Antonio Pellicano as Executor for the Estate of Giuseppina Pellicano v Pellicano
[2016] WADC 89
•17 JUNE 2016
ANTONIO PELLICANO as Executor for the Estate of GIUSEPPINA PELLICANO -v- PELLICANO [2016] WADC 89
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WADC 89 | |
| Case No: | CIV:2106/2014 | 19-20 APRIL 2016 | |
| Coram: | TROY DCJ | 17/06/16 | |
| PERTH | |||
| 37 | Judgment Part: | 1 of 1 | |
| Result: | Plaintiff's claim dismissed Judgment for the defendant | ||
| PDF Version |
| Parties: | ANTONIO PELLICANO as Executor for the Estate of GIUSEPPINA PELLICANO SAVERINO PELLICANO CARMELLA MAY MEUNIER |
Catchwords: | Evidence Transfer of land Contract or express promise Dispute as to whether for consideration or gift Surrounding circumstances Turns on own facts |
Legislation: | Evidence Act 1906 (WA) Transfer of Land Act 1893 (WA) s10, s 56, s 57, s 58, s 82 and s 85 |
Case References: | EDWF Holdings 1 Pty Ltd v EDWF Holdings 2 Pty Ltd [2010] WASCA 78 Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd (2012) 45 WAR 29 Integrated Computer Services Pty Ltd v Digital Equipment Corporation (Australia) Pty Ltd (1988) 5 BPR 11 Ottavio v Hayvio Pty Ltd [2011] NSWSC 1125 Shirlaw v Southern Foundaries (1926) Ltd (1939) 2 KB 206 Stilk v Meyrick (1809) 2 Camp 317; (1809) 170 ER 1168 Taylor v Giampaolo [2004] WASC 109 Technomin Australia Pty Ltd v Xstrata Nickel Australasia Operations Pty Ltd [2014] WASCA 164; (2014) 48 WAR 261 Wirth v Wirth (1956) 98 CLR 228 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
SAVERINO PELLICANO
First defendant
CARMELLA MAY MEUNIER
Second defendant
Catchwords:
Evidence - Transfer of land - Contract or express promise - Dispute as to whether for consideration or gift - Surrounding circumstances - Turns on own facts
Legislation:
Evidence Act 1906 (WA)
Transfer of Land Act 1893 (WA) s10, s 56, s 57, s 58, s 82 and s 85
Result:
Plaintiff's claim dismissed
Judgment for the defendant
Representation:
Counsel:
Plaintiff : M M De Kerloy
First defendant : Mr A P Hershowitz
Second defendant : Mr A P Hershowitz
Solicitors:
Plaintiff : Mony De Kerloy
First defendant : Granich Partners
Second defendant : Granich Partners
Case(s) referred to in judgment(s):
EDWF Holdings 1 Pty Ltd v EDWF Holdings 2 Pty Ltd [2010] WASCA 78
Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd (2012) 45 WAR 29
Integrated Computer Services Pty Ltd v Digital Equipment Corporation (Australia) Pty Ltd (1988) 5 BPR 11
Ottavio v Hayvio Pty Ltd [2011] NSWSC 1125
Shirlaw v Southern Foundaries (1926) Ltd (1939) 2 KB 206
Stilk v Meyrick (1809) 2 Camp 317; (1809) 170 ER 1168
Taylor v Giampaolo [2004] WASC 109
Technomin Australia Pty Ltd v Xstrata Nickel Australasia Operations Pty Ltd [2014] WASCA 164; (2014) 48 WAR 261
Wirth v Wirth (1956) 98 CLR 228
- TROY DCJ:
The parties
1 Giuseppina Pellicano was the mother of Antonio Pellicano (the plaintiff) and Saverino Pellicano (the first defendant). Saverino was formerly married to Carmella Meunier (the second defendant).
2 With no disrespect intended it is convenient to refer to these four persons as Giuseppina, Antonio, Saverino and Carmella.
3 Giuseppina's last will is dated 5 September 2013 (pages 16 - 20 in exhibit 1 as tendered at trial). She died on 18 December 2013. Antonio is the executor of her estate. Probate was granted on 10 June 2014.
4 Thirteen years before her death, however, Giuseppina transferred property situated in Armadale to Saverino and Carmella. This litigation concerns that transfer. The plaintiff, Antonio, submits the transfer was for consideration which was never paid. The two defendants submit it was a gift.
The transfer of Giuseppina's property on 15 June 2000
5 Pages 1 - 3 of exhibit 1 consist of a T1 form under the Transfer of Land Act 1893 (the form). This form is dated 15 June 2000. It is at the heart of the case. It is attached to this judgment as annexure A.
6 Giuseppina, Saverino and Carmella signed the form.
7 By a clause immediately above the date and the signatures it is relevantly stated that:
The transferor (Giuseppina) for the consideration herein expressed, hereby transfers to the transferee (the two defendants) the estate and interest in the land above described.
8 On the form, under the heading 'Consideration', is the entry 'One Hundred and Sixty Thousand Dollars ($160,000)'.
9 The estate is in fee simple. The land is Lot 30 on Plan 2521 being the whole of the land in Vol 1290 Folio 769, situated at 107 Owtram Road, Armadale (the property).
Matters not in dispute
10 I find the following facts to be not in dispute. The property was acquired in 1984 by Antonio and Saverino's parents.
11 Giuseppina, Saverino and Carmella signed the form on 15 June 2000.
12 The property was transferred into Saverino and Carmella's names as joint tenants, as appears on the certificate of title.
13 Saverino and Carmella have never paid any sum to Giuseppina or to her estate in respect of that transfer of land.
14 Giuseppina lived at this property, rent free for the next 12 1/2 years until about 18 months before her death.
15 Saverino and Carmella sold the property after Giuseppina's death.
16 No express demand for payment of the $160,000 was made until 14 March 2014.
17 It is the case, however, that from June 2011 onwards, in a number of declarations and other documents, Giuseppina asserted that she or her estate was entitled to the sum of $160,000.
Synopsis of issue between the plaintiff and the defendants
18 The plaintiff submits that the defendants promised to pay $160,000 and that the promise is contained and set out in the form. The plaintiff sues upon that promise.
19 The plaintiff submits that the form identifies the parties and the property concerned. It states that in consideration for $160,000, Giuseppina transferred the estate in the property in fee simple to the two defendants.
20 If the form is to be properly construed as an enforceable promise by the defendants to pay $160,000 to Giuseppina, in the absence of any such payment, the plaintiff, on behalf of the estate, is entitled to judgment.
21 The defendants submit that it is not open to me to construe the form in such a way.
22 The defendants take issue with the proposition that the form, on its face, is an unambiguous promise to pay $160,000 and submit that there is no factual basis for the plaintiff to seek payment of the sum of $160,000 on the grounds of a default of a contractual obligation.
23 Before analysing the legal effect of the form it is necessary to consider the contextual background to the events of 15 June 2000. In doing so I make it clear that I have determined that it is open to me to have regard to what might be regarded as the surrounding circumstances.
The surrounding circumstances
24 Surrounding circumstances cannot be relied on to give rise to an ambiguity that does not otherwise emerge from a consideration of the text of the document as a whole, including whatever can be gleaned from that source as to the purpose or object of the contract: Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd (2012) 45 WAR 29 [76] (McLure P).
25 The word 'ambiguous' means any situation in which the scope or applicability of a contract is doubtful. Ambiguity is not confined to lexical, grammatical or syntactical ambiguity: Hancock v Wright [77].
26 The extent to which admissible evidence of surrounding circumstances can influence the interpretation of a contract depends, in the final analysis, on how far the language of the contract is legitimately capable of stretching. Generally, the language can never be construed as having a meaning it cannot reasonably bear: Hancock v Wright [78].
