought by the plaintiffs. The plaintiffs plead in the alternative that Mr Giampaolo warranted to the plaintiffs that he was authorised by the second-named defendant ("Ms Pepe") to make the agreement as her agent and the plaintiffs claim against Mr Giampaolo damages for breach of warranty of authority.
4 The defendants say that no binding agreement was entered into and, if there was, the agreement is not capable of specific performance. The defendants say that the plaintiffs' claim is manifestly untenable and it should therefore be dismissed at this stage.
5 The defendants rely on several grounds for their contention that the plaintiffs have no arguable claim. They say first, that, although the defendants were appointed executors and trustees of their mother's estate, no grant of probate has yet been obtained and accordingly there could be no enforceable contract for the sale of the land, an asset of the estate; secondly, Ms Pepe did not authorise Mr Giampaolo to enter into the contract on her behalf in writing or otherwise - indeed, Ms Pepe knew nothing of it; thirdly, the agreement is so uncertain as to be unenforceable and; fourthly, that the agreement does not comply with the statutory requirements for a contract for the sale of land.
(Page 4)
6 In the course of oral argument on the application, the defendants' counsel did not appear to press the ground that the contract was not enforceable because the defendants did not yet have a grant of probate of the Will, although it was relied on in his written outline of submissions.
7 It was not in issue that the defendants have applied for a grant of probate, but have not yet obtained it. The plaintiffs argued that, as an executor or executrix gets their title and authority from the Will, and not from the grant of probate, the lack of a grant does not prevent the executor or executrix entering into a binding contract to sell the deceased's land: Laybutt v Amoco Australia Pty Ltd (1974) 132 CLR 57 per Gibbs J at 77 and Gertsch v Roberts; Estate of Gertsch (1993) 35 NSWLR 631 per Powell J at 635. The plaintiffs argued in the alternative that the defendants had acted as executors, having intermeddled in the estate by the sale of the property, and their acts bind the estate: The Estate of Spencer Ex Parte Vincent (1963) 19 ABC 90 and Cash v Nominal Defendant (1960) 90 WN (Pt I) (NSW) 77.
8 The position of an executor at common law has been affected in Western Australia by s 8 of the Administration Act, 1903 (WA) and s 9 of the Public Trustee Act 1941 (WA). Section 9 of the Public Trustee Act provides that, upon the death of any person, and until probate or administration is granted in respect of the estate, the real and personal estate of the deceased shall be deemed to vest in the Public Trustee. Under s 8 of the Administration Act,upon a grant of probate the real and personal estate of the deceased "shall, as and from the death of such person, pass to and become vested in the executor to whom probate has been granted …".
9 Section 9 of the Public Trustee Act replaced s 21 of the 1903 Administration Act, under which until there was a grant of probate or administration the estate vested in the Chief Justice, as formerly in England the personal estate of the intestate had vested in the Ordinary until a grant of administration.
10 It is clear that any acts of an executor prior to grant, done in the due course of administering the estate, will be validated retrospectively upon the grant to them. The question, then, is as to the authority (if any) that an executor has to perform executorial duties before a grant of probate. There is also a further question as to whether the executor named in the Will may be sued before a grant has been made to him. In Cash v Nominal Defendant (supra), Brereton J thought that in ordinary circumstances an executor could not be sued before grant because as a
(Page 5)
- general rule the executor's liability is to pay out of assets of the estate and, although these vest in the executor from the date of death, they do not so vest until probate, and until then the executor may renounce.
11 I think it is unnecessary for the purposes of this application to reach a concluded view as to the authority of an executor in respect of the assets of the estate before probate or whether, in the ordinary course, an executor can be sued before a grant. That is because, first, the plaintiffs in any event arguably have a cause of action against the defendants in respect of the alleged contract of sale and, secondly, they are not issues appropriately to be determined on a summary procedure of this sort.
