Gillespie v Gillespie

[2012] QDC 212

DISTRICT COURT OF QUEENSLAND

CITATION:

Gillespie v Gillespie & Ors [2012] QDC 212

PARTIES:

GLORIA DAWN GILLESPIE
(plaintiff)

v

GEOFFREY BRUCE GILLESPIE
(first defendant)

and

WILLIAM BRUCE GILLESPIE
(second defendant)

and

MICHAEL PELDAN AND MORGAN LANE as trustees of the estate of
ANNETTE MIRIAM MAREE GREEN (formerly RODGERS) (A BANKRUPT)
(third defendant)

FILE NO:

D5/2011

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

Mackay District Court

DELIVERED ON:

14 August 2012

DELIVERED AT:

Brisbane

HEARING DATE:

2, 3, 4, 16 April 2012, 16 May 2012, 7 August 2012

JUDGE:

Samios DCJ

ORDER:

I declare that the defendants hold the property located at 18 Atkinson Street Mackay more particularly described as Lot 11 on RP 715161 Title Reference 20566214 on trust for the estate of the late Bruce George Gillespie.  1.    

I order that the transfer of the property more particularly described as Lot 11 on RP 715161 Title Reference 20566214 from Bruce George Gillespie to the defendants on 17 December 2002 be set aside.2.    

I order that the property more particularly described as Lot 11 on RP 715161 Title Reference 20566214 be transferred from the defendants to Gloria Dawn Gillespie as Administrator of the Estate of Bruce George Gillespie (deceased).3.    

CATCHWORDS:

Equity – trust and trustees – resulting trust – undue influence – unconscionable dealing – laches, acquiescence and delay – estoppel

Cases:

Blomley v Ryan (1956) 99 CLR 362, 415 per Kitto J;

Bridgewater v Leahy (1998) 194 CLR 457;

Calverley v Green (1984) 155, CLR 242;

Commercial Bank of Australia Limited v Amadio (1983) 151 CLR 447, 462, 474;

Louth v Diprose (1992) 175 CLR 621;

Johnson v Buttress (1936) 56 CLR 113;

Poosuthurdi v Kanappa Chettier (1919) LR 43 Ind App 1, 4;

Powell v Powell & Anor (2002) WASC 105;

Shepherd & Anor v Cartwright & Ors (1954) 3 All ER 649, 654;
Tabtill Pty Ltd v Creswick; Creswick v Creswick & Ors [2011] QCA 381.

Legislation:

Powers of Attorney Act 1998 s 87

COUNSEL:

Ms Heyworth-Smith - for the plaintiff

Mr Lynham - for the first defendant and second defendant

Mr Cowen - for the third defendants

SOLICITORS:

MacCrossan & Amiet – for the plaintiff

S.B. Wright & Wright and Condi – for the first defendant and second defendant

Tucker & Cowen – for the third defendants

1. The plaintiff is the widow of the late Bruce George Gillespie who died on 14 August 2010 aged 83.

1. The plaintiff and the deceased married on 8 December 2002.  When they married the plaintiff who was born on 13 May 1940 was 62 years of age and the deceased who was born on 14 November 1926 was 76 years of age.

1. The deceased has two sons and a daughter from a previous marriage.  When the plaintiff and the deceased married his children were about 46 years of age, 42 years of age and 37 years of age respectively.

1. The deceased’s first wife and the mother of his children died…