Auto Panel Beaters and Radiators Pty Ltd (In liquidation) v Barclays Services Pty Ltd (formerly known as Auto Panel Beating Beating and Radiators Pty Limited)

[2009] NSWSC 1165

CITATION:	Auto Panel Beaters & Radiators Pty Ltd (In liquidation) v Barclays Services Pty Ltd (formerly known as Auto Panel Beating Beating & Radiators Pty Limited) & Ors [2009] NSWSC 1165
HEARING DATE(S):	27/10/09, 28/10/09
JUDGMENT DATE :	17 November 2009
JUDGMENT OF:	Forster J at 1
DECISION:	See paragraph 82 and 83 of judgment.
CATCHWORDS:	X tranferred his land to non-existent company, which became its registered proprietor - Issue of fact as to whether he intended to transfer it to A (a company which he then controlled) or to B (a company which he believed he then controlled but did not control) - common mistake or unilateral mistake? - held: he intended to transfer land to A: common mistake - A entitled to have land transferred to it.
LEGISLATION CITED:	Real Property Act 1900
CATEGORY:	Principal judgment
CASES CITED:	Browne v Dunn (1893) 6 R 67 Calverley v Green (1984) 155 CLR 242 M W J v R (2005) 80 ALJR 329 Scalise v Bezzina [2003] NSWCA 362
PARTIES:	Plaintiff: Auto Panel Beaters & Radiators Pty Ltd (In liquidation) First Defendant: Barclays Services Pty Ltd (formerly known as Auto Panel Beating Beating & Radiators Pty Limited) Second Defendant: Registrar General Third Defendant/Cross Claimant: Roger Whalebone Fourth Defendant: A1 Catering Pty Limited
FILE NUMBER(S):	SC 5462/08
COUNSEL:	Plaintiff: M.S. Henry Second Defendant: submitting appearance Third and Fourth Defendant/Cross Claimant: A.Reoch, J. Dowling
SOLICITORS:	Plaintiff: Luke Whiffen, Watson Mangioni Lawyers Pty Ltd First Defendant: M.Barclay Second Defendant: submitting appearance Third Defendant/Cross Claimant: J.Dowling.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

FORSTER J

TUESDAY, 17 NOVEMBER 2009

(5462/08) AUTO PANEL BEATERS & RADIATORS PTY LTD (IN LIQUIDATION) ACN 000 417 590 v BARCLAYS SERVICES PTY LIMITED (FORMERLY KNOWN AS AUTO PANEL BEATING & RADIATORS PTY LIMITED) ACN 000 359 071

JUDGMENT

1 HIS HONOUR: In 1983 Mr Whalebone, who is the third defendant and cross-claimant in these proceedings, purchased and became the registered proprietor of a residential property at 1507 Botany Road, Botany (“the Property”). By a transfer registered on 22 July 1987 (“the Transfer”), Mr Whalebone purported to transfer the Property to “Auto Panelbeating and Radiator Pty Ltd” (“the non-existent Transferee”). On registration of the Transfer, the non-existent Transferee became and is still shown as the registered proprietor of the Property. The Registrar-General issued a certificate of title in that name, although the whereabouts of that certificate of title is presently unknown.

2 However, there was not then, nor has there been since, any entity in existence by the name of the non-existent Transferee, but:

(a) there was then in existence a company which had, since its incorporation in 1977, operated under the corporate name “Auto Panel Beaters & Radiators Pty Limited” (“Beaters”). That company is the plaintiff in these proceedings. It was placed in liquidation in March 2005; and

(b) there was also then in existence a company which had, prior to 1973, operated under the corporate name “Auto Panel Beating & Radiators Pty Limited” (“Beating”). However, in 1973 Beating had changed its name to “Taxation & Managerial Services Pty Limited”, and subsequently in 1979, it changed its name to “Barclay Services Pty Limited”, under which corporate name it was operating at the time of the Transfer and under which corporate name it continues to operate today. Beating is the first defendant in these proceedings.

3 Beating makes no claim to the Property and has not taken any active part in these proceedings. However, both Beaters (by its liquidator) and Mr Whalebone claim to be entitled to have the Property transferred to them.

4 The ultimate issue raised for the Court’s determination is whether it is Beaters or Mr Whalebone who is so entitled.

Background facts

5 The background facts are not in any substantial dispute. In any event, I find them to be as follows.

6 Beating was originally incorporated in 1961 under a different name, but in 1964 it changed its name to “Auto Panel Beating & Radiators Pty Limited”. The company was then owned by a Mr and Mrs Neale, who were Mr Whalebone’s uncle and aunt. The company carried on business as a dealer and repairer of motor vehicles and as a panel beater.

