Hillman v Box (No 4)
[2014] ACTSC 107
•28 May 2014
NOELLE ELIZABETH HILLMAN v LYNDA BOX, DEBRAH BOX AND SKYE BOX
AS EXECUTORS OF THE ESTATE OF GRAEME WILLIAM BOX (NO 4)
[2014] ACTSC 107 (28 May 2014)
CONVEYANCING – LAND TITLES UNDER THE TORRENS SYSTEM – Joint Tenancy and Tenancy in Common – Whether signed Deed and Transfer severs joint tenancy – Title transfer not completed before death of deceased – Principle of severance of joint
tenancy – Joint tenancy severed in equity
DEEDS – What Amounts to a Deed – Whether document in question Agreement or Deed – No extrinsic evidence of intention of parties – Construction of document required –
Document in question is a Deed
DEEDS – Claim Deed should be set aside on the ground of non est factum – Alternative claim that Deed should be set aside due to undue influence exerted on the Applicant – Applicant not prevented from seeking independent legal advice – Applicant freely signed Deed – Applicant capable of understanding the Deed – No undue influence exerted on the Applicant – Claim dismissed
SUCCESSION – FAMILY PROVISION AND MAINTENANCE – Applicant former domestic partner of deceased – Whether domestic partnership had ended at the time of the death of the deceased – Whether Applicant cared for the deceased during last illness –
Applicant not adequately provided for
SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – Claim for chattels alleged to be jointly owned with the deceased – Chattels divided under Deed – Claim
dismissed
SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – Claim that half the proceeds of a property sale held on constructive trust for the Applicant – Title in name of deceased only – Property purchased with funds of deceased – No significant financial contribution by the Applicant – No constructive trust exists
Domestic Relationships Act 1994 (ACT), s 3
Family Provisions Act 1969 (ACT), ss 7, 8
Family Provision (Amendment) Act 1996 (ACT), s 8
Land Title Act 1925 (ACT), s 58
Legislation Act 2001 (ACT), s 169
Rules of the Supreme Court 1965 (UK), Order 62 Rule 28
Laws of Australia, [35.8.420]
400 George Street (Qld) Pty Ltd v B G International Ltd [2012] 2 Qd R 302
Abela v Public Trustee [1983] 1 NSWLR 308
Allcard v Skinner (1887) 36 Ch D 145
ANZ Banking Group Ltd v Alirezai [2004] QCA 6
Bank of New South Wales v Rogers (1941) 65 CLR 42
Barbaro v The Queen (2014) 305 ALR 323
Barrett v Hartley (1866) LR 2 Eq 789
Baumgartner v Baumgartner (1987) 164 CLR 137
Blore v Lang (1960) 104 CLR 124
Burgess v Rawnsley [1975] Ch 429
Burton v Camden London Borough Council [2000] 2 AC 399
Calabrese v Miuccio [1984] 1 Qd R 430
Calabrese v Miuccio (No 2) [1985] 1 Qd R 17
Chapman v Yang [2005] ASCTCA 37
Churton v Christian (1988) 13 NSWLR 241
Coldunell Ltd v Gallon [1986] 1 All ER 429
Corin v Patton (1989) 169 CLR 540
De Dominicus v Spano (1998) 9 BPR 16,279
Delaney v Molloy (1993) NSW Conv R 55-664
Garcia v National Australia Bank Ltd (1998) 194 CLR 395
Giumelli v Giumelli (1999) 196 CLR 101
Gould v Kemp (1834) 2 Mg 1 K 304
Green v Green (1989) 17 NSWLR 343
Greer v Kettle [1938] AC 156
Hackett v Public Trustee for the Australian Capital Territory (Unreported, ACTSC,
Higgins J, 2 May 1997)
Hibberson v George (1989) 12 Fam LR 725
Hillman v Box & Ors as executors of the will of Box (2010) 5 ACTLR 122
Hillman v Box & Ors as executors of the will of Box (No 2) [2011] ACTSC 10
Hillman v Box & Ors as executors of the will of Box (No 3) [2011] ACTSC 24
Hohol v Hohol [1981] VR 221
Hughes v National Trustees Executors and Agency Co Ltd (1979) 143 CLR 134
In Re Grimthorpe (deceased) [1958] Ch 615
In Re Robertson (1944) 44 SR(NSW) 103
In Re Whitley (deceased) [1962] 1 WLR 922
In re Wilks; Child v Bulmer [1896] 3 Ch 59
In the Estate of Guthrie (1983) 32 SASR 86
Johnson v Buttress (1936) 56 CLR 113
Jones v Dunkel (1959) 101 CLR 298
Krause v Sinclair [1983] VR 73
Luciano v Rosenblum (1985) 2 NSWLR 65
Lyons v Lyons [1967] VR 169
Magill v Magill (1993) NSW ConvR 55-663
McNab v Earle [1981] 2 NSWLR 673
Mercantile Credit Co Ltd v Hamblin [1965] 2 QB 242
Meredith Projects Pty Ltd v Fletcher Constructions Australia Ltd [2000] NSWSC 493
Mischel (as executor of the Estate of Mischel) v Mischel Holdings Pty Ltd [2012] VSC 292
Muschiuski v Dodds (1985) 160 CLR 583
Muskham Finance Ltd v Howard [1963] 1 QB 904
National Westminster Bank plc v Morgan [1985] AC 686
On v On [2002] NTSC 18
Ormes v Beadel (1860) 66 ER 70
Petelin v Cullen (1975) 132 CLR 355
Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9
Public Trustee v Pfeiffle [1991] VR 19
Quek v Beggs (1990) 5 BPR 11,761
Re Adamow (deceased) (1989) 97 FLR 410
Re Adams (deceased) [1967] VR 881
Re Blood [1983] 1 Qd R 104
Re Cutts (deceased) [1969] VR 254
Reeves v Berge Phillips (1982) 7 Fam LR 940
Re Fullard [1981] 2 All ER 796
Re Fulop (deceased) (1987) 8 NSWLR 679
Re Salathial [1971] QWN 18
Robertson v Robertson [1930] QWN 41
Russell v Scott (1936) 55 CLR 440
Saunders v Anglia Building Society [1971] AC 1004
Slater v Slater (1987) 12 Fam LR 1
Starceavich v Swart & Associates Pty Ltd (2006) 12 BPR 98,204
Stivactas v Michaletos (No 2) [1993] NSW Conv R 55-683
Stroughill v Buck (1850) 14 QB 781
Swift v Roberts (1764) 97 ER 941
Takemura v National Australia Bank Ltd (2003) 11 BPR 21,185
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165
Tulloch (Dec’d) v Braybon (No 2) [2010] NSWSC 650
Turner v Perpetual Trustees Australia Ltd [2001] ACTSC 56
Union Fidelity Trustee Co of Aust Ltd v Gibson [1971] VR 573
Vigolo v Bostin (2005) 221 CLR 191
Watkins v Combes (1922) 30 CLR 180
West v Government Insurance Office of New South Wales (1981) 148 CLR 62
Williams v Hensman (1861) 70 ER 862
Wilton v Farnworth (1948) 76 CLR 646
Wright v Gibbons (1949) 78 CLR 313
Xenos v Wickham (1867) LR 2 HL 296
Yerkey v Jones (1939) 63 CLR 649
No. SC 564 of 2010
| Judge: | Refshauge J |
Supreme Court of the ACT
| Date: | 28 May 2014 | |
| IN THE SUPREME COURT OF THE | ) | |
| ||
| AUSTRALIAN CAPITAL TERRITORY ) |
BETWEEN: NOELLE ELIZABETH HILLMAN
Plaintiff
AND:
LYNDA BOX, DEBRAH BOX AND SKYE BOX AS EXECUTORS OF THE ESTATE OF GRAEME WILLIAM BOX
Defendants
O R D E R
| Judge: | Refshauge J |
| Date: | 28 May 2014 |
| Place: | Canberra |
| THE COURT ORDERS THAT: |
1. The plaintiff receive by way of provision out of the estate of the late Graeme William
Box the sum of $50,000, such sum to be paid forthwith to the plaintiff’s solicitors,
Capital Lawyers;
2. Otherwise, there be judgment for the defendants on each other claim by the plaintiff.
3. The costs of the defendants of the proceedings be paid on a trustee basis from the
estate of the late Graeme William Box.
4. The parties be heard as to the costs of the plaintiff.
| THE EVIDENCE | [9] |
Introduction – Background [9] The relationship after 2006 [15] The purchasing of properties [31] The separation [70] The Termination Agreement [81] Ms Hillman’s current circumstances [112] Ms Hillman’s contribution to the maintenance of the bought properties [121] Evaluation of Ms Hillman’s evidence [124] Evidence of Lynda Box [133] Evidence of Debrah Box [141] Evidence of Skye Box [145]
| PROCEDURAL HISTORY | [152] |
| THE ISSUES IN THE PROCEEDINGS | 157] |
Relationship between Mr Box and Ms Hillman after 2006 [166]
| VALIDITY OF THE TERMINATION AGREEMENT | [192] |
Non Est Factum [194] The absence of independent legal advice [205] Conclusion [208] Undue influence [209] The plaintiff’s submissions [213] The defendants’ submissions [226] Actual undue influence [229] Presumed undue influence [243] Absence of witness [255] Mr Nelson’s involvement [259] Conclusion on presumed influence [262] Conclusions [263]
APPLICABILITY OF JOINT TENANCY AND THE LAW OF SURVIVORSHIP [266]
Ownership of the Spence property [268] Severance of joint tenancy in equity [282] Severance by mutual agreement [285] Severance by course of conduct [299]
| CLAIM TO QUEANBEYAN FACTORY | [306] |
| THE CLAIM UNDER THE FAMILY PROVISION ACT | [340] |
Jurisdiction and powers of the Court under the Family Provision Act [341] Ms Hillman’s situation [355]
| CLAIM FOR FURNITURE | [406] |
| DISPOSITION | [409] |
1. On 15 April 2009, Graeme William Box made a simple will of three paragraphs and
all contained on one page. The simplicity of the will, unfortunately, belies the
complexity of litigation that it has spawned.
2. Mr Box was born on 8 February 1948 and died on 23 November 2009. Mr Box
married twice; he first married Sarah Dobel in 1968 and three children were born
during that marriage, Lynda Box, Debrah Box and Skye Box. They are the
defendants in these proceedings.
3. I do not have any details of how that marriage ended nor of his second marriage to
Helen Hewitt or how that marriage also ended. In any event, Mr Box entered into a
domestic relationship in 1998 with Noelle Elizabeth Hillman, the plaintiff.
4. That relationship is said to have ended in 2006. I shall deal with that later.
5. During the relationship, Mr Box and Ms Hillman together purchased a number of
properties for investment.
Mr Box’s will, of which probate was granted on 2 March 2010, appointed his
daughters, to whom I will refer for ease of reference and with no disrespect intended,
as Lynda, Debrah and Skye, as his executors and left them the whole of his estate in
equal shares as tenants in common. Ms Hillman was not mentioned in the will at all.
7. Ms Hillman commenced proceedings on 26 August 2010, originally under the Family
Provisions Act 1969 (ACT), seeking that provision be made out of Mr Box’s estate
for Ms Hillman and certain declarations concerning dealings and property to which I
will later refer.
8. The proceedings came on for hearing on 17 December 2012. On 20 December 2012,
I granted leave to the defendants to file an experts report on or before 8 January 2013,
but otherwise reserved my decision.
THE EVIDENCE
Introduction – Background
9. In order to understand the proceedings, it is necessary to set out in more detail the
circumstances of the relationship between Mr Box and Ms Hillman and their various
property dealings.
10. The evidence was that, in 1998, Mr Box and Ms Hillman were introduced by a mutual
friend. Ms Hillman said that, about six weeks later, Mr Box asked her to marry him
and bought some rings. She declined, but they lived together until 2006. The nature
of their relationship after that will need to be considered in detail later.
During this time, Ms Hillman said that they “shared [their] lives and gave each other
assistance and support”.
12. Mr Box and Ms Hillman initially lived in a property at Latham, owned by Ms Hillman
and which she had purchased in about 1994. It was then unencumbered. They later
lived in some of the homes they purchased together.
