Loading...
Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Cartella v Cartella

 

[2019] QDC 246

DISTRICT COURT OF QUEENSLAND

CITATION:

Cartella v Cartella [2019] QDC 246

PARTIES:

ROCCO CARTELLA

(plaintiff)

v

TERESA CARTELLA

(defendant)

FILE NO:

BD1730/2018

DIVISION:

 

PROCEEDING:

Civil trial

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

5 December 2019

DELIVERED AT:

Brisbane

HEARING DATE:

11, 12 September 2019

JUDGE:

McGill SC DCJ

ORDER:

Declaration that the plaintiff holds the land forming part of the estate of Francesco Cartella deceased on trust for himself and the defendant as tenants in common in equal shares.  Counterclaim dismissed. 

CATCHWORDS:

CONTRACT – Consideration – oral agreement to vary distribution of property under will – whether made – whether consideration given by forbearance to bring family provision application – whether enforceable.

Official Receiver v Schultz (1991) 170 CLR 360 – applied.

Pipikos v Trayans (2018) 92 ALJR 880 – cited.

Wigan v Edwards (1973) 47 ALJR 586 – applied.

COUNSEL:

R Cameron for the plaintiff
M Wilson for the defendant

SOLICITORS:

John P Bussa & Co for the plaintiff
Porter Lawyers for the defendant

  1. [1]
    Francesco Cartella died on 25 December 2007. By his last will, made on 22 January 1975, he appointed the plaintiff, his son, sole executor, and provided that if, as occurred, he was not survived by his wife, a property owned by him in Nundah in Brisbane and its contents passed to the defendant, his daughter, a property owned by him in Biloela and its contents passed to the plaintiff, and the residue was to be divided equally between them. He sold the Biloela property prior to his death, and at that time he was living in a nursing home, and his estate consisted of the property at Nundah and a relatively modest amount of money in a bank account. The plaintiff alleges that, following his father’s death, he and the defendant agreed that the father’s estate would be divided between them equally; the defendant denies that agreement, and by this proceeding the plaintiff seeks to enforce the agreement.
  1. [2]
    Title to the house was transferred to the plaintiff as personal representative, and remains with him in that capacity; for most of the time since the father passed away the house has been rented, and the proceeds divided between the parties. That was said by the plaintiff to be pursuant to an agreement between the parties, that the house would be retained for a time until the market was more favourable. The plaintiff claimed that the defendant has only resiled from the agreements after her son sought her assistance in connection with a financial transaction with his bank for his business. The defendant claimed that over the years she had from time to time asked the plaintiff when the house would be transferred to her.

Plaintiff’s account

  1. [3]
    The plaintiff said that the father’s property at Biloela was probably sold in the 1980’s: p 10. He denied that he obtained any proceeds.[1]  The will was held by a firm of solicitors, Cooper Grace Ward, and after their father’s death the firm wrote to the plaintiff about the estate: p 10.  The plaintiff said he and the defendant went in to see a paralegal at that firm, but before doing so he and the defendant agreed to divide all the property half and half: p 9.  He thought that agreement was made on a Sunday, because his sister normally used to visit on a Sunday for coffee.  He said when they went in to see the paralegal he told her of this agreement, and said that the defendant also agreed that that was the situation: p 12. 
  1. [4]
    The plaintiff said that after his father died he prepared the house for renting: p 14. It was initially rented to someone known to the defendant,[2] and after a few months it was rented to someone else at a higher rent.  After a further year he engaged a real estate agent to take over the management of the property: p 15.  This proved to be unsatisfactory, and after a similar experience with another agent, he took over the management himself, and has been doing it ever since.
  1. [5]
    As the rent money came in it built up in a bank account, so that from time to time he would write two cheques, one to his sister and one to himself, dividing the proceeds equally: p 10. He said that during that time he had been looking after the house, and doing anything that needed doing himself unless it required the services of a tradesman: p 11. The plaintiff said that he had never made any claim for remuneration in connection with the work he had done on the rental property: p 17. That he had divided the net proceeds of renting the property with the defendant was confirmed by the evidence of his accountant, who was called and verified the relevant documents.
  1. [6]
    The plaintiff said that in 2008 his relationship with his sister was very close, and that remained the case until recently when her son needed some money: p 12. He said he had a few phone calls from his nephew asking about whether they could help him to obtain a loan of money, and he arranged to meet the nephew for coffee at Lutwyche: p 13. He said he explained to his nephew what had happened, and also told him that they could not transfer the house into his name. He said that he offered to “buy him out”, though I assume that what was being proposed was actually that he would buy out his sister from her share of the house. He said he offered $600,000, and that he would also pay the defendant half of any profit he made in the future if he did develop the property. He said the following day his sister came to his house very angry, demanding that he transfer the house to her, and the following day he received a letter of demand from her solicitors. The plaintiff said that at one stage he had consulted a different solicitor, who prepared a couple of documents which he suggested the plaintiff have the defendant sign.[3]  They were not signed. 