7 In 1973 Mr and Mrs Neale resigned as directors of Beating and transferred their shares in that company to a Mr Barclay, who was at about the same time appointed as a director of that company. As I have already noted, in the same year, namely 1973, Beating changed its name to “Taxation & Managerial Services Pty Limited”, and in 1979 it again changed its name, this time to “Barclay Services Pty Limited”.

8 Since 1973 neither Mr and Mrs Neale, nor for that matter, Mr Whalebone, has had any interest in, or other association with, Beating, which company’s business activities are totally unrelated to Mr and Mrs Neale, Mr Whalebone or Beaters.

9 As I have already noted, Beaters was incorporated in 1977 under its current corporate name. Its original shareholders were Mr and Mrs Neale, who also owned the Property, as well as the property adjacent to it at 1509 Botany Road, Botany (“1509”). Since its incorporation in 1977, Beaters has carried on the panel beating business at 1509. As I have also noted, in March 2005, it went into liquidation.

10 It would appear that prior to 1973, under Mr and Mrs Neale, Beating had also carried on a panel beating business at 1509. Although the evidence is sparse on this point, I am also prepared to infer that between 1973 and 1977 a panel beating business continued to be carried on at 1509 by Mr and Mrs Neale.

11 Having incorporated Beaters in 1977, in March 1980 Mr and Mrs Neale transferred their shares in that company to Mr Whalebone (as to 99 shares) and his then wife, Mrs Lyn Whalebone (as to 1 share). At the same time, Mr and Mrs Neale resigned as directors of Beaters and Mr and Mrs Whalebone were appointed as that company’s only directors.

12 By Contract for Sale of Land dated 31 May 1983, Mr and Mrs Neale agreed to sell to Mr Whalebone both the Property and 1509 for a total sum of $200,000. The purchase was financed by a loan from Mr and Mrs Neale to Mr Whalebone in the sum of $190,000, such vendor finance being secured by mortgage. The loan has since been repaid and the mortgage has been discharged.

13 As I have already noted, by the Transfer, which was registered on 22 July 1987, Mr Whalebone transferred the Property to the non-existent Transferee. The Transfer, a copy of which is in evidence, is in the form generally in use at the time (for the moment I avoid use of the term “approved form” as used in section 36 of the Real Property Act 1900) and purports to be between Mr Whalebone as transferor and “Auto Panelbeating and Radiator Pty Limited” of 1509 Botany Road, Botany as transferee. In the usual way, the Transfer notes that the transferor “hereby acknowledges receipt of the consideration of $100,000.00”.

14 It is signed by Mr Whalebone as transferor, and his signature as transferor is witnessed by a Mr Ruggeri, a solicitor. Above the words “Signature of Transferee” there is the imprint of a common seal bearing the name of Beating and which is signed by Mr Whalebone as director and Mrs Whalebone as secretary. I should add at this point that there is no evidence to suggest that Mr Whalebone was ever appointed as a director of Beating or that Mrs Whalebone was ever appointed as its secretary.

15 In October 2001, Mrs Whalebone ceased to be a director or secretary of Beaters and transferred her one share in that company to Mr Whalebone. Since that time, Mr Whalebone has been, and subject to the appointment as a liquidator, he remains the sole director and shareholder of Beaters.

Issues

16 As I have already noted, the ultimate issue for determination by the Court is whether it is Mr Whalebone or Beaters who is entitled to the Property. The answer depends in turn on the resolution of the issues which were tendered by the parties in their respective submissions. As I see them, the issues are as follows:

(a) the first issue is whether (as Mr Whalebone contends) the Transfer by him was the result of a unilateral mistake on his part or whether (as Beaters contends) there has been a common mistake involving Mr Whalebone and Beaters. If I uphold Mr Whalebone’s submission, he submits that the Property should be re-transferred to him, whereas if I uphold the submission of Beaters, it submits that the Property must then be transferred to it;

(b) the second issue, raised by Mr Whalebone, is whether the Transfer is in any event a nullity, and that as a consequence, Mr Whalebone’s interest in the Property was at no time affected by the Transfer and that the interest remains with Mr Whalebone; and

(c) the third issue, raised by Beaters, is whether there is in any event a resulting trust in favour of Beaters by reason of the payment to Mr Whalebone of the consideration of $100,000.

17 I propose to consider these issues in the order in which I have listed them, but before doing so, I need to say a few words about the witnesses.

The witnesses

18 The affidavit evidence before me consisted of affidavits sworn by the liquidator of Beaters, namely Mr Parbery, Mr York who was the former accountant for Beaters and Mr Whalebone himself. Mr Parbery was not cross-examined but the other two witnesses were.

