Daunt v Daunt

[2015] VSCA 58

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2014 0010

STEPHEN LEWIS DAUNT	Appellant
v
MICHAEL TELFORD DAUNT	Respondent

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JUDGES:	REDLICH, SANTAMARIA & KYROU JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 February 2015
DATE OF JUDGMENT:	24 April 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 58	1st Revision: 27 April 2015, par [34]
JUDGMENT APPEALED FROM:	Daunt v Daunt [2013] VSC 706 (Daly AsJ)

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CONSTRUCTIVE TRUST – Transfer of land from parent to adult child – Whether transferor was under a special disability or disadvantage that made her vulnerable – Whether transferor understood the implications of the transfer – Whether transferee exerted undue influence or engaged in unconscionable conduct – Standing of disappointed contingent beneficiary to challenge validity of transfer – Whether by elderly parents’ vulnerability and reliance upon adult child a fiduciary duty was established.

EVIDENCE – Whether determination of VCAT refusing appellant’s application to appoint an administrator admissible – Evidence Act 2008 s 91 – Evidence Act 2008 s 178 inapplicable in absence of certificate.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr MNC Harvey with Dr K Weston-Scheuber	Barristers Duty Scheme
For the Respondent	Dr G Moore	Paul Maginn Lawyer

REDLICH JA
SANTAMARIA JA
KYROU JA:

Introduction

1. In 2010, Mr Edward Daunt (‘Mr Daunt’) and his wife Mrs Valerie Daunt (‘Mrs Daunt’) were the registered proprietors of a property known as 95 Junction Road, Heathcote Junction, Wandong (‘property’). 

2. Mr and Mrs Daunt had three children: Stephen Daunt (‘Stephen’) (who is the appellant), Michael Daunt (‘Michael’) (who is the respondent) and Helen Rodgers (‘Helen’).  Stephen and Michael are identical twins.

3. The relationship between Mr and Mrs Daunt and Stephen and Helen was strained, as was the relationship between Michael, on the one hand, and Stephen and Helen on the other.  It also seems that Michael was the primary carer for his parents.  During 2010, it appears that Mrs Daunt’s access to a pension was affected by her joint ownership of the property. 

4. On 16 June 2010, Mr and Mrs Daunt executed a transfer of the Wandong property in favour of Michael and Mr Daunt (‘the transfer’). 

5. On 6 October 2011, Stephen lodged a caveat on the title to the Wandong property. 

6. On 26 October 2011, Mr Daunt died.  He was survived by Mrs Daunt.

7. Had the transfer not occurred, Mrs Daunt would have succeeded to sole proprietorship of the Wandong property by right of survivorship.  By reason of the transfer and the later death of his father, Michael succeeded to the sole proprietorship of the property by right of survivorship.

8. On 22 May 2012, Michael was registered as the sole proprietor of the property by right of survivorship.

9. In response to the caveat lodged, Michael made an application to Land Victoria pursuant to s 89A(1) of the Transfer of Land Act 1958 for the removal of the caveat.[1]

   [1]Section 89A(1) of the Transfer of Land Act 1958 provides: ‘Subject to the provisions of this section, where a recording of a caveat (not being a…