Levingston v. Levingston

Australia

11.05.2017

Civil

Contract be constituted by an offer and acceptance when putative offer reveal an intention to give rise, upon acceptance, to an obligation

Robert Ian Edwin Partridge died on 6 October 2008. By his will made on 29 December 1995, he appointed Appellant, Mrs. Lola Levingston, as his executrix and left his estate to his only son, Mr. Rhys Partridge, second Respondent. Late Mr. Partridge and Mrs. Levingston lived together as husband and wife for 12 years prior to his death. Mrs. Levingston appeals against dismissal of her action in which she claimed that, late Mr. Partridge agreed to leave her his entire estate or, alternatively, his personal estate. Appellant’s primary claim was in contract and based on a letter dated 13 April 2005 that, she and Ian signed and sent to their solicitor. Mrs. Levingston claimed that, letter constituted an agreement in writing between Ian and Mrs. Levingston, terms of which were that Ian would be entitled to live in a property owned by Mrs. Levingston for rest of his life, and her will would so provide, and Ian would leave his personal estate to Mrs. Levingston.

Primary judge found that, constructive and resulting trust claims failed as a consequence of failure of Mrs. Levingston's contract and estoppel claims. Primary Judge observed that, language of letter does not suggest the existence of an agreement. Absence of any words reflecting existence of a consensus was described by primary judge as a significant factor in his reasoning that Ian and Mrs. Levingston did not have an intention to create contractual relations. Evident purpose of letter was not to make an agreement but to provide documents to their lawyer and to set out legal advice they required from him. Ian and Mrs. Levingston had not documented any of their financial dealings with each other, as they trusted one another. That suggested, it was unlikely that Ian and Mrs. Levingston intended to create a binding agreement between them in relation to their respective testamentary intentions. Primary judge concluded that, they both signed letter in order to assure Mr Meyer that, contents of letter reflected their instructions.

 In order that a contract be constituted by an offer and acceptance, putative offer must reveal an intention to give rise, upon acceptance, to an obligation. Intention is assessed objectively; that is done by reference to what is conveyed to a reasonable person in the position of parties by what was said and done, and having regard to circumstances in which those statements and conduct happened. In making that assessment, conduct of parties subsequent to making of alleged agreement may be taken into account. As primary judge pointed out, it is important to notice that Mrs. Levingston's case is that, letter of 13 April 2005 constituted agreement. It was not said to evidence an agreement that had been made orally or by conduct. Nor does Mrs. Levingston allege that, parties made an inferred agreement without an identifiable offer and acceptance. Thus, language and evident purpose of letter is of central significance. In cases where a letter is said to constitute an agreement, letter would usually be sent by one party to agreement to other party to agreement. That is not so in present case. Rather, letter is sent by two alleged parties to agreement to a third person - their solicitor - who is not said to be a party to alleged agreement.

Aspects of letter on which Mrs. Levingston fixes are a relatively minor proportion of letter. Reading letter as a whole, it is obvious that, its purpose and character is for Ian and Mrs. Levingston to provide information and instructions to Mr. Meyer in order that, he provide advice to them. There is no warrant in language or in any other aspect of letter for singling out two single lines of letter as revealing a purpose and effect of a fundamentally different character, namely to create binding obligations between Mrs. Levingston and Ian. When letter is read as a whole, it is plain that, as primary judge found, it is objectively intended to do no more than provide information and instructions and identify questions on which advice is or will be sought from the solicitor. Letter falls a long way short of revealing an intention on part of Ian and Mrs. Levingston to undertake obligations to each other. That conclusion is apparent from a consideration of terms of letter, without any necessity to refer to surrounding circumstances and subsequent events.

Where, a trial judge makes findings of fact based in part on judge's assessment of credibility of witnesses, those findings will not be reversed on appeal unless, it is demonstrated that, findings are flawed by reference to incontrovertible facts or uncontested testimony, or that they are glaringly improbable or contrary to compelling inferences, or that trial judge has failed to use or has palpably misused their advantage as trial judge. Mrs. Levingston did not attempt to demonstrate, by reference to any of these matters, that primary judge's findings of fact were wrong. Primary judge's findings of fact were well open, and were supported by cogent reasoning. His Honour's findings cannot be said to be demonstrated to be wrong by incontrovertible facts or uncontested testimony, nor are they contrary to compelling inferences. Appeal must be dismissed.

Tags : Will Agreement Existence

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