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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    Thanks Rob, Wow unlucky QLD.

    WA property law act Section 4, 36d actually has a clause for Part Performance to ensure that people in my position who have a valid claim have a path that they hey can persue for justice.
     
    #11 1966AJW, 25 April 2019
    Last edited: 25 April 2019
  2. Rod

    Rod Lawyer
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    Part performance is but one potential cause of action, albeit a good one.

    There's also undue influence, unconscientious dealings, and constructive trusts, to consider.

    On the remedy side you need to think about equitable compensation, equitable damages, and possibly an account of profits if the property increased in value.

    If going down the trust path, you then need to trace money.

    You should be thinking strategy:
    • do you plead one cause of action, or multiple.
    • which actions, if any, influence/avoid the statute of limitations.
    • what remedies are available for which actions
    Keeping it simple - part performance/compensation has cost advantages, but will it obtain the best result? Does keeping it simple jeopardise your case because part performance has a narrow legal definition and it may be struck out whereas a constructive trust may be easier to prove?

    Then you have the practical side to consider:
    • do you go to the District Court, or Supreme Court.
    • how to you structure your claim
    • how do you structure your pleadings
    • what remedies/orders are you requesting
    I understand your concern about legal costs, and frustration about being diddled by the PILs, but do think carefully before deciding on a course of action.

    What I have listed above is not necessarily exhaustive, and just my opinion.
     
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  3. 1966AJW

    1966AJW Well-Known Member

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    Thanks, Rod for the information and help.

    I have investigated alternative approaches listed and believe that Part Performance given the written acknowledgement from PIL would be the best basis to work from.

    I can also show unconscionable conduct / contract on alternative position PIL claim as well as illegal criminal acts on the claim of renting.

    Furthermore given that FIL is an architect who has substantial experience in contracts as well as having been an estate agent in the past, then he should have been aware of the legal writing of a contract. The fact that he chose to not allow this and questioned my trust at the onset could be used as a basis for deceptive conduct.

    I will further consider the strategy and approach to take

    Once again thanks for taking the time to reply.
     
  4. 1966AJW

    1966AJW Well-Known Member

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    Also tracing money could be a problem. I have little idea on how to do that.

    I have put together an estimate of PIL financial position based on claims made by them but it is not an accurate account by any means. It simply gives me some idea as to their current financial position, which even with conservative estimates is somewhat better than they admit.
     
  5. 1966AJW

    1966AJW Well-Known Member

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    Hi Rod, have been looking at the idea of multiple cause of action with the thought to combine Part Performance with Promisor
     
  6. 1966AJW

    1966AJW Well-Known Member

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    Hi Rod, have been looking at the idea of multiple cause of action with the thought to combine Part Performance with Promisory Estoppel.

    There seems to be some case history surrounding Promisory Estoppel that could qualify it for use.

    But the first step in Promisory Estopple would be to prove the existence and extent of the promise. Could this be done using Part Performance? With Promisory Estopple used to stop PIL from renegging on the promise made?
     
    #16 1966AJW, 26 April 2019
    Last edited: 26 April 2019
  7. Rod

    Rod Lawyer
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    Not sure of your use of the word 'combine' in "...thought to combine Part Performance with Promissory Estoppel"

    Your statement of claim should keep the concepts separate, so you will duplicate some actions that occured or at least cross-reference the actions.

    And yes, it is possible Promissory Estoppel may be applicable.
     
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  8. 1966AJW

    1966AJW Well-Known Member

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    Thanks Rod, The more case history I read the less sure I am of how a judge would rule. It almost seems like a subjective choice by the judge depending on the way they want to look at Part Performance.

    I will look at how to form a claim and how to keep things seperate to avoid any confusion about what we are claiming.
     
  9. Rod

    Rod Lawyer
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    Partly because it is, but more importantly because we do not have the pleadings, evidence or seen the witness testimony. Weighting of the evidence, and reliability/trustworthiness of witnesses can be very important and that is why appeal courts are reluctant to overturn trial judgements.

    From your original post it, and assuming you don't settle and you end up in the Supreme Court, your case may well become a case study and quoted in legal texts!
     
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  10. 1966AJW

    1966AJW Well-Known Member

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    Thanks again Rod,

    The District court has a website that links to the process used to bring action against another party.

    It has step through instructions with links to the statement of claim. I will check this out further and look at the best way to structure our approach.

    Seperate with overlapping elements seems best.

    From reading up it seems that it is best to keep the claim concise and to the point. Most people who self represent apparently try to jam every detail into the claim.

    It also seems that the court would order that the parties attempt to mediate a solution, given that the PIL have all but rejected this is there a way to legally binding the to some form of arbitration?
     

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