Aboriginal Evangelical Fellowship Australia Inc v Aboriginal Evangelical Church Inc
[2018] VSC 208
•1 May 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PROPERTY LIST
S CI 2018 01410
| ABORIGINAL EVANGELICAL FELLOWSHIP AUSTRALIA INC (VICTORIAN REGISTRATION NUMBER A0025815V) | Plaintiff |
| v | |
| ABORIGINAL EVANGELICAL CHURCH INC (VICTORIAN REGISTRATION NUMBER A0029305V) AND OTHERS (according to the attached schedule) | Defendants |
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JUDGE: | DERHAM AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 1 May 2018 |
DATE OF JUDGMENT: | 1 May 2018 |
CASE MAY BE CITED AS: | Aboriginal Evangelical Fellowship Australia Inc v Aboriginal Evangelical Church Inc & Ors |
MEDIUM NEUTRAL CITATION: | [2018] VSC 208 |
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INJUNCTION – Interlocutory – Application to restrain registered proprietor of land held on trust for the plaintiff from selling or dealing with the land – Prima facie case that land held on express trust, alternatively a resulting or constructive trust – Balance of convenience in favour of restraint by injunction – Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; Bradto Pty Ltd v State of Victoria; Tymbook Pty Ltd v State of Victoria (2006) 15 VR 65.
TRUST AND TRUSTEES – Express trust – Creation – Intention to create trust – Transfer of real property to first defendant to be held on trust for plaintiff – Requirements of writing – Fraud exception – Schweitzer v Schweitzer [2012] VSCA 260 referred to.
RESULTING TRUST – Transfer of real property to first defendant – Absence of valuable consideration – No presumption of advancement – House v Caffyn [1922] VLR 67; Wirth v Wirth (1956) 98 CLR 228; Re Association for Visual Impairment The Homeless and The Destitute Inc. (in liquidation) (No 2) [2014] VSC 183, referred to.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D C Harrison | Lewis Holdway Lawyers |
| No appearance for the First to Fourth Defendants |
TABLE OF CONTENTS
Introduction......................................................................................................................................... 1
Background facts................................................................................................................................ 1
Applicable Law................................................................................................................................... 2
Serious question to be tried............................................................................................................. 4
Adequacy of damages....................................................................................................................... 5
Balance of convenience..................................................................................................................... 6
Service of the application................................................................................................................. 6
Conclusion........................................................................................................................................... 7
HIS HONOUR:
Introduction
By summons filed 18 April 2018, the plaintiff seeks to restrain the first, second or third defendants from dealing with the property situate at 68 Barmah Drive West, Wantirna (‘Property’),[1] or taking possession of the property, until the hearing and determination of this proceeding or further order.[2] The application is supported by the affidavit of Su-Ann Loh made on 16 April 2018 (‘Loh affidavit’). The Writ, summons and Loh affidavit were served on the defendants at 56 Skeet Road, Harrisdale, Western Australia, on 19 April 2018.[3]
[1]Certificate of Title Volume 9400 Folio 712; Loh affidavit [13], exhibit SAL-3.
[2]The hearing and determination of the application was referred to me by John Dixon J pursuant to r 77.05 of the Supreme Court (General Civil Procedure) Rules2015.
[3]Affidavits of Nicola Iannetta made 30 April 2018 (three affidavits, one for service on each of the first, second and third defendants). Copies of the affidavits without exhibits were tendered and accepted as evidence of service. They show that the notice prescribed pursuant to s 16 of the Service and Execution of Process Act 1992 (Cth) (‘SEPA notice’) accompanied service of the writ. The original affidavits and exhibits have been sent by express post from Western Australia.
Background facts
The plaintiff and the first defendant (‘the Church’) are incorporated associations with some members in common.[4] The plaintiff formerly owned the Property and executed a transfer of it to the Church for it to hold the property on trust for the plaintiff. On 24 July 2001, the Church became the registered proprietor of the property.[5]
[4]Loh affidavit [11].
