Keays v Carter
[2003] WASC 23
KEAYS & ANOR -v- CARTER [2003] WASC 23
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASC 23 | |
| Case No: | CIV:2708/2000 | 10-11 FEBRUARY 2003 | |
| Coram: | MCKECHNIE J | 17/02/03 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Counterclaim dismissed | ||
| B | |||
| PDF Version |
| Parties: | RICHARD JOHN KEAYS CHIDLOW INN PTY LTD JO-ANNE CARTER |
Catchwords: | Equity Gift Whether donor has completely divested property Gift in contemplation of marriage |
Legislation: | Nil |
Case References: | Corin v Patton (1989-1990) 169 CLR 540 Kais v Turvey (1994) 11 WAR 357 Bertei v Feher [2000] WASCA 165 David Securities Pty Ltd v Commonwealth of Australia (1992) 175 CLR 353 First Industry Corp v Goh [2002] WASC 111 Motor Auction Pty Ltd v John Joyce Wholesale Cars Pty Ltd (1997) 138 FLR 118 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : KEAYS & ANOR -v- CARTER [2003] WASC 23 CORAM : MCKECHNIE J HEARD : 10-11 FEBRUARY 2003 DELIVERED : 17 FEBRUARY 2003 FILE NO/S : CIV 2708 of 2000 BETWEEN : RICHARD JOHN KEAYS
- First Plaintiff
CHIDLOW INN PTY LTD
Second Plaintiff
AND
JO-ANNE CARTER
Defendant
Catchwords:
Equity - Gift - Whether donor has completely divested property - Gift in contemplation of marriage
Legislation:
Nil
Result:
Counterclaim dismissed
(Page 2)
Category: B
Representation:
Counsel:
First Plaintiff : Mr L A Tsaknis
Second Plaintiff : Mr L A Tsaknis
Defendant : Mr P J Ward
Solicitors:
First Plaintiff : Cannon Bowden & Co
Second Plaintiff : Cannon Bowden & Co
Defendant : Peter Ward
Case(s) referred to in judgment(s):
Corin v Patton (1989-1990) 169 CLR 540
Kais v Turvey (1994) 11 WAR 357
Case(s) also cited:
Bertei v Feher [2000] WASCA 165
David Securities Pty Ltd v Commonwealth of Australia (1992) 175 CLR 353
First Industry Corp v Goh [2002] WASC 111
Motor Auction Pty Ltd v John Joyce Wholesale Cars Pty Ltd (1997) 138 FLR 118
(Page 3)
- MCKECHNIE J:
Introduction
1 This is a case about who owns the land and house at 53 Victoria Avenue, Claremont ("No 53").
2 The registered proprietors of No 53 are the first and second plaintiffs. Mr Keays owns Chidlow Inn Pty Ltd. The defendant Ms Carter lived in No 53 from May 2000 until August 2002 when she was locked out while she was in hospital.
3 Mr Keays says that No 53 belongs to him. Ms Carter was asked to vacate the property in 2000, did not, and trespassed on the property thereafter.
4 At the commencement of the trial, Mr Keays sought leave to discontinue the action because Ms Carter was no longer living at No 53 and damages were not being pursued. Leave was granted. The trial proceeded on the counterclaim lodged by Ms Carter.
5 The counterclaim presents a quite different story. Ms Carter says that Mr Keays made her a gift of No 53. Not only did he say he would give the property to her, but he executed a land transfer document which he gave to her, together with the duplicate certificate of title. He also paid the stamp duty on the transfer. The gift was made so that she would look after him. Mr Keays is significantly disabled by andrenoleucodysdrophy. In reliance on the gift, Ms Carter moved out of her Homeswest unit which she was in line to purchase, having lived in it for five years.
6 The intention of the parties was to transfer the land to Ms Carter, but the transfer was not lodged with the Department of Land Administration. Ms Carter therefore claims to be the equitable owner of the land.
7 By amended reply and defence to counterclaim, Mr Keays say in essence that the gift was incomplete or alternatively that was made in contemplation of marriage and upon condition that it be returned in the event that the contemplated marriage did not take place.
8 Each party gives a different account of the circumstances leading to and following on the gift.
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The issues for determination
9 The parties identified two issues for resolution. Did Mr Keays make a completed gift to Ms Carter of No 53? If so, was the gift in contemplation of marriage? The parties agree on the relevant legal principles. They disagree about the crucial facts.
Was there a gift?
10 The law is set out in Corin v Patton (1989-1990) 169 CLR 540, particularly the statement of principle by Mason CJ and McHugh J at 559 also stated in slightly different terms by Deane J at 582. The issue is whether Mr Keays has done all in his power to divest himself of No 53.
