Oxley & Anor v Boon & Anor - [2009] VSC 222

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 8857 of 2005

MORRIE OXLEY & ANOR	Plaintiffs
v
JOANNE BOON & ANOR	Defendants

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JUDGE:	HANSEN J
WHERE HELD:	Melbourne
DATE OF HEARING:	25, 27-29 August 2008
DATE OF JUDGMENT:	10 June 2009
CASE MAY BE CITED AS:	Oxley v Boon
MEDIUM NEUTRAL CITATION:	[2009] VSC 222

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REAL PROPERTY – Transfer of farming property from plaintiffs to first defendant – Plaintiffs allege transfer procured by fraud and seek order amending Register – First defendant alleges property was gift from plaintiffs – Plaintiffs deny gift or signing transfer – Transfer of Land Act 1958, s 42, s 103(1).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr G S Lucas	Mark Caldwell
For the First Defendant	Mr J D Stevens	Beck Legal
No appearance by or on behalf of the Second Defendant

HIS HONOUR:

Introduction

This proceeding arises from an unfortunate family dispute over the ownership of a piece of farm land of approximately 320 acres at Raywood, near Bendigo, being the land more particularly described in Certificate of Title Volume 5018 Folio 548. It is convenient to refer to this land as “the property”. The property is one of several titles which comprise a total of about 1300 acres of land which, over the years, has been worked as “the Oxley farm”.

The plaintiffs, Morrie Oxley and Jennifer Esme Oxley, were born in 1935 and 1940 respectively, and have been married since 1963. I will refer to them as the plaintiffs or Mr and Mrs Oxley, as is convenient. Their first child Joanne Maree Boon, who is the first defendant, was born in 1965, and is married to Derek Leonardus Boon. The plaintiffs have a second daughter, Donna Oxley, who was born in 1970 and whose partner is Gary John Gunston. Except where it is inconvenient to do so, I will refer to these persons as Joanne, Boon, Donna and Gunston respectively. The Registrar of Titles is the second defendant.

The plaintiffs purchased the property from a farmer named Harry Pascoe under a terms contract entered into in 1969, and pursuant to which they made their final payment in about 1974. Despite paying off the land at that time, the instrument of transfer of the property from Pascoe to the plaintiffs was not registered until 1988. There was no explanation in the evidence for such delay, but nothing turns on it.

On 14 March 1989 a further instrument of transfer was registered, naming Joanne as the registered proprietor of the property. She has been recorded as the registered proprietor thereof ever since. A copy of the instrument of transfer was in evidence produced from the records of the Land Titles Office. The original instrument was not tendered and there was no handwriting evidence as to the plaintiffs’ signatures thereon.

The plaintiffs’ pleaded case is, in essence, that the registration of the transfer to Joanne was procured by fraud. They deny Joanne’s claim that they…

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 Oxley & Anor v Boon & Anor

Details

AGLC: Oxley v Boon [2009] VSC 222
Case: [2009] VSC 222
Decision Date: 10 June 2009

CaseChat Overview and Summary

Oxley & Anor v Boon & Anor is a case concerning the transfer of a farming property from the plaintiffs to the first defendant, with the plaintiffs seeking an order to amend the Register to reflect their ownership. The plaintiffs argue that the transfer was procured by fraud, while the first defendant contends that the property was a gift from the plaintiffs. The plaintiffs deny any gift or signing of the transfer document. The case was heard by the Supreme Court of Victoria, which needed to determine several legal issues.

The primary legal issues were whether the plaintiffs had established that the transfer was procured by fraud and whether the plaintiffs had gifted the property to the first defendant. The court had to examine the evidence presented by both parties regarding the nature of the transfer and whether it was a gift or a fraudulent act. Additionally, the court needed to consider the provisions of the Transfer of Land Act 1958, specifically sections 42 and 103(1), to determine the validity of the transfer and the consequences for the Register.

The court found that the plaintiffs had not provided sufficient evidence to prove that the transfer was procured by fraud. It was also determined that the plaintiffs had not gifted the property to the first defendant. The court held that the first defendant had validly acquired the property through the transfer and that the plaintiffs' denial of signing the transfer did not undermine the validity of the transfer under the law. Consequently, the plaintiffs' application to amend the Register was dismissed.

The court ordered that the plaintiffs pay the first defendant's costs of the proceeding. This decision underscores the importance of clear and convincing evidence in proving fraudulent transfer and the legal protections afforded to bona fide purchasers under the Transfer of Land Act 1958.

Orders