Quinn v Quinn[2016] QDC 337

DISTRICT COURT OF QUEENSLAND

1. [1]
   The plaintiff was born on 28 February 1929. He married on 24 November 1950 and had six children from this union. His wife passed away on 22 January 2010. At the time of her death he was the registered owner of Lot 1 on SP219243, Certificate of Title 50730288, a property known as 35 Lakeview Drive, Esk. The property comprised of a house sitting on four acres of lawn and hedges.

2. [2]
   About 8 months after his wife died the plaintiff subdivided the block into 2 lots and sold a one acre block. This was unrelated to this action. In or about June 2011 the plaintiff engaged a land surveyor to prepare a Plan of Survey for a further subdivision of the property at 35 Lakeview Drive Esk. That Plan of Survey was registered in or about November 2011, it having been subdivided into two lots, house and land located at 35 Lakeview Drive, Esk sitting on two acres of land and a vacant block of land of one acre on Lot 2, SP245925, County of Cavendish, Parish of Esk, Title Reference 50867946.

3. [3]
   The plaintiff was a builder by trade and had bought and sold houses over the years. He had subdivided two blocks of the original five acres of property and sold them to neighbours. He was familiar with subdivisions and property sales and as such regarded himself as experienced in property dealings and the defendant as lacking in experience.^[1]There is an allegation on behalf of the plaintiff that the defendant should have told the plaintiff to consult with a solicitor. I find having watched the plaintiff give evidence and examined his interviews with his solicitor that it is extremely unlikely that even if the defendant had advised the plaintiff to consult with a solicitor that he would have done so.

4. [4]
   Around 19 December 2011 the plaintiff transferred the vacant land newly created to the defendant. This property is the subject of this action. The plaintiff says that the property was transferred as a result of the defendant’s unconscionable conduct.

5. [5]
   The particulars of the unconscionable conduct are:

1. (a)
   the defendant’s lodgement of the Transfer for registration by the Registrar of Titles was unconscionable; and

2. (b)
   it is unconscionable for the defendant to retain the benefit of the transfer; and

3. (c)
   the Transfer is voidable at the election of the plaintiff.

6. [6]
   The essence of the plaintiff’s claim can be found at paragraph 10 of the plaintiff’s Statement of Claim which states:

“From in or about 2007, the defendant repeatedly insisted that the Plaintiff effect the subdivision and transfer all right, title and interest in the property to the defendant.

Particulars of the defendant’s insistence the plaintiff transfer the property

1. (a)
   the defendant said to the plaintiff in or about 2007 that she “would like have that block of land” referring to the land which, when subsequently subdivided, became the property.

2. (b)
   from 2007 onwards, the defendant regularly, at intervals of approximately 6-12 months, asked the plaintiff to subdivide his property at 35 Lakeview Drive, Esk in the State of Queensland and for portion of the subdivided property to be given to the Defendant. 

3. (c)
   the plaintiff refused the defendant’s insistence that she be given a portion of his property at 35 Lakeview Drive, Esk in the State of Queensland each time she asked from 2007 to 2010.

4. (d)
   at various times from 2007 to 2011, the Defendant said to the Plaintiff that, if the Plaintiff would transfer the land to the Defendant, then the Defendant would provide assistance to the Plaintiff by doing household chores such as moving lawns, maintaining hedges, cooking and cleaning.” (“The defendant’s promise of assistance”).

7. [7]
   The plaintiff further claims that the defendant knew that at the time of the transfer the plaintiff was in a situation of special disadvantage by the matters pleaded at paragraph 17 of the Statement of Claim, namely:

“At the time of agreeing to the transfer and effecting the transfer, the plaintiff was at a special disadvantage vis a vis the defendant in that his condition or circumstances were such that it seriously affected his ability to make a judgment which was to his own best interests (the special disadvantage) by reason of:

1. (a)
   the constant pressure of the defendant over a period of time requesting that the subject real property owned by the plaintiff were subject to a subdivision and the property be transferred to her;

2. (b)
   the plaintiff’s frail condition and poor health;

3. (c)
   the defendant’s promise of assistance;

4. (d)
   the fact that the plaintiff had limited social contact with persons other than the defendant in the lead up to the signing of the transfer.”

8. [8]
   There is little doubt that the plaintiff was in fact lonely and in need of some assistance after his wife passed away. Although he has six children he does not seem to be particularly close with any of them and at the time that his wife passed away he was not in contact with two of the children at all, had limited contact with Stephen Quinn who gave evidence in this court and some contact with Stuart and Andrea Quinn, principally by phone. The only child who was visiting him regularly was Varina Quinn, the defendant.

