Trouton v Trouton - [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– where a Form 1 Transfer was executed under an enduring power of attorney – where the enduring power of attorney had been revoked due to the death of the donor – where the Form 1 transfer was registered with the Registrar of Titles – where the plaintiff alleges fraud by the registered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 483

Bahr v Nicolay (No 2) (1988) 164 CLR 604

Bank of South Australia Limited v Ferguson (1998) 192 CLR 248

Banque Commerciale S.A. En Liqudiation v Akhil Holdings Limited (1990) 169 CLR 279

Briginshaw v Briginshaw (1938) 60 CLR 336

Browne v Dunn (1893) 6 R. 67, H.L

Butler v Fairclough (1971) 23 CLR 78

Cassegrain v Gerard Cassegrain & Co Pty Ltd (2015) 254 CLR 425

Corin v Paton (1990) 169 CLR 540

Davis v Williams (2003) 11 BRP 21313

Hinds v Uellendahl (1992) 107 FLR 254

Macquarie Bank Ltd v Sixty-Fourth Throne Pty Ltd [1998] 3 VR 133

National Australia Bank v Maher [1995] 1 VR 318

Pyramid Building Society (in liq) v Scorpion Hotels Pty Ltd [1998] 1 VR 188

Royalene Pty Ltd v Registrar of Titles [2008] QSC 64

Waimiha Sawmilling Company Limited (in liq) v Waione Timber Co Ltd [1926] AC 101

White v Tomasel & Anor [2004] QCA 89

Williams v Turner [2009] 1 Qd R 296

Young v Hoger [2001] QCA 453

COUNSEL:

A J H Morris KC, with I Erskine for the plaintiff;

G Allan for the defendants

SOLICITORS:

Creagh Weightman Lawyers for the plaintiff;

Walt Allan for the defendants

These proceedings involve a claim by the plaintiff against the first and second defendants and also a counterclaim by the first and second defendants against the plaintiff.
Following are the main defined terms adopted and used throughout these reasons:
“2ADCC” means the Second Amended Defence and Counterclaim;

“4ARej” means the Fourth Amended Rejoinder to the Reply and Defence to the Counterclaim;

“5ARD” means the Fifth Amended Reply to Defence and Defence to Counterclaim;

“9 March Written Agreement” means the purported agreement contained in the written document dated 9 March 2007 between the plaintiff, Colin Trouton and the defendants;

“Form 1 Transfer” means the Form 1 Transfer instrument number 710716147 signed on 19 June 2007;

“Colin Trouton Power of Attorney” means the Form 2 Enduring Power of Attorney entered into and executed by Colin Trouton on 27 February 2003;

“Dagmar Street Property” means Lot 6 on survey plan 128612, title reference 50306460, situated at 53 Dagmar Street, Holland Park West;

“DCS” means the Defendant’s Written Closing Submissions;

“DRCS” means the Defendant’s Reply to the Plaintiff’s Written Closing Submissions;

“Harbut Street Property” means Lot 7 on survey plan 128612, title reference 50306461, situated at 1 Harbut Street, Holland Park West;

“Land Title Act” means Land Title Act 1994 (Qld);

“Original Block” means the real property at 1 Harbut Street, Holland Park West;

“PCS” means the Plaintiff’s Written Closing Submissions;

“Plaintiff’s Caveat” means caveat 717953437 lodged by the plaintiff on 10 April 2017;

“POA Act” means Powers of Attorney Act 1998 (Qld);

“RAMS Facilities” means:
(i)RAMS home loan account number 001367390, in the names of the plaintiff and Colin Trouton; and
(ii)RAMS home loan account number 001922533, in the names of the plaintiff and Colin Trouton;
“Registrar’s Caveat” means caveat 718136397 lodged by the Registrar of Titles on 6 July 2017;

“Scaasi” means the retail fashion business Scaasi Enterprises Pty Ltd ACN 081 139 399 operated by the plaintiff and Christine Trouton;

“SOC” means Statement of Claim;

