Hansen v Registrar of Titles
[2002] WASC 173
HANSEN -v- REGISTRAR OF TITLES & ANOR [2002] WASC 173
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASC 173 | |
| Case No: | CIV:1984/1998 | 7 JUNE 2002 | |
| Coram: | MASTER BREDMEYER | 27/06/02 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | KLAUS HAMMERSHOLT HANSEN REGISTRAR OF TITLES FREDDIE K HAMMERSHOLT HANSEN |
Catchwords: | Appeal Application for extension of time to lodge an appeal |
Legislation: | Supreme Court Rules, O 63 r 4 |
Case References: | Hanson v Registrar of Titles & Anor [2000] WASC 110 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
REGISTRAR OF TITLES
First Defendant
FREDDIE K HAMMERSHOLT HANSEN
Second Defendant
Catchwords:
Appeal - Application for extension of time to lodge an appeal
Legislation:
Supreme Court Rules, O 63 r 4
Result:
Application dismissed
(Page 2)
Category: B
Representation:
Counsel:
Plaintiff : No appearance
First Defendant : No appearance
Second Defendant : In person
Solicitors:
Plaintiff : No appearance
First Defendant : No appearance
Second Defendant : In person
Case(s) referred to in judgment(s):
Hanson v Registrar of Titles & Anor [2000] WASC 110
Case(s) also cited:
Nil
(Page 3)
1 MASTER BREDMEYER: This is a notice of originating motion for extension of time to appeal. The notice of motion was filed on 4 June 2002 and it is for an extension of time to appeal against orders made by Templeman J on 10 May 2000. That Judge published his reasons in Hanson v Registrar of Titles & Anor [2000] WASC 110. The appeal period set by O 63 r 4 is 21 days from the date of the judgment or order, or within such extended time as the Full Court or a Judge may allow. The power to grant an extension has been delegated to a Master by O 63 r 18. The application is, thus, about two years out of time.
2 The application is brought, as I have said, by way of notice of motion. It has not been served on the other parties. At the request of the applicant, I have decided to hear this application on an ex parte basis in this way. If I think the application has some merit, I will direct that the other parties be served and that the application be heard inter partes. If, on the other hand, I consider the application is without merit, I will dismiss it with reasons.
3 According to Seaman Civil Procedure in Western Australia at 63.4.2, the court has a very wide discretion to grant an extension of time to appeal, but the discretion given to the court is for the sole purpose of enabling it to do justice between the parties and can only be exercised in favour of the applicant upon proof that strict compliance with the rules will work an injustice upon him or her. Regard must be had to the history of the proceedings, the conduct of the parties, the nature of the litigation, the consequences to the parties of the grant or refusal of the extension of time, the prospects of success if an extension is granted and the vested right of the respondent to retain the benefits of the judgment. The length and reason for the delay must be addressed by the applicant and the cogency of the explanation increases as the extension sought increases. Even if the delay in filing a notice of appeal is explained satisfactorily, the application for an extension of time should be refused if the appeal would have no prospects of success.
4 This appeal is well out of time. I note that the applicant, Mr Freddie Hansen, was represented before Templeman J by a counsel, Mr P R Eaton, instructed by solicitors Galic & Co. So, no doubt, the applicant had the benefit of the availability of advice from those lawyers as to the merits of an appeal. The applicant has filed an affidavit in support sworn by himself on 3 June 2002. It covers 15 pages of text, single spaced, and has 14 exhibits attached to it.
(Page 4)
5 By way of background, I mention that the applicant, Mr Freddie Hansen, was the substantive defendant in that action. The plaintiff, Klaus Hansen, is his son. The other interested person in the litigation, although not a party, was Mrs Bente Hansen, the mother of Klaus and the ex-wife of Mr Freddie Hansen. The plaintiff was the registered proprietor of a residential property at 49 Boonooloo Road, Kalamunda. The plaintiff sued for a declaration that he held that property on trust for his mother. The defendant, Mr Freddie Hansen, counterclaimed that the plaintiff held the property on trust for him. In each case, the parties were asserting an oral trust. There were no relevant documents. There was no trust deed. The plaintiff did not claim to be the beneficial owner of the house. Having heard the witnesses, and for the reasons published, which covered 21 pages, the Judge found for the plaintiff, that the house was held by the plaintiff in trust for his mother.
