Wellstead v Wellstead

[2017] WASC 73

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   WELLSTEAD -v- WELLSTEAD [2017] WASC 73

CORAM:   MASTER SANDERSON

HEARD:   14 MARCH 2017

DELIVERED          :   14 MARCH 2017

PUBLISHED           :  17 MARCH 2017

FILE NO/S:   CIV 2809 of 2016

BETWEEN:   GRAHAM JOHN WELLSTEAD

Plaintiff

AND

GWENDOLINE WELLSTEAD
First Defendant

SUSANNE JANE CHEETHAM in her capacity as Executor of the Estate of the Late JAMES JOHN WELLSTEAD   
Second Defendant

WELLSTEAD BILLABONG PTY LTD
Third Defendant

Catchwords:

Practice and procedure - Application by defendant for summary judgment - Turns on own facts

Legislation:

Nil

Result:

Defendant's application for summary judgment dismissed

Category:    B

Representation:

Counsel:

Plaintiff:     Mr S Penglis

First Defendant              :     Mr J D MacLaurin

Second Defendant         :     Mr J D MacLaurin

Third Defendant            :     Mr J D MacLaurin

Solicitors:

Plaintiff:     Kings Park Corporate Lawyers

First Defendant              :     Metaxas & Hager

Second Defendant         :     Metaxas & Hager

Third Defendant            :     Metaxas & Hager

Case(s) referred to in judgment(s):

Permanent Mortgages Pty Ltd v Vandenbergh [2010] WASC 10; (2010) 41 WAR 353

1. MASTER SANDERSON:  This was the defendants' application for summary judgment.  An extension of time was required to bring the application and no issue was taken by the plaintiff on that question.  Accordingly, I extended time.  After hearing argument I indicated to the parties I would dismiss the defendants' application and publish reasons for my decision.  These are those reasons.

2. Unlike applications for summary judgment by a plaintiff under O 14, a defendant who is unsuccessful on a summary judgment application under O 16 has a right of appeal.  Accordingly, reasons need to be provided for dismissing the summary judgment application.  Those reasons must disclose the basis upon which the application is dismissed.  However, as the matter will now proceed through to trial no finding of fact can be made nor is it appropriate to deal in depth with the legal issues raised by the parties.  These reasons should be read in that light.

3. One of the difficulties with this application is that the statement of claim in its present form is manifestly defective.  Counsel for the plaintiff admitted as much during the course of the hearing.  Nonetheless, leaving to one side the pleading difficulties, it is possible to ascertain the cause of action the plaintiff seeks to advance.  The plaintiff is the son of the first defendant and the late James John Wellstead.  The defendants between them own a number of farming properties which are described in the statement of claim as 'Billabong'.  The plaintiff alleges that between 1977 and 2000 his mother and father made certain representations to the effect that the plaintiff would receive Billabong.  Paragraph 8 of the present statement of claim pleads these 'representations' and other related matters which can, for present purposes, be put to one side.  The plaintiff alleges that, acting on the representation, he continued to work on Billabong and eschewed other employment and investment opportunities.  He also says that he invested some $225,000 in improvements to Billabong.  He alleges despite their undertaking to do so, his parents refused to transfer Billabong to him.

4. At this point, the present statement of claim goes off in a tangent.  Perhaps the only relevant part of the pleading is to note the plaintiff refers to a deed of family arrangement pursuant to which he received the sum of $500,000 in lieu of Billabong.  I will come back to this deed later in these reasons.  For present purposes it is enough to note the plaintiff says the defendants are estopped from resiling from the promises they made to him with respect to Billabong.  In the prayer for relief he claims either transfer to him of Billabong or equitable compensation.

5. During the course of his submissions, counsel for the plaintiff made it plain that the case being advanced was quite straightforward.  The plaintiff alleged representations were made, he acted on those representations to his detriment and the defendants are now estopped from relying on the representations.  It was the plaintiff's position, based upon an amended pleading, that he had an arguable case.  It was submitted even with the defective pleading it was clear what case was being put and the allegations the defendants had to answer.

6. For their part the defendants focused on the deed of family arrangement.  This deed appears to have been entered into in December of 2003.  A copy of the deed appears as attachment LH 1 to the affidavit of Luke Hagar sworn 14 November 2016.  The operative part of the deed reads as follows:

   Between;

   James John WELLSTEAD of 19 Kurannup Road, Bayonet Head, 6330

   Gwendoline WELLSTEAD of 19 Kurannup Road, Bayonet Head, 6330

   Graham John WELLSTEAD of PO Box 319, Busselton, 6280

   Caroline Jane WELLSTEAD of PO Box 319, Busselton, 6280

   GJ & CJ Wellstead agree to;

   1.Assign any lease for farming lands to JJ & G Wellstead affective from this date and receive no further lease proceeds.  Lease is associated with farm lands owned by Wellstead Billabong Pty Ltd and JJ & G Wellstead.  Final lease payment due to GJ & CJ Wellstead.

   2.Transfer 5000 shares in Wellstead Billabong Pty Ltd to JJ Wellstead or his nominee.

   3.Give up all powers of guardian, appointer and trustee in The Graham Wellstead Family Trust, a trust created by Robert Kimberley Blythe on the 24^th Day of October 1991.

   4.Make no further claim for any compensation payout or entitlement for any farm land owned by Wellstead Billabong Pty Ltd or land being Kojonup Locations 5468, 3585 and 7040.

   JJ & G Wellstead agree that on acceptance and settlement of this agreement they will pay as consideration an amount of $500 000 being a capital amount after any stamp duty, capital gains tax and legal fees.

   Signed by;

   Graham John Wellstead  James John Wellstead

   Caroline Jane Wellstead  Gwendoline Wellstead

7. As I indicated above, this deed of family arrangement is referred to in the present statement of claim.  But the present plea goes nowhere.  Given the plaintiff denies the efficacy of this deed it should probably not be referred to in the statement of claim.  When and if it is pleaded as a defence by the defendants the plaintiff can explain why he says the deed is not effective in the reply.  To refer to the deed in the statement of claim would be anticipating a defence.

8. The plaintiff submits that a triable issue exists with respect to the deed because of the assumptions of 'undue influence' and/or 'economic distress'.  The plaintiff points out there is a presumption of undue influence and it is for the defendants to overcome that presumption:  see Permanent Mortgages Pty Ltd v Vandenbergh [2010] WASC 10; (2010) 41 WAR 353. Once that point is reached the plaintiff says the case is arguable.

9. In my view, the plaintiff has made out his position.  The elements of estoppel are presently pleaded.  The presumption of undue influence in relation to the deed means the defendants have the carriage of the action on that question.  It is not appropriate to determine on summary judgment whether the defendants will be able to establish the deed is a bar to an action by the plaintiff.

10. For these reasons I dismissed the defendants' application and ordered that the costs of the application, including reserved costs, be costs in the cause.