Gentsis v Vinten
[2022] VCC 921
•23 June 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMERCIAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-20-03306
| PETER GENTSIS | Plaintiff |
| v | |
| JUANITA VINTEN | Defendant |
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JUDGE: | HIS HONOUR JUDGE MACNAMARA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 June 2022 | |
DATE OF JUDGMENT: | 23 June 2022 | |
CASE MAY BE CITED AS: | Gentsis v Vinten | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 921 | |
REASONS FOR JUDGMENT
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Subject:POSSESSION OF LAND
Catchwords: Registered proprietor of residential property seeking possession of that property – Defendant in occupation as home provided to her by previous registered proprietor – Transfer of Land Act 1958, s42(2)(e) – Whether plaintiff guilty of fraud – Whether defendant “tenant in possession” – Defendant claiming to be donee of gift by previous registered proprietor – Whether defendant having ownership interest in property – No perfected gift – No entitlement under any trust – Defendant at best tenant at will – Order for possession granted
Legislation Cited: Residential Tenancies Act 1997; Sale of Land Act 1962; Transfer of Land Act 1958; Property Law Act 1958
Cases Cited:Australian Securities and Investments Commission, in the matter of Money for Living (Aust) Pty Ltd (Administrators Appointed) v Money for Living (Aust) Pty Ltd (Administrators Appointed) (No 2) [2006] FCA 1285; Wicks v Bennett (1921) 30 CLR 80; Butler v Fairclough (1917) 23 CLR 78; Bahr v Nicolay (No 2) (1988) 164 CLR 604; Tight v Guo [2020] NSWSC 1567; Holder v Zeiher [2014] NSWSC 556; Wilkes v Bykowski [2016] NSWSC 1685; Bethian Pty Ltd v Green (1973) FLR 11,579; Dykstra v Dykstra (1991) 22 NSWLR 556; Morling v Morling (1992) 16 Fam LR 161; Paragreen v Lim Group Holdings Pty Ltd [2020] VSCA 84; Burke v Dawes (1938) 59 CLR 1; Calderone v Perpetual Trustees Victoria Ltd [2008] VSC 373; Brunker v Perpetual Trustee Co (Ltd) (1937) 57 CLR 555; Corin v Patton (1990) 169 CLR 540; Muschinski v Dodds (1985) 160 CLR 583; Baumgartner v Baumgartner (1987) 164 CLR 137; Caltex Properties Ltd (in liq) v Love (1997) 95 LGERA 132;
Judgment: Orders:
1. Within 14 days the plaintiff must bring in short minutes to give effect to these reasons.
2. Costs reserved.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Felkel | T J Mulvany & Co Lawyers |
| For the Defendant | In person |
HIS HONOUR:
Background
1According to the defendant, Ms Vinten, in 2006 she “commenced a relationship” with a Mr David Anderson (Defendant’s Outline, paragraph 3). Mr Anderson is the owner and operator of a “successful” winery in northern Victoria (Transcript (“T”) 33, Lines (“L”) 21-22). Ms Vinten was an unmarried mother of three daughters, born 1988, 1989 and 1999 (T39, L1-6). Six or more months after the commencement of the “relationship”, Ms Vinten discovered that Mr Anderson was still sharing married life with his wife and therefore was living a “double life”. (Defendant’s Outline, paragraph 4) She said she “ultimately forgave David”. (Defendant’s Outline, ibid) She said that in 2014, she was living in Benalla (whilst David was living and working in Heathcote). She expressed a desire to be closer to her daughter, who was living in Broadford. David suggested that she move to Broadford “to be closer to him and my daughter.” (Ibid, paragraph 5)
2Around July 2014, Mr Anderson bought the property at 34 Donaldson Drive, Broadford, where Ms Vinten then took up residence. (Ibid, paragraph 6) She said Mr Anderson told her “that he had bought the property for [her] because he was sorry for his past dishonesty and infidelity.” (Ibid paragraph 7) At this time, she said Mr Anderson told her, “this is your home.” (T40, L13-15) She said Mr Anderson provided her with the property “because he knew I needed a place to live and he wanted my daughter and I to feel settled.” She said Mr Anderson “made similar representations to my brother and daughters.” (Defendant’s Outline, paragraph 8) She said that between July 2014 and April 2015 she continued to reside in the property, and Mr Anderson “spent some nights of the week [there] but never lived with [her] in the Property on a permanent ongoing basis.” (Ibid paragraph 9)
3Her relationship with Mr Anderson, she said, ended in April 2015, but she continued to reside in the property which she “considered to be” hers. She offered to pay Mr Anderson “a reasonable sum of money for him to transfer the property to [her] but he refused.” (Ibid, paragraph 10) Mr Anderson then served Ms Vinten with a “Notice to Vacate Property” under s295(1) of the Residential Tenancies Act 1997, with a further notice served on 13 November 2015. He brought a proceeding in the Victorian Civil and Administrative Tribunal seeking an order for possession. (Ibid, paragraphs 11-13) On 22 February 2016, Member J Kefford dismissed Mr Anderson’s application on the ground that “the respondent [viz, Ms Vinten] has satisfied the Tribunal that the occupation of the premises by [her] was not as a tenant under a residential tenancy agreement.” (Court Book (“CB”) 42)
