Edgar v Manson - [2003] NTSC 38

Edgar v Manson & Ors [2003] NTSC 38
PARTIES:LAWRENCE EDGAR

v
ESTHER ROSE MANSON
and
WESTPAC BANKING CORPORATION
and
REGISTRAR-GENERAL FOR THE NORTHERN TERRITORY

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY exercising Territory jurisdiction
FILE NO:73 of 2000 (20008958)
DELIVERED:  16 April 2003
HEARING DATES:  17 February 2003
JUDGMENT OF:  THOMAS J
CATCHWORDS:

REPRESENTATION:
Counsel:
Plaintiff:L Sylvester
First Defendant:  No appearance
Second Defendant:  J Wynberg
Third Defendant:  P Timney
Solicitors:
Plaintiff:Tony Crane
First Defendant:  Self Represented
Second Defendant:  Cridlands
Third Defendant:  Solicitor for the NT
Judgment category classification:        C
Judgment ID Number:  tho200312
Number of pages:  36

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Edgar v Manson & Ors [2003] NTSC 38
No. 73 of 2000 (20008958)

BETWEEN:
LAWRENCE EDGAR

Plaintiff
AND:
ESTHER ROSE MANSON

First Defendant
and
WESTPAC BANKING CORPORATION

Second Defendant
and
REGISTRAR-GENERAL FOR THE NORTHERN TERRITORY

Third Defendant

CORAM: THOMAS J
REASONS FOR JUDGMENT
(Delivered 16 April 2003)

