Worthington v Worthington
[2013] WASC 220
•5 JUNE 2013
WORTHINGTON -v- WORTHINGTON [2013] WASC 220
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 220 | |
| Case No: | CIV:3264/2011 | ON THE PAPERS | |
| Coram: | KENNETH MARTIN J | 5/06/13 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Application to strike out statement of claim refused | ||
| B | |||
| PDF Version |
| Parties: | MICHELLE PATRICIA WORTHINGTON CATHERINE SIU GUE WORTHINGTON |
Catchwords: | Practice and procedure Strike out application Further amended statement of claim Failure to disclose cause of action Oral contract Constructive trust Occupied shed |
Legislation: | Property Law Act 1969 (WA), s 34(1)(a) Rules of the Supreme Court 1971 (WA), O 20 r 19(2) Statute of Frauds 1667 (Imp), s 4 |
Case References: | Abjornson v Urban Newspapers Pty Ltd [1989] WAR 191 General Steel Industries Inc v Commissioner for Railways (NSW) (1984) 112 CLR 125 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
CATHERINE SIU GUE WORTHINGTON
Defendant
Catchwords:
Practice and procedure - Strike out application - Further amended statement of claim - Failure to disclose cause of action - Oral contract - Constructive trust - Occupied shed
Legislation:
Property Law Act 1969 (WA), s 34(1)(a)
Rules of the Supreme Court 1971 (WA), O 20 r 19(2)
Statute of Frauds 1667 (Imp), s 4
Result:
Application to strike out statement of claim refused
(Page 2)
Category: B
Representation:
Counsel:
Plaintiff : No appearance
Defendant : No appearance
Solicitors:
Plaintiff : Birman & Ride
Defendant : Civic Legal
Case(s) referred to in judgment(s):
Abjornson v Urban Newspapers Pty Ltd [1989] WAR 191
General Steel Industries Inc v Commissioner for Railways (NSW) (1984) 112 CLR 125
(Page 3)
1 KENNETH MARTIN J: This is a strike out application heard on the papers. The defendant is challenging pars 4, 13 and 14 of the plaintiff's amended statement of claim filed in these proceedings on 14 February 2013. The challenge is brought under agreed directions which were made pursuant to a minute consensually submitted by the parties on 11 March 2013 (see my orders of 13 March 2013). The application is brought subsequent to the filing of a defence by the defendant on 5 March 2013.
Factual background
2 The underlying facts concern some rather crude extended family arrangements entered without legal advice in May or June 2010 regarding land at Bullsbrook known as 'Heaslane Court'. The plaintiff is the daughter of the late Harold Worthington and Alanna Worthington. It is said that Harold and the defendant (Catherine) married in about 1987, this being Harold's second marriage. In early 2010 Harold and Catherine were the proprietors (as joint tenants) of Heaslane Court and lived there. Harold was ill with cancer. In May or June 2010 it appears that some verbal arrangements were entered pursuant to which his daughter Michelle (the plaintiff) and Harold's first wife, Alanna (Michelle's mother) were to occupy a renovated shed on a part of Heaslane Court.
3 It is in that context that the par 4 (oral) contract is pleaded. It is said that Michelle and Alanna would be allowed to reside at the shed, free of charge for as long as they wished, provided that they would assist Harold and Catherine in maintaining the property and in caring for the unwell Harold for the remainder of his life.
4 Harold passed away on 19 October 2010. The Heaslane Court property passed entirely to Catherine, by survivorship.
5 It is said that in breach of the contract, Catherine, by her lawyers, then demanded Michelle and Alanna vacate the shed at Heaslane Court and thereby cease any further occupancy of the converted shed. It is contended that Catherine had expended approximately $28,700, either as the cost of conversions to the shed or, for 'expenses' (pleaded to be Michelle's 'contributions' at par 7).
6 Catherine demanded that Michelle and Alanna leave the property. According to the defendant, Michelle and Alanna left in or around August 2012. Michelle essentially says now that it would be unconscionable for Catherine not to recognise that she, Michelle, has a beneficial interest in the property by way of constructive trust.
