CJ v EJ
[2020] VSC 209
•24 April 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PROPERTY LIST
S ECI 2019 05111
| CJ | Plaintiff |
| v | |
| EJ | Defendant |
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JUDGE: | Ierodiaconou AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | Determined on the papers (submissions filed on 2 April 2020, 9 April 2020). |
DATE OF RULING: | 24 April 2020 |
CASE MAY BE CITED AS: | CJ v EJ |
MEDIUM NEUTRAL CITATION: | [2020] VSC 209 |
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LAND – Recovery of possession – Framlingham Aboriginal Trust v McGuiness [2014] VSC 241 – Chan v Chan [2020] VSCA 40 – Supreme Court (General Civil Procedure) Rules 2015 O 53, r 4.07.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Gronow QC | |
| For the Defendant | Mr T Jeffrie | Gadens Lawyers |
TABLE OF CONTENTS
Application.......................................................................................................................................... 1
Background......................................................................................................................................... 1
Plaintiff’s submissions..................................................................................................................... 5
Defendant’s submissions................................................................................................................. 6
Analysis................................................................................................................................................ 8
Conclusion......................................................................................................................................... 10
HER HONOUR:
The parties each have intervention orders in place against the other. The plaintiff applies for possession of property in which his mother, the defendant, resides. The defendant’s monies were used to purchase the property. It was registered in the plaintiff’s name. Both have lived at the property at various times. The defendant opposes the application.
At the outset, I acknowledge the assistance of the legal practitioners representing the parties. They were all acting pro bono. Their useful written submissions facilitated timely determination of the application.
Application
The plaintiff seeks recovery of the land described by volume and title number in his originating motion (‘the property’).[1] His application is based upon Order 53 of the Supreme Court (General Civil Procedure) Rules 2015. As discussed below, it is a summary procedure for possession of land.
[1]Plaintiff’s originating motion filed on 12 November 2019.
Background
There are serious allegations made by the parties against one another and it is unnecessary to outline them in this ruling. This application is not the vehicle for making dramatic findings of fact. Clearly, there has been a disintegration of family relationships and Victoria Police have attended the property on a number of occasions.
The plaintiff is 23 years old and the child of a marriage between the defendant and her estranged husband. There is a daughter of the marriage who is 21 years old. The chronology below includes reference to both the daughter and husband.
The plaintiff is unemployed and the defendant is a pensioner. They have both had periods of ill health at different stages requiring hospitalisation.
In late 2015 and early 2016, the defendant transferred large sums of money into a joint bank account held with her husband.[2] The monies were from a compensation payment that she had received after being injured in a transport accident.
[2]See joint bank account statements contained in Exhibit ‘CJ-2’ to the plaintiff’s affidavit affirmed on 12 November 2019 (‘plaintiff’s affidavit).
In early 2016, the property was purchased and the plaintiff was registered as the sole proprietor of the property.[3] His address on the title is noted to be that of the property.
[3]Exhibit ‘CJ-1’ to the plaintiff’s affidavit is a title search dated 14 June 2019. There are two covenants registered on the property.
The plaintiff deposes that his parents insisted that he add the daughter [as a registered proprietor] to the title of the property, however she was underage and so he could not. He deposes that it is his intention to do so.
The parties agree that each lived at the property. There is a factual dispute as to the periods at which the defendant resided at the property. The defendant’s husband and daughter appear to have lived at the property at various times. Both parties claim they paid utilities for the property at different times. The plaintiff deposes that he purchased furniture for the property and exhibits his notated bank statements regarding payments for furniture.
In January 2016, the plaintiff, then 19 years old, entered into contracts to purchase the property and to build a home on it.[4] The property purchase monies appear to have been paid out of the joint account of the defendant and her husband.[5] The defendant also appears to have paid some of the monies directly to the plaintiff.[6]
[4]Exhibit ‘CJ-8’ to the plaintiff’s affidavit.
[5]See joint bank account statements contained in Exhibit ‘CJ-2’ to the plaintiff’s affidavit.
[6]See credit of $6,261 re ‘FivePCTBlockofLand’ and debit re same on 20 January 2016.
Later in 2016, a home was built on the property. The funds for the building of the home appear to have been transferred from the joint account of the defendant and her husband[7] following payments into their account from, at least on one occasion, the defendant.[8] The defendant also appears to have transferred money directly into the plaintiff’s account.[9]
[7]See for instance, monies paid into joint bank account statement on 24 May 2016 and withdrawal on 25 May 2016, and the credits and withdrawals on: 2 June 2016, 8 July 2016, 3 August 2016 and 14 October 2016.
