Plath v Plath

Case [2020] QCA 43

SUPREME COURT OF QUEENSLAND

CITATION:

Plath v Plath & Anor [2020] QCA 43

PARTIES:

IRA PLATH

v
ALEXIS DUDLEIGH PLATH
(appellant)CHEYENNE KELSEY PLATH
(first respondent)
(second respondent)

FILE NO/S:

Appeal No 4853 of 2019
DC No 1352 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

District Court at Brisbane – [2019] QDC 42 (Ryrie DCJ)

DELIVERED ON:

13 March 2020

DELIVERED AT:

Brisbane

HEARING DATE:

21 October 2019

JUDGES:

Morrison and McMurdo JJA and Mullins AJA

ORDERS:

Upon the appellant’s undertaking to repay to the State of Queensland such amount as was paid to him as a first home owner grant in 2009, together with any interest and penalty owing by him or duly imposed upon him in relation to that grant:

1.   Extend the time for appeal until 7 May 2019.

2.   Allow the appeal.

3.   Set aside the orders numbered 1, 2 and 4, made on 26 April 2019.

4.   Dismiss the respondents’ claim.

5.   Declare that the appellant is entitled to a registered release of the mortgage the subject of the respondents’ claim.

CATCHWORDS:

ESTOPPEL – ESTOPPEL BY CONDUCT – PROMISSORY ESTOPPEL – PARTICULAR CASES – where the appellant entered into a contract of sale and mortgage to purchase a property from his parents – where the appellant’s parents had intended to give this house to him for some time – where the appellant and the parents wished for him to obtain the first home owner grant – where their solicitor advised that they should enter into a contract of sale with vendor finance in order to obtain the grant – where the appellant paid nothing under the contract – where the respondents, as personal representatives of the father’s estate, brought proceedings against the appellant seeking that the mortgage be enforced – where the appellant argued that the parents had told him that he would not be required to pay anything under the mortgage – whether the respondents were estopped from enforcing the mortgage

APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – FUNCTIONS OF APPELLATE COURT – WHERE FINDINGS CLEARLY WRONG – where the trial judge accepted evidence of witnesses that the parents had long intended to give the property to the appellant – where the trial judge found that that intention changed when they went to see the solicitor – whether the trial judge’s findings of fact were so glaringly improbable as to overcome the trial judge’s advantage of observing the witness’ testimony

EQUITY – GENERAL PRINCIPLES – RULES AND MAXIMS OF EQUITY – CLEAN HANDS – where the appellant admitted that the application for the first home owner grant was false and misleading – whether relief could be granted conditional upon the appellant repaying the grant – whether the appellant’s unclean hands could be “washed”

Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 ALJR 842; (1985) 62 ALR 53; [1985] HCA 61, cited
Fox v…

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Plath v Plath [2020] QCA 43
Case
[2020] QCA 43
Decision Date

CaseChat Overview and Summary

In the case of Plath v Plath, the Court of Appeal was asked to consider whether the respondents, as the personal representatives of the father's estate, could enforce a mortgage against the appellant, who had entered into a contract of sale and mortgage with his parents for the purchase of a property. The appellant claimed that he had been led to believe by his parents that he would not be required to make any payments under the mortgage. The central legal issues revolved around whether the respondents were estopped from enforcing the mortgage, whether the trial judge's findings of fact were so implausible as to warrant interference, and whether equity could provide relief despite the appellant's admission of making a false and misleading application for a first home owner grant.

The Court of Appeal found that the trial judge's findings of fact, which were based on the evidence of the solicitor, Mr Kingston, were not so clearly wrong as to be disturbed. The judge had the advantage of observing the witness' testimony and had preferred Mr Kingston's evidence over the appellant's. The Court noted that the intention to gift the property to the appellant was long-standing and only shifted after the family consulted with Mr Kingston. The Court concluded that the trial judge's findings were supported by the evidence and were not so improbable as to necessitate appellate interference. Additionally, the Court held that despite the appellant's unclean hands in relation to the first home owner grant, equity could still grant relief if the appellant agreed to repay the grant amount, interest, and any penalties owed.

The Court of Appeal allowed the appeal, set aside the orders made by the trial judge, dismissed the respondents' claim, and declared that the appellant was entitled to a registered release of the mortgage. The Court further extended the time for appeal and ordered the appellant to repay the first home owner grant amount, interest, and any penalties to the State of Queensland as a condition of the relief granted.

