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Young v Martin

Young v Martin

Case [2020] WASC 442 8 December 2020

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   YOUNG -v- MARTIN [2020] WASC 442
CORAM:   ALLANSON J
HEARD:   14 & 15 OCTOBER 2020
DELIVERED          :   8 DECEMBER 2020
FILE NO/S:   CIV 1315 of 2018
MATTER: Section 6(1) of the Family Provision Act 1972
The Estate of the late Stephen Alan Jones late of 1 Monterey Crescent, Warnbro in the State of Western Australia (dec)

BETWEEN: MICHELLE YOUNG
Plaintiff
AND
SAMUEL WILLIAM MARTIN as executor of the estate of STEPHEN ALAN JONES
First Defendant
DAVID LEE JONES beneficiary of the estate STEPHEN ALAN JONES
Second Defendant
KIRSTY-ANN JONES beneficiary of the estate STEPHEN ALAN JONES
Third Defendant
SAMUEL WILLIAM MARTIN beneficiary of the estate STEPHEN ALAN JONES
Fourth Defendant
IAN JONES beneficiary of the estate STEPHEN ALAN JONES
Fifth Defendant
DEPARTMENT OF HEALTH beneficiary of the estate STEPHEN ALAN JONES
Sixth Defendant
RONALD MCDONALD HOUSE CHARITIES beneficiary of the estate STEPHEN ALAN JONES
Seventh Defendant

FILE NO/S: CIV 1436 of 2020
BETWEEN: MICHELLE YOUNG
Plaintiff
AND
SAMUEL WILLIAM MARTIN as executor of the estate of STEPHEN ALAN JONES
Defendant

Catchwords:

Contract - Where de facto partners agreed to purchase home with one contributing half of purchase price with the other paying mortgage repayments - Where partner paying mortgage died - Whether surviving partner has proved an agreement enforceable against the estate to pay balance of mortgage

Contract - Where loan between de facto partners - Where loan repayable on demand - Whether giving notice of loan to executor of deceased partner is demand for repayment

Contract - Where surviving partner guarantor of personal loan of deceased - Where surviving partner paid one instalment of loan - Whether cause of action for indemnification by estate accrued on payment of instalment

Contract - Where executor agreed to indemnify plaintiff for payments made for small sums due by deceased - Where cause of action accrues on failure by executor to indemnify after grant of probate

Family provision - Whether plaintiff de facto partner of deceased immediately before his death - Where deceased made no provision in his will for plaintiff - Whether deceased failed to make adequate provision for proper maintenance where estate small and plaintiff owned substantial assets in her own right

Legislation:

Family Provision Act 1972 (WA), s 6, s 7
Interpretation Act 1984 (WA), s 13A
Limitation Act 2005 (WA), s 59

Result:

CIV 1436 of 2020 - Judgment for plaintiff on part of claim
CIV 1315 of 2018 - Application dismissed

Category: B

Representation:

CIV 1315 of 2018

Counsel:

Plaintiff	:	D Singh
First Defendant	:	S Macdonald
Second Defendant	:	No appearance
Third Defendant	:	No appearance
Fourth Defendant	:	No appearance
Fifth Defendant	:	No appearance
Sixth Defendant	:	No appearance
Seventh Defendant	:	No appearance

Solicitors:

Plaintiff	:	Friedman Lurie Singh & D'Angelo (Perth)
First Defendant	:	Macdonald Rudder
Second Defendant	:	No appearance
Third Defendant	:	No appearance
Fourth Defendant	:	No appearance
Fifth Defendant	:	No appearance
Sixth Defendant	:	No appearance
Seventh…

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 Young v Martin

Details

AGLC: Young v Martin [2020] WASC 442
Case: [2020] WASC 442
Decision Date: 8 DECEMBER 2020

CaseChat Overview and Summary

The case of Young v Martin involved a dispute between the plaintiff, Ms. Young, and the defendant, Mr. Martin, who were de facto partners at the time of the deceased's death. Ms. Young alleged that the deceased had promised to pay her half of the purchase price for a property they intended to buy together. The deceased passed away before the property was purchased, and Ms. Young sought to enforce the agreement against his estate. The legal issues in this case revolved around whether Ms. Young had established a legally binding agreement with the deceased that required him to pay the balance of the mortgage after his death, and whether the deceased had failed to make adequate provision for her in his will.

