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LO v MR[2018] QDC 5

DISTRICT COURT OF QUEENSLAND

CITATION:

LO & Anor v MR [2018] QDC 5

PARTIES:

LO AND MO

(plaintiffs)

v

MR

(defendant)

FILE NO/S:

BD 4775/15

DIVISION:

Civil

PROCEEDING:

Application 

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

1 February 2018

DELIVERED AT:

Brisbane

HEARING DATE:

20 December 2017

JUDGE:

Smith DCJA

ORDER:

  1. The application for summary judgment by the defendant in respect of the claim and counter-claim is dismissed.
  2. I will hear the parties on the question of costs.

CATCHWORDS:

PROCEDURE – DISTRICT COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – SUMMARY JUDGMENT – whether summary judgment should be given in favour of the defendant in respect of the claim under r 293 – whether summary judgment should be given in favour of the defendant on the counter-claim under r 292

Limitation of Actions Act 1974 (Q) s 10

Uniform Civil Procedure Rules 1999 (Q) rr 292, 293

Abela v Public Trustee [1983] 1 NSWLR 308

Anderson v Anderson [2016] NSWSC 1204

Baumgartner v Baumgartner (1987) 164 CLR 137

Cetojevic v Cetojevic [2007] NSWCA 33

Delehunt v Carmody (1986) 161 CLR 464

Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232

Bartha v O'Riordan [2004] QSC 205

Fitzgerald v Masters (1956) 95 CLR 420

Giumelli v Giumelli (1999) 196 CLR 101

Mackay v Pearce [2007] QSC 195

Mischel Holdings Pty Ltd (in liq) v Mischel [2013] VSCA 375

Muschinski v Dodds (1985) 160 CLR 583

Public Trustee v Pfeiffle [1991] 1 VR 19

Re Pozzi [1982] Qd R 499

Saleeba v Wilke [2007] QSC 298

Sprott v Harper [2000] QCA 391

Wright v Gibbons (1949) 78 CLR 313

COUNSEL:

Mr P Travis for the plaintiffs

Mr M Wilson for the defendant

SOLICITORS:

Gadens Lawyers for the plaintiffs

Porta Lawyers for the defendant

Introduction

  1. [1]
    The defendant applies for summary judgment as against the plaintiffs pursuant to r 293 of the Uniform Civil Procedure Rules 1999 (Q) in respect of the claims by the plaintiffs against the defendant and further claims judgment pursuant to r 292 in respect of his counter-claim against the plaintiffs.  There was a further application concerning an order dated 28 January 2016 which was adjourned with costs reserved.
  1. [2]
    In considering the applications for summary judgment, I have regard to the statements of principle contained in Deputy Commissioner of Taxation v Salcedo[1]where it was held that:

“Summary judgment will not be obtained as a matter of course and the judge determining such an application is essentially called upon to determine whether the respondent to the application has established some real prospect of succeeding at a trial; if that is established then the matter must go to trial.”

  1. [3]
    Atkinson J held at [44]:

“In the case of an application by the plaintiff, the court must consider if it is satisfied that:

  1. (a)
    the defendant has no real prospect of successfully defending all or a part of the plaintiff's claim; and
  1. (b)
    there is no need for a trial of the claim or the part of the claim.

If the court is satisfied of those circumstances then it has a discretion to give judgment for the plaintiff and make any other order that it considers appropriate. Similar criteria apply to an application by a defendant pursuant to r. 293.”

