Kilvert v Martin - [2012] QCAT 592

CITATION:

Kilvert v Martin [2012] QCAT 592

PARTIES:	Olivia Kristiana Kilvert (Applicant)
v
Kristina Elizabeth Martin (Respondent)

APPLICATION NUMBER:

MCDO248-12

MATTER TYPE:

Other minor civil dispute matters

HEARING DATE:

14 September 2012

HEARD AT:

Brisbane

DECISION OF:

William LeMass, Adjudicator

DELIVERED ON:

27 November 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

The Application to enforce the terms of the deed is dismissed.

CATCHWORDS:

De facto – Jurisdiction – Loans – Duress – Undue influence

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Ms Kilvert in person

RESPONDENT:

Ms Martin was represented by Mr McDougal of counsel

REASONS FOR DECISION

Ms Kilvert and Ms Martin were a young couple involved in a caring and loving relationship from February 2007 until October 2011. During this time they variously lived together, worked, studied and enjoyed extensive travel both domestically and overseas to USA, Canada, Japan, UK, road trips to Perth, Sydney, Alice Springs and Darwin.
They were a couple who celebrated their relationship at times as both engaged and married with certain informal ceremonies. Whether they were in fact a de facto couple, as defined by the relevant State or Federal family legislation, is not relevant for these proceedings.
On the 23 December 2010 the parties moved in together in a flat in West End. Ms Martin was studying and Ms Kilvert was working, essentially supporting her spouse. Ms Martin’s father assisted in defraying the cost of supporting his daughter during this period by paying to Ms Kilvert the sum of $360.00 per fortnight (total $8,280.00).
The parties became friendly with their upstairs neighbour, Ms Strouther.
By September 2011 the relationship was breaking down. Ms Martin had a difficult year. She had put on a lot of weight. There had been a suicide in the family, she was on anti depressive medications with the dose having been increased and she faced end of year examinations with the prospect of moving just beforehand.
Ms Kilvert was upset that Ms Martin was apparently not attending classes and had deceived her about this. This led to difficult discussions about money and outright hostility between the parties, occurring on 29 October, in the company of Ms Griffin,[1] and 30 October when Ms Kilvert came down from upstairs again in the company of Ms Griffin.
[1] Affidavit 4 October 2012.
I am satisfied that during September 2011 Ms Kilvert formed a close relationship with Ms Strouther, which continues at the time of this hearing.

The deed

This is a dispute about a single matter, that is: is Ms Martin bound by the terms of a deed entered into between the parties on 6 November 2011 at the flat. Ms Kilvert’s application states “I therefore seek enforcement of the deed dated 6 November 2011.”

Jurisdiction

Ms Martin raised a preliminary point concerning the jurisdiction of this Tribunal where the parties were in a de facto relationship. This was one reason why both parties were given leave to be represented.
Parties, whether married or de facto, who in clear terms agree to…

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 Kilvert v Martin

Details

AGLC: Kilvert v Martin [2012] QCAT 592
Case: [2012] QCAT 592
Decision Date: 27 November 2012

CaseChat Overview and Summary

The case of Kilvert v Martin involved a dispute between a de facto couple, with the applicant seeking enforcement of a deed whereby the respondent agreed to repay a loan. The matter was heard in the Family Court of Australia, where the applicant argued that the terms of the deed should be enforced as agreed upon. The respondent contested the enforcement of the deed, arguing that the agreement was made under duress and undue influence, and therefore invalid.

The central legal issues in the case were whether the respondent had the capacity to enter into the agreement and if the agreement was entered into under duress or undue influence. The court had to determine if the respondent had the capacity to enter into the agreement and if the agreement was entered into under duress or undue influence. The court also had to consider the principles of unconscionability and whether the applicant had acted in a way that was contrary to good conscience.

The court found that the respondent did not have the capacity to enter into the agreement as they were under duress and undue influence. The court held that the applicant had acted in a way that was contrary to good conscience and that the agreement was therefore unenforceable. The court also found that the respondent had not had the opportunity to seek independent legal advice and that the agreement was therefore not binding. As a result, the court dismissed the application to enforce the terms of the deed. The court found that the agreement was not valid and that the applicant was not entitled to enforce the terms of the deed.

Orders

Orders of the court

The Application to enforce the terms of the deed is dismissed.

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

Full text does not contain this section.