Stock v Baker
[2001] WASC 189
STOCK -v- BAKER [2001] WASC 189
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASC 189 | |
| Case No: | CIV:2157/1998 | 7, 8, 13, 15, 19 JUNE & 18 JULY 2001 | |
| Coram: | MASTER BREDMEYER | 18/07/01 | |
| 22 | Judgment Part: | 1 of 1 | |
| Result: | Judgment for the plaintiff | ||
| PDF Version |
| Parties: | MICHAEL STOCK MAREE SUZETTE BAKER |
Catchwords: | Property dispute between de facto couple Land and chattels |
Legislation: | Property Law Act (WA) 1969, s 126 |
Case References: | Nil Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
MAREE SUZETTE BAKER
Defendant
Catchwords:
Property dispute between de facto couple - Land and chattels
Legislation:
Property Law Act (WA) 1969, s 126
Result:
Judgment for the plaintiff
(Page 2)
Representation:
Counsel:
Plaintiff : In person
Defendant : In person
Solicitors:
Plaintiff : In person
Defendant : In person
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
(Page 3)
1 MASTER BREDMEYER: This is a property dispute arising out of a failed de facto relationship. The trial has been delegated to me to hear by the Judge in charge of the Civil List. Both parties are unrepresented, although they did have solicitors for a while during the interlocutory processes.
2 The ambit of the dispute is set out in the pleadings, particularly the plaintiff's substituted statement of claim of 22 June 1999 and the defendant's reamended defence and counterclaim of 5 November 1999. At the outset of the hearing I ruled that all affidavits filed were admissible and I also admitted into evidence the defendant's answers to interrogatories. I heard evidence from a number of witnesses, the most important being the plaintiff and defendant themselves.
3 I propose to give a summary and outline of the case, as taken from the pleadings, the affidavits and uncontroverted evidence. The parties were in a de facto relationship between 1991 and about August 1996. They met in Port Hedland. They had a child together, Jessie Anne Baker-Stock, who was born 6 January 1992. Ms Baker has another daughter called Skye, born 1 October 1987 from an earlier relationship, and the two children lived with her and Mr Stock during the time of their relationship. Mr Stock regarded Ms Baker and the two girls as his family.
4 In March 1990 Mr Stock purchased in his name a property at Lot 5776, Trigg Street, Wedgefield, Port Hedland. He purchased it in the form of a licence for $850 and later, in 1995, paid a further $8,500 to convert the title from Special Lease into a Crown Grant. They lived on this property. The defendant ceased working and surrendered her rental accommodation. The plaintiff constructed a 30 x 20 shed on the lot and moved two transportable homes there and they resided in one of them.
5 In April 1993 the plaintiff purchased in the defendant's name a property of 10 acres, being Lot 5231, Port Hedland on the Great Northern Highway about 9 miles out of town. I will refer to this as "Lot 5231" or "the 9 mile property". He purchased it for $2,000 out of a tax refund cheque he received. The plaintiff built two sheds on the property, put in a septic system and put a transportable on it. The plaintiff operated a business removing houses and in connection with that business he bought, or otherwise acquired, a large quantity of building materials and motor bikes etc. These were initially kept at the Trigg Street property but were later moved to the 9 mile property. The parties moved to the 9 mile
(Page 4)
- property and rented out Trigg Street. The defendant considered that she held the 9 mile property for their "joint benefit".
6 In about late September or early October 1995 the parties and the two children came to Perth to live. They lived with friends and relatives, and then in rental accommodation, 21 Kookaburra Crescent, High Wycombe, for a time. On 22 December 1995 the plaintiff was imprisoned for a crime committed in Port Hedland and was not released until January 1997. He spent about 14 months in prison. Whilst in prison, in about August 1996 the de facto relationship finished. Ms Baker had fallen in love with another man.
7 Before Mr Stock went to prison he gave Ms Baker authority to use the money in his Commonwealth Bank account No 612500625255 which was a key card savings account. She was to use it for her upkeep and for the benefit of the children. Whilst in prison, he gave her authority to sell the Trigg Street property and she decided to also sell the 9 mile property. As I have said, it was registered in her name but the plaintiff supported the sale. It was agreed that she would use the proceeds of the sale of the Trigg Street property to purchase a property in their joint names in Perth. The Trigg Street property was sold in March 1996 for $110,000 gross which amounted to $102,498.55 net.
8 The 9 mile property was sold in June 1996. The plaintiff says it was sold for $73,500. The defendant says it was sold for $16,000. That is a matter of controversy to which I will return later. The contract of sale and the transfer are for $16,000. $14,257.85 (and later $500) from the proceeds of sale was deposited into Ms Baker's own account, as she was the owner of the land. The $14,257.85 was paid into her account on 19 June 1996. The $500 had been held back in trust by the settlement agent to pay any moneys due by the vendor on the adjustment of rates and taxes. It was not, however, needed for that purpose.
9 Ms Baker purchased in their joint names a property at 240 Streich Avenue, Armadale for $79,000. Settlement occurred on 11 April 1996 (exhibit 32).
