Habony v Pal

[2004] NSWSC 362

CITATION:	Habony v Pal [2004] NSWSC 362
HEARING DATE(S):	4 & 5 March 2004
JUDGMENT DATE:	30 April 2004
JURISDICTION:	Equity
JUDGMENT OF:	Austin J
DECISION:	Trustees for sale appointed; cross-claim dismissed; further hearing directed to quantify contributions.
CATCHWORDS:	EQUITY - undue influence - businesswoman acquires property in joint names with new friend after father's violent death - on facts, no ground for equitable intervention
CASES CITED:	Louth v Diprose (1992) 175 CLR 621
PARTIES :	Steven Habony (P) Helen Pal (D)
FILE NUMBER(S):	SC 1856/02
COUNSEL:	C M Simpson (P) A Blank (D)
SOLICITORS:	Turner Freeman (P) J M Thompson, Solicitor (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

AUSTIN J

FRIDAY 30 APRIL 2004

1856/02 STEVEN HABONY V HELEN PAL

JUDGMENT (Revised for typographical errors 3 May 2004)

1 HIS HONOUR: By summons filed on 12 March 2002, the plaintiff, Mr Habony, seeks an order for the appointment of trustees for the sale of a property known as 75 Douglas Street, Stanmore ("Douglas Street"), and consequential orders, pursuant to Part 4 Division 6 (including s 66G) of the Conveyancing Act 1919 (NSW). Douglas Street is held by the plaintiff and the defendant under the Real Property Act 1900 (NSW), as tenants in common in equal shares.

2 By a cross-claim filed on 19 June 2002, the defendant, Mrs Pal, seeks declarations that the transaction between her and Mr Habony which gave rise to his interest in Douglas Street is void, and that he holds his interest in the property on trust for her. Alternative and consequential orders are sought. At the trial, counsel for Mrs Pal put her claim on the basis of actual undue influence.

Credibility of witnesses

3 The only witnesses to give substantial affidavit evidence, and oral evidence, were Mr Habony and Mrs Pal. I shall make some observations about the credibility of their evidence.

4 Mr Habony appeared in the witness box to be, on the whole, a credible witness, answering questions clearly and directly. However, his evidence was quite vague with respect to financial contributions. Additionally, part of his affidavit evidence was changed before the hearing, in a letter from his solicitor supplying particulars, and (as I shall explain below) his recollection that Mrs Pal told him, when he met her in 1997, that her husband had recently died, was subsequently revised. In my view his recollection of events not supported by external documents or other corroboration was not completely reliable. On one matter, namely his criminal prosecution on information supplied to the police by Mrs Pal, he was not completely frank, as I shall explain. Overall, my approach to his evidence has been to treat it cautiously, and to prefer external corroboration where is available, but to accept his evidence on particular matters unless there is good reason for rejecting it.

5 I found Mrs Pal to be an unreliable witness, and I have decided not to accept her evidence on any matter in issue in the absence of some external corroboration. Time and again she gave evidence which contradicted documents or was inherently implausible. Her approach to cross-examination was to regard it as a contest in which her role was to deny what was put her, apparently in the expectation that by doing so she would put the cross-examiner to proof.

6 At the end of the hearing her counsel conceded that she at times gave obvious and glaring contradictory evidence, and appeared at times to be argumentative and evasive. A bare reading of the transcript would suggest that these concessions are understatements, and my observation of Mrs Pal's demeanour in the witness box confirms that impression.

7 Her counsel submitted that I should not reject her evidence as a whole. He said that her conduct in the witness box was influenced by several factors. He drew attention to the fact that English is not her native language and he said that she found it difficult to understand questions, particularly where they called for distinctions in time. He also submitted that her ability to read and understand some documents was poor. In fact my impression, observing her closely in the witness box, was that she was she well understood the cross-examination questions and the documents. Her denial of what was plain on the face of the documents appears to have been driven by her belief that she should never make concessions against her interest or in favour of the plaintiff, and the feeling she apparently had that some questions were an unjustified intrusion into her personal affairs.

8 I am inclined to agree with Mrs Pal's counsel that, in light of her peculiar attitude to the giving evidence, it would be unfair of me to treat her evidence as a whole as consciously dishonest evidence. However, that very attitude makes it appropriate, notwithstanding counsel's submission, that I should take the sceptical attitude to her evidence that I have outlined.

