WA Part Performance in an Oral Contract - Any Ideas?

Discussion in 'Property Law Forum' started by 1966AJW, 23 April 2019.

  1. 1966AJW

    1966AJW Well-Known Member

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    So I've got a real tricky one here.

    It involves an oral purchase agreement of a property that is now being reneged on.

    Long story short, we had agreed to purchase a house from the in-laws for a set amount.

    12 years later MIL has a complete breakdown and destroys her relationship with daughter (my wife), resulting in us needing to step away to allow time and space to hopefully heal things.

    Bad news it didn't fix things. Six years on and we find out that they have sold the property, only found out late last year that they have a different opinion on what the agreement was.

    Give 6 years statute of limitations that we have passed I am claiming that the Cause of Action date should be that date at which the PIL (parents in law) specified a different agreement with differing terms and conditions to the original.

    So point one is overcoming the statute of limitations with a Cause of Action date.

    For Part Performance, I can show the validity of our claim and have written acknowledgement of the contributions made. However, the PIL still maintain a number of varying positions on what the actual agreement was.

    1. Renting - They claim we rented. I can counter this with the fact that they made no declarations of income for 12 years against supposed rent.

    2. Full Inheritance - They claim we were to inherit the full property contingent to remaining on the property. Thereby stating that we voided the agreement in leaving. I can counter this with a strong logical argument based on part performance as well as other factors involved that affect other family members.

    Furthermore, I have witnesses x 2 to the statement made by FIL at a meeting that they offered us shared title on the property. (Both sons of FIL).

    I can supply more detail as needed but would be interested in getting some initial views on my rights under the law.

    I have already researched Part Performance and believe I can almost put forward for a summary judgement based on the evidence and admissions I have.

    Thanks in advance for any ideas.
     
  2. Rod

    Rod Lawyer
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    You'd be crazy to take something like this to court without legal assistance.

    How do you expect them to hand over the property if it has already been sold? Or are you seeking damages? If damages, how have you estimated damages?

    And a summary judgment is extremely unlikely.
     
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  3. Rob Legat - SBPL

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    Further, it may be the case in WA (certainly is in Queensland) that verbal contracts for the sale of property are ineffective - they must be in writing.
     
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  4. Tim W

    Tim W Lawyer
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    Long story long, what you have sounds more like
    an option than a substantive Contract For The Sale Of Land.
    That's if it can even be shown to exist.

    I agree with @Rod - get yourself a lawyer, who will,
    once in possession of all the facts, give you reliable, case specific, advice.
    And stay away from Google QC - you're just getting yourself in a tangle.
     
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  5. 1966AJW

    1966AJW Well-Known Member

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    Thanks, Rod and Tim, Agreed, not thinking I have the skills to deal with it myself.

    In WA like in most states the Statute of Frauds from 1677 is the basis of laws derived.

    In essence, it seeks to protect the rightful land / property holder from fraudulent claims by making it a requirement to have any contract in writing. But it also contains an exclusion for real oral contracts that exist and that is called Part Performance.

    https://www.legislation.wa.gov.au/l...+Act+1969.pdf/$file/Property+Law+Act+1969.pdf

    Part IV s 36. Savings in regard to sections 34 and 35 Nothing in sections 34 and 35 — (d) affects the operation of the law relating to part performance.

    The doctrine of part performance is specially written into the law for dummies like me who when young and naive believed that a handshake still meant something, who believed that you could trust people who were close to you.

    It allows people who have an oral contract to pursue a rightful claim of equitable title through proof of the acts performed and received by both parties to the contract.

    The Part Performance proofs need to be unequivocal, that is they need to have been performed because of the contract and at the same time they need to show proof of the contract, that seems to be the rigid version. there are also more relaxed versions and interpretations that generally come down on a case by case basis.

    Specific case precedence exists in Regent vs. Millett (1976) 133 CLR 679. The details of which are almost a replica of my current situation but with larger sums of monies involved.

    So given:

    i. I can establish that a contract existed by Part Performance as well as an acknowledgement from PIL.
    ii. I have written acceptance and acknowledgement from PIL of contributions made by us.
    iii. I have 2 witnesses to past title offer made by PIL.
    iv. I have about 4 different positions that PIL claim formed the contract by can supply no evidence for these positions and that each of them contradicts the other.
    v. I can demonstrate beyond doubt that the current position that PIL are adopting can be shown to be an unconscionable contract and as such would be struck out and not enforceable.
    vi. I have proven actions that PIL applied measurements to our performance and payments made.
    vii. I can prove that if PIL attempt to maintain one of their positions that it was renting then they are in breach of Australian Criminal Code. Obtaining a financial advantage by deception Section 134.2. In short Tax Evasion.

    So I believe that I can with reasonable certainty prove that:

    i. A contract existed.
    ii. The essence or substance of the contract is as we are claiming.
    iii. Dispute all counterclaims of the substance or essence of the contract through logical analysis and the potential of fraudulent or criminal outcomes.

    This leaves me with a couple of things that I need to work out:

    i. Cause of Action Date (CAD). As per statute of limitations. My assertion would be that the CAD would be the time at which we discovered that the PIL had adopted a modified or completely different agreement and attempted to apply new and unconscionable terms into the agreement.

    ii. How to bring it to court. I hear you when you recommend getting a lawyer, I would love to. But this whole episode, as well as the current health condition of my wife, has left us broke. I just don't have the funds to raise a family and seek justice at the same time. Hence my research into avenues and options open to me in addressing this.