The pleadings

  1. [4]
    In the amended claim,[2]the plaintiffs claim an order for specific performance of a separation agreement dated 26 March 2009 with consequential orders under paragraph 2, or alternatively a declaration of a constructive trust (paragraph 3); and further an order for delivery of possession of various items of the deceased’s property which had been retained by the defendant (paragraph 4).
  1. [5]
    In the amended statement of claim, it is alleged that the plaintiffs are the personal representatives of the estate of the late PO[3]who died on 26 October 2015.  The deceased and the defendant lived together in a de facto relationship from November 1988 until December 2008, when the parties separated but lived under the one roof until in or about May 2015.[4]It is alleged that by a written contract dated 20 December 2000, the deceased and the defendant purchased a property at 16 Sheena Street, Geebung for $117,500[5]. It is alleged that $10,000 was paid by the deceased towards the purchase price and the deceased and the defendant conjointly borrowed $94,000 which was paid toward the purchase price.[6]On 18 June 2003, the deceased paid the amount of $87,241.42 to the bank to pay off the home loan.[7]It is alleged that the deceased maintained the land and paid for improvements to the house constructed on the land and continued to maintain the land and the improvements until her death.[8]It is alleged that it would be unconscionable for the defendant to deny the deceased held a beneficial interest in the land greater than his interest.[9]Alternatively, it is alleged that on 26 March 2009 the parties entered into a written separation agreement whereby it was agreed that the deceased would pay the defendant the sum of $100,000; he would transfer his interest in the property to the deceased and the agreement would be binding on the executors and heirs.[10]It is alleged the agreement has not yet been effected between the parties and the plaintiffs remain ready, willing and able to perform the agreement.[11]
  1. [6]
    On 11 November 2015, the defendant’s legal representatives advised that the property was to be transferred to the defendant as he was the surviving joint tenant.[12]It is further alleged that at the date of her death the deceased was the owner of various property, including personal property removed by the defendant, a 1957 Chevrolet car and two Ford falcon motor vehicles.[13]Despite requests, the defendant has not returned or delivered up possession of those items.[14]In the premises the claims have been brought.
  1. [7]
    The defendant has filed a further amended defence and counter-claim.[15]In the defence, the defendant admits that a de facto relationship commenced with the deceased in December 1988 but denies it ended in or about December 2008 and alleges it continued until on or about 19 May 2015 when Queensland Police recommended that the defendant move out of the property for his own safety.[16]It is pleaded that no steps were taken to sever the joint tenancy after May 2015.[17]It is alleged that the land was registered in the names of the deceased and the defendant as joint tenants and as of the date of death the joint tenancy had not been severed.[18]It is denied that the deceased paid the deposit, more rather it was a joint payment by the deceased and the defendant and it is alleged that other sums associated with the payment of the land were paid by the deceased and the defendant jointly.[19]It is alleged that the home loan was in the defendant’s name solely.[20]It is alleged that the payout of the mortgage was a joint one.[21]It is denied that the contribution of the deceased to the land exceeds that of the defendant.[22]It is alleged that throughout the relationship the majority of funds used by the defendant and the deceased were contributed to by the defendant from his earnings.[23]
  1. [8]
    It is alleged that the legal estate has never changed from the joint tenancy which it remained as of the date of death of the deceased.[24]The defendant denies any resulting or constructive trust in favour of the deceased.[25]With respect to the alleged separation agreement, it is alleged that the separation agreement was not meant to be put into effect, nor was it meant to be legally binding on the parties, and the reason for it was the deceased received Centrelink benefits in or about 2009.[26]It is further alleged that the separation agreement was to be carried out 28 days after its execution, and further the claim is out of time and statute barred by reason of the Limitation of Actions Act 1974.[27]It pleads that the separation agreement was abandoned by the conduct of the defendant and the deceased, as the deceased never paid the $100,000, the defendant did not transfer his share to the deceased; they continued to live together in the property until May 2015; the defendant continued to pay outgoings on the property; and the de facto relationship had come to an end.[28]It is denied that the defendant retained any personal property of the deceased.[29]With respect to the motor vehicles, it is alleged that the 1957 Chevrolet was taken possession of by an insurance company and is currently in the possession of the plaintiffs; the first Ford was written off and the plaintiffs have improperly held funds paid out by an insurance company; and with respect to the last Ford the property is in a damaged condition with negligible value and the deceased’s share passed to the defendant on her death.[30]
  1. [9]
    In the amended counter-claim, the defendant alleges that on 26 October 2015 the deceased caused a fire to be initiated at the property with the intention to damage the property and the various vehicles and chattels.[31]It is alleged that $140,000 damage was caused to the property by the fire and that the fire destroyed chattels totalling $11,910 owned solely by the defendant.  The defendant claims against the plaintiffs, damages for trespass to land and chattels and for the return of monies improperly withheld.[32]

Reply

  1. [10]
    The plaintiffs have filed an amended reply and answer on 10 October 2017.[33]In the reply much of that which is alleged in the further amended defence is denied.  With respect to the separation agreement, the plainitffs say that time was not of the essence of the separation agreement; notwithstanding the non-performance by both the deceased and the defendant of the separation agreement.  It was not terminated by either party thereto at any time and the deceased remained readily and able to complete it as do the executors.  It is further alleged that the Limitation of Actions Act does not apply as it was a deed.[34]With respect to the amended counterclaim the plaintiffs state that the separation agreement had the effect of severing the joint tenancy[35]and further, do not admit that the fire to the property was caused by the deceased.[36]It is denied that the plaintiffs have trespassed on the land and chattels and deny that the defendant is entitled to the relief sought.[37]

