Baker and Brennan v the Public Trustee

[1998] QSC 162

THE SUPREME COURT

OF QUEENSLAND

No. 7026  of 1998
Brisbane

Before             White J

[Baker and Brennan v The Public Trustee]

BETWEEN:

HANORA MARGARET BAKER AND

GLADYS RUTHERFORD BRENNAN

Applicants
AND:

THE PUBLIC TRUSTEE OF QUEENSLAND

Respondent

CATCHWORDS: Declaration of entitlement - ss.102, 108, 111 Public Trust Act 1978 - purported sale of land 1910 - fraud - entitlement of successors.

Counsel:  Mr A West for applicants

Mr B Nickel for the Public Trustee

Solicitors:Carne and Herd as town agents for Dale & Fallu

for applicants

Official Solicitor to the Public Trustee for The Public Trustee.

Hearing Date:              17 August 1998

REASONS FOR JUDGMENT - WHITE J

Judgment delivered 21 August 1998

Hanora Margaret Baker and Gladys Rutherford Brennan (“the applicants”) seek declarations that they are each entitled to a half share of certain monies in the hands of the Public Trustee of Queensland as unclaimed monies being $50,416.78 and accretions thereto.  Those monies are the net proceeds of sale of certain real property known as 3 Lupton Street, Churchill in the State of Queensland, more particularly described as subdivisions 59, 70 and 71 of Portion 123 in the County of Churchill, Parish of Purga, being 32.2 perches contained in Certificate of Title Volume 652, Folio 22 (“the land”).

These monies were paid to the Public Trustee pursuant to s.102 of the Public Trustee Act from the Ipswich City Council as “unclaimed monies”. The Ipswich City Council sold the land in 1994 to satisfy unpaid rates and the subject monies are the net proceeds after the proceeds were applied pursuant to s.1047 of the Local Government Act 1993. By virtue of s.108 of the Public Trustee Act the Public Trustee having received the money holds it “for the person entitled thereto”.

The Public Trustee has concerns as to the entitlement of the applicants. Had the applicants not sought the declaration they do, the Public Trustee would have applied to the Court for directions.  It is necessary to recite at some length the history of this matter in order to address those concerns.  A brief overview at the outset will indicate why this is necessary.

Daniel McAuliffe purchased the land in March 1887.  By his will dated 24 June 1905 he appointed his daughter Mary Brennan and his son Cornelius McAuliffe as his personal representatives and trustees.  He gave his widow a life interest in all his estate and upon her death to his two personal representatives as tenants in common in equal shares.  Cornelius McAuliffe purported to sell the land to Patrick Joseph Slattery for £6.  There is some dispute as to whether this occurred in 1910 or in 1915.  Daniel McAuliffe died in 1913 and his widow in 1923.  The land was used by the Slattery family for grazing purposes from 1915.  The applicant Gladys Rutherford Brennan claims her entitlement to a half share in the monies held by the Public Trustee through Mary Brennan, the daughter of Daniel McAuliffe.  Hanora Margaret Baker claims her

entitlement to a half share in those monies through Patrick Joseph Slattery.  Before dealing with the substance of the application the lines of descent of each applicant need to be examined.

Line of Descent to Gladys Rutherford Brennan

Daniel McAuliffe died on 10 September 1913 leaving a widow, Joanna and 5 children: Ellen, Mary, Johannah, Margaret and Cornelius.  By his will as mentioned above he appointed his daughter, Mary Brennan, and his son, Cornelius McAuliffe, as his personal representatives who received his entire estate as tenants in common in equal shares subject to a life interest in his widow.  Accordingly, his other children obtained no interest in the estate of their late father and in particular no interest in the land.  His widow died on 25 December 1923. 

Mary Brennan (née McAuliffe) married Charles Brennan.  She died on 23 February 1964 and was survived by four children: Norman, Francis, Agnes and Colin.  By her will she left her estate in equal shares to her children Agnes and Colin.  Agnes died on 2 June 1977 leaving no issue.   By her will she left her entire estate after providing for some specific legacies, to her brother Colin. Colin married the applicant Gladys Rutherford Brennan in 1940.  He died on 4 March 1992 and was survived by his widow.  By his will he left his entire estate to  his widow.

Accordingly Gladys Rutherford Brennan is the sole claimant to the interest of Mary Brennan in the land which the money, the subject of the application, now represents.

Line of descent to Hanora Margaret Baker

Patrick Joseph Slattery and Elwine Crepin were married on 2 June 1909.  He died on 4 August 1935 and left his widow and four children: Alma, Veronica, the applicant Hanora Margaret Baker and Leo. Patrick Joseph Slattery died intestate and his widow assumed possession of his whole estate which included the land.

Elwine Slattery died on 6 August 1967 and by her will she left her estate to her four children in equal shares.  Alma renounced any claim she might have to the land on 8 September 1986.  Veronica died on 5 August 1980 and by her will she left her entire estate to her two sons.  They have both renounced any claim to the land.  Leo renounced any claim on 11 June 1988.

