Director of Housing v Zelda's Place Collective
[2003] VSC 118
•24 April 2003
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL & EQUITY DIVISION
PRACTICE COURT
No. 5143 of 2003
| DIRECTOR OF HOUSING | Plaintiff |
| v | |
| ZELDA’S PLACE COLLECTIVE (an association incorporated under the Associations Incorporation Act 1981) | First Defendant |
| and | |
| ANNE GOLDSTEIN INC (an association incorporated under the Associations Incorporation Act 1981) | Second Defendant |
| and | |
| REGISTRAR OF TITLES | Third Defendant |
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JUDGE: | Balmford J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 April 2003 | |
DATE OF JUDGMENT: | 24 April 2003 | |
CASE MAY BE CITED AS: | Director of Housing v Zelda’s Place Collective | |
MEDIUM NEUTRAL CITATION: | [2003] VSC 118 | |
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TRUSTS - subject property (women’s refuge) held on trust for Director of Housing by associated organisation under funding agreement – whether trustee had the power to create a trust - default of agreement – trustee unable to be found – Director of Housing sought vesting order pursuant to s.51 Trustee Act 1958 and registration of vesting order under s.58 Transfer of Land Act 1958 – orders granted.
Trustee Act 1958 – s.51
Transfer of Land Act 1958 – s.58
Housing Act 1983 – s.9
Associations Incorporation Act 1981
Re Purkiss [1999] 3 VR 223 at 229
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms C Sparke | David Watts, Department of Human Services |
HER HONOUR:
By originating motion filed on 28 March 2003 the plaintiff seeks an order pursuant to section 51 of the Trustee Act 1958 (“the Trustee Act”) vesting the property situate at and known as 110 Bennett Street North Fitzroy, being described in Certificate of Title Volume 6470 Folio 885, (“the subject property”) in the plaintiff absolutely, and an order under section 58 of the Transfer of Land Act 1958 (“the Transfer of Land Act”) directing the third defendant (“the Registrar”) to execute such documents and make such entries in the Register of land under the Transfer of Land Act as are necessary to give effect to that order.
Section 51 of the Trustee Act relevantly provides that the Court may make a vesting order where a trustee cannot be found, or where property is vested in a trustee and it appears to the Court to be expedient to make a vesting order. Section 58 of the Transfer of Land Act relevantly provides for the registration of any vesting order so made.
The evidence before the Court was comprised in the affidavit of Mr Watts, Assistant Director, Legal Services, of the Department of Human Services and the exhibits thereto; the affidavit of Ms Mann, who had the conduct for the first and second defendants of the purchase described in [9] below; and an affidavit of service.
The plaintiff (“the Director”) is the Director of Housing, created by section 9 of the Housing Act 1983 as a body corporate with perpetual succession and a common seal. The functions of the plaintiff are performed by officers of the Department of Human Services (“the Department”). There was no appearance for either of the first and second defendants (“the defendants” collectively and “Zelda’s Place” and “Anne Goldstein” respectively), both of which are associations registered under the Associations Incorporation Act 1981. The third defendant (“the Registrar”) advised the Court by letter dated 8 April 2003 that she did not attend to appear in the proceeding.
There was before the Court a photocopy of an executed but undated document headed “Funding Agreement” (“the agreement”). Despite searches it has not been possible to locate the original of the agreement in the Department. Ms Mann deposes that she does not believe that the original was ever provided by the defendants to the office of the solicitors who represented them. Notices to produce the agreement were served on the defendants by the plaintiff and no response was received. Noting the evidence set out in this paragraph and in [13] below, I consider it appropriate that the photocopy before the Court be received as secondary evidence of the terms of the agreement.
The parties were described in the agreement as:
Director of Housing
of 250 Elizabeth Street,
Melbourne
(“the Director”)of the first part
and
The organisation whose name and address are firstly specified in the Schedule hereto
(“the Funded Organisation”)of the second part
and
An Associated Incorporated Body
An associated organisation whose name and address will appear on title as previously agreed
(“the Associated Organisation”)of the third part.
The name, although not the address, of Zelda’s Place appeared in the schedule beside the subheading “Funded Organisation”. The document was executed by the Director, Zelda’s Place and Anne Goldstein. It is described as follows in the affidavit of Mr Watts:
The purpose of the agreement was to provide funding to Zelda’s Place Collective for the purpose of buying and upgrading a building to be used as a women’s refuge. At the time the department provided funds to organisations to be used for the purchase of women’s refuges. The policy of the department at the time was to require that there be two incorporated entities. One entity (in this case, Zelda) was the name by which the organization was known to its prospective clients. A second entity (in this case, Anne Goldstein) was incorporated to hold the actual title to the property. I believe the intention of that system was to ensure the anonymity of the refuge. Separating the two identities meant that anyone trying to search for information as to the whereabouts of the refuge could not link the public name – Zelda – with the address of the refuge. The first entity only had a Post Office Box address and the name of the owner of the property was not publicly available.
