Blundell v Curvers

[2002] NSWSC 436

CITATION:	Blundell v Curvers [2002] NSWSC 436
CURRENT JURISDICTION:	Equity Division
FILE NUMBER(S):	SC 2539/99
HEARING DATE(S):	1, 2, 3, 6 May 2002
JUDGMENT DATE:	22 May 2002
PARTIES :	William Blundell as Executor of the Will of Germaine Marguerite Marie Francoise Toussaint Curvers (P) John William Antony Curvers (D)
JUDGMENT OF:	Burchett AJ

COUNSEL :	M Rollinson (P) M Strikis (S)(D)
SOLICITORS:	Newman & Associates (P) Mikelis Strikis (D)
CATCHWORDS:	WILL- Ownership of personalty- Husband and wife- Resulting trust- Intention negativing presumption of advancement- Equity's preference for tenancy in common over joint tenancy- Court's power to direct division or sale of chattels owned in common under s 36A of the Conveyancing Act- Whether statement in will was evidence of facts.
LEGISLATION CITED:	Conveyancing Act 1919, s 36A
CASES CITED:	Baker v Barclays Bank Ltd [1955] 1 WLR 822 Delehunt v Carmody (1986) 161 CLR 464 Hepworth v Hepworth (1963) 110 CLR 309 Hughes v National Trustees, Executors & Agency Co of Australasia Ltd (1979) 143 CLR 134 Nelson v Nelson (1995) 184 CLR 538 Public Trustee v Pfeiffle [1991] 1 VR 19 Tillack v Tillack [1941] VLR 151
DECISION:	See para 17.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BURCHETT AJ

Wednesday 22 May 2002

2539/99 - William Blundell as Executor of the Will of Germaine Marguerite Marie Francoise Toussaint Curvers v John William Antony Curvers

JUDGMENT

1 BURCHETT AJ: Mrs Germaine Curvers died on 15 April 1997 and, after litigation in the Probate Division of this Court which was taken to the Court of Appeal, probate of her will was granted in solemn form to the plaintiff William Blundell. The order of the court admitting the document to probate deleted from it a gift of a painting by Emmanuel Phillips Fox, to which further reference will be made, purporting to be in favour of Mr Blundell. The present proceeding concerns the ownership of about 900 paintings etchings and drawings in the home of the deceased and her husband, of which her will purports to dispose, substantially for the benefit of certain charities. The husband, Mr John Curvers, whose evidence is supported by that of their daughter Mrs Sabrina McMahon, claims that the works of art are his own, in the case of most of them by virtue of a joint entitlement incidental to which was a right of survivorship.

2 With a few exceptions, the acquisition of the paintings and other works of art took place over a long period of years pursuant to a course of conduct which underwent some changes over the years, so that the reaching of conclusions about the ownership of items purchased requires, I think, an examination of that course of conduct and of the relations between the parties. Mr Curvers was born on 3 August 1921 and Mrs Curvers on 25 June 1925, in Belgium, where they married in 1950, just prior to migrating to Australia. There were two children of the marriage, one of whom is Mrs McMahon, now aged about 48. Mr Curvers established himself in business in Australia, apparently very successfully. In 1955, Mr Curvers purchased in his own name 299 Edgecliff Road Woollahra, a large building on one level of which the family lived, two other levels being converted into a guesthouse managed by Mrs Curvers. The home and guesthouse were furnished and decorated largely by the purchase of items at auctions, the purchase monies being provided initially by Mr Curvers from the business activities conducted by him, and later also from the earnings of the guesthouse business. In the early days, Mr and Mrs Curvers both attended auctions, but over a period, this activity became more and more the preserve of Mrs Curvers. She was extremely interested, not only in purchasing art for their home and guesthouse, but also in dealing in art. As a consequence, items which had been at 299 Edgecliff Road were frequently sold, to be replaced in due course by further purchases. Often, the money received by Mrs Curvers by selling one item would be used to purchase another, and from time to time she would ask her husband for further money to enable her to make a purchase. Mrs McMahon gave evidence of being taken by her mother to auctions on a very great number of occasions from quite early in her childhood. It is clear that the purchase of art became a major preoccupation of Mrs Curvers, and that the very large house became cluttered, well prior to the year 1985, with considerably in excess of 1,000 paintings, drawings, etchings and similar objects of art.

