Simpson v Simpson

[2006] QDC 83

DISTRICT COURT OF QUEENSLAND

CITATION:

Simpson v Simpson [2006] QDC 083

PARTIES:

JOHN WILLIAM SIMPSON and
BARBARA SIMPSON

Plaintiffs

v

ANTOYN PIERRE SIMPSON and
CARYN MAY SIMPSON

Defendants

FILE NO/S:

393 of 2005

DIVISION:

Civil

PROCEEDING:

Claim

ORIGINATING COURT:

Southport

DELIVERED ON:

19 April 2006

DELIVERED AT:

Southport

HEARING DATE:

5 and 6 April 2005 and 8 and 9 September 2005, 22 March and 3 April 2006

JUDGE:

Judge Rackemann

ORDER:

JUDGMENT FOR THE PLAINTIFFS AGAINST THE DEFENDANTS IN THE SUM OF $170,000.00, TOGETHER WITH INTEREST AT THE RATE OF 9% FOR 21 MONTHS IN THE AMOUNT OF $26,775. 

ORDER THAT THE CAVEAT BE REMOVED.

CATCHWORDS:

CONTRACT – EQUITY – EQUITABLE REMEDIES – REMOVAL OF CAVEAT – s 86 DISTRICT COURT OF QUEENSLAND ACT 1967 – Arrangement for parents to pay $170,000 to defendants in engendered expectations subsequently departed from – any contract unenforceable by reason of s 59 Property Law Act 1974 and where no part performance – whether equitable remedies can be sought – appropriate remedy – whether equitable charge appropriate – whether s 86 District Court of Queensland Act 1967 confers jurisdiction to order removal of a caveat

District Court of Queensland Act1967 ss 68, 69, 86

Property Law Act 1974 s 59

Ball v Pacimar Trading Pty Ltd [2004] QDC 556
Bartier v. Kounza Investments Pty Ltd & Ors [2003] QSC 390
Giumelli v Giumelli (1999) 196 CLR 101
Marsh v Mackay [1943] Qd R 113
Riches v Hogben [1985] 2 Qd R 292
Riches v Hogben [1986] 1 Qd R 315
Sherriff v Dudley [2003] SASC 324

COUNSEL:

Mr Radcliff for the Plaintiff

Mr F G Forde for the Defendant

SOLICITORS:

Woods Hatcher for the Plaintiff

Harding Richards Lawyers for Defendant

INTRODUCTION

1. On 29 January 2004, the Plaintiffs withdrew $170,007.50 from their joint account, leaving a balance of only $9,363.85[1].  A bank cheque for $170,000.00 was drawn and ultimately deposited into an account of the male defendant[2].  The proceeds were subsequently spent, principally on the purchase and improvement of a boat bought in the Defendants’ names.  The parties are in dispute as to the purpose for which the money was paid and for whose benefit it was received.  The parties did not commit any agreement to writing.

   [1]Exhibit 1, docs 15, 16

   [2] Counsel for the Plaintiffs, in submissions, drew attention to a note on Doc 15 in exhibit 1 which reads “into Antoyn’s and Caryn’s house acct”, but there are other notes (on docs 15 and 16) which refer to Antoyn only

1. The female Plaintiff (Barbara) is the natural mother of the male Defendant (Antoyn).  The male Plaintiff (John) is his adoptive father.  The female Defendant (Caryn) is the wife of Antoyn.  The Plaintiffs were living in the Defendants’ home at the time of payment.  Each of them previously lived in New Zealand.  The Defendants had relocated to the Gold Coast some time earlier.  Antoyn’s brother, Justin, was also living on the Gold Coast.  In late 2003, Barbara visited the Defendants, at a…