11 There are some undisputed facts. On 16 May 2000 a transfer of land form was executed. Stamp duty was assessed on 31 May 2000 and paid on 15 June 2000 in the sum of $23,905. Mr Keays paid the duty. The value of the land is said to be $600,000. The consideration was said to be "gift".
12 In late May 2000 Mr Keays contacted the Registry of Births Deaths & Marriages enquiring about the procedures for a registry marriage. A notice of intended marriage was prepared by Ms Carter but not executed. On 11 May 2000, Mr Keays bought an Argyle diamond engagement ring for Ms Carter. However, the inferences to be drawn from those undisputed facts are at issue.
13 Mr Keays executed the transfer of land, his signature being witnessed by Ms Day, his neighbour. I find that he did not, at that stage, place the seal of Chidlow Inn Pty Ltd on the document, but did so after the document was returned from the solicitors Cannon Bowden & Co for that purpose. Ms Carter says that this is what happened and Mr Keays' recollection was of a document, he was unable to be precise, being returned for the seal to be placed upon it.
14 There is an issue whether Mr Keays gave Ms Carter the certificate of title at that time. I find that he did. Ms Carter gave evidence to that effect, which I accept. Ms Carter gave evidence that Mr Keays handed her the envelope containing the transfer and certificate of title and told her to take it to Cannon Bowden Solicitors right away. She said: "It's too hot today and he replied that the sooner it was done the sooner I move in."
15 After Ms Carter had taken the envelope and returned to have the seal of Chidlow Inn Pty Ltd put on it, Mr Keays told her to take the document
(Page 5)
- back to Cannon Bowden immediately, so she did. Mr Keays gave evidence in his statement that the certificate of title was normally kept locked in his safe and that Ms Carter had access to a key to the safe, a fact which she denied. However, he conceded in cross-examination that the certificate of title was conveyed to the solicitors on his authority at some point.
16 The evidence is silent as to what happened, or did not happen, thereafter. Mr Keays did not call any witness from the office of the solicitors. Mr Keays conceded that he gave no written instructions as to holding the document although he said his solicitors do not act except on his instructions. He was vague as to whether he gave oral instructions to them. The only oral instruction he could remember was after he had called the marriage off when he told the solicitors to hold the documents. Mr Keays accepted that he knew with the delivery of a certificate of title and stamped transfer of land to a solicitor there was a likelihood that the transfer would be lodged unless he gave a contrary instruction.
17 In the absence of any evidence from the solicitors, I am not prepared to draw any inference about any oral instruction at a relevant time.
18 Mr Tsnakis argues that, for whatever reason, Mr Keays had not done everything he could to divest himself of the ownership of the land. The documents remained in his solicitor's office, still under his control. While he retained that power of possession over them he had not completed the gift.
19 On 16 March 2000 Mr Keays bought a half interest in Gusta's Boutique in Claremont as a gift for Ms Carter. That gift took effect immediately and at a time some two months before an engagement ring was purchased. The delivery of the transfer of land and certificate of title took place five days after the engagement ring was purchased. Mr Keays explains this on the basis that:
"I wanted Jo-Anne to see my signature and the company seal on the actual transfer so she knew it was not just an empty promise on my behalf.
I paid the stamp duty on the 31 May 2000 and I told her that I had done so she would know I was sincerely in love with her and sincere in my desire to marry her.
(Page 6)
- At the time I was anxious and keen to ensure that she had some financial security. I did not want her to think that I was just making empty promises."
20 The facts of cases will differ but here I conclude that Mr Keays did everything possible to effect the transfer. He effectively armed Ms Carter with the means to register the transfer of land by executing the transfer document, paying the stamp duty thereon, and giving her the duplicate certificate of title.
21 True it is that the documents remained in the hands of his solicitors. In some circumstances that might be enough to draw an inference that he had not completely divested himself of the property.
22 In the absence of any evidence, I am not prepared to draw an inference that any power to intervene remained. I find that Mr Keays intended the property to pass as an earnest of his good faith to show that he did not make false promises. On this basis, there was no reason for the solicitors to refrain from registration. Why the document was not registered is unexplained.
23 I find that Mr Keays did give Ms Carter No 53 and she became the equitable owner no later than 15 June 2000.
Was the gift in contemplation of marriage?
24 The principles are set out in Kais v Turvey (1994) 11 WAR 357, particularly by Malcolm CJ at 361, line 20.
25 Mr Tsnakis accepts that there must be a common intention or understanding that the gift is in contemplation of marriage. It is not enough that Mr Keays may have had that intention if it was not communicated and accepted by Ms Carter.
