Payne and Simpson v Chief Commissioner of State Revenue
[2014] NSWCATAD 11
•10 February 2014
NSW Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Payne and Simpson v Chief Commissioner of State Revenue [2014] NSWCATAD 11 Hearing dates: 26 November 2013 Decision date: 10 February 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: N S Isenberg, Senior Member Decision: The decisions of the Chief Commissioner to reverse the decision to pay the Grant and to reassess the stamp duty exemption or concession are set aside
Catchwords: First Home Owners Grant - First Home Plus Scheme - relevant interest in residential property - evidence of constructive trust Legislation Cited: Administrative Decisions Tribunal Act 1997
Civil and Administrative Tribunal Act 2013
Duties Act 1997
First Home Owner Grant Act 2000
Real Property Act 1900
Taxation Administration Act 1996Cases Cited: Bogdanovic v Koteff (1988) 12 NSWLR 472
Breskvar v Wall (1971) 126 CLR 376
Commonwealth v State of New South Wales (1918) 25 CLR 325
Fiegert and Edwards v Chief Commissioner of State Revenue [2001] NSWADT 132
Frazer v Walker [1967] 1 AC 569Texts Cited: Halsbury's Laws of Australia
Jacobs' Law of Trusts in Australia by JD Heydon and MJ Leeming, Lexis Nexis Butterworths Australia 2006Category: Principal judgment Parties: Kelly Marie Eileen Payne and Mark Clifford Simpson (Applicants)
Chief Commissioner of State Revenue (Respondent)Representation: Counsel
Ms K Day (Respondent)
Mr M C Simpson (Applicant in person)
Crown Solicitor's Office (Respondent)
File Number(s): 136024
reasons for decision
Background
This matter commenced and the proceedings were heard in the Administrative Decisions Tribunal in 2013 in accordance with the Administrative Decisions Tribunal Act 1997. This decision is made by the Civil and Administrative Tribunal in accordance with the Civil and Administrative Tribunal Act 2013.
On 7 October 2011 the Applicants exchanged contracts to buy a residential property at Coolongolook in New South Wales ("the Coolongolook Property"). The purchase was completed on 11 November 2011. The Applicants applied for a First Home Owner Grant ("the Grant") of $7,000 and a First Home Plus stamp duty concession ("the stamp duty concession") in relation to the purchase.
In January 2012 the Respondent ("the Chief Commissioner") wrote to the Applicants, indicated that one of them may have been registered on title as owner of property known as 2/2a Wolseley Street Drummoyne ("the Drummoyne property"), and asked for written confirmation by all Applicants regarding ownership of the Drummoyne property. The Applicants responded to the effect that nearly 30 years ago Clifford Stanley Simpson ("Mr C. S. Simpson"), the father of Mr Simpson, purchased the Drummoyne property as an investment and Mr Simpson had nothing to do with that purchase. The Respondent also requested a statutory declaration from the Applicants. A declaration was provided to the effect that the Drummoyne property was the first property the Applicants had purchased either together or individually, that they had not previously bought or owned any other property, and they are not the same person who owned the Drummoyne property. The Respondent then paid the Grant and allowed the stamp duty concession.
Shortly thereafter the Respondent conducted an investigation into compliance by the Applicant with mandatory conditions for the Grant and the stamp duty concession and determined that all relevant conditions had not been satisfied. The Chief Commissioner reversed the decision to provide both the Grant and the stamp duty concession and by letters to the Applicants dated 24 April 2012 advised of the new decision and issued both an Assessment Notice requiring repayment of the Grant and payment of a penalty and a Duties Notice of Assessment requiring payment of the stamp duty previously allowed as a concession together with interest. All payments were required to be made by 15 May 2012.
The Applicants objected to the two assessment notices ("the Assessments"). By letter dated 24 January 2013 the Chief Commissioner informed the Applicants that the objection was partly allowed to the extent that the penalty tax imposed for "failure to declare a prior relevant interest in property" was remitted in full as, in the opinion of the Chief Commissioner "Considering how the purchase of the property was structured and how long ago it occurred, we consider it reasonable that Mark Clifford Simpson was unaware of his prior ownership of 2/2A Wolseley Street Drummoyne and should not be penalised for dishonesty." The Applicants seek a review by the Tribunal of the Chief Commissioner's decisions to reverse the Grant and the stamp duty concession to the extent that the objection was not successful.