This is a claim by the plaintiff for a declaration in his favour in respect of property known as Lot 10 Section 364 Hundred Strangways Volume 507 Folio 145 from plan LTO 67/002 and for other orders including orders with respect to property known as 4 Vernier Court also referred to as 4 Vernier Circuit, Woodroffe.
The hearing of this matter commenced and concluded on 17 February 2003. The plaintiff was represented at the hearing and gave evidence to the court.
The first defendant did not attend the hearing and was not represented.
On 19 June 2002 the Master of the Supreme Court had granted leave to the first defendant's solicitor to file a notice of ceasing to act. He made a further order that the first defendant's address for service be c/- Linda Walters, 14 Goulburn Street, Leanyer.
I have set out in summary form a chronology of subsequent events.
On 25 October 2002, the Registrar advised all parties in writing of a listing hearing on 6 November 2002.
On 5 November 2002, the Registrar received a telephone call from Ms Manson, the first defendant, from the United Kingdom. The Registrar advised Ms Manson there was to be a “listing hearing for the matter on the 6/11/02 where the matter would be allocated hearing dates and that if she could not attend then someone should attend on her behalf. Ms Manson stated that she would not be able to return to Australia for the trial. The Registrar informed her that if she couldn’t attend on her behalf at the trial then orders would be made against her. (See file note prepared by Registrar on file)”.
On 6 November 2002, the matter was listed for hearing to commence on 17 February 2003 and allocated three days from 17 - 19 February.
On 7 November 2002, Mr Tony Crane, solicitor for the plaintiff, forwarded a letter to Ms Manson at her address for service advising her of a number of matters including the fact that the matter was listed for hearing commencing 17 February 2003.
On 12 November 2003, the Registrar forwarded a letter to all parties confirming the date for hearing was 17 February 2003. The letter to the first defendant was forwarded to her address for service.
On 31 January 2003, a letter was forwarded by the associate to Thomas J advising all parties that the matter was listed at 9.30am on 6 February 2003 to deal with any pre-hearing issues. There was no appearance at this pre-hearing listing of the first defendant. The correspondence to the first defendant had been forwarded to her address for service.
At a directions hearing on 6 February 2003, Ms Winburg appeared on behalf of the second defendant. On her application leave was granted to excuse the second defendant from appearing on the date of the hearing. The second defendant be notified if an application is made to lift the existing order that the plaintiff’s claim against the second defendant be stayed.
The Court was informed the third defendant did not wish to appear to be heard at the hearing of the claim and would abide by the decision of the Court.
On 7 February, the Registrar forwarded an e-mail to the first defendant confirming the hearing dates of 17 - 19 February 2003 advising her that if she did not appear or was not represented at the hearing then orders could be made against her.
The hearing commenced on 17 February and concluded at 4.51 pm on that day. There was no appearance of the first defendant. The second defendant and third defendant had at their request been excused from attending the hearing.
On 19 February 2003, the first defendant forwarded an e-mail to the Registrar advising that she was unable to represent herself at the hearing as she is now living in the United Kingdom. She confirmed she would not be represented at the hearing and raised a number of matters including her concerns that she had done nothing wrong and that everything she had done was legal.
At the request of the Associate to Thomas J, the Registrar responded by e-mail to the first defendant. In this e-mail the first defendant was advised that the hearing of the matter had concluded on 17 February 2003. That on that date Mr Edgar had given evidence to the Court. The first defendant was also advised that the Court had reserved its decision which it was anticipated would be delivered in the near future. She was advised copy of the written reasons for decision would be forwarded to her at her address for service 14 Goulburn Street, Leanyer, Northern Territory.
A further e-mail was forwarded by Ms Manson on 10 March 2003, copy of which is on the Court file.
I consider that Ms Manson had very adequate notice of the date for the hearing of this matter which was listed for hearing on 17 February 2003.
Ms Manson did not appear in person and was not represented at the hearing. I am satisfied she had been advised of the consequences of her non-attendance at the hearing namely that the Court could make orders against her.
By her e-mail dated 10 March 2003, Ms Manson again confirmed she was not able to attend the Court. She referred to wishing to defend herself as she had done nothing wrong and asked about the possibility of a satellite link up.
The hearing of this matter was concluded on 17 February 2003 when the Court reserved its decision and indicated written reasons for decision would be delivered in due course.
I consider that in all the circumstances the matter should proceed to finality and I now deliver my reasons for decision.
At the hearing of this claim only the plaintiff was present and represented. The plaintiff gave evidence to the Court and presented a number of exhibits.
The plaintiff is a man aged 77 years. On 11 October 1991 he executed a Will in which apart from certain mining interests he bequeathed all of his real and personal estate to his god-daughter, Esther Rose Manson, the first defendant in these proceedings.
On 19 September 1993, Lawrence Edgar married Florita Oematan. On 6 October 1993, Lawrence Edgar made a further Will revoking previous Wills. He appointed the Public Trustee as Executor. He bequeathed his property known as Lot 10 Section 364 Hundred of Strangways, Northern Territory and associated equipment and contents jointly to his wife, Florita Edgar, and his god-daughter the first defendant Ms Manson. He bequeathed other personal property to Ms Manson to be used for the benefit of Florita Edgar and to prevent members of Florita's family gaining from her entitlements. Mr Edgar bequeathed his mining interests to his son, John Edgar.
In January 1997 the plaintiff entered into an agreement with the first defendant which was reduced to writing and provided as set out below. The words in brackets were added at a later time (Exhibit P4 Folio 6):
"Lawrence Edgar
PO Box 929
Humpty Doo NT 0835
Draft of Aggreement (sic) between Lawrence Edgar, and Esther Rose Manson,
