Morrison v Alexander John Shearer as Executor of the Estate of Robert Grant Shearer
[2015] QDC 147
•10 June 2015
DISTRICT COURT OF QUEENSLAND
CITATION:
Morrison v Alexander John Shearer as Executor of the Estate of Robert Grant Shearer [2015] QDC 147
PARTIES:
BONNIE HELEN MORRISON
(plaintiff)
v
ALEXANDER JOHN SHEARER AS EXECUTOR OF THE ESTATE OF ROBERT GRANT SHEARER
(defendant)
FILE NO:
3727/14
DIVISION:
Civil
PROCEEDING:
Trial
ORIGINATING COURT:
District Court, Brisbane
DELIVERED ON:
10th of June, 2015
DELIVERED AT:
Brisbane
HEARING DATE:
11-13th May 2015; submissions received 14th and 15th of May 2015
JUDGE:
Ryrie DCJ
ORDER:
The plaintiff’s claim is dismissed.1.
The defendant’s counterclaim is allowed.2.
Morgan Gerard Lane and Christopher Cook, Insolvency Practitioners be appointed Trustees of the land described as Lots 4 and 5 on Registered Plan 12499, County of Stanley, Parish of Bulimba and situated at 71 Brentnall Street, Norman Park in the State of Queensland, pursuant to Section 38 of the Property Law Act 1974 (Qld).3.
The proceeds of sale, after payment of all selling expenses and conveyancing costs, be divided into two equal shares and dealt with as follows;4.
As to one share, to be paid to the Defendant to be distributed in accordance with the Testator’s will; and(a)
As to the other such share, to be applied firstly in the payment of the Trustees’ professional costs and outlays and thereafter the balance be distributed to the Plaintiff. (b)
I declare that, on the proper construction of the will, the defendant should distribute 20% of the estate’s 50% share of the net sale proceeds to the plaintiff, such that the plaintiff’s total share is 60% of the total proceeds of sale of the subject property.5.
The parties are to provide written submissions as to costs but not until after 28 days has expired from the date of publication of this judgment unless the parties otherwise agree.6.
CATCHWORDS:
ESTOPPEL – ESTOPPEL BY CONDUCT – PROPRIETARY ESTOPPEL – where the plaintiff and defendant were in a de-facto relationship and purchased a property as joint tenants together – where the plaintiff alleges that an oral ‘Acquisition Agreement’ was entered into with the defendant that they would purchase the property as joint tenants, that they would refrain from making wills, and title to the property would pass to whichever party survived the other – where the plaintiff alleges that a subsequent oral ‘Separation Agreement’ was also entered into with the defendant at or about the time of their separation that the plaintiff and defendant would continue to own the property as joint tenants and that title to the property would pass to whichever party survived the other - where the defendant subsequently severed the joint tenancy – whether any representations were made by the defendant to the plaintiff as they related to the said oral agreements – whether the plaintiff relied upon those agreements to her detriment
EQUITY – DECLARATORY RELIEF – CONSTRUCTIVE TRUSTS – RESULTING TRUSTS – GENERALLY – whether there was any joint endeavour between the plaintiff and the defendant irrespective of the parties’ intentions – whether any joint endeavour, if any, gave rise to a constructive trust – whether a resulting ought to be imposed in order to reflect any unequal contributions made to the initial acquisition of the property
EQUITY – GENERAL PRINCIPLES – EQUITABLE DEFENCES – LACHES – whether the plaintiff delayed in bringing her claims to the disadvantage of the defendantSUCCESSION – WILLS, PROBATE AND ADMINISTRATION – CONSTRUCTION AND THE EFFECT OF TESTAMENTARY DISPOSITIONS – whether clause 3 of the deceased’s will is clear in its terms – whether extrinsic evidence ought to be admitted
Barker v Linklater & Anor [2007] QCA 363 – considered
Baumgartner v Baumgartner (1987) 164 CLR 137 – considered and applied
Calverley v Green (1984) 155 CLR 538 – considered and applied
Fell v Fell (1922) 31 CLR 268 – considered
Germanotta v Germanotta & Ors [2012] QSC 116 – considered and applied
Gillespie & Ors v Gillespie [2013] QCA 99 – considered and applied
Hill v Hill [2005] NSWSC 863 – considered
Muschinski v Dodds (1995) 160 CLR 583 – considered and applied
Nolan v Nolan and Ors [2014] QSC 218 – consideredCOUNSEL:
B. Kidston (for the plaintiff)
D. Morgan (for the defendant)
SOLICITORS:
Active Lawyers and Consultants (for the plaintiff)
Woods Prince Lawyers Pty Ltd (for the defendant)
Introduction
During the period 1979 until December 1992, the plaintiff Ms Bonnie Morrison (‘Bonnie’) and Mr Robert Shearer (‘Bob’) (now deceased) lived together as husband and wife but never married. In June 1988, they purchased a property (‘the property’) (71 Brentnall St, Norman Park) together as ‘joint tenants’. The property was in effect on two lots with one title, in that it had a house straddling on it which was divided into two flats. Ms Morrison and the deceased resided in one of the flats while renting out the other save for a period when the deceased’s mother lived there. After the relationship came to an end in December 1992, each party then took a flat each in order to facilitate their own and separate lives. Regrettably, Mr Robert Shearer died on the 20th September 2012 as a result of a terminal illness. Prior to his death however, the deceased had made his own will dated 16th May 2012, the construction of which is now in issue (exhibit 2). Shortly after making that will, the deceased, on legal advice, severed the joint tenancy in respect of the subject property. The parties continued to hold the subject property as tenants in common in equal shares thereafter until his death on 20th September 2012. The property is currently held as tenants in common in equal shares as between Ms Morrison and Mr Alex Shearer, the deceased’s brother and executor of the estate.
