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Thomas v Irwin

Thomas v Irwin

Case [2020] ACTSC 47 5 March 2020

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Thomas v Irwin
Citation:	[2020] ACTSC 47
Hearing Date:	17 February 2020
DecisionDate:	5 March 2020
Before:	Crowe AJ
Decision:	See [113]
Catchwords:	CONTRACTS – FORMATION – AGREEMENT – Intention to make a concluded bargain – parties litigating dispute in the Supreme Court of the Australian Capital Territory – court ordered mediation of dispute – agreement to settle at end of mediation – settlement agreement sufficiently certain to be specifically enforced.
Legislation Cited:	Family Provision Act 1969 (ACT) Family Provision Act 1972 (WA) Jurisdiction of Courts (Cross-Vesting) Act 1987 (WA) Jurisdiction of Courts (Cross-Vesting) Act 1993 (ACT) Trustee Act 1925 (ACT)
Cases Cited:	Anaconda Nickel Ltd v Tarmoola Australia Pty Ltd [2000] WASCA 27 Attorney-General for the Commonwealth v Breckler & Ors [1999] HCA 28; 197 CLR 83 Barry v City West Water Limited [2002] FCA 1214 Barrier Wharfs Ltd v W Scott Fell & Co Ltd (1908) 5 CLR 647 Baulkham Hills Private Hospital Pty Ltd v G R Securities Pty Ltd & Ors (1986) 40 NSW LR 622 Calderbank v Calderbank [1976] Fam 93; [1975] 3 All 333 Charlesworth Nominees Pty Ltd v Charlesworth [2017] VSC 445 Geebung Investments Pty Ltd v Varga Group Investments No 8 Pty Ltd (1995) 7 BPR 14,551 Lahodiuk v Pace [2013] NSWSC 512 Masters v Cameron (1954) 91 CLR 353 P J Leahy & Ors v A R Hill & Anor [2018] NSWSC 6 Pavlovic v Universal Music Australia Pty Ltd [2015] NSWCA 313; 90 NSWLR 605 Muschinski v Dodds [1985] HCA 78; 160 CLR 583 Sinclair, Scott & Co v Naughton (1929) 43 CLR 310 Sinnot v Hocking (1882) 8 VLR(Eq) 205 Wilkinson v Clerical Administrative and Related Employees Superannuation Pty Ltd (1997) 79 FCR 469
Parties:	Robert Bryant Thomas (Plaintiff) Michelle Elizabeth Irwin (as Executor of the Will of Lindsay Bryant Thomas) (Defendant)

Representation:

Counsel

C. Erskine SC (Plaintiff)

S. Chapple (Defendant)

Solicitors

Colquhoun Murphy Lawyers (Plaintiff)

DDCS Lawyers (Defendant)

File Number(s):

SC 491 of 2018

Crowe AJ

Background

Lindsay Bryant Thomas (the deceased) died on 10 February 2018. He made his last will on 21 January 2018 whereby he appointed his wife Michelle Elizabeth Irwin (the defendant) as executor. The deceased left his entire estate to the defendant, providing that she survived him by 30 days, which she did.

On 4 May 2018, the defendant was granted probate of the 21 January 2018 Will.

On 2 November 2018, Robert Bryant Thomas (the plaintiff) filed an Originating Application seeking relief under the Family Provision Act 1969 (ACT). The plaintiff is the son of the deceased from a previous relationship. The deceased’s estate contained a real property in Western Australia and property in the Australian Capital Territory. On 6 February 2019, the plaintiff filed an Amended Originating Application to add to his prayer for relief a claim under the Family Provision Act 1972 (WA). The Plaintiff relied upon the Jurisdiction of Courts…

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 Thomas v Irwin

Details

AGLC: Thomas v Irwin [2020] ACTSC 47
Case: [2020] ACTSC 47
Decision Date: 5 March 2020

CaseChat Overview and Summary

The case of Thomas v Irwin was heard in the Supreme Court of the Australian Capital Territory, where the primary dispute centred around the enforceability of a settlement agreement reached between the parties. The plaintiff, Thomas, sought to enforce a settlement agreement that was concluded following a mediation process. The defendant, Irwin, contested the enforceability of the agreement, arguing it lacked the necessary certainty to be enforced.

