Giuseppe Catanzariti v Domenico Rocco Romano

GIUSEPPE CATANZARITI v DOMENICO ROCCO ROMANO & ORS
[2011] ACTSC 106 (1 July 2011)

EQUITY – gift of suburban house – undue influence – presumption of undue influence not established – undue influence not made out on the evidence – unconscientious dealing not made out – plaintiff entitled to be registered proprietor.

GIFTS – imperfect gifts – whether donor sufficiently armed donee to take legal title to property – donee given possession of Certificate of Title and signed transfer – gift complete – done entitled to be registered as proprietor.

Land Titles Act 1925 (ACT), ss 55, 57

Union Fidelity Trustee Co of Australia Ltd v Gibson [1971] VR 573
Farmers Co-operative Executors & Trustees Ltd v Perks (1989) 52 SASR 399
Whereat v Duff [1972] 2 NSWLR 147
Barclays Bank plc v O’Brien [1994] 1 AC 180
Johnson v Buttress (1936) 56 CLR 113
Wilton v Farnworth (1948) 76 CLR 646
Louth v Diprose (1992) 175 CLR 621
Corin v Patton (1990) 169 CLR 540
Milroy v Lord [1861-1873] All ER Rep 783
Scoones v Galvin [1934] NZLR 1004

No. SC 342 of 2006

Judge: Master Harper
Supreme Court of the ACT

Date: 1 July 2011

IN THE SUPREME COURT OF THE )
) No. SC 342 of 2006
AUSTRALIAN CAPITAL TERRITORY )

BETWEEN:GIUSEPPE CATANZARITI
Plaintiff

AND:DOMENICO ROCCO ROMANO as EXECUTOR OF THE ESTATE OF THE LATE FRANCESCO MARANDO
First Defendant

THE REGISTRAR-GENERAL OF THE ACT
Second Defendant

ROCCO MARANDO
Third Defendant

GIUSEPPE MARANDO
Fourth Defendant

ORDER

Judge:  Master Harper
Date:  1 July 2011
Place:  Canberra

THE COURT ORDERS THAT:

the solicitors for the plaintiff provide to the Master’s Associate and serve on the other parties draft orders in conformity with these reasons.
1. the further hearing be stood over to a date to be arranged for the making of final orders and for submissions as to costs.
This litigation concerns the ownership of a house in Fairbridge Crescent, Ainslie. The title to the property is registered in the names of Francesco Marando and Domenica Marando as joint tenants. Domenica Marando died in 1993. Francesco Marando died in 2005. They had migrated to Australia from Calabria in Italy in 1966. Two of their sons had already moved here, and one was living in Canberra.
Mr and Mrs Marando lived in privately owned rental accommodation for three or four years, until the house at Ainslie was allocated to them as a rental government house. In 1977 they were offered the opportunity to purchase the house from the Commonwealth on attractive terms, and they did so. They paid a small deposit, and by August 1988 had paid off the balance and discharged the Commonwealth mortgage.
They had four children: Rocco, now eighty; Antonio (Tony) aged seventy-two and still living in Italy; Giuseppe (Joe) aged sixty-seven; and Maria, now sixty-two. Rocco, Joe and Maria all live in Canberra. There are a total of twenty grandchildren. Maria’s married name is Catanzariti and she is the mother of the plaintiff. She also lives in Fairbridge Crescent, a few doors along and on the other side of the street from the property which is the subject of the action.
In August 1980, both Francesco and Domenica Marando made wills. Each left his and her estate to the surviving spouse for life or until remarriage, with remainder to Rocco, Joe and Maria in equal shares. Each will then provided that in the event of the spouse dying before the testator or within ninety days from the testator’s death, the first defendant, Mr D R Romano, solicitor, was to be executor, and the estate was to be divided equally between the four children on attaining their majority. Mr Romano and a secretary, presumably at his firm, witnessed each of the wills. Mr Romano certified that he had translated the wills to them in Italian and that they appeared to understand their nature and effect.
Domenica Marando having died during her husband’s lifetime, the effect of her will was to appoint her husband as executor and to give him a life interest (he did not remarry) with remainder to the children other than Tony. Probate of her will was never applied for: I infer that her assets were few and of little commercial value.
It is common ground that the effect of Francesco Marando’s will is to appoint Mr Romano as executor and to leave his estate equally to the four children. Probate of his will was granted to Mr Romano in July 2005.
Mr Romano appeared by counsel instructed by the successor to his old firm and was excused from further attendance other than in relation to costs. Mr Romano did not participate further in the hearing.
The second defendant is the Registrar-General, who appeared through the ACT Government Solicitor’s office and, having submitting to the order of the court, was also excused from further attendance.
The plaintiff’s case is that in about July 2004 his grandfather gave the Ainslie property to him, so that by the time of his death in the following year, the property did not form part of his estate. I infer from the whole of the evidence that apart from a small credit balance in a bank account, there were no other assets of any practical commercial value in the estate.
The plaintiff’s case is that his grandfather executed a memorandum of transfer, informed him where to find the Certificate of Title, and thus placed him in a position where all he needed to do was to pay stamp duty and register the transfer in order to become registered proprietor.
The plaintiff’s uncles, Rocco and Joe, were not initially parties but were added at their own request shortly after proceedings were commenced. They are the contradictors to the plaintiff’s claim.
Following the death of Domenica Marando in 1993, not only was there no application for probate, nor was any notice of death lodged with the Registrar-General. Notwithstanding this, a title search conducted in March 2003 by the plaintiff’s solicitors showed Francesco Marando as the sole proprietor. It is unclear how this came about. I assume that the Registrar-General became aware in some informal fashion of the death of Domenica Marando, and altered the Register despite the absence of an application by the survivor as is required by section 55 of the Land Titles Act 1925. No new Certificate of Title was issued to Francesco Marando.
A title search carried out in February 2009 showed the title in the names of Francesco and Domenica Marando as joint tenants. This reveals that in May 2006, the Register was corrected by the Registrar-General to change the “owner type” from sole to joint, and to add Mrs Marando’s name as a joint owner. The explanation related to the conversion of the Register from physical to digital form. It is a matter for speculation what course the Registrar might have adopted if a transfer signed by Francesco Marando had been lodged for registration prior to the correction of the Register in 2006. The registered proprietor’s counterpart of the Crown Lease or Certificate of Title was still in joint names. I cannot be sure whether the Registrar-General would have picked up the mistake and required its correction prior to registration of the transfer or whether the transfer might have been registered and the mistake not picked up.
When Domenica Marando died in 1993, she was eighty-two years of age and her husband was eighty-five. Until her death they lived in the Ainslie house. After his wife’s death, he moved into his daughter Maria’s house across the street. The plaintiff was then twenty-three and living at home, as were most of his sisters. He gave up his bedroom to his grandfather. The grandfather would go back to his own house after breakfast and would spend the day pottering in the house and garden and watching television. He would return to his daughter’s house for dinner at night and to sleep.
After the death of Domenica Marando, there was a serious rift within the extended family. The plaintiff looked after the funeral arrangements for his grandmother, paying the expenses from her funds. His evidence was that his uncles, Rocco and Joe, stopped payment on a cheque he had written for a headstone. The evidence of the uncles was that they discovered that their sister Maria had been taking advantage of her authority to operate her parents’ joint account to take money out for her own purposes. It is unnecessary for me to make any finding as to whether there had been any impropriety or unreasonable behaviour by any member of the family, still less to make any attempt to fix any blame for the rift on either side. It is common ground that from some time in 1993 after the death of Domenica Marando, Rocco and Joe barely spoke to Maria. The children seem to have taken the sides of their parents in the rift. Tony Marando, who still lives in Italy and never moved to Australia, seems to be on his sister’s side. Family members on the other sides were not thereafter included in family events in each case, such as weddings and baptisms. Rocco and Joe ceased to visit Maria’s house. Because Francesco was effectively living there, this meant that Rocco and Joe thereafter saw little of him. There is some difference in the evidence from the opposing camps about which it will be necessary for me to make some factual findings.
In 2000, the grandfather was struck by a milk van and knocked to the roadway, breaking his hip. After his discharge from hospital he was unable to go back to his own house, and spent his whole time at Maria’s house. Towards the end of 2000, the plaintiff moved into his grandfather’s house. His evidence was that his grandfather was worried about the house being broken into and items going missing. He was concerned that the house appeared unoccupied, and asked his grandson to stay there and look after the house, which would give him his own bedroom again and some privacy. Thereafter the plaintiff lived at his grandfather’s house until the latter’s death. The plaintiff would however frequently dine at his mother’s house in the evenings.
The narrative thus far is generally not in contest between the parties. To deal with the facts in issue, it will be necessary for me to summarise the evidence of the parties and their supporting witnesses relevant to the dispute.