27 Pre-contractual surrounding circumstances are admissible for the purpose of determining whether a term is implied in fact. That may be because the stringent test for the implication of a term in fact excludes any possibility of an implied term contradicting the express terms Hancock v Wright [79].
28 In this case, very belatedly, the plaintiff relies in part upon the application of the rule of contractual construction relating to implied terms.
29 In Technomin Australia Pty Ltd v Xstrata Nickel Australasia Operations Pty Ltd [2014] WASCA 164; (2014) 48 WAR 261 [45] (McLure P) stated an intention to continue to apply the 'true rule' as explained in Hancock Prospecting [9], [74] - [81].
30 For the reasons that follow, there is, at the very least, ambiguity that arises from the absence of any express wording that there was an agreement that the defendants pay $160,000 on transfer.
31 More fundamentally, in order to assert lack of ambiguity and thereby shut out any consideration of the surrounding circumstances, the plaintiff is obliged to demonstrate the following proposition.
32 The plaintiff must establish that the clause 'the transferor (Giuseppina) for the consideration herein expressed (set out in a note above this clause as being $160,000), hereby transfers to the transferee (the two defendants) the estate and interest in the land above described' inevitably equates to, 'the defendants agree to pay $160,000 upon the transfer being effected'.
33 In my opinion it is not possible to construe that clause by its bare words as the plaintiff contends. Although the form provides in its terms that the transferor transfers the estate it does not provide that the transferee hereby agrees to the transfer. It uses no language consistent with an agreement by the transferee to do anything.
34 In my view the form is ambiguous and accordingly admissible evidence of surrounding circumstances may be taken into account in construing it.
The earlier wills of Giuseppina and her husband Michelangelo
35 By a will dated 6 June 1986, Antonio and Saverino's father, Michelangelo Pellicano, (exhibit 2, pages 2 - 4) left his estate to his wife Giuseppina. In the event that she did not survive him, the residue of the estate, including the property, would go to Saverino, and failing him, to Carmella.
36 Those provisions are mirrored by Giuseppina's will on the same date, 6 June 1986 (exhibit 2, pages 5 - 7).
37 In the later wills of Michelangelo and Giuseppina of 1 November 1991 (exhibit 2, pages 8 - 13) the same position is essentially maintained.
38 Michelangelo died before Giuseppina, it would seem between November 1991 and September 1996.
39 Giuseppina's will of 1 November 1991 was admitted into evidence pursuant to s 79C of the Evidence Act 1906 (WA). I conclude that, as of November 1991, Giuseppina intended that on her death it was Saverino who would receive the property. That is not, of course, determinative of the question of what conclusions can be objectively reached regarding Giuseppina's intentions in respect of this property in June 2000.
Events of September 1996
40 On 19 September 1996, five years or so after these wills, Mr Camillo D'Angelo, a solicitor practising in North Perth, sent a facsimile (part of exhibit 5) to a Mr Di Vincenzo. Mr Di Vincenzo seems to have been an accountant with Di Vincenzo & Associates and then Aspen Corporate.
41 Mr D'Angelo testified during the trial. He stated that he had received instructions from Giuseppina in relation to this matter.
42 Mr D'Angelo stated in this facsimile that Giuseppina's estimate was that the property was presently worth approximately $200,000. She was considering transferring it either to her son (Saverino) absolutely or settling it into a trust. She was, however, concerned what the capital gains tax and social security ramifications of doing so might be, as she was in receipt of an aged pension.
43 Mr D'Angelo requested some tax advice from Mr Di Vincenzo given his view that to pass any such interest in the land to her son, Giuseppina would effectively have to renounce her late husband's interest, or gift it. In either case, Mr D'Angelo believed that a disposal or disposition of an asset would take place.
Consultations with Aspen Corporate
44 On 7 July 1999, Aspen Corporate, accountants and tax advisers sent an account for $2,975 to the defendants (exhibit 2, pages 14 - 15) which revealed that discussions concerning refinancing had been afoot since November 1998. More particularly, on 21 December 1998, correspondence was generated regarding the transfer of title of the property.
45 This item is consistent with the exchange of correspondence between Mr Di Vicenzo and Mr D'Angelo.
46 On 28 June 1999 an attendance concerning calculation and research on the effects of title transfer on social security was recorded.
Events of 1998
47 On 17 August 1998, Mr Di Vicenzo sent a facsimile (part of exhibit 5) to Mr D'Angelo, entitled 're. Sam and Carmela Pellicano'. Mr Di Vicenzo's understanding, as expressed in this facsimile, was that Giuseppina wished to give the property to Saverino before her death, to avoid her will being contested. Secondly, because of the fact that Saverino's siblings had already been provided for with gifts of properties and cash prior to her husband's death.
48 In this facsimile, Mr Di Vicenzo advised against a transfer because it would adversely affect Giuseppina's pension and would incur stamp duties to be borne by Saverino on transfer.
49 In due course, when the transfer occurred, no means of avoidance of stamp duty was seemingly identified. An obligation to pay stamp duty arose and was discharged based upon an apparent valuation of $160,000 placed on the property. It was common ground that stamp duty would arise whether there was a transfer for consideration or a gift (ts 124).
50 On the form is a stamp from the Commissioner of State Revenue which suggests that stamp duty of $4,350 was paid assessed on a figure of $160,000. The witness Ms Durante-Maynard testified that this stamp duty would have had to have been paid prior to settlement, but she could not say who paid it.
51 Saverino did not remember whether any stamp duty was required to be paid by him, or if he did pay any stamp duty in respect of this transaction. Saverino did not check with his records before coming to court, whether or not he paid stamp duty on this transfer or whether the figure on the form of $4,350 was stamp duty or not. In my view it is probable that Saverino paid the stamp duty but I do not thereby disbelieve his testimony that he has no such recollection of doing so.
52 In his facsimile Mr Di Vicenzo asked Mr D'Angelo to consider alternatives.
53 Mr D'Angelo responded four days later on 21 August 1998 (part of exhibit 5) acknowledging that Giuseppina's concern about the will being contested was a very real one. Mr D'Angelo deferred to Mr Di Vicenzo on the issue of the effect of a transfer on stamp duty and pension entitlement.
54 On 24 August 1998 (exhibit 6) Mr Di Vicenzo wrote to Saverino and Carmella enclosing copies of the correspondence I have just referred to. On the basis of an assumed valuation of $170,000, Mr Di Vicenzo calculated that Giuseppina's pension would be reduced (given the apparent acquisition by her of $170,000) by $3,946 per annum. If Saverino was to recompense her for that, the cost to him in pre-tax earnings would be $6,000 per annum.
55 There is no reference in that advice to any interest that would be payable to Giuseppina on $170,000, if actually received, so as to offset the reduction in pension. I conclude that Mr Di Vicenzo's perception in August 1998, from his contact with all parties was it was not contemplated that an actual payment of such a monetary sum would occur.
Further discussions in March 2000
56 On 29 January 2001, Aspen Corporate (exhibit 2, pages 16 - 18) sent a further account for $4,910.95 to Saverino and Carmella which revealed that on 2 March 2000 discussions occurred between an employee of Aspen and 'Jeff at Centrelink' regarding gifting provisions.
57 Those discussions were only three months before this property was transferred to Saverino and his then wife. Giuseppina was receiving two pensions at the time, one from Italy and one from Australia. I have no doubt that whilst Saverino and Carmella wished the transfer to occur in 2000, as opposed to on death, they did not wish to adversely affect Giuseppina's entitlement to her pension, particularly her Australian pension.
58 On 15 March 2000 (part of exhibit 5) Mr Di Vicenzo wrote to Mr D'Angelo and observed 'you have previously given Mrs Pellicano Snr advice in respect leaving her property to her son (Saverino) in her will'.
