Smith v Glegg

[2004] QSC 443

SUPREME COURT OF QUEENSLAND

CITATION:

Smith v Glegg [2004] QSC 443

PARTIES:

DAPHNE EVELEEN SMITH
(plaintiff)
v
MARLENE DAPHNE GLEGG
(defendant)

FILE NO/S:

S7134 of 2003

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

9 December 2004

DELIVERED AT:

Brisbane

HEARING DATE:

9, 10, 11, 12 November 2004

JUDGE:

McMurdo J

ORDER:

Judgment for the plaintiff against the defendant in the sum of $234,718.771.   

It be declared that the defendant’s interest in 25 Pacific Drive, Banksia Beach, is charged with the payment of $119,529.77 of that sum2.   

CATCHWORDS:

EQUITY – UNDUE INFLUENCE AND DURESS – PRESUMPTION FROM RELATIONSHIP OF PARTIES – IN GENERAL – where at the relevant time plaintiff was an 85 year old widow – where defendant is her eldest daughter – where plaintiff was estranged from her two younger daughters – where plaintiff transferred her only substantial asset to the defendant’s son for no consideration – whether transfer was the result of defendant’s undue influence or breach of fiduciary duty – whether equitable compensation is an appropriate remedy

EQUITY – REMEDIES AND PROCEDURE – GENERALLY – where defendant sold plaintiff’s property – where defendant used part of proceeds of sale to purchase a second property – where second property later sold – where defendant used part of proceeds from that sale to purchase a third property – where funds traced – whether equitable charge on third property

First Home Owner Grant Act 2000 (Qld), s 15, s 20

Powers of Attorney Act 1998 (Qld), s 66, s 87

Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447, cited

Johnson v Buttress (1936) 56 CLR 113, applied

Scott v Scott (1963) 109 CLR 649, applied

Symons v Williams (1875) 1 VLR (E) 199, cited

Warman International Ltd v Dwyer (1995) 182 CLR 544, applied

COUNSEL:

A J Greinke for the plaintiff

P J O’Neill for the defendant

SOLICITORS:

Walker Smith & Breen for the plaintiff

Files Stibbe & Associates for the defendant

1. J:  McMURDOThe plaintiff is a widow who was born on 16 November 1914.  The defendant is her eldest daughter.  The principal issues in this case are whether the conveyance of the plaintiff’s house to the ultimate benefit of the defendant was the result of the defendant’s undue influence or breach of fiduciary duty.

1. In September 2000, the plaintiff and the defendant went to a solicitor’s office where the plaintiff, who was by then legally blind, executed a transfer of her house in favour of the defendant’s adult son.  No consideration was given for the transfer.  A year later, the defendant, acting as her son’s attorney, sold the house and applied its proceeds to her benefit.  The plaintiff seeks compensation, both in equity and under the Powers of Attorney Act 1998 (Qld), and equitable relief by way of a constructive trust or a charge against another real property said to have been acquired in part with the proceeds of sale of the plaintiff’s house.

The plaintiff…