13. Mr Box was a qualified builder and was said to be self-employed and continuously
working during their relationship. It appears, in fact, that he earned the bulk of his
income from work he did for a company, GMC Pty Ltd trading as Capital Shopfitting.
From 3 October 2002 to 23 November 2009, he seems to have earned $430,673.40
from that company. Although there was a suggestion that for a period Mr Box was
unemployed, I do not accept that. The evidence satisfies me that he was employed at
least during the period of his relationship with Ms Hillman. From time to time, he
was paid for his work in cash. Lynda said that he worked until about six months
before his death.
14. Mr Box and Ms Hillman were involved together in purchasing properties and
renovating them with a view to selling them at a profit. I shall have to deal with that
in more detail later.
The relationship after 2006
In 2006 they “separated” (Ms Hillman’s word) and Mr Box went to live in a factory in
Queanbeyan (“the Queanbeyan factory”) that he had purchased and which included a
three-bedroom self-contained unit. Lynda put the date of separation as August 2006.
16. Ms Hillman said that, nevertheless, they “continued to relate”, though Ms Hillman
then lived at her property at Latham.
17. Ms Hillman stated that Mr Box moved to the Queanbeyan factory as “it was closer to
his work at that time”. She said that they were renovating it. Ms Hillman said that
the relationship, however, did not alter, and they would spend weekends and other
times together, staying at either Latham or Queanbeyan to each of which properties
they both had keys.
She described her relationship with Mr Box as “a very loving and caring relationship”
from the beginning to the end.
19. In about May 2009, Mr Box was diagnosed with cancer and required treatment.
Ms Hillman stated in her affidavit
I looked after the deceased at the end. I talked to his doctors. I bathed him. I drove him to outings to make his last days better.
20. She later particularised some of this assistance as follows:
(a) The Plaintiff supported and cared for the Deceased throughout the parties’ said domestic relationship;
(b) The Plaintiff cared for the Deceased after the deceased was diagnosed with cancer (in or about May 2009); (c) The Plaintiff accompanied the Deceased to his medical appointments and treatments from May 2009 and allowed him to visit the Plaintiff’s home from when he could no longer care for himself. Oxygen was delivered to the Plaintiff’s home for the Deceased’s use.
Also the Plaintiff visited the Deceased at his home frequently to care for him.
She later added that initially she was Mr Box’s sole carer and went with him to all his
appointments with his oncologist and radiation specialist. She said she would shower,
shave and dress him and wash his clothes as well as cook for him, though this seems
likely to have only occurred after the progress of the cancer rendered him disabled
and unable to care for himself, a point at which other evidence not entirely consistent
with this evidence suggested other arrangements for such assistance had actually been
made.
22. Ms Hillman explained that her mother was ill with cancer at this time as well, which
required her to travel to Sydney and to leave her part-time job to care for both of
them. She referred to other activities, such as attendance at theatre performances and
concerts, to which she took Mr Box until he was too ill to attend.
23. Lynda gave evidence about this period also, however, which was very different to that
of Ms Hillman. She said that after Mr Box was diagnosed with cancer, she and her
sisters set up a roster to ensure one of them saw him every day and, as his condition
deteriorated, one of them was with him at all times.
24. Debrah lived in Townsville but came to Canberra to live with Mr Box and to take care
of him. In an affidavit, Debrah gave the dates when she was in Canberra from her
home in Townsville as 19 June to late September 2009, when she returned to
Townsville for two weeks. She returned to Canberra in early October 2009 until
11 November 2009, and then again from 19 November to 8 December 2009, a total of
about five months, or a little over four months to the date of Mr Box’s death on
23 November 2009.
25. Prior to that, Lynda made arrangements with her employer to work out of the office
from about midday, when she would go to Mr Box’s residence to be with him. She
would also be with him for one day at the weekend and Skye would be with him on
the other day.
26. From the last six weeks of his life, Mr Box lived in Lynda’s main bedroom to have
easy access to the ensuite. He moved into Claire Holland House for the last week and
a half of his life.
27. Lynda said that Ms Hillman did not visit Mr Box once in the last month of his life.
28. As to the matters to which Ms Hillman referred and which I have set out above
(at [20]), Lynda stated in one of her affidavits
Dad was happy for the plaintiff to him to some appointments and we did not want to argue with Dad. My sisters and I were more than able to and had made arrangements to take him. I regularly drove Dad to Sydney for
specialist appointments. The oxygen was delivered to the plaintiff’s house
because no one was at home at my house to sign for it as we were always at
Dad’s side taking care of him. The plaintiff was not visiting to care for him
as one of us was always looking after him. As far as we were concerned the plaintiff was visiting as a friend like all his other family, work mates and friends did.
29. This was in context to the evidence of Ms Hillman about caring for Mr Box until his
death, as set out above (at [19]).
30. Debrah deposed in her affidavit that while she was looking after Mr Box, Ms Hillman
spent one night at the house where she was staying. She added that Ms Hillman made
Mr Box sleep on the floor while she slept on the lounge where he had been sleeping
because he was unable to climb the step between the living room and the bedroom.
The purchasing of properties
31. I turn then to the period from when Ms Hillman and Mr Box commenced their
relationship and the operation of buying and selling houses.
32. From 1999, Mr Box and Ms Hillman purchased a number of properties. The first
property was a residential property in Spence, purchased on 19 February 1999 for
$75,000 in the names of both as joint tenants. I refer to this as the Spence property.
33. The funding for that purchase came about in this way. On 21 January 1999, Mr Box
deposited into his IMB account the sum of $297,406.21 which was the net proceeds of
the sale of a property he had owned at Bingie, New South Wales since before he met
Ms Hillman.
34. Ms Hillman said that she was a signatory on that account but there was no evidence to
show that she otherwise had any legal entitlement to the funds in that account. It does
not seem to me that this made the account a joint account of the kind described in
Russell v Scott (1936) 55 CLR 440. While Ms Hillman had authority to operate on
the account, the chose in action represented by the account was a debt the bank owed
to Mr Box alone.
35. The purchase price for the Spence property came directly from that account.
Ms Hillman, in her affidavit of 21 December 2010 (her fourth affidavit) deposed that
she paid $10,000 in cash borrowed from her sister as the deposit for the purchase of
the property. In her oral evidence, however, she said that she had contributed
$10,000, not for the deposit, but for the purchase of paint, curtains, a new screen door,
electrical work including a stove and of air conditioning for the property. It was clear
to me that it was not a deposit, as Ms Hillman had claimed, in the ordinary
conveyancing sense. Ms Hillman’s evidence suggested payments for improvements
to the property, but the entire funds for its purchase came from funds of Mr Box
alone. The payments for improvements are, of course, a relevant matter, but not a
deposit as she had claimed.
36. While Ms Hillman asserted a number of times that she and Mr Box
were a couple, we were partners and we would do everything equally and
share. And what he has was mine and what I had was his
it was clear that each had separate property; each of them had separate bank accounts,
Ms Hillman was at all relevant times the only registered proprietor of the property at
Latham. I note, too, that Mr Box was not a signatory on Ms Hillman’s bank account
and had no capacity to access the funds in it.
37. In about March 1999 Mr Box and Ms Hillman opened a joint account with St George
Bank. It was used for many of the transactions they made in relation to the properties
they purchased, rented and sold. There may have been other such accounts, but both
retained their individual accounts.
38. On 26 February 1999, Mr Box and Ms Hillman purchased a property at Deakin for
$220,000. The funds for that purchase also came from the IMB account of Mr Box,
utilising further of the funds received from the sale of the property at Bingie.
39. In her fourth affidavit, Ms Hillman deposed that she contributed $110,000 to the
purchase price of the Deakin property. That is not supported by the evidence.
Ms Hillman explained in her oral evidence that what she described as her contribution
was made because of her asserted interest in the IMB account of Mr Box. She said
that the funds came from the “joint account”, but that is not correct either and
ultimately she conceded that the funds came entirely from the proceeds Mr Box had
received from the sale of his property at Bingie.
Ms Hillman asserted that she also provided funds to “finance, maintain, upkeep and
improve” the Deakin property, amongst others. No affidavit evidence identified what
amounts had been spent on these matters. In her oral evidence, Ms Hillman was
unable to identify any such amounts. She conceded that she contributed no funds to
finance the property as she acknowledged that all the funds came from Mr Box’s IMB
account.
41. The Deakin property was sold on 28 June 2000 for $320,000. The proceeds of the
sale were paid into the IMB account of Mr Box.
42. On 18 March 1999, Mr Box and Ms Hillman, as joint tenants, purchased a property in
Ainslie for $185,000. The deposit was paid from Mr Box’s IMB account. The
balance of the purchase price was provided by a loan made jointly to Mr Box and
Ms Hillman by St George Bank. Ms Hillman made no mention of this property in her
earlier affidavits apparently through a simple error.
43. The property was sold on 26 April 2000 for $230,000. On settlement, $196,000.27
was paid to St George Bank to discharge the loan. The balance of the funds received
on sale was equally shared between Mr Box and Ms Hillman. It was asserted to be
about $9,000 each and Ms Hillman appeared to accept that, though the evidence was
unclear.
44. The next property they purchased was in Reid. It was purchased on 9 January 2001
for $400,000 by Mr Box and Ms Hillman as joint tenants. Mr Box provided the
deposit of $40,000 and then a further amount of $210,242 from his IMB account as
well as paying from that account stamp duty of $13,515. These funds are traceable to
the original funds received by Mr Box from the sale of his property at Bingie. The
balance was provided by a joint loan to Mr Box and Ms Hillman from St George
Bank of $140,000. There was no evidence of Ms Hillman providing $200,000 as she
asserted in her affidavit. At best, she provided $70,000, being half of the joint loan
required for the balance of the purchase price for which she was jointly responsible.
45. This property was sold on 26 September 2003 for $835,000. The amount to discharge
the mortgage was $168,175.66, suggesting that little of the principal had been
discharged, thus making Ms Hillman’s actual contribution of finance very limited.
The evidence was a little unclear but Ms Hillman acknowledged receiving $230,000
from the sale proceeds and that accorded with contemporaneous notes on their
lawyer’s conveyancing file. In any event, the net proceeds were paid equally, one
half to each of Mr Box and Ms Hillman.
46. On 7 October 2003, Mr Box and Ms Hillman purchased a property in Campbell as
joint tenants. The purchase price was $600,000. The source of the funds to purchase
the property was somewhat obscure on the evidence. A loan of $400,000 from
Westpac Banking Corporation contributed the bulk of the purchase price.
Ms Hillman initially suggested in her December affidavit that she contributed
$300,000. That includes her joint liability for the loan. She suggested that she also
used some of the proceeds of the sale of the Reid property, though she used $100,000
of that money for another purpose to which I refer below (at [51]). That may have
been so; on the other hand, in oral evidence, Ms Hillman actually stated that she and
Mr Box borrowed the further $200,000 to complete the purchase, which is contrary to
that.
47. The property at Campbell was sold on 15 August 2008 for $762,000.
48. Ms Hillman acknowledged receiving $99,000 from the sale. She said that she and
Mr Box shared the net proceeds equally. Lynda said that her father told her that this
payment was part of the settlement he made when he and Ms Hillman separated.
49. There were also property transactions by Mr Box and Ms Hillman which did not
directly involve the other. I have already mentioned Ms Hillman’s Latham property
which she had purchased before the relationship developed and which she owned at
all relevant times herself. She said that she and Mr Box lived there from time to time.
At other times, when they were living elsewhere (principally, it appeared, in the Deakin and then Reid properties), it was rented and the rental received applied
towards paying bank loans for the purchase of other properties.
50. In addition, in early 2002, Ms Hillman purchased a property, which was referred to at
all times to as being at Kingston, though it may have actually been in Griffith. I shall
refer to it as the Kingston property. She borrowed funds secured by a mortgage over
the Latham property for about 18 months. The property was purchased in the name of
Ms Hillman and her daughter, though there was no evidence that her daughter paid
any part of the purchase price.
