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 28th March 2002 SANDRA THURKLE and ROBERT GORDON executed wills that provided, inter alia, that they would each bequeath their respective estate to the survivor of them and that, upon the death of the survivor, the residuary estate would be divided:
9.1As to $20,000 to ADAM GORDON;
9.2As to $20,000 to the children of ADAM GORDON;
9.3As to $20,000 to BRADLEY THURKLE;
9.4As to the balance then remaining to DEAN THURKLE 'absolutely and without creating any trust I express the wish that Dean Thurkle make adequate provision for Tania (sic) Thurkle'.
The RSOC pleads Mr Adam Gordon is the adult son of Mr Robert Gordon and Tanya Thurkle is the sister of the plaintiff and the daughter of the deceased. Ms Tanya Thurkle suffers from a disability. The RSOC defines the person's name in pars 9.1 through to 9.4 as the 'Intended Beneficiaries'.
Paragraphs 13 and 13A of the RSOC plead the legal basis on which the plaintiffs put their claim. They read as follows:
13.The Plaintiffs claim that the said wills were mutual wills in that they were made pursuant to an agreement or common understanding or intention that SANDRA THURKLE and ROBERT GORDON would utilise their respective estates during their lifetimes for the benefit of each other and that the survivor of them would, upon the death of the survivor, leave their residuary estate, including their interests in the Railway Parade and Henry St properties to the Intended Beneficiaries.
13A.Alternatively, in or about 2002 ROBERT GORDON stated to SANDRA THURKLE that should she predecease him, that on his death that his estate, and in particular the Railway Parade and Henry St properties, less $60,000, would be given to the Plaintiff absolutely so that the Plaintiff could make adequate provision for TANYA THURKLE.
It is clear from par 13 the plaintiffs are basing their claim on the doctrine of mutual wills. In the alternative, the claim seems to be some form of estoppel. If that is the case, the usual elements to create an estoppel - a representation, detrimental reliance on the representation and a party acting contrary to the representation - must be pleaded. On the face of it, it is difficult to see how any estoppel could arise if the doctrine of mutual wills is not engaged. But at this point, it is sufficient to note the plaintiffs' claim is put in the alternative.
Paragraphs 14.1 and 14.2 of the RSOC plead that in April 2002 the deceased transferred her half interest in the Railway Parade property to Mr Gordon and around the same date Mr Gordon transferred his half share in the Henry St property to the deceased. It is pleaded this was done either pursuant to the mutual wills agreement or as part of the matters relevant to the estoppel.
The will made by the deceased on 17 September 2013 revoked the 2002 will. Mr Gordon's will of November 2020 gifted his estate to beneficiaries and did not include the plaintiff or other members of his family. The plaintiff claims that Mr Gordon's estate holds the Railway Parade property and his interest in the East Cannington property on trust for the plaintiffs personally and alternatively, seeks a declaration Mr Gordon's estate includes the Railway Parade property and Lois Smith either in her capacity as trustee of Mr Gordon's estate or in her own right holds Mr Gordon's interest in the Railway Parade property on trust to distribute in accordance with pars 13 and 13A of the pleading.
The leading authority on mutual wills is the High Court decision of Birmingham v Renfrew (1937) 57 CLR 666. Four elements are required for mutual wills. They are:
(a)two or more people make an agreement as to disposal of some or all of their property on death;
(b)they execute wills pursuant to that agreement;
(c)the parties agree that they are bound not to revoke their wills without notice to the other party or parties; and
(d)the agreement becomes binding when the first party dies leaving his or her will unrevoked.
The deceased's revocation of her 2002 will in 2013 is fatal to the plaintiffs' claim that Mr Gordon was bound by the 2002 will and by statements made at the time to deal with the Railway Parade property in the way the plaintiff claims. This is not a plea which is capable of being maintained if the RSOC is amended. The defect is fundamental and incurable.
That then leaves the estoppel claim. The representation made by Mr Gordon was made to the deceased. That is the way the position is expressed in par 13A. By par 15, the plaintiffs plead Mr Gordon stated to the deceased and the plaintiff in or about September to November 2013 that 'he declined to put the Henry St property in the Plaintiff's name at that time to avoid the possibility of being evicted but that the Railway Parade and Henry St properties would be the Plaintiff's "when he was gone"'. The defendants say and I accept on an ordinary reading, this is a representation or assurance to the plaintiff personally.
