Campbell v Denton No. Scgrg-97-862 Judgment No. S6983

CAMPBELL V DENTON

[1998] SASC 6983

Civil

LANDER J.

The Proceedings

On 19 June 1997, the plaintiff brought proceedings against the defendant seeking an order “for delivery of possession of the whole of the land comprised and described in Certificate Of Title Register Book Volume 4310 Folio 362 being the whole of the land situated at 17 Frederick Street, North Adelaide, by the defendant to the plaintiff”.
The summons was brought pursuant to Part XVII of the Real Property Act (1886) and r65.01 of the Supreme Court Rules 1987.
The summons was accompanied by an affidavit of Alan Scott, who is a member of the firm Sims Lockwood and Partners, Chartered Accountants, of which the plaintiff is a consultant.
Mr Scott deposed that a Mr Peter John Balnaves was formerly the registered proprietor of the property at 17 Frederick Street, North Adelaide, being the subject of the application, the property having been transferred to him by the defendant on 27 August 1993.
Mr Scott deposed that the plaintiff had been appointed the “statutory trustee for the interest of Balnaves in the land by order made in the Family Court of Australia on the 26th day of May 1994 in aid of an order for payment of outstanding Child Support due by Balnaves to the Child Support Registrar on behalf of the Commonwealth of Australia”.

The Order In The Family Court of Australia

The order appointing the plaintiff as statutory trustee of the sale of the interest of Mr Balnaves was exhibited to Mr Scott’s affidavit.
That order shows that on 26 May 1994 a Registrar of the Family Court made a declaration that Peter John Balnaves “owes to the Commonwealth of Australia pursuant to registered maintenance liabilities the sum of Nineteen Thousand Two Hundred and Sixty Four dollars and four cents ($19264.04) inclusive of penalties”.
The registrar ordered inter alia
“1.That the Father (Mr Balnaves) pay to the Child Support Registrar the sum of $19264.04 together with the amount of costs in paragraph 2 hereof within 90 days from the date of these orders.

2.That the Father pay the costs of the Commonwealth fixed in the sum of $800.

3.That in the event that the father is in default of Order 1 herein the (sic) Andrew Ryrie Campbell shall be appointed statutory trustee for the sale of the Father’s interest in real property registered in his name, being situated at and known as 17 Frederick Street North Adelaide in the State of South Australia (the land) Certificate Of Title Book number 4310 Folio number 362 pursuant to Order 33, rule 7 of the Family Law Rules.”

The order further provided:
“That the proceeds of the sale referred to in paragraph 3 hereof shall be paid out by the trustee in the following manner and or priority;
(i).... firstly, in payment of all costs, commissions and expenses of the said trust transfer and sale including all costs incurred by the said Andrew Ryrie Campbell Trustee;
(ii) secondly, in discharge of any encumbrance upon the said real propertyt (sic);
(iii).. thirdly, in payment of the total sum set out in paragraphs 1 and 2 hereof;
(iv) fourthly, in payment of any residue to the Father.”
The order further included the following orders:
“(6)That the Father be restrained from assigning, transferring, encumbering or otherwise dealing with the said real property except for the purpose of transferring his interests in the said real property to the said Andrew Ryrie Campbell Trustee in accordance with paragraph 3 hereof.
(7)............. That the said real property be charged with the debt set out in paragraph 1 hereof.
(8)That liberty to apply on seven days notice be granted to the Child Support Registrar to obtrain (sic) any further orders or diretion (sic) in relation to the implementation of orders herein including any further direction under Order 33 rule 7 of the Family Law Rules for the disposition of the proceeds of sale.”
On 20 September 1994 the order of the Family Court of Australia was registered at the Lands Title Office and the Certificate Of Title shows the following endorsement:
“Order of Court 7795274 dated 26.5.1994 appointing Andrew Ryrie Campbell c/- KMPG (sic) Peat Marwick 115 Grenfell Street Adelaide 5000 statutory trustee for sale of the within land, restraining the within name Peter John Balnaves from dealing with the said land as directed therein and charging the within land with the debt described in the said order Produced 20.09.1994 at 16:20.”

The Preliminary Facts On The Ejectment Proceedings

Mr Scott further deposed that title to the land had been transferred to the plaintiff on 19 April 1995 to enable him to effect sale as directed by the Family Court of Australia.
He further deposed that on 26 November 1996 the plaintiff served a notice to vacate on the defendant requiring the defendant to vacate the land within one calendar month.
He said that on 23 December 1996 the defendant responded to the notice by facsimile transmission to the plaintiff’s solicitors in which he disputed the right of the plaintiff to remove him from the premises.
The defendant’s response as exhibited to Mr Scott’s affidavit was in the following terms:
“Messrs Ward & Partners,
26 Flinders Street,
ADEALDIE S.A. 5000
Fax : 8.410.5215
Attn. Mr. A. Luckhurst-Smith
Dear Sirs,
17 Frederick Street North Adelaide
and
A.R. CAMPBELL
Because of illness, I did not receive your “Notice to Vacate” until after the noted date of service.
I dispute “the Statutory Trustee” ‘s (sic) right to terminate my right of occupation and will resist any attempt to remove me from the premises.
If the matter can not be resolved by discussion, I require the Trustee to take proceedings to detirmine (sic), finally, the situation.
Yours faithfully,
T.R. DENTON ”

The Further Application In The Family Court

In response to the plaintiff’s summons for ejectment, the defendant’s solicitor filed an affidavit in which he deposed that on 29 July 1997 the defendant had issued an application in the Family Court of Australia seeking to intervene in the proceedings between the Child Support Registrar and Peter John Balnaves. The defendant had also sought leave to issue an application for review of the Registrar’s decision made on 26 May 1994 which supported the orders to which I have referred.
He asked that the ejectment proceedings in this Court be adjourned pending the disposal of that application in the Family Court.
In due course, a further application was made in the Family Court seeking a variation of paragraph 3 of the Registrar’s orders by deleting paragraph 3 and substituting the following:
“3..... That in the event that the Father is in default of Order 1 herein then Andrew Ryrie Campbell shall be appointed statutory trustee for the sale of the Father’s interest in the real property registered in his name, being situated at and known as 17 Frederick Street, North Adelaide in the State of South Australia (“the land”) Certificate of Title Book number 4310 Folio number 362 subject to the life tenancy of Terence Richard Denton pursuant to Order 33, rule 7 of the Family Law Rules.”
The application also sought a variation of order 7 of the Registrar’s orders by deleting that paragraph and substituting the following:
“(7).. That the said real estate be charged with the debt set out in paragraph 1 hereof subject to the life tenancy of Terence Richard Denton.”
That last application in the Family Court of Australia proceedings has been cross vested to this Court. On 23 February 1998 Martin J made an order that the application of the defendant filed in the Family Court of Australia on 4 September 1997 be transferred to this court pursuant to s5 Jurisdiction Of Courts (Cross Vesting) Act (1987). I think there is an error in the order cross vesting the application in the Family Court of Australia to this Court. The application which has been cross vested seems to have been issued on 3 September 1997 but nothing turns on that.
It can be seen from that brief history that apparently prior to August 1993 the defendant was the registered proprietor of the property situated at 17 Frederick Street, North Adelaide. On 27 August 1993, he transferred that property to Peter John Balnaves. Subsequently a declaration was made in the Family Court that Mr Balnaves is indebted to the Commonwealth for registered maintenance liabilities in a sum just short of $20000. The plaintiff has been appointed by the Family Court as statutory trustee for the sale of Mr Balnaves’ interest in the property at 17 Frederick Street, North Adelaide. Mr Denton has claimed in the Family Court that he has a life tenancy in that property and seeks to intervene in the Family Court proceedings to have the orders of the Family Court varied to record his life interest and to record that any sale of Mr Balnaves’ interest in the property be subject to Mr Denton’s life interest, that is to say life tenancy.

The Hearing In This Court

A number of affidavits were subsequently filed by those acting on behalf of the plaintiff and those acting on behalf of the defendant. The summons for ejectment was heard at the same time as the application in the Family Court of Australia which has been cross vested to this court.
Both the plaintiff and defendant were represented by counsel, although for a short time the defendant was unrepresented. The Child Support Registrar was represented by separate counsel.
The plaintiff and the Child Support Registrar had identical interests. The Child Support Registrar had brought the initial proceedings in the Family Court of Australia to recover maintenance liabilities. After obtaining such a declaration the Child Support Registrar sought the appointment of the plaintiff as statutory trustee to effect the sale of the Frederick Street property.
Clearly their interests were identical in both sets of proceedings.
One might wonder when the amount of money involved in the litigation was less than $20000 why it was that the Child Support Registrar and the statutory trustee were both represented.
The answer might be in their conduct in the proceedings. Notwithstanding that their interests were identical the two parties put different submissions as to the law. The statutory trustee said that notwithstanding that his function was to effect the sale of the property for the purpose of recovering money on behalf of the Child Support Registrar he was independent of the party who sought his appointment and, as I understood it, entitled and indeed obliged to put submissions contrary to the party for whose benefit he was appointed.
I will return to that.
I gave directions to the parties in relation to the cross examination of any of the deponents to the affidavits and in due course the plaintiff and the Child Support Registrar sought to cross examine the defendant, Mr Terry, a finance broker and Mr Mortimer, a registered conveyancer. Each of those persons attended for the purpose of cross examination and were cross examined by counsel for both the plaintiff and for the Child Support Registrar.
I have been asked to decide, on the affidavits which have been tendered, the further exhibits which were tendered during cross examination and the oral evidence to which I have referred, whether Mr Denton has any interest in the property at 17 Frederick Street, North Adelaide and, if so, what interest.
In the event that I find that he has a life tenancy, as claimed, then the action for ejectment would have to fail. Consequential orders would need to be made in the Family Court of Australia proceedings.
On the other hand, if I find that he has no interest then the action for ejectment would succeed and an order for ejectment should be made and the application in the Family Court of Australia would have to be dismissed.
The issue is simple enough but the facts are not.

