Kavanagh v Londy (No 2) - [2022] QDC 259

DISTRICT COURT OF QUEENSLAND

CITATION: Kavanagh v Londy & Ors (No 2) [2022] QDC 259
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 District Court
COURT:
DELIVERED ON: 22 November 2022
DELIVERED AT: Brisbane District Court
HEARING DATE: On the papers
JUDGE: Sheridan DCJ

ORDERS:

1. A declaration that the agreement is void.
2. The plaintiff’s claim is dismissed.

3.

That the plaintiff pay compensation of $250,000 to the First Defendant.

4.

That the plaintiff pay interest on the sum of $250,000 from 14 September 2016 in the amount calculated in accordance with Practice Direction 6 of 2013.
5. That the plaintiff pay the defendants’ costs of the
proceedings to be assessed or agreed.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ORDERS – Where the plaintiff’s
claim to enforce part of an agreement between himself and the
first defendant was unsuccessful at trial – where the parties
were unable to reach an agreement as to the terms of the final
orders – where, in that event, the parties were directed to file

and serve submissions on the issue of orders and costs - where the plaintiff seeks a stay of the final orders pending the appeal of the judgment.
EQUITY – DECLARATIONS – Where the defendants submit
that a declaration should be made that the property subject to
the agreement is held on trust for the estate – where the
defendants submit that orders should be made for its transfer
to the estate and an account as to moneys owing – whether, in
reversing the transaction of the purchase of the property, the
court achieves practical justice for both parties.
COSTS – SETTLEMENT AND DISCONTINUANCE –
Where the defendants made a formal offer to settle the

proceedings pursuant to the UCPR – where the defendants seek indemnity costs for the whole or part of the proceedings –
whether an order for indemnity costs should be made.
LEGISLATION: District Courts Act 1976 (Qld), s68, s 69, s 72
Land Title Act 1994 (Qld), s 127
Uniform Civil Procedure Rules 1999 (Qld), r 361, r 761, r 800
CASES: Berry v Green [1999] QCA 213
Bridgewater v Leahy (1998) 194 CLR 457
Calderbank v Calderbank [1975] 3 All ER 333
Colgate-Palmolive Company v Cussons Pty Limited [1993]
118 ALR 248
Contempree v BS investments Pty Ltd [2021] QCA 243
Cook’s Construction Pty Ltd v Stork Food Systems
Australasia Pty Ltd [2008] 2 Qd R 453
Emanuel Management v Fosters Brewing Group Limited
[2003] QSC 299
Kavanagh v Londy [2022] QDC 161
Raschilla v Westpac Banking Corp [2010] QCA 255
Surfstone Pty Ltd v Morgan Consulting Engineers Pty Ltd
[2015] QSC 322
Wiggins Island Coal Export Terminal Pty Ltd v Civil Mining
& Construction Pty Ltd (2021) 7 QR 1
COUNSEL: N Shaw…

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 Kavanagh v Londy (No 2)

Details

AGLC: Kavanagh v Londy (No 2) [2022] QDC 259
Case: [2022] QDC 259
Decision Date: 22 November 2022

CaseChat Overview and Summary

In the case of Kavanagh v Londy (No 2), the dispute involved the validity of an agreement between the parties and subsequent claims for compensation and interest. The case was heard in the court, which was tasked with determining the appropriate legal orders regarding the agreement and the counterclaim. The primary legal issues revolved around the validity of the agreement, the obligations of the parties under the agreement, and the remedies available in the event the agreement was found to be void.

The court first addressed the issue of the agreement's validity. It found that the agreement was void based on the findings relating to consideration and equitable principles. The court determined that the appropriate order was to declare the agreement void. Regarding the counterclaim, the court found that the plaintiff was required to pay the sum of $250,000 to the defendants. The court rejected the argument that the Thagoona property transfer was part of the void agreement, holding that the transfer and payment occurred as per the agreement's terms. Consequently, the court ordered the plaintiff to pay the specified sum of money to the defendants, along with interest calculated according to the relevant practice direction.

The court's reasoning was grounded in the evidence presented and the legal principles applicable to the case. The court concluded that the agreement was void due to the lack of valid consideration and equitable grounds for rescission. The counterclaim was resolved by ordering the plaintiff to pay the specified amount, as the transfer of the Thagoona property was found to be a separate transaction unaffected by the void agreement. The court's final orders included declaring the agreement void, dismissing the plaintiff's claim, and directing the plaintiff to pay the defendants $250,000 plus interest, along with the defendants' costs of the proceeding.

Orders

Orders of the court

A declaration that the agreement is void.

The plaintiff’s claim is dismissed.

