Trouton v Trouton

Case [2022] QSC 210

SUPREME COURT OF QUEENSLAND

CITATION:

Trouton v Trouton & Another [2022] QSC 210

PARTIES:

PATRICIA ANN TROUTON

(plaintiff)

v
NEIL SIMON TROUTON

(first defendant)

LEANNE TROUTON

(second defendant)

FILE NO/S:

BS No 6965 of 2017

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

30 September 2022

DELIVERED AT:

Brisbane

HEARING DATE:

13 September 2021 – 30 September 2021; 6 December 2021; 7 December 2021; 16 December 2021

JUDGE:

Williams J

ORDER:

1.     I will hear further from the parties as to the appropriate orders in light of these reasons and costs.

2.   Further, the parties should agree directions for:

(a)     the provision of draft agreed orders, or if orders cannot be agreed, for the provision of competing draft orders and brief submissions in support; and

(b)     the provision of brief submissions and any supporting material in respect of costs.

CATCHWORDS:

REAL PROPERTY – TORRENS TITLE – INDEFEASIBILITY OF TITLE – EXCEPTIONS TO INDEFEASIBILITY – FRAUD OR FORGERY – where a Form 1 Transfer was executed under an enduring power of attorney – where the enduring power of attorney had been revoked due to the death of the donor – where the Form 1 transfer was registered with the Registrar of Titles – where the plaintiff alleges fraud by the registered proprietors – where the plaintiff alleges she did not know what document she was signing – whether the Form 1 Transfer was invalid – whether the deficiencies in the Form 1 Transfer amount to fraud by the registered proprietors

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – DOCTRINE OF PART PERFORMANCE – WHAT ACTS CONSTITUTE PART PERFORMANCE – ACTS CONSTITUTING PART PERFORMANCE – where the defendants allege that there is an agreement for the sale and purchase of the property – where the plaintiff alleges no such agreement exists – whether there is an agreement – whether the agreement is written or oral or partly written and partly oral – where the defendants acted in reliance of the agreement – whether the defendants’ conduct amounts to part performance of the agreement

PROCEDURE — CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS — FORM OF PLEADING – MATTERS TO BE PLEADED SPECIFICALLY — where there is a requirement for fraud to be pleaded and particularised — where fraud exception to indefeasibility pleaded under s 184(3)(b) – where the plaintiff alleges exception to indefeasibility under 184(3)(a) and/or s 185(1)(a) of the Land Title Act – where the plaintiff does not specifically plead exception to indefeasibility under s 184(3)(a) and/or s 185(1)(a) of the Land Title Act – whether the plaintiff should be precluded from pursuing a claim under s 184(3)(a) and/or s 185(1)(a) of the Land Title Act.

Land Title Act 1994 (Qld), s 127, s 184, s 185, s 187

Powers of Attorney Act 1998 (Qld), s 44, s 90

Uniform Civil Procedure Rules 1999 (Qld), r 149, r 150

Assets Company Limited v Roihi (1905) AC 176

Australian Guarantee Corp Ltd v De Jager [1984] VR…

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Details
AGLC
Trouton v Trouton [2022] QSC 210
Case
[2022] QSC 210
Decision Date

CaseChat Overview and Summary

In the case of Trouton v Trouton, the plaintiff sought to challenge the validity of a Form 1 Transfer executed by the first and second defendants, which was registered with the Registrar of Titles. The plaintiff contended that the transfer was invalid due to fraud or forgery, as the enduring power of attorney under which the transfer was executed had been revoked prior to the execution of the transfer. The defendants argued that the transfer was valid and that the plaintiff had no basis for her claims. The case raised issues of indefeasibility of title, exceptions to indefeasibility, and the doctrine of part performance.

The court considered whether the Form 1 Transfer was invalid due to fraud or forgery, and whether the deficiencies in the Form 1 Transfer amounted to fraud by the registered proprietors. The court also examined the issue of whether there was an agreement for the sale and purchase of the property and whether the defendants' conduct amounted to part performance of the agreement. The court found that the plaintiff's claim was limited to establishing fraud within the meaning in s 184(3)(b) of the Land Title Act. The court further considered the onus of proof and the standard of proof required for the plaintiff to succeed in respect of the claim of fraud.

The court found that the plaintiff had failed to establish the fraud exception to indefeasibility and that the Form 1 Transfer was valid. The court held that the plaintiff's evidence was inconsistent and unreliable, and that the defendants' evidence was credible. The court further held that there was no agreement for the sale and purchase of the property and that the defendants' conduct did not amount to part performance of the agreement. The court also found that the plaintiff was liable for the repayment of the RAMS facilities secured by mortgage against the Harbut Street Property.

The court ordered that the parties provide draft agreed orders, or if orders cannot be agreed, for the provision of competing draft orders and brief submissions in support, and further submissions and any supporting material in respect of costs. The court will hear further from the parties as to the appropriate orders in light of these reasons and costs.

