Peck v Peck - [2010] SASC 258

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
PECK & ANOR v PECK & ANOR
[2010] SASC 258
Judgment of The Honourable Justice Anderson
26 August 2010
REAL PROPERTY - TORRENS TITLE - INDEFEASIBILITY OF TITLE - EXCEPTIONS TO INDEFEASIBILITY - FRAUD OR FORGERY - AGAINST REGISTERED PROPRIETOR
Property owned jointly by both plaintiffs - second plaintiff's interest transferred to first plaintiff and first defendant as tenants in common - transfer registered - whether transfer obtained by fraud or forgery of first defendant - first defendant married to first plaintiff - first plaintiff represented by Public Trustee because of disability - whether exception to indefeasibility of title made out - whether entry in Lands Titles Register be cancelled.
Held: Transfer was effected and registered without the knowledge or consent of the second plaintiff - transfer was registered by fraud of the first defendant - as regards the disputed transfer, the title of the first plaintiff and the first defendant is defeasible - the entry in the Register will be cancelled.
Guardianship and Administration Act 1993 (SA); Real Property Act 1886 (SA) s 64, s 69(a) and s 69(b); Real Property Act 1900 (NSW), referred to.
Farah Constructions v Say-Dee Pty Ltd (2007) 230 CLR 89; Butler v Fairclough (1917) 23 CLR 78; Bahr v Nicolay (No 2) (1988) 164 CLR 604, applied.
Adelaide Congregation Jehovah's Witnesses Incorporated v Pegasus Leasing Ltd & Anor (unreported) Judgment No S5968, Olsson J, 29 October 1996; Official Receiver v Klau; ex parte Stephenson Nominees Pty Ltd (1987) 74 ALR 67, discussed.

PECK & ANOR v PECK & ANOR
[2010] SASC 258
Civil
ANDERSON J.
Introduction

The Public Trustee acts on behalf of Andrew James Peck, the first plaintiff, pursuant to administration orders made by the Guardianship Board. The Public Trustee is the full Administrator of the estate of Andrew James Peck pursuant to the provisions of the Guardianship and Administration Act 1993 (SA). I will briefly describe how that came about.
The decision of the Guardianship Board was made on 16 March 2007 based on a considerable amount of evidence heard from members of the family, social workers, nurses and doctors. Andrew has unfortunately suffered from a significant history of mental illness involving psychosis. He has been diagnosed as suffering from a severe and disabling chronic schizoaffective disorder.
The reasons for decision of the Guardianship Board were tendered and are exhibit P12 in this action. At the time of the decision in March 2007, Andrew was 40 years of age. His first episode of psychosis occurred in 1996. At the time of the Board decision he had been admitted to hospital on some 14 occasions.
Andrew Peck was first married and divorced in 1999, that marriage lasting only five months. On 9 January 2006 he married Monika, the first defendant, who is Austrian. She was apparently in Adelaide some five years before on an academic visa when she met Andrew. She returned to Austria but then came back to Australia in 2005 when they decided to marry. They married in Austria. The Board’s reasons report that Monika Peck came to Australia on a permanent basis in October 2006.
The major consideration for the Board was the protection of Andrew’s assets. At the time Andrew, with the assistance of Monika, was attempting to run a plumbing business. That was his trade. Monika opposed the making of any order, contending that Andrew was quite competent to manage his own affairs.
The Board concluded that Andrew’s mental illness constituted a significant disability for him in managing his finances. The Board accepted the concerns of his family but from its comments was not impressed by the evidence which Monika gave before it. The Board concluded that her “presentation and evidence to the Board demonstrated a lack of insight into Andrew’s illness, which insight would be a prerequisite to her providing for him stability and responsibility in the decision making process concerning his finances”. The Board then made the order.