3 For approximately two and one half years between about 1980 and about 1982, Mrs Curvers was overseas in Europe, and in 1980, after managing the guesthouse business himself for about a year, Mr Curvers closed that business. The house at 299 Edgecliff Road remained the family home. Upon her return, Mrs Curvers resumed her purchases of artworks on an extensive scale. Partly because Mr Curvers objected to the cluttering of his house to such a great extent (at one stage, he said, the number of paintings in the house was 1,500), and perhaps even more because he objected to the use of the house for the negotiation of numerous dealings in artworks, Mrs Curvers acquired in 1985 premises for an art gallery in Windsor Street, Paddington. At about the same time, she arranged to rent, at first a quite small room, and later a quite large room, for the purpose of storage of works of art at Millers Self Storage Pty Limited, Ultimo. A number of paintings and similar works were moved from the home to these places by Mrs Curvers with the assistance of her daughter. Mrs McMahon gave evidence that her mother said to her:

"I want to separate my stock from your father’s. I want to be independent and free. I want to do business from my gallery without interruption from your father."

I accept this evidence. There is good reason to believe that a separation of the works of art in the home from works of art the subject of the gallery business of dealing in art was desirable, if not necessary, because at the time she opened the gallery Mrs Curvers also went into partnership with a gentleman independent of the Curvers family. That partnership did not last for very long, but it must have represented a break in the course of conduct pursued until then, and it must have required some clarification of where the boundary lay between the stock of the business and the personal possessions of Mr and Mrs Curvers.

4 During a period of approximately a decade prior to 1985, Mr and Mrs Curvers had had conversations about the purchase of works of art in which, according to his evidence, reference was made to the purchases being made "for us", and to the works being art which "we have". When Mr Curvers complained that the quantity was too great, Mrs Curvers replied that she would "sell one of my own properties and buy my own art". In about 1975, she began to do so. According to Mr Curvers, he then told her it was important she keep her own purchases "separate from ours". At the same time, he added:

"I am happy for you to manage our collection, but if you sell or exchange paintings from our collection, make sure that its overall value remains at about the same level."

He made it clear that what he wanted was "a nice art collection that served two purposes, firstly in beautifying the home and secondly as a good investment for the future." He also made it clear that he was happy for her to improve their collection by selling some pieces and buying better pieces in replacement. He expressed pleased approval of her actions in that regard, and his evidence is that she responded by expressing agreement with what he had said.

5 On 2nd November 1986, Mrs Curvers received at her gallery from a Mr Crockett, the Managing Director of Fraser Confirming Pty Ltd of Abbotsford, Victoria, a large painting (described as 3 feet x 5 feet in size) by Emmanuel Phillips Fox entitled "Yachts Returning to Port at St Ives Cornwall", painted in 1904. The painting was delivered to her for sale or return, and she attempted to sell it at a price of $120,000 on behalf of the owner. It appears she continued to have the painting at her gallery for many months, but a sale was not effected, and ultimately Mr Crockett on behalf of Fraser Confirming Pty Ltd agreed to sell the painting to Mrs Curvers herself at the substantially reduced price of $90,000. An invoice dated 14 October 1987 from Fraser Confirming Pty Ltd to Mrs Germaine Curvers Windsor Street Art Gallery, 118B Windsor Street Paddington for $110,000 in respect of this painting has endorsed on it a receipt dated 25 November 1987 for the sum of $90,000 "received in full settlement". Mr Curvers gave evidence that the transaction was preceded by a conversation between his wife and himself in which she said:

"If I can get the vendor down to $80,000 or $90,000 I think we should buy it. This artist is in short supply in Australia and I am sure it is a good investment…….I have sold so many paintings from the collection in our home, this painting should bring its value back into balance."

A discussion followed, in which Mrs Curvers accepted that she had probably sold of the order of $80,000 to $90,000 worth of stock from the collection in the home, and Mr Curvers concluded:

"Go ahead and buy it for us. Do you think the vendor will accept $80,000 or $90,000?"

to which Mrs Curvers responded:

"I’ll charm him to accept it."