Orders

Orders of the court

Upon the appellant’s undertaking to repay to the State of Queensland such amount as was paid to him as a first home owner grant in 2009, together with any interest and penalty owing by him or duly imposed upon him in relation to that grant:

1. Extend the time for appeal until 7 May 2019.

2. Allow the appeal.

3. Set aside the orders numbered 1, 2 and 4, made on 26 April 2019.

4. Dismiss the respondents’ claim.

5. Declare that the appellant is entitled to a registered release of the mortgage the subject of the respondents’ claim.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The judgment was delivered on 4 April 2019, and nothing was filed in this Court until 7 May 2019, when the appellant filed an application together with an affidavit in which he offered some explanation for his delay. The appellant was then and remains without legal representation. The appeal period had expired five days earlier. Exhibited to his affidavit was a notice of appeal. That document, like his outline of submissions, reflected the appellant’s lack of legal training and assistance, but clearly they challenged the correctness of her Honour’s conclusion, in reliance upon evidence which was given by Mr Kingston, that these documents were intended to have effect according to their terms and that there was no basis for an estoppel.The evidence of Mr Kingston Mr Kingston was the principal witness in the plaintiffs’ case. His evidence, where it was inconsistent with the appellant’s evidence, was preferred by the trial judge. Mr Kingston testified that there were two occasions when the appellant and his parents came to his office in May 2009. All of this happened, of course, nearly 10 years earlier, but the trial judge said that Mr Kingston’s evidence was supported by notes in his diary.[2] Extracts of his appointments diary became exhibit 5. The entries were very brief. For 20 May 2009, against the time of 9.15 am, was written “Plath”. For 26 May, the same was written in the diary against the time of 3 pm. “Plath” had also been written in the diary for 19 May, but it had been crossed out, which indicated to Mr Kingston that there was no meeting on that day.[2]Reasons [35]. There was also an undated attendance note, in which Mr Kingston wrote:“Sale price $315,000.00$15,000.00 Deposit paid$300,000.00Repayment amounts per year $30,000.00 per yearInterest: fixed at 5 %IRA PLATH D a/bit 28.06.6310 Bland Street Childers 41 261560First HomePrincipal Place of Residence” Mr Kingston said that he had known the appellant’s parents for many years. When asked when he had first seen the appellant about this matter, he answered that “[a]ccording to my records, including my diary, it was on the 20th of May 2009.”[3] The diary to which he then referred was his appointments diary, which said nothing about whether the appellant, as distinct from his parents, was in Mr Kingston’s office on that day. The appellant’s evidence was that he was not there on that day.[3]AR 295. Early in his evidence in chief, Mr Kingston was asked by her Honour whether she should “take it you wouldn’t have any memory independently of any of this now?”. Mr Kingston answered: “I’m afraid not … not 10 years ago your Honour.” Mr Kingston was then taken to the entry in the appointments diary for 26 May 2009, which he described as recording that on that date, “there was an appointment to see the Plath family”.[4] Mr Kingston was asked whether he was able to recall what happened in “that meeting”. He answered:[5]“As I recall the defendant and his parents attended my office. The purpose of their attendance was that they wished to gift the Turkey Beach property that they jointly owned to the defendant and in the process the defendant was going to claim a first home owner grant, being his first home”.[4]AR 295.[5]AR 296.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

For the respondent, it was contended that the trial judge had the benefit of seeing and hearing the evidence of Mr Kingston, as well as that of the appellant, so that the limitations upon appellate review of findings of fact in these circumstances preclude the critical findings in this case being disturbed.[31][31]Citing Fox v Percy (2003) 214 CLR 118; [2003] HCA 22.Consideration There was an abundance of evidence to the effect that for some time, the appellant’s parents had intended to give this house to the appellant. And most importantly, there was Mr Kingston’s evidence that when they came to see him on 20 May 2009, that is what they were there to do. Whether or not the appellant was present on this occasion, it is clear that it was no earlier than this meeting with Mr Kingston that anyone thought that the house should be sold, rather than gifted, to the appellant. It is also clear that the only reason for having these documents prepared and signed, and the mortgage registered, was to obtain a first home owner grant. It was not as if the parents decided, at the last moment, that they needed to be paid for the property, or that it might be unfair to their other children if it was given to the appellant. The transaction of a sale and a mortgage back resulted entirely from a wish to obtain the first home owner grant, and from Mr Kingston’s ideas for how that could be achieved. Indeed, it was Mr Kingston who suggested the amounts to be paid, the timing of the repayments and the rate of interest. The documents which Mr Kingston prepared, and which the appellant and his parents signed, proved to be effective for that purpose. At first, the Office of State Revenue wrote to the appellant on 28 July 2009, acknowledging his application for the grant, and saying that it was incomplete, in that the Office required a copy of “the loan agreement for the purchase property.” Mr Kingston was able to write back, with a copy of the mortgage and evidence of its registration, and within a fortnight the application was successful. Even according to Mr Kingston’s evidence, this was no ordinary transaction for the sale of a house. The so-called deposit of $15,000, which the contract document recorded as having been “received” by the sellers, was never paid. The explanation by Mr Kingston was that the so-called deposit was “in recognition of services rendered by [the appellant]”.[32] It was Mr Kingston who suggested that the deposit should “be paid” in that way. But that was not what the contract recorded, and it is difficult to see that this could have served the usual purpose of a deposit as “an earnest to bind the bargain”.[33] This was not a deposit which, according to the terms of this standard form of contract, was “liable to forfeiture upon default in completion by the purchaser.”[34][32]AR 296.[33]Howe v Smith (1884) 27 Ch D 89 at 101. And see Freedom v AHR Constructions Pty Ltd [1987] 1 Qd R 59 at 65 per McPherson J.[34]Freedom v AHR Constructions Pty Ltd at 66.