The Facts

The defendant purchased the property at 17 Frederick Street, North Adelaide, on 15 April 1987 and has used the property both as an office and residence since that time.
He has been in financial difficulties at least since 1991. In 1991 he retained Mr Terry to re-finance a mortgage which was then on the property. The property was then mortgaged to the State Bank but Mr Denton could not meet the payments. Mr Terry arranged for the discharge of that mortgage and the substitution of Mr Martin Francis Herreen as mortgagee.
In 1993, he experienced further financial difficulties and, as a result, he again became unable to meet mortgage payments which were due in respect of the property.
The property was still subject to a mortgage to Mr Herreen and by 1994 the principal and interest outstanding amounted to a sum in excess of $84000. Mr Denton again retained Mr Terry to act on his behalf. By the time Mr Denton had instructed Mr Terry to renegotiate his mortgage, Mr Herreen had instructed a land broker, Mr George Mortimer, to take the necessary steps to place the defendant’s property on the market for sale.
The defendant claims that in 1993 he discussed his financial difficulties with Mr Balnaves. I have no evidence from Mr Balnaves either to support or to contradict the evidence of the defendant in that respect and in a number of other respects.
The defendant said that Mr Balnaves suggested to him that he could help him with his financial problems by purchasing the defendant’s interest in Frederick Street “on the basis that he would take over my existing mortgage and grant me a life tenancy for a peppercorn rental.”
The defendant said that he saw this as an opportunity to become mortgage free and to avoid any further repayment commitments. He also saw it as an opportunity to have the use and enjoyment of the property for a long period at little cost upon the assumption that he lived for at least a further seven years. He said that Mr Balnaves would also benefit by obtaining a property in North Adelaide in a prime location. Further Mr Balnaves would enjoy a windfall if the defendant died at any time within the period of seven years.
I have supposed, although there is no evidence one way or the other, that Mr Denton was unaware of Mr Balnaves’ dispute in the Family Court of Australia or, if aware of it, was unaware that Mr Balnaves could become subject to declarations relating to child maintenance liabilities or indeed could be liable to have assets registered in his name made subject to orders for sale.
The transactions between the defendant and Mr Balnaves, which undoubtedly took place, were attended to by Mr Terry and by Mr Mortimer. Mr Terry is, as I have said, a finance broker. Mr Balnaves is an acquaintance, so Mr Terry described him, of Mr Terry. Mr Terry said that in 1993 Mr Denton consulted him for a second time after the defendant had defaulted in relation to the mortgage to Mr Herreen. At the time he was consulted he was aware that Mr Herreen had instructed Mr George Mortimer to take whatever steps were necessary to place the defendant’s land on the market for sale.
Mr Terry said that he witnessed various documents which were brought into existence at that time including a residential tenancy agreement and the memorandum of transfer from the defendant to Mr Balnaves.
He said he assisted in arranging for a mortgage from Mr Balnaves to Mr Herreen and a Mr William Lloyd Smith in order that Mr Balnaves could discharge Mr Herreen’s mortgage then registered on the title. He was apparently conscious of the fact that Mr Herreen was a source of finance to him in his business as a finance broker. It seems, from his evidence, he was keen, not only to protect Mr Denton’s interests, for whom he acted, but also the interests of Mr Herreen. In particular he did not want to see his future business with Mr Herreen, and lenders like Mr Herreen, compromised by the introduction of unsound transactions. Mr Terry had a conflict of interest which he attempted to reconcile in his evidence in the following way:
“Yes, well, I pointed that out to Mr Mortimer because I had a duty of care there as well. It was ongoing. It’s a fairly balanced situation here” I’m trying to arrange funding, at the same time, I’m trying to also protect the interests of the mortgagee in that I want to introduce future business and don’t want to have a reputation of introducing unsound transactions. And so I pointed out this to Mr Mortimer at the time, that this lifetime interest was going to be there and, as a result of that, as I understand, and confirmed here, that he included Mr Denton as a co-borrower on the transaction for that very purpose so that he couldn’t basically sue himself if there was default under - or, you know, he would be in the situation where, as a co-borrower, he couldn’t object if the property had to be sold through non-payment of interest payments in the future.”
That very long answer of Mr Terry describes Mr Terry’s conflict of interest. Mr Terry’s conflict of interest in respect of Mr Herreen and Mr Denton although significant was less significant than the conflicts of interest which Mr Mortimer assumed.
Mr Mortimer was originally instructed by the mortgagee Mr Herreen, who retained him for the benefit of realising on the mortgage.
He later took instructions from Mr Balnaves and acted for him in the sale of the property by Mr Denton to Mr Balnaves. Not content with acting for both Mr Herreen and Mr Balnaves he also took instructions and acted for Mr Denton.
In due course, to complete his involvement in the transaction, he took instructions from Mr Herreen and Mr Lloyd Smith who became the mortgagees after the sale of the property to Mr Balnaves.
It appeared clear, when he gave his evidence, that he could not understand that it was inappropriate for him to act for all four parties. He could not understand that his conflict did not allow him to give independent advice to any one of them. His inability to give appropriate advice to the appropriate parties has probably led, to a greater extent, to these proceedings.
I was quite unimpressed by Mr Mortimer’s involvement in this transaction and his inability to understand the position in which he was placed and thereby placed all of his clients. However, I am not prepared to go so far as to say that his evidence should be rejected. The plaintiff and the Child Support Registrar asked me to disbelieve Mr Mortimer and reject his evidence but I am not prepared to do that. I cannot conclude that his evidence is unreliable or untruthful simply because he acted for parties in circumstances where he had obvious conflicts of interest.
In 1993, Mr Herreen instructed Mr Mortimer to take action to put the property at Frederick Street on the market for sale. Mr Mortimer commenced to carry out those instructions but accepted instructions to act for both Mr Denton and Mr Balnaves in connection with a sale by Mr Denton to Mr Balnaves of the property.
He prepared a contract for sale and purchase of the property and a memorandum of transfer.
Mr Mortimer said that the original contract for sale and purchase included a special condition which, before it was altered, was in the following terms:
“The vendor agrees to lease the whole of the within described property from the purchaser for a period of 10 (ten) years and a rental of $1820 per annum exclusive of rates and taxes. Such rent to be paid in advance at settlement.”
Mr Mortimer said prior to execution of the contract that special condition was altered so as to read:
“The purchaser agrees to lease the whole of the within described property to the vendor for a period until 1 month after the date of death of the vendor at a rental of $1820 per annum inclusive of rates and taxes.”
The alteration was initialled by Mr Denton. It was Mr Denton’s evidence, in an affidavit which was tendered subsequent to his cross examination, that he noticed the clause in its original state at the time he came to sign the contract. He told Mr Mortimer that the special condition in its original form did not reflect the agreement between the parties. He told Mr Mortimer that the agreement between the parties was that he was to have a tenancy of the property for life. He also told Mr Mortimer that the tenancy for life was rent free and did not require him to pay any of the rates and taxes.

Both Mr Mortimer and Mr Denton said that the alteration was made prior to execution of the contract. Mr Denton said that he placed his initials on the changes to the special condition at the time he executed the contract. Mr Balnaves did not initial the alterations.
Unless I find both of them to be untruthful I am bound, I think, to find that at least the vendor, Mr Denton, addressed his mind to the question of occupancy and the tenancy of the property after the sale to Mr Balnaves. I think I must also infer that Mr Balnaves also addressed his mind to that matter because on the evidence of both Mr Mortimer and Mr Denton that special condition had been altered to the form to which I have referred prior to Mr Balnaves executing the contract.
Unless I am prepared to find that both Mr Mortimer and Mr Denton lied to me about this matter it seems to me that I must find that the special condition was drafted in its original form by Mr Mortimer and altered by Mr Mortimer in accordance with the instructions given by Mr Denton prior to the execution of the contract of sale and purchase by either the vendor or the purchaser.
However, the clause in its altered form still does not reflect the instructions given by Mr Denton to Mr Mortimer.
The purchase price of the property was $120000. Prior to settlement, which took place on 27 August 1994, a further document was prepared by Mr Mortimer. His evidence was that on the instructions of both the purchaser and the vendor, i.e. Mr Balnaves and Mr Denton, he prepared a document for a tenancy agreement between those parties.
The document is a printed form document entitled “Residential Tenancy Agreement For No Fixed Term”. The parties to the agreement are Mr Balnaves and Mr Denton and, for reasons not apparent to me, the executors of Mr Denton. The premises the subject of the tenancy agreement are the premises at 17 Frederick Street, North Adelaide, and the term of the tenancy is said to be from the 13th day of July 1993 until one month after the death of the tenant. In the circumstances where the term of the tenancy is for the life of Mr Denton and one month it is difficult to understand why it is that his executors are expressly mentioned as being parties to the agreement. The tenancy would effectively terminate on his death and the executors would have no interest in the tenancy.
The tenancy agreement provides that the agreement can be terminated in accordance with paragraphs 16, 17, 18, 19, 20 or 21 of the agreement or by order of the Residential Tenancies Tribunal.
The conditions of tenancy include a condition that Mr Denton pay rent for the premises at the rate of $1820 per annum but the clause continues:
“Payment of rent has be (sic) made in full in advance.”
Clauses 17, 19 and 20 have been deleted but clauses 18 and 21 remain. Clause 18 reads:
“18.. Where the landlord has breached any term of the agreement the tenant may apply to the Residential Tenancies Tribunal for an order terminating the agreement.
21.The tenant may give the landlord at least 21 days notice of termination of this agreement without specifying any ground for the notice. The notice shall be in writing shall be signed by the tenant shall identify the premises the subject of the agreement and shall specify the day on which the tenant will deliver up possession of the premises.
Clause 22 provides:
22.... Except as provided in paragraphs 16, 17 , 18, 19 and 20 and 21 above. Neither the landlord or the tenant may give notice of the termination of this agreement.”
There is an additional condition which is to the effect:
“The landlord consents to the partial use of the premises as an office.”
The document is signed by both Mr Balnaves and Mr Denton. It is dated 12 July 1993 and Mr Balnaves’ signature is witnessed by Mr Terry.
It is the evidence of all of the witnesses who gave or tendered evidence that that document was executed at or about the time of the date of the agreement and certainly before settlement.
It is Mr Denton’s evidence that that document reflects the agreement between himself and Mr Balnaves which was that he was to have a life tenancy of the property.
The contract for sale and purchase was prepared by Mr Mortimer and sent to Mr Balnaves for execution on 17 June 1993. Also sent at the same time to Mr Balnaves was a memorandum of mortgage from Mr Balnaves to Mr Herreen and Mr Lloyd Smith, an acknowledgment that Mr Mortimer acted for both parties, an authority to disburse moneys and a statement of fees. The statement of fees included the following:
“PREPARATION OF MORTGAGE $350.00