[8]See the credit and withdrawal on 2 June 2016 on joint bank account statement of the defendant and her husband contained in Exhibit ‘CJ-2’ to the plaintiff’s affidavit.
[9]See for instance payment on 6 October 2017 on bank account statement of the plaintiff contained in Exhibit ‘CJ-4’ to his affidavit.
On 12 December 2017, the State Revenue Office gave the plaintiff a credit in respect of the first home owner’s grant.[10]
[10]See plaintiff’s bank account statement contained in Exhibit ‘CJ-4’ to the plaintiff’s affidavit.
In or around December 2017, the defendant caused a caveat to be placed on the property. It incorrectly indicated that there was a written agreement between herself and the plaintiff regarding the property. Both parties agree this was not the case. The defendant deposes the error was a result of a miscommunication with the conveyancer and the caveat was withdrawn.
The plaintiff appears to have made mortgage payments in respect of the property.[11] It appears that on at least one occasion in 2019, the defendant’s husband paid money into the plaintiff’s account shortly before a mortgage payment was deducted.[12]
[11]See for instance debit on 10 and 24 April 2019 on bank account statement of the plaintiff contained in Exhibit ‘CJ-4’ to his affidavit.
[12]See credit and debit on 22 March 2019 on bank account statement of the plaintiff contained in Exhibit ‘CJ-4’ to his affidavit.
The plaintiff deposes that in January 2018, the defendant broke into the house on the property. He called the police and obtained an intervention order against the defendant and after that she was removed from the house. The plaintiff deposes that in mid-2018 he had the intervention order removed and allowed the defendant to live at the property with himself, her daughter and husband, out of respect for her marriage. These 2018 intervention orders are not in evidence and I make no finding regarding them.
On 26 February 2019, on the application of a police officer, intervention orders were made by the Magistrates’ Court prohibiting, amongst other things, the plaintiff, the defendant’s husband and daughter from coming within 200 metres of the property.[13]
[13]Exhibit ‘EJ-1’ to the defendant’s affidavit affirmed 2 December 2019 (‘defendant’s affidavit’).
On 17 May 2019, a caveat was registered on the property by the defendant. The grounds of claim are stated to be ‘implied, resulting or constructive trust’ and the prohibition ‘absolutely’.[14]
[14]Exhibit ‘CJ-1’ to the plaintiff’s affidavit.
On 5 September 2019, the plaintiff, the defendant’s husband and daughter applied for variation of the intervention orders. They sought to remove the exclusion from the property on the ground that they believed the defendant was not living there and the house was empty. The Magistrates’ Court refused the application for variation.[15]
[15]Exhibit ‘EJ-1’ to the defendant’s affidavit.
On 2 October 2019, the Magistrates’ Court made further intervention orders. They state they are made with the consent of the parties. They prohibited each party from being within 200 metres of the residence of the other, and, as with the previous intervention order, this specifically prohibited the plaintiff, and the defendant’s husband and daughter, from being within 200 metres of the property. The plaintiff, and the defendant’s husband and daughter, later appealed the intervention orders.
On 12 November 2019, the plaintiff initiated this proceeding by originating motion.
On 22 November 2019, the County Court of Victoria dismissed the appeals against the intervention orders. The intervention orders are in place until 1 October 2020.
On 2 December 2019, the defendant initiated a proceeding against the plaintiff and her husband in the Family Court of Australia (‘the Family Court proceeding’).[16]
[16]Exhibit ‘EJ-8’ to the defendant’s affidavit.
Plaintiff’s submissions
The plaintiff relies on his affidavit affirmed on 12 November 2019. His key submissions follow.
Firstly, the presumption of advancement principle applies. The funds were a gift from his mother to him, and the property was registered in his name. The presumption of advancement applies to negative the creation of any resulting trust in relation to the property. The defendant has not rebutted the presumption of advancement that the purchase of the property was registered in the plaintiff’s name in order to benefit him as her son, rather than for any other reason. The relevant time to ascertain property rights was at the time of acquisition. Even if the defendant lived rent free at the property, it does not rebut the presumption. It is alleged that there is a letter dated 18 February 2018 from the conveyancer of the property saying that at the time of the purchase the defendant and her husband said that they were buying the property for the plaintiff and for his benefit.[17]
[17]This letter is not in evidence. It is not exhibited to the plaintiff’s affidavit.
Secondly, the plaintiff did not apply any illegitimate pressure, coercion or undue influence against the defendant in relation to the purchase of the property in his name. At the time of purchase, the plaintiff was in the Austin Hospital receiving treatment, as the defendant deposes. The intervention orders taken out by each member of the family against the others appear to show the defendant is a perpetrator as much as a victim of any domestic violence. The defendant does not claim the plaintiff was violent or threatening to her and there is no evidence that he ever was.