Evidence in these proceedings

  1. [11]
    The defendant swore an affidavit filed in the court on 7 December 2017.[38]The defendant alleges that he met the deceased in about 1988 in Christchurch, New Zealand.  She was a single mother with one daughter, TM who was then 10 years old.  She was not working but receiving a pension and was paying a mortgage of about $30,000 on a house at Hoon Hay near Christchurch. Within about three months of meeting the deceased they commenced living together at the Hoon Hay property.  In 1990 she fell pregnant with their child and on 10 December 1990 JO was born.  The deceased insisted that JO’s last name was O. 
  1. [12]
    The deceased starting working part-time when JO was old enough for day care although the defendant continued to support the family and paid almost all of the household outgoings and expenses. In 1994 they purchased a vacant block of land at Halswell in Christchurch for $45,000. The property was purchased in the deceased’s name. Despite this the defendant alleges that he contributed significantly towards the purchase. The defendant built a three-bedroom home and garage on the land, the cost being about $60,000. Most of the funds were contributed to from their savings which the deceased banked into her account as he paid for the general living expenses. They sold the Hoon Hay property in 1996 for $146,000. All of those funds which were not applied for the purchase went into the bank account of the deceased. In about 1996 the defendant bought a Harley-Davidson motorcycle for $10,000 using joint funds. The deceased made him write a letter saying he would repay the money which he did. The deceased always insisted that he repay her account whenever there was expenditure by him from that account.[39]
  1. [13]
    The parties moved with JO to Brisbane in January 2000. In Brisbane the deceased and he did not operate any joint bank accounts but each had a bank account in their own name. On or about 19 January 2001 the parties purchased a property at 16 Sheena Street, Geebung for $117,500. The deceased paid a deposit of $10,000. The defendant alleged that this came from “our joint savings which resided in her bank account”.[40]They also received the first home owner’s grant of $7,000.  The defendant says that he obtained a home loan of $94,000 from the NAB which was used to pay the balance of the purchase price although the mortgage was executed in both names.[41]   It is alleged by the defendant that the home loan was  his sole responsibility as the deceased was working part-time as a carer and had insufficient income available to contribute to the repayments.[42]All repayments of the house came from his bank account into which his earnings were deposited.[43]In or about June 2003 the parties paid out the home loan and discharged the mortgage. The Halswell property was sold for NZ$162,000.  The money was put into the deceased’s bank account.[44]The defendant alleges the joint tenancy between them in respect of Sheena Street was never severed and remained in effect as at that the date of death of the deceased.  The defendant says that the deceased worked full-time from 2003 until 2007 but lost her job because of alcohol issues.[45]He alleges it became apparent the deceased suffered from alcoholism and was also abusive towards the defendant.  After a 2014 family holiday to New Zealand there were more and more arguments because of the deceased’s excessive drinking.  Police were called on several occasions to the property.[46]
  1. [14]
    From about October 2014 to April 2015 the deceased was admitted to a rehabilitation unit in Logan for six months for her alcoholism. The defendant would collect the deceased and bring her home for the weekends. This was a difficult time.[47]When the deceased was finally discharged and returned living at home she resumed drinking again and her abusive behaviour got worse.[48]
  1. [15]
    Up until 17 May 2015 the deceased had been drinking heavily for days and there was an argument which resulted in the police being called to the Sheena Street property. She had fallen during the argument. At this time she threatened to kill herself.[49]The deceased wanted to file a domestic violence order against the defendant and the police told him to file one against her.  On 19 May 2015 the deceased filed an application against him which he believes was in retaliation for his DVO.[50]The police attended the deceased to a welfare check and found her trying to put a pipe on the exhaust pipe of one of the Falcons.  She was abusive towards the police also and charges of assault were later dropped.[51]As a result of this incident the deceased was hospitalised at the Prince Charles Hospital for seven days and was then placed in a rehabilitation centre at Clayfield. 
  1. [16]
    The defendant alleges she was abusive towards him.[52]On the advice of Queensland Police the defendant moved out of the Sheena Street property for his own safety and stayed at the Aspley Caravan Park.[53]On 26 May 2015 the deceased drew up a letter to the defendant stating he could go to the Sheena Street property if he first texted her and she agreed.[54]Despite all of this the defendant alleges the de facto relationship between them continued, even though they were living temporarily apart.  He continued to go to the Sheena Street property to visit her.[55]On 26 October 2015 he visited the deceased who had been drinking heavily and she was drunk and aggressive.  At 9.00pm he was advised there had been a fire at the Sheena Street property and she was dead.  He states paragraph [76]: 

“It became clear that the deceased had started the fire that had killed her and she had also left a suicide note claiming the entire family would receive nothing.” 