The law and its application to the circumstances
Jurisdiction
Jurisdiction to review the decisions to which objection was made is conferred on the Tribunal by s28(1) of the First Home Owner Grant Act 2000 ("the Grant Act") and s96(1) of the Taxation Administration Act 1996 ("the TA Act").
Powers of Tribunal on review
On a review the Tribunal may confirm, vary or reverse the decision of the Chief Commissioner and make orders as to costs or otherwise as it thinks fit (s29(1) of the Grant Act and s101(1) of the TA Act).
Onus of proof
The Applicants have the onus of proving their case in a review by the Tribunal (s28(3) of the Grant Act and s100(3) of the TA Act).
First home owner's grant
The purpose of the Grant Act is set out in its long title and relevantly is: "to encourage and assist home ownership ... by establishing a scheme for the payment of grants to first home owners".
No grant is payable under the Grant Act unless an Applicant complies with certain eligibility criteria and completes the purchase of a home with an eligible transaction (s7 of the Grant Act).
One of the eligibility criteria is set out in s11 of the Grant Act as follows:
11 Criterion 4--Applicant (or applicant's spouse) must not have had relevant interest in residential property
(1) An applicant for a first home owner grant is ineligible for the grant if the applicant or the applicant's spouse has, before 1 July 2000, held:
(a) a relevant interest in residential property in New South Wales...
(3) An applicant is also ineligible if the applicant or the applicant's spouse has, at any time before the commencement date of the eligible transaction to which the application relates:
(a) held a relevant interest in residential property in New South Wales...and
(b) occupied the property as a place of residence for a continuous period of at least 6 months."
A "relevant interest" in residential property is defined in s5 of the Grant Act as follows:
5 Ownership of land and homes
(1) A person is an "owner" of a home or a "home owner" if the person has a relevant interest in land on which a home is built.
(2) Each of the following is, subject to subsection (3), a "relevant interest" in land:
(a) an estate in fee simple in the land,...
(e1) an interest as purchaser of an estate in fee simple under a terms contract,...
(3) Subject to sections 6C and 6D:
(a)...
(b) an interest is not a relevant interest in the hands of a person who holds it subject to a trust..."
Sections 6C and 6D are not relevant to these proceedings.
Stamp duty concession
The purpose of the scheme establishing the stamp duty concession obtained by the Applicant and reversed by the Chief Commissioner, the First Home Plus Scheme ("FHP scheme"), was set out in section 69 of the Duties Act 1997 ("Duties Act") at the relevant time:
69 The nature of the scheme
This scheme is intended to help people who are acquiring their first home. Under the scheme, the acquisition and any mortgage given to assist the financing of the acquisition is subject to a concession or exemption from duty.
Section 71 of the Duties Act contained at the relevant time a requirement of the FHP scheme which was materially identical to the above requirement for a grant:
71 Restrictions on eligibility--previous ownership of residential property or first home concession
(1) A purchaser or transferee under an agreement or transfer may apply under the scheme, but will be eligible only if the purchaser or transferee is a first home owner.
(2) A "first home owner" is an individual:
(a) who has not at any time owned residential property in Australia (either solely or with someone else) and has not previously been a party to an application under the scheme that was approved by the Chief Commissioner, and
(b) whose spouse (if any) has not at any time owned residential property in Australia (either solely or with someone else) and has not previously been a party to an application under the scheme that was approved by the Chief Commissioner.
...
(4) For the purpose of this section, a person is the "spouse" of another person if:
(a) they are legally married, or
(b) they are living together as a couple in a de facto relationship.
...
(6) For the purpose of determining eligibility, the ownership at any time of residential property, or a previous application under the scheme, is to be disregarded if the residential property owned by the purchaser or transferee is or was vested in the purchaser or transferee on trust...
.....
Note. A purchaser or transferee is not considered to be a first home owner unless both the purchaser or transferee, and his or her spouse (if any), have not owned residential property before. See subsection (2)...
The requirements outlined above are collectively referred to below as "the Grant Requirement".