The plaintiff’s evidence

The plaintiff is now about forty. He still lives at his grandparents’ house. For the last ten years he has been a security officer with the Department of Parliamentary Services. He has four sisters, the eldest of whom married and left home in late 1992. His recollection was that during his grandmother’s lifetime, his grandparents had invariably come to his mother’s home for special occasions such as Christmas, Easter and family birthdays.
He said that after his grandmother’s death, when he found that his uncles had stopped payment on the cheque for the headstone, he went to the Commonwealth Bank in Civic with his mother and his grandfather. They were told by a bank officer that the account, a joint account in the name of his grandparents, had been frozen. His uncles Rocco and Joe had told the bank that his grandfather was not competent and not of sound mind, and that the account was being mismanaged. He said that his grandfather was disgusted to hear this. He said that he could not believe that his sons had done such a thing to their father, to tell the bank that he was crazy.
The plaintiff said that his grandfather had been accepted within the family as head of the family and patriarch. He had been a strong and proud man, self-willed and opinionated. The plaintiff had spent a lot of time with his grandfather and they had had a good relationship. He had driven his grandfather about when necessary, and had spent much time sitting and talking with him.
His evidence was that his Uncle Rocco and Uncle Joe never visited his grandfather at his mother’s house and very rarely did so at his own house during the period after the death of his grandmother: perhaps once or twice a year. He said that his grandfather complained that his sons visited him so rarely. He often used to wait at his house after dark before coming down to his daughter’s house for dinner, in the hope that one of his sons might call to visit him.
After 1993, his cousins, the children of his uncles, rarely if ever visited their grandfather, and the plaintiff hardly saw them.
He said that his mother and his eldest sister attended to cleaning his grandfather’s house and his mother did his grandfather’s washing.
At some time after 1993, Joe’s son was married and his grandfather was not invited, which disappointed, upset and angered him. On another occasion his grandfather was not invited to the baptism of one of his Uncle Rocco’s grandchildren which again upset him.
The plaintiff said that throughout the years leading up to his death, his grandfather’s mental state remained excellent. He was “sharp as a blade”. He could remember things which had happened sixty or seventy years earlier.
The plaintiff said that his grandfather could read and write. His counsel tendered a number of books, magazines and brochures in the Italian language. The books were of bible stories with extensive illustrations. The books appeared to me to be aimed at older children rather than adults. The other publications were mostly from the Catholic Church. The plaintiff’s evidence was that these were brought around to his grandfather by their parish priest. His grandfather enjoyed reading and re-reading the bible stories, but I did not gain the impression that his reading skills were particularly advanced, even in Italian.
When his grandfather broke his hip in 2000, the plaintiff said he went to hospital in an ambulance with him, and stayed at the hospital during his days there. He acted as interpreter for his grandfather with hospital staff. He said that his grandfather was upset that his sons did not come to see him more frequently while he was in hospital. He was discharged with a walking frame. The hip fracture greatly reduced his mobility permanently. He came home to Maria’s house and spent most of his time either watching television, or sitting on the front veranda in the sun. He never went back to his own house again.
When his grandfather asked the plaintiff to move into his house later in 2000, he gave him the keys to the house, saying that if he wanted them back he would ask for them, and that at least he would know where the keys were. The plaintiff paid no rent but on his evidence paid the rates and electricity bills. He also paid to have trees cut back from powerlines on one occasion, and paid for some fencing, paving, and roof repairs.
In the first few months, his grandfather insisted on paying the rates. The plaintiff used to take his grandfather’s mail to him at his mother’s house. On one occasion, probably late in 2000 or early in 2001, the plaintiff said that he went around one day and said to his grandfather “Look, you know, this is stupid you paying the rates when I’m living there... How about I buy the house off you and... basically make this legal...?”. His grandfather had replied “Why do you need to buy the house? You’ve got the house. You’re in the house.” The plaintiff expressed concern that there was some animosity from his uncles and that they were likely to try to kick him out of the house. His grandfather replied “They can’t kick you out. I’m the one that put you there. What say do they have?”
The plaintiff said that his uncles “seemed to have a problem” with him being in the house. They used to come around and harass him. They would drive up and down the street past the house, or sit at the front of the house, or walk past and stop in front of the house. On occasions they would go into the back yard. The plaintiff would tell his grandfather about these incidents. His grandfather said “Look, if you don’t want them there, just lock them out. They’re not going to come into the house. Put chains and gates around the thing. If you don’t want them in the back yard, stop them from going in there.”
The plaintiff said that his grandfather would see his sons driving past from his position sitting on the front veranda of Maria’s house. Sometimes he would see them stop and go into his old house. It upset his grandfather to see his sons coming to inspect the house but not coming to visit him. He would say, for example, “What have I done to deserve this? What have I done that they can come this far and not go the extra step to see their father? They care more for the house than they do for me. They’re not worried about me, they’re worried about the house.”
The plaintiff said that after he moved into the house, his uncles would sometimes drive past two or three days in a row. Their visits were irregular but constant.
During 2002, the plaintiff had an accident at work, injuring his thumb. He was off work for about five months. He consulted a firm of solicitors, who acted for him in a claim for compensation. They are the solicitors he ultimately instructed in relation to the present action, and the firm still acting for him, although there have been changes in partners and individual solicitors within the firm over the years.
The plaintiff’s grandfather had other hospital admissions. In 2002 he was admitted to hospital with gallstones and pneumonia. The plaintiff stayed with him and acted as interpreter again. During that admission the plaintiff’s uncles Rocco and Joe visited their father, who appeared surprised to see them and was cold towards them.
On an occasion which to the plaintiff’s recollection was early in 2003, he had an argument with one of his uncles about what he described as constant harassment. He told his grandfather about it. He said that it was clear that his uncles did not want him in his grandfather’s house. His grandfather said “Well, that’s too bad, what they want and what they don’t want. I’m the guy that put you in there. I want you in that house. If they don’t want you in the house they should have come to me and talked to me about it.” The plaintiff said that he replied to his grandfather “Yes, but you’ve got to understand, these are your sons. They have a right to the house.” His grandfather then said “No. They stopped being my sons a long time ago. If it will make you feel better, go to my house, get the papers, the deeds to the house. They’re in the cupboard. Come back with the papers, the receipts, and no-one can touch you. They’ll never kick you out.” He said that his grandfather told him to go to a brown cupboard in the middle bedroom, where he would find all of the important papers.
The plaintiff went to the cupboard and saw a folder for the papers. He took it back to his grandfather. His grandfather looked at the papers and said “These are the deeds to the house. These are the deeds that basically who owns these papers owns ownership to the house. Now you’ve got the papers, you’ve got the keys. Who’s going to kick you out? Nobody.” The plaintiff took the folder of papers back to his grandfather’s house where he put them in a Filofax in which he kept his own papers.
I interpose that the evidence is that the plaintiff’s grandfather did not speak English, so that the evidence about these conversations is to be taken as a translation, which I do not treat as a verbatim translation of the plaintiff’s recollection of what was said.
The plaintiff said that some time thereafter, he saw a solicitor at the firm he had consulted about his compensation claim, and instructed the solicitor to prepare a transfer. He took the transfer home and put it in his Filofax with the other paperwork. He took no immediate steps to have his grandfather execute it, because he did not see that there was any urgency about the matter. He was not in a strong financial position and did not have “the money to pay for the transfer and whatnot”.
On the plaintiff’s birthday in May 2004, his Uncle Rocco had come to the back yard of the grandfather’s house. He was in an aggressive mood. He said that he owned some timber which had been left at the house, which he wanted to collect. The plaintiff told his uncle that he was unaware of any such timber, and said that if it had been there it had probably been scrapped and disposed of.