51. Ms Hillman said that she applied $100,000 of the proceeds she received from the sale
of the Reid property to discharge the mortgage loan. She also said that she transferred
the property to her daughter in 2003. Although a title search of the property on
17 December 2012 showed the property still registered in the joint names of
Ms Hillman and her daughter, she tendered an account from Nelson & Co for the
following work:
To our costs of and incidental to acting to acting on your behalf in relation to Deed of Trust to your daughter in relation to your share of [Redacted] Kingston ACT, including drafting and attending you on execution of Deed of Trust and Transfer to your daughter together with all other necessary documents.
52. Mr Box also purchased a property in his own name alone. This was the Queanbeyan
factory. It was purchased on 15 December 2003 for $340,000. Lynda says that her
father told her that he bought the Queanbeyan factory from his share of the proceeds
of the sale of the Reid property. She said he was very proud of being able to do so.
Mr Box would, however, have needed some additional funds to complete the
purchase.
53. Ms Hillman said there was some discussion with Mr Box about the Queanbeyan
factory before it was purchased. She said that the discussion was that Mr Box said
that it would be “good ... to buy the factory so [they] could increase [their portfolio]”.
This is rather an odd conversation, given that it was the only property purchased
solely in the name of Mr Box. She added that he said he intended “to buy the factory
so [they] could make [their] business more profitable so [Mr Box] could work in the
factory and do the renovations on the houses that [they] were going to buy and that
[they] already have”.
54. The summary of the conveyancing file that was admitted into evidence showed that
the deposit of $34,000 was paid by a St George Bank Cheque, the stamp duty of
$10,793.00 paid with a St George Bank Cheque and on settlement $260,000 was paid
with a St George Bank Cheque. These funds did not come from the joint account
with St George Bank. Cheques drawn on a Westpac Bank account for $42,567.22 and
$1,668 were also produced on settlement. They coincided with a mortgage taken over
the Spence property.
55. Ms Hillman denied that Mr Box used the proceeds he had received from the sale of
the Reid property to purchase the Queanbeyan factory, though she said that she
thought Mr Box used some of those proceeds to purchase machinery for the factory.
56. Ms Hillman thought that a line of credit was taken out with the Westpac Bank to
finance the purchase of the Queanbeyan factory. She suggested that it was in joint
names. She seemed to agree, however, that only $55,047 was drawn down on that
line of credit. Her evidence was
I know that when we bought the factory, my recollection is when we bought
the factory we didn’t have enough funds so we had to go and borrow funds to
buy the factory and those funds went towards the factory.
She added that they “had to mortgage Spence to buy the factory” and this was from
Westpac Bank. This is supported by a recital in the Termination Agreement, but no evidence shows that anything other than the small amount I have mentioned at [56]
was provided by the Westpac Bank.
58. Ms Hillman tendered no documents to support her recollection of the transaction.
This was troubling as it was the only property bought in the name of Mr Box alone
and at the time when she was applying proceeds of the Reid property for a purchase of
a property, the Kingston property, in which Mr Box had no interest.
59. Given that there was no such documentation, I am not satisfied that Ms Hillman had
any direct interest in the Queanbeyan factory apart from that which may come from
her joint ownership of the Spence property over which a mortgage to secure a small
loan was made. She has simply not satisfied me that she has any further interest.
60. The conveyancing file shows that all dealings on this property, unlike with the
conveyancing files for the other properties, were all conducted by Mr Box alone
without any evidence of dealings by Ms Hillman.
61. Her evidence about these transactions has been coloured by a view of the joint nature
of the business of purchasing, renovating and selling the various properties and which
she asserted in her affidavit, but which has simply not been substantiated by the
documentary evidence. Indeed, much of the documented evidence is to the contrary
of her view. I am, therefore, not prepared to rely on her assertions about these matters
which are not corroborated by documents, especially where it appears there is no
reason why such documentary evidence, such as documents from Westpac to show
the position, could not have been obtained and where there has been no explanation as
to why they have not been obtained.
62. There was some evidence about the funding of the various properties where Mr Box
and Ms Hillman borrowed from financial institutions to purchase them, but none for
the Queanbeyan factory, to disclose any interest by her.
63. So far as the joint account with St George Bank Ltd was concerned, it seems that
there were three sources of funds paid into it. One was rental income of various
amounts, $600 or more to more than $1,000 per month received from properties they
owned, one was from Ms Hillman’s wages of between $300 and $650 per fortnight
and the third was from payments of between $540 and $3,000, but mostly $2,000 or
more, by Mr Box from his personal IMB account.
64. It appears that the payments from the rent varied and, in the earlier years, was more
than, but in the later years, was almost, sufficient to meet the loan repayments,
although either of the funds from Ms Hillman or from Mr Box would have made up
any difference.
65. The total amount apparently paid from Ms Hillman’s wages for the period 31 January
2001 to 19 April 2006, when the amounts ceased to be paid into the account, was
$70,500. The amounts paid by Mr Box from 23 September 2004 to 20 August 2008
was $60,460. In addition, there were earlier payments on an earlier date, namely at
least $2,000 on 30 January 2001.
66. There were also two large cash payments made into the account. The first on 23 July
2001 was of $39,628.00. Ms Hillman had no record of that. She agreed that Mr Box
did receive cash for his work but did not recall him depositing such a large amount;
she thought never more than $5,000. She could not recall that sum coming from her
personally. It seems more likely than not that it came from Mr Box.
67. The other amount was $10,000 deposited in cash on 3 April 2003. Ms Hillman gave
evidence that this came from the sale of her daughter’s car when her daughter went
overseas. There was a timing discrepancy, but I am satisfied that this sum came from
that transaction.
This analysis does not quite accord with Ms Hillman’s assertion in her affidavit of
31 October 2012 (her fifth affidavit), made in reply to the affidavits of the defendants,
where she says of the purchase of the Reid property for which a loan had been
secured:
As I had regular work, I was paying part of my wage into the mortgage. For instance Graeme and I paid about $48,024.74 in mortgage payments on the Reid property between 12 February 2001 and 26 September 2003. I contributed about $27,300.00 from my wage. About $22,049.37 was paid from rent from the Spence property. Graeme earned about $166,541.62 gross over the period of the Reid property, but made no contribution to the mortgage. Instead Graeme paid for what was needed to be paid for, for building materials to renovate the investment property.
69. This does not take into account the cash deposit. It does acknowledge, however, that
Mr Box made a contribution, in addition to his share of the rental income and the cash
deposit, by way of the renovations for which he paid for the building materials.
The separation
70. In her affidavit of 25 August 2010 (her first affidavit), Ms Hillman identifies 2006 as
when, to use her word, she and Mr Box “separated”. I assume that she used that word
deliberately. As I have noted above (at [15]), Mr Box moved into the flat at the
Queanbeyan factory. Ms Hillman remained at her home in Latham, though she said
that they “continued to relate”.
71. In her fourth affidavit, Ms Hillman referred to what she did in the following terms:
I, during the course of my domestic relationship with [Mr Box] and afterwards, made direct and indirect contributions to the acquisition, conservation, maintenance, upkeep and improvements of property and
[Mr Box’s] accumulation of wealth.
72. She went on to list a number of domestic and business contributions she said she had
made.
73. It is of significance that she was clearly accepting that the domestic relationship
between she and Mr Box had terminated: the use of the word “afterwards” would not
otherwise make any sense.
74. Nevertheless, despite these references, in her fifth affidavit, Ms Hillman asserted for
the first time that this was not how these statements should be read. In that affidavit,
she said
I now clarify that we continued in our domestic relationship until Graeme’s
death on 23 November 2009. We mostly lived under the same roof, except
for the last few weeks of Graeme’s life. When I used the word ‘separate’ in
my earlier affidavit, I meant it in the sense that we no longer continuously
lived under the same roof ...In about August 2006, Graeme moved into the Queanbeyan factory on a more permanent basis, as it was closer to his work at that time. He and I were also renovating the Queanbeyan factory. I kept my permanent residence at Latham with my daughter. Except for this change, our relationship continued as before. We would spend weekends and other periods together, staying at either the Latham or Queanbeyan properties. We had keys to each of the
properties. We paid costs on each of the properties. I looked after Graeme’s
dog ‘yogi bear’, when Graeme was away on work.
Her oral evidence was similar to this evidence. She said, “We were a loving couple
right up ‘til the day he died’”. She was emphatic about their relationship that it was
“never” over. She asserted that Mr Box told her that she “will always be looked
after”.
76. Ms Hillman did acknowledge that Lynda and Debrah looked after Mr Box when he
became ill, though she qualified that with the word “partly”.
77. Lynda said in her oral evidence that Mr Box had told her that he and Ms Hillman had
separated; she said he “made it very clear”. She said that dividing the properties, to
which I shall shortly refer, was part of the separation.
78. Lynda also said that when Mr Box came to live with her, Ms Hillman came to visit
once or twice a week but not regularly. She said that, when Ms Hillman’s mother,
who lived in Sydney, became sick, Ms Hillman went to Sydney and she did not then
visit regularly.
79. Lynda also recounted discussions with her father about how his estate was to be
managed after his death. He told her, she said, of the settlement he had reached with
Ms Hillman which had resolved their separation.
80. It was not suggested to Debrah in cross-examination that, contrary to what she had in
her affidavit asserted, she had not come from Townsville for over four months to look
after Mr Box while living with him and to care for him.
The Termination Agreement
81. Most significant to this issue is a document signed by Ms Hillman and Mr Box dated
26 February 2009. I shall refer to it by its title, the Termination Agreement. Because
of its centrality in these proceedings, a copy of it is included as a schedule to these
reasons.
82. It is expressed to be an agreement in its title and in the first line, but the operative part
refers to it as a deed and the parties have executed it as a deed. It is expressed in the
body of the document to be an agreement. There is no reference at the testamonium
of the intention of the parties, such as “Executed as a Deed”.
83. The question of whether a document is an agreement or a deed is not always an easy
one to answer. Rolfe J gave detailed consideration to the issue in Meredith Projects
Pty Ltd v Fletcher Constructions Australia Ltd [2000] NSWSC 493 at [123]-[176].
As his Honour said (at [123]):
Whether a document is a deed or some other type of contract is not determined by how the parties describe it, but by construing the document to see whether the parties intended that it should operate as such. Such construction may be aided by admissible extrinsic evidence. None was sought to be tendered in this case to explain how the Articles of Agreement were entered into or any other relevant matters relating to it. Therefore, as I understand it, the Court must interpret the document to decide its true nature.
84. See also 400 George Street (Qld) Pty Ltd v B G International Ltd [2012] 2 Qd R 302.
85. There was here no extrinsic evidence of the precise circumstances of the intention of
the parties in this respect. Indeed, the issue was barely mentioned.
86. It does seem to me, however, that the document was a deed. I rely on the following.
(a) The use of the words “Now this Deed witnesses” before the operative clauses. (b) The subject matter related to the settlement of the ownership of real property. (c) There was no clear indication of consideration passing to or from either party
but it was clearly intended, nevertheless, that the document be binding.
(d) The testamonium was clearly in the form to be expected of a deed rather than an agreement.
(e) The attestation clauses and the method of execution was that to be expected of a deed.
(f) In her affidavit, Ms Hillman refers to the document as a Deed and refers to Mr Box also describing it as a Deed.
87. In these circumstances, I find that it was a deed and so it was binding unless set aside.
At the same time, a Real Property Transfer of Ms Hillman’s interest in the Spence
property was also signed by her.
89. The circumstances of the making of these documents were the subject of some
evidence, however, which I shall briefly describe.
90. The Termination Agreement was not mentioned in the earlier affidavits of
Ms Hillman but was referred to first in her fourth affidavit, where she stated that she
“was swayed” by Mr Box to sign the document, which she did, as well as the
Transfer. She denied being involved in its drafting or in providing instructions for its
drafting.
91. She said that Recital J of the Termination Agreement was untrue and incorrect as she,
not Mr Box, was the “primary financial provider”. I have found that not to be in
accordance with the evidence.
92. She also challenged the accuracy of Recital F though that challenge cannot be
sustained on the evidence I have set out above.
93. She further denied that she had been independently advised as asserted in Clause 7
nor was she given the opportunity to seek such advice.