59 Mr Di Vicenzo observed in his letter that Giuseppina and Saverino had now agreed that Giuseppina would transfer the property into Saverino's name and Saverino would grant to Giuseppina a life tenancy. Mr Di Vicenzo expressed the view that it was important that the life tenancy agreement conforms with Centrelink regulations otherwise it would affect her pension.
60 Mr Di Vicenzo further observed that
we have been verbally advised by Centrelink (seemingly a reference to the 2 March 2000 discussions) that providing the property is transferred and a life tenancy is granted, the transfer of the property will not be affected by the deeming or gifting provisions, and thus will not affect her pension.
61 Mr D'Angelo testified that from his experience Centrelink have various provisions that can deem certain transactions to be gifts which can affect pension entitlement. A life tenancy would guard against that although none was ever put in place.
62 In this letter Mr Di Vicenzo advised Mr D'Angelo to seek written confirmation from Centrelink confirming this verbal advice prior to any transfer.
Instructions to settlement agency in May 2000
63 Giuseppina and Saverino and Carmella instructed St James Settlements to conduct the June 2000 settlement. Ms Marisa Durante-Maynard, then a manageress at St James, had conduct. Ms Durante-Maynard is now a director of St James and gave evidence at the hearing.
64 On 4 May 2000 (exhibit 2, page 19) Ms Durante-Maynard wrote to Giuseppina. The letter is headed 'Re: sale of 107 Owtram Road, Armadale'.
65 Ms Durante-Maynard acknowledged Giuseppina's nomination of St James to act in the sale of the Armadale property and enclosed an unsigned appointment to act as settlement agent for vendor (page 21). This document refers to an authority to receive the sum of $160,000, less adjustments of rates and taxes, and an authorisation to hand over to Mr S and Mrs C Pellicano, or his agent, the title deed of the property in order to effect settlement.
66 Unsurprisingly Ms Durante-Maynard now has no independent recollection of the events concerning this sale. There is now no file at St James Settlements containing any documents relating to this property.
67 The plaintiff points to the reference in the authority to receiving a sum of $160,000 as supportive of its contention that the 15 June 2000 transaction was for monetary consideration, as opposed to a gift.
68 It seems clear that this was a pro forma document with spaces to insert the appropriate details. The details inserted, I find by Ms Durante-Maynard, are the entries '$160,000', 'Mr. S and Mrs. C Pellicano' and 'his'.
69 The apparent intention was that Giuseppina would sign this document, thus authorising St James to act on her behalf. It does not appear that this form was ever signed.
70 Ms Durante-Maynard testified that although the appointment to act document states 'please receive the sum of $160,000' that was just standard terminology. It did not necessarily mean that there would have been a contract of sale stipulating payment of $160,000.
71 Ms Durante-Maynard testified that the disbursement authority (exhibit 2, page 22) is an authority that a seller signs authorising the agent as to how to disburse their funds. The authority reads:
Upon receipt of the sum of $160,000, less settlement fees and disbursements please pay as follows:
72 There is then a reference, with no details, to an outstanding loan to be paid to (Mr and Mrs) N S & M Hall.
73 The appointment to act form at page 21 stated that Giuseppina was the vendor 'pursuant to a contract of sale dated 10 April 2000'. The stamp on the transfer of land form itself refers to an instrument date 10 April 2000.
74 No such contract has been located. Saverino testified that he knew nothing about a contract dated 10 April 2000 between Giuseppina and himself. It was never put to him that such a contract at one stage existed.
75 The plaintiff does not put its case on the basis of any agreement that existed prior to 15 June 2000. The plaintiff submits (ts 142) that there is no other evidence for anything else to have occurred.
76 I proceed on the basis that there was no written contract of that date, or indeed any other date.
77 Ms Durante-Maynard testified that if 10 April 2000 was the date that St James received instructions, as opposed to the date of a contract for sale, the document would always be left as 'pursuant to contract of sale'. That would be so even if there was not a contract of sale. It was not her practice to adjust the document to put in 'pursuant to instructions dated 10 April 2000'. She was not challenged on that point in cross-examination.
78 The stamp duty valuation form (exhibit 1, page 10) refers to a transfer from the surname Pellicano to Pellicano in consideration of $160,000. The estimated market value is also specified as $160,000.
79 Ms Durante-Maynard testified that it is her handwriting on the stamp duty valuation form. She inserted the estimated market value figure of $160,000. If she was not provided with a contract of sale, she would typically ask the client what the value of the property was.
80 Ms Durante-Maynard testified that the State Revenue valuation form, which was one of the enclosures to the 4 May 2000 letter, is only sent out to vendors when, like here, it is a related party transaction. Ms Durante-Maynard testified that the State Revenue Department would endeavour to ensure that the price of the property that is being transferred is the actual price, so as to ensure that the appropriate stamp duty is paid on the value of the property.
81 In respect of this form, Ms Durante-Maynard testified that if there was a contract for $160,000, the consideration figure that she inserted of $160,000 would have come from there. If there was no contract, the settlement agent would ask the client what the property value was, so they could then complete that section. That was because there needed to be consideration for the agency to lodge the form at the State Revenue Department. That was so even if there is no actual consideration. There still needed to be a value inserted for the purposes of the State Revenue Department.
82 Ms Durante-Maynard testified that the State Revenue Department valuation form is then lodged at the Office of State Revenue who send it off to the Valuer General's Office to get a valuation on the property to ensure, for the purposes of stamp duty, that the valuation provided was true.
83 Ms Durante-Maynard testified that St James needed a date when they entered a file onto their computer system. If there was no contract in place, it would be the date upon which they received instructions and opened a file.
84 Ms Durante-Maynard testified that there can be circumstances which arise where the agent prepares settlement documents, a property settles, but there is no contract of sale. This is mainly in a situation of related parties.
85 Ms Durante-Maynard could not say whether she was told that the appropriate figure was $160,000 because that was how much the parties had agreed would be the consideration for the transfer or because she had been told that was the value of the property.
86 Ms Durante-Maynard testified that she prepared the transfer of land form. She inserted the consideration under note 5. Ms Durante-Maynard testified that even if she had been told that the transfer was a gift, her agency would always include a figure.
87 Ms Durante-Maynard testified that in her experience Landgate had a difficulty with the use of word 'gift' under consideration. Ms Durante-Maynard testified that if she had inserted 'gift', Landgate would probably reject the form. She had experience of that at that time.
88 In cross-examination Ms Durante-Maynard accepted that she had no independent recollection of who gave her instructions or of who she met with. She might not have met with the transferor, Giuseppina, at all about this transaction.
89 I find that Ms Durante-Maynard was provided with this figure because she was told that that was the value as opposed to deriving it from a contract. In all probability, in my opinion, it was Saverino who so advised Ms Durante-Maynard. In accordance with her usual practice, she inserted that figure, as opposed to specifying that it was a gift.
90 Ms Durante-Maynard's credibility was not challenged. I accept Ms Durante-Maynard's evidence that she prepared the transfer of land form and that she inserted the consideration under note 5. I further accept Ms Durante-Maynard's evidence as to her practice at the time of always inserting a figure under the consideration section in a T1 transfer of land form.
91 I further accept Ms Durante-Maynard's evidence that even if there was no consideration, she would still insert a value in the State Revenue valuation form for the purposes of the State Revenue Department.
92 Accordingly, I find that the fact that there is a monetary figure for consideration entered under note 5 of the form and that the same figure is referred to in the State Revenue valuation form does not in itself support the plaintiff's assertion that the parties agreed that the defendants would pay $160,000 in consideration for the transfer of the property. In my view this evidence is neutral.
93 Ms Durante-Maynard testified that she was not familiar with s 82(2) of the Transfer of Land Act which provides that where the consideration for a transfer (in an approved form) is not a sum of money, the true consideration shall be concisely stated.