The plaintiff said that he found the experience upsetting and unnerving. He went on the same evening to his mother’s home for a dinner for his birthday. His parents, grandfather and sisters were there. He told them all about his experience with his uncle. He asked his grandfather if he knew about any timber belonging to his uncle, and his grandfather said he was unaware of any such thing. His grandfather sought to calm him down. He said “I’m not worried about them. Why should you be worried about them? I put you in there. They’re not going to take you out. It’s just got nothing to do with them. Why do they keep hassling you?” The plaintiff then mentioned to his grandfather that he had had the transfer documentation prepared. He said that without a signed transfer he thought that he still had a problem with his uncles. His grandfather then said “Well, if that’s all you’re worried about, go and get the papers and I’ll sign them.” The plaintiff did not do so immediately.
During July 2004 his Uncle Rocco came on to the property again. He told the plaintiff that he did not want him in the house. He wanted him off the property. The plaintiff went home to his parents’ house for dinner later on that day. After a further conversation, his grandfather said “Do you need the paper signed? Go get the paper and I’ll sign it now.” The plaintiff went back to the house and took the transfer out of his Filofax. He brought it back to his grandfather. He asked his sister’s husband, Davide Roberto, to witness their signatures. By that time, his grandfather was in the bedroom. He and Davide went into the bedroom with the transfer. The plaintiff’s evidence is that he said to his grandfather “This is the paper. This is the transfer to the property. This is the paper that puts the house in my name. If you’re happy to do that then sign here.” Davide went and got a pen. The three then signed the transfer. The plaintiff took it back and put it in his Filofax. He did not take any steps to register the transfer before his grandfather died.
After his grandfather’s death in March 2005 the plaintiff went back to the solicitors. He took the transfer and another document which he thought was the title deed for the house. In fact it was a copy of the Commonwealth mortgage, long since discharged. The solicitor explained the difference to him. The plaintiff went back to the cupboard where he had found the other documents, and had a more thorough look in the top drawer. In the process he found other documents, including what he described as the actual deeds to the house. He took these documents back to the solicitors. The solicitors were unable to register the transfer because by then a caveat had been lodged.
A title search in evidence discloses that on 4 July 2005, a caveat was lodged by the plaintiff. This was withdrawn and another caveat lodged by the plaintiff on 26 September 2005. Later on that same date a caveat was lodged by the first defendant as executor appointed under the grandfather’s will. I note in passing that these caveats were lodged at a time when a search would have shown the grandfather as sole proprietor: the register was not corrected until May 2006.
In cross-examination, the plaintiff said that his compensation claim had ultimately been resolved to his satisfaction. Later, between 2004 and 2006, the plaintiff suffered from depression and was off work for two and a half years. He became a recluse, staying in the house. He had elevated blood pressure, ulcers and insomnia. He received sick pay. He volunteered that he had had to go to “the Tribunal” about his depression claim, where he attended a “table conference”. It was apparent to me during this part of the plaintiff’s evidence that he had little or no understanding of the difference between sick pay and Comcare compensation.
It was put to him in cross-examination that in the light of the rift in the family, it was hardly surprising that his uncles had not visited their father whilst he was living at Maria’s home. He said that his mother’s family had made it clear that if they wanted to visit, all would be done to make this possible and comfortable. It was made clear to the uncles that the rest of the family were willing to leave the house if this was their preferred course. The plaintiff denied counsel’s suggestion that Rocco had called to visit his father almost every afternoon after work between 1993 and 2000, and also denied that Joe would visit his father quite often on weekends.
The plaintiff conceded that he did not tell either of his uncles that he had the signed transfer between the dates of its signature and his grandfather’s death, although their attendances at his grandfather’s house continued during that period. He described this as continuing harassment.
He also agreed that he had been made aware by the solicitors that stamp duty would have to be paid before the transfer could be registered. Stamp duty was ultimately assessed at $13,900.00 in 2006. Before that he had only a rough idea of what the stamp duty might be.