9. [9]
   It seems to be common ground that he was very upset when his wife died and that his only other social contact was with the local Bowls Club with which he was involved. It was also common ground that the defendant would visit the plaintiff at his house about once a fortnight after his wife died and that seems to have continued at least until around March 2013.

10. [10]
    The plaintiff claims that there was unconscionable conduct due to the plaintiff’s special disadvantage namely that he was in frail and poor health; that he was emotionally vulnerable because of the death of his wife and he had difficulty carrying on and coping with the day to day activities of life. It is said that the defendant knew of these vulnerabilities and she preyed on them by insisting that the property be transferred over to her or putting constant pressure on him to do that in return for domestic assistance and emotional support.

11. [11]
    A number of questions arise as a result of those allegations. Firstly, did the defendant put pressure on the plaintiff to transfer the property to her such that he was overborne to do so? Secondly, was the property transferred over on the condition that she would provide immediate assistance to the plaintiff by undertaking household chores on his behalf including such matters as mowing lawns, maintaining the hedges, cooking for him and cleaning his house for him? Thirdly, was his condition or circumstances such that it seriously affected his ability to make a judgment as to his own best interests? Lastly, did the defendant unconscientiously exploit the plaintiff’s special disadvantage?

The conduct of the defendant towards obtaining the transfer of the land

12. [12]
    The plaintiff’s statement of claim talks of the defendant being repeatedly insistent that the plaintiff effect the subdivision and transfer of the property to the defendant.^[2]The plaintiff was so overborne by the defendant that he “relented and at the defendant’s insistence agreed”,^[3]“the constant pressure of the defendant over a period of time requesting the subject real property owned by the plaintiff be the subject of subdivision and the property be transferred to her”^[4].  However, the evidence of the plaintiff in this regard does not bear this out.

13. [13]
    In evidence Mr Quinn indicated that he gave in in relation to the transfer^[5],

“Did you initiate the transfer? - That’s a difficult one, because I – it took me a while to absorb the fact that such - that that’s what she wanted and she was – she would go to any sort of lengths to get it.  And I gave in in the finish, so yes I did.”

14. [14]
    However two transcriptions of interviews were tendered into evidence, Exhibit 12 is an interview with the plaintiff and his solicitor on 13 June 2014 where the transaction was discussed. During that interview the plaintiff claimed that the defendant had been after the block of land for years in that she would say every now and then “I would love to have that block of land”.^[6]He said:^[7]

“Well she kept on nagging, well nagging… a better word than that but um nagging at me over the years.  Maybe once or twice a year.”

He went on to say that she would come over once a fortnight once his wife had died and she would say once or twice a year that she’d like to have it.  She did not say that she’d like him to transfer the property.  He says at Transcript, page 7, that He obtained the transfer documents from the Titles Office, they drove in his car to get the documents.^[8]After some leading questions he agreed that he felt that he’d been an easy target and that he was vulnerable at the time. At page 13 of this Transcript He was asked: “With the subdivision of the property into two blocks, whose idea was that?”- “It might have been mine, I just want to get help, it must’ve been mine”^[9].  He said he didn’t realise at the time that his wife’s ashes were on the subdivided block. 

In a further interview of 9 February 2015^[10]he was asked whether she provided additional social and emotional support and household chores from September 2009 to May 2013.  He said^[11]“From September 2009 to May 2013 I really can’t say whether she provided additional or any social and emotional. Might’ve been social support but it was not to me.  When she came over all she wanted to do was play games, things like scrabble or cards.  The physical help, never.  I mean that, never.”

15. [15]
    The defendant’s case is that she did not persistently ask for the block of land and that while she certainly loved the area and the block of land that the offer by the plaintiff to give her the block came as an unexpected surprise.

It would seem from the previous interviews with the plaintiff and from his affidavit that despite regular visits of once a fortnight, the defendant had, at best, mentioned that she’d love the block of land from the property once or twice a year for several years.  The defendant says that she did not suggest that the property be transferred to her and it seems that it is likely that the plaintiff, realising that the defendant liked the area and the block of land, had decided that if he transferred the property to her, that she would be able to look after him. There is no contest in this case that the defendant represented and the plaintiff expected that at the least from when she moved to the property that she would look after the plaintiff and the property. What is clear is that there is little evidence that there was persistence or overbearing in terms of transferring the property other than the plaintiff’s answers to some persistent and leading questions asked by his solicitor.

On what terms was the property transferred to the defendant?