19 So far as Mr York is concerned, I found him to be a relatively reliable witness. Quite clearly he did not remember much of the detail relating to the various documents on which he was cross-examined, some of which go back to the 1980s. He had been employed by the Australian Taxation Office between 1966 and 1985, whereafter he commenced private practice as an accountant. He became the accountant for Mr Whalebone and for Beaters in about 1988 and remained in that position until about 2004.

20 Although Mr York showed signs of nerves in the witness box (which is not unusual for someone who is not accustomed to giving evidence in Court) I formed the view that he was trying to answer the questions asked of him honestly and that he was not attempting to evade answering questions when he said that he could not recall certain events.

21 Overall, I am prepared to accept his evidence.

22 By contrast, I cannot say the same about Mr Whalebone. While I accept that people who are skilled in other areas may not handle their “paperwork” particularly well, I do not accept Mr Whalebone’s evidence by which he sought to blame matters that he could not satisfactorily explain on sloppy paperwork on his part. I found his answers to be evasive, and it was my impression that Mr Whalebone was at least in some cases intentionally “bending” the truth. More often, it was my impression that Mr Whalebone had retrospectively convinced himself as to what his intentions had been in 1987, and persisted in that belief even if it caused him to answer questions in terms that were quite absurd. He was prone to blame others, particularly Mr York, for any matter that was inconsistent with his principal theme, and I am of the view that unless it is supported by objective or independent corroborative evidence, or unless it is inherently probable, I should not rely on his evidence.

23 Accordingly, where the evidence of Mr York and Mr Whalebone conflict, I prefer the evidence of Mr York.

24 In forming that view, I have not ignored the evidence given by Mr Whalebone and Mr York concerning their conversation outside the Court on the first day of the hearing before me. According to Mr Whalebone, Mr York said to him:

“This whole thing could have been avoided and it’s not necessary. We could have amended our returns”.

25 Mr York denied saying words to that effect. Further, although it was suggested to him that he had said to Mr Whalebone that he was “sorry about all of this”, in fact on Mr Whalebone’s own evidence, what Mr York said was:

“Oh Roger, I felt very sorry for you in relation to the loss of your family and your daughters and friends and that, horrific Family Law business and the loss of properties and assets”.

26 Whichever of Mr York and Mr Whalebone has recalled the conversation more accurately, that exchange between the witnesses does not change the opinions I have recorded above.

The first issue--unilateral or common mistake?

27 Mr Whalebone’s evidence was to the following effect. He said that it was his belief that Beating was a company which he had “inherited” from his uncle and aunt, Mr and Mrs Neale. The circumstances giving rise to his belief in relation to such “inheritance” were not explored, but he gave evidence to the effect that he considered Beating to be a “shelf company”, which was a company that had some unspecified “family” connection, and which he owned and controlled. He said he had found the common seal and various other documents relating to Beating in the office where the panel beating business had been carried on at 1509 and said that he believed that whoever had the common seal of a company owned it.

28 He claimed that he understood Beating to be an entity quite distinct from Beaters, in that Beaters was the company that carried on the panel beating business, whereas Beating had nothing to do with that business but was, as I have said, an otherwise inactive shelf company.

29 He claimed that he decided to transfer the Property to Beating for “asset protection” purposes, that is to say, to protect it from risks inherent in the panel beating business. However, he was unable to articulate a reason as to why he considered that moving the Property out of his own ownership into the ownership of a shelf company which he owned and controlled would assist in relation to asset protection.

30 The submission which was ultimately put on his behalf was that he was labouring under the mistaken belief that he was transferring the Property to a company that he owned and controlled, namely Beating, and that the name inserted in the Transfer as that of the transferee was the result of a clerical error, put down to sloppy paperwork. The submission continues by saying that contrary to his stated belief, Beating turned out not to be a company which Mr Whalebone either owned or controlled, but a company associated with Mr Barclay, whose interests acquired it in 1973. His evidence was that if he had not been so mistaken, he would not have sought to transfer the Property to Beating, and certainly not to a non-existent entity.

31 In those circumstances, it was submitted on his behalf that as a consequence of that unilateral mistake, the Transfer should be set aside and the Property should be returned to him.

32 By contrast, it was submitted on behalf of Beaters that I should not believe the evidence given by Mr Whalebone as to his belief and that I should find that Mr Whalebone was at all relevant times aware that there was one and only one company which he and his wife controlled, namely Beaters, and that he intended to transfer the Property to that company.

33 It was further submitted that, given that he owned 99 percent of the issued shares in Beaters, and that he and his wife were its only directors, with Mr Whalebone being its principal decision maker, Beaters likewise intended to acquire the Property from Mr Whalebone.

