Case studies
Case Study No. 2
Lottie was an elderly, widowed grandmother with a heart condition. She was
the sole owner of the family homestead (“the Farm”). She had a son, Waldo.
Waldo, his wife and children moved on to the Farm to share the house with
Lottie. Over a period of several years, Waldo did significant repairs and
improvements.
Eventually, Waldo sued Lottie for title to the Farm. He claimed that Lottie
had promised that if he and his family moved on to the Farm and took care of the
repairs and maintenance, she would transfer the Farm to him. There was nothing
in writing to support the alleged contract.
Lottie denied that there was any such contract. She said that she was simply
providing accommodation to Waldo and his family in return for his services.
Lottie’s lawyer was Neville Johnston. Neville defended on the basis of the
Statute of Frauds. Under the Statute of Frauds, any contract re land must be in
writing in order to be enforceable. However, there is one exception: part
performance. In essence, if Waldo could prove that his move on to the Farm and
his services were directly related to the alleged contract this would have the
effect of providing a good reply to the defence of the Statute of Frauds.
At the trial, Waldo’s counsel attempted to introduce evidence of the terms of
the alleged contract. Neville immediately objected, and argued extensively that
before Waldo’s counsel was permitted to lead evidence as to the alleged contract
he first had to persuade the Court that there was sufficient evidence of part
performance unequivocally referable to the alleged contract.
This meant from a practical aspect of procedure that the trial had to be
split into two distinct parts:
- Part 1: to decide the issue of part performance;
- Part 2: if the Court decides the issue of part performance in Waldo’s
favour (and only then) Waldo’s counsel would introduce evidence as to the
term of the alleged contract and the Court would then decide as to whether
there was in fact a contract to transfer the Farm to Waldo.
After the court heard evidence and argument on the issue of part performance
only, the Court held that there was no part performance unequivocally referable
to the alleged contract and that no evidence could therefore be given as to the
terms of the alleged contract.
The net result: Waldo was unable to proceed further, and Lottie retained sole
ownership of the Farm.
Gilroy v. Gilroy
(Unreported: Copy of Reasons for Judgment available on request) |
