DISTRICT COURT OF QUEENSLAND

INTRODUCTION

1. [1]
   On 29 January 2004, the Plaintiffs withdrew $170,007.50 from their joint account, leaving a balance of only $9,363.85^[1].  A bank cheque for $170,000.00 was drawn and ultimately deposited into an account of the male defendant^[2].  The proceeds were subsequently spent, principally on the purchase and improvement of a boat bought in the Defendants’ names.  The parties are in dispute as to the purpose for which the money was paid and for whose benefit it was received.  The parties did not commit any agreement to writing.

2. [2]
   The female Plaintiff (Barbara) is the natural mother of the male Defendant (Antoyn). The male Plaintiff (John) is his adoptive father. The female Defendant (Caryn) is the wife of Antoyn. The Plaintiffs were living in the Defendants’ home at the time of payment. Each of them previously lived in New Zealand. The Defendants had relocated to the Gold Coast some time earlier. Antoyn’s brother, Justin, was also living on the Gold Coast. In late 2003, Barbara visited the Defendants, at a time when she and John were experiencing some marital difficulties. Subsequently John and Barbara decided to sell their home (and some chattels) in New Zealand and relocate to the Gold Coast, where they could be closer to their children and grandchildren.

3. [3]
   After arriving in December 2003 John and Barbara resided with the Defendants on the basis that they met a share of household expenses. From their financial resources, which primarily consisted of the proceeds of the sale of their home in New Zealand, John purchased a van from Antoyn and the $170,000 payment was made. This left them with little in the way of money or assets, except for the van and some chattels which they had brought from New Zealand.

4. [4]
   The Plaintiffs’ evidence is to the effect that the money was paid pursuant to an arrangement with the Defendants whereby they would “put the money into” the Defendants’ house and the Defendants would build an extension to provide the Plaintiffs with a place to live on a permanent basis. They were also promised a half share of the property.

5. [5]
   The Defendants’ evidence is that the moneys were received by Antoyn, on behalf of he and his brother Justin, as an unconditional gift to spend as they pleased.

6. [6]
   Resolution of the factual contest involves an assessment of the credibility and reliability of the witnesses. I have had regard not only to the content of their evidence, but the way in which it was given.

7. [7]
   A few weeks after the boat purchase, there was a family disagreement and the Plaintiffs were asked to leave the house. Their evidence, which is disputed, is that they were initially promised the return of their funds by the Friday and subsequently promised the money once the house was sold. The house has not been sold. The house continues to be the family home of the Defendants. No money has been returned to the Plaintiffs. The Plaintiffs now live with one of John’s daughters from a previous marriage, whose family now supports them.

THE PLAINTIFFS’ EVIDENCE

8. [8]
   The Plaintiffs’ version of events is a likely one and I found the evidence called to support that version, particularly the evidence of John, persuasive.

9. [9]
   John’s evidence was to the effect that: -

• The arrangement in relation to $170,000 was arrived at in a series of meetings between the Plaintiffs and Defendants^[3].

• Antoyn had said words to the effect^[4]: -

“look, if you put your money into our house we can build upstairs and you can own half the house and by putting upstairs you can have your own bedroom, you would have your own ensuite and a little lounge.”

• The Plaintiffs, who had not been looking for a half interest in the house, said that the offer was generous, but Antoyn replied “it’s still half share of the house”^[5].

• The Plaintiffs “just accepted it”^[6].

• In the course of the discussion which led to the payment of the money, Antoyn had said words to the effect “the moneys always there.  If you want it out we can get it out anytime for you”, which John understood as indicating, that if he needed some money for a particular purpose, say a new motor for the van, money could be obtained through the mortgage^[7].
• The parties instructed a solicitor to prepare wills, although John never signed his^[8].  The instruction to the solicitor was that, in the event of both Plaintiffs dying, the beneficiaries would be Antoyn, Justin, John’s natural daughter and the grandchildren.  Justin was to get less than Antoyn, because Justin had failed to repay moneys lent to him^[9].  Barbara subsequently explained that to Justin^[10]. 

• Both Barbara and the solicitor had spoken of the arrangement with respect to the money invested in the house being put in writing, but Antoyn responded to Barbara, “Look, it will cost $5000.  You haven’t got it to waste.  You can trust me, mum.  I’m not going to rip you off”^[11].

• When the boat was subsequently purchased, he had suspicions that the moneys were coming from the $170,000, but he did not raise the issue^[12].

• The Plaintiffs were ultimately asked to leave the house both in the course of and subsequent to, a family argument.

• The Plaintiffs did not want to leave the house until they had recovered their money.  Antoyn told them they would have it on the Friday, but that did not happen.  On the Saturday he said he was still waiting to hear from the bank.  Subsequently he told them he was putting the house on the market, but that did not eventuate and the Plaintiffs were never reimbursed any of the $170,000^[13].