STAMP DUTY ON MORTGAGE 284.00

REGISTRATION OF MORTGAGE 60.00

PROCURATION FEE 1260.00

SECURITY APPRAISAL FEE 150.00

DISBURSEMENTS INCLUDING BANK CHEQUES 35.00

F.I.D. TAX 54.60

TOTAL 2193.60”

It can be seen that Mr Balnaves was charged a procuration fee of $1260 for Mr Mortimer arranging a mortgage with his mortgage clients.
It is not clear what form the mortgage was in as at 18 June 1993. I suspect that it only showed Mr Balnaves as mortgagor.
On 18 June both the vendor and the purchaser were sent settlement statements adjusted to 21 June 1993 which was the date the contract provided for settlement.
The settlement statement provided for the debiting of Mr Balnaves for the statement of fees of $2193.60 and for the debiting to him of the stamp duty on the transfer. The balance payable by him at settlement, after an advance from Mr Herreen and Mr Lloyd Smith of $84000 pursuant to the mortgage, was said to be $42548.80.
The settlement statement sent to Mr Denton showed a contract price of $120000 from which he was to be debited with the repayment to Mr Herreen of the existing mortgage of $84418.36, council rates unpaid to 30 June 1993 and a fee payable to Playfords, solicitors who were then acting for Mr Herreen in relation to the sale of the property pursuant to a mortgagee sale. Mr Mortimer charged Mr Denton $250 for the preparation of the contract and a further $250 for brokers’ fees. The balance due to him at settlement, according to that settlement statement, was $29451.04.
Settlement did not take place on 21 June 1993 and on 8 July 1993 Mr Mortimer sent to Mr Balnaves a facsimile transmission in the following terms:
“Please telephone urgently re 17 Frederick Street, North Adelaide $6000.00 available for collection after contract and forms signed - MUST BE SETTLED TOMORROW - INTEREST ACCRUING AT $27.60 per day - Now $469.20 more than last statement.
Terry Denton ready to sign - was expecting you at North Adelaide by lunchtime today.”
That document suggests that some documents were still unsigned. At that stage the transfer had not been executed and indeed it was not executed until 26 August 1993.
The facsimile transmission, however, could not be referring to the contract if Mr Mortimer and Mr Denton told me the truth that the contract was executed prior to 21 June 1993.
I think apart from possibly referring to the transfer it is likely that the communication is referring to the mortgage which was subsequently granted to Mr Lloyd Smith and Mr Herreen. That document was executed on 23 July 1993.
In its original form the transaction involved Mr Balnaves as purchaser granting a mortgage to Mr Herreen and Mr Lloyd Smith in the sum of $84000. Mr Herreen in fact signed a mortgage investment authority for a mortgage at an interest rate of 13 per cent for a term of one year acknowledging Mr Balnaves to be the sole mortgagor. In due course, however, the mortgagees, at the insistence first of Mr Terry and then of Mr Mortimer, required Mr Denton also to become a party to that mortgage as joint borrower.
That mortgage which shows Mr Denton as a joint borrower and therefore liable on the personal covenants on the mortgage was executed on 23 July 1993.
On 20 July 1993, Mr Denton signed an authority in the following form:
“George Mortimer,
The amount of $29451.04 shown on the settlement statement relating to the sale of the property at 17 Frederick Street, North Adelaide to Peter John Balnaves and the additional amount of $6000 contributed by me towards costs, are not to be paid to me at settlement and I assure you that no claims will be made against you for these monies following settlement.”
The figure of $6000 has been crossed out and a figure of $7500 inserted.
It can be seen therefore that the parties contemplated that Mr Denton would not receive any money at settlement. Indeed, not only did he not receive money, he in fact paid $7500 to facilitate the transaction going forward. That can be seen by the authority which he signed on 20 July 1993.
The end result of the transaction was that Mr Denton sold his property to Mr Balnaves, apparently for $120000, but in fact for Mr Balnaves discharging the mortgage to Mr Herreen in the sum of $84000.
However Mr Denton became jointly responsible for the further mortgage of $84000. Therefore, not only did he receive no money, he in fact paid money and remained responsible for the mortgage. It was Mr Denton’s evidence, and also that of Mr Mortimer, that in exchange for the transfer of the property to Mr Balnaves and the payment of $7500, and the assumption of joint liability under the mortgage, that Mr Balnaves granted Mr Denton a tenancy for life plus one month.
It is difficult to conceive that Mr Denton would not have received some benefit in exchange for the transfer of this property. It is impossible to think that he would have simply transferred away the property for the sum $84000 being the amount necessary to discharge the existing mortgage and pay a sum of $7500 and remain liable in respect of that mortgage if he was not to have some interest in the property. If he was to lose any interest in the property whatsoever then he may as well have simply allowed the property to be sold. The very transaction, in my opinion, contemplates that Mr Denton would have some form of tenancy after the date of settlement.
Not only does the transaction require that conclusion, but in my opinion, the fact that after settlement Mr Denton did remain in the property and has remained there ever since supports a conclusion that he was entitled to some form of tenancy.
The plaintiff and the Child Support Registrar do not necessarily deny that Mr Denton received an interest in the property, but they do deny that he received an interest in the form of a tenancy for life plus one month. They say that he was only entitled to live in the property as a tenant at will or as a tenant for a short but determinate period of time.
Whatever tenancy arrangement was reached between Mr Denton and Mr Balnaves it was not registered on the title. That is because, whatever the tenancy contemplated, Mr Mortimer failed to give appropriate advice to Mr Denton to allow Mr Denton to protect his interest in relation to that tenancy. Indeed, in my opinion, Mr Mortimer was unable to give such advice to Mr Denton because if he advised Mr Denton that the tenancy for life plus one month should be registered on the title then he would have had an obligation to advise Mr Herreen and Mr Lloyd Smith that it would be inappropriate to lend $84000 to Mr Balnaves in those circumstances. Even if the tenancy had been a shorter time, even a relatively short time, he would have had to advise the mortgagees that the tenancy would affect the value of the security.
That was because the sale of the property would have to be subject to whatever tenancy Mr Denton had, which would have made the present value of the property substantially less than the stated consideration of $120000. Indeed the consideration of $120000 was in itself illusory. The Government valuation of the property at the time showed the capital value of the property to be $100000. Notwithstanding Mr Mortimer had obtained the capital valuation and was aware that it showed the value to be $100000 he advised his clients, Mr Herreen and Mr Lloyd Smith, that the property was valued at $120000.
Indeed the Mortgage Investment Authorities prepared by Mr Mortimer for Mr Herreen and Mr Lloyd Smith and signed by those gentlemen claimed:
“Estimated value of security $120000 established by recent neighbouring sale prices and opinion of George C Mortimer Licensed Valuer.”
I am not sure how Mr Mortimer could have advised Mr Herreen that the value of the security was $120000 in circumstances where Mr Mortimer was aware that the capital value of the property was $100000 and Mr Balnaves had apparently, at least on Mr Mortimer’s evidence, granted to Mr Denton a tenancy for life plus one month in circumstances where the rent was acknowledged to have been prepaid. It seems to me that the value of the security was substantially less than the amount Mr Mortimer represented.
I have no doubt that both Mr Mortimer and Mr Terry suggested to Mr Balnaves that he become jointly responsible under the mortgage so as to protect Mr Herreen and Mr Lloyd Smith in the event that mortgage payments were not made. If Mr Balnaves had a tenancy for life plus one month, but had no responsibility under the mortgage, the mortgagees would have been unable to realise upon the security. When they came to sell the property in the event of default by Mr Balnaves they would have found that security could not be realised because it was subject to the tenancy to which I have referred.
It was in those circumstances that they recommended to Mr Herreen and Mr Lloyd Smith that Mr Balnaves become a joint borrower.
This highlights the conflict of interest which Mr Mortimer and Mr Terry had. It was not in Mr Denton’s interests to become liable on the personal covenants on the mortgage. He had entered into the transaction to sell the property to Mr Balnaves because he was not able to meet his mortgage commitments. As I have already pointed out, the end result of the transaction was to leave him in circumstances where Mr Balnaves had become the owner of the property and he had become a tenant with no registered interest but liable upon a mortgage which he could not afford.
The contemporaneous documents, brought into existence to evidence the transaction between Mr Denton and Mr Balnaves, did contemplate that Mr Denton would have a tenancy for life. I think the failure to properly evidence the transaction which was agreed to between Mr Balnaves and Mr Denton was that of Mr Mortimer. In my opinion he failed to discharge his obligations to each of his clients which, of course, he was unable to do because of the conflicts which existed between each of them.
However the plaintiff and the Child Support Registrar point to circumstances subsequent to the completion of the transaction which they say established that the transaction was not of the kind asserted by Mr Denton, Mr Mortimer and Mr Terry.
It is their case that two events occurred which were entirely inconsistent with a claim of a tenancy for life plus one month.
In 1994 in the Family Court of Australia proceedings, in which Mr Balnaves was a party, a Heads of Agreement was produced. I set out that document in its entirety:
“     HEADS OF AGREEMENT
BETWEEN:       TERANCE (sic) RICHARD DENTON OF 17 FREDERICK ST., NORTH ADELAIDE ACCOUNTANT HEREINAFTER REFERRED TO AS THE “TENANT” AND PETER JOHN BALNAVES ACCOUNTANT OF 253 STURT ST., ADELAIDE TRUSTEE FOR CUMMINGS CORPORATION PTY LTD, OF 253 STURT ST., ADELAIDE HEREINAFTER REFERRED TO AS THE “LANDLORD”.
WHEREAS:      THE “TENANT” HAS SOLD THE PROPERTY TO CUMMINGS CORPORATION PTY LTD, FOR THE SUM OF $120,000 AND IT IS AGREED THAT THE PROPERTY WOULD BE HELD IN TRUST BY THE SAID PETER JOHN BALNAVES AS TRUSTEE FOR CUMMINGS CORPORATION PTY LTD.
IT IS AGREED: THAT THE PARTIES WILL ENTER INTO A STANDARD RESIDENTIAL TENANCY AGREEMENT WITH THE FOLLOWING TERMS AND CONDITIONS:
TERM  -       SIX YEARS
RENTAL  -       $100 PER WEEK
OUTGOINGS             -       COUNCIL RATES, WATER RATES &
INSURANCE ARE TO BE PAID BY
THE “TENANT”.
ADJUSTMENTS        -       RENT ADJUSTED ANNUALLY BY
C.P.I.
SECURITY                 -       THE “TENANT” IS ENTITLED BY
THE “LANDLORD” TO CAVEAT THE
PROPERTY TO SECURE THE LEASE
AT HIS OWN DISCRETION.
THESE HEADS OF AGREEMENT DATED 1ST OCTOBER 1993 FORM THE BASIS FOR A SUBSEQUENT FORMAL AGREEMENT AND ARE BINDING ON THE PARTIES UNTIL SUCH TIME AS THE AGREEMENT IS SETTLED.”
The document is apparently signed by Mr Denton and Mr Balnaves and is witnessed by a person with the Christian name ‘Jane’ but whose surname is not easily decipherable. The surname may be ‘Cummings’.
As can be seen the document purports to have been executed on 1 October 1993 and claims to be the basis for a future formal agreement. The parties are Mr Denton and Mr Balnaves, who is described as the trustee for Cummings Corporation Pty Ltd. The Heads of Agreement recites that Mr Denton sold the property to Cummings Corporation Pty Ltd for $120000 and that it was agreed that the property would be held in trust by Mr Balnaves as trustee for Cummings Corporation Pty Ltd.
That assertion is not consistent with any of the objective facts surrounding the transaction which commenced in June 1993 and which was completed with the registration of the transfer to Mr Balnaves on 27 August 1993.
The Heads of Agreement claims that on 1 October 1993 the parties agreed to enter into a standard residential tenancy agreement subject to the terms set out. The term of the residential tenancy agreement to be entered into is six years. The tenant, Mr Denton, is obliged to pay rent at the rate of $100 per week and to pay the outgoings mentioned.
The Heads of Agreement is inconsistent with the claim by Mr Denton and Mr Mortimer that at the time of settlement Mr Balnaves agreed to enter into a tenancy for life plus one month. If the Residential Tenancy Agreement For No Fixed Term was signed on 13 July 1993 there was no need for any Heads of Agreement of 1 October 1993. Particularly there was no need for Heads of Agreement as a “basis for a subsequent formal agreement”. However more importantly the Heads of Agreement provides for a quite different tenancy with quite different terms than that contained in the Residential Tenancy For No Fixed Term.
The circumstances in which this Heads of Agreement came to be signed are deposed to in an affidavit of Mr Denton sworn on 29 July 1997.
He explained the creation of that Heads of Agreement in paragraph 13 and the consequences in paragraphs 14 and 15 of that affidavit.
I set out those paragraphs:
“13... In 1994 I became aware that Balnaves was in a further fight with his former wife and that the land was being affected. Balnaves told me this did not affect my interest. I relied on Balnaves in this regard. In 1994, I cannot remember the exact date, Balnaves asked me to attend the Family Court as a witness as to the land. I was not told what the hearing was about. At the Court Balnaves produced a document headed “Heads of Agreement”. Annexed hereto and marked with the letter “D” is a true copy of the document. When Balnaves produced it to me he said that he needed it in relation to his matter. I read through the agreement and noted that he said he was holding the property on trust. I was not aware of this but it did not surprise me. I noted that it was different to the agreement previously entered into. I said to Balnaves that this was incorrect. Balnaves then pressured me into signing it saying that he needed it and he wore me down. I have known Balnaves since 1959 and due to my long standing association with him and his pressure I signed it. Balnaves also indicated to me that our arrangement would not be affected. I did not have to give evidence and left shortly after signing.
14.After this I did not know what was going on except I knew that Balnaves was continuing to have a fight in relation to his former marriage but I really did not want to be involved in that.
15.... I continued to occupy the land and I thought matters had been resolved as I did not hear.”
Mr Denton was, of course, cross examined on this subject. He agreed there had never been a transaction between himself and Cummings Corporation Pty Ltd, at least as far as he was aware.

