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CITE

Unreported Judgment
Appeal Determined (QCA)

Kelly v Slade[2017] QDC 288Porter DCJ
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Kelly v Slade[2017] QDC 288

DISTRICT COURT OF QUEENSLAND

CITATION:	Kelly & Anor v Slade & Anor [2017] QDC 288
PARTIES:	GORDAN JAMES KELLY (First Plaintiff) KATHLEEN MARY KELLY (Second Plaintiff)
	AND
	VICKI LEE SLADE (First Defendant) DANNY ALEXANDER SLADE (Second Defendant)
FILE NO/S:	DC No 1634 of 2015
DIVISION:	Civil
PROCEEDING:	Trial
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	7 December 2017
DELIVERED AT:	Brisbane
HEARING DATE:	13 – 16 November 2017
JUDGE:	Porter QC DCJ
ORDER:	The plaintiffs’ claim is dismissed. The defendants’ counterclaim is dismissed.
CATCHWORDS:	MONEY – PAYMENT – OTHER MATTERS – where the plaintiffs transferred their respective interests in the farm to the defendants as joint tenants – where the terms upon which that transfer occurred were in dispute – whether the defendants agreed to pay $250,000 for the first plaintiff’s share. EVIDENCE – ADMISSIBILITY – ADMISSIONS – WHAT CONSTITUTES – where there is evidence of subsequent conduct – whether that subsequent conduct is properly dealt with as an admission of the terms of the informal agreement alleged by the plaintiffs – whether that subsequent conduct is properly dealt with as an inference that the parties made an informal agreement on particular terms. Legislation Property Law Act 1974(Qld) s 59 Cases Brice v Chambers [2014] QCA 310 Dovuro v Wilkins (2003) 215 CLR 317 Fraser v The Irish Restaurant & Bar Company P/L [2008] QCA 270 L Schuler AG v Wickman Machine Tool Sales Ltd [1974] AC 235 Lym International Pty Ltd v Marcolongo[2011] NSWCA 303 Tomko v Palasty [2007] NSWCA 258 Winks v WH Heck & Sons Pty Ltd [1986] 1 Qd R 226
COUNSEL:	A Skoien and H Knowlman for the plaintiffs A Fraser and J Kenny for the defendants
SOLICITORS:	Blue Ocean Law Group for the plaintiffs BR Solicitors for the defendants

Introduction

[1]
From April 2010, the plaintiffs, Mr Kelly and his mother, Mrs Kelly, owned a farming property in equal one-third shares with the first defendant Mrs Slade, who is their daughter and granddaughter respectively. In late 2010, the Kellys’ transferred their respective interests in the farm to Mrs Slade and her husband (the second defendant) as joint tenants. The principal issue to be resolved in this trial is as to the terms upon which that transfer occurred.
[2]
The parties concur that the Slades agreed to pay $260,000 to Mrs Kelly in consideration of the transfer, and it is not disputed that they did so.
[3]
The Kellys ultimately contended that the Slades also agreed:
1. (a)
  To pay a total of $250,000 (later varied to $240,000) for Mr Kelly’s share as follows:
  1. The Slades would pay$20,000 at settlement;
  2. The Slades would pay $20,000 off his credit card debts at or about settlement;
  3. The Slades would pay the balance of $200,000 within 2 years; and
2. (b)
  Pending that payment, Mr Kelly would not charge interest but could live on the farm rent free and without paying utilities.
[4]
The Slades, on the other hand, ultimately contended that they also agreed that for Mr Kelly’s share they would:
1. (a)
  Pay $20,000 at settlement to Mr Kelly;
2. (b)
  Permit him to reside on the Farm for as long as he wished; and
3. (c)
  Continue to assist him as they had done in the past.
[5]
I used the word “ultimately” because the final position at trial of both the Kellys and the Slades differed from their pleaded cases.
[6]
It is not in dispute that the Slades paid Mr Kelly $20,000 at settlement. The central issue in dispute is whether they had also promised to pay him a total of $240,000, such that $220,000 is still owing. For the reasons which follow, I have concluded that no such agreement was reached.

Background

[7]
Mr Kelly and his wife Narelle had four children: Wayne, Graeme, Vicki (Mrs Slade) and Lisa. In about 1994, Mr Kelly and his wife acquired a property at 99 Borcharts Road, Kingaroy (the Farm). The Farm had some irrigated and some dry land farming, along with some pasture.
[8]
The Farm was not the family home while Mr Kelly’s children grew up. They were adults when it was acquired. Despite that, Mr Kelly’s children were involved with the Farm from time to time.
[9]
In about 2007, Mr Kelly’s wife Narelle died. Prior to that time, Mr Kelly had very little involvement in the family accounts or his own financial affairs. He said he would give his wages to his wife and she would manage the financial affairs of the family. On her death, he discovered that he was facing significant financial problems of which he had been unaware:
1. (a)
  First,Mr Kelly’s son Graeme had become the owner of a half share in the Farm with his parents in February 2006. That share was transferred for $150,000. By about mid-2007, Mr Kelly discovered that Graeme had not been meeting payments on a debt secured by a mortgage of the Farm (and/or perhaps guaranteed by Mr Kelly) and that the mortgagee bank was threatening to sell the Farm.
2. (b)
  Second,Mr Kelly discovered that he had significant personal debts totalling about $100,000, including debts on credit cards.
[10]
Mr Kelly approached his mother for help. She agreed to help. It is uncontentious that Mrs Kelly paid $260,000 to assist with Mr Kelly’s financial problems and that in return, she received a transfer of Graeme’s half share in the Farm. The character of the payment is in dispute:
1. (a)
  Mr and Mrs Kelly gave evidence that Mrs Kelly agreed to pay $260,000 in return for the transfer of Graeme’s half share in the Farm.
2. (b)
  Mrs Slade gave evidence that she was told by her father and her grandmother that the payment comprised two components:
  1. A payment of $160,000 to acquire Graeme’s share in the Farm; and
  2. A payment of $100,000 by way of an advance on Mr Kelly’s inheritance from Mrs Kelly. (Mrs Kelly had sold her own property at about this time.)
[11]
Mrs Kelly acquired a half share in the Farm from Graeme and moved into the house on the Farm with Mr Kelly in about September 2007. After that acquisition, Mrs Kelly and Mr Kelly were tenants in common in equal shares in the Farm.
[12]
Mrs Kelly continued to live at the Farm with Mr Kelly until about November 2010.
[13]
Over that period, Mrs Slade provided extensive personal support to Mr and Mrs Kelly. As to Mr Kelly, she took care of his finances for him including doing his banking. Mrs Slade also did household chores, and arranged medical appointments, did his shopping, took him clothes shopping and so on. It is evident that Mr Kelly required such assistance following the death of his wife. He appeared to have had little experience in caring for himself either financially or in maintaining a household.
[14]
As to Mrs Kelly, Mrs Slade also provided similar domestic support. She assisted with medical appointments, errands like hair-dressing appointments and provided personal support including taking Mrs Kelly to hospital for surgery in Toowoomba.
[15]
The plaintiffs each accepted that Mrs Slade alone of Mr Kelly’s children provided this assistance, though Mr Kelly’s other daughter Lisa helped out a little around the time of Narelle’s death.
[16]
In about 2008, Mr Kelly wrote a handwritten statement of wishes addressed to his children stating, relevantly, that Vicki was to have the Farm after he and his mother had passed away. It is evident from this letter that, at least at that time, Mr Kelly intended retaining the Farm until he died.
[17]
Subsequently, in April 2010, Mr Kelly and Mrs Kelly transferred a one-third share in the Farm to Vicki. The reasons for that are not entirely clear though it is agreed that the transfer was Mr Kelly’s idea and was done by him, at least in part, to protect Mrs Kelly against demands on the Farm by Mr Kelly’s other children if he died.^[1]
[18]
In about September 2010, discussions about the sale of the Farm began between Mr Kelly and his daughter. The genesis and content of those discussions is hotly contested.
[19]
However, the parties do agree that between about September 2010 and November 2010, there were discussions, primarily between Mr Kelly and Mrs Slade, about the acquisition of the whole Farm by the Slades. It is also agreed that during those discussions, the Slades agreed to pay $260,000 to Mrs Kelly and $20,000 at settlement to Mr Kelly for the transfer of the plaintiffs’ shares in the Farm. The content of those discussions, and whether they gave rise to a binding agreement between the parties that the Slades would pay Mr Kelly a further $220,000 for the transfer of the plaintiffs’ shares in the Farm, are the central issues in the trial.
[20]
During that period, the Slades sought finance from the Heritage Building Society (Heritage) to acquire the Farm. In mid-November 2010, Heritage informally notified approved finance for $306,000. That approval required a capital reduction of $55,000 within 6 months to be paid from the sale of the Slade’s existing home. It also required the provision of an executed contract of sale to acquire the Farm. No such written contract came into existence, though a document was prepared in December 2010 which is relied upon by the plaintiffs as supporting their case, as identified in paragraph [40] below.
[21]
At about the time that finance approval was communicated to Mrs Kelly, Mrs Kelly moved from the Farm to live with her son Michael, leaving Mr Kelly in sole occupation of the house on the Farm.
[22]
Also at about that time, a Form 1 transfer was signed by all parties by which Mr Kelly, Mrs Kelly and Mrs Slade transferred their one-third interests to Mr and Mrs Slade as joint tenants (the Transfer). The Transfer identifies the consideration as $500,000. It is signed by each of the parties and dated 6 December 2010. It is witnessed by Trudy May Kelly, a Justice of the Peace and Mr Kelly’s daughter-in-law. The circumstances of the execution of the transfer and the date of execution are contentious.
[23]
The Slades paid Mrs Kelly the $260,000 promised to her towards the end of 2010. They also paid Mr Kelly the $20,000 promised to him at about the same time. Thereafter, Mr Kelly remained on the Farm, Mr Slade continued to have involvement in the Farming operations and Mrs Kelly continued to assist Mr Kelly as she had done. In September 2012, Mr Kelly left the Farm. He went to Darwin and ultimately decided to live there permanently and marry an old friend. He did not return to the Farm. In 2014, he demanded payment of the balance of the funds he claimed to be owed by the defendants. These proceedings were commenced in 2016.

The pleaded cases

[24]
The plaintiffs pleaded the agreement they rely upon in the following terms in their amended statement of claim (ASOC):

4.In September 2010 the Plaintiffs and the Defendants entered into an agreement (the “Farm Purchase Agreement”) for the Defendants to purchase the Plaintiffs’ remaining interest in the Farm for $510,000.

5.It was a term of the Farm Purchase Agreement that the consideration of $510,000 for the Plaintiffs’ interest in the Farm would be paid by:

(i)
A payment of $250,000 to the First Plaintiff; and
(ii)
A payment of $260,000 to the Second Plaintiff.

6.Shortly after the Plaintiffs and Defendants entered into the Farm Purchase Agreement:

(a)
The First Defendant informed the First Plaintiff that the Defendants would only be able to obtain a loan of $260,000 to purchase the Plaintiff’s interest in the Farm; and
(b)
The First Defendant asked the First Plaintiff whether the Defendants could delay the purchase of $250,000 to be made to the First Plaintiff under the Farm Purchase Agreement.

7.In September 2010 the First Plaintiff agreed with the Defendants that:

(a)
The Defendants could make the payment of $250,000 to the First Plaintiff under the Farm Purchase Agreement within two years of the date of transfer of the Farm, rather than at the date of that transfer; and
(b)
The First Plaintiff would not charge to the Defendants any interest on the sum of $250,000 owed to him for those two years; and
(c)
The First Plaintiff would be allowed to reside at the Farm until the payment of the balance sum, without being required to pay rent or utilities.

8.The agreement pleaded in paragraph 7 above:

(a)
Constituted a variation to the Farm Purchase Agreement; or
(b)
In the alternative, constituted an agreement between the First Plaintiff and the Defendants (the “Loan Agreement”) for an interest free loan of $250,000 for 2 years.

9.In 6 December 2010 the Plaintiffs and the Defendants:

(a)
Executed a document called “Form 1 Transfer” (“Form 1”) in respect of the Farm; and
(b)
Executed a document called “Form 24 Property Information” (“Form 24”) in respect of the Farm.

10.The Form 1 and Form 24 stated that the total consideration payable by the Defendants to the Plaintiffs for the transfer of their interest in the Farm to the Defendants was $500,000.

Particulars

The consideration stated on the Form 1 was $500,000, not the $510,000 that had been previously agreed by the parties.

11.The Plaintiffs signed the Form 1 and the Form 24 in reliance on the Farm Purchase Agreement.

12.By signing the Form 1 and the Form 24:

(a)
The Farm Purchase agreement was varied:
1. To reduce the total consideration payable to the Plaintiffs by the Defendants from $510,000 to $500,000; and
2. To reduce the consideration payable to the First Plaintiff by the Defendants from $250,000 to $240,000;
(b)
In the alternative, the Loan agreement was varied to reduce the amount of the loan from the First Plaintiff to the Defendants from $250,000 to $240,000.

[25]
The ASOC did not plead particulars of how the agreements alleged arose: whether in writing, or oral, or inferred from conduct, or by some combination of those matters. (In the balance of this judgment, I will refer to just one agreement alleged by the plaintiffs. There are two alternative formulations of the agreement: the Farm Purchase Agreement and the Loan Agreement, but nothing turns on the alternative formulation in this case).
[26]
It was evident from how the case was opened and conducted, however, that with one exception, the agreement alleged was oral, the exception being the variation of the purchase price from $510,000 to $500,000. That variation would appear to have been partly in writing (the Transfer and Form 24) and partly by conduct (the acquiescence of Mr Kelly in the reduction of the agreed consideration). However, to the extent that the agreement was oral, the ASOC did not particularise the discussions relied upon as having contractual effect.
[27]
The defendants pleaded an alternative version of the agreement for the Transfer in their amended defence in the following terms (I have retained the marking up of amendments because the course of amendment of the defence is relied upon by the plaintiffs as going to the credibility of the defendants’ evidence):

6.The Defendants deny the allegation in Paragraph 4 of the Statement of Claim.

Particulars

(a)
There was no agreed purchase price to be paid by the Defendants to the Plaintiffs for the purchase of the two thirds (2/3) share of the property owned by the Plaintiffs;
(b)
The First Defendant arranged for a market appraisal to be undertaken on the property), which identified the whole value of the property to be $500, 000.00.;
(c)
The amount paid by the Defendants to the Plaintiffs was agreed upon by reference to the market appraisal and theneeds of the Plaintiffs. The Plaintiffs and the Defendants agreed that the value of each of the third shares for the purpose of this transaction would be $160, 000.00 and that the Defendants would pay all costs of and associated with the Transfer of the Property.and not an agreed purchaseprice of the Plaintiffs interest in the Property
(d)
What had been agreed to between the parties was:-
1. As the Second Plaintiff wanted to vacate the property,the Defendants agreedwouldto providepay tothe Second Plaintiff withthe sum of two hundred and sixty thousand dollars ($260, 000.00) to enable the First Plaintiff to enter into a nursing facilitybeing made up of her one third agreed value of $160, 000.00, and a loan amount owed by the First Plaintiff to the Second Plaintiff in an amount of $100.000.00;
2. The Defendants agreedwould payto and did paypaidto the First Plaintiff twenty thousand dollars ($20,000.00) plus made further payment on behalf of the First Plaintiff towards credit card and other debt in the amount of $18,189.86;
3. The Defendants agreed with the First Plaintiff that the First Plaintiff may reside on the Property free of chargewithout being required to contribute financiallyin lieu of a final lump sum payment in the amount of $21,810.14 being the remaining amount owed for the First Defendant’s interest in the Property;
4. The Defendants agreed with the First Plaintiff that they shall provide constant andsubstantial financial assistance regarding the living expenses of the First Plaintiff in lieu a final lump sum payment in the amount of $21,810.14 being the remaining amount owed for the First Defendant’s interest in the Property;
5. The Defendants agreed with the First Plaintiff that should the First Plaintiff be required to move into a low care nursing facility, or similar facility that the Defendants would pay the bond for such facility;
6. (v) The First Plaintiff knew that after the payment was made to the Second Plaintiff and the payment of twenty thousand dollars ($20, 000.000) to the First Plaintiff along with payment of $18,189.86 off accrued debts of the First Plaintiff wasmade the First Plaintiffthat the Defendants did not have capacity to pay any further funds towards either the First or Second plaintiff.

[28]
The amended defence thereafter denied that there was ever any agreement to pay Mr Kelly an amount of $250,000 or $240,000 and that that was not the value of Mr Kelly’s one-third share.
[29]
Like the ASOC, the amended defence also did not plead particulars of how the alleged agreed terms arose. However, it was again evident from the evidence led that the agreement alleged arose for oral statements.
[30]
Neither party in addresses identified in a precise manner the particular conversations relied upon as having contractual effect. I have therefore attempted to identify in the course of these reasons the relevant conversations, particularly those required to make out the plaintiffs’ case.
[31]
The evidence ultimately given was not consistent with the pleaded case of either party, though the divergence from the pleaded case was more significant for the defendants than for the plaintiffs. However, no objection was taken to any evidence on that basis and the agreements contended for by each party were made reasonably clear at the start of addresses, as set out in paragraphs [2] to [5] above.
[32]
I also observe that the agreement alleged by the plaintiffs was one to which Section 59 of the Property Law Act 1974(Qld) would seem to apply. However, that section was not raised in the amended defence and I do not propose further to consider the impact of that section.

Summary of the competing versions of the dealings between the parties

The plaintiffs’ version

Mr Kelly’s evidence

[33]
Mr Kelly said that in 2007 he was in financial difficulty because of his son Graeme’s debts secured on the Farm and his own debts and therefore offered to transfer a half share in the Farm to his mother for $260,000 to solve those problems and enable him to keep the Farm. His mother agreed. Thereafter she came to live at the Farm. He accepted that from then until about September 2010, Mrs Slade provided care and support to both him and his mother.
[34]
Mr Kelly’s evidence about the genesis of the Transfer was as follows. He said that in about April 2010, he decided he should transfer a one-quarter share in the Farm to Mrs Slade because he was worried about Mrs Kelly’s position at the Farm given some trouble being made by “the boys” (presumably his two sons). This occurred at the time of some health scares for Mr Kelly. In cross examination, however, he also gave evidence that reward for Mrs Slade’s support was part of the deal.^[2]He considered that Mrs Slade could protect his mother if he (Mr Kelly) died. He said that Mrs Slade received one third rather than one quarter because that was how his solicitor prepared the transfer.
[35]
He said that in about September 2010, he decided to sell the Farm outright because he was tired of fighting between his children about the Farm and because strain was emerging between Mrs Slade and her grandmother arising out of Mrs Slade’s lack of time to continue to assist his mother as she had been doing. He says he listed the farm for sale for $600,000.
[36]
He said that, thereafter, Mrs Slade “turned up” and asked him if she and Mr Slade could buy the Farm. He said he offered her the Farm for $500,000, but corrected himself later in his evidence and said he told her $510,000 was his initial asking price. She then “went off to get finance”. He said neither Mr Slade nor Mrs Kelly were present for this conversation (the first Gordon conversation).
[37]
He said that some time later there was a second conversation in which Mrs Slade told him that she and Mr Slade “couldn’t get the $500,000” because they had to sell their existing house first. They could get enough money to pay Mrs Kelly after the house was sold and she asked if Mr Kelly would wait 2 years for his money. Mr Kelly says he agreed but said that he wanted a contract drawn up. He said neither Mr Slade nor Mrs Kelly were present for this conversation (the second Gordon conversation).
[38]
He said that there was also a third conversation in which Mrs Slade asked him how much money he would need to get by and then she offered $40,000, to which he agreed so that he could “start moving on”. He said neither Mr Slade nor Mrs Kelly were present for this conversation (the third Gordon conversation).
[39]
His recollection of the signing of the Transfer was that Mr and Mrs Slade attended at the Farm together. He said this occurred before Mrs Kelly left the Farm to go and live with his brother Michael. He said this occurred towards the end of November 2010. He said that the witnessing officer, Trudy Kelly was not present. He said that Mrs Slade presented the Transfer and covered the consideration section of the Transfer with her hand when she showed Mrs Kelly where to sign. He said that he noticed the consideration was $500,000 not $510,000 when he signed but acquiesced in the change in the price.
[40]
He was referred to a handwritten document which was exhibit 4 in the proceedings (Exhibit 4). It was not disputed that this document was written by Mrs Slade. It provided:

Heritage Building Society

ATT Gerald White

I (Danny and Vicki Slade) have purchased the farm at 99 Borcharts Road Kingaroy, for agreed price of $500,000.00

A sum of $260,000.00 is to be paid to Kathleen Mary Kelly for her share.

A sum of $240,000.00 is to be paid to Gordon James Kelly for his share. But under an agreement between Gordon, Danny and myself Dad (Gordon) is to be paid $20 000.00 on settlement date.

This written agreement has been agreed between all parties (Gordon, Danny and I).

On settlement a sum of

$260,000.00 to be paid to Kathleen Kelly

$20,000.00 to be paid to Gordon Kelly.

Danny SladeVicki SladeGordon Kelly

Signature Signature Signature

[41]
When shown this document, he stated that he had not seen it before “all this started” (presumably referring to the proceedings). The contrary was not suggested to him in cross examination. He accepted however that his signature appeared on it and that it reflected the agreement he contended for except his recollection was that Mrs Slade had offered to pay $40,000 at settlement, not $20,000.
[42]
He said that he stayed at the Farm until September 2012, when he went to Darwin. He did not return to the Farm and ended up marrying and taking up residence there. He initiated proceedings after Mrs Slade had failed to honour the agreement and had raised the issue of him having left the Farm.

Mrs Kelly’s evidence

[43]
Mrs Kelly gave evidence which in some respects tended to corroborate Mr Kelly’s account.
[44]
She maintained that she paid $260,000 for a share in the Farm to assist Mr Kelly with his financial problems.
[45]
As to the genesis of the Transfer, she confirmed that Mr Kelly put the Farm on the market in September 2010. She said that there were two inspections of the Farm. (The plaintiffs’ counsel disavowed any reliance on the correctness of that evidence.) She also said that she did not demand her $260,000 so she could go to live with her son Michael in about September 2010, and that the prospect of her going to live with her son Michael did not emerge until later, in about November 2010.
[46]
She gave evidence of two material conversations.
[47]
The first conversation was one between Mrs Slade and Mr Kelly at which she says she was present. She says Mrs Slade said she was happy to forgo her part in the Farm and buy it for $510,000 to avoid conflicts with her siblings about the transaction (the first Kathleen conversation).
[48]
Her evidence about execution of the Transfer was generally consistent with Mr Kelly’s. She said that all four were present together when the Transfer was signed and that Trudy Kelly was not present. She said she signed despite Mrs Slade covering up the consideration on the basis that she trusted her to put the correct sum. However, she maintained that she left the Farm by 10 November 2010.
[49]
The second relevant conversation she gave evidence about occurred at the time of signing the Transfer. She said all four were present when Mrs Slade asked her father if he would wait for 2 years for his payment and he said yes he would. She recalled nothing else about that conversation (the second Kathleen conversation).

The defendants’ version

Mrs Slade’s evidence

[50]
Mrs Slade’s version of the genesis of the Mrs Kelly’s acquisition of a half share in the farm in 2007 was similar to that of the plaintiffs except that she said her father told her that Mrs Kelly was paying $160,000 to buy into the Farm so as to pay off Graeme’s debts and was giving $100,000 as an advance on Mr Kelly’s inheritance to pay his own debts.
[51]
As to her one-third share, she said that the idea was raised by her father in 2008 (when it seems he had a health scare). The purpose of her being granted a share was so that if her father died, she would already be on the title and could prevent her brothers from giving her grandmother difficulties. Her evidence is therefore similar to Mr Kelly’s evidence in this respect. There was no suggestion by her of any change in purpose between 2008 and April 2010, when the transfer was made to here.
[52]
However, her version of the genesis of the Transfer is markedly different from her father’s version. She said that the idea of her and Mr Slade buying the Farm was her father’s idea. She said that late one night in late September 2010, her father came out to her house while her husband was away working night shift and told her that his brother Michael was in financial trouble and that Mrs Kelly had told Mr Kelly that she need to get her money out of the Farm and required repayment of the $100,000 she had given Mr Kelly as an advance on his inheritance. She said he told her he wanted his mother out of the Farm. Mr Kelly asked if the Slades would buy out his mother’s share of the farm. Mrs Slade said she would ask her husband.
[53]
When he returned from night shift, she spoke to Mr Slade about her father’s request. He told her that he was interested only if they acquired the whole Farm. He told Mrs Slade to see what the bank said. Mrs Slade said she know nothing about the Farm being listed for sale at that time.
[54]
Mrs Slade said that the next day she had a discussion with her grandmother in which she confirmed that she and Mr Slade would look into buying the Farm but it depended on what the bank said. She said her grandmother confirmed she needed money for her son Michael, and that she regretted demanding the additional $100,000 back from Mr Kelly. She said Mr Kelly arrived in the course of this conversation.
[55]
She also said that she told Mr Kelly that Mr Slade had insisted that if they assisted, they had to acquire the whole Farm. She said Mr Kelly was upset by this and insisted that he must stay living at the Farm. Mrs Slade says she agreed he could do so. She also said a conversation in similar terms was held with her grandmother.
[56]
She said she then arranged for an agent, Mr Wain, to come out and do a valuation on the Farm. She says this occurred in October 2010. She said she and Mr Slade met him at the Farm and that he told them that the estimated value was $500,000. This was later confirmed in writing dated 1 December 2010.
[57]
Thereafter, she rang Mr Parker of Heritage. She said that she told him that she and Mr Slade were looking to buy the whole property, that they were planning to build on the Farm and that they had to pay out Mrs Kelly’s share in the amount of $260,000. She also said to them that Mr Kelly was intending to continue residing in the existing house and that he would not be paid any money.
[58]
The next step was the attendance of Mr Parker and Mr McKenzie from Heritage at the Farm. Mrs Slade said that she and Mr Slade met Mr Parker and Mr McKenzie at the Farm. They inspected the Farm and were told of the plan to build on the Farm and for Mr Kelly to remain in the existing house. They all met with Mrs Kelly and had a coffee with her.
[59]
Mrs Slade said that she and Mr Slade then made a finance application. There is no document comprising a comprehensive finance application in evidence. There is a one page mortgage loan application dated 10 November 2010 signed by Mr Slade seeking finance of $396,900 to be repaid over 12 months (the Mortgage Loan Application). That figure does not correspond with any version of the alleged agreement and was never explained in evidence by Mrs Slade, nor was the basis upon which the amount was determined satisfactorily resolved in evidence by Mr Slade.
[60]
Mrs Slade said that sometime after the meeting on the Farm with Mr Parker, she had a conversation with her father in which she told him that she and Mr Slade could pay him $20,000. She said that she then rang Heritage and told them about the payment of $20,000 to Mr Kelly and asked if that made a difference. It was in that context that she recalls being told that finance at $306,000 had been approved.
[61]
The next material conversation she recalled was a conversation after Heritage had informed them of the loan approval. She says that she and Mr Slade went to the Farm and told Mrs Kelly about the approval and that she could pay her the $260,000. She says her grandmother then expressed regret that she had to reclaim the $100,000 from Mr Kelly. She told her grandmother that Mr Kelly could stay at the Farm. She said soon after that, Mrs Kelly left the Farm.
[62]
Mrs Slade also said that there was a later conversation after Mrs Kelly left the Farm at which she and Mr Slade were present. She says she told her father again that they could pay $20,000 and that he could live on the Farm until the day he died. When shown a copy of a handwritten list of credit card debts (Exhibit 7), Mrs Slade added that in this conversation she also offered to assist and help Mr Kelly with his everyday expenses.
[63]
Her evidence as to the signing of the Transfer differed from the plaintiffs’ version. She said that she brought the Transfer to the Farm with Mr Slade after Mrs Kelly had left. That is, sometime in mid to late November 2010. She says that her father, her husband and she signed the Transfer that day in Trudy Kelly’s presence and that Mrs Kelly signed the next day at Trudy Kelly’s house in Kingaroy.
[64]
She expressly rejected the suggestion that she covered up any part of the Transfer or had any discussion with Mrs Kelly of any substance when she signed the Transfer.
[65]
She also gave evidence about Exhibit 4. On 21 December 2010, Heritage was preparing to settle the Transfer and loan. On that day she received an email from Wayne Bradford of Heritage seeking disbursement instructions. She responded with instructions that $260,000 be paid to Mrs Kelly’s account, $20,000 to Mr Kelly’s account and the balance of the loan ($26,663.29) to the Slade’s own account (Exhibit 21).
[66]
She gave evidence that after sending these details, she was contacted by Gerald White of Heritage who told her that her disbursement instructions were inadequate for Heritage’s needs. Her recollection was that he said that the figure needed to come up to the consideration of $500,000. She said he told her “the previous piece of paper was just not good enough. They could use it for the account details, but it was not …able to be used as what they wanted it for”.^[3]She says that “I do remember in the conversation it didn’t matter what details. It was just that 260 was to Nana, another amount of 240, which happens to be dad’s share, along with an agreement that we had with Danny, Vicki and Gordon. But the figure had to come up to 500,000”.^[4]
[67]
Mrs Slade then drafted Exhibit 4 and had Mr Slade and Mr Kelly sign it. She then faxed it to Heritage. On or about the next day, the Slade’s solicitors also sent a letter to Heritage (Exhibit 14). It provided, relevantly:

We refer to the above matter and instruct that we act for Vicki & Danny Slade in regards to the transfer of property owned by Vicki Slade, Gordon Kelly and Kathleen Kelly.

We confirm that Kathleen Kelly has agreed to sell her share of the property to Vicki & Danny Slade in exchange for payment of $260,000.00.

We confirm that Gordon Kelly has agreed to sell his share of the property to Vicki & Danny Slade in exchange for payment of $240,000.00 which sum will be paid to him upon the terms of an agreement to be made up between those parties.

[68]
Thereafter settlement occurred and the Transfer was then registered. Mrs Slade gave evidence that stamp duty was paid on 2/3 of the consideration of $500,000. The stamped version of the Transfer shows duty was paid in the amount of $5834.50 (Exhibit 25). There was no evidence that her understanding was incorrect.
[69]
She said that after completion of the Transfer, Mr Kelly remained at the Farm until September 2012 and she and Mr Slade provided ad hoc financial assistance to Mr Kelly, paying on-going expenses and credit card payments.
[70]
She gave evidence of a number of specific payments:
1. (a)
  She said she gave Mr Kelly money for two holidays: one in 2011 to Longreach where they gave him about $2000 and one in 2012 to Darwin where they gave his about $3000;
2. (b)
  She said she provided a car fridge and canopy and paid for repairs to Mr Kelly’s ute so he could take the holidays. The ute repairs were about $1200 and the later $3000.
[71]
Mrs Slade conceded that no bank statements or other financial records had been produced by her which show any such payments, nor indeed any payments from the Slade’s accounts to Mr Kelly. Nor is there evidence of cash withdrawals relied upon as comprising payments to Mr Kelly. Her evidence was that these and other payments were made generally by cash payments from Mrs Slade to Mr Kelly on account of particular debts or obligations. In cross examination, she was unable to identify sources of cash on hand for the Slade family which could have funded these payments.