94. The difficulty for Ms Hillman, however, is that unless the Termination Agreement can
be set aside (such as for misrepresentation, mistake, undue influence or
unconscionable conduct) she is bound by its terms absolutely and is precluded from
proving the falsity of any provision of it. See Xenos v Wickham (1867) LR 2 HL 296
at 323-4. Further, a party to a deed will be estopped from denying the truth of a
material representation in an executed deed. See Greer v Kettle [1938] AC 156 at 66-
7. There is nothing in the recitals of the Termination Agreement that would not be
known by both Mr Box and Ms Hillman so as to permit Ms Hillman to avoid being
bound by them. See Stroughill v Buck (1850) 14 QB 781; 117 ER 301.
95. The circumstances under which the Termination Agreement was created and signed
was the subject of some evidence. In her fourth affidavit, Ms Hillman deposed that
Mr Box asked her “repeatedly” in the months immediately prior to the signing of the
Termination Agreement to sign it, saying “I want you to sign papers at Alan Nelson’s
to fix up my affairs, don’t worry you’ll always be looked after” or words to that
effect. She repeated such conversations in a number of forms. There was no direct
suggestion in any of the conversations that Mr Box had suggested to her that she need
not get advice nor that he prohibited her from doing so.
Ms Hillman said that, at the time, she was disadvantaged as she was in a “vulnerable
state of mind and health”, being distressed, unwell and suffering from depression.
97. Ms Hillman said that she was distressed because Mr Box, whom she was asserting
was then her partner, was dying; indeed, she says that the Termination Agreement
and associated Transfer were drawn up because of that. She also mentioned in her
oral evidence, but significantly not in her affidavit, that her mother was dying, but no
date was given for that.
The Progress Notes of Ms Hillman’s General Practitioner were produced. They show
notes of visits between 28 November 2007 and 7 October 2010. On only one
occasion does Ms Hillman complain of depression, on 28 November 2007, and no
specific treatment is provided. In the next four visits, which pre-date the execution of
the Termination Agreement, there is no complaint of depression.
99. On the visit to her General Practitioner on 30 June 2009, she complains of “[s]adness
due to one of her friend’s terminal illness”. This is significant for it would appear to
refer to Mr Box. It refers to him as a “friend” and not her partner. The date is also
significant.
100. The actual execution of the Termination Agreement was also the subject of evidence.
Ms Hillman said that when she went to sign the Termination Agreement and Transfer,
she was met by Alan Nelson, the solicitor who had acted for her and Mr Box. She
said that he handed her the papers and showed her where to sign, by pointing at the
relevant parts of the documents. She said that she signed and that Mr Nelson then, as
she was signing, called in his secretary to be a witness and she then signed also. She
agreed that Mr Box was not present.
101. Ms Hillman denied that either Mr Nelson or his secretary suggested to her that she
obtain independent legal advice.
102. Ms Hillman was adamant that Mr Box had urged her to sign the document because he
was terminally ill and wanted to get his affairs in order before he died.
103. Although at first Ms Hillman thought she only signed the Termination Agreement,
she ultimately accepted that she also signed the Transfer at the same time. She agreed
that she knew what a Transfer was and what she was signing and had seen the words
on the document when she signed it. She denied, however, that she turned her mind
“even for a second” to what property she was transferring.
104. She agreed that she was used to giving Mr Nelson instructions in connection with the
conveyancing work of the business of buying and selling houses in which she and
Mr Box were engaged.
105. Mr Nelson gave evidence about the Deed. He had acted for Mr Box and Ms Hillman
for about ten years.
106. He said that Mr Box instructed him to prepare the Termination Agreement. He said
that his understanding was that it was to finalise arrangements between them and, as a
property settlement, to enable the transfer of the Spence property with nominal stamp
duty. He gave legal advice to Mr Box about the arrangement, but gave none to
Ms Hillman.
107. He said that he told his secretary that, when Ms Hillman came to sign the Termination
Agreement, she was to tell Ms Hillman that she had the right to get independent legal
advice if she wished. Mr Nelson denied that he saw Ms Hillman when she came and
signed the documents. He confirmed that his secretary was the witness to the
document.
108. He said that he had, in all his dealings with Ms Hillman, no concerns about her ability
to comprehend the nature and effect of the transactions in which he was acting and that she had no difficulty in giving instructions to him, which she did most of the
time.
109. He agreed that he did not personally tell Ms Hillman at any stage that she should
obtain independent legal advice and he did not explain the effect of the Termination
Agreement or Transfer to her, because he was not present when she signed the
document He denied that he said to Ms Hillman “I shouldn’t be doing this. I could
get into trouble for this”, as she had asserted.
110. Finally, I note that the copy of the Termination Agreement annexed to Ms Hillman’s
first affidavit was only signed by Ms Hillman. The copy tendered was, however, also
signed by Mr Box, suggesting that he signed it after she did. No-one gave any
evidence to the contrary of that inference.
111. Further the copy signed by Ms Hillman alone is undated, while the copy signed by
both is dated 26 February 2009, suggesting that this is when Mr Box signed. Whether
Ms Hillman signed on that date or earlier, the evidence does not allow me to say, but
it would have been one or the other.
Ms Hillman’s current circumstances
112. Ms Hillman gave evidence of her circumstances. She is now 64 years old. She is the
registered proprietor of her home at Latham, which is unencumbered. She estimated
its value in August 2010 as $350,000. She lives alone. She assists her daughter
financially.
113. She stated that her health is poor. She has consulted Dr Sree at Campbell for
depression. Her mother was, at August 2010, in very poor health and she visited her
regularly in Sydney.
114. She says that the only gift she received from Mr Box was a set of reference books
valued at $150.00.
115. Ms Hillman estimated her monthly expenditure at $1,564. She owns a Volvo sedan
which she values at $15,000 and has savings of $59,000. She receives a fortnightly
superannuation from the Public Sector Superannuation Scheme of approximately
$600 per fortnight. It is an indexed pension. She also receives remuneration from her
employment.
116. I note that, as at 17 November 2009, the St George Bank Ltd joint account had a
balance of $7,490.08 which, on Mr Box’s death, would and did become Ms Hillman’s
personal property by virtue of the right of survivorship. Half of the sum was a
contribution to Ms Hillman from Mr Box’s assets.
117. I have referred earlier (at [50]) to Ms Hillman’s purchase of the Kingston property
with her daughter. I did not, however, have any evidence of the value of the property
from either party, a regrettable omission. Ms Hillman provided the funds for the
property and paid off the mortgage in 2003. She says that she gifted her interest in the
property to her daughter in 2003, as noted above (at [51]). It appears that Ms Hillman
received the rent from the property for quite some time, though for some or all of that
period – the evidence did not enable me to say how long – the rent appears to have
been applied to the payments under the mortgage loan.
118. It also appears from her bank records that, from mid 2006 into 2007, Ms Hillman
performed work for a medical clinic, the remuneration for which was paid into her
personal account. She deposed in her affidavit that she continued such work into
early 2010. Later, however, she referred to employment as a carer with Domiciliary
Nursing for about twenty-two hours a week. Her income from this was not clearly
stated, but seemed to be of the order of $632 net per week.
An account in Ms Hillman’s name with IMB Ltd showed that she made a deposit of
$80,000 on 24 December 2008, presumably from the proceeds of the sale of the Campbell property, which she had received shortly before. The funds were re-
invested from time to time but relatively small amounts of capital were also
withdrawn at the time of each re-investment, leaving the balance invested. It appears
that a substantial part was used for legal fees and the balance of $14,223.68
withdrawn by her on 8 February 2011. The use of those funds was not explained.
120. I also note that, despite her employment with a number of private employers over
time, there was no evidence in Ms Hillman’s financial statements of what
superannuation she had from her employment, though it was not likely to be very
large.
Ms Hillman’s contribution to the maintenance of the bought properties
Ms Hillman’s evidence was that she did most of the bookwork for the property
transactions in which she and Mr Box were engaged, as well as giving the majority of
the instructions to Mr Nelson who acted for them.
122. She also provided domestic services to Mr Box which she described as cooking,
cleaning and other housekeeping, making contributions to loan expenses and
renovations, banking and attending to the payment of accounts, arranging and
facilitating visits to Mr Box’s factory by tradespeople, and arranging for the
electricity provider to inspect and read the electrical meter.
123. She said that Mr Box provided limited contributions of this kind, occasionally sharing
household tasks such as preparing meals and also occasionally taking her out to dine
in restaurants.
Evaluation of Ms Hillman’s evidence
124. While I did not form the impression that Ms Hillman was lying in her evidence, a
number of matters led me to consider that her evidence should be scrutinised very carefully and I generally considered that it should not be accepted unless there was
some corroboration.
125. Thus, her description of the financial contribution she made to the purchase of the
properties she and Mr Box bought was misleading at best. It proceeded from an
assumption that she and Mr Box pooled their resources when that was not so and that,
once the resources were re-used, she became a contributor of one half of the funds
which had become hers. This failed to recognise the reality of her undoubted but
limited contribution, especially financially.
126. She made statements, such as that she and Mr Box separated in 2006, which she then
sought to re-interpret in an ultimately inconsistent way.
127. She suggested in her affidavits, without any justification, that while her salary went to
the creation of joint assets, Mr Box’s earnings were all kept separate, leading to an
impression of her financial contribution to the purchase of the properties which I find
significantly inflated her actual contribution.
128. She produced an incomplete picture of her financial position, which required careful
reading of her affidavits to correct.
129. She insisted that the Kingston property was owned by her daughter, despite the fact
that she had paid, so far as I can tell, all the purchase price, apart from the mortgage
repayments that were made from the rent, and that, at the date of the hearing, her
name still appeared on the title.
130. Her description of the period leading up to the death of Mr Box was again
inconsistent with other direct facts and was inconsistent with evidence of Lynda,
Debrah and Skye, much of whose evidence was unchallenged.
131. The state of her health, which she described as poor, was not supported by the
medical evidence, though I accept that she had a number of medical problems, including serious ones, but in 2002. The medical evidence suggested that she had
fully recovered.
132. Those matters led me to conclude that I should require corroboration and not simply
accept her evidence uncritically.
Evidence of Lynda Box
133. Lynda gave evidence about her personal and financial situation. She was, at the time
of the trial, forty two years old and married. She received no direct financial support
from her husband as they keep their financial affairs separate, though they each
contributed to their joint household.
134. Between she and her husband, Lynda pays her electricity, Foxtel subscription, water
and gas expenses for their home, while her husband pays general rates, insurances,
internet and house phone expenses. They share the cost of the mortgage payments,
house cleaning and food.
135. She is a contracts supervisor with a monthly income of $6,588 after tax. Her husband
earns $2,342 per fortnight after tax. Her employment is a contract position which
ended in early 2014 and the contract will not be extended or renewed so she may
thereafter be unemployed.
136. Lynda has one son who lives with them full-time. She owns a motor vehicle with him
worth $800.
137. She also owns her own motor vehicle worth $9,300 and has superannuation of about
$90,000. She owns the family home and the household contents jointly with her
husband. The equity in the home at 2010 was about $94,000. The household goods
were worth approximately $60,000.
138. Her husband has assets of about $30,000. She has liabilities of about $43,000 and
debt and other repayments of $609 per fortnight; her husband has liabilities of $27,000 and debt and other repayments of approximately $437 per fortnight. They
have a joint liability for a mortgage loan of $286,064 and weekly expenses of $290.
139. Lynda owns no shares, other than some IAG shares she received from her father
under his will. She received about $650 worth of shares. She owns no jewellery
worth more than $5,000, no antiques and, apart from one painting worth about $4,000,
no significantly valuable household items. She has received no legacies in the last
five years, apart from what she is to receive from Mr Box’s estate.
140. She previously worked full-time in the hospitality industry.
Evidence of Debrah Box
141. Debrah also gave evidence of her circumstances. She is forty-one years old and self-
employed. She has been married but was, in 2012, in the process of applying for the
dissolution of her marriage.
142. She owns her home which has a net equity of about $70,000 and a mortgage debt of
$240,000. She owns a car worth about $18,000 and household furniture worth about
$17,000.
143. Her weekly income is about $350 from her business and tenants in her home. She has
debts of approximately $38,000 and insurance payments of $180 per month.