  1. [17]
    Exhibit MJR16 is a copy of the suicide note. The defendant says the deceased had moved their wrought iron fire pit which had been outside and filled it with everything from firewood to family photos and positioned the fire pit in the underside rooms of the house and then started a fire.[56]
  1. [18]
    The defendant alleges that he has continued to pay the utilities and rates on the property and attended to its management and repair, although the house remains damaged because of the fire. It will cost at least $140,000 to repair. The defendant also alleges he has lost personal items valued at $11,910 in the fire.
  1. [19]
    The defendant says that on 26 March 2009 he was asked by the deceased to meet her at lunch to sign a document at Toombul Shopping Centre.[57]He says that when he arrived there he went to the Justice of the Peace counter and signed the separation agreement.[58]He alleges that the time he signed it he didn’t read it and did not know it set out the terms of division of the property and separation and alleges the JP did not speak to him about it.[59]He says at no time was there a separation and he was never given a copy of the separation agreement by the deceased and it only came to his attention later via the plaintiff’s lawyers.[60]He alleges that the deceased never mentioned the separation agreement to him and he had forgotten all about it between May 2009 and 2015.[61]At no stage was he ever paid the $100,000 nor did he request it, nor did she make any request for the property to be transferred.[62]The defendant then refers to the other property at paragraphs 110-133 of his affidavit.
  1. [20]
    TM has affirmed an affidavit filed 15 December 2017.[63]In this affidavit she affirms that the plaintiffs are the executors of the deceased’s will.  Firstly, she says that on 17 May 2015 the defendant completed a police document in which he stated that he and the deceased had been separated for about two years.[64]
  1. [21]
    TM states that she was informed by the deceased before the deceased’s death and believes that the Hoon Hay mortgage was paid off by the deceased in full in 1983.[65]She was also informed by the deceased that the defendant never paid any mortgage or rent and the deceased had paid off the mortgage prior to meeting him.[66]She believes that her mother independently purchased the land at Christchurch with her own savings from the sale of her property at Hoon Hay.  Exhibit TSM2 is a copy of the agreement for sale and purchase of real estate together with bank statements showing the payment of rates, insurance and rent and the deposit of the sale proceeds into the deceased’s account.[67]All of the money for the bills at Halswell came from the deceased’s personal savings account from the sale of her property and the defendant did not financially contribute to the costs of the bills.[68]
  1. [22]
    The Harley-Davidson motorcycle purchased in 1996 cost $10,000 which came from the deceased’s personal savings and the defendant agreed to repay her.[69]The defendant had no ownership of the property at Halswell.[70]From TM’s observations and discussions with the deceased during the deceased’s lifetime, her income in her personal accounts was from her earnings and transfers from the sale of her two properties in New Zealand.  She used her personal savings for improvements to the Sheena Street address.  Exhibit TSM5 is a true copy of bank statements, receipts, home and contents insurance and a copy of the deceased’s bank statement showing employment payments.[71]TM affirms that at no time did the deceased and the defendant have a joint bank account.  They always had separate accounts and the deceased solely owned the Ford, registered number 945RXF, and the defendant had taken that car.  She also paid for the Ford Ute, registered number 985MUO.  Exhibit TSM6 is a true copy of the separate bank accounts and a police DVD. 
  1. [23]
    TM believes that the deceased solely paid the $10,000 deposit for the Sheena Street property from her personal savings account.[72]Additionally the deceased paid an additional $9,000 deposit.[73]The home loan mortgage with Homeside Lending was in the deceased and the defendant’s names.  The defendant made mortgage repayments from January 2001 to June 2003 and then in June 2003 the deceased transferred her money from the sale of the Halswell house in New Zealand to Australia and paid off the mortgage for Sheena Street in full.[74]The deceased made approximately 90 percent of the financial contributions to the Sheena Street property, being $106,000 with the defendant contributing only $12,000.[75]The deceased solely paid $106,000 from her savings account towards the Sheena Street property and paid for all improvements to the property and the defendant lived there for 13 years free from making any rent or mortgage payments.[76]The deceased told the police that the only reason the house was put into joint names was she was waiting on the sale of the property in New Zealand to free up her funds to pay for Sheena Street.[77]TM says that she believes the joint tenancy was severed when the deceased and the defendant signed the legally binding separation agreement, dated 26 March 2009.  Also, the deceased filled out property transfer papers.[78]
  1. [24]
    Prior to 2001 and after June 2003, the defendant never made any contributions to the mortgage.[79]The defendant would regularly withdraw cash and spend it on the pokies which was a contributor to the arguments between the deceased and the defendant.[80]The reason her mother stopped working in 2008 was to help look after TM’s daughter who was born in May 2008.[81]In 2008 the defendant had an affair with a woman in New Zealand whom he knew from high school.  This led to the breakdown of the relationship between the deceased and the defendant.[82]The deceased went on a P&O cruise in 2013 and made it clear she was looking forward to meeting someone romantic on the cruise.[83]Certainly, as at 2014, the deceased and the defendant were not in a relationship at that time.  From 2012 the deceased constantly asked the defendant to move out of Sheena Street but he said he had nowhere to go and he would drink excessively every weekend and become violent to the deceased and JO.[84]TM was informed by the deceased before her death that she developed a drinking problem in 2011 and in October 2014 she decided to get help for this and contacted Logan House where she became a resident for six months until April 2015.  During the six months the defendant kept drinking heavily and the deceased didn’t want to go back to Sheena Street with him drinking all of the time.  She was forced to pick up the defendant which was distressing for her as she was trying to stay sober.[85]After the completion of the Logan House program and after going home, with the constant fighting the deceased unfortunately began drinking again. 
  1. [25]
    On 17 May 2015, the deceased called TM and told her the defendant had been bringing a woman back to their house and had been sleeping with her during the rehab program.[86]The deceased was struggling with her drinking so in July 2015 she came to stay with TM and was then driven to rehab at Hervey Bay.[87]On 17 May 2015 the deceased called the police as the defendant physically attacked her and as a result filed an application for a domestic violence order.[88]The deceased was hospitalised at the Prince Charles Hospital for four days.  There was no mention of any allegation (made by the defendant) in his application about the deceased holding a knife to his throat.[89]In the application for the protection order the defendant stated he had been separated for two years from the deceased.[90]The deceased informed TM the defendant would yell and swear at her if she asked him to help around the house.  On 24 October 2015 the deceased told TM that the defendant had been at the house, yelling and swearing at her.[91]
  1. [26]
    At the time of her death she financially supported herself and received no financial support from the defendant.[92]After the death of the deceased the defendant told TM and JO that he had gone to a lawyer and was told that as he was the surviving de facto everything of the deceased’s was his.  The defendant was not interested in helping with the funeral arrangements.  They asked him why he had lied to them earlier about being the de facto and he would not answer this.  The defendant changed the locks at Sheena Street just after the funeral so they have been unable to enter the house.[93]As to the belongings moved out from the house, they are estate items and not his items.[94]
  1. [27]
    As to the fire, TM has a copy of a fire report which states there is $40,000 damage to the property and there was no fire damage to the top living area of the house where the deceased’s belongings were.[95]They have never had the opportunity to retrieve the deceased’s belongings, yet they are beneficiaries to the estate.  They did go back to the property days after the funeral but the defendant verbally attacked JO and told her to get off the property.[96]Also, the defendant has previously physically attacked JO several times.[97]The deceased consistently asked the defendant to leave and told him he was the stress that drove her to drinking.[98]The defendant was a heavy drinker who would become violent and argumentative when he drank.[99]TM was informed by the deceased before her death that the defendant went to New Zealand to visit the lady he was having an affair with in 2009.[100]TM was informed by the deceased that she paid for all of the improvements to the Sheena Street property and contributed to the expenses associated with the property and maintaining it.[101]There was then depositions concerning the Harley-Davidson motorcycle, the Chevrolet, the Ford Falcon registered number 945RXF and the Ford Fairmont 2001. 
  1. [28]
    The defendant has sworn a further affidavit filed 19 December 2015.[102]In this affidavit he alleges that the application for the protection order was completed at a very stressful time.[103]He denies assertions he did not pay for the living expenses for the family.[104]He says that the material attached the TM affidavit has not been disclosed. 
  1. [29]
    He alleges that he repaid the sum of $10,000 to the deceased.[105]He denies many of the matters raised in the TM affidavit and alleges the deceased had an affair in 2000.[106]He alleges he was not included in any of the funeral arrangements.[107]He agrees he changed locks on the house to stop people removing property.[108]He denies having a woman sleep over at the house on a sexual basis. 