• He had been aware of the Defendants’ bankruptcy and trouble with the police.  He knew the house was mortgaged, but did not know how much the house was worth or what it was mortgaged for^[14].

• The money was looked at as a way of helping Antoyn, by paying off his house, while helping the Plaintiffs out by building on top of the house^[15].  The offer of a half interest on the house was a generous one.  The Plaintiffs were not looking for a half share of the house; all they wanted was their money back^[16].

10. [10]
    The Plaintiffs’ evidence was that the money was to be put into the house. On occasions it was said that the money was, at least in part, for the proposed extensions and, on other occasions it was said to be intended to reduce or pay off the mortgage. This does not raise a concern about credibility or reliability. It is likely that both explanations are, to an extent, correct. The Plaintiffs did not believe that the extensions would cost $170,000. Clearly it would also take some time to construct them. The likely common understanding was that the moneys would allow the mortgage to be reduced, in the first instance, and the extensions to be subsequently funded.

11. [11]
    John struck me as a witness who was credible and generally reliable. He withstood lengthy cross-examination, contained in some 40 pages of transcript. Variations in the way in which matters were recounted were, I am satisfied, in the course of attempts of honest recollection, and did not diminish my confidence in his evidence overall. His evidence was given in a manner and with a demeanour which suggested that he was a witness of truth.

12. [12]
    Counsel for the Defendants sought to diminish the credibility of John by pointing to what counsel referred to as different versions of the transaction. The claim, as initially pleaded, was on the basis of an agreement to purchase a one half interest of the property. The Plaintiffs’ counsel, in the course of the trial, confirmed that the moneys were not advanced by way of a loan. Counsel for the Defendants contrasted that with John’s evidence that Antoyn had said words to the effect that the “money’s always there. If you want it out, we can get it out at anytime for you”, and that Antoyn “looked at it as the loan to pay of his house…” as well as John’s rejection, at one point of his evidence^[17], of the proposition that he contended that the Plaintiffs had purchased a half interest in the house.

13. [13]
    Read in context, I do not consider that those passages detract from the credibility or reliability of John’s evidence. His evidence was to the effect that the Plaintiffs never sought a half interest in the property. Rather, that was something offered by the Defendants which the Plaintiffs just accepted. He said^[18] “we didn’t want the half share of the house originally.  That was their idea so we just went along with it”.  His answer of “no, we did neither” to the proposition that “you’re saying you bought half interest in the house.  I’m saying you gave them the money” came in the context of his evidence that the Plaintiffs did not, at any stage, say “here’s $170,000 we want to buy a half share in your house”^[19].  He went on to confirm that a half interest had been offered, if the Plaintiffs put $170,000 into the house, but explained that “deep down” the Plaintiffs never felt they owned a half share of a property, which was thought to be worth more than twice of what they were contributing^[20].  When things “erupted” what they wanted was their money back^[21].  As he explained^[22]: -

“we gave them $170,000 under the understanding of what they said with it that deeply we never knew – we never, ever believed we owned half of that house because we couldn’t rip our family off by turning around and saying, “allright sell the place up, we want half of the value of the house with it.  We couldn’t do that…”

14. [14]
    At least from John’s perspective, the attraction of the arrangement was that an extension would be built in which he and Barbara Simpson could live with the Defendants and their family on a permanent basis. The offer of a half interest in the property was not something which the Plaintiffs had proposed nor was it something which he felt comfortable about seeking to enforce when matters “erupted”. None of that causes me to reject his version of what was discussed prior to the money being advanced.

15. [15]
    Barbara gave evidence, to similar effect, with respect to the arrangements under which the $170,000 was paid. She said^[23]: -

“and Antoyn suggested to John and I - and Caryn was present too – that why don’t we put our money into their home, and it was at their suggestion that you could own half the home, and we’d live together as a family and they would build accommodation upstairs for us and we would all eat and live downstairs and be a family and because Antoyn says that’s how families get on”.

16. [16]
    Her evidence^[24] was that: -

• The matter was discussed two or three times

• She was more hesitant than her husband, but finally agreed

• It was the Defendants who suggested that the Plaintiffs own half the house

• She was concerned that things be done “legally” and suggested that perhaps that all the parties’ names should be on the title.

• Antoyn agreed to make an inquiry about the costs of changing the title.

• Antoyn subsequently said that it would cost approximately $5000, that they couldn’t afford to pay it and “well mum, you can trust me, I’m honest. I wouldn’t rip you off”

• While the $170,000 was being put into the Defendant’s home, it was agreed that, upon the Plaintiffs’ deaths, Antoyn would fund the bequests to other beneficiaries of the will^[25].