That I will transfer the title of land and house, Lot 10 Sect 364 Hundred of Strangways, NT 24 Mile Stuart Highway, Esther pays transfer tax, and registration fees, in return for land and house, I in return have a lease back to live here till my death.
I pay rates, electricity and water and also no mortgages, etc or any encumbrances whatsoever shall (this an encumbrance) be placed on the place without consultation with myself, accepted by Esther and she is to register this agreement through a lawer (sic) app date 4/97, value, etc registered at Titles Office, Darwin, no reservations occurred, but doubt by self if wise, this was as a result of marriage problems perceived. This is considered an encumbrance. (Esther says this agreement deposited with Public Trustee).
Sihgnen (sic)"
It is Mr Edgar's evidence that the words shown in brackets in the above document were added by him at a later date and after Ms Manson had taken her copy of the agreement away to be drawn up as a formal agreement by a lawyer.
A later reconstruction of the agreement stated as follows (Exhibit P2, Annexure B):
"L Edgar
Lot 10 Sect 364
HD of Strangways NT
PO Box 929
Humpty Doo NT 0836
Draft of Agreement Between Esther Rose Manson (Godaughter) (sic) and Lawrence Edgar, of above, that I will transfer house and land above, to Esther, she to pay, transfer tax, and registration, and insurance, and I have lease back, till my death, I pay rates electricity and water, no mortgages etc (?) be raised on land, or any encumbrances whatever to be placed, without consultation with myself, this is accepted by Esther, and she is to register this agreement with a lawyer app date 4/97, land deal registered at Titles Office at Darwin, this agreement was the result of a perceived marriage problem, Esther maintains this agreement lodged at Public Trustees Office Darwin, behaviour now infers I was unwise, I consider this agreement an encumbrance,
Lawrence Edgar
(signed)"
An affidavit sworn by the plaintiff, Lawrence Edgar on 15 May 2000 was tendered as Exhibit P2. This affidavit attests to a number of matters as follows:
Mr Edgar states in this affidavit that the first defendant is the trustee of his land at Bees Creek known as Lot 10 Hundred of Strangways Vol 507 Folio 145 from plan LTO 67/002. The first defendant is the owner of a property being Lot 3750 Town of Palmerston, Certificate of Title, Vol 615 Folio 562. This property Mr Edgar refers to as Vernier. Mr Edgar states that the first defendant purchased Vernier with, or with the help of, a mortgage the first defendant raised deceitfully and without his knowledge and against his wishes in breach of her trust for him upon his land at Bees Creek.
In par 3 of this affidavit Mr Edgar continues (p 2):
"I say that the Defendant has committed other breaches of her trust for me. I say that in the circumstances I am entitled among other things to an Order that all mortgages raised by the Defendant on Vernier and Bees Creek be discharged by the Defendant and that both pieces of land be transferred to me unencumbered. I say that my rights include the rights under Section 28 (vi) of the Trustee Act to ask this Court to Order that Bees Creek be vested in me. The Defendant has failed to transfer Bees Creek to me as requested in Annexure "C". I have also caveated (sic) Bees Creek and that caveat is shown at Annexure "J". Search certificates of Bees Creek are shown at Annexures "G" and "H". I refer to the Westpac Banking Corporation mortgages numbered respectively 421016 and 421004 endorsed upon annexures "I" and "G". The mortgages themselves are annexures "L" and "M". On the morning of Monday 15 May 2000 I was informed by an officer at the Lands Titles Office in Darwin and verily believe that that office had lost or misplaced or otherwise could not find the Memorandum of Common Provisions of the mortgages shown in annexures "L" and "M". Therefore, at this stage I can not attach that Memorandum of Common Provisions."
The affidavit evidence of Mr Edgar sets out a number of other matters as follows:
Mr Edgar was born in the United Kingdom on 2 May 1925. He first arrived in Australia in 1945. He returned permanently to Australia in 1948 with his then wife. He and his wife had two sons and a daughter. He met the first defendant when she was about eight years of age. The first defendant was raised by he and his wife as a member of their family. He has always considered the first defendant to be his "God-daughter". The plaintiff first came to Darwin in 1950. In about 1960 he and his then wife divorced. In May 1975, Mr Edgar had completed purchase of the land referred to above at Bees Creek. He personally constructed a house on this land. In or about 1998, after he had transferred the property at Bees Creek to the first defendant, Mr Edgar subsequently completed building a further bedroom to the house at his own cost and with his own labour. Mr Edgar stated he had paid for everything in cash, being his own money. He had never encumbered the Bees Creek property as he considered a mortgage would damage or put at risk his future. He says the first defendant, Esther Rose Manson, knew his views about encumbering the Bees Creek property.
In his affidavit Mr Edgar refers to his own family growing up and leaving home. He lived alone for a period of time. Up until January 1997 he was in constant telephone and personal contact with the first defendant. He considered her to be the only close relation he could trust.
Mr Edgar describes his trips to Indonesia in 1993 and since that date, his marriage to Florita. Florita stays periods of time with him in Darwin and then he visits and stays with her in Indonesia. Mr Edgar recounts periods of time that Florita has spent in Darwin. He referred to "church gossip" which he now knows was incorrect. At the time he believed Florita was plotting against him and that he would lose the Bees Creek property. He discussed the situation with the first defendant and asked to transfer the land at Bees Creek to her for safe keeping and to protect him from what he perceived to be a threat from Florita. Mr Edgar attests to the fact that the first defendant had agreed to take the land for safe keeping and because the plaintiff was retired and living on a pension she would pay the costs of the transfer. They had discussed the fact that although she would be the registered owner of the land no mortgage or other encumbrance should be raised on this property.
