Gullison v Bradley

[2005] QSC 272

SUPREME COURT OF QUEENSLAND

CITATION:

Gullison v Bradley [2005] QSC 272

PARTIES:

KIRSTY MAREE GULLISON
(plaintiff)
v
PETER HAROLD BRADLEY

(defendant)

FILE NO/S:

BS 3365 of 2005

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme court, Brisbane

DELIVERED ON:

30 September 2005

DELIVERED AT:

Brisbane

HEARING DATE:

20 June 2005

JUDGE:

Moynihan J

ORDER:

1.   Application for summary judgment refused.

CATCHWORDS:

PROCEUDRE – SUPREME COURT PROCEDURE – PROCEDRE UNDER RULES OF COURT – SUMMARY JUDGMENT – where the defendant applies for summary judgment – alternatively claim and statement of claim be stuck out on the ground of no reasonable cause of action.

Property Law Act 1974 (Qld);

Uniform Civil Procedure Rules 1999 (Qld).

COUNSEL:

Mr B Laurie for the plaintiff;

Mr B Whitton for the defendant.

SOLICITORS:

Pipers Lawyers & Conveyancers for the plaintiff;

McDonald Brown Solicitors for the defendant.

1. MOYNIHAN J:  The defendant in this action applies for summary judgment or alternatively that the claim and statement of claim be struck out on the ground that it discloses no reasonable cause of action and in the further alternative seeks security for costs.

1. There is no issue that the plaintiff and the defendant were in a de facto relationship within the meaning of Chapter 19 of the Property Law Act 1974 (“the Act”) and on 11 November 2004 executed what purported to be a separation agreement. The action seeks to have the agreement set aside or varied pursuant to s 276 or 286 of the Act and a property adjustment order made.

1. Relevantly for present purposes the plaintiff alleges that on 26 October 2004 the defendant told her he wished to have a temporary separation.  She left the joint property in which they resided on that date under that belief[1].

   [1]Paragraph 18 of the statement of claim.

1. The plaintiff deposes that during the temporary separation she received a phone call from the defendant who said he had something to sign for tax reasons and that he had $10,000 to give her “which should get you by until we sort things out”.

1. Paragraph 19 of the statement of claim pleads as a bald assertion that the plaintiff was emotionally vulnerable at the time of the separation; no facts are alleged (apart from the fact of separation) to found it. 

1. It is then pleaded that seven days after she left the property the defendant telephoned the plaintiff saying that she was required to sign paperwork “for tax reasons”.  She collected a copy of the agreement and ultimately signed on 11 November 2004. 

1. It is alleged that there was no covering letter and that the defendant told her that “everybody received a copy (of the agreement) and that it was for tax purposes only”.  The plaintiff alleges she was never told that it was a final binding property settlement.

1. The defendant drove the plaintiff to a chemist shop where the plaintiff and the defendant executed it and it was witnessed.  The plaintiff, it is alleged was still under the belief that the agreement was for taxation purposes only.

1. It is then alleged that after the agreement was signed the defendant told the plaintiff he no longer loved her or wished to continue in their relationship.

1. The defence puts in issue that the separation of 26 October was temporary, and that there was a basis for the plaintiff’s belief to that effect and the allegation that the plaintiff was emotionally vulnerable at the time.

1. The defendant alleges that there was an oral agreement and that the defendant pay the plaintiff $10,000 as a final property settlement, the defendant would arrange for a written agreement to reflect the terms of the oral agreement and that it would be final and binding.

1. The defendant pleads that he provided the written agreement together with a letter from his solicitors requesting that the plaintiff seek independent legal advice and if satisfied with the agreement sign it.  He denies ever having said that the written agreement was “for tax purposes only”. 

1. The defendant alleges that the payment of $10,000 was made on 11 November 2004 and accepted by the plaintiff.

1. When the plaintiff went to the property on 11 November 2004 as a preliminary to going to have the agreement signed and witnessed she was accompanied by her cousin and a friend but they did not accompany her to the chemist where the agreement was executed.