The central legal issues that the court had to address were whether the settlement agreement was sufficiently certain and whether it demonstrated the requisite intention to create legal relations, thus making it enforceable. The court also had to consider whether the settlement agreement could be enforced despite the absence of consideration from the defendant.

In reaching its decision, the court examined the nature and content of the settlement agreement. The court found that the agreement was clear and specific in its terms and that the parties had demonstrated an intention to be legally bound by it. The court rejected the notion that the absence of fresh consideration from the defendant was fatal to the enforceability of the agreement. The court held that the settlement agreement was sufficiently certain and that it could be specifically enforced. The court ordered that the agreement be enforced as per its terms.

The court's final orders were to enforce the settlement agreement as concluded between the parties, with the specific terms and conditions detailed in the agreement to be adhered to by both parties. The court ordered that the parties comply with the terms of the settlement agreement, which included the payment of certain sums by the defendant to the plaintiff.

Orders

Orders of the court

See [113]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Thomas v Irwin [2020] ACTSC 47

Cases citing this decision · 0 of 0 shown

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Cases cited in this decision · 16 of 16 shown

P J Leahy v A R Hill
[2018] NSWSC 6 Para 1

…Mr Chapple referred me to a decision of Black J in the Supreme Court of New South Wales. In P J Leahy & Ors v A R Hill & Anor [2018] NSWSC 6 ( Leahy ), the parties had been engaged in a dispute in proceedings in the New South Wales Civil and Administrative Tribunal. There were numerous issues between the parties…
Boyd v Feeney
[2017] NSWSC 1595

…and the decision of the Court of Appeal in Sayed v National Australia Bank Ltd [2013] NSWCA 304 is another. In Boyd v Feeney [2017] NSWSC 1595, I followed the view expressed by Brereton J, and noted that the language “in principle” seemed to me to indicate something short of a binding commitment, although there wer…
Charlesworth Nominees Pty Ltd v Charlesworth
[2017] VSC 445 Para 1

…l not allow a trust to fail for want of a trustee; see Sinnot v Hocking (1882) 8 VLR(Eq) 205 at 210, and Charlesworth Nominees Pty Ltd v Charlesworth [2017] VSC 445 per Croft J at para [25]. It seems to me that it was plainly in the contemplation of the parties at the Mediation on 5 March 2019 that they could lea…
Pavlovic v Universal Music Australia Pty Ltd
[2015] NSWCA 313

…ce [2013] NSWSC 512 Masters v Cameron (1954) 91 CLR 353 P J Leahy & Ors v A R Hill & Anor [2018] NSWSC 6 Pavlovic v Universal Music Australia Pty Ltd [2015] NSWCA 313; 90 NSWLR 605 Muschinski v Dodds [1985] HCA 78; 160 CLR 583 Sinclair, Scott & Co v Naughton (1929) 43 CLR 310 Sinnot v Hocking (1882) 8 VLR(Eq) 205 W…
Sayed v National Australia Bank Limited
[2013] NSWCA 304

…n is one possible example of such a situation, and the decision of the Court of Appeal in Sayed v National Australia Bank Ltd [2013] NSWCA 304 is another. In Boyd v Feeney [2017] NSWSC 1595, I followed the view expressed by Brereton J, and noted that the language “in principle” seemed to me to indicate something sh…
Lahodiuk v Pace
[2013] NSWSC 512 Para 1

…iations. All of these circumstances support the likelihood that the parties intended to be immediately bound; see per Sackar J in Lahodiuk v Pace [2013] NSWSC 512 at para [22].…
Cacace v Bayside Operations Pty Ltd
[2006] NSWSC 572 Para 18

…e to enter into a binding contract. That approach is broadly similar to that which was taken by Brereton J in Cacace v Bayside Operations Pty Ltd [2006] NSWSC 572 at [18], where his Honour observed that the phrase “agreed in principle” is often used to indicate that “although consensus on a matter has apparently be…
Barry v City West Water Limited
[2002] FCA 1214 Para 1