6 Mr Hansen told me that he saw Mr McCusker QC about an appeal. He told him that he would never win the appeal as the case turned on oral evidence and he was not believed. He saw Mr McCusker again later and told him he now had evidence of his wife's perjury. He told me that it was a lack of funds which prevented him lodging an appeal at that time. I quote from pars 69 and 70 of his affidavit:
"69. I have spent the last 2 years collecting the evidence and affidavits. I also tried to get first the police, since the DPP to act on the perjury but to no avail, mainly due to the staleness of the alleged event and also I believe to the shortage of funds at the DPP's officer. It is quite clear to me, and lawyers I have spoken to, that my ex wife had committed perjury and since used the resulting gain in this case.
70. I did this because Mr. Malcolm McCusker QC told me that I had to prove perjury to reopen the appeal, as having my ex wife tried on this, was never on my agenda in the first place. I just want justice and what are rightfully my property returned, and my cost covered."
7 He says he has now recovered somewhat from a stroke suffered on 30 September 1998. He is also totally without money and would like to argue the case himself.
8 The evidence of his wife's perjury comes from her application for divorce dated 7 August 1986 and filed in the Family Court. He has now
(Page 5)
- obtained the Family Court file and has annexed, at page 58 of his affidavit, some statements from his ex-wife's application for divorce. In that she states, and I summarise:
"8. That the husband and wife separated on 15 October 1983 and have lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of filing of the application.
9. … on 15 October 1983 the husband left the former matrimonial home at 4 Hart Street Lesmurdie to live in a flat at Victoria Park …
10. Following the separation referred to in para 8 the husband took up permanent residence in a flat in Victoria Park and was a self-employed mining prospector.
11. After the date of separation referred to in para 8 the husband and wife did not resume cohabitation.
12. Since the separation referred to in para 8 the husband and wife have not resided in the same residence since the separation."
10 He states at par 6 of his affidavit:
"6. I therefore after the hearing had cause to search the files from my divorce as I knew the judge was misled. When I looked at the screen projecting the microfiche containing the documents before printing them out, at my first visit ever to the Family Court, it became clear to me that my ex-wife had blatantly lied, and in fact had committed perjury when obtaining her divorce. I also noted that her solicitor, Mr Michael Rodgers, had obtained the files before the hearing and therefore must have known that she made contradictory statements."
(Page 6)
11 The case before Templeman J largely turned on the evidence of Klaus and Freddie as to a telephone conversation between them in November 1991. Each was cross-examined at length on his evidence.
12 A summary of the Judge's finding on this is found at par 60 of the reasons and is as follows:
"1. The defendant telephoned to the plaintiff's ship or shore base and left a message asking the plaintiff to telephone him at Ledger Road.
2. The plaintiff returned the defendant's telephone call. He spoke first to the defendant, who asked the plaintiff if he would purchase a house for Mrs Hansen by paying the sum of $10,000 to be used as a deposit, and by borrowing $95,000 or thereabouts from the Bank in order to complete the purchase.
3. The defendant told the plaintiff that the house could not be purchased in Mrs Hansen's name because of her current involvement in the business which made that course undesirable.
4. The defendant told the plaintiff that there would be funds available from the business, or the sale of the business, which could be used to repay the price paid by the plaintiff.
5. The plaintiff agreed to assist in this way on the basis that he would transfer the property to Mrs Hansen if he was repaid in full.
6. The plaintiff then spoke to Mrs Hansen, who asked him to buy the house for her but to put it in his name until the defendant had solved the problems he had with the business and could repay the money."
13 I consider that the key piece of evidence, namely, his wife's divorce application, which the defendant would like to have had at the earlier trial for cross-examination of her, could have been obtained with reasonable diligence prior to the trial. The decree nisi was pronounced on 20 March 1987 and the statements in the wife's application said to be false is dated 7 August 1986. The plaintiff's lawyer had those divorce papers at the hearing. It seems to me that, with reasonable diligence, the defendant, or
(Page 7)
- his lawyer, could have obtained that material earlier. So, it seems to me that the defendant has not explained satisfactorily the delay in bringing this application for extension of time. It is not as if these papers were concealed from him, or totally unavailable to him, until just recently. They have really been available to him since the time of the divorce. They were available to him several years before the hearing before Templeman J.