The supporting evidence in the plaintiff’s case

Davide Roberto is the husband of the plaintiff’s sister, Giulia. He is a bricklayer. He started taking Giulia out in 2000. They became engaged early in 2004 and were married in October 2005. Mr Roberto moved into Maria’s house in about March 2004. He and his wife lived there until February 2007. Mr Roberto generally confirmed the plaintiff’s evidence about the plaintiff’s grandfather. He said that during the time he visited and later lived at Maria’s house, he never saw or heard of either Rocco or Joe visiting their father. Nor did they telephone, the only telephone calls he received being from their brother Tony in Italy. There were telephone conversations with Tony generally every Sunday. He recalled one of Rocco’s children, Maryanne, visiting her grandfather about twice a year. He could not recall any of Rocco or Joe’s other children ever visiting. He said that Maria had treated Maryanne in a hospitable manner.
He remembered Rocco and Joe visiting their father at the hospital on one occasion, after he had broken his hip in 2000. He was also present at the hospital about two weeks before the grandfather died. His evidence was that the grandfather “wasn’t too enthusiastic to see them”. He said words to Rocco to the effect “You never come to visit me. Now that I’m in hospital you come to visit me.” He said that Joe was also in the room, and seemed to be smirking. The grandfather turned to Joe and said “I haven’t started with you yet. Your children have gotten married. You don’t invite me to their weddings. You’ve had grandchildren that have been baptised. You haven’t invited me any of these family occasions.” He then turned to the two sons and said that he never wanted to see either of them again.
His evidence was that on an evening in July 2004, the family were having dinner when the plaintiff walked into the house quite distressed, saying that Joe was at his grandfather’s house and taking timber, or something similar. Mr Roberto translated what the plaintiff was saying into Italian for the grandfather’s benefit, whereupon the grandfather appeared annoyed and said “Well, he can go down to my house to take things that aren’t his but he can’t ever come and visit me.” He then said to the plaintiff “Can you please go and get and sort out these papers in regards to [sic] the transfer of the house.” The plaintiff then went out and returned with some documents. By this time the grandfather had gone into the bedroom and was sitting on the bed with a doona over him. The plaintiff asked Mr Roberto to come into the room to witness their signatures. The plaintiff explained that these were the transfer papers for the house, which the grandfather already knew. Mr Roberto left the room to get a pen, and the grandfather signed the transfer. The plaintiff also signed and Mr Roberto witnessed both signatures.
The plaintiff’s mother Maria gave evidence with the assistance of an interpreter. Her evidence was consistent with that of the plaintiff and generally supportive of him. She gave evidence of her father’s reaction at the bank after her mother’s death when she explained to him that the bank officer had said that his sons Rocco and Joe had been to the bank and had said that he was not mentally fit. Her father became very angry and asked how his sons dared to say such a thing.
On a subsequent occasion, Rocco proposed that his father go into a nursing home. Maria was strongly opposed to this, and said that her father was quite disturbed at the suggestion.
She said that after 1993, Rocco came to visit his father once or twice a week but Joe never came. Joe’s wife had perhaps cleaned the house on one occasion. She denied that there were any visits to her father by Rocco’s children after 1993 to see their grandfather. Once or twice Joe’s daughter, Rosa, had visited but his other children had not done so.
At some time between 1993 and 2000, one of Rocco’s sons was married. The day before the wedding, the son came to Maria’s house to invite his grandfather to the wedding. The grandfather declined, saying that this was not a proper invitation, coming the night before the wedding, and did not show proper respect. He refused to attend.
On occasions, Maria had suggested to her father that perhaps he could go to visit his sons. He never accepted the suggestion, taking the view that respect was due from the sons to the father and not the reverse. She confirmed that after 2000, both Rocco and Joe would go to their father’s house, once and sometimes twice a week, but that they would never come to her house to see their father. Her father was aware of the visits and was angry that they did not come to see him.
She confirmed the plaintiff’s evidence as to the conversations about the plaintiff moving into his grandfather’s house, and the subsequent signing of the transfer.
It was put to her in cross-examination that her niece Maryanne had visited her grandfather at Maria’s home on many occasions and had been made to feel unwelcome. She denied this. She said that Maryanne had visited only once and had been treated in an appropriate matter.
Mima Vahala is the second child in Maria’s family (the plaintiff is the eldest). Until she married in 1993 she lived with her parents. After she married and moved out she continued to visit her grandfather regularly, and helped her mother to clean his house. She maintained contact with her Uncle Rocco, and had a good relationship with her Aunt Sarah (married to Joe) until about 2003. When her grandfather was in hospital she telephoned both uncles or their families to let them know and to ask them to visit him. She also said to her Aunt Sarah that if she wanted to come to Maria’s house to see her grandfather but felt uncomfortable about Maria’s family being there, she would arrange for them to go out. She agreed in cross-examination that her grandfather had been a stubborn man. He could, if he had wished, have visited his sons and their families but did not do so, saying that they did not want to see him, and he did not see why he should go and see them.
Giulia Roberto is another daughter of Maria, and now the wife of Davide Roberto. She was born in 1980, so would have been thirteen when her grandmother died and her father moved in to dine and sleep at her home. She left school in 1997 and obtained diplomas in tourism, hospitality and marketing. Her evidence was highly supportive of the plaintiff. She was present and confirmed the conversations between her brother and her grandfather, firstly about moving into his house in 2000, and later in 2003 about giving the plaintiff his house. She said that her grandfather told her that he wanted her brother to have the house. She asked him why. He said that her brother was his only male bloodline left. His sons did not regard him as their father, so they were not his sons. Their sons were not any longer his grandchildren.
She said that it was known within the family that her grandfather had given the former family home in Italy to her Uncle Tony so that there was no expectation on anyone’s part that Tony would be left any interest in the house in Canberra.
Ms Roberto said that she had seen her uncles Rocco and Joe go to their father’s house. She had seen them get out of the car and “potter around”. This greatly upset her grandfather. He was angry that his sons could make the effort to go to his house but would not come and see him.
She said that after 2000, her cousins (Rocco and Joe’s children) rarely if ever visited their grandfather. When they came, her mother treated them with respect and warmth, and Ms Roberto did likewise.