Defendant’s account

  1. [7]
    The defendant said she was born in Italy and came with her family to Australia, initially to Biloela but subsequently to Brisbane: pp 68, 69. She went overseas between 1974 and 1977, then returned and lived with her family until 1980 when she married. She said that when she was young she used to argue with her parents and her brother because he was allowed to go out but she was not, because she was a girl: p 70. She maintained there was not a good relationship between her and the plaintiff, and that the plaintiff had to get his way all the time: p 71. The defendant said that after their mother died in January 2007 there was no one living at the family home, and she and the plaintiff agreed to put a tenant into the house at that time: p 72. It was someone she worked with who went in there. The tenant would pay rent in cash to her each week, and she would give it to the plaintiff. She agreed that the plaintiff got the house into a proper state for renting: p 73.
  1. [8]
    The defendant denied that there was ever any agreement with the plaintiff for the family home to be sold and the proceeds divided: p 73. She said that she never said to him that she agreed, and that she did not agree to sell it, though he wanted to sell it. She appeared to agree that there was some discussion with her brother, and that he wanted 50 per cent of the house, but said she never agreed with that: p 74. She said that she had the original will along with all of her father’s papers, and after the father passed away she gave it to the plaintiff at his request: p 73. She said she first saw the contents of the will when they went to the solicitors, but that she had known before then that the house in Brisbane had been left to her: p 74.
  1. [9]
    The defendant recalled going to see the paralegal at Cooper Grace Ward, but said she did not remember much of what was talked about: p 74. She claimed she did not understand anything that was said, and just sat there like a dummy, being very emotional as her father had only died a couple of months before: p 74.  She claimed not to have any recollection of anything that was discussed at the meeting.  She also did not recall saying anything: p 75.  She also did not recall the solicitor talking to her about what was to become of the family home: p 75.  She did not recall anything being said at the meeting about transferring the family home to her, or any conversation about her selling the home.  She said that if someone at the meeting had raised the idea of the family home being sold fairly soon she would have indicated she did not want to sell it because she wanted to keep it: p 76.  She said that she had no recollection of any discussion about the house being divided between her and the plaintiff, and that if it had been raised her reaction would have been to say no.
  1. [10]
    The defendant denied that she had ever signed a document about the house, or that she was ever presented by the plaintiff with a document to sign: p 76. She said she only saw a letter which had been drafted by another solicitor in the course of the proceeding: p 76.  She also said she had no recollection of any discussion about keeping tenants in the house after the meeting with the solicitor, though she did agree that she occasionally received lump sum payments in respect of rent: p 77.  She said that she was aware that what she was getting was half the rent, rather than all the rent (after expenses).  She said that she did not raise any issue with the plaintiff about his keeping half the rent, because she thought that eventually he would transfer the house to her so that it would eventually be hers: p 77.  The defendant said that, after she went to a lawyer in 2018, the plaintiff came to her house and dropped two documents in to her, saying that these were the agreements: p 79.[4]  He did not explain them or say when they were drawn up.
  1. [11]
    The defendant said that after 2008 she saw the plaintiff once or twice a month on Sundays for coffee, but they would never discuss the house: p 79. She said that she raised the house a few times and that each time he said he would contest the will, whereupon she would walk away so as not to continue the conversation: p 80.
  1. [12]
    The defendant said that in early 2018 her son had asked her to act as guarantor for him, so she wanted the plaintiff to transfer the house to her: p 80. She said she went to his house to ask for this and he responded by saying that he was going to contest the will, and swearing at her, so she walked away: p 81. She said that she thought her son just wanted the property for a guarantee, though she spoke of being a guarantor for her son once the property was transferred into her name. She said that since then there were no more visits between her and the plaintiff.

