Walker v Brandis
[2003] QDC 295
•27 August 2003
DISTRICT COURT OF QUEENSLAND
CITATION:
Walker v Brandis [2003] QDC 295
PARTIES:
BARBARA HELEN WALKER Plaintiff
v
LEONARD GLEN BRANDIS Defendant
FILE NO/S:
234 of 2002
DIVISION:
Civil
PROCEEDING:
ORIGINATING COURT:
District Court
DELIVERED ON:
27 August 2003
DELIVERED AT:
Maroochydore
HEARING DATE:
16 June 2003
JUDGE:
K.S Dodds DCJ
ORDER:
Judgment for the Plaintiff against the defendant for $40 000, together with interest calculated at 9% from 9 July 2002 until date of the Judgement
CATCHWORDS:
CONTRACT – BREACH – DAMAGES – where pl and def’s wife joint tenants of Lot - where def purchased pl’s interest –where pl alleged purchase at undervalue and unconscionable – where pl alleged oral agreement with def’s wife as agent for def compromising her claim.
COUNSEL:
Mr M Taylor for the Plaintiff
Mr R Fryberg for the Defendant
SOLICITORS:
North Coast Law for the Plaintiff
Butler McDermott and Egan for the Defendant
In this proceeding the plaintiff sued the defendant for $40,000 damages for breach of contract and for interest on those damages.
The plaintiff is presently 83 years of age. She and her husband who died on 7 November 2000, had, in 1989, purchased a 12.1 hectare block of land being Lot 5 on RP 227032 (Lot 5) at Dulong. They never resided on Lot 5. Their purpose was to provide a place where horses and donkeys could be fed and looked after. They had an interest in ensuring so far as they were able, that animals such as these were cared for.
The defendant and his wife Gaye Narelle Brandis (Gaye) lived on an adjoining 44 acre property where they conducted a wholesale nursery. Lot 5 was purchased from the brother of Gaye and Gaye, although the plaintiff and her husband dealt only with the brother during the transaction.
When the plaintiff and her husband moved animals on to Lot 5, they met Gaye who introduced herself to them. Gaye was apparently interested in horses. Thereafter of her own volition Gaye helped look after animals on the plaintiff’s land and it appeared to the plaintiff a close relationship developed.
In 1991 the plaintiff and her husband conscious of their advancing age and wanting to ensure so far as they could that the animals on Lot 5 would continue to be looked after arranged for Gaye to be registered as an owner of the block with them. This occurred in September 1991. I am satisfied that the intention was that if both the plaintiff and her husband died the land would be available for the animals to live out their lives. Although Gaye was registered as a joint tenant with the plaintiff and her husband it was not contemplated that Gaye would control what could be done with Lot 5 while the plaintiff and/or her husband remained alive.
After the death of the plaintiff’s husband, the plaintiff and Gaye each held an indivisible half-share in Lot 5. So long as that continued, on the death of the plaintiff, the whole of the title would pass to Gaye.
After the death of the plaintiff’s husband and in view of her age, the plaintiff considered she had to relocate from the large property where she and her husband had lived. During the course of disposing of machinery by auction as part of the process, an auctioneer and real estate agent said he would offer the plaintiff $150,000 for Lot 5.
The plaintiff approached Gaye to sell Lot 5. She offered to pay Gaye $50,000 (according to the Plaintiff), $30,000 (according to Gaye) with the animals to be put onto the defendant’s property and there looked after. Gaye was aware that if the status quo prevailed when the plaintiff died, she would have all of Lot 5. She refused.
The joint tenancy could of course have been severed by the plaintiff and she could have sold her half-interest. Alternatively she could have applied to the Court for the appointment of trustees on the statutory trust for sale.
I accept that about this time the plaintiff in the throes of reorganising her living arrangements, required some money. Some time after Gaye’s refusal to agree to sale of Lot 5, the defendant offered to buy the plaintiff’s interest in Lot 5 for $50,000. The defendant said in evidence he didn’t really want the land but purchased it because the plaintiff was saying she needed money. I record I do not accept his evidence regarding his motivation for buying the land. In any event a contract of sale was entered into on 16 February 2001 and the plaintiff and Gaye sold the plaintiff’s interest in Lot 5 to the defendant and Gaye, for $50,000. There were some special conditions to the contract as follows:
“The parties hereto agree and confirm that the interest of Barbara Helen Walker only is being acquired by the buyer Leonard Glen Brandis and the sum of $50,000 will be paid by the said Leonard Glen Brandis to Barbara Helen Walker solely at settlement.