That the plaintiff pay compensation of $250,000 to the First Defendant.

That the plaintiff pay interest on the sum of $250,000 from 14 September 2016 in the amount calculated in accordance with Practice Direction 6 of 2013.

That the plaintiff pay the defendants’ costs of the

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

It is convenient to deal with each order in turn. Declarations relating to the Agreement and the Claim In his written submissions, Michael agrees with the form of the declaratory order relating to the agreement; though in the draft orders provided, he says that the agreement should be declared avoided. The form of order sought in the counter-claim was that the agreement is void. The effect of the findings relating to consideration is that the agreement is void. The effect of the findings in equity is that the agreement is now regarded as validly rescinded, with the parties to be returned to the status quo. The appropriate order is that the agreement be declared void. There is no dispute that the appropriate order is that the claim should be dismissed. Orders on the Counter-claim The substantive dispute relates to the counterclaim; which concerns two other parts of the agreement. Apart from the bequest of Emerald View, the agreement provided that Mary was to pay to Michael the amount of $250,000 and that he would purchase from her a property at Thagoona for the sum of $200,000. The trustees of the estate submit that a declaration should be made that the plaintiff holds the Thagoona property on trust for the estate and that orders should be made for its transfer to the estate and an account as to the moneys owing between them. In the alternative, they submit that an order should be made for payment of the sum of $250,000 plus interest. Michael submits that the appropriate order is simply that he pay the sum of $250,000 to the trustees. In support of that submission, Michael says that whilst the purchase of the Thagoona property was referred to in the agreement, it was a separate transaction and there was no evidence, nor was it the case for the trustees, that the property was purchased at undervalue. The only evidence on the subject was from Michael. Michael gave evidence that a valuation of the property had been obtained at the instigation of Mary, prior to entering into the agreement. Neither the contract for the purchase of the property, the transfer, a title search or documents showing payment for the property or any other settlement documents were put into evidence. The only evidence as to the completion of the transfer was the oral evidence of Mr Pender, by reference to his diary note of the conversation, of Michael having called his office on 19 June 2012 and it having been confirmed that the transfer documents for the house had been signed and Michael requesting that the documents be forwarded to his solicitors. There is no reason, therefore, to consider that the transfer and payment of $200,000 did not occur and that the amount paid was not the proper amount. The agreement could therefore be declared void without detracting from the actual transfer of the Thagoona property. It is relevant in this respect that the counter-claim with respect to the Thagoona property was one made by the executors and Mr Byrne only as an alternative to the claim for the payment of the sum of $250,000. The primary claim was for payment of that sum of money.

CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ORDERS – Where the plaintiff’s
claim to enforce part of an agreement between himself and the
first defendant was unsuccessful at trial – where the parties
were unable to reach an agreement as to the terms of the final
orders – where, in that event, the parties were directed to file
and serve submissions on the issue of orders and costs - where the plaintiff seeks a stay of the final orders pending the appeal of the judgment.
EQUITY – DECLARATIONS – Where the defendants submit
that a declaration should be made that the property subject to
the agreement is held on trust for the estate – where the
defendants submit that orders should be made for its transfer
to the estate and an account as to moneys owing – whether, in
reversing the transaction of the purchase of the property, the court achieves practical justice for both parties.
COSTS – SETTLEMENT AND DISCONTINUANCE –
Where the defendants made a formal offer to settle the
proceedings pursuant to the UCPR – where the defendants seek indemnity costs for the whole or part of the proceedings –
whether an order for indemnity costs should be made.
LEGISLATION:	District Courts Act 1976 (Qld), s68, s 69, s 72 Land Title Act 1994 (Qld), s 127 Uniform Civil Procedure Rules 1999 (Qld), r 361, r 761, r 800
CASES:	Berry v Green [1999] QCA 213 Bridgewater v Leahy (1998) 194 CLR 457 Calderbank v Calderbank [1975] 3 All ER 333 Colgate-Palmolive Company v Cussons Pty Limited [1993] 118 ALR 248 Contempree v BS investments Pty Ltd [2021] QCA 243
Cook’s Construction Pty Ltd v Stork Food Systems
Australasia Pty Ltd [2008] 2 Qd R 453
Emanuel Management v Fosters Brewing Group Limited
[2003] QSC 299 Kavanagh v Londy [2022] QDC 161
Raschilla v Westpac Banking Corp [2010] QCA 255
Surfstone Pty Ltd v Morgan Consulting Engineers Pty Ltd
[2015] QSC 322
Wiggins Island Coal Export Terminal Pty Ltd v Civil Mining
& Construction Pty Ltd (2021) 7 QR 1
COUNSEL:	N Shaw…