“UCPR” means the Uniform Civil Procedure Rules 1999 (Qld)
The plaintiff in the SOC claims the following relief:
(a)An order pursuant to s 187 of the Land Title Act cancelling the registration of the Form 1 transfer instrument being dealing number 710716147 dated, and lodged for registration, on 19 June 2007 over and on the Harbut Street Property.
(b)An order for recovery of possession of the Harbut Street Property.
By the 2ADCC, the defendants seek the following relief:
(a)Pursuant to s 127(1) of the Land Title Act, an order for removal of the Plaintiff’s Caveat.
(b)Pursuant to s 127(1) of the Land Title Act, an order for removal of the Registrar’s Caveat.
(c)Damages for deceit if the title to the Harbut Street Property is not transferred to the plaintiff, the amounts of:
(i)$516,817.88 being the total of the payments made by the defendants in respect of the RAMS Facilities to 30 June 2021; and
(ii)Such additional payments made by the defendants on the RAMS Facilities from 1 July 2021 to the date of judgment.
(d)Damages for breach of contract:
(i)$516,817.88 being the total of the payments made by the defendants in respect of the RAMS Facilities to 30 June 2021; and
(ii)Such additional payments made by the defendants with respect to the RAMS Facilities from 1 July 2021 to the date of judgment.
(e)A declaration that the plaintiff is liable for repayment of the RAMS Facilities.

(f)An order that the plaintiff repay the RAMS Facilities and discharge the mortgages against the Harbut Street Property which are security for the RAMS Facilities.
(g)A declaration that the plaintiff is estopped from seeking an order under s 187 of the Land Title Act cancelling the registration on 19 June 2007 of the Form 1 Transfer over the Harbut Street Property, and is estopped from seeking any consequential order for recovery of possession of the Harbut Street Property.
(h)Alternatively, if the Court makes an order under s 187 of the Land Title Act to direct the Registrar to cancel the registration of the Form 1 Transfer, and to register the plaintiff as the registered owner of the Harbut Street Property, then the defendants seek:
(i)A declaration that the Harbut Street Property is held by the plaintiff on constructive trust for the benefit of the defendants to the extent of the amounts determined by the Court in respect of the defendants’ claims for unjust enrichment and allowances.
(ii)A declaration that the plaintiff is liable for repayment of the RAMS Facilities.
(iii)Restitution for unjust enrichment, alternatively damages for deceit, in the amount of $1,525,597.22 or such another amount determined by the Court.
(iv)An enquiry into the value of the energy, skill and expertise contributed by the defendants to the increasing value of the Harbut Street property.
(v)An order for payment of all just allowances in such amounts as may be found due by the Court upon conducting an enquiry.
(vi)An order that the plaintiff pay to the defendants such additional payments made by the defendants on the RAMS Facilities from 1 July 2021 to the date of judgment.