Background facts

9 Mrs Pal was born in Hungary in 1926 and came to Australia when she was 22 years old. She married Stephen Pal in 1947. He died before the events relevant to this case. She has no children. She supports herself by renting rooms in the properties that she owns. In her oral evidence she disclosed quite a long history of experience in business matters, and substantial financial success. She had been involved, inter alia, in running a farm on a commercial basis, running a fish and chips shop, and running at least one and possibly more boarding houses before 1997.

10 During 1997 she owned and lived in a house in Oxford Street Petersham, with her father, and also rented out rooms in that house to tenants. While she was on holiday overseas in that year, her father was stabbed to death in the Petersham house. Although one of the tenants was suspected of murdering him, no-one was charged. She immediately returned from her holiday when a friend told her what had happened.

11 Mr Habony was born in Hungary in 1930, and migrated to Australia in 1957. He lived with a woman called Ilona Bianchi, as husband and wife, from 1966 until she died in 1993. He had various jobs. At one time he operated a mixed business in Bondi, and later he and Ilona operated a farm in Tasmania, which they jointly owned. In 1976 they sold the farm and bought a unit in Wollongong and a house in Bowral. The house in Bowral, called "Rose Gardens", was a large six bedroom residence. Mr Habony undertook casual building and handyman work in Bowral, but in 1987, after he was diagnosed with a heart condition and placed on an invalid pension, he largely ceased working, except for some casual handyman work. In 1996 he sold the house in Bowral and moved to Goulburn.

Mr Habony's assets in 1997

12 Mr Habony gave evidence that in 1997, when he met Mrs Pal, he owned a block of land at Tahmoor, and had approximately $121,000 on deposit with the Commonwealth Bank, as well as cash of $35,000, a motor vehicle, furnishings, clothing and personal effects.

13 Mrs Pal gave evidence denying that Mr Habony had any significant assets when they meet in 1997. However, Mr Habony's account receives some limited support from a letter from Rowan Solicitors to Leatherbarrow & Associates, Solicitors dated 18 April 1996, and some short minutes of orders in proceeding No S5612 of 1993 in this Court. It appears from these documents that Mr Habony brought proceedings as plaintiff under the Family Provision Act 1982 (NSW), for an additional provision out of Ilona Bianchi’s estate. The defendants, Mr Pall and Ms Whetton, were the executors of the estate (perhaps her children). Apparently a settlement was reached in about April 1996, under which Mr Habony was to receive a legacy of $250,000, mostly payable out of the proceeds of sale of the Bowral property. The Department of Social Security was evidently pursuing Mr Habony under a garnishee order for an amount of over $34,000, and Rowan Solicitors had a claim against him for substantial costs. In the result, upon settlement of the proceedings Mr Habony received $121,426.78, some time after 18 April 1996.

14 There is also documentary evidence that Mr Habony purchased a property at Krista Place Tahmoor in June 1996, paying a little over $49,000 on settlement (presumably after having paid a deposit). There is documentary evidence that he sold that property in April 1997, receiving a balance on settlement of a little over $46,000.

15 In my view, this evidence makes it plausible that Mr Habony may have had about $121,000 on deposit with the Commonwealth Bank in 1997, although it appears that by mid 1997 he had disposed of the Tahmoor property.

Mr Habony and Mrs Pal begin their relationship

16 Mr Habony's evidence is that he met Mrs Pal through mutual friend, who telephoned to suggest an introduction. In his affidavit he said that Mrs Pal told him her husband had been killed. It emerged from Mrs Pal's evidence, that it was Mrs Pal's father who was killed just before she became associated with Mr Habony. In cross-examination Mr Habony was uncertain as to whether it was Mrs Pal's father or husband who had been killed. Counsel for Mrs Pal submitted that I should regard this uncertainty as dishonesty on the part of Mr Habony, motivated by an attempt downplay his knowledge of Mrs Pal's vulnerable state of mind. I reject that submission. In my opinion Mr Habony's uncertainty in oral evidence was brought about by the fact that he had at first believed it was Mrs Pal's husband who had been killed, and said so in his affidavit, and when later Mrs Pal said it was her father rather than her husband, he retreated to a state of uncertainty to acknowledge that his earlier recollection may have been faulty.

