Sutcliffe v Heathcote
[2008] VSC 224
•20 June 2008
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 9556 of 2005
| SUZANNE LOUISA SUTCLIFFE (NEE SHEPPARD) | Plaintiff |
| v | |
| BERNARD DAVID HEATHCOTE (who is sued in his capacity as the Executor of the Will and Trustee of the Estate of ROBERT DIGBY HALIBURTON SMITH SHEPPARD, deceased) | Defendant |
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JUDGE: | HARPER J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 18 & 20 JUNE 2008 | |
DATE OF JUDGMENT: | 20 JUNE 2008 | |
CASE MAY BE CITED AS: | SUTCLIFFE v HEATHCOTE | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 224 | |
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Real Property – Alleged oral gift of property by the testator during his lifetime – No written evidence of gift – No execution of transfer of land – Land remained registered in the name of the testator - Whether executor estopped from denying the validity of the gift.
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APPEARANCES: | Counsel | Solicitors | |
| The Plaintiff appeared in person | |||
| For the Defendant | Mr R. Wells | Ellinghaus Weill | |
HIS HONOUR:
This is an application commenced by writ issued on 25 November 2005. The plaintiff, Suzanne Louisa Sutcliffe, or, as she prefers to be known, Suzanne Louisa Sheppard, claims that her father, who died on 13 June 2004, made a gift to her of unit 5, 821 Punt Road, South Yarra during his lifetime.
By paragraph 5 of the statement of claim, the plaintiff alleges that the gift was made in 1988, and was made orally when her father told her that he was giving her the unit without charge. No direct evidence has been given of the words used by the deceased in making the gift, but the plaintiff has sworn that she sincerely believes that it was her father's wish that the unit be given to her. I accept that the plaintiff does believe that her father intended that she have the unit by way of gift. That is not to say that I accept that in fact a gift was effected.
The evidence is, in my opinion, such as to preclude my being satisfied on the balance of probabilities that the plaintiff's father did in fact make a gift of the unit to her. There is evidence that the plaintiff and her son occupied the unit from June 1988 and, upon her re-marriage in December that year, with her husband. They moved from the unit in June 1991. There is evidence that during that period no rent was paid to the plaintiff's father or anybody else in respect of that occupation. There is evidence that following the plaintiff and her family leaving the unit and moving to a property in Domain Road, South Yarra, the rent of the property, it being then leased to tenants, was received by her. There is also evidence that the plaintiff gave her father $10,000 in circumstances which she says amounted to an attempt by her to recompense her father for his generosity in making over the unit to her by way of gift. When the $10,000 was paid, the plaintiff's father was, according to her evidence, in financial difficulty. And, while not resiling from the fact that the unit had been made over to her by way of gift, she resolved to pay for it nevertheless. Hence the payment of $10,000 which, however, was not followed by any further payment by way of purchase price or otherwise.
The plaintiff alleges that during her occupation of the unit, and in particular in 1989, she effected works on it. Approximately $30,000 was spent in 1989, as the plaintiff alleges, on paying for extensive renovations, including the installation of a new kitchen with new kitchen appliances, and other works. The plaintiff further alleges, in paragraph 8 of the statement of claim, that in 1994 she paid for the installation of a new hot water system. She claims that by these means she is entitled to put forward an estoppel by which the present defendant, Bernard David Heathcote, the executor of the estate of the plaintiff's father, is estopped from denying the validity of the gift.
In submissions put in answer to the estoppel point, Mr Wells, on behalf of the defendant, asked me to accept that the rent‑free occupation of the unit between 1988 and 1991, or thereabouts, and the receipt of rent thereafter, was sufficient to offset any amounts which might have been paid by the plaintiff, such as to give rise to an estoppel. In my opinion, the paucity of evidence relating to the expenditure by the plaintiff of the money alleged to have been spent, and the evidence in relation to the benefits which the plaintiff received by way of rent or rent waiver, negates any claim that might otherwise have been available by way of estoppel.