The Pleadings
In these proceedings, Ms Morrison’s primary relief is based on proprietary estoppel. In the alternative, Ms Morrison seeks either equitable damages or declaratory relief (constructive or resulting trust). In short, the pleadings reveals that Ms Morrison’s claim essentially is that just prior to the acquisition of the said property in 1988, the deceased had verbally agreed with her “that the property would be purchased as joint tenants; that they would refrain from making wills; and that the title to the property would ultimately survive to whichever party survived the other”. She says that in reliance upon those representations being made, she had financially contributed the lion’s share to the property’s purchase, all of the loan repayments (including interest) and the property’s maintenance and upkeep. She also says that she undertook the lion’s share of the domestic work in respect of their relationship. The parties eventually separated in December 1992. Ms Morrison says these assurances were repeated from time to time throughout the relationship. Ms Morrison also says that at or about the time of their separation, it was further agreed between her and the deceased “that they would continue to own the property as joint tenants and that the title to the property would pass to which every party survived the other”. Ms Morrison says that in reliance upon the representations being made to her by the deceased at those various times, she had suffered a detriment, namely the loss of an entitlement to the deceased’s ½ share of the subject property. By transfer dated 6th July 2012, the deceased had severed the joint tenancy in respect of the said property. As a consequence, the deceased’s interest held in the property did not pass to Ms Morrison upon his death on 20th September 2012. As such, Ms Morrison claims that it was unconscionable for the defendant to resile from the agreement in all the circumstances having regard to the earlier verbal representations which the parties had made to each other, and her subsequent reliance upon them.
The defendant Alex Shearer (Executor of the Estate of Mr Robert Shearer) in these proceedings in effect denies the claims being made by Ms Morrison and the relief which she seeks. The defendant has also counterclaimed seeking that the subject property be sold and that the net proceeds obtained (after deducting selling and conveyancing costs) be divided so that Ms Morrison receives 20% of the estate’s half share of the net sale proceeds (or put another way, that the whole of the net proceeds obtained from the sale of the property be divided 60:40 in Ms Morrison’s favour).
In order to determine the plaintiff's claims, a consideration of the evidence given at trial is necessary which also necessitates findings to be made; in particular, issues as to credit.
‘The Dynamics of the De-Facto Relationship’
Ms Morrison was born in 1955. She has been a qualified Chartered Practicing Accountant since 2006. Prior to that time she had worked as a bookkeeper for approximately 20 years. Ms Morrison and the deceased formed a relationship in 1979. They came to Australia together in 1980 as ‘husband and wife’. They were never married. They did not have any dependants arising from that relationship. They had approximately $400 between them at that stage. Both commenced working not long after they had arrived in Australia. The deceased undertook work as a Chemical Engineer until he left that work voluntarily in late December 1981. Their relationship as ‘husband and wife’ continued until their final separation in December 1992. In the middle of 1988 however, the parties had purchased the property together as joint tenants, the subject of these proceedings.
Ms Morrison provided to the court a document which she had prepared (marked Annexure A attached to the Statement of Claim, marked exhibit 6 in these proceedings) which in essence sets out her recollection regarding her best estimate as it related to the respective earnings of both parties during the period March 1980 to 30th June 1992. She had done so, on her evidence, after having regard to certain documentation which was still available and her own recollections of that period. The documentation included tax returns, bank accounts and the like.
Ms Morrison’s recollections at trial in respect of the parties’ working lives prior to separation can be summarised as follows. Aside for a short period where they both travelled together to Tasmania (February to June 1982), she said that she had worked consistently as a bookkeeper. She had also additionally took up a hobby during 1986 to 1990 which entailed a jewellery business selling her wares at the markets. Ms Morrison gave evidence that the deceased would go to the markets with her in order to sell the jewellery together. She gave evidence that his contribution however to the business was about 10% (T1-36). She said that she then ceased doing the jewellery business in 1990 and believed that the deceased also did so at that time (T1-35). This evidence was given notwithstanding her own pleading which says that the deceased continued to conduct the jewellery business well after that time.
According to Ms Morrison, the deceased never worked again as a Chemical Engineer once he had left that work in December 1981. She says that during 1982 to 1984 he built a boat (‘The Boat’). She conceded it was however for the benefit of both of them. During the time he was building a boat during that period, she initially said that he was doing it full time (T1-34). Ms Morrison then gave evidence that even when he was working on the boat, he was also working as a casual roof plumber, sporadically a couple of times a month (T1-35). She later gave evidence that while he was building the boat he also worked on a casual basis for a sports club a couple of nights a week for cash wages as a cook (T1-42). Ms Morrison says that for about two and half years or so after that, presumably from 1984, he then worked in the roof plumbing industry full time as an employed supervisor after which time he tried to establish a lead lighting business however she said it was unsuccessful. She gave evidence that in respect of exhibit 6 (Annexure A), that during the financial year 01/07/1987 to 30/6/1988 she had calculated the deceased’s net earnings per week to be approximately $135.00 in accordance with the information he had provided in the Metropolitan Loan Application (exhibit 5 Doc 24) (T1-43). Ms Morrison says that was because his lead lighting business ran at a loss and so she had used that figure for the subsequent years that followed ($135.00 per week) in calculating his future earnings for the next few years. She gave evidence that she was the one who had maintained the records of financial matters throughout the relationship (T1-40). She also gave evidence that she considered that exhibit 6 fairly represented all the money which she and the deceased had earned throughout the relevant financial year periods stated (T1-43).
She gave evidence that when the property settled for a purchase price of $74,000 in June 1988, $50,000 of that came from a joint metropolitan home loan, four odd thousand came from her own bank account and the rest of it came from joint funds (T1-46). She then referred to Document 26 (marked exhibit 7) which was a document she says she prepared in 1988 which she said set out all of the parties’ relevant bank account details at that time. That was prepared by reference to Document 27. Ms Morrison also says that it was based on Documents 28 and 29 (exhibits 9 and 10) which was the documentation received from the subject property’s conveyancing solicitors. In effect, her evidence was that those documents collectively provided sufficient evidence of her own contribution (from her own personal NAB account) of $4107.29 to the purchase price of the subject property (Doc 30 (exhibit 8). In re-examination, Ms Morrison confirmed that the schedule of the disbursement of funds used to acquire the property outlined what bank accounts the parties had used or cleared out in order to facilitate the purchase (T3-50).
