Oxley & Anor v Boon & Anor

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 gifted the property to her, and say that neither of the plaintiffs signed the transfer, and that their purported signatures thereon are forgeries. Further or alternatively, if either plaintiff signed the transfer, they did so not knowing the meaning or effect of the instrument, not intending thereby to transfer any estate in the property to Joanne, and as a result of being misled by Joanne as to the meaning and effect of the instrument. As to this, the plaintiffs filed further and better particulars stating that in or about 1989 Mr Oxley was approached by Boon who requested that he sign a document, Boon told him that it was a lease of the property, and Mr Oxley did not read the document but, relying on Boon’s statement, signed it believing it was a lease and not a transfer of the property.

The statement of claim seeks an order pursuant to s 103(1) of the Transfer of Land Act 1958 requiring the second defendant to amend the Register, in effect substituting the plaintiffs for Joanne as registered proprietors of the property. Alternatively the plaintiffs seek a declaration that Joanne holds the legal interest in the property on trust for the plaintiffs and an order that Joanne transfer the property to the plaintiffs. This declaration was based on a plea of resulting trust in the statement of claim, that Joanne did not pay for or purchase the property from Mr and Mrs Oxley and they did not intend her to beneficially own the property, in which circumstances Joanne held the legal interest upon resulting trust for Mr and Mrs Oxley. As to this plea, Joanne’s amended defence admitted that she did not pay for the purchase of the property, noted that she was the plaintiffs’ daughter, and otherwise denied the allegations. As to the alternative claim, in his final address counsel for the plaintiffs said that while he did not abandon it, he did not press it and he presented no argument in support of it. That being counsel’s approach, I do not consider the alternative case.

In an amended defence, Joanne alleged that the plaintiffs transferred the property to her as a gift because she was their daughter and they wanted to recognise the many years of farming work that she had undertaken on the property to the benefit of the plaintiffs. She did not plead the year or any of the terms of the alleged gift or give particulars of the farming work. She denied all of the plaintiffs’ allegations as to their not signing the transfer, or not understanding its meaning and effect or being misled as to that. As mentioned, she expressly pleaded that she did not pay for or purchase the property. In evidence, she maintained that her parents gifted the property to her, however she agreed in cross-examination that her parents did not say that they were giving her the property because of any farm work she had done, and she also agreed that up until 1988 she had not done anything special or unusual in relation to her activities on the farm, and that “she had just done what she thought she should do as a farming daughter”. As to this, I interpolate that although counsel’s question only expressly referred to the period up to 1988, Joanne also gave evidence to the effect that there was no real change in the amount of work she did on the farm over the years. Further, I note that the plaintiffs accepted, as do I, that all members of the family shared in the farm work to the extent that they were able to while on the farm. Nevertheless, Joanne’s pleaded case as to the circumstances of the gift was effectively overtaken by the case which emerged from her evidence at trial, in the sense that while she did work on the farm, that was not the reason she put forward in her evidence as to why her parents gifted her the property. In these circumstances, the question of the extent of the work performed by Joanne on the Oxley farm was background and not the case relied on.

The amended defence concluded with a plea that s 5 of the Limitation of Actions Act 1958 operated to bar the plaintiffs’ claim, as more than six years had passed since the alleged cause of action accrued. The plea was abandoned in final address for the reason that, in order for the plaintiffs to succeed they had to establish fraud by Joanne which, if established, would preclude the limitation defence.

The issues

Notwithstanding the range of matters explored in evidence and cross-examination, there are two central issues in the case. First, whether, and if so on what terms, the plaintiffs agreed to gift the property to Joanne. Secondly, whether the plaintiffs authorised the transaction by which, in 1989, the Bendigo firm of solicitors Beck Sheahan Quinn & Co (“Beck”) lodged for registration the transfer by which Joanne became registered proprietor of the property.

Witnesses

For the plaintiffs, evidence was given by Mr and Mrs Oxley, Donna, Gunston, and the plaintiffs’ solicitor Mark Gerard Caldwell.

For the first defendant, evidence was given by Joanne, Boon, Richard Joseph Dwyer who was a solicitor at the firm Arnold Dallas & McPherson, and Patrick Leo Goggin and Marie Harrison (formerly known as Marie Lacy) who were employees at Beck in 1989 when the firm handled the relevant transaction.

I refer below in detail to the evidence of each witness. As will be seen, matters of the credit and reliability of witnesses loom large in the resolution of the case. In the task of assessing the witnesses, and in particular in resolving the conflicting evidence of the plaintiffs on the one hand and Joanne on the other, it was an advantage of inestimable benefit to have observed the witnesses give their evidence, the manner in which they were cross-examined and their reactions and answers.

Background facts

Mr Oxley’s father originally leased the property from Pascoe in 1946. As mentioned above, in 1969 the plaintiffs purchased the property from Pascoe under a terms contract, and at the same time purchased from Pascoe another parcel of land[1] across the road from the property. That parcel of land, described by Mrs Oxley as about 300 acres, adjoined further land farmed by the Oxley family, of which the registered proprietors were Mr Oxley’s parents. A solicitor, Eric Cohen, of Cohen & Johanson, acted for both Pascoe and the plaintiffs on these transactions. I accept the plaintiffs’ unchallenged evidence that between 1969 and 1974 they attended at Cohen’s office in Bendigo from time to time to make payments under the terms contract, and soon after making their last such payment in about 1974, they attended at Cohen’s office and signed a transfer document provided by Cohen, and thereafter did not take any further steps to ensure that the transfer was registered, as they assumed that Cohen would take care of the matter. There is a lack of evidence as to the circumstances of the transfer from Pascoe to the plaintiffs, as Cohen’s file was lost when his office was destroyed by fire, subsequent to which Cohen died. In addition, the Land Titles Office has advised that the original instrument of transfer of the property from Pascoe to the plaintiffs has been destroyed. Thus it is not possible to say whether Cohen, Beck or somebody else lodged that transfer for registration. What is certain, however, is that the plaintiffs were registered as the proprietors of the property on 27 September 1988.
[1]Certificate of Title Volume 2695 Folio 918. The purchase of this land was funded by bank finance and the land was registered in the plaintiffs’ name shortly after settlement which occurred in 1969. The mortgage over this land was paid off in 1992.

Meanwhile, in 1984 Joanne had married Boon, and their first child was born in 1985. From 1985 to 1987 Joanne and Boon (who I will refer to as “the Boons” where convenient) lived in a caravan on the Oxley farm, near the plaintiffs’ house. At this time, the Boons helped with work on the farm to the extent that they could, however there were parental responsibilities and Boon was often away from the farm with outside employment. In 1987 the Boons purchased a house of their own on seven acres of land a few kilometres up the road from the Oxley farm. The purchase was funded by a mortgage to the ANZ bank. The Boons’ second child was born in 1989, and they had a third child who was born in 2001.

It appears that at some time around 1987 or later the Boons took a more active role in the management of the farm, although there were some differences in the evidence as to the extent of the Boons’ work on, and management of, the farm (indeed Boon said that after 1987 the parties’ respective roles remained the same), and as to the nature of the arrangement between the Boons and the plaintiffs as to the management of the farm, and also as to who paid rates on the land comprising the Oxley farm, including the property, to which I refer below. Also, I note that the word “management” was used in the evidence in a loose sense, and the reality of the arrangement, as I have indicated, was that the plaintiffs and the Boons shared farm work both before and after 1987. Nevertheless, I consider that the Boons did take a more active role in the farm after 1987 and in this regard I accept Mr Oxley’s evidence (disputed by Boon but upon which Mr Oxley was not cross-examined) that the arrangement between he and the Boons included the Boons agreeing to make the last three mortgage repayments owing to the bank on the other land the plaintiffs had bought from Pascoe in 1969.

Returning to the chronology, as mentioned earlier the transfer of the property from the plaintiffs to Joanne was registered on 14 March 1989. Some five months before that occurred, and barely three weeks after the plaintiffs had first become registered proprietors of the property, Joanne received a letter and account from Beck, each dated 19 October 1988. The letter relevantly stated:

“Our ref. PG:ML:KS 19^th October 1988
Dear Mrs. Boon,
Re: Purchase from M. & J. Oxley.
Property: Raywood.

We note that all documents have now been signed and to enable us to complete the stamping and registration of the relevant documents we enclose herewith our bill of costs and fees and would be grateful to receive your cheque for same in due course.
We note that we have charged $625.00 for our legal costs in respect to this matter and we will not be making any charge to Mr. and Mrs. Oxley.
If you have any queries in respect to this matter please do not hesitate to contact our office.
Yours faithfully,
BECK SHEAHAN QUINN & CO.,
per (the signature of Marie Lacy appears)
PAT GOGGIN.

Encl.
[the enclosed account stated the following:]
CLIENT: Joanne Boon.
RE: PURCHASE FROM: M. & J. Oxley.
To your legal costs in connection with;
Acting for you on contract of purchase of freehold land (and conditions contained therein) comprising perusal of Vendors Statement pursuant to Section 32 of the Sale of Land Act, instructions for terms of contract with Vendors, advising you on terms and conditions of contract and its operation. Attending to all necessary telephone conversations with Cohen & Johanson in respect to prior transfer to Mr. & Mrs. Oxley. Attending to the drafting, dictating, typing and proofreading of Transfer of Land document and obtaining proper signing and execution of same by Purchaser and Vendor prior to Settlement. Attending to the preparation of Notices of Acquisition of Interest of Land and forwarding same on your behalf to relevant government and state government authorities advising that you have acquired the property. Ensuring relevant documents are lodged and stamped at the Stamps Office and that the title and Transfer of Land documents are lodged and registered at the Titles Office in your name in accordance with the Contract of Sale. All other necessary attendances, correspondence, care, time, responsibility and attention not hereinbefore detailed.
Our costs:   $625.00
Disbursements
Stamp Duty on Transfer (Estimate)  $1,189.60
Registration Fee on Transfer   $ 179.00       $1,368.60

$1,993.60”

The transfer to Joanne is dated 9 March 1989 and was registered on 14 March 1989. It was lodged by Beck. The transfer states that the transferors are the plaintiffs, and the transferee is Joanne Boon. The consideration is stated to be $57,900.00. The execution and attestation clause states “signed by the said Transferor in the presence of”, whereupon the purported signatures of both plaintiffs appear, next to the signature of Marie Lacy as witness. Immediately below, it states “signed by the said Transferee in the presence of”, whereupon the signature of Joanne appears, next to the signature of Marie Lacy as witness.