17 Mr Habony said Mrs Pal contacted him by telephone, and during the course of several conversations she told him she did not have anyone and would like to meet someone, and suggested that he come to Sydney to meet her. He said he agreed to do so, and travelled from Goulburn to Mrs Pal's residence in Petersham, and they went to the German Club. He said that over the next three months he visited her weekly, spending between one and three days at her property in Petersham, and then returning home to Goulburn. He says they discussed living together, and Mrs Pal suggested that he move in to the Petersham house. Mr Habony said he told Mrs Pal he would like to buy a house with her in half shares, and she agreed to investigate.

18 Mrs Pal's account of the circumstances of meeting Mr Habony is very different. She said that soon after her father's death, Mr Habony came to the Petersham property looking for accommodation. She said she knew him vaguely at that time, through his de facto wife. He said to her, "I'm broke but I'll do work on the house for you". She said she allowed him to stay in the Petersham property on that basis. She claimed that she was in an emotional and vulnerable state because of her father's death, and was concerned about her safety. She began spending time with Mr Habony, and occasionally he accompanied her to property auctions.

19 I prefer Mr Habony's account of these events, to Mrs Pal's evidence. In her oral evidence Mrs Pal agreed that she had gone to Goulburn with Mr Habony, and yet she maintained that she had done so only to verify his credentials as a potential boarder. The fact that he had accommodation in Goulburn and a substantial amount of money in the bank makes it unlikely that he would have approached her in the manner she claimed. It is plausible that, having lost her father and being alone, Mrs Pal would seek the company of a male friend. It is also plausible that at the beginning of their relationship, he would spend part of his time in Goulburn and part with her in Petersham. I accept, however, that the parties made an arrangement at some stage that he would receive free accommodation in exchange for maintenance work.

Purchase of the Douglas Street property

20 Mr Habony said that after their relationship had commenced, he and Mrs Pal inspected about 10 or 12 properties and went to several auctions for properties in the inner western suburbs of Sydney. The details of this evidence do not matter, but it seems to me likely that the parties advanced the proposal to acquire a property jointly in some fashion. Mr Habony said that on a Saturday in late July 1997 he received a telephone call from Mrs Pal, who told him she had bought a house in Douglas Street Stanmore at an auction on that day. Mr Habony said she should have waited until he had a chance to see the house, and she said "it just happened".

21 Mr Habony said he travelled to Sydney on the following morning and inspected the Douglas Street house with Mrs Pal. He said that in response to his question, she told him she did not purchase the house in both their names, and when he protested that she had previously said that the purchase would be "half and half", she agreed to go and see the solicitor on the following day, Monday, to fix it up.

22 Mrs Pal's version of the acquisition of the Douglas Street property is this. She said she was contacted by a friend, Anne Hrovat, who is a director of a real estate agency, who introduced her to the property. Ms Hrovat held $72,378 for her in trust after her sale of another property. Mrs Pal said she drew from this money for the deposit for the Douglas Street property. She said that at that time the Petersham property was unencumbered, and she was able to raise a loan of $570,000 by offering both properties as security. She said her original intention was to purchase the Douglas Street property in her own name. This evidence is consistent with Mr Habony's evidence. It is also supported by documentary evidence which indicates that Mrs Pal obtained a loan approval from Howard Funds Management Limited on 27 June 1997, to finance the purchase of investment property, in the sum of $400,000.

23 Mrs Pal said that she instructed solicitors, Egisto Solicitors, to act for her in relation to the Douglas Street property, and on her instructions the solicitors prepared documents in her name only. The documentary evidence is that the contract for the purchase of the Douglas Street property was initially entered into by Mrs Pal, on 22 July 1997, in her name alone.

24 By letter dated 30 July 1997, Egisto Solicitors wrote to Easy Access Finance, supplying particulars for the purpose of obtaining a mortgage loan in respect of the Douglas Street property. In her affidavit, Mrs Pal said that the original mortgage application documents were made out in her name alone. It is true that the solicitors' letter identified the purchaser as Mrs Pal alone. Whether there were some initial application documents in her name alone is not significant, because of the clear evidence, identified below, that the application as acted upon was an application for a loan to both Mrs Pal and Mr Habony.

