Mann v Whitney - [2011] QSC 387

SUPREME COURT OF QUEENSLAND

CITATION:

Mann v Whitney [2011] QSC 387

PARTIES:

SONYA MANN
(applicant)
v
TIMOTHY CLIFTON WHITNEY AS ADMINISTRATOR AD LITEM OF THE ESTATE OF ANGUS DONALD MANN DECEASED

(respondent)

FILE NO/S:

SC No 6969 of 2011

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

Delivered ex tempore 11 November 2011

DELIVERED AT:

Brisbane

HEARING DATE:

11 November 2011

JUDGE:

Atkinson J

ORDERS:

1.   The application for Summary Judgment filed 3 November 2011 is dismissed.

2.   The Respondent’s costs of and incidental to responding to this application be assessed on the Supreme Court itemised scale on a standard basis and paid by the Plaintiff.

3. With the consent of the Applicant, an application for provision out of the estate pursuant to Part 4 Succession Act 1981, application BD 321/11, be remitted to the Supreme Court to be heard together with this claim BS 6969/11.

4.   The parties to both the application and the action shall participate in a mediation of both matters to be held on or before 20 December 2011:

a)   at a venue to be agreed upon, failing agreement the mediation rooms at the Queensland Law Society Inc;

b)     with the mediator to be Rebecca Treston of Counsel (or if she is unavailable, such other mediator as may be agreed upon amongst the parties or as may be ordered by the Court);

c)   the Administrator, as the Defendant in claim BS 6969/11 and the Respondent in application BD 321/11 shall prepare the brief for the mediator, the brief containing copies of all documents filed in both the claim and the application, and such other material as may be agreed upon amongst the parties; and

d)     the fees of the mediator and any venue hire are to be paid by the Plaintiff in this claim and the Applicant in the application, in equal shares.

5.   That in claim BS 6969/11 and the application BD 321/11:

a)   any notice given by any party in either proceeding to another party shall be sufficient, where it is necessary, to be notice pursuant to the other proceeding;

b)     affidavit or other material field in either proceeding shall be evidence in the other proceeding;

c)   evidence given at the trial in either proceeding shall be evidence in the other proceeding; and

d)     any document tendered as an exhibit in either proceeding shall be an exhibit in the other proceeding.

6.   That any party be at liberty to apply on three days written notice to the other parties.

CATCHWORDS:

EQUITY – TRUSTS AND TRUSTEES – IMPLIED TRUSTS – RESULTING TRUSTS – WHEN ARISING – JOINT PURCHASE OF LAND – where the applicant and deceased decided to purchase a home together and the deceased consequently purchased a property in his own name – where the applicant sought, inter alia, a declaration that the respondent held the property and its contents on constructive or resulting trust for the applicant and orders that the property be conveyed to the applicant – whether…

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 Mann v Whitney

Details

AGLC: Mann v Whitney [2011] QSC 387
Case: [2011] QSC 387
Decision Date: 11 November 2011

CaseChat Overview and Summary

The matter before the Supreme Court of Queensland was between Mann and Whitney, where the applicant sought a declaration that the deceased held the property on trust for the applicant and orders for conveyance of the property. The deceased had purchased the property in his own name, but the applicant argued that they intended to hold the property jointly. The court was required to determine whether the applicant and the deceased held the property as joint tenants or tenants in common, and whether the applicant was entitled to a declaration of trust or conveyance of the property.

The court considered whether summary judgment was appropriate in this case, given that the extent of the co-ownership of the applicant and the deceased in equity remained to be determined. The court found that the evidence presented was insufficient to determine the issue of co-ownership, and that the matter required a trial. The court also considered the orders sought by the applicant and the respondent, and made orders for mediation and joint hearing of the matters.

The court dismissed the application for summary judgment and ordered that the respondent's costs be paid by the applicant. The court also made orders for mediation and joint hearing of the matters, and ordered that any notice, affidavit, evidence, or document tendered in either proceeding would be admissible in the other proceeding. The court further ordered that any party could apply for relief on three days written notice to the other parties.

In summary, the court found that the applicant had not demonstrated a sufficient basis for summary judgment, and ordered mediation and joint hearing of the matters. The court also made orders for costs, and provided for the admissibility of evidence and notices in both proceedings.