16. [16]
    The defendant in her affidavit says that the property was transferred to her as a gift as part of her inheritance. This was done on the understanding that she would put a house on the block of land and move there and she would be available to assist him with practical tasks such as the garden, maintenance and to provide support in relation to his household chores and care needs. She also agreed not to sell, mortgage or borrow on the title, to take responsibility for placing his ashes near his wife’s in the memorial garden, to take responsibility for the ongoing maintenance of the memorial garden, that there would be no restriction of access to the memorial garden for any Quinn family members, that the block would remain in the Quinn family and that she would pass the block on as an inheritance. The defendant says she accepted this proposal.

17. [17]
    The defendant claims that there is support for that being the agreement in a number of documents namely:

• the will dated 12 April 2012^[12]which has as special directions for my trustee: “I direct that a provision of $90,000 has not been allocated to my daughter, Varina Lea Quinn in my will as prior to my passing I gifted her a portion of my property on Lakeview Drive, Esk which was valued at $90,000”.
• a further will which is unsigned dated 25 March 2013^[13] which states non- provision declaration: “After giving the matter consideration I have decided not to make provision in this will for my daughter, Varina Lea Quinn as she has previously been gifted a one acre block of land during my lifetime^[14]”.
• a statutory declaration which the defendant signed dated 1 March 2013^[15] which indicates the agreement as follows:

“1. Being the owner of lot 2, Survey Plan 245925, title reference 50867946 I will never mortgage or borrow on the above title.

2. The title of this property is to remain in the Quinn family.

3. The graveside is to be properly maintained with no restrictions of access to any Quinn family members or I shall pay 50% of the dividing fence cost.”

• a signed agreement by both parties dated 17 December 2013^[16]that: “Varina and John agree that Varina will take responsibility for the maintenance of her block of land from today.  John has indicated he is satisfied with the assistance he currently receives from Blue Care.  Varina has affirmed her ongoing commitment to honour the conditions of the statutory declaration.  Varina has affirmed her commitment to John to honour his wishes to be placed with his wife in the family memorial garden after his death.”

18. [18]
    In her evidence she said that in late November, early December the plaintiff approached her and said he would give her the block of land and she should come and live on the block and help him. He said to her that he would like her to live on the block and help with chores. There were conditions that she never borrow, mortgage or sell the property, that it would stay in the Quinn family and that she would help him. She said he was in a deteriorating state so he clearly needed help. She said at that time her ex-husband was dying so she went down to Sydney to see him and spend time with him before he passed away and when she came back they went to the titles office and transferred the block.

19. [19]
    The defendant admitted that the plaintiff was not particularly well and he was sad and lonely at the time. The plaintiff said^[17]“my aim here is to provide him with assistance over a period of time which I saw intensifying as his health declined”.  Her aim was to help him maintain his independence for as long as possible and then when he could not live on his own any more he could move in to her house with her.

20. [20]
    The plaintiff says that the defendant on occasions would comment that she liked the block of land upon which she now has title. The plaintiff submits that from in or about 2007 the defendant would on occasion request that the plaintiff effect a sub-division and transfer all right, title and interest and sub-divide the lot to her. However, the evidence is really more to the effect that she indicated that she liked the block of land from time to time (once or twice a year) and that the sub-division was really his idea. Further the plaintiff submits that:

“During 2011 the plaintiff contends the defendant engaged in a process whereby she represented to the plaintiff that if he caused the transfer of  a separate lot to the defendant she would provide assistance to the plaintiff by undertaking various household chores on his behalf which included such matters as mowing the lawn, maintaining the hedges, cooking for him and cleaning his house”.^[18]

21. [21]
    The plaintiff says that in mid-2011 he agreed to transfer the block of land from the property to the defendant and in return the defendant agreed to maintain the hedges and mow the lawns on the property and do the housework for him and maintain his wife’s memorial site.^[19]

22. [22]
    Dr Andrea Quinn swore an affidavit on 27 April 2015. She says that the plaintiff spoke to her and indicated that the defendant would come and take care of him. She would move a house to the block of land that he was transferring to her and she would help him hang the sheets on the line, make his bed, some gardening support and things that he was having difficulty with^[20]and the defendant told Dr Quinn that the arrangement was that she would be there three or four days a week, go to work part-time and when she was there she would help with the shopping, the housework, the garden in particular, hanging the sheets on the line, making the bed, helping him eat properly and playing games with him.^[21]She said in early February 2012 the plaintiff told her that he had completed plans for a house to be erected by the defendant on the one acre block and had begun to source building prices.  Later there was talk of moving the house on to the block.