The paralegal

  1. [13]
    Evidence was also given by the paralegal who was working in March 2008 for the firm Cooper Grace Ward in the estate section, and spoke to them. On 6 March 2008 she prepared a file note of a meeting she had with the plaintiff and the defendant, either that day or the day before: p 49. The file note went into evidence: Exhibit 1, Vol 2 p 10. The note recorded that the paralegal first saw the plaintiff alone and explained to him the effect of the will, and was told that there were no assets other than the house and the money. He told her that he and the defendant had discussed the terms of the will and they had agreed that the house was going to be sold and they would split the money 50/50. The defendant then joined the meeting and there was some discussion about what the solicitors’ costs would be if they acted in the estate. He handed over the title deed to the house, and it became apparent that the house was still in the names of both of their parents, and she explained that it would be necessary to prepare a record of death to transmit the mother’s interest to the father, and then the transmission to the sister. The note records:

“They both agreed in front of me and to me that Nellie Street would be transferred into her name and that they would be selling it probably within a year and split the money 50/50.  There was also some talk about him buying the property and giving her 50 per cent of the value but nothing was decided.”

  1. [14]
    The note goes on to record that the house was currently rented to people they knew, who knew about the situation, and there was no mortgage. It records that the father had been living for about four months in a nursing home prior to his death.
  1. [15]
    On 10 March 2008 there was a letter prepared by her, sent under the name of the supervising partner.[5]  The letter also confirmed the arrangement about the house in the estate: “In this regard you advised, and this was confirmed by Teresa, that you would be selling and dividing equally between you the assets of the estate” which were then identified as the property in Nundah and money in the bank.  The letter confirmed that the firm held the original will.  Sent with that letter was a disclosure statement and a client agreement under the Legal Profession Act 2007,[6] but it does not appear that this was ever signed by the plaintiff.  On 25 March 2008 he acknowledged receipt from Cooper Grace Ward of various documents, including the original will of the father dated 22 January 1975.[7]  Evidently the plaintiff was sent an invoice but he challenged that by letter of 6 April 2008 on the basis that he never gave the firm instructions to act in the matter.[8]
  1. [16]
    The note is not entirely consistent with the evidence of either of the parties, because there was no reference in the evidence of the plaintiff to its being a part of any agreement with the defendant that the house property would be transferred to her before it was sold and the proceeds divided. In other respects however the note seems to me to be largely consistent with the evidence of the plaintiff. In particular, it records that the existence of an agreement to split the estate equally between the parties was expressly acknowledged to the paralegal by the defendant as well as by the plaintiff. That is inconsistent with the evidence of the defendant, that she did not say anything during the meeting, and that there was no agreement between her and the plaintiff that the estate would be split 50/50, or that the house would be sold.
  1. [17]
    There is also the consideration that the transfer of the house to the defendant before sale was not mentioned in the letter from Cooper Grace Ward to the plaintiff on 10 March 2008, and it occurs to me that this aspect of the matter might have been an error in the preparation of the note.  It does not seem to me that there would be any good reason why it would have been part of this arrangement for the house to be transferred to the defendant prior to its being sold; if the parties agreed to vary the distribution of the property in the estate, the property could be sold by the plaintiff as executor once he became the registered proprietor of it, as he did.
  1. [18]
    Overall, in circumstances where there is no other evidence that that was a term of the agreement, in the light of the evidence as a whole I do not accept this was part of the agreement between the parties. I do find however that there was an agreement between the parties that the whole estate of the deceased would be divided beneficially equally between them. In view of this, and some other matters, I do not regard the defendant as a reliable witness. One of the other matters is that she claimed she produced the original will from among her father’s papers (p 73), whereas it appears it was held by the solicitors.[9]
  1. [19]
    I therefore find that there was an agreement between the parties on or before 6 March 2008 that the disposition of property made by the will of their father would be varied so that the house property would be divided between them, as well as the residue of the estate; in effect that the house would fall into residue, instead of passing solely to a defendant. The defendant advanced various arguments as to why, in any event, such an agreement was unenforceable.

