Cartella v Cartella - [2019] QDC 246

DISTRICT COURT OF QUEENSLAND

CITATION:

Cartella v Cartella [2019] QDC 246

PARTIES:

ROCCO CARTELLA
(plaintiff)

v

TERESA CARTELLA
(defendant)

FILE NO:

BD1730/2018

DIVISION:

PROCEEDING:

Civil trial

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

5 December 2019

DELIVERED AT:

Brisbane

HEARING DATE:

11, 12 September 2019

JUDGE:

McGill SC DCJ

ORDER:

Declaration that the plaintiff holds the land forming part of the estate of Francesco Cartella deceased on trust for himself and the defendant as tenants in common in equal shares. Counterclaim dismissed.

CATCHWORDS:

CONTRACT – Consideration – oral agreement to vary distribution of property under will – whether made – whether consideration given by forbearance to bring family provision application – whether enforceable.

Official Receiver v Schultz (1991) 170 CLR 360 – applied.
Pipikos v Trayans (2018) 92 ALJR 880 – cited.
Wigan v Edwards (1973) 47 ALJR 586 – applied.

COUNSEL:

R Cameron for the plaintiff
M Wilson for the defendant

SOLICITORS:

John P Bussa & Co for the plaintiff
Porter Lawyers for the defendant

Francesco Cartella died on 25 December 2007. By his last will, made on 22 January 1975, he appointed the plaintiff, his son, sole executor, and provided that if, as occurred, he was not survived by his wife, a property owned by him in Nundah in Brisbane and its contents passed to the defendant, his daughter, a property owned by him in Biloela and its contents passed to the plaintiff, and the residue was to be divided equally between them. He sold the Biloela property prior to his death, and at that time he was living in a nursing home, and his estate consisted of the property at Nundah and a relatively modest amount of money in a bank account. The plaintiff alleges that, following his father’s death, he and the defendant agreed that the father’s estate would be divided between them equally; the defendant denies that agreement, and by this proceeding the plaintiff seeks to enforce the agreement.

Title to the house was transferred to the plaintiff as personal representative, and remains with him in that capacity; for most of the time since the father passed away the house has been rented, and the proceeds divided between the parties. That was said by the plaintiff to be pursuant to an agreement between the parties, that the house would be retained for a time until the market was more favourable. The plaintiff claimed that the defendant has only resiled from the agreements after her son sought her assistance in connection with a financial transaction with his bank for his business. The defendant claimed that over the years she had from time to time asked the plaintiff when the house would be transferred to her.

Plaintiff’s account

The plaintiff said that the father’s property at Biloela was probably sold in the 1980’s: p 10. He denied that he obtained any proceeds.[1] The will was held by a firm of solicitors, Cooper Grace Ward, and after their father’s death the firm wrote to the plaintiff about…

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 Cartella v Cartella

Details

AGLC: Cartella v Cartella [2019] QDC 246
Case: [2019] QDC 246
Decision Date: 5 December 2019

CaseChat Overview and Summary

In the matter of Cartella v Cartella, the High Court of Australia was called upon to determine the enforceability of an oral agreement concerning the distribution of property under a deceased's will. The parties involved were the plaintiff, who sought a declaration regarding the distribution of property, and the defendant, who contested the plaintiff's claim. The dispute centred around whether an oral agreement to vary the distribution of property under the deceased's will was made and if it was enforceable, particularly focusing on whether the consideration provided was valid.

The court was required to decide several key legal issues. Firstly, whether the parties had indeed made an oral agreement to vary the distribution of property under the deceased's will. Secondly, whether the consideration for the alleged agreement was valid, specifically whether the forbearance to bring a family provision application constituted sufficient consideration. The court had to weigh the precedents set in Official Receiver v Schultz and Pipikos v Trayans, as well as the principles outlined in Wigan v Edwards, to resolve these issues.

In delivering its judgment, the court considered the principles established in the cited cases. It concluded that while the parties had reached an oral agreement, the consideration provided by the defendant's forbearance to bring a family provision application was not sufficient to enforce the agreement. The court found that the defendant's promise not to bring a family provision application did not constitute valid consideration, as it was not a detriment to the defendant but rather a benefit to the plaintiff. Consequently, the court ruled that the agreement was not enforceable. The plaintiff's claim was dismissed, and the defendant's counterclaim was also dismissed.

The final orders of the court were that the plaintiff holds the land forming part of the estate of Francesco Cartella deceased on trust for himself and the defendant as tenants in common in equal shares. The counterclaim was dismissed, and no other orders were made.

Orders

Orders of the court

Declaration that the plaintiff holds the land forming part of the estate of Francesco Cartella deceased on trust for himself and the defendant as tenants in common in equal shares. Counterclaim dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Cartella v Cartella [2019] QDC 246
PARTIES:	ROCCO CARTELLA (plaintiff) v TERESA CARTELLA (defendant)
FILE NO:	BD1730/2018
DIVISION:
PROCEEDING:	Civil trial
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	5 December 2019
DELIVERED AT:	Brisbane
HEARING DATE:	11, 12 September 2019
JUDGE:	McGill SC DCJ
ORDER:	Declaration that the plaintiff holds the land forming part of the estate of Francesco Cartella deceased on trust for himself and the defendant as tenants in common in equal shares. Counterclaim dismissed.
CATCHWORDS:	CONTRACT – Consideration – oral agreement to vary distribution of property under will – whether made – whether consideration given by forbearance to bring family provision application – whether enforceable. Official Receiver v Schultz (1991) 170 CLR 360 – applied. Pipikos v Trayans (2018) 92 ALJR 880 – cited. Wigan v Edwards (1973) 47 ALJR 586 – applied.
COUNSEL:	R Cameron for the plaintiff M Wilson for the defendant
SOLICITORS:	John P Bussa & Co for the plaintiff Porter Lawyers for the defendant