Moreau v Moreau - [2022] QSC 91

SUPREME COURT OF QUEENSLAND

CITATION:

Moreau v Moreau and Another [2022] QSC 91

PARTIES:

ZIA CASSANDRA MOREAU

(Applicant/respondent)

v
ATALANTA MOREAU

(First Respondent/applicant)
and

DAVID KAULKMAN

(Third Respondent)

FILE NO/S:

8751/19 and 924/20

DIVISION:

Trial Division: Application

PROCEEDING:

Applications (2)

ORIGINATING COURT:

Supreme Court of Queensland, Brisbane

DELIVERED ON:

18 May 2022

DELIVERED AT:

Brisbane

HEARING DATE:

20 April 2022

JUDGE:

Ryan J

ORDER:

IT IS ORDERED THAT:

1.    In 924/20:

Pursuant to section 127(2) of the Land Title Act 1994 (Qld), caveat number 719698458, registered over the land described as lot 8 on registered plan 913578 and having title reference 50185356, be removed.

2.    In 8751/19:

Pursuant to section 127(2) of the Land Title Act 1994 (Qld), caveat number 719411678, registered over the land described as lot 6 on registered plan 159534 and having title reference 15809183, be removed.

3.    The claims for compensation in each application are dismissed.

4.    The applicant, Zia Moreau, is to pay the costs of the First Respondent, Atalanta Moreau, of each application, on the standard basis.

CATCHWORDS:

REAL PROPERTY – TORRENS TITLE – CAVEATS AGAINST DEALINGS – REMOVAL – PARTICULAR CASES – where, decades ago, the first respondent mother offered to subdivide her large property and gift her son and daughter (the applicant) a lot each – where son accepted the offer and mother subdivided her property to give a lot to him – where daughter did not accept offer when it was made – where, now, daughter wants to accept offer – where mother unable to meet her financial commitments – where mother has entered into an agreement to sell property to meet her debts – where daughter lodged caveats on property – where mother applied to have caveats removed – whether daughter had commenced “proceedings” within relevant period of time – whether daughter’s claim gave rise to a serious question to be tried – whether balance of convenience favoured retention of the caveats – whether disconnect between interest claimed and land which daughter identified in caveats

Land Title Act 1994, sections 122, 126, 127
Property Law Act 1974, section 55

Uniform Civil Procedure Rules 1999 (Qld), rules 9, 22, 149

Allen v Synder [1977] 2 NSWLR 685
Bell v Graham [2000] VSC 142
Cousins Securities Pty Ltd v CEC Group Limited [2007] QCA 192
Goldstraw v Goldstraw [2002] VSC 491
Lloyd v Tedesco [2002] WASCA 63
Re Henderson’s Caveat [1998] 1 Qd R 632

COUNSEL:

C D Coulsen for the applicant/first respondent
Respondent/applicant self-represented

SOLICITORS:

Sajen Legal for the applicant/first respondent
Respondent/applicant self-represented

OVERVIEW

Zia Moreau’s mother, Atalanta Moreau, owns property on the Sunshine Coast. The property comprises two lots – Lot 6 and Lot 8. In 1994, Atalanta[1] offered her two children – Zia and her brother – a block of land each, carved out of Lot 8. Zia’s brother accepted the offer and received a block of land in 1997. Zia did not accept the offer at the time it was made but wishes to do so now. As…

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 Moreau v Moreau

Details

AGLC: Moreau v Moreau [2022] QSC 91
Case: [2022] QSC 91
Decision Date: 18 May 2022

CaseChat Overview and Summary

In the matter of Moreau v Moreau, the applicant, Zia Moreau, sought to have caveats removed from certain lots of land owned by her mother, Atalanta Moreau. The dispute arose after Atalanta, unable to meet her financial commitments, entered into an agreement to sell the property to meet her debts. Zia lodged caveats on the property to prevent the sale. Atalanta applied to have the caveats removed, arguing that Zia's claim did not give rise to a serious question to be tried, and the balance of convenience favoured the removal of the caveats. The court had to decide whether Zia had commenced "proceedings" within the relevant period of time, whether her claim gave rise to a serious question to be tried, whether the balance of convenience favoured retention of the caveats, and whether there was a disconnect between the interest claimed and the land which Zia identified in the caveats.

The court found that Zia's claim did not give rise to a serious question to be tried. Zia did not consistently lay claim to any particular part of the property and her contributions to the property did not directly add value to it. The court held that a constructive trust may arise from proprietary estoppel, but Zia's contributions did not go beyond contributions to the material wellbeing of the parties to the relevant relationship. The court also found that the balance of convenience favoured the removal of the caveats, as Atalanta was unable to meet her financial commitments and the sale of the property was necessary to meet those debts.