23. [23]
    Stuart Quinn swore an affidavit on 7 April 2015. He had been living in Victoria and had not been in regular contact with the plaintiff around the time and was not in contact with many of the siblings He says that he had a conversation with the defendant in February 2013 when some of the children attended upon the plaintiff at his house for the purpose of indication which property they wanted form his house after his death. The defendant, who was present on this occasion, indicated that she had been given the block of land. He says that she told him that she had agreed never to sell the property to anyone outside the Quinn family, never mortgage the property, permit unrestricted access for any family member to the memorial site for the plaintiff’s wife, that she maintain the gardens and hedges surrounding the home and would commute between Toowoomba and Esk three to four nights per week and care for the plaintiff and ensure that he was able to attend medical appointments as required, collect mail from the post office and assist with basic domestic duties. She did not say from when that was to be begin and I note it was not suggested by the plaintiff that all of those matters were the subject of the agreement.

24. [24]
    Stephen Quinn swore an affidavit on 28 May 2015. He also had little contact with the plaintiff. He remembers the defendant at the meeting in February 2013 saying that she was getting vacant land next to the plaintiff’s residence and she would receive nothing else on the plaintiff’s passing. This was subject to her looking after the plaintiff and his residence as he was finding it harder to do normal activities and she was to maintain the gravesite on the block of land and allow her siblings clear access to it. At the time he said he thought this was reasonable.

25. [25]
    The evidence seems to be that the defendant did care for the plaintiff on a regular basis from when his wife, her mother, died on 22 January 2010. I accept that she visited regularly. The plaintiff himself says she came over to visit him at the property about once a fortnight for about 2-3 hours. She says it was for the whole day. Her Daughter Rachel Batman gave evidence that the visits were for the whole day. Given that the defendant was living in Greenmount at the time I find it likely that the visits were for the whole day given the distance travelled to get there. Given that the defendant was concerned enough to visit the plaintiff on a regular basis despite working full time, I find it likely that she also brought with her food and assisted him by bringing food and doing domestic tasks while she was there. I accept her evidence in this regard over the evidence of the plaintiff which was to the effect that she did nothing to assist at all.

26. [26]
    The evidence is that those regular visits continued, with some interruption around December 2011/January 2012 when her ex-husband passed away, until March of 2013 when there was a falling out between the parties and the visits became less regular. I also accept that the defendant’s daughter attempted to assist with the hedges on an occasion but her efforts were rebuffed by the plaintiff as being inadequate. The defendant has also given evidence that she did attempt to mow the lawns and went there on a number of occasions to do so but the lawn had already been mowed. In the taped conversation^[22]the plaintiff indicates that he was still going to the Bowls Club on a regular basis and he was looking for someone to mow the lawn because he was starting to find it difficult.

27. [27]
    In my view, the conversations said to had taken place between the defendant and her siblings do not clarify the extent of the agreement. The accuracy of the detail of the conversation must be looked at in light of the passage of time between the conversation and when the recollection was committed to an affidavit. Further, the conversation with Stuart Quinn is inconsistent with the plaintiffs own evidence. The evidence of Andrea Quinn is clearly an honest recollection but likely to be tainted by the fact that she was involved in many conversations and emails on this subject and the care of the plaintiff generally. The documentation, particularly the signed will does in my view support the contention by the defendant that the land was gifted to her as part of her inheritance and that the arrangement for care was never clearly stated to start upon transfer but rather put as a continuation of the situation as it then was intensifying once she moved to the block and was able to spend more time attending to his needs. In my view the arrangement was to the effect that she was being gifted the land on the understanding that she would move to the property and would assist her father with domestic chores, maintaining the property but also ensuring that the property remained unencumbered and within the family with all family members having access to the memorial garden.

28. [28]
    The plaintiff placed significant weight on the fact that the defendant gave evidence that the plaintiff spoke to Scott Smith, a stamping agent, and that he spoke to the plaintiff (she thought he was a solicitor) and asked him if he had given serious thought to the transfer and he replied that he had and that he was sure as to his course of action. The meeting took about 20 minutes. Mr Smith gave evidence that he was not a solicitor. He could not remember the specific transaction because of the passage of time but his notes say that Varina Quinn came to see him. He says he would not give any legal advice but that an appointment would take about 20 minutes. He said there could have been general conversation while he was entering documents into the system but he would not remember any conversation. The plaintiff says he did not go into have the document assessed. The plaintiff submitted that this version by the defendant is wrong and that it affects her credit significantly. I do not accept this proposition. It is likely that her memory in relation to the encounter is flawed but in the absence of any recollection of the witness Smith of any conversation I cannot form a view that she was deliberately lying about the conversation. It is not surprising given her lack of experience in these matters and her heightened emotional state following the death or imminent demise of her ex-husband that she may have mistaken Mr Smith for a solicitor and misinterpreted general conversation.