34 As a consequence, according to Beaters’ submission, the Transfer clearly did not reflect that common intention of the parties thereto, namely that of Mr Whalebone as transferor and that of Beaters as transferee, to transfer the Property to Beaters. The Transfer misstated Beaters’ corporate name as transferee. That, it is submitted, constituted a mistake common to both parties to the transaction and for those reasons it was submitted that the Court should rectify the Transfer by inserting as the transferee the proper corporate name of Beaters.

35 It seems to me that the resolution of this issue turns largely on Mr Whalebone’s belief and intention at the time he purported to transfer the Property to the non-existent Transferee. For the reasons that follow, I do not accept Mr Whalebone’s evidence and find that, contrary to what he now claims, he intended to transfer the Property to the only company then relevantly in existence, and which he owned and controlled, namely Beaters, and in his capacity as a director and the principal decision maker of Beaters, he intended that Beaters acquire the Property from him.

36 First, I do not accept Mr Whalebone’s evidence to the effect that he believed that in addition to, and quite separately from, Beaters, he owned and controlled a separate and distinct company, namely Beating. As I have already noted, there was no explanation given by him as to how he thought he had “inherited” Beating from his uncle and aunt (there being no evidence to suggest that either his uncle or his aunt had passed away as at 1987), nor is there any satisfactory explanation proffered as to how he had come to understand that Beating had a separate existence as a family shelf company which he, and he alone, owned or controlled.

37 I do not accept his evidence that he believed that whoever had the common seal owned the company. Under cross-examination, he was unable to give any rational explanation for that alleged belief. Given that I do not accept that Mr Whalebone honestly believed that Beating was a separate and distinct company which he owned and controlled, it follows that I do not accept that he intended to transfer the Property, for which he had paid valuable consideration, to a separate company that he did not own and control.

38 Secondly, I do not accept that his asserted belief was supported by documents and other items he had found on the premises at 1509. There is in evidence a Second Hand Dealers Licence and a Membership Certificate of the Motor Traders Association, both in the name of Beating. I do not doubt that as Mr Whalebone says, he found those documents at 1509, where the panel beating business had always been carried on. However, both of those documents are dated in 1965, long before Beating had changed its name and ceased carrying out panel beating operations in 1973.

39 I do not consider that Mr Whalebone could seriously have relied on the existence of those documents, or on finding a common seal in the name of Beating at the premises on 1509, to persuade him that a separate company by that name was still in existence in 1987 and that it was a family shelf company that he owned and controlled.

40 Thirdly, as I have already noted, Mr Whalebone could offer no satisfactory explanation as to why a transfer from him to Beating, even if it was a family shelf company, served as a means of asset protection. Having said that, I should note that I have a similar difficulty in trying to understand why Mr Whalebone would have wished to transfer the Property to Beaters either. The transfer, if intended to be to Beaters, would expose the Property to the risks inherent in carrying on Beaters’ panel beating business. There may be some satisfactory explanation, but that topic was not explored.

the financial statements and tax returns of Beaters show the Property as an asset of that company at an “at cost” value of $103,641.50. That figure appears in each set of accounts and income tax returns that are in evidence, the earliest being for the year ended 30 June 1991, and the latest for the year ended 30 June 2004. Although it is not entirely clear, those financial statements also appear to show the rental income derived by Beaters from the Property, which was leased to unrelated third parties.

Most of those financial statements and tax returns were signed by Mr Whalebone himself.

42 Much of the evidence before me centred upon the significance of these accounts. Mr Whalebone asserted that all of those accounts were false in the sense that they incorrectly included the Property as an asset of Beaters. He said that such was never the case and that he did not realise those entries had been made. Rather, he said that it was Beating that should have shown the Property as an asset, not Beaters. Mr Whalebone said that the accounts for Beaters had been prepared by Mr York ever since he had become Mr Whalebone’s accountant (a proposition with which Mr York agreed) and that Mr York had never explained to Mr Whalebone that the Property was shown in the financial statements and tax returns as an asset of Beaters (a proposition with which Mr York did not agree).

43 I do not accept Mr Whalebone’s evidence in that respect. I prefer the evidence of Mr York, which was to the effect that he explained to Mr Whalebone the most significant aspects of the financial statements and tax returns before they were actually signed by Mr Whalebone. Mr York did not suggest that he explained each and every item to Mr Whalebone--a suggestion I would have found difficult to accept--but I do not accept that every year Mr York asked Mr Whalebone simply to sign the documents without proffering any explanation at all. Even without a specific explanation, I would have expected that Mr Whalebone’s eyes would have been caught by the reference to the Property in the accounts of Beaters, which reference he would have found strange if he had honestly believed that the Property had nothing to do with Beaters but had been transferred to Beating, as he now claims.