Mr Slade’s evidence

[72]
Mr Slade gave evidence that the purchase of the Farm was first raised with him by Mrs Slade after he came home from night shift one morning. He said Mrs Slade told him her father had visited during the night and asked whether the Slades could help out by buying into the Farm because Mrs Kelly “wanted out”. He said it would depend on whether they could get the money.
[73]
He also said that around that time his wife told him that Mrs Kelly needed the $160,000 she had paid for the Farm and the extra $100,000 she had lent or given to Mr Kelly.
[74]
He also said that from the outset, he told his wife he would not be interested unless they acquired the whole Farm. He was not interested in going into partnership with Mr Kelly.
[75]
He also said that at some stage around that time, Mrs Slade had told him that Mr Kelly did not want to leave the Farm.
[76]
His next direct involvement was to attend the farm with Mr Wain in mid-October 2010 so they could obtain an estimate of value. He recalls showing Mr Wain around the Farm and that Mr Wain gave a verbal estimate of $500,000.
[77]
His next direct involvement in the matter was at the meeting with Mr Parker and Mr Mackenzie at the Farm. He recalls showing them around the Farm, that they were told about the proposal to build the barn style house on the Farm for the Slades and that they required the “160 and the 100” for Mrs Kelly’s share.
[78]
Mr Slade confirmed that he signed an authority dated 27 October 2010 for Heritage to do a valuation on both the Farm and the Slade’s home and that he signed the Mortgage Loan Application. No explanation for the amount identified in that document was sought from Mr Slade.
[79]
Mr Slade said that he did not have any conversations with Mr Kelly or Mrs Kelly directly prior to notification of approval of the loan sought from Heritage. He also gave evidence of only two conversations he was involved in after that time of relevance.
[80]
First, he said that while the written approval came dated 25 November 2010, informal approval was communicated to Mrs Slade (and by her to him) prior to that time. He said that the informal approval was the catalyst for him and his wife to then go to the Farm. He said this occurred in about early November 2010. He said that on this occasion, all four of the parties were present. He said that on this occasion, he or his wife told Mrs Kelly that she would get her $260,000 and that Mr Kelly was free to stay on the Farm and that he and Mrs Slade would continue to take care of Mr Kelly.
[81]
Second, he described a conversation with Mr Kelly at the Farm after the final approval (presumably the written approval) was received. He said that on that occasion, Mrs Slade told Mr Kelly that he would receive his $20,000, that he could stay on the Farm as long as he wanted and that he and Mrs Slade would continue to help him as they had before. He said Mr Kelly said he was happy he could stay on the Farm.
[82]
Mr Slade’s version of the execution of the Transfer was consistent with Mrs Slade’s version. He gave no evidence as to how Mrs Kelly came to sign the Transfer, having played no part in that process.
[83]
Mr Slade also dealt with Exhibit 4. He accepted that he signed the document. He recalled signing the instructions for disbursement of funds referred to in paragraph [65] above. He said that after that, his wife told him that Heritage required more information than just the disbursement information. That was the reason he signed the document.
[84]
He denied that he ever was involved in any conversation where Mr Kelly was promised $240,000 for his share.
[85]
He said he was unable to give evidence of assistance given to Mr Kelly because he was not involved in the financial dealings between his wife and her father.

Mr Parker

[86]
The defendants also called Mr Parker, at that time he was a banker with Heritage. He was plainly very nervous. He confirmed that when Mrs Slade called him initially, she said she wished to borrow money to pay out Mrs Kelly from the Farm. He said that he later went to the Farm with Mr McKenzie and met the Slades. He said they showed him around the Farm and told him they were looking to pay out Mrs Kelly and to build a barn style house on the Farm later. He said that Mrs Slade told him Mr Kelly was to remain on the Farm in the existing house.

Inconsistencies between the pleaded cases and the evidence at trial

[87]
Both parties made submissions as to the correlation between the agreements as pleaded from time to time and the evidence ultimately led at trial for the purpose of undermining the reliability of the evidence given.
[88]
With a couple of exceptions, which I will note in due course, the parties each stuck to their versions in cross examination. It is useful therefore to identify the extent to which the evidence of each of the parties sustains the cases as pleaded.

The plaintiffs’ pleaded case compared to the plaintiffs’ evidence

[89]
A comparison of the three Gordon conversations and the variation conduct to the plaintiffs’ pleaded case discloses the following:
1. (a)
  To the extent that the agreement alleged in paragraphs 4 and 5 of the ASOC is to be proved by the first Gordon conversation (as I seems it must be), Mr Kelly did not give evidence to sustain an oral agreement of the split of the $510,000 between himself and his mother.
2. (b)
  To the extent that the allegations in paragraph 6 and 7 relate to the second Gordon conversation, Mr Kelly did not give evidence that Mrs Slade referred to $510,000 as the consideration, rather his evidence was that she referred to $500,000.
3. (c)
  Further in none of the Gordon conversations does he give evidence that the Slades offered to permit him to stay at the Farm rent free for 2 years, nor that he agreed not to charge interest for that period. To this extent he did not make out paragraphs 7(b) and (c) of the ASOC.
4. (d)
  In none of the Gordon conversations does he give evidence that Mrs Slade actually nominated $250,000 nor $240,000 as the amount payable to him.
5. (e)
  In the third Gordon conversation he gives evidence that Mrs Slade offered and he accepted that the Slades would pay $40,000 on settlement. That allegation does not appear anywhere in the ASOC.
[90]
A comparison of the two Kathleen conversations to the plaintiffs’ pleaded case discloses the following:
1. (a)
  In neither of the Kathleen conversations does Mrs Kelly give evidence of discussion of the split of the $510,000 between the plaintiffs.
2. (b)
  In the second Kathleen conversation, she gives no evidence that the Slades offered to permit Mr Kelly to stay at the Farm rent free for the 2 years, nor that Mr Kelly agreed not to charge interest for that period (as alleged in paragraphs 7(b) and (c) of the ASOC).
[91]
The plaintiffs did not link either of the conversations to which she deposes to the pleaded allegations. If her evidence is not linked to any of the key contractual discussions, her evidence might be treated as comprising admissions by Mrs Slade. It was unclear from the plaintiffs’ submissions what role the evidence of Mrs Kelly otherwise played in the plaintiffs’ case.
[92]
There are other problems with Mrs Kelly’s evidence which I detail below from paragraph [99] I have put little weight on her evidence.

The defendants’ pleaded case compared to the defendants’ evidence

[93]
A comparison of Mrs Slade’s conversations to the amended defence discloses the following:
1. (a)
  In none of the conversations that she deposes to is there any evidence to sustain an oral agreement that the value of each of the one-third shares in the Farm would be $160,000, or an oral agreement that the amount to be paid was agreed on by reference to the market appraisal and the needs of the plaintiffs, as alleged in paragraph 6(c) of the amended defence.
2. (b)
  In none of those conversations is there any evidence to sustain an oral agreement that Mr Kelly’s right to reside was in lieu of a payment of $21,810.14 or any specific residual amount, as alleged in paragraphs 6(d)(iii) and (iv) of the amended defence.
[94]
In none of those conversations is there any evidence to sustain an oral agreement that the Slades would provide substantial financial assistance regarding Mr Kelly’s living expenses in return for the transfer of his interest, although the evidence of the conversation where Mrs Slade said she offered to assist Mr Kelly with his everyday expenses might be thought to be sufficient, in context, to raise that matter.
[95]
Mr Slade’s evidence does not remedy the failure to make good the allegations identified in paragraph [93] above though Mr Slade frankly conceded he was only involved in the two conversations he identified.
[96]
Neither party ultimately contended for their pleaded cases (such as they were) on the evidence at trial. However, neither side objected to the reformulation of the agreement contended for at trial by the other. Rather, each side relied upon the some of the inconsistencies identified above as providing a reason to prefer that side’s reformulated version of the agreement. Accordingly, the matter to be decided by the Court is whether the plaintiffs have made out the agreement that they contended for at trial as formulated in paragraph [3] above.^[5]

General observations about reliability of the witnesses

[97]
In my view, neither Mr Kelly, Mrs Kelly nor Mrs Slade were reliable historians.
[98]
Mr Kelly’s evidence was very vague. His evidence in chief dealt with the main points which he needed to prove, but his evidence lacked context and content. Further, Mr Kelly was at pains to point out from time to time that he was reliant first on his wife, and then on his daughter, to manage his financial affairs. He had little recollection of his financial or family dealings because of that reliance and because of his lack of interest in, or understanding of, his financial and personal affairs. A good example was his apparent lack of understanding of even basic matters relating to the financial problems arising with his son Graeme. His cross examination on his previous affidavit in the proceeding also disclosed, at the least, that he was prepared to adopt as correct statements which he did not seem to understand.
[99]
Mrs Kelly’s evidence was unpersuasive for a different reason. She struck me as a person very determined in her own views, whether correct or not. She certainly believed her evidence to be true, but there were a number of aspects in which her confident certainty was misplaced either because the evidence appeared mistaken or implausible. For example:
1. (a)
  While Mr Kelly said he listed the Farm in 2010 before Mrs Slade approached him but did not mention any, Mrs Kelly gave evidence of two inspections by buyers. The plaintiffs’ counsel disavowed any reliance on that evidence, but it was given with great confidence by Mrs Kelly.
2. (b)
  Another example is her determination to deny she had ever seen the Transfer before Mr Fraser had asked her anything about it. Although her later evidence clarified her position somewhat, it did not dispel the impression of her initial determined position to deny a proposition she thought wrong, even before she had heard the question.
3. (c)
  Similarly, she was quick to assert that she had never seen the transfer document by which Graeme’s share in the Farm was transferred from him to her in 2007, and maintained that she never understood that she was acquiring Graeme’s share, nor that the consideration for that acquisition was the amount on the transfer of $160,000. I find those propositions inherently improbable. At the least she must have had some role in instructing her solicitor as to the particulars in the transfer document but she was rigidly determined that she knew nothing about these matters.
4. (d)
  Perhaps most revealing was her certainty that she never saw anybody visit the Farm with Mrs Slade between September and November 2010. Asked about the visit by Mr Parker and Mr McKenzie, her response was that that never happened. It did happen, as was confirmed by Mr Parker, who also recalled meeting Mrs Kelly.
[100]
Mrs Slade’s evidence was also not compelling. Like Mr Kelly, her evidence was frequently vague as to what was said and when. When giving evidence about conversations, she tended to recount her impressions of how the participants felt, or to state conclusions she drew about the conversations, rather than the substance and effect of words used. While a degree of imprecision is understandable in a case like this, the role of the Court is to make findings about what was said and done rather than the subjective impressions which the parties hold about that matter.
[101]
I recognise that Mrs Slade, and indeed all the witnesses, were nervous (with the possible exception of Mrs Kelly). But even allowing for all those matters, Mrs Slade’s evidence was not such as to give me confidence as to its reliability. In evidence in chief on at least one occasion, she required a number of attempts to get to the important points. In cross examination she was vague and sometimes not responsive when pressed on doubtful areas of her evidence.
[102]
Added to those matters was the apparent errors in her evidence in chief exposed in cross examination. There were two areas in which she was decisively shown to have given unreliable evidence.
[103]
The first was her evidence to the effect that she paid for the ute repairs, holidays, canopy and car fridge. She accepted that there was no evidence of payment of any of these sums from the Slade’s accounts. She said however that the mode of payment involved reimbursing her father in cash for expenses he paid. Unfortunately she could not then credibly identify any source of such cash available to the Slades, especially as the amounts were substantial in some cases. Mrs Slade created her own problems with this evidence. Mr Kelly did not dispute that she might have made some or the payments alleged because he did not know enough about his financial affairs. While I accept that she probably did sometimes make the payments for her father, her evidence as to the payments allegedly made was exaggerated and not reliable, and I reject it.
[104]
The second was her evidence that she received a handwritten note of credit card debts from her father around the time of the Transfer showing the amount identified in the amended defence: $18,189.86. It was plain that that note was written in about 2008, as was demonstrated by the credit card statements tendered at trial (Exhibit 7). She was plainly wrong about this and the allegation that these amounts were paid was rightly abandoned at trial.
[105]
Mr Slade struck me as the most forthright and reliable of the parties. He did not seek to exaggerate his involvement in events and his version of the events he was involved in struck me as clear and credible.
[106]
While I found him generally to appear to give reliable evidence, it is plain to me that he has conducted this case based on his trust in his wife’s instructions. That cannot help but have the potential to influence his evidence to some degree.
[107]
I had no reason to doubt Mr Parker’s evidence so far as it went.
[108]
The above observations do not of themselves lead me to conclude that any of the parties’ evidence should necessarily be rejected in its entirety. However, it is grounds for caution in accepting evidence which is not corroborated in some manner by contemporaneous documents or which seems inherently implausible given other circumstances. It is those matters I now turn.

The key issue

[109]
As I have already observed, to succeed in this proceeding the onus is on the plaintiffs to establish the agreement alleged at trial. The central matter in that regard is that the plaintiffs establish that the defendants agreed to pay $510,000 (or $500,000) for the plaintiffs’ two-thirds shares in the Farm and agreed to pay $250,000 (or $240,000) for Mr Kelly’s share in particular.
[110]
The defendants do not have to establish that the parties entered into the different agreement that they ultimately alleged at trial, although the failure to establish that agreement might favour the plaintiffs case in at least two ways:
1. (a)
  Because the failure to make out the case alleged affects the credibility of the defendants’ denial of the plaintiffs’ allegations; and
2. (b)
  Because the absence of an agreement of the kind alleged by the defendant might make the plaintiffs’ case more probable because it might be thought unlikely that Mr Kelly would have transferred his interest without some agreement as to the quid pro quo for doing so.
[111]
The starting point is to analyse the evidence of the key conversations relied upon by the plaintiffs.

The circumstances of Mrs Kelly’s buy in

[112]
It is not in dispute that Mrs Kelly paid $260,000 when she bought into the Farm in 2007. It is not in dispute that Mrs Kelly did so because Mr Kelly’s son Graeme was in financial difficulty and owed money which was secured on the Farm in some manner. There is, however, a dispute as to how that payment should be characterised.
[113]
Mrs Slade said that she was told when Mrs Kelly bought in, that Mrs Kelly was paying $160,000 for the share in the Farm and paying another $100,000 to Mr Kelly to permit him to pay his own debts as an advance on his inheritance. She said this was raised again when Mr Kelly approached her to buy the Farm.
[114]
Mrs Kelly asserted that she paid $260,000 to buy into the Farm and rejected that there was any discussion or inheritance or anything similar. Mr Kelly, however, was much more equivocal on this in cross examination on the subject.
[115]
I find that when Mrs Kelly bought into the Farm, Mr Kelly did tell Mrs Slade that Mrs Kelly was paying $160,000 to buy into the Farm and giving him another $100,000 to pay his debts. That seems likely given the following reasons.
[116]
First, Exhibit 12 shows consideration for Mrs Kelly’s half share at $160,000. This is generally consistent with the consideration recorded in the transfer for Graeme’s half share at $150,000 (Exhibit 5). Although Mrs Kelly denied any recollection of that transfer, it is inherently improbable that her solicitor did not discuss the consideration for the transfer with her. I think at the time she would have been aware of what she was paying for the share in the Farm. If this is so, it is likely she would have considered that the additional $100,000 required by Gordon was not consideration for the Farm, but some kind of gift or advance to him.
[117]
Second, Mrs Kelly’s determination to reject any suggestion that she discussed the $100,000 as a separate advance or gift to Gordon might be genuine. However, it is understandable that over time she might have come to see the $260,000 she paid as being “for the Farm”, and to persuade herself that this was so.
[118]
Third, Mr Skoien suggested that the reference to the $100,000 as a loan rather than an advance on the inheritance told against the credibility of the overall assertion. I agree that the defendants have probably reconstructed the discussions with Mr Kelly and Mrs Kelly about the “inheritance” somewhat over time. However, this does not persuade me that there was not some kind of discussion in 2007, and again in 2010, of the kind described by the Slades.

Genesis of the Transfer and the first Gordon conversation

[119]
Central to the plaintiffs’ case is the first Gordon conversation. It appears to be the only direct evidence of conversations which could sustain the allegation of the Farm Purchase Agreement made in paragraphs 6 and 7 of the ASOC. It also has the added importance of occurring at the time the issue of the Transfer first arose. The circumstance in which that occurred is an important consideration in the weighing of each parties’ case.

Genesis of the Transfer

[120]
Mr Skoien submitted that the defendants’ case was implausible because Mr Kelly would not have transferred his sole significant asset for negligible consideration comprised in $20,000 and a right to continue to reside at the Farm. He emphasised that Mr Kelly already had the right to reside at the Farm and therefore he was receiving very little on the defendant’s case.
[121]
Mr Fraser for the defendants sought to answer that submission in the following manner. He submitted that the genesis of the transaction was that Mrs Kelly was determined to leave the Farm because she needed to assist her other son Michael and needed to get her full $260,000 back from Mr Kelly for that purpose.
[122]
He submitted that Mr Kelly was not able to get meet his mother’s demands without him selling the Farm, unless the Slades bought in and provided the money required by Mrs Kelly. As Mr Kelly wanted to remain on the Farm, and was content to rely on Mrs Slade to continue to take care of him as she had done, it was an acceptable outcome from him if the Slades bought the whole of both interests so long as they paid for Mrs Kelly’s share and gave him some “play money”. This secured his continued residence at the Farm.
[123]
It is therefore important to make findings about the genesis of the Transfer. I find in this regard that the genesis of the transaction was as alleged by the defendants. I find that:
1. (a)
  Mrs Kelly decided in about October 2010 that she needed to provide financial assistance to her son Michael and needed to recover money she paid in 2007 from Mr Kelly for that purpose;
2. (b)
  She asked Mr Kelly to take steps to make that money available;
3. (c)
  Mr Kelly then visited Mrs Slade in some distress late one evening and told her about Mrs Kelly’s demands and asked her to assist by buying into the Farm; and
4. (d)
  Mrs Slade agreed to ask Mr Slade about it.
[124]
I make those findings for the following reasons.
[125]
First, there was no evidence of steps by Mr Kelly to list the Farm for sale as he alleged, other than Mr Kelly’s evidence which was, like much of his evidence, lacking in any detail or context.
[126]
Second, there was a significant divergence between Mrs Kelly and Mr Kelly about when the prospect of Mrs Kelly going to live with Michael first came up. While Mrs Kelly, with characteristic inflexibility, asserted it did not come up till November 2010, Mr Kelly ultimately conceded in cross examination that he raised the fact that Mrs Kelly was going to live with Michael in conversation with Mrs Slade during their first conversation.
[127]
Further, it was uncontentious that Mrs Kelly needed considerable personal support, given her age and health issues. It was also uncontentious that she left the Farm with alacrity in mid-November, as soon as she was told that the Slades would pay her $260,000, and went to live with her son Michael. I think it implausible that an elderly person with health and support needs typical of her age would be able to suddenly change her living arrangements and move in with an adult son. I think it likely that there was discussions well before mid-November about that move. For this reason also I do not accept Mrs Kelly’s evidence on this matter.
[128]
Third, Mrs Slade’s version is confirmed in its particulars as to timing by Mr Slade. As I have said, I generally found Mr Slade’s evidence reliable. I found his evidence about this incident particularly credible. He described coming home after night shift and being told by Mrs Slade a version of the initial conversation which accords generally with the version that she gave. In particular, his evidence corroborates Mrs Slade’s evidence that Mr Kelly came to see her during the night while Mr Slade was at work on night shift.
[129]
I think that a significant point. That Mr Kelly came to see Mrs Slade late during the night is objectively consistent with the evidence that Mr Kelly was distressed and that this distress motivated him to come to his daughter’s house in the middle of the night. I do not accept he had any real intention to move. It is consistent with the need for the Slades’ assistance being forced onto him by circumstances of his mother’s demand for her money to be paid out and his wish not to leave the Farm.
[130]
Fourth, I found Mr Kelly’s evidence that he decided to sell the Farm because he wanted to move on to be unconvincing. He might well have toyed with the idea of doing so from time to time after 2007. However I was not persuaded by his evidence that it was a factor which caused him to put the Farm on the market. This is especially so as Mrs Slade was Mr Kelly’s primary financial and personal support from at least 2007, and he seemed to require such support from someone to manage his life. His other explanation was that he was tired of his children fighting about the Farm. While that might be so, it had not persuaded him to move before. I do not think it was a sufficient reason for him to leave the Farm.
[131]
Fifth, there seems little doubt that Mrs Slade was Mr Kelly’s only option if he was to pay out his mother and remain on the Farm. A sale of a half share in the Farm would not have been attractive to the general buying public and he made clear that at the time he considered that Mrs Slade was his only child who would or could be relied upon to assist.

Other aspects of the first conversation

[132]
The above findings do not necessarily lead to the conclusion that there was no discussion of, or agreement on, an acquisition of the whole Farm for $510,000 in the first conversation. Mr Kelly says that he offered the whole Farm to Mrs Slade for $510,000. Mrs Slade’s evidence is that Mr Kelly only asked her to buy out his mother with the figures of $160,000 and $100,000 mentioned.
[133]
It is possible that there was some discussion by Mr Kelly with Mrs Slade in this initial conversation about the possibility of the Slades buying the whole of the plaintiffs’ interests for $510,000 or perhaps $500,000. However, I find that if there was, it was of the most general kind and did not give rise to any agreement by Mrs Slade to buy the plaintiffs’ interests for that sum, or any acceptance of that sum as the basis for future bargaining. Mrs Slade’s evidence was that she left things on the basis that she would have to speak to Mr Slade. Mr Kelly’s evidence was that things were left on the basis that Mrs Slade went off to get finance. I prefer Mrs Slade’s version. I find that she would not have said anything at that time which committed Mr Slade to acquiring the Farm or any part of it without speaking to Mr Slade first. Further, if a specific sum of the kind alleged by Mr Kelly had been mentioned with any seriousness, Mrs Slade would almost certainly have mentioned it to her husband. There is no evidence that she ever did.
[134]
I should also mention here the evidence of the first Kathleen conversation. This conversation would confirm that there was discussion and agreement on the price at $510,000 and would deal with the other important question of why any of the parties thought that Mrs Slade should pay the whole value of the Farm. However, Mr Kelly gave no evidence which would correlate with that particular conversation and, as I have said, I found Mrs Kelly’s evidence to be unpersuasive. I am not persuaded that a conversation in those terms occurred.

The second Gordon conversation

[135]
It is convenient to look now at the second Gordon conversation.
[136]
Mr Kelly said the following:

Now, some time later did she speak to you again about the possible sale of the property?---Yeah. She couldn’t – she wanted to – they couldn’t get the 500,000 because of the – they had to sell [indistinct] first. And – but they get enough money to pay mum, and – but they [indistinct] she asked me can I wait two years? They wanted two years to fix up their Birt Road house and sell it to pay me. Yeah. And then I agreed to it. I said yeah. Okay. I’ve just – I’ve got to get a contract. I want it signed up – agreement signed up, and to – yeah. Yes. That’s what the discussion was over. Yeah. And she was going to see Debbie…^[6]

[137]
The first task is to try to identify when this conversation might have occurred. In my view, any such conversation probably occurred after Mr and Mrs Slade had finance approval notified, given that Mrs Slade is supposed to have said she “couldn’t get the 500,000”. Therefore, if this conversation occurred, it seems likely that this occurred in about early to mid-November 2010 because:
1. (a)
  Mr Parker was contacted by Mrs Slade in about mid-October;
2. (b)
  Thereafter Mr Parker and Mr McKenzie had to organise to visit the Farm;
3. (c)
  Mr Slade signed the authorisation for the valuations by Heritage in support of the application for finance on about 27 October 2010;
4. (d)
  Mr Slade signed the Mortgage Loan Application on 10 November 2010;
5. (e)
  The loan approval issued on 25 November 2010, but each of the Slades gave evidence that they were called and notified of approval prior to that time. I accept this evidence;
6. (f)
  Mrs Kelly left the Farm once she was assured she would be being paid her money and this occurred in mid-November.
[138]
The next point to note is that on Mrs Slade’s case, she had told her father that the Slades would not assist him unless they acquired the whole Farm. Thus although the evidence of the principal protagonists differs, it seems common ground that at the time of informal approval of finance, both parties understood that the Slades were only going to assist Mr Kelly if they acquired both his interest and Mrs Kelly’s interest.
[139]
The question, then, is whether Mrs Slade agreed at this time to do so on the basis of payment of $260,000 for Mrs Kelly and a balance of $250,000 (or $240,000) to Mr Kelly after two years when the Slade’s house was sold.
[140]
The Slades agree that there was a conversation with Mr Kelly at about the time he identifies, though their evidence as to the content of that conversation differed.
[141]
Mrs Slade referred to a visit to the Farm by her and Mr Slade after finance approval was notified. She gave evidence that on this occasion they had a conversation with her grandmother at which they told her that they had the finance to pay her $260,000 and that Mr Kelly would be able to stay at the Farm.
[142]
Mr Slade give similar evidence. He described what occurred in these terms:

And what conversations did you have with either of them about the purchase prior to this – this document – this loan approval?---Prior to this document, it would have been early-ish November that Vicki and myself went to see Gordon and Kathleen.

And Kathleen was told that she was right. She was getting the money. She – she could have her 260, which is the break-up of the two amounts. Yeah. And then that Gordon was free to stay there.

When you say Kathleen was told - - -?---Yes.

Who – who told Kathleen that?---That was Vicki and myself with Kathleen and Gordon both present.

And you referred to two amounts – 160 and 100?---Yes.

Can you tell his Honour what was actually said about those things?---Kathleen just needed the – the full amount that she’d purchased the farm and that she’d lent into the farm, which was 160 that she originally bought the place for and the extra 100,000 that she’d lent Gordon. And that – yeah. That she needed that back. We actually went out for – for lunch after it to the Carrollee.^[7]

[143]
I accept that a conversation of the kind alleged by Mr Slade occurred at about the time of informal notification of finance, although I have reservations about whether the separate identification of the $160,000 and the $100,000 was mentioned. It was corroborated in some degree by Mrs Slade, and it is consistent with the undoubted fact that Mrs Kelly left at that time, once she was satisfied she would get her money.
[144]
Now it can be seen that the Slades’ versions, even they are correct, are not necessarily inconsistent with the prospect of an earlierconversation between Mrs Slade and Mr Kelly in the terms of the second Gordon conversation:
1. (a)
  Mr Slade frankly conceded that prior to this time, the conversations were between his wife and his father in law. It is therefore open on his evidence to conclude that the conversation narrated by Mr Kelly with his daughter in fact occurred; and
2. (b)
  Mrs Slade’s version of this meeting was, like much of her evidence, more imprecise than Mr Slade’s evidence and in my view left open the possibility that the second Gordon conversation occurred.
[145]
However, it would be very unlikely that if there had been some earlier discussion or agreement about payment of $240,000 to Mr Kelly after two years, it would not have been mentioned in this later conversation with Mr Slade, or at some other later time.

The dealings with Heritage

[146]
It is also relevant to the assessment of the evidence of the second Gordon conversation to consider the dealings between the Slades and Heritage. Mr Fraser relied on these considerations as favouring his clients’ version.
[147]
I make the following findings about those dealings:
1. (a)
  The Slades told Mr Parker and Mr McKenzie that they were intending to move to the Farm and build a home on the Farm (as confirmed by Mr Parker); and
2. (b)
  Mrs Slade told Mr Parker that Mr Kelly was intending to remain on the Farm “for the remainder of his time” (as confirmed by Mr Parker).
[148]
Further, there is no evidence that the Slades sought sufficient finance to pay $500,000 (or indeed $510,000) for the Farm. The only evidence on the point shows that the Slades sought finance for $396,900.00. The genesis of that particular figure was never examined at trial. It was never suggested to either of the Slades that they had sought sufficient finance to pay the amount alleged by Mr Kelly.
[149]
Those findings are not consistent with Mrs Slade having sought sufficient finance to pay out her father, then being forced to seek his indulgence on payment because finance was unavailable, and provide some evidence favouring Mrs Slade’s denial that she ever asked her father to agree to those conditions.
[150]
I do note that Mr Parker’s evidence that Mrs Slade told him that Mr Kelly was intending to stay at the Farm for the remainder of his time is hearsay evidence as evidence of Mr Kelly’s intention. It is, however, evidence of Mrs Slade’s state of mind at the time. It is consistent with her story as to her discussions with her father up to that point. It provides some objective support for her account.

Conclusion on the second Gordon conversation

[151]
I am not persuaded that the second Gordon conversation occurred as Mr Kelly alleged.

The third Gordon conversation

[152]
In this conversation, Mr Kelly said that Mrs Slade asked him how much money he would need to get by and she offered him $40,000 to which he agreed so “he could start moving on”. He said Mr Slade was not present for this conversation. As with all of Mr Kelly’s evidence, this conversation was presented without any context.
[153]
However, in this case the Slades each gave evidence of a similar conversation. They both gave evidence of a conversation with Mr Kelly after Mrs Kelly left the Farm in which they offered to pay Mr Kelly $20,000 and assured him that he could continue to live on the Farm and that they would continue to assist him.
[154]
As to this conversation, I prefer the Slades’ version. I do so for the following reasons:
1. (a)
  First, as I have said, Mr Slade’s evidence struck me as generally reliable;
2. (b)
  Second, subsequent events are consistent with the Slades’ version: they did pay $20,000, not $40,000. They did continue to assist Mr Kelly until he left the Farm;
3. (c)
  Third, I do not think Mrs Slade’s erroneous evidence about payment of credit card amounts tends to impugn Mr Slade’s evidence on this conversation;
4. (d)
  Fourth, if Mr Kelly was thinking of starting to move on, he did nothing about it until September 2012.
[155]
Once again, there is the possibility that Mr Kelly might have had the conversation he alleges with Mrs Slade in Mr Slade’s absence, but again it seems very unlikely to me that he would not have mentioned the matter in Mr Slade’s presence when $20,000 was discussed instead.
[156]
I am not persuaded that the third Gordon conversation occurred as the plaintiffs allege.

The second Kathleen conversation and the circumstances of the execution of the Transfer

[157]
Given the lack of particularisation of the pleadings, it could be open to the plaintiffs to rely on Mrs Kelly’s evidence to make out the contract alleged, though that position was not adopted at trial. To be clear, I do not consider that the conversations to which she swore can sustain the plaintiffs’ case.
[158]
I have already observed in paragraph [99] that I found her evidence to be generally unpersuasive.
[159]
I have dealt with the first Kathleen conversation in paragraph [47] and [134] above. As I find there, I do not accept that a conversation in those terms occurred.
[160]
As to the second Kathleen conversation, it raises issues surrounding the execution of the Transfer. The parties’ evidence was diametrically opposed in this regard and this is a convenient point to deal with these issues.
[161]
To recap, the plaintiffs’ evidence was to the following effect:
1. (a)
  The Transfer was signed at the Farm before Mrs Kelly left;
2. (b)
  All four of the parties were present and Trudy Kelly was not; and
3. (c)
  Mrs Slade concealed the consideration on the Transfer from Mrs Kelly for the purpose, they suggested, of concealing that it was $500,000 not $510,000.
[162]
Mrs Kelly also said that at execution, the second Kathleen conversation occurred.
[163]
The defendants’ evidence contradicted each of these matters. They each gave evidence that the Transfer was signed at the Farm after Mrs Kelly left and that only Mr Kelly and the Slades were present along with Trudy Kelly when it was executed. Mrs Slade said Mrs Kelly signed the Transfer the next day in Kingaroy. The consequence of accepting that evidence is that I would reject the evidence of the alleged concealment and of the alleged second Kathleen conversation.
[164]
I find that the Transfer was signed at the Farm after Mrs Kelly left. I therefore reject Mrs Kelly’s evidence as to what was said on that occasion. I also reject the evidence as to the alleged concealing of the consideration. I reach that finding for the following reasons.
[165]
First, the formal loan approval was not sent until 25 November 2010. I think it highly unlikely that the solicitor would have prepared the Transfer before that occurred. Further, while the signing dates might not have been precisely the dates recorded on the document, I do not see any reason to assume that the Transfer was signed by the parties at a materially earlier time than the date recorded. Those objective indicators of the likely timing of the execution of the Transfer are consistent with it being signed after Mrs Kelly had left the Farm.
[166]
Second, Mr Slade’s evidence was that the signing occurred after Mrs Kelly left. As I have said, I generally consider his evidence to be reliable.