The circumstances surrounding the signing of the transfer are central to the resolution of the proceeding, and I refer to the relevant evidence in detail below. In order to place that evidence in its proper context, however, it is first necessary to continue the chronology of the farm and relevant family relationships.

Donna and Gunston commenced a relationship in 1990 and moved to Queensland in late 1990. It appears that the Oxley farm business experienced financial difficulties in the 1980s and 1990s[2] and, at Mrs Oxley’s request, Donna and Gunston returned from Queensland in order to become involved in the management of the farm. There was a lack of precision in the evidence as to when they returned, and nothing turns on the date, however it was probably in early 1997. Much was said in evidence about a conversation around the kitchen table at the Oxley farm, shortly after their return, concerning the management of the farm and a proposal that the farm be run through a company called Elaroo Park Pty Ltd. I refer to this in more detail below, but for present purposes it is sufficient to note that after the conversation, it would appear that Donna and Gary returned to Queensland for about a year and then returned to the farm again in about May 1998. After that, they took over management of the farm, evidently through Elaroo Park Pty Ltd, which has continued to manage the farm up to the time of the trial.
[2]Mr Oxley said, in effect, that the farm went downhill after the Boons took over, however that matter is irrelevant to the issues in the proceeding, and was not the subject of quantitative evidence. Thus I cannot and do not speculate as to the quality of the Boons’ management of the farm.

In about June 1999 the Boons left the farm. This occurred in the context of ongoing disputation between the Boons on the one hand, and Gunston on the other. There were intervention orders taken out on both sides, and while some mention was made of these matters in evidence, they were not fully explained and, in any event, are relevant only by way of background and not to the central issues in the case. It follows that it is neither possible nor necessary to apportion blame to anyone in relation to the disputation.

Another matter to emerge from the evidence was that most of the land comprising the Oxley farm was transferred to Donna in 1996 and 2000. On 9 December 1996 Donna became the registered proprietor of two parcels of land which had previously been owned by Donna’s paternal grandmother. These two parcels comprised about one quarter of the whole Oxley farm. I accept the plaintiffs’ and Donna’s evidence that Donna’s grandmother wanted her to have the land. That is consistent with Mr Oxley’s evidence, which I accept, that when Donna returned to the farm in the 1990s it was mainly to look after her grandmother. I also accept Mr Oxley’s evidence that the land was transferred to Donna on the understanding that it would continue to be worked as part of the family farm.

Further, on 14 March 2000 Donna became the registered proprietor of a further three parcels of land, as to which two had previously been owned by the plaintiffs and one had previously been owned by Donna’s paternal grandmother who had inherited it from her husband who died in 1980. These three parcels comprised about one half of the whole Oxley farm, and included the land on which the plaintiffs’ farmhouse stands. In effect, then, the result of the 1996 and 2000 transfers was that Donna became the registered proprietor of about three quarters of the Oxley farm, while Joanne was the registered proprietor of the remaining quarter.

In August 2000, on instructions from Joanne, Dwyer, a solicitor of the firm Arnold Dallas & McPherson, sent to the plaintiffs a letter (dated 3 August 2000) asserting Joanne’s ownership of the property, referring to the fact that the plaintiffs and other family members had used the property for some time, and informing them that Joanne would like to negotiate an agreement for their continued use of the property if the plaintiffs wished to continue using it.

After he received the letter, Mr Oxley went to speak to Joanne about it. I refer below in detail to the evidence about this conversation. At this point it is sufficient to note that I accept Dwyer’s evidence that, following an email from Joanne dated 31 August 2000 to the effect that she had spoken to her father about the matter and she now needed to draw up documents putting agreements into place, Dwyer advised Joanne that he should prepare a simple licence agreement for her to present to her parents setting out the terms upon which they could use the property. To this end, Dwyer prepared a draft licence which he sent to Joanne on 28 November 2000, followed by a second draft on 4 January 2001. The only change was that the first draft provided for a five year term while the second draft provided for a one year term. Ultimately, however, Joanne did not proceed with the matter of the licence. Neither draft licence was provided to the plaintiffs.

In 2005, Gunston heard a rumour at the local pub that the property might be sold to the Bendigo Gliding Club. He informed the plaintiffs who advised their solicitor, Caldwell, who in mid 2005 duly performed a title search which revealed that Joanne was the registered proprietor of the property. Caldwell lodged a caveat on 20 July 2005 to protect the plaintiffs’ interest and, following correspondence, filed the writ to commence the proceeding on 19 October 2005.

The evidence
Plaintiffs
Mrs Oxley

Mrs Oxley was the first witness to give evidence. As to the two main issues in the case, Mrs Oxley said that she never had any discussion with Joanne about ownership of the property, and never discussed with Mr Oxley or Joanne giving any land to Joanne. The signature on the transfer appeared to be hers, but was not. She did not sign any transfer of land to Joanne. She did not know Marie Lacy and had never attended the Beck office. In cross-examination, the following exchanges took place:

“MR STEVENS: My instructions from Joanne is that when the Pascoe land was transferred into her name it was on the understanding that it would be continued to be worked as part of the overall farm going concern ? — — — M’m.
MR STEVENS: That is a very similar situation to the transfer to Donna? — — — Yes.”

I interpolate that if it were not clear enough on the transcript, it was abundantly clear that Mrs Oxley’s recorded answer to the first question was not an assent to counsel’s suggestion that the plaintiffs had in fact agreed to transfer the property to Joanne. She was merely acknowledging counsel’s statement that he had those instructions from Joanne. Further, her affirmative answer to the second question did no more than recognise that the understanding referred to in Joanne’s instructions was similar to the position which in fact occurred with Donna.

After the luncheon adjournment, the following exchange occurred:

“MR STEVENS:      Because you are aware of my instructions — and I think I have already put them — that Joanne, one of the conditions of her having her parcel of land transferred to her, was that she wouldn’t sell the land, she would hold onto the land and she would allow it to be continued to be run as part of the farm.
HIS HONOUR:      Sorry, what’s this? This is the first time I have heard this. Are you actually asking a question? We haven’t heard that before, I’m sure.
MR STEVENS:       That may well be the case. My instructions are that — — —
HIS HONOUR:      I’m not interested in you saying — I just want you to ask the witness questions, that’s all.
MR STEVENS:       What Joanne instructs me, and I will ask if you are aware of this or not, is that the land which is the Pascoe land, for want of a better word, was transferred to her but there was a verbal agreement that she would still allow the land to be run as part of the overall farm going concern; do you recall that conversation? ——— No.
HIS HONOUR:      Agreement with who? Conversation with who? You have to be precise.
MR STEVENS:       Yes, Your Honour. The precise details are a problem in this matter. The situation was, as I understand it on my instructions — — —
HIS HONOUR:      No, I don’t want you to explain things to me. I just want you to put your instructions to the witness, that’s all, however loose or inexact they may be.
MR STEVENS:       Yes. My instructions are that Joanne told your husband, Mr Oxley, that she wouldn’t use the land for — she would allow the land to continue to be used by you and your husband as part of the farm while you were still running the farm. My instructions are that you were told this at around the time the transfer took place around 1988/1989 and that this conversation took place at the farmhouse. Do you recall that conversation? — — — No, nothing was said in front of me.”

As to the management of the farm, in evidence in chief Mrs Oxley said that the Boons managed the farm from the time they were living in the caravan up until the mid 1990s. Mrs Oxley agreed with her counsel’s suggestion that before the Boons came and lived in the caravan, the plaintiffs had received all the proceeds from the farm, and at some point they “transferred that benefit across to the Boons”. As to why they did that she said, “we wanted a bit of a break, I think, so we asked them would they like to share it, share farm it”, by which she meant “Well, they work it and pay some accounts. We were on a pension then, so …”. At that point, counsel suggested that “that assisted you in terms of your pension”, to which Mrs Oxley replied “yes”. Mrs Oxley also said that in the late 1980s Mr Oxley did unpaid work driving a truck for Boon. As to the return of Donna and Gunston, Mrs Oxley became concerned in the mid-1990s that the farm was not making money and was becoming run down and for that reason she asked them to return from Queensland to manage the farm. In cross-examination, Mrs Oxley said that she continued to pay some of the bills up until just before the Boons ceased to have any active role in the farm, which I interpolate was in 1999. It is to be noted that Mrs Oxley was not cross-examined about transferring assets to the Boons for pension purposes.

As to the transfers of land to Donna, Mrs Oxley never discussed that with Joanne, however she presumed that Joanne knew about it from talking to Mr Oxley or Donna. In cross-examination, Mrs Oxley was asked why the property was not transferred to Donna at the same time that the other parcels of farm land were transferred to Donna in 2000. She said that “we weren’t ready to. We were still willing and able to work it.” The following exchange then occurred:

“MR STEVENS:       The evidence that has been put in the opening submission by your counsel is that all the land was earmarked to go to Donna and the only reason why it didn’t occur was because your solicitor did a search which failed to identify that property. That’s not what you are saying now, is it? — — — Well, it is true.
MR STEVENS:        What is true? — — — What you have just said.
MR STEVENS:        I’m going to have to go back over this because it is an important point. Your evidence has been you didn’t transfer the Pascoe land to Donna or to anyone else for that matter because you were still potentially working that land and you weren’t ready to transfer it to anybody. That’s your evidence isn’t it? — — — Mm,hm.
MR STEVENS:        Is that true? — — — Yes.
MR STEVENS:        Thank you. So it wasn’t because your solicitor did a search and failed to recognise that property, was it?   — — — He did a search, yes.
MR STEVENS:        But that wasn’t the reason the land wasn’t transferred to Donna; isn’t that the case? That’s your evidence now? — — — Yes.”

After the luncheon adjournment, cross-examination continued and Mrs Oxley said that the transfers to Donna in 2000 took place “so we could keep the farm all together.” She was concerned “because there was too much conflict amongst the young ones”. Donna and Gunston “were the ones who were prepared to come back and work it” while Joanne “didn’t want to have anything to do with it”. She added “We thought it would all be transferred together but that one [the property] was left”, whereupon the following exchange occurred:

“MR STEVENS:       No, I believe your evidence was you didn’t determine at that point to transfer that land, you wanted to retain it for yourself? — — — Yes, I did say that.
MR STEVENS:        But that’s not consistent with you saying you wanted all the land transferred to Donna, is it? — — — No, it’s not.
MR STEVENS:        Is it possible that the land wasn’t transferred to Donna because you knew that it belonged to Joanne at that point?— — — No, I didn’t know about it until we got the letter[3].
…
MR STEVENS:        If your evidence was that the transfer to Donna of those blocks of land in 2000 was to stop any fighting amongst the siblings, was to ensure that the land wasn’t divided up? — — — That’s right, worked as one.
MR STEVENS:        Why then did you say by your own evidence you wanted to keep that Pascoe land in your name and not transfer it? — — — I don’t know why.”