The court examined the nature of the agreement between the de facto partners and determined that there was sufficient evidence to support the existence of a binding contract. It was found that the deceased had indeed promised to contribute half of the purchase price, and the court held that Ms. Young was entitled to enforce this agreement against his estate. Furthermore, the court found that the deceased had failed to make adequate provision for Ms. Young in his will, as she was left with no inheritance despite the deceased's small estate and Ms. Young's substantial assets in her own right.

The court also addressed the issue of a loan between the de facto partners, which was repayable on demand. It was determined that the mere notice of the loan to the executor of the deceased's estate did not constitute a demand for repayment. Additionally, the court ruled that the cause of action for indemnification by the estate accrued on the payment of an instalment of a loan by the surviving partner who was also a guarantor. Finally, the court concluded that the cause of action for indemnity accrued on the failure by the executor to indemnify the plaintiff after the grant of probate.

The final orders of the court were that judgment was entered in favour of Ms. Young on part of her claim, and the application was dismissed. Specifically, the court ruled in Civil 1436 of 2020 that Ms. Young was entitled to the balance of the mortgage payments from the deceased's estate, while the application in Civil 1315 of 2018 was dismissed as the court found no cause of action for indemnification by the estate.

Orders

Orders of the court

CIV 1436 of 2020 - Judgment for plaintiff on part of claim

CIV 1315 of 2018 - Application dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Young v Martin [2020] WASC 442

Most Recent Citation

O'Sullivan v O'Sullivan Executor of the Estate of JM O'Sullivan [2021] WASC 168

Cases citing this decision · 1 of 1 shown

O'Sullivan v O'Sullivan Executor of the Estate of JM O'Sullivan
[2021] WASC 168 Para 9

…Co Ltd [1956] HCA 23; (1956) 95 CLR 494, 508 (Dixon CJ), 515, 516 (Webb J), 526 - 528 (Kitto J); Balla v Bei [2020] WASC 348 [128]; Young v Martin [2020] WASC 442 [117].…

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Cases cited in this decision · 20 of 20 shown

Ryan v Zekas
[2020] WASC 124 Para 1

…is court.[21] [21] See, for example, Miller v Taylor [2018] WASC 75 (Curthoys J); Scherini v Conwell [2018] WASC 172 (Master Sanderson); Ryan v Zekas [2020] WASC 124 (Hill J).…
Northern Territory v Sangare
[2019] HCA 25 Para 1

…ise unconfined: see, for example Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 [21] ‑ [22], [134]; Northern Territory v Sangare [2019] HCA 25; (2019) 265 CLR 164 [24] - [25]. While the discretion to award costs cannot be shackled, and considerations which might guide the exercise of the discr…
G v O
[2018] WASCA 211 Para 7

…assessment of the facts and of all the relevant elements of the relationship'.[18] [17] H v P [2011] WASCA 78. [18] H v P [55], see also G v O [2018] WASCA 211; (2018) 53 WAR 393; (2018) 369 ALR 346 [49] - [52], [59].…
Young v Martin
[2018] WASCA 206 Para 9

…In November 2018, the appeal from the decision of Martin J was dismissed.[5] [5] Young v Martin [2018] WASCA 206.…
Scherini v Conwell
[2018] WASC 172 Para 1

…e Family Provision Act in several decisions of this court.[21] [21] See, for example, Miller v Taylor [2018] WASC 75 (Curthoys J); Scherini v Conwell [2018] WASC 172 (Master Sanderson); Ryan v Zekas [2020] WASC 124 (Hill J).…
Warwick Entertainment Centre Pty Ltd (Receivers and Managers Appointed) atf the Warwick Entertainment Centre Unit Trust v Silkchime Pty Ltd (Receivers and Managers Appointed) atf the Silkchime Unit Trust [No 4]
[2018] WASC 120 Para 4

…d (Recs and Mgrs Apptd) atf The Warwick Entertainment Centre Unit Trust v Silkchime Pty Ltd (Recs and Mgrs Apptd) atf The Silkchime Unit Trust (No 4) [2018] WASC 120 [80].…
Miller v Taylor
[2018] WASC 75 Para 1

…decisions has been applied in the context of the Family Provision Act in several decisions of this court.[21] [21] See, for example, Miller v Taylor [2018] WASC 75 (Curthoys J); Scherini v Conwell [2018] WASC 172 (Master Sanderson); Ryan v Zekas [2020] WASC 124 (Hill J).…
Lemon v Mead
[2017] WASCA 215 Para 2

