Annie Margaret Ford and John Marshall as Administrators of the Estate of Alice Marshall v Marshall

[2003] WASC 116

ANNIE MARGARET FORD and JOHN MARSHALL as Administrators of the Estate of ALICE MARSHALL -v- MARSHALL & ANOR [2003] WASC 116

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WASC 116
Case No:	CIV:2045/2002	Heard:	1 APRIL 2003
Coram:	BARKER J	Delivered:	18/06/03
No of pages:	35	Judgment Part:	1 of 1
Result:	Application refused
Category:	B
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Parties:	ANNIE MARGARET FORD and JOHN MARSHALL as Administrators of the Estate of ALICE MARSHALL STEWART McDOUGALL  MARSHALL KARAKET  MARSHALL
Catchwords:	Caveat Application under the Transfer of Land Act 1893 (WA) Whether caveat should be extended Whether there is a "serious issue to be tried" Whether injunction to restrain dealing should be granted Whether application can support claim of constructive or resulting trust Whether caveat irregular on its face Objection to affidavit evidence and rule against hearsay
Legislation:	Evidence Act 1906 (WA), s 79B, s 79C Guardianship and Administration Act 1990 (WA), s 77 Supreme Court Rules 1971, O 37 r 6(1) Transfer of Land Act 1893 (WA), s 136, s 138C
Case References:	Attorney-General v Parnther [1792] 29 ER 632 Barclays Bank v Quistclose Investments Ltd [1970] AC 567 Baumgartner v Baumgartner (1987) 164 CLR 137 Booth v Beresford (1993) 61 SASR 475 Deputy Commissioner of Taxation v Corwest Management Pty Ltd [1978] WAR 129 Giumelli v Giumelli (1999) 196 CLR 101 Halse v Embling, unreported; FCt SCt of WA; Library No 970734; 22 December 1997 His Grace Metropolitan Petar v Macedonian United Society of Western Australia Inc [2003] WASC 15 Kuper v Keywest Constructions Pty Ltd (1990) 3 WAR 419 Leros Pty Ltd v Terara Pty Ltd (1992) 174 CLR 407 Lydon v Ryding [2002] WASC 308 Martin v Martin (1959) 110 CLR 297 Midland Brick Company Pty Ltd v Welsh [2002] WASC 248 Miller v Sutherland (1990) 14 Fam LR 416 Muschinski v Dodds (1985) 160 CLR 583 Nelson v Nelson (1994) 33 NSWLR 740 Perpetual Pty Ltd v National Australia Bank [2002] WASC 13 Pindan Pty Ltd v Sunny's Redevelopment Pty Ltd [2002] ANZ Conv R 51 Porter v McDonald & Registrar of Titles [1984] WAR 271 Re Hallets Estate (1880) 13 Ch D 696 Scott v Scott (1963) 109 CLR 649 Australia and New Zealand Banking Group Ltd v Moszko Mejer Dzienciol by his guardian ad litem Phillip Dzienciol [2001] WASC 305 Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42 Eng Mee Yong v Letchumanan [1980] AC 331 Jandric v Jandric [1999] WASC 22 Kerabee Park Pty Ltd v Daley [1978] 2 NSWLR 222 Napier v Public Trustee (WA) (1980) 32 ALR 153 Stowe v Stowe (1995) 15 WAR 363

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : ANNIE MARGARET FORD and JOHN MARSHALL as Administrators of the Estate of ALICE MARSHALL -v- MARSHALL & ANOR [2003] WASC 116 CORAM : BARKER J HEARD : 1 APRIL 2003 DELIVERED : 18 JUNE 2003 FILE NO/S : CIV 2045 of 2002 BETWEEN : ANNIE MARGARET FORD and JOHN MARSHALL as Administrators of the Estate of ALICE MARSHALL

Plaintiffs

AND

STEWART McDOUGALL MARSHALL
KARAKET MARSHALL
Defendants

Catchwords:

Caveat - Application under the Transfer of Land Act 1893 (WA) - Whether caveat should be extended - Whether there is a "serious issue to be tried" - Whether injunction to restrain dealing should be granted - Whether application can support claim of constructive or resulting trust - Whether caveat irregular on its face - Objection to affidavit evidence and rule against hearsay

(Page 2)

Legislation:

Evidence Act 1906 (WA), s 79B, s 79C

Guardianship and Administration Act 1990 (WA), s 77
Supreme Court Rules1971, O 37 r 6(1)
Transfer of Land Act 1893 (WA), s 136, s 138C

Result:

Application refused

Category: B

Representation:

Counsel:

Plaintiffs : Ms M R Cowan
Defendants : Mr G B Giles

Solicitors:

Plaintiffs : Hammond Worthington
Defendants : Taylor Smart

Case(s) referred to in judgment(s):

Attorney-General v Parnther [1792] 29 ER 632
Barclays Bank v Quistclose Investments Ltd [1970] AC 567
Baumgartner v Baumgartner (1987) 164 CLR 137
Booth v Beresford (1993) 61 SASR 475
Deputy Commissioner of Taxation v Corwest Management Pty Ltd [1978] WAR 129
Giumelli v Giumelli (1999) 196 CLR 101
Halse v Embling, unreported; FCt SCt of WA; Library No 970734; 22 December 1997
His Grace Metropolitan Petar v Macedonian United Society of Western Australia Inc [2003] WASC 15
Kuper v Keywest Constructions Pty Ltd (1990) 3 WAR 419
Leros Pty Ltd v Terara Pty Ltd (1992) 174 CLR 407


(Page 3)

Lydon v Ryding [2002] WASC 308
Martin v Martin (1959) 110 CLR 297
Midland Brick Company Pty Ltd v Welsh [2002] WASC 248
Miller v Sutherland (1990) 14 Fam LR 416
Muschinski v Dodds (1985) 160 CLR 583
Nelson v Nelson (1994) 33 NSWLR 740
Perpetual Pty Ltd v National Australia Bank [2002] WASC 13
Pindan Pty Ltd v Sunny's Redevelopment Pty Ltd [2002] ANZ Conv R 51
Porter v McDonald & Registrar of Titles [1984] WAR 271
Re Hallets Estate (1880) 13 Ch D 696
Scott v Scott (1963) 109 CLR 649

Case(s) also cited:

Australia and New Zealand Banking Group Ltd v Moszko Mejer Dzienciol by his guardian ad litem Phillip Dzienciol [2001] WASC 305
Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42
Eng Mee Yong v Letchumanan [1980] AC 331
Jandric v Jandric [1999] WASC 22
Kerabee Park Pty Ltd v Daley [1978] 2 NSWLR 222
Napier v Public Trustee (WA) (1980) 32 ALR 153
Stowe v Stowe (1995) 15 WAR 363

(Page 4)

BARKER J:

Introduction

1 By an originating summons dated and filed 24 July 2002 the plaintiffs, who are the administrators of the estate of Alice Marshall, seek an order pursuant to s 138C of Transfer of Land Act 1893 (WA) extending the operation of caveat number I78943.

2 The plaintiffs were appointed joint plenary administrators of the estate of Alice Marshall by an administration order dated 20 November 2001 and made by the Guardianship and Administration Board pursuant to the Guardianship and Administration Act 1990 (WA). An enduring power of attorney dated 26 October 2000 in favour of the first-named defendant (Mr Stewart Marshall) was revoked by that administration order.

3 The administration order was made by the Guardianship and Administration Board upon it being satisfied that Alice Marshall (Mrs Marshall, or Alice Marshall) –

4 (a) is unable, by reason of mental disability, to make reasonable judgments in respect of matters relating to all of her estate; and

5 (b) is in need of an administrator of her estate; and

6 (c) cannot have such need met by other means less restrictive of her freedom of decision and action.

7 Mrs Marshall is the mother of each of the administrators (Mrs Annie Ford and Mr John Marshall) and Mr Stewart Marshall. She is the mother-in-law of the second-named defendant (Mrs Karaket Marshall), who is married to Mr Stewart Marshall.

8 An interim order extending the operation of the caveat was first made by Wheeler J on 26 July 2002. The caveat was further extended by order of Templeman J on 2 August 2002. On 28 August 2002 Pullin J further extended the operation of the caveat until further order. Both Templeman J and Pullin J made further directions requiring, amongst other things, the filing of a memorandum as to agreed facts and outstanding issues, and of affidavits and written submissions in relation to the matters that remained in issue in the proceedings.