4According to Ms Vinten, on 25 February 2016, she retained legal advisers to lodge a caveat against the title to the property claiming that she held an interest in that property on the basis of an implied, resulting or constructive trust. She said the relevant law firm eventually “ceased acting due to a conflict of interest”. (Defendant’s Outline, paragraph 16)
5An historical search statement relative to the Broadford property for the years 1999 to 2022, however, does not disclose that any such caveat was ever lodged. (CB 113-120)
6Ultimately, Ms Vinten became aware that the caveat had never been lodged. (Defendant’s Outline, paragraph 18)
7Shortly after the VCAT hearing, Ms Vinten said she “suffered a medical episode relating to the separation [presumably from Mr Anderson] and the stress of dealing with the VCAT proceedings. [She] obtained Electronic Cognitive Therapy (shock therapy) which affected [her] memory. [She] ultimately lost [her] job and began relying on a pension as [her] sole source of income.” (Ibid, paragraph 16)
8The plaintiff, Mr Gentsis, said he met Mr Anderson about 20 years ago and purchased a number of shipments of wine from him over the years. Some time in 2019, when Mr Anderson was delivering a shipment of wine to him, Mr Gentsis told Mr Anderson that he was thinking of moving to the country, the northern part of the state near where Mr Anderson lived. Mr Anderson said he could offer Mr Gentsis premises in Broadford at a cheap price. A month later, he provided photographs of the property at 34 Donaldson Drive, Broadford, to Mr Gentsis. Some time later, Mr Gentsis drove to Broadford to inspect the property. The block was of suburban size in a residential subdivision. He knocked on the door, but received no answer. Mr Anderson had told him that the property was occupied. This was his only visit to the property prior to his entering into a contract for its purchase. (T12, L5 – T13, L3)
9Mr Gentsis signed a contract to purchase the property on 5 June 2019. That contract was signed by Mr Anderson, as vendor, on 18 June 2019. (CB 54) Mr Anderson as vendor was represented by Hammersmith Lawyers, and Mr Gentsis was represented by his solicitors, T J Mulvany. (CB 55) The contract provided for a total price of $240,000, with a deposit of $12,000 paid on the signing of the contract and the balance outstanding of $228,000. The contract was in the standard form under the Estate Agents (Contracts) Regulations 2008 and sponsored by the Law Institute of Victoria and the Australian Institute of Conveyancers Victorian Division Incorporated. The standard provisions in the particulars of sale dealing with the options of sale with vacant possession or sale subject to a lease were deleted in toto. The contract included the general conditions from the standard form, together with lengthy special conditions dealing with electronic conveyancing, GST and so forth. There was a further set of “Additional Special Conditions” which included as Additional Special Condition 2 the following:
“The Purchaser agrees to accept the occupation of the property as present. The Vendor does not enjoy vacant possession, nor is there a formal lease. The Purchaser accepts the property with the occupant ‘as is’.”
10Additional Special Condition 3 provides for the $12,000 deposit to be forfeitable “in the event of default”. It required payment of a further sum of $24,000 “on or before the first anniversary of the day of sale”, with a further $24,000 payable on or before the second anniversary of the day of sale, with the balance of $180,000 to be paid “on or before the third anniversary of the day of sale”. (Ibid)
11Mr Gentsis became entitled to possession, or receipt of the rents and profits, and accepted liability for rates, taxes and expenses, and took the risk on the property from the date of payment of the deposit of $12,000. (Ibid) Mr Gentsis paid the $12,000 deposit by two bank cheques in the sum of $6,000 each from National Australia Bank and Commonwealth Bank of Australia respectively. (CB 52) He said he paid the two further instalments of $24,000 each, being able to produce receipts for payment of two instalments at $8,000 on each occasion but without any receipt for the third $8,000 required to make up the full $24,000 payment. (T17)
12Exercising a power under s29H of the Sale of Land Act 1962, Mr Gentsis required transfer to him of the fee simple interest in the property subject to his granting a mortgage back to Mr Anderson to secure the balance outstanding of the purchase price. (CB 105-6) This mortgage provided for the balance of $180,000 to be paid on or before 18 June 2023, rather than the original date of 18 June 2022. He said this deferral was the result of the difficulties which he experienced in gaining possession of the property. (T20) The transfer to Mr Gentsis and the mortgage back to Mr Anderson were registered under the Transfer of Land Act 1958, AU473279L and AU473298J, on 18 June 2021. (CB 115)
13On 23 July 2020, the plaintiff commenced this proceeding by Originating Motion under Order 53 of the court’s rules seeking an order for possession against “every person in occupation of the land at 34 Donaldson Drive, Broadford”, and stating in the proceeding heading that the plaintiff did not “know the name of any person in occupation to make defendant”.
