Pratten v Pratten
[2004] QDC 532
•10 December 2004
DISTRICT COURT OF QUEENSLAND
CITATION:
Pratten v Pratten [2004] QDC 532
PARTIES:
Waynne Peter PRATTEN
v
Susan Mary PRATTEN
FILE NO/S:
176/02
DIVISION:
Civil jurisdiction
PROCEEDING:
ORIGINATING COURT:
DELIVERED ON:
10 December 2004
DELIVERED AT:
Brisbane
HEARING DATE:
18, 19 and 22 November 2004
JUDGE:
Judge Samios
ORDER:
Plaintiff’s claim dismissed. Defendant’s counterclaim dismissed.
CATCHWORDS:
COUNSEL:
Mr Conrick for the plaintiff
The defendant appeared on her own behalfSOLICITORS:
Norman and Kingston for the plaintiff
The plaintiff and the defendant were formerly husband and wife. They divorced on or about 18 July 1996.
Prior to their divorce the plaintiff and the defendant conducted a rural partnership under the name “W.P. & S.M. Pratten”.
The plaintiff and the defendant agreed and consented to the following orders in the Family Court on 31 May 1996 (the terms of settlement):-
“1. That the Husband transfer to the Wife unencumbered all his right title and interest in and to the former matrimonial home at Sheepstation Creek Road, Kilcoy, more properly described as Lot 161 on Plan No C31664 County: Canning, Parish: Kilcoy.
2. That the wife transfer to the husband all her right, title and interest in and to the real properties at Sheepstation Creek Road, Kilcoy, more properly described as Lot 167 on Plan No C31723 and Lot 221 on Plan No C31933, County: Canning, Parish: Kilcoy .
3. That the husband shall indemnify, and keep indemnified, the wife in respect of any mortgage over the real properties, and shall cause to be released the mortgage over Lot 161 on Plan No C 31664 being the property transferred to the wife in paragraph 1.
4. That the parties retain all right, title and interest in the vehicles currently in their possession and shall indemnify the other party in respect of the encumbrances thereon.
5. That the parties retain all chattels, monies, insurance policies, superannuation, personalty, equipment and other items not dealt with in this Order presently in their respective possession, to the exclusion of the other party, and the parties shall indemnify and keep indemnified the other party in respect of any encumbrance, mortgage or lien thereon.
6. That the partnership known as “W.P. & S.M. Pratten” be dissolved as and from the 28th day of February, 1994, and the husband retain all right, title and interest in any and all partnership assets, including but not limited to, cattle, machinery, vehicles and farm equipment and not otherwise dealt with herein.
7. That the husband shall indemnify, and keep indemnified, the wife from any and all taxation liabilities arising from the partnership known as “W.P. & S.M. Pratten” as from the date of dissolution.
8. That the husband lease from the wife at the sum of $20-00 per annum the property described as Lot 161 on Plan No C31664 for a period of 5 years, with an option for a further 5 years, with the husband to maintain the property in good repair and pay all rates and outgoings thereon for the period of the lease, such lease to contain such other conditions as agreed between the parties.”
In or about 1991 the plaintiff was diagnosed as having the disease Huntington’s Chorea. This disease is a nervous disorder of infectious or organic origin having as common features involuntary uncontrollable purposeless movements of body and face and marked incoordination of limbs.
On or about 1 August 2001 the plaintiff as principal granted to the defendant as agent an enduring power of attorney.
On 26 October 2001 the plaintiff as a consequence of the progress of the disease, became an inpatient of the Kilcoy Hospital and has remained an inpatient of the Kilcoy Hospital since that date. There is no dispute the plaintiff was classified as a long stay nursing home type inpatient on 30 November 2001.
The Public Trustee of Queensland was appointed administrator for the plaintiff for all financial matters by an order made by the Guardianship and Administration Tribunal on 8 March 2004.
In these proceedings the plaintiff claims against the defendant damages. Firstly, in the sum of $2,287.52 (Exhibit 4) for breach of fiduciary duty relating to the proceeds of the sale of the plaintiff’s cattle. Secondly, in the sum of $30,300 for the detention or conversion of the following property of the plaintiff, namely, a tractor, a slasher, a tractor blade, a post hole digger, a chainsaw, a borer, a washing machine, drums of Tordon, a blue water drum, a quantity of barbed wire, miscellaneous plant and tools, (hereinafter referred to as “the farm equipment.”).
The defendant for her part counterclaims against the plaintiff the sum of $8,000 for damages for breach of the lease referred to in the terms of settlement.
There is no dispute 34 cattle belonging to the plaintiff were sold to Kilcoy Pastoral Company Limited on 5 November 2001. Further, the Kilcoy Pastoral Company Limited held cheque number 259732 dated 13 November 2001 payable to WP & SM Pratten for the amount of $31,239.92 being payment of the proceeds from the sale of these cattle.
On the hearing of these proceedings the plaintiff was unable to give evidence. His evidence was placed before me in the form of a written statement Exhibit 3. In the plaintiff’s written statement he does not expressly state that he did not request the defendant to sell his cattle on his behalf. When the defendant gave evidence she said that in a phone call the plaintiff asked their son Laurie to muster and sell the cattle. The defendant and the plaintiff and the defendant’s son Laurie gave evidence that the plaintiff asked the plaintiff and the defendant’s son Laurie and his uncle to muster the cattle. He also said that before they mustered the cattle the plaintiff had also asked some other relatives to do it.
