Elsegood v Gotts (No 2)
[2004] VSC 145
•29 April 2004
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 6235 of 2002
| MARTIN WILLIAM JOHN ELSEGOOD | Plaintiff |
| v | |
| SHAREN LEE GOTTS | Defendant |
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JUDGE: | Balmford J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 & 30 March 2004 | |
DATE OF JUDGMENT: | 29 April 2004 | |
CASE MAY BE CITED AS: | Elsegood v Gotts (No 2) | |
MEDIUM NEUTRAL CITATION: | [2004] VSC 145 | |
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Property law – claim by plaintiff for a fee simple interest in defendant’s land for duration of life – caveat lodged over land – declaration sought by plaintiff over entitlement to register caveat – injunction sought to prevent removal from land – whether the defendant as owner of the land granted plaintiff a “life interest” – no written evidence of “life interest”.
Equity – part- performance – whether evidence of an agreement and of acts said to be relied upon or referable to such agreement – sale by plaintiff to defendant’s husband of plaintiff’s home alleged to be in consideration for “life interest” – plaintiff’s outstanding financial liabilities satisfied by sale of plaintiff’s home – no written evidence in contract for sale of land of “life interest” – defendant not a party to contract for sale of land – non- continuation of residence by plaintiff on defendant’s land – equitable doctrine not brought into operation.
Counterclaim by defendant for withdrawal of plaintiff’s caveat – order for withdrawal of caveat granted.
Transfer of Land Act 1958 ss 89, 118, Property Law Act 1958 s 53, Instruments Act 1958 s 126, Maddison v Alderson, Francis v Francis
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Unrepresented | |
| For the Defendant | Mr R Boaden with Mr D Mort | Anderson Rice |
HER HONOUR:
Introduction
In the statement of claim filed with the writ issued on 3 July 2002 the plaintiff claims a declaration that he has, for the purposes of section 89(1) of the Transfer of Land Act 1958 (“the TLA”), an estate or interest in the whole of the land more particularly described in Certificates of Title Volume 9895 Folios 016 and 017 and known as Sterling Park (“Sterling Park”); a declaration that he is entitled to register a caveat over Sterling Park pursuant to that section; and an injunction restraining the defendant from removing him from Sterling Park.
By her counterclaim filed on 30 March 2004 the defendant seeks the withdrawal of caveat No AB151506R lodged by the plaintiff over Sterling Park (“the caveat”), and an order pursuant to section 118 of the TLA that the plaintiff compensate the defendant for the lodging of the caveat without reasonable cause. The essential matter in issue is whether the plaintiff has an interest in Sterling Park sufficient to support a caveat.
At the outset of the hearing the solicitors previously acting for the plaintiff sought, through their counsel, leave to cease to continue to act, pursuant to Rule 20.03 of the Supreme Court (General Civil Procedure) Rules 1996 and that leave was granted. The plaintiff applied for a month’s adjournment to enable him to arrange for new solicitors. That application was dismissed, and the plaintiff proceeded without legal representation. He had, however, been represented until that time.
As well as the plaintiff and the defendant the following witnesses were called and gave evidence:
For the plaintiff:
· Mr Eccles, the former husband of the defendant
· Ms Black, a friend of the defendant
· Mr Daman Eccles, the son of the defendant and Mr Eccles
· Dr Macarthur, a client of the business at Sterling Park
For the defendant:
· Mr Deering, an auctioneer
On 19 June 1992 the plaintiff sold to Mr Eccles a property known as 11 Bilgola Street Hastings (“the Hastings property”). The contract of sale shows the price for that property as $50,000. The plaintiff claims that the consideration for the sale was that the defendant and/or Mr Eccles would assume liability for the then outstanding financial liabilities of the plaintiff, including the amount owing on the mortgage of the Hastings property; the plaintiff would have the right to use and occupy “the premises owned by the defendant situate at and known as Sterling Park, 960 McDonald’s Drain Road East, Pakenham South, being the whole of the land more particularly described in Certificates of Title Volume 9895 Folios 016 and 017”; and the plaintiff would be employed by the defendant and/or Mr Eccles as a caretaker, general handyman and stable hand at Sterling Park for as long as he was able to carry out those tasks. That claim was supported in evidence by Mr Eccles and denied by the defendant.
The evidence of the plaintiff is that the liabilities in question amounted to approximately $58,000, more than the consideration shown in the contract of sale.
I am satisfied on the evidence that after the sale of the Hastings property the plaintiff worked as a caretaker, general handyman and stable hand at Sterling Park for a number of years, and that he lived in the staff flat in the stables on that property. There is evidence that he lived there as the sole occupant for some five years, but at other times sharing that accommodation with other people. However, the evidence as to when he lived and worked there and as to whether and if so at what period he was paid is imprecise and conflicting. There is evidence which satisfies me that for some of the time he was receiving unemployment benefit and for some of the time he was being paid under the Jobstart scheme.