144. Her only shares are those received from her father as did Lynda, as I have earlier
noted (at [139]), and those in her own private company. Her wedding ring is insured
for $8,000 but she has no other jewellery valued at more than $5,000. She has, apart
from the legacy from her father, received no other assets from deceased estates.
Evidence of Skye Box
145. Skye also gave evidence of her situation. She is thirty-seven years old and in a de
facto relationship with her partner of over three years.
146. Her gross weekly income is about $826 and she receives a Family Payment of about
$69 per fortnight. She receives further income of about $53 a week.
147. Her partner receives approximately $630 per week.
148. Skye has a superannuation balance of approximately $23,000. She owes about
$10,000 for her car and $8,300 on another lease. She has debts of approximately
$19,333 and her partner also has a debt. The weekly household expenditure is $1,118.
149. Skye has a child, thirteen, for whom she receives no child support from the child’s
father. The child lives with her full-time apart from the weekends, which are spent
with the child’s father.
Skye’s employment is uncertain. She completed Year 12 at school but did not pursue
further studies. The only shares she owns are those received from her father’s estate,
as did Lynda and Skye, as noted above (at [139]-[144]).
151. Regrettably, the list of her assets said to be annexed to her affidavit was not in fact
annexed, so I did not have details of them. It does not appear, however, that she owns
her own home, as she owes rent to ACT Housing.
PROCEDURAL HISTORY
152. Ms Hillman brought these proceedings against the defendants on 26 August 2010.
The grounds on which Ms Hillman relied were not immediately clear from the
Originating Claim, which appeared to contain significant breaches of the rules of
pleading: Hillman v Box & Ors as executors of the will of Box (2010) 5 ACTLR 122
as 128; [30] (Hillman v Box (No 1)).
153. After some substantial case management (see Hillman v Box & Ors (No 1) at 124-5;
[10]-[11]; 128; [30]-[34]), I ordered that both the Queanbeyan factory and the
Spence property should be sold, subject to certain protections for Ms Hillman, so that
costs associated with the properties (such as loan costs secured by mortgage for with the plaintiff was continuing to be liable) would cease accruing: Hillman v Box & Ors
as executors of the will of Box (No 1) at 133-4; [76].
154. This approach had certain difficulties due to the issue of joint tenancy and the law of
survivorship with respect to the house in Spence: Hillman v Box & Ors as executors
of the will of Box (No 2) [2011] ACTSC 10 at [7]-[24] (Hillman v Box (No 2)).
Accordingly, on 31 January 2011, I substituted orders with regard to both properties
for an order allowing for the sale by the defendants of the Queanbeyan factory, which
is to discharge the mortgage over the Spence property. I then ordered the Spence
property to be sold, with certain conditions: Hillman v Box (No 2) at [79].
155. Following submissions of the parties, I made further amended orders on 18 February
2011: Hillman v Box & Ors as executors of the will of Box (No 3) [2011] ACTSC 24
(Hillman v Box (No 3)).
156. The Spence property and Queanbeyan factory have now been sold, as have the
chattels from the Spence house. The proceeds of these sales, less the sale costs and the
outstanding amount of the Spence property mortgage, are currently held on trust by
the defendants’ solicitors.
THE ISSUES IN THE PROCEEDINGS
157. As finally amended, the Originating Application sought a variety of orders and
declarations. These were:
(a) An order that the Plaintiff be awarded provision, (in such amount or such proportion of the Deceased’s estate, as may be determined by
this Honourable Court as an appropriate award to the Plaintiff under
the provisions of the Family Provisions 1969 (ACT) (the “Act”) for the Plaintiff’s proper maintenance, education and advancement in
life, out of the Estate of the Deceased nett after payment of all just debts, funeral and testamentary expenses and the lawful and proper expenses of Executorship and the Defendants as Executors shall upon the making of such order proceed with all deliberate speed to realize the said estate and to pay the Plaintiff such award;
(b)
A declaration that the Plaintiff was and is an eligible person to make this application under the Act;
(c)
A declaration that the documents (the purported Deed and the purported Transfer) are null and void upon the ground that neither of them was the knowing or true deed of the Plaintiff (non est factum);
(d)
Further, or in the alternative, an order that the documents (the purported Deed and the purported Transfer) be set aside upon the ground that the Plaintiff was induced to sign the documents by undue influence exerted on the Plaintiff by the Deceased;
(e)
Declarations that: the Plaintiff is entitled to the whole of the real property situate at [Redacted] Spence in the Australian Capital
Territory (‘the Spence property’) as the surviving joint tenant thereof
upon the death of the Deceased; and that the Plaintiff is entitled to the whole of the real property situate at [Redacted] Queanbeyan in
the State of New South Wales (‘the Factory’) as the surviving joint
beneficial owner thereof in equity, upon the death of the Deceased.
(f) Further or in the alternative, a declaration that the said Factory commercial property at [Redacted] Queanbeyan NSW Queanbeyan and any interest held by the Deceased in the said property at [Redacted] Spence ACT are held by the Defendants as the Deceased’s Executors upon a resulting, implied or constructive trust
for the benefit of the Plaintiff as beneficiary entitled to the whole of the property and equity in the said properties (or their proceeds) and as the surviving joint tenant thereof (or beneficial owner in equity thereof) upon the death of the Deceased.
(g) Further or in the alternative, a declaration that the said Factory commercial property at [Redacted] Queanbeyan, NSW and any interest held by the Deceased in said property at [Redacted] Spence, ACT were held by the Deceased on a resulting, implied or constructive trust for the benefit of the Plaintiff as beneficiary entitled to an equal one-half share or equity in each of those properties (or their proceeds); or alternatively, a declaration that the said Factory commercial property and any interest held by the Defendants as the Deceased’s Executors in the said property at
[Redacted] Spence ACT are so held by the Defendants upon a resulting, implied or constructive trust for the benefit of the Plaintiff as beneficiary entitled to an equal one-half share (or equity) in each of the said properties (or their proceeds);
(h) Further or in the alternative, a declaration that the said Factory commercial property at [Redacted] Queanbeyan NSW and any interest held by the Deceased in the said property at [Redacted] Spence ACT were held by the Deceased upon a resulting, implied or constructive trust for the benefit of the Plaintiff as beneficiary entitled, as a joint tenant, to an equal one-half share in each of those properties (or their proceeds); or alternatively, a declaration that the said Factory commercial property and any interest held by the Defendants as the Deceased’s Executors in the said property at
[Redacted] Spence ACT are so held by the Defendants upon a resulting, implied or constructive trust for the benefit of the Plaintiff as beneficiary entitled to the whole property and equity in those properties (or their proceeds) as being the surviving joint tenant (or joint beneficial owner in equity) thereof upon the death of the Deceased;
(i) An order, such as this Honourable Court may think fit to make, that
the Plaintiff’s costs of and incidental to these proceedings, (as agreed,
or as assessed or taxed), be paid by the Executors personally (and not
out of the Deceased’s estate); or in the alternative, be paid out of the
said Estate to the extent that the said Estate is capable of meeting those costs and, to the extent that it is not, then by the Defendants personally and further in that event also that the Defendants personally be ordered to reimburse to the estate any such costs herein that are paid out of the estate;
(j) An order permanently restraining the Defendants, by themselves, or by any servant, agent, nominee, assign or instrument of theirs, from registering or seeking to register, the purported Transfer, or any other transfer in favour of the Deceased or the Deceased’s estate, which the
Defendants may hold in respect of the property at [Redacted] Spence,
ACT or otherwise dealing with that property;(k) A declaration that the Plaintiff is wholly entitled to the ownership of the following chattels acquired jointly by the Plaintiff and the Deceased (or to the proceeds of the said chattels) and that they do not form any part of the estate of the Deceased:
(a) machinery and tools including rare and antique tools, paintings and antique furniture; (b) rare timber planks for furniture making; and (c) wine collection (l) An order that the Defendants, at their expense, shall forthwith deliver up to the Plaintiff the said chattels in good order and in good condition; (m) Alternatively, a declaration that the Plaintiff is entitled to one half of the chattels referred to in sub-section (1)(i) above, (or to one half of the proceeds of the said chattels); (n) An order that the Defendants shall provide to this Honourable Court and to the Plaintiff through her Solicitors, a written accounting as to what, if anything, the Defendants have done with, or with respect to, the said chattels, including full details of any sale or other disposal of the same; (o) An order that the Defendants shall provide to this Honourable Court and to the Plaintiff through her Solicitors, an accounting in writing as to the Defendants’ administration of the Deceased’s estate, including
full details of the expenditure of any monies and in particular, of the present whereabouts of all items of property owned by the Deceased at his death; and
(p) An order that the Defendants pay the Plaintiff damages or compensation, and interest, for the Plaintiff’s loss of rental income
from the Spence property consequent upon the actions of the Defendants in preventing the Plaintiff from renting out the Spence property.
158. The actual issues in the proceedings, however, were essentially five.
159. The first related to whether the Termination Agreement should be set aside.
Ms Hillman submitted that it should be set aside because she did not “bring a
consenting mind” to its execution and that it should be set aside as non est factum or,
alternatively, that equity should set it aside because of undue influence exerted on
Ms Hillman to execute it such that it was unconscionable to give effect to it.
160. The second issue related to the Spence property (now its proceeds) which was
registered as a joint tenancy between Ms Hillman and Mr Box and which Ms Hillman
submitted should become her property by virtue of her right of survivorship.
161. The third issue was that Ms Hillman submitted that she should have an order under
the Family Provisions Act 1969 (ACT) (a family provisions order) because proper
provision should have been, but was not, made for her in Mr Box’s will.
162. The fourth issue was that Ms Hillman submitted that she was entitled to an interest in
the Queanbeyan factory (now its proceeds) under a constructive trust in her favour.
163. The fifth and final issue was that Ms Hillman submitted that she was entitled to
certain chattels or their value which she said were joint property.
164. It is convenient to consider each of these in turn. It seems appropriate to consider first
the question of the validity of the Termination Agreement, a decision on which will
set the scene for the other issues to a lesser or greater extent.
165. Before considering these issues, however, it is convenient to deal with one matter that
is relevant to a number of these issues, namely whether in fact Ms Hillman and Mr Box had separated in 2006. Ms Hillman denied it. The Termination Agreement
asserted it and Lynda, Debrah and Skye each said that they had separated.
Relationship between Mr Box and Ms Hillman after 2006
166. Ms Hillman first mentioned the separation between Mr Box and herself in her first
affidavit filed in support of the Originating Claim. She deposed:
I lived in a domestic relationship with the deceased for 8 years continuously from 1998 to 2006. In that period, we cohabited and shared out lives and gave
each other assistance and support. We separated … He went to live in the
factory at [Redacted], Queanbeyan referred to in paragraph 17 below where
there is a three bedroom self-contained unit but we continued to relate.
167. This is consistent with the affidavit evidence of Lynda of 7 July 2011 (the July
affidavit), which states:
I say the plaintiff and my dad were in a defacto relationship from approximately late 1998. That relationship had ended in August 2006. Dad moved into the Queanbeyan factory and the plaintiff returned to live at her Latham property.
168. This, however, conflicts with the oral evidence of Ms Hillman as she gave it. In
particular, the following exchange took place:
MR HASSALL: Could you tell the court how you understood your relationship with Mr Box was at that time [August 2008]?---Our relationship was a very
loving relationship. It was the same as always from the beginning ‘til the end.
It was a very loving and caring relationship.
In particular, are you saying that at the time the Campbell property was sold,
that is to say August 2008, that was the case?---Yes, that’s right.
169. In cross-examination, Ms Hillman confirmed:
MR WARD: … The factory, what you describe as the factory at Queanbeyan, is where Mr Box lived, isn’t it?---At the later date, yes, he did live there.
When do you say he moved into Queanbeyan?---Well, we were both living in Queanbeyan and we were both living at Latham so that was his residence and my residence. We were living in both places.
For how long were you living in a factory, Ms Hillman?---Sorry?
For how long were you living in a factory?---I didn’t actually move there
entirely but we had - - -
You never moved there did you, Ms Hillman?---No, no.