Shortly afterwards, the painting was in fact brought to the home, where it has remained ever since, being hung by Mrs Curvers, according to her husband, "in our bedroom above our bed". Mr Curvers was challenged in cross-examination about his account of the purchase of this painting, but he insisted it was "in exchange for paintings she sold from the home collection".

6 A particular matter on which the plaintiff placed reliance was a conversation several years later, which Mr Curvers admitted he had with Mr Blundell. By then, Mrs Curvers had gone back to Europe, a trip made in 1988 that led to an absence of four and a half years until some time in 1992. In 1990 or 1991, Mr Blundell came to the house to speak to Mr Curvers. During the conversation, Mr Blundell asked the question:

"Does Germaine still own that large Fox and that large Jackson in her storage?"

to which, as Mr Curvers has acknowledged, he replied:

"I think so."

It is suggested that this reply is inconsistent with the Emmanuel Phillips Fox painting in question being property to which both Mr and Mrs Curvers were entitled. Mr Curvers, who for many years has suffered from emphysema, to the extent that in 1993 he became confined to one floor of his home, claimed that he simply wanted to be rid of Mr Blundell. Certainly, at that time, his only connection with Mr Blundell lay in the fact that Mr Blundell had been a business associate of his wife, over a number of years, in the art dealing she conducted prior to her departure overseas in 1988. They were not friends, and he had no reason to take Mr Blundell into his confidence in relation to his private arrangements with his wife concerning a painting acquired in the course of her business. In any case, the question linked the Fox painting with the Jackson painting described as being "in her storage", that is to say, as being at Ultimo where the evidence does not suggest Mr Curvers had ever been. If I were to reject Mr Curvers’ own explanation that he was simply putting Mr Blundell off, I could hardly think that the degree of doubt implicit in the answer "I think so" related to the painting which Mr Curvers must have known very well was hanging in his bedroom, or, perhaps, at that time, in some other room of his house, rather than the very natural doubt he may have had about a Jackson painting said to be somewhere in storage at Ultimo. But it is most likely that Mr Curvers would have understood Mr Blundell, as a dealer in art, to be asking in substance whether either or both of the paintings had been disposed of, and as he was not dealing in art himself, while his wife was overseas indefinitely, it probably is the fact that he would not have been interested in pursuing the conversation.

7 Certainly, the Emmanuel Phillips Fox painting was a very valuable painting to include in the parties’ private collection. However, the fact is that it was taken to the home soon after purchase, it remained there, and there is no contradiction of the evidence that it was put in the bedroom of the parties. Had it been intended to form part of the stock of the business of dealing in art, it is curious that there is no suggestion Mrs Curvers attempted to turn it to account at any time after it was taken to the home. When she returned from overseas in 1992, her daughter’s evidence shows her bank account (in respect of which Mrs McMahon was a signatory) was extremely depleted, and a valuable item of this kind, if part of the ordinary stock of the business of her gallery, would surely have been a very real attraction for the reactivation of that business. But, so far as appears, she did not see it, or attempt to use it, as such. Before, however, I come to a final conclusion on this item, I shall consider other aspects of the evidence that must be taken into account.

8 After her marriage to Mr McMahon in 1992, Mrs McMahon went to live in Brisbane with her husband. Mrs Curvers returned to Australia in 1992, and in 1993 or 1994, on one of a number of visits she made to her daughter, she noticed a painting hanging on the wall, and remarked:

"That is my painting."

Mrs McMahon replied that it was a painting her mother had given her, but Mrs Curvers insisted she had not. To avoid an argument with her mother, Mrs McMahon allowed Mrs Curvers to take the painting back with her to Sydney, and it has since remained in the home at 299 Edgecliff Road. Cross-examined about this episode, Mrs McMahon made it quite clear she had no doubt about the truth of the gift to her, which had taken place in the mid 1980’s. Having heard her answers under cross-examination, and bearing in mind the lapse of time between the making of the gift, according to Mrs McMahon, and the occasion when her mother happened to see the painting again, and in all the circumstances, I am quite satisfied that the account given by Mrs McMahon is correct. That her relations with her mother were consistent with the making of such a gift is confirmed both by her mother’s trust in her with respect to her bank accounts and by the not insubstantial provision for her contained in the will. Mrs McMahon was able to identify the painting in question as number 106 with the catalogue reference C4 – 1104, an oil painting by Leist, in Annexure U to an affidavit made by John Curvers on 1st May 2000. As I have accepted Mrs McMahon’s evidence, I should say at once that, whatever the position may be with respect to the other paintings in question in this case, the plaintiff cannot succeed with respect to that painting. Either, if it was the property of Mrs Curvers, she gave it to her daughter in her lifetime, or, if it was property to which she and her husband shared an entitlement, she gave her share to her daughter, so that the remaining share would continue to inhere in the defendant and not in the plaintiff.