The parties to this contract acknowledge that there are six horses and two donkeys owned by Barbara Helen Walker located on the property. It is expressly agreed that the aforementioned animals shall be allowed to live out their natural life on any of the paddocks in Lot 5 on RP 227032 or on such other property as is necessary to adequately care for and house the before-mentioned animals.
Should Barbara Helen Walker require to do so, she may enter into the appropriate paddocks where the horses and donkeys are so kept for the purposes of providing care and attention or for any other purpose of her choice.”
On settlement the plaintiff’s interest was transferred to the defendant and Gaye. The defendant and Gaye became registered as joint tenants of Lot 5.
Some time after this, the plaintiff having come to the view the defendant and Gaye had purchased her interest in the land at an under-value, saw solicitors about taking action. Following that, on 29 October 2001 the defendants’ solicitors wrote to the plaintiff’s then solicitors in the following terms:
“We refer to our telephone conversation today.
On our client’s instructions we put two alternatives as follows for terms of settlement:
1. Our clients pay your client $25,000 within twenty-eight (28) days from today on the condition that your client releases our clients from all actions that she might have against them now or in the past or future with respect to their acquisition of her interest in the land or for any claim for personal injuries that she might have arising from her exercising her rights under the contract for sale.
Our clients’ offer in this regard is subject to our firm completing investigations that such a release will be enforceable at law and on drafting a suitable release to cover all possible contingencies.
2. Our clients pay your client $50,000 within 28 days from today on the condition that your client forfeits all her rights under the contract and signs a release document on the same terms and conditions as specified in offer one.
Obviously these offers are made very much on a broad brush approach and if your client is minded to accept either one, then detailed Terms of Settlement would be prepared to the satisfaction of the parties.
To make it clear the above offers are conditional upon final terms being drafted to the satisfaction of all the parties.
Please let us have your client’s response.”
The plaintiff did not accept either proposal.
Offer 1 for $25 000 contemplated the special conditions to the contract of sale of Lot 5 remaining operative. It required the plaintiff to release the defendant and Gaye from all actions
“with respect to their acquisition of her interest in the land or for any claim for personal injuries that she might have arising from her exercising her rights under the contract of sale”.
Offer 2 for $50 000 additionally required the plaintiff to forfeit all her rights under the contract of sale. These included the animals on Lot 5 being allowed to live out their natural lives there or “such other property as necessary to adequately care for and house” them and that the plaintiff at will could enter Lot 5.
It will be noted from the letter that the solicitors appear to be acting for both the defendant and Gaye.
Thereafter the dispute rested until on or about the 23rd November 2001. The plaintiff had gone to Lot 5. A vet was to arrive to attend to one of the animals. Gaye came down to where the plaintiff was and conversation ensued. It is the plaintiff’s case, that as a result of what passed between she and Gaye during that conversation, together with what was said during a phone conversation between she and Gaye a few days later, a binding agreement was concluded that the defendant would pay the plaintiff a further $40,000 in consideration of her forbearing to sue for the purchase of Lot 5 at an under-value. The defendant (and Gaye) deny there was any binding agreement entered into.
On 31st January 2002 solicitors for the defendant and Gaye wrote to the plaintiff in the following terms:
“We act on behalf of Mr and Mrs Brandis with whom you entered into a contract for the sale of certain land by agreement dated 16 February 2001.
We have been informed by our clients that you have come to an agreement whereas our clients will pay an additional $40,000 to you. To ensure that this transaction goes smoothly we require you to attend to the following items:
1. The enclosed medical certificate must be signed by your regular doctor.
2. The enclosed independent solicitor’s certificate must be signed by yourself and an independent solicitor of your choice.
Both documents must be fully completed to our clients’ satisfaction before any money will be paid. Please also find enclosed a Deed of Variation which our clients require you to sign at this office at a mutually suitable time. You will require the Deed of Variation when seeking the independent solicitor’s certificate. Please note that all costs you incur in having the medical certificate and independent solicitor’s certificate completed must be paid by yourself.
When you have had the independent solicitor’s certificate and medical certificate completed please forward it to this office for checking by our client. Once these two documents are completed to our clients’ satisfaction then we will arrange for you to attend this office so that the Deed of Variation can be completed and the sum of $40,000 paid to you. Please do not sign the enclosed Deed of Variation until you attend this office.
We look forward to receiving the completed independent solicitor’s certificate and medical certificate from you. Please note these are the only terms in which our clients will pay you the sum of $40,000.”