12 Where an executor elects to undertake executorial acts in respect of the property of the estate before a grant of probate, he becomes an executor de son tort with the consequence that he cannot afterwards renounce and he may be sued before probate: Mohamidu Mohideen Hadjir v Pitchey [1894] AC 437 at 442; Nagel v Hough (1927) 27 SR (NSW) 418; cfThe Estate of Spencer Ex Parte Vincent (supra), where Jackson J doubted whether, strictly speaking, a named executor could be regarded as an executor de son tort, but nevertheless considered that liability would attach to the same extent for acts done before a grant.
13 In The Estate of Spencer Ex Parte Vincent, a decision of this Court, the named executor had, before a grant of probate, entered into an agreement with a third party to complete building work which the deceased had contracted to carry out, but which was incomplete at his death. The named executor was under a duty to complete the work under the building contract and a failure to do so would constitute a breach of the contract. It was held that, accordingly, in entering into the agreement with the third party to complete the contract work on behalf of the estate the executor was not carrying on the deceased's business, but simply taking a lawful and necessary step in the course of winding up the estate. The executor was therefore liable to the same extent as an executor de son tort and the estate was bound by the agreement.
14 In the present case, the defendants are the named executors and the only beneficiaries of the estate. It is clear that an executor after grant is entitled to sell land in the course of the due administration of an estate: Administration Act, s 10. If, as alleged, before grant the defendants elected to undertake executorial duties in the administration of the estate by entering into the agreement to sell the land, the defendants could be compelled to take a grant, which would have the effect of validating any agreement they are found to have made to sell the land to the plaintiffs.
(Page 6)
- Before grant, the defendants are arguably liable to be sued on the basis that they are executors de son tort.
15 The defendants also argued that the written agreement did not comply with the statutory provisions that apply to contracts for the sale of land. The agreement relied upon by the plaintiffs is plainly not a deed. It was argued that both under s 85 of the Transfer of Land Act 1893 (WA) and s 33 of the Property Law Act 1969 (WA), any agreement for the sale of land must be by deed. I do not accept that. In my view, neither of those provisions has any application to an executory contract for the sale of land and I do not accept that such a contract is required to be by deed.
16 It was also argued that the agreement did not comply with s 34 of the Property Law Act in that Mr Giampaolo was not authorised in writing by Ms Pepe to enter into the contract on her behalf as required by s 34(1). That submission, however, overlooks the decision of the Full Court in Marist Bros Community Inc v Shire of Harvey (1995) 14 WAR 69 where the majority held that s 34 does not apply to ordinary contracts for the sale of land in fee simple which will be eventually transferred by a transfer pursuant to the Transfer of Land Act at the time of settlement. See also Sorna Pty Ltd v Flint & Anor [2000] WASCA 22 per Ipp J at [7].
17 I do not consider that the absence of any evidence that Mr Giampaolo was authorised in writing to act on behalf of Ms Pepe, or even Ms Pepe's denial on affidavit that Mr Giampaolo had such authority, is necessarily fatal to the plaintiffs' case. The question of Mr Giampaolo's authority is a question of fact to be determined at trial. The plaintiffs have hedged their bets by an alternative plea of a breach of warranty of authority by Mr Giampaolo.
18 It was also argued on behalf of the defendants that the agreement was "too informal" to be enforceable. It was not clear, however, what elements of the agreement were said to be absent or uncertain. The document is in a brief, handwritten form, apparently prepared without legal assistance. It identifies, however, the parties, the property concerned, the price and the settlement date.
19 It was submitted by the defendants' counsel that the agreement refers to the defendants as "trustees" of the estate, rather than as executors, and on that basis it was unenforceable. Counsel for the defendants relied upon the decision of the Full Court in Duskwood Pty Ltd v Bellara Willows Pty Ltd [2002] WASCA 353 as authority for the proposition that, where a person expressly enters into a contract in one capacity, no evidence can be
(Page 7)
- led to establish that in fact they entered into the contract in some other capacity.
20 I would not dismiss the claim on that ground. Any issues as to the precise capacity, or purported capacity, in which the defendants entered into the agreement to sell the land (if it is found they did) are not, in my view, properly the subject of an application for summary judgment. Moreover, if the defendants are found to have acted as executors before grant, and accordingly are treated as executors de son tort, the capacity in which they purported to act is arguably of no consequence.
21 I would dismiss the application.
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