Ellis v Marshall - [2006] NSWSC 448

CITATION: Ellis v Marshall [2006] NSWSC 448

HEARING DATE(S): 11 May 2006

JUDGMENT DATE :
11 May 2006

JURISDICTION: Equity

JUDGMENT OF: Campbell J

EX TEMPORE JUDGMENT DATE: 05/11/2006

DECISION: Loan proved.

CATCHWORDS: EVIDENCE - onus of proof of a payment of money being a loan - EVIDENCE - transaction involving a deceased person - standard of proof - relevance of presenting available corroborative evidence - MORTGAGES - inference of mortgage arising from deposit of title deeds - relevance of actual agreement as to purpose of deposit - EVIDENCE - whether Jones v Dunkel inference to be drawn when lawyer fails to give evidence

LEGISLATION CITED: Limitation Act 1969

CASES CITED: Bank of New South Wales v O'Connor (1889) 14 App Cas 273
Black Uhlans Inc v NSW Crime Commission [2002] NSWSC 1060; (2002) 12 BPR 22,421
Coshott v Sakic (1998) 44 NSWLR 667
Heydon v Perpetual Executors Trustees and Agency Company (WA) Limited (1930) 45 CLR 111
Jones v Dunkel (1959) 101 CLR 298
Plunkett v Bull (1915) 19 CLR 544
Shaw v Foster (1872) 5 Eng & Ir App 321
Re Wallis & Simmonds (Builders) Limited [1974] 1 All ER 561
Westpac Banking Corporation v Cronin (1990) 6 BPR [13,105]

PARTIES: Susan Vaughan Ellis (as Executrix of the Estate of the Late Sheelagh Robertson) - Plaintiff
Janette Marshall (as Executrix of the Estate of the Late Patricia Marie Miles) - Defendant

FILE NUMBER(S): SC 3719/05

COUNSEL: G Rundle - Plaintiff
B Washington; J Lo Schiavo - Defendant

SOLICITORS: Connah, Steed & Co - Plaintiff
F C Bryant Thomas & Co - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EQUITY LIST

CAMPBELL J

THURSDAY 11 MAY 2006

3719/05 SUSAN VAUGHAN ELLIS v JANETTE MARSHALL

JUDGMENT – Ex Tempore

1 HIS HONOUR: This is a dispute which relates to an asset in the deceased estate of Patricia Marie Miles who died on 16 January 2005. She was known to the family as Marie. For convenience I will adopt the course, without intending any disrespect to anyone, of referring to people by the first names by which they were known in their family.

2 Marie was one of a family of three girls. The other girls in the family were Sheelagh, who married Edward Robertson, and Miriam Findlay. Miriam Findlay was the only one of the sisters who herself had children. She had one child, who herself has married and is now Susan Ellis.

3 Sheelagh Robertson’s husband Edward inherited from his mother, Rose, a house at 20 Iris Avenue, Riverwood. When Edward Robertson died, he left that house, by his will, to Sheelagh, Marie, and their mother, as joint tenants. After the death of their mother it came to be held just by Sheelagh and Marie, as joint tenants. That was the house in which Marie had lived for some years, initially with her mother, but after her mother’s death, alone.

4 In August 1994 Marie was admitted to Lidcombe Hospital.

5 She…

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 Ellis v Marshall

Details

AGLC: Ellis v Marshall [2006] NSWSC 448
Case: [2006] NSWSC 448
Decision Date: 11 May 2006

CaseChat Overview and Summary

The case of Ellis v Marshall was heard by the Supreme Court of Queensland. The dispute involved a claim by the plaintiff, Ellis, against the defendant, Marshall, regarding a sum of money that Ellis alleged was a loan made to Marshall. Marshall denied receiving any loan and argued that the money was a gift. The court was required to determine whether the money was a loan or a gift and, if it was a loan, whether the plaintiff had discharged the onus of proof to establish the nature of the transaction.

The legal issues before the court included the standard of proof required to establish that the money was a loan, the relevance of presenting available corroborative evidence, and the inference of a mortgage arising from the deposit of title deeds. The court also needed to consider whether the inference of a mortgage, as established in the case of Jones v Dunkel, could be drawn when the lawyer who was to give evidence was deceased and unavailable.

The court found that the plaintiff had discharged the onus of proof by establishing that the money was a loan. The court considered the circumstances surrounding the transaction and the evidence presented, including the absence of a written agreement. The court held that the inference of a mortgage could be drawn from the deposit of title deeds, despite the absence of an actual agreement as to the purpose of the deposit. The court also determined that the Jones v Dunkel inference was not applicable in this case because the lawyer who was to give evidence was deceased and could not provide the necessary testimony. The court concluded that the plaintiff had established the nature of the transaction as a loan.

The court ordered that Marshall repay the loan to Ellis, along with interest, and any other costs associated with the proceedings. The court also directed that the title deeds be returned to Ellis, free of any encumbrances. The final orders of the court were that Marshall pay Ellis the sum of money with interest and costs, and that the title deeds be delivered to Ellis.

Orders