Admitted facts – Facts not in contention

Whilst many issues are in dispute between the parties, there are some facts set out in the SOC and 2ADCC which are admitted and not in dispute. Set out below is a summary of these facts. These facts provide useful background and context for the disputed facts which will be dealt with later in these reasons.
As several of the matters raised in the 2ADCC occur chronologically prior to the matters pleaded in the SOC, the order does not follow the order set out in the pleadings. However, the relevant footnotes contain the pinpoint reference to the relevant paragraph of the relevant pleadings.
Patricia Ann Trouton was born on 20 June 1942 and is the plaintiff in these proceedings.[1] The plaintiff was married to Colin Trouton in or about 1964.[2] The plaintiff remained married to Colin Trouton until he died on 15 June 2007.[3]
[1]SOC 1(a) and 2ADCC 10(a).
[2]SOC 1(b) and 2ADCC 10(a).
[3]SOC 1(c) and 2ADCC 10(a).
The plaintiff is the mother of Neil Simon Trouton, the first defendant. The plaintiff also has four daughters, Deanne Hummelstad, Margo Powell, Anna Hughes and Christine Trouton.[4]
[4]SOC 1(d) and 2ADCC 10(a).
Leanne Trouton, the second defendant, is the wife of the first defendant and the daughter-in-law of the plaintiff.[5]
[5]SOC 1(e) and 2ADCC 10(a).
The first defendant was born on 5 May 1968.[6] The first defendant is the only son of the plaintiff and Colin Trouton.[7]
[6]SOC 2(a) and 2ADCC 11(a).
[7]SOC 2(b) and 2ADCC 11(a).
In or about 1996, the first defendant married the second defendant.[8] The second defendant is the daughter-in-law of the plaintiff.[9]
[8]SOC 2(c) and 2ADCC 11(a).
[9]SOC 3(a) and 2ADCC 12(a).
In or about 1997, the plaintiff and Colin Trouton were contemplating subdividing the Original Block.[10]
[10]2ADCC 1 and 5ARD 1.
Over a period of several months, the first defendant (on his own behalf and on behalf of the second defendant) and the plaintiff (on her own behalf and on behalf of Colin Trouton) had discussions.[11]
[11]2ADCC 3 and 5ARD 3(a).
Part of the dwelling on the Original Block would be demolished and cleared to enable a new lot to be subdivided.[12] The proposed new lot would be valued after the partial demolition of the existing dwelling and the clearing of the proposed new lot.[13]
[12]2ADCC 3(c) and 5ARD 3(d).
[13]2ADCC 3(d) and 5ARD 3(e).
The first defendant, in consultation with the plaintiff, prepared an indicative budget of approximately $30,000 for the work, including to apply for approval of the proposed subdivision and the subsequent site and building works.[14]
[14]2ADCC 4(a) and 5ARD 4(a).
The first defendant caused a subdivision approval application to be lodged which was prepared in the name of, and signed by, the plaintiff and Colin Trouton. Approval was granted on or about 17 August 1999.[15]
[15]2ADCC 4(c) and 5ARD 4(c).
The first defendant prepared drawings for the renovation of the existing dwelling on the original block to assist the plaintiff and Colin Trouton in carrying out a renovation.[16] The partial demolition of the existing dwelling was completed by about 6 January 2000.[17]
[16]2ADCC 4(d) and 5ARD 4(d).
[17]2ADCC 4(e) and 5ARD 4(e).
The first defendant and the second defendant obtained a valuation report from Corbetts dated 18 January 2000 which valued the proposed new lot at between $150,000 and $170,000.[18]
[18]2ADCC 4(f) and 5ARD 4(f).
On or about 3 April 2000, the original block was subdivided into the Dagmar Street Property[19] and the Harbut Street Property[20]. [21]
[19]Lot 6 on survey plan 128612, title reference 50306460, situated at 53 Dagmar Street, Holland Park West.
[20]Lot 7 on survey plan 128612, title reference 50306461, situated at 1 Harbut Street, Holland Park West.
[21]2ADCC 4(i) and 5ARD 4(i).
On or about 19 April 2000, title to the Dagmar Street Property was transferred from the plaintiff and Colin Trouton (as transferors) to the first and second defendants (as transferees).[22]
[22]2ADCC 4(j) and 5ARD 4(j).
At all material times from in or about March 2000:
(a)the first and second defendants became the registered proprietors as joint tenants of the Dagmar Street Property; and
(b)on or about 19 June 2007, Colin Trouton and the plaintiff were the registered proprietors as joint tenants of the Harbut Street Property.[23]
