Kelly v Slade

[2017] QDC 288

DISTRICT COURT OF QUEENSLAND

CITATION: 

Kelly & Anor v Slade & Anor [2017] QDC 288

PARTIES: 

GORDAN JAMES KELLY (First Plaintiff)

KATHLEEN MARY KELLY (Second Plaintiff)

AND

VICKI LEE SLADE (First Defendant)

DANNY ALEXANDER SLADE (Second Defendant)

FILE NO/S:

DC No 1634 of 2015  

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT: 

District Court at Brisbane

DELIVERED ON:

7 December 2017

DELIVERED AT:

Brisbane

HEARING DATE: 

13 – 16 November 2017

JUDGE:

Porter QC DCJ

ORDER:

The plaintiffs’ claim is dismissed.

The defendants’ counterclaim is dismissed.  

CATCHWORDS:

MONEY – PAYMENT – OTHER MATTERS – where the plaintiffs transferred their respective interests in the farm to the defendants as joint tenants – where the terms upon which that transfer occurred were in dispute – whether the defendants agreed to pay $250,000 for the first plaintiff’s share.

EVIDENCE – ADMISSIBILITY – ADMISSIONS – WHAT CONSTITUTES – where there is evidence of subsequent conduct – whether that subsequent conduct is properly dealt with as an admission of the terms of the informal agreement alleged by the plaintiffs – whether that subsequent conduct is properly dealt with as an inference that the parties made an informal agreement on particular terms.

Legislation

Property Law Act 1974 (Qld) s 59

Cases
Brice v Chambers [2014] QCA 310
Dovuro v Wilkins (2003) 215 CLR 317
Fraser v The Irish Restaurant & Bar Company P/L [2008] QCA 270
L Schuler AG v Wickman Machine Tool Sales Ltd [1974] AC 235
Lym International Pty Ltd v Marcolongo [2011] NSWCA 303 Tomko v Palasty [2007] NSWCA 258
Winks v WH Heck & Sons Pty Ltd [1986] 1 Qd R 226

COUNSEL:

A Skoien and H Knowlman for the plaintiffs

A Fraser and J Kenny for the defendants

SOLICITORS:

Blue Ocean Law Group for the plaintiffs

BR Solicitors for the defendants

Introduction

1. From April 2010, the plaintiffs, Mr Kelly and his mother, Mrs Kelly, owned a farming property in equal one-third shares with the first defendant Mrs Slade, who is their daughter and granddaughter respectively.  In late 2010, the Kellys’ transferred their respective interests in the farm to Mrs Slade and her husband (the second defendant) as joint tenants.   The principal issue to be resolved in this trial is as to the terms upon which that transfer occurred. 

2. The parties concur that the Slades agreed to pay $260,000 to Mrs Kelly in consideration of the transfer, and it is not disputed that they did so.

3. The Kellys ultimately contended that the Slades also agreed:

   (a)To pay a total of $250,000 (later varied to $240,000) for Mr Kelly’s share as follows:

   (i)The Slades would pay $20,000 at settlement;

   (ii)The Slades would pay $20,000 off his credit card debts at or about settlement;

   (iii)The Slades would pay the balance of $200,000 within 2 years; and

   (b)Pending that payment, Mr Kelly would not charge interest but could live on the farm rent free and without paying utilities. 

4. The Slades, on the other hand, ultimately contended that they also agreed that for Mr Kelly’s share they would: