Francis v Francis - [2009] SASC 363

SUPREME COURT OF SOUTH AUSTRALIA
(Land and Valuation Division)
FRANCIS v FRANCIS
[2009] SASC 363
Judgment of The Honourable Justice Bleby
25 November 2009
REAL PROPERTY - PARTITION OF LAND - PARTITION OR SALE IN PARTITION ACTIONS
REAL PROPERTY - TORRENS TITLE - INDEFEASIBILITY OF TITLE - EXCEPTIONS TO INDEFEASIBILITY - IN PERSONAM EXCEPTION
EQUITY - TRUSTS AND TRUSTEES - CONSTITUTION AND CLASSIFICATION OF TRUSTS GENERALLY - CLASSIFICATION OF TRUSTS IN GENERAL - IMPLIED TRUSTS - RESULTING TRUSTS - WHERE INTENTION PRESUMED
Application under Part 8 Law of Property Act 1936 (SA) for order that land held by the plaintiff and her parents, the defendants, be sold and that the proceeds be divided equally between the three parties - defendants owned farm property - plaintiff wished to build and live in transportable home on defendants' property - defendants transferred one half of the legal title in the land to the plaintiff - in association with the transfer a Bank granted a loan to all three parties - parties entered into partnership for the running of the property and for the breeding of horses.
Whether parties intended transfer of land to be a transfer of half of the beneficial interest in the land or of some lesser part - whether bank loan applied for the benefit of the plaintiff - whether parties hold beneficial interest on resulting trust - whether presumption of advancement applies - how parties' intentions are to be ascertained.
Parties intended to confer on the plaintiff a beneficial interest in no more than approximately one hectare of the land - transfer of legal interest effected solely to enable bank loan to be made to plaintiff - not appropriate for whole property to be sold - parties to pursue application for subdivision of land.
Law of Property Act 1936 (SA) Part 8, s 69, s 70, 83; Development Act 1993 (SA) s 40; Development Regulations 2008 (SA) reg 48, referred to.
Bank of South Australia Ltd v Ferguson (1998) 192 CLR 248; Critchley v Collins (2004) 232 LSJS 155, applied.
Charles Marshall Pty Ltd v Grimsley (1956) 95 CLR 353; Calverley v Green (1984) 155 CLR 242; Gissing v Gissing [1971] AC 886, discussed.

WORDS AND PHRASES CONSIDERED/DEFINED
"partition and sale", "indefeasibility of title", "resulting trust", "presumption of advancement"

FRANCIS v FRANCIS
[2009] SASC 363
Land and Valuation Division
BLEBY J.
Introduction

The land presently comprised and described in Certificate of Title Register Book Volume 5346 Folio 305 is an irregularly shaped piece of land on the northern side of the junction of Marrabel Road and Patterson Road in the Hundred of Julia Creek in the area known as Hampden in the Regional Council of Goyder. It is approximately 10 kilometres west of the town of Eudunda. It comprises approximately 64.7 hectares.
In November 1989 the land was purchased by the defendants, Mr and Mrs Francis, who then lived at Two Wells. They moved into the house which had been erected on the land. It…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Francis v Francis

Details

AGLC: Francis v Francis [2009] SASC 363
Case: [2009] SASC 363
Decision Date: 25 November 2009

CaseChat Overview and Summary

The case of Francis v Francis involves a dispute over the partition of land, specifically the transfer of a half share in legal title of a farm property from the parents to their daughter. The parents, Mr and Mrs Francis, had conveyed one half of the legal title to the plaintiff, the daughter, and this transfer was accompanied by a loan from a bank to all parties. The plaintiff sought an order that the land be sold and the proceeds divided equally among the parties, while the parents argued that the transfer was intended to be a transfer of a smaller beneficial interest, and that they held the land on a resulting trust. The dispute also involved the application of the in personam exception to indefeasibility of title under Torrens legislation, and the classification of trusts, particularly implied or resulting trusts.