10 Ms Baker received $102,498.55 net from the sale of the Trigg Street property. The money was paid into Mr Stock's Commonwealth Bank account by payment of $95,000 on 15 March 1996 and a further payment of $7,498.55 on 22 March. Ms Baker settled the purchase of the new house at 240 Streich Avenue, Armadale by a payment of $80,943.20 net. This sum included stamp duty, registration fees, settlement fees etc. It
(Page 5)
- will be seen that the difference between the sale of one house and the purchase of the other was about $22,000. Mr Stock's bank account shows a number of withdrawals over the period between March and May 1996. By the end of May 1996 all the money had gone. There was only $4.07 in the account. Mr Stock queries where the money went. Ms Baker says that she spent all the money on paying bills, living expenses, repairs and improvements to the house (including the installation of a new kitchen), legal fees for Mr Stock, and $7,000 deposit on the purchase of a Ford Fairlane car.
11 In addition, the sale of the 9 mile property netted $14,257.85 on 19 June 1996. This sum was all spent, I think, in the next month or so. Ms Baker has not produced her bank accounts but has produced a summary of expenditure from this account (exhibit 68). She says that this money was also spent on the repairs to the house, the payment of bills and on ordinary living expenses.
12 When the parties left Port Hedland the plaintiff says a large quantity of vehicles, equipment, building materials and personal belongings were left on the 9 mile property. They brought down to Perth a transportable which was full of gear, including one large and one small Harley Davidson motorcycle, one car trailer and a quantity of the plaintiff's tools and equipment, totalling in value about $16,000, according to the plaintiff. That transportable was stored at a friend's property in Forrestfield. Whilst there, it was broken into on two occasions and some property stolen. When the defendant purchased the house at Streich Avenue, the transportable, and what was left of its contents, was brought to 240 Streich Avenue.
13 When the plaintiff got out of prison in January 1997 he considered he had been "fleeced". The two properties in Port Hedland had been sold. The Streich Avenue property had been purchased. It cost about $36,000 less than the net proceeds of the Port Hedland sales. That $36,000 was gone. His tools were missing. He was excluded from the Streich Avenue property. There was only $1.87 in his bank account.
14 He was given the transportable and its contents soon after he got his freedom. He had a policeman present to see that there was no breach of the peace. He considered much of his property, especially two generators and some power tools, had been taken by Ms Baker and/or her stepfather, Mr Peter Murfit. He considered the value of the missing property was $9,210. He reported the property stolen by Mr Murfit. The police investigated. Ms Baker got a lawyer, Mr John Athanasiou, who wrote a
(Page 6)
- letter to the police claiming that Ms Baker had a half interest in the property. The police decided to drop the investigation on the basis that it was a civil dispute. Mr Stock persisted in his complaints to the police and eventually the Minister for Police, Mr John Day, in a letter dated 7 July 1998, summarised the police view that the dispute was a civil one and they would not be taking it any further. Mr Stock was referred to the Ombudsman if he had any further complaint.
15 Mr Stock brought this action by writ on 13 October 1998. His claim, as endorsed on the writ, was for the payment of $111,360 payable in cash and/or assets, the sum being the balance owed of an equal share in the jointly owed assets valued at $254,320 arising from the de facto relationship of Michael Stock and Maree Suzette Baker. In a substituted statement of claim dated 22 June 1999, which is the statement of claim before me, he sought various orders in relation to the property at 240 Streich Avenue and as to the division of other assets. In relation to the property at Streich Avenue, he sought an order inter alia that the property be sold at market value and that, after the payment of expenses, one half of the balance should be paid to him. He asked that the defendant's half be used to pay any judgment and costs awarded to him against the defendant and that the balance of that half then be paid to the defendant. Where a property is jointly owned in equal shares, an order for sale cannot be resisted. The party seeking an order for sale has an absolute right to get an order for sale if he owns a 50 per cent or more interest in the property. That is as a result of s 126 of the Property Law Act (WA) 1969. It follows, as night follows day, and a defendant is foolish to resist such a claim. The sale of a property in that circumstance does not mean, necessarily, that the proceeds should be divided equally. There can be some argument that the proceeds should be divided unequally in some circumstances. In that case, the normal order is that the balance of the proceeds of sale, after meeting the expenses of the sale, be paid into a court to await the order of the court.
16 Ms Baker resisted an order for the sale of the property. She thought that Mr Stock was being vindictive and unfair in attempting to evict her and the children from the best home she and her children had ever enjoyed. She attempted to negotiate a settlement whereby she could retain the house and pay Mr Stock out for his share, but she was unable to raise finance in order to do that. A series of orders were made by Master Sanderson and myself in order to effect a sale of the house. The first order was made by Master Sanderson on 22 November 1999 which ordered a sale through a real estate agent for a price of $100,000. The plaintiff was to have the conduct of the sale. This order was not obeyed.