The court further held that there was a disconnect between the interest claimed and the land which Zia identified in the caveats. Zia did not consistently lay claim to any particular part of the property and her contributions did not relate to the generation of wealth as a joint effort. The court found that the caveats were invalid and ordered that they be removed. The applicant, Zia Moreau, was also ordered to pay the costs of the First Respondent, Atalanta Moreau, of each application, on the standard basis.

Orders

Orders of the court

IT IS ORDERED THAT:

1. In 924/20:

Pursuant to section 127(2) of the Land Title Act 1994 (Qld), caveat number 719698458, registered over the land described as lot 8 on registered plan 913578 and having title reference 50185356, be removed.

2. In 8751/19:

Pursuant to section 127(2) of the Land Title Act 1994 (Qld), caveat number 719411678, registered over the land described as lot 6 on registered plan 159534 and having title reference 15809183, be removed.

3. The claims for compensation in each application are dismissed.

4. The applicant, Zia Moreau, is to pay the costs of the First Respondent, Atalanta Moreau, of each application, on the standard basis.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Throughout her material, Zia does not consistently lay claim to any particular part of the property. The theme that emerges from her evidence is that she wants “something” – either real property or its monetary equivalent – to be in the same position as her brother finds himself in.The evidence Zia filed an affidavit on 19 April 2022, which was very similar to her January 2020 affidavit, but which also refuted several of Atalanta’s assertions. I treated it at evidence in both applications. Zia asserted that she had “worked for [her] mother for many years on the home property on the understanding that she was holding [for Zia] a block of land equal or more to the size that [her] brother was gifted on a block that was subdivided approximately 20 years ago”. According to Zia, as a child, she worked “unpaid” on the property and did whatever her parents asked her to do. Her parents “split” when she was 12 and a half years old. She said from then, she worked “significantly” in an adult capacity to support her mother, as a sole parent, in “maintaining” and “running” the properties. In her affidavits, she itemised her contributions to the properties. While those contributions were admirable, they were not the sort of contributions which directly added value to the property. Her alleged contributions were as follows – A.gardeningB.mowingC.checking fences and boundariesD.assisting with the riding centre (rode for y ears, picked up poo, cared for horses, liaised with VETS, hosted children’s parties, took out all day and half day picnic rides and pub rides, tourism guide for the horseriding business. E.answering telephonesF.Attending to queries, making bookings, follow up with customers, general office administration, liaise with customers, phone bookings for horseriding and accommodationG.dealing with customersH.feeding animals (horses, birds, dogs, cats geese.I.fixing fences, fixing holes moving trees and waste, weeding, general clearing,J.liaised with council for regular inspections, which I have done most recently in December 2019 with Sunshine Coast Council for spa inspections, and legislation requirements.K.helping settle neighbour disputesL.Dealt with accidents and emergencies on the property M.Organising workers, checking up with them throughout the days as needed and asked to by my motherN.Advertising, distributing advertising leaflets on the Sunshine Coast, Noosa to CaloundraO.Entertained at many special functions and events at the property including Aboriginal song and dance celebrations, Grand opening of the accommodation houses with Federal and Local parliament members present. P.On-line research for my mother.Q.shopping for my mum at Bunnings, Coles, Woolworths, Pool Shops, doing errands consistently for my mum off site as mum is so busy on site, that it’s hard for her to leave the property. R.Cleaning poolsS.Cleaning BBQ and entertaining guest areas etc T.Assistant to masseuse for guestsU.Look after the properties when Mum visits her parents in NSW generally twice per year. V.All rounder doing whatever mum asks and whatever is necessary on the properties. W.Cooking and sharing meals with my Mum. I pay for these. X.Some general office administration and computer work for mum for the property Y.Hosted accommodation inspections Z.Since February 2019 I have been working extensively on an alleged banking maladministration case and still working on it to try and save myself a block of land, and for my mother and family, and to service all and any debt after investigation including resolve of debt for investors of which David Kaulkan is one. I have a solution that will benefit all. I have been doing this alone and with legal advice that I am able to access. AA.The hours I have worked equate to 15 hours on average per week including any time being away from the property from 1983 to today’s date.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In Goldstraw v Goldstraw [2002] VSC 491, Dodds-Streeton J at [26] explained the circumstances in which a caveat may be validly based on a constructive trust (my emphasis) – An interest based on a constructive trust may form the basis of a caveat. Such an interest could arise in a wide variety of circumstances. Examples include part performance of an agreement for disposition of an interest in land, where parties have acquired land pursuant to a failed joint venture, where the claimant has made an indirect contribution to the purchase price of the property to which another takes title; or there is a common intention that a person will acquire an interest in a particular property to which another party holds legal title, and the person acts on that belief to his or her detriment, such that it would constitute a fraud to deny the interest intended to be acquired.The contributions necessary to found a constructive trust must be related in some way to the generation of wealth as a joint effort The sort of contributions necessary to found a constructive trust must go beyond contributions to the material wellbeing of the parties to the relevant relationship. They must be contributions to the acquisition, maintenance, or improvement of the property in respect of which the trust is claimed. In Lloyd v Tedesco [2002] WASCA 63 at [30] and [31], Murray J (with whom Hasluck J agreed), explained (in the context of a marriage relationship) that the guiding principle was unconscionability. There needed to be something more than the performance of a valuable role in providing love, care or support. Such a contribution will be sufficient “only if it is related in some factual way to the generation of wealth as part of a joint effort or endeavour to provide for the parties’ mutual material welfare and security”. His Honour continued (my emphasis) – That need not, of course, be the only purpose of the provision of such assistance to the defendant, but it must be one of the material purposes because it is that which marks out the character of the joint endeavour as being one which will generate a claim, upon the failure of the relationship, without the fault of the plaintiff, to a share in the property created, acquired, maintained and improved during the course of the relationship, where the endeavour can be seen to be related to particular items of property, or will generate a claim for compensation representing the value of the contributions made by the claimant to the increased in the material wealth which was intended to be enjoyed by the parties jointly.A joint endeavour of this character is one which has the aim of adding to the parties’ material wealth for their mutual benefit rather than being one where the plaintiff simply provides loving care and support to the defendant as a normal incident of a defacto relationship. In that sense it is right to say that the joint endeavour must be one intentionally or deliberately entered into for the purpose of advancing the parties’ mutual material wealth. Only if it bears that character will it be unconscionable to allow the defendant to retain the entirety of the beneficial interest in that wealth. To hold otherwise, and in particular to hold that it would be sufficient if in fact the efforts of the plaintiff advance the defendant’s capacity to acquire wealth, would, in my opinion, be to commit the error to which Deane J adverted in Muschinski of giving undue rein to the Court’s idiosyncratic notions of fairness and justice.A constructive trust may arise from proprietary estopple