Clause 2(a) of the agreement provides that “the Associated Organisation” shall at all times hold “the property” on trust for the Director, to be used only “to provide safe and secure emergency short term accommodation for women and children who have been subjected to and seek refuge from domestic violence in their homes”. In effect, that use can be described as the operation of a women’s refuge. “The property” is not defined or described in the agreement, either directly or indirectly. The agreement refers to the provision of funding “to purchase and upgrade a house” for that purpose, and the expressions “the house” and “the property” are used indiscriminately throughout the agreement to refer to the premises to be purchased.
Not all of the inadequacy of the agreement is justified by the need for anonymity explained by Mr Watts. However, I am satisfied, on the basis of material before the Court, some of which derives from the file of the solicitors who acted for the first and second defendants on the acquisition of the subject property, that the subject property is the property purchased pursuant to the agreement, that the sum of $233,675.73 was provided for the settlement of the purchase of the subject property by the Department of Planning and Development, the predecessor, in this context, of the Department, and that the purchaser of the subject property was Anne Goldstein, as the “Associated Organisation” pursuant to the agreement. Settlement was arranged for 24 January 1994 and the transfer to Anne Goldstein was registered on 23 September 1999, the delay being apparently associated with an application for stamp duty exemption.
It would appear that the agreement was executed prior to the settlement of the purchase on 24 January 1994, and most probably (assuming the defendants to have acted prudently) before the execution of the contract of sale, which is also undated. If that is the case, the question arises as to the power of Anne Goldstein to create the trust in favour of the Director contemplated by clause 2(a) of the agreement. However, Ms Sharpe, for the Director, drew my attention to the consideration in Ford & Lee, Principles of the Law of Trusts [1] of the effect of a purported conferral of an interest in property which the person conferring the interest does not yet own. I am satisfied on the basis of that text that the declaration of trust, although presumably made before Anne Goldstein acquired the subject property, but having been made for valuable consideration (namely the sum provided by the Director for the settlement of the purchase) bound the subject property as soon as it was acquired. Thus Anne Goldstein thereupon became in equity trustee of the subject property for the Director. I accept the submission of Ms Sharpe that no question arises as to the certainty of the subject matter or the object of the trust thereby created.
[1]third edition at [4070]
Clause 2(b)(viii) of the agreement provides that the Funded Organisation (Zelda’s Place) will at all times ensure that the Associated Organisation (Anne Goldstein) “deposits with [an officer of the Department] the duplicate Certificate of Title held in the name of the Associated Organisation which relates to the property together with a duly executed Transfer of Land which will enable the Director to procure registration as owner of the property upon the occurrence of an event of default”. The Registrar has indicated that the Transfer of Land held by the plaintiff which was provided pursuant to that provision, will not be accepted for registration. There is no evidence before the Court as to the whereabouts of the Certificate of Title.
Clause 3(b) of the agreement relevantly provides that an event of default shall be deemed to have occurred if “the house at any time ceases for any continuous period in excess of one month to be used for the approved purpose” that is, as a women’s refuge. An unnumbered clause following on clause 4 provides that upon the occurrence of an event of default “full legal as well as equitable ownership of the property shall vest in the Director”. Clause 4(a) provides that if either of the defendants fails to observe or perform any of its duties, the Director may serve on the Funded Organisation a Notice of Default which shall detail the breach of duty and call upon the Funded Organisation to remedy the breach.
The subject property has not been used as a women’s refuge since March 2000 and possibly earlier. That constitutes an event of default and also a failure by the Associated Organisation to perform its duty to use the subject property as a women’s refuge. Written notices of breach under clause 4(a) of the agreement were sent to each of the defendants at their post office box address (being the same address for each association) as shown in the Register of Incorporated Associations (“the Associations Register”) on 21 March 2000. As the breach was not remedied within fourteen days, notices terminating the agreement were sent to each defendant on 17 April 2000, pursuant to the unnumbered clause of the agreement. Neither of the defendants has filed returns in the Associations Register for a number of years. Enquiries of the women’s refuge umbrella organization did not produce contact details of any member or former member of either of the defendants, save one who left some twelve months before the purchase of the subject property. An advertisement of the present proceeding placed in The Age newspaper on 16 October 2001 produced no response. Notice of this proceeding was also served on both defendants at their address in the Associations Register, and as has been said, there was no appearance for either of them.
In Re Purkiss[2], Warren J considered the authorities indicating that courts have demonstrated a reluctance to make vesting orders until every other curial or conveyancing process of obtaining the title sought by the applicant has been exhausted. The Registrar and the Registrar of Incorporated Associations have been made aware of the application. No suggestion has been made that either officer has any power which could be employed to achieve that purpose, given the apparent impossibility of locating any person associated with the trustee, Anne Goldstein. There does not appear to be any other process available.
[2][1999] 3 VR 223 at 229
I am satisfied, for the reasons set out, that Anne Goldstein holds the subject property on trust for the Director, and that in terms of section 51 of the Trustee Act, Anne Goldstein cannot be found, and it is expedient to make an order vesting title to the subject property in the Director. There will be orders to that effect, and a direction to the Registrar under section 58 of the Transfer of Land Act.
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