Bauer v Hussey - [2010] QSC 269

SUPREME COURT OF QUEENSLAND

CITATION:

Bauer & Ors v Hussey & Anor [2010] QSC 269

PARTIES:

BREN OWEN BAUER, ROD ANDREW BAUER AND GAY ANN O’NEILE
(plaintiffs)

v

CAROLEANN HUSSEY AND HELEN RAE GERDEI
(defendants)

FILE NO:

BS 6029 of 2008

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

30 July 2010

DELIVERED AT:

Brisbane

HEARING DATE:

22 March 2010; 23 March 2010

JUDGE:

Daubney J

ORDER:

It is declared that the defendants hold the proceeds of the sale of the land described as Lots 5 and 6 on RP 89031, County Canning, Parish Mooloolah, Title References 13551029 and 13551030 (Buderim property) on a constructive trust for the plaintiffs and the defendants as tenants in common in equal shares. 1.

It is declared that the plaintiffs, as the surviving trustees of the estate of Walter Ernest Bauer hold the right, title and interest to Lot 44 on Building Units Plan 5473, Title Reference 64202000 (Mooloolaba unit) for the plaintiffs and defendants as tenants in common in equal shares, not only pursuant to the provisions of the will dated 22 August 1984 of the late Walter Ernest Bauer, but also on a constructive trust for the plaintiffs and the defendants as tenants in common in equal shares.2.

Title to the Mooloolaba unit shall be conveyed to the plaintiffs and defendants as tenants in common in equal shares, absolutely.3.

4.     The defendants shall pay the plaintiffs three fifths of the net proceeds of sale of the Buderim property together with any interest earned by the investment of that portion of the sale proceeds.

The counterclaim is dismissed.5.

I will hear the parties as to costs.6.

CATCHWORDS:

SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – THE MAKING OF A WILL – TESTAMENTARY INSTRUMENTS – JOINT AND MUTUAL WILLS – where the testators made wills in corresponding terms – where the first testator died without revoking his will – where the second testator revoked their original will – whether there was an agreement not to revoke the wills – whether the second testator held the property on constructive trust for the beneficiaries of the mutual wills

Succession Act 1981 (Qld), s52

Aslan v Kopf [1995] NSWCA 26, cited
Bigg v Queensland Trustees Limited [1990] 2 Qd R 11, applied
Birmingham v Renfrew (1937) 57 CLR 666, applied
Dufour v Pereira (1769) 21 ER 332, applied
Gray v Perpetual Trustee Co Ltd [1928] 40 CLR 558, applied
McLauchlan v Prince [2001] WASC 43, cited
Meehan v Glazier Holdings Pty Ltd (2002) 54 NSWLR 146, cited
Re Cleaver [1981] 1 WLR 939, cited
Re Wood deceased. Ebert v Union Trustee Company of Australia Limited [1961] Qd R 375, cited

COUNSEL:

M Willmott SC and R Whiteford for the plaintiffs
DR Cooper SC and J Nevison for the defendants

SOLICITORS:

McCullough Robertson as town agents for Dunstan Legal for the plaintiffs
Kilmurray Solicitors for the defendants

Background facts

Walter Ernest Bauer (“Walter”) and Thelma…

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 Bauer v Hussey

Details

AGLC: Bauer v Hussey [2010] QSC 269
Case: [2010] QSC 269
Decision Date: 30 July 2010

CaseChat Overview and Summary

In Bauer v Hussey, the dispute involved the interpretation and effect of joint wills made by the parties. The first testator, Walter Ernest Bauer, passed away without revoking his will, while the second testator, Hussey, revoked their original will. The plaintiffs, as the surviving trustees of Walter’s estate, sought a declaration that Hussey held the property on a constructive trust for the beneficiaries of the mutual wills. The court was tasked with determining whether there was an agreement not to revoke the wills and whether Hussey held the property on a constructive trust.

The legal issues centered on the interpretation of the mutual wills and the existence of an agreement not to revoke the wills. The court considered whether the mutual wills evidenced an intention to create a trust and if there was an agreement that the wills would not be revoked. The court also examined whether Hussey held the property on a constructive trust for the beneficiaries of the mutual wills.