[23]SOC 5 and 2ADCC 14.
The plaintiff and Colin Trouton did not live at the Dagmar Street Property.[24]
[24]5ARD 18(b)(vi) and 4ARej 6(b)(vi).
On 27 February 2003, Colin Trouton entered into and executed a Form 2 Enduring Power of Attorney appointing as his attorney for financial and personal/health matters each of:
(a)the plaintiff;
(b)the first defendant; and
(c)Deanne Hummelstad.
Each of the attorneys duly executed and accepted the appointment under the Colin Trouton Power of Attorney.[25]
[25]SOC 6 and 2ADCC 15.
The Colin Trouton Power of Attorney was:
(a)expressed by clause 5 to begin immediately;
(b)an enduring power of attorney within the meaning of s 44(1) of the POA Act; and
(c)subsequently lodged for registration with the Registrar of Land Titles and registered as dealing number 710602341.[26]
[26]SOC 7 and 2ADCC 31.
On or about 16 October 2006, the plaintiff caused a further loan of $124,000 from RAMS to be advanced which was secured by a mortgage over the Harbut Street Property.[27]
[27]2ADCC 23 and 5ARD 21.
By letter dated 15 December 2006, the plaintiff was advised by her then solicitor to the effect as follows:
(a)Any sale of the Harbut Street Property could be achieved by entering into a standard contract which would be made subject to finance and the sale of Dagmar Street;
(b)The plaintiff should obtain an appraisal of the house prior to any repairs or improvements;
(c)Any agent engaged to carry out the appraisal must refer to at least three recent comparable sales in the area;
(d)The appraisal would fix the value for stamp duty purposes; and
(e)That the first defendant could lodge a “consent caveat” to partially protect his position.[28]
[28]5ARD 16A(c) and 4ARej 3(c).
In or about February 2007:
(a)the plaintiff drew down the following further amounts against loan facilities from RAMS which were secured by a mortgage over the Harbut Street Property:
(i)$10,000 on or about 16 February 2007;
(ii)$5000 on or about 16 February 2007;
(iii)$15,000 on or about 26 February 2007; and
(iv)$15,000 on or about 27 February 2007.
(b)The total amount was $45,000.[29]
(c)The plaintiff did not inform the first or second defendants about the further advances.[30]
[29]2ADCC 25 and 5ARD 23.
[30]2ADCC 26 and 5ARD 24.
Colin Trouton lacked the mental capacity to understand the nature of the alleged written agreement pleaded by the defendants to have been entered into on or about 9 March 2007.[31]
[31]5ARD 17(a) and 4ARej 4(b).
In or about May 2007, the second defendant prepared a draft Form 1 Transfer to convey title to the Harbut Street Property from the plaintiff and Colin Trouton to the first and second defendants.[32]
[32]2ADCC 33 and 5ARD 30.
The first and second defendants, the plaintiff and Colin Trouton did not sign the Form 1 Transfer during the visit over the night of 3 - 4 June 2007.[33]
[33]2ADCC 35 and 5ARD 32.
Colin Trouton died at the Gold Coast Hospital, Southport, on 15 June 2007.[34] The Queensland Death Certificate 6273977 bearing registration number 2007/07847 is dated 7 August 2007. [35]
[34]2ADCC 37 and 5ARD 34.
[35]SOC 11 and 2ADCC 50.
By operation of s 90 of the POA Act, the Colin Trouton Power of Attorney was revoked on and from the date of death of Colin Trouton, being 15 June 2007.[36]
[36]SOC 12 and 2ADCC 51.
The defendants prepared or caused to be prepared the unsigned Form 1 Transfer instrument[37] and the Form 1 Transfer was signed on 19 June 2007.[38]
[37]SOC 14(a) and 2ADCC 53(a)(i).
[38]SOC 14(b)(i) and 2ADCC 53(b)(i).
On 19 June 2007 the defendants procured the signature of the plaintiff on the Form 1 Transfer by meeting the plaintiff at the Garden City Shopping Centre.[39]
[39]SOC 14(b)(i)(B) and 2ADCC 53(b)(iii).
On 19 June 2007, the defendants procured the signature of the plaintiff on the Form 1 Transfer by accompanying the plaintiff to an office within the Garden City Shopping Centre.[40]
[40]SOC 14(b)(i)(C) and 2ADCC 53(b)(iii).
On 19 June 2007, the first and second defendants lodged the signed Form 1 Transfer dated 19 June 2007[41] with the Registrar of Land Titles at the Brisbane Land Titles Office for registration over and on the title of the Harbut Street Property.[42]
[41]SOC 8 and 2ADC 47.
[42]SOC 14(d) and 2ADCC 53(d).
The signed Form 1 Transfer instrument recorded, on its face: [43]
[43]SOC 9 and 2ADCC 48.

