Worthington v Worthington [No 2] - [2014] WASC 448

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
Boden v Chen [2013] WASC 308
Character Design Pty Ltd v Kohlen [2013] WASC 112
Combe v Combe [1951] 2 KB 215
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
Worthington v Worthington [2013] WASC 220

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…

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.

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Details

Case: [2014] WASC 448
Decision Date: 27 NOVEMBER 2014

CaseChat Overview and Summary

The appeal before the court in Worthington v Worthington [No 2] concerns an application by Michelle Worthington to add her mother, Allana Worthington, as a co-plaintiff, amend her writ, and have the liability issues tried separately from the damages/quantum issues. The dispute arises from an alleged agreement between Michelle, Allana, Harold Worthington, and Catherine Worthington regarding the occupancy of a shed on land known as 'Heaslane Court'. Michelle claims that she and Allana were promised the right to reside in the shed free of charge for as long as they wished, in return for assisting Harold and Catherine in maintaining the property and caring for Harold, who was ill with cancer at the time. The property passed entirely to Catherine upon Harold's death, and Catherine subsequently demanded that Michelle and Allana vacate the shed. Michelle argues that it would be unconscionable for Catherine not to recognise her beneficial interest in the property through a constructive trust.

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.