Ms Morrison gave evidence that after the property settled she alone then paid all of the mortgage repayments (including interest) up until they separated using her own funds. In this regard, she said that she had utilised her personal NAB Account in which her wages were being paid. She stated that once her wages came into that account, she would walk across the road and deposit money into the Metropolitan Building Society in order to make the loan repayments due. She also said that she paid for all the furniture which they had initially purchased for the subject property and paid all of the phone bills while the deceased had only paid for the joint electricity and food expenses (T1-50). She gave evidence that while they were both living in Flat 1, they had rented Flat 2 out (except for a period when the deceased’s mother lived there rent free it seems for approximately two years) and that that rent money was put towards paying off the rates and other running expenses on the property as required. She stated that in addition to the home loan repayments, she had also made some additional payments using the home loan reducer account. She recalled paying about $2000 in about 1990, her sister putting in about $10,000 and the deceased putting in one payment, but not during the course of their relationship (T1-52; T1-69).
She also gave evidence that any monies earned by them went into their own separate bank accounts however she admitted they had also both put money into a joint account as well. She stated however that it was not contributed to equally. She estimated that she gave about 80% of the monies to those joint funds. She also gave evidence that she did the majority of the work maintaining the gardens and also did the lion’s share of the domestic duties. She stated that they both shared 50:50 cooking notwithstanding that her own pleading says that the deceased only undertook the minority of the cooking. She then referred to the purchase of a glass kiln, a Toyota HiAce van and the boat which the deceased had built (the latter being valued at $15,000) which she says the deceased took with him when they separated. She also stated that but for his verbal representations prior to purchasing the property, she would not have contributed to the relationship both financially and domestically to the degree which she had done, and would have insisted he paid or did his share (T1-55).
In respect to the parties’ personal circumstances prior to separation, Ms Morrison stated that aside from the deceased’s mother coming to live in Flat 2 for a period, she stated that she believed the deceased to be estranged from his only other living family, his brother Alex (T1-56). Mr Alex Shearer who also gave evidence at trial did not agree. While not having much contact due to distance during the first 20 years or so after the deceased left to head to Australia, Mr Alex Shearer gave evidence that he and his brother were never ‘estranged’. During cross examination, Ms Morrison stated that her definition of ‘estranged’ simply meant to her that the deceased and his brother did not have a relationship where they discussed personal information (T3-26).
‘The Alleged Acquisition Agreement Representations’
Ms Morrison gave evidence that prior to the purchase of the subject property, she and the deceased had certain discussions. Those discussions had taken place at Flat 1 (71 Brentnall St, Norman Park) where they were living at the time. Ms Morrison said that that discussion was “that when we bought the property it would be held as joint tenants. We didn’t need to make a will because we were holding it as joint tenants, and it was our only major asset” (T1-45). Ms Morrison said that she believed that it was also discussed regarding who would get the property if the other passed away because ‘she knew and believed Bob (the deceased) knew that joint tenants meant that if either one of them died, the survivor gets the property – gets the other person’s share’ (T1-45). She also gave evidence that she in fact knew what joint tenancy meant because she had come across it in her work as a bookkeeper and that when she and the deceased had gone to see a (conveyancing) solicitor for the purpose of actually purchasing the property, the solicitor had explained it then more clearly to both her and the deceased who were both present. That explanation she said included what joint tenancy meant and what the consequence of it were. During cross examination, she confirmed that if her position was accepted as true, then it would have the effect of effectively tying up both parties’ financial affairs for the rest of their respective lives, that is, regardless of what happened in the future (T1-94).
'The Alleged Separation Agreement Representations’
Ms Morrison gave evidence that in December 1992, she again had verbal discussions with the deceased. This was at the point they had decided to separate as a couple. She stated that she had said to the deceased that they should leave the joint tenancy intact and that he had said yes to her. She stated that he then bought up the fact that he might like to return to England and that she said that she would buy his interest out in the property. He had then put forth that he felt that at that time that she had put in 60 percent of the property through the original purchase, because “that cash that had come from me to originally purchase the property and also the fact that I had paid off 100 percent of the repayments during the period we were together” (T1-59).
She also stated that she believed they separated because of the fact that his mother had come to live with them. This evidence was in fact consistent with certain evidence given by Mr Lillicrap (Solicitor) who also gave evidence as it related to the deceased’s mother’s ‘part’ in the separation. She further stated that they had also decided not to make wills again at that time. This assertion was made notwithstanding that her own pleadings make no reference to this specific detail.
She maintained that the general tenor of those discussions were again mentioned between them throughout the relationship (T1-60) and at no time prior to her receiving a letter from the deceased’s solicitors dated 9th July 2012 (exhibit 21) had the deceased ever told her or communicated to her that he did not intend to honour the prior verbal agreements they had reached. She stated that she had understood that she would only be required to purchase his 40 percent share of the property if he went back to England, otherwise the joint tenancy would simply continue (T1-61). During cross examination on this issue, Ms Morrison conceded that had the deceased in fact chosen to go back to the UK she would have in fact bought out his share in the property (T1-94). When questioned about how incongruous that was, that is, the need for her to buy out Bob’s share, against her continued assertion that she was always going to be entitled to retain Bob’s interest in the subject property as they had agreed regardless of what happened in the future, she stated that she considered “it was a lifetime thing, that if one of them died, the other was not left homeless, whereas if he went back to England and I had bought him out, then it was finalised.” (T1-94).
Notwithstanding this evidence, there was no reference regarding any 60:40 split agreement discussed or reached at separation dependent upon any contingency initially pleaded. When questioned about how the 60:40 split had been calculated on the assumption that if indeed the deceased did eventually go back to England as she asserted, Ms Morrison stated that it had been arrived at because she had paid 100 percent of the home repayments, bought the furniture and basically made sure everything was done in the relationship (T1-95). Significantly, she considered that it was nevertheless a fair split between them at that time but only if the deceased had wanted to go back to the UK. Ms Morrison also conceded during cross examination that not only did she think it was a fair split proposed, but that she had in fact agreed with Bob as to the percentage split proposed (T1-96). Again significantly, Ms Morrison agreed that she thought it was fair having regard to the inputs into the property and the various tasks that they had both done, at that time, and early on (T1-96). She stated however that she no longer considered it fair and that had there not been the agreement as such, then she would never have done the renovations, repairs and maintenance after they separated. She stated she would instead have gone to see a solicitor to get some sort of agreement in place. Ms Morrison stated that she had chosen not to tally up her actual contributions at that time even though the ability to do so was available (T3-50).