14Following a series of procedural hearings in the court, her Honour Judge Aileen Ryan accepted a contention put by Ms Vinten that this proceeding was not appropriately brought under Order 53. On 15 October 2020, her Honour ordered that the matter “continue as if it had been commenced by way of writ pursuant to [Rule] r4.07”.
15By letter dated 18 June 2019, Hammersmith Lawyers, who it will be recalled acted for Mr Anderson on the sale of the property, wrote to “The Occupant, 34 Donaldson Drive, Broadford” advising:
“We act for Peter Gentsis, who purchased this property effective 18 June 2019. [This seems to be inaccurate. Hammersmith Lawyers acted for Mr Anderson]
In future, would you please contact his solicitors, TJ Mulvany & Co … in relation to this property.” (CB 93)
16On 27 June 2019, T J Mulvany & Co wrote to “The Occupier” of the property, advising that its client had entered into a contract to purchase the property and was “entitled to vacant possession” and wanted to take possession “as soon as possible”. The letter concluded:
“Accordingly, I write to you with a request that you advise me of the basis upon which you occupy the property and when you will be in a position to vacate the property.” (CB 94)
17This letter apparently received no response.
18A further letter was sent by the same firm to “The Occupier” of the property dated 16 April 2020. Ms Vinten annotated the original of this letter:
“I did contact Philip Tiernan [the solicitor at T J Mulvany & Co acting for Mr Gentsis] by phone twice. Ask for a meeting with ‘ALL PARTIES’, (Peter Gentsis, David Anderson & myself). I was rudely denied this.” (CB 96)
19The proceeding came on for trial before me on 15 June 2022, with the plaintiff’s claim embodied in his “Amended Statement of Claim” dated 9 July 2021. (CB 5-8) (Hereafter referred to as “the Statement of Claim”).
Plaintiff’s claim
20The Statement of Claim alleged that Mr Gentsis is the registered proprietor of the property by virtue of his purchase under the terms contract from Mr Anderson, the previous registered proprietor. It referred to the various terms of the contract which have been recited above and concluded that, as a result of registration of the transfer of the property to Mr Gentsis as registered proprietor of an estate in fee simple, he was “immediately entitled to possession” of that property, and that Ms Vinten “has and continues to unlawfully occupy the property”. It was said Ms Vinten had refused to vacate the property.
21The Statement of Claim sought a judgment for possession or, alternatively, an order requiring Ms Vinten to vacate, for costs, and for further or other relief.
Defence
22In her Defence to the Amended Statement of Claim dated 17 September 2021, Ms Vinten denied a few of the allegations in the Statement of Claim, and declined to admit most. She made a few admissions: namely, that any cause of action arose in Victoria, and that she was in occupation of the Broadford property. The substance of her defence, however, appeared in her outline of submissions filed 10 June this year.
23In her outline of submissions she set forth the narrative of events from her point of view. She claimed to have an equitable interest in the property, and said in the circumstances Mr Gentsis could not be regarded as a bona fide purchaser for value without notice of her interest. Any interest which he had in the property as registered proprietor was therefore subject to her prior equitable interest.
Statutory provisions
24Mr Felkel, counsel for the plaintiff, initially placed his client’s position as the legal owner of the property at the forefront of his contentions, asserting, in the circumstances, that as a purchaser of the legal interest in the property without notice of any alleged equitable interest accruing in favour of Ms Vinten, his client took the legal interest free of it. Ultimately, however, he placed reliance on the status given to Mr Gentsis by the Transfer of Land Act 1958 as the registered proprietor of the fee simple in the property.
Notice
25It will be seen that the issue of what “notice” Mr Gentsis had of any alleged interest of Ms Vinten was at the forefront of the parties’ initial contentions.
26The doctrine of notice has been primarily evolved by case law in the equitable jurisdiction. It is, however, subject to a statutory gloss to be found now at s199 of the Property Law Act 1958, which provides:
“Restrictions on constructive notice
(1) A purchaser shall not be prejudicially affected by notice of any instrument, fact or thing unless—
(a)it is within his own knowledge, or would have come to his knowledge if such inquiries and inspections had been made as ought reasonably to have been made by him; or
(b)in the same transaction with respect to which a question of notice to the purchaser arises, it has come to the knowledge of his legal practitioner or other agent, as such, or would have come to the knowledge of his legal practitioner or other agent, as such, if such inquiries and inspections had been made as ought reasonably to have been made by the legal practitioner or other agent.