94 Even assuming that the entry at note 5 in this form would amount to a transgression of s 82(2) if the property was being gifted, it does not follow that Ms Durante-Maynard so understood. It is not possible to infer from the fact that Ms Durante-Maynard inserted a monetary sum, as opposed to 'gift', that as of 15 June 2000 she understood that the parties had agreed to a transfer on the basis that the $160,000 was actual consideration.
Discussions in May 2000 concerning a life interest for Giuseppina
95 By a letter dated 31 May 2000 (exhibit 2, pages 23 - 24) Mr D'Angelo wrote to Giuseppina referring back to a meeting of 22 May 2000. He confirmed her instructions to prepare a deed of life interest between herself and the two defendants in relation to the property. Mr D'Angelo advised that he had not been able to make contact with Centrelink so as to facilitate a meeting between them and Giuseppina.
96 Mr D'Angelo stated in the letter that the preferred method to create the life interest was in the document effecting the transfer. As noted that was not done. Mr D'Angelo stated in the letter that it is possible to effect the life interest after transfer, although he warned that this was likely to incur additional stamp duty.
97 There is some further relevant correspondence between Carmela and Mr Di Vincenzo in the months that followed settlement.
98 At 10.21 am on 9 October 2000 (part of exhibit 6) Carmela sent an email to Mr Di Vincenzo. It would appear from the exchange of emails at this time that they had had a meeting the previous week.
99 Carmela referred to the fact that she had received facsimile correspondence from Mr D'Angelo concerning a tenancy agreement.
100 It seems clear that Mr D'Angelo's letter of 31 May 2000 to Giuseppina was sent to Mr Di Vincenzo by facsimile on 6 October 2000 at 10.07 am (page 25). This letter was then passed onto Carmela. I find that Saverino and Carmela had not seen this letter in May 2000.
101 Carmela stated in her email that they were anxious to proceed to transfer but that there had been an absence of contact, both on their behalf and on behalf of the settlement agency, with Mr D'Angelo prior to settlement. In the absence of any evidence to the contrary I accept that to be the position.
102 Carmela noted in her email that it would be more expensive to proceed with a tenancy agreement post settlement. She declared an intention, referring to a number of conversations with representatives from Centrelink prior to settlement, to submit a tenancy agreement to Centrelink, so as to avoid any problem with the transfer affecting Giuseppina's pension. Carmela expressly stated 'there seems to be no problem with the transfer affecting Mum's pension'.
103 In my opinion, Saverino and Carmela, who had taken advice on this topic for more than two years, would have appreciated that if a monetary sum of $160,000 was at that time due to Giuseppina it would be bound to have an impact on her pension. If that was Carmela's understanding at that time she would not have expressed herself as she did in this contemporaneous email.
104 Mr Di Vincenzo responded by email at 3.09 pm on the same day, referring to his letter to Mr D'Angelo of 15 March 2000. Rather than meeting with Centrelink, Mr Di Vincenzo recommended that Mr D'Angelo determine what specific Centrelink requirements needed to be incorporated into a life tenancy deed.
105 Carmela responded by email the next day and advised that she would follow this advice. It is not clear whether she did so. It is surprising if it were not followed up, but for whatever reason no life tenancy deed was ever drawn up.
Evidence of the first defendant on the lead up to and the signing of the 15 June 2000 form
106 Somewhat unusually, both defendants testified whereas the plaintiff did not.
107 Saverino testified that he and Carmella had approached Aspen to assist them in transferring the property into their name.
108 Saverino testified that he spoke to his mother about it. He and Carmella wanted the property transferred at that particular time to save a lot of argument and so that they could carry on with their lives, as Antonio did when he received his share of the farm. The farm was another property formerly owned by Michelangelo and Giuseppina.
109 Saverino testified that he sought advice from Aspen concerning the way that they could transfer the property as a gift so as to not incur Giuseppina any hardship.
110 On occasions he drove his mother so that she could have direct discussions with Mr Di Vincenzo. Mr D'Angelo, who spoke Italian, also assisted Giuseppina, in relation to the transfer of the property. Aspen had recommended Mr D'Angelo.
111 In cross-examination Saverino was asked why it took a year and a half for the actual transfer to take place. Saverino was not sure why it took so long, but stated that it was a lengthy process to ensure that the gifting process took place, that Giuseppina was protected in every way that she could be and that she could stay in the property.
112 Saverino accepted that the only document that was ever generated, notwithstanding this lengthy process, was the transfer of land form.
113 It was put to Saverino that at par 11 of exhibit 3, an affidavit he had sworn on 20 November 2014, he stated that in 2000 he wished to refinance his business. In cross-examination Saverino denied that was because he was in financial trouble.
114 Saverino was also asked about the fact that in his affidavit he stated that he had initially discussed with Giuseppina, the prospect of her being guarantor for his extended loan using the property as security. Saverino said that his objective was to enhance their business at the time and finish their home. That was when he approached Giuseppina.
115 Saverino accepted he was trying to get the property as security for his other loans or for the refinancing, if Giuseppina was pleased to do that. He was taking advice from Aspen Corporate about that.
116 In his affidavit Saverino had also stated that:
Subsequently, I asked mum whether given that I was ultimately going to be given the Armadale property, whether she would consider transferring to me the property so that I could myself use the property as security on my extended business loan. Mum agreed to this.
117 Under cross-examination Saverino asserted that if Giuseppina was agreeable to the property being transferred prior to her death, that was what would occur. That was the advice that she was seeking from the lawyers to protect her in the gifting process.
118 Saverino testified that he signed the form based upon the advice of his lawyers and accountants. That advice encompassed how they would go about the transfer of the property as a gift to 'obviously protect Mum, and everything was done in order'.
119 Saverino testified that he had nothing to do with the lodging of the form or its preparation.
120 Saverino was asked about the reference to $160,000 in the form. Saverino testified that he understood that was from the settlement agency and the accountants, purely for the transfer of the properties in a gift situation.
121 Saverino testified that a valuation was done to his knowledge, but he had nothing to do with the sum of $160,000 being put in the form. He was given advice about how to go about this course by the settlement agency and Aspen.
122 In cross-examination Saverino accepted that the clause just above his signature did not sound like a gift. He stated that he signed the document on the advice of the settlement agent and the accountants that advised them. He could not remember if he took any specific advice about this document.
Evidence of the second defendant on the lead up to and the signing of the 15 June 2000 form
123 Carmella testified that she and Saverino were in discussions with their financial advisors who instructed them to sign the transfer of land form for the purposes of stamp duty.
124 She remembered going with Giuseppina to see Mr D'Angelo. The biggest issue, at that time, was if Giuseppina transferred the property over to Saverino, what impact it would have on her pension. They had discussions with Aspen Corporate about how to go about transferring the property into Saverino's name.
125 In cross-examination Carmella agreed that it seemed from the Aspen accounts that in 1998 they were discussing the transfer of title on Giuseppina's property.
126 It was put to her that at par 14 in an affidavit that she had sworn (exhibit 4) she said 'In 2000, the conflict between the family escalated to the point where mum came to us and said she wanted to give the property to us'.
127 The plaintiff submits that Saverino's evidence was to the effect that he went to Giuseppina and not the other way round.
128 As was the case with Saverino, Carmella could not explain, given the lapse of time, why she and her husband were having discussions with Aspen about the transfer of title of mother's property as early as 1998.
129 Carmella testified that Giuseppina's only wish was to be able to remain in the house for as long as she needed to or wanted to. She acknowledged that nothing was ever put into place legally 'it was just based on trust'.
130 Carmella testified that the house belonging to Saverino was always a topic of conversation. Giuseppina was happy to transfer the land over to Saverino. She just wanted to be able to remain in the house.
