A Sirinoglu v K Maden - [2015] QDC 116

DISTRICT COURT OF QUEENSLAND

CITATION:	A Sirinoglu & Anor v K Maden [2015] QDC 116
PARTIES:	AYHAN SIRINOGLU (first plaintiff) and GULSAH SIRINOGLU (second plaintiff) v KEZBAN MADEN (defendant)
FILE NO/S:	1770/14
DIVISION:	Civil
PROCEEDING:	Trial
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	19 May 2015
HEARING DATE:	8 May 2015
DELIVERED AT:	Brisbane
JUDGE:	RS Jones DCJ
ORDER:	1. The judgment of the Court is that the defendant pay to the plaintiffs the sum of $118,474.97, inclusive of the sum of $23,474.97 interest to 8 May 2015, and their costs of the proceeding to be assessed on the standard basis.
CATCHWORDS:	CLAIM – MONEY HAD AND RECEIVED – MONEY HELD IN TRUST – where plaintiffs sought the return of $95,000 together with interest and costs for monies had and received by the defendant – alternatively that the money was held on trust by the defendant for the benefit of the plaintiffs – where plaintiffs paid into bank accounts of the defendant the sum of $95,000 by way of three separate deposits – where defendant mother of second plaintiff and mother-in-law of first plaintiff – where defendant not present at the hearing of proceedings – where defendant returned to Turkey – where prior to departure defendant pleaded numerous defences to alleged claim – where no alleged defence supported by evidence Lipkin Gorman v Karpnale Ltd [1991] 2 AC 548 King v Brown [1912] 14 CLR 17 Port of Brisbane Corporation v ANZ Securities [2001] QSC 466
COUNSEL:	Mr H Scott-Mackenzie for the plaintiffs
SOLICITORS:	Cronin Litigation Lawyers for the plaintiffs No appearance by the defendant

This proceeding was concerned with a claim brought by the plaintiffs against the defendant for monies had and received or, in the alternative, for the return of money held on trust by the defendant for the benefit of the plaintiffs. For the reasons set out below the orders of the Court are:

1. The judgment of the Court is that the defendant pay to the plaintiffs the sum of $118,474.97, including the sum of $23,474.97 interest to 8 May 2015, and their costs of the proceeding to be assessed on the standard basis.

Introduction

This matter was heard by me on 8 May 2015. The plaintiffs were represented by Mr H Scott-Mackenzie of counsel. There was no appearance on the part of the defendant who had returned to her home country, Turkey after liquidating her assets. Having regard to the history of this matter I considered it appropriate to grant the relief sought and indicated that I would give reasons for the orders made as quickly as was practicable. These are those reasons.

Background

The plaintiffs are a married couple. Gulsah Sirinoglu is the daughter of the defendant and Ayhan Sirinoglu is the son-in-law of the defendant. All of the parties were born in Turkey but the defendant migrated to Australia some 25 years ago. The first and second plaintiffs married in Turkey and thereafter formed the intention to also immigrate to Australia. By that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading A Sirinoglu v K Maden

Details

AGLC: A Sirinoglu v K Maden [2015] QDC 116
Case: [2015] QDC 116
Decision Date: 19 May 2015

CaseChat Overview and Summary

A Sirinoglu and another v K Maden concerned a dispute over the return of $95,000 paid to the defendant by the plaintiffs. The plaintiffs sought the return of this money, together with interest and costs, on the basis that the money was either had and received by the defendant or held by the defendant in trust for the plaintiffs. The plaintiffs, who had paid the money to the defendant in three separate deposits, claimed that the defendant, who was the mother of one plaintiff and the mother-in-law of the other, should return the money. The defendant was not present at the hearing as she had returned to Turkey and had pleaded various defences to the claim. However, the court found that none of the defences were supported by evidence.

The court had to decide whether the plaintiffs could recover the money under a claim for money had and received or whether the money was held on trust by the defendant. The court also had to determine whether the defences raised by the defendant were valid. The plaintiffs argued that the money was either had and received by the defendant or held by the defendant in trust for the plaintiffs. The defendant argued that the money was a gift and that there was no trust relationship between the parties. The court had to assess the evidence and determine whether the plaintiffs were entitled to recover the money.

The court found that the plaintiffs were entitled to recover the money as either had and received or held on trust by the defendant. The court found that the defendant had no valid defence to the claim and that the money was not a gift but rather was paid under a mistaken belief that it would be used for a particular purpose. The court ordered the defendant to pay the plaintiffs the sum of $118,474.97, inclusive of interest to 8 May 2015, and their costs of the proceeding to be assessed on the standard basis.

Orders

Orders of the court

1. The judgment of the Court is that the defendant pay to the plaintiffs the sum of $118,474.97, inclusive of the sum of $23,474.97 interest to 8 May 2015, and their costs of the proceeding to be assessed on the standard basis.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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