Orders

Orders of the court

1. I will hear further from the parties as to the appropriate orders in light of these reasons and costs.

2. Further, the parties should agree directions for:

(a) the provision of draft agreed orders, or if orders cannot be agreed, for the provision of competing draft orders and brief submissions in support; and

(b) the provision of brief submissions and any supporting material in respect of costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Accordingly, the plaintiff’s claim is limited to establishing fraud within the meaning in s 184(3)(b) of the Land Title Act.Evidence and onus The onus of proof is on the plaintiff in order to succeed in respect of the claim of fraud. The relevant standard of proof is the civil standard and the principles in Briginshaw v Briginshaw[71] apply.[71](1938) 60 CLR 336. The Briginshaw principles do not change the standard of proof from the balance of probabilities but acknowledge that where serious and grave allegations have been made, there must be “actual persuasion” that the allegation has been established and not be “oppressed by reasonable doubt”. The practical approach is that given the serious consequences, stronger and more reliable evidence must establish a fact. It is necessary at the outset to say something of the witnesses. The submissions that have been made on behalf of both parties highlight the level of distrust between the plaintiff and the first and second defendants, and the wider family. Some of the correspondence in evidence and the submissions are illustrative of the total breakdown of the family relationship. As a consequence, the submissions are often emotive and the choice of language is sometimes, at best, inappropriate and at worst inflammatory. Given the nature of the serious allegations which are in issue in this case, the witnesses did not deliver affidavits or witness statements. Witness summaries were given outlining the evidence which was anticipated to be given by the witnesses. During the course of the hearing, some issues also arose in respect of the rule in Browne v Dunn.[72] Whilst the plaintiff does raise the Browne v Dunn issues, it is recognised in submissions that it is unlikely to have any major bearing on the outcome of this case.[72](1893) 6 R. 67, H.L. In respect of the plaintiff’s evidence, the plaintiff’s submissions are that while her memory was “admittedly imperfect” her evidence on critical aspects was consistent and “unequivocal in evidence in chief” and “unshaken in cross-examination”. It is also submitted that given the length of the cross-examination and the plaintiff’s age, memory lapses must be fairly taken into account. The plaintiff also submits that the Court ought to approach the evidence of the first defendant with particular caution. It is submitted that “his answers were considered and careful, seeking (as it were) to establish in his own mind whether a particular answer would aid or damage his own case”. The plaintiff acknowledges that the first defendant had hearing difficulties which contributed to some delay in providing answers, however it is submitted that this is not sufficient to explain the manner in which he provided answers to questions generally.[73][73]PCS [9]. Similarly, the plaintiff submits that the Court should approach the evidence of the second defendant with caution. It is submitted that her answers were considered, careful and deliberate “again seeking (as it were) to establish in her mind whether a particular answer would aid or damage her case”.[74] It is also submitted that the second defendant’s evidence appeared to be rehearsed.[75] [74]PCS [71].[75]PCS [72].

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The defendants also seek further relief in the event that the property is not re-conveyed to the plaintiff, as I have found in respect of the plaintiff’s claim.Liability for RAMS facilities – declaration and order for repayment The RAMS facilities are loan agreements entered into by the plaintiff and Colin Trouton in respect of monies advanced to them, security for which was a mortgage over the Harbut Street Property. The relevant facilities are the RAMS home loan account number 001367390 and also RAMS home loan account number 001922533. The defendants contend that it was a term of the Harbut Street Agreement that the plaintiff would be responsible for the repayment of any RAMS Facilities secured by mortgage against the Harbut Street Property. I have found such a term. Alternatively, the defendants plead that it was an implied term of the Harbut Street Agreement that the plaintiff would remain liable for repayment of the RAMS Facilities. The defendants contend that such a term is reasonable and equitable, necessary to give business efficacy to the Harbut Street Agreement, obvious and not inconsistent with any express term of the Harbut Street Agreement. Given my finding of a term of the oral agreement it is not necessary to separately consider this issue. The defendants seek to infer that the plaintiff denies liability for the RAMS Facilities which is to be inferred from her failing to make payments against those loan facilities since September 2008. The plaintiff, in the response to this pleading in paragraph 81A(a) of the 5ARD, denies that the plaintiff denies liability for the RAMS Facilities. Whilst several matters are pleaded by the plaintiff (including that the Harbut Street Agreement was not valid or was terminated) she also specifically pleads as follows at [81A(f)]:(a)That she is and was the mortgagor under the RAMS facilities;(b)That she is and was the co-borrower under the RAMS facilities secured against the Harbut Street Property;(c)That the plaintiff paid or caused to be paid, and continued to pay, the mortgage payments required under the RAMS facilities until in or about August 2008;(d)On 21 September 2008 the plaintiff sent a facsimile to RAMS requesting leniency on hardship grounds;(e)RAMS refused any accommodation on the grounds of leniency;(f)In September 2008 the plaintiff provided written authority for RAMS to speak with the first defendant in respect of the RAMS mortgage facility and that future correspondence be addressed to the defendants;(g)In email correspondence between the plaintiff and the first defendant an RHG authority to discharge form was executed by the plaintiff.[409] [409]This seems to envisage that Mr Colin Trouton’s component of the release was to be dealt with. In reliance on these matters, the plaintiff contends that from in or about December 2012 she understood that the RAMS Facilities would be discharged by the first and second defendants on completion of the works to the Harbut Street Property and/or alternatively on the sale of Dagmar Street in accordance with the email from the first defendant dated 13 December 2012.