(2) This section shall not exempt a purchaser from any liability under, or any obligation to perform or observe, any covenant condition, provision or restriction contained in any instrument under which his title is derived, mediately or immediately; and such liability or obligation may be enforced in the same manner and to the same extent as if this section had not been passed.
(3) A purchaser shall not by reason of anything in this section be affected by notice in any case where he would not have been so affected if this section had not been passed.
(4) This section shall apply to purchases made either before or after the commencement of this Act.”
27In the present instance, it is difficult to contend that Ms Vinten’s claim on the land would not have come to Mr Gentsis’s attention if he had made, in terms of s199(1) of the Property Law Act, “such inquiries and inspections ... as ought reasonably to have been made by him”: Australian Securities and Investments Commission, in the matter of Money for Living (Aust) Pty Ltd (Administrators Appointed) v Money for Living (Aust) Pty Ltd (Administrators Appointed) (No 2) [2006] FCA 1285 [24] per Finkelstein J.
28Ultimately, Mr Felkel either conceded this point against Mr Gentsis or made the contrary contention only faintly. In circumstances where the existence of an “occupant” was known to Mr Gentsis, being specifically disclosed in the contract of sale which he signed, he must be regarded as having had notice of Ms Vinten’s interest or claim prior to his entry into the contract to purchase the property.
Indefeasible title
29Mr Felkel placed ultimate reliance on the indefeasibility of title bestowed upon a registered proprietor by sections 42 and 43 of the Transfer of Land Act 1958. Section 42 of the Transfer of Land Act 1958, under the chapeau “Estate of registered proprietor paramount”, provides, inter alia:
“(1)Notwithstanding the existence in any other person of any estate or interest (whether derived by grant from Her Majesty or otherwise) which but for this Act might be held to be paramount or to have priority, the registered proprietor of land shall, except in case of fraud, hold such land subject to such encumbrances as are recorded on the relevant folio of the Register but absolutely free from all other encumbrances whatsoever, except—
(a)the estate or interest of a proprietor claiming the same land under a prior folio of the Register;
(b)as regards any portion of the land that by wrong description of parcels or boundaries is included in the folio of the Register or instrument evidencing the title of such proprietor not being a purchaser for valuable consideration or deriving from or through such a purchaser.
(2) Notwithstanding anything in the foregoing the land which is included in any folio of the Register or registered instrument shall be subject to—
***
(e)the interest (but excluding any option to purchase) of a tenant in possession of the land;
***
notwithstanding the same respectively are not specially recorded as encumbrances on the relevant folio of the Register.”
30The issue of “notice” receives special treatment in s43 of the Act, which provides:
“Persons dealing with registered proprietor not affected by notice
Except in the case of fraud no person contracting or dealing with or taking or proposing to take a transfer from the registered proprietor of any land shall be required or in any manner concerned to inquire or ascertain the circumstances under or the consideration for which such proprietor or any previous proprietor thereof was registered, or to see to the application of any purchase or consideration money, or shall be affected by notice actual or constructive of any trust or unregistered interest, any rule of law or equity to the contrary notwithstanding; and the knowledge that any such trust or unregistered interest is in existence shall not of itself be imputed as fraud.”
Fraud
31The indefeasible title of a registered proprietor may be set aside or nullified by proof of fraud on his, her or its part: Transfer of Land Act s44(1). Section 43 of the Act makes clear that the “fraud” spoken of must amount to more than merely acquiring a registered interest with notice of some adverse unregistered one.
32In 1921, the High Court held that the “fraud exception” required proof of actual moral turpitude against the registered proprietor: Wicks v Bennett (1921) 30 CLR 80, 91, per Knox CJ and Rich J. See also Butler v Fairclough (1917) 23 CLR 78, 90, 98. In Wicks’ case, the Court held that a purchaser for valuable consideration was not to be treated as having obtained his interest by fraud merely because he was told that a syndicate had an unregistered interest in the relevant land. ((1921) 30 CLR 80, 90) There has been no relaxation of this verbal formulation of the concept of “fraud” as an exception to indefeasibility. Nevertheless, later appellate decisions seem to give the concept of “moral turpitude” a wider operation than it was given in Wicks’ case just over a century ago.