26 There are a series of undisputed matters from which inferences may be drawn. There is also direct evidence on the point.
27 Clearly, at some point in 2000, the exact point I am unable to determine, the parties contemplated marriage. This is not in issue. Although Ms Carter was reticent about the prospects of marriage, the preponderance of evidence clearly shows an engagement around May 2000. Ms Carter has understated somewhat the strength of the intention of each party to marry.
(Page 7)
The direct evidence of the parties
(a) Ms Carter
28 Ms Carter's evidence is that the transfer of No 53 was initiated by Mr Keays after he had told her he had fallen in love with her and could not live without her. She did not want to give up her Homeswest unit, as there was an opportunity of purchasing it or another one if she had shown herself to be a tenant in good standing for more than five years. Mr Mandijian from Homeswest indicated that Ms Carter had rented the premises for a five year period, although she had made no application to purchase that unit and that unit was not for sale anyway. This is insufficient to draw an adverse inference against her credibility. Ms Higginson makes mention of contemporaneous statements by Ms Carter about her good Homeswest house and Ms Carter did not say she had in fact applied at that point for assistance in purchasing that unit. In her written statement she said she had almost qualified to purchase a Homeswest property.
29 Ms Carter moved into No 53 at some stage, which she says was 6 June 2000. No 53 was being renovated. There is a dispute as to the degree to which Mr Keays knew of, and agreed with, the cost of renovations but it is clear that he approved of the fact of renovations and that he would pay for them. This suggests a gift of a more immediate kind than in contemplation of marriage, but is still equivocal.
30 I regard Ms Carter's evidence as generally plausible in her assertion that Mr Keays told her he loved her and asked her to move into his house, which she declined. He then suggested that she move into No 53 at no cost because he had multiple sclerosis and that sooner or later he would need full-time care. When she declined that, he said:
"… I'm going to give you the house."
31 Ms Carter's evidence, in essence, is that the gift was not in contemplation of marriage. It was a distinct gift in return for which she would move into No 53 and care for Mr Keays, looking after him as his illness progressed. She was not shaken in cross-examination. Although plausible, there is no contemporaneous record to confirm her evidence.
(Page 8)
(b) Mr Keays
32 Mr Keays' evidence, in essence, is that the gift of No 53 and the subsequent renovations occurred after the engagement ring had been bought when there was a mutual understanding that they would marry. After the marriage he would let the transfer proceed and Ms Carter would become the registered proprietor of No 53. Mr Keays said to her that the house would be her wedding gift and "I want you to be secure. When we are married you will have the house."
Matters relevant to credit of the parties
The breakdown of the relationship
33 There is a dispute as to how the relationship broke up. Ms Carter said it was over an argument where she insisted Mr Keays should detoxify and go to hospital. Mr Keays said he called off the forthcoming marriage because he received information which caused him to believe Ms Carter had been a prostitute. Whether this information is true or not is immaterial and I make no findings on the point.
34 There is some support for both accounts. Ms Rayner says that in September 2000, Rick was saying to her that had found out that Jo-Anne had previously worked in a massage parlour. Mr Grimmond, by reference to a journal which was not produced in court, said that prior to August 2000, Rick told him that Ms Carter was a prostitute, although more colourful words were used. Ms Higginson and Ms Rayner both recollected Ms Carter saying at some point that she wanted Mr Keays to detoxify. Each party has a different perception and both may be partly right. I do not judge credibility on this issue.
The engagement ring
35 The engagement ring was purchased on 11 May 2000. In the first statement of evidence made by Mr Keays, he gave a version about the ring paying, from recollection, $17,500 in cash and collecting a wedding ring at the same time. In the second statement he said that there were two rings purchased, agreeing that there was one of 11 May 2000. He was vague in cross-examination about the purchased ring and could not explain how the amount of $17,500 came to be in his statement. I regard this as adversely reflecting on his reliability.
(Page 9)
Gusta's Boutique
36 A half interest in Gusta's Boutique was purchased on 11 March 2000. It does not seem to be asserted that the purchase of Gusta's was a gift in contemplation of marriage. Mr Keays said it was:
"… as a show of my intention to marry her. Call it goodwill. Call it I wanted to give her something. I was in love with her.
You wanted to give her something---Yes, as a show of my intentions."
37 Ms Rayner gave evidence that Mr Keays had told her that Tony Bellia and Jo-Anne had got him to sign a whole heap of blank cheques and between them they had filled in the cheques so that Jo-Anne owned half of Gusta's Boutique which was then owned by Tony Bellia. She also remembered Mr Keays saying "words to the effect that he had paid too much for the business and that Tony had ripped him off because he needed the money to pay off his mortgage".
