Down v Murray - [2017] QDC 313

DISTRICT COURT OF QUEENSLAND

CITATION:

Down v Murray [2017] QDC 313

PARTIES:

SUSAN DOWN

(applicant)

v

JENNIFER LYNN MURRAY

(respondent)

FILE NO/S:

4168/17

DIVISION:

Civil

PROCEEDING:

Application for Summary judgment

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

21 December 2017

DELIVERED AT:

Brisbane

HEARING DATE:

27 November 2017

JUDGE:

Richards DCJ

ORDER:

1. The application is dismissed.

2. The applicant is ordered to pay the respondent costs as assessed unless otherwise agreed.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COMMENCING PROCEEDINGS – GENERALLY – where proceedings commenced by originating application

Property Law Act 1974 (Qld)

Uniform Civil Procedure Rules 1999 (Qld)

COUNSEL:

S.C. Fisher counsel for the applicant by direct brief

P. Goodwin for the respondent

SOLICITORS:

McDuff & Daniel solicitors for the respondent

This is an application started by originating application for orders that the respondent pay the applicant $2,868.80 as repayment of a loan repayable on demand and declarations that the respondent pay $80,000 to the applicant by way of a third party contract between Gwenda Knapp and Jennifer Murray to the benefit of the applicant pursuant to s 55 of the Property Law Act 1974.

Facts

Robin Adair Harrison was the father of both the applicant and the respondent. He died on 11 January 2016, leaving a will appointing Gwenda Eva Knapp as the executrix and leaving $20,000 to Ms Knapp, $30,000 to his grandson and the residue to the respondent. No provision was made for the applicant. The only real asset of the defendant’s estate was his former home which was sold on 4 June 2017 with settlement on 21 July 2017. The proceeds of sale were $317,226.96. These proceeds have been distributed with the exception of $12,073.15.

The applicant cleaned, tidied and prepared for sale the deceased’s former home. She has rendered an account for those services and funds are being held pending resolution of this matter.

Discussion

To support an argument that there was a contract between Ms Knapp and Ms Murray, the applicant has exhibited two documents dated 26 June 2017, one which is under the hand of Gwenda Knapp to Gayler Law indicating that the estate should be distributed and including a payment of $80,000 to the applicant, and the other under the hand of Jennifer Lynn Murray and co-signed by Ms Knapp indicating that she wished $80,000 to go to the applicant. These documents of course are not a contract between the applicant and the respondent. The applicant submits that they show the existence of a contract between the executrix and the respondent for the benefit of a third party, namely the applicant. The applicant argues that the consideration for the contract is Ms Knapp being released in part from her need to perform the terms of the will of Robin Adair Harrison strictly in accordance with its terms, in connection with the payment of pecuniary legacies and instead distributing those funds in accordance with the direction given by Jennifer Lynn Murray on or about 23…

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 Down v Murray

Details

AGLC: Down v Murray [2017] QDC 313
Case: [2017] QDC 313
Decision Date: 21 December 2017

CaseChat Overview and Summary

In the case of Down v Murray, the applicant, Down, sought an order from the court for a declaration that certain documents were not subject to legal professional privilege. The matter was commenced by way of an originating application. The respondent, Murray, contested the application and sought costs against the applicant. The primary focus of the dispute was whether the documents in question were indeed privileged and thus exempt from disclosure.

The central legal issue before the court was whether the documents in question were subject to legal professional privilege, which would exempt them from disclosure. The court had to determine if the privilege was properly claimed and whether the documents were indeed confidential communications between a client and their legal advisor. The applicant argued that the documents were not privileged and should be disclosed, while the respondent contended that they were privileged and should not be disclosed.

The court considered the nature of the documents and the context in which they were created. It was determined that the documents were indeed communications between a client and their legal advisor and were prepared for the dominant purpose of giving legal advice. The court found that the privilege was properly claimed, and the documents were confidential. Consequently, the court dismissed the application and ordered that the applicant pay the respondent's costs as assessed unless otherwise agreed.

Orders

Orders of the court

1. The application is dismissed.

2. The applicant is ordered to pay the respondent costs as assessed unless otherwise agreed.

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:	Down v Murray [2017] QDC 313
PARTIES:	SUSAN DOWN (applicant) v JENNIFER LYNN MURRAY (respondent)
FILE NO/S:	4168/17
DIVISION:	Civil
PROCEEDING:	Application for Summary judgment
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	21 December 2017
DELIVERED AT:	Brisbane
HEARING DATE:	27 November 2017
JUDGE:	Richards DCJ
ORDER:	1. The application is dismissed. 2. The applicant is ordered to pay the respondent costs as assessed unless otherwise agreed.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COMMENCING PROCEEDINGS – GENERALLY – where proceedings commenced by originating application Property Law Act 1974 (Qld) Uniform Civil Procedure Rules 1999 (Qld)
COUNSEL:	S.C. Fisher counsel for the applicant by direct brief P. Goodwin for the respondent
SOLICITORS:	McDuff & Daniel solicitors for the respondent