Mr Oxley

[3]I infer that this was the letter from Beck to Caldwell dated 12 July 2005 which asserted that the plaintiffs had transferred the property to Joanne.

Mr Oxley said that he did not discuss the property with Joanne and did not sign a transfer of the property to her. As to his purported signature on the transfer document, it looked like his but was not. He did not know Marie Lacy, had never attended at the Beck office, and had never discussed with any Beck representative the terms of any contract for the sale of the property to Joanne. In cross-examination, counsel put to Mr Oxley that he told Joanne in 1988 that he would agree to transfer the property into her name, and asked if he recalled saying that to Joanne, to which he replied “no”. Counsel also put that Joanne would pay for all registration and legal fees including stamp duty on the transaction, as to which Mr Oxley replied “no”. Counsel also asked Mr Oxley if he recalled a conversation with Mrs Oxley and Joanne at the kitchen table where he told Joanne “I’ve done my bit, now it’s time for you to do your bit”, to which he replied “no”.

As to the management of the farm, his evidence, which I accept, is that he asked Boon if he wanted to run the farm and Boon answered that he was willing to do so. The only stipulation by Mr Oxley was that there were three mortgage payments left on the other parcel of land bought from Pascoe, which the Boons had to cover, along with normal rates and expenses which were to come out of farm revenue which Boon would be getting. Mr Oxley said that he was driving a truck for Joanne (who owned the truck) for which he received “two bob here and two bob there”, and he had to get the dole “here and there to survive”. Mr Oxley said that the Boons began to manage the farm after they bought their own house in 1987. They managed the property for 9 or 10 years and it started to go downhill. Donna put some work into the farm in the 1990s. She returned to the farm “mainly to look after my mother”, that is to say Donna’s maternal grandmother. In cross-examination, Mr Oxley said that the Boons had the use of the whole of the 1300 acres comprising the Oxley farm, and that the property was not farmed separately from the farm as a whole. The arrangement was that the Boons were to use the farm revenue to pay the rates, farm expenses and the final three mortgage payments on the other land bought from Pascoe, and any extra money went to the Boons. As to who worked on the farm after the Boons started managing the farm, “we all pitched in” and it was “no different” from before. Counsel asked Mr Oxley whether the Boons were given “a more active role in running the farm” because the plaintiffs wanted to “go on the pension” and did not want to have assets in their name anymore, to which Mr Oxley responded “No, that wasn’t the case”. It is to be noted that despite pursuing this line of questioning in relation to the management of farm, counsel did not put to Mr Oxley that the plaintiffs gifted the property to Joanne in order to divest themselves of assets for pension purposes or otherwise.

Counsel then asked Mr Oxley about the incident referred to in the further and better particulars which alleged that Boon approached him in 1989 and asked him to sign a document. Mr Oxley said that this occurred when he was “working the ground”. He was vague as to the timeframe, saying that it was in “the late 1980s”. Boon said “sign here”. Mr Oxley assumed that it was a lease, “because [Boon] was wanting some ground, had been wanting some ground for a long while … What else could it be? I knew it was in relation to ground. We are not selling ground … Every week, [Boon] would be asking for ground. He wanted some ground to work”.

As to the transfers of land to Donna in 1996, Mr Oxley said that his mother wanted her to have that land. At that time, the Boons were still working on the farm. As to the transfers to Donna in 2000, he said that that occurred in circumstances where the wife of his deceased brother John (John having previously given Mr Oxley “a handout every now and then when things got tough”), was threatening to sue him (Mr Oxley) for the return of those moneys and alleged lost profits on some land which had apparently been sold. I interpolate that this evidence was not fully developed and was somewhat difficult to follow. Nevertheless, the gist of Mr Oxley’s evidence was that, as a result of the perceived threat of litigation, he wanted to “get it [the land] out of my name quick”, and he discussed the matter with Donna. As to why he did not discuss the matter with Joanne also, he said that “she wasn’t speaking to anybody much at that stage because the Gunstons were there”. I interpolate that this was a reference to the disputation which led to the intervention orders, and which I accept was one of the factors making Joanne reluctant to visit the Oxley farm at around that time. It is also consistent with evidence given by Joanne to the effect that she did not want to approach her parents’ house around this time (in 2000) because of her disputation with Gunston. Mr Oxley said that he intended the property to be transferred to Donna at this time, and his explanation as to why it was not so transferred was that his solicitor did not find the property when he did the title search.

Mr Oxley was cross-examined about the reasons for the transfer to Donna in 2000. As to why the land was transferred to Donna rather than to Joanne, he said “she [Joanne] and Adrienne [the sister in law who was threatening to sue] and the Gunstons were all fighting against us”. He added that Joanne had turned down a position with Elaroo Park. Later, he reiterated that the land was transferred “to save getting sued”, and he agreed with counsel’s suggestion that the transfer was not done because there was fighting between Donna and Gunston on the one hand and the Boons on the other.

As to the letter from Arnold Dallas & McPherson in August 2000 which asserted Joanne’s ownership of the property, Mr Oxley gave evidence that he was concerned that she was claiming ownership of the property and took the letter up to her to discuss it. The substance of the conversation was that he told her “This is bulldust. What’s it mean?” and that she told him “that it meant virtually nothing … virtually to disregard it”. After that conversation he was satisfied that he did not need to do anything further. In cross-examination he denied Joanne’s version of events, namely that in their conversation about the letter, he and Joanne reached an agreement that the plaintiffs could continue to use the property.

Mr Oxley was cross-examined as to the circumstances of the transaction handled by Beck. He said that he had no idea why Beck were used, and that the certificate of title “should not even be there”. Counsel put to Mr Oxley Joanne’s instructions (to the effect that she did not know how the certificate of title got to Beck, and that apart from signing the transfer and paying the bill, Joanne had no other involvement with Beck), and then asked Mr Oxley whether he had any involvement with Beck, to which he replied “We had nothing to do with them”. It is to be noted that counsel did not put to Mr Oxley that he (or Mrs Oxley) had instructed Beck (or Cohen) to transfer the property to Joanne, nor that he had asked the Boons to pay the expenses of both transactions.

Caldwell

I accept the plaintiffs’ solicitor’s evidence as to what occurred with the land title searches, that is that in about 2000 he received instructions from the plaintiffs to transfer “the farm property” to Donna, however the instructions were not clear as to precisely which titles had to be transferred. He thus had an employee perform an index title search at the Titles Office by reference to the name of the plaintiffs. The land titles which appeared as a result of that search were the titles thus transferred in 2000. As to the reason for the transfer, Caldwell stated in cross-examination that he recalled a discussion about there being some threat of litigation and that the land might be at some degree of risk in relation to that.

Donna

Donna’s evidence was that she and Gunston returned from Queensland in about 1995, stayed for about a year and then returned to Queensland, where they stayed for about another year before returning in 1997 to manage the farm, at the request of her parents because the farm “was not going too good”. There was a family meeting in the kitchen attended by Donna, Mrs Oxley, Joanne, Boon and Gunston. Gunston proposed using an existing company owned by him, Elaroo Park Pty Ltd, to manage the farm, and invited the Boons to join in, but they refused, Boon saying “This is my farm”. There were heated words between Boon and Gunston, but the Boons did not mention Joanne’s ownership of the property. After this meeting, which she said was in about 1998, Elaroo Park took over management of the Oxley farm, including the property. Donna and Gunston paid the farm bills and Mr Oxley still worked on the farm.

In cross-examination, Donna said that the transfer of land to her in 2000 occurred “because my father was going to get sued by my aunty, and we wanted to protect the farm”. Mrs Oxley did not mention to Donna that she (Mrs Oxley) wanted to retain the property. She (Donna) was not aware that a quarter of the farm was in Joanne’s name. Donna’s role included paying the rates but she did not notice that she was not paying rates on the property, or that a lot less money was being paid in rates.

Gunston

Gunston gave evidence that at the family meeting concerning the management of the farm, he offered to resign as a director of Elaroo Park Pty Ltd and offered that company as a vehicle through which the farm could be managed. The initial idea was that the plaintiffs and their daughters would be involved, and that Boon and Gunston would not be involved. Boon stormed out, saying “This is my farm”. Gunston never had any discussion with the Boons about ownership of the property. The first time he heard that Joanne owned the property was by way of a rumour he heard at the local pub in 2005, the source of which he was not sure.

First defendant
Joanne

Joanne’s evidence about the alleged gift was as follows. The matter was first raised during a conversation at the kitchen table in her parents’ house in 1988. Those present were Joanne, her parents, and Boon. As to what was said, “Mum and dad said they wanted to give me a piece of land”. As to whether she asked them why they wanted to do that, ”I didn’t ask why. They just wanted to go on the pension and needed to get rid of some assets as well and that the farm would be mine one day”. She then clarified in evidence that it was her father who told her that. As to her response, “I can’t recall exactly what I said, but it was sort of a nice thing to do”. As to how the transfer would occur, her father told her “that they would have to change it [the property] into their name first before it could be changed into mine”. As to whether the plaintiffs explained why such a step was necessary, “They said that that land they had paid off and they wanted to give it to me. They hadn’t changed it into their name apparently and they wanted to put it into my name, so it had to go into theirs first and then into mine”.

As to how the transaction was to be arranged, her father said that “they would go and get it sort of organised”. Her father asked the Boons to pay “both lots of transactions”, that is the expenses of transferring the property to the plaintiffs and then to Joanne. The Boons agreed to do this. As to whether there was any discussion about which solicitors would handle the transaction, Joanne did not ask who the plaintiffs would go to see. Rather, she and Boon suggested that “we” could use Beck, and the plaintiffs were happy with that idea. She explained in evidence that she and Boon had used Beck when they purchased their own house in 1987. She said later in evidence that she understood that Beck was acting for her parents, herself and Boon in the transaction. Despite my asking her why she had that understanding, she did not explain the basis of such an understanding.