25 Mrs Pal said she arranged for payment of stamp duty for the purchase of the Douglas Street property from funds held in trust for her by Ms Hrovat. I accept that evidence. It is supported by a copy of particulars of a bank cheque in favour of the Office of State Revenue for $13,809.

26 It is also corroborated by the evidence of Ms Hrovat, which I accept. Ms Hrovat confirmed that at time of the purchase of the Douglas Street property, she was holding $72,378.22 in her trust account for Mrs Pal. She said that the money was disbursed as follows: $1300 to Easy Finance for a finance application fee, $41,000 for the Douglas Street deposit, $13,809 stamp duty and $16,269.22 to Mrs Pal. There is also documentary evidence that Mrs Pal paid for insurance cover on 25 August 1997.

27 Settlement was to take place on 5 September 1997. In her first affidavit Mrs Pal said that prior to the settlement of the purchase, Mr Habony repeated his promises to look after her in exchange for secure accommodation, and said he wanted her to include his name on the property. In her second affidavit she said that Mr Habony offered to help her with work on Douglas Street, and to allow his name "to be placed on the mortgage to satisfy one of the mortgagee's requirements". I do not understand the latter point, which seems to be inconsistent with Mrs Pal's ability to obtain the earlier loan approval of $400,000 without any participation by Mr Habony.

28 Her evidence is that on 5 August 1997, in her emotional state, she instructed Egisto Solicitors to include Mr Habony on the title to the property. There is evidence that on 5 August 1997 Egisto solicitors wrote to Mrs Pal referring to discussions she had recently had with Mr Reiner of their office regarding the addition of Mr Habony as a joint purchaser, and asking her to contact Mr Pascale of their office as a matter of urgency to provide instructions.

29 On 13 August Egisto Solicitors wrote to the vendor's solicitors to request permission to add Mr Habony to the contract as a purchaser. By facsimile dated 21 August 1997, also in evidence, the vendors' solicitors said they had no objection to the proposed amendment. The evidence includes a copy of the first page of the contract for the purchase of Douglas Street, as stamped, which shows that Mr Habony's name has been written in, as purchaser, next to Mrs Pal's name. The box next to "joint tenants" has been ticked.

30 The documentary evidence includes a letter from Howard Funds Management Limited dated 21 August 1997, regarding a proposed mortgage over the Douglas Street and Petersham properties. The letter is addressed to Mrs Pal and Mr Habony, c/o Easy Access Finance, and confirms approval of a mortgage loan for $570,000. By a second letter of the same date, also addressed to Mrs Pal and Mr Habony c/o Easy Access Finance, Howard Funds Management Ltd set out particulars of the mortgage, which was for a three-year term with interest payable monthly in advance.

31 The evidence includes an undated photocopy of what appears to be the Howard Group mortgage over the Douglas Street property. The mortgagors are identified as Mrs Pal and Mr Habony. There is schedule which refers to a facility agreement for $570,000 entered into by Mrs Pal and Mr Habony. Both the mortgage and the schedule appear to be signed by Mrs Pal and Mr Habony, in the presence of Tony Pascale, solicitor.

32 The evidence also includes copy of a deed of loan, which is presumably the facility agreement referred to in the mortgage. It is between Permanent Trustee Australia Ltd as trustee of the Howard Mortgage Trust, as lender, and Mrs Pal and Mr Habony as borrowers. Their signatures are witnessed by Peter Reiner of Egisto solicitors, who has given a certificate in respect of each of them that they told him that they signed deed of loan voluntarily and that they understood its effect. There is also in evidence a copy of the mortgage over the Petersham property, with a schedule substantially identical with the Douglas Street mortgage, except that the signatory is Mrs Pal alone, reflecting the fact that she was the sole registered proprietor of the Petersham property.

33 On 25 August 1997 Mrs Pal and Mr Habony signed an "acknowledgement of loan terms and conditions", to the effect that the loan would be made in accordance with the terms of the Howard Group's letter of 21 August. Mrs Pal also signed a letter headed "acknowledgement of financial advice from Helen Pal", saying that she understood the loan would be made in accordance with the terms of the letter of 21 August, and confirming that the lender would rely upon the statements. On 29 August they both signed directions as to payment, witnessed by Mr Reiner.