Ms Morrison was also asked during cross examination about the financial contributions made during the relationship with reference to Annexure A which she had prepared. She agreed that in effect she had worked out the initial percentage pre-separation contributions to joint funds was 63 versus 37 percent and that she had come to that percentage by simply adding up what she estimated each party had earned during that relevant period (T1-97). She also conceded that the figures set out in paragraph 14 in her Statement of Claim did not in fact match the figures set out in Document 26 (exhibit 7) which she had placed reliance on in those calculations. She was also further questioned about Annexure A (exhibit 6) in respect of the earnings which she has used for the purpose of her calculations. She admitted that she did not include what contribution the deceased had provided in respect of the jewellery business even though she admitted that he would go to the markets and help sell the jewellery with her at a time when she was conducting the business for a profit (T1-89).
She also accepted that even while the deceased was building the boat for both of them the deceased had also worked at casual jobs in order to earn cash. She stated however that she had listed zero (0) dollar earnings for the years 1991 and 1992 because he was running the jewellery and woodworking business at the markets at a loss. There was however no documentation provided to demonstrate the assertion made. She also accepted that he was in fact working most of the time or trying to obtain work during the duration of their relationship. She also accepted that she had put all the rental income received from Flat 2 while they were both residing in Flat 1 as a couple into her earnings column only (including the expenses) because Bob’s businesses was running at a loss. She stated that had she done so otherwise it would have meant his side of the ledger would be even less.
Ms Morrison gave evidence that on the 10th May, 2012 the deceased had rung her up to say goodbye. During cross examination Ms Morrison conceded that when she spoke to the deceased on that day, she had asked him during that telephone conversation whether or not he had made a will. This is notwithstanding that her claims are that she and the deceased had always agreed to refrain from ever making wills. Her explanation for asking him if he had in fact made a will was because she knew that he had other assets such as the boat and a car. Ms Morrison conceded that she didn’t remind him of their prior agreements regarding the subject property and the fact that it was always to remain held as joint tenants even at that time. She stated that she didn’t consider it necessary (T1-86). In fact, Ms Morrison conceded that she had never raised the point with anyone (which included even the deceased when he was alive), which was that the deceased and herself had struck certain agreement/s to the effect that the property was always to be held in joint tenancy and that the interest held respectively by them would always pass under survivorship to the other. Her recurring reason for not raising this was, ‘because my solicitor had basically said there’s nothing I could do about it’ (T1-86). In this regard, Ms Morrison had seen a solicitor (Mr Redburn) in July 2012 for another matter, but had raised whether one party to a joint tenancy was able to sever it unilaterally. Indeed, the recurring reason just referred to, was in effect the general thrust of Ms Morrison’s evidence on this issue.
When the parties finally separated in December 1992, Ms Morrison gave evidence that the parties each continued to pay off the remaining home loan of $29,500 equally, which was eventually paid out in full on 20th November 1998. They also paid the rates equally and in effect, it is open to find on the evidence available that essentially they then led their own separate lives from that point onwards. Ms Morrison lived in Flat 1 until 2005 at which time she left to reside with Mr Luxford at his home. The deceased on the other hand, lived on the boat for a period until his mother who had been living in Flat 2 at the point of the parties’ separation, went into a nursing home. The deceased then returned to live in that flat himself. Ms Morrison retained at all times the benefit of Flat 1. The deceased retained at all times the benefit of Flat 2. There was no suggestion that they were separated and simply living under the same roof (albeit 2 separate flats at the one property) after separation. Ms Morrison nevertheless stated that the power in respect of lighting for both flats was nevertheless connected to her flat’s meter and she continued to pay for it in full until she left the property in 2005 (T1-62).
She stated that even though the relationship had come to an end in December 1992, she did not seek any legal advice regarding her rights at that time as she had relied on his word that their prior verbal agreements would stand. She also gave evidence that at no time had the deceased ever communicated to her prior to her receipt of a letter (exhibit 21) (Mr Lillicrap letter dated 9th July 2012) that the deceased would not be honouring the agreements that they had entered into previously (T1-85). She also gave evidence that even though their relationship had finished, she had remained in contact with the deceased on friendly terms, helping him by paying the bills etc. and talking to him when he was depressed (T1-78), which on her case apparently happened a lot. During cross examination however, Ms Morrison conceded that she had not even visited the deceased when he was in hospital seriously ill with a brain tumor and had only spoken to him a couple of times after he had rung her to advise her that he was seriously ill (T1-86). Her reason for not visiting him at hospital was that she had had an aunt who had died from a brain tumour and that ‘she couldn’t cope with it’.
‘Improvements, Repairs etc Claimed’ (Annexure B)
Ms Morrison gave evidence of the improvements, repairs and the like which she said were undertaken by her in respect of the property after separation. She produced a document, Annexure B, which she had prepared (exhibit 20). Certain documents were tendered in support of her claim. A substantial amount of that claim however comes from documentation relating to Mr Sydney Luxford. Mr Sydney Luxford, who has been Ms Morrison’s de-facto partner since 2005, gave evidence that he had performed the work at the subject property at Ms Morrison’s request. He stated that he had not been looking for work at that time as he was semi-retired. He nevertheless provided a series of tax invoices/statement (exhibit 1) for work performed by him for the plaintiff at the subject property over the period from the 10th of January 2006 to the 20th of September 2010. He stated to the court that he was never formally qualified as a builder but that he had performed certain building work for his parents’ building company many times over the years. He stated that he believed that the first work that he did at the property for Ms Morrison related to the driveway; excavating under the house to create two car parks (T1-19). Upon consideration of the documentation tendered this evidence was in fact not correct. Mr Luxford was then referred to an invoice he had issued on the 1st of September 2006 and stated that it was ‘probably’ the first job he did. Again, this cannot be correct as there is an earlier tax invoice for January 2006 submitted. He stated that the amounts claimed in all the invoices tendered were paid by the plaintiff. There was no documentary evidence available on this fact tendered. He also stated that he had calculated his (labour) rates based on his knowledge of having worked in the building industry prior and that he considered them to be ‘very moderate’. Some are noted as $50 and $80 ‘per hr’, whilst some rates claimed were not distinguished at all in the invoices tendered. Curiously, an extension to Flat 1‘s kitchen performed by Mr Furney in November 2003 has a labour rate of $20.00 per hour. The total component which may be attributed to Mr Luxford’s ‘efforts’ to the improvements claimed is $41,252.20. Other documentation was provided to support the plaintiff’s claim for the improvements made to the subject property, post separation. During cross examination however, Ms Morrison admitted that a substantial amount of those improvements were attributable solely to Flat 1 of which she had received the sole benefit, either by living there herself or when she was receiving the fruits of the rent received. A careful examination of the documentation tendered in the plaintiff’s case (excluding exhibit 1) shows that most of that documentation (exhibit 19) was in fact either accompanied by a receipt for monies paid or at least an acknowledgement on the document itself of the monies being received as payment. Curiously, no such notation is written on any of Mr Luxford’s documentation nor have any receipts for payment been tendered by the plaintiff into evidence. Nevertheless, there was no evidence to suggest that the work claimed was not in fact performed by Mr Luxford at the subject property regardless of whether proof of payment was tendered or otherwise. The amount attributable to improvements and repairs to the common property (rather than just to one flat or the other) based on Ms Morrison’s evidence as it related to Annexure B can be calculated at $27,717.42.