She recalled a number of conversations with her grandfather during 2003 and 2004 in which he confirmed his intention that her brother was to have the house. Early in 2004, he told her that he was giving her brother the house. She was present at the conversation when he sent her brother to his house to get the title deeds.
She was also present at her brother’s birthday dinner in May 2004 when he came into the house saying that his uncles had been there and had taken tools and timber from the shed. She remembered her grandfather saying that they had no right to go into the shed and take property. She recalled him saying “I can’t believe they can go there and steal my things but they can’t come and visit me.”
She recalled a similar incident a couple of months later during 2004 when her grandfather said to her brother “Go get those titles. I’ve had enough of them coming and doing as they please. Nothing there belongs to them. Let’s get this sorted.” (Again, I take account of the fact that her grandfather spoke Italian and not English, and that her evidence of conversations cannot be taken as verbatim for that reason alone.)
She remembered her grandfather being very upset at not being invited to family weddings and baptisms involving Rocco and Joe’s children and grandchildren.
Ms Roberto was also present and confirmed the plaintiff’s evidence about the incident at Calvary Hospital when her grandfather scolded his sons Rocco and Joe and told them to leave, saying that he did not want to see them again. They left and he did not see them again. She recalled her grandfather turning to them after they had left, and saying “I’ve been waiting a long time to get that off my chest.”
Inconsistently with her mother’s evidence, Ms Roberto was definite that her Uncle Rocco hardly ever visited her grandfather after 1993.
She denied that she was trying to help her brother, and denied that she had talked much about the case to him over the years. Specifically she denied that she had talked to her brother about the conversations with her grandfather. Her evidence, in addition, was that she had not read her brother’s affidavits or any other affidavits in the case. She said that she was unaware that her cousin Rosa had sworn an affidavit in which she had said that she visited her grandfather but was confronted by hostility from Ms Roberto. She denied that she had shown any hostility to her cousin, who she said had visited her grandfather only on one occasion but had always been welcome.
It was put to her that another cousin, Maryanne Drinkwater, had said in her affidavit that Ms Roberto “was always the most hostile and aggressive of Maria’s children... she seemed to be like Nonno’s guard and was relentless at keeping us away from him.” She denied this. She also denied an assertion by Ms Drinkwater that she had called her a few days after a visit and was rude and aggressive, telling her that she was not welcome at their home. She recalled a telephone call from Ms Drinkwater which she answered, and said that both she and her mother were more than happy to have her come to the house to visit her grandfather.
Ms Roberto had sworn a lengthy affidavit but did not mention in it the conversation with her grandfather about his male bloodline, or Rocco and Joe not being his sons and their sons not being his grandsons.
Ms Roberto gave her evidence in a forceful and definite manner. I had the impression that she was motivated to assist her brother’s case, and perhaps even more strongly motivated to stand up for her side of the family against the other side in the rift. I did not gain the impression that she consciously exaggerated or embellished the truth in giving her evidence but I treat it with some reserve nevertheless.
Franca Field is another sister of the plaintiff. She is about a year younger than Giulia Roberto. She was twelve when her grandmother died in 1993. She is now a golf and events manager. She works with Giulia at a golf club at Gunghalin. Like her sister, she did not recall any visits to her grandfather by her uncles Rocco or Joe after 1993. She never saw her Aunt Sarah (Joe’s wife) or cousin Rosa doing any housework at her grandfather’s house after 1993. She gave evidence generally supportive of her brother and consistent with her sister Giulia’s evidence. She recalled the occasion when her grandfather sent her brother to get the deeds to the house, and she recalled being present during the incident at the hospital when her grandfather upbraided his sons Rocco and Joe and told them to leave.
Ms Field confirmed her sister’s evidence to the effect that her uncles and cousins were welcome in her parents’ home while her grandfather was alive.
Another of the plaintiff’s sisters, Rosa Catanzariti, gave evidence. She was born in 1977, and was about sixteen when her grandmother died. She left school in 1995 and has worked as a beauty consultant and receptionist. She was also present for the hospital incident, and otherwise generally gave evidence consistently with her sisters and supportive of the plaintiff.
Her evidence was that on the rare occasions when her cousins visited her grandfather at her home, they were made to feel welcome and offered a drink or a biscuit. Her sister Giulia always made her cousins feel welcome.
Both she and her sister Franca Field appeared to conflate in their evidence the two incidents at their home, the first when their grandfather sent the plaintiff to his house to bring back the title deeds, and the second incident when he signed the transfer.
Counsel for the third and fourth defendants tendered a copy of the Canberra Hospital records relating to the plaintiff’s admission in October 2002 following a fall in which he injured a hip and was unable to weight-bear. The hospital records are extensive. They include the results of an application of a simple test of orientation and mental state, in which the grandfather did poorly. I am by no means satisfied by this that there was any mental deficit which might have affected his capacity to know what he was doing or to understand in general terms what was going on when he signed the transfer. No expert medical opinion evidence was called, and I generally accept the evidence of the plaintiff and his family members about his grandfather’s mental state.
An affidavit of Mr K M Cush, principal of the firm Ken Cush and Associates from 1998 to 2007, was read and is not challenged. Mr Cush says that in about March 2003 the plaintiff attended at his office. Mr Cush saw him initially about an unrelated matter (presumably the Comcare claim). The plaintiff then told him that his grandfather had a house in Ainslie that he had given to him, and that he needed to get whatever legal documents were required to make it formal. Mr Cush said that he would attend to this, and arranged a title search and the preparation of a transfer. Some days later he gave the plaintiff the draft transfer, but received no further instructions about the matter until June 2005.
Also read without objection or challenge was a brief affidavit of the plaintiff in which he said that in May 2006 his solicitors lodged the transfer with the ACT Revenue Office for assessment of stamp duty. Duty was assessed at $13,900.00 plus interest up to then of $1,138.35. The plaintiff instructed his solicitors to write to the Revenue Office asking that the assessment of duty be withdrawn pending the outcome of the present proceedings.