Defences – absence of writing

  1. [20]
    The first was that the agreement was for a disposition of land or an interest in land and was unenforceable pursuant to the Property Law Act 1974 s 59, there being no note or memorandum in writing signed by the defendant.  There is nothing signed by the defendant, but the short answer to this defence is that the agreement was not one involving a disposition of land or an interest in land.  At the time the agreement was made, the defendant had no interest in the land; what she had as a beneficiary of the estate at that stage was simply a right to have the estate properly administered.  At the time the agreement was made, on or before the visit to the paralegal, the administration of the estate has not been completed; indeed, it had not even begun. 
  1. [21]
    The fact that, as things stood under the will, if the estate were properly administered she would receive an interest in land does not mean that at that stage she had any such interest. The true position of a beneficiary in an unadministered estate is the beneficiary has no proprietary interest in any individual piece of property which forms part of the estate of the deceased. That was established by the decision in Official Receiver v Schultz (1991) 170 CLR 360 at 312.[10]  Accordingly s 59 of the Property Law Act did not apply, and the absence of writing is not fatal to the plaintiff’s claim.
  1. [22]
    In those circumstances, it is unnecessary to consider whether in the circumstances there has been sufficient part performance of the agreement for the defendant to be unable to rely on the statute. The part performance relied on was the fact that since the date of death the property has generally been tenanted, and the net rental has throughout that time been divided equally between the parties. That that has occurred was undisputed, and given the length of time that has passed when that position has existed, without challenge from the defendant, it seems to me that the conduct of the parties in treating the house as being owned beneficially by them equally in this way is consistent only with the agreement alleged by the plaintiff.[11]  I should say that I do not accept the defendant’s evidence that from time to time during that period she asked when the house would be transferred to her.[12]  Apart from my general view of her lack of credibility, it is difficult to accept that, if as she claimed the plaintiff had flatly rejected doing this, she would simply have continued to let the matter drift for so long without taking some steps to enforce what she claims to have been her right. 

-Abandonment

  1. [23]
    The defendant next argued that the agreement had been abandoned. It was an element of the agreement that the property would be sold, and because so much time had passed without the property being sold, the inference was that the agreement had been abandoned by the parties. The short answer to that argument in my opinion is that it was not part of the agreement that the property would be sold at any particular time. The position is simply that, instead of passing to the defendant, the property was to be divided, which for practical purposes meant that the property would be sold and the proceeds divided. The plaintiff said that the defendant had wanted to hold off selling the property for the time being, and there were answers given by the defendant at one point which appeared to agree with this proposition, that the sale of the property had been deferred with her agreement. Accordingly the true position in my opinion was that the parties, having made an agreement about the disposition of the estate, had also agreed to the property not being sold but being retained and tenanted for the time being, either expressly or by both acquiescing in that course of action. But the fact that during that period the net rental was divided equally between them is inconsistent with the notion that the original agreement as to the disposition of the estate had been abandoned.
  1. [24]
    It was submitted for the defendant that the plaintiff had expressly disavowed any agreement to postpone the sale, but the plaintiff said at p 25, line 4 that there was an agreement not to sell it straight away, because they wanted the price to come up. Indeed, at p 40 the plaintiff appeared to be saying that such a discussion occurred before the parties went to see Cooper Grace Ward and spoke to the paralegal. The passage relied on by counsel for the defendant was at pp 41 and 42 of the transcript where he referred the plaintiff to the allegation in paragraph 15 of the amended statement of claim, which referred to the agreement that the property would not be sold immediately but would be tenanted and the net rent would be divided. I then asked him if there was an agreement to that effect after 10 March 2008, that is, after the visit to the paralegal, and his answer was:

“No.  The only agreement that we agreed on was before we seen [the paralegal] and when we seen [the paralegal], and we’ve been going with that for the last 10 years.”

  1. [25]
    That is not a disavowal of the existence of any agreement to delay the sale and rent the property in the meantime, it is simply asserting that the agreement occurred before and on 10 March 2008, consistent with what he had said earlier.  He was then asked by counsel whether the only agreement that they had was what “you developed before the Cooper Grace Ward meeting” and he replied “the only agreement we had with my sister was we decided what we told [the paralegal], that was the agreement we’ve been going for the last 10 years.”  He was then asked “and that would be sold and the proceeds divided?” to which he answered “yes”.  I do not accept that this amounts to a disavowal that there was any agreement between the parties that the sale of the land would be postponed, and the property would be tenanted in the meantime.  The interpretation I would place on the matter is simply that the plaintiff was adhering to his previous evidence. 
  1. [26]
    I should add that both parties spoke in a way which revealed that English was not their first language, though they appeared to have a reasonable grasp of English. I was however a little concerned at times that, particularly when put under pressure, there may have been some issues with effective communication in the witness box. For that reason I consider that it is not appropriate to place too much emphasis on any particular word or sentence used by either of the parties, but rather to take the effect of their evidence from the content of their evidence as a whole.
  1. [27]
    I also reject the defendant’s submission that the plaintiff had asserted at different times, by pleadings or particulars, five different versions of the agreement between the parties. Whether or not that was the effect of the various formulations adopted by his solicitors at different times, the plaintiff’s evidence was to the effect that the agreement with the defendant was that the house at Nundah would be divided between the parties, and that for the time being it would not be sold but be rented, until the price improved. That agreement was in my opinion sufficient to avoid any uncertainty which would give rise to invalidity.