Enclosed with this letter were documents referred to therein, namely:
· A Deed of Variation substituting different conditions in lieu of the special conditions in the contract of sale of Lot 5. These conditions were similar to and went beyond those in the contract of sale and included a new term namely:
“1.6 Barbara Helen Walker acknowledges that during all such times as she is on Lot 5 on RP 227032 or any other property owned leased or occupied by Gaye Narelle Brandis or Leonard Glen Brandis both her property and person shall be at her own risk and she acknowledges that she will not hold Gaye Narelle Brandis or Leonard Glen Brandis liable for any personal injury or loss of property whether caused by the negligence or not of Gaye Narelle Brandis or Leonard Glen Brandis their servants family or agents.”
This term was an expanded version of the requirement in the offers made in the letter of 29th October 2001 that the defendant and Gaye be released from any claim by the plaintiff for personal injuries arising from her exercising her rights under the contract of sale.
· An independent solicitor’s certificate certifying that the effect of the original sale contract and Deed of Variation had been explained to the plaintiff and that the plaintiff acknowledged she had received the documents and understood their general nature and effect and the advice given by the solicitors;
· A medical certificate certifying the plaintiff had been examined for her capacity to execute a contract and had the necessary mental capacity.
Following receipt of the letter of the 31 January 2002 and the accompanying documents, the plaintiff wrote to the defendant and Gaye and to the defendants’ solicitors dated February 7. In that letter she said in part:
“I am in receipt of your documents which bear no relation whatever to the contract negotiated between myself and Mrs Brandis towards the end of last year apart from verifying the agreed sum of $40,000.
The contract came into being when Mrs Brandis on behalf of herself and her husband, offered to pay me $40,000 in return for my not pursuing my claim of $100,000 against them both. I accepted her offer. It was a simple contract and there were no conditions.
A single party to a contract acting unilaterally cannot impose conditions at a later date.
Mr Brandis has informed me that he would like the sum reduced to $35,000 or even $30,000. Of course this is not acceptable but it is not my intention to cause them further stress so I will accept the following methods of payment:”
There followed a proposal for payment of $40,000 in two instalments and further matters which it is not necessary to set out.
On the 8 February 2002 the defendants’ solicitors wrote to the plaintiff as follows:
“We acknowledge receipt of your facsimile dated 7 February 2002.
We have taken instructions from our clients and they inform us that the substance of your allegations contained in your letter of 7 February 2002 are utterly incorrect.
Mr and Mrs Brandis are under no obligation to pay you any money. It is a condition precedent on you receiving the sum of $40,000 that you sign a Deed of Obligation and have the medical certificate and independent solicitor’s certificate completed to our clients’ satisfaction. These are the only terms which Mr and Mrs Brandis will you pay you any sum of money.
Mr and Mrs Brandis have informed us that the offer to you contained in our letter of 31 January 2002 will be open for a period of 14 days from the date of this letter. If after 14 days, you have not provided us with an independent medical certificate and independent solicitor’s certificate and attended at this office to execute the Deed of Obligation then the offer will lapse. If the offer lapses then our clients will not be making any further offers in this regard…”
The only evidence about the value of Lot 5 was the evidence of the offer of $150,000 and from the defendant in cross-examination accepting the suggestion that by the date of trial Lot 5 was worth considerably more than $150,000.
I find that on 23 November 2001 the plaintiff and Gaye had a conversation arising out of the plaintiff’s continuing assertion that her interest in Lot 5 had been purchased at an under-value and was unconscionable. Only the plaintiff and Gaye were present at that conversation and on the telephone a few days later. Their accounts differ.
According to the plaintiff Gaye said :–
“We can only offer you $40,000 to drop the case and you won’t take that”
To which she replied :-
“Yes I will”. This was repeated a few times.
The plaintiff then said :-
“Well you’ve got to discuss it with your husband”.
To which Gaye responded :-“Of course”.
Two or three days later during a telephone conversation about one of the animals the plaintiff said :- “Have you discussed it with Glen (the defendant) – has he agreed”.
To which Gaye replied :- “Yes”.
According to the plaintiff weeks then passed with no word and so she sent a facsimile to the defendant and Gaye asking when settlement would be occurring. The defendant phoned in response advising their solicitor had left or was leaving the firm and thus there would be a delay. Some time later the plaintiff sent another facsimile following which she received the letter from the defendant’s solicitors (of the 31st January 2002 and accompanying documents). The plaintiff acknowledged that at some time the defendant had said to her he wanted to reduce his offer to $35,000. The defendant said this had occurred when he happened to meet the plaintiff at the gate of Lot 5 at some time after the letter of 31st January 2002 had been sent.
According to Gaye, during the conversation on or about 23 November 2001 she had said the defendant was not prepared to pay anything like $50,000 ($50,000 was one of the alternatives put forward in the letter of 29 October 2001 from the defendant’s solicitors to the Plaintiff’s then solicitors) and :-
“I kept saying over and over we weren’t just going to pay her any money unless we could tie her up so that she wouldn’t sue us over any matter past present or future”.