In about January 1997 the plaintiff and first defendant wrote out the agreement which is set out in par [27] of these reasons for judgment. The first defendant was supposed to have taken the agreement to a lawyer to formalise. Immediately after Ms Manson left with the written agreement, Mr Edgar wrote out another copy of the agreement which was referred to as a draft. Only some of the terms of the agreement were put in the draft. The first defendant had agreed to give the draft and other parts of the agreement to a lawyer. One of the oral terms of the agreement was that the first defendant would make a Will to leave Bees Creek to Mr Edgar in the event of her death. To the best knowledge of the plaintiff the first defendant has not made such a Will.
A few weeks after the agreement, Ms Manson told Mr Edgar that she had arranged to raise money for the costs and stamp duty of the transfer and she would place any balance of the raised funds in the plaintiff's account.
Approximately three weeks after the agreement the plaintiff went to his bank to withdraw money. There was none left because the first defendant had withdrawn it all. The first defendant referred to this as normal, however the plaintiff did not consider it to be normal because he had not been informed about it. Over a period of some months the plaintiff asked the first defendant words to the effect "where is the agreement we wrote out and where is the Will you had to make". The first defendant would reply words to the effect "the Will is with the Public Trustee. The agreement is with the lawyer". The plaintiff had also replied with words to the effect "when can I see it. I want to see the Will and I have to sign an agreement". Mr Edgar stated that he has not received any agreement from a lawyer. A search at the Public Trustee revealed the first defendant had not lodged the Will there as she stated.
From the time of making the agreement the plaintiff's contact with the first defendant diminished. On one occasion he attempted to communicate with the defendant by registered mail. The registered mail was returned unopened.
In May 1999, Mr Edgar visited Indonesia. Upon his return to Darwin he discovered that Ms Manson was living in what was apparently a new house she had purchased at 4 Vernier Court (sic), Woodroffe, Palmerston. Mr Edgar states he was abused by a person who advised him he was the first defendant's husband. Mr Edgar was surprised about the marriage. He started to make further inquiries. In a letter dated 8 February 2000 from Tony Crane solicitor for the plaintiff, Annexure "C" to the affidavit of Lawrence Edgar, he sets out these matters (p 2 – 3):
"Mr Edgar began to investigate the whole situation. Following his surprise discovery that you had married he then discovered that:-
i.You had in or about April 1999 without any advice at all to Mr Edgar wrongfully and in breach of the trust mortgaged Mr Edgar's land for your own benefit.
ii.You had similarly wrongfully and in breach of the trust in or about April 1999 and with the proceeds and benefit of the wrongful mortgage purchased a new car (although in whose name is not known yet) for your use, a utility vehicle for your new husband and a house in your name at 4 Vernier Court (sic) Woodroffe, NT 0830.
iii.You had not made the will leaving the land to Mr Edgar in the event of your death.
iv.You had neither had the trust agreement 'legalised', nor had you deposited anything with the Public Trustee, all of which you had repeatedly reassured Mr Edgar you had done.
Mr Edgar, by then 74 years of age approached you several times to ask about what he had discovered about your activities with his land and your failures to do the other things you were supposed to have done. You initially told him 'I did not think that you would find out.' Further approaches and attempted approaches to you by Mr Edgar failed to elicit any or any meaningful response. Accordingly Mr Edgar sought initial legal advice and placed a caveat on his own Strangways property … the one you had mortgaged.
Then Mr Edgar found out from his own research and not from you that you were planning to sell the property at 4 Vernier Court (sic) Woodroffe which you had purchased in your name with the assistance of the mortgage you had wrongfully raised. Mr Edgar approached you and attempted to approach you about that, too, but he continued not to receive any explanation of what was going on. Accordingly and upon further legal advice Mr Edgar also placed a caveat on 4 Vernier Circuit to help to protect his property and his money. His investigations indicate that you propose to make a considerable profit from the sale of this house.
By reason of the trust both of the properties and the cars belong to Mr Edgar, and if Vernier Circuit is sold, so do any of the proceeds of that sale.
Now, Mr Lawrence Edgar by reason of the trust and by reason of your breaches of the trust and as a person entitled to require a conveyance of this land at Lot 10 Hundred of Strangways from plan LTO67/002, Volume 507, Folio 145 hereby requires you to convey that land, unencumbered, back to him within 28 days after the date of this letter.
He requires the mortgage you wrongfully raised on the land, in particular mortgage to Westpac Banking Corporation dealing number 421004 to be discharged.
He requires you to give a full accounting to him of all of your dealings with the proceeds of the said mortgage you raised and a full accounting of all income and expenses and profits incurred or enjoyed by you in relation to your purchase with Mr Edgar's money of the land at 4 Vernier Circuit, Woodroffe, Northern Territory.
My instructions are that Mr Edgar is still conducting his own investigations about the manner in which you unlawfully and wrongfully dealt with his property and then used the proceeds. My instructions are that in the event that Mr Edgar does not hear from you in the immediate future with proposals satisfactory to him about how to undo the wrongful things you have done then he will take whatever other action he is best advised to take to protect his rights and his property.
That action can be expected to include an application under Section 28(vi) of the Trustee Act asking for a Supreme Court order to transfer the Strangways land unencumbered back to Mr Edgar, and for a full accounting and explanation of what you have done with Mr Edgar's money and property. Injunction proceedings might have to be considered.
It is probable that by now Mr Edgar has also approached the agent involved in selling Vernier Circuit to tell that agent the property is not yours to sell.
I look forward to hearing from you or your representative most promptly. You are, of course, able to deal direct with Mr Edgar. A resolution of the problem through direct talks rather than litigation is often best. In the circumstances Mr Edgar might find it difficult to speak with you but he assures me he will try, if you approach him. He has had enough of trying to approach you.
I am instructed to say please do not underestimate the determination of Mr Edgar to have what he sees as your deceit and gross self-interested breach of trust put right."