The court found that the mutual wills did not evidence an agreement not to revoke the wills. However, it did find that Hussey held the property on a constructive trust for the plaintiffs and Hussey as tenants in common in equal shares. The court concluded that the mutual wills, along with the surrounding circumstances, demonstrated an intention to create a trust and an agreement not to revoke the wills. As a result, the court declared that the defendants hold the proceeds of the sale of the Buderim property and the Mooloolaba unit on a constructive trust for the plaintiffs and defendants as tenants in common in equal shares. The court also ordered that title to the Mooloolaba unit be conveyed to the plaintiffs and defendants as tenants in common in equal shares, absolutely, and that the defendants pay the plaintiffs three fifths of the net proceeds of sale of the Buderim property together with any interest earned by the investment of that portion of the sale proceeds. The counterclaim was dismissed, and the parties were to be heard as to costs.

Orders

Orders of the court

It is declared that the defendants hold the proceeds of the sale of the land described as Lots 5 and 6 on RP 89031, County Canning, Parish Mooloolah, Title References 13551029 and 13551030 (Buderim property) on a constructive trust for the plaintiffs and the defendants as tenants in common in equal shares. 1.

It is declared that the plaintiffs, as the surviving trustees of the estate of Walter Ernest Bauer hold the right, title and interest to Lot 44 on Building Units Plan 5473, Title Reference 64202000 (Mooloolaba unit) for the plaintiffs and defendants as tenants in common in equal shares, not only pursuant to the provisions of the will dated 22 August 1984 of the late Walter Ernest Bauer, but also on a constructive trust for the plaintiffs and the defendants as tenants in common in equal shares.2.

Title to the Mooloolaba unit shall be conveyed to the plaintiffs and defendants as tenants in common in equal shares, absolutely.3.

4. The defendants shall pay the plaintiffs three fifths of the net proceeds of sale of the Buderim property together with any interest earned by the investment of that portion of the sale proceeds.

The counterclaim is dismissed.5.

I will hear the parties as to costs.6.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Bauer & Ors v Hussey & Anor [2010] QSC 269
PARTIES:	BREN OWEN BAUER, ROD ANDREW BAUER AND GAY ANN O’NEILE (plaintiffs) v CAROLEANN HUSSEY AND HELEN RAE GERDEI (defendants)
FILE NO:	BS 6029 of 2008
DIVISION:	Trial Division
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court
DELIVERED ON:	30 July 2010
DELIVERED AT:	Brisbane
HEARING DATE:	22 March 2010; 23 March 2010
JUDGE:	Daubney J
ORDER:	It is declared that the defendants hold the proceeds of the sale of the land described as Lots 5 and 6 on RP 89031, County Canning, Parish Mooloolah, Title References 13551029 and 13551030 (Buderim property) on a constructive trust for the plaintiffs and the defendants as tenants in common in equal shares. 1. It is declared that the plaintiffs, as the surviving trustees of the estate of Walter Ernest Bauer hold the right, title and interest to Lot 44 on Building Units Plan 5473, Title Reference 64202000 (Mooloolaba unit) for the plaintiffs and defendants as tenants in common in equal shares, not only pursuant to the provisions of the will dated 22 August 1984 of the late Walter Ernest Bauer, but also on a constructive trust for the plaintiffs and the defendants as tenants in common in equal shares.2. Title to the Mooloolaba unit shall be conveyed to the plaintiffs and defendants as tenants in common in equal shares, absolutely.3. 4. The defendants shall pay the plaintiffs three fifths of the net proceeds of sale of the Buderim property together with any interest earned by the investment of that portion of the sale proceeds. The counterclaim is dismissed.5. I will hear the parties as to costs.6.
CATCHWORDS:	SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – THE MAKING OF A WILL – TESTAMENTARY INSTRUMENTS – JOINT AND MUTUAL WILLS – where the testators made wills in corresponding terms – where the first testator died without revoking his will – where the second testator revoked their original will – whether there was an agreement not to revoke the wills – whether the second testator held the property on constructive trust for the beneficiaries of the mutual wills Succession Act 1981 (Qld), s52 Aslan v Kopf [1995] NSWCA 26, cited Bigg v Queensland Trustees Limited [1990] 2 Qd R 11, applied Birmingham v Renfrew (1937) 57 CLR 666, applied Dufour v Pereira (1769) 21 ER 332, applied Gray v Perpetual Trustee Co Ltd [1928] 40 CLR 558, applied McLauchlan v Prince [2001] WASC 43, cited Meehan v Glazier Holdings Pty Ltd (2002) 54 NSWLR 146, cited Re Cleaver [1981] 1 WLR 939, cited Re Wood deceased. Ebert v Union Trustee Company of Australia Limited [1961] Qd R 375, cited
COUNSEL:	M Willmott SC and R Whiteford for the plaintiffs DR Cooper SC and J Nevison for the defendants
SOLICITORS:	McCullough Robertson as town agents for Dunstan Legal for the plaintiffs Kilmurray Solicitors for the defendants