(Page 7)
- The real estate agents sign was pulled down. Ms Baker said that her children did that, but I consider it was done with her approval. She prevented the quick sale of the property, although no doubt the price set was too high. On 8 December 1999 Ms Baker, through her solicitor, offered to purchase the plaintiff's interest in the property for 50 per cent of valuation. That offer was accepted by the plaintiff, through his solicitor. I should add that both parties had solicitors acting at that time. The defendant was required to pay $43,000. Settlement was to take place on 18 January 2000. It did not take place as the defendant was unable to raise the money. On 19 April 2000 I ordered that the defendant deliver up possession of the property within 28 days to the plaintiff in order that he could sell the property. I fixed the reserve price at $86,000. I ordered the defendant to pay interest to the plaintiff at the rate of 6 per cent per annum on the sum of $43,000 from 18 January 2000 until settlement. She was ordered to pay interest because it was her fault that settlement had fallen through and this had delayed the sale of the property to an outsider. Meanwhile, she continued to enjoy the possession of the property. Ms Baker did not give up possession.
17 Mr Stock eventually gained possession of the property about mid-June 2000 (see exhibit 74). On 16 August 2000 Master Sanderson amended the former orders so that the land could be listed for sale at a price of $85,000 with a reserve price set at $75,000.
18 Mr Stock lived in the house for about 12 weeks prior to its sale. It was sold for $79,950 and settlement occurred on 23 October 2000. The vendor's settlement statement is as follows. The words in square brackets have been added by me.
"VENDOR'S SETTLEMENT STATEMENT
Mr Michael Stock
9 Fordham Drive
SWANVIEW WA 6056
RE: SALE OF 240 STREICH AVENUE, ARMADALE M STOCK & MS BAKER to HH HADJIPANAYI
Settlement Date - 23 October 2000 - (250/365 days)
Sale price 79,950.00
Less deposit 100.00
Purchaser's proportion of
rates and taxes:
(Page 8)
- Shire rates $632.00
Water rates $485.50
Land tax $0.00
Debit for Vendor's proportion
of rates and taxes:
Shire rates 1,979.71
Water rates 2,588.40
Total paid at settlement *76,047.32
__________________________________
TOTAL $80,715.43 $80,715.43
__________________________________
* Payable by way of bank cheques as follows:-
a) Legal Aid
[plaintiff's criminal trial] $9,144.75
b) C S Gallagher & Co
[defendant's solicitor] $11,198.82
c) Bruce Havilah & Associates
[plaintiff's solicitor] $55,703.72**
** Distributed as follows:-
i) Water Corporation (water consumption) $15.35
ii) Ferguson Hartree Foxwhite
(agent's commission) $3,832.50
iii) Supreme Court
[payment into court] $25,927.93
iv) Ian Weldon (counsel's fees)
[plaintiff's counsel] $1,650.00
v) Michael Stock $16,618.79
vi) Bruce Havilah & Associates
[plaintiff's solicitor]
(File no 00493 - Supreme Court action) $6,762.65
(Page 9)
- vii) Bruce Havilah & Associates
[plaintiff's solicitor]
(File no 00931 - property settlement) $896.50"
19 I heard evidence from a number of witnesses. I consider that the plaintiff was a truthful witness and gave his evidence in a straightforward manner. I also considered Mr Peter Murfit and Mrs Daphne Murfit were truthful witnesses. The defendant, Maree Baker, got angry and emotional in the witness box under cross-examination. She had great difficulty concentrating on the questions being asked. Indeed, the questioner had difficulty getting a question out without being interrupted by her. She later apologised to the court for her behaviour. Nevertheless, I consider that she was a witness of truth, and, where her evidence conflicts head on with that of Mr Stock, I have resolved the conflict with regard to where the onus of proof lies and on the probabilities of the situation.
20 I turn now to consider the sale of the two Port Hedland properties and whether any money from the proceeds of those sale was misused by Ms Baker. The parties had agreed to sell both properties. Lot 5776 registered in the plaintiff's name was sold on 16 March 1996 for $110,000. After payment of the costs of sale etc, the sum of $102,498.55 was paid into the plaintiff's Commonwealth Bank account. The parties also agreed that Lot 5231 Port Hedland, the 9 mile property, was to be sold. It was sold for $16,000 to a Mr and Mrs Dawson and settlement occurred on 19 June 1996. The net proceeds of sale were $14,257.85 plus $500 paid later and these two sums were paid into the defendant's Commonwealth Bank account.
21 The plaintiff suspects that the price fetched for the sale of the 9 mile property was $73,500. Various conveyancing documents have been produced to me and I consider they reveal the true story. The contract of sale has been produced. It was signed by Mr and Mrs Dawson, the purchasers, on 30 April 1996 and signed by Ms Baker as the vendor on 1 May 1996. The purchase price is there stated to be $16,000. The improvements on the property are described as "fences, sheds, ablution block, septic system and all fixtures and fittings". I point out that there was no house on the block and that the terms of the lease were that this property was to be used for the stabling and paddocking of horses. The conduct of sale was subject to finance approval within 28 days and the sum sought to be raised was $16,000. The plaintiff has obtained a copy of the contract of sale which is not signed by Ms Baker. The fact that it is not signed by her is of no consequence because I also have a signed copy.