In those circumstances the applicant, Hanora Margaret Baker, is the sole claimant to the interest of Patrick Joseph Slattery (and Elwine Slattery) in the land which the money the subject of the application now represents.

For the reason which will be apparent in due course the descendants of Cornelius McAuliffe have not been served although some enquiry has been made as to whom they might be.

The Land

Daniel McAuliffe purchased the land in March 1887.  As mentioned by his will dated 24 June 1905 he gave his entire estate to his daughter Mary Brennan and son Cornelius McAuliffe subject to a life interest to his wife.  From 1917 when the subject land came within the jurisdiction of the Ipswich City Council the rateable owners of the land were recorded as Patrick Joseph Slattery and Alvina Slattery, either alone or together  (Mrs Slattery’s name was spelt differently on various documents).  Daniel McAuliffe continued to be the registered owner of the land at least until the sale for unpaid rates in 1994.  Two stamped memoranda of a transaction for the sale of land survive in solicitors’ files.  The documents are hand written and are as follows:

“  Ipswich

June 22nd-19-10

I have received this day from P.J. Slattery the sum of £36-0-0 being final receipt for land sold.    I the undersigned am agreeable to pay for getting of deed for same if necessary.

Signed  C McAuliffe

Witness

P.J. Slattery”

“  Ipswich

July 12-1910

I have received this day from P.J. Slattery the sum of £6-0-0 being amount on land sold to same.

Description of land. Subdivision   70  containing 24 Perches

”           71        ”     25³/₁₀       ”  

”           59        ”     22⁴/₁₀     ” 

Signed

C.J. McAuliffe”

Since 1 August 1892 the certificate of title for the land had been held by Daniel McAuliffe’s then solicitors and the successors in title to the original firm.  In February 1915 it seems that Patrick Joseph Slattery  instructed a firm of solicitors, Pender & Pender of Ipswich, who attended on Mr McAuliffe’s solicitors on 9 February on instructions from Cornelius McAuliffe to see the title deed “as it had been sold to a man called P J Slattery”.  Cornelius McAuliffe had not then spoken to his late father’s solicitors on this matter.  An office note of the same date indicates that “Mrs Mary Brennan called a week or so ago and said that her brother had sold the land for £6 to Slattery without her consent and that she did not approve and would not carry out the sale”.  A letter dated February 1915 signed by C J McAuliffe instructed the late Daniel McAuliffe’s solicitors to allow Mr Slattery’s solicitors “who have instructions to obtain title of the Churchill land” to inspect the will of “my late father Daniel McAuliffe”.

Nothing further appears to have occurred towards regularising the title either pursuant to the will or as a consequence of the “sale” to Mr Slattery apparently because of the cost involved compared to the value of the land.

Mary Brennan called upon her father’s solicitors in April 1948 and informed Mr Simpson the solicitor with the firm who had written the 1915 memoranda that Mrs Slattery had called to see her maintaining that over 30 years ago she had bought the land from her brother, Cornelius McAuliffe.  Mrs Brennan said “that she had heard some talk of this at the time but there was no sale and no purchase money had been received by her”.  Mr Simpson told Mrs Brennan of the necessary steps and costs before Mrs Slattery could have the land transferred to her.

In 1956 Mrs Slattery applied pursuant to the Real Property Acts Amendment Act 1952 for title to the land by adverse possession.  According to her statement attached to her declaration Mrs Slattery maintained that the agreement in writing for the sale of the land was made on 22 June 1915.  She declared that her husband entered into possession of the land on that date, and continued in possession until 3 August 1938, the date of his death and during that period he used the land for grazing stock.  All rates, taxes and other outgoings over the land had been paid by him to his death. Thereafter Mrs Slattery entered into possession of the land and continued to use it for grazing stock and paid the necessary rates and outgoings.

The Registrar of Titles raised a number of requisitions in relation to Mrs Slattery’s application and in particular Mary Brennan’s attitude to the alleged sale to Mr Slattery.  Mary Brennan told Mrs Slattery’s solicitors that she had not consented to the sale of the land and did not know of its sale until “some time after her father’s death”.  She told Francis Moore, a law clerk in the employ of Mrs Slattery’s solicitors:

““I knew the land had been sold by my brother, and the money received by him for the sale”.  She further stated that she said to her brother “that was an awful thing to do.  Why did you do it?”  He replied, “I was hard up”.  The said Mrs MARY BRENNAN further stated that as she received nothing from the sale of the land, she would not give Mrs Slattery any assistance to enable her to receive a deed to the said land.”

Mrs Slattery’s application was withdrawn and renewed in 1969 by the applicant Hanora Margaret Baker.  By this time Mary Brennan had died and left all of her real property to Colin Brennan and Agnes Brennan as tenants in common in equal shares.  On the renewal of the application they (both now deceased) lodged a caveat each claiming an undivided fourth share as tenants in common in the land.   As a consequence the application made by Hanora Margaret Baker was refused on 15 April 1970.