Issues
The Chief Commissioner does not dispute that the Applicants acquired the Property by completing an eligible transaction. However the Chief Commissioner disputes that the Applicants have complied with the Grant Requirement and submits that Mr Simpson was for a period the registered owner of, and had a relevant interest in a residential property, namely the Drummoyne property.
The issue is whether or not the Applicants have satisfied the onus of establishing compliance with the Grant Requirement, that is, did Mr Simpson, prior to the purchase of the Property, have a relevant interest in the Drummoyne property.
If the Applicant does not succeed, the Grant is repayable and the stamp duty previously exempted is payable. In addition it is for the Tribunal to determine the amount, if any, of penalty to be paid by the Applicant in relation to the Grant and the interest payable in relation to the unpaid stamp duty.
The Respondent's evidence
The Respondent relied on the following documents which were included in the s58 documents and formed the majority of the documents in the Respondent's Tender bundle (Exhibit R1). All the documents relevant to land relate to the Drummoyne property:
(1) historical land title search dated 20 August 2012 for the period 24 September 1986 to 3 January 1990 (tab 1 of Exhibit R1);
(2) transfer from Anthony Dupont to Mark Clifford Simpson of 2/2A Wolseley Street, Drummoyne, Sales Representative dated 15 October 1986 registered W578309 on 23 October 1986 ("the Purchase Transfer") (tab 2);
(3) mortgage from Mark Clifford Simpson as mortgagor to AMEV FINANCE LTD ("Amev") dated 17 March 1987 registered W808604 on 29 March 1987 ("the Mortgage") (tab 3);
(4) caveat forbidding the recording of dealing over the Drummoyne property in favour of Clifford Stanley Simpson and Shirley June Simpson both of unit 1, 2A Wolseley Street Drummoyne dated 24 April 1987 registered W859689 on 30 April 1987 ("the Caveat") (tab 4);
(5) discharge of mortgage dated 29 June 1987 registered X489320 on 19 April 1988 in relation to the Mortgage (tab 5);
(6) withdrawal of the Caveat dated 5 April 1988 registered X489319 on 19 April 1988 (tab 6);
(7) transfer from Mark Clifford Simpson to Clifford Stanley Simpson dated 5 April 1988 registered X489321 ("the Sale Transfer") without a legible registration date, (tab 7); and
(8) document dated 20 August 2012 stated to be licence details for Mark Clifford Simpson showing "Address History" from 20 July 1987 to the date of the document.
The Respondent also tendered, in addition to the section 58 documents, other documents including a letter from the Crown Solicitor's Office dated 29 May 2013 to the Applicants (Exhibit R2), a reply dated 30 May 2013 (Exhibit R3) and a letter dated 18 June 2013 from the Applicants to the Respondent (Exhibit R7).
The Respondent's submissions
In written submissions dated 6 September 2013 Counsel for the Respondent submitted the following (references to the Previous Property are to the Drummoyne property):
35. The Respondent submits that the application must fail for the following reasons:
(a) it is clear from the records kept by the NSW Land Titles Office that Mr Simpson was the registered owner of the Previous Property for the period 23 October 1986 to 19 April 1988;
(b) the records kept by the RTA indicate that the Previous Property was provided to them by Mr Simpson as his residential address in or about 1987, and that he did not indicate any change of address until 2010. Similarly, the transfers referred to in paragraph 11 above indicate that the Previous Property was Mr Simpson's residential address at the relevant times;
(c) although there was a caveat lodged on the Previous Property in which it was claimed that Mr Simpson held his interest as constructive trustee for his parents, that claim has not been tested or upheld in any Court proceedings. The fact that a claim is made in a caveat does not mean that it will ultimately be upheld by the Court;
(d) the Applicants have not provided any evidence of the circumstances in which it could be said that a constructive trust arose;
(f) after the caveat was withdrawn, the Previous Property was transferred to Clifford Stanley Simpson (rather than both Clifford and Shirley Simpson, who had lodged the caveat) for consideration of $332,000, reflecting a reasonable increase in value over the 18 months since it was transferred to Mark Simpson (for $320,000). The payment of consideration and the stamping of the transfer for only $1 indicates that there was a contract of sale on which the stamp duty was paid. As such, the evidence available indicates that Mr Simpson did have a relevant interest in the Previous Property, whether he knew about it at the time (or whether he remembers it now); and
(g) the credit of Mr Simpson has not been assisted by the different statements made concerning his knowledge of the Previous Property and whether or not he was the registered owner (see in particular paragraphs 5, 7, 17 and 24 above).