(Page 4)
7 Pursuant to the sequence of directions, the defendant filed a written outline of submissions on 28 March 2013, which was responded to by the plaintiff's submissions in opposition on 12 April 2013.
The strike out application and relevant law
8 This strike out application led to the plaintiff's solicitors generating a further amended statement of claim of 12 April 2013. It was explained in the plaintiff's submissions that its pleas in relation to constructive trust in the original statement 'may have been inelegant' and the plaintiff has 'filed a further amended the (sic) statement of claim to address this issue'. The plaintiff also says that 'this is not a concession that the strike out application has merit'.
9 The plaintiff's further amended statement of claim of 12 April 2013 contains revised pleas seen at pars 13, 14 and 16. These pleas bear upon the constructive trust argument and relief sought by the plaintiff: see particularly par 13.4 concerning a 'common intention constructive trust' and at par 14.3, the new plea concerning an 'unconscionability constructive trust'.
10 In each instance, the constructive trust asserted by the plaintiff is said to be 'for the benefit of the parties, in shares to be determined'.
11 Specifically, the plaintiff's constructive trust plea in par 13.1 is formulated on the basis of the plaintiff's asserted payment of 'contributions' (referring to par 7). The constructive trust plea in par 14 is formulated on the basis of the plaintiff providing 'the assistance pleaded in par 4.3 to 5.3 inclusive' and the payment by the plaintiff of the 'contributions'.
12 In addition to challenging the pleas as to a constructive trust, the defendant's strike out application directs an attack against par 4, which pleads an oral agreement that is defined as a 'Contract'. According to the defendant's written submissions, the challenge against this plea invokes s 34(1)(a) of the Property Law Act 1969 (WA) (PLA) on the basis the plaintiff is seeking to establish a licence and that s 34 bars creation of an interest in land 'except by writing'. However, s 34(2) of the PLA recognises that s 34 does not affect the 'creation or operation of resulting, implied or constructive trusts'. In Abjornson v Urban Newspapers Pty Ltd [1989] WAR 191, 194, 199 - 200 Burt CJ and Kennedy J both recognised that s 34(1)(a) of the PLA essentially regulated the creation of interests in land by parol. It was not directed to agreements as such.
(Page 5)
13 In the present case, the plaintiff eschews any argument that the par 4 contract created an interest in land. The significance of the par 4 contract appears to be towards a claim for breach damages (which in Abjornson both Burt CJ (194) and Kennedy J (200) recognised as a possibility that s 34(1)(a) would not constrain). Any challenge against the enforceability of an oral agreement on the basis that it is not in writing would need to be done by invoking s 4 of the Statute of Frauds1667 (Imp), if applicable (see Abjornson 194, 199 - 200).
14 In any event, the plaintiff's par 4 plea as to the Contract is incorporated by reference into par 14, as regards the alternative plea of a constructive trust grounded upon alleged underlying unconscionability.
Conclusions
15 I am of the view that the constructive trust arguments which have been raised essentially involve factual assertions which will need to be resolved at a trial. They are inappropriate for a summary resolution. The plea in par 4 as to the contract is inseparably bound up in the overall constructive trust dispute.
16 I decline to strike out these pleas, as it is not clear that they manifestly fail to disclose an arguable cause of action: see General Steel Industries Inc v Commissioner for Railways (NSW) (1984) 112 CLR 125.
17 A further contention is raised in the defendant's written submissions concerning what is said to be the plaintiff's prior inconsistent statements contained in her affidavits (see par 39 and par 42 of submissions). But as the plaintiff says in written response, this does not constitute a basis to strike out the present statement of claim on a basis that it fails to disclose an arguable cause of action. Evidence is not admissible on such an application, see Rules of the Supreme Court 1971 (WA)O 20 r 19. The defendant's submissions as regards embarrassment vis-à-vis particulars of the alleged agreement only seem to generate arguments which are more appropriate for assessment following what appears as an inevitable line of cross-examination at the trial.
18 The application to strike out the further amended statement of claim is refused. The defendant must pay the plaintiff's costs of the failed application to be taxed and paid immediately following quantification by the taxing officer.
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