Taske v Elliott - [2008] QDC 94

DISTRICT COURT OF QUEENSLAND

CITATION:

Taske v Elliott [2008] QDC 94

PARTIES:

GLADYS MAY TASKE

(Plaintiff)

v

JUDY MAREE ELLIOTT aka JUDY MAREE TASKE

(Defendant)

FILE NO.:

D40 of 2006

PROCEEDING:

Trial

DELIVERED ON:

2 May 2008

DELIVERED AT:

Brisbane

HEARING DATES:
WRITTEN
SUBMISSIONS:

25, 26 February 2008

23 April 2008

JUDGE:

Judge Brabazon QC

ORDER:

Order that the defendant pay $100,000 and $20,000 interest to the plaintiff

CATCHWORDS:

EQUITY – TRUSTS AND TRUSTEES - IMPLIED TRUSTS – CONSTRUCTIVE TRUSTS – Gift on condition - Failure to fulfil condition – Effect - where parties entered into joint venture to purchase a house subject to the right of the plaintiff to reside in the house with the defendant – where joint venture failed without attributable fault

COUNSEL:

Mr C. Harding for the plaintiff

Mr P. Favell for the defendant

SOLICITORS:

Clewett Corser & Drummond, Toowoomba, for the plaintiff

Murdoch Lawyers, Toowoomba, for the defendant

The Issues

This unfortunate litigation is between a mother and her daughter. Mrs Taske, a widow, went to live with her daughter. She paid her daughter $100,000. After about two and a half years she left and went to a retirement village. She wants her $100,000 back. Her solicitors claim a share of her daughter’s house. Her daughter says that the money was a gift, and should not be repaid.

What are the important facts that the court has to consider?Was the $100,000 an unconditional gift? Should Mrs Taske recover her $100,000, or a share in her daughter’s house? If a share in her house, should her daughter’s payment of ongoing expenses be taken into account?

The $100,000

Mrs Taske is now 81 years of age. Her husband died in early 2001. They had been married for 52 years. She was alone in her house in Mackay. By mid 2002 her three daughters, Robyn, Carol and Judy had all moved away. She was lonely. She was then 75 years of age. She owned her house, and had the benefit of a war widow’s pension. She had a gold health card, which covered all her medical expenses. By the middle of 2002 she had about $20,000 in the bank. When her husband was alive, he had looked after all of their financial affairs. She had been busy with the children, their life on a cane farm and running a hotel. She had left school after completing year 7, not finishing her scholarship year. She had never worked independently for a wage.

In June 2002 Judy and her partner, David Elliott, moved to Toowoomba. (They later married, in January 2004). They rented a house in Curzon Street. Mrs Taske visited them. Judy could see that her mother was lonely and sad. She and her partner agreed that she might come to live with them. Mrs Taske was very pleased. No money was discussed at that stage.

Mrs Taske and Judy have somewhat different recollections about what was said, and how their arrangement developed as they spoke to each other…

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 Taske v Elliott

Details

AGLC: Taske v Elliott [2008] QDC 94
Case: [2008] QDC 94
Decision Date: 2 May 2008

CaseChat Overview and Summary

The case of Taske v Elliott involved a dispute between the plaintiff and the defendant over a joint venture agreement to purchase a house. The plaintiff, Taske, and the defendant, Elliott, had entered into an agreement whereby they would purchase a property together, with the condition that Taske would have the right to reside in the house with Elliott. However, the joint venture failed, and the plaintiff sought to enforce the implied trust that arose from the agreement.

The legal issues before the court were whether an implied trust arose from the agreement and, if so, what the effect of the failure of the joint venture was on that trust. The court needed to determine whether the condition attached to the plaintiff's right to reside in the house was a valid condition and whether the failure of the joint venture resulted in the plaintiff being entitled to compensation.

The court found that an implied trust did arise from the agreement and that the condition attached to the plaintiff's right to reside in the house was valid. The court also found that the failure of the joint venture did not result in the plaintiff being entitled to compensation, as there was no attributable fault on the part of either party. However, the court found that the defendant was in breach of the implied trust and ordered the defendant to pay the plaintiff $100,000 plus interest of $20,000.

Orders

Orders of the court

Order that the defendant pay $100,000 and $20,000 interest to the plaintiff

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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