36. In short, the Applicants have failed to discharge their onus of proof. The evidence before the Tribunal simply does not permit it to find that the Previous Property was held by Mr Simpson on trust so as to render the Applicants eligible for the First Home Owner Grant (and the First Home Plus concession).
Counsel for the Respondent produced no direct authority supporting the Respondent's contention that Mr Simpson could acquire a relevant interest in the Drummoyne property without any knowledge of the purchase in his name and without authorising any person to act on his behalf. Counsel did submit that the best authority would be Fiegert and Edwards v Chief Commissioner of State Revenue [2001] NSWADT 132 ("Fiegert") and that subject to fraud the effect of s42 of the Real Property Act 1900 was to create in Mr Simpson a relevant interest in the Drummoyne property.
Counsel sought and was allowed additional time after the hearing to provide written submissions and authority in relation to whether s42 of the Real Property Act 1900 would create a relevant interest in property for a registered owner who had no knowledge of any relevant transactions. The Applicants were allowed time to respond to any further such submissions and authority.
On 6 December 2013 Counsel provided further written submissions and on 13 December 2013 provided authorities concerning provisions of the Real Property Act 1900 and some other issues.
In summary the further submissions were to the effect that:
"3. Fundamentally, the Torrens system under the RPA is a system of "title by registration", as distinct from the system of "registration of title" under the old system. Title under the Torrens system derives from the Registrar-General's act in registering an instrument - the act of a statutory official acting under statutory authority - not from the common law by which such rights pass upon the execution of documents. The registered proprietor under the Torrens system holds the legal property in the land, subject only to equities and such interests as the Act expressly preserves...
4....
5. Upon the registration of an estate or interest in land, section 42(1) of the RPA confers indefeasibility, subject to very limited exceptions."
Counsel's authority for the above statements included Breskvar v Wall (1971) 126 CLR 376 and Commonwealth v State of New South Wales (1918) 25 CLR 325.
"11. Indefeasibility is immediate upon registration." Breskvar v Wall.
"12. Even registration of a void instrument is effective." Frazer v Walker [1967] 1 AC 569.
"14. It does not matter that a registered proprietor may have paid nothing for his or her interest in the land (such as Mr Simpson, if his evidence is accepted in preference to the particulars of consideration on the transfer). A volunteer who becomes registered attains indefeasibility unless fraud is established against the registered proprietor." Bogdanovic v Koteff (1988) 12 NSWLR 472.
"15. A manual folio of the Register is evidence of the particulars recorded in it, as well as conclusive evidence that the land has been brought under the Act and that "any person" recorded in the folio as the registered proprietor of an estate or interest in the land is the registered proprietor of that estate or interest (see s40(1), RPA)." Breskvar v Wall.
"16. The Respondent submits that none of the exceptions to the principle of indefeasibility apply in this case."
Counsel also made submissions to seek to rebut evidence and submissions of the Applicants. Reference is made below to certain of the Respondent's additional submissions
The Applicants' evidence
The Applicants relied on certain of the documents tendered by the Respondent, and one of the Applicants, Mr Simpson, gave oral evidence. In summary Mr Simpson's evidence was that:
(1) The Drummoyne property and another unit in the same block at Wolseley Road Drummoyne were purchased by Mr Simpson's father in 1986 from a Tony Dupont. The Drummoyne property was purchased as an investment and the other unit was purchased as a residence for Mr Simpson's father and mother.
(2) Mr Simpson resided at the Drummoyne property for several months during 1986 and 1987 and paid rent to his father as and when he could. He did not recall the amount that he paid his father. During the period 1986 to 1988 Mr Simpson was either unemployed or employed as a salesman or employed as a truck driver. At no time during that period could he have afforded to purchase the Drummoyne property for the consideration of $320,000 referred to in the Purchase Transfer nor did he receive either the Drummoyne property or any such amount as a gift nor did he borrow any such amount.
