Buck v Washband

[1998] QCA 310

IN THE COURT OF APPEAL	[1998] QCA 310
SUPREME COURT OF QUEENSLAND

Appeal No. 346 of 1998

Brisbane

[Buck v. Washband]

BETWEEN:

MICHELE BUCK

(Defendant) Appellant

AND:

CHERYL WASHBAND

(Plaintiff)	Respondent
de Jersey C.J. McPherson J.A. Thomas J.A.

Judgment delivered 16 October 1998

Separate reasons for judgment of each member of the Court each concurring as to the order made.

APPEAL DISMISSED WITH COSTS TO BE TAXED

CATCHWORDS:	TRUSTS - resulting trust - no financial contribution - whether presumption of resulting trust rebutted - whether open to trial judge to infer that a gift of an interest in the property intended - interpretation - whether discharges related to the property. Calverley v. Green (1984) 155 C.L.R. 242
Counsel:	Mr P.A. Keane Q.C., with him Mr D.J. Campbell for the appellant Mr P.E. Hack for the respondent
Solicitors:	Hemming & Hart for the appellant Peter Daley for the respondent
Hearing Date:	30 September 1998

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 346 of 1998

Brisbane

Before de Jersey CJ
McPherson JA
Thomas JA

[Buck v. Washband]

BETWEEN:

MICHELE BUCK

(Defendant) Appellant

AND:

CHERYL WASHBAND

(Plaintiff) Respondent

REASONS FOR JUDGMENT - de JERSEY CJ

Judgment delivered 16 October 1998

1                The parties are sisters. The learned trial judge held that the appellant held $77,273 on trust

for herself and the respondent, and that the respondent was entitled to $35,379.09 of it. The

judgment in favour of the respondent, including interest, amounted to $55,191.38.

2                The sum of $77,273 represented the proceeds of sale of a property at Boondall, purchased

in the joint names of the appellant, the respondent and their mother. On his Honour’s findings, the

appellant and her mother provided all of the moneys which facilitated the purchase of that property,

the respondent making no financial contribution. The Boondall property had been purchased utilising

to a large extent the proceeds of sale of another property, in Killeen Street, Nundah, which had earlier been owned by the appellant and her mother. After the sale of the Boondall property, the

appellant deposited the moneys into a joint account in the names of the appellant and the respondent,

later placing the moneys into an account in her name alone.

3                The circumstance that the respondent made no financial contribution to the property from

which the fund derived would give rise to a rebuttable presumption that the respondent held her

interest in the moneys on a resulting trust for the appellant (and their mother). But the learned judge

held that the presumption was rebutted by evidence that the appellant and her mother had given the

respondent an interest in the Boondall property in order to aid her recovery from a psychiatric illness,

to give her an interest “so that she could be part of it and be part of the improvements we were

making”. The judge did not read that as relating merely to the conferring of a bare legal estate, but

as justifying the finding of the gift of a beneficial interest. That was a finding reasonably open on the

evidence in the case, with the necessary supporting inferences reasonably being drawn as to the

intentions of the appellant and her mother. See, generally, Calverley v Green (1984) 155 C.L.R.

242.

4                The learned judge set the respondent’s entitlement at one-third of the proceeds of sale of

the Boondall property ($77,273 - one-third amounting to $25,757.67) plus one-half of her mother’s

share ($19,242.83 - one-half being $9,621.41). The mother had died by the time of trial, and there

was evidence that she had disclaimed any interest in the fund. As to the division of the mother’s

share, the judge concluded that there was no intention on the mother’s part to benefit one daughter

more than the other. The appellant challenges these findings.

5                As to the finding that the respondent had a beneficial interest commensurate with that of her

sister and mother, the appellant emphasised (at least in the written submissions) that the respondent

had made no financial contribution to the Boondall property. But that was not of course the basis

upon which, on his Honour’s approach, she gained the interest, that basis being that the appellant

and her mother chose to give her a beneficial interest, for the reason previously expressed, that being

perfected by including her on the legal title.

6                As to the finding that the two daughters should equally share the mother’s interest, the basis

from which his Honour moved was plainly correct: an intention in the mother, presumed, not to

discriminate between the two sisters.

7                Mr Keane QC, who appeared for the appellant, separately submitted that his Honour

wrongly rejected a contention that the respondent’s claim was barred by a discharge, by which the

respondent had accepted $60,000 in full settlement of her interest in a Mt Mellum property. The

respondent gave evidence that in executing the discharge, she believed that the moneys from the

Boondall property had gone into the Mt Mellum property. The judge, it should be noted however,

did not generally accept the respondent’s evidence. The appellant apparently intended to put the

Boondall moneys into the Mt Mellum property, but that never occurred. His Honour took the view

that this discharge was not sufficiently comprehensively expressed to extend to the moneys in the

bank account (derived from the Boondall property), so that the discharge could not be relied on as

a bar to this claim. The terms of the discharge are expressly confined to claims “relating to the said

property”, meaning the Mt Mellum property. His Honour said:

“The wording of the deed of dissolution and the discharge are not sufficiently broad to include reference to moneys in a bank account. It is rather likely, in my view, that if either party had adverted to the moneys and had intended that their ownership be disposed of in some way that some provision would have been made in respect of them in the documentation brought into existence to give effect to an agreement for the distribution of jointly owned assets.”