44 It was asserted on behalf of Mr Whalebone that there is no satisfactory evidence before me as to how those entries came to appear in the financial statements and tax returns of Beaters. I do not place any particular significance on the fact that the accounts between 1987 and 1991 are not before me. That was a long time ago and I would not expect, except through sheer good fortune, to be provided with those documents. I would not draw an adverse inference against either party for not producing them. I do however accept the evidence of Mr York to the effect that he would not have made the entries in question had it not been either as a result of express instructions received from someone like Mr Whalebone, supported by some form of documentary material, or unless such an entry had already been inserted by the accountant who had previously prepared Beaters’ financial statements, and that even then, he would make inquiries from someone who had knowledge about the correctness or otherwise of the entry.

45 I do not find it surprising that Mr York could not remember how it came about that by the financial year ended 30 June 1991, he had made an entry to that effect in the financial statements of Beaters.

46 It was submitted on behalf of Mr Whalebone that I should not place undue emphasis on the fact that such entries appeared year after year in the accounts of Beaters, given that the software used by Mr York provided for such entries to be rolled over automatically from year to year. I accept that submission and place no particular significance on the fact that such entries appeared on at least a dozen occasions, except to note that it would be surprising if Mr Whalebone had failed to notice that entry and query it with Mr York on at least one such occasion.

47 In terms of the genuineness of the entries, I also note that the amount in question is not an exact amount such as the $100,000 shown as consideration in the Transfer. The reason for the excess is not explained by the evidence. It might be stamp duty, legal fees or something else. However, given the precision of the figure at $103,641.50, it is unlikely in my opinion to have been arrived at without some genuine documentary support.

48 It is not entirely clear on the evidence whether Mr York was the accountant who first entered the Property in the financial statements of Beaters as an asset of that company. Mr York could not remember; nor could Mr Whalebone. However, as Mr York took over looking after the accounts of Mr Whalebone and his company in 1988, and the Transfer was registered on 22 July 1987, the probabilities are that it was Mr York who first made that entry. Either way, it is unlikely that anyone other than Mr Whalebone would have given instructions either to Mr York or to his predecessor as to how the Property was to be treated in an accounting sense. In my opinion, it is almost certain that it was Mr Whalebone who gave the instructions that the Property was to be shown as an asset of Beaters.

49 Fifthly, there is no evidence to suggest that any accounts were ever prepared or tax returns were ever filed on behalf of Beating. I would have thought that if Mr Whalebone genuinely believed, as he now claims, that there were two companies relevantly in existence, both of which he controlled, namely Beaters and Beating, he would have expected that financial statements would be prepared for Beating and tax returns would be filed in relation to the income it received from the rental of the Property. There is no suggestion that this ever happened or that Mr Whalebone ever took any steps to ensure that any statutory requirements imposed on Beating were complied with. Why Mr Whalebone would have permitted this to occur if he believed there were two separate companies remains unexplained.

50 Sixthly, there are in evidence before me a number of documents which were either filed, or prepared for use, in the Family Court in relation to the divorce and property settlement between Mr Whalebone and his former wife. Although there are numerous references to Beaters and to another company with which Mr Whalebone was associated (namely A1 Catering Services Pty Limited) there is no reference to Beating to be found anywhere in those documents. Given that the documents in question purport to list Mr Whalebone’s income, property and financial resources, and are verified by affidavit, and which documents include specific references to Beaters and A1 Catering Services Pty Limited, the absence of any similar reference to Beating is a significant matter militating against Mr Whalebone’s case.

51 Finally, there are before me a number of post-1987 documents relating to the panel beating business. They include quotations, invoices and copies of documents filed in various proceedings by which debts of the business were sought to be recovered. It is clear that the names of Beaters and Beating (and for that matter other similar names) were used interchangeably by Mr Whalebone, who acknowledged authorship of all but one of the documents on which he was cross-examined. Indeed, I find that even in respect of that one particular document, the handwriting appearing is clearly his and I reject his evidence that there is any doubt in his mind about the authorship of that particular document.

52 In one case, in documents relating to a particular proceeding in the Local Court, Mr Whalebone has in one document referred to the plaintiff in the name of Beaters, and in another document in the same proceeding, in the name of Beating. The same Australian Company Number is used on all documents, being the Australian Company Number shown in the Australian Securities and Investment Commission records as being that of Beaters. There is no reference in any of the documents to any other Australian Company Number.