Thirdly, there is evidence that the plaintiff paid for home improvements, furniture, maintenance, bills and rates as well as receiving the first home owner’s grant. He made mortgage repayments on the property and only recently ceased to do so because of his financial inability.[18]
[18]Exhibits ‘CJ-5’ to ‘CJ-9’ inclusive of the plaintiff’s affidavit.
Fourthly, the existence of a factual dispute does not prevent Order 53 from being applicable, provided it is possible to resolve the dispute fairly and readily. An order for possession may be made if the Court is able to satisfy itself as to the material facts which bring the case within Order 53.
Here, it is acknowledged that there is a factual dispute as to who lived at the property for when and for how long: whether the defendant always lived at the property with the exception of certain periods; whether it was occupied by the plaintiff from the conclusion of construction in late 2016; whether the defendant live in the property rent free; and whether the defendant was wrongly ejected in early 2019. However, on any view of the disputed facts, the plaintiff is the registered proprietor and prima facie entitled to possession of it. The defendant either occupied it with his licence (since withdrawn) or alternatively unlawfully occupied it and this entitles him to summary possession.
Fifthly, and in the alternative, the Court should exercise its discretion to order the proceeding continue as if it had been commenced by writ under r 4.07. This proceeding was commenced prior to the Family Court proceeding. It is within the jurisdiction of this Court. The possession of real property located in Victoria is subject to the Transfer of Land Act 1958. It is therefore more appropriately determined in this Court than the Family Court of Australia.
Defendant’s submissions
The defendant relies on her affidavit affirmed on 2 December 2019. Her key submissions follow.
Firstly, there is a factual dispute that cannot be resolved readily in circumstances where neither party has given evidence nor been cross-examined. There is a serious question to be tried and consequently Order 53 is not applicable.
It is contested whether the defendant freely gifted the funds to the plaintiff or whether she did so as a result of domestic violence. The factual disputes are over: family violence circumstances, the circumstances that led to the purchase, any discussions regarding the purchase, any legal advice on the rights to the property, and financial arrangements. Further, there are allegations of forgery now made by the plaintiff against the defendant.
The defendant says her evidence is that she is the victim of sustained domestic violence at the hands of her husband and the plaintiff.[19] She was in a car accident and received a compensation payout. The defendant wanted to use the payout to purchase property to reside in together with her husband, daughter and the plaintiff.[20] She met with a builder and sought to purchase the land in her name.[21] As a result of violence from her husband, the property was purchased in the plaintiff’s name. She funded the purchase of the property.[22] The defendant currently resides at the property alone due to intervention orders against her husband and the plaintiff. The defendant pays a number of utility bills in respect of the property.
[19]Exhibits ‘EJ-1’, ‘EJ-2’ and ‘EJ-3’ to the defendant’s affidavit affirmed 2 December 2019 (‘defendant’s affidavit’).
[20]Exhibit ‘EJ-4’ to the defendant’s affidavit.
[21]Exhibit ‘EJ-6’ to the defendant’s affidavit.
[22]Exhibit ‘CJ-2’ to the plaintiff’s affidavit.
Secondly, the defendant has made an application in the Family Court of Australia seeking orders that the property be transferred to her name under s 90AE of the Family Court Act 1976.[23] The application is made on the basis of a resulting trust.
[23]Exhibit ‘EJ-8’ to the defendant’s affidavit.
The appropriate venue for the dispute is the Family Court of Australia. It is more efficient for that Court to deal with it. It can make a decision as to whether the property is held on trust for the defendant, place it in the matrimonial asset pool and then make a decision about division of the assets. The defendant will otherwise need to be party to two separate proceedings before the property is divided. Unlike this Court, the Family Court can take into account the interests of third parties. The conduct of the defendant’s husband is central and his interests may be affected by any Court order. Both he and the plaintiff are parties to the Family Court proceeding. The Family Court process is cheaper and more flexible. It includes two rounds of mediation before a Registrar as opposed to a Judge. The plaintiff is unemployed and the defendant is a pensioner.
The current proceeding should be dismissed with a right of reinstatement if the Family Court proceeding is withdrawn.
Analysis
Order 53.01 follows.
Application of Order
(1)Subject to paragraph (2), this Order applies where the plaintiff claims the recovery of land which is occupied solely by a person or persons who entered into occupation or, having been a licensee or licensees, remained in occupation without the plaintiff's licence or consent or that of any predecessor in title of the plaintiff.