You just said to His Honour a moment ago that you both lived there, that was
false, wasn’t it?---We both lived there because I used to sleep there and spend
like days there, weeks. So that’s living there, so I did.
You never changed your address to Queanbeyan, did you?---No, I never changed my address but I did live there with him. We both lived together.
You spent some nights there?---We spent many many nights there, yes, because that was our home and he spent many nights at Latham.
Was that your home as well?---Yes, we had both homes.
I want to suggest to you, Ms Hillman, that in fact certainly by 2006 Mr Box had
made it very clear that he didn’t want to live with you anymore?---That’s not
true, not at all.
Mr Box was seeing other women, wasn’t he?---No, never.
Never?---No, not that I know of.
Mr Box did not want to live with you at Latham?---That’s not true. He did live
with me. He did live in Latham. He slept in Latham. He came to Latham. I
went to the factory.
I suggest to you, Ms Hillman, that in fact your relationship was well and truly
over by 2006?---No, that’s not true, not true at all.
It was certainly over by 2009?---No.
You say that you were still in a loving caring relationship by February 2009---
Yes, yes.Can you explain to His Honour if that was the case, why Mr Box would have thought it necessary to prepare, or have prepared, the deed of termination?---
Well, he was getting his paperwork – all his – all his paperwork in order before
he died.
Part of putting his paperwork in order was finalising the financial dealings
between you and Mr Box, wasn’t it?---Not at all, not at all. He said he wanted
to get his life – paperwork in order before he died and he said to me, ‘You will
always be looked after, Noelle’.
170. Ms Hillman made no mention in her first affidavit of any relationship with Mr Box
between 2006 and Mr Box’s death. The first mention she made of it was in her fourth
affidavit, in which she deposed:
22. I made contributions to the Deceased’s welfare particularly as follows:
...
(b)
I cared for the Deceased after he was diagnosed with cancer (in or about May 2009);
(c)
I accompanied the Deceased to his medical appointments and treatments from May 2009 and allowed him to visit my home from when he could no longer care for himself. Oxygen was
delivered to my home for the Deceased’s use. Also I visited the
Deceased at his home frequently to care for him.
171. In response to this, Lynda deposed in her July affidavit:
30. In relation to paragraph 22, I say that once Dad was diagnosed with cancer Debrah, Skye and myself set up a roster to ensure someone saw him every day. As Dad got sicker, we made sure that someone was with him at all times. Debrah came from Townsville and lived with Dad for four months to take care of him. Before then I had made an arrangement with my workplace to work out of the office every
afternoon and I would go to Dad’s house at around midday every day
and one day on the weekend. Skye would visit the other day on the weekends. In the last six weeks of his life Dad moved into my main bedroom with the ensuite as he was unable to walk distances. The last week and a half of his life was spent at Claire Holland house. The plaintiff did not visit Dad once in the last month of his life.
31. In relation to paragraph 22 (c) I say that the only reason the plaintiff took him to some medical appointments was because she insisted so. Dad was happy for the plaintiff to him [sic] to some appointments and we did not want to argue with Dad. My sisters and I were more than able to and had made arrangements to take him. I regularly drove Dad to Sydney for specialist appointments. The oxygen was delivered to the plaintiffs house [sic] because no one was at home at my house to sign
for it as we were always at Dad’s side taking care of him. The plaintiff
was not visiting to care for him as one of us was always looking after him. As far as we were concerned the plaintiff was visiting as a friend like all his other family, work mates and friends did.
172. In Ms Hillman’s fifth affidavit, which was made in reply to Lynda’s July affidavit,
there was, then, further evidence about the relationship immediately prior to Mr Box’s
death:
30. ... Ms Box’s statements are not consistent with my recollection. It was only in the last few weeks of Graeme’s live [sic] that he moved into Ms
Box’s home ... My strong recollection is that Graeme hadn’t told his
daughters about his illness until much closer to his eventual demise.
Regardless, I say that:
30.1 I was not aware of the alleged roster set up by the defendants 30.2 My recollection is that Graeme’s daughter, Debrah, came to Canberra from time-to-time, and was not here permanently.
Debrah had initially come to Canberra for Ms Box’s wedding.
Debrah stayed at the Queanbeyan factory, but I was also there almost every day and night. M[y] recollection is that during
Debrah’s stays I showered, shaved and dressed Graeme. Debrah
was mostly on her computer.
30.3 I visited Graeme everyday in about the two weeks before his death. I was in Sydney when he died. This was made harder in the last about 4 weeks, when Graeme moved into Ms Box’s property. 30.4 I was recall [sic] that Ms Box would arrive at the Queanbeyan factory, at approximately 3 PM with a laptop and stay until about 5 PM. ... 31. I refer to her paragraph 31 and say that her words are harsh and wrong.
173. In an affidavit of 17 December 2012, Debrah deposed that:
2. ... In response to [paragraph 30] I say as follows:-
(a) There was at least one of myself, my sister Lynda or my sister Skye with the deceased during this period (b) I am aware that my sister Lynda gave the Plaintiff a key to her house to enable her to come and go from the house as she pleased (c) While I was staying with my father at the house in Queanbeyan and Ngnunnawal, the Plaintiff visited:- i. the Queanbeyan house on approximately 5 occasions; and
ii. the Ngunnawal house on approximately 2 occasions.
The Plaintiff was not there as she alleges “almost every day
and night”. I was living in the house for extensive periods of
time flying down from my home in North Queensland and
running my business from the house via mobile internet.
174. As I have noted above, Debrah also provided a schedule of her trips to Canberra
spending nearly five months of her time in Canberra. She was not challenged on this
evidence in cross-examination.
175. It was put to Lynda in cross-examination that Mr Box did not tell her that the receipt
of the half proceeds of the sale of the Campbell property in 2008 was part of the
settlement on separation. She denied that what she had said was untrue and affirmed
that Mr Box “made it very clear [Ms Hillman] and him [sic] had separated ... [a]nd
dividing the properties was part of that separation”.
176. Lynda was also challenged in cross-examination about her statement that Mr Box had
told her that he had “bought the Queanbeyan factory from [his] share of the sale of
Reid”, but again she maintained that it was true, adding that Mr Box “was very
proud” of the fact that “he was able to pay cash for a property”. She said she was of
the understanding that he still owned the Campbell property at the time.
177. Lynda also denied that Ms Hillman visited Mr Box regularly in his last illness, saying
that she was in Sydney because her mother, who lived there, was sick, though “she did visit up to a point before she went to Sydney”. She said that when Mr Box moved
into her house, they saw Ms Hillman once or twice a week “but not regularly, as on a
daily, all day sort of occasion”.
178. Neither Skye, who gave no evidence about this issue, or Debrah, were asked any
5(iv) and 5(v), the Deceased and I made … financial contributions to
the purchases of those properties by way of contributions to the
purchase prices of those properties as follows:...
(d) as to [Redacted] Queanbeyan NSW: the Deceased and I contributed jointly about $350,000 (that is, about $175,000 each). 11. The Deceased and I made our financial contributions as in paragraph 10 above from (a) monies held in or upon our joint account; and (b) monies borrowed by us jointly.
... 13.
Subject to paragraph 12 above, in the case of each of the real properties referred to in paragraph 5 above the Deceased and I contributed the funds required to finance, maintain, upkeep and improve the same. The Deceased and I paid for loan interest, and for works for maintenance, upkeep and improvements with respect to the properties from moneys held in or upon our joint account.
14.
In the case of each of the real properties referred to in paragraph 5 above the Deceased and me each made equal non-financial contributions to the maintenance, upkeep and improvement of those properties. The Deceased and I performed works, in equal measure, to maintain, upkeep and improve the properties.
15.
At or about the times each of the properties in paragraph 5 above were acquired, the Deceased and I spoke words to each other to the effect that they were to be join investments by the Deceased and I for our equal benefit and they would be held us by us as joint tenants. After finding a property in the newspaper we would discuss the
investment and use words to the effect of, ‘We want the worst house in the best street or suburb that will make the most money for us together. All properties will be in joint names and if one of us dies
then the surviving person will own it.’ ... 18.
The nett proceeds of the sales of the real properties referred to in sub- paragraphs 5(ii), 5(iii) and 5(iv) of paragraph 5 above were
successively re-invested … by the Deceased and me in the succeeding pieces of real estate referred to in sub-paragraphs 5(iii), 5(iv) and 5(v) above, respectively, in the manner as indicated in paragraph 19 below.
325. Ms Hillman referred to non-financial contributions also in some detail and to which I
do not need to refer.
326. In her oral evidence, Ms Hillman referred to a discussion with Mr Box about the
purchase of the Queanbeyan factory in which she said he told her that “it would be
good for us to buy the factory so we could increase our portfolio and buy more
properties”. She added:
His intentions were for us to buy the factory so we could make our business more profitable so he can work in the factory to do the renovations of the houses that we were going to buy and that we already have.
327. When asked if she could remember the words that he used she said
Well, he was – we were both very excited. He was very excited to buy the
factory because, you know, in actual fact it was going to benefit both of us
and the work we were doing – was a major thing in the work we were doing
with renovating the properties that we were buying.
328. In cross-examination, Ms Hillman agreed that the only borrowings in respect of the
purchase of the Queanbeyan factory was through a line of credit from Westpac, of
which $55,047 was drawn down. This was not the $150,000 to which she had
referred in the affidavit. She had made no direct contribution to that loan.
329. Ms Hillman agreed also that Mr Box lived in the Queanbeyan factory, though she
asserted that she stayed there sometimes, including overnight and for some days at a
time. She did not, however, change her address and still lived in her home at Latham.
She never moved in to live at the Queanbeyan factory. She then said, curiously and
somewhat inconsistently, that she and Mr Box “had both homes”. She said, too, that
Mr Box came to Latham and slept there from time to time.
330. Ms Hillman acknowledged that, unlike all the other properties, the Queanbeyan
factory was not purchased in their joint names, but only in the name of Mr Box. This is inconsistent with paragraph 15 of her fourth affidavit set out above (at [324]).
Significantly, she gave no explanation for that.
331. The property was purchased almost entirely from the proceeds of the sale of the Reid
and Campbell properties received by Mr Box himself. It is of some significance in
this context that Ms Hillman used part of the proceeds she received from the Reid sale
to pay the mortgage of the Kingston property which was in the name of her daughter
and herself; Mr Box had no interest in that property, as he had no interest in Ms
Hillman’s Latham property.
332. In this context, it was at least misleading, if not false, for Ms Hillman to depose, as
she did, that the financial contribution to the purchase of the Queanbeyan factory was
made by her. While the funds used to purchase the Queanbeyan factory “included”
the loan from Westpac Banking Corporation, it was incorrect for her to assert, to put
them at “approximately $150,000”. She provided no funds herself, other than through
the joint loan and she pointed to no evidence in any bank statement to show this.
333. Her evidence is also contradicted by what Lynda said she was told by Mr Box.
334. It was clear, too, that Ms Hillman considered that funds in Mr Box’s own account
were hers because she was a signatory to the account. She emphasised that she and
Mr Box agreed that everything would be joint and they would share. That, of course,
is not correct, for Ms Hillman never put her Latham property in joint names and never
used it for security for loans to fund the purchase of the various properties. The
property in Kingston, also, was another of her properties (with her daughter), despite
her assertion that “we never ever separated anything” and “because everything we
bought was joint”. That simply was not the case. Both had separate bank accounts,
though Ms Hillman could operate on that of Mr Box, though he could not operate on
hers.
335. Ms Hillman did not particularise any financial or non-financial contribution she made
to the purchase or maintenance of the Queanbeyan factory or produce any documents
to show such contributions. She did not live there, at least in any sensible sense.
Thus, her contribution to domestic services must be held to be limited.
336. I do not accept her evidence on the issue of the Queanbeyan factory. Accordingly, I
am unable to accept that there was any joint intention that the property was to be
owned jointly. It simply flies in the face of the evidence.
337. That finding is sufficient to dispose of the claim for a constructive trust. I am
prepared, however, to go further and find that Ms Hillman has suffered no detriment.
Insofar as moneys were paid into the joint account by her she has not satisfied me that
they were paid out to Westpac in respect of the line of credit. Even if they were, I am
not satisfied that Mr Box did not make substantial contributions to the living expenses
of both parties and thus to meet any payments she may have made to Westpac.