17. [17]
    Barbara otherwise gave evidence generally to similar effect to her husband including with respect to the preparation of the wills and circumstances under which they came to leave the house. She did not volunteer the same reluctance to claim a half interest in the property.

18. [18]
    Unlike her husband, Barbara attended meetings between the Defendants and their accountant, Mr Lynch. Barbara had diary entries concerning an attendance on the accountant with Antoyn on 4 February and with Antoyn and Caryn on 10 February. She could not recall a Mr Morrison attending^[26].  On her evidence, there was a discussion about the $170,000.  The accountant asked her whether it was a gift or a loan.  She explained that it was put into their home, with the provision that she and her husband would have somewhere to live^[27].  The accountant advised her of tax benefits if the moneys were characterised and documented as a business loan^[28], but that she left things as they were.

19. [19]
    In giving evidence, Barbara was, at times, somewhat emotional. That is understandable, considering that she was giving evidence against her natural son and his wife in a dispute over the terms pursuant to which substantially all of the Plaintiffs’ money had been paid into her son’s account and then spent on a boat shortly prior to the exclusion of her and John from the family home.

20. [20]
    Counsel for the Defendants attacked Barbara’s credibility, particularly on the basis of entries in her diary, which was produced after the first day of the trial. The entries which were said to cause greatest concern are those on the 29 January 2004, the day the money was paid. The entries for that day include an entry “Jon signed will” which is crossed out and another entry which has the word “paid” followed by an amount which would appear to be “$17900” crossed out followed by “$179,000” followed by the words “into Antoyns acc towards their home”. It was submitted that there was no satisfactory explanation as to why Barbara would initially write “Jon signed will” when, in fact, her husband had never signed his will. Similarly, there was, it was submitted, no explanation for the erroneous reference to “$179,000” rather than the amount of $170,000.

21. [21]
    Barbara’s explanation of the entry concerning the signing of the will was that it was made because that was the date that her husband was supposed to sign his will, but the entry was crossed out when he did not do so^[29].  Counsel for the Defendants pointed out that she had earlier given evidence that “I didn’t write in things that were coming up”, although that evidence had been qualified by the statement “unless it was an appointment or something like that”^[30].

22. [22]
    Insofar as the entry concerning the “$179,000” is concerned, Barbara’s explanation was that what looks like a “9” might in fact be a zero with a comma. That is less than convincing, since there is otherwise a comma appearing before the zeros. I have taken that into account, but I am ultimately not prepared to conclude that the entries were fabricated.

23. [23]
    Counsel for the Defendants also sought to make something of the fact that there was no entry in the diary which recorded the discussions which the Plaintiffs say took place leading up to the money being advanced, but I am not prepared to draw an adverse inference against Barbara on that account.

24. [24]
    The Plaintiffs called two further witnesses, the solicitor, Mr Darvall, and Antoyn Simpson’s natural father, Mr Ellis. There was no attack on the credibility of either witness and I accept each was giving evidence honestly and to the best of their recollection.

25. [25]
    Mr Ellis’s evidence was to the effect that, in mid 2004, he was told by Barbara Simpson words to the effect that Antoyn had taken $170,000 of theirs, that he had not returned it, and that he had thrown them out of the house^[31].  She said she had given Antoyn $170,000 because “they were going to build an apartment on top of the house” and “they were going to eventually sign the house up and get half the house so she could protect her other son as well”^[32].  She was “a very distraught woman who was very upset with her children, daughter-in-law and grandchildren being taken away from her”^[33].  Mr Ellis, who thought that the money should be given back, spoke to Antoyn and said words to the effect “now what about the money that you have taken from your mother and father – you know it’s theirs, you should give it back, it’s stealing”.  Antoyn replied to the effect that he had it and would give it back, but he had a problem with John^[34].

26. [26]
    Mr Darvall gave evidence that, prior to acting for the Plaintiffs^[35], he received a telephone call from one of the Simpsons^[36] in early 2004 inquiring about the amount of stamp duty that would be payable on transfer of part of the property^[37].  He confirmed that he subsequently came to meet with the Plaintiffs in respect of the preparation of their wills.  He had a poor recollection of those meetings, but he did recall that he was aware that there was a contribution made towards the Defendants and that there was to be some way of “readdressing that in the will^[38]” (although he could not recall whether it involved a repayment or whether it was a contribution to beneficiaries at some later date).

THE DEFENDANTS’ EVIDENCE

27. [27]
    The Defendants’ case is that the money was paid by way of an unconditional gift to Antoyn and his brother Justin. While there was consideration of extensions, the Defendants claim that was to accommodate their son, in the context of Antoyn and Caryn expecting another baby.

28. [28]
    The moneys contributed by the Plaintiffs towards rates, electricity and the like were, it was said, just their share of the expenses. Some of the contributions were made by being credited against moneys which Antoyn owed to Barbara.