Background to this action
This action is brought by Public Trustee on Andrew’s behalf and by his brother Jeremy in his own right. The action is brought as a result of a transfer registered by the Lands Titles Office in which the plaintiffs claim that Monika Peck has fraudulently transferred Jeremy’s interest in a property which he formerly held jointly with Andrew. Jeremy’s interest was transferred without his knowledge and without his signature on the memorandum of transfer. This resulted in his half share going half to his brother and half to Monika Peck so that she then held a one-quarter interest and Andrew held a three-quarters interest as tenants in common.
It is alleged that the memorandum of transfer was prepared by Monika Peck. The document on its face shows several notations and alterations and it is alleged that either Monika Peck and/or Andrew Peck, under her urging, prepared and then altered the document to achieve its registration.
Section 69 of the Real Property Act 1886 (“the Act”) provides that the title of the registered proprietor is indefeasible except in cases of fraud, forgery or disability which are covered by s 69(a) and s 69(b) respectively. Section 64 of the Act empowers the court to order the Registrar-General to cancel any entry in the Register Book. That is what is sought by the plaintiffs in this matter.
Issues as to representation
Before I deal with the matters relevant in the trial, I need to say something about the representation of the first defendant, Monika Peck. When the proceedings were issued Ms Peck corresponded with various members of the Court’s staff, including registry, indicating that she would not or could not attend court because of some fear that she had in relation to being “nabbed” because of difficulties she was having with her visa. This was never explained.
Her first communication was by email to the master’s chambers on 2 December 2009 relating to her request for a telephone conference. This was followed by a telephone call to the master’s chambers again requesting a telephone link-up. Ms Peck was advised that she was expected to attend the hearing.
A letter dated 15 December 2009 from Monika Peck states that she obtained legal advice not to be present at the chamber hearing and not to present herself in person. That was the reason for her request for a telephone hook-up. She raised the question of representation and said in the letter that “this application is a joke and so is the legal services in that State of South Australia”.
She then wrote a letter dated 5 February 2010 relating to a “round table conferencing” for 9 March 2010. I presume that was a settlement conference. She reiterated that she would not attend and requested a telephone conference. She said that there was “far too much animosity (and vested financial interest) between the parties to have conferencing”.
Ms Peck said in this letter that she had an equitable right “via the Family Law Act, to roughly a 50% share in the property”. She also claimed that Public Trustee was not lawfully appointed by the Guardianship Board. She has not filed a defence in this action.
The next communication from Ms Peck was by email dated 1 April 2010 to the Supreme Court Registry relating to a further hearing which she indicated she would not attend for security reasons. She said the security reasons involved her person and immigration status. It appears that she was being offered pro bono legal assistance via JusticeNet SA.
The matter was set for trial. A notice dated, 8 April 2010, advised that the trial was listed for Tuesday 20 July 2010.
I should also indicate that on 9 December 2009 Ms Peck filed an affirmation with three annexures. This was an attempt to show that Andrew Peck had mental capacity and therefore should not be represented by Public Trustee. She attempted to argue the case regarding Jeremy’s half-interest in the property in her affirmation.
I only mention these matters as part of the history because no attempt was made by Ms Fryar, counsel for Ms Peck, during the hearing to tender that affirmation and the annexures. I have had no regard to it other than where it fits in the chronology of events pre-trial.
The action was originally brought against the Registrar-General in addition to Ms Peck, alleging a breach of a duty of care and negligence in the processing of the transfer by the officers from the Lands Titles Office. That allegation was not pursued at trial. The Registrar-General was represented by counsel at the trial, effectively as a friend of the court, but after having filed detailed submissions at the time when the allegations against the Registrar-General were still current.
Ms Peck’s representation was somewhat more complicated. Having chosen not to file a defence and not to take any part in the proceedings, some few days before the trial was to commence correspondence was received from a solicitor, Ms Fryar, advising that she was acting for Monika Peck in a limited capacity and that Ms Peck wanted an adjournment. Ms Fryar had not filed a notice of acting and she was advised that she would have to do so. Eventually a notice was filed and Ms Fryar appeared on the day when the matter was listed for trial indicating that she wanted an adjournment because she had briefed counsel and counsel was not available.