In February 2009, the executor, Mr Romano, received a letter from Antonio Marando in Italy. It is common ground that the letter was from the brother of the third and fourth defendants and uncle of the plaintiff. The letter has been translated into English. I have excluded parts of it from the evidence on objection by senior counsel for the plaintiff. The remaining portions read:
Dear Mr Romano
I am writing to you as you are the executor of my father’s will and I am a beneficiary.
. . . (reference to the plaintiff and his mother)
Given that this family took care of my father’s health and all of his needs until his last days, I, as a legitimate heir, DO NOT WISH TO OPPOSE this order, so that my father’s last wishes can be respected.
. . .
I returned to Italy at ease, having seen my father’s condition (and knowing that my sister and her children were always near him).
. . .
I hereby also declare that if it becomes necessary to sell my father’s property (because of opposition on the part of my brothers’ families, who do not respect my father’s wishes) I want to be kept informed regarding the proceeds of the division of the inheritance as a legitimate heir, even though I am living in Italy.
. . .
There is no need to respond to this letter; I am writing to you only as a matter of courtesy.
Best regards
Antonio Marando

Evidence of the third and fourth defendants

Rocco Marando was born in 1931 and is almost eighty. He first came to Australia in 1960. He initially lived at Griffith in New South Wales. He moved to Canberra in 1973. By then his parents had come to Australia and were living in Canberra, as was his brother Joe. He has seven children in all: four boys and three girls. The eldest four were born in Italy and the youngest three in Australia. Their ages now range from forty-four to fifty-six. Rocco worked in Canberra for the ACT Electricity Authority until 1989 when he stopped work on compensation.
His evidence was that his father had worked for Parks and Gardens in Canberra, retiring at the age of seventy, apparently having put his age back when he started the job. His father was born in 1907 so would have retired in 1977 or 1978.
He said that his mother was the head of the family and the boss, and that she controlled everything. His father grew vegetables and worked in the garden but did little else. His father, he said, could not read or write. His mother could read and write in the Italian language but not in English.
He said that he had had a normal relationship with his sister Maria before his mother died, but that it had changed completely afterwards.
He said that his father had been in receipt of a pension from Italy, the payments going to a bank account in Canberra. He also received an Australian age pension. The Italian pension paid about $700.00 per month, more than the Australian pension. After his mother’s death there was a disagreement about the money in the account. He and his brother went to the bank and had the account frozen so that his sister would not be able to draw money from it without their agreement. He thought that she had been taking money for her own purposes, including playing poker machines. He conceded that this action had “started the Second World War” between them.
He said that during the period between 1993 and 2000, his father used to comment about the plaintiff to the effect that he was not very capable and not able to do much. He used the expression “good for nothing”.
Rocco said that he visited his father every day after 1993. He would go to the shops and buy things for his father.
He said in answer to a question that sometimes his father remembered things from long ago but did not remember things which had happened recently. It was not clear to me what period of time Rocco was talking about in this regard.
After the falling out with Maria, she told him that she never wanted to talk to him again. He did not go to her house to see his father because she did not want him there. Furthermore, he no longer liked his sister and did not want to go there.
There was an occasion when he made an offer to his father to come and live at his house. The house, at Downer, was a two-storey house. His father declined the offer. This was prior to his hip fracture in 2000.
He went to see his father in hospital with his broken hip but they did not talk to each other.
In about 2001, he saw his father at a club in a wheelchair playing a poker machine, and talked to him for the last time.
He paid visits to his father’s house “just to double check”. There was an occasion when the plaintiff told him to go and not to come back to the property.
On an occasion after the death of Rocco’s father, the plaintiff bought him a beer at a hotel. This had never happened during his father’s lifetime.
In cross-examination, he denied that his father had been a strong-willed person. He said that his father had been scared of Maria and had done what he was told by her.
The incident at the hospital was put to him. He denied that it had happened. He said that his father could not have said such a thing, because he was close to death and unable to speak at all. If other witnesses had given evidence about such a conversation, it was completely untrue.
Giuseppe (Joe) Marando next gave evidence. He was born in 1943 and is now sixty-eight. He came to Australia at the age of nineteen, living initially at a hostel in Canberra. He went back to Italy in 1970 to get married, and then returned to Australia. He has four children, born between 1972 and 1975.
His parents came to Australia in 1966, living with his sister Maria in a rented house in O’Connor until they were allocated a government rental house, the property at Ainslie. Joe was later allocated a government house in O’Connor some time after he was married. He now lives at Florey and works as a plasterer. Asked who was the “boss around the house” as between his mother and father, he said that he thought his mother was “really a bit more bossy than my father”. His father did not know much about money and his mother managed everything. His father had had no education.
Joe’s relationship with Maria had been good prior to his mother’s death, but after he and his brother froze their parents’ joint bank account in 1993, they did not speak any more and have not been friends since. This meant that he and Rocco were unable to visit their father who was by then living at her home. He said that his father had been happy that he and Rocco had frozen the bank account, saying “you done good”.
He said that between 1993 and 2000 he visited his father at his home three or four times a week. He would attend to chores such as fixing the lawnmower and pruning trees. This would usually be after four in the afternoon on weekdays, and in the mornings on weekends. His children all came to help clean the floor, and his wife “went most of the time too” to help clean the house.
After his father broke his hip he moved out of the house and lived permanently with Maria, and the visits came to an end. He spoke of one occasion when he had gone to Maria’s house and they had not opened the door. He and his brother always visited their father when he was in hospital but could not go to see him at Maria’s house. When they visited their father in hospital, they would see Maria and her children but would not speak to them.
He said that his father’s memory became unreliable towards the end of his life. On one occasion he had confused Joe’s daughter with his wife.
He said that his father had always been invited to weddings and similar events in his family, but had not come because he was “scared of Maria’s reaction”.
He was asked whether his father had ever spoken to him about the plaintiff. He said that his father had been critical of the plaintiff, saying that he did not like work and was always bludging, working one day but not going back the next day.
He said that he had also asked his father to come and live at his house if he wished to do so, but his father declined, saying that he would like to stay in the same street where he had lived for so many years.
Joe denied that his niece Mima had telephoned to tell him and his wife and daughter that they were welcome to visit his father, and that if necessary, Maria and her family would go out while they did so.
Joe was cross-examined about a tape recording accompanied by a note in his handwriting which was sent to Maria in December 2006. The tape is not in evidence. It was a recording of a conversation between the deceased Francesco Marando and his wife’s brother, Tony Catanzariti. The recording was made much earlier than 2006 but the evidence is inconclusive about when it was made. Joe said that the recording was given to him by his uncle Tony Catanzariti (Catanzariti was the maiden name of Domenica Marando, the wife of Francesco Marando. The evidence is that she and her brother are and were unrelated to the plaintiff’s father, Frank Catanzariti, and that the fact that the surnames are the same is purely coincidental).
Apparently the tape records a conversation in which both participants were very critical of Maria. Joe conceded that the tape included “lots of dreadful things about Maria and about the money” which he says she misappropriated. He made some copies, sending one to Maria and one to his brother Tony in Italy. It was put to him that he made a lot of copies and sent them to other people too. He seemed to accept this, saying that he did it “because they no respect my father”. He also conceded that the note which he prepared to accompany the tape contained an assertion that Maria was illegitimate, fathered by someone other than his father. He agreed that he had sent the tape after the proceedings had been commenced. Senior counsel for the plaintiff put to him that his purpose in doing so had been to intimidate and embarrass Maria in the Italian community. His answer was “Well I should do that to her because that’s what she’d done... she should not do that to me.”
The supporting evidence for the third and fourth defendants
Rosa Preziosa is the only daughter of Joe Marando. She lives in Sydney and is an office manager. She is married with three children. She lived in Canberra until 2002 when she married.
She said that she and her mother went nearly every weekend to her grandfather’s house after her grandmother died, to clean it, and make sure that he had clean clothes and food in the refrigerator. Asked why they would need to do that when he had his daughter living across the road, she replied “Well, she obviously wasn’t doing it, so...” This continued until the grandfather moved in with Maria. She said that during this period her grandfather’s hearing was deteriorating, and on a couple of occasions he confused her with one of her cousins.
She continued to visit her grandfather after he moved into Maria’s house, though not as often. Her evidence was that she received a somewhat frosty reception from members of Maria’s family. On two occasions she went to the house with her parents to see her grandfather, but the family did not open the door although she could hear voices in the house.
She said that on one of her visits her grandfather said that Maria had brought him a piece of paper and told him to sign it. He thought that it had something to do with her grandmother’s funeral. The witness thought that it may have been a bank withdrawal slip. She thought that this happened after her marriage. I note, however, that her marriage did not take place until some nine years after her grandmother’s death.
In cross-examination, Ms Preziosa agreed that she hated the plaintiff, and that she had said some hateful things about him in her affidavit (she did not give any evidence which could be characterised in that way in chief).
Similar evidence was given by Maryanne Drinkwater, Rocco’s fifth child. She married in 1991 but still lives with her family in Canberra. She gave evidence of a conversation with her grandfather when he was living at Maria’s house, in which he said the plaintiff was useless in the garden, would not know what to do and did not even get out of bed in the mornings. He asked her to get her father to go and have a look at his garden, pick the figs, and do some watering. On another occasion he said in her hearing that the plaintiff never seemed to keep a job for very long.
She said that on occasions when she visited her grandfather at Maria’s house, Giulia Roberto would sometimes open the door and would behave in a cold and unfriendly manner.
Evidence was also given by Domenica Marando, fourth child of Rocco. She was born in Italy in 1960 and came to Australia with the family, moving to Canberra when she was about twelve. Her evidence was to the same effect as her sister Maryanne.
Briefer supporting evidence was given by Rocco’s elder son Frank Marando and another of his daughters, Silvana Barisic, and by Giuseppe Marando junior, one of Joe’s sons.
A valuation of the property was commissioned by the solicitors for the third and fourth defendants in March 2009. The valuer, Mr Whitman, valued the property at 17 March 2005, the date of the grandfather’s death, at $360,000.00 and in March 2009 at $435,000.00. His valuation report contained a number of photographs of the property, confirming his opinion expressed in the report that the house was at that time in particularly poor order, requiring complete repainting, minor repairs and the original appointments brought up to an acceptable modern standard. He described the grounds as being in very poor and generally unmaintained condition although a vegetable garden had been looked after at the rear. There were eleven cars, most of them appearing to be inoperable, parked on site at the time of the inspection. It was evident that the property had not been maintained for many years. He referred also to the paling fence and shed being in poor condition. He said that the house was of the type known as a Riley Newsom, and was of vertical weatherboard with a low-pitched metal roof. He considered that the highest and best use of the block was for demolition and redevelopment with a “new substantial upmarket dwelling”.