29. [29]
    The gift was to the “boys” on the basis that it would ultimately be theirs anyway (presumably upon the death of the Plaintiffs). The subject was first raised, it was said, by Barbara in the meeting with the Defendants’ accountant. Subsequently, at a family dinner, the gift was announced, and it was explained that Justin would be receiving less than Antoyn; to take account of earlier loans he had not repaid. Both the meeting with the accountant and the subsequent dinner were said to have taken place prior to the payment of money on 29 January. The Defendants gave evidence and called Justin, the accountant, Mr Lynch, and a Mr Morrison, who allegedly witnessed part of the meeting with Mr Lynch.

30. [30]
    I was not particularly impressed with any of the witnesses in the Defendants’ case and I was particularly unimpressed with the evidence of Antoyn, both with respect to its content and his demeanour, particularly under cross-examination.

31. [31]
    One of the matters in issue between the parties was whether, as the Defendants would have it, a “gift” of $170,000 was first raised, in prospect, in the meeting with Mr Lynch witnessed by Mr Morrison and then announced, again in prospect, at a family dinner or, as the Plaintiffs would have it, the discussions, between the Plaintiffs and the Defendants concerning a contribution to their home, were had and the money paid prior to the meeting with Mr Lynch. Antoyn’s evidence did not withstand cross-examination on that issue.

32. [32]
    Having given evidence in chief that the payment of $170,000 was first mentioned, in prospect, by his mother towards the end of a meeting with Mr Lynch, also attended by Caryn, in the first couple of weeks of January^[39], Antoyn, in the course of cross-examination, first sought to avoid questions about whether the money had been paid by that stage^[40], before shifting ground to say that the money had been received by the time of the family dinner^[41].  It having been suggested to him that he had been “caught out”, Antoyn reverted to saying that both the meeting with Mr Lynch and the family meeting occurred prior to the payment of the money^[42].  Antoyn’s shifting evidence on this issue, and my observation of his demeanour under cross-examination affected my overall view of his credibility. 

33. [33]
    Antoyn, Caryn and Justin were cross-examined about their criminal records and financial troubles. Antoyn was convicted of burglary, but that was about 15 years ago. Caryn has convictions for fraudulently obtaining and presenting cheques. Justin acknowledged that his life had been “riddled with problems with the police”, leading to him having been incarcerated twice in New Zealand for burglary. He has also had a problem with drugs since the age of 14 and incurred debts to Barbara (who has financially assisted him) which have not been repaid. The Defendants went into bankruptcy in New Zealand prior to moving to the Gold Coast. The evidence suggests that they purchased assets in Australia before being discharged from bankruptcy. My assessment of the credibility and reliability of the evidence of each of the witnesses and my ultimate findings of fact would not, however, have altered even had such evidence not been adduced.

34. [34]
    I do not accept that the moneys were, in part, a gift to Justin. I note: -

• No part of the money was paid to, or into an account of, Justin.

• The money had, I am satisfied, already been paid prior to the time the Defendants say the Plaintiffs announced a gift, in prospect, at a family dinner attended by Justin.

• The money was spent on the purchase and improvements of a boat purchased in the name of the Defendants ^[43], not Justin.

• The moneys realised on the eventual sale of the boat were, in large measure, spent for the benefit of Antoyn and Caryn. They were put into the Defendants’ business ($20,000) for which Justin worked but did not own and spent on legal fees ($40,000 plus) presumably in defence of the subject action against Antoyn and Caryn, to which Justin is not a party. Indeed Antoyn’s evidence was that the boat had to be sold to pay legal costs and that “we’ve been using it (the proceeds) to pay for legal costs” and that there is nothing left of the proceeds^[44] Justin claims to have spent approximately $7,500 on the purchase of a second-hand car, but otherwise appears not to have received anything from what would have been his share of the proceeds^[45].

35. [35]
    The Defendants claimed that the money was not paid directly to Justin because he did not have a bank account (although John’s evidence was that Justin had a “card for money”^[46] and Barbara said she believed him to have a Visa account^[47]).  Further, it was said that Caryn’s name was used on the agreement to purchase the boat, because she had a licence, but that does not satisfactorily explain why Justin was not also mentioned.  In any event, on the whole of the evidence, I am satisfied, on the balance of probabilities, that the money was paid for the benefit of the Defendants rather than for the benefit of Antoyn and Justin.

36. [36]
    Insofar as the payment occurring prior to the alleged announcement of the gift, in prospect, to Justin, I am satisfied that the money was paid prior to the meeting with Mr Lynch (which, on the Defendants’ case, preceded the family dinner where the “gift” was supposedly announced).

