Kavanagh v Londy

Case [2022] QDC 161

DISTRICT COURT OF QUEENSLAND

CITATION:

Kavanagh v Londy & Ors [2022] QDC 161

PARTIES:

MICHAEL ANTHONY KAVANAGH

(plaintiff)

v
ANNE LYNETTE LONDY and GERARD PHILIP PENDER as the executors and trustees of the will of MARY HILARY KAVANAGH (deceased)

(first defendant)

and

JOHN DENNIS BYRNE

(second defendant)

FILE NO:

32 of 2017

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court

DELIVERED ON:

25 July 2022

DELIVERED AT:

Brisbane District Court

HEARING DATE:

10 February 2021 – 11 February 2021

JUDGE:

Sheridan DCJ

ORDERS:

1.   The plaintiff’s claim is dismissed.

2.   The parties are to file and serve draft orders by 15 August 2022.

3.   If the parties are unable to agree the terms of the orders, they are to file and serve separate draft orders by 15 August 2022.

4.   If the parties are unable to agree the orders, the defendants are to file and serve submissions by 22 August 2022 and the plaintiff is to file and serve submissions by 29 August 2022.

CATCHWORDS:

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – where there was a written agreement between the plaintiff and his second cousin – where the agreement provided that the second cousin would bequest a property to the plaintiff – where the second cousin now deceased left a will which left the property to the second defendant and not to the plaintiff - whether the agreement can be enforced

EQUITY – GENERAL PRINCIPLES – where there was a written agreement between the plaintiff and his second cousin – where agreement provided that the second cousin would bequest a property to the plaintiff – where the second cousin now deceased left a will which left the property to the second defendant and not to the plaintiff - whether agreement voidable for undue influence or unconscionable conduct

LEGISLATION:

Evidence Act 1977 (Qld), s 92

CASES:

Alford v Ebbage (2003) 1 Qd R 343; [2002] QCA 194, followed
Bassett v Cameron [2021] NSWSC 207, cited
Barnes v Addy (1874) LR 9 Ch 244, cited
Bridgewater & Ors v Leahy & Ors (1998) 194 CLR 457; [1998] HCA 66, followed
Bull v R (2000) 201 CLR 443; [2000] HCA 24, followed
Callisher v Bischoffsheim (1870) LR 5 QB 449, followed
Commercial Bank of Australia Limited v Amadio& Anor (1983) 151 CLR 447; [1983] HCA 14, followed
Director of Public Prosecutions (Vic) v Le (2007) 232 CLR 562; [2007] HCA 52, followed
Eastwood v Kenyon (1840) 113 ER 482; (1840) 11 Ad & El 438, followed
Farah Constructions Pty Limited & Ors (2007) 230 CLR 89; [2007] HCA 22, cited
Giumelli & Anor v Giumelli (1999) 196 CLR 101; [1999] HCA 10, followed
Grubisic v Western Australia (2011) 41 WAR 524; [2011] WASCA 147, followed
Hughes v National Trustees Executors and Agency Co of Australasia Ltd (1978) 143 CLR 134; [1979] HCA 2, followed
Riches v Hogben [1985] 2 Qd R 292, followed

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Details
AGLC
Kavanagh v Londy [2022] QDC 161
Case
[2022] QDC 161
Decision Date

CaseChat Overview and Summary

The case of Kavanagh v Londy involved a dispute between the plaintiff, Stephen Joseph Kavanagh, and the second defendant, the estate of Mary. The plaintiff sought to enforce a written agreement made with his second cousin, Mary, who had since passed away. The agreement stipulated that Mary would bequeath a specific property to Stephen. However, Mary's will left the property to another party, not Stephen. The plaintiff argued that the agreement could be enforced, while the defendants contended that the agreement was either voidable for undue influence or unconscionable conduct.

The court had to determine several legal issues, including whether the agreement between Stephen and Mary was enforceable despite Mary's will leaving the property to another party. The court also needed to consider if the agreement was voidable due to undue influence or unconscionable conduct. The consideration provided by Stephen for Mary's promise to bequeath the property was another critical issue. The court examined whether Stephen's forbearance to sue Mary for historical grievances and other promises made in the agreement constituted valid consideration.

In ruling on the matter, the court found that the agreement between Stephen and Mary could not be enforced. The court was unconvinced by Stephen's evidence and found his protestations unconvincing. The court held that there was no valid consideration for Mary's promise to bequeath the property, as Stephen's claims of historical wrongs lacked credible evidence and basis. The court also found that the agreement was not voidable for undue influence or unconscionable conduct. Consequently, the plaintiff's claim was dismissed.

The final orders of the court included the dismissal of the plaintiff's claim. The parties were required to file and serve draft orders by 15 August 2022. If the parties could not agree on the terms of the orders, they were to file and serve separate draft orders by the same date. If further disagreement arose, the defendants were to file and serve submissions by 22 August 2022, and the plaintiff was to file and serve submissions by 29 August 2022.

Orders

Orders of the court

1. The plaintiff’s claim is dismissed.

2. The parties are to file and serve draft orders by 15 August 2022.

3. If the parties are unable to agree the terms of the orders, they are to file and serve separate draft orders by 15 August 2022.