She said she :- “didn’t really say anything about the $40,000”.
She said she didn’t agree to pay $40,000. She also said that she’d spoken to the defendant (obviously from the context prior to the meeting in the paddock) :-
“He’d spoken to his solicitor and he said he just wasn’t prepared to pay anything like $50,000 – you know it was $40,000 if that”.
She said she did not have a subsequent conversation with the plaintiff on the telephone telling her that the defendant had agreed to pay $40,000 in return for the plaintiff not suing over the sale of the land. She said :-
“If I said something I would have said it’s just left with the solicitors, I wouldn’t have gone into anything like that”.
In cross-examination she acknowledged that prior to the 23 November 2001 she and the defendant had spoken about the dispute and agreed that at most another $40,000 would be paid. She also agreed that she might have said during the conversation “$40,000 is the limit” and that the plaintiff had said to her to go home and talk to the defendant about it.
I accept the Plaintiff’s account of the conversation on the 23 November 2001 and the conversation during a phone call a few days later. She did say she would accept $40,000 to abandon the claim and Gaye did say to her during a telephone conversation a few days later that the defendant had agreed to $40,000. There was no mention of any additional conditions attaching to payment of $40 000. There are a number of matters which in combination lead me to that view. First, at issue was the Plaintiff’s claim that the sale of her interest in Lot 5 was at an undervalue and unconscionable and she should have more money for it. Second, $40,000 had been discussed between the defendant and Gaye as all they would offer. Third, I infer the defendant’s solicitors were instructed that an agreement had been reached whereby their “clients” would pay an additional $40,000 to the Plaintiff. See the letter of 31 January 2001. Fourth, the letter of 31.01.02 does not say there was an agreement regarding “tying the plaintiff up…so that she wouldn’t sue us over any matter past present or future” or anything like it, although that was the effect of the letter and the accompanying documents. Fifth, the Plaintiff’s conduct subsequent to the 23 November 2001 is consistent with her account of the two conversations and inconsistent with Gaye’s account. Sixth, Gaye’s account of the conversation was unconvincing. $40 000 had plainly been a topic of conversation between she and the defendant and $40 000 was the topic of conversation between Gaye and the plaintiff.
The defendant denied that Gaye was his agent when, as the plaintiff asserted, the agreement alleged by the plaintiff was entered into. And as recorded above, even if she was, he denied any binding agreement was entered into.
I would have no difficulty in finding on the facts in this case that Gaye was the agent of the defendant if I found otherwise that the conversations between the plaintiff and Gaye resulted in a binding agreement. That is because I conclude from the evidence that the defendant and Gaye plainly had a common interest in acquiring the plaintiff’s interest in lot 5, and additionally that in her dealings with the defendant the plaintiff dealt through Gaye.
A decision about whether a binding agreement has been entered into between parties requires an objective approach to what the parties intended. In this case the evidence relevant to the question includes what was said between the plaintiff and Gaye assisted by, if necessary what had occurred before and what occurred after that communication.
The letter of 29th October 2001 contained alternative offers. Each had conditions attached. One offer was for $25 000 the other was $50 000. The $50 000 offer included an additional condition whereby the plaintiff would forfeit all her rights under the contract. Neither offer was accepted.
The material conversations between the plaintiff and Gaye then occurred. So far as the evidence discloses it was about the amount of money the plaintiff would be prepared to accept to compromise her claim. There was no reference to conditions to be attached. Thereafter there was communication between the plaintiff and the defendant on at least three occasions before the letter of 31st January 2002. I accept the plaintiff’s evidence about these. There were two queries of the defendant by the plaintiff about when settlement was to occur. At least one of those was exhibit 7 dated 2/12/01. There was telephone advice from the defendant about the departure of his solicitor causing delay. There was no reference to payment of $40 000 being conditional during any of these communications.
There was then the letter of 31st January 2002. It makes reference to an agreement between, on the one hand the defendant and Gaye, and on the other hand the plaintiff that “our clients will pay an additional $40 000 to you”. It goes on to set out the conditions upon which that will occur. In response to that letter the plaintiff wrote exhibit 5 in which she asserted that a binding agreement had been reached as a result of the conversations between she and Gaye.
In the final analysis, applying the civil standard of proof I find that an agreement binding upon the defendant was entered into as a result of the conversation between Gaye and the plaintiff on or about the 23rd November 2001 and a few days later on the telephone.
I give Judgment for the plaintiff against the defendant for $40 000, together with interest calculated at 9% from 9 July 2002 until date of the Judgement.
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