34 The purchase of the Douglas Street property was settled on 5 September 1997. Mrs Pal said in her second affidavit that out of the mortgage advance of $570,000, $191,887.99 was paid by cheque in the names of Mr Habony and herself, and the balance of about $378,112 was paid in connection with the settlement and loan.

Factual findings with respect to Mrs Pal's claim of undue influence

35 Mrs Pal alleges that at the time she met Mr Habony, she was vulnerable, lonely, and seeking comfort and companionship. He offered her support and companionship, and offered to help her with the maintenance and upkeep of the properties. He could not financially support himself or pay rent for his accommodation, and he suggested that she provide him with secure permanent accommodation by placing him on the title to the Douglas Street property in exchange for his promise to care for her in the property.

36 I have held that Mr Harmony's account of the commencement of the relationship is to be preferred to Mrs Pal's. I accept that the relationship commenced not long after her father's violent death, an event which must have caused her to feel vulnerable and to be concerned as to her safety. But from its commencement, the relationship was a personal relationship rather than one of economic dependency by Mr Habony on Mrs Pal. He had some independent finances, and accommodation in Goulburn. Having observed Mrs Pal in the witness box, and having heard her evidence as to her business and financial success over many years, I find it implausible that she would have succumbed to Mr Habony's influence to the extent that her decision to have the Douglas Street property transferred into their joint names was not an exercise of her free and independent will.

37 Mrs Pal gave evidence that when she gave her instruction to Mr Egisto, she did not understand the legal consequences of a joint tenancy, and the concept was not explained to her. That is inconsistent with the certificate given by Mr Reiner, and also implausible having regard to Mrs Pal's business experience. The implausibility of that claim also tends to render implausible her claim that she was unduly influenced by Mr Habony.

38 I accept that Mr Habony asked her, more than once, to be put on the title to the Douglas Street property. He said that was their arrangement. I also accept that he was aware that she felt alone after the loss of her father (although he may have believed it was her husband). But I am not convinced that in the period from July to September 1997 Mrs Pal was so affected by feelings of vulnerability and emotional dependence that her judgment in business matters was in any significant degree impeded. She had substantial experience in property matters. She was able to obtain approval for a large mortgage loan, on her own application, in June 1997. She was able to investigate the property market and select a property, and she made her decision without consulting the person upon whom she claims to have relied. She was able to instruct her solicitors and attend to payment of stamp duty and insurance, without his assistance.

39 The more plausible explanation for her agreeing to have the Douglas Street property transferred into their joint names, is that she had formed a personal relationship with Mr Habony, which she expected to be an enduring relationship. Mrs Pal strenuously denied any suggestion of a romantic sexual relationship. It is not necessary for me to make a finding on that matter. Whether the relationship was a sexual relationship or not, the evidence points to a close personal relationship. That evidence includes not only the evidence of Mr Habony that they had "formed a relationship", but also the fact that on 5 September 1997 Mrs Pal and Mr Habony signed mutual wills, witnessed by the same persons, whereby each of them appointed the other as sole executor and trustee and gave the whole of their estate to the other.

40 Counsel for Mrs Pal said this explanation was implausible because of the short duration of the relationship, and the fact that she had ready access to finance. He asked, "what would induce a 'hard-nosed', experienced businesswoman who had access to finance for the acquisition of the property she desired, to suddenly want to include a man of recent acquaintance on title?" The full explanation will never be known except to Mrs Pal, but what is decidedly implausible is that this hard-nosed businesswoman would be overborne by her new acquaintance and allow herself to be taken advantage of by him.

Improvements to the Douglas Street and Petersham properties

41 Mr Habony said that after completion of the purchase, he and Mrs Pal moved into the Douglas Street house, which was also occupied by a number of tenants, varying between 2 and 4.

42 Mr Habony claimed that he carried out some work on the Douglas Street property. He has specified the work, which includes maintenance such as painting and cutting down trees, and also includes subdividing a room to create two rooms to be rented out, and building a flat at the property which included a new toilet, kitchen and sewing room. He said he also did some work on the Petersham property, including subdividing rooms to create two new rooms to be rented out, installing a new toilet, and various matters of maintenance. Mr Habony's evidence is that he paid for the materials used to this work out of his own money.