The $510,000 allegation

[167]
Third, I find the allegation of Mrs Slade hiding the consideration figure from Mrs Kelly inherently implausible. The concealment allegation turns on Mr and Mrs Kelly’s evidence that Mrs Slade agreed to pay a price of $510,000 (rather than $500,000) for their shares in the Farm.
[168]
However, evenMr Kelly’s evidence relating to the consideration was inconsistent. His initial evidence of the first Gordon conversation was that the sum allegedly agreed was $500,000. He later corrected that to $510,000. However, his evidence thereafter focused on the sum of $500,000 and importantly, his evidence of the second Gordon conversation was that Mrs Slade said “they couldn’t get the 500,000 because of the – they had to sell [indistinct] first”. He also said in evidence in chief that he could not say how he had come up with the $510,000 figure and I note there was no evidence of any advice on value at that time.
[169]
Further, the idea that Mrs Slade would go to the trouble of concealing that the consideration was $10,000 less than agreed is inherently implausible, especially as it is evident that Mr Kelly, even on his own case, was pretty flexible about the terms upon which payment for his share would be made.
[170]
In my view, the idea that the amount discussed was $510,000 has become a fixed idea for the Kellys which has influenced their recollection.

Summary on the plaintiffs’ positive case

[171]
For these reasons, I am not persuaded that the plaintiffs have established an agreement by the Slades with the Kellys which included a term that the Slades pay $240,000 to Mr Kelly for his one-third share of the Farm. There are however some other matters which should be considered, some of which favour the Slades’ version, and others of which favour the Kellys’ version.

Why would the defendants pay full price?

[172]
Mr Fraser contended that his clients’ version was rendered more credible because it was implausible that the Slades would agree to pay the market value of the Farm in circumstances where Mrs Slade already owned a one-third share.
[173]
Mr Skoien in response pointed out that the one-third share was gifted to Mrs Slade so as to protect Mrs Kelly’s position if Mr Kelly died, from the potential pressures on her from his other children. Further, there was evidence (including in the first Kathleen conversation) that Mrs Slade offered to pay full price to avoid disputes with her siblings over the Farm. Finally, Mr Skoien also pointed to the fact that recognition of the value of Mrs Slade’s share would have undermined Mr Kelly’s alleged wishes that his children benefit equally from the Farm.
[174]
The evidence does not compel any clear resolution of this question in favour of either party.
[175]
As to the basis upon which Mrs Slade was granted her share, there is conflicting evidence. She herself accepted that the purpose of the gift to her was to provide some protection for Mrs Kelly if Mr Kelly died, and the timing of the gift is consistent with that. Mr Kelly also gave evidence of that purpose. However, Mr Kelly also appeared to concede that a reason for the gift was a reward for Mrs Slade’s assistance to him. He said in cross examination:

That Lisa was providing the same amount of assistance as Vicki was?No, no, because Vicki was part of the farm by then, and those – she’d help me with mum. And yeah, that was – that was the deal. That was part of the deal of her getting on the share – shares. She was and she did. She was part of the farm anyway, so

So do you agree that Vicki provided far more assistance to you between the end of 2007 and April 2010 ? Well, yep, yeah.

than ?If you added all the kids, probably the most, yeah. She probably did the most, yeah.^[8]

[176]
There is uncontested evidence that Mrs Slade’s support for him entirely justified his view. Mrs Slade did not give this evidence, however, so on the point of purpose of the gift, I find that Mrs Slade’s state of mind was as she stated. This makes it plausible that she might ignore her share in reaching agreement on price.
[177]
On the other hand, the evidence of Mr Kelly tends to support the view that he might not have thought that Mrs Slade should have to pay full market price for the Farm, given the assistance she had given. Further, although Mr Kelly said that he intended the children to share equally, that was inconsistent with the sentiments in his letter to his children written in 2008 in which he stated that Mrs Slade was to inherit the Farm.
[178]
Finally, there is the evidence in the second Kathleen conversation that Mrs Slade said she wished to pay full price to prevent arguments with her siblings. On the evidence of the family disputes about the Farm, that sounds credible. However, Mrs Slade was not in the financial position to make such gestures without difficulty and I think it unlikely she would have done so in this case. In any event, I have already found that I do not accept this conversation occurred as alleged.
[179]
Looked at overall, I do not think the fact that Mrs Slade already had a one-third share is particularly persuasive either way in determining whether the plaintiffs’ alleged agreement was reached.

The terms of the Transfer and Stamp Duty declaration

[180]
Mr Skoien’s submission on the Transfer and the stamp duty declaration was to this effect. The defendants deny they ever agreed to pay $500,000 for the plaintiffs’ shares of the Farm. However, they signed a Transfer showing $500,000 as the consideration which was, he said, inconsistent with that position. He also taxed Mr Slade with a stamp duty declaration signed by him (Exhibit 23) which he submitted should be construed as accepting that the share of the plaintiffs were transferred for a consideration of $500,000. Finally, he submitted that the amount of $500,000 was unable to be explained.
[181]
These matters do not in my view impugn the defendant’s denial of the alleged agreement:
1. (a)
  The source of the sum of $500,000 was said by the defendants to have been the informal valuation given by Mr Wain. I see no basis to reject that evidence, especially given that the later written advice from Mr Wain confirmed it;
2. (b)
  It is unremarkable that the defendants, on their case, signed a Transfer identifying $500,000 as the consideration. The Transfer on its face identifies that as being the sum for the transfer from the three tenants in common to the two joint tenants; and
3. (c)
  Finally, I could not read the stamp duty declaration as communicating that consideration for the plaintiffs’ shares was $500,000, much less that it demonstrated a subjective understanding by Mr Slade that that was the price he and Mrs Slade were to pay. In fact as I read it, it reflected that stamp duty was payable only on the part of the consideration referable to the share of the Farm being transferred. No evidence was led as to the basis upon which the stamp duty amount shown on the stamped Transfer was calculated.
[182]
Mr Skoien also relied on the Mortgage Loan Application as impugning the defendants’ denial of the agreement to pay $500,000. He focused on the fact that that document answered the question “Who will occupy the subject dwelling”, with work “Borrowers”. I do not find this to be evidence unequivocally favouring the plaintiffs’ version. It is also generally consistent with the defendants’ version of events once it is recognised that they intended to build their own house on the Farm. That matter was confirmed by Mr Parker and I accept it to be true.

The alleged consistency of the plaintiffs’ case

[183]
As to the first matter, Mr Skoien pointed to the fact that subject to one exception, the case taken to trial by the plaintiffs had remained consistent.
[184]
The exception was that Mr Kelly initially alleged he had not been paid any money by the Slades but later amended to accept he had been paid $20,000. Mr Fraser cross examined Mr Kelly as to this matter, suggesting it went to his credit. Mr Kelly explained that he was generally vague as to his financial affairs and was unaware of the payment. I accept that he had little understanding of his financial affairs from time to time, relying on his wife then his daughter. I do not find this point a particularly persuasive one on his credit.
[185]
It should be noted, however, that the evidence given by Mr Kelly and the position ultimately taken in addresses did differ somewhat from the pleaded case as I have already outlined. Further, the lack of particulars of the pleaded case make the alleged consistency less compelling. It is not so difficult to remain consistent with a very generally pleaded case.

Alleged listing of the Farm for sale in August 2012

[186]
Mr Skoien contended that the defendants’ position that they agreed with Mr Kelly that he could live on the Farm for the rest of his life was inconsistent with their subsequent conduct in seeking to sell the Farm. He submits that I should find that the so-called PriceFinder listing records for the Farm (Exhibit 22) show that one of the owners of the Farm placed the Farm on the market for sale at least three times after 2010, particularly in August 2012 when Mr Kelly was still on the Farm and Mr and Mrs Slade were the owners.
[187]
Mr Skoien relied particularly on the entry in the PriceFinder records for August 2012. He suggested to Mrs Slade that the PriceFinder documents showed that she must have listed the Farm for sale on that occasion.
[188]
Mrs Slade gave evidence to the effect that entries in the PriceFinder database were made in-house at a particular agency when an owner made an inquiry about selling, rather than when they listed it for sale by executing the relevant appointment document. She said that once such an inquiry was received, the program created a page for the property and automatically filled in certain particulars. She said that the entry only became “live” or was “published”, when the property in question was formally listed for sale by execution of the relevant document appointing the agent to sell. She also gave evidence that the only time she had listed the Farm for sale was in March 2016, after this matter had been commenced and Mr Kelly had been resident in Darwin with his new wife for some time.
[189]
Mr Skoien necessarily relies on this evidence for the purpose of establishing that the agreement between the parties was on the terms his clients allege, the submission being that the conduct of listing the Farm for sale while Mr Kelly was resident on the Farm is inconsistent with the defendants’ version of the agreement and in particular, that they agreed that Mr Kelly would have the right to reside there for as long as he wished.
[190]
However, the evidence, even if accepted, is equally inconsistent with the plaintiffs’ version: i.e. that Mr Kelly was entitled to reside on the Farm rent free for two years pending sale of the Slade’s residence and payment of the balance of the price. That is so because on the plaintiffs’ case, Mrs Slade had no business listing the property for sale in August 2012, some months before the expiry of the 2 year period of the alleged agreement. The conduct therefore does not unequivocally point to an agreement on the terms advanced by the plaintiffs.
[191]
In any event, I am not satisfied that the PriceFinder documents support any finding that Mr or Mrs Slade listed the Farm for sale in August 2012. Although the first print out was tendered and explained by Mrs Slade in evidence in chief on the basis that she was familiar with the database and its operation, it was obvious to me in the course of both her examination in chief and cross examination that Mrs Slade did not fully understand how the PriceFinder system worked.
[192]
Further, the print-outs of various pages of the PriceFinder system were ambiguous on their face. Ultimately, the only fact which seemed clear was that the Farm had been listed for sale for in March 2016, a matter readily conceded by Mrs Slade.

Exhibit 4 and exhibit 14

[193]
These two documents were understandably relied upon heavily by the plaintiffs.
[194]
It is not alleged in the ASOC that either document comprises part of the agreement alleged. Further, despite the lack of particulars of the alleged agreement in the ASOC, it is not open to rely upon them as contractual documents because it is evident from the positive allegations in the ASOC that the alleged agreement was made prior to the execution of the Transfer. Exhibits 4 and 14 came into existence after that time. Accordingly, Exhibits 4 and 14 comprise post contractual documents and their preparation and adoption by the parties comprises post-contractual conduct. How can that conduct properly be used?
[195]
Cases dealing with the impermissible use of subsequent conduct to construe a formal contract^[9]are irrelevant in this proceeding. In the case of an informal agreement of the kind here alleged, the subsequent conduct comprised in Exhibits 4 and 14 might be used:
1. (a)
  As an admission, express or implied, of the terms of the informal agreement alleged by the plaintiffs^[10]; and/or
2. (b)
  To found an inference that that the parties made an informal agreement on particular terms.^[11]
[196]
I intend to deal with those exhibits as potential admissions, rather than evidence from which an informal agreement on particular terms is to be inferred. I do so because in Brice v Chambers [2014] QCA 310, Muir JA (with whom Philippides and Henry JJ agreed) observed as follows:

[103]Whether or not the parties reached agreement and the terms of the agreement had to be made by reference to the relevant conversations: it was not pleaded that the agreement was one made by or inferred from conduct. The primary judge erred in not making findings about what was said during the August 2007 telephone conversations and as to the agreement, if any, that was reached during those conversations. Once this was done, the primary judge was entitled to have regard to the subsequent conduct of the parties in order to determine whether or not they intended to be contractually bound by any agreement they had reached.⁷³

[104] Authorities which conclude that subsequent conduct may be used to found an inference that the parties made an agreement of particular terms have been decided in circumstances where there is no direct evidence of the agreement.⁷⁴(Foonotes omitted)

[197]
Lym International Pty Ltd v Marcolongo[2011] NSWCA 303 was included in the cases cited in footnote 74. I infer that his Honour was referring to the passage identified in footnote 11 above.
[198]
In this case, the plaintiffs do not in my view seek to advance a case of a contract inferred from conduct (with the exception of the variation of the price from $510,000 to $500,000). Rather, the case as advanced in submissions^[12]appears to rely on the oral statements testified to by Mr Kelly and, perhaps, Mrs Kelly. It does not seem to me that these circumstances engage the circumstance contemplated by Muir JA. However, given that there are no complexities about admissions not being admissible against relevant parties (of the kind contemplated in Lym), it probably makes little different which approach is adopted.
[199]
I now turn to consider the documents themselves. In doing so it is necessary to bear in mind the comments of Gleeson CJ in Dovuro v Wilkins(2003) 215 CLR 317 at [25]:

I agree with what is said by GummowJ as to the care that needs to be taken in identifying the precise significance of admissions, especially when made by someone who has a private or commercial reason to seek to retain the goodwill of the person or persons to whom the admissions are made. Common sense may dictate that they be used with caution by a fact-finder. And it is always necessary for the fact-finder to consider precisely what it is that is being admitted. If the driver of a motor vehicle says to an injured passenger: “I am sorry, I let you down”, that may not mean much, or anything. If the driver says: “I am sorry, I was going too fast”, that may be very significant. The statement that the appellant “[failed] in its duty of care to inform growers as to the presence of these weed seeds” cannot be an admission of law, and it is not useful as an admission of failure to comply with a legal standard of conduct. There is no evidence that the author of the statement knew the legal standard.

[200]
In this case, context is of particular importance. The plaintiffs relied primarily on the first sentence of the third paragraph in Exhibit 4: “A sum of $240,000 is to be paid to Gordon James Kelly for his share”. Both defendants ultimately accepted in cross examination that that sentence, on their case, was literally false.
[201]
There are other aspects of Exhibit 4 which arguably favour the plaintiffs:
1. (a)
  Paragraph 1 could be read as an admission that the Slades agreed to pay $500,000 for the Farm.
2. (b)
  Paragraph 4, looked at in isolation, appears to constitute this document as the agreement between the parties.
[202]
Taken together, those paragraphs could be characterised as an admission by each of the Slades that they had promised to pay Mr Kelly $540,000 for his one-third share of the Farm. But should they be so characterised?
[203]
This requires a careful consideration of the context and purpose for which the document was produced. In that regard, I find as follows.
1. (a)
  First, the document was not voluntarily produced by Mrs Slade for the purpose of documenting her agreement with her father. Rather it was produced in a hurry on the eve of the Transfer to satisfy the demands of Heritage.
2. (b)
  Second, Mrs Slade was told by someone at Heritage that they needed a document which dealt with the whole of the consideration. Further, while it seems likely to me that Mrs Slade was told such a document was required so that Heritage had a copy of the contract (as contemplated by the letter of offer at paragraph 10, point 5) I do not think Mrs Slade had a mature understanding of what that meant as a matter of law. She struck me as being fairly unsophisticated. Paragraph 4, for example, fails to identify Mrs Kelly as a party to the written agreement. Further despite the involvement of the Slades’ solicitors in sending Exhibit 14, it was not suggested to Mrs Slade that she sought or received any legal advice about the terms of that document or Exhibit 4.
3. (c)
  Third, I find that the document was prepared in haste.
4. (d)
  Fourth, while the Slades were cross examined critically about the fact that the document deceived Heritage, I do not accept that it reflects dishonesty. The document was said by Mrs Slade to be something Heritage needed to complete the Transfer. It did not affect how the loan funds were disbursed. Nor was there any evidence that the text of the agreement was apt to otherwise obtain any benefit for the Slades to the detriment of Heritage or anyone else.
[204]
Given those matters, and notwithstanding his concession in cross examination that the first sentence of paragraph 3 was literally false on his case, I accept Mr Slade’s evidence that he never said to Mr Kelly that he would pay him $240,000 for his share. It was evident from Mr Slade’s evidence that he left the formalities of this deal to his wife. I infer that he signed it because she asked him to do so.
[205]
That leaves Mrs Slade. The plaintiffs undoubtedly would contend that despite all of the above, the fact that she wrote the first sentence in paragraph 3 is an admission which sustains the plaintiffs’ case. I disagree.
[206]
First, while the wording seems to support the plaintiffs, I do not consider it unequivocally does so. I note that following the first sentence comes the word “BUT” in capitals. It is open to read paragraph 3 as communicating that even though $240,000 is agreed to be paid, in fact only $20,000 will be paid. This is particularly so given my findings as to the time pressure under which the document was produced and lack of sophistication of Mrs Slade.
[207]
Second, Mrs Slade says she put that sentence in so that the total matched the consideration, as Heritage demanded, and that it would have been too complicated to put in the whole story. Although I generally have reservations about the reliability of Mrs Slade’s evidence, I accept that evidence. I do so because of the matters of context identified above but also because of the findings made in the course of these reasons, particularly as to the key conversations relied upon by the plaintiffs.
[208]
Bearing those matters in mind, I do not think the first or fourth paragraphs take the matter any further. The first paragraph is explicable as a shorthand way of describing the transaction. The fourth is consistent with the inclusion of words required by Heritage but not fully understood by Mrs Slade or intended by Mrs Slade, to comprise a binding and precise statement of an agreement with her father.
[209]
Given those conclusions, Exhibit 14 does not take matters much further for the plaintiffs as an admission supporting their case.

Inconsistency alleged in the defendants’ case

[210]
Mr Skoien also relied strongly on the inconsistency of the defendants’ pleaded case over time, both internally and with the case as ultimately advanced as trial, as tending to impugn the reliability of the defendants’ version.
[211]
It is correct to say that there are inconsistencies between the original defence and the amended defence, some of which suggest more than the ordinary clarification of instructions over the course of the proceedings which one might expect. For example, the original defence alleged that the defendants agreed to pay $260,000 so Mrs Kelly could move into a nursing home. That was deleted from the amended defence and never suggested in evidence at trial. The pleading in the amended defence raises the alleged agreement to pay the two amounts: $160,000 for the share in the Farm and $100,000 being a loan by Mrs Kelly to Mr Kelly. The evidence of course was that the $100,000 was said to be an inheritance.
[212]
More significant perhaps was Mr Skoien’s submission that the case introduced in the amended defence based on the proposition that the parties agreed that each one-third share was worth $160,000 was a reconstruction by the defendants. Based on the evidence at trial, that is a fair criticism of the pleading. That makes it difficult to conclude that the agreement as alleged by the defendants in the amended defence was ever reached. However, the defendants did not maintain that case in evidence nor in submissions at trial.
[213]
These inconsistencies in the pleading and the case taken to trail do not persuade me that the plaintiffs’ positive case has been established, bearing in mind the other findings and conclusions in these reasons.

Conclusion

[214]
My conclusion is that the plaintiffs have not made out that there was a binding agreement by the defendants to pay $240,000 to Mr Kelly for Mr Kelly’s one-third share in the Farm.
[215]
I do find that there was an understanding between Mr Kelly and the Slades that Mr Kelly would receive $20,000, would be free to live at the Farm as long as he wanted and would continue to be supported and cared for by Mrs Slade as she had been doing more or less since her mother died in return for the Transfer of his share. I also find that that understanding was valuable to Mr Kelly because he was not able to imagine managing without that kind of on-going support from someone, and his preference was that his daughter provide it.
[216]
Whether that understanding was a binding agreement on sufficiently certain terms is not a matter I have to decide. It was submitted by Mr Skoien for the plaintiffs that the pleadings required me to decide between the two agreements contended for, and that if I did not accept the version contended for by the defendants, that I should accept the case advanced by the plaintiffs. I do not accept that proposition. It was the plaintiffs to make out the agreement they alleged. They failed to do so.
[217]
There was an attempt at pleading a restitutionary claim by the plaintiffs. However, as I read the ASOC, the factor which seemed to be relied upon as giving rise to the entitlement to restitution was the failure to pay the $220,000 due under the agreement alleged by the plaintiffs. I could identify no matters pleaded in the ASOC which could give rise to an entitlement to a restitutionary remedy as an alternative cause of action if the agreement alleged was not established (see paragraph 21 of the ASOC), nor was one identified in submissions.
[218]
Finally, the defendants had a counterclaim in the proceedings. It was abandoned by the defendants’ counsel at the start of the trial.
[219]
Accordingly, I dismiss the claim and counterclaim.
[220]
I will hear the parties as to costs.

Footnotes

[1] See paragraph [175] below.

[2] See paragraph [175] below.

[3] T 2-72, L 44-46.

[4] T 2-73, L 3-6.

[5] See paragraphs 8 to 13 of the plaintiffs’ written submissions at trial.

[6] T 1-28 L 31-38.

[7] T 3-87 L 26-44.

[8] T 1-46 L13-22.

[9] See L Schuler AG v Wickman Machine Tool Sales Ltd [1974] AC 235; Winks v WH Heck & Sons Pty Ltd [1986] 1 Qd R 226 at 238 per Thomas J; Fraser v The Irish Restaurant & Bar Company P/L [2008] QCA 270 at [9].

[10] See Tomko v Palasty [2007] NSWCA 258 at [13]-[14] and [68] (admission as to the identity of a party to a contract); Lym International Pty Ltd v Marcolongo [2011] NSWCA 303 at [122] to [134].

[11] See Lym International Pty Ltd v Marcolongo [2011] NSWCA 303 at [136] to [145]; Brice v Chambers [2014] QCA 310 at [103] to [104]; and see the various examples cited in Winks v WH Heck & Sons Pty ltd [1986] 1 Qd R 226 at 238 per Thomas J.

[12] See in particular paragraphs 16 to 19 of the plaintiffs’ written submissions at trial.

DISTRICT COURT OF QUEENSLAND

CITATION:	Kelly & Anor v Slade & Anor [2017] QDC 288
PARTIES:	GORDAN JAMES KELLY (First Plaintiff) KATHLEEN MARY KELLY (Second Plaintiff)
	AND
	VICKI LEE SLADE (First Defendant) DANNY ALEXANDER SLADE (Second Defendant)
FILE NO/S:	DC No 1634 of 2015
DIVISION:	Civil
PROCEEDING:	Trial
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	7 December 2017
DELIVERED AT:	Brisbane
HEARING DATE:	13 – 16 November 2017
JUDGE:	Porter QC DCJ
ORDER:	The plaintiffs’ claim is dismissed. The defendants’ counterclaim is dismissed.
CATCHWORDS:	MONEY – PAYMENT – OTHER MATTERS – where the plaintiffs transferred their respective interests in the farm to the defendants as joint tenants – where the terms upon which that transfer occurred were in dispute – whether the defendants agreed to pay $250,000 for the first plaintiff’s share. EVIDENCE – ADMISSIBILITY – ADMISSIONS – WHAT CONSTITUTES – where there is evidence of subsequent conduct – whether that subsequent conduct is properly dealt with as an admission of the terms of the informal agreement alleged by the plaintiffs – whether that subsequent conduct is properly dealt with as an inference that the parties made an informal agreement on particular terms. Legislation Property Law Act 1974(Qld) s 59 Cases Brice v Chambers [2014] QCA 310 Dovuro v Wilkins (2003) 215 CLR 317 Fraser v The Irish Restaurant & Bar Company P/L [2008] QCA 270 L Schuler AG v Wickman Machine Tool Sales Ltd [1974] AC 235 Lym International Pty Ltd v Marcolongo[2011] NSWCA 303 Tomko v Palasty [2007] NSWCA 258 Winks v WH Heck & Sons Pty Ltd [1986] 1 Qd R 226
COUNSEL:	A Skoien and H Knowlman for the plaintiffs A Fraser and J Kenny for the defendants
SOLICITORS:	Blue Ocean Law Group for the plaintiffs BR Solicitors for the defendants

Introduction

[1]
From April 2010, the plaintiffs, Mr Kelly and his mother, Mrs Kelly, owned a farming property in equal one-third shares with the first defendant Mrs Slade, who is their daughter and granddaughter respectively. In late 2010, the Kellys’ transferred their respective interests in the farm to Mrs Slade and her husband (the second defendant) as joint tenants. The principal issue to be resolved in this trial is as to the terms upon which that transfer occurred.
[2]
The parties concur that the Slades agreed to pay $260,000 to Mrs Kelly in consideration of the transfer, and it is not disputed that they did so.
[3]
The Kellys ultimately contended that the Slades also agreed:
1. (a)
  To pay a total of $250,000 (later varied to $240,000) for Mr Kelly’s share as follows:
  1. The Slades would pay$20,000 at settlement;
  2. The Slades would pay $20,000 off his credit card debts at or about settlement;
  3. The Slades would pay the balance of $200,000 within 2 years; and
2. (b)
  Pending that payment, Mr Kelly would not charge interest but could live on the farm rent free and without paying utilities.
[4]
The Slades, on the other hand, ultimately contended that they also agreed that for Mr Kelly’s share they would:
1. (a)
  Pay $20,000 at settlement to Mr Kelly;
2. (b)
  Permit him to reside on the Farm for as long as he wished; and
3. (c)
  Continue to assist him as they had done in the past.
[5]
I used the word “ultimately” because the final position at trial of both the Kellys and the Slades differed from their pleaded cases.
[6]
It is not in dispute that the Slades paid Mr Kelly $20,000 at settlement. The central issue in dispute is whether they had also promised to pay him a total of $240,000, such that $220,000 is still owing. For the reasons which follow, I have concluded that no such agreement was reached.

Background

[7]
Mr Kelly and his wife Narelle had four children: Wayne, Graeme, Vicki (Mrs Slade) and Lisa. In about 1994, Mr Kelly and his wife acquired a property at 99 Borcharts Road, Kingaroy (the Farm). The Farm had some irrigated and some dry land farming, along with some pasture.
[8]
The Farm was not the family home while Mr Kelly’s children grew up. They were adults when it was acquired. Despite that, Mr Kelly’s children were involved with the Farm from time to time.
[9]
In about 2007, Mr Kelly’s wife Narelle died. Prior to that time, Mr Kelly had very little involvement in the family accounts or his own financial affairs. He said he would give his wages to his wife and she would manage the financial affairs of the family. On her death, he discovered that he was facing significant financial problems of which he had been unaware:
1. (a)
  First,Mr Kelly’s son Graeme had become the owner of a half share in the Farm with his parents in February 2006. That share was transferred for $150,000. By about mid-2007, Mr Kelly discovered that Graeme had not been meeting payments on a debt secured by a mortgage of the Farm (and/or perhaps guaranteed by Mr Kelly) and that the mortgagee bank was threatening to sell the Farm.
2. (b)
  Second,Mr Kelly discovered that he had significant personal debts totalling about $100,000, including debts on credit cards.
[10]
Mr Kelly approached his mother for help. She agreed to help. It is uncontentious that Mrs Kelly paid $260,000 to assist with Mr Kelly’s financial problems and that in return, she received a transfer of Graeme’s half share in the Farm. The character of the payment is in dispute:
1. (a)
  Mr and Mrs Kelly gave evidence that Mrs Kelly agreed to pay $260,000 in return for the transfer of Graeme’s half share in the Farm.
2. (b)
  Mrs Slade gave evidence that she was told by her father and her grandmother that the payment comprised two components:
  1. A payment of $160,000 to acquire Graeme’s share in the Farm; and
  2. A payment of $100,000 by way of an advance on Mr Kelly’s inheritance from Mrs Kelly. (Mrs Kelly had sold her own property at about this time.)
[11]
Mrs Kelly acquired a half share in the Farm from Graeme and moved into the house on the Farm with Mr Kelly in about September 2007. After that acquisition, Mrs Kelly and Mr Kelly were tenants in common in equal shares in the Farm.
[12]
Mrs Kelly continued to live at the Farm with Mr Kelly until about November 2010.
[13]
Over that period, Mrs Slade provided extensive personal support to Mr and Mrs Kelly. As to Mr Kelly, she took care of his finances for him including doing his banking. Mrs Slade also did household chores, and arranged medical appointments, did his shopping, took him clothes shopping and so on. It is evident that Mr Kelly required such assistance following the death of his wife. He appeared to have had little experience in caring for himself either financially or in maintaining a household.
[14]
As to Mrs Kelly, Mrs Slade also provided similar domestic support. She assisted with medical appointments, errands like hair-dressing appointments and provided personal support including taking Mrs Kelly to hospital for surgery in Toowoomba.
[15]
The plaintiffs each accepted that Mrs Slade alone of Mr Kelly’s children provided this assistance, though Mr Kelly’s other daughter Lisa helped out a little around the time of Narelle’s death.
[16]
In about 2008, Mr Kelly wrote a handwritten statement of wishes addressed to his children stating, relevantly, that Vicki was to have the Farm after he and his mother had passed away. It is evident from this letter that, at least at that time, Mr Kelly intended retaining the Farm until he died.
[17]
Subsequently, in April 2010, Mr Kelly and Mrs Kelly transferred a one-third share in the Farm to Vicki. The reasons for that are not entirely clear though it is agreed that the transfer was Mr Kelly’s idea and was done by him, at least in part, to protect Mrs Kelly against demands on the Farm by Mr Kelly’s other children if he died.^[1]
[18]
In about September 2010, discussions about the sale of the Farm began between Mr Kelly and his daughter. The genesis and content of those discussions is hotly contested.
[19]
However, the parties do agree that between about September 2010 and November 2010, there were discussions, primarily between Mr Kelly and Mrs Slade, about the acquisition of the whole Farm by the Slades. It is also agreed that during those discussions, the Slades agreed to pay $260,000 to Mrs Kelly and $20,000 at settlement to Mr Kelly for the transfer of the plaintiffs’ shares in the Farm. The content of those discussions, and whether they gave rise to a binding agreement between the parties that the Slades would pay Mr Kelly a further $220,000 for the transfer of the plaintiffs’ shares in the Farm, are the central issues in the trial.
[20]
During that period, the Slades sought finance from the Heritage Building Society (Heritage) to acquire the Farm. In mid-November 2010, Heritage informally notified approved finance for $306,000. That approval required a capital reduction of $55,000 within 6 months to be paid from the sale of the Slade’s existing home. It also required the provision of an executed contract of sale to acquire the Farm. No such written contract came into existence, though a document was prepared in December 2010 which is relied upon by the plaintiffs as supporting their case, as identified in paragraph [40] below.
[21]
At about the time that finance approval was communicated to Mrs Kelly, Mrs Kelly moved from the Farm to live with her son Michael, leaving Mr Kelly in sole occupation of the house on the Farm.
[22]
Also at about that time, a Form 1 transfer was signed by all parties by which Mr Kelly, Mrs Kelly and Mrs Slade transferred their one-third interests to Mr and Mrs Slade as joint tenants (the Transfer). The Transfer identifies the consideration as $500,000. It is signed by each of the parties and dated 6 December 2010. It is witnessed by Trudy May Kelly, a Justice of the Peace and Mr Kelly’s daughter-in-law. The circumstances of the execution of the transfer and the date of execution are contentious.
[23]
The Slades paid Mrs Kelly the $260,000 promised to her towards the end of 2010. They also paid Mr Kelly the $20,000 promised to him at about the same time. Thereafter, Mr Kelly remained on the Farm, Mr Slade continued to have involvement in the Farming operations and Mrs Kelly continued to assist Mr Kelly as she had done. In September 2012, Mr Kelly left the Farm. He went to Darwin and ultimately decided to live there permanently and marry an old friend. He did not return to the Farm. In 2014, he demanded payment of the balance of the funds he claimed to be owed by the defendants. These proceedings were commenced in 2016.