Was his condition or circumstances such that seriously affected his ability to make a judgement as to his own best interests?

29. [29]
    It seems to be common ground that the plaintiff was lonely and that he missed his partner of 60 years. These things are natural in the plaintiff’s circumstances. He obviously was hoping for someone to help him around the house and he was hoping that his daughter would fulfil that role. It seems as though it is likely that he now regrets the transfer and that, in his words, he regards it as a foolish decision, but that does not mean that he was at a special disadvantage. He says himself that it was likely that he was the one who thought of the subdivision.

30. [30]
    The plaintiff was not in good health and his health was declining. There is little medical evidence about his condition and what that meant in terms of his mental and physical acuity, however, after his wife died, he was able to arrange a trip to Israel for himself and five family members including flights, accommodation, visas and trips to places of interest. He was very experienced in the purchase and sale of real estate and at the time of trial was still in charge of his own financial affairs. As late as 2012 he told Andrea Quinn that he had designed a house to be put on the defendant’s block and was sourcing materials.

31. [31]
    When matters were put in place to assist him, such as Blue Care coming to help him with the housework, he dismissed those workers in a short space of time. He was described as controlling^[23]and strong willed. So, he is a man who, even when offered help, does not necessarily take it. When Ms Batman attempted to do the hedges, he was very dismissive of her.  There is no doubt that he was not in good health, but he was still able to work around the garden, go to the bowls club and participate in the bowls life on a regular basis. My observation of him during the trial was that although his memory was not good he was nonetheless still able to understand commercial concepts and his lack of recall of some events appeared to be disingenuous. He was unwilling to make appropriate concessions even when presented with compelling evidence.^[24]I do not accept his evidence where it differs from the defendant.

Did the defendant unconscientiously exploit the plaintiff’s special disadvantage?

32. [32]
    The law in relation to unconscionable conduct is summarised neatly by Justice Peter Lyons in Paroz v Paroz & Ors^[25]:

It is not enough that there is a special disadvantage, there must be exploitation of the disadvantage.  In a situation such as this, where the plaintiff is frail and lonely, there must be an assumption that he was disadvantaged but there must also be some evidence that there was exploitation of that disadvantage.

33. [33]
    As is noted in Louth v Diprose^[26] :

“But where it is proved that a donor stood in a specially disadvantageous relationship with a donee, that the donee exploited the disadvantage and that the donor thereafter made a substantial gift to the donee, an inference may, and often should, be drawn that the exploitation was the effective cause of the gift. The drawing of that inference, however, depends on the whole of the circumstances.

In this case, the defendant contends that, whatever view is taken of her conduct, the proper conclusion to be reached on the evidence is that the plaintiff made the gift to her simply because he wished to do so, imprudent though the gift may have been.  If that be the right conclusion, so that the gift was not the result of unconscionable conduct on the part of the defendant, the plaintiff cannot recover the gift.”

34. [34]
    In this case, the claim was that there was persistence in asking for the transfer of the property, but that has not been made out on the evidence. The suggestion that there was a condition to the transfer, or an agreement whereby there would be housework completed and yard work completed, is effectively agreed by the defendant, however, the timing of that work is not agreed. In my view, the defendant’s consistent attendance at the plaintiff’s house and her assistance with domestic duties and providing emotional support is indicative of the fact that she did intend to offer assistance. However, continuing and increasing assistance was dependent upon her being able to live nearby so that she could work part-time and maintain some income whilst assisting her father while she was living nearby.

35. [35]
    The breakdown of the relationship between the parties seems to have occurred over the time it was taking to move to the block and the type of house that would be suitable on the block. The strength of will of the plaintiff and his desire to have control over the defendant is demonstrated by his contact with Rowan Worsley insisting that he was not to move the house that the defendant had purchased for removal to the block and the resulting collapse of the contract as a result of his actions. This and the plaintiff’s desire to now have the property transferred back to him has meant that the agreement to move to the block and help the plaintiff has now all effectively collapsed. That does not mean, however, that the defendant did not intend to assist the plaintiff at the time the property was transferred or that her actions were insincere. With the benefit of hindsight the gift may have been imprudent but in my view the plaintiff has failed to prove that it was transferred due to unconscionable conduct.

36. [36]
    The claim is dismissed.