WA Part Performance in an Oral Contract - Any Ideas?

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1966AJW

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23 April 2019
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Actually do have some more questions.

Is there a way that I can discover what has been declared as income?

Also what has been declared as CGT, as well as what has been claimed as a primary asset with statement of assets for retirement?

I believe that the whole of the property was claimed as a primary residence for CGT and retirement assets declaration but would like to prove this if possible?

Thanks in advance.
 

Rod

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Is there a way that I can discover what has been declared as income?
Yes, it is called preliminary discovery. ATO will not give you information, even with court orders, best bet is the accountants.
 
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1966AJW

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23 April 2019
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Hi All,

Just an update on this, and a couple of questions.

I have been focused on proving the validity of our oral contract attached to this property agreement. Essentially all evidence is in and under the Provision of Part Performance, I can challenge to validate that an oral contract existed. And given the strength of the evidence and admissions made by the other party, it would be accepted to be the case.

But the in-laws are claiming that by leaving the property we terminated or essentially forfeited any agreement that existed. That we were unencumbered by any ongoing concerns attached to the property. How they come to this is somewhat complex and I will skip that for the sake of time.

However, by their own admission, we had fulfilled the financial obligations attached to what was agreed upon.

So by their admissions and acknowledgments they verify all contributions made including acts that correspond to ownership responsibilities, physical and financial contributions. Admit that a past offer of shared title was made in recognition of this. Rationalise what the payments were measured against and towards. And confirm that we had met our obligation attached to this.

So the requirements of the contract had been fulfilled and we had been acknowledged with Tenants in Common status, however, this had not been legally exercised prior to our stepping away from the property for relationship considerations.

So would I be right in stating that they have no right or legal grounds on which to now claim that the contract was terminated? Given that it was already fulfilled by their own admission then there was nothing that they had any right to claim termination of?

The only outstanding point is that it had not been legally exercised for valid considerations.

Any thoughts would be greatly appreciated.
 

Rod

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So would I be right in stating that they have no right or legal grounds on which to now claim that the contract was terminated? Given that it was already fulfilled by their own admission then there was nothing that they had any right to claim termination of?
Maybe. Depends on circumstance around your leaving. I'd imagine your argument is you were forced from the home.
 

1966AJW

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23 April 2019
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Maybe. Depends on circumstance around your leaving. I'd imagine your argument is you were forced from the home.
Hi Rod,

Thanks for your on going replies, greatly appreciate them.

It's complicated regarding the matters surrounding the dispute which led to us leaving the property.

Essentially it comes down to life long resentments that the MIL held against her daughter, can all be proven by also very subjective.

We chose to step away to allow time and space for relationship considerations and to not cloud this in an already emotionally stressful time with matters of property rights.

We had met all the obligations that were placed on us, we had fulfilled every financial requirement diligently and with consideration. And from that perspective, we believed that what we had achieved was secure against the promise and agreement that existed. One which was never revoked or changed at any time during discussions over dispute matters.

So not physically forced so to speak but based on the emotional turmoil and conflict it was impossible to remain.

Bottom line is that we had fulfilled the agreement, this has been acknowledged by the FIL, he has rationalised in writing what the payments were for, how and what they were measured against, along with all the contributions attached to ownership responsibilities, payment of insurances, rates, improvements and renovations, and maintenance.

And yet according to the Residential Tenancies Act 1987 these costs should have been the responsibility of the Lessor which is the position that he is now claiming in declaring that we only rented.

Hence my approach under Part Performance, as we can clearly validate the understanding that we relied on at the onset of the agreement. And not only what we relied on but what they accepted and allowed us to believe based on that understanding.

And according to the High Court of Australia and their rulings on Part Performance, we then need to ensure Full Performance, that is to prove that the agreement that existed can be defined as a contract for exchange under Australian Contract Law.

So given all the admissions made by the PIL (Partents in Law) I believe that in the first instance we can easily prove that a contract existed.

And by their very own admissions that this contract was fulfilled and the outcomes of it were independent to the dispute that occurred. And that no outcomes attached to that event have any influence on the fact that we had a share in the property as Tenants in Common.

No objections, positions or claims that they present based on outcomes from that event negate what was already executed according to the agreement that Part Performance can fully evidence existed and had been fulfilled.