His evidence was:
“XXN
Q...... If I could take you to the fourth document exhibited to your affidavit. That is the one page document entitled ‘Heads of Agreement” You will see that about the ninth or tenth line of that agreement, of that document, there is a recital that you had sold the property to Cummings Corporation for $120000. Can you see those words.
AYes, I can.
Q...... Is that an accurate statement of what had taken place.
AI don’t know if I can answer yes or no because Balnaves’ name was on the transfer, not Cummings Corporation.
Q...... And in fact $120000 exchanged hands at no time in any event. There was never $120000; correct.
ACorrect.
Q...... And there was never a transaction between you and Cummings Corporation; correct.
ACorrect.”
He was then asked why he signed this document if it did not reflect, as he claimed it did not, the arrangement between Mr Balnaves and himself.
“A.... Because it was presented to me on the day of a hearing and presented in such a manner that I was told if I didn’t sign it it would be detrimental to the hearing, but the original agreement would stand and we would continue to formalise that original agreement, and I was wrong signing it.
QWhy were you wrong in signing it.
A...... Because it’s not true.
QNot only is it not true, but you knew that it was to be used for a purpose that would affect parties other than you and Mr Balnaves, didn’t you.
A...... Yes.
QYou knew that it may have been used in court.
A...... Yes.
QSo you knew that once you had signed the document there was the possibility, if not the probability, that Mr Balnaves would adduce that document in the court to reflect an agreement between you and he.
A...... Yes.
QAnd yet you say that the agreement was untrue.
HIS HONOUR: The terms of the agreement, rather.
XXN
Q...... That the terms of the agreement were untrue.
AThat’s correct, yes.
Q...... So I put it to you that you have colluded with Mr Balnaves in an untruth.”
I then warned Mr Denton about the consequences of answering questions which might tend to incriminate him and he sought a short adjournment to obtain advice. When the matter resumed he refused to answer the question posed on the ground that it might tend to incriminate him. Thereafter he refused to answer any questions directed to the terms of the Heads of Agreement and whether those terms reflected the arrangement between himself and Mr Balnaves. On each occasion he refused on the ground that the answer might tend to incriminate him.
Needless to say Mr Denton’s evidence on this topic is unsatisfactory. He has not been able to give a clear account of why it was that he was prepared to sign a document which did not represent the true transaction between himself and Mr Balnaves knowing that that document would be presented to the Family Court of Australia. I must say the existence of the Heads of Agreement and Mr Denton’s inability to explain the document has caused me some concern.
I am prepared to accept Mr Denton’s evidence in so far as he says that the document was prepared by someone apart from himself but presented to him by Mr Balnaves at the Family Court of Australia for the purpose of execution and presentation to the Court. Clearly enough, I think the document, because of the spelling error in Mr Denton’s Christian name, was prepared by someone apart from himself. It may have been that Mr Balnaves did not want to advise the Family Court of Australia that the property was subject to a tenancy for life but was anxious to inform the Court of a tenancy in the terms of the tenancy expressed in the Heads of Agreement. I cannot think why he would have wished to have advised the Court of a lesser tenancy than that which existed but I am not privy, of course, to Mr Balnaves’ circumstances and the litigation between him and his wife. It is necessary that I return to this topic in discussing another affidavit sworn by Mr Denton.
The other matter which is said to be inconsistent with a tenancy for life plus one month is the claim in the Heads of Agreement that Mr Denton sold the property to Cummings Corporation Pty Ltd.
Mr Denton, as I have already said, indicated that he was unaware that he was dealing with Mr Balnaves as trustee for Cummings Corporation Pty Ltd.
In the Family Court proceedings, Mr Reglar, the solicitor acting on behalf of the Child Support Registrar, swore an affidavit dated 28 August 1997 in which he exhibited a number of documents which had come into his possession in relation to these various transactions. He exhibited these documents, not for the purpose of proving the truth of the contents of the documents, but simply for the purpose of bringing these documents to the attention of the Court.
I shall simply recite the effect of those documents before I make my express findings. A minute of a meeting of directors of Cummings Corporation Pty Ltd held on 30 August 1993, at which was present Ian Jamieson, Peter Balnaves and Jane Balnaves, secretary of the company, claims that a number of resolutions were passed:
“The company agreed that the purchase of the property 17 Frederick Street North Adelaide for $120000 should proceed.
It was agreed to advance $30000 to Peter John Balnaves as deposit and the remainder of the funds to be borrowed.
The company agreed that the property should be held by Peter John Balnaves as trustee and that a declaration of Trust be prepared between the company and Peter John Balnaves.
The company also agreed that a memorandum of lease be prepared between the company’s beneficial owner and Mr T Denton as tenant and a Heads of Agreement be signed subject to the settling of the property.”
If that is an accurate minute of a meeting of directors of Cummings Corporation Pty Ltd on 30 August 1993, at which Mr Peter Balnaves was present, then a number of matters recorded there are inconsistent with the transaction which was settled three days earlier on 27 August 1993.
First, the company apparently resolved to purchase this property three days after Mr Balnaves had settled on the property. Secondly, if the minute is accurate the company resolved to advance $30000 to Mr Balnaves three days after settlement. If these moneys were advanced to Mr Balnaves or had been advanced to Mr Balnaves they were not used for the acquisition of the property. Thirdly, if Mr Denton’s evidence before me is accepted, it was never disclosed to Mr Denton that Cummings Corporation Pty Ltd was the beneficial owner of the property. Fourthly, the company apparently resolved on 30 August 1993 to enter into a memorandum of lease with Mr Denton and a Heads of Agreement “subject to the settling of the property”. The property had settled three days earlier and a Residential Tenancy Agreement For No Fixed Term had been entered into on 12 July 1993. Fifthly, it seems unusual that there would need to be both a memorandum of lease and a Heads of Agreement entered into to record the arrangement between Mr Balnaves and Mr Denton.
If that minute is a bona fide minute of a meeting of directors of Cummings Corporation Pty Ltd then it is rather surprising that Mr Balnaves did not disclose to the meeting that in fact he had signed the Memorandum of Transfer accepting the transfer from Mr Denton four days prior to the meeting. It is also surprising that Mr Balnaves did not disclose that it had been agreed by Mr Denton that he would forego any consideration in excess of the amount necessary to discharge the existing mortgage to Mr Herreen and that the sum of $30000 was not required. Moreover, one would have expected that Mr Balnaves would have reported to the meeting that he had executed a mortgage in favour of the mortgagees, Mr Herreen and Mr Lloyd Smith. He would also, one would have expected, disclosed to the meeting that he had not in turn disclosed to the mortgagees, if in fact he had not, that he had purchased the property as trustee for the company. Lastly, it is surprising that Mr Balnaves did not disclose that settlement had already taken place and that he had entered into a Residential Tenancy Agreement For No Fixed Term with Mr Denton giving Mr Denton a tenancy for life plus one month. All of those matters were material for the purpose of the directors considering the resolution before the Board.
On 1 October 1993, Mr Peter Balnaves executed a Declaration of Trust whereby he acknowledged that he held the property at 17 Frederick Street, North Adelaide in trust absolutely for Cummings Corporation Pty Ltd “by whom the purchase money for the said property was provided for the purchase of the property at $120000 from Terrence (sic) Richard Denton pursuant to contract dated the 1st day of October 1993, made between Terrence (sic) Richard Denton and the Trustee.” That Declaration of Trust, of course, was executed on the same day as the Heads of Agreement to which I have already referred.
The declaration makes no sense. There was no contract between Mr Denton and Mr Balnaves dated 1 October 1993. Indeed the property had been transferred to Mr Balnaves five weeks earlier.
It is difficult to understand why the Heads of Agreement and the Declaration of Trust came into being on 1 October 1993 when they clearly conflict with the contemporaneous documents leading up to settlement.
On 16 November 1993, Mr Balnaves executed a mortgage of the land comprised in Certificate Of Title Register Book Volume 4310 Folio 362, viz 17 Frederick Street, North Adelaide, in favour of National Australia Bank Ltd.
The mortgage expressly stated that the mortgage would be security only for the payment to the mortgagee of “moneys which are expressed to be secured by Registered Mortgage Debenture dated 4/11/93 from Cummings Corporation Pty Ltd ACN 008 291 996”.
That mortgage was registered on the title on 26 November 1993 at the same time as the mortgage to Mr Herreen and Mr Lloyd Smith was discharged.
The transaction, in so far as Mr Balnaves claimed it involved Cummings Corporation Pty Ltd, appears to be inconsistent with the contemporaneous documents produced by Mr Denton.
