List member Andrew Fraser appeared for the defendants in the matter of Kelly & Anor v Slade & Anor [2017] QDC 288. Following a four day trial, the defendants were successful in having the plaintiffs’ claim against them dismissed.
This matter concerned the terms of a transfer of interests in a farming property. The plaintiffs were mother and son who had owned a property in equal thirds with the first defendant (the daughter/granddaughter of the plaintiffs). The property was valued at $500,000.00. The plaintiffs transferred their shares to the first defendant and her husband (the second defendant), and a dispute had arisen over the terms of the agreement to transfer. The agreement – with the exception of the Transfer and Form 24 – was oral.
It was not in dispute that the parties had agreed that the defendants would pay the second plaintiff $260,000.00 and the first plaintiff $20,000 at settlement and that the first plaintiff would be allowed to continue to reside at the farm.
The plaintiffs claimed that the defendants also agreed to pay $20,000.00 of the first plaintiff’s credit card debt, and the balance of $200,000 over two years with the first plaintiff being able to reside rent free at the property until it was paid.
The defendants claimed that they only agreed to allow the first plaintiff to continue to live on the farm for as long as he wished and to provide him assistance with everyday living. The first defendant also claimed that she had paid a number of the first plaintiff’s bills, and had paid for some appliances and two holidays. None of these payments could be proven, or a source for the payments pointed to.
Both parties relied on a number of conversations they claimed had taken place, only one being substantiated by an independent witness. Porter DCJ considered that neither the plaintiffs nor the first defendant were credible witnesses. The first plaintiff and first defendant’s evidence was too vague, while the second plaintiff was a “person very determined in her own views”. He found the second defendant to be both credible and clear. However, the second defendant was largely basing his case on his wife’s version of events.
It was necessary for Porter DCJ to make a number of findings as to which aspects of the alleged conversations could be taken as the truth in order to ascertain whether the plaintiffs had proven that there was an agreement of the kind they alleged. He found that there was no agreement to pay the first plaintiff $200,000.
Porter DCJ dismissed both the plaintiff’s claim and the defendants’ counterclaim.
See judgment here: https://www.sclqld.org.au/caselaw/QDC/2017/288
