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Hunt v Barlow

Hunt v Barlow

Case [2000] NSWSC 324 19 April 2000

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CITATION: HUNT v. BARLOW [2000] NSWSC 324

CURRENT JURISDICTION: EQUITY

FILE NUMBER(S): SC 2977/97

HEARING DATE(S): 11-13/8/99 & 24-26/11/99

JUDGMENT DATE: 19 April 2000

PARTIES :

RICHARD RUSSELL HUNT - Plaintiff
PETER JAMES BARLOW - Defendant

JUDGMENT OF: Bryson J at 1

COUNSEL : J. Armfield - Pltf
M. Bridger - Dft

SOLICITORS: Lane & Lane - Pltf
Gordon Robilliard Plowman Merton - Dft

CATCHWORDS: REAL PROPERTY - tenants in common - whether agreement to transfer interest was made - claim against estate of deceased person - trustees for sale of interests as tenants in common were appointed. EVIDENCE - estate of deceased person - knowledge of events not available to l.p.r. - dispute that agreement to transfer existed - credibility of witnesses - balance of probabilities - corroborative evidence - witness criminally convicted for dishonesty - witness' demeanour - irregular accounting records - consideration of approach to fact-finding and observations of Isaacs J in Plunket v. Bull - the plaintiff's claim to have made an agreement with his deceased business partner to release debts and take the business assets failed on the balance of probabilities.

CASES CITED: Briginshaw v. Briginshaw (1938) 60 CLR 336
Birmingham v. Renfrew (1937) 57 CLR 666
In Re Cummins (dec’d); Cummins v Thompson [1972] 1 Ch 62
Grundel v. The Registrar General (1990) 5 BPR 97-340
Plunket v. Bull (1915) 19 CLR 544
Lachmi Parshad v. Maharajah Narendro Kishore Singh Bahadur (1891) LR 19 1A 9

DECISION: See para 64

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRYSON J.

WEDNESDAY 19 APRIL 2000

2977/97 RICHARD RUSSELL HUNT v PETER JAMES BARLOW
JUDGMENT

1 HIS HONOUR: These proceedings relate principally to the ownership of an interest as one of two tenants in common in equal shares in the property at 62-64 Nuwarra Road, Moorebank, New South Wales, in Certificate of Title Volume 7917 Folio 225. The building there is a former squash court which was used by Hi-Rel Pty Ltd for its manufacturing and other operations. The registered proprietors are the plaintiff Richard Russell Hunt and Harry Barlow, each as proprietor of a half share. Mr Hunt and Mr Barlow purchased the property from the previous registered proprietor, Mr K.C. Linden, by a contract dated 15 September 1987 and completed the purchase on 13 November 1987; the transfer was registered on 12 January 1988. 2 Mr Harry Barlow died intestate on or about 20 July 1995. The defendant Mr Peter James Barlow is one of his sons, and he obtained letters of administration from this court on 30 January 1996. 3 The proceedings turn on issues of fact, the principal issue being whether the deceased did in fact agree to transfer his interest to the plaintiff in a written agreement dated 2 December 1994. The defendant denies that any such agreement was made, and through his counsel has suggested that the evidence of the agreement given by the plaintiff and Mr Kenneth Livingstone is fabricated evidence, that the events they give…

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 Hunt v Barlow

Details

AGLC: Hunt v Barlow [2000] NSWSC 324
Case: [2000] NSWSC 324
Decision Date: 19 April 2000

CaseChat Overview and Summary

The case of Hunt v Barlow was before the Supreme Court of South Australia, where the plaintiff sought to enforce an agreement to transfer his interest in certain properties to the defendant, the deceased's estate. The plaintiff claimed that he had an agreement with his deceased business partner, the defendant, to release certain debts and take the business assets in exchange for transferring his interest in the properties to the defendant. The defendants, as the estate of the deceased, denied the existence of such an agreement.

The court was required to determine whether the plaintiff and the deceased had indeed entered into an agreement to transfer the plaintiff's interest in the properties to the deceased. This involved assessing the credibility of the witnesses, the weight of the evidence, and the balance of probabilities. The court noted that the deceased was no longer available to provide evidence, and the plaintiff's claim relied heavily on the testimony of a single witness who had been criminally convicted for dishonesty. The court also considered the demeanour of the witness, irregular accounting records, and the observations of Isaacs J in Plunket v Bull.

The court found that the plaintiff's claim failed on the balance of probabilities. The court was not satisfied that the plaintiff had established the existence of the agreement to transfer his interest in the properties to the deceased. The court found the witness's evidence to be lacking in credibility, particularly in light of the witness's criminal history and the irregularities in the accounting records. The court also noted that the defendants had presented a strong case against the existence of such an agreement. As a result, the court dismissed the plaintiff's claim.

The court made no orders for costs, and the plaintiff's claim was dismissed in its entirety.

Orders