14 Secondly, would these divorce papers have made a significant difference to the outcome of the trial? They would have been useful tools in cross-examination of Mrs Hansen. If the defendant could prove the various lies stated in this divorce application, then he could destroy her credit. But it is of interest that the findings as to the existence of the oral trust and who was the beneficiary of it, did not turn on a weighing of Mrs Hansen's evidence against the defendant's evidence. It turned on a weighing of the evidence of Klaus against his father, Freddie. So, this damaging, cross-examination material against the wife would have been irrelevant to credibility issues between Klaus and Freddie. It is clear from the Judge's detailed reasons that he preferred the evidence of Klaus as to this crucial telephone conversation in November 1991 to that of Freddie. But it did not turn solely on the credibility of Klaus against the credibility of Freddie. As in many cases where credibility is a big issue, there are also other factors which make the story of one witness more probable than the story of another witness. It is often the case that the Judge weighs up the credibility of witnesses against considerations of what most probably happened. One of these matters at pars 71 to 73 of the reasons was that the written offer to purchase the property on a standard offer and acceptance form was in the name of Mrs Hansen. She described herself as trustee for the plaintiff, Klaus. The Judge thought that was done to avoid stamp duty purposes. The important point is that it named her as the purchaser.
15 Another matter which weighed with the Judge is set out in pars 52 to 53:
"52 The plaintiff's evidence-in-chief was that he received a message to telephone home, which he did, and spoke to the defendant. The defendant asked him if he could, or would be prepared to purchase a house for his mother. The plaintiff asked why he had to purchase the house. The defendant said he had some business problems and that his mother would need to sell her house in order to help him out. The defendant said the house had to be in
(Page 8)
- the plaintiff's name because his mother was involved in the business 'so it would be better that way'. The plaintiff said he agreed. He said there was a discussion about how the purchase price was to be funded. He said the defendant told him that either the defendant and/or Mrs Hansen had no money at that time; so that the plaintiff would have to use his money for a deposit and borrow the remainder. He said the defendant told him he would attempt to pay Mrs Hansen the debt and if that happened, then the plaintiff would 'sign the house back over to my mother'. (Ts 381-2)
- 53 The plaintiff said he spoke also to his mother because he wanted to know why the house had to be in his name. She told him that the defendant had some problems with 'Corporate Affairs' and that he (the defendant) 'was a bit worried'."
16 Another matter in the Judge's mind was that the Ledger Road house, purchased in October 1987, which was registered in Mrs Hansen's name and in which she lived with her father, was mortgaged to AGC to support the defendant's business. At pars 30 and 33, the Judge said:
"30 It was Mrs Hansen's evidence that in about November 1991 the defendant told her that the Ledger Road house would have to be sold in order to pay AGC. The defendant told her that money would be available eventually, but that she would just have to wait: that she would have another house (Ts 440).
31 The defendant's evidence was to the same effect. In his examination-in-chief, the defendant said he told Mrs Hansen that he would be able to buy another house (TS 186).
32 It is to be noted that the evidence of both Mrs Hansen and the defendant was ambiguous as to the basis on which the replacement house would be purchased. There is no doubt that Mrs Hansen was the beneficial owner of the Ledger Road property. However, it appears to be common ground that she was told only that a replacement house would be purchased. I have no doubt she assumed
(Page 9)
- she would be the beneficial owner. But she was not told that, expressly.
- 33 It is against this background that a crucial telephone conversation of early November 1991 must be considered."
17 A further matter influenced the Judge towards the decision he made. It is discussed at pars 104 to 111 of his reasons. The plaintiff gave an informal power of attorney to the defendant. It is not dated or witnessed, but is signed by both of them. It says:
"I Klaus Hammersholt Hansen herewith authorise my father Freddie Kay Hammersholt Hansen to act on my behalf in the transfer of the property 49 Boonooloo Road Kalamunda into the name of my mother Mrs Bente Hansen currently of 49 Boonooloo Road Kalamunda."
18 The Judge accepted Mrs Hansen's evidence about the reason for that document. Her son was a sea captain. She was concerned about his safety at sea and the future security of "her" property. The power of attorney is admission evidence from the defendant that, if Klaus died, the home was to be put into Mrs Hansen's name. That could have meant that she would hold the house on trust for the defendant, but the Judge accepted the other explanation - that in the event of Klaus' death, the house was to be registered in her name because she was the beneficial owner of it.
19 I consider that the Judge's crucial finding of fact that the Boonooloo Road house was purchased under an oral trust arrangement by Klaus in trust for his mother did not turn primarily on the oral evidence of Mrs Hansen. It turned on the Judge's weighing-up of the oral evidence of Klaus and Freddie. In these circumstances, I do not consider that the recent discovery of the 1986 divorce papers would have any bearing on the result. Those papers would only be useful in the cross-examination of Mrs Hansen and her evidence on the question of the oral trust for this property was not so relevant.
20 In summary, I consider that the applicant has not explained satisfactorily the long delay in the bringing of this application, and if this extension of time was granted, the appeal has no prospects of success.
21 The application will be dismissed. Mr Hansen can appeal my decision with 21 days.
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