Defendant’s submissions

  1. [30]
    In written submissions,[109]the defendant submits that the Sheena Street property was held by the defendant and the deceased as a joint tenancy as at the date of death of the deceased.  The survivorship rule applies with respect to the joint tenancy and by operation of law the property passed to the defendant upon death.  There is no doubt in the defendant’s submission that the remaining joint tenant is solely entitled to the interest on the whole of the land.[110]It is submitted in this case there was no severance by the separation agreement of the joint tenancy.  It is submitted the case of Sprott v Harper[111]is to be distinguished.  It is submitted that no steps as required by the separation agreement were taken by either party and it has been almost seven years between the agreement and the date of the death of the deceased.  It is further submitted that the separation agreement was abandoned by the parties and for that reason the specific performance is not available to the plaintiffs.  It is further submitted that be reason of the Limitation of Actions Act 1974 a six year time limit applies and any action on the separation agreement is out of time.  With respect to the constructive trust argument, it is submitted that in Bartha v O'Riordan[112]it was held that where a joint tenancy existed and is not severed a constructive trust cannot be found to arise.  In those circumstances the claims by the plaintiffs should be dismissed on a summary basis. 
  1. [31]
    With respect to the counterclaim, it is submitted that a joint tenant or a tenant in common may maintain an action in trespass against a co-owner if the latter destroys the subject matter of the co-ownership without consent that there is no doubt the deceased caused the fire which caused damage to the property and chattels, and in those circumstances judgment should be given in favour of the defendant on the counterclaim, at least of the question of liability

Plaintiffs’ submissions

  1. [32]
    The plaintiffs submit[113]that the minimum notice under the UCPR was afforded to the plaintiffs in this application.  It is pointed out the defendant served a 134 paragraph affidavit with 121 pages of contested evidential material, only a short time before the hearing in the lead up to Christmas.  The plaintiffs requested an adjournment which request was refused.  As a result the plaintiffs were compelled to hastily prepare an affidavit to meet the application. 
  1. [33]
    The plaintiffs submits that a real issue in these proceedings is whether the joint tenancy was severed during the deceased’s life, and further it falls to the court to determine the extent of the estate’s interest. It is submitted that the defendant has expressly admitted entering into the separation agreement, the agreement providing for the transfer of the defendant’s registered interest in the property to the deceased. It is submitted the estate is ready, willing and able to perform this agreement. It is submitted that real issues arise as follows:
  1. (a)
    Whether the separation agreement substantially recorded the truth that the parties had separated under the one roof;
  1. (b)
    Whether the defendant is estopped from resiling from the representations of fact contained in the separation agreement;
  1. (c)
    Whether the claim for specific performance is barred by the Limitation of Actions Act;
  1. (d)
    Whether there was abandonment of the separation agreement. 
  1. [34]
    There is also a claim by the plaintiff with respect to a declaration of trust. It is further submitted that there are real issues in this case on whether there has been severance of the joint tenancy by reason of the course of dealing. It is submitted there are real issues as to conscionability concerning the contributions paid to the land. At paragraph 32 it is submitted there are significant issues to be determined at trial. As to the claim for judgment on the counterclaim the plaintiffs submit that this is an unliquidated damages claim. It is submitted that the elements of the tort of trespass have not been pleaded or fulfilled, in particular the deceased could not have trespassed on her own property or with respect to her own chattels. There are also triable issues about whether the deceased was involved in relation to the cause of the fire. Further it is submitted that the claim for unliquidated damages has not been established. It is pointed out that considerable caution should be attached to the defendant’s evidence here in light of the death of the deceased.

