KEAYS & ANOR -v- CARTER [2003] WASC 23

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WASC 23
Case No:	CIV:2708/2000	Heard:	10-11 FEBRUARY 2003
Coram:	MCKECHNIE J	Delivered:	17/02/03
No of pages:	12	Judgment Part:	1 of 1
Result:	Counterclaim dismissed
Category:	B
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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Keays v Carter

Details

AGLC: Keays v Carter [2003] WASC 23
Case: [2003] WASC 23
Decision Date

CaseChat Overview and Summary

The Supreme Court of Western Australia was asked to decide whether a completed gift of property had been made by the donor, Mr Keays, to the donee, Ms Carter. The dispute centred on the ownership of a house located at 53 Victoria Avenue, Claremont, with the plaintiffs, Mr Keays and Chidlow Inn Pty Ltd, claiming ownership, and Ms Carter asserting that she had been gifted the property by Mr Keays. The central issue for the court to decide was whether Mr Keays had completely divested himself of the property, thereby making a completed gift, and whether the gift was made in contemplation of marriage. The court considered relevant legal principles and found that Mr Keays had indeed made a completed gift to Ms Carter, as he had taken all possible steps to transfer ownership, including executing a transfer document, paying stamp duty, and giving Ms Carter the certificate of title. However, the court also found that the gift was made in contemplation of marriage, and as such, was conditional upon the marriage taking place. As the marriage did not occur, the gift was to be returned, and thus, Ms Carter's counterclaim failed.

The court ultimately concluded that Mr Keays had made a completed gift of the property to Ms Carter, but that the gift was in contemplation of marriage. As a result, the gift was conditional upon the marriage occurring, and since it did not, the gift was to be returned. The court dismissed Ms Carter's counterclaim, finding that she was not entitled to retain ownership of the property.

Orders