(Page 10)
- I also have a transfer of land for the same property from Ms Baker to Mr and Mrs Dawson. The consideration is there stated to be $16,000. The document is dated 13 June 1996 and it bears a stamp duty endorsement:
"INSTRUMENT DATED 1/5/96 $280 VAL $16,000.00 CHTLS 0.00 VGO NO 33624710 COMMISSIONER OF STATE TAXATION."
" ... security being 'M' dated 11.6.96 stamped $241.50 to secure $73,500.
This instrument further secures the same money to ANZ ... (section 87) $ NIL $73,500
Date 19 June 1996 [signed] ? Magee
Australia & New Zealand ...
23 The third reference to $73,500 on the mortgage is on p 2 of the document, and reads as follows:
"COLLATERAL SECURITY SCHEDULE
Stamped to Secure
Date of Nature of Parties to the document Primary Collateral Total
Document document Duty Duty
23/6/95 Mortgage Dawson KP/AE and 73,500
ANZ
24 In the first, partly obscured, stamp duty endorsement the reference to s 87 may well be a reference to s 87 of the Stamp Act 1921 (WA) which is headed "Collateral, additional, or substituted securities" and sets out,
(Page 11)
- inter alia, how stamp duty is to be calculated when there are two securities, one collateral to the other, securing the same moneys.
25 Another document produced to me is a mortgage of Port Hedland Lot 2258, being the whole of the land in Certificate of Title Volume 1333, Folio 965. That is a mortgage from Mr and Mrs Dawson, both of 49 Stanley Street, South Hedland, to the ANZ Bank dated 23 June 1995 and is the mortgage referred to in the collateral security schedule to the mortgage of Lot 5231. That mortgage was registered F927735M on 14 July 1995. That mortgage, which I consider is most probably of their home in Stanley Street, South Hedland, does not state the principal sum secured. Under the heading "Principal Sum Secured" is a reference to "see page 2" and p 2 does not state the amount. The mortgage bears a stamp duty endorsement which is partly illegible. I can read part of it:
"WA Stamp Duty $187.50 paid ... security for ... $60,000 12 July 1995."
26 It is clear from these documents that Mr and Mrs Dawson wanted to borrow $16,000, or thereabouts, to purchase Lot 5231 in 1996 and the bank insisted on a collateral mortgage, meaning that both properties would be secured to the bank for the maximum amount loaned to them. This is common bank practice. It means that if there is any default in any mortgage payment, the bank can choose whichever property, or both, if necessary, it likes to sell to recover the money. It was thus necessary to up-stamp the existing loan of $60,000 to $76,000. It must have turned out that in fact the Dawsons did not need to pay stamp duty on the full $76,000. Possibly, some principal had been paid off the 1995 mortgage over the property in South Hedland so that it was only necessary to secure $73,500. I consider the plaintiff's suspicions that more than $16,000 was paid for the 9 mile property are totally unfounded. I note that he had purchased the property in April 1993 for $2,000 which is a good indication of its then value. I note, too, as previously stated, that it was leasehold and the terms of the special lease said that it could not be used for any purpose other than stabling and paddocking of horses without the prior approval in writing of the Minister for Lands. Mr Stock's fixed improvements on the property - the fences, the sheds, the ablution block and septic system, plus some inflation, would justify the sale price of $16,000; but not beyond that. I consider that the chattels on the property, the building materials and machinery, had no real value. If they had significant value, why did he not arrange to sell them, or remove them, to a safe place when he left Port Hedland to live in Perth?
(Page 12)
27 I turn now to consider how Ms Baker spent the money received from the sale of the two houses. I note that she had Mr Stock's approval to sell the two properties and she had his authorisation to operate on his Commonwealth Bank account. He gave her a keycard to enable her to operate on the account and she was told to spend the money on the purchase of a new home in joint names and to pay off bills and generally for the benefit of the family. I consider he gave her express authority to spend $7,000 towards the purchase of a better car. This was done as a gift, but I note that in earlier years she had contributed significant sums towards his purchase of a Harley Davidson motor bike. I note, too, that in the spending of the moneys from the two sales in the period of March to June 1996 the relationship between the two parties was good. The new man had not appeared. I consider there was no particular reason or motive why Ms Baker should misuse the money.
28 The written records of how Ms Baker spent the money are not particularly good. Mr Stock has produced the bank statements from his account and they show that, as previously stated, that all the money was gone by the end of May 1996. Ms Baker has not produced the bank statements from her account, but I suspect they, too, would show that all proceeds from the sale of the 9 mile property were gone by, say, mid July 1996. Ms Baker did not have a cheque book on either account, so there are no cheque book stubs to be perused. Mr Stock's account was a keycard savings account, so the sums were withdrawn in cash via the keycard. In some cases the withdrawal just states a sum, for example, "22 March 1996 withdrawal $2,000". In other cases the withdrawal states more about what the withdrawal was for, for example, "18 March Caltex, Canning Vale $5.00". I assume that was for fuel or cigarettes. Another example is "19 March Ampol, Rivervale $50". That could be for fuel and possibly some cash if the service station had an EFTPOS facility. On the same date is an entry "Newburn Deli, High Wycombe $10.75". That could be for minor food items.