338. I have tried, without the assistance of either counsel, to understand the various bank
accounts and I am unable to conclude that Ms Hillman made any significant
contribution to the Queanbeyan factory other than to permit the Westpac line of credit
to be secured over the jointly owned Spence property. That involved her suffering no
detriment to which she pointed in evidence or submissions.
339. The claim for a constructive trust must be dismissed.
THE CLAIM UNDER THE FAMILY PROVISION ACT
340. Ms Hillman submitted that no adequate provision had been made by Mr Box for her
under his will of 15 April 2009. Indeed, no provision at all was made for Ms Hillman
in Mr Box’s will. She submitted that the failure to make such provision warranted the
court making an order, a family provision order, under s 8(1) of the Family Provision
Act 1969 (ACT) that provision be made for her out of the estate.
Jurisdiction and powers of the Court under the Family Provision Act
341. This Court has jurisdiction to make provision by a family provision order for an
applicant if they are an eligible applicant. Section 7 of the Family Provision Act,
states who is an eligible applicant and relevantly provides:
7 Eligibility
(1)
Subject to this section, each of the following persons is entitled to make application to the Supreme Court for provision out of the estate of a deceased person:
(a) a partner of the deceased person; (b)
a person (other than a partner of the deceased person) who was in a domestic relationship with the deceased person for 2 or more years continuously at any time;
...
(9) In this section: domestic relationship—see the Domestic Relationships Act 1994, section 3. partner, of a deceased person, means someone who—
(a) was the domestic partner of the person at any time; and (b) either— (i) was the person’s spouse, civil union partner or civil
partner at any time; or
(ii) was the person’s domestic partner continuously for 2 or
more years at any time; or
(iii) is the parent of a child of the person.
342. Section 3 of the Domestic Relationships Act 1994 (ACT) provides a definition of
“domestic relationship” as follows
(1) In this Act: domestic relationship means a personal relationship between 2 adults in which one provides personal or financial commitment and support of a domestic nature for the material benefit of the other and includes a domestic partnership but does not include a legal marriage.
Note For the meaning of domestic partnership, see the Legislation Act,
s 169. It includes a civil union and a civil partnership.(2) For subsection (1)—
(a)
a personal relationship may exist between people although they are not members of the same household; and
(b) a personal relationship is not taken to exist between people only because one of them provides a service for the other—
(i) for fee or reward; or
(ii) on behalf of another person (including a government or body corporate); or
(iii) on behalf of an organisation the principal objects or purposes of which are charitable or benevolent.
343. Section 169 of the Legislation Act 2001 (ACT) defines a person’s domestic partner as
someone who lives with the person in a domestic relationship.
344. Thus, Ms Hillman qualifies to make an application for provision under both of these
limbs, either as a partner of Mr Box within the definition of s 9(a) and 9(b)(ii) thereby
qualifying under s 7(1)(a), or as a person who was in a domestic relationship with
Mr Box under s 7(1)(b), even though, as I have found, they separated, at the latest by
early 2009. She is an eligible applicant.
345. I note that, until 1996, a former wife or husband could not make application under the
Act unless the person “was maintained by the deceased person immediately before his
or her death”: s 7(2) of the Act. That provision, however, was amended by the
Family Provision (Amendment) Act 1996 (ACT) which widened eligibility under the
Act to include domestic partners but removed former wives or husbands from, and did
not subject former domestic partners to, that limitation. There is now no such
limitation on former spouses or domestic partners.
346. Eligible persons, such as Ms Hillman, are entitled to apply to this Court for an order
that provision be made for them and the Court may make any order which the Court thinks fit under s 8(1). However, such orders may only be made in accordance with s
8(2)-(3), which require:
(2)
The Supreme Court shall only make an order under subsection (1) if satisfied, in consideration of the criteria set out in subsection (3), that as at the date of the order, adequate provision for the proper maintenance,
education or advancement in life of the applicant is not available—
(a) under the will of the deceased; or (b) if the deceased died intestate—under the law applicable to that intestacy; or
(c) under that will and that law combined.
(3) The criteria for the Supreme Court’s decision under subsection (2) in relation to the deceased and the applicant are as follows:
(a) the character and conduct of the applicant; (b)
the nature and duration of the relationship between the applicant and the deceased;
(c)
any financial and non-financial contributions made directly or indirectly by or on behalf of either or both the applicant and the deceased to the acquisition, conservation or improvement of any of the property or financial resources of either or both persons;
(d)
any contributions (including any in the capacity of homemaker or parent) by either the applicant or the deceased to the welfare of the other, or of any child of either person;
(e)
the income, property and financial resources of the applicant and the deceased;
(f)
the physical and mental capacity of the applicant, and the deceased (during his or her life), for appropriate gainful employment;
(g)
the financial needs and obligations of the applicant and the deceased (during the life of the deceased);
(h)
the responsibilities of either the applicant or the deceased (during his or her life) to support any other person;
(i)
the terms of any order made under the Domestic Relationships Act 1994, section 15 with respect to the property of the applicant or the deceased;
(j)
any payments made to either the applicant or the deceased by the other, under an order of the court or otherwise, in respect of the maintenance of the other person or any child of the other person;
(k) any other matter the court considers relevant. ...
347. Thus, whether any provision should be made depends heavily on the particular
circumstances of an eligible applicant.
348. In Hillman v Box (No 3) at [3]-[7], I noted the following with regards to the Family
Provision Act:
[3] The Family Provision Act is the successor to the legislation which enables certain persons who consider that a will has not made adequate provision for them out of an estate to seek redress from the courts. Such legislation was first enacted in the early part of the last century, first in New Zealand (1900) and then in Tasmania (1912), Queensland (1914) and New South Wales (1916).
[4] The law of wills and succession was originally the province of the ecclesiastical courts in England. Australia had no such ecclesiastical courts. On the making of the Testator's Family Maintenance and Guardianship of Infants Act 1916 (NSW) proceedings under it were conducted in the Equity Division of the Supreme Court. The practice in respect of such applications followed the practice of that Court. This approach has been adopted elsewhere.
[5] The focus of the law is on whether the deceased has made adequate provision for the proper maintenance and support of the applicant: Bondelmonte v Blanckensee [1989] WAR 305 (at 307). This, of course, involves a wide-ranging consideration of all the circumstances of the estate and the relationship between the claimant and the deceased:
Hughes v National Trustees, Executors and Agency Company of
Australasia Ltd (1978-1979) 143 CLR 134.
[6] This remains the position in this Territory where s 8(1) of the Family
Provision Act gives this Court power to order for “the provision as the
court thinks fit be made for the applicant out of the [estate of a
deceased person]”. The criteria for the Court's decision are set out in s 8(3) but as they include “the character and conduct of the applicant: (s 8(3)(a)) and “any other matter the court considers relevant” (s 8(3)(k)),
there is, inevitably, likely to be a wide ranging inquiry into events and incidents great and small in the life of the applicant and his or her relationship with the deceased.
[7] There are, of course, some formal criteria for an application, such as, the identities of the relevant people, the deceased (including date of death) and the executor, and that the applicant falls within a defined eligible category set out in s 7 of the Act. Those are, however, rarely in dispute.
349. After identifying the need for this matter to proceed by affidavit, I then held (at [8]):
[T]he High Court said in Singer v Berghouse (1994) 181 CLR 201 at 210-211, [that] the question of whether adequate provision has or has not been made is the essential jurisdictional fact. It is a question of objective fact, proof of which requires a wide range of evidence encompassing the 11 criteria in s 8(3), including s 8(3)(k), in itself, wide-ranging. Thus, there is, in reality, only one fact in issue in the proceedings and that is always in issue.
350. Neither party disagreed with that broad approach.
351. While various formulations have been set out in the many cases dealing with such a
provision, it is useful to set out what Higgins J said in Hackett v Public Trustee
for the Australian Capital Territory (Unreported, ACTSC, Higgins J, 2 May 1997) at
29-30
Whilst that Act enables the court to modify the effect of a testator’s
disposition, it permits that modification only to the extent necessary to achieve, so far as it can or should, the proper maintenance etc of the person for whom provision should be made. It requires a balance between the established claims of named beneficiaries, the needs of the applicant, the size of the estate and, of course, the benefits provided otherwise to the applicant
and others with legitimate claims on the testator’s bounty.
As Bryson J noted in Gorton v Parks (1989) 17 NSWLR 1, 6 it is not
appropriate to endeavour to achieve a ‘fair’ disposition of the deceased’s estate. It is not part of the Court’s role to achieve some kind of equity
between the various claimants, see also Re Hodgson (1955) VLR 481. The
Court’s role goes no further than the making of ‘adequate’ provision in all the
circumstances for the ‘proper’ maintenance etc of an eligible applicant.
There is no doubt that there was no provision for Ms Hillman in Mr Box’s will. That
is, however, not determinative of the application, despite the submissions of her
counsel. Of course, the fact that no provision has been made would enable the court
the more readily to find that no adequate provision has been made, as Gray J noted in
Turner v Perpetual Trustees Australia Ltd [2001] ACTSC 56 at [8]. As his Honour
went on to say, however, this depends on the totality of the relationship between an
applicant and the deceased.
353. The proper approach seems to me to as be set out in what Dixon CJ said in Pontifical
Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 at 19
It has often been pointed out that very important words in the statute are
‘adequate provision for the proper maintenance and support’ and that each of
these words must be given its value. ‘Adequate’ and ‘proper’ in particular
must be considered as words which must always be relative. The ‘proper’
maintenance and support of a son claiming a statutory provision must be relative to his age, sex, condition and mode of life and situation generally.
What is ‘adequate’ must be relative not only to his needs but to his own
capacity and resources for meeting them. There is then a relation to be considered between these matters on the one hand, and on the other, the nature, extent and character of the estate and the other demands upon it, and also what the testator regarded as superior claims or preferable dispositions.
354. Despite some efforts to discourage courts from referring to a moral duty or moral
obligation in determining this question (eg Hughes v National Trustees Executors
and Agency Co Ltd (1979) 143 CLR 134 at 158, Vigolo v Bostin (2005) 221 CLR 191
at 218; [73]) the majority in Vigolo v Bostin, Gleeson CJ at 202; [21], 204-5; [25],
Callinan and Heydon JJ at 230; [121] have found such terms still to have relevance,
though, as Gleeson CJ pointed out, such terms are not to be used as a substitute for the
text.
Ms Hillman’s situation
Ms Hillman’s situation has been broadly set out above (at [112]-[116]).
356. In summary, she has her own home which is unencumbered, she has savings of
$59,000 and owns a car worth $15,000. She receives an indexed pension which was,
at the time of the hearing, $600 per fortnight and estimates her expenses as $1564 per
month.
357. This raises a concern for me as her income is exceeded by her expenditure quite
significantly, by about $364 per month. No explanation was given of how that was
funded. There would, of course, be some interest earned from her lump sum
investment, but it would not equate to that amount.
358. In her fifth affidavit, however, Ms Hillman refers for the first time to her employment
as a carer with Domicilary Nursing. She deposed that “[t]his employment continues
today”. She works “reduced hours most shifts, averaging twenty-two hours per
week”. The evidence was not entirely clear, but it appears that she earns net $632 per
week from this employment which would then well exceed the shortfall in her
expenses, allowing her savings of $1128 per month.
359. She says her health is poor but I did not have details of that. As I have said, there
were extensive medical notes of her various medical practitioners, but neither counsel
took me to any part of them. In my view, it is not the function of a court to trawl
through such material trying to take in what might be made of that. So far as I have
done so, the notes do not support her assertion.
360. I simply note that she had significant surgery in 2002. The last report of her specialist
seemed to be on 22 July 2003 when he reported “[s]he is well” and that she remained
on hormone replacement therapy. He did not make a further formal appointment.
361. The most recent notes from a general practitioner seemed to be those dated 20 April
2011 which referred to her problems of 2002 and noted that her only current
medication was a progestogen supplement. The prior consultation appeared to be on
26 July 2006, when an antibiotic was prescribed.
362. In those circumstances, it is difficult to see that, apart from the inevitable likelihood
that the problems of health that are ordinarily associated with advancing age will have
to be met by her, there is any particular medical need that requires addressing in this
context.
