Bridgewater v Leahy - [1997] QCA 36

IN THE COURT OF APPEAL	[1997] QCA 036
SUPREME COURT OF QUEENSLAND

Appeal No. 203 of 1995

Brisbane

[Bridgewater & Ors. v. Leahy, York & Anor.]

BETWEEN:

DESLEY FAY BRIDGEWATER
JOAN MARGARET O'NEILL
JUNE LORRAINE ASHTON
SHIRLEY JOY LEAHY and
STELLA YORK

(Plaintiffs) Appellants

AND:

KEVIN LEAHY

(First Defendant) First Respondent

AND:

NEIL WILLIAM YORK and BERYL ELIZABETH YORK

(Second Defendants) Second Respondents
Macrossan C.J.
Fitzgerald P.
Davies J.A.

Judgment delivered 14 March 1997

Separate reasons for judgment of each member of the Court; Macrossan C.J. and Davies J.A. concurring as to the orders made; Fitzgerald P. dissenting.

APPEAL DISMISSED WITH COSTS.

appropriate relief should the appellants succeed on appeal.

Counsel:	Mr. D. Fraser Q.C., with him Mr. T. Gibson for the appellants Mr. C. R. Job for the first respondent Mr. S. C. Williams Q.C., with him Mr. R. T. Whiteford for the second respondents
Solicitors:	Morrow and Associates for the appellants T. J. Gibson & Co. for the first respondent Heiser Bayly & Mortensen for the second respondents
Hearing Date:	7 May 1996

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 203 of 1995

Brisbane

Before

Macrossan CJ
Fitzgerald P
Davies JA

[Bridgewater & Ors v. Leahy, York & Anor]

BETWEEN:

DESLEY FAY BRIDGEWATER
JOAN MARGARET O'NEILL
JUNE LORRAINE ASHTON
SHIRLEY JOY LEAHY and
STELLA YORK

(Plaintiffs)

Appellants

AND:

KEVIN LEAHY

(First Defendant) First Respondent

AND:

NEIL WILLIAM YORK and BERYL ELIZABETH YORK
(Second Defendants)

Second Respondents

REASONS FOR JUDGMENT - THE CHIEF JUSTICE

Judgment delivered 14 March 1997

I have read the reasons prepared by the President and Davies JA where a sufficient statement

of the background circumstances appears.

The question on the appeal is whether, because of the actions of the respondent, Neil York

("Neil"), and his relationship with the deceased, the appellants are entitled to succeed in their claim for

relief as it is now advanced. I am persuaded, for reasons including those stated by Davies JA, that the

findings by the trial judge rejecting the claims against Neil of undue influence and unconscionability

should not be interfered with. While accepting the significance of the matters stated by Davies JA in

support of that conclusion, I wish to highlight a number of matters which may be regarded as having a

particular relevance.

The appellants no longer challenge the Will of April 1985 containing the option to purchase that

was subsequently exercised by Neil. When the deceased made the Will, he was a man of advancing

years and he looked to the future with a plan in mind to keep the aggregation of properties together.

While the price for which the option to purchase was to be exercised was advantageous to Neil, the

option itself resulted from the deceased's plan. The price stated in the Will was influenced by a

suggestion that had been made by Neil supporting the desirability of arranging adequate provision for

the deceased's…

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 Bridgewater v Leahy

Details

AGLC: Bridgewater, O'Neill, Ashton, Leahy and York v Leahy, York and York [1997] QCA 36
Case: [1997] QCA 36
Decision Date: 14/03/1997

CaseChat Overview and Summary

The appeal was dismissed with costs. The court considered the relationship between the deceased, William York, and his nephew, Neil York, and whether Neil had exercised undue influence or acted unconscionably in obtaining a gift from William in 1988. The court found that William had a close and trusting relationship with Neil, and that the gift was consistent with William's desire to keep his properties together under the control of someone he considered reliable and experienced. The court also found that William was not in a position of special disadvantage vis-a-vis Neil, and that the transaction was not unconscionable. The court rejected the appellants' argument that they were entitled to set aside only the gift portion of the transaction, and held that the entire transaction should be upheld. The appeal was dismissed with costs.

Orders