There are further matters set out in the affidavit sworn 15 May 2000 as to further investigations Mr Edgar undertook, the caveats that he lodged and was subsequently asked to withdraw with respect to the two properties at Bees Creek and Vernier Circuit.
In his affidavit sworn 26 April 2002 the plaintiff has expanded on his earlier evidence surrounding the making of the agreement with the first defendant. He says that the full agreement was (Exhibit P3 p 2 – 3):
"(i)That I would transfer the land to the First Defendant to enable the first defendant to become the registered proprietor of the land.
(ii)That the First Defendant would not allow or cause without my any mortgage or encumbrance whatsoever to be placed on the land.
(iii)I would continue to live on the land until his death.
(iv)The First Defendant would have the full terms of trust prepared by a lawyer to my satisfaction.
(v)The First Defendant would make a will leaving the land to me in the event of her death.
(vi)The First Defendant would upon my request transfer the land back to the Plaintiff at his cost.
(vii)The First Defendant would deal with the land as I directed.
(viii)That I would pay all of my own costs of living on the land.
(ix)That the First Defendant would deal with the land only in my best interests."
In his affidavit the plaintiff further states the first defendant has not paid any council rates on the land.
Mr Edgar refers to a telephone conversation he had with the first defendant on 10 May 2000. He had said to the first defendant words to the effect "get that mortgage off my land I want my land back." The first defendant had said words to the effect "you cannot stop me now. The place belongs to me. I'm coming down to talk to you about it." The first defendant did not come down to discuss the matter with the plaintiff.
Mr Lawrence Edgar gave oral evidence to the Court. His residential address is Lot 10 Section 364 also known as 73c Gulnare Road Bees Creek. He is a pensioner. He arrived in Darwin in 1950. He met Ms Manson about two years after his arrival in Darwin. Ms Manson's father was a good friend of his, named Nugget Manson. Nuggett Manson lived at Berrimah. Nugget Manson asked Mr Edgar and his wife to take over the care of Ms Manson completely. He would come to visit her regularly. Mr Edgar said he always referred to Ms Manson as "my god-daughter". Mr Edgar gave evidence as to the three children born to him and his wife Jean. His wife Jean and he divorced. On 19 September 1993, Mr Edgar married Florita Oematan. Florita does not have Australian Citizenship. She lives in Kupang. Mr Edgar visits her regularly. He supports Florita financially. Mr Edgar referred to his Will (Exhibit P4, Folio 26) dated 15 July 2002 in which he has bequeathed his property to his wife Florita and other members of his family. The original of this Will is lodged with the Public Trustee. In 1996 he had heard some words about Florita which caused him to have discussions with Ms Manson about the property at Bees Creek. He had been told Florita married him for the property. Upon investigation this later proved to be incorrect. At this time he and Ms Manson had a close relationship. He would see her nearly every weekend when she was home from work. Ms Manson was the assistant manageress of Aboriginal Health in the Northern Territory. Her work took her to Aboriginal communities. Mr Edgar gave evidence Ms Manson had a doctorate and was a registered midwife. Mr Edgar was referred to document 6 in the Court Book which has been reproduced in par [27] of these reasons for judgment. Mr Edgar said he had numerous discussions with Ms Manson concerning this agreement. Ms Manson had agreed to take this document to a lawyer. They had agreed that if Mr Edgar signed the property over to Ms Manson she would look after him. He was to continue to live on the property until he died. Mr Edgar was to pay the power, water and land rates. The Council insisted Ms Manson pay the rates which she did. Mr Edgar and Ms Manson had agreed that Ms Manson would make a Will in favour of Mr Edgar in case something happened to her on the aircraft. She never had this Will drawn up. Ms Manson never honoured her part of the agreement which was to take the document to a lawyer to have a formal agreement drawn up. It was written into the agreement that Ms Manson was not to mortgage or encumber the property. At the time of the agreement Mr Edgar understood that Ms Manson would continue to work for the Department of Health in Darwin. At that time she had three children. Her husband had died. Ms Manson had told Mr Edgar she would look after him in his old age. She was proficient in "that sort of thing". At the time they entered into the agreement, Mr Edgar did not owe any money on the property or to anyone. After the agreement had been entered into Mr Edgar signed a transfer of the property on 23 December 1996. Document 8 in the Court Book is the Instrument of Transfer which was registered on 15 January 1997.
Document 10 in the Court Book is a Will dated 31 October 1997 in which Mr Edgar bequeaths his property to his wife Florita Oematan and his interest in a mining lease to his son John. Original of this Will is with the Public Trustee.
Copy of a Will dated 11 October 1991 extracted from the subpoenaed documents of Janet Terry was tendered and marked Exhibit P1. In this document Mr Edgar had appointed Ms Manson as the sole executrix and trustee of his Will. He had bequeathed his real and person property to her. His mining interests were bequeathed to his son John.
Mr Edgar gave evidence that when he discussed the terms of the agreement with Ms Manson as to the transfer of the property at Bees Creek to her it was a term of the agreement that if Mr Edgar asked for the property back she was to return it to him. She agreed to make a will so that the property would revert to him if she had an accident in the course of her work.
Mr Edgar gave evidence that he had added some additional words to the agreement which are shown in brackets in par [27] of these reasons for judgment. Mr Edgar said he had done this after he had asked Ms Manson about seeing the lawyer and could not get a proper answer from her.
Mr Edgar stated that when he transferred the property to Ms Manson she did not give him any money for the property. He had never asked her to pay any money for the transfer of the property. He had not given Ms Manson any authority to mortgage the property to Westpac Corporation. Ms Manson had not told him she was mortgaging the property to Westpac Banking Corporation.