37. [37]
    Mr Lynch’s evidence was that he had a record of scheduled meetings on 4 and 10 February^[48].  While Mr Lynch would sometimes have unscheduled meetings with his clients, the evidence of the scheduled meetings sits well with Barbara’s diary entries as well as the entries on the desk calendar^[49].  I also note that, in a letter to the Defendants’ solicitors^[50], Mr Lynch had spoken of “a scheduled meeting”.

38. [38]
    I also note that Mr Lynch, in a number of his answers, seemed to indicate that the money had already been paid. For example he said “it transpired that Mrs Simpson had lent…”^[51], that “Mrs Simpson said she had given the children 170 grand”^[52], and that Mrs Simpson had said “we gave the money to the kids…”  Antoyn’s shifting evidence on this topic has already been noted.

39. [39]
    In the course of his evidence, Mr Lynch produced his notes of the meeting. Those notes had, in part, been made on the reverse side of ASIC searches dated 5 February 2004, a fact which was discovered upon my perusal of the original notes following completion of the evidence (the Barristers had apparently been working from photocopies of the front of the pages only).

40. [40]
    On the whole of the evidence, I am satisfied that the meeting with Mr Lynch occurred on 10 February, by which time the money had already been advanced. On the Defendants’ case, Justin was not told of the so-called “gift” until after this meeting. Having been given an opportunity to make further submissions, upon discovery of the date on the reverse side of the accountant’s notes, Counsel for the Defendants submitted that I may find that his clients were mistaken about the date of the meeting with Mr Lynch, mistaken that it was the first time the “gift” was discussed and mistaken about its relativity with the family meeting at which the gift was supposedly announced, but he urged me to accept that the family meeting did occur prior to the payment and that the gift had then been announced in prospect. I do not accept that is what happened. I am satisfied that the only relevant discussion with Justin was that attested to by the Plaintiffs, concerning the content of their wills.

41. [41]
    I am satisfied that the money was not paid as an unconditional gift for the Defendants to spend as they pleased.

42. [42]
    The Plaintiffs’ case has a level of consistency with the evidence of Mr Ellis and Mr Darvall. There is no explanation on the Defendants’ case as to why an enquiry would have been made of Mr Darvall about stamp duty or why, in preparing wills, Mr Darvall would have been instructed to re-address a contribution made to the Defendants (rather than Antoyn and Justin). My acceptance of the Plaintiffs’ evidence however, is not dependant upon the evidence of Mr Ellis and Mr Darvall.

43. [43]
    The Plaintiffs’ version of events is a likely one. The Plaintiffs were of mature age, but not elderly. They had just moved to a new country, and were not entitled to claim social security for two years^[53].  John had obtained some employment, but the couple were not wealthy.  It is somewhat unlikely, in the circumstances, that they would gift, to the Defendants, substantially all of their money, leaving themselves with no secure place of permanent residence or money to fall back on.

44. [44]
    Parents are, of course, known to financially assist their children, even to the point of self-sacrificing over-generosity. Counsel for the Defendants called in aid the presumption of advancement, which applies where a parent advances property, whether real or personal, to a son or daughter (although he called it in aid for Antoyn and Justin, rather than Caryn). The circumstances of this case however, suggest that was less likely, and any otherwise available presumption has, I find, been rebutted on the evidence of the Plaintiffs.

45. [45]
    The Plaintiffs had given financial assistance to both Antoyn and his brother over the years, but that had been in relation to relatively modest amounts of money, which had been advanced by way of loans. The Defendants and the witnesses they called, said that Barbara had explained the “gift” on the basis that the “boys” would be getting the money anyway, presumably upon the Plaintiffs’ deaths. It would seem somewhat unlikely however, in the circumstances, that the gift was simply a way of distributing what would otherwise be left by way of a will, given the age and circumstances of the Plaintiffs. Further, as I have already found, the money was not distributed amongst the family, but was paid to the benefit of Antoyn and Caryn only, to the exclusion of not only Justin but of the grandchildren, and John’s natural daughter.

46. [46]
    The Defendants placed reliance upon the evidence of Mr Lynch and Mr Morrison as to what Barbara had said in the course the meeting. Mr Lynch’s evidence was that Barbara had said: -

“We gave the money to the kids they may as well have it now than later.  It’s theirs anyway”^[54].

Mr Lynch took Barbara to be referring to the Defendants.  He did not know of Justin’s existence.

47. [47]
    Mr Lynch’s evidence was also to the effect that Barbara was “forceful”, “adamant” and “certain” on the subject and had said “I don’t care about the money”^[55], a comment which, I am satisfied, Barbara is unlikely to have made.  Mr Morrison, then a Justice of the Peace with an office in Ashmore Plaza and, more recently, an Attorney practising in Indonesia, gave evidence that he was in attendance for part of the meeting, that Barbara had said that she wanted to give the money to the “boys”, and that she became more agitated the more Mr Lynch tried to convince her to document the transaction as a “commercial transaction”. 