Ms Morrison conceded during her evidence that in respect to the construction of the joint deck and roof replacement (common property), she had paid for the materials while the deceased had undertaken this work himself (T1-64). She valued his work contribution however to be about $3000. No account was made for his work in Annexure B at all in respect of the joint deck. Ms Morrison was also asked about the installation of a water tank as the Annexure prepared did not show that fact (T1-102). In this regard, Ms Morrison was of the view that she didn’t believe the tank cost around $5000 when it was suggested to her. She stated that it didn’t cost anything like that and stated that in any event it was plumbed only into his laundry. She also mentioned that she had been told by the deceased that the tank was in fact a ‘reject’ that he was given by an organisation that went ‘bust’ (T1-102). She also stated that by creating a laundry in Flat 1 (instead of requiring the tenants to use the joint laundry as it existed) had meant a better quality of tenant which helped out the deceased as well (T1-106). She further stated that getting a better tenant was so Bob wouldn’t continually complain (T3-25). She was reluctant to concede that these improvements also meant that a better tenant would mean better rent for her (of which she received the whole benefit of). Ms Morrison also referred to other documentation provided which she said supported her claims in respect of the furniture purchased by her during the relationship (exhibit 15). She also stated that in her opinion the deceased had basically done nothing to his unit, and that he lived in a squalor (T1-75). As a consequence she stated that it had presented difficulties for her securing tenants for her flat and she had to improve certain things because “they didn’t like to go into areas he didn’t maintain such as the back where the washing line was and where the joint laundry was situated”. This evidence was given notwithstanding that the responsibility to maintain that area equally fell to Ms Morrison as a joint owner of the common area of that property. Nevertheless, she stated that she chose to renovate the bathroom upstairs (in her flat) and put in a dryer, washing machine and laundry tub into it (T1-76) so the tenants in her flat were accommodated.
Ms Morrison stated that she would not have done the large amount of repairs, improvements and the like claimed in Annexure B (exhibit 20) had she not relied on the deceased’s earlier agreement as pleaded, made at the time of separation. She also claimed that had she not secured the agreements which she says were reached with him at the various times, she would have gone to see a solicitor and/or would have proceeded to the courts in order to secure the additional amounts of money that she had put into the relationship (including the purchase monies, mortgage repayments and the like) (T1-76).
Ms Morrison gave evidence that she has always viewed the subject property as her primary asset and that she now needed it in order to fund her retirement. In effect, her evidence was that she needed the (whole) of the property to enable her to in fact retire (T1-77). This evidence was given notwithstanding that Ms Morrison has been living in a de-facto relationship with Mr Luxford for the past 10 years at his home at Tarragindi and has always continued to work as a Chartered Accountant since becoming qualified since 2006.
Ms Morrison also gave evidence that after Bob died, when the property was being surveyed in September 2012, she had told Mr Alex Shearer that she was still interested in buying it when he had inquired whether she was still interested (T1-84). Mr Alex Shearer gave evidence in respect of the post separation improvements claimed during cross examination. He admitted that he had not inspected the property in order to elicit whether the work claimed had been done or not. However, he made the point that the deceased had also put in a new bathroom because Mr Shearer’s daughter was going to be visiting him in 2012 and that he had also put in new floors including carpet (T3-78). I have no reason to reject his evidence. In any event there was no real challenge made to the assertions regarding any improvements made by the deceased to his flat at that time.
‘The Meeting on the 4th July 2012 with Alex Shearer at the Bowls Club’
Ms Morrison gave evidence that Alex had rung her and said he needed to talk to her. She said she had agreed to meet him. Her recollection of that meeting was that Alex Shearer told her that the house will have to be sold to essentially fund the deceased’s future care in light of his terminal illness. She said that Mr Shearer then suggested that she could buy out the deceased’s share and that she replied to the effect that she had always been interested in buying Bob’s interest. She told Mr Shearer that if Bob stayed on at the property, he might have to pay her some rent because she would need to borrow the money (T1-80). She stated that he then pushed Mr Lillicrap’s card across the table they were sitting at towards her. Her recollection was that no discussion turned to the question of the percentage she might acquire or the like. The first she became aware of a will by the deceased, she says, was when Mr Alex Shearer told her about it after Bob died (T1-81). After being referred to Mr Lillicrap’s letter (exhibit 21), she then stated that she did not take any reference to a will in that correspondence as meaning that the deceased had made one or not (T1-81). During cross examination, Ms Morrison stated however that she was willing to consider purchasing the deceased’s interest in the property then, and in effect to ignore the alleged agreement which had been struck between them, in order to help Bob out (T1-91).
Mr Luxford recalled this meeting as he was present. His recollection was that Alex Shearer raised with Bonnie the issue regarding the deceased’s future care in light of his condition and that because it would be expensive the house would have to be sold. He recalled Ms Morrison responding that if she had to pay money to obtain the property and if the deceased wanted to continue to reside in the back flat (flat 2), he would have to pay rent. He also recalled Ms Morrison indicating that under certain circumstances, she would be prepared to buy out the deceased’s share. He did not recall any percentages being discussed insofar as the property if Ms Morrison was to buy out the deceased’s share or anything regarding the deceased’s intention to sever the joint tenancy.