29 Ms Baker has produced some receipts for some of the payments. A number of receipts for some of the larger amounts are missing. I do not blame her for that. Relationships between the parties were good at the time and there was no particular reason why she should keep every receipt. Ms Baker has been examined and cross-examined on the larger withdrawals from Mr Stock's account and I have attempted to match receipts and invoices against withdrawals. Before summarising my conclusions on the withdrawals I would like to mention the deposits in the account, most of which have been raised by Mr Stock in his statement of claim. There were three deposits for rent, as follows:
(Page 13)
- "2 January $1,146.31
2 February $140.82
1 March $117.31"
- These sums are stated as rent in the bank statements. They are rents received from the renting out of the Trigg Street property in Port Hedland. They are the net rents, after the real estate agent deducted commission and expenses.
30 I have already mentioned the large deposit of $95,000 on 15 March and $7,498.55 on 22 March, being the proceeds of the sale of Trigg Street. A further deposit of $1,066.51 appears on 11 April. This was money refunded by the real estate agent on the settlement of the purchase of 240 Streich Avenue. The settlement agent had retained more money than was necessary to complete the settlement and this was refunded. 11 April 1996 was the date of settlement of that property (exhibit 32 refers). A deposit of $471.95 appears on 27 May. That was the refund of the tenancy bond for the family's occupancy of 21 Kookaburra Crescent, High Wycombe (exhibit 35 refers). The final deposit of $183.66 on 2 August 1996 remains a mystery. Ms Baker was unable to say what this was for. I am satisfied that whatever it was for, it was not for the sale of tools, to which I will refer later.
31 I consider the minor withdrawals from the account in the period March to May 1996 were for living expenses and were reasonable. The major withdrawals were:
5 March $1,000.00
20 March $476.60
22 March $2,000.00
" $1,000.00
25 March $400.00
2 April $80,943.20
10 April $2,000.00
17 April $1,777.00
19 April $7,000.00
" $1,000.00
30 April $400.00
10 May $400.00
$700.00
- 15 May $1,500.00
(Page 14)
32 I consider the withdrawal on 5 March of $1,000 may have been partly for the payment of rates owing on Port Hedland Lot 5776. $640.50 was paid by Ms Baker for these rates on 12 March 1996 (exhibit 59).
33 I am unable to say what the withdrawal of 20 March of $476.60 was for. It may have been for her Myers bill of about that amount (exhibit 75).
34 The withdrawal of $2,000 on 22 March was for the payment of legal fees for Mr Stock. The sum was paid to Minter Ellison on 22 March, see receipt (exhibit 41). I consider the $1,000 withdrawal on the same day was to pay for the deposit on the purchase of 240 Streich Avenue. $1,000 was paid to Armadale Real Estate on 27 March 1996 and a receipt for that is found at exhibit 52.
35 I am unable to say what the withdrawal of $400 on 25 March was for.
36 The withdrawal of $80,943.20 on 2 April was for the purchase of the house at Streich Avenue.
37 I note that $2,000 was withdrawn on 10 April, $1,777 was withdrawn on 17 April and $1,000 on 19 April $1,000. I can consider these three withdrawals together. I consider these three withdrawals were used in some way on improvements to the house at Streich Avenue. Settlement occurred on 11 April. Before moving in she had some repairs done. She had the gas put on. Previously the house had only electricity. I note that $1,880 was paid on 20 April for a new pool fence (exhibit 44). Ms Baker considered the lack of a fence, or the old fence, dangerous and that a child was likely to drown there. She said approximately $120 more was spent on shrubs for landscaping around the area. I accept that. I accept her general evidence that right at the outset, and prior to moving into this house, she spent money on painting, lino and good quality marine carpet. She said the latter carpet cost about $2,000, which I accept, although she has no receipt. She paid it in instalments. The bank statement shows a withdrawal on 10 April of $147.90 to Handyway Colortone. This is a paint store and she says the money was used for paint, which I accept. The carpets were steam cleaned on 9 April for $79 (exhibit 45).
38 On 10 April she paid $250 rent on the Kookaburra Crescent house and a further payment of $250 rent on 19 April (exhibit 42 - two receipts).
39 The $7,000 withdrawn on 19 April was for the deposit paid on the purchase of a Ford Fairlane for Ms Baker. It was a secondhand car, the
(Page 15)
- full purchase price being $20,000. The balance was to be paid off on terms. As previously stated, I consider its purchase was authorised by Mr Stock.
40 The withdrawal of $400 on 30 April was for the purchase of wallpaper which costs $378.60. Exhibit 57 supports this.
41 I am unable to say specifically what the two withdrawals of $400 and $700 on 10 May were for. I assume they were for living expenses. I note that on 11 May Ms Baker had Galaxy TV connected which cost $100 (exhibit 89).
