Trust—Express—Resulting—Oral arrangement to purchase land—Purchase made in name of one party—Contributions from others—Whether void for want of writing—Statute of Frauds 1677 (29 Car. 2, c. 3), ss. 7, 8. Practice—Interest on judgment—Claim for declaration of entitlement to share of proceeds of sale of land—Whether proceeding for recovery of money—Adjournment—Appeal from refusal—Common Law Practice Act 1867 (Q.), s. 72.
Decisions
GIBBS CJ I have had the advantage of reading the reasons for judgment prepared by my brother Wilson and am in complete agreement with them. I would accordingly dismiss the appeal.
MURPHY J I agree with Wilson J. The appeal should be dismissed.
AICKIN J In this matter I have had the advantage of reading the reasons for judgment prepared by my brother Wilson with which I am in full agreement. I would therefore dismiss this appeal.
WILSON J This is an appeal as of right from a decision of the Full
2. Court of Me Supreme Court of Queensland. The respondents are the parents of the appellant. They sued for a declaration that they were entitled to a one-third share of the net proceeds of the sale, on 9 July 1976, of some flats situated in Gresham Street East Brisbane. At first instance, W. B. Campbell J upheld the claim, and made the declaration and consequential orders sought. His Honour also allowed interest, pursuant to s. 72 of the Common Law Practice Act 1867 (Q.) ("the Act"), from the date of the statement of claim to the date of judgment. His decision was affirmed by the Full Court.
3. The trial of the action proceeded in the absence of the appellant. At that time he resided with his wife in West Germany, but by reason of his employment with a company engaged in oil exploration he spent lengthy periods on an oil rig in the North Sea. The nature and location of the appellant's employment had already delayed the trial for a considerable time. The statement of claim was filed in November 1976, and in February 1978 the solicitors for the respondents forwarded a certificate of readiness to the solicitors for the appellant for completion. That certificate was not completed until the middle of 1978, and then only on the understanding that the trial would not proceed until the appellant came to Australia during 1979. In due course the matter was set down for trial in May 1979. This fixture was not convenient to the appellant, and on the application of his solicitors supported by information received from his wife that he would be returning to Australia in July, the trial was adjourned until the middle of that month. Towards the end of June a further application on behalf of the appellant for an adjournment of the trial until November 1979 was refused. The application was renewed at the commencement of the trial and again…
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.
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AGLC
Bloch v Bloch [1981] HCA 56
Case
[1981] HCA 56
Decision Date
CaseChat Overview and Summary
Bloch v Bloch concerned a dispute between a father, Mr. Bloch, and his two sons, the respondents. The sons sought to have a deed of settlement, entered into between themselves and their father, set aside. The deed related to the distribution of shares in a family company, Bloch & Co. Pty Ltd, and was executed following a period of significant family discord and litigation. The High Court of Australia was tasked with determining the validity of this deed.
The central legal issues before the High Court were whether the deed of settlement was voidable on the grounds of undue influence or unconscionable conduct. Specifically, the court had to consider whether the sons had exerted undue influence over their father, or whether the terms of the settlement were so unfair as to be unconscionable, particularly given the father's vulnerable position at the time of its execution. The court also considered whether the father had received independent legal advice, and the effect of any such advice on the claims of undue influence and unconscionability.
The High Court ultimately held that the deed of settlement was not voidable. The majority of the court found that while the father was experiencing difficulties, there was insufficient evidence to establish undue influence. The court emphasised that for undue influence to be established, there must be proof that the will of the influencer has been substituted for the will of the person influenced. Furthermore, the court determined that the transaction was not unconscionable. The father had received independent legal advice, and while the terms of the settlement may not have been entirely favourable to him, they did not reach the threshold of unconscionability required to set aside a formal deed. The court noted that the sons had acted within their rights in pursuing their claims regarding the company shares, and the settlement represented a compromise of those claims.