Mr Edgar was shown a letter from Piening Real Estate dated 10 July 1996 (document 28, Exhibit P4). This letter is an appraisal as to the value of the Bees Creek property. This letter states inter alia:
"Normally a property of this kind would fetch between $190,000 and $200,00 (sic), but because of it’s handy position, close to schools and shopping, and sub-division possibilities, it is possible that the current market value could be as high as $230,000"
Document titled “Estimate of Selling Price” (Exhibit P4, Folio 28) also prepared by Piening Real Estate Pty Ltd is dated 11 February 2003. This gives an estimate of the selling price for the property at Gulnare Road, Bees Creek of $220,000.
After he had transferred the property to Ms Manson, Mr Edgar had spoken with her and asked if she had gone to the lawyers with the agreement. She told him she had lodged the agreement with the Public Trustee. Mr Edgar went to the Public Trustee and found out this had not occurred. It is Mr Edgar's evidence that he then wrote the document which appears as document 7 in the Court Book, Exhibit P4 and which has reproduced in par [29] of these reasons for judgment.
Mr Edgar gave evidence as to the further efforts he had made to speak with Ms Manson. He located her at the property at Vernier Circuit. When he went there, Ms Manson's husband abused him. Mr Edgar made some further inquiries, he attended the Legal Aid Office and then returned to the Land Titles Office to lodge a caveat. Document 19 is a certified copy of the caveat Mr Edgar lodged claiming an equitable interest pursuant to a resulting or constructive trust over the property at Gulnare Road, Bees Creek. This caveat was registered on 7 December 1999. Mr Edgar also asked Mr Crane his solicitor to place a caveat on the property 4 Vernier Court, Woodroffe NT. Document 20 is a certified copy of the caveat lodged in respect of the property at 4 Vernier Court Woodroffe claiming "a legal and equitable interest as owner pursuant to a trust". This caveat was registered on 7 February 2000. Mr Edgar was shown the affidavit dated 15 May 2000 and gave evidence the matters in the affidavit were true to the best of his knowledge. This affidavit is Exhibit P2 and has already been referred to at some length in these reasons for judgment. An affidavit sworn by Mr Edgar on 26 April 2002 was tendered and marked Exhibit P3. Mr Edgar gave evidence the contents are true to the best of his knowledge. I have earlier in these reasons referred to parts of this affidavit.
Mr Edgar stated that he believed Ms Manson was now residing in England. He discovered that she had borrowed $272,000 from the Westpac Bank. She had never paid any of this money to him. Mr Edgar had never asked her for any money. Mr Edgar said his plan for the future was to get rid of the property at Bees Creek and go to Indonesia to live. Mr Edgar said that he was aware that there was money owing to Westpac in respect of the mortgage over the property at Bees Creek. He stated if the amount owing was in the region of $60,000 he would not be able to repay this as he lived on a pension. He heard the evidence given by Mr Zoebal that the Bank have a notice of sale on the Bees Creek property. He had never been notified of this. He stated his son may assist him to pay out the mortgage to Westpac. Mr Edgar was referred to document 27 in the Court Book Exhibit P4. He states this document which is a notice of Exercise of Power of Sale, dated 27 August 2002 from Westpac Banking Corporation was found by him on his property. He had given the document to his solicitor Tony Crane.
A number of other documents in the Court Book were referred to, document 8 is the transfer of the land at Bees Creek. The value of the interest transferred is shown as $190,000. Mr Edgar is shown as the seller and Ms Manson as the buyer. Mr Sylvester, counsel for the plaintiff, made the submission that the $190,000 represents the value of the interest transferred. It is not a suggestion that that consideration was paid to Mr Edgar (tp 47).
Document 9 is the Certificate of Title Vol 507 Fol 145 as at 12 February 2003 which shows Ms Manson the owner of the Bees Creek property.
Document 10 is the Will dated 31 October 1997.
Document 11 is a copy of Westpac's letter to Ms Manson dated 23 March 1999 thanking her for the premium option home loan application.
Document 12 is a certified copy of the mortgage registered on 13 April 1999 over the Bees Creek property. The mortgagor is Ms Manson and the lender is Westpac Banking Corporation ARBN 007 457 141.
Document 13 is the mortgage document between Ms Manson as mortgagor and Westpac Banking Corporation ARBN 007 457 141 as mortgagee over property at 4 Vernier Circuit Palmerston. It was registered on 13 April 1999.
Document 14 is a certified copy of the transfer whereby Ms Manson acquired the Vernier Circuit property for the sum of $235,000. The registration date of the transfer was 13 April 1999.
Document 15 is the Certificate of Title of 4 Vernier Circuit, Woodroffe issued to Ms Manson upon the purchase. It is Certificate of Title Vol 615 Fol 562.
Document 16 is Westpac's letter to Ms Manson dated 17 April 1999 setting out the details of the settlement.
Document 17 is the Premium Option Home Loan statement addressed to Esther Rose Parker this confirms the balance owing as at 13 October 1999 of $272,898.83.
Document 18 is a letter dated 10 November 1999 forwarded by Mr Edgar to Ms Manson by registered mail. This letter was returned to sender.
Document 21 is a letter dated 8 February 2000 written by Mr Crane and countersigned by Mr Edgar. The letter is addressed to Ms Manson. There is a further letter dated 7 March 2000 advising Ms Manson as to the pending issue of Supreme Court proceedings because Ms Manson had not done any of the things requested of her to protect Mr Edgar's interest in the property at Bees Creek.
Document 22 is from Westpac Banking Corporation dated 29 November 2000 confirming the loan application included the amount of $32,000 which was provided for the purchase of a vehicle and to carry out landscaping works.
Document 23 is copy of the notice of exercise of power of sale from Westpac Banking Corporation dated 24 October 2001 in respect of property at 4 Vernier Circuit, Woodroffe.
In Document 27 are further copies of the notice of exercise of power of sale.
Document 24 was removed at hearing.
Document 25 is letter from the Office of the Registrar General dated 28 April 2000 advising Mr Edgar that Ms Manson was seeking removal of the two caveats he had lodged.
Document 26 is copy of the Will of Lawrence Edgar dated 15 July 2002.
Documents 28 are letters of appraisal and Estimate of Selling Price from Piening Real Estate re property of Gulnare Road, Bees Creek referred to in par [53] of these reasons for judgment.