The claimed right to use and occupy Sterling Park is described briefly in the statement of claim as “the life interest”. It is to be noted that it is a claim over the whole of that property; that is, the whole of the land in the two certificates of title. In the plaintiff’s answers to interrogatories he states that the caveat was lodged with the Registrar of Titles “in relation to Sterling Park to protect my interest, and also to put any prospective purchaser on notice that I claimed such an interest. By the aforementioned Caveat, which is dated 15 March, 2002, I claimed a fee simple interest in the land for the duration of my life”.
Neither the contract of sale for the Hastings property, nor the receipt which the plaintiff gave for the deposit on that sale, gives any indication that the consideration for the sale is to be other than the sum of $50,000. The plaintiff in evidence described the circumstances under which the claimed arrangement was entered into. He said that there was a verbal agreement between himself, the defendant and Mr Eccles, that he had a life interest to stay on the property, and that the agreement had not been put in writing because he trusted the defendant and Mr Eccles. I note the evidence of Mr Eccles that the receipt for the deposit was written out by the defendant “to lock the deal in”.
The plaintiff was asked in cross-examination what agreement had been made as to what would be his position if Sterling Park were sold, and he replied that “you’d think about it at that time” and that at the time “I couldn’t see that happening”. The evidence of Mr Eccles on that point was similar. However, the plaintiff was asked a similar question in the interrogatories of the defendant to which he replied, “The agreement included terms that if I, for any reason, could not remain at Sterling Park I would have the option either to relocate with the defendant and/or Eccles, or be remunerated my equity from the Hastings property, including a calculated interest rate.”
At the time of the sale of the Hastings property to Mr Eccles the defendant was the sole registered proprietor of Sterling Park. She and Mr Eccles were then married and living in a house on that property. Sterling Park occupies some fifty acres, with a number of improvements associated with the use of the property for business operations involving horses. The defendant gave her occupation as horse trainer. Justice Morgan, in her judgment delivered on 29 September 2001 in the Family Court proceeding referred to at [15] below, found that the defendant and Mr Eccles separated on 3 June 1999 and the defendant continued living on the property. Mr Eccles, in the affidavit referred to in [17] below, sworn on 9 December 2001, deposed that he was living with his son at Sterling Park and conducting his business there.
Ms Black said that she was in the room when papers were being signed to do with the sale of the Hastings property, and that the defendant had said that the plaintiff was going to be living for the rest of his life in the unit “down the back”, where he was living at that time.
Mr Daman Eccles said that everyone knew that the plaintiff was living at Sterling Park because he had given the Eccles family his house and been loyal to them. On several occasions when he had had fights with the plaintiff he was sat down and told by his parents that he had to be a friend to the plaintiff for that reason. He did not remember what had happened at the time of the sale of the Hastings property, when he had been only nine years old, but he knew what he had been told by his parents.
Dr McArthur said that he had had horses on the property at Sterling Park from November 1996 to January 1998 and had been there every day. On one occasion he complained to the defendant about the plaintiff’s handling of one of his horses, and “she stated that I can’t do anything about it but he signed his house over to us and he has a life interest in the place and he works here seven days a week”.
The marriage between the defendant and Mr Eccles broke down and there were extensive proceedings in the Family Court, including a property dispute over Sterling Park. In that context, Mr Eccles swore a lengthy affidavit on 22 June 1999 relating inter alia to his property claim. The plaintiff is mentioned twice in the affidavit, as a person who lives in the staff quarters at Sterling Park and is the owner of a red Holden utility. Other people are mentioned as also living in the staff quarters. There is no suggestion in that affidavit that the plaintiff or any other person (leaving on one side claims made for Mr Eccles and his son) has any interest in Sterling Park.
The plaintiff swore an affidavit in the Family Court proceeding, prepared by the solicitor for Mr Eccles and in terms supportive of Mr Eccles, and relating in part to the use of Sterling Park during the marriage. That affidavit contains no reference to the plaintiff’s having any interest in Sterling Park.
On 20 September 2001 Justice Morgan in the Family Court ordered that Sterling Park be sold, and after payment of certain costs and expenses the proceeds be divided as to 65% to the defendant and 35% to Mr Eccles. Mr Eccles applied for a stay of that order, and swore an affidavit in support of that application. In that affidavit he refers to the plaintiff in the following terms, referring to the consequences of his having to relocate his business as a horse dealer:
Further, I say, I would have to terminate the services of my and my former wife’s employee, [the plaintiff]. The wife and I are indebted to Martin and he owns a lot of the equipment on the property. Since the wife left the property, Martin has been working solely with me, and the wife and I still owe him approximately $80,000 to $100,000 and I could only pay him out if I can continue to work. This is a debt to the business the wife and I ran during the currency of the marriage. I was never advised until I employed my current solicitor and counsel, to put this as a debt of the marriage.
There was no reference in that affidavit to the plaintiff’s having any interest in Sterling Park. It might have been thought that the existence of such an interest would have been relevant to the application of Mr Eccles for a stay of the order for sale.