I do not consider that the appellant has established that this approach was erroneous. On the

evidence apparently accepted by the learned judge, the claim to the moneys in the bank account did

not “relate to” the Mt Mellum property in terms of the discharge.

8                The appellant also separately relied on her having given her mother $40,000 under another

deed of discharge, executed by the mother as part of the resolution of family differences. But again

there is no evidence that she gave her mother that money as consideration for her mother’s interest

in this fund deriving from the sale of the Boondall land. The judge found, as he was entitled, that the

$40,000 was not paid or received in satisfaction of any claim to the proceeds of sale of the Boondall

land. The same approach applies to this discharge, which also in terms related to Mt Mellum, as to

the discharge given by the respondent. The discharge in respect of the mother was not apt to

extinguish her claim to the money in the bank account which was, in accordance with his Honour’s

approach, ultimately to be distributed between the sisters.

9                For these reasons I consider the learned judge’s approach to have been open and

unassailable. I would dismiss the appeal with costs to be taxed.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 346 of 1998

Brisbane

Before de Jersey C.J.
McPherson J.A.
Thomas J.A.

[Buck v. Washband]

BETWEEN:

MICHELE BUCK

(Defendant) Appellant

AND:

CHERYL WASHBAND

(Plaintiff) Respondent

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered 16 October 1998

1   On the hearing of this appeal, the defendant (who is the appellant in this Court)

challenged the judgment below on what were essentially two grounds. One was the proper

interpretation of the written memorandum of discharge executed by the parties; the other was

the finding of the learned judge that the presumption of resulting trust in favour of the defendant

was rebutted.

2           I have read the reasons of the Chief Justice with respect to these and other matters. I agree with what his Honour has said, and with the order he proposes for disposing of the appeal. I will add only a few words of my own for concluding that the appeal on the latter

question must fail.

3   Registering title to the Boondall property in the names of the plaintiff as well as the

defendant and her mother was capable of raising a presumption of a resulting trust in favour of

one or both of those who contributed to its purchase. That presumption, which would have the

consequence that in equity the plaintiff held her interest in the property for the benefit of others,

is and in this case was capable of being displaced by evidence that at the time the intention of

the other transferees was that the plaintiff should take and hold it beneficially. See Calverley

v. Green (1984) 155 C.L.R. 242, 261.

4   In substance, what is needed is evidence of an intention to confer the interest beneficially

on the transferee: Calverley v. Green (1984) 155 C.L.R. 242, 251; or in other words, to

make a gift of it to that person. Such an intention may be expressed in words, or it may be

inferred from acts, or from a combination of both what was said and what was done. In the

present case, as the Chief Justice has pointed out in his reasons, the defendant in her evidence

at the trial testified that the reason for including the plaintiff in the transfer was to give her “an

interest in what was going on”. The plaintiff had not been well, and she and her mother decided

that “for her to be able to recover”, she needed to have some interest in what was going on:

“so we felt that it might be a good idea if we put her name on the property so that she could be part of it and be part of the improvements we were making.”

1. There is, of course, an element of ambiguity in the word “interest” in this explanation. But

   it is difficult to see much point in including the plaintiff’s name on the title if she was intended to do

   no more than hold as trustee for the other two transferees. To have done so would not have made

   her “part of it” or provided her with an interest in “what was going on”. She would have subject

   entirely to the direction of the other two as sole beneficial owners. That would scarcely have

   provided the impetus for recovery from her depressive illness. On the contrary, it would simply have

   exposed her as trustee to the liabilities but conferred none of the benefits of ownership of the

   property.

2. It was therefore plainly open to the trial judge to draw the inference, which he did, that a gift

   of an interest in the property was intended. In making a finding to that effect, his Honour did not

   initially use the language of gift; but his supplementary reasons show that that was what he meant.

   He said:

   “there is evidence that the defendant and her mother intended [the] plaintiff to take a beneficial interest in [the] property despite the fact that the plaintiff was not expected to contribute to the purchase price.”

   A finding to that effect was available on the evidence, and there is no justification for disturbing it.

   Indeed, on what was said by the defendant to be the reason for including the defendant on the title

   as transferee, the inference drawn by his Honour seems, with respect, to be correct. For these and

   the other reasons given by the Chief Justice the appeal should be dismissed with costs.

   IN THE COURT OF APPEAL

   SUPREME COURT OF QUEENSLAND

   Appeal No. 346 of 1998

   Brisbane

Before de Jersey C.J.
McPherson J.A.
Thomas J.A.

[Buck v. Washband]

BETWEEN:

MICHELE BUCK

(Defendant) Appellant

AND:

CHERYL WASHBAND

(Plaintiff) Respondent

REASONS FOR JUDGMENT - THOMAS J.A.

Judgment delivered 16 October 1998

1                 I agree with the reasons of the Chief Justice and of McPherson J.A. and with the orders

proposed by the Chief Justice.