[5]Loh affidavit [19], exhibit SAL-3.
The plaintiff transferred the property to the Church on an express trust for the plaintiff, which Counsel for the plaintiff described appropriately as a ‘bare trust’.[6] The plaintiff has now called for the property to be transferred back to it[7] and the Church has not complied.[8] Rather, the Church has purported to deal with the property as though it is its own.[9] In late 2017 it unsuccessfully sought to take possession of the property through VCAT proceedings, without any jurisdictional basis for doing so.[10]
[6]Loh affidavit [15]–[19].
[7]Loh affidavit [22], [30] and [37], exhibits SAL-8, SAL-12 and SAL-16.
[8]Loh affidavit, exhibit SAL-3.
[9]Loh affidavit [52]–[57]; [69]–[74].
[10]Loh affidavit [52]–[57].
Subsequently, on 8 March 2018 the Church claimed that it had leased the property to a person or persons unknown.[11] The plaintiff does not know the details of the alleged lease. If the alleged tenant goes into actual possession of the property, then upon re-conveyance of the property to the plaintiff, its title will be subject to that leasehold interest.[12]
[11]Loh affidavit [70], exhibit SAL-33.
[12]Section 42(2)(e) of the Transfer of Land Act 1958 (Vic); see Balanced Securities Limited v Bianco [2010] VSC 162 [79], [84]–[87] (J Forrest J).
On 8 or 9 March 2018 while the occupants of the Property, Pastor Denis and Mrs Maureen Atkinson, were away, persons unknown accessed the property, packed the Atkinsons’ personal items into boxes and moved the boxes to a shed on the Property. On 8 March 2018, the third defendant (‘Williams’) on behalf of the Church demanded that all possessions which had been packed and relocated to the shed on the property, be removed.[13] There is an overwhelming inference that Williams and the Church had some involvement in those actions. Both Williams and the second defendant (‘Hayden’) have subjected the former tenants of the property to harassing behaviour.[14]
[13]Loh affidavit, exhibit SAL-33.
[14]Loh affidavit [41], exhibit SAL-25.
Ordinarily it would be sufficient to grant injunctive relief against the Church, its office holders, servants and agents. In the circumstances, however, the evidence shows that there appear to be no duly elected office holders of the Church, or at least there are grave doubts as to who are the Church’s office holders. It is therefore appropriate to enjoin the individuals who claim to be acting on behalf of the Church in their dealings with the plaintiff.
Applicable Law
The principles applicable to an application for an interlocutory injunction were identified by the High Court in Australian Broadcasting Corporation v. O’Neill.[15] I summarise those principles as follows:
[15](2006) 227 CLR 57, [19] (Gleeson CJ and Crennan J), [65]–[83] (Gummow and Hayne JJ); see also Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618; Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, [8]–[13].
(a) the plaintiff must demonstrate a prima facie case. This requirement is to be understood as whether there is a serious question to be tried as to the plaintiff's entitlement to relief, not whether it is more probable than not that the plaintiff will succeed at trial. The sense in which the test is understood is that the plaintiff must prove prima facie a sufficient likelihood of success to justify in the circumstances preservation of the status quo pending trial. In context, it must show that it has a putative legal or equitable right in respect of which final relief is sought which will justify the restraint sought. The requisite strength of the probability of ultimate success depends on the nature of the rights asserted and the practical consequences likely to flow from the interlocutory orders sought;
(b) the injury which the plaintiff is likely to suffer must be one for which damages will not provide an adequate remedy; and
(c) the balance of convenience must favour the granting of an injunction. The balance of convenience requires a consideration of the relevant matters favouring or militating against the granting of an injunction and will necessarily involve a consideration of the strength of the plaintiff's claim, assuming that a serious issue has been identified. In Victoria, this consideration is further clarified by the decision of the Court of Appeal in Bradto Pty Ltd v. State of Victoria.[16] The court must, in determining whether to grant an interlocutory injunction take whichever recourse appears to carry the lower risk of injustice if it should turn out to have been wrong, in the sense of granting an injunction to a party who fails to establish his right at the trial or in failing to grant an injunction to a party who succeeds at the trial.[17]
[16](2006) 15 VR 65.
