Winter v Nemeth

[2018] NSWCA 236

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Winter v Nemeth [2018] NSWCA 236
Hearing dates:	17 October 2018
Decision date:	17 October 2018
Before:	Meagher JA; Sackville AJA; Emmett AJA
Decision:	The appeal is dismissed with costs.
Catchwords:	CONTRACTS – formation – respondent promised to give appellant money to buy house in Double Bay upon successful resolution of family law proceedings – no agreement – no intention to create legal relations – no issue of principle
Legislation Cited:	Supreme Court Act 1970 (NSW), s 45 Uniform Civil Procedure Rules 2005 (NSW), r 51.55
Category:	Principal judgment
Parties:	Janet Sarah Winter (Appellant) Virginia Diroy Nemeth (Respondent)
Representation:	Counsel: RG Hanrahan (Appellant) R White (Respondent)   Solicitors: Hal Lawyers (Appellant) Hudson Law (Respondent)
File Number(s):	2018/221936
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Common Law Citation: [2018] NSWSC 644 Date of Decision: 16 May 2018 Before: Campbell J File Number(s): 2016/230995

Judgment

1. THE COURT: This is an appeal from a judgment of Campbell J: Winter v Nemeth [2018] NSWSC 644. The appellant claimed the benefit of an oral contract with the respondent, under which the latter was said to have promised to provide her with sufficient funds to purchase a house in the Sydney suburb of Double Bay. At the time, the respondent was engaged in family law proceedings with her elderly husband, and the appellant was a close friend who had been providing her with assistance and support in relation to the prosecution of those proceedings. The appellant introduced the respondent to a Mr Jim Byrnes, who worked “outside the law” as a “troubleshooter” and was engaged by the respondent under a so-called “litigation funding contract” in early 2009: Judgment [40].

2. The appellant alleged that there was an agreement in writing between her and the respondent for a payment in return for the appellant continuing to assist with the family law proceedings. The primary Judge did not accept the appellant’s evidence that the parties had entered into a written agreement. There is no challenge to that finding.

3. However, the appellant also relied on an oral promise made by the respondent in the following terms:

This matter will end, and we could walk away 30 odd million dollars better off, plus the house. We will win. You need to start to look out for a house for yourself. When this case is over, I will give you the money to buy a house to live in at Double Bay for all the help you are giving me and everything that you have done for me. At the end I will have the money for you to buy a home. That money will be nothing to me. (Emphasis added.)

4. The primary judge accepted the appellant’s evidence that the respondent made a promise in these terms, but was not satisfied that the promise was contractual. His Honour regarded it as a “strange feature” of the appellant’s case that it was based on an agreement to do what she had previously done voluntarily “apparently out of friendship”, but was thenceforth to be done for reward in the form of a very substantial capital payment: Judgment [36].

5. The appellant attempted to overcome the difficulty that the respondent’s “promise” found by the primary Judge did not incorporate any reciprocal promise by her to perform any specific tasks for the benefit of the respondent. She did so by relying on the reference in the promise to “all the help you are giving me and everything you have done for me”. This language objectively considered does not convey that the appellant promised to provide continuing assistance in return for the very substantial payment she was to receive, much less that she was to provide particular forms of assistance to the respondent. Mr Hanrahan, who appeared for the appellant, conceded that there was no evidence that the appellant said anything to indicate that she promised or undertook to perform work in the future in return for the promised payment.

6. There was no dispute on appeal that the primary judgment correctly stated the principles governing the formation of an enforceable contract. As the appeal does not raise any question of general principle, and the Court is satisfied having considered all the evidence that the primary judge did not err in concluding that there was no such contract, this is an appropriate appeal in which the Court should exercise its power under Supreme Court Act 1970 (NSW), s 45(4) to give reasons for its decision in short form: see also Uniform Civil Procedure Rules 2005 (NSW), r 51.55.

7. The primary Judge concluded, correctly in our view, that “the language is consistent only with a statement of intention to make a very substantial gift to the plaintiff as a trusted and valued friend if things go as well in the Family Court proceedings as the [respondent] believed she then had reason to hope”: Judgment [80]. In addition, and again correctly in our view, he held that there was no objectively ascertainable intention to create legal relations between the parties: Judgment [85]. The ground of appeal directed to the quantification of any damages to which the appellant might have been entitled does not arise, and there is no utility in our addressing it.

8. Accordingly, this appeal is dismissed with costs.

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Decision last updated: 17 October 2018