New South Wales Supreme Court CITATION : Chalfont v Kerridge [2010] NSWSC 275 HEARING DATE(S) : 23-24 March 2010 JUDGMENT DATE : 16 April 2010 JUDGMENT OF : Gzell J DECISION : Amended statement of claim dismissed. CATCHWORDS : CONTRACTS - General Contractual Principles - Offer and Acceptance - mother gave money to daughter - brother as administrator of mother's estate claimed a contract in consideration of daughter not making a claim on her father's estate and sought specific performance - daughter said a gift - solicitor and mother signed a document acknowledging it was a gift not to be repaid CATEGORY : Principal judgment CASES CITED : Jones v Dunkel (1959) 101 CLR 298 PARTIES : Ross Chalfont (Plaintiff) Lynette Kerridge (Defendant) FILE NUMBER(S) : SC 2009/289231 COUNSEL : C Smith (Plaintiff) SOLICITORS : S & P Lawyers (Plaintiff) Phillip Bushby, Loke Bushby International (Defendant) IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION GZELL J FRIDAY 16 APRIL 2010 2009/289231 ROSS CHALFONT v LYNETTE KERRIDGE JUDGMENT 1 The parties to these proceedings are siblings. Ross Chalfont, the plaintiff, obtained letters of administration in intestacy in respect of the estate of their late mother, Leila Mavis Chalfont. Mrs Chalfont gave Lynette Kerridge, the defendant, $130,000, virtually the whole of her assets, to assist Mrs Kerridge and her husband to acquire a larger home with facilities to enable Mrs Chalfont to live with them. Ross Chalfont alleges there was a contract between Mrs Kerridge and her mother that Mrs Chalfont would give Mrs Kerridge the money in consideration for Mrs Kerridge agreeing to waive any claim on the estate of their father, Jack Chalfont, after he died. 2 Mrs Kerridge says there was no such agreement and the money was a gift. She refuses to waive any claim on the estate of her father. Ross Chalfont seeks specific performance of the alleged agreement. 3 It was alleged in the amended statement of claim that the $130,000 was paid to Mrs Kerridge by her mother pursuant to an oral contract between them made about May 1994 in the presence of Jeffrey Chalfont, her brother, at the property in Helensburgh purchased by Mr and Mrs Kerridge with the assistance of the money. 4 The pleading refers to Mrs Chalfont as the first deceased and to Jack Chalfont as the second deceased. It also refers to Peter Chalfont, another brother of Mrs Kerridge. The pleading identified the terms of the alleged contract as follows: "The express terms of the contract were that: (a) the first deceased would give the Defendant the sum of $130,000 ("the money"); and (b) the Defendant and her husband would use the money to assist in the purchase of the property; and (c) the first deceased would reside with the Defendant at the property once it was purchased; and (d) the Defendant would, in consideration of receiving the money, waive any claim on the estate of the second deceased; and (e) the contract was conditional upon the consent thereto of the second deceased, the Plaintiff, Jeffrey Chalfont and Peter Chalfont." 5 Each of Mrs Kerridge's brothers gave evidence as to the alleged contract. Ross Chalfont said he visited his mother in hospital about the middle of 1994. In the presence of Mrs Kerridge, he said his mother said words to the effect of: "Lyn has offered for me to go and live with her. Their current home isn't suitable. They've had their application for a loan declined, so I want to let Lyn use my money to move to a larger place. It will require all of my money to buy a suitable home. How do you feel about Lyn using all of the money, which will leave you boys nothing?" 6 Ross Chalfont said his mother continued: "Lyn has agreed to forego any claim on your father's money. I know it will only be her share and it's not equal, but this is the only way they can afford to buy the house. Would you be agreeable to that?" 7 Ross Chalfont said he replied: "On the condition that Lyn is prepared to look after you in the house for as long as necessary I'll go along with that for your sake." 8 Ross Chalfont said that on two occasions thereafter Mrs Kerridge said: "I'm not looking to make any claim on Dad's estate when he dies" and "I will not claim on Dad's estate." 9 Ross Chalfont did not establish the conditional consent of Jack Chalfont in accordance with the pleading. Indeed, in cross-examination he denied that the arrangement was conditional upon his father's approval. Nor was the condition of approval established by any other witness. Counsel for Ross Chalfont conceded in final address that the existence of that term was not supported by the evidence. 10 Counsel for Mrs Kerridge pointed to a number of inconsistencies in the evidence of Ross Chalfont. He said that following his mother's death in January 1995, Mrs Kerridge and her husband and two boys came to visit and parked their campervan at the house. He said they had just bought the campervan and had a Jackeroo to tow it. RTA records established that the campervan was not acquired until August 2001 and the Jackeroo was not acquired until March 2004. 