The pleaded cases

[24]
The plaintiffs pleaded the agreement they rely upon in the following terms in their amended statement of claim (ASOC):

5.It was a term of the Farm Purchase Agreement that the consideration of $510,000 for the Plaintiffs’ interest in the Farm would be paid by:

(i)
A payment of $250,000 to the First Plaintiff; and
(ii)
A payment of $260,000 to the Second Plaintiff.

6.Shortly after the Plaintiffs and Defendants entered into the Farm Purchase Agreement:

(a)
The First Defendant informed the First Plaintiff that the Defendants would only be able to obtain a loan of $260,000 to purchase the Plaintiff’s interest in the Farm; and
(b)
The First Defendant asked the First Plaintiff whether the Defendants could delay the purchase of $250,000 to be made to the First Plaintiff under the Farm Purchase Agreement.

7.In September 2010 the First Plaintiff agreed with the Defendants that:

(a)
The Defendants could make the payment of $250,000 to the First Plaintiff under the Farm Purchase Agreement within two years of the date of transfer of the Farm, rather than at the date of that transfer; and
(b)
The First Plaintiff would not charge to the Defendants any interest on the sum of $250,000 owed to him for those two years; and
(c)
The First Plaintiff would be allowed to reside at the Farm until the payment of the balance sum, without being required to pay rent or utilities.

8.The agreement pleaded in paragraph 7 above:

(a)
Constituted a variation to the Farm Purchase Agreement; or
(b)
In the alternative, constituted an agreement between the First Plaintiff and the Defendants (the “Loan Agreement”) for an interest free loan of $250,000 for 2 years.

9.In 6 December 2010 the Plaintiffs and the Defendants:

(a)
Executed a document called “Form 1 Transfer” (“Form 1”) in respect of the Farm; and
(b)
Executed a document called “Form 24 Property Information” (“Form 24”) in respect of the Farm.

10.The Form 1 and Form 24 stated that the total consideration payable by the Defendants to the Plaintiffs for the transfer of their interest in the Farm to the Defendants was $500,000.

Particulars

The consideration stated on the Form 1 was $500,000, not the $510,000 that had been previously agreed by the parties.

11.The Plaintiffs signed the Form 1 and the Form 24 in reliance on the Farm Purchase Agreement.

12.By signing the Form 1 and the Form 24:

(a)
The Farm Purchase agreement was varied:
1. To reduce the total consideration payable to the Plaintiffs by the Defendants from $510,000 to $500,000; and
2. To reduce the consideration payable to the First Plaintiff by the Defendants from $250,000 to $240,000;
(b)
In the alternative, the Loan agreement was varied to reduce the amount of the loan from the First Plaintiff to the Defendants from $250,000 to $240,000.

[25]
The ASOC did not plead particulars of how the agreements alleged arose: whether in writing, or oral, or inferred from conduct, or by some combination of those matters. (In the balance of this judgment, I will refer to just one agreement alleged by the plaintiffs. There are two alternative formulations of the agreement: the Farm Purchase Agreement and the Loan Agreement, but nothing turns on the alternative formulation in this case).
[26]
It was evident from how the case was opened and conducted, however, that with one exception, the agreement alleged was oral, the exception being the variation of the purchase price from $510,000 to $500,000. That variation would appear to have been partly in writing (the Transfer and Form 24) and partly by conduct (the acquiescence of Mr Kelly in the reduction of the agreed consideration). However, to the extent that the agreement was oral, the ASOC did not particularise the discussions relied upon as having contractual effect.
[27]
The defendants pleaded an alternative version of the agreement for the Transfer in their amended defence in the following terms (I have retained the marking up of amendments because the course of amendment of the defence is relied upon by the plaintiffs as going to the credibility of the defendants’ evidence):

6.The Defendants deny the allegation in Paragraph 4 of the Statement of Claim.

Particulars

(a)
There was no agreed purchase price to be paid by the Defendants to the Plaintiffs for the purchase of the two thirds (2/3) share of the property owned by the Plaintiffs;
(b)
The First Defendant arranged for a market appraisal to be undertaken on the property), which identified the whole value of the property to be $500, 000.00.;
(c)
The amount paid by the Defendants to the Plaintiffs was agreed upon by reference to the market appraisal and theneeds of the Plaintiffs. The Plaintiffs and the Defendants agreed that the value of each of the third shares for the purpose of this transaction would be $160, 000.00 and that the Defendants would pay all costs of and associated with the Transfer of the Property.and not an agreed purchaseprice of the Plaintiffs interest in the Property
(d)
What had been agreed to between the parties was:-
1. As the Second Plaintiff wanted to vacate the property,the Defendants agreedwouldto providepay tothe Second Plaintiff withthe sum of two hundred and sixty thousand dollars ($260, 000.00) to enable the First Plaintiff to enter into a nursing facilitybeing made up of her one third agreed value of $160, 000.00, and a loan amount owed by the First Plaintiff to the Second Plaintiff in an amount of $100.000.00;
2. The Defendants agreedwould payto and did paypaidto the First Plaintiff twenty thousand dollars ($20,000.00) plus made further payment on behalf of the First Plaintiff towards credit card and other debt in the amount of $18,189.86;
3. The Defendants agreed with the First Plaintiff that the First Plaintiff may reside on the Property free of chargewithout being required to contribute financiallyin lieu of a final lump sum payment in the amount of $21,810.14 being the remaining amount owed for the First Defendant’s interest in the Property;
4. The Defendants agreed with the First Plaintiff that they shall provide constant andsubstantial financial assistance regarding the living expenses of the First Plaintiff in lieu a final lump sum payment in the amount of $21,810.14 being the remaining amount owed for the First Defendant’s interest in the Property;
5. The Defendants agreed with the First Plaintiff that should the First Plaintiff be required to move into a low care nursing facility, or similar facility that the Defendants would pay the bond for such facility;
6. (v) The First Plaintiff knew that after the payment was made to the Second Plaintiff and the payment of twenty thousand dollars ($20, 000.000) to the First Plaintiff along with payment of $18,189.86 off accrued debts of the First Plaintiff wasmade the First Plaintiffthat the Defendants did not have capacity to pay any further funds towards either the First or Second plaintiff.

[28]
The amended defence thereafter denied that there was ever any agreement to pay Mr Kelly an amount of $250,000 or $240,000 and that that was not the value of Mr Kelly’s one-third share.
[29]
Like the ASOC, the amended defence also did not plead particulars of how the alleged agreed terms arose. However, it was again evident from the evidence led that the agreement alleged arose for oral statements.
[30]
Neither party in addresses identified in a precise manner the particular conversations relied upon as having contractual effect. I have therefore attempted to identify in the course of these reasons the relevant conversations, particularly those required to make out the plaintiffs’ case.
[31]
The evidence ultimately given was not consistent with the pleaded case of either party, though the divergence from the pleaded case was more significant for the defendants than for the plaintiffs. However, no objection was taken to any evidence on that basis and the agreements contended for by each party were made reasonably clear at the start of addresses, as set out in paragraphs [2] to [5] above.
[32]
I also observe that the agreement alleged by the plaintiffs was one to which Section 59 of the Property Law Act 1974(Qld) would seem to apply. However, that section was not raised in the amended defence and I do not propose further to consider the impact of that section.

Summary of the competing versions of the dealings between the parties

The plaintiffs’ version

Mr Kelly’s evidence

[33]
Mr Kelly said that in 2007 he was in financial difficulty because of his son Graeme’s debts secured on the Farm and his own debts and therefore offered to transfer a half share in the Farm to his mother for $260,000 to solve those problems and enable him to keep the Farm. His mother agreed. Thereafter she came to live at the Farm. He accepted that from then until about September 2010, Mrs Slade provided care and support to both him and his mother.
[34]
Mr Kelly’s evidence about the genesis of the Transfer was as follows. He said that in about April 2010, he decided he should transfer a one-quarter share in the Farm to Mrs Slade because he was worried about Mrs Kelly’s position at the Farm given some trouble being made by “the boys” (presumably his two sons). This occurred at the time of some health scares for Mr Kelly. In cross examination, however, he also gave evidence that reward for Mrs Slade’s support was part of the deal.^[2]He considered that Mrs Slade could protect his mother if he (Mr Kelly) died. He said that Mrs Slade received one third rather than one quarter because that was how his solicitor prepared the transfer.
[35]
He said that in about September 2010, he decided to sell the Farm outright because he was tired of fighting between his children about the Farm and because strain was emerging between Mrs Slade and her grandmother arising out of Mrs Slade’s lack of time to continue to assist his mother as she had been doing. He says he listed the farm for sale for $600,000.
[36]
He said that, thereafter, Mrs Slade “turned up” and asked him if she and Mr Slade could buy the Farm. He said he offered her the Farm for $500,000, but corrected himself later in his evidence and said he told her $510,000 was his initial asking price. She then “went off to get finance”. He said neither Mr Slade nor Mrs Kelly were present for this conversation (the first Gordon conversation).
[37]
He said that some time later there was a second conversation in which Mrs Slade told him that she and Mr Slade “couldn’t get the $500,000” because they had to sell their existing house first. They could get enough money to pay Mrs Kelly after the house was sold and she asked if Mr Kelly would wait 2 years for his money. Mr Kelly says he agreed but said that he wanted a contract drawn up. He said neither Mr Slade nor Mrs Kelly were present for this conversation (the second Gordon conversation).
[38]
He said that there was also a third conversation in which Mrs Slade asked him how much money he would need to get by and then she offered $40,000, to which he agreed so that he could “start moving on”. He said neither Mr Slade nor Mrs Kelly were present for this conversation (the third Gordon conversation).
[39]
His recollection of the signing of the Transfer was that Mr and Mrs Slade attended at the Farm together. He said this occurred before Mrs Kelly left the Farm to go and live with his brother Michael. He said this occurred towards the end of November 2010. He said that the witnessing officer, Trudy Kelly was not present. He said that Mrs Slade presented the Transfer and covered the consideration section of the Transfer with her hand when she showed Mrs Kelly where to sign. He said that he noticed the consideration was $500,000 not $510,000 when he signed but acquiesced in the change in the price.
[40]
He was referred to a handwritten document which was exhibit 4 in the proceedings (Exhibit 4). It was not disputed that this document was written by Mrs Slade. It provided:

Heritage Building Society

ATT Gerald White

I (Danny and Vicki Slade) have purchased the farm at 99 Borcharts Road Kingaroy, for agreed price of $500,000.00

A sum of $260,000.00 is to be paid to Kathleen Mary Kelly for her share.

A sum of $240,000.00 is to be paid to Gordon James Kelly for his share. But under an agreement between Gordon, Danny and myself Dad (Gordon) is to be paid $20 000.00 on settlement date.

This written agreement has been agreed between all parties (Gordon, Danny and I).

On settlement a sum of

$260,000.00 to be paid to Kathleen Kelly

$20,000.00 to be paid to Gordon Kelly.

Danny SladeVicki SladeGordon Kelly

Signature Signature Signature

[41]
When shown this document, he stated that he had not seen it before “all this started” (presumably referring to the proceedings). The contrary was not suggested to him in cross examination. He accepted however that his signature appeared on it and that it reflected the agreement he contended for except his recollection was that Mrs Slade had offered to pay $40,000 at settlement, not $20,000.
[42]
He said that he stayed at the Farm until September 2012, when he went to Darwin. He did not return to the Farm and ended up marrying and taking up residence there. He initiated proceedings after Mrs Slade had failed to honour the agreement and had raised the issue of him having left the Farm.

Mrs Kelly’s evidence

[43]
Mrs Kelly gave evidence which in some respects tended to corroborate Mr Kelly’s account.
[44]
She maintained that she paid $260,000 for a share in the Farm to assist Mr Kelly with his financial problems.
[45]
As to the genesis of the Transfer, she confirmed that Mr Kelly put the Farm on the market in September 2010. She said that there were two inspections of the Farm. (The plaintiffs’ counsel disavowed any reliance on the correctness of that evidence.) She also said that she did not demand her $260,000 so she could go to live with her son Michael in about September 2010, and that the prospect of her going to live with her son Michael did not emerge until later, in about November 2010.
[46]
She gave evidence of two material conversations.
[47]
The first conversation was one between Mrs Slade and Mr Kelly at which she says she was present. She says Mrs Slade said she was happy to forgo her part in the Farm and buy it for $510,000 to avoid conflicts with her siblings about the transaction (the first Kathleen conversation).
[48]
Her evidence about execution of the Transfer was generally consistent with Mr Kelly’s. She said that all four were present together when the Transfer was signed and that Trudy Kelly was not present. She said she signed despite Mrs Slade covering up the consideration on the basis that she trusted her to put the correct sum. However, she maintained that she left the Farm by 10 November 2010.
[49]
The second relevant conversation she gave evidence about occurred at the time of signing the Transfer. She said all four were present when Mrs Slade asked her father if he would wait for 2 years for his payment and he said yes he would. She recalled nothing else about that conversation (the second Kathleen conversation).

The defendants’ version

Mrs Slade’s evidence

[50]
Mrs Slade’s version of the genesis of the Mrs Kelly’s acquisition of a half share in the farm in 2007 was similar to that of the plaintiffs except that she said her father told her that Mrs Kelly was paying $160,000 to buy into the Farm so as to pay off Graeme’s debts and was giving $100,000 as an advance on Mr Kelly’s inheritance to pay his own debts.
[51]
As to her one-third share, she said that the idea was raised by her father in 2008 (when it seems he had a health scare). The purpose of her being granted a share was so that if her father died, she would already be on the title and could prevent her brothers from giving her grandmother difficulties. Her evidence is therefore similar to Mr Kelly’s evidence in this respect. There was no suggestion by her of any change in purpose between 2008 and April 2010, when the transfer was made to here.
[52]
However, her version of the genesis of the Transfer is markedly different from her father’s version. She said that the idea of her and Mr Slade buying the Farm was her father’s idea. She said that late one night in late September 2010, her father came out to her house while her husband was away working night shift and told her that his brother Michael was in financial trouble and that Mrs Kelly had told Mr Kelly that she need to get her money out of the Farm and required repayment of the $100,000 she had given Mr Kelly as an advance on his inheritance. She said he told her he wanted his mother out of the Farm. Mr Kelly asked if the Slades would buy out his mother’s share of the farm. Mrs Slade said she would ask her husband.
[53]
When he returned from night shift, she spoke to Mr Slade about her father’s request. He told her that he was interested only if they acquired the whole Farm. He told Mrs Slade to see what the bank said. Mrs Slade said she know nothing about the Farm being listed for sale at that time.
[54]
Mrs Slade said that the next day she had a discussion with her grandmother in which she confirmed that she and Mr Slade would look into buying the Farm but it depended on what the bank said. She said her grandmother confirmed she needed money for her son Michael, and that she regretted demanding the additional $100,000 back from Mr Kelly. She said Mr Kelly arrived in the course of this conversation.
[55]
She also said that she told Mr Kelly that Mr Slade had insisted that if they assisted, they had to acquire the whole Farm. She said Mr Kelly was upset by this and insisted that he must stay living at the Farm. Mrs Slade says she agreed he could do so. She also said a conversation in similar terms was held with her grandmother.
[56]
She said she then arranged for an agent, Mr Wain, to come out and do a valuation on the Farm. She says this occurred in October 2010. She said she and Mr Slade met him at the Farm and that he told them that the estimated value was $500,000. This was later confirmed in writing dated 1 December 2010.
[57]
Thereafter, she rang Mr Parker of Heritage. She said that she told him that she and Mr Slade were looking to buy the whole property, that they were planning to build on the Farm and that they had to pay out Mrs Kelly’s share in the amount of $260,000. She also said to them that Mr Kelly was intending to continue residing in the existing house and that he would not be paid any money.
[58]
The next step was the attendance of Mr Parker and Mr McKenzie from Heritage at the Farm. Mrs Slade said that she and Mr Slade met Mr Parker and Mr McKenzie at the Farm. They inspected the Farm and were told of the plan to build on the Farm and for Mr Kelly to remain in the existing house. They all met with Mrs Kelly and had a coffee with her.
[59]
Mrs Slade said that she and Mr Slade then made a finance application. There is no document comprising a comprehensive finance application in evidence. There is a one page mortgage loan application dated 10 November 2010 signed by Mr Slade seeking finance of $396,900 to be repaid over 12 months (the Mortgage Loan Application). That figure does not correspond with any version of the alleged agreement and was never explained in evidence by Mrs Slade, nor was the basis upon which the amount was determined satisfactorily resolved in evidence by Mr Slade.
[60]
Mrs Slade said that sometime after the meeting on the Farm with Mr Parker, she had a conversation with her father in which she told him that she and Mr Slade could pay him $20,000. She said that she then rang Heritage and told them about the payment of $20,000 to Mr Kelly and asked if that made a difference. It was in that context that she recalls being told that finance at $306,000 had been approved.
[61]
The next material conversation she recalled was a conversation after Heritage had informed them of the loan approval. She says that she and Mr Slade went to the Farm and told Mrs Kelly about the approval and that she could pay her the $260,000. She says her grandmother then expressed regret that she had to reclaim the $100,000 from Mr Kelly. She told her grandmother that Mr Kelly could stay at the Farm. She said soon after that, Mrs Kelly left the Farm.
[62]
Mrs Slade also said that there was a later conversation after Mrs Kelly left the Farm at which she and Mr Slade were present. She says she told her father again that they could pay $20,000 and that he could live on the Farm until the day he died. When shown a copy of a handwritten list of credit card debts (Exhibit 7), Mrs Slade added that in this conversation she also offered to assist and help Mr Kelly with his everyday expenses.
[63]
Her evidence as to the signing of the Transfer differed from the plaintiffs’ version. She said that she brought the Transfer to the Farm with Mr Slade after Mrs Kelly had left. That is, sometime in mid to late November 2010. She says that her father, her husband and she signed the Transfer that day in Trudy Kelly’s presence and that Mrs Kelly signed the next day at Trudy Kelly’s house in Kingaroy.
[64]
She expressly rejected the suggestion that she covered up any part of the Transfer or had any discussion with Mrs Kelly of any substance when she signed the Transfer.
[65]
She also gave evidence about Exhibit 4. On 21 December 2010, Heritage was preparing to settle the Transfer and loan. On that day she received an email from Wayne Bradford of Heritage seeking disbursement instructions. She responded with instructions that $260,000 be paid to Mrs Kelly’s account, $20,000 to Mr Kelly’s account and the balance of the loan ($26,663.29) to the Slade’s own account (Exhibit 21).
[66]
She gave evidence that after sending these details, she was contacted by Gerald White of Heritage who told her that her disbursement instructions were inadequate for Heritage’s needs. Her recollection was that he said that the figure needed to come up to the consideration of $500,000. She said he told her “the previous piece of paper was just not good enough. They could use it for the account details, but it was not …able to be used as what they wanted it for”.^[3]She says that “I do remember in the conversation it didn’t matter what details. It was just that 260 was to Nana, another amount of 240, which happens to be dad’s share, along with an agreement that we had with Danny, Vicki and Gordon. But the figure had to come up to 500,000”.^[4]
[67]
Mrs Slade then drafted Exhibit 4 and had Mr Slade and Mr Kelly sign it. She then faxed it to Heritage. On or about the next day, the Slade’s solicitors also sent a letter to Heritage (Exhibit 14). It provided, relevantly:

We refer to the above matter and instruct that we act for Vicki & Danny Slade in regards to the transfer of property owned by Vicki Slade, Gordon Kelly and Kathleen Kelly.

We confirm that Kathleen Kelly has agreed to sell her share of the property to Vicki & Danny Slade in exchange for payment of $260,000.00.

[68]
Thereafter settlement occurred and the Transfer was then registered. Mrs Slade gave evidence that stamp duty was paid on 2/3 of the consideration of $500,000. The stamped version of the Transfer shows duty was paid in the amount of $5834.50 (Exhibit 25). There was no evidence that her understanding was incorrect.
[69]
She said that after completion of the Transfer, Mr Kelly remained at the Farm until September 2012 and she and Mr Slade provided ad hoc financial assistance to Mr Kelly, paying on-going expenses and credit card payments.
[70]
She gave evidence of a number of specific payments:
1. (a)
  She said she gave Mr Kelly money for two holidays: one in 2011 to Longreach where they gave him about $2000 and one in 2012 to Darwin where they gave his about $3000;
2. (b)
  She said she provided a car fridge and canopy and paid for repairs to Mr Kelly’s ute so he could take the holidays. The ute repairs were about $1200 and the later $3000.
[71]
Mrs Slade conceded that no bank statements or other financial records had been produced by her which show any such payments, nor indeed any payments from the Slade’s accounts to Mr Kelly. Nor is there evidence of cash withdrawals relied upon as comprising payments to Mr Kelly. Her evidence was that these and other payments were made generally by cash payments from Mrs Slade to Mr Kelly on account of particular debts or obligations. In cross examination, she was unable to identify sources of cash on hand for the Slade family which could have funded these payments.

Mr Slade’s evidence

[72]
Mr Slade gave evidence that the purchase of the Farm was first raised with him by Mrs Slade after he came home from night shift one morning. He said Mrs Slade told him her father had visited during the night and asked whether the Slades could help out by buying into the Farm because Mrs Kelly “wanted out”. He said it would depend on whether they could get the money.
[73]
He also said that around that time his wife told him that Mrs Kelly needed the $160,000 she had paid for the Farm and the extra $100,000 she had lent or given to Mr Kelly.
[74]
He also said that from the outset, he told his wife he would not be interested unless they acquired the whole Farm. He was not interested in going into partnership with Mr Kelly.
[75]
He also said that at some stage around that time, Mrs Slade had told him that Mr Kelly did not want to leave the Farm.
[76]
His next direct involvement was to attend the farm with Mr Wain in mid-October 2010 so they could obtain an estimate of value. He recalls showing Mr Wain around the Farm and that Mr Wain gave a verbal estimate of $500,000.
[77]
His next direct involvement in the matter was at the meeting with Mr Parker and Mr Mackenzie at the Farm. He recalls showing them around the Farm, that they were told about the proposal to build the barn style house on the Farm for the Slades and that they required the “160 and the 100” for Mrs Kelly’s share.
[78]
Mr Slade confirmed that he signed an authority dated 27 October 2010 for Heritage to do a valuation on both the Farm and the Slade’s home and that he signed the Mortgage Loan Application. No explanation for the amount identified in that document was sought from Mr Slade.
[79]
Mr Slade said that he did not have any conversations with Mr Kelly or Mrs Kelly directly prior to notification of approval of the loan sought from Heritage. He also gave evidence of only two conversations he was involved in after that time of relevance.
[80]
First, he said that while the written approval came dated 25 November 2010, informal approval was communicated to Mrs Slade (and by her to him) prior to that time. He said that the informal approval was the catalyst for him and his wife to then go to the Farm. He said this occurred in about early November 2010. He said that on this occasion, all four of the parties were present. He said that on this occasion, he or his wife told Mrs Kelly that she would get her $260,000 and that Mr Kelly was free to stay on the Farm and that he and Mrs Slade would continue to take care of Mr Kelly.
[81]
Second, he described a conversation with Mr Kelly at the Farm after the final approval (presumably the written approval) was received. He said that on that occasion, Mrs Slade told Mr Kelly that he would receive his $20,000, that he could stay on the Farm as long as he wanted and that he and Mrs Slade would continue to help him as they had before. He said Mr Kelly said he was happy he could stay on the Farm.
[82]
Mr Slade’s version of the execution of the Transfer was consistent with Mrs Slade’s version. He gave no evidence as to how Mrs Kelly came to sign the Transfer, having played no part in that process.
[83]
Mr Slade also dealt with Exhibit 4. He accepted that he signed the document. He recalled signing the instructions for disbursement of funds referred to in paragraph [65] above. He said that after that, his wife told him that Heritage required more information than just the disbursement information. That was the reason he signed the document.
[84]
He denied that he ever was involved in any conversation where Mr Kelly was promised $240,000 for his share.
[85]
He said he was unable to give evidence of assistance given to Mr Kelly because he was not involved in the financial dealings between his wife and her father.

Mr Parker

[86]
The defendants also called Mr Parker, at that time he was a banker with Heritage. He was plainly very nervous. He confirmed that when Mrs Slade called him initially, she said she wished to borrow money to pay out Mrs Kelly from the Farm. He said that he later went to the Farm with Mr McKenzie and met the Slades. He said they showed him around the Farm and told him they were looking to pay out Mrs Kelly and to build a barn style house on the Farm later. He said that Mrs Slade told him Mr Kelly was to remain on the Farm in the existing house.

Inconsistencies between the pleaded cases and the evidence at trial

[87]
Both parties made submissions as to the correlation between the agreements as pleaded from time to time and the evidence ultimately led at trial for the purpose of undermining the reliability of the evidence given.
[88]
With a couple of exceptions, which I will note in due course, the parties each stuck to their versions in cross examination. It is useful therefore to identify the extent to which the evidence of each of the parties sustains the cases as pleaded.

The plaintiffs’ pleaded case compared to the plaintiffs’ evidence

[89]
A comparison of the three Gordon conversations and the variation conduct to the plaintiffs’ pleaded case discloses the following:
1. (a)
  To the extent that the agreement alleged in paragraphs 4 and 5 of the ASOC is to be proved by the first Gordon conversation (as I seems it must be), Mr Kelly did not give evidence to sustain an oral agreement of the split of the $510,000 between himself and his mother.
2. (b)
  To the extent that the allegations in paragraph 6 and 7 relate to the second Gordon conversation, Mr Kelly did not give evidence that Mrs Slade referred to $510,000 as the consideration, rather his evidence was that she referred to $500,000.
3. (c)
  Further in none of the Gordon conversations does he give evidence that the Slades offered to permit him to stay at the Farm rent free for 2 years, nor that he agreed not to charge interest for that period. To this extent he did not make out paragraphs 7(b) and (c) of the ASOC.
4. (d)
  In none of the Gordon conversations does he give evidence that Mrs Slade actually nominated $250,000 nor $240,000 as the amount payable to him.
5. (e)
  In the third Gordon conversation he gives evidence that Mrs Slade offered and he accepted that the Slades would pay $40,000 on settlement. That allegation does not appear anywhere in the ASOC.
[90]
A comparison of the two Kathleen conversations to the plaintiffs’ pleaded case discloses the following:
1. (a)
  In neither of the Kathleen conversations does Mrs Kelly give evidence of discussion of the split of the $510,000 between the plaintiffs.
2. (b)
  In the second Kathleen conversation, she gives no evidence that the Slades offered to permit Mr Kelly to stay at the Farm rent free for the 2 years, nor that Mr Kelly agreed not to charge interest for that period (as alleged in paragraphs 7(b) and (c) of the ASOC).
[91]
The plaintiffs did not link either of the conversations to which she deposes to the pleaded allegations. If her evidence is not linked to any of the key contractual discussions, her evidence might be treated as comprising admissions by Mrs Slade. It was unclear from the plaintiffs’ submissions what role the evidence of Mrs Kelly otherwise played in the plaintiffs’ case.
[92]
There are other problems with Mrs Kelly’s evidence which I detail below from paragraph [99] I have put little weight on her evidence.

The defendants’ pleaded case compared to the defendants’ evidence

[93]
A comparison of Mrs Slade’s conversations to the amended defence discloses the following:
1. (a)
  In none of the conversations that she deposes to is there any evidence to sustain an oral agreement that the value of each of the one-third shares in the Farm would be $160,000, or an oral agreement that the amount to be paid was agreed on by reference to the market appraisal and the needs of the plaintiffs, as alleged in paragraph 6(c) of the amended defence.
2. (b)
  In none of those conversations is there any evidence to sustain an oral agreement that Mr Kelly’s right to reside was in lieu of a payment of $21,810.14 or any specific residual amount, as alleged in paragraphs 6(d)(iii) and (iv) of the amended defence.
[94]
In none of those conversations is there any evidence to sustain an oral agreement that the Slades would provide substantial financial assistance regarding Mr Kelly’s living expenses in return for the transfer of his interest, although the evidence of the conversation where Mrs Slade said she offered to assist Mr Kelly with his everyday expenses might be thought to be sufficient, in context, to raise that matter.
[95]
Mr Slade’s evidence does not remedy the failure to make good the allegations identified in paragraph [93] above though Mr Slade frankly conceded he was only involved in the two conversations he identified.
[96]
Neither party ultimately contended for their pleaded cases (such as they were) on the evidence at trial. However, neither side objected to the reformulation of the agreement contended for at trial by the other. Rather, each side relied upon the some of the inconsistencies identified above as providing a reason to prefer that side’s reformulated version of the agreement. Accordingly, the matter to be decided by the Court is whether the plaintiffs have made out the agreement that they contended for at trial as formulated in paragraph [3] above.^[5]

General observations about reliability of the witnesses

[97]
In my view, neither Mr Kelly, Mrs Kelly nor Mrs Slade were reliable historians.
[98]
Mr Kelly’s evidence was very vague. His evidence in chief dealt with the main points which he needed to prove, but his evidence lacked context and content. Further, Mr Kelly was at pains to point out from time to time that he was reliant first on his wife, and then on his daughter, to manage his financial affairs. He had little recollection of his financial or family dealings because of that reliance and because of his lack of interest in, or understanding of, his financial and personal affairs. A good example was his apparent lack of understanding of even basic matters relating to the financial problems arising with his son Graeme. His cross examination on his previous affidavit in the proceeding also disclosed, at the least, that he was prepared to adopt as correct statements which he did not seem to understand.
[99]
Mrs Kelly’s evidence was unpersuasive for a different reason. She struck me as a person very determined in her own views, whether correct or not. She certainly believed her evidence to be true, but there were a number of aspects in which her confident certainty was misplaced either because the evidence appeared mistaken or implausible. For example:
1. (a)
  While Mr Kelly said he listed the Farm in 2010 before Mrs Slade approached him but did not mention any, Mrs Kelly gave evidence of two inspections by buyers. The plaintiffs’ counsel disavowed any reliance on that evidence, but it was given with great confidence by Mrs Kelly.
2. (b)
  Another example is her determination to deny she had ever seen the Transfer before Mr Fraser had asked her anything about it. Although her later evidence clarified her position somewhat, it did not dispel the impression of her initial determined position to deny a proposition she thought wrong, even before she had heard the question.
3. (c)
  Similarly, she was quick to assert that she had never seen the transfer document by which Graeme’s share in the Farm was transferred from him to her in 2007, and maintained that she never understood that she was acquiring Graeme’s share, nor that the consideration for that acquisition was the amount on the transfer of $160,000. I find those propositions inherently improbable. At the least she must have had some role in instructing her solicitor as to the particulars in the transfer document but she was rigidly determined that she knew nothing about these matters.
4. (d)
  Perhaps most revealing was her certainty that she never saw anybody visit the Farm with Mrs Slade between September and November 2010. Asked about the visit by Mr Parker and Mr McKenzie, her response was that that never happened. It did happen, as was confirmed by Mr Parker, who also recalled meeting Mrs Kelly.
[100]
Mrs Slade’s evidence was also not compelling. Like Mr Kelly, her evidence was frequently vague as to what was said and when. When giving evidence about conversations, she tended to recount her impressions of how the participants felt, or to state conclusions she drew about the conversations, rather than the substance and effect of words used. While a degree of imprecision is understandable in a case like this, the role of the Court is to make findings about what was said and done rather than the subjective impressions which the parties hold about that matter.
[101]
I recognise that Mrs Slade, and indeed all the witnesses, were nervous (with the possible exception of Mrs Kelly). But even allowing for all those matters, Mrs Slade’s evidence was not such as to give me confidence as to its reliability. In evidence in chief on at least one occasion, she required a number of attempts to get to the important points. In cross examination she was vague and sometimes not responsive when pressed on doubtful areas of her evidence.
[102]
Added to those matters was the apparent errors in her evidence in chief exposed in cross examination. There were two areas in which she was decisively shown to have given unreliable evidence.
[103]
The first was her evidence to the effect that she paid for the ute repairs, holidays, canopy and car fridge. She accepted that there was no evidence of payment of any of these sums from the Slade’s accounts. She said however that the mode of payment involved reimbursing her father in cash for expenses he paid. Unfortunately she could not then credibly identify any source of such cash available to the Slades, especially as the amounts were substantial in some cases. Mrs Slade created her own problems with this evidence. Mr Kelly did not dispute that she might have made some or the payments alleged because he did not know enough about his financial affairs. While I accept that she probably did sometimes make the payments for her father, her evidence as to the payments allegedly made was exaggerated and not reliable, and I reject it.
[104]
The second was her evidence that she received a handwritten note of credit card debts from her father around the time of the Transfer showing the amount identified in the amended defence: $18,189.86. It was plain that that note was written in about 2008, as was demonstrated by the credit card statements tendered at trial (Exhibit 7). She was plainly wrong about this and the allegation that these amounts were paid was rightly abandoned at trial.
[105]
Mr Slade struck me as the most forthright and reliable of the parties. He did not seek to exaggerate his involvement in events and his version of the events he was involved in struck me as clear and credible.
[106]
While I found him generally to appear to give reliable evidence, it is plain to me that he has conducted this case based on his trust in his wife’s instructions. That cannot help but have the potential to influence his evidence to some degree.
[107]
I had no reason to doubt Mr Parker’s evidence so far as it went.
[108]
The above observations do not of themselves lead me to conclude that any of the parties’ evidence should necessarily be rejected in its entirety. However, it is grounds for caution in accepting evidence which is not corroborated in some manner by contemporaneous documents or which seems inherently implausible given other circumstances. It is those matters I now turn.

