Kelly v Slade - [2018] QCA 197

SUPREME COURT OF QUEENSLAND

CITATION:

Kelly & Anor v Slade & Anor [2018] QCA 197

PARTIES:

GORDON JAMES KELLY
(first appellant)
KATHLEEN MARY KELLY
(second appellant)
v
VICKI LEE SLADE
(first respondent)
DANNY ALEXANDER SLADE
(second respondent)

FILE NO/S:

Appeal No 191 of 2018
DC No 1634 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

District Court at Brisbane – [2017] QDC 288

DELIVERED ON:

28 August 2018

DELIVERED AT:

Brisbane

HEARING DATE:

15 May 2018

JUDGES:

Sofronoff P and Morrison JA and Atkinson J

ORDERS:

1.   Appeal allowed.

2.   The Orders made on 7 December 2017 dismissing the plaintiffs’ claim and 5 March 2018 as to costs are set aside.

3.   A retrial is ordered.

4.   The costs of the first trial are reserved to the trial judge hearing the retrial.

5.   The respondents are to pay the costs of the appeal.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – FUNCTION OF APPELLATE COURT – WHERE FINDINGS BASED ON CREDIBILITY OF WITNESSES – NECESSITY FOR FINDING TO BE CLEARLY WRONG – where the appellants commenced proceedings to recover money which they said was agreed to be paid by the respondents in consideration of the transfer of the appellants’ interests in certain farm land – where in the course of discussions regarding the transfer, two documents were drawn up in lieu of a properly executed contract – where the learned primary judge made findings about the credibility of the witnesses but did so with reference to only part of the evidence – where the learned primary judge failed to take into account the two contemporary documents when testing the veracity of the witnesses – where this failure resulted in the learned primary judge making erroneous findings not supported by the evidence – whether a retrial should be ordered

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, cited
Guirguis Pty Ltd v Michel’s Patisserie System Pty Ltd [2018] 1 Qd R 132; [2017] QCA 83, cited

COUNSEL:

A N Skoien with H J Knowlman for the appellants
A B Fraser for the respondents

SOLICITORS:

Blue Ocean Law Group for the appellants
BR Solicitors for the respondents

SOFRONOFF P: I agree with the reasons of Morrison JA and the orders his Honour proposes.
MORRISON JA: The appellants[1] commenced proceedings to recover money which they said was agreed to be paid by the respondents[2] in consideration of the transfer of the appellants’ interests in certain farm land at Kingaroy.[3]
[1]Gordon Kelly and his mother, Kathleen Kelly.
[2]Gordon’s daughter, Vicki Slade and her husband Danny Slade.
[3]In these reasons it is convenient to refer to the appellants by their names and the respondents as Mr and Mrs Slade, in each case so as to distinguish them. That accords with the Reasons of the learned trial judge.
In its essentials the claim was that the respondents had agreed to pay Kathleen Kelly $260,000 for her one…

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 Kelly v Slade

Details

AGLC: Kelly v Slade [2018] QCA 197
Case: [2018] QCA 197
Decision Date: 28 August 2018

CaseChat Overview and Summary

The appeal was brought by Gordon and Kathleen Kelly against the Slades, focusing on the recovery of money allegedly agreed upon for the transfer of interests in a farm property. The dispute centred on the interpretation of verbal agreements and the lack of a formal written contract. The matter was heard in the Supreme Court of Victoria. The Kellys contended that the Slades had agreed to pay $260,000 for Kathleen Kelly's share of the farm and an additional $20,000 to Gordon Kelly upon settlement. The Slades denied these claims and argued that no such agreement was made. The court had to determine whether the Slades were liable to pay the amounts claimed by the Kellys, and if the primary judge had correctly assessed the evidence and made findings of fact. Issues included the credibility of the witnesses, the interpretation of contemporaneous documents, and whether the trial judge had properly considered all relevant evidence.

The Court of Appeal found that the primary judge had erred in his assessment of the evidence and in failing to properly consider two contemporaneous documents that were executed by the Slades. These documents, which were not a fully executed contract of sale, were crucial to understanding the terms of the agreement between the parties. The Court held that the primary judge's findings were based on an incomplete assessment of the evidence, particularly in relation to the credibility of the witnesses and the interpretation of the documentary evidence. The failure to consider these documents led to erroneous findings that were not supported by the evidence. The Court of Appeal concluded that the errors made by the primary judge were such that a retrial was necessary to ensure a fair determination of the issues.

The Court of Appeal allowed the appeal, set aside the orders dismissing the Kellys' claim and the costs orders made at the first trial, and ordered a retrial. The costs of the first trial were reserved for the trial judge hearing the retrial, and the Slades were ordered to pay the costs of the appeal. This decision underscores the importance of considering all relevant evidence, including contemporaneous documents, when making findings of fact, and the necessity for appellate courts to intervene where the primary judge's findings are not supported by the evidence.

