SUPREME COURT OF QUEENSLAND
CITATION:
Bampton v Vourlides [2024] QCA 191
PARTIES:
WILLIAM JOHN BAMPTON
v
SUZANNE ELAINE VOURLIDES
(appellant)(respondent)FILE NO/S:
Appeal No 767 of 2024
DC No 2560 of 2021DIVISION:
Court of Appeal
PROCEEDING:
General Civil Appeal
ORIGINATING COURT:
District Court at Brisbane – [2023] QDC 248 (Sheridan DCJ)DELIVERED ON:
11 October 2024
DELIVERED AT:
Brisbane
HEARING DATE:
15 May 2024
JUDGES:
Bond JA and Crow and Crowley JJ
ORDER:
The appeal is dismissed, with costs.
CATCHWORDS:
GIFTS – GIFTS INTER VIVOS – OTHER MATTERS – where the donee is the only daughter of two children of the donor – where the donor was living with and being cared for by the donee – where in March of 2018 the donor paid a deposit and signed a contract for a purchase of a property with his only son – where in April of 2018 the donor executed a new will with provisions that the donee would be paid her share of the estate upon her husband’s death – where in August of 2018 the donor drew a bank cheque for the donee – where donee held enduring power of attorney granted by donor – where statutory presumption of undue influence under s 87 of the Powers of Attorney Act 1998 (Qld) applies – whether donee successfully rebutted presumption of undue influence – whether the donor and donee had a major altercation in the days leading up to the drawing of the bank cheque
Evidence Act 1977 (Qld), s 92
Powers of Attorney Act 1998 (Qld), s 87Baker v Affoo [2014] QSC 46, followed
Birch v Birch[2020] QCA 31, considered
Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152, cited
Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447; [1983] HCA 14, followed
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, cited
GLJ v Trustees of Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857; [2023] HCA 32, followed
Gunn v Meiners [2022] WASCA 95, cited
Johnson v Buttress (1936) 56 CLR 113; [1936] HCA 41, followed
Kavanagh v Londy[2024] QCA 140, cited
Louth v Diprose (1992) 175 CLR 621; [1992] HCA 61, followed
Nitopi v Nitopi (2022) 109 NSWLR 390; [2022] NSWCA 162, cited
R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, followed
Stubbings v Jams 2 Pty Ltd (2022) 276 CLR 1; [2022] HCA 6, cited
Suvaal v Cessnock City Council (2003) 77 ALJR 1449; [2003] HCA 41, followed
Tep v ATS Australasian Technical Services [2015] 2 Qd R 234; [2013] QCA 180, cited
Thorne v Kennedy (2017) 263 CLR 85; [2017] HCA 49, followed
Wang v Hur[2024] QCA 126, followed
Yerkey v Jones (1939) 63 CLR 649; [1939] HCA 3, citedCOUNSEL:
A J H Morris KC, with I A Erskine,…
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- AGLC
- Bampton v Vourlides [2024] QCA 191
- Case
- [2024] QCA 191
- Decision Date
CaseChat Overview and Summary
Bampton v Vourlides was a case heard by the Queensland Court of Appeal, where the primary issue was the validity of a bank cheque drawn by the donor, Mr Bampton, in favour of his daughter Suzanne, the donee. Mr Bampton had executed a will that included a provision for Suzanne to receive 40% of his estate upon her husband’s death. The dispute arose when Mr Bampton drew a bank cheque for Suzanne in August 2018, leading to questions about whether the cheque was influenced by Suzanne or if it reflected Mr Bampton's independent wishes. The court had to determine whether Suzanne had rebutted the statutory presumption of undue influence under section 87 of the Powers of Attorney Act 1998 (Qld). Additionally, the court examined whether there had been a major altercation between Mr Bampton and Suzanne in the days leading up to the cheque being drawn.
The court reviewed the evidence regarding Mr Bampton's capacity to make his own financial decisions. It found that despite his mild cognitive impairment, Mr Bampton had the capacity to make independent financial decisions. The primary judge accepted that Mr Bampton was fiercely independent and capable of making his own decisions, supported by medical evidence and testimony from his son Larry. The court also considered the relationship dynamics between Mr Bampton, Suzanne, and Suzanne’s husband, noting the heated interaction in May 2018 over the will and Mr Bampton’s subsequent apology letter to Suzanne and her husband. The court concluded that the primary judge’s findings should stand, affirming that Mr Bampton had the capacity to make his own financial decisions and that Suzanne had not successfully rebutted the presumption of undue influence.