Mr Alex Shearer had a different recollection of the meeting. He recalls that there were two points to calling the meeting with Ms Morrison. The first to inform her that the deceased intended to sever the joint tenancy and change the nature of the house ownership to tenancy in common. The second point was to see if Bonnie was prepared to buy Bob out at that stage so that if he needed to go into care, the money would be there to fund it (T3-60). He recalled that she stated that if the deceased was to stay on at the property under those circumstances then she would want commercial rent. He stated he informed her that even in the event of Bob’s death, she would still be getting 60 percent value of the whole house. He subsequently made a note of what he believed to be the pertinent aspects of what was discussed in accordance with solicitor’s advice (Mr Lillicrap) (exhibit 24). That note did not contain any reference to the deceased’s intention to sever the joint tenancy. During cross examination, Mr Alex Shearer rejected the suggestion put that he had not had any discussion with Ms Morrison regarding any prior agreement being reached between her and the deceased to divide the property 60:40 (T3-63). He also rejected the suggestion made that no mention of the deceased’s intention to sever the joint tenancy was ever mentioned by him at that meeting. Mr Shearer gave evidence that the meeting only took place between them because he had rung Mr Luxford to intervene as Ms Morrison was not returning his calls (T3-77). The evidence that is outlined under the next heading supports a conclusion being made that Mr Alex Shearer did in fact discuss with Ms Morrison the deceased’s intention to sever the joint tenancy in the near future. The consultation with Mr Lillicrap which had occurred the day before and the nature of that consultation supports such a conclusion being made. As such, I do not accept Ms Morrison’s memory of that meeting (or Mr Luxford’s) where it conflicts with that of Mr Shearer.
‘The Consultation with Mr Lillicrap (Solicitor) with the deceased on the 3rd July 2012 and the subsequent letter sent on his instructions dated the 9th July 2012 to Ms Morrison (exhibit 21) tendered as part of the plaintiff’s case’
Mr Lillicrap gave evidence (under objection) that he met with the deceased and his brother Alex Shearer on the 3rd of July 2012. Mr Lillicrap stated that the consultation related to the deceased having received a diagnosis of a brain tumour about seven weeks beforehand and that it was essentially to get his affairs in order. Mr Lillicrap noted that the deceased had drawn up his own will of which Mr Lillicrap then copied and kept for safe keeping. His recollection was that after a title search was performed in respect of the subject property by him, he advised the deceased regarding the consequences of it being held as joint tenants with Ms Morrison. His impression was that the deceased did not appear to know how that title was held at the time, a fact he further confirmed during cross examination. Mr Lillicrap gave advice that if the deceased was to pass away then it would largely render the will insofar as it related to that property of no consequence because it wouldn’t from part of the estate (T3-8). He stated he then received instructions to sever the tenancy. He recalled that the deceased had clearly wanted 60 percent of the gross asset to end up with Bonnie (Ms Morrison) and that he, Mr Lillicrap, had expressed some concern in the will’s wording, that it might be open to several interpretations (T3-21).
A copy of the notes taken of that consultation were tendered (exhibit 22) and were read helpfully by Mr Lillicrap into the record (T3-13). Included in those notes was a reference to the agreement which the deceased said he had made with Ms Morrison at the time they separated, namely that he had agreed that if and when they sell, she would get a greater share of the property. Mr Lillicrap did not accept the proposition which was put to him during cross examination, which was that he had not been advised of any agreement as to percentages having been struck at all between the deceased and Ms Morrison at separation. Rather, it was put to Mr Lillicrap that his notes suggested that the deceased had simply wanted Ms Morrison to have ‘a greater share’ and no percentages were attached to discussions they had at the time they separated (T3-19). Mr Lillicrap said that he may have inferred the ‘specific amount’ about the agreement from looking at the will. Mr Alex Shearer, who was also present at that meeting was asked whether the deceased gave an explanation for the greater share distribution, but he didn’t remember if he did or didn’t (T3-78). I accept Mr Shearer’s recollection on this issue. I find that he could have easily embellished his evidence here but didn’t. In any event, I find it is of no real matter. Ms Morrison herself conceded during her evidence, on her own pleadings (reply) and subsequently in e-mails that a 60:40 split of the whole (my emphasis added) of the property had been struck at time of separation (subject, according to her, on a contingency being fulfilled).
Mr Lillicrap also referred to the notes insofar as a discussion taking place regarding the deceased’s mother living with them without paying proper rent and that was why Ms Morrison was to receive a greater share (T3-22). Mr Lillicrap also recalled the deceased authorising him to tell Bonnie that she had been included in the will in accordance with the prior discussions the parties had agreed upon and that the subject letter sent to Ms Morrison was to reflect the instructions which he had received from the deceased in that regard (T3-15). He stated he received no response to his letter from Ms Morrison.
Mr Alex Shearer, who attended with his brother (the deceased) upon Mr Lillicrap, gave evidence that once he had discovered his brother was seriously ill with brain cancer he came across to Australia to visit and stay with his brother for about a month. During that visit Mr Alex Shearer recalled his brother discussing the house with him, indicating that he wanted to leave Alex the house but that the deceased didn’t seem to know how the house was held in ownership. This is what led to the consultation with Mr Lillicrap. Mr Shearer stated at no time did his brother ever specifically discuss with him any details of any alleged agreement/s which had been struck by his brother with Ms Morrison at the time they separated. Again I find that Mr Alex Shearer had the opportunity to embellish his evidence on this point but did not do so at hearing. Indeed, his evidence at hearing was that as far as he was concerned, he simply understood that there had been an agreement as between his brother and Ms Morrison which had been earlier reached, which he then communicated to Ms Morrison at the bowls club meeting to the effect that it was his brother’s wishes that she was to receive a 60:40 percent split of the property upon his death (T3-65).