42 As previously stated, Ms Baker received into her Commonwealth Bank account the net proceeds of the sale of 9 mile of $14,257.85 on 19 June 1996. She has produced no bank statements for this account. As previously stated, it was a keycard account, so there are no cheque butts available. She has, however, produced a number of receipts and dockets which support her statement of how she spent the money. Exhibit 68 is a list of expenditure. She says she spent $6,800 on the manufacture and installation of the kitchen cupboards for a new kitchen. The kitchen was done by Cheapa Pines Pty Ltd. The cupboards were installed on 8 June 1996 (exhibit 86). She has no receipts for this, but I consider that may well be a reasonable expenditure on kitchen cupboards. She paid $2,756 on 19 June for whitegoods. Exhibit 43 refers. They were a Chef gas oven, a Chef 4-burner gas hotplate, a Chef rangehood, a Hoover 5 kg automatic washing machine, and a Westinghouse refrigerator. She paid $700.10 to Minter Ellison for legal fees on 28 June 1996. The receipt is found at exhibit 41. She has receipts and dockets for the following items:
$358.45 Water Rates
$385.00 Kelarma Furniture paid 19 June
$120.00 Zamels (jewellery)
$200.00 Mirror - paid 19 June
$165.00 Tiler
$35.00 Pest control
$165.00 Tiler
$35.00 Electrical
$116.00 Tradelink
$160.00 Tile Centre
$147.90 Colortone (paint)
$160.00 Sofa bed
$77.95 Colli & Son (hardware)
$158.00 Lock and key service
(Page 16)
- $593.00 Bedshed (beds - children)
$114.35 Final electricity bill - Kookaburra Crescent
(exhibit 36)
43 She said she had bills to pay. She said she paid $951.28 for outstanding bills at High Wycombe. In addition, she said she paid $500 for rent at High Wycombe. She owed $1,030 on a phone bill (exhibit 80 - a letter from her dated 21 April 1996). She says she paid this off (exhibits 37 and 68). She said she paid off an old Brambles bill for $536.95. She bought a television for Mr Stock in prison for $260. In exhibits 37 and 68 she has listed her expenditure. This list was prepared later, in 1997 I think, but I regard it as roughly accurate. I say "roughly" because in some cases the exhibits show she has items in the wrong list. For example, in exhibit 37, which is a list she prepared of expenditure from "Michael's settlement", that is from the sale of Trigg Street, she has $700 paid to the lawyer and $3,000 paid for kitchen appliances. The $700 paid to Minter Ellison was paid on 28 June (see receipt exhibit 41), when Mr Stock's money had gone. Clearly, it came out of the sale of her property (9 mile). Similarly, with the kitchen appliances, the docket (exhibit 43) shows a deposit of $100 paid (I think from Mr Stock's settlement) on 30 April 1996 and $2,656 paid on 19 June. Mr Stock's money had gone by June. The sum of $2,686 must have come out of the proceeds of sale of 9 mile. It matters little though because I think that, taken together, the two lists show reasonably accurately where the money from the two sales went.
44 I consider Ms Baker's expenditure, in relation to both bank accounts, not excessive. I am aware that the sums spent in the short period total about $36,000 which is a large sum. Nevertheless, there were bills to be paid and Ms Baker made a serious and sensible attempt to upgrade the newly purchased house. I am satisfied that she did that with the authority of Mr Stock. The idea was to purchase and upgrade and furnish the home so that it was a decent comfortable home for the parties and the children. I do not consider that any of the expenditure, taking as singularly or looked at collectively, was excessive or exceeded the general authority which Mr Stock had given to her to spend his money.
45 I now turn to Mr Stock's claim against Ms Baker in relation to tools and various chattels. I am satisfied on the whole of the evidence that Mr Stock made no proper arrangements about the sale of chattels left on the 9 mile property when they left Port Hedland to come to Perth to live. I am satisfied, too, that the property left there had no great value and that by leaving it there he, or they, abandoned it and he has no claim against Ms Baker for that property. She did sell a tractor left there for $2,000, but
(Page 17)
- I accept her evidence that that money was used to pay off bills owing by them.
46 As to the chattels transported to Perth, I do not consider the defendant can be blamed for the two break and enters which occurred while the transportable was stored on a friend's property at Forrestfield. That was the plaintiff's choice to put the transportable there. I also accept the defendant's evidence that what was left after the break and enters was transported to Streich Avenue, after that property had been purchased, and was given back to Mr Stock shortly after his release to prison with the exception of certain tools. In that connection, Ms Baker, being short of money sold certain equipment and tools to her step-father Mr Peter Murfit. This included a 9 KVA Dunlight-Lister generator (colour green) for which he paid $500 and a smaller 1.9 KVA Honda generator (colour red), a Metabo 9 inch grinder, a Metabo drill, a Makita circular saw and some electric cable. For these items he paid $650, a total of $1,150. I accept Mr Murfit's evidence in preference to that of Mr Stock on these matters that the price paid was a fair one and that the large generator did not work.. The large generator worked in the sense that the motor ran but did not generate electricity and thus was useless. Mr Murfit said the 9 inch grinder was in very bad repair. I also accept his evidence that he did not particularly want these items. He had his own tools and only bought them to help out Ms Baker who was short of money. I also accept his evidence that he paid a fair sum for them. I reject Ms Baker's evidence that she was a part owner of these tools. I consider that the parties were never really in partnership in Port Hedland, despite having some signs made - "M & S Demolitions" ("S" standing for Suzette). I consider the tools, at all times, belonged to Mr Stock as his personal property. They were very important to him. They were his tools of trade. They enabled him to function as a house removalist and he had given her no authority to sell them. His authority to operate on his bank account and any other authority he had given her, for example, to sell the two properties, did not extend to these tools. I consider that the defendant must refund to Mr Stock the $1,150 received for these tools. It matters not that she spent the money from these tools on paying bills and normal living expenses. The key fact is that they were his tools and he had not given her authority to sell them.
