Thurkle v Smith - [2022] WASC 162

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   THURKLE -v- SMITH [2022] WASC 162
CORAM:   MASTER SANDERSON
HEARD:   27 APRIL 2022
DELIVERED          :   11 MAY 2022
PUBLISHED           :   11 MAY 2022
FILE NO/S:   CIV 1611 of 2021
BETWEEN:   DEAN JEFFERY THURKLE
First Plaintiff
DEAN JEFFERY THURKLE
Second Plaintiff
AND
LOIS KATHLEEN SMITH
First Defendant
LOIS KATHLEEN SMITH
Second Defendant

Catchwords:

Practice and procedure - Application to strike out statement of claim with no leave to replead

Legislation:

Property Law Act 1969 (WA)
Rules of the Supreme Court 1971 (WA)

Result:

Statement of claim struck out - Leave to replead refused

Category: B

Representation:

Counsel:

First Plaintiff	:	RJ Lee
Second Plaintiff	:	RJ Lee
First Defendant	:	M Curwood SC
Second Defendant	:	M Curwood SC

Solicitors:

First Plaintiff	:	Biddulph & Turley
Second Plaintiff	:	Biddulph & Turley
First Defendant	:	Jebb Legal
Second Defendant	:	Jebb Legal

Cases referred to in decision:

Birmingham v Renfrew (1937) 57 CLR 666
Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd [2016] HCA 26
Luke v Luke (1936) 36 SR (NSW) 310

MASTER SANDERSON:

This was the defendants' application to strike out the plaintiffs' re‑amended statement of claim (RSOC). Although the chamber summons framed the application as a strike out application, the defendants maintained leave to replead not be granted. In effect then, the application was a hybrid - a strike out application coupled with a defendant's application for summary judgment under O 16 r 1 of the Rules of the Supreme Court 1971 (WA). In her written submissions, counsel for the plaintiffs conceded the RSOC required further amendment. But beyond these foreshadowed amendments, the plaintiffs maintained they had a good cause of action, the statement of claim should not be struck out and summary judgment ought not be entered for the defendant.
The relevant facts as disclosed in the RSOC are as follows. The plaintiff is the executor of the estate of Sandra Thurkle (deceased). The deceased was the plaintiff's mother. He brings this action in his personal capacity and as executor of the estate of the deceased. The deceased died on 25 November 2013. Probate of her will was granted to the second named plaintiff on 17 April 2014.
Between approximately 1984 and the death of the deceased, the deceased was in a de facto relationship with Robert William Gordon. Mr Gordon died on 7 March 2021. Probate of Mr Gordon's will was granted to the second named defendant on 6 April 2021.
Until 4 July 2002, the deceased and Mr Gordon were the registered proprietors as joint tenants of the property described in the RSOC as 'the Railway Parade property'. Until 4 July 2002, Mr Gordon was the sole registered proprietor of a property described in the RSOC as 'the Henry St property'.
Central to the plaintiffs' claim is par 9 of the RSOC. It reads as follows (marking up omitted):
9.On or about 28^th March 2002 SANDRA THURKLE and ROBERT GORDON executed wills…

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 Thurkle v Smith

Details

AGLC: Thurkle v Smith [2022] WASC 162
Case: [2022] WASC 162
Decision Date

CaseChat Overview and Summary

In the Supreme Court of Western Australia, Dean Jeffery Thurkle and Dean Jeffery Thurkle as executor of the estate of Sandra Thurkle (deceased) have brought an action against Lois Kathleen Smith and Lois Kathleen Smith as trustee of the estate of Robert William Gordon (deceased). The plaintiffs seek declarations and orders in relation to the Railway Parade and Henry St properties, which were jointly owned by the deceased and Mr Gordon until 2002. The central issue in this case is whether the plaintiffs have a valid claim under the doctrine of mutual wills or estoppel. The court had to decide whether the re-amended statement of claim disclosed a cause of action that could be maintained. The court found that the mutual wills claim was not viable because the deceased had revoked her will, and the estoppel claim was also insufficient as the representation made by Mr Gordon was vague and did not lead to any detriment to the plaintiffs. The court concluded that the statement of claim should be struck out, and leave to replead should be refused.

The court's reasoning was based on the legal principles of mutual wills and estoppel. The court noted that the deceased's revocation of her will in 2013 made the mutual wills claim untenable. Regarding the estoppel claim, the court held that the representation made by Mr Gordon was not clear enough to found an estoppel, and the detriment alleged was not a result of the representation. The court also found that the plaintiffs had not taken any steps to sell the Henry St property in reliance on the alleged representation, as they held the property as trustees. Therefore, the court decided to strike out the statement of claim and refuse leave to replead, effectively entering summary judgment for the defendants. The court emphasised that it was not in anyone's interest to prolong the matter any further. The parties were directed to confer on the form of orders and provide written submissions on costs if they could not reach an agreement.

Orders