…the context of the document in Exhibit “D1” in discussing the language used in Exhibit “D1”. Allsop J said in Barry v City West Water Limited [2002] FCA 1214 at para [135], notwithstanding that the document setting out the basic terms of an alleged agreement was said to be “rudimentary, difficult to read and couch…
Anaconda Nickel Ltd v Tarmoola Australia Pty Ltd
[2000] WASCA 27 Para 1

…o far as the defendant challenges the agreement on the basis of certainty, Mr Erskine SC relied upon Anaconda Nickel Ltd v Tarmoola Australia Pty Ltd [2000] WASCA 27 at [25] and the decision of Kirby P (as he then was) in Geebung Investments Pty Ltd v Varga Group Investments No 8 Pty Ltd (1995) 7 BPR 14,551 ( Geeb…
Wilkinson v Clerical Administrative and Related Employees Superannuation Pty Ltd
[1998] FCA 51 Para 1

…ayne and Callinan JJ) said, quoting from the judgment of Heerey J in Wilkinson v Clerical Administrative and Related Employees Superannuation Pty Ltd (1997) 79 FCR 469 at 480 (omitting case references):…
Geebung Investments Pty Ltd v Varga Group Investments (No 8) Pty Ltd
[1995] NSWCA 166 Para 1

…ia Pty Ltd [2000] WASCA 27 at [25] and the decision of Kirby P (as he then was) in Geebung Investments Pty Ltd v Varga Group Investments No 8 Pty Ltd (1995) 7 BPR 14,551 ( Geebung Investments ) to support the proposition that a binding agreement may be reached notwithstanding that some non-essential or mechanical…
Muschinski v Dodds
[1985] HCA 78 Para 1

…As to the identity of the trustee, Mr Chapple referred me to the decision in Muschinski v Dodds [1985] HCA 78; 160 CLR 583 ( Muschinski ) at 613-4 for the proposition that there is a requirement for certainty of trustee before an express trust can come into existence.…
Masters v Cameron
[1954] HCA 72 Para 1

…rskine SC put the plaintiff’s case on two bases. His primary argument was that the agreement to settle fell into the first of the Masters v Cameron (1954) 91 CLR 353 categories. That is, the agreement was final as to the terms of the contract and the parties intended to be immediately bound by it. However, the parti…
Sinclair, Scott & Co Ltd v Naughton
[1929] HCA 34 Para 1

…ate Hospital Pty Ltd v G R Securities Pty Ltd & Ors (1986) 40 NSW LR 622 ( Baulkham Hills ) at 628 and referring to Sinclair, Scott & Co v Naughton (1929) 43 CLR 310 at 317. That is, the parties, at the Mediation, reached agreement intending to be bound immediately and exclusively by the terms which they had agreed…
Barrier Wharfs Ltd v W Scott Fell & Co Ltd
[1908] HCA 88 Para 1

…dated 3 July 2019, there is force in the submission of Mr Chapple relying on the statement of Higgins J in Barrier Wharfs Ltd v W Scott Fell & Co Ltd (1908) 5 CLR 647 at 650 that: “.. It is one thing for two parties to settle what are to be the terms of an agreement, if it should be made; and quite another thing to…
[2010] 1 NZLR 553
[2010] 1 NZLR 553

…Beers Motors Ltd (unreported, 10 March 1992), approved by a unanimous Court of Appeal in Oracle New Zealand Ltd v Price Waterhouse Administration Ltd [2010] 1 NZLR 553, where the Court held that the words “in principle” are read, when used by a commercial party, as indicating that it lacked an intention at that time…

Legislation cited in this decision · 5

Family Provision Act 1969 (ACT)
1 mention (from Para 1)
Family Provision Act 1972 (WA)
1 mention (from Para 1)
Jurisdiction of Courts (Cross-vesting) Act 1987 (TAS)
1 mention (from Para 1)
Jurisdiction of Courts (Cross-vesting) Act 1993 (ACT)
1 mention (from Para 1)
Trustee Act 1925 (ACT)
1 mention (from Para 1)