363. Most significant, perhaps, is the fact that Ms Hillman received equal shares of the
proceeds of the various properties that she and Mr Box purchased, developed and
sold. That she purchased a property with her daughter and paid for part of it with the proceeds she had received but then has sought to give it to her seems to me also to be
relevant.
364. Such a substantial gift cannot be used to create a need that would not exist without it.
That, instead of following that course, Mr Box used the same proceeds he received for
a purchase of the Queanbeyan factory, which he kept instead of gifting to his
daughters, should not increase Ms Hillman’s claim on his estate.
365. It is also relevant that it was Mr Box’s initial funds that gave him and Ms Hillman the
capital to start their business of purchasing, developing and selling houses, yet he was
happy to share the ultimate proceeds with her.
366. I have no doubt that she contributed to that business, both in personal exertion and by
providing funds from time to time. Mr Box, however, as a builder, provided a
significant personal contribution as well as the majority of the funds. I reject
Ms Hillman’s assertions that she made an equal financial contribution.
While Ms Hillman’s income is modest, her income well exceeds her expenses, which
allows her to build up a capital sum for relevant contingencies. While a significant
part of her income is not backed by a capital sum, it is in many ways more secure
because it is a government, indexed pension not subject to the fluctuations of the
market in the same way that an income from capital would be.
368. Ms Hillman has a home and a car without any encumbrances.
369. Her position seems to me to be similar to that of the plaintiff in Singer v Berghouse,
as there set out at 213 in the description given by the learned Master in the court
below, which the Court held his Honour was entitled to conclude.
370. It is also relevant that Ms Hillman is in the nature of a divorced wife. In that position,
the courts have, in cases such as Re Adams (deceased) [1967] VR 881 at 888 and
Re Cutts (deceased) [1969] VR 254 at 256, identified a range of relevant factors.
In this context, it is relevant that Ms Hillman was not the mother of any of Mr Box’s
children and has neither brought up his children nor has she dependent children. The
separation was not a long one, but it was one in which a settlement provided for her.
372. The length of their life together is relevant and was neither insubstantial nor
inconsequential. There is nothing remarkable about the course which their lives took
after separation, save perhaps to say that Ms Hillman was able to make some but, on
the facts that I have found, by no means the major contribution to caring for Mr Box
during his illness.
373. I accept that Ms Hillman is currently employed and is supported by a pension. I
accept, too, that she has limited prospects of remarriage.
374. In view of the Termination Agreement and the payment from the Campbell property
proceeds, it does seem to me that the separation was intended to end their shared life
and this should be reflected in my consideration. See Re Blood [1983] 1 Qd R 104 at
106. See also Re Fullard [1981] 2 All ER 796.
375. This is supported by the fact that there is no evidence of any contribution that Mr Box
made to Ms Hillman between 2006 and the date of his death nor vice versa. The
separation of residences was, of course, significant, despite Ms Hillman seeking to
minimise it.
I consider, also that I should put Ms Hillman’s moral claim in the context that she
brought the Latham property into the relationship and left with the Latham property
intact together with payments of at least $330,000 made directly to her from the sale
of the various properties over the period of the relationship and that she and Mr Box
purchased from the moneys he introduced from the sale of his pre-existing property.
There is no doubt that these payments are relevant when considering her claim as
noted by Bollen J in In the Estate of Guthrie (1983) 32 SASR 86 at 96.
377. I should not, and do not, ignore the fact that she initially provided Mr Box with a
home for which he paid no rent, she contributed ordinary domestic services to the
household and she made financial contributions to both the household and the
purchase and improvement of the properties. There is no doubt, however, that
Mr Box also made substantial contributions. His income was substantial and was paid
into a personal account in his name but then a large number of significant amounts
paid into the joint account. Ms Hillman had not, in her calculations, taken a large
number of these into account in her calculations.
378. Against this is the situation of the defendants as the adult daughters of Mr Box. As
can be seen from the descriptions I have given above of their personal circumstances,
none of them are in necessitous circumstances but none are in the stable and secure
circumstances of Ms Hillman.
379. Relevant is that Lynda is married but receives no financial support from her husband
as they keep their finances separate, but clearly each contributes to the household
costs, including mortgage payments. Her financial circumstances are comfortable and
do not disclose significant need, save for the likelihood that her contract employment
will end and cannot be extended or renewed.
380. Debrah is in the process of divorcing her husband. She owns her own home, subject
to a substantial mortgage, but has a very modest income from her own business and
from some rent. She receives no financial support from her spouse.
381. Skye is in a de facto relationship but she and her partner earn modest incomes with
significant child support commitments. Her employment is also uncertain.
Were the defendants to have not received a benefit from Mr Box’s estate, there is no
doubt that, in the present state of the law, they would have been entitled to a
significant provision. See, for example, Blore v Lang (1960) 104 CLR 124 at 135. That their fortunes are uncertain is certainly relevant, as noted in Re Salathial [1971]
QWN 18.
383. Having carefully considered the position of Ms Hillman, I do not consider that I
should reject Ms Hillman’s claims altogether. While I am satisfied that the domestic
relationship ended by or at the latest late 2008 or early 2009, and likely earlier, I
cannot and do not find that they did not maintain a connection and even Lynda’s
evidence showed that Ms Hillman provided some services to Mr Box while he was ill.
As is made clear in Churton v Christian (1988) 13 NSWLR 241 at 253, this is
relevant.
384. I also note that the period of the relationship was a significant one and it appears to
have had mutual benefits and there can be no doubt that Ms Hillman made a financial
as well as non-financial contribution to it. Its demise was relatively recent.
385. Given that I have found that she exaggerated her financial contribution it is entirely
open to conclude that she has also exaggerated her non-financial contribution. I do
not consider that I need to make a final decision about that, though I note that the
Termination Agreement, which as I have noted, binds the parties, accepted that the
non-financial contribution of each was equal.
386. Mr Hassall drew my attention to a number of cases which he submitted supported the
making of a provision for Ms Hillman. A myriad of single instances is of no more
assistance in this area that in the area of sentencing; principles are what matters, as
the High Court noted in Barbaro v The Queen (2014) 305 ALR 323 at 332; [41],
though comparable cases can assist in helping to identify these relevant principles.
387. Both parties drew my attention to the ACT Court of Appeal decision in Chapman
v Yang [2005] ASCTCA 37. While of assistance, it does not seem to me that the case
is quite in point.
388. There, an equal distribution of the proceeds of the sale of the matrimonial home was
made inter vivos as was a payment of a proportion of the deceased’s retirement lump
sum benefit. This provided the plaintiff with what was described (at [15]) as “a
secure income backed by a large capital sum”. Here, Ms Hillman certainly had a
secure income through her superannuation pension but it was less than her expenses
which I cannot describe as excessive or extravagant.
389. Nevertheless, she is presently able to accumulate funds from her earnings and has a
capital sum to address those needs at least in part.
390. The Court was unpersuaded that the contingent wishes of the plaintiff should be met;
the Court agreeing (at [24]) with the primary judge that the contingent wishes fell well
short of need.
391. Given the age and circumstances of Ms Hillman, some provision for a contingency is
not in the same category.
392. While the Termination Agreement must assume great significance in this matter, I do
note that Ms Hillman received little from it. She gave up her interest in the Spence
property in which, whatever the source of the funds to purchase it, she had an
undivided half interest and a right of survivorship. All she received was to be relieved
of the risk of being a mortgagor and debtor.
393. That property also secured a modest loan which Mr Box undertook to purchase the
Queanbeyan factory; thereby Ms Hillman provided through her interest a security for
the purchase of that property.
394. While Ms Hillman has been employed in the circumstances I have described above,
that will not continue indefinitely.
395. I consider that some modest provision should be made for contingencies that she is
likely to encounter in the future.
396. The corpus of the estate after costs is difficult to determine and the parties have not
been helpful in providing me with details about that. A document entitled “Estate
Assets” was tendered by consent. It showed assets, as at 20 December 2012,
totalling $963,057.42.
397. It was noted, however, that there would be liabilities that needed to be taken into
account. The costs of the defendants who, as executors, would ordinarily have their
costs paid on a full basis.
398. There is a difference of opinion about the various descriptions of the basis for such
costs – indemnity basis, solicitor-client basis (Krause v Sinclair [1983] VR 73 at 78),
solicitor-own client basis or trustee basis (Reeves v Berge Phillips (1982)
7 Fam LR 940 at 944).
399. The trustee basis is the basis which requires a trustee to be indemnified against all
costs and expenses properly incurred (In Re Grimthorpe (deceased) [1958] Ch 615)
and which are only to be disallowed if, in paying them, the trustee would have
committed a breach of trust (In Re Whitley (deceased) [1962] 1 WLR 922). This
seems an appropriate basis for payment of the defendants’ costs out of the estate.
400. The costs allowed to date have been $100,000.
401. At the conclusion of the proceedings, however, the defendants counsel sought leave to
have further costs paid. I agreed that a further affidavit could be filed which would
quantify the further costs claimed. No such affidavit has been filed. Nevertheless, it
seems to me that the additional costs, which would include the costs of the hearing,
would not likely to be less than $50,000.
402. In addition, it was pointed out to me that there was likely to be a capital gains tax
liability on the sale of the Spence and Queanbeyan properties. I permitted a report on
that to be prepared and tendered. Again, I have not seen such a report.
403. It seems to me, however, that taking all these matters into account, the net value of the
estate is likely to be approximately $700,000 to $800,000. It is, thus, neither a large
nor a modest estate.
404. It is against this that I assess the needs of Ms Hillman and also the defendants as
beneficiaries.
405. Doing the best I can, I consider that a provision of $50,000 is appropriate for
Ms Hillman’s circumstances.
CLAIM FOR FURNITURE
406. This issued played very little part in the proceedings. There were no particulars of the
furniture claimed and little evidence.
407. The Termination Agreement provided that the furniture and other chattels had been
divided up. That is a full answer to the claim.
408. That claim must be dismissed.
DISPOSITION
Each of Ms Hillman’s claims must be dismissed, save that I am prepared to make
provision to the extent of $50,000 to her under the Family Provisions Act.
410. Ordinarily, a successful plaintiff in proceedings such as these will receive costs on a
common fund basis in this jurisdiction. See Re Adamow (deceased) (1989) 97 FLR
410 at 416. This is the usual basis of such orders in New South Wales as in, for
example, Luciano v Rosenblum (1985) 2 NSWLR 65 at 72 and Re Fulop (deceased)
(1987) 8 NSWLR 679 at 684. Such a basis, as referred to in the Rules of the Supreme
Court 1965 (UK) in Order 62 Rule 28, is said to be assessed on a more generous basis
than a party and party basis, applying the ordinary rule applicable to a solicitor client
taxation, allowing a reasonable amount in respect of all costs reasonably incurred.
Those costs are to be payable out of the estate.
411. I do not consider, however, that Ms Hillman should receive all her costs. I am
mindful that she has had some success and had to take the proceedings in order to
obtain that success. Nevertheless, she had made a large number of claims which
occupied the majority part of the proceedings on which she has failed.
412. I would propose, subject to any contrary submissions, to allow her out of the estate
one-fifth of her costs on a common fund basis.
413. As I have noted above (at [399]) the defendants are to have their costs on a trustee
basis out of the estate.
414. I shall so order.
415. It is a matter of great regret to me that the business of the court has delayed delivery
of this judgment. Nevertheless, I have read carefully the entire transcript and the
exhibits as well as the initial written submissions made by counsel and my substantial
contemporaneous notes. These have resulted in a good recall of the proceedings and
of the witnesses giving their evidence, despite the delay.
I certify that the preceding four hundred and fifteen (415) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 28 May 2014
| Counsel for the plaintiff: | Mr D A Hassall |
| Solicitor for the plaintiff: | Capital Lawyers |
| Counsel for the defendant: | Dr G Ward and Mr G Theakston |
| Solicitor for the defendant: | Tetlow Tigwell Watch Lawyers |
| Date of hearing: | 17-20 December 2012 |
| Date of judgment: | 28 May 2014 |
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