38 This statement, which I accept was made by Mr Keays, is at distinct variance with his evidence, including his evidence that he had in fact witnessed the signature of Ms Carter on the offer to purchase and that he had examined the books and, even in hindsight, thought that Gusta's Boutique was worth what he had paid for it. This discrepancy reflects adversely on his credibility.
Nursing services
39 Ms Carter indicated that part of the arrangement for the house was that she would provide nursing services. There was evidence about a dispute in respect of a bedpan, but I regard this as essentially inconclusive on the issue.
Conclusion on the credibility of the parties
40 I do not regard Mr Keays as a credible witness on certain key points. I have already remarked that he has on occasion told a lie and left unexplained the amount paid for the ring. His statement of evidence in relation to the certificate of title implied that Ms Carter had removed it, yet he conceded, after being cross-examined, that he gave authority for it to be sent to the solicitors. All witnesses have indicated that Mr Keays could be very demanding at times and, I infer, a difficult person to work
(Page 10)
- with. From my observation of him at certain times during the giving of his evidence, and from the evidence of some of his behaviour since August 2000, it is clear that he harbours great bitterness towards Ms Carter. This bitterness, combined with other matters to which I have referred, is such that I am unwilling to accept his evidence on material points unless it is confirmed by other evidence because I am quite persuaded that consciously, or unconsciously, it overlays his recollection of all material events.
Other direct evidence
Laurie Joy Higginson
41 Ms Higginson gave evidence of conversations with both Mr Keays and Ms Carter where the gift of No 53 was clearly in contemplation and subject to the marriage. She was cross-examined as to her memory and her motives. I have some caution in accepting her evidence uncritically. She has been the recipient of considerable generosity from Mr Keays, including a gift of a four-wheel drive vehicle after this litigation had developed. On the other hand, she has given evidence against him in one of the restraining order cases. She made her statement on 15 July 2002 and was therefore recalling conversations of two years earlier which did not directly concern her. She conceded in cross-examination that she had had things happen in her own life and remembering someone else's life is sometimes hard and that her memory has been influenced by personal events in her life. Although I apply caution to her evidence, ultimately I accept it.
Dayne Grimmond
42 Mr Grimmond said that in the course of the renovations of No 53, in which he played a part, Ms Carter said to him:
"This place is being renovated so I can live here and once we get married this place will be mine."
43 At one point he queried the amount being spent on the renovations with Mr Keays who said:
"Don't worry, the house will be hers when we get married."
44 Mr Grimmond was cross-examined as to his recollection and his association with Mr Keays. I have borne in mind the passage of time
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- since 23 July 2002 when he made his statement and the events about which he gave evidence and the general fallibility of memory on such conversations. Nevertheless, I have no reason to reject his evidence, which I accept
45 I regard the testimony of Mr Grimmond and Ms Higginson as evidencing a contemporaneous statement of intention by both Mr Keays and Ms Carter that the gift of No 53 was a gift in contemplation of marriage.
Other circumstances
The purchase of Gusta's
46 I have already referred to this. The purchase at an early stage suggests that it was not a purchase in contemplation of marriage. This lends force to Ms Carter's argument that the purchase of the property was likewise not made in contemplation of marriage, but as a further expression of Mr Keays' generosity and perhaps desire to prove himself to her.
The engagement
47 I cannot overlook the timing of the purchase of the engagement ring on 11 May 2000, followed by the signing of the transfer on 16 May 2000. There were no engagement formalities. Ms Rayner had no knowledge of any engagement party. However, the parties were at least unofficially engaged from 11 May 2000, so that a transfer of the house on 16 May, and subsequent renovations, give rise to an inference that the transfer was in the mutual contemplation of each as dependent upon the subsequent marriage.
48 At the time the transfer was executed, Mr Keays introduced Ms Carter to Ms Day as his fiancée, strengthening the view that they were, at that stage, engaged. Ms Carter made no attempt to correct any such impression of engagement at the time.
Conclusion
49 Although I find Ms Carter's evidence plausible, standing by itself, and I do not accept without corroboration Mr Keays' evidence standing by itself, I am persuaded on the balance of probabilities by the evidence of
(Page 12)
- Mr Grimmond and supported by Ms Higginson the gift of No 53 was in contemplation of marriage. The execution of the transfer so soon after the engagement lends force to this conclusion.
50 I find there was a completed gift of No 53 by Mr Keays to Ms Carter. That gift was in contemplation of a marriage which did not eventuate. As a result, the gift was on condition that it would be returned in the event that the contemplated marriage did not occur. Therefore the counterclaim fails.
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