4. If the parties are unable to agree the orders, the defendants are to file and serve submissions by 22 August 2022 and the plaintiff is to file and serve submissions by 29 August 2022.

Background

Background to the litigation

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Evidence

Evidence Before The Court

As to paragraph numbered (3), the particulars allege that Stephen Joseph Kavanagh took possession of 200 head of cattle in 1924 and received dividends which belonged to the estate of Michael’s grandfather which may have been due to Michael’s father (and hence Michael, as his heir). Course of Evidence Evidence was led from Michael to explain, from his point of view, the past events which are referred to in the agreement. This evidence was admitted solely on the basis that it went to his belief at the time or shortly before the agreement. He was also cross-examined on these matters with a view to it being shown that he had no basis for his claims. Notwithstanding the absence of any documentary or first-hand proof of them, Michael was steadfast and persistent in his claim that he and his father had been wronged. All this reinforced in my mind the probability that he behaved in a similar way in his dealings with Mary. Most of the admissible evidence from Michael concerned his dealings with Mary from about 2008. Michael expressed himself forcefully in giving this evidence and denied any suggestion that he had influenced Mary unduly or improperly in relation to the agreement or her wills. Unfortunately, such was the manner of his giving evidence, that in the end I found his protestations unconvincing and rather tended to reinforce the opposite of his denials. Apart from Michael, oral evidence was given by Mary’s solicitor, Mr Pender, about his dealings and conversations with Mary in relation to her various wills and the agreement and by a cousin, Stephen, as to various communications he had with both Michael and Mary. The evidence of Mr Pender was largely based upon his recollection of the conversations with Mary, with his memory being refreshed by his typed diary notes. His evidence was that he made handwritten notes during the course of his conferences with Michael or Mary and that after the conference he would dictate his notes. He would usually dictate the notes immediately after the conference occurred but sometimes that was not possible and the notes were dictated later. The typed notes would bear the date of the conference and the date on which the notes were typed up by the staff, which depending on staff availability could be several days later. When the notes of Mr Pender were sought to be tendered, objection was taken to their tender on the basis that they should not be received as to the truth of what was said at the attendance, but only that they were evidence of the attendances themselves and “what passed at those attendances”. No objection was taken during the oral evidence of Mr Pender as to the relevant conversations or their contents; including the statements he says were made to him by Mary. However, during the submissions relating to the basis upon which the notes were to be admitted, a similar objection was made that, in effect, the oral statements made by Mary to Mr Pender were not to be treated as evidence of the facts stated. Although the objection was late and therefore the evidence could have been treated as admitted for all purposes,[2] I propose to treat the oral evidence on the same basis as the notes. [2]Bull v R (2000) 201 CLR 443 at 465 [76].

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

This defence fails.Consideration for the Promise? It was thirdly submitted on behalf of the defendants that there was no consideration for the promise and that the forbearance to sue which was relied upon, was not bona fide and was vexatious and frivolous. In response, it was submitted on behalf of Michael that by the agreement Michael gave up his right to sue Mary for the wrongs referred to in the agreement and in his evidence. It was submitted, based on the decision in Callisher v Bischoffsheim,[10] that if a person bona fide believes the person has a fair chance of success the person’s forbearance to sue was good consideration. [10](1870) LR 5 QB 449. It was also submitted on behalf of Michael, that apart from the historical claims, the agreement included an agreement to purchase the Thagoona property, an agreement not to contest the ownership of the Byrnes property, the giving of moral absolution to Mary for the various grievances and the giving of an undertaking as to confidentiality. The effect of the three elements of the agreement relied upon in the submissions, namely those regarding the Thagoona property, the Byrnes property and the confidentiality clause, can be dealt with simply. Although the agreement expresses in mandatory terms that Michael was obliged to purchase the Thagoona property, there is no evidence that Mary wished to sell it and it is clear that Michael considered that he was entitled to much of the property then owned by Mary. The effect of the payment of $250,000 by Mary to Michael in cash essentially meant that there was a round-robin of transactions; with Mary getting no benefit from the transaction itself. Michael suffered no detriment either. There is also nothing moreover which shows that the purchase of the Thagoona property has any relationship with the promise to bequest the Emerald property. As to the Byrnes property, in cross-examination Michael admitted that he did not have a claim on the Byrnes property. Michael said that the additional promise was put in the agreement at the request of Mary as she was concerned that there might be a dispute about the property between others. Michael denied that it was put in the agreement because Mary was concerned that he might attack her estate. The confidentiality clause is not one that can be satisfactorily characterized as consideration for the promise to bequest the Emerald property. There is nothing to suggest that it had any value. As to the alleged wrongs, it is not readily apparent that there was anything to pursue. On Michael’s version the wrongs were done to his grandfather and father. The claims are based on transactions which occurred well before Michael was born and seem largely founded on things he had been told by his aunts and father when he was a young person. All of these people are deceased. It does not even appear as if the things he was told were based on any first-hand knowledge of the tellers. On their own, the documents, such as there are, do not enable any conclusion to be drawn that the claims are worthwhile.