However, that may be explained by Mr Balnaves failing to tell Mr Denton that he was purchasing the property as trustee for Cummings Corporation Pty Ltd. It may have been that Mr Balnaves did not wish to disclose to Mr Denton or the mortgagees that the property was purchased by him as trustee for Cummings Corporation Pty Ltd. The fact that Mr Denton was unaware, if he was unaware, of the transaction in that form, in my opinion, does not prove that the transaction which occurred in June/August 1993 was not in the form Mr Balnaves claimed it to be.
The Plaintiff and the Child Support Registrar then pointed to a number of other circumstances involving both Mr Balnaves and Mr Denton which are said to be inconsistent with the transaction as claimed by Mr Denton.
Before I go to those matters I should mention that during the hearing of this matter and in fact whilst Mr Denton was being cross examined, I pointed out to the parties that if I was to accede to Mr Denton’s claim that he had a tenancy for life plus one month and amend the Registrar’s order accordingly, then Mr Balnaves was entitled to be heard in respect of that matter. That was because, if the order was in a form that any sale was subject to Mr Denton’s interest; then that might affect the value of the property and thereby affect any amount outstanding after payment to the Child Support Registrar and to the Mortgagee which would then affect the return to Mr Balnaves.
Mr Balnaves came to Court in response to my invitation and indicated to the Court that he had no objection, whether as beneficial owner or as trustee, to a declaration that Mr Denton was entitled to a tenancy for life plus one month.
He was asked whether there was any evidence he wished to bring forward contrary to Mr Denton’s assertion. He said:
“No. It was an agreement between myself and Mr Denton originally that that was to be the situation and I would stand in the face of the trust to say that it would still be the agreement. So the trust in itself is happy with the original agreement.”
He also indicated in response to my question that he would consent to Mr Denton intervening in the Family Court of Australia proceedings.
Mr Balnaves made it plain that he supported Mr Denton’s application and that he wished to bring forward no evidence contrary to Mr Denton’s assertion.
As I have already said, Mr Reglar’s affidavit exhibits a number of documents including transcripts in the Family Court of Australia.
At a hearing before the Registrar on 12 May 1994 Mr Balnaves was asked whether he owned land at 17 Frederick Street, North Adelaide, and he replied that he owned that land in trust for Terrence (sic) Richard Denton. When asked what the trust arrangement was he said:
“Mr Denton is a personal friend of mine who is in financial difficulties, who is not in a position to borrow to pay out the mortgage on his house. I agreed to approach the National Bank and look after the accounts of Cummings Corporation and to take out a loan to take over his mortgage and allow him to live in the property.”
He then said that it was agreed that Mr Denton would pay him $100 per week rent and Cummings Corporation Pty Ltd would meet the mortgage payments. He said that the land was not registered in the name of Cummings Corporation Pty Ltd because he was able to get more attractive interest rates by registering the land in his own name.
He was later asked whether there was a trust deed between himself and Mr Denton and:
“There’s a letter which would be in the - signed - a deed that I hold the property in trust for him and ...”
When the hearing before the Registrar resumed the Registrar indicated that he was not satisfied that a trust existed in favour of Mr Denton of which Mr Balnaves was a trustee and he indicated that he was prepared to make an order for sale of the property. On 26 May 1994 the Registrar made the order to which I have already made extensive reference.
On 25 August 1994, Mr Balnaves applied for an order suspending the orders made by the Registrar on 26 May 1994 upon the basis that he would seek to discharge the maintenance orders upon which those orders were based. On 8 September 1994, the application for a stay was refused and Mr Balnaves was ordered to pay the Child Support Registrar’s costs.
On 13 October 1994, in response to an application made by the Child Support Registrar, Mr McNamara appeared on behalf of Cummings Corporation Pty Ltd seeking a stay of the enforcement proceedings in the Family Court of Australia pending the determination of proceedings which had that day been instituted in the Supreme Court relating to the ownership of the North Adelaide property.
The matter was adjourned to 27 October 1994 when a further application was made on behalf of Cummings Corporation Pty Ltd seeking leave to intervene in the Family Court of Australia proceedings. On 10 November 1994, Cummings Corporation Pty Ltd was given leave to intervene. However, on the same day the Registrar made a further order appointing the Registrar or a Deputy Registrar of the Court to execute, in the name of Mr Balnaves, a Memorandum of Transfer of the property situated at 17 Frederick Street, North Adelaide, to the plaintiff Andrew Ryrie Campbell.
On 12 December 1994, an application was made in this Court by Cummings Corporation Pty Ltd, seeking an order staying the order of the Family Court of Australia in relation to the sale of the property at 17 Frederick Street. Cummings Corporation Pty Ltd brought proceedings in this Court against the Registrar General (Lands Titles Division), Mr Balnaves and Mr Campbell seeking an order or a declaration that it was beneficially entitled to the land comprised in Certificate Of Title Register Book Volume 4310 Folio 362, being the land at 17 Frederick Street, North Adelaide.
The matter came on before Judge Burley and on 24 March 1995 he published reasons in which he concluded:
“For the above reasons the plaintiff (Cummings Corporation Pty Ltd) must have, in due course, a declaration that immediately prior to the appointment of the third defendant (Andrew Ryrie Campbell) as statutory trustee pursuant to the order of the Family Court dated 26 May 1994, the second defendant (Peter John Balnaves) held the property on trust for the plaintiff. I will hear counsel as to what directions should be given and complied with prior to the presumption of the trial.”
The proceedings in this Court were heard by Judge Burley but before the hearing Mr Denton filed an affidavit, which was apparently sworn on 17 January 1995, in the Family Court of Australia in relation to the question of the beneficial ownership of the property.
I will set out the whole of the terms of that affidavit because they are important:
“1..... I am the former registered proprietor of the property at 17 Frederick Street North Adelaide (“the property”) but due to financial difficulties I was required to sell the property and in 1993 I approached Peter Balnaves and asked if he would be able to assist by purchasing the property to avoid a mortgagee sale. Peter Balnaves said he may be able to assist in the short term and in doing so I agreed to sign a contract with him for the sale of the property. A copy of that contract is now produced to me marked with the letters “TD1” and exhibited hereto.
2.Peter Balnaves arranged short term finance over the property with the mortgagees that I had and the property was transferred to Peter Balnaves on the 27th day of August 1993.
3...... Peter Balnaves advised me that he was unable to arrange long term finance for the property and that finance was to be arranged through Cummings Corporation Pty Ltd. As a consequence Peter Balnaves was to hold the property on trust for that company but in order for finance to be approved I had to enter into a lease to occupy the premises.
4.On or about the 1st day of October 1993 I signed Heads of Agreement with Peter Balnaves as Trustee for the Cummings Corporation Pty Ltd wherein I agreed to tenant the property pursuant to the terms of the Head (sic) of Agreement. A copy of the Heads of Agreement is now produced to me marked with the letters “TD2” and exhibited hereto.
5...... I have since occupied the property pursuant to the terms of the Heads of Agreement and have paid rent accordingly.
6.I believe that Peter Balnaves does hold the property on trust for the Cummings Corporation and I have so believed since Peter Balnaves approached me in September of 1993 to have the Heads of Agreement signed so that the re-financing could take place.
7...... I know the facts deposed to herein of my own knowledge except where otherwise appears and those matters I have deposed to on information given to me I verily believe to be true.”
That affidavit gives rise to some further problems for Mr Denton. First, the matters in paragraph 3 of the affidavit are inconsistent with Mr Denton’s assertion that he was unaware that the property was being bought by Mr Balnaves as trustee for Cummings Corporation Pty Ltd. Secondly, the assertion in paragraph 4 of the affidavit is inconsistent with the parties entering into the Residential Tenancy Agreement For No Fixed Term on 12 July 1993. If what Mr Denton swore on his oath in that affidavit is true then he is entitled to a tenancy in the terms of the Heads of Agreement and for no longer term. In fact, that may be all that Mr Denton is entitled to. However, I cannot rely simply on the affidavit to make my findings because I am quite sure some aspects of that affidavit are untrue. Indeed some matters in that affidavit contradict evidence otherwise adduced by the defendant.
The defendant relied upon an affidavit sworn by his partner Rita Peters on 15 June 1998. She said in her affidavit:
“3..... In 1993 Terry was experiencing some financial problems. Terry did not know what to do about the property and was considering selling it which he did not want to do.
4.At that time I discussed with Terry purchasing the property. If I did purchase the property Terry would have had to pay rent which he couldn’t afford or the property would have had to have been rented out or eventually sold. Terry did not like this idea.”

