Carey v Carey - [2005] QDC 120

DISTRICT COURT OF QUEENSLAND

CITATION:

Carey v Carey & Anor [2005] QDC 120

PARTIES:

FIONA CAREY

Plaintiff

v

MIRANDA CAREY

First Defendant

and

MALCOLM CAREY

Second Defendant

FILE NO/S:

BD1733/05; D148/03 (Beenleigh)

DIVISION:

PROCEEDING:

Application without oral hearing

ORIGINATING COURT:

District Court, Beenleigh

DELIVERED ON:

23 May 2005

DELIVERED AT:

Brisbane

HEARING DATE:

-

JUDGE:

McGill DCJ

ORDER:

Judgment that the first defendant pay the plaintiff the sum of $40,000. Order the first defendant to pay the plaintiff’s costs of and incidental to this application to be assessed.

CATCHWORDS:

PRACTICE – Compromise of proceedings – whether settlement agreement not binding until reduced to writing and signed.

Masters v Cameron (1954) 91 CLR 353 – applied.

SOLICITORS:

Forbes Dowling Lawyers for the plaintiff
McLaughlin & Associates Lawyers for the first defendant.

This is an application for summary judgment in favour of the plaintiff against the first defendant. The action was started by a claim filed 24 December 2003 seeking repayment of moneys lent by the plaintiff to the defendants, or in the alternative damages for breach of contract or unjust enrichment. The statement of claim alleged that the plaintiff agreed with the defendants to lend them $92,000 financed by a mortgage of her home, on the basis that the defendants would be responsible for making the repayments under the mortgage. The plaintiff alleged the defendants refused to make further payments in March 2001, and that the plaintiff as a result fell into arrears under the mortgage, and that the amount payable by the defendants pursuant to the agreement or by way of damages was $157,500.

By notice of intention to defend and defence filed 19 February 2004 the first defendant asserted that there was a partnership between her and the plaintiff to carry on a travel agency business, and that the amount of approximately $93,000 was the plaintiff’s contribution by way of loan capital to that business. She said that the partnership was dissolved in March 2002 when the business ceased trading. The first defendant denied that there was any liability to pay the plaintiff anything. The second defendant filed a separate notice of intention to defend and defence; for present purposes it is not necessary to consider it.

By a reply filed 8 March 2004 the plaintiff denied that the loan was part of the partnership. The plaintiff admitted that there was a partnership but alleged that it had been dissolved in January 2001, and that thereafter the defendants had carried on the business themselves.

The application for summary judgment was filed on 22 March 2005. It sought a decision without an oral hearing. The affidavit in support bases the application on the enforcement of a settlement agreement alleged to have been made at a conference on 25 February 2005. The settlement agreement therein deposed to was to the effect that certain payments would be made, by the first defendant to the plaintiff, and that a security over a motor vehicle would be given to secure these payments, and that…

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 Carey v Carey

Details

AGLC: Carey v Carey [2005] QDC 120
Case: [2005] QDC 120
Decision Date: 23 May 2005

CaseChat Overview and Summary

In the case of Carey v Carey, the matter came before the court following a dispute regarding the enforceability of a settlement agreement that had been reached between the parties but had not been formally documented. The plaintiff sought to enforce the agreement, which had been reached verbally during mediation, and the first defendant contested the enforceability of this agreement, arguing that it was not binding unless it was reduced to writing and signed.

The central legal issue before the court was whether the settlement agreement was binding despite not being in written form. The court had to determine if the principles set out in Masters v Cameron applied, which held that oral agreements reached during mediation are binding unless there is evidence to suggest otherwise. The court also needed to consider whether the circumstances of this case warranted a different application of these principles.

In delivering the judgment, the court found that the settlement agreement was indeed binding. The court noted that the circumstances of the case, including the conduct of the parties and the nature of the agreement, supported the enforceability of the oral settlement. The court held that the first defendant was required to pay the plaintiff the sum of $40,000 as agreed during mediation. Additionally, the court ordered the first defendant to pay the plaintiff's costs of and incidental to this application, to be assessed.

Orders

Orders of the court

Judgment that the first defendant pay the plaintiff the sum of $40,000. Order the first defendant to pay the plaintiff’s costs of and incidental to this application to be assessed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Carey v Carey & Anor [2005] QDC 120
PARTIES:	FIONA CAREY Plaintiff v MIRANDA CAREY First Defendant and MALCOLM CAREY Second Defendant
FILE NO/S:	BD1733/05; D148/03 (Beenleigh)
DIVISION:
PROCEEDING:	Application without oral hearing
ORIGINATING COURT:	District Court, Beenleigh
DELIVERED ON:	23 May 2005
DELIVERED AT:	Brisbane
HEARING DATE:	-
JUDGE:	McGill DCJ
ORDER:	Judgment that the first defendant pay the plaintiff the sum of $40,000. Order the first defendant to pay the plaintiff’s costs of and incidental to this application to be assessed.
CATCHWORDS:	PRACTICE – Compromise of proceedings – whether settlement agreement not binding until reduced to writing and signed. Masters v Cameron (1954) 91 CLR 353 – applied.
SOLICITORS:	Forbes Dowling Lawyers for the plaintiff McLaughlin & Associates Lawyers for the first defendant.