I decided not to proceed on that day and allowed Ms Fryar an adjournment of seven days. When the matter resumed on the adjourned date Ms Fryar then appeared as counsel for Ms Peck.
When I adjourned the matter to allow for representation, despite the fact that a defence had not been filed but so as not to prejudice the rights of the parties wishing to proceed, I indicated that I would allow Monika Peck to file an affidavit setting out her version of how the various stages in the land transfer process took place and what her role was in the course of the preparation and signature of the transfer document. I proceeded this way so that Ms Peck could be cross-examined on the affidavit. I indicated that statements contained in the affidavit could form the basis for her evidence in chief. An affidavit of sorts was prepared and filed. It was full of irrelevant and inadmissible material.
Some of the irrelevant matters included her work history and visa problems and generally attempting to go behind the scenes in relation to who actually paid for the property which is the subject of the disputed transfer.
In the affidavit, which I did not admit, Ms Peck attempted to explain some of the notations and alterations on the disputed memorandum of transfer, exhibit P3. I refused to admit her explanation on the basis that she indicated through her counsel that she was not attending for cross-examination.
Ms Fryar had informed me at the outset of the resumed hearing that Ms Peck was not going to attend court under any circumstances. I disallowed the use of the affidavit for any purpose. The trial then proceeded on the basis of the plaintiffs’ calling their evidence. Ms Fryar later made attempts to suggest that parts of the affidavit should be before the court but I disallowed them because Ms Peck would not make herself available to be cross-examined.
Ms Fryar spent much of her time attempting to go behind the decision of the Guardianship Board and she attempted to tender various parts of transcripts taken from the hearing before the Guardianship Board. I refused to accept the tender of those materials on the basis of relevance.
The evidence called by the plaintiffs
Mr Peter Riley
Ms Yule for the plaintiffs called Mr Peter Riley from the Lands Titles Office. The relevant document was a memorandum of transfer in which the interest of Jeremy Peck, previously held jointly with his brother Andrew, was transferred to Monika and Andrew Peck. The transfer was in respect of the whole of the land contained in certificate of title register book volume 5088 folio 645. It was unit 1 in a strata plan at Hove.
Mr Riley gave evidence of what he saw written on the transfer, exhibit P3. He said that when he first sighted it, the transfer document did not contain the alterations later made by way of crossing out, “white out” and new notations by way of addition.
Mr Riley said that he only dealt with Monika Peck in relation to the transfer. He was at the time a registration officer at the Lands Titles Office. He also gave evidence of the data recorded in the historical search of the relevant title.
He recognised the transfer document, exhibit P3, when it was produced to him. He said that it was taken to his office by two people. He said they were Monika Peck and her husband Andrew. He said that when they attended at his office Andrew did not say a word.
Mr Riley told the court that there was no “whiting out” on the transfer document when he first saw it. He thought that Jeremy’s name was in the document alongside the panel “Transferor” when he first saw it. He said there was only one name there. Mr Riley said he personally wrote the word “jointly” in the panel “Estate and Interest”.
Mr Riley said that when he first saw the document there was nothing written in the “Consideration” panel. In relation to the “Transferee” panel he said the name Monika Peck was there.
Mr Riley said that because there was a caveat, revealed by the historical search of the title, he would have said to Ms Peck and Andrew Peck that the transfer could not be lodged. He read the caveat out to Ms Peck. He said that she then took the transfer document and left. The caveat had been lodged by Public Trustee.
In cross-examination Mr Riley agreed that the name and address of Andrew Peck was not in the “Transferee” panel when he first saw it. He also confirmed that the only handwriting which was his was the word “jointly” on the document in the “Estate and Interest” panel.
Other than that addition, he said he made no alterations, additions or deletions to the transfer document.
He said he did not cross out the words “Andrew James Peck” from the Transferor panel. He could not remember Ms Peck making any alterations, including the use of Liquid Paper, while she was in his presence.