33In Bahr v Nicolay (No 2) (1988) 164 CLR 604, the owner of land entered into a sale and lease-back arrangement to raise development funding. This arrangement included a “buy-back” entitlement in favour of the original owner at a nominated price. The lessor sold the land under terms whereby the purchaser acknowledged the existence of the repurchase arrangement. The second purchaser became registered proprietor, and, despite having acknowledged the repurchase obligation, ultimately refused to sell the land. In these circumstances, four of the five Justices, namely Mason CJ, Wilson, Dawson and Toohey JJ, held that the fraud exception to indefeasibility applied. Two of them, namely Wilson and Toohey JJ, held it was necessary to prove a fraudulent intent at the time of acquisition. Mason CJ and Dawson J held that the fraud exception could apply where the registered proprietor took on an obligation such as the repurchase obligation honestly initially, but subsequently repudiated it.
34In Paragreen v Lim Group Holdings Pty Ltd [2020] VSCA 84, the Court of Appeal, applying Bahr v Nicolay (No 2), nevertheless held that purchasers of a residential unit were not to be regarded as acting fraudulently in declining to observe requirements of terms of settlement involving a previous owner which were annexed to and formed part of the vendor statement attached to the purchaser’s contract. The Court of Appeal, Tate, Kaye and Niall JJA, held that the case was different from Bahr v Nicolay, in that the purchasers gave evidence, which was accepted, that they were not subjectively aware of the significance of the provisions in the terms of settlement and had given no word-of-mouth assurances relative to these matters, in contrast to what had occurred in Bahr v Nicolay.
35Turning then to the facts of the present case, accepting, as explained above, that Mr Gentsis must be regarded as having taken his interest in the property with notice of Ms Vinten’s claim or interest in the land, whatever it might be, it is going altogether too far to say that he was thereby guilty of fraud, either in his initial purchase, or in his present attempt to obtain possession.
36In contrast to the registered proprietor’s clear knowledge of the adverse interest viz, a right to repurchase at a nominated price (Bahr v Nicolay), all that Mr Gentsis has been proved to know, principally from the terms of the sale contract, is that there was an occupier with a right or claim of some type. The reference to the absence of a “formal lease” would seem to imply that such interest was no more than a leasehold interest, and perhaps less than that.
Tenant in possession
37In the absence of a line of long-established case law as to the meaning of this phrase in earlier equivalent Victorian legislation, it would be absolutely clear that Ms Vinten is not a “tenant” (albeit being “in possession”) in any ordinary sense. She claims an equitable interest in the freehold of the property, not a leasehold interest at all. The Victorian Civil and Administrative Tribunal has held that she was not a tenant in the sense in which that word is used in the Residential Tenancies Act. Nevertheless, there is a line of Victorian case law which makes this point far less clear.
38In Burke v Dawes (1938) 59 CLR 1, 17-18, Dixon J (as he then was), speaking of the phrase “tenant in possession” in s72 of the Transfer of Land Act 1958 (the equivalent of the present s42) said:
“In Victoria these words have received an interpretation and an application as a result of which any person in actual occupation of the land obtains as against any inconsistent registered dealing protection and priority for any equitable interest to which his occupation is incident, provided that at law his occupation is referrable to a tenancy of some sort, whether at will or for years. Thus, a purchaser under a contract of sale, who at law is in possession as tenant at will of the vendor, has been held protected in respect of his equitable ownership as purchaser (Robertson v. Keith (1); Sandhurst Mutual Permanent Investment Building Society v. Gissing (2)), a lessee in respect of an option of purchase contained in his lease (McMahon v. Swan (3)) and a wife in respect of an equitable life interest claimed under an unsigned separation agreement made with her husband (Black v. Poole (1)). A’Beckett J. decided the last named case in deference to previous decisions and against his own opinion, which he stated to be that “those words were intended to refer to a tenancy as ordinarily understood arising out of an agreement under which the person in possession was allowed to occupy in consideration of some kind of rent or service of which the proprietor was to have the benefit.” The cases are collected and criticised by the late Dr. Donald Kerr in his work on The Australian Lands Titles (Torrens) System (1927), at pp. 75 et seq. But the interpretation has stood for nearly seventy years, and it would, I think, be most undesirable now to undertake the re-examination of its correctness.”
39In Calderone v Perpetual Trustees Victoria Ltd [2008] VSC 373, the matrimonial home of Mr and Mrs Calderone was owned by a company called Seventh Asteroid Pty Ltd, which was controlled by Mr Calderone. Seventh Asteroid transferred title to the house to an unrelated company, Australvic Property Management Pty Ltd, in July 2006, on the basis that it held the property on trust for Seventh Asteroid. Australvic mortgaged the property to Perpetual, which obtained a first registered mortgage to secure a loan of $960,000. The mortgage went into default, and Perpetual obtained a judgment for possession.
