Marek v Australasian Conference Association - [1991] HCATrans 170

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B2 of 1991
B e t w e e n -
EUGENE MAREK

Applicant

and
AUSTRALASIAN CONFERENCE
ASSOCIATION

Respondent

Application for special leave
to appeal

BRENNAN J

TOOHEY J

GAUDRON J

Marek

27/6/91

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 27 JUNE 1991, AT 3.17 PM

MR K. FLEMING, OC: If Your Honour pleases, I appear with my

learned junior, MR S.R.D. BLAXLAND, for the
applicant. (instructed by P.W. Skewes & Dempster)

MR W.J. ROBERTS:

Your Honours, I appear for the respondent.

(instructed by McCarthy Palethorpe & Blanch)

MR FLEMING:

Your Honours, I hand up a folder that has a

synopsis as the first document, and then there are
a couple of cases that I wish to refer to. There
is a chronology in there as well.

BRENNAN J: Yes, Mr Fleming.

MR FLEMING:

Thank you, Your Honour.

It is the seventh

paragraph obviously that we say raises the point of
law. It is the application, in effect, of
Masters v Cameron to a tripartite agreement.
The problem that arose in this case is that after a considerable period of time of arguing
between three separate parties, an agreement was
struck which was, in effect, a tripartite
agreement, if I can call it that. The analysis of that obviously causes some concern. It perhaps is
an agreement between three parties, each with
obligations to the other and perhaps interdependent
obligations as conditions subsequent; or perhaps
it is a series of independent obligations or
interdependent contracts.
Now, we submit that, in fact, it was a

tripartite agreement given the nature of it. When
it came to be analysed by the judge at first
instance and then by the Full Court, each of those
courts referred to the fact that it was a
tripartite agreement and then analysed but one
aspect of that as between two parties to the

tripartite agreement. We submit that is where the

error lay. It was not capable of having Masters v
Cameron applied simply to those facts.

Your Honours, it is necessary for me to spend

but a few moments on the facts, and they are these:
it goes back to 1977, and surprisingly there was
evidence, in fact, called going back that far and
thi~ trial did not come on until many years later.
But Beckett, who does not figure in this
litigation, was the owner of 140-odd acres of land.
He was quite an old man. His wife died and he gave

the land to the Seventh Day Adventist Church. The
deed by which he gifted the land - in fact, it
probably was not a gift. There was a consideration
of one dollar, and in addition there was the
obligation for the church to house him in his later

Marek

27/6/91

years in one of their nursing homes if ever he
needed nursing care.
Mareks came on 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.

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Details

Case: [1991] HCATrans 170
Decision Date

CaseChat Overview and Summary

This matter came before the High Court of Australia on an application for special leave to appeal. The applicant, Mr Marek, sought to appeal a decision of the Full Court, which had affirmed the decision of the trial judge. The dispute concerned a tripartite agreement involving Mr Marek, Mr Beckett (the original landowner), and the Australasian Conference Association (the Seventh Day Adventist Church). Mr Beckett had initially gifted land to the church with an obligation for the church to house him. Subsequently, Mr Marek became involved, initially through a lease with an option to purchase, which led to litigation. Mr Beckett then sought to set aside the conveyance to the church. As part of a compromise, the church agreed to sell the land for $50,000 to a nominee of Mr Beckett, who nominated Mr Marek.

The central legal issue before the High Court was the proper characterisation of the agreement between the parties and the consequent application of legal principles, specifically *Masters v Cameron*. The applicant argued that the lower courts erred by analysing the agreement as a bipartite arrangement between two of the parties to the tripartite agreement, rather than as a single, overarching tripartite agreement with interdependent obligations. The applicant contended that this mischaracterisation meant *Masters v Cameron* was not applied correctly to the facts.

The applicant's submission was that the agreement was a tripartite one, with obligations between all three parties. The trial judge had found that an arrangement was made for the property to be sold to Mr Marek for $50,000, payable by instalments, as part of a wider agreement to settle Mr Beckett's action. The applicant argued that the lower courts, by focusing on only one aspect of the arrangement between two parties, failed to give proper effect to the tripartite nature of the agreement and its implications for its enforceability and the application of *Masters v Cameron*.

Orders