(Page 5)

The caveat

9 The caveat is registered against all that piece of land being lot 501 on diagram 87869 being the whole of the land comprised in certificate of title volume 2049, folio 273, and having the street address of 22 Nanven Place, Rivervale (the Nanven Place property). The defendants are registered as proprietors as joint tenants in the Nanven Place property. The defendants oppose the application of the administrators.

10 The caveat, which was purportedly signed by Alice Marshall and dated 17 April 2002, claims an estate or interest in the Nanven Place property as follows:

"An estate in fee simple as beneficiary of a resulting trust."

11 The caveat also forbid absolutely any dealings with the subject land. A statutory declaration apparently made by Alice Marshall on the same date in support of the caveat more particularly describes the caveatable interest as "an interest as beneficiary of a resulting trust equivalent to 49.84% of the whole of the land, on the matters stated above." In other words, the broad claim to an estate in fee simple as beneficiary of a resulting trust is narrowed by the statutory declaration in support. Whether or not this should result in the caveat being considered irregular on its face, is considered further below.

Agreed material facts

12 The parties have agreed the following material facts:

(1) Alice Marshall lodged the caveat over the Nanven Place property on 18 April 2002 supported by a statutory declaration made by her which is annexure AM3 to the affidavit of Alice Marshall sworn 23 July 2002 and filed in these proceedings.

(2) On 9 July 2002 Alice Marshall received a s 138B notice pursuant to the Transfer of Land Act requiring her to obtain a Supreme Court order extending the operation of the caveat within 21 days.

(3) Alice Marshall was the sole registered proprietor of a property located at 33 Canterbury Terrace, East Victoria Park, up until some time in 1976.

(4) In 1976 Mr Stewart Marshall purchased a property at 86 Lyall Street, Redcliffe, and became the sole registered

(Page 6)

proprietor thereof on 17 June 1976. Mr Stewart Marshall was a member of the armed services at that time.

(5) On or about 22 August 1980 Alice Marshall and Mr Stewart Marshall purchased a property at Ellesmere Road, Lynwood, as tenants in common in equal shares.

(6) The purchase price for the Ellesmere Road property was $30,450.

(7) The Ellesmere Road property was sold on or about 19 October 1983 and the sale price was $38,980.

(8) On or around 7 October 1992, Mr Stewart Marshall purchased and became the sole registered proprietor of a property located at 113 Bulong Avenue, Redcliffe. The purchase price paid by Mr Stewart Marshall for the property was $80,000. The transfer F6989 evidencing this dealing appears at annexure AM7 to the affidavit of Alice Marshall referred to above.

(9) Mr Stewart Marshall remained as the sole registered proprietor of 86 Lyall Street, Redcliffe, until around 1994.

(10) On or about 10 October 1994, Mr Stewart Marshall sold the property at 86 Lyall Street, Redcliffe, for the sum of $110,000. The transfer F69716 evidences this dealing and appears as annexure AM8 to the affidavit of Alice Marshall referred to above.

(11) On or about 23 August 2001, Mr Stewart Marshall sold the property at 113 Bulong Avenue, Redcliffe, for the sum of $201,250. The transfer H847916 evidencing this dealing appears at annexure AM9 to the affidavit of Alice Marshall referred to above.

(12) Alice Marshall did not receive any part of the proceeds of the sale of the Bulong Avenue property although the defendants say that Alice Marshall is not entitled to any part thereof.

(13) On or about 23 August 2000 the defendants purchased the Nanven Place property in respect of which they paid the sum of $218,750. The transfer H847914 evidencing this dealing appears as annexure AM10 to the affidavit of Alice Marshall referred to above.

(Page 7)

Facts and matters not agreed

13 The parties do not agree a number of facts or matters alleged in the affidavit of Mrs Marshall sworn 23 July 2002, namely:

(1) that in 1976 Mr Stewart Marshall approached Mrs Marshall with a proposal that she sell her property located at 23 Canterbury Terrace, East Victoria Park, and utilise the proceeds to assist him in acquiring a property located at 86 Lyall Street, Redcliffe;

(2) that Alice Marshall considered Mr Stewart Marshall's proposal referred to above and agreed to it and thereafter proceeded to sell her Canterbury Terrace property or that Alice Marshall subsequently contributed the sum of $18,000 plus stamp duty on the purchase of the Lyall Street property and that Mr Stewart Marshall contributed the sum of $12,000 thereto, which amount was financed by way of a loan obtained by him through the defence force;

(3) that at the time of the purchase of the Lyall Street, Redcliffe, property Mr Stewart Marshall represented to Alice Marshall that she could not be recorded on the title to the property as this would prevent him from obtaining a loan from the defence force and for that reason Alice Marshall was not registered as a joint proprietor;

(4) that Alice Marshall contributed solely to many improvements to the property at 86 Lyall Street, Redcliffe, including the installation of a concrete driveway, two sheds, water bore and reticulation, carport, internal decorations and installation of an air-conditioning unit;

(5) that Mr Stewart Marshall stated to Alice Marshall on a number of occasions that the Lyall Street property was two-thirds Alice Marshall's and the balance his, based on the contributions that Alice Marshall had made both to the acquisition and to the improvement of the property; or that, on that basis, Alice Marshall considered that Mr Stewart Marshall held that property on trust for himself and for her in the proportions one-third to two-thirds;

(6) that in 1994 Mr Stewart Marshall proposed to Alice Marshall that the Lyall Street property be sold and that the proceeds be utilised to build a granny flat on property that had been purchased by Mr Stewart Marshall on or around

(Page 8)

7 October 1992 being the Bulong Avenue property; or that pursuant to the proposal Alice Marshall was to be entitled to reside in the granny flat for the rest of her life and after her death her proportion of the entire property would pass to her estate to be dealt with according to her will;

(7) that Alice Marshall agreed to the sale of the Lyall Street property referred to above on the proviso that the proceeds represented by her interest therein be used to build a granny flat on the property at 113 Bulong Avenue, Redcliffe; and that the defendant, Mr Stewart Marshall, advised Alice Marshall that her share of the Lyall Street property was valued at $65,000 which Alice Marshall calculates now to be in fact incorrect; and that Alice Marshall asserts that her share of the property based on a two-thirds to one-third holding would be valued at $73,333; and that Alice Marshall did not receive any of the proceeds of the sale of the Lyall Street property and was told by Mr Stewart Marshall that those proceeds were to be used to construct the granny flat on the Bulong Avenue property;

(8) that subsequently Mr Stewart Marshall advised Alice Marshall that the cost of construction of the granny flat was in excess of previous estimates; and that therefore Alice Marshall contributed a further $15,000 from her own funds towards the construction of the granny flat on the Bulong Avenue property;

(9) that Alice Marshall asserts that the total of her contributions to the improvement of the Bulong Avenue property had a value of $88,333.33 being the value of her interest in the Lyall Street property, which Mr Stewart Marshall represented to Alice Marshall was utilised in the construction of the granny flat, together with the further sum of $15,000 referred to above which again was contributed to the construction of a granny flat; and that Alice Marshall further asserts that on the basis that Stewart Marshall had contributed $80,000 towards the acquisition of the Bulong Avenue property, that is the original purchase price, the defendant Stewart Marshall held the property on trust for himself and for Alice Marshall in the proportions 47.5 per cent and 52.5 per cent; and that Alice Marshall asserts that based upon her proportionate interest

(Page 9)

in the Bulong Avenue property, her share of the sale proceeds from that property amount to $105,656.25;

(10) that the proceeds of the sale of Bulong Avenue, Redcliffe, were utilised by Mr Stewart Marshall to purchase the property at Nanven Place, Rivervale;

(11) that Alice Marshall asserts that her proportionate share in the Nanven Place property is 48.3 per cent as a result of the Bulong Avenue property having been sold and the entire proceeds (inclusive of her proportionate share thereof) utilised to purchase the Nanven Place property;

(12) that Alice Marshall claims that the defendants hold the land on trust for herself and for themselves in proportions 48.3 per cent to Alice Marshall and 51.7 per cent to the defendant and that therefore Alice Marshall has a caveatable interest in the said property.

Objections to affidavit evidence filed on behalf of plaintiffs

14 In relation to the facts that are not agreed, it is necessary to have regard to the evidence adduced by way of affidavits filed on behalf of the parties in these proceedings. The parties rely wholly on the affidavit evidence tendered respectively by them. No party sought the opportunity to cross-examine any deponent on his or her affidavit. However, objections were taken by the defendants to some of the content of the affidavits filed on behalf of the plaintiffs. It is appropriate to deal with these objections at the outset so that it is clear precisely what evidence is before the Court in support of the factual matters alleged by the plaintiffs.