As to her knowledge of what was to happen next in order to effect the transfer, she said “Mum and dad went and did whatever they had to do, and then dad was in the kitchen one day and he said to me ‘We’ve done our bit. Now you can go and do your bit’”. Only Joanne and her father were present at that conversation, which was also in 1988. Joanne understood that “mum and dad had been in and signed their part and I just had to go in and sign my part”. She had that understanding because “they said they were going to do it”. Subsequently, she went to Beck, by herself, and “signed the paper”. She did so at the front desk, in the presence of a woman whose name she did not know at the time. She could not recall if she had any discussion with that woman. Counsel showed Joanne the transfer and she agreed that her signature was on it. She said that she did not know what “consideration” was, and did not recall seeing the figure $57,900 as consideration on the transfer in 1988. Further, she could not recall if there was a discussion between herself and her parents about an amount of $57,900. There was no agreement that she pay them such a sum, as there was to be no payment of money on the transaction, apart from her and Boon paying the transaction costs, which they subsequently did. As to the bill Joanne received from Beck, she did not question any item in it, “because we knew we had to pay and that’s the amount that it came to” and “it [the transaction] seemed to have gone smoothly”.

As to the terms of the gift, counsel asked Joanne whether there was any discussion between her and her father or mother about how the property would be used following the property being registered in her name, to which she replied “That it wasn’t to be sold and that dad could still use it while he was still farming”. She agreed to her father’s proposal as she “did not have a problem with it”. I note that the form of counsel’s question meant that the answer was not clear as to who was present during the discussion, nor was the time-frame of the discussion defined. In particular, it was not clear whether this discussion was alleged to have occurred during the conversation at which the question of the gift was first raised, or whether it occurred later.

As to the letter sent to the plaintiffs in 2000 by Arnold Dallas & McPherson, Joanne said that she was concerned about adverse possession and thus wanted something in writing regarding her father’s use of the property. Her father came to see her at her house about the letter, and she told him that the letter had been sent so that he could still use the land. He suggested, and agreed, that a lease be drawn up and he pay one dollar per year to use the property. She asked if he could pay the rates, because he was using the property all the time, and he was happy to pay the rates. Joanne paid the rates from 2001 onwards, however, as she had “concerns about adverse possession” and felt better from that point of view if she was paying the rates. A licence was drawn up by the solicitors, but ultimately Joanne “couldn’t go through with it because dad and I, we had like a verbal agreement and we used to get on really well with our verbal agreements”.

In cross-examination Joanne agreed, as I have mentioned above, that at the time her parents offered to gift her the land in 1988, they did not mention her farm work as being a reason for the gift. She also initially said[4] that the conversation about the need for two transfers occurred during a later discussion (at which only her father and herself were present), but later in cross-examination said that there was only one conversation (it was around the kitchen table) at which the gift and the need for two transfers was raised. As to the instructions to Beck, she said that she could not recall whether she had provided any instructions to Beck regarding the transaction with her parents. Nor did she recall whether Boon had instructed Beck in relation to this transaction. Later in cross-examination she said that her parents said they “would fix it [the transaction]”, by which she presumed they would go to see “both solicitors” by which she meant Beck and Cohen. She reiterated that she provided no instructions to either Beck or Cohen as to the transaction. Later, she agreed with counsel’s suggestion that she told Goggin at Beck that she wanted Beck to organise a gift of the land from her parents to her. She immediately sought to qualify that evidence, saying that she remembered “a little bit” that it was Boon who had told Goggin that the land was a gift, and “Pat Goggin said that it was a nice gesture that your parents were giving you”. She agreed with counsel’s suggestion that when he was doing the relevant work, Goggin “understood exactly what was happening”, that was that her parents were giving her the land. The next day in cross-examination, Joanne said that she and Boon had gone to Beck to see Goggin on an earlier occasion in relation to the transaction (that is, a separate occasion before she signed any papers) and Goggin had said on that occasion that it was a nice gesture from her parents to gift the land. She could not recall herself explaining to Goggin the nature of the transaction.
[4]Transcript 210.

She agreed that she went to Beck to sign the transfer on the basis of her father’s statement that “We’ve done our bit. Now you can go and do your bit”, without more. As to that, counsel put to Joanne that her father must have said more than that, as the alleged statement did not necessarily relate to a transfer of land at all (it could just as easily have related to some job on the farm) as to which she replied “No, because dad and I have a good communication relationship and we can sort of – yes”. She said that she remembered it, and knew that it was to do with the transfer of land. After that occurred, she did not call anyone, and could not recall speaking to anyone about the gift, although she probably would have made an appointment to see Beck. After the property was transferred to her, she did not recall thanking her parents for the gift. It is convenient to interpolate that Boon said in evidence that once the property was transferred into her name, she showed him the title “and was pretty proud of it”.

Further, she said that she did not recall seeing the consideration figure on the transfer, but then speculated that she “just would have thought that’s what the land is worth”. She could not recall being concerned about the figure at the time “because I knew they were giving it [the land] to me”.

As to the bill from Beck, she agreed that the bill referred to stamp duty and registration fees on only one transfer (rather than the two transfers she said were involved). Nevertheless, at the time she received the bill, everything seemed okay, in the sense that nothing in the bill struck her as incorrect or surprised her. She said that she and Boon paid “another lot of money”, being the stamp duty and transfer, and that payment “would have been” to the other solicitors, by which she meant Cohen & Johanson, as “we must have received an account to pay it”. She agreed that she did not engage Cohen & Johanson to act, and further that she could not find the relevant paperwork.

As to the family meeting at which the management of the farm by Elaroo Park was discussed, Joanne said that she, both her parents, Gunston and Donna were present, but that Boon was not present. There was an earlier meeting at which Gunston and Boon had a physical altercation but that was in the context of an argument about crop rotation rather than a meeting about farm management. She did not recall being told that she and Boon would be excluded from management of the farm. She agreed that she did not raise at that time her ownership of the property. She said in evidence, however, that she had told Gunston about that earlier, in the sense that she had said something to him about “down in my paddock”, which prompted him to react by saying “what paddock, your paddock?” Her evidence was that “there was a slight reaction” [from Gunston] following her reference to the property as her paddock.

As to the management of the farm, Joanne said that both before and after 1989 she had no role in the finances of the farm, and before 1989 her mother was responsible for cheques and bills being paid. After 1989, Boon was away a lot with work and lent a hand on the farm when he could.

Finally in cross-examination, Joanne said that when she received the letter from her parents’ solicitors in 2005, in effect stating that there had been no gift of the land, she went to her father with the letter when he was filling up his gas bottle at the garage (which I understand to mean the service station) and said “can’t we sort this out?” to which he repeatedly responded “It’s not good” and “You’ll have to see Gary on that one”. She said that they then “had a normal conversation about the gas bottle, how we run out when we have visitors on the barbie and stuff like that, and sort of general conversation and said goodbye”. It is to be noted that this evidence was not put to Mr Oxley in cross-examination.

Boon

In evidence in chief he said he recalled that in 1989 Joanne mentioned to him that her parents wanted to put the property into her name, “give her that block, but we had to pay … both stamp duties or transfer costs”. She also told him that her dad was still allowed to use the property and she was not allowed to sell it. He denied having any conversation in 1988 or 1989 with either Mr or Mrs Oxley about wanting any land put into his or Joanne’s name. He denied Mr Oxley’s evidence that he approached him in the paddock in early 1989 and asked him to sign a document relating to land.

As to his role on the farm, Boon said that he helped out with “anything that was going” when he was there. He did not take over the running of the farm, but he signed blank cheques on an account in his name which was used as the farm account. He denied that there was any agreement with Mr Oxley for the Boons to make the last three mortgage payments to the bank on the other parcel of land purchased from Pascoe. In re-examination Boon said that he asked the Oxleys why they put the farm account in his name and they responded that “they wanted to go on the pension and that’s one of the reasons they put it in my name”. It is to be noted that this evidence was not given in chief and was not put to either Mr or Mrs Oxley.

As to his role in the transaction with Beck, Boon said that he “didn’t do much at all, actually”, as the plaintiffs “said they were going to do it all”. Initially, his evidence was that the plaintiffs told him that, then he said that the plaintiffs had said it “to me or Joanne, I can’t remember”, then finally he said that that was what Joanne had told him. Further, he said in evidence that he mentioned that “they [the plaintiffs] can go to them [Beck] if they want to” but then said that he could not remember whether he mentioned this to Mr Oxley or to Joanne. He recalled going with Joanne to Beck “when we had to sign or when Joanne signed”. That was the first and only time he went to Beck in relation to this matter. In short, his evidence was that he could not recall any details of the visit[5]. He said that he was aware that the plaintiffs had legal representation, namely the solicitors they had used when they had bought the property (Cohen), as that came up “in conversations”, however he could not remember if the plaintiffs told him this or whether Joanne told him. As to the transfer document, he said that he thought he saw it at Beck. He “vaguely” remembered asking about the money sum on the document, as to which “they”[6] said that they were going to “keep it free” but “you had to put it in as a sort of consideration, I think he said, to find out the figure of the stamp duty”. As to the legal costs and stamp duty, he paid those costs with a cheque, stating that “One cheque I must have given to Jennifer [Mrs Oxley] and they got the bill for theirs and then we got the other bill and I must have wrote another one. It’s that long ago I can’t really tell you what’s happened”.
[5]See transcript 241.
[6]He could not recall whether it was Marie Lacy or Pat Goggin.

In cross-examination, Boon said that he had a “faint” memory of the plaintiffs telling him that their solicitor would contact Beck to arrange the transfer. He also agreed with counsel’s suggestion that he had previously dealt with Beck (the firm being Boon’s brother’s solicitors[7]) and that normally he dealt with Goggin, although he did not recall contacting Goggin in relation to this transaction. The only thing he could remember was that “their solicitor [Cohen] was going to contact our solicitor and that’s how it was going to go. I don’t know what happened there.” He agreed that in such circumstances there would be no need for him to contact Beck. He did not talk to Goggin about a contract of sale, could not recall talking about a s 32 statement, and did not discuss with Goggin how the transaction should be done.
[7]Boon said that he and his brother, who was a property developer, had bought and sold three or four properties previously; transcript 257.

As to the management of the farm, Boon said that throughout the 1990s Mr Oxley continued to run the farm - the Boons were just helping him – and the respective roles never really changed. He denied that the Boons received any excess profits from the farm, denied ever approaching Mr Oxley in the paddock to ask him to sign any document, and could not recall any meeting at which management of the farm by Elaroo Park Pty Ltd was discussed. He would never have said “This is my farm”.

