JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: WORTHINGTON -v- WORTHINGTON [No 2] [2014] WASC 448
CORAM: KENNETH MARTIN J
HEARD: ON THE PAPERS
DELIVERED : 27 NOVEMBER 2014
FILE NO/S: CIV 3264 of 2011
BETWEEN: MICHELLE PATRICIA WORTHINGTON
Plaintiff
AND
CATHERINE SIU GUE WORTHINGTON
Defendant
Catchwords:
Practice and procedure - Application for leave to add plaintiff - Application for separate trials of liability and damages - Vague family arrangement to occupy a shed - Generic claim of 'estoppel' - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA), O 18 r 6, O 21 r 5, O 32 r 5
Result:
Application dismissed
Category: B
Representation:
Counsel:
Plaintiff: No appearance
Defendant: No appearance
Solicitors:
Plaintiff: Birman & Ride
Defendant: Su & Co
Case(s) referred to in judgment(s):
Allen v Gulf Oil Refining Ltd [1981] AC 1001
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
APT Finance Pty Ltd v Wingside Nominees Pty Ltd [No 2] [2009] WASCA 235
Character Design Pty Ltd v Kohlen [2013] WASC 112
Giumelli v Giumelli [1999] HCA 10; (1999) 196 CLR 101
John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd [2010] HCA 19; (2010) 241 CLR 1
Landsdale Pty Ltd v Moore [2009] WASCA 176
Lois Nominees Pty Ltd v Hill [2011] WASC 53
Love v KWS Capital Pty Ltd [2013] WASC 466
News Ltd v Australian Rugby Football League Ltd [1996] FCA 870; (1996) 64 FCR 410
Saleh v Romanous [2010] NSWCA 274; [2010] 79 NSWLR 453
Secola v McCann [2011] WASC 35
Smith v Maloney (1998) 19 WAR 209
Tepko Pty Ltd v Water Board [2011] HCA 19; (2001) 206 CLR 1
Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7; (1988) 164 CLR 387
Westpac Banking Corporation v Bell Group Ltd (in liq) [No 3] [2012] WASCA 157; (2012) 44 WAR 1
KENNETH MARTIN J:
Introduction
My reasons for decision of 5 June 2013 in Worthington v Worthington [2013] WASC 220 provide background to this latest application, which is brought by the plaintiff, Ms Michelle Worthington, but is opposed by the defendant, the plaintiff's mother-in-law, Ms Catherine Worthington. For clarity's sake, the main protagonists are hereafter referred to as Michelle, Catherine and Allana (Michelle's mother), unless otherwise required.
The action can be characterised as a 'vague family arrangement case', to use the expression of Drummond AJA in Westpac Banking Corporation v Bell Group Ltd (in liq) [No 3] [2012] WASCA 157; (2012) 44 WAR 1 [1757], invoking a line of cases involving unwritten promises, assumptions or agreements over property among family members.
In the 2013 reasons I summarised the origins of the dispute this way:
The underlying facts concern some rather crude extended family arrangements entered without legal advice in May or June 2010 regarding land…
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- Case
- [2014] WASC 448
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether Michelle had the right to add her mother as a co-plaintiff, amend her writ to reflect the new statement of claim, and separate the trial of liability from that of damages/quantum. The court considered the nature of the alleged agreement as a vague family arrangement and whether it could be enforced. The court also had to assess whether the proposed amendments to the statement of claim would introduce new issues that could prejudice the defendant, Catherine.
The court found that the action was characterised as a 'vague family arrangement case', and the alleged agreement was not sufficiently clear or formal to be enforceable. The court denied Michelle's application to add her mother as a co-plaintiff, as it would significantly alter the nature of the dispute and potentially prejudice the defendant. Regarding the proposed amendments to the writ, the court found that they introduced new issues that could prejudice the defendant and were therefore not permissible. Lastly, the court ruled against separating the trial of liability from that of damages/quantum, as it would not serve the interests of justice to do so in this case.
The court ultimately dismissed Michelle's applications, leaving the case to proceed with the existing parties and pleadings. The final orders reflect the court's decisions on each of the applications, maintaining the status quo and preventing any further amendments that could prejudice the defendant.
Orders
Orders of the court
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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
The action can be characterised as a 'vague family arrangement case', to use the expression of Drummond AJA in Westpac Banking Corporation v Bell Group Ltd (in liq) [No 3] [2012] WASCA 157; (2012) 44 WAR 1 [1757], invoking a line of cases involving unwritten promises, assumptions or agreements over property among family members. In the 2013 reasons I summarised the origins of the dispute this way: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 Allana 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 Michelle (the plaintiff) and Harold's first wife, Allana (Michelle's mother) were to occupy a renovated shed on a part of Heaslane Court.It is in that context that the par 4 [of an amended statement of claim filed 14 February 2013] (oral) contract is pleaded. It is said that Michelle and Allana would be allowed to reside at the shed, free of charge for as long as they wished, providing that they would assist Harold and Catherine in maintaining the property and in caring for the unwell Harold for the remainder of his life.Harold passed away on 19 October 2010. The Heaslane Court property passed entirely to Catherine, by survivorship.It is said that in breach of the contract, Catherine, by her lawyers, then demanded Michelle and Allana 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).Catherine demanded that Michelle and Allana leave the property. According to the defendant, Michelle and Allana 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. [2] - [6] Based on that state of affairs Michelle seeks, as pleaded under her second further amended statement of claim of 6 November 2013, damages for repudiation of contract, equitable compensation arising from 'estoppel', a declaration of a constructive trust concerning the Heaslane Court property, and otherwise, relief through quantum meruit. By the chamber summons filed 5 September 2014, Michelle has now applied:(1)for leave to add her mother, Allana, as a co-plaintiff;(2)for leave to amend her writ by a proposed statement of claim filed in substitution of the second further amended statement of claim dated 6 November 2013 (a minute of which was ultimately filed on 2 October 2014) (hereafter referred to as 'MSSC', the minute of proposed substituted statement of claim); and(3)to have the liability issues tried separately, and prior to, the damages/quantum issues.