Discussion

  1. [35]
    The first issue in this case is the status of the claim for specific performance of the separation agreement. Section 10 of the Limitations of Actions Act 1974 (Q) provides:

10 Actions of contract and tort and certain other actions

  1. (1)
    The following actions shall not be brought after the expiration of 6 years from the date on which the cause of action arose— 
  1. (a)
    subject to section 10AA, an action founded on simple contract or quasi-contract or on tort where the damages claimed by the plaintiff do not consist of or include damages in respect of personal injury to any person;
  1. (b)
    an action to enforce a recognisance;
  1. (c)
    an action to enforce an award, where the agreement to arbitrate is not by an instrument under seal;
  1. (d)
    an action to recover a sum recoverable by virtue of any enactment, other than a penalty or forfeiture or sum by way of a penalty or forfeiture.
  1. (2)
    An action for an account shall not be brought in respect of a matter that arose more than 6 years before the commencement of the action. 
  1. (3)
    An action upon a specialty shall not be brought after the expiration of 12 years from the date on which the cause of action accrued. 
  1. (3A)
    Subsection (3) does not affect an action in respect of which a shorter period of limitation is prescribed by any other provision of this Act.
  1. (4)
    An action shall not be brought upon a judgment after the expiration of 12 years from the date on which the judgment becomes enforceable.
  1. (4A)
    or the purposes of subsection (4), a judgment of a court of a place outside the State becomes enforceable on the date on which the judgment becomes enforceable in the place where the judgment is given.
  1. (5)
    An action to recover a penalty or forfeiture or sum by way of a penalty or forfeiture shall not be brought after the expiration of 2 years from the date on which the cause of action accrued.
  1. (5A)
    n subsection (5)—

penalty does not include a fine to which a person is liable on conviction of a criminal offence.

  1. (6)
    This section—
  1. (a)
    does not apply to a cause of action within the Admiralty jurisdiction of the court that is enforceable in rem; and
  1. (b)
    does not apply to a claim for specific performance of a contract or for an injunction or other equitable relief, save so far as any provision thereof may be applied by the court by analogy in the same manner as the corresponding enactment repealed by this Act has heretofore applied.” 
  1. [36]
    In my view s 10(6)(b) specifically excludes an action for specific performance. In those circumstances it is my view that this defence is not available to the defendant here[114].
  1. [37]
    The next question is whether the separation agreement was abandoned. In Fitzgerald v Masters[115]it was said:

“There can be no doubt that, where what has been called an ‘inordinate’ length of time has been allowed to elapse, during which neither party has attempted to perform, or called upon the other to perform, a contract made between them, it may be inferred that the contract has been abandoned… What is really inferred in such a case is that the contract has been discharged by agreement, each party being entitled to assume from a long-continued ignoring of the contract on both sides that (in the words of Rowlatt J) ‘the matter is off altogether’.”

  1. [38]
    In this case despite the delay between the execution of the agreement and the death it is my view a triable issue exists here. The trial judge will need to determine whether it may be inferred from all of the circumstances that in fact there was an abandonment. It seems to me the relationship between the parties is relevant. It may be that a trial judge forms the view that the defendant was a controlling, abusive individual who caused fear in the deceased and this is why she was “too scared” to insist on the arrangements the subject of the agreement. A trial judge may not form that view, but it seems to me this is a question of fact to be determined at trial. Another issue here is whether by the conduct of the parties there was severance. There may be severance at law by a course of dealings for example in Abela v Public Trustee[116]Rath J held that a consent order agreed between husband and wife concerning matrimonial property was evidence of their agreement they no longer intended a joint tenancy with the result that the agreement automatically severed the joint tenancy whether or not the agreement was binding.  Similarly in Re Pozzi[117]Thomas J held that the entry by a husband and wife enter an agreement on the dissolution of their marriage, which included a provision that the wife should have sole use and occupation of the former matrimonial home and, on cessation of that right to occupation, that the home has to be sold and the proceeds distributed between them, operated to sever their joint tenancy.  As to agreement to sell, the Full Court of Victoria in Public Trustee v Pfeiffle[118]said:

“…if joint tenants are agreed to a sale and division of the proceeds on the happening of a particular event, then the joint tenancy is immediately severed, notwithstanding that the event had never occurred.”