The key issue

[109]
As I have already observed, to succeed in this proceeding the onus is on the plaintiffs to establish the agreement alleged at trial. The central matter in that regard is that the plaintiffs establish that the defendants agreed to pay $510,000 (or $500,000) for the plaintiffs’ two-thirds shares in the Farm and agreed to pay $250,000 (or $240,000) for Mr Kelly’s share in particular.
[110]
The defendants do not have to establish that the parties entered into the different agreement that they ultimately alleged at trial, although the failure to establish that agreement might favour the plaintiffs case in at least two ways:
1. (a)
  Because the failure to make out the case alleged affects the credibility of the defendants’ denial of the plaintiffs’ allegations; and
2. (b)
  Because the absence of an agreement of the kind alleged by the defendant might make the plaintiffs’ case more probable because it might be thought unlikely that Mr Kelly would have transferred his interest without some agreement as to the quid pro quo for doing so.
[111]
The starting point is to analyse the evidence of the key conversations relied upon by the plaintiffs.

The circumstances of Mrs Kelly’s buy in

[112]
It is not in dispute that Mrs Kelly paid $260,000 when she bought into the Farm in 2007. It is not in dispute that Mrs Kelly did so because Mr Kelly’s son Graeme was in financial difficulty and owed money which was secured on the Farm in some manner. There is, however, a dispute as to how that payment should be characterised.
[113]
Mrs Slade said that she was told when Mrs Kelly bought in, that Mrs Kelly was paying $160,000 for the share in the Farm and paying another $100,000 to Mr Kelly to permit him to pay his own debts as an advance on his inheritance. She said this was raised again when Mr Kelly approached her to buy the Farm.
[114]
Mrs Kelly asserted that she paid $260,000 to buy into the Farm and rejected that there was any discussion or inheritance or anything similar. Mr Kelly, however, was much more equivocal on this in cross examination on the subject.
[115]
I find that when Mrs Kelly bought into the Farm, Mr Kelly did tell Mrs Slade that Mrs Kelly was paying $160,000 to buy into the Farm and giving him another $100,000 to pay his debts. That seems likely given the following reasons.
[116]
First, Exhibit 12 shows consideration for Mrs Kelly’s half share at $160,000. This is generally consistent with the consideration recorded in the transfer for Graeme’s half share at $150,000 (Exhibit 5). Although Mrs Kelly denied any recollection of that transfer, it is inherently improbable that her solicitor did not discuss the consideration for the transfer with her. I think at the time she would have been aware of what she was paying for the share in the Farm. If this is so, it is likely she would have considered that the additional $100,000 required by Gordon was not consideration for the Farm, but some kind of gift or advance to him.
[117]
Second, Mrs Kelly’s determination to reject any suggestion that she discussed the $100,000 as a separate advance or gift to Gordon might be genuine. However, it is understandable that over time she might have come to see the $260,000 she paid as being “for the Farm”, and to persuade herself that this was so.
[118]
Third, Mr Skoien suggested that the reference to the $100,000 as a loan rather than an advance on the inheritance told against the credibility of the overall assertion. I agree that the defendants have probably reconstructed the discussions with Mr Kelly and Mrs Kelly about the “inheritance” somewhat over time. However, this does not persuade me that there was not some kind of discussion in 2007, and again in 2010, of the kind described by the Slades.

Genesis of the Transfer and the first Gordon conversation

[119]
Central to the plaintiffs’ case is the first Gordon conversation. It appears to be the only direct evidence of conversations which could sustain the allegation of the Farm Purchase Agreement made in paragraphs 6 and 7 of the ASOC. It also has the added importance of occurring at the time the issue of the Transfer first arose. The circumstance in which that occurred is an important consideration in the weighing of each parties’ case.

Genesis of the Transfer

[120]
Mr Skoien submitted that the defendants’ case was implausible because Mr Kelly would not have transferred his sole significant asset for negligible consideration comprised in $20,000 and a right to continue to reside at the Farm. He emphasised that Mr Kelly already had the right to reside at the Farm and therefore he was receiving very little on the defendant’s case.
[121]
Mr Fraser for the defendants sought to answer that submission in the following manner. He submitted that the genesis of the transaction was that Mrs Kelly was determined to leave the Farm because she needed to assist her other son Michael and needed to get her full $260,000 back from Mr Kelly for that purpose.
[122]
He submitted that Mr Kelly was not able to get meet his mother’s demands without him selling the Farm, unless the Slades bought in and provided the money required by Mrs Kelly. As Mr Kelly wanted to remain on the Farm, and was content to rely on Mrs Slade to continue to take care of him as she had done, it was an acceptable outcome from him if the Slades bought the whole of both interests so long as they paid for Mrs Kelly’s share and gave him some “play money”. This secured his continued residence at the Farm.
[123]
It is therefore important to make findings about the genesis of the Transfer. I find in this regard that the genesis of the transaction was as alleged by the defendants. I find that:
1. (a)
  Mrs Kelly decided in about October 2010 that she needed to provide financial assistance to her son Michael and needed to recover money she paid in 2007 from Mr Kelly for that purpose;
2. (b)
  She asked Mr Kelly to take steps to make that money available;
3. (c)
  Mr Kelly then visited Mrs Slade in some distress late one evening and told her about Mrs Kelly’s demands and asked her to assist by buying into the Farm; and
4. (d)
  Mrs Slade agreed to ask Mr Slade about it.
[124]
I make those findings for the following reasons.
[125]
First, there was no evidence of steps by Mr Kelly to list the Farm for sale as he alleged, other than Mr Kelly’s evidence which was, like much of his evidence, lacking in any detail or context.
[126]
Second, there was a significant divergence between Mrs Kelly and Mr Kelly about when the prospect of Mrs Kelly going to live with Michael first came up. While Mrs Kelly, with characteristic inflexibility, asserted it did not come up till November 2010, Mr Kelly ultimately conceded in cross examination that he raised the fact that Mrs Kelly was going to live with Michael in conversation with Mrs Slade during their first conversation.
[127]
Further, it was uncontentious that Mrs Kelly needed considerable personal support, given her age and health issues. It was also uncontentious that she left the Farm with alacrity in mid-November, as soon as she was told that the Slades would pay her $260,000, and went to live with her son Michael. I think it implausible that an elderly person with health and support needs typical of her age would be able to suddenly change her living arrangements and move in with an adult son. I think it likely that there was discussions well before mid-November about that move. For this reason also I do not accept Mrs Kelly’s evidence on this matter.
[128]
Third, Mrs Slade’s version is confirmed in its particulars as to timing by Mr Slade. As I have said, I generally found Mr Slade’s evidence reliable. I found his evidence about this incident particularly credible. He described coming home after night shift and being told by Mrs Slade a version of the initial conversation which accords generally with the version that she gave. In particular, his evidence corroborates Mrs Slade’s evidence that Mr Kelly came to see her during the night while Mr Slade was at work on night shift.
[129]
I think that a significant point. That Mr Kelly came to see Mrs Slade late during the night is objectively consistent with the evidence that Mr Kelly was distressed and that this distress motivated him to come to his daughter’s house in the middle of the night. I do not accept he had any real intention to move. It is consistent with the need for the Slades’ assistance being forced onto him by circumstances of his mother’s demand for her money to be paid out and his wish not to leave the Farm.
[130]
Fourth, I found Mr Kelly’s evidence that he decided to sell the Farm because he wanted to move on to be unconvincing. He might well have toyed with the idea of doing so from time to time after 2007. However I was not persuaded by his evidence that it was a factor which caused him to put the Farm on the market. This is especially so as Mrs Slade was Mr Kelly’s primary financial and personal support from at least 2007, and he seemed to require such support from someone to manage his life. His other explanation was that he was tired of his children fighting about the Farm. While that might be so, it had not persuaded him to move before. I do not think it was a sufficient reason for him to leave the Farm.
[131]
Fifth, there seems little doubt that Mrs Slade was Mr Kelly’s only option if he was to pay out his mother and remain on the Farm. A sale of a half share in the Farm would not have been attractive to the general buying public and he made clear that at the time he considered that Mrs Slade was his only child who would or could be relied upon to assist.

Other aspects of the first conversation

[132]
The above findings do not necessarily lead to the conclusion that there was no discussion of, or agreement on, an acquisition of the whole Farm for $510,000 in the first conversation. Mr Kelly says that he offered the whole Farm to Mrs Slade for $510,000. Mrs Slade’s evidence is that Mr Kelly only asked her to buy out his mother with the figures of $160,000 and $100,000 mentioned.
[133]
It is possible that there was some discussion by Mr Kelly with Mrs Slade in this initial conversation about the possibility of the Slades buying the whole of the plaintiffs’ interests for $510,000 or perhaps $500,000. However, I find that if there was, it was of the most general kind and did not give rise to any agreement by Mrs Slade to buy the plaintiffs’ interests for that sum, or any acceptance of that sum as the basis for future bargaining. Mrs Slade’s evidence was that she left things on the basis that she would have to speak to Mr Slade. Mr Kelly’s evidence was that things were left on the basis that Mrs Slade went off to get finance. I prefer Mrs Slade’s version. I find that she would not have said anything at that time which committed Mr Slade to acquiring the Farm or any part of it without speaking to Mr Slade first. Further, if a specific sum of the kind alleged by Mr Kelly had been mentioned with any seriousness, Mrs Slade would almost certainly have mentioned it to her husband. There is no evidence that she ever did.
[134]
I should also mention here the evidence of the first Kathleen conversation. This conversation would confirm that there was discussion and agreement on the price at $510,000 and would deal with the other important question of why any of the parties thought that Mrs Slade should pay the whole value of the Farm. However, Mr Kelly gave no evidence which would correlate with that particular conversation and, as I have said, I found Mrs Kelly’s evidence to be unpersuasive. I am not persuaded that a conversation in those terms occurred.

The second Gordon conversation

[135]
It is convenient to look now at the second Gordon conversation.
[136]
Mr Kelly said the following:

[137]
The first task is to try to identify when this conversation might have occurred. In my view, any such conversation probably occurred after Mr and Mrs Slade had finance approval notified, given that Mrs Slade is supposed to have said she “couldn’t get the 500,000”. Therefore, if this conversation occurred, it seems likely that this occurred in about early to mid-November 2010 because:
1. (a)
  Mr Parker was contacted by Mrs Slade in about mid-October;
2. (b)
  Thereafter Mr Parker and Mr McKenzie had to organise to visit the Farm;
3. (c)
  Mr Slade signed the authorisation for the valuations by Heritage in support of the application for finance on about 27 October 2010;
4. (d)
  Mr Slade signed the Mortgage Loan Application on 10 November 2010;
5. (e)
  The loan approval issued on 25 November 2010, but each of the Slades gave evidence that they were called and notified of approval prior to that time. I accept this evidence;
6. (f)
  Mrs Kelly left the Farm once she was assured she would be being paid her money and this occurred in mid-November.
[138]
The next point to note is that on Mrs Slade’s case, she had told her father that the Slades would not assist him unless they acquired the whole Farm. Thus although the evidence of the principal protagonists differs, it seems common ground that at the time of informal approval of finance, both parties understood that the Slades were only going to assist Mr Kelly if they acquired both his interest and Mrs Kelly’s interest.
[139]
The question, then, is whether Mrs Slade agreed at this time to do so on the basis of payment of $260,000 for Mrs Kelly and a balance of $250,000 (or $240,000) to Mr Kelly after two years when the Slade’s house was sold.
[140]
The Slades agree that there was a conversation with Mr Kelly at about the time he identifies, though their evidence as to the content of that conversation differed.
[141]
Mrs Slade referred to a visit to the Farm by her and Mr Slade after finance approval was notified. She gave evidence that on this occasion they had a conversation with her grandmother at which they told her that they had the finance to pay her $260,000 and that Mr Kelly would be able to stay at the Farm.
[142]
Mr Slade give similar evidence. He described what occurred in these terms:

And Kathleen was told that she was right. She was getting the money. She – she could have her 260, which is the break-up of the two amounts. Yeah. And then that Gordon was free to stay there.

When you say Kathleen was told - - -?---Yes.

Who – who told Kathleen that?---That was Vicki and myself with Kathleen and Gordon both present.

And you referred to two amounts – 160 and 100?---Yes.

[143]
I accept that a conversation of the kind alleged by Mr Slade occurred at about the time of informal notification of finance, although I have reservations about whether the separate identification of the $160,000 and the $100,000 was mentioned. It was corroborated in some degree by Mrs Slade, and it is consistent with the undoubted fact that Mrs Kelly left at that time, once she was satisfied she would get her money.
[144]
Now it can be seen that the Slades’ versions, even they are correct, are not necessarily inconsistent with the prospect of an earlierconversation between Mrs Slade and Mr Kelly in the terms of the second Gordon conversation:
1. (a)
  Mr Slade frankly conceded that prior to this time, the conversations were between his wife and his father in law. It is therefore open on his evidence to conclude that the conversation narrated by Mr Kelly with his daughter in fact occurred; and
2. (b)
  Mrs Slade’s version of this meeting was, like much of her evidence, more imprecise than Mr Slade’s evidence and in my view left open the possibility that the second Gordon conversation occurred.
[145]
However, it would be very unlikely that if there had been some earlier discussion or agreement about payment of $240,000 to Mr Kelly after two years, it would not have been mentioned in this later conversation with Mr Slade, or at some other later time.

The dealings with Heritage

[146]
It is also relevant to the assessment of the evidence of the second Gordon conversation to consider the dealings between the Slades and Heritage. Mr Fraser relied on these considerations as favouring his clients’ version.
[147]
I make the following findings about those dealings:
1. (a)
  The Slades told Mr Parker and Mr McKenzie that they were intending to move to the Farm and build a home on the Farm (as confirmed by Mr Parker); and
2. (b)
  Mrs Slade told Mr Parker that Mr Kelly was intending to remain on the Farm “for the remainder of his time” (as confirmed by Mr Parker).
[148]
Further, there is no evidence that the Slades sought sufficient finance to pay $500,000 (or indeed $510,000) for the Farm. The only evidence on the point shows that the Slades sought finance for $396,900.00. The genesis of that particular figure was never examined at trial. It was never suggested to either of the Slades that they had sought sufficient finance to pay the amount alleged by Mr Kelly.
[149]
Those findings are not consistent with Mrs Slade having sought sufficient finance to pay out her father, then being forced to seek his indulgence on payment because finance was unavailable, and provide some evidence favouring Mrs Slade’s denial that she ever asked her father to agree to those conditions.
[150]
I do note that Mr Parker’s evidence that Mrs Slade told him that Mr Kelly was intending to stay at the Farm for the remainder of his time is hearsay evidence as evidence of Mr Kelly’s intention. It is, however, evidence of Mrs Slade’s state of mind at the time. It is consistent with her story as to her discussions with her father up to that point. It provides some objective support for her account.

Conclusion on the second Gordon conversation

[151]
I am not persuaded that the second Gordon conversation occurred as Mr Kelly alleged.

The third Gordon conversation

[152]
In this conversation, Mr Kelly said that Mrs Slade asked him how much money he would need to get by and she offered him $40,000 to which he agreed so “he could start moving on”. He said Mr Slade was not present for this conversation. As with all of Mr Kelly’s evidence, this conversation was presented without any context.
[153]
However, in this case the Slades each gave evidence of a similar conversation. They both gave evidence of a conversation with Mr Kelly after Mrs Kelly left the Farm in which they offered to pay Mr Kelly $20,000 and assured him that he could continue to live on the Farm and that they would continue to assist him.
[154]
As to this conversation, I prefer the Slades’ version. I do so for the following reasons:
1. (a)
  First, as I have said, Mr Slade’s evidence struck me as generally reliable;
2. (b)
  Second, subsequent events are consistent with the Slades’ version: they did pay $20,000, not $40,000. They did continue to assist Mr Kelly until he left the Farm;
3. (c)
  Third, I do not think Mrs Slade’s erroneous evidence about payment of credit card amounts tends to impugn Mr Slade’s evidence on this conversation;
4. (d)
  Fourth, if Mr Kelly was thinking of starting to move on, he did nothing about it until September 2012.
[155]
Once again, there is the possibility that Mr Kelly might have had the conversation he alleges with Mrs Slade in Mr Slade’s absence, but again it seems very unlikely to me that he would not have mentioned the matter in Mr Slade’s presence when $20,000 was discussed instead.
[156]
I am not persuaded that the third Gordon conversation occurred as the plaintiffs allege.

The second Kathleen conversation and the circumstances of the execution of the Transfer

[157]
Given the lack of particularisation of the pleadings, it could be open to the plaintiffs to rely on Mrs Kelly’s evidence to make out the contract alleged, though that position was not adopted at trial. To be clear, I do not consider that the conversations to which she swore can sustain the plaintiffs’ case.
[158]
I have already observed in paragraph [99] that I found her evidence to be generally unpersuasive.
[159]
I have dealt with the first Kathleen conversation in paragraph [47] and [134] above. As I find there, I do not accept that a conversation in those terms occurred.
[160]
As to the second Kathleen conversation, it raises issues surrounding the execution of the Transfer. The parties’ evidence was diametrically opposed in this regard and this is a convenient point to deal with these issues.
[161]
To recap, the plaintiffs’ evidence was to the following effect:
1. (a)
  The Transfer was signed at the Farm before Mrs Kelly left;
2. (b)
  All four of the parties were present and Trudy Kelly was not; and
3. (c)
  Mrs Slade concealed the consideration on the Transfer from Mrs Kelly for the purpose, they suggested, of concealing that it was $500,000 not $510,000.
[162]
Mrs Kelly also said that at execution, the second Kathleen conversation occurred.
[163]
The defendants’ evidence contradicted each of these matters. They each gave evidence that the Transfer was signed at the Farm after Mrs Kelly left and that only Mr Kelly and the Slades were present along with Trudy Kelly when it was executed. Mrs Slade said Mrs Kelly signed the Transfer the next day in Kingaroy. The consequence of accepting that evidence is that I would reject the evidence of the alleged concealment and of the alleged second Kathleen conversation.
[164]
I find that the Transfer was signed at the Farm after Mrs Kelly left. I therefore reject Mrs Kelly’s evidence as to what was said on that occasion. I also reject the evidence as to the alleged concealing of the consideration. I reach that finding for the following reasons.
[165]
First, the formal loan approval was not sent until 25 November 2010. I think it highly unlikely that the solicitor would have prepared the Transfer before that occurred. Further, while the signing dates might not have been precisely the dates recorded on the document, I do not see any reason to assume that the Transfer was signed by the parties at a materially earlier time than the date recorded. Those objective indicators of the likely timing of the execution of the Transfer are consistent with it being signed after Mrs Kelly had left the Farm.
[166]
Second, Mr Slade’s evidence was that the signing occurred after Mrs Kelly left. As I have said, I generally consider his evidence to be reliable.

The $510,000 allegation

[167]
Third, I find the allegation of Mrs Slade hiding the consideration figure from Mrs Kelly inherently implausible. The concealment allegation turns on Mr and Mrs Kelly’s evidence that Mrs Slade agreed to pay a price of $510,000 (rather than $500,000) for their shares in the Farm.
[168]
However, evenMr Kelly’s evidence relating to the consideration was inconsistent. His initial evidence of the first Gordon conversation was that the sum allegedly agreed was $500,000. He later corrected that to $510,000. However, his evidence thereafter focused on the sum of $500,000 and importantly, his evidence of the second Gordon conversation was that Mrs Slade said “they couldn’t get the 500,000 because of the – they had to sell [indistinct] first”. He also said in evidence in chief that he could not say how he had come up with the $510,000 figure and I note there was no evidence of any advice on value at that time.
[169]
Further, the idea that Mrs Slade would go to the trouble of concealing that the consideration was $10,000 less than agreed is inherently implausible, especially as it is evident that Mr Kelly, even on his own case, was pretty flexible about the terms upon which payment for his share would be made.
[170]
In my view, the idea that the amount discussed was $510,000 has become a fixed idea for the Kellys which has influenced their recollection.

Summary on the plaintiffs’ positive case

[171]
For these reasons, I am not persuaded that the plaintiffs have established an agreement by the Slades with the Kellys which included a term that the Slades pay $240,000 to Mr Kelly for his one-third share of the Farm. There are however some other matters which should be considered, some of which favour the Slades’ version, and others of which favour the Kellys’ version.

Why would the defendants pay full price?

[172]
Mr Fraser contended that his clients’ version was rendered more credible because it was implausible that the Slades would agree to pay the market value of the Farm in circumstances where Mrs Slade already owned a one-third share.
[173]
Mr Skoien in response pointed out that the one-third share was gifted to Mrs Slade so as to protect Mrs Kelly’s position if Mr Kelly died, from the potential pressures on her from his other children. Further, there was evidence (including in the first Kathleen conversation) that Mrs Slade offered to pay full price to avoid disputes with her siblings over the Farm. Finally, Mr Skoien also pointed to the fact that recognition of the value of Mrs Slade’s share would have undermined Mr Kelly’s alleged wishes that his children benefit equally from the Farm.
[174]
The evidence does not compel any clear resolution of this question in favour of either party.
[175]
As to the basis upon which Mrs Slade was granted her share, there is conflicting evidence. She herself accepted that the purpose of the gift to her was to provide some protection for Mrs Kelly if Mr Kelly died, and the timing of the gift is consistent with that. Mr Kelly also gave evidence of that purpose. However, Mr Kelly also appeared to concede that a reason for the gift was a reward for Mrs Slade’s assistance to him. He said in cross examination:

So do you agree that Vicki provided far more assistance to you between the end of 2007 and April 2010 ? Well, yep, yeah.

than ?If you added all the kids, probably the most, yeah. She probably did the most, yeah.^[8]

[176]
There is uncontested evidence that Mrs Slade’s support for him entirely justified his view. Mrs Slade did not give this evidence, however, so on the point of purpose of the gift, I find that Mrs Slade’s state of mind was as she stated. This makes it plausible that she might ignore her share in reaching agreement on price.
[177]
On the other hand, the evidence of Mr Kelly tends to support the view that he might not have thought that Mrs Slade should have to pay full market price for the Farm, given the assistance she had given. Further, although Mr Kelly said that he intended the children to share equally, that was inconsistent with the sentiments in his letter to his children written in 2008 in which he stated that Mrs Slade was to inherit the Farm.
[178]
Finally, there is the evidence in the second Kathleen conversation that Mrs Slade said she wished to pay full price to prevent arguments with her siblings. On the evidence of the family disputes about the Farm, that sounds credible. However, Mrs Slade was not in the financial position to make such gestures without difficulty and I think it unlikely she would have done so in this case. In any event, I have already found that I do not accept this conversation occurred as alleged.
[179]
Looked at overall, I do not think the fact that Mrs Slade already had a one-third share is particularly persuasive either way in determining whether the plaintiffs’ alleged agreement was reached.

The terms of the Transfer and Stamp Duty declaration

[180]
Mr Skoien’s submission on the Transfer and the stamp duty declaration was to this effect. The defendants deny they ever agreed to pay $500,000 for the plaintiffs’ shares of the Farm. However, they signed a Transfer showing $500,000 as the consideration which was, he said, inconsistent with that position. He also taxed Mr Slade with a stamp duty declaration signed by him (Exhibit 23) which he submitted should be construed as accepting that the share of the plaintiffs were transferred for a consideration of $500,000. Finally, he submitted that the amount of $500,000 was unable to be explained.
[181]
These matters do not in my view impugn the defendant’s denial of the alleged agreement:
1. (a)
  The source of the sum of $500,000 was said by the defendants to have been the informal valuation given by Mr Wain. I see no basis to reject that evidence, especially given that the later written advice from Mr Wain confirmed it;
2. (b)
  It is unremarkable that the defendants, on their case, signed a Transfer identifying $500,000 as the consideration. The Transfer on its face identifies that as being the sum for the transfer from the three tenants in common to the two joint tenants; and
3. (c)
  Finally, I could not read the stamp duty declaration as communicating that consideration for the plaintiffs’ shares was $500,000, much less that it demonstrated a subjective understanding by Mr Slade that that was the price he and Mrs Slade were to pay. In fact as I read it, it reflected that stamp duty was payable only on the part of the consideration referable to the share of the Farm being transferred. No evidence was led as to the basis upon which the stamp duty amount shown on the stamped Transfer was calculated.
[182]
Mr Skoien also relied on the Mortgage Loan Application as impugning the defendants’ denial of the agreement to pay $500,000. He focused on the fact that that document answered the question “Who will occupy the subject dwelling”, with work “Borrowers”. I do not find this to be evidence unequivocally favouring the plaintiffs’ version. It is also generally consistent with the defendants’ version of events once it is recognised that they intended to build their own house on the Farm. That matter was confirmed by Mr Parker and I accept it to be true.

The alleged consistency of the plaintiffs’ case

[183]
As to the first matter, Mr Skoien pointed to the fact that subject to one exception, the case taken to trial by the plaintiffs had remained consistent.
[184]
The exception was that Mr Kelly initially alleged he had not been paid any money by the Slades but later amended to accept he had been paid $20,000. Mr Fraser cross examined Mr Kelly as to this matter, suggesting it went to his credit. Mr Kelly explained that he was generally vague as to his financial affairs and was unaware of the payment. I accept that he had little understanding of his financial affairs from time to time, relying on his wife then his daughter. I do not find this point a particularly persuasive one on his credit.
[185]
It should be noted, however, that the evidence given by Mr Kelly and the position ultimately taken in addresses did differ somewhat from the pleaded case as I have already outlined. Further, the lack of particulars of the pleaded case make the alleged consistency less compelling. It is not so difficult to remain consistent with a very generally pleaded case.

Alleged listing of the Farm for sale in August 2012

[186]
Mr Skoien contended that the defendants’ position that they agreed with Mr Kelly that he could live on the Farm for the rest of his life was inconsistent with their subsequent conduct in seeking to sell the Farm. He submits that I should find that the so-called PriceFinder listing records for the Farm (Exhibit 22) show that one of the owners of the Farm placed the Farm on the market for sale at least three times after 2010, particularly in August 2012 when Mr Kelly was still on the Farm and Mr and Mrs Slade were the owners.
[187]
Mr Skoien relied particularly on the entry in the PriceFinder records for August 2012. He suggested to Mrs Slade that the PriceFinder documents showed that she must have listed the Farm for sale on that occasion.
[188]
Mrs Slade gave evidence to the effect that entries in the PriceFinder database were made in-house at a particular agency when an owner made an inquiry about selling, rather than when they listed it for sale by executing the relevant appointment document. She said that once such an inquiry was received, the program created a page for the property and automatically filled in certain particulars. She said that the entry only became “live” or was “published”, when the property in question was formally listed for sale by execution of the relevant document appointing the agent to sell. She also gave evidence that the only time she had listed the Farm for sale was in March 2016, after this matter had been commenced and Mr Kelly had been resident in Darwin with his new wife for some time.
[189]
Mr Skoien necessarily relies on this evidence for the purpose of establishing that the agreement between the parties was on the terms his clients allege, the submission being that the conduct of listing the Farm for sale while Mr Kelly was resident on the Farm is inconsistent with the defendants’ version of the agreement and in particular, that they agreed that Mr Kelly would have the right to reside there for as long as he wished.
[190]
However, the evidence, even if accepted, is equally inconsistent with the plaintiffs’ version: i.e. that Mr Kelly was entitled to reside on the Farm rent free for two years pending sale of the Slade’s residence and payment of the balance of the price. That is so because on the plaintiffs’ case, Mrs Slade had no business listing the property for sale in August 2012, some months before the expiry of the 2 year period of the alleged agreement. The conduct therefore does not unequivocally point to an agreement on the terms advanced by the plaintiffs.
[191]
In any event, I am not satisfied that the PriceFinder documents support any finding that Mr or Mrs Slade listed the Farm for sale in August 2012. Although the first print out was tendered and explained by Mrs Slade in evidence in chief on the basis that she was familiar with the database and its operation, it was obvious to me in the course of both her examination in chief and cross examination that Mrs Slade did not fully understand how the PriceFinder system worked.
[192]
Further, the print-outs of various pages of the PriceFinder system were ambiguous on their face. Ultimately, the only fact which seemed clear was that the Farm had been listed for sale for in March 2016, a matter readily conceded by Mrs Slade.