43 In her affidavit in reply, Mrs Pal did not completely deny that the work was carried out, but said that any work done by Mr Habony was in consideration of his free lodgings. She said, however, that the Douglas Street property did not need the kind of work allegedly carried out by Mr Habony, and that she had paid for painting and carpentry work out of her own money. She said that the Petersham property was in good condition because her father lived there for about eight years and did all of the handyman work that was required.

44 Mr Habony's evidence with respect to improvements to the properties is, in my view, unconvincing. I accept that it is a substantial amount of work, by way of maintenance, but I found his evidence in cross-examination to be unconvincing with respect to major work of the kind that would improve the value of the properties. That conclusion does not mean, however, that Mr Habony failed to perform his side of the arrangement, made at the time when he took up residence, for free accommodation in exchange for maintenance work.

45 Mrs Pal gave evidence that she remained in the Petersham house for a while, and sold by contract dated 7 December 1998. There is documentary evidence confirming that the sale was settled on for February 1999, and that on settlement Permanent Trustee of Australia Ltd, as trustee in connection with the Howard Group loan, received $373,105.64. Mrs Pal collected a bank cheque on the settlement date for $140,224.48.

Expenditure with respect to the Douglas Street property

46 Mr Habony gave evidence that he regularly advanced money to Mrs Pal, although he has not particularised his claim nor supported it by external evidence. He claimed that he paid interest-only repayments on the mortgage from October 1997 until January 1999 from his own funds. He said his funds included money he had received from the sale of his block of land at Tahmoor in April 1997, which he had sold for $52,000.

47 Mrs Pal denied that Mr Habony contributed in any way to the cost of acquisition and subsequent costs with respect to the Douglas Street property. Her evidence was that she paid all mortgage payments, council rates and taxes on the property. She has provided copies of "customers records of bank cheques" payable to the Howard Group for each month from October 1997 to January 1999, each in the sum of $2374.17. This evidence does not identify the source of the payments. However, it seems to me more likely than not that these payments were withdrawn from Mrs Pal's bank account, and accordingly that they were sourced in Mrs Pal's money, whether or not Mr Habony might have made advances to her from time to time.

48 My conclusion, on the state of the somewhat inadequate evidence before me, is that the interest payments on the mortgage and the outgoings on the Douglas Street property were paid from Mrs Pal's bank account. Mr Habony has not satisfied me that he made financial contributions from his own money. It is likely, however, that the whole or a substantial part of the interest payments and outgoings came from rental payments by tenants.

The breakdown of the relationship

49 Mr Habony and Mrs Pal separated on 16 April 1999 when he moved out of the Douglas Street property. Mrs Pal explained this by claiming that far from looking after her as he promised, Mr Habony in fact stole money from her.

50 Mrs Pal gave evidence that Mr Habony did so by making withdrawals from her savings bank account with the Commonwealth Bank of Australia. Although she denied it in the witness box, it is plain from the documentary evidence that she reported these allegations to the police, and in fact made statements to the police in August and November 1998.

51 Information concerning the prosecution of Mr Habony, which had been obtained on behalf of Mrs Pal by means of an application under the Freedom Information Act 1989 (NSW), was annexed to her primary affidavit. I allowed it into evidence subject to a direction under s 136 of the Evidence Act 1995 (NSW), preventing any of the material to be used for to prove the truth of its contents, except the evidence given directly by Mrs Pal to the police.

52 The material includes an event report dated 13 August 1998, charge sheets and fact sheets, part of an unsigned statement by Senior Comfortable Dickson dated 13 November 1998, and an unsigned statement by Mrs Pal dated 10 November 1998. The event report records an allegation by Mrs Pal that on 7 August 1998 she inspected her Commonwealth Bank passbook and noticed a withdrawal of $4,933, although she had not used the account for some months. She then closely inspected the bank book, and discovered three other transactions which she said she did not authorise.

53 Four charges were formulated, based on allegations that Mr Habony had withdrawn the following amounts from the Commonwealth Bank account without Mrs Pal's authority:

· $2,000 in cash on 1 July 1998,

· $1,950 on 3 July 1998,

· $4,866.03 (transferred to Mrs Pal's visa card) on 30 July 1998,

· $4,933 (transferred to Mrs Pal's visa card) on 7 August 1998.