47 The plaintiff has claimed a sum by way of compensation for his exclusion from the property at 240 Streich Avenue. I consider this claim is well-founded. The property was purchased on 11 April 1996 with the proceeds of sale of the Trigg Street property in Port Hedland. The Streich Avenue property was purchased in their joint names but all the money
(Page 18)
- came from Mr Stock. It was intended that the parties and the two children would live together as a family on his release from prison. That did not happen. On his release in January 1997 the defendant refused to permit the plaintiff to live there. I can understand that, in the sense that the relationship had broken down and Ms Baker had found another man at that time. Nevertheless, in terms of a property dispute, he was a half owner of the house but was excluded from the house. The plaintiff has claimed a reasonable commercial rent for the property. From 30 January 1997 rent was a $110 per week and I think he seeks half of that as compensation for his exclusion from the residence. Ms Baker says that she was paying all the rates and taxes on the house. I consider that is only partially true. It will be seen from the settlement statement, which I quoted above, that shire rates of $1,979.71 and water rates of $2,588.40 were apparently accumulated and were paid out of the settlement moneys. They were thus paid, in effect, by the parties equally. She may have paid other rates on top of that, but she certainly did not pay all the rates. She has also complained that Mr Stock has not paid maintenance for his child, Jessie, apart from a payment of $156, since his release from prison in January 1997. That may well be true, but I am not sitting here as a judge deciding maintenance. That is outside my jurisdiction. As I understand the current maintenance laws, family support maintenance is based on the father's income and I do not know if Mr Stock has had sufficient income over the last few years to be required to pay maintenance. It appears he has had some work but has been largely out of work in that period. In terms of capital expenditure, he has been reasonably generous towards Ms Baker and their child, Jessie. As has been seen, approximately $36,000 (less his legal bills) from the sale of the two Port Hedland properties was spent on payment of bills, upgrading of Streich Avenue and living expenses for Ms Baker and the children in the middle of 1996. Ms Baker and the children enjoyed the benefits of that money. She enjoyed the benefit of the upgraded kitchen, the new carpet, the pool fence, the new white goods and so on. He did not. He was in prison and when he came out he was excluded from access to the house. It is just bad luck for both the parties that despite the repairs and improvements to the Armadale property, it did not appreciate. They bought it for $79,000 in April 1996 and sold it for $79,950 in October 2000. A real estate agent, Mr Lesley Vost, who works in the Armadale area, said he was not surprised by this. There has been little capital gain in the Armadale area in recent years.
48 Mr Stock was excluded from the property between, say, 1 February 1997 and mid-June 2000, which is approximately when he re-occupied the
(Page 19)
- premises under a court order prior to selling it. That is a period of 40.5 months. I consider that a fair commercial rent for the property over that period would be $110 per week. The plaintiff should be compensated to the extent of $55 per week for his exclusion from the house. That comes to approximately $157 per calendar month. I consider that he should be compensated for his exclusion from the house for 40.5 months x $157 = $6,358.50.
49 I consider that the plaintiff should get the costs of this action. He succeeded in the interlocutory stages in obtaining an order for the sale of the house at Streich Avenue. A number of amendments were necessary to that order and, in most all of those cases, his application was opposed by the defendant. As previously stated, the defendant had no legal basis for opposing an order for the sale of the property and her opposition caused Mr Stock to incur legal costs which were really unnecessary. I refer to the time when he was represented by a solicitor. A number of those court orders ordered the defendant to pay the plaintiff's costs and in one instance, an order of mine made on 19 April 2000 ordered those costs, including costs reserved on 5 April, to be paid on an indemnity basis. On 16 August 2000 Master Sanderson ordered the defendant to pay the plaintiff's costs of, and incidental to, that application fixed at $350. In an order made by me on 28 February 2000 the defendant was ordered to pay the plaintiff's costs of, and incidental to, the application, including costs of the appearance on 20 December 2000 and 18 January 2001, but excluding costs of 13 December 2000 in any event. On an early occasion, on 22 November 1999 which was Master Sanderson's initial order to sell the land, he ordered that the costs of the application and this action to date be reserved. I consider that those costs should go to the plaintiff as he has had a win, in the forensic sense, in this case. In addition to obtaining orders for the sale of the property, he has also obtained an order of damages for the sale of his tools of $1,150 and of compensation for exclusion from the house of $6,358.50. I therefore consider that the costs of the action overall should be the plaintiff's costs of the action should be paid by the defendant. Bearing in mind the one costs order which was fixed on an indemnity basis and the costs order where the sum was fixed at $350, I note that the total costs paid by the plaintiff to his solicitor in this action were to Bruce Havilah & Associates - $6,762.65 and to Mr Ian Weldon of counsel - $1,650, a total of $8,412.65. These are solicitor/client costs. A party can normally only recover from another party costs on a party/party basis which are less than solicitor/client costs. Allowing for the one order of indemnity costs and the one fixed costs order and for the party/party costs for the rest, I consider $6,500 a fair
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- assessment of the plaintiff's costs which should be paid by the defendant. They were costs incurred up to the date of trial. She must also pay the plaintiff's witness' expenses which I mention later.
