Waldock v Waldock [2012] NSWSC 258

Supreme Court New South Wales

Medium Neutral Citation: Waldock v Waldock [2012] NSWSC 258 Hearing dates: 15 March 2012 Decision date: 26 March 2012 Jurisdiction: Equity Division Before: Ball J Decision: The proceedings be dismissed with costs. Catchwords: CONTRACT - existence of contract - alleged contract to care for parents - presumption of no intention to create legal relations in family context - application of presumption where money paid for promised conduct - where parties did not use language of contract - where no attempt to address future contingencies. RESTITUTION - failure of consideration - where no contractual promise - where money paid in expectation of conduct - whether in such circumstances payment was for purpose which had failed. EQUITY - trusts - constructive trust - relationship between remedial constructive trust and restitution for failure of consideration. Cases Cited: Ashton v Pratt (No 2) [2012] NSWSC 3 Baumgartner v Baumgartner (1987) 164 CLR Equuscorp Pty Ltd v Haxton [2012] HCA 7 Muschinski v Dodds (1985) 160 CLR 583 Roxborough v Rothmans of Pall Mall Australia Limited [2001] HCA 68; 208 CLR 516 Category: Principal judgment Parties: Robert Levi Ernest Waldock (Plaintiff) Robert Charles Waldock (Defendant) Representation: I R Pike SC (Plaintiff) M B Evans (Defendant) JP O'Neill Lawyers (Plaintiff) In Person (Defendant) File Number(s): 2011/176136

Judgment 1The plaintiff, who was born in September 1923, is the defendant's father. On 21 October 2010, the plaintiff gave the defendant a bank cheque for $400,000 made payable to the defendant and his wife, which the defendant paid into their joint account. The plaintiff says that he gave the defendant the cheque following a conversation between them in which he said he would give the defendant $400,000 in exchange for the defendant agreeing to look after and care for the plaintiff and the plaintiff's wife, Essie, in the defendant's house for the remainder of the plaintiff's and Essie's lives. For reasons for which I will explain, the defendant did not do so and the plaintiff claims to be entitled to recover the $400,000. 2The plaintiff's case is put in various ways. His primary case is that the conversation concerning the $400,000 gave rise to an enforceable agreement, which was breached by the defendant or which had as an implied term that the defendant would repay the money in the event that the defendant did not fulfil his part of the bargain. Alternatively, the plaintiff submitted that he was entitled to recover the money because there was a total failure of consideration. Lastly, he claims that the money was paid as part of a joint enterprise which failed and that consequently the court should find that he holds the $400,000 as a constructive trustee for the plaintiff. This last way of putting the case is said to be derived from the principles stated by the High Court in Baumgartner v Baumgartner (1987) 164 CLR 137. 3I return to the various ways in which the case is put below. Two points, however, should be made now. First, Mr Pike SC, who appeared for the plaintiff, accepted that each way in which the case was put depended on the court accepting the plaintiff's evidence that he had a conversation with the defendant in which it was agreed that the plaintiff would pay the defendant $400,000.00 in exchange for the defendant agreeing to look after the plaintiff and Essie at his home for the remainder of their lives. 4Second, the case in relation to breach of contract as pleaded, and as originally put in the plaintiff's affidavit evidence, was that the defendant breached the agreement because he had failed to care for the plaintiff and Essie properly. Various particulars were given of that allegation. Those particulars included allegations that the sleeping accommodation provided to the plaintiff and Essie was inadequate, that they were provided with no proper bathroom facilities and that they were subject to verbal abuse and insults by the defendant and his wife. However, during the course of the hearing, it emerged that the plaintiff kept a day book covering the period from 24 May 2010 to 29 November 2010 in which he recorded, among other things, comments and observations on the daily events of his life. Mr Pike SC, rightly, conceded that, in the light of the entries in that day book, which were supported by concessions made by the plaintiff during cross-examination, he could not maintain a case that the defendant had failed to look after the plaintiff and Essie properly. That issue only remains relevant to the extent that it sheds light on the plaintiff's credit. 5Apart from the claim for return of the $400,000, the plaintiff makes two other subsidiary claims. First, when he and Essie moved in with the defendant and his wife, a number of personal belongings went with them. The plaintiff seeks the return of a number of those items. There is a dispute whether the defendant has some of those items and whether others were given to him by the plaintiff. Second, the plaintiff says that he lent the defendant the sum of $5,000 to enable the defendant to purchase a lathe. The plaintiff originally said that that loan was made in early October 2010, but now concedes he paid the defendant the amount of $5,000 in June 2009. The plaintiff claims repayment of that loan.