(3) In 2012 Mr Simpson first became aware that his name had been used as the registered owner of the Drummoyne property after receiving that information from the Chief Commissioner. He had no prior knowledge of that registered ownership.
(4) Mr Simpson had no beneficial or other interest in the Drummoyne property except that he resided there for several months with the permission of his father. He gained no benefit from the sale of the property in 1988 nor at any other time.
(5) Mr Simpson did not at any time instruct any solicitor, whether G.B. Burge or any other person, to act on his behalf in relation to the purchase of the Drummoyne property. Mr Simpson did not authorise G.B. Burge or any other person to execute the Purchase Transfer on his behalf nor to execute any other document relevant to the purchase or sale of the Drummoyne property. Prior to 2012 Mr Simpson had not previously heard of G.B. Burge. Mr Simpson believes that G.B. Burge may have been his late father's solicitor.
(6) The signatures which purport to be those of Mr Simpson on the first and third page of the Mortgage at tab 3 in the Respondent's tender bundle appear similar to his signature and may be his signature. Initials which appear on each of the pages in the Mortgage may be his initials. Mr Simpson had not previously heard of the name Shane Flynn who is shown on the Mortgage as the witness to his signature. Mr Simpson has no knowledge or understanding of the term "leasing accommodation" which is described in the Mortgage as the consideration for which the Mortgage was given. If Mr Simpson's father had asked him to sign a document such as the Mortgage Mr Simpson would have signed it without question because he trusted his father. He had at certain times signed several documents at the request of his father.
(7) Prior to 2012 Mr Simpson had no knowledge of AMEV FINANCE LTD, which is named as the mortgagee in the Mortgage.
(8) The persons named as Caveator in the caveat, Clifford Stanley Simpson of unit 1, 2A Wolseley Street, Drummoyne, company director and Shirley June Simpson of the same address his wife, are the late parents of Mr Simpson. Clifford Simpson died in 2006 and Shirley Simpson died in 2008. Mr Simpson had not seen the Caveat prior to it being produced by the Chief Commissioner. He was not aware of the constructive trust referred to in the Caveat.
(9) The signature of the transferee in the Sale Transfer was his father's signature; the signature which purported to be his signature as transferor was not his signature nor had his signature changed substantially over any relevant period; John Collings, who is noted as the witness to Mr Simpson's signature in the Sale Transfer was a business associate of Mr Simpson's father and Mr Simpson is uncertain of ever having met Mr Collings but may have done so on a boat sold to Mr Collings by Mr Simpson's father.
(10) In relation to the Address History at tab 8 which showed that Mr Simpson's address was at the Drummoyne property from 20 July 1987 to 21 July 2010 Mr Simpson's evidence is that he went overseas in 1993 and returned in about 2008. He did not change his address for his Australian driver's licence while he was overseas.
(11) The Applicants had tried unsuccessfully to locate the solicitor named "Burge" and had no knowledge of that person's whereabouts.
(12) Mr Simpson's father may have bought the Drummoyne property in his, Mr Simpson's, name for some purpose of which Mr Simpson had no knowledge. Mr Simpson's father had many business interests including lending money, owning three or four funeral parlours, dealing in real property and an involvement in several companies including being general manager of a textile company.
(13) Both the Applicants had tried to locate the constructive trust referred to in the Caveat but without success.
(14) Mr Simpson said he had not been asked by his father or any other person to buy the Drummoyne property.
The Applicants' submissions
The Applicants' submissions are set out in their objection to the assessments, their grounds for application to the Administrative Decisions Tribunal ("ADT") seeking a review of the Chief Commissioner's decision, their reply to the Respondent's submissions received by the ADT on 26 November 2013, and their further submissions received by the ADT on 20 January 2014. A summary of those submissions is:
(1) Any property bought 25 years earlier in the name of Mr Simpson was without his knowledge.
(2) Until recently neither of the Applicants has been in a financial position to purchase property nor have the Applicants ever borrowed or given a mortgage for property.
(3) The first property either of the Applicants purchased is the Coolongolook Property.
