Plath v Plath - [2019] QDC 42

DISTRICT COURT OF QUEENSLAND

CITATION:

Plath & Anor v Plath [2019] QDC 42

PARTIES:

ALEXIS DUDLEIGH PLATH AND CHEYENNE KELSEY PLATH AS PERSONAL REPRESENTATIVES OF THE ESTATE ALFRED WILLIAM PLATH DECEASED  (plaintiff)

v

IRA PLATH  (first defendant)

FILE NO/S:

D1352/17

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

4 April 2019

DELIVERED AT:

Brisbane

HEARING DATE:

1 April 2019

2 April 2019

JUDGE:

Ryrie DCJ

ORDER:

1.   Judgment for the Plaintiff.

2.   The defendant’s counterclaim is dismissed.

3.   I will hear the parties’ submissions as to costs, failing any agreement between the parties, set out in no more than 4 pages in writing, to be delivered within 2 weeks from the date of this judgment.

CATCHWORDS:

CONTRACT OF SALE OF PROPERTY – ENFORCEMENT OF MORTGAGE – RECOVREY OF POSSESSION – whether it was a gift – estoppel defence – set off defence at common law or equity – COUNTERCLAIM – damages – limitations of actions act

LEGISLATION:

Limitations of Action Act 1974 (Qld) ss 10(1)(a), 10(2)

CASES:

Forsyth v Gibbs (2008) QCA 103

COUNSEL:

Mr A Fraser for the Plaintiff

Defendant is Self-Represented

SOLICITORS:

Bell Dixon Butler Lawyers

Introduction

By way of Claim, Alexis and Cheyenne Plath (‘Alexis’ and ‘Cheyenne’) as personal representatives of the Estate of Alfred William Plath (deceased) seek the recovery of certain property situated at 6 Hancock Street, Turkey Beach (‘Turkey Beach property’). They also seek the sum of $300,000 plus interest as set out in the registered Mortgage No 712449468 for the period 31 May 2010 continuing until payment or judgment.

The defendant, Ira Plath, (‘Ira’) defends the claim on several bases. (Court Doc 25).

Background

Alfred Plath (‘Alf’) died on 13 June 2011, having been predeceased by his wife Marilyn (‘Marilyn’) who died on 29^th September 2010. Both were survived by 7 children which included the named personal representatives in this action, Alexis and Cheyenne, and the defendant Ira. Alf and Marilyn had been the registered owners of the Turkey Beach property until the 26 May 2009, at which point they executed certain documents.

Those documents, which are not in dispute, were a standard REIQ contact (Ex 2) whereby Alf and Marilyn agreed to sell to Ira the Turkey Beach property for the sum of $315,000. A deposit of $15,000 was to be paid. A mortgage over the Turkey Beach property was secured by the repayment of the loan by the Defendant to Alf and Marilyn (Ex 3), and a transfer document by Alf and Marilyn of the Turkey Beach property to the defendant (Ex 7) was effected. It was also not in dispute that an application for the First Home Owners Grant (‘FHOG’) was subsequently and successfully made on Ira’s behalf, of which he received a monetary benefit from the government.

Subsequently, the plaintiffs, in their personal capacity as the representatives of their father’s estate, made a written demand for the repayment of the above mentioned loan (Ex 18). Ira has continued to fail to repay any of…

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 Plath v Plath

Details

AGLC: Plath v Plath [2019] QDC 42
Case: [2019] QDC 42
Decision Date: 4 April 2019

CaseChat Overview and Summary

The case of Plath v Plath was heard in the Supreme Court of Queensland, where the Plaintiff, Plath, sought to enforce a mortgage over a property against the Defendant, also Plath, who contested the enforceability of the mortgage. The dispute arose from a sale of property where the Defendant was the vendor, and the Plaintiff was the purchaser. The Plaintiff claimed that the mortgage was enforceable and sought recovery of possession, while the Defendant argued that the mortgage was a gift and thus unenforceable. The Defendant also raised estoppel and set off as defences and filed a counterclaim for damages.

The central legal issues before the court were whether the mortgage was a gift and thus unenforceable, and if not, whether the Defendant's defences of estoppel and set off at common law or in equity were valid. Additionally, the court had to determine the enforceability of the Plaintiff's claim against the Defendant's counterclaim, considering the limitations of actions act.

The court held that the mortgage was not a gift but a valid encumbrance on the property. It found that the Defendant's estoppel defence failed because there was no representation that could lead the Plaintiff to reasonably believe that the mortgage would not be enforced. The set off defence at common law or in equity was also rejected as the Defendant did not demonstrate that the claims were mutual and liquidated debts. Furthermore, the Defendant's counterclaim for damages was dismissed as it was deemed time-barred under the limitations of actions act.

The court ordered that judgment be given in favour of the Plaintiff, the Defendant's counterclaim be dismissed, and that the parties submit their costs submissions in writing within two weeks of the judgment date.

Orders

Orders of the court

1. Judgment for the Plaintiff.

2. The defendant’s counterclaim is dismissed.

3. I will hear the parties’ submissions as to costs, failing any agreement between the parties, set out in no more than 4 pages in writing, to be delivered within 2 weeks from the date of this judgment.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Plath & Anor v Plath [2019] QDC 42
PARTIES:	ALEXIS DUDLEIGH PLATH AND CHEYENNE KELSEY PLATH AS PERSONAL REPRESENTATIVES OF THE ESTATE ALFRED WILLIAM PLATH DECEASED (plaintiff) v IRA PLATH (first defendant)
FILE NO/S:	D1352/17
DIVISION:	Civil
PROCEEDING:	Trial
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	4 April 2019
DELIVERED AT:	Brisbane
HEARING DATE:	1 April 2019 2 April 2019
JUDGE:	Ryrie DCJ
ORDER:	1. Judgment for the Plaintiff. 2. The defendant’s counterclaim is dismissed. 3. I will hear the parties’ submissions as to costs, failing any agreement between the parties, set out in no more than 4 pages in writing, to be delivered within 2 weeks from the date of this judgment.
CATCHWORDS:	CONTRACT OF SALE OF PROPERTY – ENFORCEMENT OF MORTGAGE – RECOVREY OF POSSESSION – whether it was a gift – estoppel defence – set off defence at common law or equity – COUNTERCLAIM – damages – limitations of actions act
LEGISLATION:	Limitations of Action Act 1974 (Qld) ss 10(1)(a), 10(2)
CASES:	Forsyth v Gibbs (2008) QCA 103
COUNSEL:	Mr A Fraser for the Plaintiff Defendant is Self-Represented
SOLICITORS:	Bell Dixon Butler Lawyers