Pinter v Pinter - [2016] QSC 314

SUPREME COURT OF QUEENSLAND

CITATION:

Pinter v Pinter & Anor [2016] QSC 314

PARTIES:

GIULIANO PINTER

(plaintiff)

v
MARCELLO LUCIANO PINTER in his own capacity and as Executor of the late Giacomina Pinter (deceased)
(first defendant)
MARISA PINTER

(second defendant)

FILE NO:

SC No 8285 of 2013

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

22 December 2016

DELIVERED AT:

Brisbane

HEARING DATE:

23, 24, 25 and 26 February 2016, 2 March 2016

JUDGE:

Douglas J

ORDER:

On the undertaking by the defendants by their counsel to pay the plaintiff the sum of $2,500 on or before 12 January 2017:

1.   The plaintiff’s claim is dismissed.

2.   Order the plaintiff to pay the defendants’ costs of the action including reserved costs, if any, on the standard basis up to and including 12 August 2014 and on the indemnity basis thereafter.

3.   Order that caveat 715296821 be removed from lot 26 on RP 174076.

CATCHWORDS:

EQUITY – GENERAL PRINCIPLES – UNDUE INFLUENCE AND DURESS – PRESUMPTION OF UNDUE INFLUENCE FROM RELATIONSHIP OF PARTIES – where a husband and wife, Eduardo Pinter and Giacomina Pinter (the parents), had two children: Marcello Pinter (first defendant) and Giuliano Pinter (plaintiff) – where the parents sold a block of flats that they owned at Mooloolaba to the first defendant and his wife, Marisa Pinter (second defendant), in exchange for a half interest in a new house that was to be constructed by the defendants in Robertson and in which the parents and the defendants were to live – where the parents lived in the house and were cared for by the defendants for a number of years before they needed nursing home care – where the parents each executed an enduring power of attorney appointing each other and the plaintiff and the first defendant as attorneys – where Giacomina executed the transfer of the Mooloolaba flats in her own right and in her capacity as attorney for Eduardo – where the plaintiff alleges that Giacomina lacked capacity at the time she signed the transfer as she was aged approximately 75 years of age and suffering from dementia and impaired cognition – whether there was a statutory presumption under s 87 of the Powers of Attorney Act 1998 (Qld) that Giacomina was induced to enter the transaction by the first defendant’s undue influence

EQUITY – GENERAL PRINCIPLES – UNDUE INFLUENCE AND DURESS – ACTUAL UNDUE INFLUENCE – where the parents’ solicitor was acting for the parents as well as the defendants in the transaction – where the parents were friends of the solicitor over many years – where there was no suggestion that the solicitor preferred the defendants’ interests to those of the parents – where the parents met with a financial adviser – where the parents obtained substantial consideration from the defendants for the transfer of the Mooloolaba property – whether there has been shown to be actual undue influence in the transaction

EQUITY – GENERAL PRINCIPLES – EQUITABLE REMEDIES…

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 Pinter v Pinter

Details

AGLC: Pinter v Pinter [2016] QSC 314
Case: [2016] QSC 314
Decision Date: 22 December 2016

CaseChat Overview and Summary

The case of Pinter v Pinter involved a dispute between Giuliano Pinter, the plaintiff, and his brother Marcello Pinter, the first defendant, along with Marisa Pinter, the second defendant. The central issue was the transfer of a block of flats owned by the parents, Eduardo and Giacomina Pinter, to Marcello and Marisa in exchange for a half interest in a new house. The parents later moved into the new house and were cared for by the defendants. The plaintiff alleged that Giacomina lacked the capacity to transfer the flats due to dementia and impaired cognition and that she was unduly influenced by Marcello. The court was required to decide whether there was a statutory presumption of undue influence and if actual undue influence occurred, as well as whether the transaction should be rescinded. The court also considered whether the defendants were estopped from denying an alleged agreement regarding the flats.

