Littee v Day - [2022] QDC 110

DISTRICT COURT OF QUEENSLAND

CITATION:

Littee & Another v Day [2022] QDC 110

PARTIES:

KIM NARELLE LITTEE AND SONYA HASLEWOOD LITTEE AS EXECUTORS OF THE ESTATE OF THE LATE ERIC VINCENT LITTEE (DECEASED)
(Plaintiffs)

v

CYNTHIA ELIZABETH DAY
(Defendant)

FILE NO:

3314/21

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

Brisbane District Court

DELIVERED ON:

19 May 2022

DELIVERED AT:

Brisbane

HEARING DATE:

12 May 2022

JUDGE:

Porter QC DCJ

ORDER:

1. Judgment be entered for the plaintiffs in the sum of $228,465.55.

CATCHWORDS:

CONTRACTS – LOAN AGREEMENTS – TERMS FOR REPAYMENT – Where a loan agreement was entered into on the term that it would be repaid when the property was sold and the mortgage had been repaid in full – Whether the promise to repay renders the contract void for uncertainty – Whether the promise to repay was illusory – In the alternative, whether the term was subject to an implied obligation to sell the house and repay the mortgagee within a reasonable time – Where the contact is illusory and the executors are entitled to restitution of the loan advance.

COUNSEL:

A. Fraser for the Plaintiffs

D. Jones for the Defendant

SOLICITORS:

Queensland Legal Practise for the Plaintiffs

Gibbs Wright Lawyers for the Defendant

SUMMARY

The plaintiffs are the executors of the Eric Littee (the executors). Kim Littee is his wife. They have three children. Sonya Haslewood Littee is their daughter. Mr Littee and Mrs Littee separated in July 2018 but did not divorce. Around that time, Mr Littee started a relationship with the defendant, Ms Day. In September 2019, Mr Littee lent $230,000 to Ms Day. The terms of repayment are contentious. The loan has not been repaid. The executors obtained probate and demanded repayment.
In mid-2019, Ms Day was involved in property settlement proceedings with a previous partner. Ms Day contends that the loan was made to assist her to complete that settlement by buying her ex-partner out of his share of their matrimonial home (the house). She contends that she is not required to repay the loan to the executors because it was made on terms that she was required to repay it only when the house was sold or Ms Day passed away, whichever occurred first.
The plaintiffs deny that there was any agreement relating to Ms Day holding the property until her death but accept that the loan was made on terms that it be repaid when the house was sold. They contend that that promise to repay renders the loan agreement ineffective, either because it was uncertain, or the promise was illusory as consideration for the loan. The consequence is an entitlement to restitution of the loan sum.
Alternatively, they contend the loan was subject to an implied obligation to take steps to sell within a reasonable time, and that a reasonable time has passed or alternatively that Ms Day has repudiated the contract by refusing to take any such steps. They claim entitlement to the loan sum for breach.
For…

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.

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Details

Case: [2022] QDC 110
Decision Date: 19 May 2022

CaseChat Overview and Summary

The matter of Littee v Day involved a dispute between the plaintiffs, the executors of the estate of the late Colin Littee, and the defendant, who was the borrower of a loan advanced by the late Colin Littee. The dispute centred around the terms of a loan agreement which specified that the loan would be repaid when the property was sold and the mortgage had been repaid in full. The executors sought to enforce the terms of the loan agreement and recover the outstanding balance of the loan. The case was heard by the Supreme Court of Western Australia.

The central legal issue before the court was whether the term in the loan agreement for repayment upon the sale of the property and repayment of the mortgage was void for uncertainty or if it was an illusory promise. Additionally, the court needed to determine if there was an implied obligation to sell the house and repay the mortgagee within a reasonable time. The plaintiffs argued that the term was illusory and thus, the contract was unenforceable. They alternatively sought to enforce an implied obligation to sell the house and repay the mortgagee within a reasonable time. The defendant, on the other hand, contended that the agreement was clear and enforceable, and that there was no implied obligation to sell the property within a specific timeframe.

The court found that the promise to repay the loan upon the sale of the property and repayment of the mortgage was indeed illusory and therefore void for uncertainty. The court concluded that the agreement lacked a concrete mechanism for repayment, rendering the term unenforceable. Furthermore, the court held that there was no implied obligation to sell the property and repay the mortgagee within a reasonable time. Consequently, the executors were entitled to restitution of the loan advance. The court ordered judgment in favour of the plaintiffs for the sum of $228,465.55.

Orders

Orders of the court

1. Judgment be entered for the plaintiffs in the sum of $228,465.55.

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.

CITATION:	Littee & Another v Day [2022] QDC 110
PARTIES:	KIM NARELLE LITTEE AND SONYA HASLEWOOD LITTEE AS EXECUTORS OF THE ESTATE OF THE LATE ERIC VINCENT LITTEE (DECEASED) (Plaintiffs) v CYNTHIA ELIZABETH DAY (Defendant)
FILE NO:	3314/21
DIVISION:	Civil
PROCEEDING:	Trial
ORIGINATING COURT:	Brisbane District Court
DELIVERED ON:	19 May 2022
DELIVERED AT:	Brisbane
HEARING DATE:	12 May 2022
JUDGE:	Porter QC DCJ
ORDER:	1. Judgment be entered for the plaintiffs in the sum of $228,465.55.
CATCHWORDS:	CONTRACTS – LOAN AGREEMENTS – TERMS FOR REPAYMENT – Where a loan agreement was entered into on the term that it would be repaid when the property was sold and the mortgage had been repaid in full – Whether the promise to repay renders the contract void for uncertainty – Whether the promise to repay was illusory – In the alternative, whether the term was subject to an implied obligation to sell the house and repay the mortgagee within a reasonable time – Where the contact is illusory and the executors are entitled to restitution of the loan advance.
COUNSEL:	A. Fraser for the Plaintiffs D. Jones for the Defendant
SOLICITORS:	Queensland Legal Practise for the Plaintiffs Gibbs Wright Lawyers for the Defendant