9 There are a small number of other paintings to which it is convenient to refer separately at this stage. Six of them are paintings by Raymond de Cusack, numbers 1 to 6 inclusive in the same annexure, which Mr Curvers claims as his own sole property, either by personal purchase or by gift to him from the artist. There is no reason not to accept his evidence in this regard, and I do accept it. The other special issue requires no consideration by me because, during the hearing, it was conceded that a group of pastels by Victoria Fontaine, numbers 7 to 37 inclusive in Annexure U, were the separate personal property of Mr Curvers. They were all female nudes, known in the family as "Dad’s harem".

10 Returning to complete the account of the art purchases made by Mrs Curvers during her lifetime, I note that after her return from overseas in 1992, and until her death in 1997, she continued to manage the collection of art in the home, and also to conduct her gallery. Although she had a mastectomy in 1992, she did not appear to be gravely ill until about the time of her admission to St Vincents Hospital late in March 1997. It was a few days before her death that she made her will, prepared for her at her request by Mr Blundell, who is not a lawyer.

11 Very early in the document, Mrs Curvers’ will contained a note that certain paintings in the home, and also some paintings by Victoria Fontaine which were in the gallery, belonged to her husband John Curvers. I should interpolate here that I am satisfied it was by mistake that the Victoria Fontaine pastels in the home, and very likely also the de Cusack works, were omitted from this statement. The will continues:

"ALL OTHER PICTURES, ART BOOKS, ARTISTS [sic] LETTERS AND DOCUMENTS IN MY HOME 299 EDGECLIFF ROAD WOOLLAHRA…….ARE MY POSSESSIONS.
ALL ART WORKS, ………AND REMAINDER OF CONTENTS IN MY GALLERY, EXCEPT THE PICTURES BY VICTORIA FONTAIN [sic], ARE MY POSSESSIONS………..
ALL ART WORKS AND CONTENTS OF MY STOREROOM AT MILLERS 492 JONES STREET ULTIMO………ARE MY POSSESSIONS."

The plaintiff relied on the first of these three paragraphs as evidence that the pictures claimed were indeed the property of Mrs Curvers. So far as the statement in it is one of fact, rather than law, I understand reliance to be placed on the Evidence Act 1995, on the basis that its maker is deceased. Apart from statute, such a statement could not be evidence of the facts stated: Hughes v National Trustees, Executors and Agency Company of Australasia Limited (1979) 143 CLR 134, where Gibbs J won the agreement of Mason and Aickin JJ to views which he had foreshadowed in an article Admissibility of Statements by a Testator in Testator's Family Maintenance Proceedings (1956) 2 University of Queensland LJ 150. It is unnecessary to examine the precise effect of the Evidence Act , for if I assume that the will's assertion of property in all the paintings in question should be given weight as the evidence in writing of Mrs Curvers, who cannot now be called because of her death, given on a very solemn occasion, I must still take into account against it the evidence to the contrary. That evidence I find persuasive.

12 Having considered the circumstances and the testimony of Mr Curvers and Mrs McMahon, together with the evidence of the other witnesses, I am satisfied that the works of art in the house were in a quite different category from those in the gallery or at Ultimo. The paintings etchings and drawings in the house were acquired, with a few exceptions that have been mentioned, for Mr and Mrs Curvers as property belonging to them equally. Generally, I accept the evidence of Mr Curvers and Mrs McMahon, although I consider that the question of survivorship was not mentioned in relation to the property in the works of art, nor in relation to their acquisition. But, as Mr Curvers claimed, it was expressly stated, and was understood between Mr and Mrs Curvers during the whole period of the acquisition of the works in their home, that they were both entitled to those works. That entitlement was understood to be in equal shares, and I am satisfied that, so far as the presumption of advancement was involved, it was at all times rebutted, as I am able to make, and do make, a positive finding of intention: Nelson v Nelson (1995) 184 CLR 538 at 549, 603. The relevant intention did not, of course, need to be expressed in technical language, so long as the spouses understood each other, as Windeyer J explained in Hepworth v Hepworth (1963) 110 CLR 309 at 317. Mr Curvers' intention to have an equal interest in the works of art bought for the house being made clear to his wife at all times, there is no reason why a resulting trust should not operate to the extent of a one half share, on the basis that the preponderant part of the moneys utilized in their acquisition belonged to him, as I am satisfied it did. It is true Mrs Curvers acquired some separate property, but I accept the evidence of her husband and daughter which indicates this was not the source of most of the expenditure on works of art for the home, but was largely spent quite otherwise or on the stock traded in the gallery.