11 In applying for the letters of administration in November 2007, Ross Chalfont had listed a loan of $130,000 to Mrs Kerridge as the property owned by the deceased. There was nothing conditional about that description. 12 On 14 March 2008 his solicitors wrote to Mrs Kerridge saying: "We are instructed that pursuant to a loan agreement entered into between yourself and your late Mother, she agreed to lend you moneys in the approximate amount of $150,000.00 on the basis that you did not make a claim against your late Father's Estate. We are instructed that, in breach of this agreement, you have refused to renounce your entitlement to your Father's Estate." 13 That characterisation of a conditional loan differed from the earlier characterisation of the alleged arrangement as a straightforward loan. 14 Ross Chalfont's affidavit verifying the statement of claim was sworn on 14 July 2009. The characterisation of the alleged arrangement as a contract in the pleading differed from both earlier characterisations. 15 When pressed with the inconsistencies in the description of the alleged arrangement, Ross Chalfont said that it was a loan that was to be discharged by Mrs Kerridge foregoing her claim on their father's estate. 16 Ross Chalfont's recollection of dates was not good. He was not present when the alleged arrangement between Mrs Kerridge and their mother was made. The amended statement of claim put it at around May 1994. He accepted in cross-examination that it could have been as late as November 1994. 17 One of the two statements attributed to Mrs Kerridge by Ross Chalfont he overheard Mrs Kerridge say to his wife Tracy. She was not called. Ross Chalfont said that he and his brothers had agreed to keep the evidence to themselves and not involve their spouses. I was invited to draw an inference under Jones v Dunkel (1959) 101 CLR 298. In light of the explanation I am not prepared to do that. 18 Jack and Leila Chalfont lived in premises at San Souci. After Jeffrey Chalfont spoke with his father the house was listed for sale and was sold with settlement taking place on 12 May 1994. 19 Peter Chalfont never spoke to his mother about the alleged agreement. He said that Mrs Kerridge on three occasions indicated she would not claim on their father's estate. In about May 1994 he said Mrs Kerridge telephoned him and said: "Ray and I have found a house we want to buy. It's in Helensburgh. Mum's going to help us buy it. She's going to give me all her money from the sale of the house, and in exchange I won't take a cent when Dad dies." 20 Peter Chalfont said in about 1995 Mrs Kerridge said: "I know I've been given a lot of help with buying our house. It wouldn't be fair for me to take any of Dad's money and I won't take a cent." 21 On a later occasion Mrs Kerridge was said to have stated: "But don't worry. I know I have had my help-out in life. I'm not entitled to any of Dad's money and I won't take any of it." 22 Jeffrey Chalfont said that in early 1994 his mother asked him: "If Dad agrees to sell the house, how would you feel about me moving in with Lyn so they can get a bigger house?" He said he asked how they would finance it and his mother said: "We'll work that out later, but Lyn said she'd think about giving up work. Lyn and Ray are going to approach the bank about getting additional finance." 23 Sometime between the listing of the house and its sale, Jeffrey Chalfont said his mother rang him and said: "Lyn and Ray have had their application for finance declined. How would you feel about me providing some money so Lyn and Ray can get a bigger house?" 24 Jeffrey Chalfont said he told his mother that would be her decision but any decision should be fair to all the children. 25 Shortly after the settlement of the sale of the house, Jeffrey Chalfont said his mother asked him to come to a house that Lyn and Ray had found. This he said in cross-examination was about August 1994. He visited the house and had reservations about it but his mother and Lyn and Ray liked it. 26 Again there was some confusion as to dates. Mrs Kerridge said that it was about September 1994 that they located the property in Helensburgh and they completed the purchase on 3 November 1994. 27 Jeffrey Chalfont said at the house his mother said: "I'm going to have to give them a lot of money because they are short of what they need for the sale price". Jeffrey Chalfont said he responded: "If you give them the money there'll have to be a fairness some other way. While I accept Lyn will be looking after you, you will still be giving all of your money to her". Jeffrey Chalfont said his mother replied: "I've talked to Lyn and Lyn agrees that she should not have any of Dad's money and that should all go to you boys. Would that be fair?" 28 Jeffrey Chalfont said he replied: "That'd be acceptable to me, but it should be confirmed with Ross and Peter as to how they feel." 29 Jeffrey Chalfont said that Mrs Kerridge then said: "If Mum provides this money I will not have any of Dad's when he dies. I accept that if I get all of Mum's money then I won't get any of Dad's." 30 Mrs Kerridge denied these conversations took place. 