2.

Lot on Plan Description

County

Parish

Title Reference

Lot 7 on SP 128612

Stanley

Yeerongpilly

50306461

3.

Transferors

Colin William Trouton and Patricia Ann Trouton

4.

Consideration

five hundred and twenty five thousand dollars ($525,000)

5.

Transferee Given names

Surname

(include tenancy if more than one)

Neil Simon
Leanne

Trouton
Trouton

Joint Tenants

At the time of executing and lodging the Form 1 transfer on 19 June 2007:
(a)The defendants knew that Colin Trouton had died on 15 June 2007.[44]
(b)The defendants knew that the Registrar of Land Titles had no knowledge of the death of Colin Trouton on 15 June 2007.[45]
[44]SOC 15(d) and 2ADCC 54(d).
[45]SOC 15(e) and 2ADCC 54(e).
The Registrar of Land Titles registered the Form 1 Transfer instrument over and on the title of the Harbut Street Property, as dealing number 710716147.[46]
[46]SOC 16 and 2ADCC 55.
The execution by the first defendant and the plaintiff of the Form 1 Transfer instrument on behalf of Colin Trouton, purportedly pursuant to the Colin Trouton Power of Attorney:
(a)was of no effect as the Colin Trouton Power of Attorney had been revoked from the date of his death.[47]
(b)was of no effect.[48]
[47]2ADCC 52(a) and 5ARD 44.
[48]SOC 13(a) and 2ADCC 52(a).