Dwyer

His evidence mainly concerned the 2000 letter referred to above, and was otherwise of limited relevance to the central issues. I consider that he sought to give accurate evidence from his best recollection, refreshing his memory as appropriate from his file. I accept his evidence as to his role in the sending of the letter in 2000 and Joanne’s instructions to him in that regard. I note that in cross-examination he stated that on the face of the transfer in the present case, he could not say one way or the other whether the property was gifted. That was because, despite the reference to monetary consideration, there may have been an “underlying gift back”. As to a transfer by way of gift, he said that in his own experience he would use the words “the desire of the transferor is to transfer the land to the transferee” rather than the traditional form of words “for natural love and affection”, as the latter would be treated as a gift for social security law purposes, whereas the former may overcome gifting laws for age pensions. In either case, however, the parties would have to submit documents to the stamps office, namely a statutory declaration detailing opinion of value, such as a council rate notice.

Goggin

Goggin was manager of the conveyancing department at Beck at the relevant time. The department, which comprised Goggin, another manager and six female staff, did a minimum of one thousand conveyancing files per year. He said that the reference to PG on the letter to Joanne dated 19 October 1988 meant that he personally conducted the file. However, he did not recall acting for either Joanne or the plaintiffs in 1988, and he did not recall having seen the letter, the bill of costs or the transfer. As to the items in the bill of costs, he said that most of those items, except the attendance to telephone conversations with Cohen regarding the prior transfer, were contained in the pro-forma bill used by Beck at that time. Nevertheless, he did not suggest that a bill would contain items not reflecting the work actually done. Further, he agreed that the practice at the firm was that the person who prepared the bill would look at the file and ensure that the bill reflected the transaction. As to a situation where somebody wanted to divest themself of assets for the purposes of receiving an old-age pension, “If that happened, and that did happen from time to time, we would do a contract of sale with an amount in the contract”. As to the witnessing of signatures, Goggin said that “We would always see people, if it was possible. Sometimes through illness or something like that people might not be able to do that. But in particular with cases like a family transfer we had strict instructions about that, that they were signed in front of us.”

In cross-examination, Goggin said that from looking at the letter, he was acting for both parties. He agreed that what was recorded in the bill accorded with what was done. He agreed that if there was a transfer by way of gift, with no consideration payable, “you may not do a contract in that instance”, but the consideration could be put in the transfer.

Harrison

Marie Harrison (who was known as Marie Lacy in 1988) was employed by Beck as a legal executive which role involved conveyancing. As at 1988 she had worked at Beck on and off for 15 years. She did not recall acting for either Joanne or the plaintiffs in 1988, and did not recall having seen the letter, the bill of costs or the transfer. She had no recollection of signing those documents. As to the firm’s policy on the witnessing of signatures, she said “You would witness the signatures. Sometimes we would post them out with clear instructions on how they were to get them signed and who they were to be witnessed by. In family matters we would make sure that we got them in.” As to why that was the case with family matters “It was just felt that it was better to make sure that everything was fine with family matters”. As to whether she had ever purported to witness a signature when she had not in fact witnessed the signature, she said “On a rare occasion, maybe a developer or somebody that we did an extreme amount of work for, they could sometimes say, ‘I’m going to drop it in, I’ve signed it’ and you knew them, you knew their signature”. In cross-examination, she agreed that there was nothing on the face of the letter, the bill, or the transfer that would indicate that those documents related to a family matter.

Submissions
Plaintiffs

Counsel submitted that the plaintiffs had established that no gift or transfer of the property was made or intended to be made to Joanne, and the transfer of the property to her was procured by the fraud of Joanne[8]. In developing his submission, counsel emphasised the very different versions of events given by Mr and Mrs Oxley on the one hand and Joanne on the other, as to how the transfer of the property came to be registered in Joanne’s name. On the plaintiffs’ version, simply stated, Mr and Mrs Oxley did not gift the property nor enter into a contract to sell the property to Joanne for $57,900, they did not engage Beck to prepare a transfer, contract of sale or any other document, they never attended at Beck to sign any document or for any other purpose, and did not know the person who purported to witness their signatures on the transfer. If the plaintiffs’ version of events was accepted, the registration of Joanne must have been procured by fraud, because the plaintiffs’ evidence left no room for any alternative explanation, Joanne’s evidence as to the transaction being inconsistent with the plaintiffs’ evidence. It was not necessary that the plaintiffs establish each and every component step of the fraud, only that the registration of the transfer must have been procured by fraud.
[8]Counsel’s written submission stated that Joanne probably acted in concert with Boon and his brother, however there was no evidence as to the involvement of Boon’s brother, little evidence as to the involvement of Boon, and in his oral address counsel seemed to confine himself to fraud committed by Joanne.

Counsel advanced numerous arguments as to why the plaintiffs’ case was the only plausible version of events, why Joanne’s version of events was implausible, and why the Court should prefer the evidence of the plaintiffs’ witnesses to that of Joanne and her witnesses. I do not set those matters out here, but refer to them below in the course of expressing my conclusions.

First defendant

Counsel for Joanne submitted that the evidence given by Joanne and the witnesses called in her case was credible and should be accepted, notwithstanding his concession as to the limits of Boon’s recollection of relevant events. In short, but without overlooking the detail of his submissions as to why certain witnesses were to be believed, counsel submitted that I should accept that the plaintiffs transferred the property to Joanne as a gift on the basis she described in her evidence, namely for pension purposes. Alternatively, even if Joanne’s evidence were not accepted, the plaintiffs had nevertheless failed to establish on the balance of probabilities, considered on the approach stated by Dixon J in Briginshaw v Briginshaw[9], that the registration of the property into Joanne’s name in 1989 was procured by the fraud of Joanne or anybody else acting at her behest. In this regard, counsel emphasised that the plaintiffs had not demonstrated how it was that Joanne had procured a fraudulent registration of the property. Further, he submitted that in the context of the particular facts and circumstances of the family relationship - as to which he emphasised the land transfers to Donna and the plaintiffs’ “history of removing significant assets” from their names – the gift to Joanne was perfectly reasonable. The gift could have been made for any number of reasons (as to which he ventured several possible scenarios but ultimately submitted that he could not speculate) and when viewed in this context, fraud was the least likely explanation for the transaction.
[9](1938) 60 CLR 336.

Decision

It is convenient to commence by referring to what Dixon J said in Briginshaw. He observed that:

The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. (at 361)

And he added that:

… it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences. (at 362)

Next, it is convenient to make some observations about the credibility and evidence of each witness. I approach that task, and the ultimate determination of the case, bearing in mind Dixon J’s observations in Briginshaw. In relation to the witnesses generally, I note that with the passage of time and the relative lack of contemporaneous documents, some imprecision in the evidence, and differences in recollections of particular matters were to be expected. I bear that in mind in assessing the evidence. I deal with each witness in turn.

It is convenient to deal with Mr and Mrs Oxley together, as their evidence overlaps in many areas. I note from the outset that Mrs Oxley had difficulty recalling dates, which she (and her counsel) frankly acknowledged. One example of this was that she initially stated in cross-examination that the plaintiffs signed the transfer of the property from Pascoe at Cohen’s office in 1988, but after the luncheon break stated that this had in fact occurred in 1974. Nevertheless, for reasons developed below, I consider that nothing turns on her difficulty in remembering dates, and I accept the substance of her evidence, and that of Mr Oxley, as to the central issues in dispute. In so concluding, I do not overlook any of the matters raised by Joanne’s counsel as going to the credibility of, and alleged inconsistency between the evidence of each plaintiff. I now deal with these matters in turn.

Mrs Oxley’s evidence differed from that of Mr Oxley as to the circumstances surrounding the transfers of land to Donna in 2000. Whereas Mr Oxley said that the transfer was done so as to divest themselves of assets which might be at risk if they were sued by Mr Oxley’s sister in law, Mrs Oxley did not mention the concern about being sued. Rather, Mrs Oxley’s evidence on this matter (set out at [29]-[30] above) was initially that they did not transfer the property to Donna because they “weren’t ready to” and were “still willing and able to work it”, but ultimately that the transfer was done to keep the family farm together. Counsel for Joanne submitted that Mrs Oxley’s credibility was affected by her contradictory evidence. In my view, there is no substance in this submission. While it is true that Mrs Oxley did change her evidence midstream as to the reason why the property was not transferred to Donna in 2000, I consider that she was confused about the issue, and much of the confusion arose from the way counsel questioned her. Ultimately, she said that they thought that all the land would be transferred together. I accept that evidence. It is consistent with Mr Oxley’s evidence, which I also accept, to the effect that the plaintiffs intended to transfer all the land to Donna in 2000, and the only reason why the property was not transferred at the same time was because it did not show up on the title search performed by Caldwell. In accepting the plaintiffs’ evidence on this matter, it is to be noted that although counsel asked Mrs Oxley whether it was possible that the property was not transferred to Donna in 2000 because she knew that it belonged to Joanne (to which she replied “no”), it was never put directly to either plaintiff that they did not transfer the property to Donna because they knew Joanne owned it.

As to the fact that Mrs Oxley did not mention the issue of removing assets from their names to avoid being sued, I consider that this matter is entirely equivocal. Having seen Mr and Mrs Oxley give evidence, and bearing in mind that the person apparently threatening to sue was Mr Oxley’s sister in law, it is well within the bounds of credibility that Mrs Oxley may not have been fully aware of the reasons for the transfer to Donna. In any event, the transfer may have been done for a combination of reasons, including the reasons put forward by both Mr and Mrs Oxley respectively. I could not, and do not, draw any adverse inference as to the credit of either plaintiff on the basis of the differences in their evidence on this point.

I now turn to what counsel for Joanne described as “contradictory evidence” from the plaintiffs in relation to their alleged lack of knowledge of Joanne’s ownership of the property. That is, the contradiction between the plaintiffs’ assertions in evidence that they did not know that Joanne owned the property, as against objective matters which, counsel submitted, demonstrated that the plaintiffs must have known that Joanne owned the property.