In light of these findings, the Queensland Court of Appeal dismissed the appeal, with costs. The court upheld the primary judge's decision that Mr Bampton had the capacity to make his own financial decisions and that Suzanne had not effectively rebutted the presumption of undue influence. The court found that the primary judge's assessment of the evidence was sound and that the appeal did not present grounds for overturning the decision.
The court reviewed the evidence regarding Mr Bampton's capacity to make his own financial decisions. It found that despite his mild cognitive impairment, Mr Bampton had the capacity to make independent financial decisions. The primary judge accepted that Mr Bampton was fiercely independent and capable of making his own decisions, supported by medical evidence and testimony from his son Larry. The court also considered the relationship dynamics between Mr Bampton, Suzanne, and Suzanne’s husband, noting the heated interaction in May 2018 over the will and Mr Bampton’s subsequent apology letter to Suzanne and her husband. The court concluded that the primary judge’s findings should stand, affirming that Mr Bampton had the capacity to make his own financial decisions and that Suzanne had not successfully rebutted the presumption of undue influence.
In light of these findings, the Queensland Court of Appeal dismissed the appeal, with costs. The court upheld the primary judge's decision that Mr Bampton had the capacity to make his own financial decisions and that Suzanne had not effectively rebutted the presumption of undue influence. The court found that the primary judge's assessment of the evidence was sound and that the appeal did not present grounds for overturning the decision.
Orders
Orders of the court
The appeal is dismissed, with costs.
Background
Background to the litigation
The primary judge accepted the medical evidence which supported the conclusion of the appellant’s capacity to make his own financial decisions. Her Honour found:“[The appellant’s son Larry] in his oral evidence agreed with the proposition that his father was a fiercely independent person and that he had a capacity to make his own financial decisions. In his statement filed in the QCAT proceedings, [Larry] described his father as "an intelligent, strong-willed man". He recorded that [the appellant] had said to him that “he does not want to be told what to do or to be talked down to".Those descriptions of [the appellant] are appropriate as is [the appellant’s] self-description recorded by [Larry]. It is difficult to imagine anyone being able to tell [the appellant] what to do, or anyone so dominating his mind that he was prevented from exercising his free will.”The relevant factual background At the time of his lottery win in March 2018, the appellant was still living with Suzanne and her husband at their Bundall house. The appellant paid them about $250 per week for board and rent. Within a couple of weeks of his win, the appellant had signed a contract for the purchase of a 4-bedroom house at Mountain Creek by he and Larry as joint tenants. The contract was completed on 11 April 2018. The appellant paid the purchase price and some transaction costs, totalling $555,045. From the time of the purchase, Larry ensured that the appellant had his own bedroom and bathroom in the Mountain Creek house and that the appellant could come and go to that accommodation as he pleased. Nevertheless, the appellant continued to live with Suzanne and her husband. The appellant had an adverse view of some aspects of the previous behaviour of Suzanne’s husband and formed the intention that he should not benefit from anything which was left to Suzanne. Accordingly, on 12 April 2018, he executed a new will which –(a)appointed Larry and Suzanne as executors;(b)confirmed his intention that the Mountain Creek property and his Commonwealth Bank of Australia (CBA) shares would be left to Larry;(c)split the residuary estate as follows:(i)40% to Suzanne;(ii)10% to Larry;(iii)10% to each of his four grandchildren and great grandson;(d)conditioned Suzanne’s receipt of her 40% share on her husband pre-deceasing her. In May 2018, the appellant explained to Suzanne what he had done in his will. On 15 May 2018 that led to some heated interaction between the appellant, on the one hand, and Suzanne and her husband on the other. Light was shed on the nature of the interaction in May 2018 by a letter of apology which the appellant wrote to Suzanne and her husband concerning a few days after the heated interaction. The letter of apology stated:[6]“I am very sorry for my bad behaviour on Tuesday 15/5/2018 there was no reason for my bad actions that night, We all have the right to express our own opinions and I over expressed mine, and for that reason I would dearly like to point out my feelings of sorrow and regret, I plead that you and Jim will accept this letter as an expression of my heart, I am learning that some things are best not said.I have come to the conclusion that my stupidity in regards to my actions in the will was not called for, although I was under the impression that it was to protect you in the future, you have clearly indicated to me that it was a stupid idea because you may not live long enough to enjoy the money, you have convinced me