53 The conclusion that I reach is that the corporate names of Beaters and Beating were used by Mr Whalebone interchangeably, without making any distinction between the two. That would explain the fact that he probably instructed his solicitors in 1987 to transfer the Property to Beating. Later, he used whatever stationery was presently at hand, and he paid no attention to the precise name that he was using on any documentation. That, to my mind, is a significant matter militating against any suggestion that Mr Whalebone honestly believed that there were two separate companies having quite distinct functions, namely Beaters carrying on business as a panel beater and Beating being a family shelf company to which the Property had been transferred for asset protection purposes. On the contrary, the interchangeable use of the two names firmly suggest that Mr Whalebone considered there to have been only one company, not two, and that he paid no attention to the company name he used in any particular transaction, including on the occasion when he transferred the Property in 1987.

54 In the course of his cross-examination in relation to these documents, Mr Whalebone said, in respect to a number of the documents which were in the name of Beating, that it was his intention that the relevant contracting party be Beating, not Beaters. He was forced to accept that the consequence of that explanation was that Beating, the company which he claimed was being used for asset protection purposes, became exposed to liability arising from the carrying of the panel beating business. He said, however, that the amounts involved were only small amounts and therefore they were not significant.

55 I do not accept Mr Whalebone’s evidence in this regard. In my view, he found himself in a position where his evidence to the effect that there were two separate companies having two distinct functions could no longer be defended. In those circumstances, he was prepared to give any evidence that he considered would be consistent with the principal thrust of his evidence.

56 It was submitted on behalf of Mr Whalebone that I should place no significance on these documents as the issue before me, namely the intention of Mr Whalebone, had to be determined as at the date of the Transfer, namely 1987. It was submitted that whatever may have happened thereafter in terms of Mr Whalebone permitting Beating to expose itself to the risks inherent in carrying on business can be of no relevance.

57 There is clearly substance in that submission, and I accept that the relevant time to consider the state of Mr Whalebone’s intentions is 1987. However, I do not accept that the subsequent events are irrelevant. They are relevant in my opinion in that those events reflect upon what the intentions of Mr Whalebone are likely to have been in 1987. The fact that Mr Whalebone was prepared to expose Beating to risks associated with carrying on the business of panel beating is an indication that he is most unlikely to have had in 1987 the intention he now says he had, namely to transfer the Property to a family shelf company for the purposes of asset protection. If that was in fact his intention in 1987, he is unlikely to have allowed Beating to risk being sued in relation to the panel beating business.

58 I accept that the probative value of those documents is reduced by the passage of time since 1987, but I consider that those documents are still of significant probative value, and I have taken them into account on that basis.

59 For all those reasons, I do not accept the evidence of Mr Whalebone in relation to his stated belief and intention in 1987. Instead, I accept the submission made on behalf of Beaters, and find that at the time of the Transfer, Mr Whalebone intended to transfer the Property to the one and only company that he relevantly believed he owned and controlled, Beaters, and that as a director, the majority shareholder, and principal decision maker of Beaters, he also intended on behalf of Beaters to acquire the Property and to accept the Transfer on Beaters’ behalf. I find that the name placed on the Transfer, namely the name of the non-existent Transferee was placed thereon by mistake, a mistake common to both parties, their common intention being to transfer the Property to Beaters. In my view, effect needs to be given to their said true common intention.

The second issue--is the Transfer a nullity?

60 It was submitted on behalf of Mr Whalebone that the Transfer was a complete nullity as though it had never come into existence and that, as a result, not only in equity did the title to the property continue to reside in Mr Whalebone, but the legal estate has also remained with him notwithstanding the Transfer.

61 As I understand the submission, it starts off by noting that section 46 of the Real Property Act 1900 (“the Act”) requires any transfer of land to be by way of a transfer in the approved form, which must then be registered in accordance with the Act in order to acquire the protection of the indefeasibility provisions that follow.

62 It is then said that section 106 of the Act required the Transfer to be executed but that in the present case, that requirement was not met. This was said to be because neither Mr Whalebone nor his former wife was a director or secretary of Beating at the time of the Transfer and that accordingly any attempt by them in 1987 to purport to execute the Transfer under the common seal of Beating did not constitute an effective execution of that document. It is then said that as a consequence, notwithstanding its registration, the Transfer is a total nullity and as a consequence, Mr Whalebone is entitled to the registered proprietor of the Property.

63 I do not accept that submission. Section 46(1) of the Act provides as follows:

“Where land under the provisions of this Act is intended to be transferred, or any easement or profit à prendre affecting land under the provisions of this Act is intended to be created, the proprietor shall execute a transfer in the approved form.”

64 The term “approved form” is defined in section 3(1)(a) of the Act to mean, so for as it is relevant, a form “approved by the Registrar-General for the purposes of the provision of this… Act”. Section 104 of the Act deals with “approved forms”, which section, so far as is relevant, provides as follows:

“ …

(2) The Registrar-General may register a dealing containing departures, not being in matters of substance, from an approved form and the dealing shall be deemed to be in an approved form when it has been authenticated in accordance with subsection (3).