By reference to the historical record and because he had noted the existence of the caveat on that day, he agreed that this event must have been sometime after 3 May. That is the date when the caveat lodged by Public Trustee is noted on the historical search.
Mr Neville Lehmann
Ms Yule called Mr Neville Lehmann, who was also a registration officer in the Lands Titles Office at the time. He had a reasonable recall of the circumstances of this matter. He saw the memorandum of transfer when it was brought in by Ms Peck on a subsequent occasion to when it was seen by Mr Riley. He said that Ms Peck presented the transfer to him, together with the duplicate certificate of title. He said that on this occasion she was by herself. He then described the document he saw on that occasion.
Mr Lehmann told the court that the panel for the “Land Description” was as the document now appears, and so also were the panels headed “Estate Interest”, “Transferor” and “Consideration”. He said that the “Transferee” panel did not originally have the words “as tenants in common” written in, as he in fact wrote those words on the document. He said that nothing was added by Ms Peck in his presence. He said that when she presented the document to him it had the initials on it which now appear in the document, the Liquid Paper corrections were also there and it was apparent that pens of different colour had been used.
Mr Lehmann said that he had to explain to Ms Peck the difference between tenants in common and joint tenants. He said Ms Peck was quite abrupt when he said she could write in “tenants in common” and then initial it but she refused to do so. He then offered to write the words in and she then agreed with him doing that and she then agreed to initial it.
Mr Lehmann described Ms Peck as talking over him and insisting that the document was correct. She paid the registration fee, and that concluded their meeting. He confirmed that the document had been certified by Ms Peck herself when she brought the document in.
The transfer was then registered, and on completion it showed Monika Peck owning one undivided fourth part and Andrew Peck owning three undivided fourth parts as tenants in common.
Later a further transfer document, exhibit P6,was lodged and Mr Lehmann fortuitously came across this document in the course of his work. This was an attempt to transfer Andrew’s three-quarter interest to Monika Peck. That would have made her, if the transfer had been registered, the sole owner of the property.
Although it is no longer part of the plaintiffs’ case, the registration of the transfer, exhibit P3, leaves a lot to be desired. One look at the document with its alterations, additions and use of Liquid Paper should have been sufficient to raise a note of caution. I will describe the document as I see it later in these reasons.
Jeremy Peck
Ms Yule then called the second plaintiff, Jeremy Peck, who gave evidence that he had no involvement in the transfer, had never been told anything about it by either his brother or Monika Peck and did not know anything about it. He specifically said that the signature under the heading “Transferor” in exhibit P3 was not his signature. He first became aware of the transfer when Public Trustee informed him. He said he neither discussed with anyone nor received any consideration and he did not authorise anyone to sign a transfer on his behalf.
Jeremy Peck said he does not talk to Monika Peck at all, and had not seen the transfer document before Public Trustee informed him of the transfer. In cross-examination he stated that the signature of the “Transferor” purported to be Andrew Peck’s was a signature that he had seen of his brother’s. He also stated that he did not recognise the signature of the “Transferee” purported to be Andrew Peck. He said that he had not spoken to either Andrew or Monika Peck about taking his name off the title. I accept his evidence which he gave in a straightforward manner.
Evidence called by the first defendant
Andrew Peck
Ms Fryar indicated that she was calling Andrew Peck to support the case of Monika Peck. I was informed that he had been in hospital for some time but had been released for the purpose of giving evidence. By appearances he was clearly not himself and appeared to be sedated or medicated in some way.
I formed the impression from watching and listening to him that his evidence could not be relied upon. Although he gave some evidence which was supportable by reference to the documents, some of his evidence did not make a lot of sense. He appeared disinterested and was vague and somewhat remote from the issues being litigated.