CITATION:	Moreau v Moreau and Another [2022] QSC 91
PARTIES:	ZIA CASSANDRA MOREAU (Applicant/respondent) v ATALANTA MOREAU (First Respondent/applicant) and DAVID KAULKMAN (Third Respondent)
FILE NO/S:	8751/19 and 924/20
DIVISION:	Trial Division: Application
PROCEEDING:	Applications (2)
ORIGINATING COURT:	Supreme Court of Queensland, Brisbane
DELIVERED ON:	18 May 2022
DELIVERED AT:	Brisbane
HEARING DATE:	20 April 2022
JUDGE:	Ryan J
ORDER:	IT IS ORDERED THAT: 1. In 924/20: Pursuant to section 127(2) of the Land Title Act 1994 (Qld), caveat number 719698458, registered over the land described as lot 8 on registered plan 913578 and having title reference 50185356, be removed. 2. In 8751/19: Pursuant to section 127(2) of the Land Title Act 1994 (Qld), caveat number 719411678, registered over the land described as lot 6 on registered plan 159534 and having title reference 15809183, be removed. 3. The claims for compensation in each application are dismissed. 4. The applicant, Zia Moreau, is to pay the costs of the First Respondent, Atalanta Moreau, of each application, on the standard basis.
CATCHWORDS:	REAL PROPERTY – TORRENS TITLE – CAVEATS AGAINST DEALINGS – REMOVAL – PARTICULAR CASES – where, decades ago, the first respondent mother offered to subdivide her large property and gift her son and daughter (the applicant) a lot each – where son accepted the offer and mother subdivided her property to give a lot to him – where daughter did not accept offer when it was made – where, now, daughter wants to accept offer – where mother unable to meet her financial commitments – where mother has entered into an agreement to sell property to meet her debts – where daughter lodged caveats on property – where mother applied to have caveats removed – whether daughter had commenced “proceedings” within relevant period of time – whether daughter’s claim gave rise to a serious question to be tried – whether balance of convenience favoured retention of the caveats – whether disconnect between interest claimed and land which daughter identified in caveats Land Title Act 1994, sections 122, 126, 127 Property Law Act 1974, section 55 Uniform Civil Procedure Rules 1999 (Qld), rules 9, 22, 149 Allen v Synder [1977] 2 NSWLR 685 Bell v Graham [2000] VSC 142 Cousins Securities Pty Ltd v CEC Group Limited [2007] QCA 192 Goldstraw v Goldstraw [2002] VSC 491 Lloyd v Tedesco [2002] WASCA 63 Re Henderson’s Caveat [1998] 1 Qd R 632
COUNSEL:	C D Coulsen for the applicant/first respondent Respondent/applicant self-represented
SOLICITORS:	Sajen Legal for the applicant/first respondent Respondent/applicant self-represented