But what I don't know is what comes first? Logically I would suspect that we first need to prove that a contract existed, that an exchange took place for a consideration, and we can do this.

Secondly to neutralise or demonstrate that any counter claims associated with the dispute are irrelevant to the contract which had been fulfilled. Because it is based on these claims that the PIL are justifying the withholding of what we are entitled to.

Biggest problem I have is trying to explain this to them without getting bogged down in their constant you said this arguments, hence wanting to remove any relevance in regards to the dispute so that we can move away from petty objections based on misconceptions or deliberate distortions of comments made.

Anyway, thanks again.
 

Rod

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Yes, prove contract first. No contract/agreement is fatal to your case.

Any defense to a counterclaim is not part of your claim, it is a response to their counterclaim.

Biggest problem I have is trying to explain this to them without getting bogged down in their constant you said this arguments,
All part and parcel of fighting a case. Stick to facts and let the facts speak for themselves.
 
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1966AJW

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23 April 2019
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Yes, prove contract first. No contract/agreement is fatal to your case.

Any defense to a counterclaim is not part of your claim, it is a response to their counterclaim.



All part and parcel of fighting a case. Stick to facts and let the facts speak for themselves.
Thanks Rod,
I've gotten a bit hung up in the detail of trying to bring to their attention and understanding flaws, contradictions and potential legal charges that could affect them based on their counter claims.

I recently read that a lawyer will not allow a client to use a defence or in my case counterclaim that would cause them to self incriminate. Or would result in findings of criminal intent.

If that is true the then would every claim made by the PIL that can not be supported what the hard evidence would be summarily dismissed as a valid defence or claim?

Especially given that the claim would have declaration of income and CGT requirements attached to it that were not met.

In their primary claim we simply rented. So they are claiming a position of a Lessor. Attached to that claim is the requirement to conform with the Tenancy Act and also to make the required declarations for income derived and for capital gains attached to the portion of the property from which a gain was derived.

I know from property settlement doc's that they never declared a gain, and instead claimed the whole of the property was their primary residence.

Not exactly sure how you can do that for two houses?

But if they did declare income along the way would this not be flagged in settlement with no CGT declaration? Especially given interconnectivity that exists today?

Alternatively if they did make all the legally required declarations then based on the admission of having made a title offer to us, along with acknowledgement of all our contributions that then show they did not comply with the Tenancy Act as a claimed Lessor. Then what they did was to allow us to believe a false promise, and to act on that in good faith.

They fraudulently misrepresented what was being offered to extract maximum benefit from us and had no knowledge mention right from the start to honour it. Which would account for their current stance and objections claimed.

They would then undergo Criminal or Common Fraud investigation based on the proof that we can show through Part Performance and their admissions that a contract existed.

It has taken me some time to come to the point of believing they would do this in such a calculated way.

So my question is what would they have to defend themselves with if each claim leads to self incrimination?

Any new claims they try to now make would be entirely contrived in an effort to maintain the unjust enrichment.

Sorry for the ramble on.

Regards 1966ajw
 

Rod

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... every claim made by the PIL that can not be supported what the hard evidence would be summarily dismissed as a valid defence or claim?
Courts don't summarily dismiss/not dismiss each and every defence/claim. Court's summarily dismiss a case.

So my question is what would they have to defend themselves with if each claim leads to self incrimination?
They can use whatever defence they want. It may not be believable, it may lead to self incrimination, but that is their issue, not yours. It may be any self-incrimination will cost them less than conceding your claim. It could be a genuine part of their strategy to defeat your claim.
 

1966AJW

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23 April 2019
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Courts don't summarily dismiss/not dismiss each and every defence/claim. Court's summarily dismiss a case.



They can use whatever defence they want. It may not be believable, it may lead to self incrimination, but that is their issue, not yours. It may be any self-incrimination will cost them less than conceding your claim. It could be a genuine part of their strategy to defeat your claim.
Thanks Rod,
Had not considered that they might use a form of defence to try and reduce the financial impact.

It would need to be a viable one to refute 12 years of non declaration of income, the clear admissions that they have made, and the evidence that exists.

On summary dismissal I'm guessing a court would only do this if the weight of evidence was clear and irrefutable? Or does this apply to cases that appear frivellus, not enough evidence so they are dismissed?