-Acceptance

  1. [28]
    It was submitted for the defendant that there had been no acceptance, but that really depends on acceptance of the defendant’s evidence that, although the plaintiff had sought the house be divided between them, she never agreed to that. I do not accept that version. It was also submitted that there was no intention to create legal relations, but I reject that submission. What the parties were plainly intending to do was to effect a change in the distribution of property pursuant to the father’s will. That in my opinion was necessarily an agreement which was to operate with legal effect, because it could not have any operation otherwise. This was not like the sort of family arrangement where the parties allow a certain situation to occur at will but without any binding agreement for it to continue.

-Absence of consideration

  1. [29]
    It was submitted that the agreement was unenforceable as a contract because the plaintiff had given no consideration for the defendant’s agreement to redistribute the way in which the property was dealt with by the will. I do not accept that submission; the plaintiff had on the evidence the idea at an early stage of challenging the will unless there was some change to the distribution of property it provided.[13]  That expression is no doubt used in an informal way, but for practical purposes it referred to the possibility of a family provision application if virtually the whole of the father’s property passed to the defendant.[14]  As a result of the agreement the plaintiff did not make such an application.  Abandoning the right to pursue such an application would in my opinion amount to good consideration for the defendant’s agreement to the change in the distribution of property provided for by the will. 
  1. [30]
    Although there is little evidence about the parties circumstances, so that it is not possible to be definite, or even to get some indication, of the plaintiff’s prospects had an application for family provision been made by him, he was a person qualified to apply for family provision, and in circumstances where he received very little under a will which when made gave him a house property as well, one would expect that the defendant would have to show some significant imbalance in need in order to avoid some provision being made for him, either by a court or by way of compromise of the application.[15]  Even if the plaintiff’s circumstances were so comfortable that the defendant could, if such an application had been made, had had it summarily dismissed, even doing that would have put the defendant to some trouble and expense, and even the avoidance of that would have been of some benefit to the defendant. 
  1. [31]
    Consideration does not need to be substantial in value, so long as it is real. In my opinion giving up the right to apply for further provision out of the estate pursuant to the Succession Act 1981 amounted to good consideration to support the defendant’s agreement to the change in the distribution of property under the will.  It was submitted for the defendant that there was insufficient substance shown to subsist in any potential application to characterise giving it up as consideration, and reference was made to the sixth Australian Edition of Cheshire and Fifoot’s Law of Contract.  I have the ninth Australian Edition (2008), which discusses the issue at pp 191-195, where it is stated that forbearance to sue will be good consideration, even if the claim is doubtful.  Reference was made to Wigan v Edwards (1973) 47 ALJR 586, where Menzies J, with whom McTiernan ACJ and Walsh J agreed, approved at p 588 statements in the Full Court that there was consideration in the bona fide settlement of a genuine dispute, and that all that was necessary was for the plaintiffs to have asserted a claim which they genuinely thought was good. 
  1. [32]
    I accept that the plaintiff genuinely believed that he could challenge the will, and in the circumstances he had a right to do so. It was not frivolous or vexatious, and giving up that right was good consideration for the defendant’s agreement to share the house. The fact that the plaintiff did not expressly bargain in these terms does not I think matter; that was the effect of the agreement that was reached. On the plaintiff’s account, he and the defendant were on good terms at the time and the agreement was reached readily between them. In those circumstances, the fact that the plaintiff was giving up the right to make the application may well have been tacit, but it would I consider have been an integral part of the agreement between the parties, and supplied the necessary consideration.[16] 
  1. [33]
    The plaintiff did give evidence that if there had not been such an agreement he would have contested the will: p 11. The right to do that was what in substance he gave up in return for the defendant’s agreement. I do not think it matters if the relationship between them at the time was so good and the defendant was so willing to agree that it was unnecessary for the plaintiff expressly to threaten this in the course of the discussion between them. The defendant’s argument amounts to the proposition that, because it was never necessary for the plaintiff to raise expressly the possibility of an application under the Succession Act, giving up that right did not stand as consideration for the defendant’s agreement.  The proposition that, if he had said “Because the Biloela property has been sold this is unfair, so I am going to challenge the will” and she had replied “There is no need to do that, I will divide the Nundah property with you equally” there would be a contract, but as he omitted the express reference to challenging the will there was not, strikes me as artificial.  The proposition that the will was not even-handed, and the potential for a challenge, must have been obvious to both parties at the time, and must have served as the background against which this agreement was formed, and in those circumstances the proposition that this was no consideration for the defendant’s promise is I think artificial.
  1. [34]
    It is true that this was not expressly pleaded by the plaintiff, but it was a matter that I raised during the trial, and submissions on it were received; neither party applied for leave to reopen. The point has been litigated, and turns on the appropriate inference to draw in the circumstances, and there is accordingly no unfairness to the defendant in proceeding on that basis.