He identified his signature as transferor in the execution section of P3. He said he signed it with his right hand. He said it was also his writing in the “Transferee” panel where his name and address was placed. He then was not sure whether the address was in his writing. He said the writing in the “Land Description” panel and the “Estate and Interest” panel did not look like his writing but then he later said it was his handwriting. He finally said that everything in the “Land Description” panel was his handwriting.
He was asked about the signature in the “Transferee” panel alongside that of Monika Peck. He was led by counsel that it was his signature with his left hand and he agreed.
He was asked why he signed and he said, “Well, obviously I wanted it to go through”. He then explained that it was his house and he wanted his wife to have part of it and he did that because he was upset with his brother who had “got me so riled up that I had to do it on myself … did it my way”. He also said that he had had conversations with Jeremy about Jeremy taking his name off the title. That, of course, is contrary to Jeremy’s evidence. I cannot accept that evidence from Andrew.

I am not sure what he meant to convey by his statement but he did agree that he understood that he was the joint owner of the property with his brother.
He said that he had gone into the Lands Titles Office with Monika. He cannot remember any discussion about a caveat on the property.
He then told me that he would like to carry on with his evidence but that he was losing interest and he was tired. That was not surprising, given that he had come out of hospital to give evidence. He then said, “It’s my house, I’d like to do what I want with it. I’d like – what I’d like, I’d like the Public – the litigation guardian off the case, so I don’t have to come to court”.
Of course, as I pointed out to Ms Fryar during her final submissions, the very reason that he is a protected person is because of his irrational behaviour. Andrew Peck said again that he had no objection to transferring an interest in his part of the jointly owned property to Monika. That does not quite explain, of course, why Jeremy’s interest was transferred. He repeated that the whole problem was because of issues with Public Trustee. He appeared to focus on Public Trustee issues rather than the reason why Jeremy’s interest had been transferred.
He confirmed in cross-examination that he signed as the transferor, knowing that Jeremy had not signed, despite him being named as the transferor.
The first memorandum of transfer – exhibit P3
At first glance, the appearance of the document shows a need for careful scrutiny. The first panel of the form called “Land Description” has the words “The whole of the land in Title Ref CT 5088/645” written in. The second panel called “Estate and Interest” has the words “Fee simple jointly Andrew James Peck” written in. Some writing has been whited out, and this is initialled by MEP, which I am prepared to infer is Monika Elisabeth Peck. In the third panel called “Encumbrances” the word “Nil” is written. From my inspection of exhibit P3 it appears that the first name Andrew and middle name James have been whited out from the fourth panel called “Transferor”. The surname Peck next to that has been crossed out and the name Jeremy Sean Peck inserted, initialled by MEP. The address of 24 Lascelles Avenue, Hove 5048 SA is written in.
The next obvious thing is that there is some whiting out in the fifth panel called “Consideration”. It is not clear what has been whited out, but in different writing and in a different coloured pen the words “$60,000 AUD value exchange of property” have been inserted. To the left of that are the words “transfer title”.
In the sixth panel called “Transferee” there are two sets of initials, both MEP, in the same handwriting but in different ink. The writing in the “Transferee” panel is in three different hands. One appears to be that of Monika Peck, who has written in her own name and the Hove address, and then it appears that Andrew Peck’s name has also been written together with the Hove address. From the evidence of Mr Lehmann, he wrote the words “as tenants in common” in that panel and Ms Peck has initialled that, as he indicated.
The transfer document, exhibit P3, is dated 16 April 2007.
In the “Execution” panel at the bottom of the page the signature of the transferor appears to be a signature of A.J. Peck, which of course is inconsistent with the J.S. Peck who was the transferor named above.
The transfer is accepted by two transferees and signed by Monika Peck and also by another person. Andrew Peck’s evidence is that it is his signature but it is very different from the signature above as transferor. This is because he signed it, he says, with his other hand because, his normal right hand was injured.
In the “Certification” panel on the rear of the document there are two signatures, one of Monika Peck and the other appearing to be similar to the signature Andrew Peck says was signed with his wrong hand.