I am quite sure that Mr Denton could not afford to pay rent. Indeed history had shown that he could not afford to make his mortgage repayments. When he first granted a mortgage to Mr Herreen, which was registered on 21 February 1991, the principal was $65000. He defaulted in the monthly repayments in November and December 1991, each month in 1992 and throughout 1993. By the middle of 1993 the principal and interest outstanding was nearly $85000. He could neither make mortgage repayments nor payments of rent. I do not believe his evidence in paragraph 5 of that affidavit. Of course, it follows because of the number of inconsistencies in that affidavit and other evidence that there is a good deal of Mr Denton’s evidence that I cannot believe. I shall make some express findings in relation to his evidence.
It must be accepted that Mr Denton was not cross examined on this affidavit and therefore did not have the opportunity of explaining its contents. However, I do not think the contents could have been explained having regard to his refusal to explain the circumstances giving rise to the execution of the Heads of Agreement of 1 October1993.
The matter before Judge Burley resumed on 28 April 1995 without his Honour having made the declaration to which he had referred in his reasons published on 24 March 1995. At the resumed hearing it was argued by counsel for the Child Support Registrar that no declaration could be made because the Family Court of Australia had previously, on 26 May 1994, concluded that Mr Balnaves did not hold the property on trust for Cummings Corporation Pty Ltd.
After hearing the parties his Honour said in reasons published on 20 April 1995:
“It follows that since the making of the Family Court order on 26 May 1994, it has not been open to the plaintiff to pursue proceedings in relation to the property other than in the Family Court. Thus the conclusions are reached by me, as expressed in my reasons delivered on 24 March 1995, cannot have a bearing upon any right or entitlement in relation to the property claimed by the plaintiff. This Court is the wrong venue for such complaints because the issue of whether or not there was a trust in existence between the second defendant and the plaintiff has been determined against the plaintiff by the Family Court in a manner binding upon the plaintiff.”
Judge Burley then dismissed the summons.
On 11 May 1995, Murray J in the Family Court of Australia refused an application by Cummings Corporation Pty Ltd for leave to intervene to seek a review of the orders made by the Registrar on 26 May 1994.
On 8 December 1995, the Full Court of the Family Court of Australia (Ellis, Baker and Graham JJ) allowed an appeal by Cummings Corporation Pty Ltd from the refusal by Murray J to allow it to intervene in the proceedings and made an order:
“That the time allowed to the Intervener for the filing of an application to review the exercise of power by the Registrar on 26 May 1994 be extended to enable the filing of such application within 14 days of this date”.
No such application was made within the time prescribed by the Full Court of the Family Court. On 29 April 1996, Cummings Corporation Pty Ltd did apply for an order seeking a review of the orders of the Registrar of 26 May 1994. On 14 August 1996, that application was refused by Burton J on the ground that the application was issued outside the time allowed by the Full Court.
Mr Reglar’s affidavit shows a number of matters inconsistent with Mr Denton’s position in this Court. Mr Denton, contrary to his evidence in this Court, swore an affidavit in the Family Court of Australia claiming that he knew that finance was to be arranged through Cummings Corporation Pty Ltd and that Mr Balnaves was to hold the property on trust for that company. That is directly contrary to his evidence in this Court.
His affidavit also discloses that he signed the Heads of Agreement on 1 October 1993 and became a tenant of Mr Balnaves as trustee for Cummings Corporation Pty Ltd after that time and has occupied the property since that time and has paid rent accordingly.
That is also contrary to the evidence which he has given in this Court.
Specifically he claimed in that affidavit that he believed Mr Balnaves did hold the property on trust for Cummings Corporation Pty Ltd and has believed so since September 1993. That is again directly contrary to the evidence which he has given in this Court.
There is no doubt that there are serious discrepancies between Mr Denton’s evidence in this Court and statements which he has made out of this Court and in affidavits filed in the Family Court of Australia. There are also serious discrepancies between his evidence and Mr Balnaves’ assertions in that other jurisdiction. He cannot, however, be held responsible for anything that Mr Balnaves might say unless he was present or was aware that Mr Balnaves might make the statement and he was in a position to prevent it being said or was in a position to correct it after it was said. He cannot be held responsible for Mr Balnaves’ assertion in the Family Court of Australia that Mr Balnaves held this property on trust for Mr Denton. Mr Denton was not present at the time and there is no evidence that he knew the statement was to be made.
In the end I have to decide whether Mr Denton’s evidence is sufficiently reliable for me to reach the conclusion, on the balance of probabilities, that at some time prior to settlement, and probably on 12 July 1993, he and Mr Balnaves agreed that he would be given a tenancy for life plus one month in respect of the property at 17 Frederick Street.
The evidence of the participants can be tested, it seems to me, in the following way. Both Mr Balnaves and Mr Denton are accountants and, from statements they have made and evidence they have given in the two jurisdictions, commercially aware. Mr Denton has been in financial problems since 1991. It may be inferred that Mr Balnaves has been in similar circumstances at least since 1993, because he has failed to pay maintenance liabilities. One would expect that if he was in a position to meet those liabilities he would have done so rather than allow an order to be made to sell his property. Mr Denton lives, apparently, with his partner Rita Peters in the premises at 17 Frederick Street. He has been unable to make any payments in relation to mortgage obligations since 1991. The principal owing under the mortgage when it was first taken in 1991 was $65000 but by the middle of 1993, with interest, the amount owing under the mortgage was in the vicinity of $84000.
In 1993 and probably earlier the mortgagee, Mr Herreen, had threatened to sell the house. By the middle of 1993 significant steps had been taken in that regard and solicitors had been employed and notices of sale given. By the middle of 1993 it must have been apparent to Mr Denton that he would either have to repay the mortgage or allow the house to be sold or enter into some other transaction which would allow him to remain in the property for a period of time.
The property was valued at about $100000. I realise, of course, that the consideration expressed in the transfer was $120000 and Mr Mortimer represented that to be the value of the property to Mr Herreen and Mr Lloyd Smith, but I prefer the evidence of the Government Valuer. The amount of equity in the property, therefore, was significantly less than $15000 after taking into account the repayment of the mortgage to Mr Herreen and the amounts due to the various agents of the mortgagee in relation to the sale of the property and the outstanding amounts due on account of rates and taxes. There was perhaps equity of about $10000 in the property.
Mr Denton could not pay mortgage instalments. Mr Balnaves, one would have thought, could not pay the instalments either because he could not afford to make his maintenance liabilities.
The sale of the property to Mr Balnaves left Mr Balnaves ostensibly with the obligation to make mortgage payments in relation to a mortgage of $85000 at an interest rate of 13 per cent. Let us assume that he undertook that obligation. Why, in those circumstances, would he grant a tenancy for life, free of rent, to Mr Denton when in one year the interest payments themselves would amount to nearly the amount of equity in the property.
It is inconceivable, in my opinion, that Mr Balnaves would have entered into a transaction in relation to a property of this value where he would undertake the responsibilities for the payment of the mortgage and Mr Denton would be entitled to live there for the rest of his life, rent free.
In my opinion, the document entitled Residential Tenancy Agreement For No Fixed Term does not reflect any commercial arrangement between Mr Balnaves and Mr Denton.
It might have been that the arrangement between the parties was that Mr Denton would have the obligation of discharging the mortgage and, in those circumstances, be entitled to remain in the property, rent free for the rest of his life, but that was not the evidence given by Mr Denton, nor is there any hint of such an arrangement in any of the statements or evidence of Mr Balnaves in the Family Court of Australia.
I think it is likely that the transaction between Mr Balnaves and Mr Denton was entered into for the purpose of securing the continuation of the mortgage to Mr Herreen. Mr Denton understood that he had no prospect of convincing Mr Herreen that Mr Herreen should continue to finance Mr Denton past the middle of 1993. Mr Balnaves and Mr Denton entered into the transaction so that Mr Balnaves might obtain a mortgage of the amount of principal and interest then outstanding which, although neither party has been prepared to admit, the parties agreed Mr Denton would have the obligation to discharge.
In my opinion no agreement was entered into at that time giving Mr Denton a tenancy for life and one month.
