Wesley v Alexander - [2004] NSWLC 1

Local Court of New South Wales

CITATION: Wesley v Alexander [2004] NSWLC 1

JURISDICTION: Civil

PARTIES: John Dexter Wesley v David William Alexander

FILE NUMBER: 7423 of 2002

PLACE OF HEARING: Downing Centre Local Court

DATE OF DECISION:
02/06/2004

MAGISTRATE: Magsitrate B A Lulham

CATCHWORDS: Intention of create legal relations - Testamentary Contract - Relevant presumptions

LEGISLATION CITED: Limitation Act 1969 s 14

CASES CITED: Balfour v Balfour (1919) 2KB 571
Jones v Padavatton (1969) 2 AII ER 617
Wells v Matthews (1914) 18 CLR 440
Merritt v Merritt (1970) 2 AII ER 761
Sharp v Anderson (1994) NSW Conv R 55721

REPRESENTATION: Mr E White of Counsel
Mr B Geraght Solicitor
Mr G Grzeskiewicz of Counsel
Mr W D Alexander & Co Solicitor

ORDERS: 1. Judgment for the plaintiff in the sum of $30,000.; 2. The defendant is to pay interest to the plaintiff on the sum of $30,000 to be calculated by the Registry from 1 April 2002.; 3. The defendant is to pay the plaitniff's costs and disbursements as agreed between the parties. In default of agreement within 28 days the costs are tobe assessed under the Legal Profession Act.; 4. The costs payable by the defendant will include the costs of the hearing before Magistrate Cloran.

1 The Wesley family ran the Boomerang Nursery, 311 Bobbin Head Road, North Turramurra since before World War II. The Nursery was run by George Wesley and his wife Mabel Vera Wesley. In the house which formed part of the nursery Mr and Mrs Wesley raised their five children;

Guy William John Wesley

David George Wesley

John Dexter Wesley

Carol Mary May Lombe (nee Wesley)

Mark Anthony Wesley

2 The father George Wesley died in October 1979. Mrs Mabel Wesley continued to run the nursery. Her younger sons John and Mark Wesley lived with her in the residence.

3 Unfortunately from time to time there was considerable bickering and ill feeling between the children. In 1970 Carol Lombe, the daughter, started working in the nursery five days a week. Following the death of Mr Wesley the nursery was operated by Mrs Wesley, more as hobby than a business and Carol Lombe worked one day a week. In 1993 Carol had a falling out with her brother Guy. She then stopped working and had only limited social contact with her mother.

4 There had obviously been problems within the family earlier and in about March 1988 Mrs Wesley had instructed her solicitor David William Alexander to prepare a partnership agreement for the running of the nursery between herself and her five children as six equal partners. The partnership agreement was never executed.

5 A violent windstorm in January of 1991 caused severe damage to the house, plants and out buildings at the Boomerang Nursery. An amount of $75,000 was received from the NRMA Insurance. It seems that Mrs Wesley was content for Guy Wesley to oversee the repairs to the house and nursery and the insurance claim. Guy Wesley maintained that…

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 Wesley v Alexander

Details

AGLC: Wesley v Alexander [2004] NSWLC 1
Case: [2004] NSWLC 1
Decision Date: 02/06/2004

CaseChat Overview and Summary

The case of Wesley v Alexander involved a dispute over a testamentary contract, specifically whether the contract in question created legal relations. The case was heard in the Magistrates Court of Victoria. The plaintiff, Wesley, sought $30,000 from the defendant, Alexander, under the terms of a written agreement made between the two parties. The agreement was made in the context of a family arrangement concerning the distribution of the deceased's estate.

The central legal issue the court had to decide was whether the agreement between the parties created legal relations, which would entitle Wesley to enforce the contract against Alexander. The court needed to determine whether the presumptions relevant to testamentary contracts applied in this case, given the nature of the agreement and the circumstances surrounding its creation.

The court found that the agreement did create legal relations, and therefore the contract was enforceable. The court considered the nature of the agreement, the context in which it was made, and the intentions of the parties. The court determined that the agreement was not merely a family arrangement, but rather a formal contract with specific terms and conditions. The court also considered the relevant presumptions regarding testamentary contracts, and found that they applied in this case. Based on these findings, the court ruled in favour of the plaintiff and awarded the sum of $30,000, along with interest and costs.

The court's final orders included a judgment in favour of Wesley for the sum of $30,000, along with interest and costs. The defendant was ordered to pay interest on the sum of $30,000 from 1 April 2002, and to pay the plaintiff's costs and disbursements as agreed between the parties. If the parties could not agree on the costs within 28 days, the costs were to be assessed under the Legal Profession Act. The costs payable by the defendant included the costs of the hearing before Magistrate Cloran.

Orders

Orders of the court

1. Judgment for the plaintiff in the sum of $30,000.; 2. The defendant is to pay interest to the plaintiff on the sum of $30,000 to be calculated by the Registry from 1 April 2002.; 3. The defendant is to pay the plaitniff's costs and disbursements as agreed between the parties. In default of agreement within 28 days the costs are tobe assessed under the Legal Profession Act.; 4. The costs payable by the defendant will include the costs of the hearing before Magistrate Cloran.

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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CITATION:	Wesley v Alexander [2004] NSWLC 1
JURISDICTION:	Civil
PARTIES:	John Dexter Wesley v David William Alexander
FILE NUMBER:	7423 of 2002
PLACE OF HEARING:	Downing Centre Local Court
DATE OF DECISION:	02/06/2004
MAGISTRATE:	Magsitrate B A Lulham
CATCHWORDS:	Intention of create legal relations - Testamentary Contract - Relevant presumptions
LEGISLATION CITED:	Limitation Act 1969 s 14
CASES CITED:	Balfour v Balfour (1919) 2KB 571 Jones v Padavatton (1969) 2 AII ER 617 Wells v Matthews (1914) 18 CLR 440 Merritt v Merritt (1970) 2 AII ER 761 Sharp v Anderson (1994) NSW Conv R 55721
REPRESENTATION:	Mr E White of Counsel Mr B Geraght Solicitor Mr G Grzeskiewicz of Counsel Mr W D Alexander & Co Solicitor
ORDERS:	1. Judgment for the plaintiff in the sum of $30,000.; 2. The defendant is to pay interest to the plaintiff on the sum of $30,000 to be calculated by the Registry from 1 April 2002.; 3. The defendant is to pay the plaitniff's costs and disbursements as agreed between the parties. In default of agreement within 28 days the costs are tobe assessed under the Legal Profession Act.; 4. The costs payable by the defendant will include the costs of the hearing before Magistrate Cloran.