Wesley v Alexander [2004] NSWLC 1

Local Court of New South Wales

CITATION: Wesley v Alexander [2004] NSWLC 1 JURISDICTION: Civil PARTIES: John Dexter Wesley v David William Alexander FILE NUMBER: 7423 of 2002 PLACE OF HEARING: Downing Centre Local Court DATE OF DECISION: 02/06/2004 MAGISTRATE: Magsitrate B A Lulham CATCHWORDS: Intention of create legal relations - Testamentary Contract - Relevant presumptions LEGISLATION CITED: Limitation Act 1969 s 14 Balfour v Balfour (1919) 2KB 571 Jones v Padavatton (1969) 2 AII ER 617 CASES CITED: Wells v Matthews (1914) 18 CLR 440 Merritt v Merritt (1970) 2 AII ER 761 Sharp v Anderson (1994) NSW Conv R 55721 Mr E White of Counsel REPRESENTATION: Mr B Geraght Solicitor Mr G Grzeskiewicz of Counsel Mr W D Alexander & Co Solicitor ORDERS: 1. Judgment for the plaintiff in the sum of $30,000.; 2. The defendant is to pay interest to the plaintiff on the sum of $30,000 to be calculated by the Registry from 1 April 2002.; 3. The defendant is to pay the plaitniff's costs and disbursements as agreed between the parties. In default of agreement within 28 days the costs are tobe assessed under the Legal Profession Act.; 4. The costs payable by the defendant will include the costs of the hearing before Magistrate Cloran.

1 The Wesley family ran the Boomerang Nursery, 311 Bobbin Head Road, North Turramurra since before World War II. The Nursery was run by George Wesley and his wife Mabel Vera Wesley. In the house which formed part of the nursery Mr and Mrs Wesley raised their five children; Guy William John Wesley David George Wesley John Dexter Wesley Carol Mary May Lombe (nee Wesley) Mark Anthony Wesley 2 The father George Wesley died in October 1979. Mrs Mabel Wesley continued to run the nursery. Her younger sons John and Mark Wesley lived with her in the residence. 3 Unfortunately from time to time there was considerable bickering and ill feeling between the children. In 1970 Carol Lombe, the daughter, started working in the nursery five days a week. Following the death of Mr Wesley the nursery was operated by Mrs Wesley, more as hobby than a business and Carol Lombe worked one day a week. In 1993 Carol had a falling out with her brother Guy. She then stopped working and had only limited social contact with her mother. 4 There had obviously been problems within the family earlier and in about March 1988 Mrs Wesley had instructed her solicitor David William Alexander to prepare a partnership agreement for the running of the nursery between herself and her five children as six equal partners. The partnership agreement was never executed. 5 A violent windstorm in January of 1991 caused severe damage to the house, plants and out buildings at the Boomerang Nursery. An amount of $75,000 was received from the NRMA Insurance. It seems that Mrs Wesley was content for Guy Wesley to oversee the repairs to the house and nursery and the insurance claim. Guy Wesley maintained that because of difficulties with Ku-ring-gai Municipal Council and their requirements for the rebuilding of the buildings in the nursery, the amount required for the repairs was far in excess of $75,000. 6 A proposal was discussed whereby an amount of about $150,000 would be borrowed with the consent of all of the children and the nursery, not only restored, but improved to a standard of a competitive commercial nursery. That proposal did not proceed. The plaintiff claimed that he advanced to his mother an amount in excess of $30,000 to enable the repairs to be completed. He expected his advances to be repaid from the finance to be arranged through the family. When that did not occur he said he spoke to his mother who told him that she did not have the money to repay him but that she would make provision for payment of the amount out of her Estate. He said she subsequently told him she had done so. Mrs Wesley did make a Will dated 15 October 1992 which included the following clause 3.1; 'I give to my son John Dexter Wesley of 311 Bobbin Head Road, North Turramurra, graphic artist upon him surviving me the sum of $30,000 representing the repayment to him of amounts advanced by him to me to the date of this my Will and aggregating the aforesaid sum in connection with the nursery business carried on by me under the style or name 'Boomerang Nursery' at the aforesaid premises at 311 Bobbin Head Road, North Turramurra, but if this trust fails then I direct that the same shall fall into and form part of my residuary Estate.'