The court examined the nature of the relationship between the parties, the role of the parents' solicitor, and the extent of care provided by the defendants. It concluded that there was no statutory presumption of undue influence under the Powers of Attorney Act 1998 (Qld). Regarding actual undue influence, the court found no evidence that the solicitor acted improperly or that the parents were disadvantaged in the transaction. The court found that while the defendants provided care to the parents, it would be impractical to rescind the transaction due to the non-monetary benefits received by the parents and the absence of conscious wrongdoing by the defendants. The court also dismissed the plaintiff's estoppel claim, finding no agreement between the plaintiff and Marcello regarding the flats.

The court's reasoning led to the dismissal of the plaintiff's claims. The court ordered that the plaintiff's claim be dismissed, that the plaintiff pay the defendants' costs, and that a caveat on the title to the Mooloolaba flats be removed. The defendants undertook to pay the plaintiff $2,500 for work done on the flats.

Orders

Orders of the court

On the undertaking by the defendants by their counsel to pay the plaintiff the sum of $2,500 on or before 12 January 2017:

1. The plaintiff’s claim is dismissed.

2. Order the plaintiff to pay the defendants’ costs of the action including reserved costs, if any, on the standard basis up to and including 12 August 2014 and on the indemnity basis thereafter.

3. Order that caveat 715296821 be removed from lot 26 on RP 174076.

Background

Background to the litigation

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Evidence

Evidence Before The Court

As part of the claim for an account the plaintiff says his brother has failed to account for receipts of rent of another unit at Nundah owned by his mother’s estate. The parents had lived in that unit for several years before they moved into the house at Hanrahan Street with the defendants. The unit was three storeys high and becoming unsuitable for them as they grew older. The plaintiff also claims, apparently as part of the claim for an account, that he has not been reimbursed for maintenance or renovation work he performed at the Mooloolaba property during the lives of the parents. Evidence concerning the transfer of the Mooloolaba flats Giuliano’s evidence was that his mother was fluent in English and read and spoke it well and that his father’s spoken English was also good. Giuliano, the plaintiff, was a bricklayer/builder. He and his brother and their parents began to talk about the parents’ future in the early 2000s. His mother was scared about losing her capacity to manage her own life but did not wish to move into a nursing home. Eduardo, his father, had a similar view. He and his brother, Marcello, spoke about that problem. Marcello said that he could look after the parents and suggested that the Mooloolaba flats go into his name. He wanted to build a new house on a vacant block at Hanrahan Street, Robertson which he suggested the parents could live in with him and his wife. Part of the reasoning was that, if the Mooloolaba flats went into the names of him and his wife, the parents could get the pension on the basis that their pension entitlements were not affected by the value of their residence. At the time, their pension entitlements would have been affected by the value of the Mooloolaba flats and the income they received from them. The plaintiff said that the proposal was that, if the flats went into Marcello’s name, then the parents could receive an aged pension while the receipts from renting the flats could be used to pay off a loan in respect of the flats and provide income for the parents. Giuliano said that their mother went through the proposal with both of the sons. He said that she wanted the flats shared evenly between him and his brother. He was concerned about having the flats in his name at the time because of further potential problems in the relationship between him and his partner, Debra. He says that Marcello promised that he would ensure that the flats were shared evenly in the event of the parents’ death. He also said that his father said something to him at the time to the effect that there was something going on between Marcello and their mother and that he, Giuliano, should be careful, that Marcello was very smart. Marcello had to borrow $600,000 to put towards the construction of the house at Hanrahan Street. He borrowed against the Mooloolaba flats. He told Giuliano that he would take the parents to Mr Giuseppe (Joe) Rinaudo, the family solicitor, for the paperwork. Giuliano said that he believed that the paperwork would include a will to leave the Mooloolaba flats to him as well as to his brother on top of their transfer to the defendants. Marcello invited him to the meeting with Mr Rinaudo and told him that that arrangement in respect of the ownership of the Mooloolaba flats would be in the will too. He did not go to the meeting, however, as he was working at the time.