Orders

Orders of the court

1. Appeal allowed.

2. The Orders made on 7 December 2017 dismissing the plaintiffs’ claim and 5 March 2018 as to costs are set aside.

3. A retrial is ordered.

4. The costs of the first trial are reserved to the trial judge hearing the retrial.

5. The respondents are to pay the costs of the appeal.

Background

Background to the litigation

That decision is challenged on a variety of grounds which include that the learned trial judge erred:(a)in the way his Honour assessed the evidence and made findings of fact;(b)in construing contemporaneous documentary evidence executed by the Slades or their solicitors;(c)in failing to properly deal with the contemporaneous documentary evidence executed by the Slades or their solicitors; and(d)in thereby rejecting the evidence of Gordon and Kathleen Kelly and preferring the evidence of Mr and Mrs Slade.Some background The following is taken from the Reasons below.[5] It gives general background to the parties and how their interest in the land came about.[5]Paragraphs [7]-[23]. Gordon Kelly and his wife had four children: Wayne, Graeme, Vicki (Mrs Slade) and Lisa. In about 1994, Gordon Kelly and his wife acquired the farm property. He was reliant on his wife to manage their business affairs. Gordon Kelly’s wife died in 2007 at which time he discovered that he was in financial trouble of which he had been previously unaware. His son Graeme had become the owner of a half interest in the farm in 2006, and had let the mortgage repayments fall into arrears. As well, Gordon Kelly found he had significant personal debts. His mother, Kathleen Kelly, agreed to assist, buying Graeme’s half interest in 2007 for $260,000. There was disputed evidence at the trial about how that sum was apportioned, Mrs Slade saying she had been told by both Gordon and Kathleen that $160,000 was for the half share and $100,000 was an advance on Gordon Kelly’s inheritance to permit him to clear his debts. Kathleen Kelly moved in with Gordon Kelly in September 2007 and they continued to reside together until November 2010, when Kathleen Kelly moved out. During that period Mrs Slade provided a lot of support to Gordon Kelly, who had little experience in handling his domestic or financial affairs. Gordon Kelly intended to keep the farm until he died, and that Mrs Slade should have it after he and Kathleen Kelly died. In April 2010 Gordon Kelly and Kathleen Kelly transferred a one-third interest to Mrs Slade for no monetary consideration. Gordon Kelly’s intention was that it would serve to protect the farm from any demands made by his sons if he died. In September 2010 discussions started about the sale of the whole farm to the Slades. Whilst there was considerable dispute[6] in the evidence at trial about the conversations leading to the eventual transfer of the land to the Slades, both versions had the Slades agreeing to pay:(a)$260,000 to Kathleen Kelly for her share; and(b)$20,000 to Gordon Kelly at settlement.[6]Between the Kellys on the one hand and the Slades on the other. The Slades sought finance from the Heritage Building Society which approved a loan of $306,000 in mid-November 2010. That approval required a capital reduction of $55,000 within six months to be paid from the sale of the Slades’ existing home, and the provision of an executed contract of sale. No executed contract of sale was given to the Heritage Building Society, and instead it received Exhibit 4, which was prepared by Mrs Slade and executed by the Slades and Gordon Kelly.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Kelly & Anor v Slade & Anor [2018] QCA 197
PARTIES:	GORDON JAMES KELLY (first appellant) KATHLEEN MARY KELLY (second appellant) v VICKI LEE SLADE (first respondent) DANNY ALEXANDER SLADE (second respondent)
FILE NO/S:	Appeal No 191 of 2018 DC No 1634 of 2015
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	District Court at Brisbane – [2017] QDC 288
DELIVERED ON:	28 August 2018
DELIVERED AT:	Brisbane
HEARING DATE:	15 May 2018
JUDGES:	Sofronoff P and Morrison JA and Atkinson J
ORDERS:	1. Appeal allowed. 2. The Orders made on 7 December 2017 dismissing the plaintiffs’ claim and 5 March 2018 as to costs are set aside. 3. A retrial is ordered. 4. The costs of the first trial are reserved to the trial judge hearing the retrial. 5. The respondents are to pay the costs of the appeal.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – FUNCTION OF APPELLATE COURT – WHERE FINDINGS BASED ON CREDIBILITY OF WITNESSES – NECESSITY FOR FINDING TO BE CLEARLY WRONG – where the appellants commenced proceedings to recover money which they said was agreed to be paid by the respondents in consideration of the transfer of the appellants’ interests in certain farm land – where in the course of discussions regarding the transfer, two documents were drawn up in lieu of a properly executed contract – where the learned primary judge made findings about the credibility of the witnesses but did so with reference to only part of the evidence – where the learned primary judge failed to take into account the two contemporary documents when testing the veracity of the witnesses – where this failure resulted in the learned primary judge making erroneous findings not supported by the evidence – whether a retrial should be ordered Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, cited Guirguis Pty Ltd v Michel’s Patisserie System Pty Ltd [2018] 1 Qd R 132; [2017] QCA 83, cited
COUNSEL:	A N Skoien with H J Knowlman for the appellants A B Fraser for the respondents
SOLICITORS:	Blue Ocean Law Group for the appellants BR Solicitors for the respondents