(3) Approved forms must be sealed with the seal of the Registrar-General or authenticated in such other manner as the Registrar-General approves.””

65 In the present case, the Transfer has been sealed with the seal of the Registrar-General. That of itself would be sufficient by force of section 104 to deem it to be in an approved form. In the absence of any evidence to the contrary, I am prepared to find, or alternatively to infer, that the Transfer itself (at least in its blank form) was in a form approved by the Registrar-General for the purposes of the Act.

66 Returning then to the provisions of section 46(1) of the Act, it is to be noted that the requirement is for “the proprietor” to execute the transfer in question. The section does not, in terms, require execution by the transferee. In the present case, it is clear that “the proprietor”, that is to say Mr Whalebone, did execute the Transfer thereby in my opinion satisfying the requirements of section 46.

67 For those reasons, the requirements of section 46 having been satisfied, it is unnecessary to determine the extent, if any, to which section 106 of the Act needs to be prayed in aid. At the relevant time, that section provided as follows:

“(1) A corporation for the purpose of dealing with land under the provisions of this Act, in lieu of signing the proper instrument for such purpose, may affix thereto the common seal of such corporation.

(2) Where:


(a) a seal purporting to be the seal of a corporation, whether sole or aggregate, has been affixed to a plan intended to be registered pursuant to the Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986 or to a dealing, caveat or other document; and

(b) the affixing of the seal purports to have been attested by a person or persons holding office in the corporation or by a person or persons authorised to attest the affixing of the seal, the Registrar-General may assume:

(c) that the seal and attestation are genuine and were lawfully affixed or subscribed, as the case may be, to or on the plan, dealing, caveat or other document; and

(d) that the person or persons purporting to have attested the affixing of the seal had sufficient authority to attest the affixing of the seal in the capacity in which the person or persons purported so to do.”

68 The Transfer purports to have been executed on behalf of the transferee under the common seal of Beating, purportedly in the presence of its director and secretary. The effect of section 106, in my opinion, is that whether or not Mr and Mrs Whalebone were at that time officers of Beating (which they clearly were not) the Registrar-General was entitled to make the assumptions set out in paragraphs (c) and (d) of section 106(2) of the Act when causing the Transfer to be registered.

69 In my opinion, it cannot be said that the Transfer is a complete nullity. It has met the requirements of section 46 of the Act and it has been registered by the Registrar-General with a consequence that it has the protection of indefeasibility under section 42 of the Act. Reference need only be made to the seminal case of Frazer v Walker [1967] 1 AC 569 in support of the proposition that upon registration the Transfer obtained the protection of indefeasibility. For those reasons, I reject Mr Whalebone’s submissions in relation to this second issue.

The third issue- -is there a resulting trust in favour of Beaters?

70 This third issue arises as a result of a submission made on behalf of Beaters to the effect that even if Mr Whalebone is found to be successful on the first and second issues, he holds the Property upon a resulting trust in favour of Beaters. That submission is based on the express acknowledgment by Mr Whalebone in the Transfer (which on any view he signed in his own capacity as transferor) of the receipt of the consideration of $100,000.

71 It is well established that where a person purchases property in the name of another, absent a relationship giving rise to a presumption of advancement (which clearly is not the case here), there is a presumption that the person purchasing the property did not intend that the person in whose name the property was transferred take beneficially: Calverley v Green (1984) 155 CLR 242.

72 While that presumption is rebuttable, the evidence required to rebut that presumption is evidence of the actual intention of the party providing the purchase price. In the present case, it was submitted on behalf of Beaters that there is no evidence before me that it was the intention of Beaters at the time that the Property be transferred by Mr Whalebone to Beating. Beaters submitted that in the absence of such evidence, Beating holds the Property upon a resulting trust for the entity providing the purchase price, namely Beaters.

73 On behalf of Mr Whalebone it was submitted that the submissions should be rejected. First, it was submitted on his behalf that the consideration may not have been in monetary terms, but may have been given in some other form. That may well be true, but I do not think that even if that were the case, it would make a difference. Whether the consideration is in money or in money’s worth would not matter assuming that the other form of consideration also had a value of $100,000.

74 A related submission that might have been put on behalf of Mr Whalebone is that the acknowledgement, whilst acknowledging receipt by Mr Whalebone of the consideration, does not indicate the identity of the person from whom such consideration was received. Based on the Transfer alone, the consideration could have been provided by Beating (or indeed any other person or entity), in which case the non-existent Transferee would hold the Property upon trust for the party providing the consideration in question, whoever that may be. However, I do not consider that this related submission is a sound one, and that is presumably why it was not made. The only evidence before me on this point are the various documents comprising the financial statements and tax returns of Beaters, which show the Property at a cost of a little over the $100,000 referred to in the Transfer. There is no evidence to suggest that the said consideration of $100,000 came from any source, other than Beaters.

