Hote v Mills
[2007] WASC 251
•19 OCTOBER 2007
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: HOTE -v- MILLS [2007] WASC 251
CORAM: McKECHNIE J
HEARD: 19 OCTOBER 2007
DELIVERED : 19 OCTOBER 2007
FILE NO/S: CIV 1929 of 2006
BETWEEN: SACHIKO HOTE
Plaintiff
AND
JASON JOHN MILLS
KAREN LEE MILLS
Defendants
Catchwords:
Equity and trusts - Declaration of express trust by words and action - Turns on own facts
Legislation:
Nil
Result:
Declaration of trust made
Category: B
Representation:
Counsel:
Plaintiff: Mr T R Stephenson
Defendants: No appearance
Solicitors:
Plaintiff: K G Sorensen
Defendants: No appearance
Case(s) referred to in judgment(s):
Nil
McKECHNIE J: The application arises in this way: the plaintiff met Mr Mills, whom I will refer to hereafter as the deceased, in 1991 in Japan. She travelled with him for a brief time to Perth. In due course, on 26 January 1995, they were married. The deceased passed away on 31 August 2004. Subsequently, the plaintiff was granted letters of administration on 18 January 2006.
The plaintiff deposes that she had money from her savings to buy a unit in Western Australia and that, because she was not an Australian citizen, nor planning to migrate, and they were not married, she was unable to purchase property in Australia in her own name. She says she agreed with the deceased that in order to purchase the unit the title should be in his name, but she made it clear in her discussions with the him she considered any unit purchased would be hers; to which he agreed. She wanted the unit as an investment for her children from her first marriage. She inspected a unit in Mosman Park before returning to Japan.
The plaintiff seeks an application for a declaration of trust to be made in respect of certain land in Mosman Park. By order of Newnes J, Mr and Ms Mills, the children of the deceased, were joined as defendants, but neither desired to take part in these proceedings. Because the matter is effectively, therefore, undefended, and the evidence all comes from the plaintiff, it is necessary for me to proceed with caution in relation to the evidence and to not make a declaration unless comfortably satisfied that a declaration is appropriate. That is especially so in circumstances where, as here, because of the passage of time, there is no direct proof of the telegraphic transfer of funds.
The unit was purchased by a form of offer and acceptance which does not in terms refer to any trust or nominees, but nominates the purchaser as Dennis Allen Mills. However, the contemporary documents throw some light on the situation. The deceased wrote, apparently by facsimile, to the plaintiff on 14 September 1992 and included bank information in relation to his own bank account. The letter was followed up by a fax from an Australia Post facility which was sent on 18 September 1992 and commences, 'Made offer today, unit 32, (4th floor),' then describes the unit and a possible purchase price. It continues:
My bank has indicated that telegraphic transfer of funds will take two days. Please ask your bank to confirm with you the deposit into my account. The details are again -
The deceased repeats the bank details.
On 24 September 2002, which is two days after the vendor signed the offer and acceptance, the deceased wrote the following terms:
Congratulations. You now own a little piece of Australia!
The deceased then describes what he had done in relation to work on the unit, which again is consistent with the offer and acceptance, because one of the conditions is:
The purchaser requires possession prior to settlement 2 days after acceptance of the offer.
He was arranging to have to the premises refurbished. The fax continues:
The $A50,000 hasn't arrived at my bank yet, but no worry - it will come soon. Monday is a holiday in Perth [Queen's Birthday] so the Banks will not be open. I gave the real estate agent $A,1000 [Y100,000] deposit which allowed me to get in and do work. If I'm lucky then I should be able to pay the rest of the money and fix all the business before Mid October (only three weeks from now).
The photos will give you an idea of your (our!) unit. I'll send more soon so you will be able to compare and see the changes.
We did it, and now your dreams are coming true!
Those are two contemporary expressions by the deceased which would indicate confirmation of the plaintiff's testimony in her affidavit - that the premises were to be purchased with money supplied by her and that the deceased well knew that he was purchasing on her behalf. Other evidence, though of less weight, is a letter from the real estate agent Acton Consolidated, on 21 October 1992, to the plaintiff in Japan that relevantly reads:
Dear Sachiko, I do want to follow up your recent purchase of unit 32 31 Wellington Street Mosman Park with my sincere congratulations on your acquisition. I believe you have indeed made a wise investment and would add that you are fortunate to have Dennis representing your interests in this regard.
I accept the submission of counsel for the plaintiff that an inference is capable of being drawn from that letter that the real estate agent would have only received that information from the deceased and I draw that inference. In summary then, I am satisfied from the evidence of the plaintiff, and confirmed by the contemporaneous writing and utterances of the deceased, that the deceased intended that he would hold the property on trust for the plaintiff and that thereby an express trust has been created.
In view of the fact that this application is undefended, counsel for the plaintiff very properly dealt with various situations, including the possibility of a resulting trust, questions of a possible contribution to the property by the deceased and a claim in that regard. However, in the view I take of the facts, it is unnecessary for me to explore those various situations because I am satisfied that the deceased intended that he would hold the property in trust. Therefore I will make the orders sought in the minute of orders filed this morning.
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