15 The plaintiffs rely principally on the affidavits of:

(1) Mrs Marshall, sworn 23 July 2002 and referred to above.

(2) Mrs Annie Ford, sworn 22 October 2002.

(3) Mr John Marshall, sworn 24 October 2002.

(4) Mr David Marshall, sworn 24 October 2002.

(5) Mrs Sharon Hudson, sworn 24 October 2002.

16 In relation to each of these affidavits, objection is taken to portions thereof on the ground that they constitute hearsay evidence. Order 37 r 6(1) of Supreme Court Rules provides that, except in the circumstances provided for and, in particular, those set out in par (2) of the Rule, an affidavit must be confined to such facts as the deponent is

(Page 10)

able "of his own knowledge" to prove. By r 6(2)(a), an affidavit used for the purposes of interlocutory proceedings may contain statements of information and belief. However, these proceedings are for the final orders and do not constitute interlocutory proceedings. Accordingly, each of the affidavits referred to must be confined to those facts the deponent is able of his or her own knowledge to prove.

17 The objections taken in relation to the affidavit of Mrs Annie Ford are that each of the following paragraphs constitutes hearsay evidence: pars 6 - 12 inclusive, 14, 16, 18 - 19 inclusive, 23, 25, 31 - 36 inclusive, 41 - 42 inclusive, 44 and 49. Save for pars 11, 14 and 25, each of these paragraphs contains a statement of information and belief based upon what Mrs Annie Ford's mother, Alice Marshall, told her about particular matters. These are classically hearsay statements. One would normally expect the maker of those statements to give direct evidence of them. Accordingly, one would expect Alice Marshall to deal with these matters directly. However, as will become apparent, there is doubt about Alice Marshall's mental capacity to give evidence in respect of these matters. Even if Alice Marshall is held to be a "qualified person" as defined in s 79B of the Evidence Act 1906 (WA), each of the statements in question is an oral statement and does not appear in a document that may be admitted as documentary evidence pursuant to s 79C of the Evidence Act. The remaining portions of the affidavit that are objected to - pars 11, 14 and 25 - are in each case statements attributed by the witness to Mr Stewart Marshall. Given that he is the first-named defendant in these proceedings, what he is alleged to have said to Mrs Annie Ford may be admitted into evidence by reason of their status as admissions, a recognised exception to the hearsay rule.

18 As to the affidavit of Mr John Marshall, objection is taken on the ground of hearsay evidence to the following paragraphs: 6 - 12 inclusive, 14, 16, 20, 30, 32, 33, 40, 42 and 43. Each of the paragraphs objected to, save for par 12, contains statements of information and belief based upon what the deponent's mother, Alice Marshall, purportedly told him. It is hearsay evidence and should not be admitted into evidence. There is no basis for admitting such oral statements pursuant to the Evidence Act, as explained above in relation to the affidavit of Mrs Annie Ford. As to par 12 of the affidavit, that comprises oral statements allegedly made by the first-named defendant, Mr Stewart Marshall, to his brother, Mr John Marshall, and as such may be admitted into evidence as admissions.

19 In relation to the affidavit of Mr David Allen Marshall, objection is taken on the basis of hearsay evidence to the following paragraphs:

(Page 11)

pars 8 - 15 inclusive. Each of these paragraphs contains statements of information and belief based upon what the deponent's grandmother, Alice Marshall, purportedly told him. Each of these statements comprises hearsay and should not be admitted into evidence. There is no basis to admit such oral statements into evidence pursuant to the terms of the Evidence Act as explained above.

20 In relation to the affidavit of Sharon Hudson, objection is taken on the ground of hearsay evidence to the following paragraphs: 6 - 9 inclusive. Each of these paragraphs contains statements of information purportedly provided to the deponent, who is the former wife of Mr Stewart Marshall, by Mr Stewart Marshall and may be construed as admissions made by Mr Stewart Marshall. On that basis they may be admitted into evidence. I therefore overrule the objections taken to the affidavit of Sharon Hudson.

21 As to the affidavit of Alice Marshall, a question is raised by the defendants as to her mental capacity to make the affidavit. It might be observed that a similar question could also be raised in relation to her capacity to make the statutory declaration that she apparently made on 17 April 2002 in support of the caveat. Moreover, Mr Stewart Marshall, in an affidavit sworn 20 November 2002 in opposition to the plaintiffs' application, has referred to a statutory declaration of Alice Marshall made 8 October 2001 by her in the presence of Alistair Johnston (sometimes referred to as "Alister Johnson" in the papers filed), medical practitioner, of 113 Edney Road, High Wycombe, which is annexed as annexure SMM17. While it was apparently tendered as evidence in relation to the opposition of the interlocutory applications for extension of the caveat, to the extent that this statutory declaration is now relied upon by Mr Stewart Marshall upon the hearing of this application (as I understand it) it not only constitutes hearsay evidence which is objectionable for the reasons already rehearsed in these reasons, but in any event there must be doubts concerning the capacity of Alice Marshall when she made it.

22 The defendants submit that the Court should not admit into evidence the affidavit of Alice Marshall sworn 23 July 2002 or at least should not rely upon it given the question surrounding her capacity. As the defendants correctly note, the administration order made 20 November 2001 was made by reference to the "mental disability" of Alice Marshall. While it might be contended that the ground expressed in par (a) of the administration order, as set out above, is not a finding as to her absolute incapacity to make any judgments in respect of matters affecting her estate, the terms of it leave me in sufficient doubt as to her mental

(Page 12)

capacity to make an affidavit concerning her affairs, at least from 20 November 2001. At the very least, the making of the administration order raises a question as to her mental capacity at the relevant time. The effect of an administration order is provided for in s 77 of the Guardianship and Administration Act in these terms:

"(1) So long as there is in force a declaration by the Board under s 64(1) that a person is in need of an administrator of his estate, that person is –

(a) incapable of entering into any contract or making any disposition in respect of his estate or any part thereof or interest therein; or

(b) subject to Part 9, appointing or conferring any power on any agent or attorney in respect thereof,


except to the extent that the administrator, with the consent of the Board, in writing, authorises him to do so."

Nothing in this subsection says that the person in need cannot swear an affidavit, and nothing in subs (2), (3) or (4) of s 77 has that effect either.

23 However, a real question as to capacity must exist when a Board, set up under legislation to appoint an administrator of a person's estate when inter alia they are in need by reason of mental incapacity, makes an order on that ground. Indeed, s 4(2) of the Act sets up a statutory presumption that every person is capable of managing his or her own person, affairs and estate until the contrary is proved to the Board. Thus, the Board having made the order, the statutory presumption does not apply. Where a person has been proved to be suffering from a mental disorder so as to be legally incapable, the Board will presume that disability continues unless and until the contrary is proved. The burden of proving that the mental disorder has ceased rests upon the person asserting that capacity: Halsbury's Laws of Australia, par 285 - 90; Attorney-General v Parnther [1792] 29 ER 632 at 634. Evidence of alleged lucid intervals should be as strong and demonstrative as was the evidence to establish a mental disorder in the first place, in the event that it is suggested that a witness or deponent or other relevant person made a deposition or performed some act during a lucid interval: Attorney General v Parnther (supra) at 634.

24 When this application came on for hearing before me on 7 April 2003, counsel for the plaintiffs sought an adjournment of the hearing of the application, but was unable to support the application with any

(Page 13)

detailed reason beyond explaining to the Court that information had come to her attention which made it appropriate for her, as an officer of the court, to seek an adjournment. The Court, appreciating the sense of obligation exhibited by counsel, explained that, given the background to this application, the number of interlocutory orders extending the operation of the caveat and the pre-trial directions made to enable the hearing of the originating summons on that day, it would not seem appropriate to accede to a request for an adjournment without good cause disclosed to the Court. For example, the Court indicated a reluctance to adjourn the hearing of the application for two weeks. However, the Court indicated that it would be prepared to adjourn the hearing for a period of approximately two hours to enable counsel to consider her position and the position of her clients and to take any further instructions as may be required in relation to whatever the issue was that had caused her to apply for an adjournment. A short adjournment was then sought by counsel for the plaintiffs and was granted by the Court. At approximately 12.30 pm, when the matter came on again for hearing, counsel for the plaintiffs submitted an affidavit sworn by her during the short adjournment in which she explained the basis upon which the earlier adjournment had been sought. However, counsel also indicated to the Court that she was instructed no longer to press the application for an adjournment of the proceedings. Her affidavit, sworn 7 April 2003, states that, on 4 April 2003, she was advised by Dr Brian Devlin, a medical practitioner from whom she, on behalf of the plaintiffs, had sought medical advice as to Alice Marshall's mental capacity at the time she swore her statutory declaration dated 17 April 2002 in support of the caveat, that in his opinion Alice Marshall did not know, understand or approve the contents of the statutory declaration of that date. Her affidavit also expressly stated that her instructions were now to proceed with the hearing.