Consideration of the evidence and factual findings

Much of what happened is not the subject of disagreement between the parties. The factual dispute is largely as to emphasis.
I thought that a number of the witnesses, probably subconsciously rather than consciously, coloured their evidence, perhaps in part to favour the case of the parties for whom they were giving evidence but probably to a greater extent simply because these are recollections of happenings within a family in which there has been a serious rift, where emotions have run high. It is hardly surprising that individual family members will recollect events from their personal perspective.
An example of this is that members of Maria’s family gave evidence that she, and they, welcomed Rocco and Joe and members of their family to Maria’s home for visits to the grandfather, whilst the visitors gave evidence from their recollection that they were made to feel most unwelcome. I am sure that there is an element of truth to both versions, and that the difference is largely explicable in terms of the recollection by each of the individuals of the events from their subjective viewpoint.
One thing that is clear from all of this evidence is that in later years Rocco and Joe did not visit their father. I accept generally the evidence that there were many occasions when they went to his house and looked around the block of land but did not go to visit him at Maria’s house. I accept that on some of these occasions their father saw them and became upset and angry.
I accept the evidence that the grandfather was very upset and annoyed when he found out, after his wife’s death, that his sons Rocco and Joe had frozen their joint bank account and in doing so had told the bank that he was mentally unsound. With that background, it is hardly surprising that he became badly disposed towards them, and better disposed towards his daughter Maria, who lived across the street from him and provided him with his dinner every night, a bedroom and bed, and a family environment in which to spend his evenings.
The evidence does not enable me to arrive at any view, nor am I required to do so, on whether Rocco and Joe’s suspicions about Maria misappropriating money from her parents’ bank account had any justification. There is nothing to suggest that her father at any time had any such suspicions about her, other than Joe’s evidence (“you done good”) which I do not accept.
I accept generally the evidence about what the grandfather said in the company of Maria’s family when informed that Joe and Rocco had been at his house. It is not necessary for me to make any finding as to whether either of them ever took anything from the house which they were not entitled to, nor does the evidence enable me to come to any view about that. The evidence does however enable me to find that the grandfather believed that one or both of them had done so, and that they were effectively acting in concert in their own interests and against his.
In all of the circumstances it seems to me entirely plausible that the grandfather might have arrived at a decision where he wished to give his house to the plaintiff, his only grandson in Maria’s camp. I accept that he and his wife had decided not to leave anything to their son Tony or his family in Italy, because they had given him their house when they moved to Australia. I think that the provision in the will which resulted in Tony becoming entitled to a quarter interest in his father’s estate did not reflect their wishes and probably arose from a drafting mistake.
It seems to me credible that the grandfather may have wished to favour males over females among his grandchildren, and that he may have seen Rocco and Joe’s sons as reasonably excluded from consideration because of the behaviour of their fathers. All things considered, it seems to me entirely credible that the grandfather may have made a rational decision for what seemed to him to be good reasons, to give his house to the plaintiff.
The evidence about the condition and value of the property may be of some relevance to the issues I have to determine, principally from the perspective of how much some of the parties have to gain or lose depending on the outcome of the action. I can probably take judicial notice of the fact that at the time of the valuation in March 2009 the residential real estate market in Canberra appeared to be rising, but that more recently there has been a levelling and an apparent reduction in sales volumes. I cannot infer that the present value of the property would be much different to its value in March 2009. If it were to form part of the grandfather’s estate, it would have to be sold and the proceeds divided between the four children who are beneficiaries under his will, providing, after agent’s commission and other expenses, something in excess of $100,000.00 each.
The support of Maria and her daughters for the plaintiff’s case can accordingly be seen as against their financial interests although it might be argued that this is offset by their possible wish to see the house go to a member of their part of the family, with no benefit going to the other side of the family in the rift. The letter from Antonio in Italy is undoubtedly against his interest.
It clearly very much in the plaintiff’s financial interest for his claim to succeed. It is in the financial interests of Rocco and Joe for the plaintiff to fail.
Notwithstanding his financial interest in succeeding, I assessed the plaintiff as generally an honest and truthful witness. He did not come across as particularly financially sophisticated. I am satisfied that he did not take advantage of his grandfather’s senility or lack of education or worldliness in order to gain for himself a financial benefit at the expense of other members of his extended family. I am satisfied that the grandfather knew what he was doing when he signed the transfer, and that it was his intention to give his house to his grandson in the knowledge that the house was his only asset of substantial value. I am fortified in coming to this conclusion by my acceptance of the evidence that the plaintiff’s mother, Maria, and his brother-in-law, Davide Roberto, at least, were well aware that the grandfather intended to give the house to the plaintiff and understood that the effect of signing the transfer would be to give title to the property to the plaintiff. They and the other members of the family present on the night the transfer was signed clearly accepted what was happening and took no steps to intervene, either by seeking to talk the grandfather out of what he intended to do, or by remonstrating with the plaintiff that he was taking advantage of his grandfather.

I am also influenced by the knowledge that the grandfather lived on at Maria’s house for another seven months or so before his final admission to hospital and death. I accept the evidence that during that period he remained lucid and reasonably in possession of his mental faculties considering his age. The fact that he said and did nothing during that period to revisit or reopen the transaction is to my mind sufficient answer to the submission of counsel for the third and fourth defendants that the decision to give the house to his grandson, and the subsequent decision to call for and sign the transfer, were made in the heat of the moment in response to complaints by the plaintiff about harassment by his uncles.

