Family ordered back to court over $500K farm feud
THE Supreme Court has ordered a retrial in a Kingaroy farm feud worth hundreds of thousands of dollars.
Gordon James Kelly and his mother Kathleen Mary Kelly commenced proceedings to recover money which they said was agreed to be paid by Vicki Lee Slade, Mr Kelly's daughter, and her husband Danny Alexander Slade.
The claim was that the Slades had agreed to pay Mrs Kelly $260,000 for her portion of the property, and Mr Kelly $240,000 for his portion of the property.
Mr Kelly was to be paid $20,000 at settlement, and the balance in two years.
The $260,000 was paid to Mrs Kelly and the $20,000 was paid to Mr Kelly at settlement.
In September 2012 Mr Kelly moved to Darwin from the farm and in 2014 he demanded the balance, however the Slades disputed that agreement was ever made.
When the Slades did not pay him out, he commenced court proceedings in December 2017.
The case was subsequently dismissed on the basis that the Kellys had failed to prove that there was a binding agreement.
However, that decision has now been challenged for a variety of reasons, including the way the trial judge assessed the evidence and made findings of fact, misinterpreting documents that led the judge to reject evidence put forth by the Kellys, and preferring the evidence of Mr and Mrs Slade.
According to documents published by the Supreme Court of Queensland, neither the Kellys or the Slades stuck to their pleaded case.
"The evidence given was not consistent with the pleaded case of either side, though the divergences were greater on the Slades' side," the document said.
According to Mr Kelly's evidence, he spoke to Mrs Slade about selling the farm, and offered to sell it for $500,000.
Mr Kelly said his daughter told him they could not get the finance for $500,000 and that he agreed to wait two years for the balance of his share.
A handwritten agreement was drawn up and signed by Mr and Mrs Slade, and Mr Kelly.
The trial judge made observations about the witnesses and found that Mr Kelly, Mrs Kelly and Mrs Slade were unreliable in their evidence.
"His Honour found that Gordon Kelly was vague, his evidence lacked context and content, and he was prepared to adopt things as correct when he evidently did not understand them," the court documents read.
"Kathleen Kelly was unreliable because she was determined in her views, whether they were right or not, but her confidence was misplaced because evidence was mistaken or implausible.
"The trial judge found that Mrs Slade's evidence was 'not compelling', frequently vague, non-responsive and she had a tendency to recount impressions rather than the facts."
The judge said that the Slades had "not made out that there was a binding agreement by the defendants to pay $240,000 to Gordon Kelly".
"The case was one where, on the findings by the learned trial judge, the witnesses who were centrally involved in the conversations concerning the sale, Gordon Kelly and Mrs Slade, were found to be unreliable in one way or another," appeals judge Phillip Morrison said.
He said the trial judge had not properly analysed exhibits before reaching the conclusion that the Kellys had failed to establish their case.
"In my respectful view, the significance of those exhibits was self evident," he said.
"Each of those documents records that there was an agreement with Gordon Kelly that he be paid $240,000 for his share."
Judge Morrison ordered a retrial, saying the findings were not sustainable and that the judgment must be set aside.
"Reluctantly, I conclude that there should be a retrial," he said.
"The (Slades) must pay the costs of the appeal, but the costs of the trial should await the outcome of the second trial."