25 I should also note that in an affidavit of Alistair Johnston, sworn 1 April 2003 and filed on behalf of the defendants in the proceedings, Dr Johnston, a medical practitioner stated that on 8 October 2001 when Alice Marshall swore a statutory declaration of that date before him, he considered her to be fit to sign, having in his opinion "testimonial capacity".

26 Counsel for the plaintiffs indicated that the plaintiffs, in these circumstances, did not seek to rely upon the affidavits and statutory declaration of Alice Marshall. In the circumstances as they then appeared to me, albeit that the affidavit of counsel for the plaintiffs constituted hearsay evidence as to what it was that Dr Devlin had informed counsel, and notwithstanding the statements of Dr Johnston as to his view of the

(Page 14)

testimonial capacity of Alice Marshall as at 8 October 2001, I determine that I should not rely upon the matters sworn to by Alice Marshall in her affidavit sworn 23 July 2002 or her earlier statutory declaration made 17 April 2002 in support of the caveat. I also indicated to counsel for the defendants that, in such circumstances, I would be unwilling to place much weight, if any, on her statutory declaration made before Dr Johnston. As pointed out above, that statutory declaration constitutes hearsay evidence in the proceedings and should not be admitted into evidence in any event.

27 In the circumstances as they developed during the course of the hearing, it became apparent to all concerned, including counsel for the plaintiffs, that the evidential basis of the plaintiffs' application was considerably diminished by reason of the objectionable hearsay content of a number of paragraphs of the affidavits relied upon in support of the plaintiffs' application and by the inability of the plaintiffs to rely upon the affidavit of Alice Marshall sworn 23 July 2002 and her earlier statutory declaration of April 2002 in support of the caveat. They elected to proceed with their application in any event.

The evidence on which the plaintiffs rely

28 It is appropriate then to review the extent to which the plaintiffs' application is supported by the evidence before me. On the basis that I should have no regard to Alice Marshall's affidavit and earlier statutory declaration, the evidence adduced on behalf of the plaintiffs in relation to the facts that are not admitted may be summarised as follows. By reference to the affidavit of Mrs Annie Ford, there is her evidence to the following effect:

(1) As set out in par 13, it was her belief that although the Lyall Street property was purchased in Stewart Marshall's name it was only done this way to enable him to get a cheap loan, but that Alice Marshall in fact had a two-third interest in the house;

(2) As set out in par 14, at the time in 1976, Mr Stewart Marshall told Mrs Ford that Alice Marshall still owned two-thirds of the new house;

(3) As set out in par 15, Mrs Marshall moved into the Lyall Street house later in 1976 and resided there until about 1981 and during that time always referred to the house as "hers" and told her that although the house was in Stewart's

(Page 15)

name it was only done to enable them to purchase the property and that she had the greater interest in the house (this appears to comprise hearsay evidence although it was not expressly objected to on behalf of the defendants);

(4) As set out in par 24, a solicitor wrote to Mr Stewart Marshall stating that if he was unable to assist Alice Marshall with finance in purchasing the Ellesmere Road, Lynwood property she would have to take legal steps to obtain her share of the Lyall Street house (again this evidence is not objected to on behalf of the defendants);

(5) As set out in par 26, to the best of Mrs Ford's knowledge, her mother put a deposit on the Ellesmere Road house and Stewart Marshall borrowed the balance in his name and the house was purchased in his name;

(6) As explained in pars 30, 32, 37 and 38, Alice Marshall lived in the Ellesmere Street property, but following Mr Stewart Marshall's divorce from Sharon Hudson, Alice Marshall moved back into the Lyall Street property and lived in it with Stewart Marshall from about mid-1983;

(7) In about 1983, Stewart Marshall left the Lyall Street property and lived in a caravan in Caversham where he resided for quite some time;

(8) In about 1991, Stewart Marshall married Mrs Karaket Marshall;

(9) As set out in par 43, after much discussion Alice Marshall agreed to sell the Lyall Street house, and in 1994 it was sold for about $118,000. Mrs Marshall was about 84 years of age at the time and her health was beginning to decline. Accordingly, she decided to move into the Bulong Avenue house;

(10) As set out in par 46, in 2000 (as Mrs Ford later became aware) Mr Stewart Marshall obtained an enduring power of attorney in respect of his mother's affairs and that this was done without her knowledge;

(11) As set out in par 47, that her mother resided at the Bulong Avenue property until Stewart Marshall sold the property in about June 2001;

(Page 16)

(12) As set out in par 48, Stewart Marshall purchased another house with the proceeds of sale of the Bulong Avenue house, being the Nanven Place property;

(13) As set out in par 49, it was about this time in 2001 that Stewart Marshall told her that her mother had no interest in any of his property and that the Nanven Place property was in his name and she had no interest in it.

29 By reference to the affidavit of Mr John Marshall, there is evidence to the following effect:

(1) As set out in par 3, he is aware that his mother owned a house at 33 Canterbury Terrace, East Victoria Park, freehold, until 1976. She lived there for about 12 years.

(2) As set out in par 4, Stewart lived on and off at that address before 1976 with his mother as he had not married and had no dependants.

(3) As set out in par 5, in 1976 Stewart had a job as a driver with the RAAF and for a while resided at Barracks at Pearce.

(4) As set out in par 12, Stewart told John that their mother still owned two-thirds of the new house (being the Lyall Street house).

(5) As set out in par 13, Mrs Marshall moved into the Lyall Street house later in 1976 and always referred to the house as "hers".

(6) As set out in par 15, some time in around 1980 or 1981, Stewart was married to Sharon.

(7) As set out in par 17, John recalls that his mother seemed very upset and emotional at being asked to leave her house (being the Lyall Street house).

(8) As set out in par 18, after this in around 1981 John was aware that his mother and his wife Blanche searched for suitable accommodation and found a house in Ellesmere Road, Lynwood, which was close to his house at the time.

(9) As set out in par 19, the house in Ellesmere Road was badly in need of repair but it was cheap at about $30,000 and John was aware that his mother put an offer on the house but was unable to secure a loan without assistance.

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(10) As set out in par 21, John has seen a copy of a solicitor's letter addressed to Stewart while he was at the Guardianship Administration Board, but was not allowed to take a copy of it.

(11) As set out in par 22, in the letter Stewart was told that if he was unable to assist his mother would have to take steps to obtain her share of the Lyall Street house.

(12) As set out in par 23, John was aware that Stewart then agreed to assist Mrs Marshall in obtaining a mortgage. Stewart told John, however, that he would only contribute towards part of the repayments.

(13) As set out in par 24, to the best of John's knowledge Mrs Marshall put a deposit of $11,000 on the Ellesmere Road house which he believes was the total of her savings.

(14) As set out in par 25, John is aware that Stewart borrowed the balance in his name.

(15) As set out in par 26, in about 1981 Mrs Marshall moved into the house and John spent many months renovating it to make the house suitable for her.

(16) As set out in par 27, the house was maintained for the two, three-year period that Mrs Marshall lived there, the maintenance being done by John and his brother-in-law, Harold.

(17) As set out in par 28, John was aware that at this time his mother's dinners were prepared nightly by Blanche and delivered to Mrs Marshall by one of her grandchildren.

(18) As set out in par 29, during the period that Mrs Marshall resided at Ellesmere Road, Stewart did not contact or visit her, which caused her often to be upset.

(19) As set out in par 31, John visited his mother at Ellesmere Road on a daily basis.

(20) As set out in par 34, John was aware that his mother moved back in with Stewart in about mid to the end of 1983 after selling the Ellesmere Road, Lynwood house for about $38,000.

(21) As set out in par 35, Stewart and Sharon were divorced not long after that.

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(22) As set out in par 36, after the divorce Mrs Marshall continued to reside at Lyall Street (which has since been renamed Towton Street) and she continued to refer to the Lyall Street house as "her" house.

(23) As set out in par 37, John is aware that after Stewart was divorced he lived in a caravan in Caversham for quite some time.