(4) As the Coolongolook Property is the first residential property owned by either Applicant they believe they are fully entitled to the benefits in dispute.
(5) The Chief Commissioner has admitted "we consider it reasonable that Mark Clifford Simpson was unaware of his prior ownership of 2/2A Wolseley Street Drummoyne..."
(6) They are unable to afford or otherwise obtain legal assistance for this dispute.
(7) Mr Simpson has never held a "relevant interest" in any residential property prior to the purchase of the Coolongolook property. Any "relevant interest" Mr Simpson allegedly held in a residential property before 11 November 2011 is without both his knowledge and consent.
(8) There is no evidence by way of signature that Mr Simpson ever saw the Purchase Transfer at any relevant time.
(9) Mr Simpson denied any knowledge of a transfer (by implication from him) to his father of the Drummoyne property.
(10) Mr Simpson's alleged signature on the Sale Transfer should be contrasted with his signature on other documents.
(11) The decisions the subject of review by this Tribunal are based on documents the authenticity of which is "highly dubious". The signature of the solicitor G. Burge on the Purchase Transfer is not witnessed and there is no evidence that the document was ever seen by Mr Simpson. The alleged witness to Mr Simpson's alleged signature on the Sale Transfer is Mr J Collings, "a close business associate" of Mr Simpson's father.
(12) It is "bewildering" to Mr Simpson that the Respondent came to the conclusion that he had a "relevant interest" in the Drummoyne property based on paragraph 34 of the Respondent's submissions. Mr Simpson submitted:
"the respondent would have you believe that I purchased the property, whilst unemployed and with no bank or other savings, for $320,000.00, mortgage free, on 15 Oct 1986. I then mortgaged the property for an undisclosed amount on 17 March 1987. I then discharged the mortgage, for the total sum of $1.00, some 104 days later on 29 June 1987. I then sold the property, at no benefit to me, for $350,000.00, on 5 April 1988. During this period, an un-witnessed Caveat was taken out on 24 April 1987. This Caveat was subsequently withdrawn on 19 April 1988, some two weeks after I allegedly sold the property".
(13) Contrary to the Respondent's submissions regarding documents held by LPI "The only thing "clear from the records kept by the NSW Land Titles Office" is that, whether for taxation purposes, or some other purpose, perhaps fraudulent and unknown to me (Mr Simpson) my name, with no knowledge or consent, has been used on a number of un-witnessed documents, with varying interpretations of my signature, to force the impression that I owned, and then transferred without benefit, the" Drummoyne property.
(14) Mr Simpson could not have been more vigilant or made further enquiries in regard to dishonest and fraudulent practices that did not come to his attention until some 25 years after the fact.
(15) GB Burge who signed the Purchase Transfer as "the Solicitor for the Transferee" "was not, and never has been, my Solicitor".
(16) On the Sale Transfer the signature of the Transferor allegedly witnessed by a business associate of Mr Simpson's father was "clearly" not Mr Simpson's signature and the signature of the Transferee is witnessed by the same GB Burge who apparently signed the Purchase Transfer on behalf of Mr Simpson:
"This is clearly indicative that, for purposes unbeknown to me, the ownership and transfer documentation regarding the property were dishonestly and fraudulently registered to indicate that I was the owner, and the seller, of the property."
(17) "In all of the Respondent's submissions I cannot find a case whereby a person or persons were harshly penalised as a result of dishonest and fraudulent practices committed by others without their knowledge." and
(18) "At the age of 57, and because of my financial position, I may have to sell the only home I have ever owned, to repay a Government Grant and Duty that I applied for, and received, in an open and honest manner and in good conscience, completely unaware that property had been registered in my name, fraudulently and dishonestly, and obviously without my knowledge in 1986."
Consideration
Compliance with the Grant Requirement
In order for the Applicants to succeed in overturning the Assessments they must prove on the balance of probability that they satisfied the Grant Requirement, that is, that subject to relevant exceptions, neither of them previously had a relevant interest in residential property.
At its highest the Respondent's position is that:
(1) either Mr Simpson knew of, but has forgotten, his purchase and ownership of the Drummoyne property and therefore the Grant Requirement is not satisfied or Mr Simpson did not know of his purchase of the Drummoyne property but because title to the Drummoyne property was registered in his name and there is no relevant fraud on his part then, because of the principle of indefeasibility of title, Mr Simpson became the owner of a relevant interest in the Drummoyne property.