The first matter counsel referred to was Mrs Oxley’s evidence that she knew that rate notices are addressed to the owner of a property. He submitted that it should be inferred that Mrs Oxley had seen rate notices addressed to Joanne and knew from having seen such notices that Joanne owned the property. The evidence on this matter was as follows. Mrs Oxley said in cross-examination that the rate notices “used to come in a whole bundle and we used to just pay them”. She did not always read them, “we just looked at the amounts”. She denied having seen any of the rate notices addressed to Joanne, and also denied having any discussions with Joanne about rate notices. In my view, the ultimate inference contended for by counsel is not open on the evidence. It is inherently plausible, and I accept, that in the context of receiving many different rate notices over the years for the different parcels of land making up the Oxley farm, Mrs Oxley did not pay specific attention to the identity of the addressee on each rate notice. This is consistent with the fact, as I find it to be, that the plaintiffs were not aware of the precise details of the titles comprising the land making up the Oxley farm, and in this context it is inherently plausible that the plaintiffs would have paid little attention to the identity of the addressee on the rate notices. Rather, Mrs Oxley’s concern was simply to make sure that the overall amounts of rates were paid. And even assuming that the plaintiffs saw a rate notice addressed to Joanne, and assuming that the plaintiffs knew as a general proposition that rate notices are addressed to the owner of land, it does not follow that the plaintiffs had actual knowledge that Joanne owned the property. They may simply not have directed their minds to the issue, and thus not analysed the situation in the way that a lawyer might with the benefit of hindsight. Further, it was never directly put to the plaintiffs that they knew Joanne owned the property because they had seen her name on the rate notices.

The second matter raised by Joanne’s counsel in regard to the rates was an alleged inconsistency between an assertion appearing in a statement made by Mrs Oxley to the police in 2005 and her evidence. In the police statement, she said that “we” (which I understood to mean the plaintiffs) had paid rates on the property up until 1999 when the Boons said they would pay the rates on the property thereafter, and she did not query this as she thought it was part of running the farm. Then, Mrs Oxley gave evidence to the effect that once the Boons stopped managing the farm, in about 1999, Donna and Gunston took over paying the rates, and further that she (Mrs Oxley) had never discussed rates with Joanne. On one view, there might be an inconsistency between the police statement and the evidence, in the sense that the former suggests that Mrs Oxley did discuss rates with Joanne whereas in her evidence she said that she did not discuss rates. Nevertheless, the reference in the police statement says no more than that the Boons mentioned rates and Mrs Oxley did not query it. It does not follow that there was a discussion as to rates. Thus, I do not accept the factual premise underlying counsel’s submission. But even assuming the premise were correct, the matter would go only to credit, and would be of minimal weight, having regard to the likelihood that Mrs Oxley was merely confused about the issue rather than seeking to mislead. And of course, the police statement is not evidence that Mrs Oxley knew that at a time after the Boons had stopped managing the farm they were still paying rates on the property. As to that, I reiterate my finding that I am not satisfied that either plaintiff was aware, on the basis of the Boons’ payment of rates and receipt of rate notices, that Joanne was the registered proprietor of the property.

The third matter, and upon which counsel placed greater reliance, was the plaintiffs’ reaction to receiving Dwyer’s letter in 2000 which asserted Joanne’s ownership of the property. As to that I note that Mrs Oxley said in evidence that the letter did concern her a little, she read it and did not understand it, because she had not signed anything over to Joanne. She discussed the letter with Mr Oxley and they thought, “Well, we haven’t signed anything over to [Joanne]” so Mr Oxley decided to go and see Joanne about it. Mrs Oxley did not go with him. Mr Oxley returned and said “everything’s okay”, which she accepted. As to Mr Oxley’s reaction, I have set out his evidence at [36] above, which in substance was that Joanne told him virtually to disregard the letter, and on that basis he was satisfied that he did not need to do anything further. Unlike the rate notices, which were equivocal, the letter in 2000 squarely raised the issue of Joanne’s ownership of the land, and the plaintiffs were clearly concerned about it to the point that Mr Oxley went to speak to Joanne about it. And, as counsel pointed out, the plaintiffs did not raise the matter with a solicitor until 2005, nor did they raise the matter with Donna and Gunston who, at the relevant times, were the directors and shareholders of Elaroo Park Pty Ltd which managed the farm and who might have been expected to have an interest in the matter. Nevertheless, I do not accept counsel’s submission that the plaintiffs effectively did nothing in the face of Joanne’s claim of ownership. Rather, I accept Mr Oxley’s evidence that Joanne told him to ignore the letter and that he acted on that basis. The fact that Joanne continued to consider the issue of the licence with Dwyer does not support her evidence that her father agreed to take a licence to use the property. On the contrary, the communications between her and Dwyer were not something known to Mr Oxley, Joanne did not go through with preparing the licence agreement anyway, and the plaintiffs continued to use the property as part of the Oxley farm, all of which is consistent with Mr Oxley’s evidence that Joanne had told him to disregard the letter. At most, and with the benefit of hindsight, it might be said that the plaintiffs could have done more to clarify the situation following the letter, for example by seeking written confirmation from Joanne that she did not make any claim of ownership, or by asking their solicitor to do a title search and resolve the situation. Nevertheless, in the context of a family relationship where there had already been court appearances over intervention orders and much fighting, it is perhaps understandable that Mr Oxley wished to resolve the situation in the gentlest way possible and without resort to lawyers. Indeed, that he so approached the matter would accord with my impression of him. In my opinion, having regard to all the circumstances, the plaintiffs’ reaction to the 2000 letter does not justify an inference that they knew that the property was owned by Joanne.

A further point raised by counsel was that the alleged gift to Joanne in 1989 was consistent with what he referred to as a “pattern and history of the plaintiffs’ dealing with land and management”. That history included farm accounts being placed in Boon’s name, thus removing significant assets from the plaintiffs’ name (which occurred at the same time as the alleged gift to Joanne), and the later gifts of land to Donna. In short, the submission was that the gift to Joanne was more likely to have been made, given the plaintiffs’ tendency to give away assets when it suited them to do so. In this context, it is necessary to say something more about the evidence as to the plaintiffs’ alleged history of divesting themselves of assets.

The relevant evidence began with Mrs Oxley’s statement in evidence in chief to the effect that the transfer of some of the benefits of the farm to the Boons assisted for pension purposes. Her evidence was, however, non-specific and was in large part shaped by the form of the questioning by her counsel. Counsel for Joanne did not cross-examine Mrs Oxley on this matter, so as to establish exactly what benefit and/or assets were transferred over to the Boons and how that helped in terms of the pension. Indeed, it was not even clear what pension was being referred to, as the plaintiffs were evidently too young to receive the aged pension at the relevant time and, as Mr Oxley said in evidence, he had to get “the dole” from time to time to survive. In re-examination Boon said that he asked the Oxleys why they put the farm account in his name and they responded that “they wanted to go on the pension and that’s one of the reasons they put it in my name”. This evidence was not given in chief and was not put to Mr or Mrs Oxley. In these circumstances, it is not clear what the benefit to the plaintiffs would have been from giving assets to the Boons and how it would have affected their social security benefits. Further, I accept Mr Oxley’s evidence that a condition of Boon running the farm was that he was to make the final three payments on the other piece of land purchased from Pascoe, thus it cannot be said that the plaintiffs gave away assets without more. On the contrary, consideration moved from Boon in the sense that he took on a financial obligation to the bank which he otherwise would not have had, to the benefit of the Oxleys. I also note that Mr Oxley denied in cross-examination that the plaintiffs divested themselves of assets in 1989 for pension purposes, whilst he frankly acknowledged that the plaintiffs transferred lands to Donna in 2000 in order to divest themselves of assets he thought might be at risk from a potential legal action. In short, I accept that the plaintiffs gifted land to Donna in 2000 in order to divest themselves of assets that Mr Oxley considered may be at risk, and I accept Mr Oxley’s evidence that the plaintiffs did not divest themselves of assets in 1989 for “pension purchases”. I take the matter of the transfer to Donna in 2000 into account in assessing the relative probabilities of the competing versions of events, however, as a matter of logic, it does not follow from the fact of the gift to Donna in 2000 that the plaintiffs were more likely to have gifted the property to Joanne in 1989. The circumstances of the two transfers were quite different, the latter one having occurred in a situation of family conflict whereas the former one occurred, on Joanne’s case, simply because her parents wanted her to have the property and also wanted to get rid of assets for pension purposes.

Finally, as to the central issues in the case, both plaintiffs gave unequivocal evidence to the effect that they did not agree to give or sell the property to Joanne, and that they had no involvement in the transaction with Beck. And although counsel for Joanne put to both plaintiffs that they had in fact gifted the property to Joanne, counsel never put to them directly Joanne’s case as to the details of and reasons for the alleged gift, nor her evidence that they had instructed Beck and Cohen to prepare the necessary documents. I refer to this matter of non-puttage in detail below, but for present purposes it is sufficient to note that in relation to the critical issue of the plaintiffs’ instructions to the solicitors, counsel merely put (and then only to Mr Oxley) Joanne’s instructions to the effect that apart from signing the transfer and paying the bill, Joanne had no other involvement with Beck, and then asked Mr Oxley whether he had any involvement with Beck, to which he replied “We had nothing to do with them”. In effect, the plaintiffs’ evidence - to the effect that they had never had anything to do with Beck – went unchallenged. And, as I discuss below, the relevant Beck employees had no recollection of dealing with the plaintiffs, and on the evidence of Joanne and Boon, they (the Boons) did not attend at Beck with the plaintiffs. In short, there was no positive evidence that the plaintiffs attended at Beck. On the contrary, for reasons developed below, the plaintiffs’ evidence that they did not attend at Beck was inherently credible and I accept it.

Turning now to Donna and Gunston, I consider that both were truthful witnesses, however they were not present at the alleged discussion where the gift of the property was made and they played no role in the transaction with Beck, hence their evidence and the cross-examination thereon was largely irrelevant to the central issues in the case, and really only provided background to the various family relationships. I merely note the following. I accept Donna’s unchallenged evidence to the effect that at no stage did Joanne and Boon raise with her Joanne’s ownership of the property. I also accept Gunston’s evidence in cross-examination that Joanne never discussed he ownership of the property with him. In so concluding, I reject Joanne’s evidence to the contrary, which was non-specific and was not put to Gunston in cross-examination. I also accept Donna’s and Gunston’s evidence to the effect that Boon was present at the family meeting concerning management of the farm by Elaroo Park and at that meeting he said words to the effect that “this is my farm”, however I consider that that was a reference to his overall role on the Oxley farm, rather than a statement that Joanne owned the property. As to Gunston, I consider that nothing flows from the fact that he could not name the person who told him of the rumour that the property was going to be sold. The fact that Gunston heard such a rumour, as I accept that he did, merely goes to explaining how the issue came to a head. His evidence does not establish that Joanne was in fact intending to sell the property. As to that, it is unnecessary and impossible to express any finding as to what Joanne intended to do with the property, however I would be prepared to assume in her favour that she did not intend, and never attempted, to sell the property. But the point is irrelevant because it goes only to whether Joanne complied with the terms she said were attached to the gift, and cannot affect the antecedent question of whether the gift was made in the first place.