(24) As set out in par 38, John continued to visit his mother at Lyall Street on an almost daily basis.

(25) As set out in par 39, Stewart remarried in about 1990 or 1991 to Karaket and then bought another house in Bulong Avenue, Redcliffe, where he resided with Karaket and her daughter, Stewart having paid about $80,000 for the house.

(26) As set out in par 41, Stewart is aware that Mrs Marshall agreed to sell the Lyall Street house and he believed it was sold for about $110,000.

(27) As set out in par 44, Mrs Marshall moved into the granny flat in the Bulong Avenue house in 1995. By this time her health was declining and she had trouble remembering things.

(28) As set out in par 45, in 2000 Stewart obtained an enduring Power of Attorney in respect of his mother's affairs.

(29) As set out in par 46, Mrs Marshall resided in the Bulong Avenue house until Stewart sold the property in about June 2001.

(30) As set out in par 47, John believes that in 2001 Stewart bought another house at 22 Nanven Place, Rivervale for about $218,000, using the proceeds of sale of the Bulong Avenue house.

(31) As set out in par 48, in 2001 Stewart told John that Mrs Marshall had no interest in the Nanven Place house and that it was in his name alone.

(32) As set out in par 49, John became aware in about 2001 that Stewart was a sole signatory to his mother's bank account and was told by Annie Ford that she had some of her mother's bank statements and believed large amounts of money had been withdrawn from the account by Stewart.

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(33) As set out in par 50, Annie Ford and John Marshall applied to the Guardianship Administration Board and were granted a hearing on 20 November 2001.

30 By reference the affidavit of Mr David Marshall, there is evidence to the following effect:

(1) As set out in par 2, Stewart Marshall is his uncle and Mrs Annie Ford is his aunt. Mr John Marshall is his father.

(2) As set out in par 6, he has always had a close relationship with his grandmother, Mrs Marshall, and visited her regularly from an early age and often confided in her matters of a personal family nature.

(3) As set out in par 16, David Marshall had a conversation with Stewart Marshall on 23 December 2001 and was told by Stewart Marshall that "As far as I am concerned, I don't owe your grandmother anything".

31 By reference to the affidavit of Mrs Sharon Hudson, there is evidence to the following effect:

(1) As set out in par 2, she was married to Stewart Marshall, but separated from him in May 1983 and divorced from him in September 1984.

(2) As set out in par 3, between the date of her marriage to Stewart and the date of their separation, she lived with Stewart at 86 Lyall Street, Redcliffe.

(3) As set out in par 6, a very short time after she had moved in with Stewart, he told her that his mother had a monetary interest in the Lyall Street house. He told her that she had contributed to the purchase of the property. He also told her that she was not registered as a co-owner of the property because that would have made it impossible for him to obtain his defence force loan.

(4) As set out in par 7, Stewart told her all the information referred to in the previous paragraph as part of an explanation as to his proposal that they finance the purchase of a property for Alice Marshall to live in.

(5) As set out in par 8, she remembers Alice Marshall informing Stewart and her that she had located a house in Lynwood that she would like to buy.

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(6) As set out in par 9, Stewart explained to her that it was due to Alice's interest in Lyall Street that he felt obligated to obtain a mortgage to assist Alice Marshall in purchasing the Lynwood property.

(7) As set out in par 10, as far as Mrs Hudson remembers, Stewart and his brother John obtained a loan to purchase the Lynwood property.

(8) As set out in par 11, Mrs Hudson remembers that repayments were made out of a joint account belonging to Stewart and her in respect of the loan repayments from the Lynwood property.

(9) At the time of her separation from Stewart Mrs Hudson believes that Alice Marshall was still living in the Lynwood property.

The first-named defendant's evidence

32 In his affidavit, Mr Stewart Marshall states that, prior to the purchase of the Lyall Street property, he had discussions with his mother as to their living arrangements. She had been living at 33 Canterbury Terrace. The house was in need of repair and renovation. He was a leading aircraftsman in the Royal Australian Air Force and predominantly stayed at Pearce. He says it was agreed between him and his mother that the Lyall Street property would be purchased for them both to reside in rent free. He says that the property was to be registered in his name alone and would be "mine". He says both parties would contribute to the purchase price. He was to be responsible for all rates, taxes and costs associated with the upkeep of the property. The purchase price was $30,000. He contributed $12,000 of the purchase price through a mortgage that he obtained with the Australian Housing Corporation. The loan was arranged by the air force at reduced interest rate. Mrs Marshall contributed $18,000 of the purchase price. Mr Stewart Marshall says:

"My mother's contribution to the purchase price was partly in consideration for my agreeing to pay the rates and maintenance costs of the property and partly a gift."

33 Mr Stewart Marshall says that before the purchase was made Mrs Marshall asked him to look into the taxation consequences of the transaction, specifically in relation to gifting duties. He says that it was necessary for submissions to be made on his mother's behalf to the Australian Tax Office by the local member of Parliament, Mr Ronald

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Davies. Mr Stewart Marshall produced a copy of the letter dated 3 June 1976 from the Australian Tax Office to Mr Davies advising that "In the circumstances described in your letter … and the agreement which accompanied it, the value of the gift made by Mrs Marshall is considered to be $5000". Mr Stewart Marshall recalls that an agreement concerning a gift in this amount was signed and forwarded to the Australian Tax Office, as suggested by the letter dated 3 June 1976, although he no longer has a signed copy of the agreement.

34 Mr Stewart Marshall says that, following the purchase of the Lyall Street property, Mrs Marshall moved into the house and he commenced commuting to Pearce for work each day. He says that he contributed solely to the rates for the property.

35 He confirms his marriage to Sharon in 1981. He says he discussed living arrangements with his mother prior to his marriage. A suitable property was found for her to live in at 42 Ellesmere Road, Lynwood. The property was purchased in both his mother's name and his name as tenants-in-common in equal shares. He says he contributed approximately $8000 to the purchase price and, in addition, paid all of the stamp duty and legal fees associated with the purchase. He says that, in respect of the balance of the purchase price, a mortgage was taken out over the property. An agreement was reached that the payments towards the mortgage would be met 50 per cent by him and 25 per cent by each of his brother John and his sister Annie. An arrangement was agreed to in August 1980 to that effect.

36 He recalls that only one or two payments were made in accordance with that agreement and that his brother refused to continue to contribute and that Annie Ford and himself subsequently met all payments over the Ellesmere Road property.

37 Mr Stewart Marshall says that, after his divorce from Sharon in 1984, his relationship with his mother was re-established. There had been animosity in the period of the marriage with the rest of his family. In November 1983, the Ellesmere Road property was sold and Mrs Marshall moved back into the Lyall Street property. He says he received none of the proceeds from the sale of the Ellesmere Road property.

38 In the mid-1980s, for a few years, Mr Stewart Marshall did not live in the Lyall Street property but his mother did. However, he continued to pay the rates and any maintenance costs on the property.

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39 During this period he was in a de facto relationship and later lived at the Caversham caravan park. However, at all times he continued to pay the rates and maintenance costs on the Lyall Street property.

40 On 12 February 1992 Mr Stewart Marshall married Karaket, the second-named defendant. On 7 October 1992 he purchased the property of 113 Bulong Avenue, Redcliffe. The purchase price was $80,000. It was a first registered mortgage for $70,000 with the BP Credit Union. Over the following few years, he became concerned about his mother's ability to look after herself. He made a suggestion for a granny flat to be built on the Bulong Avenue property and told his mother he believed the cost of constructing such a flat would be approximately $60,000. He said that, in order to fund such an undertaking, it would be necessary for him to sell his property at Lyall Street. He says that at no time during the discussions he had with his mother about the granny flat did he advise her that she had any interest in the Lyall Street property, nor to her being entitled to any of the proceeds of sale from the property in the event that it was sold. He says that at no time during the discussions did his mother raise any of these issues. Furthermore, as the moneys being used for the construction of the granny flat were his, no reference was made to his mother having any interest in the Bulong Avenue property following completion of the granny flat. He says his decision to make an offer to construct the granny flat for his mother was made out of concern for her welfare. She eventually agreed to that proposal.

41 The Lyall Street property was sold on 10 October 1994 for $110,000. Mr Stewart Marshall collected the whole of the sale proceeds after the discharge with the mortgage which were in about the sum of $100,000. He then made necessary arrangements for the granny flat construction. Mrs Marshall resided with Mrs Annie Ford and at the Bulong property while the construction was being carried out.