48. [48]
    Mr Lynch produced his notes of the meeting. The notes are in diagrammatic form, and require interpretation for their understanding. On the first page of the note appears the word “house” inside a triangle. The triangle was said, by Mr Lynch, to represent a family trust into which the property would be put so as to protect it in the event of Antoyn being sued. Nearby there is a figure of “170,000” contained within a box with an arrow pointing from that box towards the triangle. Elsewhere on the same page is another diagram of a house with a figure of “17,000” with an arrow pointing towards that house.

In his evidence in chief, Mr Lynch said of the $170,000^[56] “well, apparently it was – given to the children to put off their home…so we need to protect Mrs Simpson’s money, and the childrens’ home”^[57] and, in reference to the figure “17,000”, “that should be 170,000 that’s the money that was given to them to take off their mortgage”^[58]. That evidence sits reasonably well with Barbara’s evidence that she had told Mr Lynch that Antoyn had been given the money to put into the house^[59].  It appears that Mr Lynch was keen for the transaction to be documented as if it had been a business loan, but that was not something that Barbara agreed to. 

49. [49]
    Mr Lynch’s cross-examination extended over lunch on the fourth day of the trial. After lunch he was questioned about those parts of his notes which seem to associate $170,000 with the house. In response to a suggestion that his notes show the $170,000 going into either the house or a future trust in which the house would be held, he responded “the $170,000 possibly is just there, - okay – cause someone has mentioned the $170,000 at that time just to throw a snapper into my works”^[60].  He then wrongly denied having said anything, in his evidence in chief about $170,000 reducing the mortgage although, he did accept that he had referred to the money as going into the house^[61].

50. [50]
    Mr Lynch gave evidence that he called Mr Morrison into the meeting. Barbara Simpson cannot recall Mr Morrison being present at all. The letter which Mr Lynch had sent to the Defendants’ solicitors on 13 August 2004, setting out his recollection of the meeting, made no mention of Mr Morrison either. It was put to both Mr Lynch^[62] and Mr Morrison^[63] that the latter was not even at the meeting.

51. [51]
    The basis for Mr Morrison’s alleged involvement is not entirely clear. When asked in cross-examination, whether he had asked Barbara to document the “gift”, as he had been urging her to document it as a loan, Mr Lynch said: -

“No sir, that’s not – that’s why I called Peter Morrison in, I don’t do legal work”^[64].

52. [52]
    Mr Morrison, who was not and is not a qualified lawyer in Australia^[65], was however, adamant that he was not attending in an advisory capacity^[66].  He said that he was there to prepare any documentation that might have been needed, but said that he did not prepare any document evidencing the alleged “gift” because that was for a solicitor^[67].  Curiously however, he would have been quite happy to present a loan agreement to evidence a commercial arrangement.

53. [53]
    Mr Morrison, who gave evidence without the benefit of diary notes, claimed to recall the meeting because it was unusual. He claimed that Barbara said that she wanted to give money to “the boys”. As I have already found, the money was not paid for the benefit of the “boys” but rather to the Defendants. Justin was not at the meeting and Mr Lynch was unaware of his existence. Mr Lynch was urging the money to be documented as a business loan to the Defendants. It is unlikely Barbara referred to the “boys”. Further, it was Mr Morrison’s impression that the discussion was about a gift in prospect. I have already found that the meeting post dated the payment of the moneys. It is unlikely that the $170,000 was spoken of as a gift in prospect. Counsel for the Plaintiffs pointed to Mr Morrison’s evidence that he attended his office on Mondays and Wednesdays. 10 February, the day on which I have found the meeting with Mr Lynch occurred, was a Tuesday.

54. [54]
    Counsel for the Plaintiffs suggested that Mr Morrison was not even at the meeting and I am satisfied, on the balance of probabilities, that is so. In any event however, I reject the evidence to the effect that Barbara admitted that the moneys were a “gift” to the Defendants or to the “boys”.

CONCLUSION ON THE FACTS

55. [55]
    I am satisfied, on the whole of the evidence and on the balance of probabilities, that the moneys were paid on the basis attested to by the Plaintiffs. In particular the arrangement was that the Plaintiffs would put that money into the house (as explained earlier) and an extension would be built for the Plaintiffs to live in on a permanent basis. A half-interest in the property was promised, but the Plaintiffs were ultimately content to trust the Defendants not to “rip them off” rather than to then execute and register a transfer to confer a legal interest.

