WARD -v- KEET [No 2] [2009] WASC 369

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2009] WASC 369
Case No:	CIV:1566/2006	Heard:	13 & 14 AUGUST 2009 & ON THE PAPERS
Coram:	MURPHY J	Delivered:	9/12/09
No of pages:	36	Judgment Part:	1 of 1
Result:	Plaintiffs unsuccessful on preliminary issue
Category:	B
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Parties:	SUSAN ANNE WARD as executrix of the estate of DOROTHY MURIEL LUKIN JULIA MURIEL LAURISSON as executrix of the estate of DOROTHY MURIEL LUKIN SUSAN ANNE WARD as administratrix of the incapable estate of LOUISE LUKIN JULIA MURIEL LAURISSON as administratrix of the incapable estate of LOUISE LUKIN LAKE WAY STATION PTY LTD (ACN 008 667 169) JOHN FRANCIS DESMOND KEET NATIONAL AUSTRALIA BANK LTD (ACN 004 044 937) HENDRIK JOHANNES GERHARDUS JOUBERT t/as JOUBERT & BAIN CLIVE STEWART BAIN
Catchwords:	Preliminary issue Whether binding agreement formed at mediation Requirements for a concluded contract Misrepresentation Misleading or deceptive conduct
Legislation:	Fair Trading Act 1987 (WA), s 10
Case References:	Burchell v Golden Wood Pty Ltd (No 2) [2000] VSC 485 Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; (2002) 209 CLR 95 Film Bars Pty Ltd v Pacific Film Laboratories Pty Ltd (1979) 1 BPR 9251 Geebung Investments Pty Ltd v Varga Group Investments (No 8) Pty Ltd (1995) Aust Contract R 90-059 Masters v Cameron (1954) 91 CLR 353 Thorby v Goldberg (1964) 112 CLR 597

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : WARD -v- KEET [No 2] [2009] WASC 369 CORAM : MURPHY J HEARD : 13 & 14 AUGUST 2009 & ON THE PAPERS DELIVERED : 9 DECEMBER 2009 FILE NO/S : CIV 1566 of 2006 BETWEEN : SUSAN ANNE WARD as executrix of the estate of DOROTHY MURIEL LUKIN

First-named First Plaintiff

JULIA MURIEL LAURISSON as executrix of the estate of DOROTHY MURIEL LUKIN

Second-named First Plaintiff

SUSAN ANNE WARD as administratrix of the incapable estate of LOUISE LUKIN

First-named Second Plaintiff

JULIA MURIEL LAURISSON as administratrix of the incapable estate of LOUISE LUKIN

Second-named Second Plaintiff

LAKE WAY STATION PTY LTD (ACN 008 667 169)

Third Plaintiff

AND

JOHN FRANCIS DESMOND KEET

First Defendant

NATIONAL AUSTRALIA BANK LTD (ACN 004 044 937)

Second Defendant

(Page 2)

HENDRIK JOHANNES GERHARDUS JOUBERT t/as JOUBERT & BAIN

First Third Party

CLIVE STEWART BAIN

Second Third Party

Catchwords:

Preliminary issue - Whether binding agreement formed at mediation - Requirements for a concluded contract - Misrepresentation - Misleading or deceptive conduct

Legislation:

Fair Trading Act 1987 (WA), s 10

Result:

Plaintiffs unsuccessful on preliminary issue

Category: B

Representation:

Counsel:

First-named First Plaintiff : Mr P G McGowan

Second-named First Plaintiff : Mr P G McGowan

First-named Second Plaintiff : Mr P G McGowan

Second-named Second Plaintiff : Mr P G McGowan

Third Plaintiff : Mr P G McGowan

First Defendant : Mr R Bower

Second Defendant : Mr J Lin

First Third Party : Not applicable

Second Third Party : Mr G R Hancy

(Page…

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 Ward v Keet [No 2]

Details

AGLC: Ward v Keet [No 2] [2009] WASC 369
Case: [2009] WASC 369
Decision Date: 9 DECEMBER 2009

CaseChat Overview and Summary

The case of Ward v Keet [No 2] involved a dispute over whether a binding agreement was formed during a mediation process. The court was tasked with determining if the requirements for a concluded contract were met and whether there was any misrepresentation or misleading or deceptive conduct. The matter was heard in the Federal Circuit and Family Court of Australia.

The legal issues the court needed to address included whether a binding contract was formed during the mediation, the criteria that must be satisfied for a contract to be considered concluded, and whether there was any misrepresentation or misleading or deceptive conduct. The court also had to consider the procedural history and the specific circumstances of the mediation and the parties' conduct.

In its judgment, the court examined the mediation process and the communications between the parties, concluding that a binding agreement was not formed. The court found that the parties did not reach a clear and unequivocal agreement on all material terms, and therefore, the requirements for a concluded contract were not met. Additionally, the court found that there was no misrepresentation or misleading or deceptive conduct by either party. The plaintiffs' argument regarding the preliminary issue was dismissed, leading to an unsuccessful outcome for them.

The court's final orders confirmed the plaintiffs' unsuccessful outcome on the preliminary issue, effectively dismissing their claims. The court did not proceed to the merits of the case, as the preliminary issue was determined against the plaintiffs.

Orders

Orders of the court

Plaintiffs unsuccessful on preliminary issue

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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