131 Carmella asserted that the reason they went to a lot of trouble with Aspen Corporate and lawyers and settlement agents was to give Giuseppina protection. She said it was always at the top of Saverino's mind to protect Giuseppina's interests.
132 Carmella testified that she signed the form, referring as it did to $160,000 consideration, as a result of one of the many discussions with their financial advisors at Aspen. It was just something that they were advised to do for the purposes of stamp duty. Carmella testified that stamp duty was not paid.
Conclusion as to Giuseppina's intentions as of June 2000
133 In the absence of any contemporaneous evidence to the contrary I conclude that in the period November 1991 - June 2000 it was always Giuseppina's intention that Saverino would receive the Armadale property.
134 I place greater emphasis on the consistency of evidence between 1996 and 2000 as to Giuseppina's intentions at that time than her assertions 11 years later that she had in some way been coerced.
135 The transfer that occurred in June 2000 meant, as it transpired, that title to the property passed to the defendants on 16 June 2000 rather than, at the earliest, 18 December 2013. Whilst it materially benefited the defendants for the transfer to occur prior to Giuseppina's death, there is no proper basis for me to conclude that any coercion was involved.
136 I find that at some stage before 15 June 2000 Giuseppina decided that she would give the Armadale property to Saverino before rather than after her death.
137 As I have concluded, the perception of the accountant advising Giuseppina in September 1998 was that it was not contemplated that on the transfer of the property to Saverino, there would be a corresponding monetary transfer to Giuseppina.
138 The perception of the same accountant in March 2000 was that Giuseppina would transfer the property into Saverino's name and Saverino would grant to Giuseppina a life tenancy.
139 This arrangement was the subject of discussions with Centrelink in March 2000 under the description 'gifting provisions'.
Absence of life interest
140 Although I accept that no deed of life interest was ever prepared, I find that all parties, together with their advisers, identified the granting of a life tenancy as the best mechanism to facilitate Giuseppina's interests in remaining at the property whilst avoiding any adverse impact on her pensions.
141 In my view the contemporaneous documents clearly show that the overriding motivation of the defendants was to achieve a transfer. There is no contemporaneous evidence that they harboured any feelings of hostility to Giuseppina at that time. Rather, the evidence is to the effect that they were engaging with professional advisers to ensure that her interests were not adversely affected.
142 It is correct that the best method of achieving that, namely the creation of a life tenancy deed, did not eventuate. It is a fact however that despite the absence of a life tenancy deed, Giuseppina continued to live at the property for the next 12 years.
143 If the objective was to force her into transferring over her property and then to deliberately decline to draw up a life tenancy deed, it might have been expected that she would have been forced out of the property earlier than she was. A more likely explanation, in my view, is that in the absence of any adverse consequences to her pensions following the transfer of 15 June 2000, (and there is no evidence of any such detrimental consequences) the imperative to draw up a life tenancy deed faded.
Interpretation of the 15 June 2000 transfer of land form
144 At its highest, the defendants submit, the form is potentially relevant as a post-contractual document, evincing a contract previously entered into. There is, however, no other written document which the plaintiff has produced amounting to a contract for sale.
145 Further, the plaintiff has not run its case reliant on any prior agreement giving rise to the obligation to pay $160,000. Its case stands or falls on the existence of an agreement or promise to pay arising from the form dated 15 June 2000.
146 Normally the existence of a contract or agreement is proved by an identifiable offer and acceptance. The defendants submit that an analysis of the form, and in particular the clause above the defendants' signatures, reveals that there has been no indication or offer by the defendants of a willingness to be bound to pay the specified consideration.
147 A contract may be inferred from the acts and conduct of parties as well as or in the absence of their words. The question in this class of case is whether the conduct of the parties viewed in the light of the surrounding circumstances shows a tacit understanding or agreement: Integrated Computer Services Pty Ltd v Digital Equipment Corporation (Australia) Pty Ltd (1988) 5 BPR 11, 110 at p16 (McHugh JA).
148 In the present case the question might have been whether in addition to the clause 'the transferor for the consideration herein expressed ($160,000), hereby transfers to the transferee the estate and interest in the land above described' the parties tacitly agreed that the defendants agreed to pay $160,000 upon the transfer being effected.
149 The plaintiff has not, however, put its case on the basis of such an inferred agreement. The plaintiff does not assert there is an agreement or contract to be inferred from the acts or conduct of the parties.
150 Accordingly I am required to have regard to the wording of the form to determine whether it constitutes a written express agreement or contract. In closing oral submissions the plaintiff made it clear (ts 140) that his contention was that the form is a binding contract and contains express terms.
The plaintiff's pleaded case
151 On the morning of the hearing, 19 April 2016, I permitted the plaintiff to amend the statement of claim.
152 The plaintiff's primary claim rests on an actual contract or an agreement of sale whereby, it is asserted, the defendants agreed to purchase the property for $160,000.
153 That primary claim is reflected in par 3(a) of the amended statement of claim, which pleads that by the form Giuseppina agreed to sell, and the defendants agreed to buy, the property at the price of $160,000.
154 The plaintiff's alternative proposition, by par 3(b) of the amended statement of claim, is that by the form Giuseppina agreed to convey to the defendants the property for a consideration of $160,000.
155 This alternative pleading, rather than asserting that the form in itself constitutes an agreement, contends that there is an unequivocal promise in the form to pay a consideration of $160,000. Implicit in the alternative case is that the defendants agreed to pay the $160,000 and have not done so.
156 The plaintiff relied solely on the form and called no evidence.
The plaintiff's position on whether the form constitutes an express written agreement or contract
157 The plaintiff conceded that if the form is found not to be intended to be legally binding or not to have any legal effect, then the plaintiff's case necessarily fails, given that there is no other written instrument or agreement pleaded or relied upon by the plaintiff (ts 141 - 142).
158 In its closing oral submissions the plaintiff acknowledged that there is no authority for the proposition that a form such as this 'can and does constitute a legal agreement' (ts 137).
159 The plaintiff submits that the document was obviously intended to be legally binding and to have legal effect and that its purpose was to transfer land from mother to son and daughter-in-law in consideration of $160,000.
160 The plaintiff submits that there can be no conclusion other than that the form was intended by both parties to be legally binding. It was entered into so as to effect a legal change in the status of the property, so as to enable a refinance which gave a benefit to the defendants. The form was registered and ownership of the land changed as a consequence of it.
161 The plaintiffs submitted that it is the clause above the signatures which identifies the agreement relied upon (ts 138).
The defendants' position on whether the form constitutes an express written agreement or contract
162 The defendants submit that this form is so obviously not an agreement or a contract that it is unremarkable that this issue has not previously been determined by the courts. The defendants submit that there is no authority for the proposition that a transfer of land form, in itself, constitutes an agreement of sale.
163 The defendants contend that the clause, under which the defendants placed their signatures 'the transferor for the consideration herein expressed, hereby transfers to the transferee the estate and interest herein specified', cannot constitute an unambiguous promise to pay the $160,000.
164 The defendants submit that the form provides no information as to when or how or by whom payment of the $160,000 would occur.
165 The defendants submit that there is no wording within this document whereby the defendants' state 'We agree to pay ($160,000) when Giuseppina transfers the property'.
166 In my view there is no basis to conclude that the mere fact that the defendants signed the document constitutes an implied, still less an express acceptance, that they were only receiving title to this property in exchange for paying $160,000. The structure of the form is such that any transferees are obliged to place their signatures on it, in addition to the transferor.
167 The defendants submit that the form is nothing more than a conveyance instrument that (i) gives effect to an antecedent arrangement and (ii) facilitates the official act of registration at Landgate. Ms Durante-Maynard testified that in order to achieve settlement nothing else was required by her other than the transfer of land form.