As I have previously indicated, all things considered, this document should have called out for careful examination and further questions, especially given the presentation of Ms Peck and the attitude she displayed to two officers in the Lands Titles Office. Warning bells should have rung. There was a very real question of who the transferor was.
The second memorandum of transfer – exhibit P6
Exhibit P6 contains a memorandum internal to the Lands Titles Office indicating that the document is due for rejection. In this document an attempt has been made to transfer to Monika Peck three undivided fourth parts of the fee simple, namely, the interest held by Andrew Peck, as a result of the transfer registered by virtue of exhibit P3.
The transferor named in the panel is Andrew James Peck but the signature of the transferor is not like either of the signatures which Andrew Peck identified as his in exhibit P3. The transferee is Monika Peck. Again the document is certified correct by Monika Peck.
There is no need to go into the details of this document because it was rejected. The relevant fact is, of course, that if this transfer had been registered, Ms Peck would have been the sole owner of the property in which she originally held no interest. Jeremy Peck had already been divested of his interest without his knowledge and without signing a thing. This was an attempt to divest Andrew Peck of his interest.
After the document was rejected, there was contact by Ms Peck with officers from the Lands Titles Office. Mr Lehmann explained what happened in the sequence of events which followed his rejection because of the fact that Public Trustee’s consent was required. What follows shows her involvement and concern in having the transfer to herself finalised.
In the “Consideration” panel of the transfer document exhibit P6, the words “Transfer Title” appear. The document is dated 30 July 2007. The document was certified by Monika Peck.
Mr Lehmann in his evidence said that the requisition notice which he prepared stated as follows:
The Public Trustee of 25 Franklin Street Adelaide, has been appointed the administrator of the estate of Andrew James Peck under the provisions of the Guardianship and Administration Act 1993. Any dealing with his interest must be signed under seal by the Public Trustee in this transfer, and a copy of the order appointing the administrator and the order authorising the dealing must be attached.
That requisition was sent to Ms Peck.
The procedure which operated in the Lands Titles Office was that two months after that notice was sent, another notice, the pink notice, was sent. This was done on 17 October 2007. Mr Lehmann said that following the issue of the pink notice Ms Peck rang and spoke to him. She telephoned him on 13 December 2007. He said she told him that she would “fax information to prevent rejection”. On the same day a fax was sent apparently by Ms Peck from ward C3 of a hospital. It mentioned a Supreme Court case and provided the address of her neighbour. The Lands Titles Office file notes the fax and the address requested where the title was to be forwarded should the application be rejected. It was later rejected.
Submissions by the plaintiffs
Ms Yule submitted that under s 69 of the Act it has been established that there has been a fraud or forgery. Ms Yule submitted that the signature purporting to be that of the transferor Jeremy Peck was not in fact his. Ms Peck, despite this, certified the document as correct. Andrew Peck said he knew that Jeremy had not signed the document. Ms Yule then submitted that Ms Peck showed by her later attempts to deal with the property again that her fraudulent intention was to get all of the property into her name and that the first transfer, exhibit P3, was the first stage in that process. Ms Peck is the only person who had dealings with the Lands Titles Office in relation to both documents, that is, exhibits P3 and P6. How and in what sequence the signatures were placed on the documents, and who actually signed, remains a mystery because Ms Peck did not give evidence.
Ms Yule submitted that both plaintiffs Andrew Peck and Jeremy Peck were defrauded. Jeremy on the one hand has been deprived of the joint interest he previously held with Andrew. Andrew’s rights as joint owner have been diminished by him now having a three-quarter interest as tenant in common with Monika Peck holding a one-quarter interest.
Furthermore Ms Yule submitted that neither Ms Peck nor Andrew, as transferees, provided any consideration for the property. There is in fact no evidence of any consideration passing in relation to this transfer.