40Mrs Calderone sought an injunction to restrain Perpetual from enforcing its right. One of her contentions was that, in the circumstances, she should be regarded as a “tenant in possession” in favour of whom the paramountcy of the registered mortgage could not be asserted by reason of s42(2)(e) of the Transfer of Land Act. Beach J rejected this argument. He said:
“Whilst it is correct, as counsel for Mrs Calderone submits, to say that s 42(2)(e) should be interpreted widely so that any person in actual occupation of the property obtains as against any inconsistent registered dealing protection and priority for any equitable interest to which her occupation is incident, in order for Mrs Calderone to succeed at law, her occupation must be referrable to a tenancy of some sort. It is common ground that Mrs Calderone is not claiming that a lease exists (at least not as commonly understood). The interest she claims is that of a life tenant in possession as protected under s 42(2)(e). For the reasons given above, I have already concluded that no interest or estate in the property was granted to Mrs Calderone in 1990 either by Mr Calderone or by Seventh Asteroid. All that occurred in 1990 was that Mrs Calderone sought an assurance from her husband that the property would be the matrimonial home and that he would not use it in his business. There was no intention that the assurances (and the written annotation) would constitute an agreement which could be enforced at the suit of Mrs Calderone and there was no intention to give her any interest in the property over and above that which she would have enjoyed as Mr Calderone’s wife and the mother of his children. Further, the then owner of the property, Seventh Asteroid, did not grant Mrs Calderone any interest or estate in the property.” ([2008] VSC 373 [19])
41In Burke v Dawes, the High Court proceeded on the basis that for the purposes of the phrase “tenant in possession” in s72 of the Transfer of Land Act 1958, the holder of an equitable life tenancy could be a tenant in possession if in fact in possession. As will appear below, despite Ms Vinten’s claim for an equitable fee simple interest in the property, her interest therein is at best that of a tenant at will. To say that such an interest could be regarded as falling within the “tenant in possession” exception to indefeasibility says nothing as to Ms Vinten’s ability to resist a possession claim by the registered owner of the fee simple, Mr Gentsis. According to Croft, Hay and Virgona, Commercial Tenancy Law (4th ed), [2.15] 68:
“A tenancy at will, though called a tenancy, is unlike any other tenancy except a tenancy at sufferance, to which it is next of kin. The tenancy is terminable at the will of either party.”
Ms Vinten’s claim
42Ms Vinten said that in “setting her up” in the property and telling her “this is your home”, Mr Anderson made a gift of the property to her.
43Plainly, he did not make any gift at law. The only means whereby the legal interest of a registered proprietor of real estate may be donated or gifted during the proprietor’s life is by the registration of a transfer from him or her to the donee. No such thing has taken place here, nor has there been any pretence or attempt on Mr Anderson’s part to make over registered title.
44In the famous case of Brunker v Perpetual Trustee Co (Ltd) (1937) 57 CLR 555, the alleged donor executed a transfer of land in registrable form, delivering it to a third person. The alleged donor died before any further action was taken. The duplicate certificate of title was at all material times in the possession of a mortgagee. The High Court held that this was an imperfect gift, and there was no power or authority in the Court to perfect it. In their Honours’ view, handing the transfer to a third person was not the equivalent of handing it to the putative donee. Moreover, whilst the transfer was generally in the registrable form, it did not note as an encumbrance the registered mortgage. In their Honours’ view, the subsequent insertion of that mortgage as an encumbrance constituted a material alteration which avoided the instrument.
45Given that there has not been even the pretence of any attempt to effect registered title, there has been no effective gift of the land to Ms Vinten either at law or in equity.
46In Corin v Patton (1990) 169 CLR 540, the High Court reached a similar conclusion. A joint tenant of land executed a transfer of her share of the property to a trustee to be held on trust for herself. This transfer, if registered, would have worked a severance of the joint tenancy so as to exclude the operation of the doctrine of survivorship; viz, the deceased joint tenant’s interest in the land accruing to the surviving joint tenant. The joint tenant died before the transfer was registered. Once again, the duplicate certificate of title was in the custody of the mortgagee. The Court regarded the attempted disposition as an imperfect gift which equity would not perfect. After a lengthy review of the authorities, Mason CJ and McHugh J concluded that a gift may be complete in equity where the donor has done all that is necessary on the donor’s part to complete the gift. The gift is to be regarded as complete in equity if the further steps to perfect it may be taken by the donee rather than necessarily by the donor. Their Honours said:
“The question is then whether Mrs Patton [the alleged donor] did all that it was necessary for her to do in order to effect a transfer. Two obstacles are suggested to completion of the gift. First, the certificate of title remained throughout with the mortgagee and Mrs Patton took no steps to arrange for its production for the purposes of registration. Secondly, it is not clear whether or not Mr Smallwood held the executed transfer on Mrs Patton's instructions or those of Mr Corin.” ((1990) 169 CLR 540, 560)
47After a further consideration of those matters, their Honours resolved them in the negative, stating:
“Accordingly, the transactions failed to pass the equitable property in the land to Mr Corin, and it is unnecessary to consider under whose control the instrument of transfer was after execution. Further, because the gift was incomplete, Mrs Patton could have recalled the transfer at any time.” ((1990) 169 CLR 540, 561)
Creation of trust
48In Ms Vinten’s abortive caveat, she asserted a beneficial interest pursuant to a resulting constructive or implied trust. This formulation would appear to disclaim any beneficial entitlement based on an express trust. At the time that the abortive caveat was framed, Ms Vinten did have the advantage of legal advice. Her outline, to which I have made reference, was prepared with the assistance of a pro bono legal practitioner. (T42‑3) Nevertheless, Ms Vinten was ultimately unrepresented at trial, and her legal assistance was at best intermittent. It would in those circumstances be unfair to apply the maxim expressio unius est exclusio alterius against her.