Submissions as to the applicable law

Counsel for the third and fourth defendants made closing submissions which can be summarised as follows:
a)   The deceased did not intend to give the property to the plaintiff, and hence there was no gift.
b)   The deceased did not adequately arm the plaintiff so as to enable him to take the property. Equity will not intervene to perfect such a gift.
c)   If there was a gift, it should be set aside on the ground of undue influence or alternatively of unconscionable conduct.
I have already explained that I am satisfied on the evidence that the deceased intended to give the property to the plaintiff.
As to undue influence, counsel for the third and fourth defendant first submitted that undue influence should be presumed from the fact that there was a relationship under which the deceased generally reposed trust and confidence in the plaintiff, relying on Union Fidelity Trustee Co of Australia Ltd v Gibson [1971] VR 573 at 577 and on Farmers Co-operative Executors & Trustees Ltd v Perks (1989) 52 SASR 399 at 404. Such a relationship raised a presumption of undue influence. A transfer between persons in such a relationship should be set aside without need for proof that the donee exerted actual undue influence or otherwise abused the trust and confidence reposed in him: Whereat v Duff [1972] 2 NSWLR 147 at 168; Barclays Bank plc v O’Brien [1994] 1 AC 180 at 190.
Counsel relied on the familiar passage from the judgment of Dixon J in Johnson v Buttress (1936) 56 CLR 113 at 134-135 to the effect that the presumption of undue influence rests upon a principle which:
applies whenever one party occupies or assumes towards another a position naturally involving an ascendancy or influence over that other, or a dependence or trust on his part. One occupying such a position falls under a duty in which fiduciary characteristics may be seen. It is his duty to use his position of influence in the interests of no-one but the man who is governed by his judgment, gives him his dependence and entrusts him with his welfare. When he takes from that man a substantial gift of property, it is incumbent upon him that it cannot be ascribed to the inequality between them which must arise from his special position. He may be taken to possess a peculiar knowledge not only of the disposition itself but of the circumstances which should affect its validity; he has chosen to accept a benefit which may well proceed from an abuse of the authority conceded to him, or the confidence reposed in him; and the relations between him and the donor are so close as to make it difficult to disentangle the inducements which led to the transaction. These considerations combine with reasons of policy to supply a firm foundation for the presumption against a voluntary disposition in his favour.
Counsel also cited, for the purpose of establishing the presumed relationship, the following passage from the decision of Gillard J in Union Fidelity Trustee v Gibson at 577:
The standard of intelligence and education, and the character and personality of the donor, are relevant matters. Age, state of health, blood relationship, experience, or lack of it, in business affairs of the donor, length of friendship or acquaintanceship between the donor and donee and the intricacy of their business affairs may be factors to influence a donor to depend upon the donee. Equally, the relative strength of character and personality of the donee, the period and closeness of the relationship and the opportunity afforded to the donee to influence the donor in his business affairs are correlative considerations to the foregoing.
Counsel for the third and fourth defendants relied factually on the deceased’s lack of education and business experience, unreliability of memory and inability to speak English, as well as his age, as relevant to a presumption of undue influence, coupled with the lack of any independent legal or other advice about the transaction, and its improvidence for the deceased. Other factors submitted as relevant were the fact that the plaintiff spoke English, was in the workforce, had had contact with solicitors, and had discussed purchasing property with colleagues. Additional factors were the fact that the plaintiff knew that complaints about his uncles would anger his grandfather, the fact that the property formed the bulk of the assets of the deceased, and, the fact that the gift was to one grandchild only, of four children and twenty grandchildren.
Once the presumption is established, it is up to the donee to rebut it, and counsel submitted that the plaintiff had failed to do so.
Counsel submitted that in any event the plaintiff had subjected the deceased to actual undue influence, and had effectively tricked him into signing the transfer.
It follows from the findings of fact I have already set out that I am satisfied that the plaintiff did not trick his grandfather into signing the transfer or set out to have him sign the transfer as part of a premeditated plan.
Counsel further relied on the doctrine of unconscientious dealing, submitting that the relationship between the parties had placed the deceased at a special disadvantage vis-à-vis the plaintiff; that the plaintiff had knowledge of the special disadvantage; and that he unconscientiously exploited it to his grandfather’s disadvantage. Counsel relied in this regard on Wilton v Farnworth (1948) 76 CLR 646 and Louth v Diprose (1992) 175 CLR 621. The factual considerations which give rise to a conclusion of unconscientious dealing are for present purposes generally the same as those which give rise to a presumption of undue influence.
I must accept that the effect of the transaction was that the deceased gave a property which formed the bulk of his assets to one grandchild, passing over his four children and his other nineteen grandchildren. I also accept that the deceased was very old, poorly educated and lacking in business experience, and that he did not speak English. There is no suggestion of any independent legal or other advice.
However, I do not accept that the plaintiff was a person of particular business or other experience or that he was a person in whom the deceased reposed particular trust and confidence as to matters of property or business. I accept that the signature of the transfer was the deceased’s own idea, not something urged or imposed upon him by the plaintiff or by anyone else. I am satisfied that he knew what he was doing and intended to do it, so that independent legal advice would simply have confirmed that his proposed course of action was consistent with his intention.
This is not a case where the transaction can be seen as one which was improvident for the deceased. He was not living in the house. He was living where he wished to live, with his daughter and her family. They were looking after him and continued to do so for the rest of his life. The transaction made no practical difference to the deceased during the remaining months of his life.
The relationship between grandfather and grandson is not within the recognised categories where undue influence will be presumed simply from the relationship. I am not satisfied on the evidence in the present case that the third and fourth defendants have established a factual basis from which a presumption of undue influence should be drawn. Hence no onus arises for the plaintiff to rebut any such presumption.
I am satisfied for the same reasons that the defence of unconscientious dealing is not made out.
I return to the submission of counsel for the third and fourth defendants that the gift was ineffective because it was not perfected. Counsel correctly submits that for the plaintiff to have obtained the legal interest as registered proprietor of the property, he would have needed to have the Registrar-General register a transfer in registrable form upon which stamp duty had been assessed and paid. This would have required the lodgement for registration of the transfer and the Crown Lease or Certificate of Title. A lodgement fee would also have been payable to the Registrar-General. So much is spelled out by section 57 of the Land Titles Act 1925, which provides that an instrument shall not be effectual to pass any interest in the land under the Act until registered. It follows that the legal estate has not thus far passed to the plaintiff. The plaintiff did not pay the deceased any consideration for the transfer and is thus a volunteer, triggering the equitable maxim “equity will not assist a volunteer”. Counsel submits that another maxim also applies: “equity will not perfect an imperfect gift”.
As counsel submitted, a threshold question must first be answered in the plaintiff’s favour, as to the intention of the deceased. The deceased must have intended to give the property to the plaintiff and not merely to have given him a right to continue to occupy and reside in the property. As I have already explained, I am satisfied that the deceased understood what he was doing, and that he intended to give the house to the plaintiff. Although he would probably not have thought it through in such terms, I am satisfied that he intended that legal title to the property should pass from him to the plaintiff.
Counsel concedes that it is not necessary for the transfer to have been registered for the gift to be complete in equity: Corin v Patton (1990) 169 CLR 540. However, the donor must have done everything necessary to enable the donee to take legal title: Milroy v Lord [1861-1873] All ER Rep 783; Corin v Patton per Mason CJ and McHugh J at 559. The test is whether what the donor did was sufficient to enable the legal transfer to be effected without further action on his part.
I am satisfied that the Certificate of Title was at all relevant times in the drawer in the cupboard in the house of the deceased, where the deceased told the plaintiff it was. I am satisfied that the deceased authorised the plaintiff to retrieve the Certificate of Title from the drawer.
In Scoones v Galvin [1934] NZLR 1004 Myers CJ, Blair and Kennedy JJ said at 1018:
. . . the delivery to the donee of the memorandum of transfer alone is not sufficient. But if the transfer is accompanied by the certificate of title, then there is nothing which is necessary for the donor to do to perfect the gift. It is true that he may pay the gift duty and attend to the stamping of the transfer and the registration thereof, but all these things can equally be done by the donee, provided that the donee has the documents. If then both documents are delivered to the donee, or to someone on his behalf, in our opinion there is a complete gift.
Although the deceased did not physically hand the Certificate of Title to the plaintiff, not being physically capable of doing so, I am satisfied that he notionally delivered the document to his grandson. I would go further and find that the deceased believed that the plaintiff had found and retrieved the Certificate of Title from the drawer, and believed that the plaintiff had physical possession of the Certificate.
Accordingly I find that when the deceased signed the transfer and caused the plaintiff to have possession of it, the gift of the land was complete.
The position is complicated by the fact that by that stage the other registered joint tenant, the plaintiff’s grandmother, had long ago died but no notice of death had been lodged and the procedure laid down by the Land Titles Act for passage of the title to the deceased grandfather as sole registered proprietor had not been followed. Inexplicably, the Registrar-General had amended the Register to remove the name of the deceased grandmother so that a search at the time of the gift would have shown the title as in the grandfather’s name only. As I have said earlier, there is some doubt as to whether the Registrar-General would have registered a transfer from the grandfather to the plaintiff on production only of the Certificate of Title and the transfer, or whether he would have realised his mistake and required the registration of a notice of death. I think on reflection that it probably does not make any difference to the outcome of the present action. A notice of death attaching the death certificate of the grandmother could readily have been brought into existence and would have overcome any such difficulty.
The plaintiff seeks, if necessary, a declaration that the property is held on constructive trust for him. Probate having been granted, the executor would in the normal course be entitled to the registration of a transmission application which would effect registration in his name as proprietor, no trust being noted on the Register. Because of the dispute, and the cross-caveats, no transmission application has been registered. However, I am satisfied that such rights as the executor has in relation to the property are held on trust for the plaintiff.
The plaintiff has sought declaratory and injunctive relief. The principal declaration sought is one that he is entitled to be registered as proprietor of the property. He has secondly sought a declaration that the property is held on constructive trust for him, presumably by the executor. He has also sought a consequential order requiring transfer of the property to him and an order requiring the Registrar-General to amend the Register to record the death of the grandmother.
I propose to publish these reasons and to give the solicitors for the plaintiff the opportunity to prepare draft orders which will give effect to my findings and reasons, and which will, as inexpensively as can be achieved, lead to the plaintiff becoming the registered proprietor of the property. Those draft orders should be provided to the other parties for their consideration before the matter is listed again. I shall hear the parties as to costs.
I certify that the preceding one hundred and fifty-nine (159) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.
Associate:
Date: 1 July 2011

Counsel for the plaintiff:  Ms H L Donohue SC
Solicitors for the plaintiff:  Ken Cush & Associates
Counsel for the defendant:  Mr W L Sharwood
Solicitors for the defendant:  Hansteins Lawyers
Date of hearing:  30, 31 March, 1 April, 2, 4, 5 November 2009

Date of judgment: 1 July 2011

[2011] ACTSC 106

1 July 2011

Key Legal Topics

Areas of Law

Property Law

Legal Concepts

Unconscionable Conduct

Unjust Enrichment

Gifts

Admissibility of Evidence