Mr Mackintosh, counsel for the Registrar-General, in some brief submissions generally supported those of Ms Yule. He submitted that Ms Peck must have known that Jeremy had not signed the transfer and that he had received no consideration. He submitted that it was clear that Ms Peck’s actions were wilful and deliberate acts of dishonesty designed by her to achieve the end result of becoming the sole proprietor of the fee simple of the land.
Submissions by the first defendant
Ms Fryar submitted that there was no fraud on the part of Monika Peck and that Andrew Peck had merely wanted to transfer part of his asset to his wife. She submitted that errors on the transfer document occurred as a result of their lack of knowledge of the Lands Titles Office forms and how to complete them correctly.
She further submitted that Monika Peck certified the P3 and P6 documents as correct, even though it is clear that they were not, in accordance with her understanding of German law and lack of knowledge of Australian law and its consequences.
Ms Fryar then submitted that the reason Monika Peck alone spoke with the Lands Titles Office officers was under an assumed authority on behalf of Andrew Peck.
Legal issues
Section 69 makes the title of a registered proprietor indefeasible except in some cases. The first of those is fraud, covered by s 69(a) which states:
Fraud
In the case of fraud, in which case any person defrauded shall have all rights and remedies that he would have had if the land were not under the provisions of this Act:
Provided that nothing included in this subsection shall affect the title of a registered proprietor who has taken bona fide for valuable consideration, or any person bona fide claiming through or under him;
The equivalent of s 69(a) in the South Australian legislation has been considered in several decisions over many years. In Farah Constructions v Say-Dee Pty Ltd (2007) 230 CLR 89 the High Court dealt with a similar section in the Real Property Act 1900 (NSW). The court, comprising Gleeson CJ, Gummow, Callinan, Hayden and Crennan JJ, said at 192:
“Fraud” in s 42(1) means “actual fraud, moral turpitude”.
The court referred to decisions of earlier High Courts. The quote above was from Butler v Fairclough (1917) 23 CLR 78 at 97 per Isaacs J. The court also referred to Bahr v Nicolay (No 2) (1988) 164 CLR 604 at 614 per Mason CJ and Dawson J.
The position of Andrew Peck in relation to the transfer which has been registered is unclear. As I have said, it is difficult to place too much weight on his evidence. He is unlikely, in my view, to have been a willing participant in a fraud, despite the fact that he said he wanted his wife to have an interest in the property. I do not regard him, because of his restrictions and disability, as a co-conspirator with Ms Peck.
Andrew Peck was called by Ms Fryar, apparently on behalf of her client. As I have said, his evidence was unhelpful. I do not mean that he was not trying to help but I formed the impression that he was incapable of fully understanding the sequence of events that were being discussed, and he seemed to me to be not focusing on the issue in court. He actually said during the course of his evidence that he was sick and tired of the whole proceeding and wanted to go.
Mr Mackintosh submitted that in those circumstances the position of Andrew Peck was that of a volunteer who has not provided any valuable consideration. Therefore he argued that although Andrew Peck took bona fide, he is not a person, within the words of s 69(a) who has “taken bona fide for valuable consideration” and whose title is indefeasible. Mr Mackintosh referred to two decisions to support his contention: see Adelaide Congregation Jehovah’s Witnesses Incorporated v Pegasus Leasing Ltd & Anor, (unreported) judgment No S5968, Olsson J, 29 October 1996 and Official Receiver v Klau; ex parte Stephenson Nominees Pty Ltd (1987) 74 ALR 67 at 74 and 75 per Fisher J. Those decisions support the proposition put forward by Mr Mackintosh.
Monika Peck certified the transfer document and that certification was clearly inappropriate. It was dishonest. It had not been signed by Jeremy Peck. At best it had been wrongly signed by Andrew Peck in two places, one for the transferor and one for the transferee, but Jeremy Peck was not involved and Monika Peck must have known that. She was the person involved in the preparation and submission of the document from the evidence of the Lands Titles Office representatives.