168 The defendants submit that for the form itself to be an agreement or a contract, which is essential for the plaintiff to succeed, it must be supported by consideration, sufficiently certain and complete to be enforceable and the parties must intend that the agreement is a contract. The absence of any of those elements will signify either that there was no agreement at law or that any such agreement is not enforceable as a contract.
169 The defendants submit that the plaintiff has failed to establish that the parties intended the form to be a contract. Further, the form is too uncertain to satisfy the requirements of a contract for the sale of land.
170 The defendants submit that there is no express reference in the form to the parties reaching an agreement about anything. Nor is there any reference in the form to a 'sale'. The form does not, in terms, stipulate who is to make payment of the consideration.
171 The defendants relied upon the old decision of Stilk v Meyrick (1809) 2 Camp 317; (1809) 170 ER 1168, so as to submit that neither performance, nor a promise to perform a contractual duty already owed to the promisor, is good consideration for the promise by the latter.
172 On this authority, the defendants submit that even if under the form, there is a contractual promise by the deceased, namely the transfer of the estate, that itself does not constitute evidence of the fact that the defendants thereby agreed to pay the consideration referred to in the document.
173 The defendants further illustrate their point by reference to a pro forma Reiwa contract for sale of land in Western Australia. This document, in sharp contrast to the form, sets out the usual minimum provisions that are contained in an agreement for sale of land in this state. Evident within this document is the language of an offer and acceptance and the intention to enter into a contract.
174 The defendants submit accordingly that the plaintiff is unable to prove that the form is an agreement as pleaded.
175 During the exchange of submissions on this crucial point the plaintiff seemed to place some reliance on the judgment of Dixon CJ in Wirth v Wirth (1956) 98 CLR 228.
176 In written submissions dated 29 March 2016 filed shortly before the trial, the plaintiff observed that the concept of presumption of an advancement could be used to rebut the implication of a resulting trust.
177 The plaintiff then set out a number of reasons why the presumption of advancement does not arise in the present case. The defendants responded by noting that the plaintiff did not rely on any resulting trust case and that it would be for the plaintiff to discharge the burden of rebutting the presumption of an advancement if it was to assert the existence of a resulting trust.
178 In legal arguments at the commencement of the trial the plaintiff made clear that it did not claim a resulting trust but rather sued on the consideration (ts 4).
179 The plaintiff seemed to rely upon part of the judgement of Dixon CJ (236) so as to frame this case as being concerned with whether the consideration in the form was a false one (ts 5).
180 I accept the defendants' submission that Wirth v Wirth is very clearly distinguishable on its facts. Further there is no legal principle emerging from that case which assists in the central issue here namely whether there was an agreement for transfer for consideration or whether there was a gift.
181 In that case the husband respondent and the wife appellant bought land as joint tenants when they got engaged. While they were engaged the respondent transferred his interest in the land to the appellant on request stating 100 pounds as consideration. They then built a house on the land.
182 When the marriage came to an end, the respondent husband claimed the presumption of resulting trust, because consideration was never paid. The appellant contended that the interest was intended as a gift and the stated consideration was false.
183 The presumption of the resulting trust, in that case, was rebutted because of the surrounding circumstances.
184 The present case is very different. The plaintiff does not suggest there was a resulting trust or constructive trust or any trust. He submits that it was a sale, or an unequivocal promise to pay.
185 An isolated passage from the High Court's consideration in 1956 of a completely different case concerning arguments as to whether a trust could or could not be presumed in the particular circumstances of that case, does not assist the plaintiff here. It certainly does not constitute authority for the proposition that a transfer of land form (T1) such as the one at the heart of this litigation, constitutes an enforceable promise to pay.
186 In the submissions filed after the hearing the plaintiff appeared to rely upon this judgment to preclude a position that in my view the defendants have never advanced. That position is that the consideration in the form was false. That is not the way that the defendants have met the plaintiff's case.
187 I find that the case of Wirth v Wirth has no applicability to the issues that I am required to resolve.
Section 85 of the Transfer of Land Act 1893 (WA)
188 The plaintiff places heavy reliance on s 85 of theTransfer of Land Act 1893 (WA) which reads:
Every transfer or other instrument shall be deemed of the same efficacy as if under seal; and when signed by the proprietor and registered shall be as valid and effectual to all intents and purposes for conveying passing or conferring the estates interests or rights expressed to be thereby transferred leased or created respectively as a deed duly executed and acknowledged by the same person would have been under any law heretofore or now in force in Western Australia or as any other form of document would have been either at law or in equity.
189 The plaintiff submits that the form, upon which it places complete reliance, has effect as a deed. The plaintiff further submits that the obligations contained in this document under seal, being a deed, must be given equal weight so that Giuseppina was obliged to convey the property, and did so. In return, it is submitted, the defendants were obliged to pay the $160,000.
190 The plaintiff also submits that because this document has efficacy as a deed it has to have the true consideration shown on its face and that the purpose of s 82(2) and s 85 is to ensure that documents such as the transfer of land form are intended to have legal effect.
191 The effect of s 85, it is submitted, is to render the T1 form a contract in itself standing alone which contains the essential binding elements that make a contract in law.
192 The defendants submit that legal estates and interests in land do not pass by the acts of the party in executing an instrument, but by the official act of registration of that instrument. That latter act takes place when a memorandum of the instrument or dealing is entered on the relevant certificate of title.
193 The defendants point to s 58 of the Act which reads:
No instrument until registered in manner herein provided shall be effectual to pass any estate or interest in any land under the operation of this Act or to render such land liable to any mortgage or charge or to make any dealing in respect of Crown land effective, as the case requires; but upon such registration the estate or interest comprised in the instrument shall pass or as the case may be the land shall become liable in manner and subject to the covenants and conditions set forth and specified in the instrument or by this Act declared to be implied in instruments of a like nature, or the dealing in respect of Crown land is made effective, as the case required.
194 The defendants submit that registration is then completed by the memorandum and the certificate of registration on the instrument or dealing (s 56 and s 57) being authenticated in the manner provided by s 10.
195 The defendants submit that the only function of s 85 is to provide that title to land is transferred upon the recording of a dealing in a register rather than by formal execution of a deed. Upon registration, dealings lodged under the Torrens system, which applies in this state, are deemed to be deeds.
196 The defendants submit that by s 33 of the Property Law Act 1969 (WA) every assurance or transfer of land in Western Australia must be by deed. The commentary in Halsbury's Laws of Australia, vol 10 [140-140], relied upon by the defendants, states that:
The formal role of deeds in conveyancing transactions is of much less significance now with the introduction of the Torrens system throughout Australia. Under the Torrens system, title to land brought within the system is transferred upon the recording of a dealing in a register rather than by formal execution of a deed, although upon registration dealings lodged under the Torrens system are deemed to be deeds.
197 The defendants submit that this is the effect of s 85. Section 85, they contend, cannot be relied upon to characterise this document as necessarily being some sort of agreement of sale. The defendants submit that there is a system of transferring and recording the dealing in the register, and this particular standard form document, by virtue of s 85, is deemed to be a deed but no more than a deed.
198 The defendants submit that the form cannot be regarded as a deed evidencing a sale. It is a deed dealing with the transfer and the recording of a dealing in the register.
199 The defendants also note that the commentary in Halsbury's Laws of Australia, vol 22 [355–3520] which reads (by reference to s 58 of the Transfer of Land Act):
The transfer of a legal interest in Torrens title land from a grantor to a grantee is effected by registration, whether a transfer is pursuant to contract or to a gift.
200 The defendants therefore contend that the fact that the transfer of land form document gives effect to the registration of the transfer does not, on its face, inform the reader whether it was done pursuant to a contract or to a gift. It could be either.
201 The defendants contend that the stipulation of s 58 that the transfer of a legal interest from a grantor to a grantee is effected by registration, applies whether a transfer is pursuant to a contract or to a gift. The defendants rely on the evidence of Ms Durante-Maynard.