Having regard to the evidence I have just referred to, I find that Ms Morrison’s assertion that any 60:40 split discussed at separation between her and the deceased was because of the greater contributions she had made to the relationship up until that point should not be accepted. There is countervailing evidence which suggests otherwise. Mr Lillicrap’s notes reflect that Ms Morrison was to receive a greater share because the deceased’s mother had lived with them without paying property rent for 2 years and that was why Ms Morrison was to receive a greater share. Secondly, there is evidence from Ms Morrison that when the parties separated, the deceased took certain items (the boat, glass kiln and the car) for which she says she received no compensation. This evidence is equally capable in my mind of ‘explaining’ why there was a 60:40 split agreed when the parties’ separated. Accordingly, I am not satisfied to the requisite standard required that Ms Morrison’s assertion as to why a 60:40 split in her favour was struck, is entirely truthful. There was also her own evidence at hearing in any event, which was that she thought it was fair and had in fact agreed to that percentage split in her favour at that time having regard to the inputs into the property and the various tasks that they had both done, at that time, and early on (T1-96). That does little to support Ms Morrison’s assertions which she made at trial which are that she had in fact put a far more significantly higher financial percentage of contributions towards the property before they separated.
‘The Mr Redburn (Solicitor for the plaintiff) Consultations with Ms Morrison’
Mr Redburn recalled meeting with Ms Morrison and Mr Luxford in respect of an unrelated matter sometime in July 2012. He could not be specific about the date. During the course of that consultation, he gave evidence that the plaintiff had asked him if a party is able to sever a joint tenancy without the consent of the other party to which he replied in the affirmative. He was then asked if there was anything that could be done to stop that severance to which he replied, “no, it was an entitlement.” (T1-14). Significantly, nothing further was mentioned by Ms Morrison to Mr Redburn in respect of that particular matter. Neither was any documentation produced by Ms Morrison (such as any letter from a solicitor (namely Mr Lillicrap) that she may have received by that time). As such, Mr Redburn, not surprisingly, did not make a file note in respect of it.
Ms Morrison on the other hand gave evidence that as soon as she had received the letter from Mr Lillicrap dated 9th of July 2012 (exhibit 20) she specifically made an appointment to see Mr Redburn in order to discuss it. She conceded however that she had made no mention of the earlier alleged agreements which she says were made between herself and the deceased (the subject of her Statement of Claim) to Mr Redburn. Her reason for this ‘oversight’ was that she was very busy at work (T1-82) and that she also had other unrelated litigation on foot at the time. Ms Morrison then gave evidence that it was only in late December 2012 after being advised that the (original) will had been lost that it had then occurred to her that there must’ve been something there that she was missing (T1-88) and that basically she felt she had a further claim and she could do something about it. This is notwithstanding her recurring evidence at trial which was that she had been led to believe and in fact did believe that there was nothing that she could do about the severance of the joint tenancy which had been effected by the deceased prior to his death as early as July 2012 when she first saw Mr Redburn.
Mr Redburn also recalled a further consultation sometime between December 2012 and early January 2013 with Ms Morrison. He said it was only at that time that he first became aware of any alleged representations said to have been made in respect of the subject property by the deceased (now the subject of the statement of claim). His recollection was that during that specific consultation, it was Ms Morrison who had raised the issue again regarding the ability of one party to a joint tenancy being able to sever it with him and that it was her who then stated to him that she considered it to be unfair because statements had been made by the deceased when they had first bought the property, during the relationship and also at the time of separation to the effect that the property would always remain as being held between them as ‘joint tenants’ and that she had always understood that the survivor would take all (of the others’ interest in the property) upon one of them passing.
I have no reason to reject the account given by Mr Redburn where it conflicts with Ms Morrison. Had he been given another solicitor’s letter (exhibit 20) or even had his attention drawn to its’ contents on the first occasion without being shown it, he would had discussed it with Ms Morrison. I find that like any other reasonable solicitor, Mr Redburn would have at least taken a note of it. The evidence available for consideration therefore supports a conclusion that Ms Morrison had not in fact received that letter by the time she first consulted Mr Redburn and had in fact already been advised of the deceased’s intention to sever the joint tenancy at the meeting with Mr Alex Shearer at the bowls club which is consistent with Mr Alex Shearer’s memory of that meeting. As such, I reject Ms Morrison’s evidence to the effect that she only was made aware of the deceased’s intention to sever the joint tenancy upon receiving Mr Lillicrap’s letter.
‘Post Mr Bob Shearer’s Death (20th September 2012) and the Subsequent e-mails between Mr Alex Shearer and Ms Morrison (exhibit 23)’
After Mr Bob Shearer passed away, a series of e-mails tendered into evidence (by the defence) were sent between Mr Alex Shearer and Ms Morrison. The content of those e-mails were the subject of cross examination.
The following adverse findings with respect to the evidence given by Ms Morrison may be made. When questioned about the e-mail dated 20th of September 2012 (T3-29) Ms Morrison stated that where there was a reference to a 60:40 split agreed as stated in the contents of that e-mail, she was of the view it had only meant a 60:40 split was being ‘suggested’. That evidence in my mind was deliberately tailored to be evasive particularly when regard is had to the ensuing e-mails. A consideration of those e-mails in my mind supports the conclusion that Ms Morrison well knew what any reference to the ‘60:40 agreed’ meant by that stage, having regard to the other evidence already referred to.
Ms Morrison also conceded that she had never pointed out to Mr Alex Shearer during the course of those e-mail exchanges that she and the deceased had in fact always had an agreement that the property was to remain being held in joint tenancy and that she was always to get the whole of the interest in the subject property in the event of Bob’s death. Her reason for not doing so was that she had received legal advice (from Mr Redburn) that ‘they (she) didn’t think there was anything I could do’ (T3-30). That explanation in my mind is inexplicable having regard to the alleged agreements which she maintained were made between herself and the deceased to that effect throughout the duration of their relationship and even after they had chosen to separate. Her silence on this issue to Mr Alex Shearer raises a real concern in my mind whether there were in fact any such agreement/s struck at all with the deceased as pleaded. This is especially so when Ms Morrison gave evidence that she had always believed she had such agreements in place and that her whole future was depending on those agreements remaining in place in effect forever.
Indeed, Ms Morrison stated that the only reason why she actually went back to see her solicitor again the second time was because she wasn’t happy and had never been happy. This is notwithstanding saying that she always knew or always thought she had that agreement with the deceased as alleged yet nevertheless continued to remain silent, even with her solicitor, until well after the deceased had passed away. Her explanation regarding her failure to raise it with anyone (including the deceased even when he was alive) was because she had been earlier advised in July 2012 by Mr Redburn ‘that there was nothing I could do about it’ (T3-33). That evidence in my mind is not worthy of belief particularly having regard to the series of e-mails corresponded after the deceased had initially passed away, as well as other pertinent evidence which I shall now refer.