Decision

Reasons for decision

In those circumstances I shall permit the amendment. It makes no difference to the result, however, because of my finding that there was no such arrangement made as alleged by the plaintiff. If I had made a contrary factual finding, of course, the amendment may have been decisive. Conclusion Accordingly the plaintiff’s claim is dismissed. On the delivery of these reasons there were further submissions concerning the removal of a caveat on the title to the Mooloolaba flats and the plaintiff’s entitlement on the pleadings to labour costs in the sum of $2,500 for the work done by him on the Mooloolaba flats. Consequently I order as follows:On the undertaking by the defendants by their counsel to pay the plaintiff the sum of $2,500 on or before 12 January 2017:1.The plaintiff’s claim is dismissed. 2.Order the plaintiff to pay the defendants’ costs of the action including reserved costs, if any, on the standard basis up to and including 12 August 2014 and on the indemnity basis thereafter.3.Order that caveat 715296821 be removed from lot 26 on RP 174076.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Pinter v Pinter & Anor [2016] QSC 314
PARTIES:	GIULIANO PINTER (plaintiff) v MARCELLO LUCIANO PINTER in his own capacity and as Executor of the late Giacomina Pinter (deceased) (first defendant) MARISA PINTER (second defendant)
FILE NO:	SC No 8285 of 2013
DIVISION:	Trial Division
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	22 December 2016
DELIVERED AT:	Brisbane
HEARING DATE:	23, 24, 25 and 26 February 2016, 2 March 2016
JUDGE:	Douglas J
ORDER:	On the undertaking by the defendants by their counsel to pay the plaintiff the sum of $2,500 on or before 12 January 2017: 1. The plaintiff’s claim is dismissed. 2. Order the plaintiff to pay the defendants’ costs of the action including reserved costs, if any, on the standard basis up to and including 12 August 2014 and on the indemnity basis thereafter. 3. Order that caveat 715296821 be removed from lot 26 on RP 174076.
CATCHWORDS:	EQUITY – GENERAL PRINCIPLES – UNDUE INFLUENCE AND DURESS – PRESUMPTION OF UNDUE INFLUENCE FROM RELATIONSHIP OF PARTIES – where a husband and wife, Eduardo Pinter and Giacomina Pinter (the parents), had two children: Marcello Pinter (first defendant) and Giuliano Pinter (plaintiff) – where the parents sold a block of flats that they owned at Mooloolaba to the first defendant and his wife, Marisa Pinter (second defendant), in exchange for a half interest in a new house that was to be constructed by the defendants in Robertson and in which the parents and the defendants were to live – where the parents lived in the house and were cared for by the defendants for a number of years before they needed nursing home care – where the parents each executed an enduring power of attorney appointing each other and the plaintiff and the first defendant as attorneys – where Giacomina executed the transfer of the Mooloolaba flats in her own right and in her capacity as attorney for Eduardo – where the plaintiff alleges that Giacomina lacked capacity at the time she signed the transfer as she was aged approximately 75 years of age and suffering from dementia and impaired cognition – whether there was a statutory presumption under s 87 of the Powers of Attorney Act 1998 (Qld) that Giacomina was induced to enter the transaction by the first defendant’s undue influence EQUITY – GENERAL PRINCIPLES – UNDUE INFLUENCE AND DURESS – ACTUAL UNDUE INFLUENCE – where the parents’ solicitor was acting for the parents as well as the defendants in the transaction – where the parents were friends of the solicitor over many years – where there was no suggestion that the solicitor preferred the defendants’ interests to those of the parents – where the parents met with a financial adviser – where the parents obtained substantial consideration from the defendants for the transfer of the Mooloolaba property – whether there has been shown to be actual undue influence in the transaction EQUITY – GENERAL PRINCIPLES – EQUITABLE REMEDIES…