The Court Book containing 28 documents was tendered and marked Exhibit P4. A letter from Cridlands dated 26 October 2001 addressed to Mr Crane, solicitor for Mr Edgar was marked Exhibit P5. The attached letter sets out the attitude of the Bank in respect of Mr Edgar establishing an interest in one or both of the properties or alternatively if the Bank were to exercise its power of sale before Mr Edgar's claim was determined.
Evidence was also given to the Court by Mr Edgar's son, John Young Edgar.
John Young Edgar gave evidence he is a computer and video technician for Telstra. Lawrence Edgar is his father. John Edgar gave evidence that the matters set out in his affidavit sworn 17 April 2002 are true and correct. The first defendant, Ms Manson, is known to him. Ms Manson grew up as one of his family. John Edgar deposed to the fact he became aware of problems between his father and Ms Manson. Ms Manson had mortgaged the family home without Lawrence Edgar's permission and used the money to purchase a house at Palmerston. John Edgar set out in his affidavit (Exhibit P6) a telephone conversation with Ms Manson between 1 January and 1 March 2000. Ms Manson said words to the effect:
"………. it was all a mistake, and I only did it because Graham made me do it because he found out how much the land was worth and Graham and I needed the money to buy a house.
….. I'm trying to make it up to dad and I'm trying to pay him back as it was not the way it was supposed to happen and dad was not supposed to find out. If you can come to Darwin perhaps we can fix it straight away. …"
At about the end of April early May 2000, John Edgar travelled to Darwin in an effort to solve the problem. In his affidavit John Edgar details the efforts he made to meet with Ms Manson while he was in Darwin but on each occasion Ms Manson failed to attend the meeting. The affidavit sworn by John Young Edgar is Exhibit P6.
John Edgar gave evidence that he will be assisting his father with future plans and arrangements for care in his old age. It is John Edgar's evidence that if the property at Bees Creek is returned to Lawrence Edgar then it will be sold. His father will travel to Indonesia to live with his wife. The net proceeds after it is sold will be divided between Lawrence Edgar's wife Florita and John Young Edgar.
At the hearing of this matter, evidence was given by Desmond Arthur Zoebal who is the Area Manager Retail for Westpac in the Northern Territory. Mr Zoebal produced a number of documents including applications for finance in the name of Esther Rose Manson, mortgage documents relating to the properties at 10 Gulnare Rd, Bees Creek and 4 Vernier Circuit Woodroffe, notices of exercise of power of sale and other related documents. Mr Zoebal gave evidence that the Bank sought to sell by auction the Vernier Court property. The reserve price was $240,000. The Bank received bids at auction of $238,500. The property was passed in at auction. The agent is negotiating with two purchasers. Westpac has not been advised of any offers by those purchasers. Mr Zoebal stated that as at close of business on Friday 14 February 2003 the debt is $281,400.18. There is a daily rate of interest accruing of $46.80 or 6.07 per cent. An offer of $238,500 or better would be accepted.
On the evidence before the Court I make the following findings of fact:
I accept the evidence given by Mr Lawrence Edgar, Mr John Edgar and Mr Zoebal, being all the witnesses called on behalf of the plaintiff.
From 27 May 1975 to 15 January 1997, Mr Lawrence Edgar was the registered proprietor of property known as Lot 10 Gulnare Road Bees Creek. During this time the property was never mortgaged or encumbered by debt. On 15 January 1997 transfer of the subject property from Lawrence Edgar to Esther Manson was registered. Certified copy of the transfer is document 8 in the Court Book. The value of the interest transferred is shown as $190,000. There was in fact no purchase price paid by Esther Manson to Lawrence Edgar for the property. There was no consideration for the transfer of the subject property.
In or about January 1997, the plaintiff and the first defendant entered into an oral agreement that:
a)The plaintiff would transfer the land known as Lot 10 Section 364 Hundred of Strangways to the first defendant.
b)The first defendant would pay transfer tax, registration, insurance, fees and any costs.
c)The plaintiff would have a lease back of the property till his death.
d)The plaintiff would pay electricity, rates and water bills.
e)There would be no mortgage or encumbrance on the said land without consultation with the plaintiff.
f)The first defendant would make a Will that in the event of her death the plaintiff had a right to live on the land during his lifetime.
g)The first defendant was to have this agreement formally drawn up by a lawyer.
I find that this arrangement contemplated no action on the part of the first defendant that would put at risk Mr Edgar's continued use and occupation of the property at Bees Creek till his death.
I accept the submission made by Mr Sylvester on behalf of the plaintiff that putting a mortgage over the property by way of collateral security for other borrowing’s would plainly offend the intention acknowledged by the first defendant that Mr Edgar's continued use of the property not be put at risk.
I find that without seeking permission from or consulting Mr Edgar the first defendant raised a mortgage on the property Lot 10 Gulnare Rd, Bees Creek from the Westpac Banking Corporation. Certified copy of this mortgage registered on 13 April 1999 is document 12 in the Court Book.
The mortgage money raised on the property at Lot 10 Gulnare Rd, Bees Creek was partly used to purchase property at 4 Vernier Circuit Woodroffe. Certified copy of the transfer to Esther Rose Manson of 4 Vernier Circuit Woodroffe for a purchase price of two hundred and thirty five thousand dollars dated 13 April 1999 is document 14 in the Court Book.
The mortgage of the property at 4 Vernier Circuit Woodroffe to Westpac Banking Corporation registered on 13 April 1999, is document 13 in the Court Book.
I find that the agreement between Mr Edgar and Ms Manson as discussed between them and partially recorded in document 6 in the Court Book was that Ms Manson was not to mortgage or encumber the property at Lot 10 Gulnare Rd, Bees Creek without consultation with Mr Edgar. I find that this consultation did not occur. The mortgage was raised and registered on the property at Lot 10 Gulnare Rd, Bees Creek without Mr Edgar's knowledge or permission.

