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Kennedy and Hunt v Griffiths

Kennedy and Hunt v Griffiths

Case [2011] QSC 369 30 November 2011

Contract Formation

Unconscionable Conduct

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SUPREME COURT OF QUEENSLAND

CITATION:

Kennedy & Hunt v Griffiths [2011] QSC 369

PARTIES:

BRUCE JAMES KENNEDY
(first plaintiff)

BARBARA MARJORY HUNT
(second plaintiff)
v
PAMELA ANNE GRIFFITHS
(defendant)

FILE NO:

1268 of 2010

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

30 November 2011

DELIVERED AT:

Brisbane

HEARING DATE:

28, 29 July and 1, 2, 3, 4, 5 August 2011, written submissions from 12 August 2011 to 22 August 2011.

JUDGE:

Ann Lyons J

ORDERS:

CATCHWORDS:

SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – THE MAKING OF A WILL – TESTAMENTARY INSTRUMENTS – CONTRACTS – where the parties are siblings raised by the same parents – where the second plaintiff was the father’s daughter from a previous marriage – where there is evidence that the parties’ parents made an agreement that upon death the surviving parent would divide their estate equally between the three children – where there is evidence the parents communicated their intention to the first plaintiff – where the father predeceased the mother leaving his estate to her – where there is evidence that both prior and subsequent to the father’s death the mother changed her will to favour her biological daughter, the defendant – whether the agreement between the parents is valid and enforceable by the plaintiffs

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – FORMATION OF CONTRACTUAL RELATIONS – where there is evidence the first plaintiff and the defendant made an oral agreement to divide their parents’ estate equally between the three siblings regardless of what was contained in the mother’s will – where the second plaintiff and the defendant later made the agreement in writing – where the defendant now claims no such oral agreement existed and the written agreement was made under duress – whether the agreement existed and can be enforced

Evidence Act 1977 (Qld), s 92
Property Law Act 1974 (Qld), s 55

Baird v Smee [2000] NSWCA 253
Bigg v Queensland Trustees Pty Ltd [1990] 2 Qd R 11
Birmingham v Renfrew (1937) 57 CLR 666
Dore (as executor of the will of W H B Chenhall dec'd) [2006] QCA 494
Dufour v Pereira (1729) 21 ER 332
[1981] 1 WLR 939
Laver v Fielder (1862)21 Beav 1
Re Cleaver [1981] 1 WLR 939
Re Newey [1994] 2 NZLR 590
Sorbello & Ors v Sorbello & Anor [2005] QSC 219
Staib v Powell [1979] Qd R 151

COUNSEL:

T W Quinn with A Fraser for the plaintiffs

K Fleming QC with T Somers for the defendant

SOLICITORS:

Broadley Rees Hogan Lawyers for the plaintiffs
Griffiths Parry Lawyers for the defendant

ANN LYONS J:

The current claim

Frank and Thelma Kennedy married in 1947 and had two children Bruce and Pamela. Frank had a daughter Barbara from an earlier marriage and she was raised with the two children of the marriage. Substantial assets were acquired during the marriage and when Frank died in 1992 he and Thelma owned as joint tenants a large property at Kenmore, and a…

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 Kennedy and Hunt v Griffiths

Details

AGLC: Kennedy and Hunt v Griffiths [2011] QSC 369
Case: [2011] QSC 369
Decision Date: 30 November 2011

CaseChat Overview and Summary

In the matter of Kennedy and Hunt v Griffiths, the dispute arose between siblings concerning the distribution of their parents' estate. The siblings were raised by the same parents, with one being the father's daughter from a previous marriage. The plaintiffs argued that there was an agreement between the parents that upon their deaths, the surviving parent would divide their estate equally among the three children. They presented evidence that the parents communicated this intention to the first plaintiff, and that prior to the father's death, the mother had changed her will to favour her biological daughter, the defendant. The court was tasked with determining the validity and enforceability of the parents' agreement, as well as the existence and enforceability of a subsequent oral and written agreement between the first plaintiff and the defendant.

The legal issues at the core of the case were whether the alleged agreement between the parents could be enforced by the plaintiffs and whether the oral and written agreements between the first plaintiff and the defendant were valid and could be enforced. The court needed to examine the evidence provided to determine the existence of the parents' agreement and whether it was communicated to the first plaintiff. Additionally, the court had to assess the credibility of the evidence presented regarding the oral and written agreements between the first plaintiff and the defendant, and whether the defendant's claims of duress and non-existence of the agreements were substantiated.

The court found that the agreement between the parents was valid and enforceable by the plaintiffs, as the evidence supported the existence of the agreement and its communication to the first plaintiff. The court also found the oral and written agreements between the first plaintiff and the defendant to be valid and enforceable. The court rejected the defendant's claims of duress and non-existence of the agreements, concluding that the agreements were made voluntarily and in good faith. The court held that the plaintiffs were entitled to enforce the agreements and that the estate should be divided equally among the three siblings.

The court ordered that the estate of the deceased parents be divided equally among the three siblings, in accordance with the agreements established by the parents and the siblings. The court also ordered the defendant to compensate the plaintiffs for any losses incurred as a result of the breach of the agreements.

Orders