Exhibit 4 and exhibit 14

[193]
These two documents were understandably relied upon heavily by the plaintiffs.
[194]
It is not alleged in the ASOC that either document comprises part of the agreement alleged. Further, despite the lack of particulars of the alleged agreement in the ASOC, it is not open to rely upon them as contractual documents because it is evident from the positive allegations in the ASOC that the alleged agreement was made prior to the execution of the Transfer. Exhibits 4 and 14 came into existence after that time. Accordingly, Exhibits 4 and 14 comprise post contractual documents and their preparation and adoption by the parties comprises post-contractual conduct. How can that conduct properly be used?
[195]
Cases dealing with the impermissible use of subsequent conduct to construe a formal contract^[9]are irrelevant in this proceeding. In the case of an informal agreement of the kind here alleged, the subsequent conduct comprised in Exhibits 4 and 14 might be used:
1. (a)
  As an admission, express or implied, of the terms of the informal agreement alleged by the plaintiffs^[10]; and/or
2. (b)
  To found an inference that that the parties made an informal agreement on particular terms.^[11]
[196]
I intend to deal with those exhibits as potential admissions, rather than evidence from which an informal agreement on particular terms is to be inferred. I do so because in Brice v Chambers [2014] QCA 310, Muir JA (with whom Philippides and Henry JJ agreed) observed as follows:

[197]
Lym International Pty Ltd v Marcolongo[2011] NSWCA 303 was included in the cases cited in footnote 74. I infer that his Honour was referring to the passage identified in footnote 11 above.
[198]
In this case, the plaintiffs do not in my view seek to advance a case of a contract inferred from conduct (with the exception of the variation of the price from $510,000 to $500,000). Rather, the case as advanced in submissions^[12]appears to rely on the oral statements testified to by Mr Kelly and, perhaps, Mrs Kelly. It does not seem to me that these circumstances engage the circumstance contemplated by Muir JA. However, given that there are no complexities about admissions not being admissible against relevant parties (of the kind contemplated in Lym), it probably makes little different which approach is adopted.
[199]
I now turn to consider the documents themselves. In doing so it is necessary to bear in mind the comments of Gleeson CJ in Dovuro v Wilkins(2003) 215 CLR 317 at [25]:

[200]
In this case, context is of particular importance. The plaintiffs relied primarily on the first sentence of the third paragraph in Exhibit 4: “A sum of $240,000 is to be paid to Gordon James Kelly for his share”. Both defendants ultimately accepted in cross examination that that sentence, on their case, was literally false.
[201]
There are other aspects of Exhibit 4 which arguably favour the plaintiffs:
1. (a)
  Paragraph 1 could be read as an admission that the Slades agreed to pay $500,000 for the Farm.
2. (b)
  Paragraph 4, looked at in isolation, appears to constitute this document as the agreement between the parties.
[202]
Taken together, those paragraphs could be characterised as an admission by each of the Slades that they had promised to pay Mr Kelly $540,000 for his one-third share of the Farm. But should they be so characterised?
[203]
This requires a careful consideration of the context and purpose for which the document was produced. In that regard, I find as follows.
1. (a)
  First, the document was not voluntarily produced by Mrs Slade for the purpose of documenting her agreement with her father. Rather it was produced in a hurry on the eve of the Transfer to satisfy the demands of Heritage.
2. (b)
  Second, Mrs Slade was told by someone at Heritage that they needed a document which dealt with the whole of the consideration. Further, while it seems likely to me that Mrs Slade was told such a document was required so that Heritage had a copy of the contract (as contemplated by the letter of offer at paragraph 10, point 5) I do not think Mrs Slade had a mature understanding of what that meant as a matter of law. She struck me as being fairly unsophisticated. Paragraph 4, for example, fails to identify Mrs Kelly as a party to the written agreement. Further despite the involvement of the Slades’ solicitors in sending Exhibit 14, it was not suggested to Mrs Slade that she sought or received any legal advice about the terms of that document or Exhibit 4.
3. (c)
  Third, I find that the document was prepared in haste.
4. (d)
  Fourth, while the Slades were cross examined critically about the fact that the document deceived Heritage, I do not accept that it reflects dishonesty. The document was said by Mrs Slade to be something Heritage needed to complete the Transfer. It did not affect how the loan funds were disbursed. Nor was there any evidence that the text of the agreement was apt to otherwise obtain any benefit for the Slades to the detriment of Heritage or anyone else.
[204]
Given those matters, and notwithstanding his concession in cross examination that the first sentence of paragraph 3 was literally false on his case, I accept Mr Slade’s evidence that he never said to Mr Kelly that he would pay him $240,000 for his share. It was evident from Mr Slade’s evidence that he left the formalities of this deal to his wife. I infer that he signed it because she asked him to do so.
[205]
That leaves Mrs Slade. The plaintiffs undoubtedly would contend that despite all of the above, the fact that she wrote the first sentence in paragraph 3 is an admission which sustains the plaintiffs’ case. I disagree.
[206]
First, while the wording seems to support the plaintiffs, I do not consider it unequivocally does so. I note that following the first sentence comes the word “BUT” in capitals. It is open to read paragraph 3 as communicating that even though $240,000 is agreed to be paid, in fact only $20,000 will be paid. This is particularly so given my findings as to the time pressure under which the document was produced and lack of sophistication of Mrs Slade.
[207]
Second, Mrs Slade says she put that sentence in so that the total matched the consideration, as Heritage demanded, and that it would have been too complicated to put in the whole story. Although I generally have reservations about the reliability of Mrs Slade’s evidence, I accept that evidence. I do so because of the matters of context identified above but also because of the findings made in the course of these reasons, particularly as to the key conversations relied upon by the plaintiffs.
[208]
Bearing those matters in mind, I do not think the first or fourth paragraphs take the matter any further. The first paragraph is explicable as a shorthand way of describing the transaction. The fourth is consistent with the inclusion of words required by Heritage but not fully understood by Mrs Slade or intended by Mrs Slade, to comprise a binding and precise statement of an agreement with her father.
[209]
Given those conclusions, Exhibit 14 does not take matters much further for the plaintiffs as an admission supporting their case.

Inconsistency alleged in the defendants’ case

[210]
Mr Skoien also relied strongly on the inconsistency of the defendants’ pleaded case over time, both internally and with the case as ultimately advanced as trial, as tending to impugn the reliability of the defendants’ version.
[211]
It is correct to say that there are inconsistencies between the original defence and the amended defence, some of which suggest more than the ordinary clarification of instructions over the course of the proceedings which one might expect. For example, the original defence alleged that the defendants agreed to pay $260,000 so Mrs Kelly could move into a nursing home. That was deleted from the amended defence and never suggested in evidence at trial. The pleading in the amended defence raises the alleged agreement to pay the two amounts: $160,000 for the share in the Farm and $100,000 being a loan by Mrs Kelly to Mr Kelly. The evidence of course was that the $100,000 was said to be an inheritance.
[212]
More significant perhaps was Mr Skoien’s submission that the case introduced in the amended defence based on the proposition that the parties agreed that each one-third share was worth $160,000 was a reconstruction by the defendants. Based on the evidence at trial, that is a fair criticism of the pleading. That makes it difficult to conclude that the agreement as alleged by the defendants in the amended defence was ever reached. However, the defendants did not maintain that case in evidence nor in submissions at trial.
[213]
These inconsistencies in the pleading and the case taken to trail do not persuade me that the plaintiffs’ positive case has been established, bearing in mind the other findings and conclusions in these reasons.

Conclusion

[214]
My conclusion is that the plaintiffs have not made out that there was a binding agreement by the defendants to pay $240,000 to Mr Kelly for Mr Kelly’s one-third share in the Farm.
[215]
I do find that there was an understanding between Mr Kelly and the Slades that Mr Kelly would receive $20,000, would be free to live at the Farm as long as he wanted and would continue to be supported and cared for by Mrs Slade as she had been doing more or less since her mother died in return for the Transfer of his share. I also find that that understanding was valuable to Mr Kelly because he was not able to imagine managing without that kind of on-going support from someone, and his preference was that his daughter provide it.
[216]
Whether that understanding was a binding agreement on sufficiently certain terms is not a matter I have to decide. It was submitted by Mr Skoien for the plaintiffs that the pleadings required me to decide between the two agreements contended for, and that if I did not accept the version contended for by the defendants, that I should accept the case advanced by the plaintiffs. I do not accept that proposition. It was the plaintiffs to make out the agreement they alleged. They failed to do so.
[217]
There was an attempt at pleading a restitutionary claim by the plaintiffs. However, as I read the ASOC, the factor which seemed to be relied upon as giving rise to the entitlement to restitution was the failure to pay the $220,000 due under the agreement alleged by the plaintiffs. I could identify no matters pleaded in the ASOC which could give rise to an entitlement to a restitutionary remedy as an alternative cause of action if the agreement alleged was not established (see paragraph 21 of the ASOC), nor was one identified in submissions.
[218]
Finally, the defendants had a counterclaim in the proceedings. It was abandoned by the defendants’ counsel at the start of the trial.
[219]
Accordingly, I dismiss the claim and counterclaim.
[220]
I will hear the parties as to costs.

Footnotes

[1] See paragraph [175] below.

[2] See paragraph [175] below.

[3] T 2-72, L 44-46.

[4] T 2-73, L 3-6.

[5] See paragraphs 8 to 13 of the plaintiffs’ written submissions at trial.

[6] T 1-28 L 31-38.

[7] T 3-87 L 26-44.

[8] T 1-46 L13-22.

[10] See Tomko v Palasty [2007] NSWCA 258 at [13]-[14] and [68] (admission as to the identity of a party to a contract); Lym International Pty Ltd v Marcolongo [2011] NSWCA 303 at [122] to [134].

[12] See in particular paragraphs 16 to 19 of the plaintiffs’ written submissions at trial.

DISTRICT COURT OF QUEENSLAND

CITATION:	Kelly & Anor v Slade & Anor [2017] QDC 288
PARTIES:	GORDAN JAMES KELLY (First Plaintiff) KATHLEEN MARY KELLY (Second Plaintiff)
	AND
	VICKI LEE SLADE (First Defendant) DANNY ALEXANDER SLADE (Second Defendant)
FILE NO/S:	DC No 1634 of 2015
DIVISION:	Civil
PROCEEDING:	Trial
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	7 December 2017
DELIVERED AT:	Brisbane
HEARING DATE:	13 – 16 November 2017
JUDGE:	Porter QC DCJ
ORDER:	The plaintiffs’ claim is dismissed. The defendants’ counterclaim is dismissed.
CATCHWORDS:	MONEY – PAYMENT – OTHER MATTERS – where the plaintiffs transferred their respective interests in the farm to the defendants as joint tenants – where the terms upon which that transfer occurred were in dispute – whether the defendants agreed to pay $250,000 for the first plaintiff’s share. EVIDENCE – ADMISSIBILITY – ADMISSIONS – WHAT CONSTITUTES – where there is evidence of subsequent conduct – whether that subsequent conduct is properly dealt with as an admission of the terms of the informal agreement alleged by the plaintiffs – whether that subsequent conduct is properly dealt with as an inference that the parties made an informal agreement on particular terms. Legislation Property Law Act 1974(Qld) s 59 Cases Brice v Chambers [2014] QCA 310 Dovuro v Wilkins (2003) 215 CLR 317 Fraser v The Irish Restaurant & Bar Company P/L [2008] QCA 270 L Schuler AG v Wickman Machine Tool Sales Ltd [1974] AC 235 Lym International Pty Ltd v Marcolongo[2011] NSWCA 303 Tomko v Palasty [2007] NSWCA 258 Winks v WH Heck & Sons Pty Ltd [1986] 1 Qd R 226
COUNSEL:	A Skoien and H Knowlman for the plaintiffs A Fraser and J Kenny for the defendants
SOLICITORS:	Blue Ocean Law Group for the plaintiffs BR Solicitors for the defendants

Introduction

[1]
From April 2010, the plaintiffs, Mr Kelly and his mother, Mrs Kelly, owned a farming property in equal one-third shares with the first defendant Mrs Slade, who is their daughter and granddaughter respectively. In late 2010, the Kellys’ transferred their respective interests in the farm to Mrs Slade and her husband (the second defendant) as joint tenants. The principal issue to be resolved in this trial is as to the terms upon which that transfer occurred.
[2]
The parties concur that the Slades agreed to pay $260,000 to Mrs Kelly in consideration of the transfer, and it is not disputed that they did so.
[3]
The Kellys ultimately contended that the Slades also agreed:
1. (a)
  To pay a total of $250,000 (later varied to $240,000) for Mr Kelly’s share as follows:
  1. The Slades would pay$20,000 at settlement;
  2. The Slades would pay $20,000 off his credit card debts at or about settlement;
  3. The Slades would pay the balance of $200,000 within 2 years; and
2. (b)
  Pending that payment, Mr Kelly would not charge interest but could live on the farm rent free and without paying utilities.
[4]
The Slades, on the other hand, ultimately contended that they also agreed that for Mr Kelly’s share they would:
1. (a)
  Pay $20,000 at settlement to Mr Kelly;
2. (b)
  Permit him to reside on the Farm for as long as he wished; and
3. (c)
  Continue to assist him as they had done in the past.
[5]
I used the word “ultimately” because the final position at trial of both the Kellys and the Slades differed from their pleaded cases.
[6]
It is not in dispute that the Slades paid Mr Kelly $20,000 at settlement. The central issue in dispute is whether they had also promised to pay him a total of $240,000, such that $220,000 is still owing. For the reasons which follow, I have concluded that no such agreement was reached.

Background

[7]
Mr Kelly and his wife Narelle had four children: Wayne, Graeme, Vicki (Mrs Slade) and Lisa. In about 1994, Mr Kelly and his wife acquired a property at 99 Borcharts Road, Kingaroy (the Farm). The Farm had some irrigated and some dry land farming, along with some pasture.
[8]
The Farm was not the family home while Mr Kelly’s children grew up. They were adults when it was acquired. Despite that, Mr Kelly’s children were involved with the Farm from time to time.
[9]
In about 2007, Mr Kelly’s wife Narelle died. Prior to that time, Mr Kelly had very little involvement in the family accounts or his own financial affairs. He said he would give his wages to his wife and she would manage the financial affairs of the family. On her death, he discovered that he was facing significant financial problems of which he had been unaware:
1. (a)
  First,Mr Kelly’s son Graeme had become the owner of a half share in the Farm with his parents in February 2006. That share was transferred for $150,000. By about mid-2007, Mr Kelly discovered that Graeme had not been meeting payments on a debt secured by a mortgage of the Farm (and/or perhaps guaranteed by Mr Kelly) and that the mortgagee bank was threatening to sell the Farm.
2. (b)
  Second,Mr Kelly discovered that he had significant personal debts totalling about $100,000, including debts on credit cards.
[10]
Mr Kelly approached his mother for help. She agreed to help. It is uncontentious that Mrs Kelly paid $260,000 to assist with Mr Kelly’s financial problems and that in return, she received a transfer of Graeme’s half share in the Farm. The character of the payment is in dispute:
1. (a)
  Mr and Mrs Kelly gave evidence that Mrs Kelly agreed to pay $260,000 in return for the transfer of Graeme’s half share in the Farm.
2. (b)
  Mrs Slade gave evidence that she was told by her father and her grandmother that the payment comprised two components:
  1. A payment of $160,000 to acquire Graeme’s share in the Farm; and
  2. A payment of $100,000 by way of an advance on Mr Kelly’s inheritance from Mrs Kelly. (Mrs Kelly had sold her own property at about this time.)
[11]
Mrs Kelly acquired a half share in the Farm from Graeme and moved into the house on the Farm with Mr Kelly in about September 2007. After that acquisition, Mrs Kelly and Mr Kelly were tenants in common in equal shares in the Farm.
[12]
Mrs Kelly continued to live at the Farm with Mr Kelly until about November 2010.
[13]
Over that period, Mrs Slade provided extensive personal support to Mr and Mrs Kelly. As to Mr Kelly, she took care of his finances for him including doing his banking. Mrs Slade also did household chores, and arranged medical appointments, did his shopping, took him clothes shopping and so on. It is evident that Mr Kelly required such assistance following the death of his wife. He appeared to have had little experience in caring for himself either financially or in maintaining a household.
[14]
As to Mrs Kelly, Mrs Slade also provided similar domestic support. She assisted with medical appointments, errands like hair-dressing appointments and provided personal support including taking Mrs Kelly to hospital for surgery in Toowoomba.
[15]
The plaintiffs each accepted that Mrs Slade alone of Mr Kelly’s children provided this assistance, though Mr Kelly’s other daughter Lisa helped out a little around the time of Narelle’s death.
[16]
In about 2008, Mr Kelly wrote a handwritten statement of wishes addressed to his children stating, relevantly, that Vicki was to have the Farm after he and his mother had passed away. It is evident from this letter that, at least at that time, Mr Kelly intended retaining the Farm until he died.
[17]
Subsequently, in April 2010, Mr Kelly and Mrs Kelly transferred a one-third share in the Farm to Vicki. The reasons for that are not entirely clear though it is agreed that the transfer was Mr Kelly’s idea and was done by him, at least in part, to protect Mrs Kelly against demands on the Farm by Mr Kelly’s other children if he died.^[1]
[18]
In about September 2010, discussions about the sale of the Farm began between Mr Kelly and his daughter. The genesis and content of those discussions is hotly contested.
[19]
However, the parties do agree that between about September 2010 and November 2010, there were discussions, primarily between Mr Kelly and Mrs Slade, about the acquisition of the whole Farm by the Slades. It is also agreed that during those discussions, the Slades agreed to pay $260,000 to Mrs Kelly and $20,000 at settlement to Mr Kelly for the transfer of the plaintiffs’ shares in the Farm. The content of those discussions, and whether they gave rise to a binding agreement between the parties that the Slades would pay Mr Kelly a further $220,000 for the transfer of the plaintiffs’ shares in the Farm, are the central issues in the trial.
[20]
During that period, the Slades sought finance from the Heritage Building Society (Heritage) to acquire the Farm. In mid-November 2010, Heritage informally notified approved finance for $306,000. That approval required a capital reduction of $55,000 within 6 months to be paid from the sale of the Slade’s existing home. It also required the provision of an executed contract of sale to acquire the Farm. No such written contract came into existence, though a document was prepared in December 2010 which is relied upon by the plaintiffs as supporting their case, as identified in paragraph [40] below.
[21]
At about the time that finance approval was communicated to Mrs Kelly, Mrs Kelly moved from the Farm to live with her son Michael, leaving Mr Kelly in sole occupation of the house on the Farm.
[22]
Also at about that time, a Form 1 transfer was signed by all parties by which Mr Kelly, Mrs Kelly and Mrs Slade transferred their one-third interests to Mr and Mrs Slade as joint tenants (the Transfer). The Transfer identifies the consideration as $500,000. It is signed by each of the parties and dated 6 December 2010. It is witnessed by Trudy May Kelly, a Justice of the Peace and Mr Kelly’s daughter-in-law. The circumstances of the execution of the transfer and the date of execution are contentious.
[23]
The Slades paid Mrs Kelly the $260,000 promised to her towards the end of 2010. They also paid Mr Kelly the $20,000 promised to him at about the same time. Thereafter, Mr Kelly remained on the Farm, Mr Slade continued to have involvement in the Farming operations and Mrs Kelly continued to assist Mr Kelly as she had done. In September 2012, Mr Kelly left the Farm. He went to Darwin and ultimately decided to live there permanently and marry an old friend. He did not return to the Farm. In 2014, he demanded payment of the balance of the funds he claimed to be owed by the defendants. These proceedings were commenced in 2016.

The pleaded cases

[24]
The plaintiffs pleaded the agreement they rely upon in the following terms in their amended statement of claim (ASOC):

5.It was a term of the Farm Purchase Agreement that the consideration of $510,000 for the Plaintiffs’ interest in the Farm would be paid by:

(i)
A payment of $250,000 to the First Plaintiff; and
(ii)
A payment of $260,000 to the Second Plaintiff.

6.Shortly after the Plaintiffs and Defendants entered into the Farm Purchase Agreement:

(a)
The First Defendant informed the First Plaintiff that the Defendants would only be able to obtain a loan of $260,000 to purchase the Plaintiff’s interest in the Farm; and
(b)
The First Defendant asked the First Plaintiff whether the Defendants could delay the purchase of $250,000 to be made to the First Plaintiff under the Farm Purchase Agreement.

7.In September 2010 the First Plaintiff agreed with the Defendants that:

(a)
The Defendants could make the payment of $250,000 to the First Plaintiff under the Farm Purchase Agreement within two years of the date of transfer of the Farm, rather than at the date of that transfer; and
(b)
The First Plaintiff would not charge to the Defendants any interest on the sum of $250,000 owed to him for those two years; and
(c)
The First Plaintiff would be allowed to reside at the Farm until the payment of the balance sum, without being required to pay rent or utilities.

8.The agreement pleaded in paragraph 7 above:

(a)
Constituted a variation to the Farm Purchase Agreement; or
(b)
In the alternative, constituted an agreement between the First Plaintiff and the Defendants (the “Loan Agreement”) for an interest free loan of $250,000 for 2 years.

9.In 6 December 2010 the Plaintiffs and the Defendants:

(a)
Executed a document called “Form 1 Transfer” (“Form 1”) in respect of the Farm; and
(b)
Executed a document called “Form 24 Property Information” (“Form 24”) in respect of the Farm.

10.The Form 1 and Form 24 stated that the total consideration payable by the Defendants to the Plaintiffs for the transfer of their interest in the Farm to the Defendants was $500,000.

Particulars

The consideration stated on the Form 1 was $500,000, not the $510,000 that had been previously agreed by the parties.

11.The Plaintiffs signed the Form 1 and the Form 24 in reliance on the Farm Purchase Agreement.

12.By signing the Form 1 and the Form 24:

(a)
The Farm Purchase agreement was varied:
1. To reduce the total consideration payable to the Plaintiffs by the Defendants from $510,000 to $500,000; and
2. To reduce the consideration payable to the First Plaintiff by the Defendants from $250,000 to $240,000;
(b)
In the alternative, the Loan agreement was varied to reduce the amount of the loan from the First Plaintiff to the Defendants from $250,000 to $240,000.

[25]
The ASOC did not plead particulars of how the agreements alleged arose: whether in writing, or oral, or inferred from conduct, or by some combination of those matters. (In the balance of this judgment, I will refer to just one agreement alleged by the plaintiffs. There are two alternative formulations of the agreement: the Farm Purchase Agreement and the Loan Agreement, but nothing turns on the alternative formulation in this case).
[26]
It was evident from how the case was opened and conducted, however, that with one exception, the agreement alleged was oral, the exception being the variation of the purchase price from $510,000 to $500,000. That variation would appear to have been partly in writing (the Transfer and Form 24) and partly by conduct (the acquiescence of Mr Kelly in the reduction of the agreed consideration). However, to the extent that the agreement was oral, the ASOC did not particularise the discussions relied upon as having contractual effect.
[27]
The defendants pleaded an alternative version of the agreement for the Transfer in their amended defence in the following terms (I have retained the marking up of amendments because the course of amendment of the defence is relied upon by the plaintiffs as going to the credibility of the defendants’ evidence):

6.The Defendants deny the allegation in Paragraph 4 of the Statement of Claim.

Particulars

(a)
There was no agreed purchase price to be paid by the Defendants to the Plaintiffs for the purchase of the two thirds (2/3) share of the property owned by the Plaintiffs;
(b)
The First Defendant arranged for a market appraisal to be undertaken on the property), which identified the whole value of the property to be $500, 000.00.;
(c)
The amount paid by the Defendants to the Plaintiffs was agreed upon by reference to the market appraisal and theneeds of the Plaintiffs. The Plaintiffs and the Defendants agreed that the value of each of the third shares for the purpose of this transaction would be $160, 000.00 and that the Defendants would pay all costs of and associated with the Transfer of the Property.and not an agreed purchaseprice of the Plaintiffs interest in the Property
(d)
What had been agreed to between the parties was:-
1. As the Second Plaintiff wanted to vacate the property,the Defendants agreedwouldto providepay tothe Second Plaintiff withthe sum of two hundred and sixty thousand dollars ($260, 000.00) to enable the First Plaintiff to enter into a nursing facilitybeing made up of her one third agreed value of $160, 000.00, and a loan amount owed by the First Plaintiff to the Second Plaintiff in an amount of $100.000.00;
2. The Defendants agreedwould payto and did paypaidto the First Plaintiff twenty thousand dollars ($20,000.00) plus made further payment on behalf of the First Plaintiff towards credit card and other debt in the amount of $18,189.86;
3. The Defendants agreed with the First Plaintiff that the First Plaintiff may reside on the Property free of chargewithout being required to contribute financiallyin lieu of a final lump sum payment in the amount of $21,810.14 being the remaining amount owed for the First Defendant’s interest in the Property;
4. The Defendants agreed with the First Plaintiff that they shall provide constant andsubstantial financial assistance regarding the living expenses of the First Plaintiff in lieu a final lump sum payment in the amount of $21,810.14 being the remaining amount owed for the First Defendant’s interest in the Property;
5. The Defendants agreed with the First Plaintiff that should the First Plaintiff be required to move into a low care nursing facility, or similar facility that the Defendants would pay the bond for such facility;
6. (v) The First Plaintiff knew that after the payment was made to the Second Plaintiff and the payment of twenty thousand dollars ($20, 000.000) to the First Plaintiff along with payment of $18,189.86 off accrued debts of the First Plaintiff wasmade the First Plaintiffthat the Defendants did not have capacity to pay any further funds towards either the First or Second plaintiff.

[28]
The amended defence thereafter denied that there was ever any agreement to pay Mr Kelly an amount of $250,000 or $240,000 and that that was not the value of Mr Kelly’s one-third share.
[29]
Like the ASOC, the amended defence also did not plead particulars of how the alleged agreed terms arose. However, it was again evident from the evidence led that the agreement alleged arose for oral statements.
[30]
Neither party in addresses identified in a precise manner the particular conversations relied upon as having contractual effect. I have therefore attempted to identify in the course of these reasons the relevant conversations, particularly those required to make out the plaintiffs’ case.
[31]
The evidence ultimately given was not consistent with the pleaded case of either party, though the divergence from the pleaded case was more significant for the defendants than for the plaintiffs. However, no objection was taken to any evidence on that basis and the agreements contended for by each party were made reasonably clear at the start of addresses, as set out in paragraphs [2] to [5] above.
[32]
I also observe that the agreement alleged by the plaintiffs was one to which Section 59 of the Property Law Act 1974(Qld) would seem to apply. However, that section was not raised in the amended defence and I do not propose further to consider the impact of that section.

Summary of the competing versions of the dealings between the parties

The plaintiffs’ version

Mr Kelly’s evidence

[33]
Mr Kelly said that in 2007 he was in financial difficulty because of his son Graeme’s debts secured on the Farm and his own debts and therefore offered to transfer a half share in the Farm to his mother for $260,000 to solve those problems and enable him to keep the Farm. His mother agreed. Thereafter she came to live at the Farm. He accepted that from then until about September 2010, Mrs Slade provided care and support to both him and his mother.
[34]
Mr Kelly’s evidence about the genesis of the Transfer was as follows. He said that in about April 2010, he decided he should transfer a one-quarter share in the Farm to Mrs Slade because he was worried about Mrs Kelly’s position at the Farm given some trouble being made by “the boys” (presumably his two sons). This occurred at the time of some health scares for Mr Kelly. In cross examination, however, he also gave evidence that reward for Mrs Slade’s support was part of the deal.^[2]He considered that Mrs Slade could protect his mother if he (Mr Kelly) died. He said that Mrs Slade received one third rather than one quarter because that was how his solicitor prepared the transfer.
[35]
He said that in about September 2010, he decided to sell the Farm outright because he was tired of fighting between his children about the Farm and because strain was emerging between Mrs Slade and her grandmother arising out of Mrs Slade’s lack of time to continue to assist his mother as she had been doing. He says he listed the farm for sale for $600,000.
[36]
He said that, thereafter, Mrs Slade “turned up” and asked him if she and Mr Slade could buy the Farm. He said he offered her the Farm for $500,000, but corrected himself later in his evidence and said he told her $510,000 was his initial asking price. She then “went off to get finance”. He said neither Mr Slade nor Mrs Kelly were present for this conversation (the first Gordon conversation).
[37]
He said that some time later there was a second conversation in which Mrs Slade told him that she and Mr Slade “couldn’t get the $500,000” because they had to sell their existing house first. They could get enough money to pay Mrs Kelly after the house was sold and she asked if Mr Kelly would wait 2 years for his money. Mr Kelly says he agreed but said that he wanted a contract drawn up. He said neither Mr Slade nor Mrs Kelly were present for this conversation (the second Gordon conversation).
[38]
He said that there was also a third conversation in which Mrs Slade asked him how much money he would need to get by and then she offered $40,000, to which he agreed so that he could “start moving on”. He said neither Mr Slade nor Mrs Kelly were present for this conversation (the third Gordon conversation).
[39]
His recollection of the signing of the Transfer was that Mr and Mrs Slade attended at the Farm together. He said this occurred before Mrs Kelly left the Farm to go and live with his brother Michael. He said this occurred towards the end of November 2010. He said that the witnessing officer, Trudy Kelly was not present. He said that Mrs Slade presented the Transfer and covered the consideration section of the Transfer with her hand when she showed Mrs Kelly where to sign. He said that he noticed the consideration was $500,000 not $510,000 when he signed but acquiesced in the change in the price.
[40]
He was referred to a handwritten document which was exhibit 4 in the proceedings (Exhibit 4). It was not disputed that this document was written by Mrs Slade. It provided:

Heritage Building Society

ATT Gerald White

I (Danny and Vicki Slade) have purchased the farm at 99 Borcharts Road Kingaroy, for agreed price of $500,000.00

A sum of $260,000.00 is to be paid to Kathleen Mary Kelly for her share.

A sum of $240,000.00 is to be paid to Gordon James Kelly for his share. But under an agreement between Gordon, Danny and myself Dad (Gordon) is to be paid $20 000.00 on settlement date.

This written agreement has been agreed between all parties (Gordon, Danny and I).

On settlement a sum of

$260,000.00 to be paid to Kathleen Kelly

$20,000.00 to be paid to Gordon Kelly.

Danny SladeVicki SladeGordon Kelly

Signature Signature Signature

[41]
When shown this document, he stated that he had not seen it before “all this started” (presumably referring to the proceedings). The contrary was not suggested to him in cross examination. He accepted however that his signature appeared on it and that it reflected the agreement he contended for except his recollection was that Mrs Slade had offered to pay $40,000 at settlement, not $20,000.
[42]
He said that he stayed at the Farm until September 2012, when he went to Darwin. He did not return to the Farm and ended up marrying and taking up residence there. He initiated proceedings after Mrs Slade had failed to honour the agreement and had raised the issue of him having left the Farm.