  1. [39]
    In Saleeba v Wilke[119] Chesterman J stated the critical question was:

“Was there a course of conduct inconsistent with a joint tenancy from which one would objectively infer an intention to hold property as tenants in common?”[120]

  1. [40]
    In my view there are triable issues concerning severance. The entire relationship of the parties is relevant. In light of the alleged contributions of the deceased and the alleged conduct by the defendant towards her including a consideration of the separation agreement a court might conclude that the joint tenancy had been severed. This is a question of fact to be determined on the evidence no doubt with a substantial cross-examination. I consider there is a triable issue on this point. Indeed the case of Sprott v Harper[121]proves this point.
  1. [41]
    The next issue is whether a claim for a resulting or constructive trust can be brought where a joint tenancy exists. The defendant submitted that in Bartha v O'Riordan[122]Wilson J held that such a position could not exist.  I do not accept the defendant’s submissions.  It seems to me that equity where may permit the alteration of legal interests in land where it is unconscionable to deny the right of a party to so interfere.  It may be said that equity prefers to regard parties as tenants in common of the beneficial interest in property[123]There is no doubt that where parties have pooled their resources together for the purposes of their joint relationship and in doing so have made contributions financial and otherwise to the acquisition of land, the building of a house, the purchase of furniture and the making of the home that it may be inequitable to deny that one party is entitled to a beneficial interest in a property acquired and improved by joint efforts.[124]The case of Cetojevic v Cetojevic[125]supports the proposition that a trust may be imposed where there is a deceased joint tenant.
  1. [42]
    In this case the plaintiffs have a viable claim concerning a declaration of trust. It seems to me there is significant evidence that the deceased paid significant monies towards the Sheena Street property and contributed otherwise significantly. It seems arguable on the evidence the defendant’s contributions were not so significant. In those circumstances it seems to me reasonably arguable that the deceased’s interest in the property was greater than that of the defendant’s. At the least, there is a triable issue here.
  1. [43]
    For the reasons I have given I am not prepared to grant summary judgment in favour of the defendant on the plaintiff’s claim.
  1. [44]
    Turning to the counterclaim equally in my view a summary judgment should not be awarded in favour of the defendant. Firstly, I think there are triable issues on whether the fire was in fact caused by the deceased. Even if however one accepts she did cause the fire there are real issues with the claim as it is presently framed. It seems to me that the deceased was at least a co-owner of the house and it seems to me that she was lawfully upon the Sheena Street property as sole beneficial owner at the relevant time. There was not an unjustified entry or trespass on to the property. In those circumstances it is hard to see that an action for trespass is viable. There may be other actions that are viable but they are not yet pleaded. However it is unnecessary for me to express any concluded view on this point. Further, causation will no doubt be a relevant issue to be examined at the trial and finally the claim by the defendant is not liquidated and significant evidence would need to be called on the quantum of the claim. The evidence in respect of the chattels in my view is even more deficient and indeed TM denies that the chattels claimed for by the defendant were in fact owned by the defendant.
  1. [45]
    Superimposed upon all of the above matters I bear that which was stated by Hallen J in Anderson v Anderson[126] where his Honour stated at [33] and [34]:

“Since both Norrie and Minnie are dead, it is also necessary to bear in mind the careful scrutiny to which evidence about conversations with, or between, them should be subjected: Plunkett v Bull (1915) 19 CLR 544, per Isaacs J, at 548–549. This is because neither was available, at the hearing, to admit, or directly deny, specific allegations. 

McLelland CJ in Eq cited Plunkett v Bull in Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785 at 789, in which case his Honour wrote that ‘in a claim based on communications with a deceased person, the court will treat uncorroborated evidence of such communications with considerable caution’. Whilst there is no absolute legal requirement for it, the Court should look for some corroboration: Re Hodgson (1885) 31 Ch D 177 at 183; Day v Couch [2000] NSWSC 230 at [9]; Weeks v Hrubala [2008] NSWSC 162 at [20].” 

  1. [46]
    I agree with the plaintiffs that the need for cross-examination of the defendant as to the asserted claims is very important and indeed crucial.
  1. [47]
    I also consider that in the present day society (including the courts) is much more attune to the issues involved in domestic violence. Such issues will most likely be a relevant consideration when one deals with issues involving severance and equity.
  1. [48]
    I note in this case there are allegations of such violence both ways.

Conclusion

  1. [49]
    For the reasons given my formal order is the application by the defendant is dismissed.
  1. [50]
    I will hear the parties on the question of costs.

Footnotes

[1][2005] 2 Qd R 232 at [17] per Williams JA.

[2]Document 6 filed 28 January 2016.

[3]I have anonymised the names in light of the domestic violence proceedings.

[4]Document 6, para 3.

[5]Document 6, para 4.

[6]Document 6, paras 4A-4D. 

[7]Document 6, para 4G.

[8]Document 6, para 4H.

[9]Document 6, para 4H.

[10]Document 6, para 6.

[11]Document 6, paras 7-7B.