202 The defendants also note that in Taylor v Giampaolo [2004] WASC 109 [15] Master Newnes rejected an argument that under s 85 of the Transfer of Land Act and s 33 of the Property Law Act 1969 (WA), any agreement for the sale of land must be by deed. Newnes M further held that s 85 of the Transfer of Land Act does not have any application to an executory contract for the sale of land. Newnes M did not accept that an executory contract for the sale of land is required to be by deed.
203 In my view s 85 cannot transform a document which lacks the requisite formality to constitute a contract or agreement for sale of land, into one that does. The fact that once registered, as it was here, it has the effect, by virtue of section 85, of a deed is not to the point.
204 It is still necessary to consider the document to determine what binding agreement was expressly reached within that document, notwithstanding the fact that the document as a whole has the effect of a deed. No doubt, an obligation contained in a deed is enforceable. The fundamental issue in this litigation is whether this document contained an express term which gives rise to an enforceable obligation.
Implied term as to payment
205 The defendants note that the form does not provide for a date or time when the consideration is to be paid. The form does not provide for a settlement date. There is evidence, which I will consider in due course, concerning Giuseppina's perception as to when the consideration was payable.
206 Critically, it is said, the plaintiff has not conducted its case based upon an implied term as to when such payment had to occur. I note that in closing oral submissions on behalf of the plaintiff there was no suggested reliance on implied terms.
207 The possibility that the plaintiff would, if necessary, rely upon the concept of an implied term with respect to payment of the consideration, was raised for the first time in the post-trial written submissions filed on 28 April 2016 at par 17 - 18.
208 In those written submissions the plaintiff indicates that he does place reliance upon the concept of implying a term into a contract so as to give it business efficacy. The plaintiff submits that applying the dictum of Shirlaw v Southern Foundaries(1926) Ltd (1939) 2 KB 206, 347 a term that the payment is to be made upon demand should be implied.
209 The plaintiff submits that it is appropriate to infer that the sum was repayable on demand: Ottavio v Hayvio Pty Ltd [2011] NSWSC 1125 (Ward J). In that case the second defendant admitted that there was a loan extended (between about October 2008 – 10 January 2009) and that (as deposed in his affidavit sworn 12 August 2011) he intended to repay the loan which remained unpaid. There is no such admission in the present case.
210 It is clear that preparation for trial, and the trial itself, was conducted on the basis of the construction of the pleadings. This is not one of those cases in which it can be said that the parties acquiesced in the conduct of a trial by reference to issues other than those enunciated in the pleadings.
211 Pleadings have two functions. First, to ensure a fair trial by putting the other party on notice of the case to be met. Secondly, to define the issues for decision so that the court can control the preparation of the case and the conduct of the trial: EDWF Holdings 1 Pty Ltd v EDWF Holdings 2 Pty Ltd [2010] WASCA 78 [124] (Buss JA).
212 The fact that the plaintiff has found it necessary to raise, for the first time, the possibility of an implied term as to payment after the hearing of the matter, underscores the need to consider the surrounding circumstances in construing this form.
213 In my view in order to establish that a term should be implied that the parties understood that the $160,000 was payable on demand, is to require satisfaction of the very matter that is in issue, that is, was there a transfer of land for consideration as opposed to a gift.
214 The plaintiffs' attempt to read into this form an implied term is in my view a classic bootstraps argument.
215 Another difficulty in finding that a term should be implied is that the understanding of Giuseppina as to when payment was due has fluctuated over the years.
216 No demand was made of any sort for 11 years until Giuseppina signed a written statement on 22 June 2011 setting out matters that she wished to be added to her will, 'as they are my final wishes'. In that statement Giuseppina asserted that in December 1996 she permitted the first and second defendants to take a mortgage on the property, because of their financial difficulties.
217 Giuseppina further stated that in June 2000 'under duress' she agreed to transfer her property into her son and his wife's names due to their financial difficulties at the time, 'and only to assist them during this transaction no money changed hands'. The mortgage that they had placed on the property prior to the settlement was paid out to a Neville and Marjorie Hall.
218 Giuseppina further stated that it was verbally agreed that when the property was sold on her death, the sum of $160,000 would be paid to her estate. Giuseppina did not state, in this statement or anywhere else, that the defendants had an obligation to sell the property on her death. Giuseppina also stated that it was verbally agreed that she would live in the property until her death.
219 Giuseppina stated that on her death she wished the $160,000 that was still owed to be divided between two of her children, Antonio and Sylvia. The statement then reads:
The reason for this addition to my will is that over the last few months, I have reason to believe that my son Saverino will not honour our agreement.
220 Giuseppina's 1 November 1991 will had not been amended nor revoked between 1991 and 2011.
221 In this statement, therefore, Giuseppina stated that there was an oral agreement that the $160,000 would be paid only upon her death and when the property was sold.
222 On 7 February 2012 Giuseppina revoked all former wills and testamentary dispositions made by her and appointed Antonio as executor. Giuseppina declared that Saverino owed her $160,000 being the sale of the property and referred to the verbal agreement that that sum would be paid to her estate upon her death, as opposed to on demand.
223 On 3 December 2012 Giuseppina placed a caveat on the property on the basis of 'a beneficial interest of a constructive trust by virtue of the matters declared in a statutory declaration dated 3 December 2012'.
224 Again it is difficult to imply a term that the $160,000 was intended, in June 2000, to be payable on demand, when 12 years later it is asserted for the first time that a constructive trust had arisen.
225 In a supportive statutory declaration (exhibit 2, page 34) signed and dated 3 December 2012, Giuseppina stated that in June 2000 her registered proprietary interest was transferred to the first and second defendants as registered proprietors.226 Giuseppina declared that this was to allow Saverino to use the property as security so he could 'loan more funds as his business was in financial difficulty'.
227 Giuseppina stated that in the two weeks prior to Easter 2012 she was notified by Saverino that she had two weeks to vacate the premises. Giuseppina stated that she did so on the Easter weekend. She wished to protect her interest in the property by lodging a caveat.
228 There does not appear to be any dispute that having resided at the property for some years prior to June 2000 Giuseppina left the premises around Easter 2012. There was limited evidence on the point, but the parties appear to be in dispute as to whether she was told to leave capriciously or because it was felt she could no longer live independently (see for example cross-examination of Carmela at ts 86).
229 If Giuseppina resented the fact that she had to leave the property either because she thought there was no reason or that she was incapable of accepting that it was inappropriate for her to continue to live on her own, that could well explain why the November 1991 will was revoked, eight months after Easter, in December 2012.
230 As I have noted the plaintiff did not give evidence and the defendants submit that if he had, he would have been cross-examined as to whether he exercised any influence over his late mother at that time so as to result in these documents (ts 135).
231 In a further statutory declaration, dated 3 January 2013, Giuseppina stated that in the year 2000 she signed the property over to her son and his wife on the condition that he paid her the sum of $160,000 and that she stayed until her death. In April 2012 he told her to leave and to this date he has not paid her the sum of $160,000.
232 In that declaration Giuseppina appeared to assert that the $160,000 was payable as of settlement.
233 On 18 September 2013 the first defendant applied for the removal of the caveat.
234 Finally on 5 September 2013 Giuseppina (exhibit 1, pages 17 – 20) made a further will in which she revoked all former testamentary dispositions and appointed Antonio as the executor. She declared in that will that she was in dispute with Saverino about her former home and her right to live in that home.
235 The defendants rely upon the fact that in the plaintiff's answers to a request for further and better particulars, dated 31 July 2014, the plaintiff stated that:
The agreement (upon which the plaintiff sues) was written to the extent it was contained in the transfer of land dated 15 June 2000. The agreement was oral, to the extent that it was agreed between the deceased and the 1st defendant, that in consideration of the transfer of the property the deceased would be permitted to reside in the property until her death, and that upon her death the sum of $160,000 being the consideration in the written transfer, would be paid by this defendant to an estate.