(2)This Order does not apply where the land is occupied by a mortgagor or successor in title and the claim is made by the mortgagee or successor in title.
In Framlingham Aboriginal Trust v McGuiness,[24] Derham AsJ summarised the authorities relating to the operation of Order 53, which I adopt.
[24][2014] VSC 241 [41], upheld on appeal Framlingham Aboriginal Trust v McGuiness [2014] VSC 354 (Ginnane J).
(a)It is intended to enable a speedy resolution in favour of the proprietor of land of a dispute whereby trespassers are keeping the proprietor out;
(b)It is intended to apply only in clear cases where there is no question to try;
(c)The existence of a factual dispute does not deny the applicability of Order 53 where it is possible to resolve the dispute readily and fairly.
(d)While an order for possession may be made notwithstanding that there is a factual dispute between the parties, such an order will only be appropriate if the court is able to satisfy itself as to the material facts that bring the case within O 53;
(e)The jurisdiction should be exercised with great care;
(f)Where an issue does emerge, the judge has discretion whether simply to dismiss the proceeding, to determine the issue or cause the issue to be subsequently tried. This includes giving directions as to the further conduct of the proceeding or ordering the proceeding to continue as if begun by writ pursuant to r 4.07 of the Rules; and
(g)Where the court gives judgment for possession under Order 53, it may grant a stay of execution.
In Chan v Chan,[25] the Court of Appeal applied the principles above. Chan v Chan concerned a property dispute between siblings. The Court of Appeal held that Order 53 was not the appropriate procedure. Tate JA, with whom Maxwell P and Forrest JA agreed, held ‘that Order 53 is not available nor appropriate in the circumstances of the case… [and the] matter, if it is to proceed, ought to proceed to trial and be commenced by a writ with a statement of claim’.[26]
[25][2020] VSCA 40 [54]–[56] (‘Chan v Chan’).
[26]Ibid [92]–[94].
In Chan v Chan the Court of Appeal referred to Alderuccio v Alderuccio,[27] a decision in which it was held that Order 53 was not applicable in circumstances where a constructive trust was alleged and the parties were self-represented.[28]
[27][2019] VSC 404.
[28]Chan v Chan [65].
I will disallow the application made under Order 53. This is not a ‘clear case’ for the following reasons.
Firstly, there are serious allegations made that bear upon the question of ownership of the property. The evidence needs to be properly tested, that is, subject to cross-examination.
Secondly, the legal issues are complex. On the one hand, the plaintiff asserts the presumption of advancement applies. On the other hand, the defendant asserts a resulting trust. This is not a case of deciding, on summary procedure, whether or not a licence given to occupy is revoked. If the defendant has an equitable interest in the property, then her occupation of the property may not have ever been on the basis of a licence.
Given that the Order 53 application is disallowed, I am not inclined to make orders reinstating the proceeding in the event that the Family Court proceeding is withdrawn.
The question then is whether or not the proceeding should be allowed to continue pursuant to r 4.07. It follows.
Continuance as writ of proceeding by originating motion
(1)Where a proceeding in which there is a defendant is commenced by originating motion, but ought by or under any Act or these Rules to have been commenced by writ, or might in the opinion of the Court more conveniently continue as if commenced by writ—
(a)the Court may order that the proceeding continue as if it had been commenced by writ and may, in particular, order that any affidavits already filed in the proceeding shall stand as pleadings, with or without liberty to any of the parties to add thereto or to apply for particulars thereof or that pleadings be served between the parties, and that the parties have discovery of each other; and
(b)by virtue of that order, the proceeding shall be taken to have been duly commenced for all purposes on the day the originating motion was filed.
(2)Any reference in these Rules to a proceeding commenced by writ shall, unless the context otherwise requires, be taken to include a reference to a proceeding in respect of which an order has been made under paragraph (1).
I will not make orders converting the proceeding pursuant to r 4.07 given the Family Court proceeding is on foot. It is made pursuant to s 90AE of the Family Law Act 1975 (Cth) (‘FLA’). Section 90AE(2) makes reference to proceedings under s 79 of the FLA. They relate to the alteration of property interests and s 79(1)(d)(i) of the FLA makes express reference to the parties to a marriage or a child of the marriage. The Family Court has jurisdiction to determine complex family property disputes involving parties other than husband and wife.[29] Indeed, the FLA incorporates safeguards to protect the interests of third parties in property disputes.[30]
[29]See also: Bagshaw v See [2019] FamCA 482.
[30]AC v VC (2013) 275 FLR 299, 321–2.
Conclusion
I will make orders dismissing the application and the proceeding.
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