Mrs Kelly’s evidence

[43]
Mrs Kelly gave evidence which in some respects tended to corroborate Mr Kelly’s account.
[44]
She maintained that she paid $260,000 for a share in the Farm to assist Mr Kelly with his financial problems.
[45]
As to the genesis of the Transfer, she confirmed that Mr Kelly put the Farm on the market in September 2010. She said that there were two inspections of the Farm. (The plaintiffs’ counsel disavowed any reliance on the correctness of that evidence.) She also said that she did not demand her $260,000 so she could go to live with her son Michael in about September 2010, and that the prospect of her going to live with her son Michael did not emerge until later, in about November 2010.
[46]
She gave evidence of two material conversations.
[47]
The first conversation was one between Mrs Slade and Mr Kelly at which she says she was present. She says Mrs Slade said she was happy to forgo her part in the Farm and buy it for $510,000 to avoid conflicts with her siblings about the transaction (the first Kathleen conversation).
[48]
Her evidence about execution of the Transfer was generally consistent with Mr Kelly’s. She said that all four were present together when the Transfer was signed and that Trudy Kelly was not present. She said she signed despite Mrs Slade covering up the consideration on the basis that she trusted her to put the correct sum. However, she maintained that she left the Farm by 10 November 2010.
[49]
The second relevant conversation she gave evidence about occurred at the time of signing the Transfer. She said all four were present when Mrs Slade asked her father if he would wait for 2 years for his payment and he said yes he would. She recalled nothing else about that conversation (the second Kathleen conversation).

The defendants’ version

Mrs Slade’s evidence

[50]
Mrs Slade’s version of the genesis of the Mrs Kelly’s acquisition of a half share in the farm in 2007 was similar to that of the plaintiffs except that she said her father told her that Mrs Kelly was paying $160,000 to buy into the Farm so as to pay off Graeme’s debts and was giving $100,000 as an advance on Mr Kelly’s inheritance to pay his own debts.
[51]
As to her one-third share, she said that the idea was raised by her father in 2008 (when it seems he had a health scare). The purpose of her being granted a share was so that if her father died, she would already be on the title and could prevent her brothers from giving her grandmother difficulties. Her evidence is therefore similar to Mr Kelly’s evidence in this respect. There was no suggestion by her of any change in purpose between 2008 and April 2010, when the transfer was made to here.
[52]
However, her version of the genesis of the Transfer is markedly different from her father’s version. She said that the idea of her and Mr Slade buying the Farm was her father’s idea. She said that late one night in late September 2010, her father came out to her house while her husband was away working night shift and told her that his brother Michael was in financial trouble and that Mrs Kelly had told Mr Kelly that she need to get her money out of the Farm and required repayment of the $100,000 she had given Mr Kelly as an advance on his inheritance. She said he told her he wanted his mother out of the Farm. Mr Kelly asked if the Slades would buy out his mother’s share of the farm. Mrs Slade said she would ask her husband.
[53]
When he returned from night shift, she spoke to Mr Slade about her father’s request. He told her that he was interested only if they acquired the whole Farm. He told Mrs Slade to see what the bank said. Mrs Slade said she know nothing about the Farm being listed for sale at that time.
[54]
Mrs Slade said that the next day she had a discussion with her grandmother in which she confirmed that she and Mr Slade would look into buying the Farm but it depended on what the bank said. She said her grandmother confirmed she needed money for her son Michael, and that she regretted demanding the additional $100,000 back from Mr Kelly. She said Mr Kelly arrived in the course of this conversation.
[55]
She also said that she told Mr Kelly that Mr Slade had insisted that if they assisted, they had to acquire the whole Farm. She said Mr Kelly was upset by this and insisted that he must stay living at the Farm. Mrs Slade says she agreed he could do so. She also said a conversation in similar terms was held with her grandmother.
[56]
She said she then arranged for an agent, Mr Wain, to come out and do a valuation on the Farm. She says this occurred in October 2010. She said she and Mr Slade met him at the Farm and that he told them that the estimated value was $500,000. This was later confirmed in writing dated 1 December 2010.
[57]
Thereafter, she rang Mr Parker of Heritage. She said that she told him that she and Mr Slade were looking to buy the whole property, that they were planning to build on the Farm and that they had to pay out Mrs Kelly’s share in the amount of $260,000. She also said to them that Mr Kelly was intending to continue residing in the existing house and that he would not be paid any money.
[58]
The next step was the attendance of Mr Parker and Mr McKenzie from Heritage at the Farm. Mrs Slade said that she and Mr Slade met Mr Parker and Mr McKenzie at the Farm. They inspected the Farm and were told of the plan to build on the Farm and for Mr Kelly to remain in the existing house. They all met with Mrs Kelly and had a coffee with her.
[59]
Mrs Slade said that she and Mr Slade then made a finance application. There is no document comprising a comprehensive finance application in evidence. There is a one page mortgage loan application dated 10 November 2010 signed by Mr Slade seeking finance of $396,900 to be repaid over 12 months (the Mortgage Loan Application). That figure does not correspond with any version of the alleged agreement and was never explained in evidence by Mrs Slade, nor was the basis upon which the amount was determined satisfactorily resolved in evidence by Mr Slade.
[60]
Mrs Slade said that sometime after the meeting on the Farm with Mr Parker, she had a conversation with her father in which she told him that she and Mr Slade could pay him $20,000. She said that she then rang Heritage and told them about the payment of $20,000 to Mr Kelly and asked if that made a difference. It was in that context that she recalls being told that finance at $306,000 had been approved.
[61]
The next material conversation she recalled was a conversation after Heritage had informed them of the loan approval. She says that she and Mr Slade went to the Farm and told Mrs Kelly about the approval and that she could pay her the $260,000. She says her grandmother then expressed regret that she had to reclaim the $100,000 from Mr Kelly. She told her grandmother that Mr Kelly could stay at the Farm. She said soon after that, Mrs Kelly left the Farm.
[62]
Mrs Slade also said that there was a later conversation after Mrs Kelly left the Farm at which she and Mr Slade were present. She says she told her father again that they could pay $20,000 and that he could live on the Farm until the day he died. When shown a copy of a handwritten list of credit card debts (Exhibit 7), Mrs Slade added that in this conversation she also offered to assist and help Mr Kelly with his everyday expenses.
[63]
Her evidence as to the signing of the Transfer differed from the plaintiffs’ version. She said that she brought the Transfer to the Farm with Mr Slade after Mrs Kelly had left. That is, sometime in mid to late November 2010. She says that her father, her husband and she signed the Transfer that day in Trudy Kelly’s presence and that Mrs Kelly signed the next day at Trudy Kelly’s house in Kingaroy.
[64]
She expressly rejected the suggestion that she covered up any part of the Transfer or had any discussion with Mrs Kelly of any substance when she signed the Transfer.
[65]
She also gave evidence about Exhibit 4. On 21 December 2010, Heritage was preparing to settle the Transfer and loan. On that day she received an email from Wayne Bradford of Heritage seeking disbursement instructions. She responded with instructions that $260,000 be paid to Mrs Kelly’s account, $20,000 to Mr Kelly’s account and the balance of the loan ($26,663.29) to the Slade’s own account (Exhibit 21).
[66]
She gave evidence that after sending these details, she was contacted by Gerald White of Heritage who told her that her disbursement instructions were inadequate for Heritage’s needs. Her recollection was that he said that the figure needed to come up to the consideration of $500,000. She said he told her “the previous piece of paper was just not good enough. They could use it for the account details, but it was not …able to be used as what they wanted it for”.^[3]She says that “I do remember in the conversation it didn’t matter what details. It was just that 260 was to Nana, another amount of 240, which happens to be dad’s share, along with an agreement that we had with Danny, Vicki and Gordon. But the figure had to come up to 500,000”.^[4]
[67]
Mrs Slade then drafted Exhibit 4 and had Mr Slade and Mr Kelly sign it. She then faxed it to Heritage. On or about the next day, the Slade’s solicitors also sent a letter to Heritage (Exhibit 14). It provided, relevantly:

We refer to the above matter and instruct that we act for Vicki & Danny Slade in regards to the transfer of property owned by Vicki Slade, Gordon Kelly and Kathleen Kelly.

We confirm that Kathleen Kelly has agreed to sell her share of the property to Vicki & Danny Slade in exchange for payment of $260,000.00.

[68]
Thereafter settlement occurred and the Transfer was then registered. Mrs Slade gave evidence that stamp duty was paid on 2/3 of the consideration of $500,000. The stamped version of the Transfer shows duty was paid in the amount of $5834.50 (Exhibit 25). There was no evidence that her understanding was incorrect.
[69]
She said that after completion of the Transfer, Mr Kelly remained at the Farm until September 2012 and she and Mr Slade provided ad hoc financial assistance to Mr Kelly, paying on-going expenses and credit card payments.
[70]
She gave evidence of a number of specific payments:
1. (a)
  She said she gave Mr Kelly money for two holidays: one in 2011 to Longreach where they gave him about $2000 and one in 2012 to Darwin where they gave his about $3000;
2. (b)
  She said she provided a car fridge and canopy and paid for repairs to Mr Kelly’s ute so he could take the holidays. The ute repairs were about $1200 and the later $3000.
[71]
Mrs Slade conceded that no bank statements or other financial records had been produced by her which show any such payments, nor indeed any payments from the Slade’s accounts to Mr Kelly. Nor is there evidence of cash withdrawals relied upon as comprising payments to Mr Kelly. Her evidence was that these and other payments were made generally by cash payments from Mrs Slade to Mr Kelly on account of particular debts or obligations. In cross examination, she was unable to identify sources of cash on hand for the Slade family which could have funded these payments.

Mr Slade’s evidence

[72]
Mr Slade gave evidence that the purchase of the Farm was first raised with him by Mrs Slade after he came home from night shift one morning. He said Mrs Slade told him her father had visited during the night and asked whether the Slades could help out by buying into the Farm because Mrs Kelly “wanted out”. He said it would depend on whether they could get the money.
[73]
He also said that around that time his wife told him that Mrs Kelly needed the $160,000 she had paid for the Farm and the extra $100,000 she had lent or given to Mr Kelly.
[74]
He also said that from the outset, he told his wife he would not be interested unless they acquired the whole Farm. He was not interested in going into partnership with Mr Kelly.
[75]
He also said that at some stage around that time, Mrs Slade had told him that Mr Kelly did not want to leave the Farm.
[76]
His next direct involvement was to attend the farm with Mr Wain in mid-October 2010 so they could obtain an estimate of value. He recalls showing Mr Wain around the Farm and that Mr Wain gave a verbal estimate of $500,000.
[77]
His next direct involvement in the matter was at the meeting with Mr Parker and Mr Mackenzie at the Farm. He recalls showing them around the Farm, that they were told about the proposal to build the barn style house on the Farm for the Slades and that they required the “160 and the 100” for Mrs Kelly’s share.
[78]
Mr Slade confirmed that he signed an authority dated 27 October 2010 for Heritage to do a valuation on both the Farm and the Slade’s home and that he signed the Mortgage Loan Application. No explanation for the amount identified in that document was sought from Mr Slade.
[79]
Mr Slade said that he did not have any conversations with Mr Kelly or Mrs Kelly directly prior to notification of approval of the loan sought from Heritage. He also gave evidence of only two conversations he was involved in after that time of relevance.
[80]
First, he said that while the written approval came dated 25 November 2010, informal approval was communicated to Mrs Slade (and by her to him) prior to that time. He said that the informal approval was the catalyst for him and his wife to then go to the Farm. He said this occurred in about early November 2010. He said that on this occasion, all four of the parties were present. He said that on this occasion, he or his wife told Mrs Kelly that she would get her $260,000 and that Mr Kelly was free to stay on the Farm and that he and Mrs Slade would continue to take care of Mr Kelly.
[81]
Second, he described a conversation with Mr Kelly at the Farm after the final approval (presumably the written approval) was received. He said that on that occasion, Mrs Slade told Mr Kelly that he would receive his $20,000, that he could stay on the Farm as long as he wanted and that he and Mrs Slade would continue to help him as they had before. He said Mr Kelly said he was happy he could stay on the Farm.
[82]
Mr Slade’s version of the execution of the Transfer was consistent with Mrs Slade’s version. He gave no evidence as to how Mrs Kelly came to sign the Transfer, having played no part in that process.
[83]
Mr Slade also dealt with Exhibit 4. He accepted that he signed the document. He recalled signing the instructions for disbursement of funds referred to in paragraph [65] above. He said that after that, his wife told him that Heritage required more information than just the disbursement information. That was the reason he signed the document.
[84]
He denied that he ever was involved in any conversation where Mr Kelly was promised $240,000 for his share.
[85]
He said he was unable to give evidence of assistance given to Mr Kelly because he was not involved in the financial dealings between his wife and her father.

Mr Parker

[86]
The defendants also called Mr Parker, at that time he was a banker with Heritage. He was plainly very nervous. He confirmed that when Mrs Slade called him initially, she said she wished to borrow money to pay out Mrs Kelly from the Farm. He said that he later went to the Farm with Mr McKenzie and met the Slades. He said they showed him around the Farm and told him they were looking to pay out Mrs Kelly and to build a barn style house on the Farm later. He said that Mrs Slade told him Mr Kelly was to remain on the Farm in the existing house.

Inconsistencies between the pleaded cases and the evidence at trial

[87]
Both parties made submissions as to the correlation between the agreements as pleaded from time to time and the evidence ultimately led at trial for the purpose of undermining the reliability of the evidence given.
[88]
With a couple of exceptions, which I will note in due course, the parties each stuck to their versions in cross examination. It is useful therefore to identify the extent to which the evidence of each of the parties sustains the cases as pleaded.

The plaintiffs’ pleaded case compared to the plaintiffs’ evidence

[89]
A comparison of the three Gordon conversations and the variation conduct to the plaintiffs’ pleaded case discloses the following:
1. (a)
  To the extent that the agreement alleged in paragraphs 4 and 5 of the ASOC is to be proved by the first Gordon conversation (as I seems it must be), Mr Kelly did not give evidence to sustain an oral agreement of the split of the $510,000 between himself and his mother.
2. (b)
  To the extent that the allegations in paragraph 6 and 7 relate to the second Gordon conversation, Mr Kelly did not give evidence that Mrs Slade referred to $510,000 as the consideration, rather his evidence was that she referred to $500,000.
3. (c)
  Further in none of the Gordon conversations does he give evidence that the Slades offered to permit him to stay at the Farm rent free for 2 years, nor that he agreed not to charge interest for that period. To this extent he did not make out paragraphs 7(b) and (c) of the ASOC.
4. (d)
  In none of the Gordon conversations does he give evidence that Mrs Slade actually nominated $250,000 nor $240,000 as the amount payable to him.
5. (e)
  In the third Gordon conversation he gives evidence that Mrs Slade offered and he accepted that the Slades would pay $40,000 on settlement. That allegation does not appear anywhere in the ASOC.
[90]
A comparison of the two Kathleen conversations to the plaintiffs’ pleaded case discloses the following:
1. (a)
  In neither of the Kathleen conversations does Mrs Kelly give evidence of discussion of the split of the $510,000 between the plaintiffs.
2. (b)
  In the second Kathleen conversation, she gives no evidence that the Slades offered to permit Mr Kelly to stay at the Farm rent free for the 2 years, nor that Mr Kelly agreed not to charge interest for that period (as alleged in paragraphs 7(b) and (c) of the ASOC).
[91]
The plaintiffs did not link either of the conversations to which she deposes to the pleaded allegations. If her evidence is not linked to any of the key contractual discussions, her evidence might be treated as comprising admissions by Mrs Slade. It was unclear from the plaintiffs’ submissions what role the evidence of Mrs Kelly otherwise played in the plaintiffs’ case.
[92]
There are other problems with Mrs Kelly’s evidence which I detail below from paragraph [99] I have put little weight on her evidence.

The defendants’ pleaded case compared to the defendants’ evidence

[93]
A comparison of Mrs Slade’s conversations to the amended defence discloses the following:
1. (a)
  In none of the conversations that she deposes to is there any evidence to sustain an oral agreement that the value of each of the one-third shares in the Farm would be $160,000, or an oral agreement that the amount to be paid was agreed on by reference to the market appraisal and the needs of the plaintiffs, as alleged in paragraph 6(c) of the amended defence.
2. (b)
  In none of those conversations is there any evidence to sustain an oral agreement that Mr Kelly’s right to reside was in lieu of a payment of $21,810.14 or any specific residual amount, as alleged in paragraphs 6(d)(iii) and (iv) of the amended defence.
[94]
In none of those conversations is there any evidence to sustain an oral agreement that the Slades would provide substantial financial assistance regarding Mr Kelly’s living expenses in return for the transfer of his interest, although the evidence of the conversation where Mrs Slade said she offered to assist Mr Kelly with his everyday expenses might be thought to be sufficient, in context, to raise that matter.
[95]
Mr Slade’s evidence does not remedy the failure to make good the allegations identified in paragraph [93] above though Mr Slade frankly conceded he was only involved in the two conversations he identified.
[96]
Neither party ultimately contended for their pleaded cases (such as they were) on the evidence at trial. However, neither side objected to the reformulation of the agreement contended for at trial by the other. Rather, each side relied upon the some of the inconsistencies identified above as providing a reason to prefer that side’s reformulated version of the agreement. Accordingly, the matter to be decided by the Court is whether the plaintiffs have made out the agreement that they contended for at trial as formulated in paragraph [3] above.^[5]

General observations about reliability of the witnesses

[97]
In my view, neither Mr Kelly, Mrs Kelly nor Mrs Slade were reliable historians.
[98]
Mr Kelly’s evidence was very vague. His evidence in chief dealt with the main points which he needed to prove, but his evidence lacked context and content. Further, Mr Kelly was at pains to point out from time to time that he was reliant first on his wife, and then on his daughter, to manage his financial affairs. He had little recollection of his financial or family dealings because of that reliance and because of his lack of interest in, or understanding of, his financial and personal affairs. A good example was his apparent lack of understanding of even basic matters relating to the financial problems arising with his son Graeme. His cross examination on his previous affidavit in the proceeding also disclosed, at the least, that he was prepared to adopt as correct statements which he did not seem to understand.
[99]
Mrs Kelly’s evidence was unpersuasive for a different reason. She struck me as a person very determined in her own views, whether correct or not. She certainly believed her evidence to be true, but there were a number of aspects in which her confident certainty was misplaced either because the evidence appeared mistaken or implausible. For example:
1. (a)
  While Mr Kelly said he listed the Farm in 2010 before Mrs Slade approached him but did not mention any, Mrs Kelly gave evidence of two inspections by buyers. The plaintiffs’ counsel disavowed any reliance on that evidence, but it was given with great confidence by Mrs Kelly.
2. (b)
  Another example is her determination to deny she had ever seen the Transfer before Mr Fraser had asked her anything about it. Although her later evidence clarified her position somewhat, it did not dispel the impression of her initial determined position to deny a proposition she thought wrong, even before she had heard the question.
3. (c)
  Similarly, she was quick to assert that she had never seen the transfer document by which Graeme’s share in the Farm was transferred from him to her in 2007, and maintained that she never understood that she was acquiring Graeme’s share, nor that the consideration for that acquisition was the amount on the transfer of $160,000. I find those propositions inherently improbable. At the least she must have had some role in instructing her solicitor as to the particulars in the transfer document but she was rigidly determined that she knew nothing about these matters.
4. (d)
  Perhaps most revealing was her certainty that she never saw anybody visit the Farm with Mrs Slade between September and November 2010. Asked about the visit by Mr Parker and Mr McKenzie, her response was that that never happened. It did happen, as was confirmed by Mr Parker, who also recalled meeting Mrs Kelly.
[100]
Mrs Slade’s evidence was also not compelling. Like Mr Kelly, her evidence was frequently vague as to what was said and when. When giving evidence about conversations, she tended to recount her impressions of how the participants felt, or to state conclusions she drew about the conversations, rather than the substance and effect of words used. While a degree of imprecision is understandable in a case like this, the role of the Court is to make findings about what was said and done rather than the subjective impressions which the parties hold about that matter.
[101]
I recognise that Mrs Slade, and indeed all the witnesses, were nervous (with the possible exception of Mrs Kelly). But even allowing for all those matters, Mrs Slade’s evidence was not such as to give me confidence as to its reliability. In evidence in chief on at least one occasion, she required a number of attempts to get to the important points. In cross examination she was vague and sometimes not responsive when pressed on doubtful areas of her evidence.
[102]
Added to those matters was the apparent errors in her evidence in chief exposed in cross examination. There were two areas in which she was decisively shown to have given unreliable evidence.
[103]
The first was her evidence to the effect that she paid for the ute repairs, holidays, canopy and car fridge. She accepted that there was no evidence of payment of any of these sums from the Slade’s accounts. She said however that the mode of payment involved reimbursing her father in cash for expenses he paid. Unfortunately she could not then credibly identify any source of such cash available to the Slades, especially as the amounts were substantial in some cases. Mrs Slade created her own problems with this evidence. Mr Kelly did not dispute that she might have made some or the payments alleged because he did not know enough about his financial affairs. While I accept that she probably did sometimes make the payments for her father, her evidence as to the payments allegedly made was exaggerated and not reliable, and I reject it.
[104]
The second was her evidence that she received a handwritten note of credit card debts from her father around the time of the Transfer showing the amount identified in the amended defence: $18,189.86. It was plain that that note was written in about 2008, as was demonstrated by the credit card statements tendered at trial (Exhibit 7). She was plainly wrong about this and the allegation that these amounts were paid was rightly abandoned at trial.
[105]
Mr Slade struck me as the most forthright and reliable of the parties. He did not seek to exaggerate his involvement in events and his version of the events he was involved in struck me as clear and credible.
[106]
While I found him generally to appear to give reliable evidence, it is plain to me that he has conducted this case based on his trust in his wife’s instructions. That cannot help but have the potential to influence his evidence to some degree.
[107]
I had no reason to doubt Mr Parker’s evidence so far as it went.
[108]
The above observations do not of themselves lead me to conclude that any of the parties’ evidence should necessarily be rejected in its entirety. However, it is grounds for caution in accepting evidence which is not corroborated in some manner by contemporaneous documents or which seems inherently implausible given other circumstances. It is those matters I now turn.

The key issue

[109]
As I have already observed, to succeed in this proceeding the onus is on the plaintiffs to establish the agreement alleged at trial. The central matter in that regard is that the plaintiffs establish that the defendants agreed to pay $510,000 (or $500,000) for the plaintiffs’ two-thirds shares in the Farm and agreed to pay $250,000 (or $240,000) for Mr Kelly’s share in particular.
[110]
The defendants do not have to establish that the parties entered into the different agreement that they ultimately alleged at trial, although the failure to establish that agreement might favour the plaintiffs case in at least two ways:
1. (a)
  Because the failure to make out the case alleged affects the credibility of the defendants’ denial of the plaintiffs’ allegations; and
2. (b)
  Because the absence of an agreement of the kind alleged by the defendant might make the plaintiffs’ case more probable because it might be thought unlikely that Mr Kelly would have transferred his interest without some agreement as to the quid pro quo for doing so.
[111]
The starting point is to analyse the evidence of the key conversations relied upon by the plaintiffs.

The circumstances of Mrs Kelly’s buy in

[112]
It is not in dispute that Mrs Kelly paid $260,000 when she bought into the Farm in 2007. It is not in dispute that Mrs Kelly did so because Mr Kelly’s son Graeme was in financial difficulty and owed money which was secured on the Farm in some manner. There is, however, a dispute as to how that payment should be characterised.
[113]
Mrs Slade said that she was told when Mrs Kelly bought in, that Mrs Kelly was paying $160,000 for the share in the Farm and paying another $100,000 to Mr Kelly to permit him to pay his own debts as an advance on his inheritance. She said this was raised again when Mr Kelly approached her to buy the Farm.
[114]
Mrs Kelly asserted that she paid $260,000 to buy into the Farm and rejected that there was any discussion or inheritance or anything similar. Mr Kelly, however, was much more equivocal on this in cross examination on the subject.
[115]
I find that when Mrs Kelly bought into the Farm, Mr Kelly did tell Mrs Slade that Mrs Kelly was paying $160,000 to buy into the Farm and giving him another $100,000 to pay his debts. That seems likely given the following reasons.
[116]
First, Exhibit 12 shows consideration for Mrs Kelly’s half share at $160,000. This is generally consistent with the consideration recorded in the transfer for Graeme’s half share at $150,000 (Exhibit 5). Although Mrs Kelly denied any recollection of that transfer, it is inherently improbable that her solicitor did not discuss the consideration for the transfer with her. I think at the time she would have been aware of what she was paying for the share in the Farm. If this is so, it is likely she would have considered that the additional $100,000 required by Gordon was not consideration for the Farm, but some kind of gift or advance to him.
[117]
Second, Mrs Kelly’s determination to reject any suggestion that she discussed the $100,000 as a separate advance or gift to Gordon might be genuine. However, it is understandable that over time she might have come to see the $260,000 she paid as being “for the Farm”, and to persuade herself that this was so.
[118]
Third, Mr Skoien suggested that the reference to the $100,000 as a loan rather than an advance on the inheritance told against the credibility of the overall assertion. I agree that the defendants have probably reconstructed the discussions with Mr Kelly and Mrs Kelly about the “inheritance” somewhat over time. However, this does not persuade me that there was not some kind of discussion in 2007, and again in 2010, of the kind described by the Slades.

Genesis of the Transfer and the first Gordon conversation

[119]
Central to the plaintiffs’ case is the first Gordon conversation. It appears to be the only direct evidence of conversations which could sustain the allegation of the Farm Purchase Agreement made in paragraphs 6 and 7 of the ASOC. It also has the added importance of occurring at the time the issue of the Transfer first arose. The circumstance in which that occurred is an important consideration in the weighing of each parties’ case.

Genesis of the Transfer

[120]
Mr Skoien submitted that the defendants’ case was implausible because Mr Kelly would not have transferred his sole significant asset for negligible consideration comprised in $20,000 and a right to continue to reside at the Farm. He emphasised that Mr Kelly already had the right to reside at the Farm and therefore he was receiving very little on the defendant’s case.
[121]
Mr Fraser for the defendants sought to answer that submission in the following manner. He submitted that the genesis of the transaction was that Mrs Kelly was determined to leave the Farm because she needed to assist her other son Michael and needed to get her full $260,000 back from Mr Kelly for that purpose.
[122]
He submitted that Mr Kelly was not able to get meet his mother’s demands without him selling the Farm, unless the Slades bought in and provided the money required by Mrs Kelly. As Mr Kelly wanted to remain on the Farm, and was content to rely on Mrs Slade to continue to take care of him as she had done, it was an acceptable outcome from him if the Slades bought the whole of both interests so long as they paid for Mrs Kelly’s share and gave him some “play money”. This secured his continued residence at the Farm.
[123]
It is therefore important to make findings about the genesis of the Transfer. I find in this regard that the genesis of the transaction was as alleged by the defendants. I find that:
1. (a)
  Mrs Kelly decided in about October 2010 that she needed to provide financial assistance to her son Michael and needed to recover money she paid in 2007 from Mr Kelly for that purpose;
2. (b)
  She asked Mr Kelly to take steps to make that money available;
3. (c)
  Mr Kelly then visited Mrs Slade in some distress late one evening and told her about Mrs Kelly’s demands and asked her to assist by buying into the Farm; and
4. (d)
  Mrs Slade agreed to ask Mr Slade about it.
[124]
I make those findings for the following reasons.
[125]
First, there was no evidence of steps by Mr Kelly to list the Farm for sale as he alleged, other than Mr Kelly’s evidence which was, like much of his evidence, lacking in any detail or context.
[126]
Second, there was a significant divergence between Mrs Kelly and Mr Kelly about when the prospect of Mrs Kelly going to live with Michael first came up. While Mrs Kelly, with characteristic inflexibility, asserted it did not come up till November 2010, Mr Kelly ultimately conceded in cross examination that he raised the fact that Mrs Kelly was going to live with Michael in conversation with Mrs Slade during their first conversation.
[127]
Further, it was uncontentious that Mrs Kelly needed considerable personal support, given her age and health issues. It was also uncontentious that she left the Farm with alacrity in mid-November, as soon as she was told that the Slades would pay her $260,000, and went to live with her son Michael. I think it implausible that an elderly person with health and support needs typical of her age would be able to suddenly change her living arrangements and move in with an adult son. I think it likely that there was discussions well before mid-November about that move. For this reason also I do not accept Mrs Kelly’s evidence on this matter.
[128]
Third, Mrs Slade’s version is confirmed in its particulars as to timing by Mr Slade. As I have said, I generally found Mr Slade’s evidence reliable. I found his evidence about this incident particularly credible. He described coming home after night shift and being told by Mrs Slade a version of the initial conversation which accords generally with the version that she gave. In particular, his evidence corroborates Mrs Slade’s evidence that Mr Kelly came to see her during the night while Mr Slade was at work on night shift.
[129]
I think that a significant point. That Mr Kelly came to see Mrs Slade late during the night is objectively consistent with the evidence that Mr Kelly was distressed and that this distress motivated him to come to his daughter’s house in the middle of the night. I do not accept he had any real intention to move. It is consistent with the need for the Slades’ assistance being forced onto him by circumstances of his mother’s demand for her money to be paid out and his wish not to leave the Farm.
[130]
Fourth, I found Mr Kelly’s evidence that he decided to sell the Farm because he wanted to move on to be unconvincing. He might well have toyed with the idea of doing so from time to time after 2007. However I was not persuaded by his evidence that it was a factor which caused him to put the Farm on the market. This is especially so as Mrs Slade was Mr Kelly’s primary financial and personal support from at least 2007, and he seemed to require such support from someone to manage his life. His other explanation was that he was tired of his children fighting about the Farm. While that might be so, it had not persuaded him to move before. I do not think it was a sufficient reason for him to leave the Farm.
[131]
Fifth, there seems little doubt that Mrs Slade was Mr Kelly’s only option if he was to pay out his mother and remain on the Farm. A sale of a half share in the Farm would not have been attractive to the general buying public and he made clear that at the time he considered that Mrs Slade was his only child who would or could be relied upon to assist.

Other aspects of the first conversation

[132]
The above findings do not necessarily lead to the conclusion that there was no discussion of, or agreement on, an acquisition of the whole Farm for $510,000 in the first conversation. Mr Kelly says that he offered the whole Farm to Mrs Slade for $510,000. Mrs Slade’s evidence is that Mr Kelly only asked her to buy out his mother with the figures of $160,000 and $100,000 mentioned.
[133]
It is possible that there was some discussion by Mr Kelly with Mrs Slade in this initial conversation about the possibility of the Slades buying the whole of the plaintiffs’ interests for $510,000 or perhaps $500,000. However, I find that if there was, it was of the most general kind and did not give rise to any agreement by Mrs Slade to buy the plaintiffs’ interests for that sum, or any acceptance of that sum as the basis for future bargaining. Mrs Slade’s evidence was that she left things on the basis that she would have to speak to Mr Slade. Mr Kelly’s evidence was that things were left on the basis that Mrs Slade went off to get finance. I prefer Mrs Slade’s version. I find that she would not have said anything at that time which committed Mr Slade to acquiring the Farm or any part of it without speaking to Mr Slade first. Further, if a specific sum of the kind alleged by Mr Kelly had been mentioned with any seriousness, Mrs Slade would almost certainly have mentioned it to her husband. There is no evidence that she ever did.
[134]
I should also mention here the evidence of the first Kathleen conversation. This conversation would confirm that there was discussion and agreement on the price at $510,000 and would deal with the other important question of why any of the parties thought that Mrs Slade should pay the whole value of the Farm. However, Mr Kelly gave no evidence which would correlate with that particular conversation and, as I have said, I found Mrs Kelly’s evidence to be unpersuasive. I am not persuaded that a conversation in those terms occurred.