42 Mr Stewart Marshall says that he made virtually all the payments with respect to the construction of the granny flat. The only payment made by his mother was a payment of approximately $2000 for air-conditioning and for window tinting. At no time did he request any contribution from her. The granny flat was completed in around early 1995 and Mrs Marshall moved in then and resided there until 1998. In 1998, she began to have occasional falls and from mid-1998 to mid-2001 resided in the spare bedroom of the house.

43 On 23 August 2001, the Bulong Avenue property was sold for $201,250. On that day the defendants purchased a property at 22 Nanven

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Place, Rivervale. The purchase price was $218,750. The house is a four-bedroom, two-bathroom house. Mr Stewart Marshall says it was purchased as it was intended that his mother would continue to reside with himself, his wife and his step-daughter. However, soon after the Nanven Place property was purchased his mother moved and commenced living predominantly with his sister.

44 On 18 April 2002 his mother registered a caveat against the Nanven Place property.

45 As to the Lyall Street property, Mr Stewart Marshall denies that his mother referred to "her interest" in that property. He says that in all his discussions with his mother with respect to the Lyall Street property, she never made reference to "her interest" in the property.

46 Mr Stewart Marshall also says that at no time did his mother contribute to the deposit of the Ellesmere Road property - he did. He was unaware as to what happened to the proceeds of sale for that property.

47 Mr Stewart Marshall also expressly denies the account of the circumstances surrounding the sale of the Lyall Street property contained in pars 40 - 43 of John Marshall's affidavit and says that the account he has given of the construction of the granny flat is the correct one.

48 Mr Stewart Marshall also denies having told his former wife Sharon that his mother had a "monetary interest" in the Lyall Street property. He says that Sharon had no involvement in the proposal to finance the purchase of the Ellesmere Road property.

The requirements of s 138C of the Transfer of Land Act 1893 (WA)

49 Under s 138C(2)(a) of the Transfer of Land Act1893 (WA), the Supreme Court may extend the operation of the caveat if "satisfied that the caveator's claim has or may have substance". It is clearly established that this satisfaction will be achieved if the caveator satisfies the Court that there is a "serious question to be tried" in respect of the claim made: Pindan Pty Ltd v Sunny's Redevelopment Pty Ltd [2002] ANZ Conv R 51 at [1] - [9] per Murray J; Perpetual Pty Ltd v National Australia Bank [2002] WASC 13; His Grace Metropolitan Petar v Macedonian United Society of Western Australia Inc [2003] WASC 15 at [33]. The onus is on the caveator to so satisfy the Court.

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Whether the caveat is defective on its face

50 As set out above, the caveat claims on behalf of Mrs Marshall "an estate in fee simple as beneficiary of a resulting trust" and forbids absolutely the registration of any dealings. It does not claim any equitable interest pursuant to a constructive trust. However, in the submissions of counsel on behalf of the plaintiffs, both a constructive trust and a resulting trust, in that order, are contended for as providing support for the caveat. It is also contended on behalf of the plaintiffs that, if one is to make a mathematical calculation of the financial contributions said to have been made by Mrs Marshall to the purchase, first, of the Lyall Street property, then of the Bulong Avenue property, and finally, of the Nanven Place property, she has, in effect, made a 48.3 per cent contribution to the purchase of the Nanven Place property.

51 Therefore, an initial question arises whether the caveat so lodged is irregular on its face and as a result whether the application before me should be dismissed for that reason.

52 In Midland Brick Company Pty Ltd v Welsh [2002] WASC 248, Hasluck J considered at some length the circumstances in which a caveat may be considered irregular on its face by reason of the description of the estate or interest claimed in the land or the extent to which the caveat purports to prohibit dealings in the land. In particular, his Honour noted the decision of the High Court in Leros Pty Ltd v Terara Pty Ltd (1992) 174 CLR 407 and the decision of the Full Court of this Court in Kuper v Keywest Constructions Pty Ltd (1990) 3 WAR 419. His Honour noted that in Leros the Court found that the interest to be specified in the caveat should be "mentioned definitely or explicitly". However, the Court also accepted that, if a statutory declaration filed in support of the caveat left no doubt as to the extent and nature of the claim made, the caveat would not fall for lack of specificity.

53 Hasluck J also noted that, in a number of cases where a caveator had applied for the extension of a caveat, the Court had, in the special circumstances that presented themselves, required the matter or matters in issue to be resolved in an action and, instead of extending the caveat, had granted an injunction, supported by an undertaking as to damages given by the caveator, in order to maintain the status quo pending the resolution of the dispute. A recent example of the Court taking this course of action is Lydon v Ryding [2002] WASC 308 per McLure J.

54 In these circumstances, I am inclined to the view that the caveat is irregular on its face because of the breadth of the interest claimed, the

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failure to claim an interest as constructive trustee and the absolute nature of it. For those reasons, I think the caveat should not be extended.

55 However, that leaves the question whether there is, in effect, a serious question to be tried in respect of the resulting trust or constructive trust claimed by the plaintiffs. If it may be said that there is substance to either or both of these claims, then the alternative remedy of an interlocutory injunction designed to maintain the status quo pending trial but conditional upon the caveator commencing an action, and subject to an undertaking as to damages given by the plaintiffs, might be contemplated.

Whether there is a "serious issue to be tried"

56 As I understand the primary submission made on behalf of the plaintiffs, it is said that the defendants hold the Nanven Place property under a constructive trust as to portion thereof in favour of Mrs Marshall.

57 The circumstances in which a constructive trust will be found to exist depend, in part, upon whether it is said that the constructive trust is "institutional" or "remedial". As McLure J observed in Lydon v Ryding (supra) at [19], there has long been a debate as to whether a constructive trust is a right or a remedy and some commentators draw a distinction between institutional constructive trusts and remedial constructive trusts: see, for example, Ford H A J and Lee W A, Principles of the Law of Trusts, 3rd ed Law Book Co Australia 1996, par [22060]. Her Honour explained the position in this way:

"The dichotomy is between those categories of cases where it is practically certain that, if the court were asked to declare that a constructive trust existed, it would do so and other situations capable of leading to a declaration by a court that a constructive trust exists but in respect of which there may be uncertainty as to whether some other equitable remedy might be awarded. Included in the former category are a fiduciary receiving a bribe, a mortgagee who, having sold chattels, holds surplus proceeds after paying expenses and recouping what is owed on the mortgage, the constructive trust affecting a donor of a gift complete in equity and the constructive trust which gives efficacy to an agreement for mutual Wills. In such cases, the predictability of the outcome is such that the constructive trust is said to arise at the time of the relevant conduct and the beneficiary of the trust has a beneficial interest in the trust

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property from that time which (if the property is land) can be protected by caveat. In these cases, there is an obvious analogy with the equitable proprietary interests that arise when the remedy of specific performance is available such as in the case of a specifically enforceable agreement for the sale of land or an agreement to lease.

On the other hand, it is difficult to see how it can be said that in the case of a truly remedial constructive trust, a person has an estate or interest in property which can be protected by caveat before the remedy has been obtained."

58 Examples of remedial constructive trusts include those cases where undue influence, or unconscionable conduct, or estoppel compel the Court to conclude that a constructive trust should be declared because no other equitable remedy, short of the imposition of a trust, seems appropriate. This appears to be the explanation why the Court declared the existence of a constructive trust in Giumelli v Giumelli (1999) 196 CLR 101 at 112 - 113. As McLure J further observed in Lydon v Ryding (supra) at [18], the constructive trust in these circumstances is a remedial response to a claim for equitable intervention, not a pre-existing right which the Court recognises and gives effect to.

59 In Lydon v Ryding, the caveator alleged that he had transferred to his mother a one-fifth share of the property the subject of the caveat under coercion and in the light of an assurance that, in return for the transfer, he would receive a larger share of the property in her will. McLure J was satisfied on the disputed facts before her, including an alleged agreement that gave rise to arguable claims in undue influence, unconscionable conduct and estoppel which may result in a Court granting proprietary relief by way of a constructive trust of an interest in the property. While her Honour plainly considered that the constructive trust contended for would be "remedial" in nature, and thus it may be questionable whether it can be protected by a caveat before the remedy is granted, she found it unnecessary to determine that question in the case before her because the caveat was considered to be irregular on its face: see Lydon v Ryding (supra) at [20] and [21].

60 However, in other instances it has been accepted that the prospect of a Court granting a remedial constructive trust is sufficient to constitute a caveatable interest and it has also been suggested that the concept of an "interest" under s 137 of the Act is a broad one: see, generally, the discussion concerning the nature of a caveatable interest under s 137 of

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the Act in Midland Brick Company Pty Ltd v Welsh (supra) at [34] - [44] per Hasluck J.