REMEDIES

56. [56]
    The Plaintiffs sought a diverse range of remedies including:

1. (1)
   A declaration that one undivided half share of the property is held on trust for them;

2. (2)
   An order that the Defendants execute and deliver to the Plaintiffs a conveyance of the property in such shares as the court considers appropriate;

3. (3)
   Further or alternatively, an order that the property be sold and the proceeds distributed according to the trust;

4. (4)
   Further or alternatively, damages for breach of contract or compensation in equity;

5. (5)
   Further or other relief in equity including an equitable charge and/or an order that the defendants pay the plaintiffs $170,000 together with compensation and interest;

6. (6)
   Further or alternatively, judgment for $170,000, being moneys had and received by the Defendants for and to the use of the Plaintiffs.

Counsel for the Defendants submitted that while the Defendants may have a moral obligation to repay the money, there was no remedy at law or in equity that this Court could grant in the circumstances.

57. [57]
    As counsel for the Defendants pointed out, no otherwise available action may be brought upon any contract for the sale or disposition of a one-half interest in the property, since there was no written memorandum or note of the contract^[68].  Further, neither the payment of the money, nor the Plaintiffs’ contribution towards household expenses during the time they were in residence, amounts to part performance, because such payments or contributions are equivocal and not, of and in themselves, indicative of a contract concerning the land.  Counsel for the Plaintiffs ultimately conceded that his clients could not succeed on the action insofar as it relied upon a contract for the purchase of an interest in the property.

58. [58]
    There are jurisdictional difficulties in considering relief, in equity, which would afford the Plaintiffs a one-half beneficial interest in the property, because the evidence does not establish that the value of such an interest is within the monetary limit of this Court’s jurisdiction. This was a matter raised with counsel for the Plaintiffs on the first day of trial. The only real evidence as to the value of the property was a valuation as at 17 June 2003, which ascribed a then value of $395,000, comprised of $250,000 for the land and $145,000 for the improvements. No subsequent valuation was tendered. I am not prepared to draw any conclusion from that dated valuation^[69].  Counsel for the Plaintiffs sought to rely on a subsequent qualified kerbside appraisal from a real estate agent, but I would not be prepared to make any finding as to value in reliance on that document.

59. [59]
    Counsel for the Defendants submitted that, the Plaintiffs having failed on their contractual claim, the Court could not grant any equitable relief. He relied, for that submission, on Marsh v Mackay [1943] Qd R 113.  It is difficult however, to reconcile the proposition advanced by counsel for the Defendants with more recent authority, including Riches v Hogben [1986] 1 Qd R 315 where the Plaintiff, who had sued his mother to enforce a contract, failed on that claim on the basis of s 59 of the Property Law Act, but succeeded on the basis of an equitable estoppel.  I consider that this Court can grant relief in equity notwithstanding that the contract claim fails.

60. [60]
    On the facts as found, the Plaintiffs acted to their detriment, by paying the $170,000, in the expectation and belief, created by the Defendants, that the money would be put into the house (as described earlier) and that the Defendants would extend the house to provide a place for the Plaintiffs to live on a permanent basis. The Plaintiffs were also promised a half interest in the house, but were ultimately prevailed upon to trust that they would not be “ripped off” rather than then insist on registration of a transfer.

61. [61]
    The Plaintiffs’ expectation has been defeated by the expenditure of the money for other purposes^[70], the eviction of the Plaintiffs (instead of carrying out extensions to provide them with a place to live on a permanent basis) and their denial that the Plaintiffs hold, or should be regarded as entitled to, any interest in the property.  In the circumstances, it would be unconscionable and inequitable for the Defendants to depart from the engendered expectations without obligation to the Plaintiffs^[71].

62. [62]
    In determining the appropriate remedy, it must be remembered that equity does not necessarily act to make good the expectation pursuant to which the detriment was suffered. The Court does what is required to avoid detriment to the party which relied upon the induced expectation^[72].  In this case, equity would be done between the parties, if the Defendants were to repay the Plaintiffs the sum of $170,000 plus interest.  Indeed repayment is what the Plaintiffs themselves first sought (and were promised) at the time they left the house upon the breakdown of relations. That is not to say that the moneys were intended to be a loan.  The remedy is not the enforcement of any relevant promise, but what is necessary, in the circumstances, to do equity between the parties.

63. [63]
    Counsel for the Defendants submitted that there were at least two obstacles to granting that relief. First, he submitted that there had been no “total failure of consideration”, since the Plaintiffs had remained in the house for a short time after payment was made. As I have found, the money was paid in the engendered expectation that it would be put into the house and an extension would be built to provide the Plaintiffs with accommodation on a permanent basis. The Plaintiffs were also promised an interest in the property but were prevailed upon to rely on trust that they would not be “ripped off” rather than register a legal interest. While, following payment, the Plaintiffs continued to reside with the Defendants as they had before, no doubt in anticipation of fulfilment of the engendered expectations, none were performed. In any event, the short occupation following payment would not prevent a conclusion that the Plaintiffs had suffered relevant detriment or that the remedy proposed is more than is necessary to do equity between the parties.