    I am of the understanding that even if I litigate against the PIL that the court will order that mediation take place first with a court pointed registrar. Currently, we have tried to mediate with the PIL and are still attempting to. But they have stated that in their opinion the matter is concluded, so that makes it difficult to move forward to a resolution outside of the legal system.

    Before actually litigating I was wanting to confirm if my understanding of things is correct and if I went to the PIL and stated the legal positions would it cause them to come back to the table to discuss further?

    To date, the PIL has refused to listen to any of their children including their 2 sons who can see exactly what has happened to us and are upset at the injustice of it and the fact that it is their parents doing it.

    Anyway, I look forward to any further comments or advice on this matter, for now, I have a lot of research to do on potentially self-representation and how to lodge a civil action against someone.

    Thanks guys for the comments.
     
  6. Rod

    Rod Lawyer
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    This info is critical. What are the circumstances around the sale?

    How do you expect to get the land back?
     
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  7. 1966AJW

    1966AJW Well-Known Member

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    Hi Rod,

    The circumstances were complicated.

    We became aware of the pending sale but did not have time to place a caveat on the property. There where other reasons why this did not occur as well that were at play, my sister was suffering from cancer and died not long after the property settled so that was somewhat of a distraction. Also my wife has a number of significant health issues that we where dealing with.

    Our original reason for stepping away from the property was due to a "dispute" that occurred between MIL and wife, essentially the MIL spent 4 hours verbally decimating my wife to the point of a breakdown. Due to the things said and not being able to get them resolved we chose to step away from the property to allow time and space to heal things, it's a longer story than time permits here. On the relationship side between my wife and the PIL there was still some tension but things were improving, we also had our daughters wedding coming up and did not want to create a family fight which would ruin it.

    So in essence we chose to believed that the original agreement would be honoured and decided to trust that the PIL would do the right thing, we had no indication or suspicion that they would not.

    It was not until 3 months after my daughters wedding that I rang the PIL to ask about settlement of our share and was told very frankly that we had no right or entitlement. This was the first time that the PIL stated an alternative understanding of the agreement, they claimed we rented.

    Since then and through various meetings they have adopted the current position that they claim, one of inheritance but contingent to remaining on the property. This is a completely false claim, and by way of logic deduction and other claims that they make can show it to be. It also contradicts other claims made in regards to how this arrangement would not effect PIL sons.

    PIL claim modest to small investments and assets against which they draw a pension with government contribution. Given that we would have received the property at inheritance, and given that FIL stated in writing that the remainder of the estate would be split between sons, then given their "small" pension assets these would be drawn down during retirement to a diminished amount. Thereby leaving very little for sons and the majority from us if their current claim is to be believed or accepted. This would be a very unfair outcome for the sons.

    But as you have asked what do we expect to get back? The property is sold.

    From researching I believe that once we can prove our position on the contract / agreement that we can then seek and Equitable Compensation against the PIL.

    So in my mind we need to establish:

    1. Cause of Action Date for limitations commencement. By legal definition it refers to a date that causes a concern that demands action. Prior to finding out the PIL alternative adopted position(s) we were of the understanding and belief that they would honour the original agreement.

    2. Part Performance in the harsher definition as established by the High Court of Australia. So a somewhat stricter compliance with the proofs needed to establish that the contract existed and that all the efforts and contributions were in reliance with and in compliance with the contract. And that the acts were both given and received in accordance with that understanding. For a better understanding of our position legal precedent in Regent vs. Millett (1976) 133 CLR 679 fairly closely describes our situation. Ours is a little more complex in that events have transpired but should not release the PIL from the obligation of fulfilment of their side of the contract. They did after all divest our investment without notice or acknowledgement of our investment.

    3. Countering of PIL current claims via logical deduction as well as through proof of deceptive intent and unconscionable conduct resulting in an the PIL attempting to impose an unconscionable contract in place of the original agreement / contract. I have written acceptance from the FIL acknowledging all our financial and physical contributions in full. I have verbal acknowledgement by the FIL of a past offer to shared title being made, this was witnessed by his sons and will be sworn to by them. I have many other proofs and arguments against the PIL that can be used to destroy their claims including the potential of facing tax evasion charges should they not retract in writing one of the positions (renting) that they claim. I would like to believe that the legal system would view the PIL actions as deceptive and premeditated and judge them accordingly?

    4. Method of remedy would be via an equitable compensation against existing PIL assets. This is what I would hope to achieve. It would also then allow the PIL to legally change their asset statement to Centrelink and thereby not suffer consequences normally attached to asset shedding.

    I know, blue sky ideal world outcome against what is a courts interpretation of what constitutes Part Performance.

    Thanks for your feed back and comments, greatly appreciate them.
     
  8. 1966AJW

    1966AJW Well-Known Member

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    Thanks Rob, I would think that part Performance would be written into Queensland Property law to allow an individual with a true claim to overcome the statute of frauds from 1677?

    Without the avenue of Part Performance any dumb dumb like me who decided to trust someone that the loved and respected would be stuffed.
     
  9. 1966AJW

    1966AJW Well-Known Member

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    Hi Tim,

    It was more than just over land. it was a house that we were living in that we though we had purchased from the PIL.

    We effected many improvements, as well as extensions and repairs, as well as paid rates and insurances. All performed under that belief that we were purchasing the house / investing into the property with an objective of shared title.

    To be clear it was a 5 acre block with 2 houses, we purchased the older front house and the PIL built a new house at the rear with funds we injected and paid over time.
     
  10. Rob Legat - SBPL

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    Nope. The Property Law Act is specific in that land contracts must be in writing to be actionable. I think that’s pretty standard across the states.
     
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