[12]Document 6, para 8.

[13]Document 6, paras 10-11.

[14]Document 6, para 14.

[15]Further amended defence and counterclaim filed 12 September 2017 – Document 18.

[16]Document 18, para 3.

[17]Document 18, para 3(f).

[18]Document 18, para 4C.

[19]Document 18, para 4D.

[20]Document 18, para 4F.

[21]Document 18, para 4M.

[22]Document 18, para 4R.

[23]Document 18, para 4U.

[24]Document 18, para 8A.

[25]Document 18, paras 8D and 8E.

[26]Document 18, para 9.

[27]Document 18, para 9A. 

[28]Document 18, para 11.

[29]Document 18, para 12.

[30]Document 18, para 13.

[31]Document 18, paras 18 and 19.

[32]Document 18, para 23.

[33]Document 20. 

[34]Document 20, para 15A. 

[35]Document 20, para 26.

[36]Document 20, para 29. 

[37]Document 20, para 32. 

[38]Document 23.

[39]Document 23, para 17.

[40]Document 23, para 27.

[41]Document 23, para 29 and 30.

[42]Document 23, para 31 and MJR8.

[43]Document 23, para 32.

[44]Document 23, para 33.

[45]Document 23, para 39.

[46]Document 23, para 48.

[47]Document 23, para 49.

[48]Document 23, para 51.

[49]Document 23, para 52.

[50]Document 23, para 55.

[51]Document 23, para 57 and MJR13.

[52]Document 23, para 58.

[53]Document 23, paras 59 and 60.

[54]Document 23, para 62 and MJR14.

[55]Document 23, para 67.

[56]Document 23, para 77.

[57]Document 23, para 94.

[58]Document 23, para 95 and MJR20.

[59]Document 23, para 96.

[60]Document 23, paras 97-99.

[61]Document 23, para 106.

[62]Document 23, paras 107 and 108.

[63]Document 29.

[64]Document 29, para 5 and Exhibit TSM1. 

[65]Document 29, para 6.

[66]Document 29, para 7.

[67]Document 29, para 8.

[68]Document 29, para 9.

[69]Document 29, para 11 and TSM4.

[70]Document 29, para 12.

[71]Document 29, para 14.

[72]Document 29, para 16 and Exhibit TSM7. 

[73]Document 29, para 17 and Exhibit TSM8. 

[74]Document 29ef, para 18 and Exhibits TSM9 and TSM 10. 

[75]Document 29, para 19. 

[76]Document 29, para 21. 

[77]Document 29, para 23. 

[78]Exhibit TSM11 and Document 29, para 24. 

[79]Document 29, para 25. 

[80]Document 29, para 26. 

[81]Document 29, para 28. 

[82]Document 29, para 30. 

[83]Document 29, para 31. 

[84]Document 29, para 33. 

[85]Document 29, para 34. 

[86]Document 29, para 35. 

[87]Document 29, para 36. 

[88]Document 29, paras 37-38. 

[89] Document 29, para 41. 

[90]Document 29, para 44. 

[91]Document 29, para 46. 

[92]Document 29, para 47. 

[93]Document 29, para 48. 

[94]Document 29, para 49. 

[95]Document 29, para 50. 

[96]Document 29, para 52.

[97]Document 29, para 53(a). 

[98]Document 29, para 54. 

[99]Document 29, para 55.

[100]Document 29, para 56. 

[101]Document 29, para 59. 

[102]Document 25. 

[103]Document 25, para 5. 

[104]Document 25, para 8. 

[105]Document 25, para 11. 

[106]Document 25, para 30. 

[107]Document 25, para 48. 

[108]Document 25, para 48. 

[109]Exhibit 1.

[110]Wright v Gibbons (1949) 78 CLR 313 at p 323. 

[111][2000] QCA 391.

[112][2004] QSC 205. 

[113]Exhibit 2.

[114]Mackay v Pearce [2007] QSC 195 at [48].

[115](1956) 95 CLR 420. 

[116][1983] 1 NSWLR 308.

[117][1982] Qd R 499.

[118][1991] 1 VR 19 at p 24-25 per Kaye J.

[119][2007] QSC 298 at [38].

[120]Also see Mischel Holdings Pty Ltd (in liq) v Mischel [2013] VSCA 375 at [64]-[66].

[121][2000] QCA 391.

[122][2004] QSC 205 at [20].

[123]Delehunty v Carmody (1986) 161 CLR 464 at 473 per Gibbs J.

[124]Muschinski v Dodds (1985) 160 CLR 583; Baumgartner v Baumgartner (1987) 164 CLR 137 and Giumelli v Giumelli (1999) 196 CLR 101.

[125][2007] NSWCA 33 at [43].

[126][2016] NSWSC 1204.

Close

Editorial Notes

  • Published Case Name:

    LO & Anor v MR

  • Shortened Case Name:

    LO v MR

  • MNC:

    [2018] QDC 5

  • Court:

    QDC

  • Judge(s):

    Smith DCJA

  • Date:

    01 Feb 2018

Appeal Status

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

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