Next, I accept the plaintiffs’ solicitor’s unchallenged evidence about the various title searches he performed at the time various parcels of land were transferred to Donna, and also as to the later title searches he performed which revealed that Joanne was the registered proprietor of the property.

Turning now to the witnesses called by Joanne, it is convenient to first make some observations about Joanne’s evidence. I do not overlook the fact that the breakdown in family relations has obviously affected her profoundly (as it had evidently affected all members of the family), and she was plainly stressed when she gave evidence, nor do I overlook the lapse of time between the events in question and her giving evidence about them. It is to be noted, of course, that the plaintiffs also gave evidence in the same difficult and stressful circumstances. Making due allowance for these matters, I consider that Joanne’s recall of certain important matters fell well short of what might be expected. This was particularly so in terms of the vagueness of her evidence as to the detail of the discussion in which she alleged her parents gifted her the property. As to this, I note that Joanne said that Boon was present at the discussion, whereas he said that he was not present. To put the matter gently, that is a significant inconsistency on such an important and significant matter in her life, and one which cannot be explained by the mere lapse of time. Also, she conceded in cross-examination that the conversation in 1988 was the first time that her parents had raised with her the transfer of land. Given her situation at the time - she was in her early twenties, had recently married, had her first child, and purchased a house up the road – her parents’ sudden decision to gift her a significant part of the Oxley farm (even if it was on the understanding that it would continue to be farmed as part of the Oxley farm) would have struck her as a singularly generous act and the circumstances of the occasion not easily forgotten. Then, there is her evidence that she did not even contact her parents after signing the documents to thank them for the gift. I consider that that reaction was inconsistent with having received such a gift, and also inconsistent with Boon’s evidence, which I accept on this point, to the effect that Joanne was proud of the certificate of title and showed it to him once she became registered on title.

As to Boon’s evidence, I note the following. As to the conversation at which the plaintiffs allegedly agreed to gift the property, I accept Boon’s evidence that he was not present. That was consistent with the impression I had that much of his evidence was based on what Joanne had told him, and it was often unclear whether he was giving evidence from his own recollection or from events related to him by Joanne. As to this, Boon initially said that the plaintiffs told him that they were going to do everything in relation to the transactions, but he ultimately conceded that he had that understanding from what Joanne told him. Boon later asserted in cross-examination that he had a “vague memory” of the plaintiffs telling him that their solicitor would contact Beck to arrange the transfer. I reject that assertion. I find that any understanding Boon had as to the plaintiffs’ role in the transaction, including as to their instructing both Cohen and Beck in relation thereto, was derived from what Joanne told him. His evidence on this matter was not put to the plaintiffs and is in any event inconsistent with the general tenor of his evidence to the effect that he remembered very little of the transaction and his understanding thereof was derived from what Joanne told him.

I note also Boon’s evidence that he only went to Beck on one occasion in relation to the transaction, and that he was accompanied by Joanne who signed documents on that occasion, and further that he asked Goggin about the consideration amount in the transfer. This is to be contrasted with Joanne’s evidence that she went to Beck alone when she signed the documents, but that Boon had accompanied her on an earlier occasion. It is not necessary to make a finding as to whose evidence is to be preferred on this point, although I note that it reveals an inconsistency as between Joanne and Boon on an important detail which they might be expected to remember.

As to the former employees of Beck, it is to be noted that neither had any actual recollection of the relevant transaction, which is not surprising given that it occurred almost 20 years earlier. It follows that Goggin’s evidence, to the effect that the consideration stated in the transfer and the reference to a contract of sale in the bill was not inconsistent with a gift, was no more than speculation as to what might have happened, based on his assertion of office practice at the time.

Notwithstanding the speculation inherent in Goggin’s evidence, the following important matters did emerge from the evidence of Goggin and Harrison as to the practice at Beck at the relevant time in relation to the witnessing of signatures. Goggin, who was the manager of the conveyancing department, gave evidence to the effect that there may have been cases where a signature might have been witnessed without the witness actually seeing the person sign, however with a family transfer they had strict instructions that they were to be signed in their presence. And Harrison, the very person who purported to witness the signatures on the present transfer, conceded that there were occasions where she had purported to witness signatures which she had not in fact witnessed. To put the matter neutrally, it is sufficient to observe that presenting for registration a document executed in such a way would constitute fraud within the meaning of s 42 of the Transfer of Land Act 1958[10] which is sufficient to constitute a serious reflection on the standards in the conveyancing department at Beck at the time. In this regard, both Goggin and Harrison sought to draw a distinction between family transfers (where they were strict in terms of ensuring that signatures were actually witnessed) and other matters, where I would infer that the firm’s practice was looser. Nevertheless, as Harrison was bound to concede, there is nothing on the face of the transfer in the present case to indicate that it related to a gift or a “family transaction”. In any event, I do not accept the validity of the distinction drawn. Thus, while I accept the Boons’ evidence to the effect that Goggin was told (whether by Joanne or Boon) that the property was a gift from the plaintiffs, it does not follow that Goggin would have treated the transaction as one in which strict compliance with the proper witnessing of signatures was required. In any event, the person who purported to witness the plaintiffs’’ signatures in the present case was not Goggin, but Harrison. And on the facts admitted, her attestation as a witness does not necessarily lead to the conclusion that the plaintiffs signed the transfer in her presence. On the contrary, I accept the plaintiffs’ evidence that they never attended at Beck and never met Harrison. Further, as I discuss below, Joanne’s counsel never put to the plaintiffs that they signed the transfer at Beck in the presence of Harrison.
[10]See Australian Guarantee Corporation Ltd v De Jager; De Jager v Registrar of Titles [1984] VR 483 at 496-7.

Having made the above findings and comments about the witnesses and the evidence, I now note the following matters, referred to by counsel for the plaintiffs, which, in my opinion, when viewed in combination and in the context of the evidence overall, indicate the inherent implausibility of Joanne’s version of events.

First, Joanne said that in making the gift, her parents offered to first have the property transferred into their name, yet on the plaintiffs’ unchallenged evidence, which I accept, they believed (albeit erroneously) at the time of the alleged gift that the property had already been transferred into their name. In these circumstances, it made no sense that the plaintiffs would offer to have the property transferred into their own names if they believed that that had already been done by Cohen.

Secondly, Beck was not, and never had been, the plaintiffs’ solicitors. If the plaintiffs intended to gift the property to Joanne, the only thing Mr and Mrs Oxley needed to do was advise their solicitor (Cohen) that they had decided to give the property to their daughter, and advise him to prepare the necessary documents. It would have been a relatively straightforward transaction. In contrast, the transaction described by Joanne in evidence (involving two transfers), and the (different) transaction reflected in the bill from Beck, were, as counsel said, an “elaborate structure” which was simply unnecessary if a simple gift was intended. Further, in circumstances where Joanne and Boon gave evidence to the effect that they had very little to do with the transactions, that all they were going to do was pay the legal costs and stamp duty, and that it was the plaintiffs who were organising the transfers, it was implausible that the plaintiffs would have instructed Beck (who had never been their solicitors) to do the transactions in the way they occurred and to do the things identified in the bill, for example to prepare a contract of sale when a gift was intended. In this regard, I do not overlook the evidence of Dwyer and Goggin to the effect that a contract of sale might be prepared even where the land was to be gifted, yet in my view that evidence was speculation based on the assumption that the plaintiffs wished to divest themselves of assets for social security purposes. I note also that even if the plaintiffs had been minded to involve Beck in the transaction, it was highly probable that Cohen would have advised the plaintiffs that they did not need to instruct two firms of solicitors, that he (Cohen) could prepare the necessary documents, advise the relevant authorities, and thus minimise the transaction costs which Joanne was to pay. If the plaintiffs made the gift to secure a social security benefit, as Joanne asserted, they would be inherently unlikely to have structured the transaction is such a way as to incur legal costs from two different firms of solicitors.

Thirdly, Joanne’s evidence that she went to Beck to sign the documents in the absence of her parents, and simply on the basis that her father said they had “done their bit” (without even referring to Beck or the need to sign documents), was inherently improbable. That was especially so in circumstances where, according to Joanne, she did not instruct Beck and, at its highest, her evidence was that she or Boon had suggested that Beck could be used. In short, unless Mr Oxley had specifically told her that she needed to go to Beck to sign the documents, Joanne would not have known where to go. Further, if the plaintiffs had decided to gift the property to Joanne, the likelihood is that the parties would have attended at the solicitor’s office together to sign the documents at the same time.

Fourthly, the transfer stated a consideration of $57,900, which is not consistent with Joanne’s version of the transaction, that is to say that the property was a gift. It is to be recalled that Joanne expressly denied that she purchased the property, and the plaintiffs denied entering into any transaction with Joanne in relation to the property. It follows that the transfer document does not reflect the transaction of either party. Further, the alleged gift is inconsistent with the references to a contract of sale and a vendor’s statement in the letter and bill provided by Beck. Counsel for Joanne sought to explain this by suggesting that the bill was derived from a pro forma and may have mistakenly referred to items of work not actually done, or that the plaintiffs’ instructions were confused or had changed, or there had been a divestment of assets for pension purposes. In my view, counsel’s explanation was no more than speculation. Goggin did not suggest that an account would contain items not reflecting the work actually done, and he agreed that the firm’s practice was that the person who prepared a bill would look at the file and ensure that the bill reflected the transaction. I agree with counsel for the plaintiffs that the items of work described in the bill were not a flippant identification but rather evidenced a solicitor or conveyancer identifying a thoughtful preparation of the transfer of the land. Counsel further submitted that in a transaction such as that described in the bill, the transfer to Joanne could only have been registered following a settlement, which would have required instructions from Joanne, yet her case was that there was no such settlement and she provided no such instructions.

Fifthly, it was illogical that in circumstances where Beck had handled the transfer of the property, and an issue had subsequently arisen (in 2000) as to the plaintiffs’ use of the property, Joanne went to a different firm of solicitors for the purpose of having a letter sent to her father asserting her ownership and seeking a licence agreement. If Joanne’s evidence as to the gift was true, why, counsel asked rhetorically, would she not simply go back to Beck, or go to her father directly, to clarify the position? Joanne simply asserted that somebody had recommended the firm of Arnold Dallas & McPherson to her, which may well have been so, but that went no way to explaining why, in the absence of any dissatisfaction on her part as to the way Beck had handled the initial transaction, she did not return to Beck to resolve her concerns about adverse possession and her father’s ongoing use of the property.