The parties assumed between themselves that Mr Denton would remain in the property because Mr Denton would make the mortgage payments but no tenancy was granted by Mr Balnaves to Mr Denton. I reject the evidence of Mr Mortimer to the contrary. As I have said, I have found Mr Mortimer to be an unsatisfactory witness in relation to this transaction. I do not believe his evidence when he said that the Residential Tenancy Agreement for No Fixed Rent was entered into on 12 July 1993. It follows that I also reject Mr Denton’s evidence in this regard.
I believe that both Mr Balnaves and Mr Denton were content to continue with the transaction in its form; that is upon the basis that Mr Denton would have the responsibility of discharging the mortgage obligations and that he would be entitled to live there whilst he did so. When Mr Denton died Mr Balnaves would be entitled to the property subject, of course, to whatever was then owing on the mortgage.
Mr Terry, who was an acquaintance of Mr Balnaves suggested to Mr Mortimer that Mr Denton ought to be included on the mortgage as a joint borrower and Mr Mortimer amended the mortgage document accordingly.
All witnesses said that Mr Denton was included to protect the mortgagees. I doubt that. I do not believe that the mortgagees were ever advised that the transaction would leave Mr Denton with a tenancy for life plus one month. By that stage, Mr Herreen had not received payments due to him for more than eighteen months. I cannot believe that he would lend again knowing that the security was encumbered by a tenancy to Mr Denton. Mr Lloyd Smith would not, if properly advised and if in particular advised that Mr Denton had a tenancy for life plus one month, have lent money on a mortgage on this property. If the mortgagors had known that Mr Denton was entitled to occupy this property for the rest of his life they would not have advanced a sum of $85000. They certainly would not have lent $85000 or thereabouts if they had known that fact and the further fact that the property carried a valuation of $100000 by the Government Valuer.
A properly informed mortgagee simply would not lend on the strength of a promise made by Mr Denton. He had had difficulties making mortgage payments since 1991. He had not met his obligations to the mortgagee for nearly eighteen months. If Mr Mortimer had advised the potential mortgagees that Mr Denton was to have the benefit of the property for life they would not have advanced the moneys.
Making Mr Denton a joint borrower could not have been any comfort to the potential mortgagees because he could not then meet his existing mortgage obligations.
In my opinion, the reason why Mr Denton was included as a joint borrower was to protect Mr Balnaves. Mr Balnaves did know that Mr Denton was in financial difficulties and had not met his mortgage payments for a considerable length of time. Mr Balnaves would have been aware that Mr Balnaves had a personal liability on the personal covenants in the mortgage. If Mr Denton was not to pay the mortgage instalments during the time that he occupied the premises or allowed the rates and taxes to accumulate there would be a real risk that upon sale of the premises there would be a shortfall of funds available to the mortgagees for which Mr Balnaves would be responsible.
I believe that Mr Balnaves insisted upon Mr Denton being included as a joint borrower for the purpose of Mr Balnaves’ protection, not for the purpose of the mortgagee’s protection.
It follows from that finding that I again reject the evidence of Mr Mortimer and I also reject the evidence of Mr Terry.
In my opinion the evidence of Mr Mortimer and Mr Terry was, in some respects, untruthful and in all respects, unreliable. It goes without saying that I believe the same of Mr Denton’s evidence.
Sometime between the date of settlement and November 1993 Mr Balnaves saw an opportunity to use the property for the purpose of obtaining advances to Cummings Corporation Pty Ltd.
Apparently on 4 November 1993, Cummings Corporation Pty Ltd gave a registered mortgage debenture to the National Australia Bank Limited.
Sometime prior to that time, Mr Balnaves saw the opportunity, I think, to include the property at Frederick Street, North Adelaide as part of the security to the National Australia Bank Limited.
It is probable at that stage that Mr Denton and Mr Balnaves discussed Mr Balnaves using the property for the purpose of securing Cummings Corporation Pty Ltd’s obligations under the Mortgage Debenture. Mr Denton would have been concerned that re-financing with National Australia Bank Limited might give rise to a risk that he could be dispossessed.
It was as a result of the further transaction in relation to the remortgaging that the minute of Cummings Corporation Pty Ltd of 30 August 1993 was created. That minute was created for the purpose of representing to the National Australia Bank Limited that Cummings Corporation Pty Ltd was the beneficial owner of the property.
I believe that the declaration of trust which was purportedly executed by Mr Balnaves on 1 October 1993 was probably executed at about that time. It was necessary to establish that Mr Balnaves was trustee for Cummings Corporation Pty Ltd to satisfy the Bank that the property could be used for the purpose of securing advances to Cummings Corporation Pty Ltd. Of course, there was no such trust. There would have been no reason for Mr Balnaves accepting the transfer from Mr Denton as trustee for Cummings Corporation Pty Ltd, which itself was a trustee, for Mr Balnaves’ family trust. There would be no purpose in Mr Balnaves holding the land on trust for the trustee on trust for his own family trust. His explanation that it was done so because as an individual he would be able to obtain better interest rates is commercially unrealistic. The mortgage moneys which were advanced by Mr Herreen and Mr Lloyd Smith would not have depended upon whether Mr Balnaves or Cummings Corporation Pty Ltd was the mortgagee. In due course, in fact, Mr Balnaves wished to convince a financier, the National Australia Bank Limited, that Cummings Corporation Pty Ltd was the beneficial owner of the property.
In my opinion the Declaration of Trust was created as a matter of convenience to convince the National Australia Bank Ltd that such a trust existed. Before that time there was no such trust.
It is also likely, in my opinion, that the Heads of Agreement of 1 October 1993 was created at the same time. I think at that stage Mr Balnaves did grant to Mr Denton the tenancy mentioned in that document. Mr Denton would have wanted some protection. I think that that tenancy was created at that time because Mr Denton was concerned for his own occupation. He would have been concerned that Mr Balnaves was then asserting that he was simply the trustee on behalf of Cummings Corporation Pty Ltd and that Mr Balnaves was then proposing to charge the property to secure advances to Cummings Corporation Pty Ltd. Without some form of tenancy Mr Denton ran the real risk of being dispossessed in the event that Cummings Corporation Pty Ltd was not able to meet its obligations under the mortgage debenture of 4 November 1993. Mr Denton would have wanted something put in place, at that stage, to secure to him some occupation for a reasonable period of time. I think the Heads of Agreement reflects that.
It follows that I do not believe Mr Denton’s evidence in so far as it is inconsistent with the findings to which I have referred.
I realise that the findings which I have made are not supported, in some respects, directly by evidence. However, my findings are consistent with the inferences arising from the evidence.
I reject as untruthful the evidence of Mr Denton in this Court that he was always unaware that Mr Balnaves bought this property on trust for Cummings Corporation Pty Ltd. That evidence was untruthful and was inconsistent with his affidavit filed in the Family Court of Australia on 15 January 1994.
I also reject his evidence that the Heads of Agreement of 1 October 1993 was prepared in circumstances where he was called to court on short notice and was imposed upon by Mr Balnaves to execute the agreement, although there is no doubt that the Heads of Agreement was executed sometime prior to 17 January 1995. I think that the agreement was executed on the date it bears. I do not believe that it was executed in the circumstances Mr Denton outlined.
I therefore reject Mr Denton’s evidence that Mr Balnaves agreed with him to grant to him a tenancy for life and one month. In my opinion no such arrangement was entered into. The only arrangement that was ever entered into was that expressed in the Heads of Agreement on 1 October 1993.
It was for Mr Denton to establish, on the balance of probabilities, that he was entitled to occupy the premises at 17 Frederick Street, North Adelaide.
It was no doubt within his power to call Mr Balnaves in support of his case. That he was in Mr Denton’s power to call cannot be doubted. Mr Balnaves attended before me to say that he supported Mr Denton’s application. Mr Denton did not call Mr Balnaves and, in my opinion, did not do so because it was clear that Mr Balnaves’ evidence would not support the case advanced. I am entitled, in those circumstances, to infer that Mr Balnaves’ evidence would not have suited Mr Denton’s case; Jones v Dunkel (1959) 101 CLR 298. There is no doubt that Mr Balnaves’ evidence was material. He was privy to all of the negotiations between Mr Denton and himself. He was aware of what tenancy, if any, he gave to Mr Denton. He was at the meeting of Cummings Corporation Pty Ltd and he signed the Declaration of Trust and the Heads of Agreement. He, therefore, was aware of the date that those documents were created. He negotiated with the National Australia Bank Limited and on behalf of Cummings Corporation Pty Ltd and executed the mortgage to the National Australia Bank on 16 November 1993 securing advances to Cummings Corporation Pty Ltd. It was he who asserted to the Family Court that he held the property on trust for Mr Denton and it was he who asserted to this Court that he held the property on trust for Cummings Corporation Pty Ltd.