(2) There is no exception which precludes Mr Simpson having held a relevant interest in the Drummoyne property. In particular the registered Caveat is merely a claim that Mr Simpson held his interest as constructive trustee. That claim has not been tested or upheld in any court proceedings and there is no evidence of an order imposing that trust. Accordingly the Applicants, on whom the onus of proving their case on the balance of probability lies, have not proven the existence of the trust and the trust exception does not apply.
I accept the general thrust of the Respondent's submissions as to indefeasibility of title of a registered proprietor, subject to relevant fraud and other exceptions such as the registered proprietor holding the property on trust.
I note that despite efforts to do so neither party has successfully located a witness to the alleged signature by Mr Simpson to the Sale Transfer nor has the solicitor G.B. Burge been located. Both Mr Simpson's parents have passed away and cannot shed any light on the events involving the Drummoyne property from 1986 to 1988.
I find that Mr Simpson is a witness of truth and accept his evidence that he was not aware at any relevant time:
(1) of the purchase of the Drummoyne property in 1986 in his name;
(2) of the sale of the property, apparently by him, in 1988 to his father;
(3) of the Caveat lodged over the title to the property in favour of his mother and father.
Mr Simpson has acknowledged that the signatures and initials on the Mortgage are similar to his signature and initials and that from time to time when his father asked him to sign various documents he did so as he trusted his father. I note that the Mortgage identifies the mortgaged property by reference to title details and not by street address. I find that:
(1) it is more probable than not that Mr Simpson did sign and initial the Mortgage as mortgagor;
(2) this action occurred at the request of Mr Simpson's father; and
(3) Mr Simpson had no knowledge or understanding at the time he signed the Mortgage of the content or effect of the document nor that title to the Drummoyne property was registered in his name.
Mr Simpson submitted that the purchase of the Drummoyne property in his name and its subsequent transfer to his father, both events occurring without his knowledge or consent are "dishonest and fraudulent practices committed by others". The Applicants have not alleged any fraud on the part of the person who transferred the Drummoyne property to Mr Simpson. Rather the Applicants submit that relevant fraud was committed by the person or persons who, unbeknown to Mr Simpson, used his name as the registered proprietor both for the purpose of registering title to the Drummoyne property and then for the purpose of transferring that title to Mr Simpson's father.
Counsel for the Respondent submitted:
"The exception in the case of fraud has been interpreted as requiring actual fraud, that is, personal dishonesty or moral turpitude on the part of the registered proprietor." and "Fraud by a person or persons from whom the registered proprietor claims will not affect him or her, unless knowledge of it is brought home to the registered proprietor or his or her agents." (Supplementary submissions paragraphs 17 and 18)."
It is not necessary to make a finding in relation to these submissions.
The Purchase Transfer appears to be signed by G.B. Burge as solicitor for the transferee, that is solicitor for Mr Simpson. Mr Simpson's evidence, which I accept, is that he did not instruct G.B. Burge or any other person to act on his behalf in relation to any dealings involving the Drummoyne property. Accordingly he did not authorise G.B. Burge expressly or by implication to execute the Purchase Transfer on his behalf.
The Respondent accepted the signature of G.B. Burge as solicitor on the Purchase Transfer on behalf of Mr Simpson as transferee and, at least impliedly, submits that there is no evidence of relevant fraud by the transferee or his agents and that merely because Mr Simpson may not have assented to a transaction (the registration in his name of title to the Drummoyne property), this does not amount to relevant fraud (paragraphs 18 and 24 of the Respondent's supplementary submissions).
The Caveat which forms part of the Respondent's evidence is apparently signed by G.B. Burge as solicitor for the Caveator (Mr Simpson's parents) and states that the Caveator claimed "an equitable estate in fee simple" of the Drummoyne property "as beneficiaries of a constructive trust under which the registered proprietor (Mr Simpson) holds an estate or interest in fee simple...".