The court was required to determine the parties' intentions in transferring the land, whether the bank loan applied for the benefit of the plaintiff, and whether the parties held the beneficial interest on a resulting trust. The court examined the evidence, including the plaintiff's affidavits and the evidence of Mr Ian Rothe, the valuer. The court also considered the defendants' affidavits and evidence. The court held that the parties intended to confer on the plaintiff a beneficial interest in no more than approximately one hectare of the land, and that the transfer of legal interest was effected solely to enable the bank loan to be made to the plaintiff. The court found that it was not appropriate for the whole property to be sold and ordered that the parties pursue an application for subdivision of the land.

The court's reasoning was based on the evidence before it and the applicable legal principles. The court found that the parties' intentions were to be ascertained from the evidence and the surrounding circumstances. The court held that the transfer of legal interest was not a transfer of the whole beneficial interest, but rather a transfer of a smaller beneficial interest. The court also found that the bank loan was not applied for the benefit of the plaintiff, but rather for the benefit of all parties. The court held that the parties held the beneficial interest on a resulting trust, and that the presumption of advancement did not apply. The court ordered that the parties pursue an application for subdivision of the land.

Orders

Orders of the court

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Background

Background to the litigation

The plaintiff gave oral evidence and was cross-examined on her affidavits. She also called a valuer, Mr Ian Rothe, who was cross-examined as to one minor aspect of certain valuations of the property which he had provided both at the request of the plaintiff and the defendants, and which were not otherwise in dispute. Mr and Mrs Francis also gave evidence and were cross-examined on their affidavit.Facts not in dispute After her marriage in 1991 or 1992,[1] the plaintiff and her husband began living in a house erected on some land which she owned in Eudunda. She was a police officer working in metropolitan Adelaide. She gave birth to her daughter, Annabel, on 8 June 1994.[1] The defendants allege that the plaintiff was married on 11 December 1992: Exhibit D8, para 24. The plaintiff alleges that she was married “in 1991”: Exhibit P4, para 8. The matter was not resolved. In February 1995, after her marriage broke down, the plaintiff and her husband separated. The separation was not amicable and included episodes of violence. The plaintiff and her daughter remained in the Eudunda house. The plaintiff was under severe financial and emotional stress, as well as suffering from post-natal depression. She resumed her employment as a police officer, a neighbour undertaking the care of her child while she was at work. Mr and Mrs Francis also assisted from time to time with some child care, but there were obvious difficulties caused by distance. Following a family discussion the plaintiff decided to sell the Eudunda house. She and her daughter moved in to live with her parents. It was only intended that she should live in the same house while arrangements were made to acquire a transportable house to be placed on the property in which the plaintiff and her daughter could live independently. Mr Francis made some enquiries of the local council as to the possibility of subdividing off one hectare of the property on which to place the transportable home. He was informed that the Council would not consent to such a subdivision but would favourably consider a development application for the erection of a transportable home on the property. Mr and Mrs Francis could not afford to provide financial assistance to the plaintiff to acquire the transportable home. If this was to happen, the plaintiff would have to borrow money. An approach was made to Bank SA to provide a loan for the purchase of a transportable home and for works associated with its installation. The bank was not prepared to lend the amount required to the defendants because they were unable to repay the loan from their own resources. The bank would not lend to the plaintiff. Although she could apparently service the loan, she could provide no security. The bank would only lend for that purpose if the plaintiff had an interest in the land. Mr Francis approached a conveyancer in Kapunda. It is not clear precisely what his instructions were, but he prepared the memorandum of transfer in the terms described above. The transfer was executed by all parties in the office of the conveyancer. Precisely when that occurred is a matter of some dispute, but the transfer was dated, it would appear by the witness, 29 May 1996. The memorandum of transfer was assessed for stamp duty on 31 May 1996 at a value of $63,000.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

BLEBY J

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Ratio Decidendi

Legal Principle Established

Established by: BLEBY J

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