The second Gordon conversation

[135]
It is convenient to look now at the second Gordon conversation.
[136]
Mr Kelly said the following:

[137]
The first task is to try to identify when this conversation might have occurred. In my view, any such conversation probably occurred after Mr and Mrs Slade had finance approval notified, given that Mrs Slade is supposed to have said she “couldn’t get the 500,000”. Therefore, if this conversation occurred, it seems likely that this occurred in about early to mid-November 2010 because:
1. (a)
  Mr Parker was contacted by Mrs Slade in about mid-October;
2. (b)
  Thereafter Mr Parker and Mr McKenzie had to organise to visit the Farm;
3. (c)
  Mr Slade signed the authorisation for the valuations by Heritage in support of the application for finance on about 27 October 2010;
4. (d)
  Mr Slade signed the Mortgage Loan Application on 10 November 2010;
5. (e)
  The loan approval issued on 25 November 2010, but each of the Slades gave evidence that they were called and notified of approval prior to that time. I accept this evidence;
6. (f)
  Mrs Kelly left the Farm once she was assured she would be being paid her money and this occurred in mid-November.
[138]
The next point to note is that on Mrs Slade’s case, she had told her father that the Slades would not assist him unless they acquired the whole Farm. Thus although the evidence of the principal protagonists differs, it seems common ground that at the time of informal approval of finance, both parties understood that the Slades were only going to assist Mr Kelly if they acquired both his interest and Mrs Kelly’s interest.
[139]
The question, then, is whether Mrs Slade agreed at this time to do so on the basis of payment of $260,000 for Mrs Kelly and a balance of $250,000 (or $240,000) to Mr Kelly after two years when the Slade’s house was sold.
[140]
The Slades agree that there was a conversation with Mr Kelly at about the time he identifies, though their evidence as to the content of that conversation differed.
[141]
Mrs Slade referred to a visit to the Farm by her and Mr Slade after finance approval was notified. She gave evidence that on this occasion they had a conversation with her grandmother at which they told her that they had the finance to pay her $260,000 and that Mr Kelly would be able to stay at the Farm.
[142]
Mr Slade give similar evidence. He described what occurred in these terms:

And Kathleen was told that she was right. She was getting the money. She – she could have her 260, which is the break-up of the two amounts. Yeah. And then that Gordon was free to stay there.

When you say Kathleen was told - - -?---Yes.

Who – who told Kathleen that?---That was Vicki and myself with Kathleen and Gordon both present.

And you referred to two amounts – 160 and 100?---Yes.

[143]
I accept that a conversation of the kind alleged by Mr Slade occurred at about the time of informal notification of finance, although I have reservations about whether the separate identification of the $160,000 and the $100,000 was mentioned. It was corroborated in some degree by Mrs Slade, and it is consistent with the undoubted fact that Mrs Kelly left at that time, once she was satisfied she would get her money.
[144]
Now it can be seen that the Slades’ versions, even they are correct, are not necessarily inconsistent with the prospect of an earlierconversation between Mrs Slade and Mr Kelly in the terms of the second Gordon conversation:
1. (a)
  Mr Slade frankly conceded that prior to this time, the conversations were between his wife and his father in law. It is therefore open on his evidence to conclude that the conversation narrated by Mr Kelly with his daughter in fact occurred; and
2. (b)
  Mrs Slade’s version of this meeting was, like much of her evidence, more imprecise than Mr Slade’s evidence and in my view left open the possibility that the second Gordon conversation occurred.
[145]
However, it would be very unlikely that if there had been some earlier discussion or agreement about payment of $240,000 to Mr Kelly after two years, it would not have been mentioned in this later conversation with Mr Slade, or at some other later time.

The dealings with Heritage

[146]
It is also relevant to the assessment of the evidence of the second Gordon conversation to consider the dealings between the Slades and Heritage. Mr Fraser relied on these considerations as favouring his clients’ version.
[147]
I make the following findings about those dealings:
1. (a)
  The Slades told Mr Parker and Mr McKenzie that they were intending to move to the Farm and build a home on the Farm (as confirmed by Mr Parker); and
2. (b)
  Mrs Slade told Mr Parker that Mr Kelly was intending to remain on the Farm “for the remainder of his time” (as confirmed by Mr Parker).
[148]
Further, there is no evidence that the Slades sought sufficient finance to pay $500,000 (or indeed $510,000) for the Farm. The only evidence on the point shows that the Slades sought finance for $396,900.00. The genesis of that particular figure was never examined at trial. It was never suggested to either of the Slades that they had sought sufficient finance to pay the amount alleged by Mr Kelly.
[149]
Those findings are not consistent with Mrs Slade having sought sufficient finance to pay out her father, then being forced to seek his indulgence on payment because finance was unavailable, and provide some evidence favouring Mrs Slade’s denial that she ever asked her father to agree to those conditions.
[150]
I do note that Mr Parker’s evidence that Mrs Slade told him that Mr Kelly was intending to stay at the Farm for the remainder of his time is hearsay evidence as evidence of Mr Kelly’s intention. It is, however, evidence of Mrs Slade’s state of mind at the time. It is consistent with her story as to her discussions with her father up to that point. It provides some objective support for her account.

Conclusion on the second Gordon conversation

[151]
I am not persuaded that the second Gordon conversation occurred as Mr Kelly alleged.

The third Gordon conversation

[152]
In this conversation, Mr Kelly said that Mrs Slade asked him how much money he would need to get by and she offered him $40,000 to which he agreed so “he could start moving on”. He said Mr Slade was not present for this conversation. As with all of Mr Kelly’s evidence, this conversation was presented without any context.
[153]
However, in this case the Slades each gave evidence of a similar conversation. They both gave evidence of a conversation with Mr Kelly after Mrs Kelly left the Farm in which they offered to pay Mr Kelly $20,000 and assured him that he could continue to live on the Farm and that they would continue to assist him.
[154]
As to this conversation, I prefer the Slades’ version. I do so for the following reasons:
1. (a)
  First, as I have said, Mr Slade’s evidence struck me as generally reliable;
2. (b)
  Second, subsequent events are consistent with the Slades’ version: they did pay $20,000, not $40,000. They did continue to assist Mr Kelly until he left the Farm;
3. (c)
  Third, I do not think Mrs Slade’s erroneous evidence about payment of credit card amounts tends to impugn Mr Slade’s evidence on this conversation;
4. (d)
  Fourth, if Mr Kelly was thinking of starting to move on, he did nothing about it until September 2012.
[155]
Once again, there is the possibility that Mr Kelly might have had the conversation he alleges with Mrs Slade in Mr Slade’s absence, but again it seems very unlikely to me that he would not have mentioned the matter in Mr Slade’s presence when $20,000 was discussed instead.
[156]
I am not persuaded that the third Gordon conversation occurred as the plaintiffs allege.

The second Kathleen conversation and the circumstances of the execution of the Transfer

[157]
Given the lack of particularisation of the pleadings, it could be open to the plaintiffs to rely on Mrs Kelly’s evidence to make out the contract alleged, though that position was not adopted at trial. To be clear, I do not consider that the conversations to which she swore can sustain the plaintiffs’ case.
[158]
I have already observed in paragraph [99] that I found her evidence to be generally unpersuasive.
[159]
I have dealt with the first Kathleen conversation in paragraph [47] and [134] above. As I find there, I do not accept that a conversation in those terms occurred.
[160]
As to the second Kathleen conversation, it raises issues surrounding the execution of the Transfer. The parties’ evidence was diametrically opposed in this regard and this is a convenient point to deal with these issues.
[161]
To recap, the plaintiffs’ evidence was to the following effect:
1. (a)
  The Transfer was signed at the Farm before Mrs Kelly left;
2. (b)
  All four of the parties were present and Trudy Kelly was not; and
3. (c)
  Mrs Slade concealed the consideration on the Transfer from Mrs Kelly for the purpose, they suggested, of concealing that it was $500,000 not $510,000.
[162]
Mrs Kelly also said that at execution, the second Kathleen conversation occurred.
[163]
The defendants’ evidence contradicted each of these matters. They each gave evidence that the Transfer was signed at the Farm after Mrs Kelly left and that only Mr Kelly and the Slades were present along with Trudy Kelly when it was executed. Mrs Slade said Mrs Kelly signed the Transfer the next day in Kingaroy. The consequence of accepting that evidence is that I would reject the evidence of the alleged concealment and of the alleged second Kathleen conversation.
[164]
I find that the Transfer was signed at the Farm after Mrs Kelly left. I therefore reject Mrs Kelly’s evidence as to what was said on that occasion. I also reject the evidence as to the alleged concealing of the consideration. I reach that finding for the following reasons.
[165]
First, the formal loan approval was not sent until 25 November 2010. I think it highly unlikely that the solicitor would have prepared the Transfer before that occurred. Further, while the signing dates might not have been precisely the dates recorded on the document, I do not see any reason to assume that the Transfer was signed by the parties at a materially earlier time than the date recorded. Those objective indicators of the likely timing of the execution of the Transfer are consistent with it being signed after Mrs Kelly had left the Farm.
[166]
Second, Mr Slade’s evidence was that the signing occurred after Mrs Kelly left. As I have said, I generally consider his evidence to be reliable.

The $510,000 allegation

[167]
Third, I find the allegation of Mrs Slade hiding the consideration figure from Mrs Kelly inherently implausible. The concealment allegation turns on Mr and Mrs Kelly’s evidence that Mrs Slade agreed to pay a price of $510,000 (rather than $500,000) for their shares in the Farm.
[168]
However, evenMr Kelly’s evidence relating to the consideration was inconsistent. His initial evidence of the first Gordon conversation was that the sum allegedly agreed was $500,000. He later corrected that to $510,000. However, his evidence thereafter focused on the sum of $500,000 and importantly, his evidence of the second Gordon conversation was that Mrs Slade said “they couldn’t get the 500,000 because of the – they had to sell [indistinct] first”. He also said in evidence in chief that he could not say how he had come up with the $510,000 figure and I note there was no evidence of any advice on value at that time.
[169]
Further, the idea that Mrs Slade would go to the trouble of concealing that the consideration was $10,000 less than agreed is inherently implausible, especially as it is evident that Mr Kelly, even on his own case, was pretty flexible about the terms upon which payment for his share would be made.
[170]
In my view, the idea that the amount discussed was $510,000 has become a fixed idea for the Kellys which has influenced their recollection.

Summary on the plaintiffs’ positive case

[171]
For these reasons, I am not persuaded that the plaintiffs have established an agreement by the Slades with the Kellys which included a term that the Slades pay $240,000 to Mr Kelly for his one-third share of the Farm. There are however some other matters which should be considered, some of which favour the Slades’ version, and others of which favour the Kellys’ version.

Why would the defendants pay full price?

[172]
Mr Fraser contended that his clients’ version was rendered more credible because it was implausible that the Slades would agree to pay the market value of the Farm in circumstances where Mrs Slade already owned a one-third share.
[173]
Mr Skoien in response pointed out that the one-third share was gifted to Mrs Slade so as to protect Mrs Kelly’s position if Mr Kelly died, from the potential pressures on her from his other children. Further, there was evidence (including in the first Kathleen conversation) that Mrs Slade offered to pay full price to avoid disputes with her siblings over the Farm. Finally, Mr Skoien also pointed to the fact that recognition of the value of Mrs Slade’s share would have undermined Mr Kelly’s alleged wishes that his children benefit equally from the Farm.
[174]
The evidence does not compel any clear resolution of this question in favour of either party.
[175]
As to the basis upon which Mrs Slade was granted her share, there is conflicting evidence. She herself accepted that the purpose of the gift to her was to provide some protection for Mrs Kelly if Mr Kelly died, and the timing of the gift is consistent with that. Mr Kelly also gave evidence of that purpose. However, Mr Kelly also appeared to concede that a reason for the gift was a reward for Mrs Slade’s assistance to him. He said in cross examination:

So do you agree that Vicki provided far more assistance to you between the end of 2007 and April 2010 ? Well, yep, yeah.

than ?If you added all the kids, probably the most, yeah. She probably did the most, yeah.^[8]

[176]
There is uncontested evidence that Mrs Slade’s support for him entirely justified his view. Mrs Slade did not give this evidence, however, so on the point of purpose of the gift, I find that Mrs Slade’s state of mind was as she stated. This makes it plausible that she might ignore her share in reaching agreement on price.
[177]
On the other hand, the evidence of Mr Kelly tends to support the view that he might not have thought that Mrs Slade should have to pay full market price for the Farm, given the assistance she had given. Further, although Mr Kelly said that he intended the children to share equally, that was inconsistent with the sentiments in his letter to his children written in 2008 in which he stated that Mrs Slade was to inherit the Farm.
[178]
Finally, there is the evidence in the second Kathleen conversation that Mrs Slade said she wished to pay full price to prevent arguments with her siblings. On the evidence of the family disputes about the Farm, that sounds credible. However, Mrs Slade was not in the financial position to make such gestures without difficulty and I think it unlikely she would have done so in this case. In any event, I have already found that I do not accept this conversation occurred as alleged.
[179]
Looked at overall, I do not think the fact that Mrs Slade already had a one-third share is particularly persuasive either way in determining whether the plaintiffs’ alleged agreement was reached.

The terms of the Transfer and Stamp Duty declaration

[180]
Mr Skoien’s submission on the Transfer and the stamp duty declaration was to this effect. The defendants deny they ever agreed to pay $500,000 for the plaintiffs’ shares of the Farm. However, they signed a Transfer showing $500,000 as the consideration which was, he said, inconsistent with that position. He also taxed Mr Slade with a stamp duty declaration signed by him (Exhibit 23) which he submitted should be construed as accepting that the share of the plaintiffs were transferred for a consideration of $500,000. Finally, he submitted that the amount of $500,000 was unable to be explained.
[181]
These matters do not in my view impugn the defendant’s denial of the alleged agreement:
1. (a)
  The source of the sum of $500,000 was said by the defendants to have been the informal valuation given by Mr Wain. I see no basis to reject that evidence, especially given that the later written advice from Mr Wain confirmed it;
2. (b)
  It is unremarkable that the defendants, on their case, signed a Transfer identifying $500,000 as the consideration. The Transfer on its face identifies that as being the sum for the transfer from the three tenants in common to the two joint tenants; and
3. (c)
  Finally, I could not read the stamp duty declaration as communicating that consideration for the plaintiffs’ shares was $500,000, much less that it demonstrated a subjective understanding by Mr Slade that that was the price he and Mrs Slade were to pay. In fact as I read it, it reflected that stamp duty was payable only on the part of the consideration referable to the share of the Farm being transferred. No evidence was led as to the basis upon which the stamp duty amount shown on the stamped Transfer was calculated.
[182]
Mr Skoien also relied on the Mortgage Loan Application as impugning the defendants’ denial of the agreement to pay $500,000. He focused on the fact that that document answered the question “Who will occupy the subject dwelling”, with work “Borrowers”. I do not find this to be evidence unequivocally favouring the plaintiffs’ version. It is also generally consistent with the defendants’ version of events once it is recognised that they intended to build their own house on the Farm. That matter was confirmed by Mr Parker and I accept it to be true.

The alleged consistency of the plaintiffs’ case

[183]
As to the first matter, Mr Skoien pointed to the fact that subject to one exception, the case taken to trial by the plaintiffs had remained consistent.
[184]
The exception was that Mr Kelly initially alleged he had not been paid any money by the Slades but later amended to accept he had been paid $20,000. Mr Fraser cross examined Mr Kelly as to this matter, suggesting it went to his credit. Mr Kelly explained that he was generally vague as to his financial affairs and was unaware of the payment. I accept that he had little understanding of his financial affairs from time to time, relying on his wife then his daughter. I do not find this point a particularly persuasive one on his credit.
[185]
It should be noted, however, that the evidence given by Mr Kelly and the position ultimately taken in addresses did differ somewhat from the pleaded case as I have already outlined. Further, the lack of particulars of the pleaded case make the alleged consistency less compelling. It is not so difficult to remain consistent with a very generally pleaded case.

Alleged listing of the Farm for sale in August 2012

[186]
Mr Skoien contended that the defendants’ position that they agreed with Mr Kelly that he could live on the Farm for the rest of his life was inconsistent with their subsequent conduct in seeking to sell the Farm. He submits that I should find that the so-called PriceFinder listing records for the Farm (Exhibit 22) show that one of the owners of the Farm placed the Farm on the market for sale at least three times after 2010, particularly in August 2012 when Mr Kelly was still on the Farm and Mr and Mrs Slade were the owners.
[187]
Mr Skoien relied particularly on the entry in the PriceFinder records for August 2012. He suggested to Mrs Slade that the PriceFinder documents showed that she must have listed the Farm for sale on that occasion.
[188]
Mrs Slade gave evidence to the effect that entries in the PriceFinder database were made in-house at a particular agency when an owner made an inquiry about selling, rather than when they listed it for sale by executing the relevant appointment document. She said that once such an inquiry was received, the program created a page for the property and automatically filled in certain particulars. She said that the entry only became “live” or was “published”, when the property in question was formally listed for sale by execution of the relevant document appointing the agent to sell. She also gave evidence that the only time she had listed the Farm for sale was in March 2016, after this matter had been commenced and Mr Kelly had been resident in Darwin with his new wife for some time.
[189]
Mr Skoien necessarily relies on this evidence for the purpose of establishing that the agreement between the parties was on the terms his clients allege, the submission being that the conduct of listing the Farm for sale while Mr Kelly was resident on the Farm is inconsistent with the defendants’ version of the agreement and in particular, that they agreed that Mr Kelly would have the right to reside there for as long as he wished.
[190]
However, the evidence, even if accepted, is equally inconsistent with the plaintiffs’ version: i.e. that Mr Kelly was entitled to reside on the Farm rent free for two years pending sale of the Slade’s residence and payment of the balance of the price. That is so because on the plaintiffs’ case, Mrs Slade had no business listing the property for sale in August 2012, some months before the expiry of the 2 year period of the alleged agreement. The conduct therefore does not unequivocally point to an agreement on the terms advanced by the plaintiffs.
[191]
In any event, I am not satisfied that the PriceFinder documents support any finding that Mr or Mrs Slade listed the Farm for sale in August 2012. Although the first print out was tendered and explained by Mrs Slade in evidence in chief on the basis that she was familiar with the database and its operation, it was obvious to me in the course of both her examination in chief and cross examination that Mrs Slade did not fully understand how the PriceFinder system worked.
[192]
Further, the print-outs of various pages of the PriceFinder system were ambiguous on their face. Ultimately, the only fact which seemed clear was that the Farm had been listed for sale for in March 2016, a matter readily conceded by Mrs Slade.

Exhibit 4 and exhibit 14

[193]
These two documents were understandably relied upon heavily by the plaintiffs.
[194]
It is not alleged in the ASOC that either document comprises part of the agreement alleged. Further, despite the lack of particulars of the alleged agreement in the ASOC, it is not open to rely upon them as contractual documents because it is evident from the positive allegations in the ASOC that the alleged agreement was made prior to the execution of the Transfer. Exhibits 4 and 14 came into existence after that time. Accordingly, Exhibits 4 and 14 comprise post contractual documents and their preparation and adoption by the parties comprises post-contractual conduct. How can that conduct properly be used?
[195]
Cases dealing with the impermissible use of subsequent conduct to construe a formal contract^[9]are irrelevant in this proceeding. In the case of an informal agreement of the kind here alleged, the subsequent conduct comprised in Exhibits 4 and 14 might be used:
1. (a)
  As an admission, express or implied, of the terms of the informal agreement alleged by the plaintiffs^[10]; and/or
2. (b)
  To found an inference that that the parties made an informal agreement on particular terms.^[11]
[196]
I intend to deal with those exhibits as potential admissions, rather than evidence from which an informal agreement on particular terms is to be inferred. I do so because in Brice v Chambers [2014] QCA 310, Muir JA (with whom Philippides and Henry JJ agreed) observed as follows:

[197]
Lym International Pty Ltd v Marcolongo[2011] NSWCA 303 was included in the cases cited in footnote 74. I infer that his Honour was referring to the passage identified in footnote 11 above.
[198]
In this case, the plaintiffs do not in my view seek to advance a case of a contract inferred from conduct (with the exception of the variation of the price from $510,000 to $500,000). Rather, the case as advanced in submissions^[12]appears to rely on the oral statements testified to by Mr Kelly and, perhaps, Mrs Kelly. It does not seem to me that these circumstances engage the circumstance contemplated by Muir JA. However, given that there are no complexities about admissions not being admissible against relevant parties (of the kind contemplated in Lym), it probably makes little different which approach is adopted.
[199]
I now turn to consider the documents themselves. In doing so it is necessary to bear in mind the comments of Gleeson CJ in Dovuro v Wilkins(2003) 215 CLR 317 at [25]:

[200]
In this case, context is of particular importance. The plaintiffs relied primarily on the first sentence of the third paragraph in Exhibit 4: “A sum of $240,000 is to be paid to Gordon James Kelly for his share”. Both defendants ultimately accepted in cross examination that that sentence, on their case, was literally false.
[201]
There are other aspects of Exhibit 4 which arguably favour the plaintiffs:
1. (a)
  Paragraph 1 could be read as an admission that the Slades agreed to pay $500,000 for the Farm.
2. (b)
  Paragraph 4, looked at in isolation, appears to constitute this document as the agreement between the parties.
[202]
Taken together, those paragraphs could be characterised as an admission by each of the Slades that they had promised to pay Mr Kelly $540,000 for his one-third share of the Farm. But should they be so characterised?
[203]
This requires a careful consideration of the context and purpose for which the document was produced. In that regard, I find as follows.
1. (a)
  First, the document was not voluntarily produced by Mrs Slade for the purpose of documenting her agreement with her father. Rather it was produced in a hurry on the eve of the Transfer to satisfy the demands of Heritage.
2. (b)
  Second, Mrs Slade was told by someone at Heritage that they needed a document which dealt with the whole of the consideration. Further, while it seems likely to me that Mrs Slade was told such a document was required so that Heritage had a copy of the contract (as contemplated by the letter of offer at paragraph 10, point 5) I do not think Mrs Slade had a mature understanding of what that meant as a matter of law. She struck me as being fairly unsophisticated. Paragraph 4, for example, fails to identify Mrs Kelly as a party to the written agreement. Further despite the involvement of the Slades’ solicitors in sending Exhibit 14, it was not suggested to Mrs Slade that she sought or received any legal advice about the terms of that document or Exhibit 4.
3. (c)
  Third, I find that the document was prepared in haste.
4. (d)
  Fourth, while the Slades were cross examined critically about the fact that the document deceived Heritage, I do not accept that it reflects dishonesty. The document was said by Mrs Slade to be something Heritage needed to complete the Transfer. It did not affect how the loan funds were disbursed. Nor was there any evidence that the text of the agreement was apt to otherwise obtain any benefit for the Slades to the detriment of Heritage or anyone else.
[204]
Given those matters, and notwithstanding his concession in cross examination that the first sentence of paragraph 3 was literally false on his case, I accept Mr Slade’s evidence that he never said to Mr Kelly that he would pay him $240,000 for his share. It was evident from Mr Slade’s evidence that he left the formalities of this deal to his wife. I infer that he signed it because she asked him to do so.
[205]
That leaves Mrs Slade. The plaintiffs undoubtedly would contend that despite all of the above, the fact that she wrote the first sentence in paragraph 3 is an admission which sustains the plaintiffs’ case. I disagree.
[206]
First, while the wording seems to support the plaintiffs, I do not consider it unequivocally does so. I note that following the first sentence comes the word “BUT” in capitals. It is open to read paragraph 3 as communicating that even though $240,000 is agreed to be paid, in fact only $20,000 will be paid. This is particularly so given my findings as to the time pressure under which the document was produced and lack of sophistication of Mrs Slade.
[207]
Second, Mrs Slade says she put that sentence in so that the total matched the consideration, as Heritage demanded, and that it would have been too complicated to put in the whole story. Although I generally have reservations about the reliability of Mrs Slade’s evidence, I accept that evidence. I do so because of the matters of context identified above but also because of the findings made in the course of these reasons, particularly as to the key conversations relied upon by the plaintiffs.
[208]
Bearing those matters in mind, I do not think the first or fourth paragraphs take the matter any further. The first paragraph is explicable as a shorthand way of describing the transaction. The fourth is consistent with the inclusion of words required by Heritage but not fully understood by Mrs Slade or intended by Mrs Slade, to comprise a binding and precise statement of an agreement with her father.
[209]
Given those conclusions, Exhibit 14 does not take matters much further for the plaintiffs as an admission supporting their case.

Inconsistency alleged in the defendants’ case

[210]
Mr Skoien also relied strongly on the inconsistency of the defendants’ pleaded case over time, both internally and with the case as ultimately advanced as trial, as tending to impugn the reliability of the defendants’ version.
[211]
It is correct to say that there are inconsistencies between the original defence and the amended defence, some of which suggest more than the ordinary clarification of instructions over the course of the proceedings which one might expect. For example, the original defence alleged that the defendants agreed to pay $260,000 so Mrs Kelly could move into a nursing home. That was deleted from the amended defence and never suggested in evidence at trial. The pleading in the amended defence raises the alleged agreement to pay the two amounts: $160,000 for the share in the Farm and $100,000 being a loan by Mrs Kelly to Mr Kelly. The evidence of course was that the $100,000 was said to be an inheritance.
[212]
More significant perhaps was Mr Skoien’s submission that the case introduced in the amended defence based on the proposition that the parties agreed that each one-third share was worth $160,000 was a reconstruction by the defendants. Based on the evidence at trial, that is a fair criticism of the pleading. That makes it difficult to conclude that the agreement as alleged by the defendants in the amended defence was ever reached. However, the defendants did not maintain that case in evidence nor in submissions at trial.
[213]
These inconsistencies in the pleading and the case taken to trail do not persuade me that the plaintiffs’ positive case has been established, bearing in mind the other findings and conclusions in these reasons.

Conclusion

[214]
My conclusion is that the plaintiffs have not made out that there was a binding agreement by the defendants to pay $240,000 to Mr Kelly for Mr Kelly’s one-third share in the Farm.
[215]
I do find that there was an understanding between Mr Kelly and the Slades that Mr Kelly would receive $20,000, would be free to live at the Farm as long as he wanted and would continue to be supported and cared for by Mrs Slade as she had been doing more or less since her mother died in return for the Transfer of his share. I also find that that understanding was valuable to Mr Kelly because he was not able to imagine managing without that kind of on-going support from someone, and his preference was that his daughter provide it.
[216]
Whether that understanding was a binding agreement on sufficiently certain terms is not a matter I have to decide. It was submitted by Mr Skoien for the plaintiffs that the pleadings required me to decide between the two agreements contended for, and that if I did not accept the version contended for by the defendants, that I should accept the case advanced by the plaintiffs. I do not accept that proposition. It was the plaintiffs to make out the agreement they alleged. They failed to do so.
[217]
There was an attempt at pleading a restitutionary claim by the plaintiffs. However, as I read the ASOC, the factor which seemed to be relied upon as giving rise to the entitlement to restitution was the failure to pay the $220,000 due under the agreement alleged by the plaintiffs. I could identify no matters pleaded in the ASOC which could give rise to an entitlement to a restitutionary remedy as an alternative cause of action if the agreement alleged was not established (see paragraph 21 of the ASOC), nor was one identified in submissions.
[218]
Finally, the defendants had a counterclaim in the proceedings. It was abandoned by the defendants’ counsel at the start of the trial.
[219]
Accordingly, I dismiss the claim and counterclaim.
[220]
I will hear the parties as to costs.

Footnotes

[1] See paragraph [175] below.

[2] See paragraph [175] below.

[3] T 2-72, L 44-46.

[4] T 2-73, L 3-6.

[5] See paragraphs 8 to 13 of the plaintiffs’ written submissions at trial.

[6] T 1-28 L 31-38.

[7] T 3-87 L 26-44.

[8] T 1-46 L13-22.

[10] See Tomko v Palasty [2007] NSWCA 258 at [13]-[14] and [68] (admission as to the identity of a party to a contract); Lym International Pty Ltd v Marcolongo [2011] NSWCA 303 at [122] to [134].

[12] See in particular paragraphs 16 to 19 of the plaintiffs’ written submissions at trial.

Editorial Notes

Published Case Name:
Kelly & Anor v Slade & Anor
Shortened Case Name:
Kelly v Slade
MNC:
[2017] QDC 288
Court:
QDC
Judge(s):
Porter DCJ
Date:
07 Dec 2017

Litigation History

Event	Citation or File	Date	Notes
Primary Judgment	[2017] QDC 288	07 Dec 2017	Plaintiffs' claim dismissed; defendants' counterclaim dismissed: Porter QC DCJ.
Notice of Appeal Filed	File Number: Appeal 191/18	08 Jan 2018	-
Appeal Determined (QCA)	[2018] QCA 197	28 Aug 2018	Appeal allowed; orders made 7 December 2017 (dismissing plaintiffs' claim) and 5 March 2018 (costs) are set aside; retrial ordered: Sofronoff P and Morrison JA and Atkinson J.
Appeal Determined (QCA)	[2018] QCA 270	12 Oct 2018	Application for an indemnity certificate granted: Sofronoff P and Morrison JA and Atkinson J.

Appeal Status

Appeal Determined (QCA)

Cases Cited List of Cases Cited by this judgment

Case Name	Full Citation	Frequency
Brice v Chambers	[2014] QCA 310	3 citations Jump To Cite 1 - [2014] QCA 310 Cite 2 - [2014] QCA 310 Cite 3 - [2014] QCA 310
Dovuro Pty Ltd v Wilkins	View on:JADE(2003) 215 CLR 317	2 citations Jump To Cite 1 - (2003) 215 CLR 317 Cite 2 - (2003) 215 CLR 317
Fraser v The Irish Restaurant & Bar Company Pty Ltd	[2008] QCA 270	2 citations Jump To Cite 1 - [2008] QCA 270 Cite 2 - [2008] QCA 270
Lym International Pty Ltd v Marcolongo	View on:JADE[2011] NSWCA 303	4 citations Jump To Cite 1 - [2011] NSWCA 303 Cite 2 - [2011] NSWCA 303 Cite 3 - [2011] NSWCA 303 Cite 4 - [2011] NSWCA 303
Tomko v Palasty	View on:JADE[2007] NSWCA 258	2 citations Jump To Cite 1 - [2007] NSWCA 258 Cite 2 - [2007] NSWCA 258
Wickman Machine Tool Sales Ltd v L. Schuler AG	View on:ICLRUK(1974) AC 235	2 citations Jump To Cite 1 - (1974) AC 235 Cite 2 - (1974) AC 235
Winks v W.H. Heck & Sons Pty Ltd	[1986] 1 Qd R 226; [1985] QSCFC 119	3 citations Jump To Cite 1 - [1986] 1 Qd R 226 Cite 2 - [1986] 1 Qd R 226 Cite 3 - [1986] 1 Qd R 226

Cases Citing List of cases on Queensland Judgments citing this Judgment

Case Name	Full Citation	Frequency
Kelly v Slade	[2018] QCA 197	56 citations
Kelly v Slade (No 2)	[2018] QCA 270	1 citation

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Kelly v Slade[2017] QDC 288