64. [64]
    Second, it was submitted that the Court ought not grant the relief indicated simply because other relief, to which the Plaintiffs might otherwise be entitled, is beyond jurisdiction. It is however, not a case of the Court giving an inappropriate remedy in lieu of an appropriate one which is beyond jurisdiction. As noted, equity does not necessarily make good the expectation pursuant to which the detriment was suffered. In this case equity can be done in the way indicated.

65. [65]
    Counsel for the Defendants also submitted that the Court is not in a position to know whether the objective value of the promise, if honoured, would have been or exceeded $170,000, but equity is concerned with the detriment. That the Plaintiff’s paid $170,000 on the basis of the engendered expectations is relevant.

66. [66]
    The Plaintiffs seek an order charging the property until payment of the judgment. Counsel for the Defendants, in opposing a charging order, pointed out that while the moneys might, on the Plaintiffs’ case, have been expected to be invested in the house and its improvement, the Plaintiffs’ funds had not ultimately been spent on the property. That, perhaps, is not fatal where there is sufficient connection with the property^[73] and the circumstances call for a charging order to do equity between the parties.  The approach to relief in this case would not be the grant of an interest in the property derived from expenditure on the property but rather, a security right in aid of the obligation to pay a sum of money and interest.  The difficulty however, is in identifying a sufficient factual basis for the conclusion that such an order is called for in order to do equity between the parties.

67. [67]
    Counsel for the Plaintiffs sought to rely on evidence of the Defendants’ criminal records and past bankruptcy to assert security was required, but the evidence fell short of establishing that a charge on the land is required in order to afford an adequate remedy^[74].  Ultimately I was left unpersuaded, on the evidence, that an equitable charge is called for in order to do equity between the parties.

68. [68]
    Counsel for the Defendants submitted, in his written submissions in reply, that the Court was not entitled to entertain a claim based on equitable estoppel, on the basis of the then state of the pleadings. At that point the pleadings had sought relevant relief and, in support thereof, had pleaded that the money was paid by reason of expectations and beliefs encouraged by the Defendants. Paragraphs 7(a) and 7(b) of the amended claim (and corresponding prayer in the Amended Statement of Claim) had the conjoint effect of making an explicit claim for a personal compensating order, coupled with the secondary equity of a security over the property.

69. [69]
    In their further amended defence, the Defendants had denied that the Plaintiffs held such expectations or beliefs or that the Defendants had encouraged them. It was alleged that the Defendants had acted in good faith in the receipt of the money and changed their positions by its expenditure. The elements to justify the intervention of equity were raised and disputed on the face of the pleadings and relevant relief was sought.

70. [70]
    Counsel for the Defendants however, pointed to the description of this area of law of equity as “equitable estoppel” and claimed that it should have been “specifically pleaded” in accordance with Rule 150. As the annotations to Rule 150 in “Civil Procedure Queensland” state, “It is not entirely clear what the requirement that the listed matters ‘must be specifically pleaded’ means”^[75].  It is perhaps unnecessary to do more than had been done in the amended pleading.  Nevertheless, assuming that, by reason of Rule 150, the Plaintiffs ought to have used the word “estoppel” in the pleading, that can be cured by way of amendment, which I gave the Plaintiff leave to make once the point had been raised.

71. [71]
    The Defendants’ counterclaimed for an order that a caveat lodged by the Plaintiffs and claiming an estate in fee simple in the whole of the land as beneficial owners, be removed. The Land Title Act provides that such applications may be made to the Supreme Court.  This Court would not ordinarily have jurisdiction to hear such an application. 

72. [72]
    There is at least one unreported decision of this Court (Ball v Pacimar Trading Pty Ltd [2004] QDC 556) in which it has been said that this Court can use the ancillary jurisdiction under s 69 of the District Court of Queensland Act to make an order about a caveat.  I am not sure whether that is right (cf Sherriff v Dudley [2003] SASC 324).  Counsel for the Defendants relied on s 86 of the District Court Queensland Act, and the Plaintiffs’ failure to make an application for the proceedings to be transferred to the Supreme Court, in order to confer jurisdiction.  I was informed that the diligent research of Counsel had failed to find any relevant authority on the point. 

73. [73]
    The words “notwithstanding any enactment to the contrary” in s 86(5) suggest that the section is intended to operate to confer jurisdiction with respect to matters otherwise beyond this Court’s jurisdiction, even in circumstances where, as here, the matter is otherwise beyond jurisdiction by reason of the provisions of another Act. I consider that this court has jurisdiction to consider the counter-claim.

74. [74]
    On the basis of my findings in relation to the facts and the appropriate remedy, the caveat ought to be removed.

75. [75]
    Accordingly I give judgment for the Plaintiffs for $170,000, together with interest at the rate of 9% for 21 months^[76] in the amount of $26,775.  I order the caveat be removed.