31 At one stage in his cross-examination Jeffrey Chalfont agreed that the conversations were not the formation of a contract between Mrs Kerridge and their mother. He agreed that that agreement had occurred earlier and their conversation with him was a confirmation of what had been agreed. 32 Inconsistencies in Jeffrey Chalfont's testimony were raised in address. On 20 April 2007, Jeffrey Chalfont wrote to Mrs Kerridge. In the letter he said: "I am arranging for Dad's legal affairs to be organised by a local solicitor. I mentioned that you advised that you would not be expecting any benefit or remuneration from Dad's estate (his savings or proceeds from the sale of his unit) as you were the sole recipient of Mum's estate." 33 It was submitted that this was no more than an expectation on Jeffrey Chalfont's part. It was not an allegation of any agreement that Mrs Kerridge would not make a claim on her father's estate. 34 Jeffrey Chalfont wrote to Mrs Kerridge again on 3 May 2007 in which he said: "I recently wrote to you, letter dated 20 April 2007 (copy enclosed) asking you to confirm, by statutory declaration, that you disclaim any entitlement under Dad's will due to the agreement reached after Mum's death." 35 When the discrepancy between the amended statement of claim and this assertion were put to Jeffrey Chalfont in cross-examination, he said it was clearly a mistake. 36 Then on 18 June 2007 the solicitors wrote to Mrs Kerridge stating: "We are instructed that around the time of your mother's death it was agreed between you and your siblings that in return for receiving the entire proceeds of your mothers estate you would waive any claim to your father's estate when he passed away." 37 The agreement is not put as one between Mrs Kerridge and her mother but one between her and her brothers. 38 The solicitors' letter of 14 March 2008, to which reference has already been made, characterised the arrangement as a conditional loan. And then the statement of claim characterised it as a contract. 39 Jeffrey Chalfont maintained that he had no input into the drafting of the statement of claim or the amended statement of claim. It was said that that was implausible. But the information would have been available to Ross Chalfont at the time he gave instructions for the drawing of the terms of the alleged agreement. 40 Mrs Kerridge said the money was a gift. Ronald Coleman Solomon, a retired solicitor, gave evidence that he attended upon Mrs Chalfont and, on 15 August 1994, he wrote out by hand the following: "I authorise my daughter and son in law Lyn and Ray Kerridge to utilise $130,000 in my savings account with the Commonwealth Bank San Souci for the purpose of buying another home for themselves. This money is a gift to Lyn alone and does not require repayment." 41 He signed the document, as did Mrs Chalfont. 42 There were problems with Mrs Kerridge's evidence. For example, she kept detailed diary notes of sometimes mundane matters. But there were no entries corroborating such evidence as, for example, that almost every night her mother telephoned her when staying with the boys and saying the boys did not seem to care about her. 43 Mrs Kerridge said that over the years she may have said: "Jack may not leave me his money". But she said she had never said: "It wouldn't be fair for her to take any of Dad's money and I won't take a cent." 44 Neither through Mr Solomon nor through Mrs Kerridge in cross-examination was any successful challenge to the handwritten document of 15 August 1994 mounted. It is to be construed according to its tenor. 45 It is a complete answer to the claim by Ross Chalfont supported by his brothers that there was an agreement between Mrs Kerridge and her mother that included a term that she would not make a claim upon her father's estate. 46 The document is clear. The money was a gift not to be repaid. I find there was no agreement between Mrs Kerridge and her mother in terms of the pleading in the amended statement of claim or at all. 47 I am fortified in my conclusion by the variations in the evidence of Ross Chalfont and Jeffrey Chalfont of the nature of the alleged arrangement. 48 It is unnecessary for me to consider the further question whether the arrangement alleged by Ross Chalfont was contractual or merely a family arrangement. 49 As I have found that the arrangement was one of gift and not of loan, or of conditional gift or conditional loan, the alternative claim of unjust enrichment must also fail. 50 On 27 March 2009 a document purporting to be a copy of the will of Mrs Chalfont was produced. The question arises whether the letters of administration should now be revoked and the document admitted to probate. 51 There are also related proceedings by Mrs Kerridge for an order that the estate be distributed that needs to be considered. 52 I will publish these reasons and stand the matter over to allow the parties to confer on the appropriate terms of orders in both sets of proceedings. And I will hear the parties on costs. I direct the parties to bring in short minutes of order reflecting these reasons. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.