Birtwell v Sands

[2012] QSC 396

SUPREME COURT OF QUEENSLAND

CITATION:

Birtwell v Sands [2012] QSC 396

PARTIES:

KEITH BIRTWELL as administrator for a limited purpose of the ESTATE OF LINDSAY BIRTWELL, deceased
(plaintiff)
v
DONNA ELIZABETH SANDS
(first defendant)
and
PETER JON SANDS
(second defendant)
and
PERPETUAL LIMITED ACN 000 431 827
(third defendant)

FILE NO:

BS1124/09

DIVISION:

Trial

PROCEEDING:

Trial

DELIVERED ON:

10 December 2012

DELIVERED AT:

Brisbane

HEARING DATES:

30, 31 July, 1 August 2012 

JUDGE:

Margaret Wilson J

ORDER:

CATCHWORDS:

EQUITY – TRUSTS AND TRUSTEES – IMPLIED TRUSTS – CONSTRUCTIVE AND RESULTING TRUSTS – REBUTTAL OF IMPLICATION – PRESUMPTION OF ADVANCEMENT – where deceased purchased property and registered a joint tenancy with the first defendant (his daughter) – where deceased’s son obtained limited grant of letters of administration for purpose of continuing claim – where plaintiff seeks declaration that first defendant holds her interest in the land and the improvements on it on trust for her late father’s estate – where plaintiff seeks order that first defendant transfer her interest in the land to him as administrator of their late father’s estate – where defendants counterclaim a declaration that to the extent that the plaintiff is successful he holds the land on trust for them – whether the first defendant holds her interest in the land on resulting trust for the estate

EQUITY – UNDUE INFLUENCE AND DURESS – PRESUMPTION OF UNDUE INFLUENCE FROM ENDURING POWER OF ATTORNEY – where in the alternative the plaintiff seeks relief in equity based on undue influence and/or unconscionable conduct – where plaintiff had given first defendant an enduring power of attorney – where plaintiff alleges that  the deceased was induced to include the first defendant as joint tenant by certain representations she made to him – whether alleged representations were proved – whether presumption of undue influence had been rebutted – whether the plaintiff acted freely and voluntarily in the acquisition of the land and the making of an interest only loan, and not as a result of undue influence by the first defendant

EQUITY – UNDUE INFLUENCE AND DURESS – IMPLIED TRUSTS – CONSTRUCTIVE TRUSTS – UNCONSCIONABLE CONDUCT AND UNCONSCIENTIOUS DEALING – whether the plaintiff was at a serious disadvantage vis-à-vis the first defendant – whether the presumption of undue influence has been rebutted – whether the first defendant’s conduct in signing certain documents without any express or implied qualification amounts to unconscientious dealing

Evidence Act 1977 (Qld), s 92
Powers of Attorney Act 1988 (Qld), s 87

Blomley v Ryan (1956) 99 CLR 362, cited.
Bridgewater v Leahy (1998) 194 CLR 457, cited.
Calverley v Green (1984) 155 CLR 242, cited.
Muschinski v Dodds (1985) 160 CLR 583, cited.
Napier v Public Trustee (WA)(1980) 55 ALJR 1, cited.
R v G [1998] 1 Qd R 659, cited.
Smith v Glegg [2005] 1 Qd R 561, followed.

COUNSEL:

C C Heyworth-Smith for the plaintiff
M E Pope for the first and second defendants

SOLICITORS:

Johnsons for the plaintiff