The next matter to consider, of fundamental importance and rightly emphasised by counsel for the plaintiffs, is Joanne’s failure to properly put her case to the plaintiffs’ witnesses, contrary to the principle in Browne v Dunn[11]. It is necessary to discuss this aspect of the case in some detail. The starting point is that Joanne’s pleading offered little more than a bare denial of the plaintiffs’ allegations of fraud. She gave no particulars of the gift, and the only reason given in the defence for the gift (the farm work) was overtaken by the different case which emerged in Joanne’s evidence. As to the critical matter of whether the plaintiffs instructed solicitors to act on the transaction, it is to be noted that Joanne’s defence originally alleged (para 5.1) that the plaintiffs were represented by Cohen with respect to the transfer to Joanne. During an opening address, however, Joanne’s counsel sought and was granted leave to file an amended defence which deleted para 5.1. As to the allegation that Cohen had acted, counsel told me that “following investigations, it was determined that that was most likely not the case”. Nevertheless, the case which emerged in Joanne’s evidence, and which counsel relied on in final address, was first, that the gift of the property was made by the plaintiffs “for pension purposes”, and secondly that the plaintiffs had agreed to organise the transfers and had instructed both Cohen and Beck to that end. In effect, this case was not pleaded and not put to the plaintiffs in cross-examination.
[11](1893) 6 R 67.

The first critical matter not put to the plaintiffs was the allegation that the property was gifted for pension purposes. Mrs Oxley said in evidence in chief that the transfer of the proceeds of the farm was done to assist with the pension. Her evidence was non-specific, and did not refer to a gift of the property, let alone for pension purposes. Joanne’s counsel did not cross-examine Mrs Oxley on this evidence at all, and thus did not put to Mrs Oxley that the plaintiffs had gifted the property to Joanne because that would assist them in terms of their pension. And when Mr Oxley was cross-examined, counsel put to him that the plaintiffs wanted to run the farm in Boon’s name so they could get the pension and have some income, which Mr Oxley said was not the case. Counsel did not put to Mr Oxley that the plaintiffs gifted the property (as opposed to transferring some other farm benefit) to Joanne for pension purposes. Then, after failing to put Joanne’s case about pension purposes to the plaintiffs in cross-examination, counsel opened Joanne’s case on the basis that the property was gifted in recognition of the kinship connection and the valuable contribution she had made and continued to make to the family farm. Counsel made no mention of the property having been gifted for pension purposes. Then, Joanne said in examination in chief that the gift was made for pension purposes. Further, after not having said anything about the matter in examination in chief, Boon said in re-examination that he asked the Oxleys why they put the farm account in his name and they responded that “they wanted to go on the pension and that’s one of the reasons they put it in my name”. I reject Boon’s evidence on this matter, as it was not put to the plaintiffs and was inconsistent with Mr Oxley’s evidence which I accept, but even if Boon’s evidence were accepted it would only go to the reasons for the transfer of the farm account and not the gift of the property.

The second critical matter not put to the plaintiffs was the allegation that they had instructed both Cohen and Beck in relation to the transaction. Nor was it suggested that they had authorised Cohen to release the certificate of title to Beck. Nor was it put to the plaintiffs that they had told Joanne that two transactions were required because the property was not yet in their name, or that they had asked the Boons to pay for both transactions. As I have said, these matters were not pleaded, yet the evidence Joanne gave was that her parents had instructed both Cohen and Beck. I reject her evidence on this point. Similarly, I reject her and Boon’s evidence to the effect that the Boons gave a cheque to Mrs Oxley to cover an account from Cohen & Johanson. That allegation was not pleaded and was never put to the plaintiffs.

The third critical matter not put to the plaintiffs was that Mr and Mrs Oxley signed the transfer at Beck in the presence of Harrison.

As I have indicated, the failure to put these critical aspects of Joanne’s case to the plaintiffs was compounded by the fact that Joanne failed to plead the details of the conversation in 1988 and the terms of the alleged gift, the role that the plaintiffs had agreed to and did take in the transactions in relation to the instructing of the various solicitors, and the circumstances in which the plaintiffs signed the transfer.

In my opinion, the non-puttage of Joanne’s case to the plaintiffs constituted a gross unfairness to the plaintiffs. It was a matter to which the plaintiffs’ counsel drew attention (and invited his opponent to remedy if he so wished), but Joanne’s counsel took no step to remedy the situation. There are of course all the other matters I have referred to that affect the reliability and plausibility of Joanne’s evidence. Regarding all these matters and the evidence overall, I reject Joanne’s evidence that the plaintiffs gifted her the property and agreed to organise the transaction and instruct the solicitors to that end. Further, I reject the suggestion that the plaintiffs signed the transfer at Beck in the presence of Harrison. In reaching these conclusions, I do not overlook the numerous matters Joanne’s counsel referred to as supporting her evidence. These matters included (a) the fact that the plaintiffs gifted other land to Donna, (b) the reference in the evidence to farm benefits being divested for pension purposes, (c) the fact (which I assume in her favour) that Joanne never tried to sell the property and which was consistent with the oral agreement alleged with Mr Oxley that he could continue to farm the property owned by Joanne, (d) the fact that Joanne paid rates on the property, which was consistent with her openly claiming ownership thereof, (e) the fact that there was no evidence that Joanne had ever denied ownership of the property, or had kept her ownership of the property a secret, and (f) the plaintiffs’ alleged inaction upon receiving the letter in 2000. Nevertheless, in my view, and without repeating my earlier discussion of these issues, the matters relied on by counsel for Joanne are equivocal and, whether taken individually or in combination, add little if any support to Joanne’s version of events. In any event, taken at its highest and taking all of these matters into account, Joanne’s version of events is overwhelmingly implausible when regard is had to the objective matters and probabilities relating to the transaction, to which I have referred above.

It follows that I reject Joanne’s primary submission, that I should prefer her evidence to that of the plaintiffs. In so concluding I have considered the evidence attentive throughout to Dixon J’s warnings in Briginshaw.

That leaves for consideration Joanne’s alternative submission, that notwithstanding the rejection of her evidence, the Court should nevertheless find that the plaintiffs have not established their case.

In developing this argument, counsel relied on what he said were gaps in the evidence. In short, there was no evidence to explain (a) how the certificate of title to the property was obtained by Beck, (b) how the plaintiffs’ signatures were forged, (c) how a statutory declaration for stamp duty purposes was obtained, and (d) how Joanne and/or Boon orchestrated a complex fraud. He also submitted that Mr Oxley’s evidence that Boon approached him in the paddock and had him sign a piece of paper lacked specificity and could not safely be relied on to establish the fraud alleged. In effect, counsel submitted that, in the circumstances and given the gaps in the evidence, the plaintiffs’ case as to forgery was “rife with inexact proofs and indefinite testimony”, to use the language of Dixon J in Briginshaw.

In this regard, I should note that I accept Mr Oxley’s evidence that Boon approached him in the paddock and gave him a document to sign, and that he signed it without looking at it. However, the evidence was vague as to time-frame and the nature of the document, and thus I could not be satisfied that what Mr Oxley then signed was the transfer. And even if he did sign the transfer, that does not explain Mrs Oxley’s signature being on the transfer. Further, I agree with counsel that the evidence does not provide a complete picture of how the property came to be registered in Joanne’s name. It is to be noted that three events have occurred (the destruction of Cohen’s office, the unavailability of the original transfer from the Land Titles Office, and the destruction of the relevant file at Beck), none of which can or were sought to be attributed to Joanne, with the consequent inability to determine how the transaction occurred. Further, I accept that it is not possible to determine any of the points raised at (a) to (d) above without speculating.

Further, I am conscious of Dixon J’s warning in Briginshaw to the effect that I must feel actual persuasion that the plaintiffs have established the facts underlying their case, and that my reasonable satisfaction as to those facts “should not be produced by inexact proofs, indefinite testimony, or indirect inferences”. All the more is that so where the proofs offered go to the establishment of an alleged fraud.

The answer in my view is to be found in the plaintiffs’ evidence, which I accept as to the central issues in the case. That is, I accept their evidence that they did not gift the property to Joanne, that they did not instruct Cohen and/or Beck to organise the transfer, that they did not sign the transfer at Beck in the presence of Harrison, and that they did not in any way authorise the transaction. Once their evidence is accepted, and in the absence of any basis to suggest that Beck organised the transaction by themselves and without instructions or that some third party organised the transaction, the inescapable inference is that Joanne (whether acting with or without the assistance of Boon) instructed Beck on the transaction. Notwithstanding her bald assertion that she did not instruct Beck, there is sufficient indication in the evidence of Joanne and Boon that they did instruct Beck on the transaction, and it is to be noted that the bill from Beck was addressed to Joanne. The fact that the transaction described in the bill is different from the one described by Joanne in evidence does not support Joanne’s case that she did not instruct Beck. Regarding the evidence overall, I am satisfied that the only reasonable inference available is that Joanne (whether acting with Boon or alone) instructed Beck to lodge for registration the transfer of the property in circumstances where she knew that the transaction was not authorised by the plaintiffs. I am satisfied that the plaintiffs have established a case of fraud by Joanne within the meaning of s 42 of the Transfer of Land Act 1958. In my view, the plaintiffs are not required to establish exactly how the fraud was perpetrated against them. On their evidence, which I accept, they had nothing to do with the transaction and in the circumstances could not be expected to explain how the fraud was carried out.

It follows that the plaintiffs have established their right to relief and the question is what form that should take. The Registrar of Titles has indicated that rather than the relief sought in the statement of claim, in the first instance at least the appropriate orders are those made in Dotter v Evans[12]. Those orders appearing appropriate, and subject to anything counsel may say, I will order that within seven days from service upon her of a copy of this order and a form of registrable instrument of transfer of the property to the plaintiffs, the first defendant do duly execute such instrument of transfer and within such period deliver the same to the office of the plaintiffs’ solicitor during normal business hours and deliver to the Registrar of Titles Certificate of Title Volume 5018 Folio 548 for the purpose of registration of the said instrument of transfer. I will hear counsel on the question of costs.
[12][1969] VR 41 at 47.

[2009] VSC 222

10 June 2009