Advices were taken and negotiations occurred between Hanora Margaret Baker and Colin Brennan and Agnes Brennan.  They reached agreement as to their respective entitlements and discussed matters with the Public Trustee and the Registrar of Titles.  It is unnecessary to set out the communications between those officers and the solicitors for the two applicants.  It is sufficient to say that the negotiations were drawn out and promised to be expensive if any result satisfactory to the applicants and those officers was to be achieved.  It was proposed in 1986 to move the Court for an order that Hanora Margaret Baker and Colin Brennan be registered by the Registrar of Titles as the proprietors of the land as tenants in common and equal shares, but despite much preparation the motion did not proceed. An examination of the interests of any potential claimant through Cornelius McAuliffe was investigated.  He had died intestate on 5 October 1943 leaving three children.  Neither Cornelius McAuliffe nor any descendant of his has made any claim to the land since its purported sale to Patrick Joseph Slattery or to the money which now represents it.

In 1994 the Ipswich City Council sold the land for arrears of rates for the sum of $75,000.  After discharging the rates and the costs of sale an amount of $50,416.78 remained in the Council’s trust account.  Subsequently the applicants agreed upon the terms of a Deed recording their respective claims to the money held by the Council which was sent to the Council for its perusal. The Council took the view that the Deed was insufficiently protective of its position.  Some two years later the Council wrote to the solicitors for Hanora Margaret Baker that the Council had transferred the money to the Public Trustee.  The Public Trustee was then requested  to accept the claims of the applicants to the money now in his hands, but after examination of the solicitors’ files the Public Trustee was unwilling to decide the matter on the material available “as there are a number of possibilities surrounding the purported sale of the property”.

Each of the applicants recognizes the other’s claim to one half of the monies as representing her interest in the land.

Mr Nickel for the Public Trustee raises a number of concerns, namely, that the date of the sale of the property is uncertain, that there is no documentary evidence of the sale if it occurred in 1915, there could be no presumption of regularity because Mary Brennan consistently maintained her opposition to the sale to Mr Slattery, that the claim for title by adverse possession had been refused by the Registrar of Titles, that the Ipswich City Council declined to exercise its powers under s.1047 of the Local Government Act in favour of the applicants and that the doctrine of part performance probably did not apply. In view of the approach I take to this matter it is not necessary to address each of those matters specifically. There are some difficulties relating to proof, however, the beneficial effect of s.111 of the Public Trustee Act 1978 may be resorted to. It provides:

“The Court or the Public Trustee when acting under this Division may -

(a)accept and act upon any evidence available whether legally admissible or not; and

(b)accept the claimant as the owner of or entitled to possession of any property notwithstanding that the claimant may be unable to adduce such sufficient evidence as would entitle the claimant to obtain or recover possession of the property in other proceedings; and

(c)have regard to the circumstances of each case in determining the character and sufficiency of the evidence of title adduced.”

All the evidence points to Cornelius McAuliffe wrongfully asserting an entitlement to sell the land to Patrick Joseph Slattery in June 1910 and receiving £6 as the purchase for the whole of the land from him.  This was clearly a fraud upon Mr Slattery.  It was not until 1915 after Daniel McAuliffe’s death that Mr Slattery made some attempt through his solicitors to obtain the title deed to the land and this would explain Mrs Slattery’s mistake as to the date of the sale. When his father died Cornelius McAuliffe became entitled to one half share in the land as tenant in common in equal shares with his sister Mary.  He then held his half share on trust for Patrick Joseph Slattery.  At no time did Mary Brennan abandon her claim to her one half share in the land.  It is unnecessary to trace and serve the descendants of Cornelius McAuliffe because they have no entitlement to any interest in the land or the proceeds of the sale of the land since any interest has been entirely extinguished by the fraudulent act of Cornelius McAuliffe.

I am satisfied on the material before me and making use of s.111 of the Public Trustee Act

that there are only two claimants entitled to the money in the hands of the Public Trustee which now represents the land, namely the applicants Hanora Margaret Baker and Gladys Rutherford Brennan.  I make the declarations sought that Hanora Margaret Baker and Gladys Rutherford Brennan are each entitled to a half share of monies in the hands of the Public Trustee of Queensland as unclaimed money, namely, $50,416.78 and accretions thereto being the net proceeds of sale of certain real property known as 3 Lupton Street at Churchill in the State of Queensland, and more particularly described as subdivisions 59,70 and 71 of portion 123 in the County of Churchill, Parish of Purga, being 32.2 perches contained in Certificate of Title Volume 652, Folio 22.  I further order that the Public Trustee be authorised to deduct his costs from the monies held by him in respect of this matter and pay the balance thereof to the solicitors for the applicant Hanora Margaret Baker and the solicitors receipt therefore will be sufficient discharge. The solicitors are to distribute the balance monies in accordance with this order.