that I must change the will again, please try to understand that my concern was for your future not punishment for the bad things you think you may have done since living here, I tried my hardest to prove to you that it was all through love not hatred, there is no reason for me to feel any hate because I know and so should you that I have never thought badly of you or Jim it was purely his past performance that worried me, I was scared that it may happen again in the future.Please understand that the $300.000 I have paid to Larry for half the house is from love, I now know that Larry at least has some where to live, it's a good feeling to think he could settle down and retire one day, your mother and I now feel we have done something with the will, I didn't think about you missing out which certainly was not my intention, I knew you were buying a house and when that happens you would be getting the same, I should have been more considerate and told you, there again you have been hurt certainly not by my intention, I should have been more considerate, sorry to have given you the idea you were being left out by punishment, I have told Jim since, I will give you a cheque when you decide to buy, if I give it to him now it might affect his pension.The existing will now is to be changed from this date, You were to get 40% of all money Larry, [and each of 4 named grandchildren and 1 named great grandson] 10%, altogether there would have 6 x 10% and 1x40%, This would prove to you that my intention was not to favour Larry and punish you. With the exception of my stupid way you were to get yours.Once again (SORRY FOR THE HURT).”[6]Emphasis added.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
For the following reasons, I would conclude that the primary judge’s findings should not be overturned. I would dismiss the appeal, with costs.The appellant had mild cognitive impairment which affected his behaviour, but nevertheless had capacity to make independent financial decisions Indicative of the breakdown in the relationship between Suzanne and the appellant was the fact of Suzanne’s April 2021 application in the Queensland Civil and Administrative Tribunal (QCAT), by which she sought the appointment of an administrator and a guardian over the appellant’s affairs. QCAT dismissed the proceeding on 12 August 2021. Nevertheless, the whole of the QCAT file was in evidence before the primary judge without any limitation being placed upon the use which might be made of documents contained within it. It was evidently significant in the primary judge’s formation of the view which she took of the appellant’s evidence and of his decision-making for the purposes of the issues before her. Accordingly, and before identifying the other relevant factual background, it is appropriate to record the relevant parts of that material (supplemented in some respects by the testimonial evidence before her Honour) and the conclusions which the primary judge drew from that material. By the time of a medical consultation in 1995, the appellant had a medical history which had involved obsessive worrisome ruminations and depressive symptoms. He was treated with psychotherapeutic support and medication. In 2012, the appellant’s wife, Elaine, suffered a stroke and the appellant became her carer. They moved into an aged care facility in about 2014. In mid-2015 a medical management plan for the appellant revealed that he was still assessed as having problems with depression. His management plan included that he continue with sessions with a psychologist. In August 2015, the appellant’s GP referred him to Dr Runganga, a geriatrician, for review of “memory and behaviours”. The appellant attended with his wife. On 11 September 2015, the geriatrician reported:[1]“[The appellant] was Elaine's carer but was experiencing increasing difficulties with associated frustration, anxiety and agitation, Staff have now increased services and also supervise his medications which he forgot to take. He is otherwise independent with personal carers and light meal preparation, mainly microwave meals.He has a long history of post-traumatic stress disorder with associated nightmares, dream enactment as well as anxiety/depression. He worked for the defence force for several years in the printing department and states he frequently dealt with sensitive "top secret information". His wife reports the dream enactment occurred almost every night and he often wakes up "wailing", fighting and screaming for help, trying to escape from people who are out to shoot him. He has had psychiatry and psychology input and states he tried several medications over the years. He finds current psychology sessions useful and reports some improvement on duloxetine.Collateral history from staff and his wife revealed a recent history of paranoia. He is usually suspicious of staff intentions and believes other residents are out to stir him up and damage his belongings. lie accuses them of tangling his hose and burning his plants. He has had arguments with multiple residents and has now alienated himself. There is no history of physical aggression, and he denies visual or auditory hallucinations.”[1]Emphasis added.
Ratio Decidendi
Legal Principle Established
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