Public Trustee v Jones

Case [2007] SASC 390

SUPREME COURT OF SOUTH AUSTRALIA

(Civil)

PUBLIC TRUSTEE v JONES & ANOR

[2007] SASC 390

Judgment of The Honourable Justice Layton

9 November 2007

PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - JURISDICTION AND GENERALLY

Application by second defendant that action be struck out as an abuse of process - consideration of the principles regarding abuse of process.

Held: there was an arguable case to be tried - no abuse of process demonstrated - application refused.

CONVEYANCING - LAND TITLES UNDER THE TORRENS SYSTEM - TRUSTS, EQUITIES AND UNREGISTERED INSTRUMENTS AND INTERESTS - UNREGISTERED VOLUNTARY TRANSFERS, TRUSTS AND INTERESTS

Application by the Public Trustee for determination of a question arising in the administration of an estate pursuant to s 69 of the Administration and Probate Act 1919 (SA) - dispute between two defendants, sons of the deceased - deceased executed transfer of title in favour of second defendant ("donee") - transfer was never registered - donee became executor of the estate - no Grant of Probate - Public Trustee became Administrator of estate - whether property formed part of estate or donee had equitable interest in property - whether deceased made a complete gift to donee - whether valid declaration of trust - whether rule in Strong v Bird (1874) LR 18 Eq 315 applied.

Held: property formed part of estate and donee had no equitable interest in property - the gift of the property was incomplete - the transfer was not delivered to the donee - the deceased's intention was that the gift would only be effective upon registration of the transfer - equity will not assist donee to complete an imperfect gift - no evidence of a valid written declaration of trust - rule in Strong v Bird (1874) LR 18 Eq 315 did not apply - deceased did not make an immediate gift of property to donee - declaration made that property is an asset of estate.

Administration and Probate Act 1919 (SA) s 69; Evidence Act 1929 (SA) s 45A; Inheritance (Family Provision) Act 1972 (SA); Law of Property Act 1936 (SA) s 29(1)(b); Supreme Court (Civil) Rules 2006 r 193, r 206, referred to.
Brunker v Perpetual Trustee Co (1937) 57 CLR 555; Cope v Keene (1968) 118 CLR 1; Corin v Patton (1990) 169 CLR 540; Jago v District Court (NSW) (1989) 168 CLR 23; Milroy v Lord (1862) 4 De GF & J 264; Rajski v Bainton (1990) 22 NSWLR 125; Williams & Ors v Spautz (1992) 174 CLR 509, applied.
Strong v Bird (1874) LR 18 Eq 315, distinguished.
Blackett v Darcy (2006) 62 NSWLR 392; Heartley v Nicholson (1875) LR 19 Eq 233; Marchesi v Apostolou [2007] FCA 96, discussed.
Benjamin v Leicher (1998) 45 NSWLR 389; Braskvar v Wall (1971) 126 CLR 376; Frazer v Walker [1967] 1 AC 569; General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125; In re Hince (1946) SASR…

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Public Trustee v Jones [2007] SASC 390
Case
[2007] SASC 390
Decision Date

CaseChat Overview and Summary

The case of Public Trustee v Jones involves a dispute regarding the execution and registration of a transfer of land and the identity of the party for whom the solicitors, Andersons, were acting. The Public Trustee was granted Letters of Administration, and the matter before the court involved three contentious issues: the reasons for the execution of the Transfer, the reasons for the Transfer not being registered, and the identity of the party for whom Andersons was acting. The court was tasked with determining these issues based on the evidence presented.

The legal issues before the court included whether a document containing hearsay could be admitted as a business record under the Evidence Act 1929 (SA), and whether the content of the document could be used to prove the last part of it without reference to the other hearsay material. The court also needed to determine the credibility of the evidence presented by the parties and whether it supported the claims made by each side.

In addressing these issues, the court considered the provisions of the Evidence Act 1929 (SA) and determined that the document in question could not be admitted as a business record due to the presence of hearsay material that was not relevant to the specific part of the document being relied upon. The court admitted the document as evidence of the record at common law, acknowledging that Mr Condon had recorded a note of a telephone conversation with Neil Jones. The court found that Neil Jones' evidence did not align with the contents of the document, and the document was not sufficient to establish the reasons for the Transfer or the identity of the party for whom Andersons was acting.

The court's final orders were to exclude the document from being admitted as a business record under the Evidence Act 1929 (SA), but to admit it as evidence of the record at common law. The court found that the document did not provide sufficient evidence to support the claims made by either party regarding the reasons for the Transfer or the identity of the party for whom Andersons was acting.

Orders

Orders of the court

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Background

Background to the litigation

On 4 August 2006, a Judge of this Court granted Letters of Administration to the Public Trustee. Facts in dispute On or about 18 September 2006, the Public Trustee obtained the Certificate of Title for the land from Andersons Solicitors. Three contentious topics emerged in the course of evidence, which I will discuss before turning to the specific issues to be determined. The three topics are:1.Why was the Transfer executed?2.Why was the Transfer not registered?3.For whom were Andersons acting?Why was the Transfer executed? Mr Roder sought to adduce evidence on the topic of why the Transfer was executed by the deceased in favour of Neil Jones. He pursued this in two ways: First by seeking to tender a file note from the Andersons file; and second, by cross-examining Neil Jones. Mr Roder sought to tender a document, identified as a “costs entry” dated 19 November 2002 contained on the Andersons file, as a business record pursuant to s 45A of the Evidence Act 1929 (SA). This document purported to be a record of a telephone call from Neil Jones to Mr Condon concerning the deceased and contained the following:She is slipping very fast and now could not sign anymore documents. She is on heavy doses of morphine. FRC thinks that it is very likely she may last only a few more days. There is no prospect of getting the transfer registered now, prior to her death and we resolved that we would leave it in reserve and see if the brother makes any claim against the estate. This document contained hearsay material as to the deceased’s medical treatment, state of health as well as matters concerning the registration of the Transfer. Mr Roder submitted that he was only relying on the document to prove the very last part of it, namely “we would leave it in reserve and see if the brother makes any claim against the estate” and not the matters relating to the deceased’s health. Mr Roder submitted that it was necessary to tender the document as a business record because, as he stated from the bar table, Mr Condon could not be called as a witness as he could not be located. In any event, Mr Roder further submitted that Mr Condon would not be able to recall the conversation as it occurred nearly five years ago. At this point, I note that during cross-examination Neil Jones admitted that he contacted Mr Condon when his mother was in the Repatriation General Hospital. However, he denied that he told Mr Condon the matters recorded in the costs entry, namely that his mother was on heavy doses of morphine and that “she was slipping very fast”. Rather, Neil Jones’ evidence was that he called Mr Condon to tell him that his mother’s condition had deteriorated and that she had been re-admitted to the hospital because she had contracted shingles. He said that it was Mr Condon who told him that “it will be very quick” when in fact she continued to live for months. After hearing Mr Roder’s submissions, I exercised my discretion to refuse the tender of the document as a business record by reason of the matters in s 45A(2)(a) and (c) of the Evidence Act 1929 (SA). However, I admitted it as evidence of the record at common law, namely that Mr Condon recorded a note in the course of his legal practice of a telephone conversation, with Neil Jones.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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