13 There is a further consequence of my acceptance of the evidence showing that the expressed intention of the parties was to acquire and own the works of art for the house together and equally. Equity's "dislike of joint tenancies" (Delehunt v Carmody (1986) 161 CLR 464 at 473; and see Public Trustee v Pfeiffle [1991] 1 VR 19 at 34 et seq., per Ormiston J) is effective to ensure that their ownership of them should be held to be in common. In Delehunt v Carmody, Gibbs CJ said (at 470), with the concurrence of Wilson, Brennan, Deane and Dawson JJ, that "in general equity preferred tenancies in common, probably to give effect to the maxim 'equity is equality' ". That maxim is contrary to a joint tenancy, in which there is "no equality except, perhaps, an equality of chance": Snell's Equity, 29 ed. (1990) 36; Delehunt v Carmody at 473.

14 Earlier, I deferred reaching a final conclusion about the large Emmanuel Phillips Fox painting until I could take account of the context provided by my findings about the generality of the collection. It is convenient now to return to that painting. The evidence which I accept shows that it was paid for entirely, or almost entirely, with the proceeds of the sales of paintings that had belonged to Mr and Mrs Curvers equally. The express intention of the parties , I accept, was that it should replace those paintings in the collection they shared in their home. It was in fact taken there, and found a place in their bedroom, where it remained. There is no evidence Mrs Curvers ever did anything with it which would mark it out as part of the stock of her gallery. I find it was acquired to be and was part of the collection of paintings in the home that belonged to Mr and Mrs Curvers equally.

15 The result of these findings is that the executor has not proved he is entitled, in respect of any of the works of art in question in this proceeding, to the sole ownership he has asserted. But he has established a one half interest as tenant in common in the majority of them. Such an interest would not entitle him to an order for possession, as his right is no greater than that of Mr Curvers: Helmore's Personal Property and Mercantile Law in New South Wales, 10 ed. (1992) 61-62; Baker v Barclays Bank Ltd [1955] 1 WLR 822 at 827, per Devlin J (as Lord Devlin then was).

16 But the Court is not impotent to enforce the rights of the executor. Section 36A of the Conveyancing Act 1919 provides:

" 36A Power to direct division of chattels
Where any chattels belong to persons jointly or in undivided shares, the persons interested to the extent of a moiety or upwards may apply to the court for an order for division of the chattels or any of them, according to a valuation or otherwise, and the court may make such order and give any consequential directions as it thinks fit."

This provision, modelled on s 188 of the Law of Property Act 1925 (U.K.), is in closely similar terms to those of s 187 of the Property Law Act 1928 (Vic.), which was construed by Lowe J in Tillack v Tillack [1941} VLR 151 as authorising an order directing the sale of a chattel belonging to persons in undivided shares, and providing for the disposition of the proceeds of sale. That decision has been accepted as applicable to the construction of s 36A of the Conveyancing Act : Helmore , op. cit. 62.

17 The only order I need make now is to direct counsel for the Plaintiff to bring in short minutes of orders appropriate to reflect these reasons, which should include an order or orders under s 36A. In the drafting of the s 36A relief, attention should be given to the alternatives of a division of the actual works of art, or a sale and division of the proceeds, and also to the possibility that the Defendant may wish to retain particular works in the home, paying the plaintiff an amount on an appraisal of the value of the Plaintiff's one half share. When the short minutes are brought in, I shall hear the parties as to costs.

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Last Modified: 05/23/2002