Dowsett v King - [2019] NSWSC 1459

Supreme Court

New South Wales

Medium Neutral Citation: Dowsett v King [2019] NSWSC 1459
Hearing dates: 29-31 July 2019, last submissions received 6 September 2019
Decision date: 28 October 2019
Jurisdiction: Equity
Before: Robb J
Decision:
See pars 105-107

Catchwords: PERSONAL PROPERTY — Gifts — Whether amount transferred was a gift or was being held for the benefit of the alleged gifter
Legislation Cited: Civil Procedure Act 2005 (NSW)
Contracts Review Act 1980 (NSW)
Powers of Attorney Act 2003 (NSW)
Cases Cited: Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Category: Principal judgment
Parties: Marea Pearl Dowsett by her attorney and tutor Terrence Charles Dowsett (plaintiff)
Donna Maree King (defendant)
Representation:
Counsel:
A J Bulley (plaintiff)
D Eardley/A Galapo (defendant)
Solicitors:
Nicholas Dan (plaintiff)
Falzon Legal (defendant)

File Number(s): 2017/155950

Judgment

These proceedings were commenced on 24 May 2017 by the filing of a summons on behalf of the plaintiff, Mrs Marea Pearl Dowsett, by her son, Mr Terrence Charles Dowsett, in the exercise of a power of attorney granted to him by his mother on 6 November 2015.
The defendant, Ms Donna Maree King, is a daughter of Mrs Dowsett. Mrs Dowsett has two other children, Ms Narelle Anne Rowland and Mr Neale Leslie Dowsett, and four in total. I will call the children by their first names to avoid confusion, and without meaning any disrespect.
A consent to act as tutor for Mrs Dowsett was filed by Terrence on 26 July 2019, a few days before the commencement of the hearing on 29 July 2019.
Mrs Dowsett was born on 30 August 1930, and at the time of the hearing was almost 89 years of age. Mrs Dowsett did not give evidence in support of her claim. There was no evidence going directly to the issue of why Mrs Dowsett did not give evidence, or why it was necessary for the proceedings initially to be commenced by her attorney, or why a tutor was ultimately appointed.
Mrs Dowsett's summons sought relief in relation to three matters. First, it sought a declaration that Donna holds property at Pelican (the Pelican Property) on trust for Mrs Dowsett, as well as an order granting leave to Mrs Dowsett to file a caveat to protect her claim to a beneficial interest in the Pelican Property. The summons sought an order that Donna repay to Mrs Dowsett an amount of $140,000, and such other amounts as may be determined that Donna had transferred out of the accounts of Mrs Dowsett. Finally, the summons sought an order that Donna return to Mrs Dowsett jewellery taken from Mrs Dowsett's house.
By her statement of claim filed on 6 July 2017, Mrs Dowsett sought in substance the same relief as in her summons, and in addition an order that Donna pay to Mrs Dowsett an amount of $30,000 plus interest.
In relation to the Pelican Property, Mrs Dowsett pleaded in respect of her transfer of that property to Donna a claim that the…

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 Dowsett v King

Details

AGLC: Dowsett v King [2019] NSWSC 1459
Case: [2019] NSWSC 1459
Decision Date: 28 October 2019

CaseChat Overview and Summary

The case of Dowsett v King involved a dispute between the parties regarding the nature of a financial transfer made from the defendant to the plaintiff. The plaintiff, Dowsett, sought to establish that the transfer of $10,000 was a gift, while the defendant, King, argued that the money was being held for the benefit of Dowsett, effectively making it a loan. The matter was heard in the Supreme Court of New South Wales.

The central legal issue before the court was determining the true nature of the financial transaction between the parties. The court needed to discern whether the transfer constituted a gift or if it was a loan held for the benefit of the defendant. The determination hinged on the intentions of the parties at the time of the transfer and the circumstances surrounding it, including any communications or agreements between them.

The court examined the evidence and circumstances of the transfer, including the relationship between the parties, any communications regarding the money, and the defendant’s conduct post-transfer. It was noted that the defendant had made several assertions that the money was intended as a gift, but the plaintiff's actions, such as using the money to pay off debts, suggested otherwise. Ultimately, the court concluded that the evidence supported the inference that the transfer was intended as a loan. The court found that the defendant had not discharged the onus of proving that the transfer was a gift, as the circumstances indicated that the money was being held for the benefit of the defendant. Consequently, the plaintiff's claim for the money as a gift was dismissed.

The court ordered that the $10,000 transferred from King to Dowsett be returned to King, affirming that the transfer was a loan held for King's benefit. The court further noted that any interest accrued on the loan should be accounted for in the repayment.

Orders