Lakey v Jeffrey (Ruling)
[2016] VCC 1740
•21 November 2016
| IN THE COUNTY COURT OF VICTORIA AT WARRNAMBOOL COMMERCIAL DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CI-14-02502
| WARREN JOSEPH LAKEY | Plaintiff |
| v | |
| SANDRA MICHELLE JEFFREY | Defendant |
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JUDGE: | HIS HONOUR JUDGE LACAVA | |
WHERE HELD: | Warrnambool | |
DATE OF HEARING: | 21 November 2016 | |
DATE OF RULING: | 21 November 2016 | |
CASE MAY BE CITED AS: | Lakey v Jeffrey (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1740 | |
RULING
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Subject: PROPERTY
Catchwords: Trusts
Ruling: Defendant to hold the property on trust for the plaintiff.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N R Bird | Dwyer Robinson |
| For the Defendant | No appearance | - |
HIS HONOUR:
1 This proceeding was commenced by the plaintiff by Writ on 20 May 2014. After a number of attempts to do so, the Writ was eventually served on the defendant, who entered an appearance through solicitors and delivered a Defence to an Amended Statement of Claim on 11 September 2014. At that time, she was represented by Messrs Taits Legal of 121 Kepler Street, Warrnambool.
2 That firm no longer acts on behalf of the defendant, and the Court file indicates that a number of orders have been made with respect to ensuring that the defendant knows that the proceeding will continue and that the trial was set down as the first matter in my list at Warrnambool commencing today, 21 November 2016. When called, the defendant did not appear. An affidavit of Service of Matthew Mark Senier, an associate of the legal firm Dwyer Robinson Pty Ltd, sworn 15 August 2016, has been filed, showing compliance with an Order made by the Court on 29 July 2016 to have the defendant served with notice of the hearing date and the trial by a number of means.
3 The affidavit of Matthew Mark Senier shows that the Orders made on 29 July of this year have been complied with, yet when called, the defendant did not appear. The Orders on 29 July 2016 were made by his Honour Judge Parrish and provided for service by substituted service by notice in the Portland Observer and the Warrnambool Standard, by registered post to the last known address of the defendant, by registered post to the defendant, care of the Department of Human Services Warrnambool office, and by registered mail to the office of Centrelink at Portland. I am satisfied that the defendant has been properly served.
4 The matter proceeded today with the plaintiff being the only witness. The plaintiff is a man approaching sixty-five years of age and he is a semi-retired farmer who is single and for many years has suffered from Chronic Anxiety Disorder and Depression. He met the defendant in or about June of 2013 and he, through a number of payments, $290,000 of which and some other monies, were used to purchase a property situate at and known as 3138 Portland-Nelson Road, Mount Richmond in the State of Victoria, being the property more particularly described in Certificate of Title Volume 10316 Folio 414 which I shall refer to hereafter as “the Mount Richmond property”.
5 This trial is essentially about that property, which is registered in the name of the defendant. The defendant is fifty years of age. She was born in March 1966. She has limited formal education. She is unmarried and she is the mother of seven children, ranging in age from twelve years to twenty-seven years. I was told, and accept, that she is a person suffering from drug addiction. She did not live with her children, did not live with any of the fathers of her children, was not working, is in receipt of a disability pension and she has little or no savings. That was the situation at the time that she met the plaintiff, and now. The two youngest children of the defendant, aged twelve and fourteen, are not in her custody but are in the care of the Department of Human Services.
6 The defendant, in 2013, was contesting custody and care of the two children and wanted to get them back. To that end, it would appear, that she set about a strategy with the aid of the plaintiff to seek to set herself up or represent herself as being a mother capable of looking after her children. The plaintiff said, and I accept, that soon after he met her, he said that he would assist her to get her children back. Through discussions between the two of them, they agreed to leave Portland, which had been a place of trouble for the defendant, and the plaintiff said that he would assist the defendant to purchase a property, she having said, that if she had a property in her own name and $25,000 in the bank, the Department of Human Services would look more favourably upon her intention to have her two youngest children return to her.
7 The defendant knew that the plaintiff suffered from Anxiety and Depression. She knew that he was unmarried and between the two of them, there was not, and never has been, any intimate relationship. The plaintiff, I am satisfied, did intend to assist the defendant, but he did not intend that his actions would be to his detriment.
8 In early July 2013, the plaintiff and defendant agreed verbally, that the defendant would move to live at the plaintiff’s property at Shelbourne, in Victoria, where she took up residence for a short time. Staying there until approximately, October 2013. She stayed there as a result of his agreement, and as a guest effectively of the plaintiff. It was here that the defendant told the plaintiff that she needed to buy a house and to have some money in the bank – $25,000 – and that these two things would assist her to reclaim care and custody of her two youngest children. The plaintiff initially declined to financially assist the defendant, but the defendant persisted in her request and the plaintiff eventually agreed to assist her.
9 In August 2013, the defendant executed a Contract to purchase the Mt Richmond property. The property was purchased for $290,000 and it was also necessary for the usual registration and disbursements to be paid, together with legal fees. About the time of the execution of the Contract of Sale, the plaintiff and the defendant entered into a written agreement, whereby, the plaintiff agreed to lend to the defendant, $145,000, which is half of the purchase money, together with interest free, repayable on demand, or $250 per fortnight. The $145,000 is arrived at because it represents one half of the consideration for the purchase of the Mt Richmond property. The other half was to be initially a gift; however, the defendant at no time repaid $250 per fortnight, and when asked to repay the money, she has failed to do so.
10 I accept that the arrangements between the plaintiff and the defendant were not certain; however, one thing is certain and that I am satisfied about, and that is that the plaintiff and the defendant were prepared to do what was necessary, in order to obtain a property in the name of the defendant to assist her to have the care and custody of her two youngest children returned to her. I am also satisfied that the plaintiff and the defendant, between the two of them, either orally agreed or by implication agreed that the plaintiff would effectively hold the Mt Richmond property on trust, for the defendant.
11 The plaintiff acted to his detriment by accepting all of the representations made to him by the defendant. He acted on those representations and over a period of time, he paid out to the plaintiff, or on her behalf, monies totalling $355,865. That included the purchase price for the Mt Richmond property, of $290,000, registration, disbursements and legal fees, large amounts for furniture for the property and other amounts. The defendant has at all times refused to acknowledge the position of the plaintiff. She has refused to acknowledge that she holds the property on trust for him. She asserts, in the Defence filed by solicitors on her behalf, that all monies paid by the plaintiff to her, were by way of a gift.
12 Having heard the evidence of the plaintiff, I reject that pleading. There is no evidence before the Court that any of this money was gifted. It was an attempt by the plaintiff to assist the defendant, on conditions, but at no stage, was he to be left as it were, empty handed and without any money or the ability to secure it. I am perfectly satisfied on the evidence, that the property at Mt Richmond, being a property in Certificate of Title, Volume 10316, Folio 414, is held on trust by the defendant for the plaintiff and I make a declaration to that effect.
13 The Orders of the Court will be:
(1) The Court declares that the defendant holds the Mount Richmond property, more particularly described in Certificate of Title Volume 10316 Folio 414, on trust for the plaintiff;
(2) I order that within 28 days, the defendant execute and deliver to the plaintiff a duly-executed transfer of her legal interest in the Mount Richmond property registrable to the plaintiff as the transferee so as to give effect to the declaration which I have made;
(3) I order that the defendant pay the cost of and incidental to the proceeding, such costs, absent agreement, to be taxed in the Costs Court.
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