75 Secondly, it was submitted on behalf of Mr Whalebone that it is not open to Beaters to make this submission given that it was never put to Mr Whalebone in cross-examination that he did in fact receive the consideration of the $100,000 referred to, and that accordingly the rule in Browne v Dunn does not permit such submission to be made.

76 Mr Whalebone’s submission proceeds upon a misunderstanding of the common law rule of fairness usually referred to as the rule in Browne v Dunn. That rule applies where a party seeks to challenge the evidence given by the other party’s witness. In MWJ v R (2005) 80 ALJR 329 Gummow, Kirby and Callinan JJ stated at [38]:

“The rule is essentially that a party is obliged to give appropriate notice to the other party, and any of that person’s witnesses, of any imputation that the former intends to make against either of the latter about his or her conduct relevant to the case, or a party’s or a witness’s credit.”

77 The rule normally comes into play in circumstances where the evidence of a witness is challenged. The rule requires the substance of the version challenging that witness’s evidence to be put to the witness. It does not apply where the evidence of the other party’s witness is not challenged. Of particular relevance is what was said by Mason P in Scalise v Bezzina [2003] NSWCA 362 at [98], with Santow JA and Brownie AJA agreeing in the following terms:

“The rule does not undermine the adversary nature of proceedings or make one party the other’s keeper. Thus, a party who proves facts sufficient to establish a cause of action or a defence upon which that party bears the onus does not have to confront the other side’s witnesses with the issue if they do not address it in their own evidence. To require this would invert that aspect of the rule grounded in what I have described as judicial economy. There is no unfairness in letting the sleeping dog lie and also invoking Jones v Dunkel (1959) 101 CLR 298 so long as the moving party has by pleadings or otherwise signalled the matter sought to be proved and led necessary evidence on the topic. There is no need to confront an opponent’s witnesses by cross-examination if they fail to contradict evidence earlier called by the moving party in support of an issue raised in the pleadings or otherwise.”

78 In my view, the passage from Scalise addresses the present situation. In the present case, Mr Whalebone did not say anything in his evidence as to whether or not he received the consideration referred to in the Transfer. There is nothing in his evidence that contradicts the evidence already before the Court, namely the acknowledgement contained in the Transfer. In those circumstances, there was no requirement on Beaters expressly to confront Mr Whalebone on an issue upon which the evidence is all one way and where he made no attempt to contradict or otherwise comment upon that evidence.

79 In those circumstances, in my opinion it was not incumbent on Counsel for Beaters to put to Mr Whalebone that the otherwise uncontradicted evidence was true. If Mr Whalebone had denied receipt of the said sum, the situation may well have been otherwise. But he did no such thing and in those circumstances it was unnecessary for Beaters to put to Mr Whalebone the proposition which he at no stage denied.

80 Perhaps a more persuasive submission which might have been on behalf of Mr Whalebone is that if I were to find that Mr Whalebone’s intention was that the Property be transferred to Beating, that finding might have been sufficient to rebut the presumption of a resulting trust in favour of Beaters. Given the relationship between Mr Whalebone and Beaters, Mr Whalebone’s actual intention would also be attributed to Beaters, of which he was the majority shareholder, a director and the principal decision maker, such that the same actual intention would have been attributed to Beaters, the party providing the purchase price. In those circumstances, it might have been possible to argue that the presumption of a resulting trust had been rebutted, and that, in accordance with the actual intention of the party providing the purchase price, namely Beaters, the Property would be held upon trust for Beating.

81 However, in light of the conclusion I reached in relation to the first issue, Mr Whalebone had no intention to transfer the Property to Beating. Accordingly, it becomes unnecessary for me to resolve this particular issue.

Conclusion and orders

82 In the circumstances, I am of the opinion that Beaters is entitled to the relief that it seeks and that Mr Whalebone’s cross-claim should be dismissed. Subject to any further submissions as to the form of the orders that I should make, I propose to make orders 1 to 6 as sought in the Further Amended Summons filed 13 July 2009, together with an order that Mr Whalebone’s cross-summons filed 4 February 2009 be dismissed and that Mr Whalebone pay the costs of the plaintiff and of the first and second defendants, in each case both of the claim and of the cross-claim. I propose to make such orders in chambers without the need for further attendance by the parties.

83 Any further submission as to the form of the orders or as to costs should be made in writing within 7 days from the date of these orders and provided to my Associate. It is my present intention to deal with any such submissions on the papers. If any party wishes to contend that further oral submissions should also be received, this should be raised in the written submissions. I will then determine whether any further oral submissions are in fact required.

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