There was an additional charge that Mr Habony had used to Mrs Pal's visa card to withdraw $800 from an automatic tell machine.

54 The event report says that Mr Habony was interviewed on 12 November 1998. It says that he admitted to filling out details on the four withdrawal forms but refused to answer questions about the signatures on the forms. It says that he claimed that he had Mrs Pal's authority to withdraw funds but refused to answer when he was further questioned about the circumstances surrounding his authority. The report said that Mr Habony was clearly pictured withdrawing money from the automated teller machine although he denied using Mrs Pal's visa card. He said that the photographs were of himself withdrawing money from his own account, although the report noted that Bank records disputed that fact. In her statement Mrs Pal claimed that she had not used her visa card since August 1997 and had purported to cancel it.

55 It appears from the papers that the Commonwealth Bank refunded the amount of all five withdrawals to Mrs Pal.

56 Mr Habony said in his affidavit that he pleaded not guilty to the charges laid against him, and that the money which was withdrawn was given to him by Mrs Pal "and/or" was taken by him with her consent to pay expenses. In fact the police records include a charge cover sheet which appears to show that Mr Habony pleaded guilty to one of five charges and was "placed on schedule", in respect of the others.

57 Mrs Pal said that following these events, she asked him to leave. She said that after he did so, she received mail for him, including letters of demand for unpaid accounts. Such letters are in evidence.

58 After receiving advice from a lawyer friend, on 8 February 1999 Mrs Pal made a transfer unilaterally severing the joint tenancy with Mr Habony for the Douglas Street property, and thereby leading to registration of Mrs Pal and Mr Habony as owners as tenants in common in equal half shares. On about 11 May 1999 Mrs Pal signed a caveat in respect of the Douglas Street property, asserting that she was the sole beneficial owner and that Mr Habony held his half share on resulting trust for her, arising from the fact that she paid the whole of the purchase price.

Conclusions

59 By her cross-claim Mrs Pal contended that the transaction by which title to the Douglas Street property was placed in the joint names of herself and Mr Habony should be set aside, on grounds relating to undue influence, fraud, misrepresentation or unconscionable conduct. At the hearing emphasis was placed upon that species of undue influence sometimes called "actual undue influence", and it was asserted that there had been unconscionable conduct because Mrs Pal's capacity to make a decision as to her own best interests had become peculiarly susceptible to control or influence by Mr Habony: see Louth v Diprose (1992) 175 CLR 621, especially at 629.

60 It is unnecessary to enter into any exposition of the legal principles. It is sufficient to say that in my view, for the reasons I have given, the factual basis for that case has not been made out, and for the same reason, there is no factual basis for a case of fraud or misrepresentation.

61 In this state of affairs, both parties have submitted that their rights are regulated by the general principles applicable to co-owners. The purchase money for the Douglas Street property was provided in the manner that I have found. It has not been established that Mr Habony made any direct contribution from his own money, but the property was acquired in joint tenancy and mortgage interest instalments were paid wholly or in substantial part out of the income of the jointly held property. Those facts do not warrant a finding that the joint tenants hold the property on resulting trust absolutely for Mrs Pal, but they do indicate that by paying the deposit and other costs of acquisition, she made a disproportionately greater contribution to the acquisition than Mr Habony, and suggest a resulting trust to that extent. But the defence and cross-claim do not address these matters, and it seems to me that the evidence at the hearing did not deal in detail with all of the matters that will ultimately fall to be determined to establish the monetary entitlements of parties.

62 Both parties agree, in the event that I were to make the findings I have now made, that a further hearing will be necessary to establish the ultimate monetary entitlements of the parties. The matter should proceed with leave to adduce further evidence as to a list of designated matters, such as the value of non-financial contributions, any credits to be given for occupation, and the amount of rent received in respect of the property and its application. Counsel for the defendant has produced some draft short minutes of orders listing such matters for further determination. I shall give the parties the opportunity to consider that list and direct the plaintiff to prepare draft short minutes of orders in light of the list and my reasons for judgment.

63 In the meantime, I shall make orders dismissing the cross-claim and appointing trustees for sale, on the basis that distribution of the proceeds of sale will have to await the further hearing. I shall hear the submissions of the parties with respect to costs.

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Last Modified: 05/06/2004