Orders

Orders of the court

1. The application for Summary Judgment filed 3 November 2011 is dismissed.

2. The Respondent’s costs of and incidental to responding to this application be assessed on the Supreme Court itemised scale on a standard basis and paid by the Plaintiff.

3. With the consent of the Applicant, an application for provision out of the estate pursuant to Part 4 Succession Act 1981, application BD 321/11, be remitted to the Supreme Court to be heard together with this claim BS 6969/11.

4. The parties to both the application and the action shall participate in a mediation of both matters to be held on or before 20 December 2011:

a) at a venue to be agreed upon, failing agreement the mediation rooms at the Queensland Law Society Inc;

b) with the mediator to be Rebecca Treston of Counsel (or if she is unavailable, such other mediator as may be agreed upon amongst the parties or as may be ordered by the Court);

c) the Administrator, as the Defendant in claim BS 6969/11 and the Respondent in application BD 321/11 shall prepare the brief for the mediator, the brief containing copies of all documents filed in both the claim and the application, and such other material as may be agreed upon amongst the parties; and

d) the fees of the mediator and any venue hire are to be paid by the Plaintiff in this claim and the Applicant in the application, in equal shares.

5. That in claim BS 6969/11 and the application BD 321/11:

a) any notice given by any party in either proceeding to another party shall be sufficient, where it is necessary, to be notice pursuant to the other proceeding;

b) affidavit or other material field in either proceeding shall be evidence in the other proceeding;

c) evidence given at the trial in either proceeding shall be evidence in the other proceeding; and

d) any document tendered as an exhibit in either proceeding shall be an exhibit in the other proceeding.

6. That any party be at liberty to apply on three days written notice to the other parties.

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:	Mann v Whitney [2011] QSC 387
PARTIES:	SONYA MANN (applicant) v TIMOTHY CLIFTON WHITNEY AS ADMINISTRATOR AD LITEM OF THE ESTATE OF ANGUS DONALD MANN DECEASED (respondent)
FILE NO/S:	SC No 6969 of 2011
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	Delivered ex tempore 11 November 2011
DELIVERED AT:	Brisbane
HEARING DATE:	11 November 2011
JUDGE:	Atkinson J
ORDERS:	1. The application for Summary Judgment filed 3 November 2011 is dismissed. 2. The Respondent’s costs of and incidental to responding to this application be assessed on the Supreme Court itemised scale on a standard basis and paid by the Plaintiff. 3. With the consent of the Applicant, an application for provision out of the estate pursuant to Part 4 Succession Act 1981, application BD 321/11, be remitted to the Supreme Court to be heard together with this claim BS 6969/11. 4. The parties to both the application and the action shall participate in a mediation of both matters to be held on or before 20 December 2011: a) at a venue to be agreed upon, failing agreement the mediation rooms at the Queensland Law Society Inc; b) with the mediator to be Rebecca Treston of Counsel (or if she is unavailable, such other mediator as may be agreed upon amongst the parties or as may be ordered by the Court); c) the Administrator, as the Defendant in claim BS 6969/11 and the Respondent in application BD 321/11 shall prepare the brief for the mediator, the brief containing copies of all documents filed in both the claim and the application, and such other material as may be agreed upon amongst the parties; and d) the fees of the mediator and any venue hire are to be paid by the Plaintiff in this claim and the Applicant in the application, in equal shares. 5. That in claim BS 6969/11 and the application BD 321/11: a) any notice given by any party in either proceeding to another party shall be sufficient, where it is necessary, to be notice pursuant to the other proceeding; b) affidavit or other material field in either proceeding shall be evidence in the other proceeding; c) evidence given at the trial in either proceeding shall be evidence in the other proceeding; and d) any document tendered as an exhibit in either proceeding shall be an exhibit in the other proceeding. 6. That any party be at liberty to apply on three days written notice to the other parties.
CATCHWORDS:	EQUITY – TRUSTS AND TRUSTEES – IMPLIED TRUSTS – RESULTING TRUSTS – WHEN ARISING – JOINT PURCHASE OF LAND – where the applicant and deceased decided to purchase a home together and the deceased consequently purchased a property in his own name – where the applicant sought, inter alia, a declaration that the respondent held the property and its contents on constructive or resulting trust for the applicant and orders that the property be conveyed to the applicant – whether…