The plaintiff was asked in cross-examination whether Mr Eccles owed him between $80,000 and $100,000 and said that he did not. However when he was reminded of the answer referred to in [10] above and it was put to him that that was why Mr Eccles had mentioned the debt, he agreed.
Sterling Park was sold by auction, pursuant to the order of Justice Morgan, on 16 March 2002. The caveat had been lodged the day before the auction. Mr Deering, the auctioneer, said in evidence that nobody told him that the property was encumbered by a life interest.
There were a number of documents in the material before the Court, prepared at various times, in which the plaintiff’s address is shown as other than Sterling Park, thus indicating that he was not living there. These addresses were put to him in cross-examination. His group certificate for part of the year to 30 June 1993, which was signed by the defendant, his group certificate for unemployment benefit for another part of that year, and the schedule to the Jobstart agreement which he signed on 8 February 1993, all give his address as 159 Nepean Highway, Aspendale. He said that he qualified for Jobstart in July 1992, after the sale of the Hastings property in June 1992, and that he was at that time living at 159 Nepean Highway, which was his father’s address, which he had continued to use for such matters as tax and Medicare. In an affidavit sworn on 15 October 2003 he gave his address as 135 Mount Ararat Road, Nar Nar Goon. Having initially denied that he was living at that address, he then said that he had lived there for about three months, but he was currently living at Sterling Park.
Section 53 of the Property Law Act 1958 provides, so far as here relevant:
53.Instruments required by law to be in writing
(1)Subject to the provisions hereinafter contained with respect to the creation of interest in land by parol¾
(a)no interest in land can be created or disposed of except by writing signed by the person creating or conveying the same, or by his agent thereunto lawfully authorized in writing, or by will, or by operation of law;
The balance of section 53 and the qualifications on that provision appearing in sections 54 and 55 are not relevant for present purposes.
Section 126 of the Instruments Act 1958 reads as follows, so far as here relevant:
126.Certain agreements to be in writing
An action must not be brought to charge a person . . . upon a contract for the sale or other disposition of an interest in land unless the agreement on which the action is brought, or a memorandum or note of the agreement, is in writing signed by the person to be charged or by a person lawfully authorised in writing by that person to sign such an agreement, memorandum or note.
There is no written document complying with either of those provisions which can be relied upon by the plaintiff. Although he was unrepresented at the hearing, he was represented by the same solicitors at all interlocutory stages of the proceeding. The statement of claim does not refer to any written document as evidencing the creation of the life interest, save the contract of sale of the Hastings property referred to in [5] above. That contract of sale contains no reference to the creation of a life interest, or any other interest, in Sterling Park. In any case, the purchaser of the Hastings property was Mr Eccles, and the registered proprietor of Sterling Park was the defendant, who was not a party to the contract of sale. There is no document before the Court, or relied on in the statement of claim, whereby the defendant authorises Mr Eccles to create interests in Sterling Park. The evidence of the witnesses called for the plaintiff is of no assistance, even were it not based, as it is, on hearsay. It will be apparent from the foregoing that I did not regard the plaintiff as a satisfactory witness.
I find no evidence to support the claim that the plaintiff is entitled to an interest in land sufficient to support a caveat over the whole or any part of Stirling Park. Nor is the evidence such as to bring into operation the equitable doctrine of part performance, so as to take the case out of the Instruments Act. As Lord Selborne said in Maddison v Alderson, that doctrine requires that the acts relied on by way of part performance must unequivocally and in their own nature be referable to some such contract as that alleged [1] . Smith J said in Francis v Francis[2] , after citing that passage:
This proposition involves, I consider, that the enquiry into the sufficiency of any act alleged to amount to part performance must be made in two stages. At the first stage it is necessary to exclude from consideration the evidence of the alleged parol agreement between the parties and to look at the act relied upon in the light of the surrounding circumstances as revealed by the rest of the evidence: . . . The act cannot amount to sufficient part performance unless, when so considered, it points plainly, and not merely in an equivocal fashion, to the existence of an agreement between the parties falling within the general class to which the agreement alleged belongs.
That cannot be said, considering all the circumstances, of the plaintiff’s residence on Sterling Park.
[1](1883) 8 App Cas 467 at 479
[2][1952] VLR 321 at 340
Mr Boaden submitted that the evidence indicated that the parties agreed that the plaintiff should have a personal right to reside on Sterling Park; but that the evidence as to his changes of address indicated that that right had been abandoned. While that may well be the situation, the plaintiff does not claim such a right, and no such claim is before me. If it were, the evidence does not enable me to make any finding as to the nature of such a right, or as to its abandonment.
For the reasons given, the plaintiff’s claim will be dismissed, and there will be an order on the counterclaim that the plaintiff execute a withdrawal in registrable form of caveat number AB151506R. Mr Boaden made no submissions on the counterclaim for compensation.
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