49According to Ms Vinten, when Mr Anderson had selected the property and purchased it, he told her “That was my home.” (T40, L14) Neither party called Mr Anderson as a witness. Given that the relationship between Ms Vinten and Mr Anderson has dissolved, as one would suppose with some necessary acrimony, and that Mr Anderson’s sale of the property must have been seen by Ms Vinten as a betrayal, it is unsurprising that she did not call him as a witness. I should in the circumstances, therefore, treat her account of what was said at the time that she was “set up” in the property as being uncontradicted.
50To say that a house is to be someone’s home is inherently ambiguous. According to Ms Vinten’s interpretation, the property was to be “her home” in the sense that it was to belong to her. On the other hand, where a person rents residential property, even on a short-term basis, during the term of occupancy it would be normal usage for that person and others to refer to the rented premises as the renter’s “home”. Ms Vinten never undertook what might be described as the ordinary burdens and responsibilities of ownership. The insurance and other outgoings on the property were borne by Mr Anderson until the preliminary settlement of the sale to Mr Gentsis, and thereafter by Mr Gentsis. Mr Anderson was even paying the registration fees on Ms Vinten’s car. (T64‑5) This is more consistent with a purely temporary arrangement whereby a man provides his girlfriend or partner with accommodation and support during the term of their relationship, rather than one in which ownership of assets is made over to her permanently.
51In the circumstances, I conclude that no express trust vesting equitable ownership in the property in Ms Vinten was created in her favour by Mr Anderson.
52As to the contention in the abortive caveat that Ms Vinten was a beneficiary under a resulting trust, Mr Felkel relied on passages from Halsbury’s Laws of Australia [430-500]. According to the learned author of these passages, Professor Dal Pont, a resulting trust may arise in certain circumstances where there has been a failure of an express trust: see [430-510]. I have already found that no express trust was created, and so no resulting trust can have come into existence based on these principles. Again, where there has been no express attempt to dispose of a beneficial interest in property, a resulting trust cannot arise as a result of a failure to dispose of the entire beneficial interest [430-515]. Nor can the circumstance where property is given on trust for a specific purpose which cannot be effected [430-520] apply here. Nor is this a situation where property has been given on trust but exceeds that required to achieve the stated purpose [430-525]. Nor is this an example of there being a surplus in public subscriptions [430-530].
53Constructive trusts are imposed by the law in a variety of situations. Ms Vinten did not develop an argument as to why a constructive trust ought to be seen as arising in her favour in these circumstances. Again, Mr Felkel relied on the treatment of this subject in Halsbury. At [430-575] it is stated:
“The main purposes for which constructive trusteeship is imposed are to:
(1) render a defaulting fiduciary accountable for an improper profit from his or her fiduciary position;
(2) attach liability to a stranger where, by reason of the stranger’s acts or omissions, equity dictates that he or she ought to be accountable as a constructive trustee;
(3) prevent an unconscientious assertion of ownership of property by a person in respect of which another person has contributed;
(4) enforce an agreement to execute mutual wills or a secret trust; and
(5) impose obligations upon a person arising from the sale or purchase of land.
In light of the predominantly remedial character of the constructive trust, the circumstances in which it may arise are not closed, but extend to any case where some principle of the law of equity calls for the imposition upon the legal owner of property of the obligation to hold or apply the property for the benefit of another.”
Reference is made to Muschinski v Dodds (1985) 160 CLR 583, 616-17, and other authorities.
54In the present case, Ms Vinten did not assert that she had outlaid money to improve the property, nor did she meet any of its outgoings as previously noted. She made no contribution to the purchase price, nor did she claim to have made any mortgage payment on the property. It is difficult to see that any of the circumstances which, according to Halsbury, render it appropriate to impose a constructive trust, arise in the present situation.
