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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    Yeah Supreme Court and High court are not my objectives.

    Essentially because at around $15k a day lawyer fees I could only afford half a day in court.

    Also I have a very unwell wife with medical costs stacking up as well as other financial obligations.

    So whilst it may make an interesting example for future reference It just wont happen.

    Ideally if there was some form of arbitration that could happen where the PIL were legally bound to attend and listen to the logic and reasoning of things and the legal ramifications, and then had to abide by an arbitrated outcome. Well that might just be an affordable option.

    If I took it through the courts the financial, emotional and physical stress on my wife would kill her, and no I'm not kidding about that.

    So I guess my final position is knowing all my potential legal avenues and where to limit my actions to.

    Knowing where I stand legally will give my one last ditch effort to try to show the PIL the injustice of what they have done, that it's not just our or their sons perspective, but also potentially a courts perspective.

    Once again thanks for your insights and assistance.

    It's sad that justice is so costly, and not just in a financial sense.
     
  2. 1966AJW

    1966AJW Well-Known Member

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    Also on pleadings, evidence and testimony.

    The 2 brothers in law (BILS) would testify that their understanding was that we were purchasing the property.

    They would also testify that the prior shared title was made based on FIL statements made.

    This would be to their financial detriment. They would stand to gain much more by keeping their mouths shut but can see the abject the injustice of what has been done as well as the immorality of it.

    The remainder of pleadings, questioning, discovery or whatever else it is called would essentially be an unravelling of the PIL positions through contradiction and lack of reasonable or any logic from which they are claimed.

    I have absolutely no doubt that the consistency of our claim vs. the multitude of conflicting counterclaims by the PIL along with the actions performed and received that testify to the actual essence of the agreement would result in a finding in our favour.

    What I have been trying to ascertain is what legal precedent would best fit our scenario and represent our predicament best. So far there seems to be any number. Also, I am not seeking to damage the PIL, I am only trying to ask for what is rightfully ours, an equitable solution of some sort.

    I have also recognised the potential barriers that we may need to overcome.

    1 Limitations with the cause of action date.

    2 Proof of the contract existence. Fairly sure we have the written evidence to support this.

    3 Best recovery method. Part Performance or Promissory Estoppel or others or combinations?

    Anyway, all pretty much moot points because we can not afford to take this all the way to the high court as the PIL can. They are not dumb people and I'm sure that they have worked out that it would cost them less to defend and look for a technicality of law to win.

    After all, they do have all our money to spend and know that we are broke.
     
  3. Rod

    Rod Lawyer
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    The only mandatory form of arbitration for these types of cases is called 'court'. :(

    This is important. Get affidavits from them.
     
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  4. 1966AJW

    1966AJW Well-Known Member

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    Just wondering,

    Given:

    > FIL is an architect and has worked as an estate agent, as such should be aware of the written requirement for property contracts.

    > FIL used our trust to not put the contract into writing.

    > FIL now claims a contract position with unconsolable contingencies.

    > MIL emotional attack on daughter and timing that coincides with us having exactly met the financial obligations.

    Then could this be a case for investigating fraud, purposeful deceptive behaviour for gain?

    If that was found could we then apply for summary judgement of Part Performance and an equitable solution?
     
  5. 1966AJW

    1966AJW Well-Known Member

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    Also given initial PIL claims of renting which they have now shifted to an unconcsoable inheritance position likely due to tax implications. So essentially proven to be lying.

    As well as lying about their current financial position.

    Does anyone think a case could be built based on these things?

    And then if specific evidence was found could we then use that in our claim?
     
  6. 1966AJW

    1966AJW Well-Known Member

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    FYI any and all,

    Have read up about fraud and common fraud is covered under the Western Australian Criminal Code Act 1913.

    There are multiple sections that reference property fraud (normally in relation to "goods"). But could also perhaps refer to actual property?

    For it to be fraud it needs to be shown that the gain was derived by deception / deceit, an intent to fraudulently gain by deceiving of the other party.

    Chapter XL — Fraud. 409. Fraud

    Also if the value is greater than $50k then it is not to be dealt with summarily, which I guess means that it needs thorougher investigation?

    If this is the case, then would the DPP be compelled to investigate? If I bring this matter to their attention and show that there exists a current attempt to deceive would they be compelled to then investigate further?

    Also would I then be able to use their findings to further substantiate my claims in a common law action against the PIL?

    It's all quite confusing.
     
  7. Rod

    Rod Lawyer
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    You are now mixing criminal and civil actions.

    Suggest you stick with civil.
     
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  8. 1966AJW

    1966AJW Well-Known Member

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    Thanks Rod, just trying to figure the worst case scenario that could be put to the PIL. Might shake their tree a bit.
     
  9. Rod

    Rod Lawyer
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    It may. It may also embolden him when nothing happens.
     
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  10. 1966AJW

    1966AJW Well-Known Member

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    Sorry not sure I understand what you mean by this?
     

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