[17]Bradto Pty Ltd v State of Victoria; Tymbook Pty Ltd v State of Victoria (2006) 15 VR 65 [35]; see also Magna Alloys and Research Pty Ltd v Coffey [1981] VR 23.
These organising principles are applied having regard to the nature and circumstances of the case, under which issues of justice and convenience are addressed.[18]
[18]Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57, 68 [19]; [2006] HCA 46 [19] (Gleeson CJ and Crennan J).
There is a relationship between the strength of the plaintiff’s case in establishing a serious question to be tried and the extent to which the plaintiff must establish that the balance of convenience favours the grant of the injunction. The stronger the case in establishing a serious question, the more readily the balance of convenience might be satisfied. It is sufficient that the plaintiff show a sufficient likelihood of success that in the circumstances justifies the practical effect which the injunction will have on the defendants.[19]
[19]Slater Walker Superannuation Pty Ltd v Great Boulder Gold Mines Ltd, [1979] VR 107, 110 (Lush J); Magna Allows & Research Pty Ltd v Coffey [1981] VR 23, 28; Dataforce Pty Ltd v Brambles Holdings Ltd [1988] VR 771, 775; Sylina v Solanki [2014] VSC 2 [43].
Serious question to be tried
There is clearly a serious question to be tried, namely whether the plaintiff is entitled to possession and a re-transfer of the property. There is either an express trust (in this case a bare trust), a resulting trust or a constructive trust.
The evidence establishes that the transfer was not intended to transfer to the Church the beneficial estate in the Property and that it would be held on trust for the plaintiff by the first defendant. That constitutes an express trust which, in absence of writing signed by the first defendant, fails because of the operation of s 53(1)(b) of the Property Law Act 1958 (Vic). But as Nettle J pointed out in Schweitzer v Schweitzer[20] by reference to the rule in Rochefoucauld v Boustead[21] and the observations of Brennan J in Bloch v Bloch,[22] the principle is that ‘the Statute of Frauds does not prevent the proof of a fraud; and that it is a fraud on the part of a person to whom land is conveyed as a trustee, and who knows it was so conveyed, to deny the trust and claim the land himself’. There is in this instance a prima facie case for an express trust enforceable against the first defendant by this means.
[20][2012] VSCA 260 at [41]-[44] (Tate JA and Ferguson AJA agreeing).
[21][1897] 1 Ch 196.
[22](1981) 180 CLR 390, 403 (Brennan J).
If I am wrong in that conclusion, this is a case where there was no consideration for the transfer of the Property from the plaintiff to the Church. The transfer of land executed in 2001 states as the consideration ‘Its desire to do so’ and the Transfer is marked ‘not chargeable pursuant to Headline 6, exemption E4’.[23] A transfer of Torrens title land, that is land under the operation of the Transfer of Land Act 1958 (Vic), without consideration raises a presumption of a resulting trust.[24] Thus, if the express trust is not a proper basis for the beneficial interest claimed by the plaintiff, there is a prima facie case for a resulting trust in its favour.
[23]Affidavit of Su-Ann Loh made 1 May 2018, exhibit SAL-36.
[24]House v Caffyn [1922] VLR 67, 78-79; Wirth v Wirth (1956) 98 CLR 228, 236; Re Association for Visual Impairment The Homeless and The Destitute Inc. (in liquidation) (No 2) [2014] VSC 183, [18]-[22].