61 For present purposes, I need not resolve the issue whether a caveat may protect an interest which, it is claimed, should be protected by the remedy of a constructive trust. However, it may be that, if a constructive trust is an arguable remedy, then the interest it would protect may possibly be recognisable as an "estate or interest" in land for the purposes of s 137 of the Act.

62 As to the constructive trust, in Muschinski v Dodds (1985) 160 CLR 583 at 614, Deane J (with whom Mason J agreed) said:

"Viewed in its modern context, the constructive trust can properly be described as a remedial institution which equity imposes regardless of actual or presumed agreement or intention (and subsequently protects) to preclude the retention or assertion of beneficial ownership of property to the extent that such retention or assertion would be contrary to equitable principle."

63 However, a constructive trust is not imposed merely because fairness, or justice, or good conscience seems to require it. In Muschinski v Dodds, Deane J added, at 619 - 620:

"Like most of the traditional doctrines of equity, it operates upon legal entitlement to prevent a person from asserting or exercising a legal right in circumstances where the particular assertion or exercise of it would constitute unconscionable conduct. … [T]he principle operates in a case where the substratum of a joint relationship or endeavour is removed without attributable blame and where the benefit of money or other property contributed by one party on the basis and for the purposes of the relationship or endeavour would otherwise be enjoyed by the other party in circumstances in which it was not specifically intended or specially provided that that other party should so enjoy it. The content of the principle is that, in such a case, equity will not permit the other party to assert or retain the benefit of the relevant property to the extent that it would be unconscionable for him so to do … "

The decision of the High Court in Baumgartner v Baumgartner (1987) 164 CLR 137 at 148 is broadly to similar effect.

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64 The decisions in Muschinski v Dodds and in Baumgartner v Baumgartner have been applied in the context of close personal relationships, for example, de facto relationships, which have broken down, in order to prevent one party (the holder of the legal title to the property) unconscionably denying a claim to an interest in the property by the other party; examples include Miller v Sutherland (1990) 14 Fam LR 416 and Booth v Beresford (1993) 61 SASR 475.

65 It should be noted that, in each of these cases, the interest claimed by reference to the constructive trust was claimed in respect of the particular property in which the caveator claimed to have expended personal effort, or money, or the like.

66 In the present case, it is submitted on behalf of Mrs Marshall that the constructive trust arises in respect of the Nanven Place property because she has, in a sense indirectly, contributed part of the purchase price in the purchase of that property. The circumstances in which it is said she made this contribution, which equity should recognise through the grant of a remedial constructive trust are: that she initially had an equitable interest in the Lyall Street property which, following its sale, was converted into money; that this money was expended in whole or in part in the improvement of the Bulong Avenue property, which was at the time registered in the name of Mr Stewart Marshall; and that on the sale of Bulong Avenue, the whole of the sale proceeds were applied in the purchase of the Nanven Place property.

67 I think it is also suggested, in the way the submission has been put on behalf of Mrs Marshall, that Mr Stewart Marshall initially held the Lyall Street property, which was registered in his name alone, as a constructive trustee for at least a portion of the beneficial interest in the property and that he breached the terms of that trust by causing her to sell the Lyall Street property and applying the whole or part of the proceeds in the improvement of the Bulong Avenue property without acknowledging that she gained any interest in the Bulong Avenue property and later in the Nanven Place property. Accordingly, it seems to be suggested that Mrs Marshall is, in effect, entitled to claim an interest pursuant to a constructive trust in the Nanven Place property presently registered in the name of the defendants, because it represents, at least in part, the interest that Mrs Marshall had in the Lyall Street property and would continue to have but for the breach of fiduciary obligation by Mr Stewart Marshall.

68 In the alternative, it is said on behalf of Mrs Marshall that a resulting trust arises due to the fact that Mrs Marshall conferred a benefit upon her

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son Stewart and placed reliance upon his promise that she would be entitled to an equitable interest in the properties as a result of making monetary contributions: Barclays Bank v Quistclose Investments Ltd [1970] AC 567.

69 It is further said that, even though the beneficial interest in the Lyall Street property was realised and utilised to improve the Bulong Avenue property, and later realised and utilised to purchase the loan the subject of the caveat, Mrs Marshall is able to claim a beneficial interest in the land based upon the principle of tracing: Re Hallets Estate (1880) 13 Ch D 696. It is contended that, where an asset has been purchased with mixed funds, the funds belonging to a beneficiary in the trust, the beneficiary is entitled to an equitable charge over a portion of the property; and that, where the property increases in value, the apportionment principle is applied with the beneficiary becoming entitled to a portion of the increase in value commensurate with the percentage of the contribution made: Scott v Scott (1963) 109 CLR 649.

70 I am not at all satisfied that the evidence in this case can support the claim of a resulting trust. Apart from the account of the circumstances said to surround the acquisition of the Lyall Street property provided by Mr Stewart Marshall, there is little before me to suggest that a promise was made, or anything said expressly by Stewart Marshall to his mother, Alice Marshall, to satisfy the alternative contention put to the Court on her behalf in respect of either the Bulong Avenue or Nanven Place properties.

71 The submission concerning the resulting trust made by the plaintiffs appears to be premised on the contention that, by reason of the alleged promise, a presumption of advancement can be rebutted. It is accepted that a resulting trust may arise in certain circumstances where a person provides purchase money for property, but the property is vested, so far as the legal interest is concerned, in another person. A resulting trust is raised in such circumstances because the Court presumes, in the absence of evidence to the contrary, that the person paying the purchase money intended to obtain the beneficial interest in the property. But where the legal title is, on a purchase, vested in someone whom the person providing the purchase money is under an obligation to support, such as a child, there is no presumption of a resulting trust in favour of the purchaser; there is, on the contrary, a presumption that the property was vested as an absolute gift or as an advancement: Martin v Martin (1959) 110 CLR 297; and see, generally, Jacobs' Law of Trusts in Australia, 6th ed, editors, R P Meagher and W M C Gummow at [1212]. In Nelson v Nelson (1994) 33 NSWLR 740, the New South Wales Court of Appeal

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held that the presumption applied between mother and adult child. A further appeal to the High Court was determined on other grounds (see (1995) 104 CLR 538).

72 In the circumstances of this case, particularly having regard to the fact that the caveat is supported by the claim to a resulting trust, the presumption of advancement would appear to apply such that any contribution made by Mrs Marshall to Mr Stewart Marshall in respect of the purchase of the Lyall Street property, in the first instance, should be treated as an absolute gift or an advancement. Moreover, the evidence produced by Mr Stewart Marshall of the dealings with the Australian Taxation Office concerning Mrs Marshall's assistance in relation to the purchase of the property and the advice that $5000 could be regarded as a gift without any taxation consequences following, rather tends to confirm the presumption of advancement in a case such as this and suggests it might be difficult to rebut that presumption.

73 The remaining question then is whether, on the disputed facts before the Court, it can be said that there is a "serious issue to be tried" in respect of the alleged constructive trust claim in respect of the Nanven Place property. In relation to an application to extend a caveat, it is accepted that, if there is a serious question to be tried, the question will not, except in the most exceptional circumstances, be determined on an originating summons: Porter v McDonald & Registrar of Titles [1984] WAR 271 at 276; Halse v Embling, unreported; FCt SCt of WA; Library No 970734; 22 December 1997. It is not usually appropriate to attempt to resolve conflicts of evidence on affidavit: see Halse v Embling (supra) per Parker J at page 4. As Brinsden J observed in Deputy Commissioner of Taxation v Corwest Management Pty Ltd[1978] WAR 129 at 141:

" … the jurisdiction granted by s 138 should not be exercised so as to remove a caveat unless the case is one in which it is patently clear that the estate or interest sought to be protected cannot be made out and that degree of clarity will not emerge if there are disputed questions of fact, when the respondent should be left to proceed by way of action to establish the claimed interest or estate."

The same general principle applies in relation to the grant of an interlocutory injunction. In both cases, questions of the balance of convenience may also be relevant.

74 Mr Stewart Marshall asserts that, while his mother contributed $18,000 to the purchase of the Lyall Street property, her contribution was

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intended to result in a right to tenancy of the property, perhaps a life tenancy. It was not, however, intended to result in her gaining any other interest in the property. As I have noted in relation to the submission concerning the resulting trust, this assertion is supported by the documentary evidence and dealings with the Australian Taxation Office at the time. Mr Stewart Marshall and Mrs Marshall appear to have gone to the trouble, through their local member of State Parliament, to clarify the position concerning the taxation consequences of her contribution to the purchase. The advice received was that $5000 could be regarded as a gift without any taxation consequences following. It appears that advice was acted upon.

