Richardson v Lindsay [2019] NSWCA 148 – again, put everything in writing

This is a case involving the transfer of the granny flat interest – the right to accommodation for life – to another property.

[Note that most of this firm’s agreements provide for such a transfer – the right given is for permanent accommodation, not necessarily at any particular location. Also, such transfers do not offend any Centrelink rules.  Centrelink is more concerned about the right of accommodation for life than accommodation at a particular property.]

This case again emphasises the importance of having a written agreement. There was in fact a written agreement here, but after three years the parties agreed to move to another house, further out in the country. But this variation of the agreement was not recorded in writing. After a short time the “granny” began to feel isolated, she felt that she didn’t have access to transport, shops, medical services and friends. She moved out into rented accommodation.  She claimed that her daughter and son-in-law breached the original granny flat agreement.

The granny in this case failed to persuade the court that there was a breach of contract because the court found that she had agreed to the move. In lawyers’ jargon the case was primarily about promissory estoppel. In layman’s terms this means, that the granny had agreed to the move and her daughter and son-in-law had relied, to their detriment, on this assurance – they had acted on this assurance. The granny in the circumstances could not later change her mind.

Perhaps two lessons here – first, had the agreement to move been recorded in writing, it would have been unlikely that there would have been any misunderstanding – or more likely here, it wouldn’t have given granny the opportunity to argue that she didn’t agree to the move. Second, the mere fact that an agreement is put in writing means that the parties have to think carefully about what they are agreeing to – it focuses the mind on the things that should be taken into account. Clearly here granny and the children didn’t carefully think about what affect the greater isolation would have on granny.

Had the parties recorded this in writing the chances are that either they wouldn’t have proceeded as they did, or, if they did, they wouldn’t have been involved in what was undoubtedly two very expensive court cases.