If this turns out not to be the appropriate analysis, I would nevertheless find on a prima facie basis that the Property is held upon a constructive trust for the plaintiff. When property is acquired in circumstances where, in good conscience, the recipient cannot keep the beneficial interest, equity intervenes by means of a constructive trust.[25] The circumstances are construed as the recipient holding the property on trust. Here, good conscience would prevent the Church from retaining the Property because of the circumstances set out above.[26]
[25]Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41, 108 (Mason J).
[26]Re Association for Visual Impairment The Homeless and The Destitute Inc. (in liquidation) (No 2) [2014] VSC 183, [23].
Adequacy of damages
Although the test may now be whether it would be more just to grant an injunction than to leave the plaintiff to pursue an award of damages,[27] there remains a tendency not to regard damages as an adequate remedy for prospective injury to property of the plaintiff.[28] The breach of the plaintiff’s equitable proprietary right in the Property founds a prima facie entitlement to an injunction.[29]
[27]See I.C.F. Spry, The principles of equitable remedies : specific performance, injunctions, rectification and equitable damages (Lawbook Co., 9th ed, 2010) 396 and footnote 2.
[28]Ibid 397-398.
[29]Break Fast Investments Pty Ltd v PCH Melbourne Pty Ltd (2007) 20 VR 311 [36].
Balance of convenience
The plaintiff is prima facie entitled to a re-conveyance of the property. The plaintiff has been in possession of the property since 2000 notwithstanding the conveyance to the Church.[30]
[30]Loh affidavit [40].
Maintenance of the status quo, or if the defendants have entered into possession, the status quo ante, until trial or further order is the course which involves the lower risk of injustice.[31] There have been trespasses to the property by a person or person’s unknown who changed the locks and moved the possessions of the occupants into a shed on the Property.[32] There is a strong inference that the person or persons acted pursuant to the direction of the Church, or the second or third defendants.
[31]Bradto Pty Ltd v State of Victoria; Tymbook Pty Ltd v State of Victoria (2006) 15 VR 65 [35]; [2006] VSCA 89 [35].
[32]Loh affidavit [51], [71].
Service of the application
Proof of service of the writ, summons and affidavit in support was today provided by three affidavits of service at the registered office of the Church in Western Australia. Scanned copies of those affidavits were tendered in court today. The originals, and the exhibits to them, were sent by express post from Western Australia yesterday.
The writ as filed is not indorsed with a notice as prescribed under s 16 of the Service and Execution of Process Act 1992 (Cth) (‘SEPA’), nor is it required to be. However, the affidavits of service show that the SEPA notice did accompany service of the writ on each defendant. Accordingly, I am satisfied on the present material that service has been validly effected.
If when the original exhibits to the affidavits of service arrive that conclusion turns out to be incorrect, then it will be necessary to revisit the terms of the injunction. This course is in accordance with the overarching purpose, in civil proceedings, of facilitating the just, efficient, timely and cost effective resolution of the real issues in dispute, as required by s 7 of the Civil Procedure Act 2010 (Vic).
Conclusion
The principles derived from Australian Broadcasting Corporation v O’Neill[33] favour the granting of the relief sought in the summons. The maintenance of the status quo, or if the Church has actually taken possession, the status quo ante, constitutes the course giving rise to the lower risk of injustice.[34]
[33](2006) 227 CLR 57.
[34]Bradto Pty Ltd v State of Victoria; Tymbook Pty Ltd v State of Victoria (2006) 15 VR 65 [35]; [2006] VSCA 89 [35].
SCHEDULE OF PARTIES
| S CI 2018 01410 | |
| BETWEEN: | |
| ABORIGINAL EVANGELICAL FELLOWSHIP AUSTRALIA INC (VICTORIAN REGISTRATION NUMBER A0025815V) | Plaintiff |
| - v - | |
| ABORIGINAL EVANGELICAL CHURCH INC (VICTORIAN REGISTRATION NUMBER A0029305V) | First Defendant |
| CLIVE HAYDEN | Second Defendant |
| DAVID BERT WILLIAMS | Third Defendant |
| REGISTRAR OF TITLES | Fourth Defendant |
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