236 The defendants contend that by that answer the plaintiff concurred with Giuseppina's observations in her 22 June 2011 witness statement, that there was a verbal arrangement that the consideration of $160,000 was only to be paid when the property was sold on Giuseppina's death.
237 The defendants submit that such an assertion is entirely inconsistent with a case that is now run on the basis that consideration was agreed to be paid under the transfer of land form.
238 I am not convinced that I should proceed on the basis that this pleading was based on instructions and that it reflects the plaintiff's understanding of the background, as of July 2014. As I have noted the plaintiff did not give evidence. The plaintiff might be perfectly happy, having identified his complaint, to leave the mechanism by which it is prosecuted to his lawyer.
239 In any event I am unconvinced that this argument advances matters. That answer seem to suggest that the plaintiff sued both on a written agreement - the form and an oral agreement. It is now very clear that the plaintiff solely relies on the form albeit on two alternative basis.
240 In determining whether it is proper to conclude that a term that the $160,000 was payable on demand should be implied it is, however, relevant that 14 years after the alleged agreement, the plaintiff (on behalf of the estate) who post trial has contended that the sum was payable on demand, concurred with an assessment that the consideration of $160,000 was only to be paid when the property was sold on Giuseppina's death.
Analysis
241 The fact that the form is the only written instrument which the parties have executed does not mean that it has the legal effect contended for by the plaintiff. The plaintiff's assertion that it was obviously intended to be legally binding and to have legal effect so as to transfer land for consideration of $160,000 is the very matter that is in issue.
242 I accept that the form effected a transfer of the property at a time when the defendants wished to refinance. That does not mean, however, that they expressly agreed to pay the consideration for the transfer of land. Whilst the plaintiff wishes the instrument to be regarded as a clear and unambiguous statement of each party's intention, simply stating that it is to be so characterised does not establish that proposition.
243 The plaintiff submits that it is through this instrument that the defendants derived title to the property and therefore it cannot be said that it was not intended to be legally binding.
244 In further written submissions dated 28 April 2016, the plaintiff points to par 19 of the pre-trial April 2016 written submissions advanced on behalf of the defendants.
245 In that paragraph the defendants accepted that every transfer is deemed to have the same efficacy as if under seal and when signed by the proprietor and registered shall be valid and effectual for conveying or passing or conferring the estate's interests or rights expressed therein as deed duly executed.
246 The plaintiff submits that the form cannot be simultaneously a binding contract for the purpose of conveying property, but not be a legally binding contract or a deed to enforce payment of the consideration promised in the same document.
247 In my view this is a mis-characterisation of the defendants' case. The defendants' case is that they achieved title to the land as a consequence of an antecedent agreement to the form. This form was simply the mechanism by which that transfer was registered and facilitated. The defendants have never conceded that this form constitutes a binding contract for the purpose of conveying property.
248 As I have noted the plaintiff does not put its case on the basis of any agreement that existed prior to 15 June 2000.
249 I do not necessarily disagree with the notion, as advanced by the plaintiff closing submissions, that documents that are registered to convey title can constitute legal agreements. The question is whether this particular document constitutes a legal agreement.
250 The mere fact that, as the plaintiff points out, the land was indeed transferred as of 16 June 2000, does not by itself mean that the defendants thereby expressly agreed to pay the consideration for that transfer.
251 In my view it is not possible to regard this form as anything other than a standard form conveyancing document issued by Landgate. Within the document is an acknowledgement, 'hereby transfers' that the transfer has taken place. No further construction is possible.
252 In my view it is impossible to construe this form so as to conclude that any part of it constitutes an express agreement by the defendants, Saverino and Carmela to pay to Giuseppina, the transferor, $160,000 or indeed any sum.
253 In my judgment the form gives effect to a prior verbal agreement between Giuseppina and the two defendants, who, I find were all on good terms at that time. The settlement agency would not have been engaged and the form would not have been drafted were it not for discussions between the parties. Discussions concerning the early (as opposed to on death – the position under the will) disposition of this property had been ongoing for some time.
254 I find that at some stage prior to 15 June 2000, a value of $160,000 was settled upon and it was agreed that the property would be formally transferred to the defendants. The defendants financially benefitted from that decision.
255 I do not accept that there was an understanding between the parties that $160,000 was payable on demand. On the contrary I find that there was no understanding that any payment would be made. The reference to $160,000 was inserted for the reasons that emerged in my consideration of the evidence of Ms Durante-Maynard.
256 It was, I find, of little moment to the defendants that the transfer of land form stated that the transfer had occurred in consideration for $160,000, given the absence of an express promise requiring them to pay such an amount of money and silence as to when it would ever be payable.
257 In my judgment the defendants, neither of whom presented as particularly sophisticated, placed heavy if not total reliance on the advice they were receiving from Mr D'Angelo, Mr Di Vicenzo and Ms Durante-Maynard.
258 I do not find that by signing this form, either defendant was expressly or implicitly promising to pay $160,000 on demand or at all.
259 This conclusion is supported by Giuseppina's failure to seek payment of the $160,000 for nearly 14 years.
260 Following the transfer of the property in June 2000, aside from the brief exchange of correspondence in October 2000, there matters rested for many years. The life tenancy deed was never drawn up but Giuseppina continued to live at the property. There is no evidence that her pensions were adversely impacted.
261 The first and second defendants had become joint tenants of the property as of the morning of 16 June 2000.
262 As I have noted neither Saverino nor Carmella were called upon to pay the $160,000 until 18 March 2014.
263 I accept that in the ordinary course, if there was a contract for the sale of land and there was to be consideration paid, absent an express provision that it were to be paid later, it would have to be paid at settlement.
264 I agree with the defendants' submission that the overwhelming inference to be drawn from the failure to make any assertion that the $160,000 was due to Giuseppina for 11 years, is that there was to be no payment, and the transfer was always intended to be a gift.
265 If Giuseppina genuinely expected an actual payment of $160,000, it would have been apparent to her shortly after settlement that no payment had been made. It is inconceivable that no attempt would have been made, either by Giuseppina or on her behalf, most obviously by Antonio, to press the defendants for payment. There is no evidence before me that any such thing occurred until 2011.
266 Far more likely than an unfulfilled promise to pay an actual sum of $160,000, which ordinarily would become due on settlement (16 June 2000) is that the property was gifted.
267 The other alternative is that there was an agreement that the defendants would have the benefit of title in the property, Giuseppina would continue to live at the property but that on her death the defendants would have to pay $160,000 to the estate, logically to go to the other siblings.
268 I find the latter alternative inconsistent with the fact that Giuseppina's declared intent from 1986 - 2011 was that this property would pass to the defendants. Granted, her 1986 and 1991 wills provided that this would occur on death rather then, as it transpired, 13 years earlier. But that begs the question why, if Antonio and Sylvia would never have received this particular property, would it have been Giuseppina's intention in 2000 that they receive recompense, measured as the value of the property at the time of transfer, for the early transfer to the defendants?
Conclusion
269 Having taken into account all relevant surrounding circumstances the plaintiff has failed to establish that the form, on its face, can be construed as an agreement by the defendants to pay the sum of $160,000. Nor can it be construed as an unambiguous promise to pay. There is no express promise by the defendants within this document. There is nothing that is consistent with an agreement by the defendants as the transferees to do anything.
270 There is no wording within this document whereby the defendants expressly state anything that fixes them with an agreement to pay $160,000 when Giuseppina transferred the property. The plaintiff has failed to discharge the onus to satisfy the court that this document constitutes an unambiguous promise to pay.
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