-Other defences

  1. [35]
    Next it was submitted that there was no genuine consent because the defendant had not voluntarily entered into the agreement, but in effect had been forced to do so because of the dominance of her by the plaintiff. The evidence supporting this proposition was the evidence of the defendant herself. I do not regard her as a reliable witness, and reject her evidence which is the factual foundation for this assertion. It follows that there is no substance in this proposition.
  1. [36]
    It was also submitted that the defendant was entitled to all of the net income from the estate from the date of death, but that assumes the absence of any agreement to redistribute the beneficial interest in the estate between the parties. Indeed the fact that, until the dispute which led to this litigation, the defendant had never taken any steps to challenge the distribution of income confirms the existence of the agreement, if further confirmation were required. Once there was an agreement between the parties to redistribute the interest passing under the will, it was appropriate for the net proceeds of the estate to be divided equally between them, as indeed is still the case. In substance, this claim could only succeed if I had rejected the plaintiff’s claim that the parties had made the agreement to vary the distribution of property under the will.
  1. [37]
    For that reason it is irrelevant to consider what right the defendant would have to intermediate income in that situation. It is also unnecessary to consider an alternative claim by the plaintiff to a share in the rent based on certain provisions of the will.
  1. [38]
    It was also submitted that the defendant had a defence under the Limitation of Actions Act 1974 s 10, in that an action for specific performance of the contract between the parties could not be brought after the expiration of six years from the date at which the cause of action arose.  There are two difficulties with this argument.  The first is that a cause of action for breach of contract does not arise until the contract is breached, and the defendant only disputed the existence of the agreement to redistribute the interest under the will recently.  But apart from that, the effect of the agreement between the parties was to redistribute the beneficial interest in the house property on the conclusion of the administration of the estate.  The true position is that since then the plaintiff has held the land on trust for each of the parties as tenants in common in equal shares.  In effect, the contract had been performed, so far as the redistribution of the beneficial interest in the house was concerned.  That part of the agreement which involved the sale of the property and division of the proceeds has not occurred, because of the existence of the further agreement between the parties, which was not challenged until recently, that the sale would be postponed indefinitely until the market was more favourable to vendors, and the property rented.  There is necessarily no defence under the Limitation of Actions Act. 
  1. [39]
    I should add, lest it be thought that I have overlooked it, that evidence was also given by the defendant’s son, Francesco, who said that around January or February 2018 he had asked his mother whether she would be prepared to act as guarantor for him for around $100,000 in connection with money he was trying to borrow to provide funds for his company: p 2-11.[17]  He said that her response was that she would help, and she would use her property at Nellie Street as collateral, and she would speak to the plaintiff and sort it out.  He said that the idea of using the property as collateral came from the defendant: p 2-16.  He had not spoken to the bank about the possibility of a guarantee by the defendant prior to the time when he spoke to the defendant about it: p 2-16.  There had been he said some family history about such an arrangement, because his wife’s parents had given a guarantee backed by a security over their property, to fund some renovations they had undertaken on their house: p 2-18.  He said that he did not believe a bank would accept his mother as a guarantor without collateral behind her anyway, but said that that had not been discussed between them: p 2-18.  Given his belief that his mother had to have some collateral for any guarantee to be accepted, it is difficult to accept that the idea of collateral came from her. 
  1. [40]
    Subsequently there was a conversation between him and the plaintiff, but all he said the plaintiff said in that conversation was that it was not as easy as that, the house was still in the estate, and he should talk to the accountant. He denied that he had asked for the property to be transferred into his name.[18]  He subsequently had a conversation with the accountant, but the content of that conversation cannot be admissible and was not led in evidence.  He gave the sequence of events as a conversation between himself and the defendant, later that day a conversation between himself and the plaintiff, and then a phone call between himself and the accountant: p 2-18. 
  1. [41]
    The defendant’s son also gave evidence of a conversation with the plaintiff later when they met for coffee, about a proposal put by the plaintiff for the property to be redeveloped, which involved an offer to buy out the defendant’s share, and some sort of profit sharing in relation to the development: p 2-14.[19]  There was evidence from the plaintiff that there had been such a proposal put forward by him, which on his account guaranteed a minimum payment to the defendant, but there was no suggestion that any agreement had been reached about such a proposal, or indeed any other proposal.  There is in my view nothing in the making of this offer, if it were made, which is inconsistent with the plaintiff’s case about the existence of the agreement between him and the defendant in relation to the distribution of property under the will, nor is there anything particularly adverse to the plaintiff’s credit.  Given that at this stage the relationship between the parties broke down, the fact that such a proposal was made, or the details of it, are of no consequence.  Accordingly it is unnecessary to resolve any conflict between the plaintiff and this witness. 