The way bill relating to the cattle signed by the defendant does on the face of it represent the defendant is the owner of the cattle. Further, when the defendant was interviewed by the police on 15 January 2002 she accepted that her husband was the owner of the cattle. The defendant admits in these proceedings that she obtained the Australian Business Number in the name of herself and the plaintiff.
In addition to these circumstances there is exhibited to the plaintiff’s statement correspondence passing between the solicitors for the parties relating to the proceeds of sale of the cattle from which counsel for the plaintiff submitted can be inferred a claim by the defendant to half the proceeds of the sale of the cattle and then a claim to $8000 of the proceeds of the sale of the cattle.
In the course of the proceedings there were tendered income tax returns for WP & SM Pratten for the year ended 30 June 1996 to and including the year ended 30 June 2000. Exhibit 19 is a letter from the firm of accountants who have prepared these tax returns. This letter records that the accountants were advised that even though the parties separated the family business would be carried on jointly until the divorce was finished or the activity ceased. They were advised the family activity ceased on 30 June 2000.
Regarding the defendant’s counterclaim based on the lease referred to in the terms of settlement, when the defendant gave evidence she was unable to produce the original lease. However, the defendant produced a copy of a lease signed by the plaintiff and dated 2 April 1997.
Counsel for the plaintiff objected to my receiving this lease in evidence on a number of grounds. I overruled those objections and received the copy of the lease notwithstanding that it was not stamped and not executed by the defendant.
I am satisfied the copy of the lease signed by the plaintiff and dated 2 April 1997 represents the terms of the lease between the plaintiff and the defendant.
Counsel for the plaintiff submitted the defendant was liable in damages to the plaintiff because the cheque was made out in her name as well as the plaintiff’s name and further or in the alternative as she claimed an interest in the proceeds in the correspondence including making a counterclaim which was not particularized this amounts to a breach of fiduciary duty on the part of the defendant.
However, the sale of the cattle was concluded on 5 November 2001. The defendant’s power of attorney ceased on 14 November 2001 when the wife of the plaintiff’s cousin was appointed the plaintiff’s attorney pursuant to an enduring power of attorney. The correspondence between the solicitors for the parties relating to the proceeds of sale of the cattle commenced on 28 November 2001.
In these circumstances in my opinion the defendant did not owe the plaintiff a fiduciary duty when the correspondence between the solicitors for the parties took place.
Further, if the defendant did owe the plaintiff a fiduciary duty in my opinion the defendant did not breach that duty by reason of the cheque being made out in her name as well as the plaintiff’s name. I am satisfied the cheque was in both names because an Australian Business Number was required for the sale of the cattle. As the plaintiff and the defendant had carried on jointly the family business until 30 June 2000 it is not surprising the defendant obtained an Australian Business Number in joint names. One might be suspicious of the defendant if she had never carried on a business as a partner with the plaintiff after the divorce and she applied for an Australian Business Number in her own name.
Further, I do not accept the defendant converted the cattle to her own use as alleged in the plaintiff’s claim. In these proceedings Counsel for the plaintiff accepted the defendant had authority to sell the cattle.
I was favourably impressed by the defendant notwithstanding the disclosure at T.5/40 and that she was contradicted by the witness Debra Krause about the state of the house which was relevant to the defendant’s counterclaim.
Therefore, regarding the farm equipment I accept the defendant’s evidence that her actions with respect to it have been to preserve and protect the farm equipment and that she has dealt with the farm equipment consistent with rather than inconsistent with the plaintiff’s rights. I accept the plaintiff has expressed the wish that his son have the use and benefit of the farm equipment with the intention that he one day inherit the farm.
I am satisfied any possession of any part of the farm equipment by the defendant has been justified in all the circumstances.
Regarding the defendant’s counterclaim the plaintiff admits there was a lease made in writing for a term of five years from 1 July 1996 with an annual rental of $20. I am satisfied Exhibit 16 represents the lease between the plaintiff and the defendant and contains the terms thereof.
The defendant relies upon clauses 1.3 and 1.4 of the lease which are as follows:
“1.3To keep the fences and other improvements on the said
demised land in the same repair and condition as the same now are (fair wear and tear excluded) and that he will at the expiration or other sooner determination of the said term or any extension thereof peaceably and quietly surrender and yield up to the Lessor the said land and premises in as good and substantial repair and conditions the same now are and to keep the demised land free of all noxious weeds during the said term;
1.4To keep the dwelling house on the demised land in the same repair and condition as it is now (fair wear and tear excluded) and that he will at the expiration or sooner determination of the said term or any extension thereof peaceably and quietly surrender and yield up to the Lessor the said dwelling house in as good and substantial repair and condition as the dwelling currently stands;”
The defendant claims the plaintiff breached the clauses of the lease in a number of respects.
Without going into the evidence in detail the defendant has not satisfied me on the balance of probabilities that the matters relied upon by the defendant amount to breaches of those terms of the lease. In my opinion what the defendant has put forward in support of her counterclaim for the most part amounted to fair wear and tear within the excepted circumstances in the relevant clauses of the lease and as to the balance there is no evidence to permit a finding that there has been a breach of the terms of the lease by the plaintiff as particularised by the defendant.
Therefore, I dismiss the plaintiff’s claim against the defendant and I dismiss the defendant’s counterclaim against the plaintiff.
I will hear the parties on the question of costs.
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