It is significant in my mind, that between the initial consultation with Mr Redburn in July 2012 and Ms Morrison’s subsequent consultation in December 2012/January 2013 with him again, nothing factually had actually changed, other than the deceased had passed away (and his original will may have been ‘misplaced). It is difficult to accept then in those circumstances that Ms Morrison stayed silent about her known entitlement to the said property as pleaded, because she believed’ there was nothing she could do about it’ particularly when she says she had only specifically gone back to Mr Redburn to seek legal advice about a right to ‘claim’ in December 2012/January 2013. The fact remained the same. Nothing had changed even on her own evidence during July 2012, when she first saw Mr Redburn and subsequently when she saw him again.
The e-mails tendered also did little to assist Ms Morrison’s case. In the e-mail dated 9th of October 2012, Ms Morrison has in fact herself offered to sell her 1/2 share to a third party (for $330,000 as it was valued for her ½ share) plus an extra $20,000 to compensate her for the moneys she says she has expended over the years (post separation). Ms Morrison’s evidence was that she had only written that e-mail because she didn’t see that she had any other choice (T3-36) and because curiously, she felt that $660,000 was overvalued. When questioned specifically why she had only asked for $20,000 to compensate her for moneys expended by her over the years in improving and maintaining the property post separation, she stated that it was because she had never gone and sat down and added it all up (T3-37). This is notwithstanding she had apparently paid for all the improvements, repairs etc. herself, the subject of Annexure B, and the deceased had not paid a cent.
Ms Morrison was also referred to an e-mail dated 11th October 2012. In that e-mail Ms Morrison herself has restated Bob’s will in which she says “was based on an arrangement between the two of them when they separated and that was stated in the letter from Lillicrap when you (Alex and the deceased) had the title changed” (T3-42). When put to her in cross examination that this meant exactly how it read, she would not even concede the point and stated that it was only part of it and the other part of it is the part that I was told I couldn’t do anything about (T3-42). This evidence in my mind does little to assist Ms Morrison’s overall credit and was deliberately evasive.
Finally, Ms Morrison said that the first she knew about the concept of the equitable remedy of a constructive trust was in January 2013 when she was first advised by her solicitor. While I accept that this may in fact be true regarding the nature of equitable relief, nevertheless I cannot accept Ms Morrison’s continued assertion that she did not ever seek advice at all in order to pursue her rights and seek legal advice in respect of her ‘entitlement’ to the property as pleaded because she had been told by Mr Redburn in July 2012 that there was nothing she could do about it (regarding the severance of the joint tenancy). Her own evidence on this point was that even Ms Morrison knew at the time of separation that she could approach a solicitor in order to pursue her rights (T1-76). That evidence therefore belies her own assertion on this point.
Further Findings of Credit
My impression of Ms Morrison overall, sadly, was that she was a witness not worthy of belief. She was evasive and vague at times while giving her evidence, particularly when being questioned over the series of e-mails to which I have just referred. Indeed, my impression of her was that she was prepared to say whatever was required in order to support her assertion that she had been led to believe or had in fact been told by the deceased that she was always going to be entitled to receive the whole of the deceased’s share in the property upon his death, regardless of where their respective lives took them. I find her assertion in this regard particularly difficult to accept having regard to the parties’ separation in December 1992 and the course their respective lives led them.
I also find that Ms Morrison’s continued assertions that she did not believe she could do anything about ‘it’ (in respect of the severing of the joint tenancy or at all it seems in relation to the alleged agreements as pleaded) did not sit well with the whole of her evidence which she gave on this issue. A careful examination of the whole of her evidence is that the fact remains the same. She at no stage ever spoke up about the alleged agreements as pleaded at all notwithstanding that she says she well knew she had always had those agreements with the deceased in place and that she was relying upon them being honoured for the sake of her future. Her own evidence was that even she knew she could do something about it legally if those agreements were not honoured (T1-76). I also find that she did in fact discuss buying out Bob’s share as early as 1992. She said as much in her evidence. That evidence alone in my mind supports a conclusion that she was well aware that he held an interest in the property which he could then dispose of if he chose to do so.
That is evident by the discussions the parties regarding a 60:40 split of the property at the time the parties separated in 1992. Ms Morrison’s evidence that this was only ever dependent on a contingency, namely that it would only occur if he went back to England, is rejected. According to Ms Morrison, her whole future was entirely dependent upon the agreements which had been reached even before that time, that each party would always retain their interest in the property for the other in order that they could receive it under the rules of survivorship, regardless of what happened in their respective futures. The weight of the evidence available supports such a conclusion being made that Ms Morrison did not mention the alleged agreements as pleaded which she says were reached with the deceased because they simply were not discussed at all as she suggests. There was also the significant fact of the 60:40 agreement reached in 1992 (not initially pleaded). I find her evidence that this agreement was only subject to him going overseas cannot be reconciled with her continued belief that she was to receive it regardless of the circumstances that arose (including the deceased even going back to England, which I have in any event, rejected).
Conclusion
Accordingly, my orders shall be as follows:
1. The plaintiff’s claim is dismissed.
2. The defendant’s counterclaim is allowed.
3. I order that Morgan Gerard Lane and Christopher Cook, Insolvency Practitioners be appointed Trustees of the land described as Lots 4 and 5 on Registered Plan 12499, County of Stanley, Parish of Bulimba and situated at 71 Brentnall Street, Norman Park in the State of Queensland, pursuant to Section 38 of the Property Law Act 1974 (Qld).
4. I further order that the proceeds of sale, after payment of all selling expenses and conveyancing costs, be divided into two equal shares and dealt with as follows;
(a) As to one share, to be paid to the Defendant to be distributed in accordance with the Testator’s will; and
(b) As to the other such share, to be applied firstly in the payment of the Trustees’ professional costs and outlays and thereafter the balance be distributed to the Plaintiff.
5. I declare that, on the proper construction of the deceased’s will, the defendant should distribute 20% of the estate’s 50% share of the net sale proceeds to the plaintiff, such that the plaintiff’s total share is 60% of the total proceeds of sale of the subject property.
6. The parties are to provide written submissions as to costs but not until after 28 days has expired from the date of publication of this judgment unless the parties otherwise agree.
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