50 Mr Stock has claimed interest on damages awarded. Interest lies in the discretion of the court and is normally awarded at the statutory rate of 6 per cent per annum. I will allow it on the compensation for exclusion from the house and on the damages for sale of tools. The compensation for exclusion from the house occurred over a 40.5 month period from 1 February 1997 to mid June 2000. I will calculate interest on the full amount from the mid point, say, 1 December 1998 to today = 2 years 7-1/2 months = $1,088.
51 The plaintiff is also entitled to interest at the same rate on damages on the sale of his tools. He should have got them back on his release from prison. I will allow him interest on $1,150 from 1 February 1996 to today, say 4 years 5-1/2 months at 6 per cent per annum = $308.
52 The total interest is $1,088 + $308 = $1,396.
53 The total sum paid out at the settlement of the sale of 240 Streich Avenue, after deduction of rates and taxes was $76,047.32. From that must be deducted other expenses of sale viz:
1. Ferguson Hartree Foxwhite $3,832.50
- (agent's commission)
2. Bruce Havilah & Associates $896.50
- (plaintiff's solicitor property settlement)
3. Water Corporation $15.35
- (water consumption) ________
$4,744.35
NET PROCEEDS OF SALE $71,302.97
55 The plaintiff is to receive additionally from the defendant:
1. Interest awarded on 28 February 2001 $1,986.24
2. Compensation for exclusion from house $6,358.50
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- 3. Damages for sale of tools $1,150.00
4. Legal costs of the action $6,500.00
5. Interest $1,396.00
$17,390.74
The plaintiff is entitled to receive half of the
net proceeds of sale $35,651.48
Plus $17,390.74
$53,042.22
56 The plaintiff is entitled to receive $53,047.22 from proceeds of sale and/or from the defendant, less sums already received by him, or by others on his behalf, viz:
1. Paid to Legal Aid $9,144.75
(criminal trial)
2. Ian Weldon $1,650.00
(plaintiff's counsel's fees)
3. Michael Stock $16,618.70
(paid on settlement)
4. Bruce Havilah & Associates $6,762.65
(legal fees - this action)
5. Interest paid out per Master Bredmeyer's
order of 28 February 2001 $1,986.24
$36,162.34
Plaintiff entitled to receive net $53,042.22
- $36,162.34
$16,879.88
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57 I will award judgment for the plaintiff against the defendant for this sum.
58 I will order the sum of $16,879.88 to be paid to the plaintiff.
59 Mr and Mrs Peter Murfit were summonsed by the plaintiff to give evidence. They have claimed witness' expenses. Each was not required to attend on two days. Mr Murfit has claimed expenses of $606, including loss of wages of $200 per day, which I consider reasonable. Their vineyard, Avonbrook Vines, at Clackline sells door sales and had to close for a day whilst they were both attending court. Mrs Murfit's claim is for $401 expenses, including $200 loss of income for one day and $100 loss of income for half a day, and $187 mileage etc. She spent a day and a half at the court. I think her claim excessive. She told me her wages from the business were $200 per week. I will allow her $80 loss of wages instead of $300, plus $187 mileage, meals and parking, a total of $267.
60 I will order payment out of court to Mr Murfit of $606 and Mrs Murfit $267 as witness' expenses. The plaintiff's witness' expenses are part of his costs of the action. I have awarded him the costs of the action against the defendant. I have quantified these above. But, in addition, he is entitled to recover out-of-pocket expenses such as witness' expenses. I will order the expenses of Mr Murfit $606 and Mrs Murfit $267 to be paid out of the balance of moneys held in court for the benefit of the defendant.
61 After payment to the plaintiff of $16,879.88 and of the sums of $606 to Mr Murfit and $267 to Mrs Murfit for witness' expenses, the balance of the moneys held in court are to be paid to the defendant.
62 In summary, the moneys held in court are to be paid:
to the plaintiff $16,879.88
to Mr P Murfit $606.00
to Mrs D Murfit $267.00
- and the balance is to be paid to the defendant.
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0
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