Coatz v Coatz - [2007] WASC 132

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: COATZ -v- COATZ & ANOR [2007] WASC 132

CORAM: MASTER SANDERSON

HEARD: 31 MAY 2007

DELIVERED : 25 JUNE 2007

FILE NO/S: CIV 2087 of 2005

BETWEEN: LINDA VAL COATZ
Plaintiff
AND
VALMA DOROTHY COATZ
First Defendant
REGISTRAR OF TITLES
Second Defendant

Catchwords:

Property law - Alleged oral contract for sale of land - Application to extend operation of caveat - Turns on own facts

Legislation:

Nil

Result:

No contract between parties
Application to extend caveat dismissed

Category: B

Representation:

Counsel:

Plaintiff:     Ms C M Fitzpatrick
First Defendant              :     Dr J J Hockley
Second Defendant         :     No appearance

Solicitors:

Plaintiff:     Fitzpatrick Lawyers Pty Ltd
First Defendant              :     Clement & Co
Second Defendant         :     No appearance

Case(s) referred to in judgment(s):

Nil

MASTER SANDERSON: This matter is a dispute between mother and daughter over a property at 9 Hanson Way, Mandurah. The defendant is the registered proprietor of the property. The defendant's daughter, the plaintiff, is resident in the property. She has been since the time it was purchased in January 2000. On 10 June 2005, the plaintiff lodged a caveat against the property. On 22 August 2005, she was advised by the Department of Land Information that the defendant had applied to have the caveat removed under s 138B of the Transfer of Land 1893 (WA). She issued an originating summons to extend the operation of the caveat on 9 September 2005.
Strictly speaking, the issue to be determined on the return of the originating summons issued by the plaintiff is whether or not she has a caveatable interest in the property. If she does, then she would be entitled to maintain the caveat and the defendant could issue proceedings to have questions of ownership of the property finally determined. On the other hand, a finding that the caveat should be discharged would mean that it would be up to the plaintiff to take any further action she saw appropriate to establish her interest in the property. In this case both parties were represented. Counsel agreed that there was no point in separate proceedings being issued to resolve the dispute between the parties. Nor did counsel wish to have the matter proceed on pleadings or after discovery. It was agreed on all sides that I should determine the issues between the parties on the affidavit evidence filed by each of them and after each was cross‑examined on their affidavit.
Turning to the facts, it is common ground between the parties that in late 1999 the plaintiff was forced to give up a rental property she had been occupying. There was some dispute between the parties as to why the plaintiff had to vacate that property, but that dispute is irrelevant to this application. It is the plaintiff's case that the defendant offered to assist her by purchasing a property. The plaintiff says that the purchase was on the "understanding" that once she (the plaintiff) was in a financial position to be able to obtain a mortgage, she would refinance the property, discharge the mortgage over the land and pay the defendant an amount in the region of $5000 for assisting the plaintiff in her time of need. The existence of this agreement is central to the plaintiff's case. Leaving to one side the difficulties of obtaining enforcement of an oral agreement in relation to land when it is in no way evidenced in writing, if there was no agreement, then the plaintiff has no claim.
It is the defendant's case that no agreement was reached. She says that she was prepared to assist her daughter. She says that initially her daughter asked her to rent a property for her but the defendant declined to take that step. She says the plaintiff then asked if the defendant would buy a property in which the plaintiff could live. Eventually she agreed to this course. The defendant borrowed all the money necessary to buy the property. The loan was secured over the defendant's property at 60 McLarty Road, Halls Head, not over the Hanson Way property.
It is common ground between the parties that when the plaintiff started to live in the premises she paid the defendant $200 per week. This was somewhat more than the going rate for equivalent rental properties. The defendant took the step of obtaining advice from a local real estate agent as to what rental a property such as the Hanson Way property would attract. She was advised that the market rate was around $150 per week. However, the plaintiff paid $200 per week. This was not quite enough to meet the mortgage repayments - the balance of some $10 per week was paid by the defendant. It was the plaintiff's case that her payment of $200 per week to the defendant was pursuant to an agreement that she would meet the mortgage payments on the property. The defendant said that the plaintiff was paying rent and there was never any discussion leading to an agreement that the payment by the plaintiff would be regarded as her paying off the mortgage.
It was common ground between the parties that the plaintiff undertook some improvements to the property. She estimated that the improvements cost her in the region of $80,000. She provided no evidence to support this claim. Indeed, it is very difficult to understand how she could have paid out that amount of money in improving the property. The thrust of her evidence was that she was always struggling.
In the absence of any supporting evidence, the defendant alleged that although the plaintiff had improved the property the improvements had been relatively modest. She put these at around $14,000. However, this was nothing more than a guess - based upon what she saw of the improvements made to the property.
Insofar as any finding of fact on this issue is relevant, I find that the plaintiff has improved the property to some extent. I am unable to conclude how much has been invested in these improvements.
There was a difference between the parties as to who paid the water rates and council rates in relation to the property. I accept, as was said by the defendant, that in relation to water rates, she paid the rates and the plaintiff paid for the water used. In relation to council rates, these were paid by the defendant.
It is relevant to note that at all times the defendant has in her tax affairs treated this property as hers. She has declared the income and claimed the interest as a deduction. She has claimed outgoings she has paid as expenses to be offset against her tax. The plaintiff, for her part, has sought rent assistance from Centrelink. In other words, she represented to the Commonwealth agency that she was renting the property rather than purchasing it. That evidence, taken together, suggests that there was no agreement in the terms alleged by the plaintiff.
In the end, I am not satisfied that there was any agreement reached between the plaintiff and the defendant as to the fate of the property. I would accept, as was conceded by the defendant during the course of cross‑examination, that the parties had discussed in general terms the prospect of the property passing to the plaintiff. But I am not satisfied that there was any meeting of minds with the effect that a contract was formed, the terms of which were understood by both parties. The plaintiff herself did not seem clear, when under cross‑examination, precisely what the terms of the agreement with the defendant were. In the end, it was all too vague.
Having reached that conclusion, there is no caveatable interest held by the plaintiff over the property and the originating summons should be dismissed. Subject to hearing from the parties, costs should follow the event.
There is one further matter of which I should make mention. During his closing submissions, counsel for the defendant conceded that the defendant should compensate the plaintiff for additions and improvements she has made to the premises. Given the state of the evidence and the position adopted by the defendant in these proceedings, it is difficult to know upon what basis that concession was made. In any event, I see nothing in the evidence which would warrant my making an order for any amount to be paid to the plaintiff. If the defendant wishes to take that step, then the payment should be regarded as ex gratia.