Cassar v Cassar (Preliminary questions) - [2024] VSC 502

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S ECI 2022 04625

SANDRA ANNE CASSAR (in her capacity as administrator and trustee of the estate of the late FRANCIS MICHAEL CASSAR)	Plaintiff/Defendant by Counterclaim
v
MICHAEL ANTHONY CASSAR	First Defendant/Plaintiff by Counterclaim
REGISTRAR OF TITLES	Second Defendant
SANDHURST TRUSTEES LIMITED (ACN 004 030 737)	Third Defendant

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JUDGE:	Gorton J
WHERE HELD:	Melbourne
DATE OF HEARING:	15 August 2024
DATE OF JUDGMENT:	26 August 2024
CASE MAY BE CITED AS:	Cassar v Cassar (Preliminary questions)
MEDIUM NEUTRAL CITATION:	[2024] VSC 502

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WILLS AND ESTATES – Probate granted of a will – Real property and shares transferred to beneficiary under that will – Will later found to be a forgery and grant of probate revoked and administrator appointed – Whether properties and shares should be returned to estate – Where administrator of estate and beneficiary on intestacy aware of and participated in fraud – Where recipient of real property asserts indefeasibility of title – Whether fraud exception to indefeasibility of title applies – Where estate has an in personam claim – Whether the doctrine of laches applies – Whether relief should be denied because plaintiff complicit in fraud – Re Cassar [2022] VSC 126, Re Cassar(No 2) [2022] VSC 398, Frazer v Walker [1967] 1 AC 569, Money v Money (No 2) [1966] 1 NSWR 348 – Transfer of Land Act 1958 (Vic) s 42.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Rizzi with Mr B Harding	Watson Hughes Lawyers
For the First Defendant	Mr M Black	Kingsford Lawyers
For the Second Defendant	No appearance
For the Third Defendant	No appearance

TABLE OF CONTENTS

A. Introduction.................................................................................................................................. 1

B. Background.................................................................................................................................... 2

C. Should the properties be transferred back to the estate?..................................................... 4

C.1Does the fraud exception to indefeasibility of title apply?............................................. 4
C.2The in personam exception.................................................................................................... 4
C.3Does the estate have a good in personam claim?............................................................... 5
C.3.1Equity has the power to undo the transactions.................................................... 6
C.3.2Should the Court undo the transactions in the circumstances?......................... 6

D. Limitations and laches................................................................................................................ 9

E. Volunteers and Indefeasibility.................................................................................................. 9

F. Disposition................................................................................................................................... 10

HIS HONOUR:

A. Introduction

Sandra Cassar, the plaintiff, is the administrator of the estate of her late husband, Francis ‘Frank’ Cassar. Frank Cassar died in 2011 and, under probate granted of a forged will, estate assets were transferred into the name of Michael Cassar, the first defendant, initially in his capacity as executor but ultimately in his own right as the only beneficiary under that will. On 18 March 2022 the grant of probate was revoked.[1] There were no other wills and Sandra Cassar was appointed as the administrator of Frank’s estate to administer it as an intestacy. I will hereafter use first names without meaning any disrespect.[2]
[1]See Re Cassar [2022] VSC 126 and Re Cassar(No 2) [2022] VSC 398.
[2]The second defendant, the Registrar of Titles, and the third defendant, the mortgagee…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cassar v Cassar (Preliminary questions)

Details

AGLC: Cassar v Cassar (Preliminary questions) [2024] VSC 502
Case: [2024] VSC 502
Decision Date: 26 August 2024

CaseChat Overview and Summary

In the matter of Cassar v Cassar, the Victorian Supreme Court was asked to consider the legal consequences of a fraudulent will, focusing on the transfer of real property and shares to a beneficiary, and whether these assets should be returned to the estate upon revocation of the will's probate. The dispute arose from the discovery that the will in question was a forgery, leading to the revocation of the probate and the appointment of an administrator for the estate. The administrator sought to reclaim the transferred assets from the beneficiary, who argued for the indefeasibility of their title and raised the doctrines of laches and complicity in fraud as defences.

The court was required to decide several legal issues, including whether the fraud exception to indefeasibility of title applied in this context, whether the estate had an in personam claim against the beneficiary, and if the doctrines of laches and complicity in fraud barred the estate's claim. The court had to determine whether the beneficiary's indefeasibility of title could be overcome by the estate's fraud-based claim and whether the estate's delay in pursuing the claim and its own involvement in the fraud precluded recovery of the assets.

The court held that the fraud exception to indefeasibility of title did apply, allowing the estate to reclaim the assets transferred under the forged will. The court rejected the doctrine of laches, finding that the delay in pursuing the claim did not prejudice the beneficiary. The court also found that the estate's complicity in the fraud did not bar the claim, as the primary concern was the invalidity of the will and the fraudulent transfer of assets. The court concluded that the estate had an in personam claim against the beneficiary and ordered the return of the real property and shares to the estate.

The final orders of the court were that the beneficiary must return the real property and shares to the estate, and that the estate was entitled to recover damages for the fraudulent transfer. The court also ordered that the beneficiary pay the estate's legal costs associated with the proceedings.

Orders