Ms Yule pointed to the further attempted transfer of this land. This involved the attempted transfer of the whole of the land from Andrew Peck to herself. Having got the first transfer through the Lands Titles Office, that is, the transfer of Jeremy’s half interest to herself and Andrew, she then set about transferring all of Andrew’s interest to herself. I agree with Ms Yule that Ms Peck’s later attempts to transfer the property to herself is strong proof of her fraudulent intentions.
I have described the second transfer earlier but it clearly shows her continuing involvement in what is an obvious fraud by any definition.
Significantly Jeremy Peck received no consideration whereas the transfer document P3 indicated an amount of $60,000.
From the Lands Titles Office perspective it appears that the only person dealt with was Monika Peck. She was informed initially by Mr Riley that the transfer could not be registered because there was a caveat by Public Trustee on the land. The evidence clearly shows that after that discussion alterations were made to the document. I find that the alterations were made by either Ms Peck or by her and Andrew under her instruction.
Mr Lehmann saw Monika Peck about ten days after Mr Riley saw her. By that stage Andrew’s name had been taken from that part of the transfer document called “Transferor” and Jeremy’s name had been inserted. Andrew said he wrote Jeremy’s name into the transferor panel.
It is submitted that Ms Peck must have known exactly what the effect of the transfer was, namely, to transfer the interest of Jeremy Peck for valuable consideration to Monika and Andrew Peck. Monika Peck knew that Jeremy Peck had not signed the transfer, let alone him being aware of what was happening.
I have no difficulty in concluding on the balance of probabilities that the preparation of this transfer, whoever actually did the writing, was controlled and dictated by Monika Peck. I have no doubt that it was a wilful and deliberate act of dishonesty by her. It was “actual fraud, moral turpitude”.
Ms Fryar’s submissions on behalf of Monika Peck was that although her client thought she knew the law, she did not understand it and that explains the basis of the transfer document. It is all very well to make those submissions but I have no evidence to support that. As I indicated at the outset, Ms Peck decided for reasons of her own that she was not going to have any part in these court proceedings and moreover would not attend court under any circumstances. Her version is therefore not before the court. All of Ms Fryar’s submissions are speculative in the extreme and she resorted to making submissions on the basis of matters which were not in evidence, not pleaded and therefore irrelevant.
In the circumstances, whilst I am prepared to find a clear fraud perpetrated by Ms Peck, I am not prepared to find likewise in respect of Andrew. After all, Andrew, albeit under the control of Public Trustee, is attempting to set this transaction aside. Given that fact, Andrew can be described as a volunteer because he has not “taken bona fide for valuable consideration”: see s 69(a).
The plaintiffs alleged forgery as well as fraud. Forgery is dealt with under s 69(b) of the Act. It is not necessary in the circumstances of this matter, because of my findings of fraud, to deal with the question of forgery.
Conclusion
Whether it was Andrew or Ms Peck who prepared the document, and/or then made the alterations, it was clearly under the guiding hand of Ms Peck. I have no hesitation, based on my impression of Andrew, in finding that he really did not understand what he was doing. That is despite his saying that he wanted to transfer the property to his wife. That, of course, begs the question of why Jeremy was never consulted.
I find that it was Ms Peck who set out to transfer Jeremy’s half interest in the property as part of her overall plan to finally have the property solely in her name. She attempted, and succeeded, in divesting Jeremy of his joint interest without his knowledge or consent, without his signature, and without any consideration.
I find that Andrew was not capable of understanding the consequences of signing the documents, if indeed he did sign them as he says. What he did know was that his brother was a joint owner of the property and that he was not consulted before any of the documents were prepared and then presented to the Lands Titles Office.
On the basis of the definition of fraud I have referred to earlier in these reasons, I have found that Ms Peck fraudulently transferred Jeremy’s interest in certificate of title register book volume 5088 folio 645. The title now in the names of Ms Peck and Andrew Peck for their respective interests is therefore defeasible.
I therefore order the Registrar-General pursuant to s 64 of the Act to cancel the entry in the Register Book.
I will hear the parties as to what other orders are required.