75 However, the Australian Taxation Office's advice was apparently provided on the basis of the "circumstances described" in an agreement enclosed with the letter of the Member of Parliament dated 27 May 1976, which are not before me. It is not entirely clear whether the Australian Taxation Office was advised of an $18,000 contribution to the purchase price to be made by Mrs Marshall, or some other circumstance or agreement.

76 Nonetheless, this evidence supports the view that Mrs Marshall intended, at the time of the purchase of the Lyall Street property, to make a gift of at least a portion of her contribution and tends, therefore, to support the claim of Mr Stewart Marshall that his mother was prepared to assist him to become the purchaser of the house on the understanding that she would have the right to reside in it.

77 Mr Stewart Marshall, on his view of the facts, acted consistently with this arrangement by not disturbing Mrs Marshall's tenancy at Lyall Street. However, eventually he says she accepted his proposal to sell Lyall Street, assist financially with the construction of the granny flat at Bulong Avenue, and then to live there. He says that she agreed to this because of her failing health. At that point, he says his mother no longer had any interest in Lyall Street and did not gain any interest in Bulong Avenue. She did not expect to have an interest in Bulong Avenue. However, she knew she could reside in the granny flat, or with him at Bulong Avenue, as long as she liked. Thus, when Bulong Avenue was sold, Mrs Marshall did not have any retained interest as constructive trustee, or otherwise, in the property or the proceeds of sale. Accordingly, she had no such interest in the Nanven Place property when Stewart Marshall and his wife purchased it utilising the proceeds of sale of Bulong Avenue.

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78 Against this evidence, the plaintiffs, in the absence of any admissible evidence from Mrs Marshall, are really able to say very little. What they do say, may be said to raise an issue as to whether or not Mrs Marshall was entitled to be treated at material times as a constructive trustee in the Lyall Street property. Mrs Ford says that Mr Stewart Marshall told her in 1976 that Mrs Marshall still owned two-thirds of the new house and that Mrs Marshall always referred to the house as "hers". Mr John Marshall confirms this evidence concerning the proprietary assertions and behaviour of Mrs Marshall in respect of the Lyall Street property. Mrs Hudson, the former wife of Mr Stewart Marshall, says that he told her, soon after she moved into the Lyall Street property with him, that his mother had a "monetary interest" in the Lyall Street house. She says he told her that his mother had contributed to the purchase of the property and that the only reason she was not registered as a co-owner of the property was because it would have made it impossible for him to obtain a defence force loan at the time.

79 As I have noted, while Mr Stewart Marshall does not accept this account of events and puts a different construction on the financial relationship and arrangements between himself and his mother in respect of the Lyall Street property, there is an issue on the disputed facts put forward by the parties that, at a material time in the past, Mrs Marshall may have been entitled to be treated as a constructive beneficiary of the Lyall Street property, at least as to a portion of the beneficial ownership thereof. However, the issue does not end there, because of the subsequent property dealings in Bulong Avenue and Nanven Place.

80 The evidence adduced on behalf of the plaintiffs says relatively little about the financial arrangements between Mr Stewart Marshall and Mrs Marshall in respect of the Bulong Avenue property. It is important to understand what those arrangements were, because, whatever equitable interest Mrs Marshall may have had in Lyall Street, she may have given it up on the sale of the property. Thus, it seems to me to be necessary to inquire as to the apparent dealings between Mrs Marshall and Mr Stewart Marshall in relation to the improvements carried out at Bulong Avenue.

81 Mrs Ford says that, in 1994 after much discussion, Mrs Marshall agreed to sell the Lyall Street property and decided to move into the Bulong Avenue house. However, she is unable to say anything further about the financial arrangements between Mr Stewart Marshall and her mother in respect of the Bulong Avenue property. All she is able to say is that, in 2001, Mr Stewart Marshall told her that her mother had no interest

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in any of his property and that the Nanven Place property was in his name and she had no interest in it.

82 Mr John Marshall can add little to what his sister, Mrs Ford, says about the circumstances in which Mrs Marshall came to sell the Lyall Street house and move into a granny flat at the Bulong Avenue property. What he does say is that, by this time in 1995, Mrs Marshall's health was declining and she had trouble remembering things. He also says, as does Mrs Ford, that in 2001 his brother, Stewart, told him that Mrs Marshall had no interest in the Nanven Place house and that it was in his name alone.

83 Mr Stewart Marshall appears to have maintained his position throughout, and certainly at the time the Nanven Place property was purchased, that his mother did not have any interest in it. Mr Stewart Marshall is quite adamant about the circumstances in which the Lyall Street property was sold and his mother assisted with the construction of the granny flat at the Bulong Avenue property, and commenced living with him at that property. He says he suggested that the granny flat be built and told his mother he believed the cost of constructing it would be approximately $60,000. He told her that, in order to fund the undertaking, it would be necessary for the Lyall Street property to be sold. He says that at no time during these discussions with his mother about this was it agreed that she should have any interest in the Bulong Avenue property following completion of the granny flat. He says that the proposal was put forward entirely out of concern for her welfare, and she agreed to that proposal.

84 Mr Stewart Marshall says that the proceeds of sale of the Lyall Street property were in about the sum of $100,000. He used a portion of the proceeds of sale to meet the cost of construction of the granny flat. The balance he appears to have applied to his own uses, not considering that his mother was beneficially entitled to any portion of the proceeds of sale.

85 Mr Stewart Marshall then says that, when the Bulong Avenue property was sold in 2001, he applied the whole of the proceeds of sale towards the purchase of Nanven Place, although at this point, his mother decided to commence living with his sister, Mrs Ford. He had, however, expected that she would commence living with him and his wife, and her daughter, at the Nanven Place property. That is why he purchased a four-bedroom, two-bathroom home.

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86 As noted above, it is not the function of the Court, on the hearing of an application such as this, to resolve disputed facts simply by reference to differing accounts provided by deponents in their affidavits, which evidence has not been tested by cross-examination. In this case, the disputed facts, on the evidence before me, are really limited to the circumstances in which Mr Stewart Marshall was registered as proprietor of the Lyall Street property. After the sale of the Lyall Street property, there is little evidence, apart from Mr Stewart Marshall's account, as to what the arrangements were concerning the improvement of the granny flat at Bulong Avenue between him and his mother.

87 So far as the circumstances in which Mr Stewart Marshall became the registered proprietor of Lyall Street are concerned, there is some suggestion that Mrs Marshall was not registered as a co-owner only because that would have made it difficult, if not impossible, for Mr Stewart Marshall to acquire defence force funding at the time. But against that suggestion is the presumption of advancement, to which I have referred above, and the seemingly corroborative evidence of an intended gift or advancement in the letter of the Australian Taxation Office contemporaneous with the events.

88 When one further takes into account that this is not a case where the Lyall Street property itself is in contention, but a case where the plaintiffs claim an interest in equity in respect of the Nanven Place property, and that the Nanven Place property was purchased with the assistance of the proceeds of sale of the Bulong Avenue property, which property, in turn, was improved by the addition of a granny flat with the assistance of moneys arising from the sale of Lyall Street, an important question pertains to the circumstances in which the Lyall Street property was sold and the proceeds applied, at least in part, in the making of those improvements at Bulong Avenue. In that regard, there is precious little to show that Mrs Marshall did not unconditionally consent or agree to the sale of Lyall Street and the application of the proceeds of sale by Mr Stewart Marshall in the construction of the granny flat. In short, there is little evidence to contradict the account of Mr Stewart Marshall before the Court on this application.

89 Because of these factual circumstances, I am not satisfied that there is a "serious question to be tried" for the purpose of granting an interlocutory injunction pending the trial of an action between the parties as to whether or not Mrs Marshall has a relevant interest in the Nanven Place property.

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90 For the same reasons, if I had been satisfied that the caveat was not irregular on its face, I would not have been satisfied that, for the purposes of s 138C of the Transfer of Land Act, the claim of Mrs Marshall to a caveatable interest in the Nanven Place property was a claim that has, or may have, substance.

Conclusion and order

91 In these circumstances, the plaintiffs have not made out a case for the extension of the caveat, or otherwise for the grant of interlocutory relief, and I dismiss their application.