55The classic examples where the High Court has seen it appropriate to make a finding of the existence of a resulting or constructive trust, in cases such as Muschinski v Dodds and Baumgartner v Baumgartner (1987) 164 CLR 137, are instances where the person found to be the beneficiary of the constructive or resulting trust had made contributions of the sort described, which were not made in this instance. Ms Vinten does not enjoy the status of a trust beneficiary either of an express or non-express trust.
De facto property claim
56Part VIIIAB of the Family Law Act 1975, pursuant to a State referral of power, empowers the Federal Circuit Court and Family Court of Australia to make orders relative to maintenance and property settlements as between the parties to a de facto relationship. Section 90SL empowers that court to make declarations as to the interests in property of the parties to a de facto relationship. Section 90SN empowers the court to make orders altering their property interest broadly along the same lines as the court may make such orders relative to former married persons under s79.
57When the present proceeding came before the court in 2020, in an outline of submissions Ms Vinten said (paragraph 20) that she had an equitable interest in the property “by virtue of my de facto relationship with David”. In the following paragraph, she said:
“I intend to seek legal advice and bring an application in relation to my equitable interest in the Property through a proprietary estoppel and/or de facto property settlement claim. I have not done this yet because of my medical issues, my inability to afford a private lawyer, my mistaken belief that my interest was protected by a caveat and my belief that David had finally accepted that the Property was mine.”
58In her outline filed before trial in June 2022, Ms Vinten repeated this statement. Almost two years after Mr Gentsis commenced the present application, Ms Vinten has failed to commence the foreshadowed application. It may not be unreasonable to conclude that no such application will ever be brought. Without attempting to go into any detail, it might be thought there are considerable negative factors relative to the success of any such application. The precise nature of the relationship between Mr Anderson and Ms Vinten remains uncertain. Ms Vinten seems to have made no contribution towards the acquisition or maintenance of the subject property. (cf Family Law Act, s90SN(4)) It is now seven years since the break-up of the relationship.
59Mr Felkel contended that aside from any of these considerations, the pendency, much less the foreshadowing of such an application, did not constitute a defence to a possession claim such as the present. He referred to Tight v Guo [2020] NSWSC 1567, a decision of Davies J of the Supreme Court of New South Wales. In that case, the plaintiff sought an order for possession against the defendant who, after the filing of the application in the Supreme Court, brought a proceeding in the Federal Circuit Court seeking an order relative to the subject property based upon a de facto relationship. The defendant ultimately conceded the making of an order for possession against her in the Supreme Court. Davies J was called upon to rule on the issue of costs. At paragraph 8 of the judgment, his Honour said:
“In the present case, there is sufficient authority that a defence to a possession claim based on a right to make a claim under either the Family Law Act or by reason of a de facto relationship does not constitute a defence to a claim for possession: Holder v Zeiher [2014] NSWSC 556; Wilkes v Bykowski [2016] NSWSC 1685. Similarly, and for similar reasons, there is ample authority that a claim of a right of action alleging a de facto relationship or some right under the Family Law Act 1975 (Cth) arising out of a marriage does not constitute a caveatable interest: Bethian Pty Ltd v Green (1973) FLR 11,579; Dykstra v Dykstra (1991) 22 NSWLR 556; Morling v Morling (1992) 16 Fam LR 161.”
60The foreshadowed application under the Family Law Act provides no defence to this proceeding.
Ms Vinten’s legal position
61I have held that Ms Vinten does not have an ownership interest in the property as donee under a gift or beneficiary under a trust. The Victorian Civil and Administrative Tribunal has held that she is not a tenant under an orthodox residential tenancy agreement. What, then, is her legal position?
62The best characterisation of her situation is as a tenant at will. According to Croft J and Messrs Hay and Virgona in their work Commercial Tenancy Law:
“A tenancy at will is terminable at the will of either party.” ([2.19] 74)
63The learned authors refer to a judgment of Parker J in Caltex Properties Ltd (in liq) v Love (1997) 95 LGERA 132, where the judge held that a provision in an occupancy agreement entitling the occupant to receive reasonable notice on termination was sufficient to exclude that agreement from characterisation as a tenancy at will for the purposes of the Western Australian limitation legislation. A tenancy at will, according to his Honour, was “determinable instanter”. In the run-up to the application to VCAT, Mr Anderson manifested a desire to determine Ms Vinten’s occupancy right, and that desire has been renewed by his successor, Mr Gentsis, in bringing the present application.
64Mr Gentsis is entitled to possession of the property.
Disposition
65I will direct the plaintiff to bring in short minutes to give effect to these reasons.
Costs
66I have heard no argument on costs, and so they will be reserved.
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