1. There is an affidavit by the Justice of the Peace who witnessed the signing of the agreement.  The witness, a qualified pharmacist deposes that she had not met either the plaintiff or the defendant until approached by the defendant, accompanied by the plaintiff to witness their signing the agreement.

1. After some preliminaries which it is unnecessary to recount she asked them whether they had agreed to the terms contained in the agreement.  The plaintiff responded to the effect that she had been in contact with a family member down south who was in the law, that she knew what was in the agreement and she agreed with it.  The defendant stated to the effect that he knew what was in the agreement and agreed.

1. At the time of signing the agreement the witness made a diary note including to the effect that the plaintiff had mentioned family legal advice/assistance when asked if she understood.

1. The witness formed the opinion that each of the plaintiff and the defendant understood the terms of the agreement and its terms and deposes that there was nothing in the plaintiff’s behaviour to indicate that she was upset.  If there had she would have been concerned and would have refused to witness the signature.  The plaintiff alleges that she showed signs of being upset at the chemist.

1. The agreement is quite brief, in plain English and not difficult to understand. It is clear on its face that it is a separation agreement, that it was intended to be final and binding and a recognised separation agreement under the provisions of Part 19 of the Property Law Act. 

1. The agreement contained an acknowledgment that the terms of the agreement were just and equitable and that it could be pleaded in bar in any action or dispute. It acknowledged that each party had been advised to obtain independent legal advice prior to signing and expressed agreement that it was final and binding on the parties in substitution for each’s right under Part 19 of the Act.  It may be noted that one of the advantages of such an agreement is to avoid the imposition of stamp duty on the transfer of an interest in real property.  The plaintiff does not plead or depose to not reading or understanding the terms of the agreement before signing it. 

1. The statement of claim does not comply with the Uniform Civil Procedure Rules.  As I have said paragraph 19 is a bare assertion unsupported by any facts that the plaintiff was “emotionally vulnerable at the time of the separation”.  No connection between this emotional vulnerability and the signing of the agreement is alleged.  It is not specifically pleaded that the alleged representation induced the plaintiff to enter into the agreement, a crucial ingredient of a plea of the kind advanced here.

1. The statement of claim does not plead any facts relevant to the application of s 276(1) of the Act although the defendant’s affidavit filed in response to the plaintiff’s material in this application suggests that she relies on s 276(1)(a). This empowers the court to vary any or all of the positions of the agreement if it is satisfied that the enforcement would result in “serious injustice” for the plaintiff.

1. The plaintiff’s affidavit does not deal with why she did not obtain advice although her cousin and business partner deposes to having said to the plaintiff only a couple of days after the agreement was signed “we should get this looked at by John”. The plaintiff finally obtained legal advice on 15 December 2004.  

1. There is merit in the defendant’s submissions that the plaintiff’s evidence is inconsistent with facts otherwise established and does not address issues which need to be explained if her account is to be accepted.  I have adverted to some of these in the course of these reasons.  These are obstacles which need to be overcome if the plaintiff is to succeed in her action.

1. One might be sceptical about the plaintiff’s prospects based on the material to hand.  It cannot however be said that her evidence would be rejected.

1. At the end of the day the issues about setting aside the agreement turn on determining the credibility of the parties tested by cross examination and evaluated in the light of the whole of the evidence.  I am not prepared to conclude the plaintiff has no real prospects of success and I refuse summary judgment.

1. The statement of claim cannot stand as it is.  I propose directing the plaintiff to deliver an amended statement of claim pleading a proper basis for setting aside the separation agreement.  I then propose directing disclosure limited to that issue, it has probably already been achieved by the affidavit material, and to direct an early trial of that issue which should not take long.

1. I will hear submissions as to the final form and terms of the order and as to costs.