Paragraph 17A pleads that after the deceased's death Mr Gordon made representations to the plaintiff of two descriptions. First, the Henry St property was 'at the end going to be yours anyway'. That was a representation the plaintiff personally would receive from Mr Gordon his share in the Henry St property. Second, it is pleaded (Mr Gordon) would make sure that upon his death his estate would be bequeathed to the 'Intended Beneficiaries'. The defendants say there is no reference to the gifting being in accordance with Mr Gordon's 2002 will. Furthermore, the defendants say the paragraph as pleaded is too vague to found a cause of action. In making this submission, counsel relied upon the decision in Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd [2016] HCA 26. French CJ, Kiefel and Bell JJ noted at [35]:
It has long been recognised that for a representation to found an estoppel it must be clear. In Low v Bouverie, it was said that the language used must be precise and unambiguous. This does not mean that the words used may not be open to different constructions, but rather that they must be able to be understood in a particular sense by the person to whom the words are addressed. The sense in which they may be understood provides the basis for the assumption or expectation upon which the person to whom they are addressed acts. The words must be capable of misleading a reasonable person in the way that the person relying on the estoppel claims he or she has been misled. The statement that the tenants would be "looked after at renewal time" is not capable of conveying to a reasonable person that the tenants would be offered a further lease.
It is also clear the second limb of the representation pleaded in par 17A is a representation to the plaintiff personally rather than to the plaintiff in his capacity as the personal representative of the deceased's estate. It is not pleaded that Mr Gordon gave any assurances he would not dispose of the Railway Parade property by an inter vivos transaction prior to his death. Accordingly, on the basis of the claim as pleaded, the fact Mr Gordon's estate did not include the Railway Parade property upon his death was not a breach of the alleged promise in par 17A of the RSOC and cannot found a claim for unconscionable conduct as pleaded in par 19 of the RSOC.
Paragraph 17B of the RSOC pleads the plaintiff acted in reliance on the matters pleaded at pars 15 and 17A by refraining from seeking rental payments from Mr Gordon for the Henry St property and not taking steps to sell the Henry St property in which the deceased's estate held a 50% interest by invoking the provisions of s 126 of the Property Law Act 1969 (WA). In fact, the deceased's estate never had any interest in the Railway Parade property. That must mean par 17B.1 refers to not seeking rental from Mr Gordon in relation to the Henry St property which was owned 50% by the deceased's estate and 50% by Mr Gordon as tenants in common. Co-owners have no right to rental in the absence of agreement or ouster and neither of those matters are pleaded: see Luke v Luke (1936) 36 SR (NSW) 310, 314. The asserted rental claim cannot support a claim for any form of estoppel over Henry St.
While it is true the plaintiff did not take any steps to sell the interest of the deceased's estate in the Henry St property, he was holding that interest as a trustee. The giving up of a claim for rent or a right of sale could not constitute an act of detrimental reliance of the plaintiff personally. It follows the act of reliance in par 17B could only arise in respect of a claim on behalf of the estate of the deceased. To put that another way, there are no acts of reliance currently pleaded by the plaintiff personally.
In the circumstances then, the RSOC does not disclose a cause of action either with respect to the mutual wills claim or the estoppel claim. On that basis, it should be struck out. The question then is whether or not leave to replead ought be granted or whether in effect there should be summary judgment for the defendant.
In my view, the proper course here is to either strike out the statement of claim and refuse leave to replead or enter summary judgment for the defendant. The RSOC in its present form does seem to contain all the material facts which support the plaintiffs' claim. It was not suggested by counsel for the plaintiffs there was anything further which could be pleaded so as to advance the plaintiffs' claim. That being so, it does not really matter how the material facts are rearranged. They simply could not found a cause of action against the defendants. It is in no one's interest to prolong this matter any further. Accordingly, I will make orders bringing this matter to an end. The parties should confer as to the form of orders. In relation to costs, the parties should in the absence of agreement, provide short written submissions within seven days of the publication of these reasons.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AH
Associate to Master Sanderson
11 MAY 2022
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