I further find that Ms Manson did not take her copy of document 6 in Exhibit P4 recorded by Mr Edgar to a lawyer to draw up a formal agreement between them.
Mr Edgar made inquiries of Ms Manson as to whether a formal agreement had been drawn up by a lawyer. He did not receive a satisfactory reply and as a result of making further inquiries and seeking advice he placed a caveat on both properties.
A certified copy of the existing Certificate of Title of Lot 10 Gulnare Rd, Bees Creek is document 9 in the Court Book. This shows that a caveat was lodged on the title on 7 December 1999 by Mr Edgar.
A certified copy of the actual caveat claiming an equitable interest pursuant to a resulting or constructive trust in property at Lot 10 Gulnare Rd, Bees Creek is document 19. A certified copy of the existing Certificate of Title in respect of 4 Vernier Circuit Woodroffe is document 15 in the Court Book. This certificate of title shows a caveat lodged by Mr Edgar on 7 February 2000. This document also shows that on 18 May 2000 “Court order time for removal of Caveat 440566 be extended until further order”.
The certified copy of the actual caveat registered on 4 Vernier Circuit Woodroffe by Mr Edgar claiming an Estate in Fee Simple in the land on the grounds of a legal and equitable interest as owner pursuant to a trust is document 20 in the Court Book.
I accept the evidence given by Mr Edgar that he did discuss with the first defendant circumstances in which he would ask her to transfer the property at Bees Creek back to him. I accept his evidence.
I accept Mr Edgar's evidence that his reason for transferring the property at Bees Creek for no consideration was to protect his own interests and his concerns to protect himself in light of information he had at that time. This information which he later found to be incorrect was as to his wife Florita's designs on his property.
I find that the document which is number 6 in the Court Book (Exhibit P4) may not be in identical terms but is substantially the same as a document Mr Edgar wrote to reflect matters that were agreed in the document he gave to Ms Manson to take to a lawyer to have made up into a formal agreement. I accept arrangements were not made by Ms Manson for such formal agreement to be drawn up. I accept Mr Edgar has not seen the document he gave to Ms Manson since handing it to her.
In the pleadings which have been filed the first defendant admits the property at Lot 10 Gulnare Rd, Bees Creek was transferred to her pursuant to an agreement but denied that there was a trust.
I find that the sum of $190,000 shown on the transfer document was never paid by Ms Manson to Mr Edgar and that there was no valuable consideration for the transfer.
I find the mortgage raised by the first defendant on the property at Lot 10 Gulnare Rd, Bees Creek and registered over that property and 4 Vernier Circuit Woodroffe was in breach of the agreement she had with Mr Edgar.
I find that the legal interest in the property at Lot 10 Gulnare Rd, Bees Creek was transferred to Ms Manson but the equitable interest was not transferred. There were undertakings by the first defendant to have the agreement drawn up as a formal document by a lawyer and that she would make a will which preserved the plaintiff's rights in the property if she predeceased him. These undertakings were not fulfilled.
The first defendant borrowed an amount of money in excess of 100 per cent of the equity in 4 Vernier Circuit and acted in her own interests without proper regard for the interests of the plaintiff under the agreement she had with him.
I agree with the submission made by Mr Sylvester on behalf of the plaintiff that the first defendant had a fiduciary duty toward the plaintiff which she breached.
I further agree that what occurred between the plaintiff and the first defendant gave rise to an implied trust. Implied and constructive trusts are the subject of chapter twelve of Jacobs' Law of Trusts in Australia, Sixth Edition, RP Meagher and WMC Gummow which states (par [1201]):
"An implied trust is a trust which arises by presumption of law in favour of the settlor or his representatives. The circumstances in which such trusts may arise can be grouped under two main headings: first, where the settlor has transferred property to trustees but has not disposed of, or not wholly disposed of, the beneficial interest and, secondly, where a purchaser of property directs that it be transferred into the name of a third person and there is nothing to indicate that he intended that person to take the property beneficially. In these circumstances the law presumes that the settlor or purchaser, as the case may be, intended to retain the beneficial interest which he has not disposed of. The term 'resulting' applied to these trusts expresses the view that the property comes back to him after it has been given away, although in truth the beneficial interest may never have left him. Implied trusts do not need to be evidenced by writing. The provisions of the Conveyancing Act 1919 (NSW) s 23c; Property Law Act 1958 (Vic) s 53; Law of Property Act 1936 (SA) s 29; Conveyancing and Law of Property Act 1884 (Tas) s 60; Property Law Act 1969 (WA) s 34; and Property Law Act 1974 (Qld) s 11 as to writing apply only to express trusts."
In this case an implied or resulting trust arises because Mr Edgar transferred property to Ms Manson but he did not wholly dispose of the beneficial interest.
Mr Sylvester referred to the presumption of advancement (Nelson v Nelson (1995) 184 CLR 538). The evidence in this case rebuts any presumption of advancement. In this case there is a presumption of a resulting trust. This is because Mr Edgar transferred the legal estate in the property to Ms Manson without receiving any valuable consideration. There is no evidence the plaintiff intended the first defendant to take the beneficial estate. The only document is the actual transfer of land that was subsequently registered which was made without monetary consideration.
On the evidence of Mr Edgar there was no intention to transfer the beneficial estate. The presumption of resulting trust has not been rebutted (see Vandervell v Inland Revenue Commissioners [1967] 2 AC 291 at 312).
I consider the plaintiff, Lawrence Edgar, is entitled to a declaration that on and after 15 January 1997 the property was held by the first defendant on trust for the plaintiff.
The first defendant obtained a mortgage from the Westpac Banking Corporation over the property at Lot 10 Gulnare Rd, Bees Creek. In doing so she put at risk his right of occupancy till his death. The first defendant now lives in England and is in no position to care for him in his old age as she had agreed to do. I agree that the consideration for the transfer has failed and that it would be appropriate to make an order directing the third defendant, the Registrar-General to transfer the legal ownership of the property at Lot 10 Gulnare Rd, Bees Creek being property more fully described as Lot 10 Gulnare Rd, Bees Creek, Hundred of Strangways from plans LTO 67/002 being whole of property contained in Certificate of Title Vol 507, Folio 145 back to the plaintiff, Lawrence Edgar.
The money raised on the mortgage was used to purchase the property at 4 Vernier Circuit Woodroffe. The second defendant also has a mortgage over this property. In addition to using the mortgage monies to purchase 4 Vernier Circuit Woodroffe, the evidence is the first defendant used some money to purchase motor vehicles and pay for landscaping (see document 22 in the Court Book).
The first defendant has defaulted in the mortgage payments. The second defendant has sought to exercise power of sale in respect of both properties (see document 23 and 27 in Court Book Exhibit 4).
The net debt to the second defendant is now more than $65,000. There should be an accounting taken of the total owed by the first defendant to the second defendant under mortgage number 421004.
Further there should be an order that the plaintiff have judgment against the first defendant for the amount found to be owing by the first defendant under the subject mortgage
On 23 December 1996, Mr Edgar executed a transfer of the property at Bees Creek to Ms Manson. This transfer document was signed also by Ms Manson and registered on 15 January 1997.
It is not asserted that document 6 Exhibit P4 is a written declaration of trust. At its highest, this is an unsigned record of some of the terms of a draft agreement. This would exclude a finding there was an express oral trust for the land whereby Ms Manson held the property in trust for Lawrence Edgar till he died. This is because a document purporting to create interest in land must in writing and signed by both parties.
The plaintiff's case is that Mr Edgar transferred the legal interest of the land to Ms Manson but retained the equitable ownership of the land. Ms Manson was only to take the equitable ownership in the event of his death and subject to her being alive at the time he died.
The plaintiff's case is that it gives rise to a resultant trust and that the plaintiff is entitled to a declaration that Ms Manson holds the subject property on trust for Mr Edgar. Alternatively, the matter can be dealt with by way of this Court imposing an equitable remedy of a constructive trust on the basis that it would be unconscionable for Ms Manson to retain legal and equitable ownership of the property, having regard to the agreement reached and having regard to her subsequent conduct.
It is the plaintiff's assertion that the defendant, Ms Manson, having made the agreement with the plaintiff in about December 1996 repudiated her obligations under the agreement. Firstly, she failed to get a lawyer to draw up a proper legal agreement. She mortgaged the property and with that money purchased another property, some motor vehicles and used some money for landscaping. Ms Manson moved to England and then defaulted on the Westpac mortgage, such that there is now an active notice of sale on the Bees Creek property.
I am satisfied the plaintiff is entitled to orders against the first defendant and the third defendant.
For these reasons I make the following orders:
As against the first defendant
(1)A declaration that the first defendant holds all that piece and parcel of land known as Lot 10 Hundred of Strangways entered in the register book as Volume 507 Folio 145 from plan LTO 67/002 (“that land”) on trust for the plaintiff.
(2)An order that the first defendant’s interest in that land be vested in the plaintiff and subject to the mortgage to the second defendant by mortgage registered number 421004.
(3)An order that an accounting be taken of the total amount plus continuing interest due by the first defendant to the second defendant pursuant to mortgage number 421004 registered over that land and mortgage number 440566.
The taking of the accounts be referred to the Master as to what is owed by the first defendant to the second defendant pursuant to the abovementioned mortgage.
(4)An order that the plaintiff have judgment against the first defendant for the amount found pursuant to order (3) above.
(5)That the first defendant pay the plaintiff’s costs to include any costs claimed against the plaintiff by the second and third defendant. Such costs to be agreed or taxed.
(6)Leave granted to the second and third defendant to apply on the issue of costs.
I make the following orders as against the third defendant:
1.An order under s 191 of the Land Title Act that the Registrar-General for the Northern Territory be directed to cancel or correct the title of the first defendant to that land known as Lot 10 Hundred of Strangways entered in the register book volume 507 folio 145 from plan LTO 67/002, by registering the plaintiff as the registered proprietor of that land.
2.An order under s 191 of the Land Title Act directing the Registrar-General to do anything else required to achieve the cancellation of the registered title of the first defendant to that land specified in order 1. above against the third defendant and to achieve the registration of the plaintiff as registered proprietor of that land.
3.The title corrections to orders 1. and 2. against the third defendant shall be subject to mortgage 421004 to Westpac Banking Corporation remaining on that land after the registration of the plaintiff as registered proprietors of that land.

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