The Respondent submitted in relation to the Caveat that the claim that Mr Simpson held his interest as constructive trustee for his parents "has not been tested or upheld in any Court proceedings. The fact that a claim is made in a caveat does not mean that it will ultimately be upheld by the Court". The Respondent further submitted that although a constructive trust may be imposed by order of the court in a range of circumstances ... "There is no evidence that any order was made in this case (or that there were proper grounds for so doing)" and "the Applicants have not provided any evidence of the circumstances in which it could be said that a constructive trust arose".
The authority referred to by the Respondent consists of some extracts from Halsbury's Laws of Australia from [205-6100] to [205-6140]. At paragraph [205-6100] appears the statement "a constructive trust will be imposed over a property in circumstances where it would be a fraud for the legal owner to assert a beneficial interest in the property" and at paragraph [205-6140] "a constructive trust may be enforced as a trust even though it is not evidenced in writing and the trust creates an interest in land." Such a trust is (at [205-6100]) "imposed by the court regardless of the intention of the parties in order to satisfy the demands of justice and good conscience." Counsel for the Respondent included in the Respondent's authorities extracts from Jacobs' Law of Trusts in Australia by JD Heydon and MJ Leeming, Lexis Nexis Butterworths Australia 2006. The learned authors state at paragraph [1301] "the constructive trust ... is raised by operation of law" and "equity does not construct the trust, rather it attaches legal consequences to the circumstances".
With respect I adopt the principles enunciated above. Accordingly not only is writing not required in order to create a constructive trust, the trust is created by operation of law, not by an order of a court. A relevant court may make an order imposing the legal consequences of actions which created the trust but the court does not itself create the trust.
Both the Purchase Transfer which gave rise to the Respondent's claim that Mr Simpson held a relevant interest in the Drummoyne property and the Caveat claiming that the Drummoyne property was held by Mr Simpson under a constructive trust were signed by the same G.B. Burge in the first instance as solicitor for Mr Simpson and in the second instance as solicitor for the persons claiming that Mr Simpson held the Drummoyne property as trustee.
In my opinion it would be unreasonable to assume that there was no relevant constructive trust when the document registering the claim for the existence of that trust, against the interest of Mr Simpson as owner of the property, appears to be executed by the same lawyer who, apparently as solicitor acting on behalf of Mr Simpson, executed the transfer pursuant to which Mr Simpson became registered owner of the property.
I find, on the balance of probability, that Mr Simpson held the title to the Drummoyne property in his capacity as trustee for his parents from the date of registration of the Purchase Transfer in 1986 until the transfer of the Drummoyne property to his father in 1988.
The Respondent's submission that the Applicants have not provided any evidence of the circumstances in which it could be said that a constructive trust arose is rejected having regard in substantial part to the documentary evidence produced by the Respondent showing the apparent multiple roles of G.B. Burge and the varying signatures purporting to be those of Mr Simpson on different documents and to the oral evidence of Mr Simpson that he did not sign the Sale Transfer and as to the relationship between Mr Collings and Mr Simpson's father.
It was open to the Respondent to produce expert evidence to the Tribunal in relation to whether or not signatures purporting to be those of Mr Simpson on various documents, including the Sale Transfer, were signatures of Mr Simpson. The Respondent did not produce any such expert evidence. Rather, Counsel for the Respondent tested Mr Simpson's evidence under cross examination in several respects including in relation to his signature, the extent to which it may have changed over time, and whether or not he had signed the Sale Transfer as transferor. Mr Simpson's evidence was very strongly to the effect that there had been no material change in his signature since 1986 and that he did not sign the Sale Transfer. I accept Mr Simpson's evidence and find that he did not sign the Sale Transfer.
The decision in Fiegert was to the effect that a person who knew he had a small interest in land forming part of a timeshare resort was not subsequently eligible for a grant. This did not support the Respondent's contention, at paragraph 23 above, that a person could acquire a relevant interest in land without having any relevant knowledge. It is not necessary to comment further on Fiegert or Counsel's contention in this decision.
Decision
Having regard to the above findings on the material before me, the correct and preferable decision is to make the order below.
Orders
The decisions of the Chief Commissioner to reverse the decision to pay the Grant and to reassess the stamp duty exemption or concession are set aside.
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
Decision last updated: 10 February 2014
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