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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    At the moment the BIL's will be sitting down with the FIL and presenting him with the "facts" of what could have happened if I was a nasty piece of work. Trying to show him that I have been more than reasonable and patient in trusting him to do what is right.

    But I'm not entirely sure if this would just give the FIL the information he needs to consolidate a defence or if it will make him actually sit up and take notice?

    I'm not sure what sort of defence he could come up with? His two primary assertions of what the arrangement / agreement was are both shot to bits.

    1. Renting - Breaks the law, tax evasion.

    2. Inheritance - Potential criminal fraud if motive can be shown to deceive and defraud (which it can be). Civil case based on Part Performance (again fully proven). Logic and reason breakdown of this position (unconscionable contract and conduct).

    Still probably worth a last ditched effort to avoid the potential of high cost litigation.

    If it does not work then at least I tried, we will then need to evaluate what to do next. This is why I was curious about the criminal approach, if i can't afford to take action the maybe the state can bring action against them, but then there is the potential for them to go to gaol which is not something we want. I was more thinking along the lines that it might reveal some things that would strengthen any civil action we take against them that would work towards a summary judgement in our favour.

    At the end of the day it will come down to cost, given the amount we are seeking I know that in a civil action every court level decision will be challenged right up to the High Court of Australia. Knowing this I can not feasibly see a way that we could afford to follow through on any initial action, even though we would win at the District Court and then the Supreme Court levels I have no doubt that it would be taken to the High Court and challenged on some technicality of law or case history.

    And this is not uncommon, there is so much case history that shows a reversal of decision based on a technicality at law, or a different interpretation on a doctrine of Part Performance or Estopple etc. Which could result in the PIL winning and means that we are lumped with not just the loss of claim but potentially all the court and lawyer costs associated on both sides, potentially a phenomenal amount of money for nothing.

    So it essentially results in them getting away with it because we are poor, given other family health considerations that I have to weigh into the mix maybe I just need to admit defeat now and realise that I stuffed up big time in trusting someone I though was trustworthy. And that is probably the bit that stings most, how could a father and mother do that to their own daughter, son in law and grand children? What sort of people are they that portray themselves to be upright and honourable people and then do this to their own? This is what completely bewilders me.

    So sadly it seems that the law literally does not afford justice, justice only comes at great cost.

    Thanks Rod and others for your thoughts and feedback. They have been greatly appreciated and helped me work through the process of rationalising what to do and how to go about it.

    For now that is all, I will give it one last ditched effort for the PIL to see reason, beyond that I have nothing.

    Thanks again.
     
  2. 1966AJW

    1966AJW Well-Known Member

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    So I looked into criminal fraud a bit more and it seems that we have all the evidence needed to establish that a motive of deceit exists.

    The first step would be that the authority bringing the action would need to prove our part ownership via part performance, I have discussed with them anonymously and they have confirmed that given the statements and evidence I have that it would be a case of seeking a summary judgement to that.

    So upside: In essence I would not have to pay a thing to establish entitlement.

    Downside: It could send them to gaol.

    That is if I have been advised correctly? Really hard to know as you get conflicting information and advice, I guess with it being a subjective area of law it makes it difficult to give a concrete outcome?
     
  3. Rod

    Rod Lawyer
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    As long as there is a clear link between their fraud and your loss in a criminal case, yes, easy win in a civil trial.

    But as you say, is jail time what you want. Plus once you make the allegation to police, the matter moves beyond your control. The police will deal with it as they see fit, in whatever time frame they want.
     
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  4. 1966AJW

    1966AJW Well-Known Member

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    Thanks Rod,

    Fraud can be shown. Just the simple fact of differing and conflicting positions is a start. The past offer of shared title, the private sale could speak to concealment. The PIL false claims of small assets. And now the attempt to deny our right to challenge their position by declaring that the matter is concluded.

    These are only a few of the actions and facts that could be used to build a case.

    But as you point out, it would then be taken out of our hands. And ultimately I do not want to see them in jail.

    If all of this was put before a civil court would the judge have a duty to disclose it to the police? That would be my other concern.
     
  5. Rod

    Rod Lawyer
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    Sorry can't answer this question.
     
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  6. 1966AJW

    1966AJW Well-Known Member

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    Thanks Rod, appreciate all the assistance.

    Have decided that I will give the PIL both barrels and just lay it out directly to them what can happen. The choice is then theirs to make as to what happens next.
     
  7. Tripe

    Tripe Well-Known Member

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    Sounds like a hard luck story to me,

    You want your parents 2nd house, you have no formal agreement and they sold up 6 years ago? And personnel tax record only being kept for 7 years?


    With lawyers costing north of $400 an hour, what’s your tolerance for risk/reward ?
     
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  8. 1966AJW

    1966AJW Well-Known Member

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    Thanks Tripe for the reply.

    Appreciate the critique, seriously.

    It's easy to formulate a view and justify it from your own perspective, so getting some fresh or alternative perspective that makes you think things through beyond your own ideas is great.

    Appreciate the comments, but can guarantee not just a hard luck story. Factually sustainable based on many points of evidence not shared here.
     
  9. 1966AJW

    1966AJW Well-Known Member

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    So just an update on this. One of the PIL main contingencies has been retracted due to it being unconsconable.