If he did prepare the Heads of Agreement for the purpose of submission to the Family Court of Australia, in the circumstances deposed to by Mr Denton, then he could have said so.
His evidence would have addressed directly matters upon which I have reached a conclusion by inference. I am entitled to raise inferences contrary to Mr Denton’s case in circumstances where he elected not to call Mr Balnaves upon those matters.
In the absence of Mr Balnaves, Mr Denton’s case could only succeed if the contemporaneous documentation supported his case or, if it did not, that he gave evidence upon which I am prepared to act.
There are a number of documents which do not support his case being the Declaration of Trust, the Heads of Agreement and the affidavit of 17 January 1995. In fact those documents assert facts entirely inconsistent with his case.
In those circumstances Mr Denton was under an obligation if he was accepted as a witness of truth to explain the various inconsistencies and discrepancies between the documents and the case which he was advancing.
I do not believe Mr Denton to be a witness of truth. I think in some respects he was deliberately untruthful and in other respects he was deliberately evasive.
I think it suited both him and Mr Balnaves to assert that there was a tenancy of the kind asserted, but I do not think a tenancy for life plus one month was ever discussed prior to the settlement of the transaction on 27 August 1993.
As I have said, I think it might have been assumed that Mr Denton could reside in the property for the rest of his life because it was assumed that he would discharge the mortgage obligation. However, he did not discharge those obligations and Mr Balnaves took advantage of that window of opportunity in financing or re-financing Cummings Corporation Pty Ltd with the National Australia Bank and offering the property as security in relation to that financing.
Sometime later than that the tenancy agreement of 12 July 1993 was created. I reject the defendant’s claim that he has a tenancy for life plus one month.
It follows from my findings that, in my opinion, the agreement between the defendant and Mr Balnaves was that he was entitled to be a tenant for the period set out in the Heads of Agreement.
The Heads of Agreement provides for a tenancy of six years, I think, commencing on 1 October 1993. Mr Denton, in my opinion, subject to the matters to which I am about to refer, has a tenancy for that period.
The terms of the tenancy provide that he pay rental of $100 per week, adjusted annually by CPI together with council rates, water rates and insurance.
I understand from the evidence that there are arrears in relation to rates and taxes. I have no evidence of the insurance arrangements.
Mr Denton would have an obligation, I would have thought, although I will hear the parties further on this, to pay rent of $100 per week adjusted by the relevant CPI adjustment to the plaintiff who would be entitled to receive the rent as statutory trustee for the sale of Mr Balnaves’ interests.
Those findings would be enough to make the appropriate orders. However, I ought to address briefly a rather curious argument which was put to me by the plaintiff.
The plaintiff was, as I have said, appointed as statutory trustee pursuant to O33 r2 and O33 r7 of the Family Court Rules.
The latter rule provides:
“In order to enforce a decree of the court for the payment of money, the court may order that any interest in real property of a party be sold and for that purpose may appoint the Marshal or any other person (including a party to the proceedings) as trustee for the sale thereof and may -
(a)order that the property be transferred or assigned to the trustee for that purpose and direct that the first-mentioned party execute any necessary deed or instrument;
(b)give any necessary directions as to the sale, including directions with respect to the possession or occupancy of the property pending the sale; and
(c)give directions as to the disposition of the proceeds of the sale.”
The order appointing the plaintiff was in the terms that the plaintiff “shall be appointed statutory trustee for the sale of the Father’s interest.” The order in those terms was consistent with the power given under O33 r7 which is that the court may order “that any interest in real property of a party be sold”.
It would seem on the face of the empowering provision and of the order itself that the statutory trustee has power only to act in the sale of Mr Balnaves’ interest in the property.
Indeed, the counsel for the Child Support Registrar accepted that to be the position. Whilst, of course, she argued that Mr Denton did not have a life interest in the property she accepted that if I found otherwise the plaintiff’s interest would be subject to Mr Denton’s interest.
She said in her written submission:
“The trustee is only appointed to sell the property. His registration as a registered proprietor does not give him a greater interest or a better title than the father. The father retains beneficial ownership. All that has happened is a trustee has been given legal ownership as a trustee to sell the property. It is relevant that the trustee is registered on the CT as a trustee for sale under a court order.”
Thus it was that the Child Support Registrar accepted that if I concluded that Mr Denton had an interest in the property, then in those circumstances Mr Balnaves’ interest was subject to that interest and, of course, the plaintiff’s interest, which derived from Mr Balnaves’, interest also subject to that same interest.
However, the plaintiff, who was appointed only for the purpose of the sale of Mr Balnaves’ interest, argued in his written submission:
“The Family Court Order charges the property with the debt due by the father to CSR and appoints the plaintiff as trustee of the Father’s interest in the property. It is submitted that the plaintiff can have no better interest in the property than the father. The plaintiff does not agree and says that the transfer of the fee simple to him (in the nature of foreclosure) is subject only to such encumbrances, liens, estates and interest as may be notified on the Certificate of Title; per section 69 of the Real Property Act (SA) 1886. Any life interest in the property which formerly benefited the defendant was extinguished by the transfer to the plaintiff. The defendant no longer has an interest in the land that can be protected by caveat.”
I was left, therefore, with a rather surprising situation in which the Child Support Registrar, for whose benefit the statutory trustee had been appointed, accepted that Mr Balnaves’ interests would be subject to whatever interest I determined Mr Denton had, but the trustee appointed to enforce the Child Support Registrar party’s rights claims to have greater entitlements than the Child Support Registrar claimed.
It seems to me, with the greatest respect to the plaintiff, that he quite misunderstands his position in these proceedings. He took a position which was adverse to Mr Denton but also adverse to the party for whose protection he was appointed.
It appears to me inappropriate for the trustee, in the circumstances of this case, to claim that he had a superior right to that which he was appointed to protect. In any event, I do not need to decide whether his argument was right at all because it misconceives the proceedings before me.
The question is not, in the end result, whether or not the trustee’s appointment has extinguished any rights which Mr Denton had. The first question which I must determine is whether or not I ought to amend the order made by the Registrar on 26 May 1994 appointing the plaintiff. If I am of the opinion that the order should be amended so as to make clear that the statutory trustee’s power of sale is limited to Mr Balnaves’ interest after recognition of Mr Denton’s interest, then the point argued by the plaintiff need not be decided because it does not arise.
If it had to be decided the plaintiff would have to convince me that O33 r7, which allows the Court to order that any interest in real property of a party be sold, allows the Court to advance the interest of that party at the expense of an unregistered equitable interest, when the party, who was entitled to that unregistered equitable interest, has not been heard. The plaintiff would also have to convince me, in those circumstances, that to be appropriate in circumstances where the legal owner of the property, which is subject to the order for sale, was aware of the existence of that unregistered equitable interest.
However, as I say, I do not need to decide that matter.
Having regard to the interaction of the Family Court of Australia proceedings and the ejectment proceedings, it seems to me, it would be appropriate for me simply to publish these reasons and hear the parties as to the appropriate orders.
It seems to me, if I might say in advance, that it would be appropriate for me to make an order in the Family Court of Australia proceedings to recognise the decision at which I have arrived. It must be remembered that Mr Denton was not heard before the Registrar’s order of 26 May 1994 was made. If he had been heard the Registrar would have reached the conclusion at which I have arrived and made an order accordingly. Mr Denton was not at fault in not advancing his argument at that time. He did not have notice that his interests might be adversely affected. Whilst I have not accepted that he has a life tenancy plus one month I have concluded that he did have a tenancy in accordance with the terms of the Heads of Agreement. There is no reason, on the evidence before me, to think that he is not entitled to occupy the property for the balance of the term of the agreement.
If I make that order in the Family Court of Australia proceedings then, of course, the action for ejectment must fail because Mr Denton is presently entitled to occupation of the property and will be entitled to occupation subject to the matters to which I have mentioned, until 1 October 1999.

[1998] SASC 6983

2 December 1998