The particular difficulty, above any others which the plaintiff faces in this proceeding, is one that rests squarely on the relevant law. It is, and has been established for very many centuries, as the law that an interest in real property cannot be effectively transferred unless that transfer is evidenced by an instrument in writing. Here there was no such instrument. None is pleaded. The evidence clearly points to the gift being purely oral, and indeed it is pleaded as such in paragraph 5(a) of the statement of claim. That, I think, is an insuperable hurdle for the plaintiff. Even were I to accept that her father had made a gift of the unit to her, the fact that the gift was not evidenced by writing, and that the property remained in his name until his death and, indeed, until it was transferred to the present defendant as his executor, is, it seems to me, an insuperable barrier to the success of this claim.
Section 126 of the Instruments Act binds this court. So far as is presently relevant it provides that:
An action must not be brought to charge a person upon ... a contract for the sale or other disposition of an interest in land unless the agreement on which the action is brought, or a memorandum or note of the agreement, is in writing signed by the person to be charged.
In this case the person to be charged was, of course, the plaintiff's father. There is no note or memorandum such as to comply with s.126 in existence. In those circumstances, the Instruments Act requires that no action be brought seeking the transfer by order of the court of the land the subject of an oral gift.
The courts have in a large number of cases examined the position of gifts that have been clearly established on the evidence, but have not been perfected by the, in the case of land under the Transfer of Land Act, registration of that land. The unit here is under the Transfer of Land Act, and the cases that apply to imperfect gifts of such land are binding upon me, as is the legislation to which I have referred. Those cases make it plain that the courts will give effect to a gift in circumstances where the donor has done everything that he or she can do to give effect to the gift, although the gift has not, for reasons outside the donor's control, been perfected. That is not this case. There has been no action taken by the plaintiff's father that could in any way be said to have perfected the gift to the extent within his power to do so.
As Mr Wells has pointed out, at the very least a transfer signed by the plaintiff's father, and lodged either with the plaintiff or with the plaintiff's agent, or, of course, with the Titles Office, would be necessary to establish the plaintiff's present right were her interest not registered. Of course her interest is not registered, but she does not have an instrument of transfer signed by the donor, still less one which has been transmitted to her or her agent, or to the Titles Office.
Accordingly, I am compelled by the law to hold that, even if there were a gift in this case, that gift is not one to which the court can give effect. For that reason, the claim must be dismissed and there must be judgment for the defendant.
I should add, given the nature of the case made, or sought to be made, by the plaintiff, and in the light of the evidence which has been called by her, that while I believe her evidence, that she in turn believed that her father had made a gift of the unit to her, I also accept the evidence of the defendant, Mr Heathcote. He impressed me as a witness of truth. His credit was attacked on a number of bases, none of which I accept.
The principal attack was mounted in relation to an entry in the defendant's diary which he in an affidavit stated was made on 30 June 1991. I find that the reference in the affidavit of the defendant was an innocent mistake for "13 June" that year, his diary having in fact an entry against that date, which was put to him as, and which he himself put forward as, evidence of a conversation between himself and the plaintiff's father. As I understand it, that conversation took place in person at a meeting between the two, rather than by, for example, telephone. At all events, in that conversation Mr Heathcote was, I accept, told by the plaintiff's father that he, the donor, or purported donor, did not want the unit to go to the plaintiff.
There is some question about the plaintiff's father's then mental capacity to make decisions of the kind which involve the transfer of real property. Whether or not the plaintiff's father was then able to make properly considered decisions about such matters as the unit in question, I accept that he did tell Mr Heathcote that he did not wish the unit to go to his daughter.
I also accept that, in writing to the plaintiff's then husband, it did not occur to Mr Heathcote that the question of the ownership of the unit might be in issue. He had accepted, in my view reasonably, that the unit was owned by the plaintiff's father. He was then, I accept, not aware of any claim that the plaintiff might have to the unit as being a gift to her from her father. In those circumstances, the terms of the letter to the plaintiff's husband are, in my opinion, entirely explicable and consistent with the general evidence given by Mr Heathcote. I accordingly do not accept that his credit was in any way adversely affected by the evidence surrounding that letter, or the relevant passage in Mr Heathcote's affidavit, or in the diary entry which he made against 13 June.
For those reasons, there must, I think, be judgment for the defendant; and unless I am persuaded to the contrary, that must be a judgment with costs.
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