    They are however still claiming that we were in a deal to inherit the property.

    Given that they have divested the property against which agreement existed should they not have advised us?

    Should a settlement have been determined at time of sale?

    They are claiming that the hey had no obligation to do so essentially because they are still alive we have no claim to any property.

    We are claiming that they should have settled because the property against which the agreement existed has been divested.

    Also, given that they derived a gain from the property, and not just from us but other tenants, then should they have declared at least a proportion of the property as a capital gain instead of as 100 percent primary residence?

    So much of what they are claiming makes so little sense.
     
  10. 1966AJW

    1966AJW Well-Known Member

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    Update on this.

    Parents in law not shifting on their position.

    Under WA Property Law Act 1969 Section iv 36(d) we can make a claim against them based on the Doctrine of Part Performance.

    The doctrine of Part Performance allows us to nullify the Statute of Frauds from 1677 and to offer proofs and evidence to substantiate the existence of an oral contract attached to property ownership. In accordance with this doctrine and in accordance with the Australian High Courts definition we need to validate our claim to the highest degree of proof called for, that being Full Performance.

    Full Performance stipulates that the elements of our claim need to prove that a full contract was in existence, and that we acted in accordance with the understanding of that and in reliance on that. That all of our endeavours, efforts, contributions were done in reliance on the promises attached to our endeavours. And that they also allowed us to make the efforts and contributions attached to the property understanding our reliance on the contract that was agreed to.

    The Father in Law has claimed many positions, renting, inheritance based on a contingency, no entitlement, matter concluded based on legal advice, and now is claiming "at no time did we undertake to sell a part of our primary asset". So essentially claiming on many levels that a contract did not exists.

    And this is the defining point, proof that a contract did in fact exist.

    To do this we need to examine the basic description of a contract so that we can understand what is being claimed.

    From my legal research in it's simplest for a contract is the exchange of a consideration (an item of value) for a financial benefit.

    And that this can be executed against a promise or oral agreement through to a written form that is defined according to legal requirements attached to the item of consideration, essentially it needs to show what the item is, what the financial amount is, when the transaction occurred, who the transaction was between etc. And depending on elements of risk attached to the contract things like encumbrances etc. need to also be defined.

    Attached to this are two other considerations for the contract, is it a fair contract or is it an unconscionable contract?

    A fair contract can be easily evaluated based on equity of value attached to the exchange. Is the consideration of a value equal to the financial exchange?

    An unconscionable contract is defined as a contract that is so heavily against the weaker party that no reasonable person would seek to impose it, and no reasonable person should be expected to be subjected to it, and should not be forced or coerced into accepting it.

    So in our situation I can fully validate our position based on Part Performance to the highest degree of proof needed in Full Performance based on what we were at the time of establishment of the contract allowed to believe and then relied on.

    I can demonstrate that all the efforts and contributions that we made were in accordance with that belief, and that through allowing us to perform renovations, maintenance, pay rates, pay insurances, complete extensions etc. that the in laws allowed us to believe the promise made in the oral contract that existed.

    As a means of proof to this effect we accepted ownership responsibilities as demonstrated in payment for services through rates. We demonstrated ownership responsibilities in protection of an asset through payment of insurances. We accepted ownership responsibilities through payment of all maintenance, renovation and extensions.

    The father in law has acknowledged all of the contributions that we have made both physical and financial attached to the property, he has also orally acknowledged a prior offer to have us placed on the title as tenants in common in recognition of having met the financial obligation to which we agreed.

    In addition to this if the in laws wish to maintain their claims to renting then they would have needed to make the appropriate declarations against the income derived.

    The Father in Law is now claiming to have done this but has not provided any evidence to prove it.

    Additionally, given that I paid for all of the maintenance and upkeep and did not at any time furnish him with any receipts for these works he would not have been able to claim deductions. This includes for some significant maintenance works to septic systems and water supply systems. So I am left in doubt about his current claims to have met his legal obligations against the renting claim.

    Regardless of if he did or did not make the appropriate declarations it does nothing to change the understanding that we were given and relied on which is attached to our claims under Part Performance.

    Furthermore, all positions and claims made by the father in law result in an unconscionable contract. That is none of them acknowledge the consideration that we are claiming existed, he actually straight out denies that a contract existed for this even though he has acknowledged all contributions and the past offer of shared title?

    My current issue is that regardless of the logic and law attached to these things he is stubbornly refusing to believe that we have any claim.

    And complicating matters is a dispute that led to us leaving the property for some time to allow time and space for relationships to be repaired which he is now interpreting as us having forfeited any right to the property.

    So not really any questions attached to this, mostly just putting it out there to have someone with a big legal brain challenge my understanding of things to ensure that I am looking at this from the right perspective.

    As far as taking an immediate action against them I do not think that this will happen in the short term, on top of having to contend with the significant financial loss attached to his my business has hit a rough patch and is owed significant sums of money from a number of mine sites that have gone broke, last week my daughters marriage of 14 months broke down due to her husband cheating on her with liaisons and prostitutes, and my dear wife having been diagnosed with breast cancer on top of a raft of auto immune diseases that she already suffers from.

    So 2019 has essentially been a crap year for my crew.

    Update done... hope this helps someone else at some time if they are going through similar issues.
     
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