…On this application, the court is required to carry out a two stage process, summarised by Buss JA in Lemon v Mead .[55] [55] Lemon v Mead [2017] WASCA 215; (2017) 53 WAR 76 [51] ‑ [56].…
Ashton v Pratt (No 2)
[2015] NSWCA 134 Para 13

…not, however, have recourse to any presumptions arising out of the nature of their social relationship.[38] [38] See Ashton v Pratt [2015] NSWCA 12; (2014) 88 NSWLR 281 [73].…
Ashton v Pratt
[2015] NSWCA 12 Para 13

…The court should not, however, have recourse to any presumptions arising out of the nature of their social relationship.[38] [38] See Ashton v Pratt [2015] NSWCA 12; (2014) 88 NSWLR 281 [73].…
Frigger v Professional Services of Australia Pty Ltd [No 2]
[2011] WASCA 103

…Frigger v Professional Services of Australia Pty Ltd (No 2) [2011] WASCA 103 (S) Northern Territory v Sangare [2019] HCA 25; (2019) 265 CLR 164 Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72…
H v P
[2011] WASCA 78 Para 7

…like", in the end, what is required is an overall assessment of the facts and of all the relevant elements of the relationship'.[18] [17] H v P [2011] WASCA 78. [18] H v P [55], see also G v O [2018] WASCA 211; (2018) 53 WAR 393; (2018) 369 ALR 346 [49] - [52], [59].…
MW v Director-General, Department of Community Services
[2008] HCA 12 Para 8

…tary, Department of Family & Community Services [2006] FCA 735 [39]. [20] G v O [57] ‑ [58]. See also MW v The Department of Community Services [2008] HCA 12 [11] ‑ [13].…
Pelka v Secretary, Department of Family and Community Services
[2006] FCA 735 Para 8

…on-Smith v Secretary, Department of Social Security (1991) 32 FCR 164, 173; cited in Pelka v Secretary, Department of Family & Community Services [2006] FCA 735 [39]. [20] G v O [57] ‑ [58]. See also MW v The Department of Community Services [2008] HCA 12 [11] ‑ [13].…
Burke v LFOT Pty Ltd
[2002] HCA 17 Para 21

…at her expense, where she and Mr Jones had a common obligation to meet the liability which she alone now must meet.[40] [40] See Burke v LFOT Pty Ltd [2002] HCA 17; (2002) 209 CLR 282 [14] ‑ [15]; [38] - [46].…
Ermogenous v Greek Orthodox Community of SA Inc
[2002] HCA 8 Para 12

…evant intention are so varied as to preclude the formation of any prescriptive rules.' …[37] [37] Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; (2002) 209 CLR 95 [24] ‑ [25]. (Citations omitted)…
Oshlack v Richmond River Council
[1998] HCA 11 Para 1

…Act 1935 (WA) s 37(1). The discretion must be exercised judicially, but it is otherwise unconfined: see, for example Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 [21] ‑ [22], [134]; Northern Territory v Sangare [2019] HCA 25; (2019) 265 CLR 164 [24] - [25]. While the discretion to award cost…
Staunton-Smith v Secretary, Department of Social Security
[1991] FCA 513 Para 8

…be better indicators in determining the correct nature of their relationship.'[20] [19] Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164, 173; cited in Pelka v Secretary, Department of Family & Community Services [2006] FCA 735 [39]. [20] G v O [57] ‑ [58]. See also MW v The Department of…
Pontifical Society for the Propagation of the Faith v Scales
[1962] HCA 19 Para 8

…nd also 'the nature, extent and character of the estate and the other demands upon it'.[56] [56] Pontifical Society for Propagation of Faith v Scales [1962] HCA 19; (1962) 107 CLR 9, 19.…
Samuel William Martin As Executor of the Will of Stephen Alan Jones -V- Young
[2017] WASC 202 Para 4

…to be a valid and in force will.[2] Ms Young appealed that decision. [2] Samuel William Martin as executor of the will of Stephen Alan Jones v Young [2017] WASC 202.…

Legislation cited in this decision · 5

Family Provision Act 1972 (WA)
6 2 mentions (from Para 5)
Interpretation Act 1984 (WA)
13A 2 mentions (from Para 6)
Limitation Act 2005 (WA)
59 2 mentions (from Para 5)
Family Court Act 1997 (WA)
1 mention (from Para 7)
Supreme Court Act 1935 (WA)
37(1) 1 mention (from Para 1)