Conclusion

  1. [42]
    It then becomes a question of what relief is appropriate. The counterclaim is dismissed. There should be a declaration that the plaintiff holds the land on trust for himself and the defendant as tenants in common in equal shares. In circumstances where the beneficial interest is held in that way, an order can be made for the appointment of trustees to sell the land and divide the proceeds. Given that the relationship between the plaintiff and the defendant has broken down, it would not in my view be appropriate for the plaintiff in his capacity as trustee to undertake the sale. However, I am prepared to hear the parties further as to the appropriate relief consequent upon the declaration that I make, and on the question of costs, though I assume that they will follow the event.

Footnotes

[1]Plaintiff p 9.  The defendant claimed he received the proceeds, but did not know that other than by hearsay: p 85. 

[2]The defendant also said that the decision to rent the house was something agreed between them: p 72. 

[3]Plaintiff p 16; Exhibit 1 Vol 2 pp 401, 402.

[4]These were the documents at Exhibit 1 Vol 2 pp 401, 402.

[5]Exhibit 1 Vol 2 p 4.

[6]Exhibit 1 Vol 2 p 6.

[7]Exhibit 1 Vol 2 p 3.

[8]Exhibit 1 Vol 2 p 2.

[9]Exhibit 1 vol 2 p 4. 

[10]That interest was held to be a chose in action which had vested in the Official Receiver: p 314.  The effect of the agreement in this case was to vary the content of that chose in action.  Her right would be subject to the terms of any order made under the Succession Act: p 326. 

[11]Pipikos v Trayans (2018) 92 ALJR 880. 

[12]There is no evidence of any request for the other half of the net rent prior to the dispute arising between the parties recently. 

[13]Plaintiff p 11. 

[14]Such applications are frequently referred to by non-lawyers (and occasionally by lawyers) as challenging a will. 

[15]I appreciate of course that that does not reflect the way in which the onus lies under the statute, but it reflects a pragmatic approach to the existence of such an application. 

[16]This approach is supported by the discussion in Cheshire and Fifoot, op cit, para 4.28. 

[17]He said that at about that time his company had won a big contract, so additional finance would have been helpful: p 2-16. 

[18]F Cartella p 2-12.  This is what the plaintiff said: p 12. 

[19]F Cartella p 2-14.  Presumably meeting the plaintiff for coffee occurred subsequently.  The plaintiff’s account of this conversation, which was just a proposal, was similar: p 12. 

Close

Editorial Notes

  • Published Case Name:

    Cartella v Cartella

  • Shortened Case Name:

    Cartella v Cartella

  • MNC:

    [2019] QDC 246

  • Court:

    QDC

  • Judge(s):

    McGill SC DCJ

  • Date:

    05 Dec 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
Help

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.