As at approximately 19 June 2007, the following facilities were held by the plaintiff secured by mortgage against the Harbut Street Property:
(a)RAMS home loan account number 001367390, in the name of the plaintiff and Mr Colin Trouton, with a balance of -$297,068.44;
(b)RAMS home loan account number 001922533, in the name of the plaintiff and Mr Colin Trouton, with a balance of -$123,999.23,
and the total amount was -$421,067.67.[49]
[49]2ADCC 27 and 5ARD 25.
The Plaintiff’s Caveat was lodged on 10 April 2017 at 12:25pm.[50]
[50]2ADCC 60 and 5ARD 56.
On or about 6 July 2017, the Registrar of Titles lodged the Registrar’s Caveat, following receipt of a statutory declaration sworn by the plaintiff regarding the alleged circumstances relevant to the registration of Land Titles Office dealing number 710716147.[51]
[51]2ADCC 63 and 5ARD 59.
The plaintiff never resided in a granny flat at the Harbut Street Property as provided for in the alleged agreement or at all.[52]
[52]5ARD 18(b)(iii) and 4ARej 6(b)(iii).
Issues in dispute
Prior to the commencement of the trial, the parties were required to agree the issues in dispute. The parties were unable to agree on the issues in dispute and two competing versions of the issues in dispute were provided.
As a consequence, the closing submissions of both parties do not directly engage on the same issues in a logical and efficient way. Consequently, the submissions do not assist in analysis of some of the key issues.
The plaintiff’s summary of the issues in dispute is set out at Annexure A to these reasons as they have some relevance to a pleading issue considered below.
The inclusion of the plaintiff’s summary of issues in no way constitutes an acceptance of the plaintiff’s case or the issues set out in the summary. It merely provides a convenient way to refer to the plaintiff’s own summary of the plaintiff’s case as at the commencement of the trial.
Pleading issue
On the final day of the hearing when the parties were providing oral closing submissions, it became apparent that a pleading point had emerged of some significance.
The issue is whether, on the plaintiff’s pleading, it is open for the plaintiff to rely on s 184(3)(a) as well as subsection (b) of the Land Title Act (the latter is specifically referred to in paragraph 19(a) of the SOC).
The plaintiff’s closing written submissions discuss at [35] and [36] the plaintiff’s reliance on s 185 of the Land Title Act being “an equity arising from the act of the registered proprietor”.
The exceptions to indefeasibility other than fraud are referred to in s 184(3)(a) of the Land Title Act, which incorporates the exceptions in s 185.
As previously indicated, the SOC specifically raises fraud within the meaning of s 184(3)(b) of the Land Title Act.
The DRCS specifically takes issue with the plaintiff’s submissions where s 184(3)(a) and s 185 of the Land Title Act are raised.
The defendants submit:
(a)the plaintiff’s pleaded case is exclusively based on, and confined to, proving fraud by the registered proprietors: that is, the title of the first and second defendants as joint tenants and registered owners of the Harbut Street Property is defeasible by reason of fraud as pleaded at paragraph 19(a) of the SOC and as particularised in the plaintiff’s Further and Better Particulars that were filed on 9 September 2021.[53]
(b)the plaintiff’s case does not plead or rely upon any of the exceptions in s 185 of the Land Title Act.[54]
(c)the plaintiff appears to be seeking to rely on a case that is based on exceptions to indefeasibility as provided for in s 185(1)(a) of the Land Title Act.[55]
(d)if the plaintiff had wished to conduct its case based on some type of “in personam” exception under s 185(1)(a) as well as fraud, then this needed to be specifically pleaded in the alternative.[56]
[53]DRCS [31].
[54]DRCS [31].
[55]DRCS [32(b)].
[56]DRCS [32(b)]; Banque Commerciale S.A. En Liquidation v Akhil Holdings Limited (1990) 169 CLR 279 at 292-293.
In oral submissions, Counsel for the plaintiff submitted it was open for the “in personam” claim to be made on the material facts as pleaded in the SOC. Further, the plaintiff submitted:
“[The statement of claim] pleads in paragraph 19 a conclusion of law and it identifies one of the things that the rules required to be specifically identified, and that is fraud. But that doesn’t curtail reliance on other legal conclusions which arise from the same facts. And if the same facts are capable of giving rise to a person[al] equity or statutory fraud or an in personam liability to relief, then the pleading sets out the parameters of the case.”[57]
[57]T 15-22, lines 3-8.
Further, Counsel for the plaintiff also submitted:
“Throughout the course of … 12 days of evidence, not once was objection taken to questions which could not be relevant to a case of fraud but were plainly relevant to a case of equitable obligations, constructive fraud, in personam liability. and not once… was objection taken. … [T]here is no basis for saying that if we make up the case pleaded on the facts set forth in paragraphs 1 to 18 of the pleading [the plaintiff] is not entitled to the [relief] under the law of Queensland which arises from those facts.”[58]
[58]T 15-22, lines 10-16.
The plaintiff provided a written opening that:
(a)outlined the evidence that was anticipated to be given by the various witnesses to be called as part of the plaintiff’s case; and
(b)incorporated a summary of issues (reproduced as Annexure A to these reasons).
The summary of issues was expressly divided into two parts: the Claim and then the Counterclaim. The Claim reflects the issues relevant to the plaintiff’s pleaded cause of action. Three issues are set out as follows:
“1.Whether the title to Harbut St was procured by the fraud of NT and LT within the meaning of s.184(3)(b) of the Land Title Act 1994 (“LTA”), such fraud consisting of -
·        procuring PT’s signature on the Form 1 Transfer in the circumstances pleaded in paragraph 14 SOC and lodging it for registration
·        the conduct set out in the Further and Better Particulars filed 9 September 2021
2. If fraud is established, what order should be made under s.187 of the LTA
·        if title to Harbut St is to be reconveyed to PT should it be conditional upon an order for payment of equitable compensation to NT and LT (for the cost of improvements to the land, etc)
3. If fraud is not established, what order should be made under s.127 of the LTA
·        for removal of Caveat (717953437) and Caveat (718136397)
·        conditional upon an order for payment of equitable compensation to PT (for balance purchase price not paid)”.
What is clear from the statement of the issue in paragraph 1 is that the relevant question concerns the operation of s 184(3)(b) of the Land Title Act. As at the opening of the trial, the plaintiff did not identify that the Court needed to consider or deal with a claim under s184(3)(a) of the Land Title Act.
Pursuant to r 150 UCPR, fraud is one of the specifically listed items which needs to be specifically pleaded.
Rule 150 is subject to r 149 of the UCPR. Rule 149(c) provides that a pleading must state specifically any matter that if not stated specifically may take another party by surprise.
Whilst r 150 UCPR does not specifically list a claim in respect of “an equity arising from the act of the registered proprietor”, given the serious nature of an exception to indefeasibility, this is a matter that should have been specifically pleaded if it was to be relied upon so as to avoid the defendants being taken by surprise.
The Further and Better Particulars filed 9 September 2021 are also relevant. The particulars provided are of paragraph 19(a) of the SOC. Paragraph 19 states:
“In the premises
(a) The registration of the Harbut Street property in the joint names of the first and second defendants was procured by the first and second defendants’ fraud within the meaning of s 184(3)(b) of the [Land Title Act];
(b) The plaintiff claims the relief sought in the prayer for relied below.”
The relief claimed included an order pursuant to s 187 of the Land Title Act and an order for recovery of possession of the Harbut Street Property.
The Further and Better Particulars state “the ‘fraud’ on the part of the Defendants is comprised in, evidenced by or to be inferred from”. The particulars then set out two categories:
(a)“the Defendants’ conduct” and five identified acts, including some in the alternative; and
(b)“The fact that the Defendants never had any intention of paying the purchase price for the Harbut Street property, such fact being inferred from [six listed facts after registration of title in the Defendant’s joint names]”.
In respect of the alleged conduct of the defendants, the Further and Better Particulars state:
“(a)Unlawfully and surreptitiously executing the Form 1 Transfer instrument on behalf of [Colin Trouton] after his death purportedly under Power of Attorney No. 710602341 (invalid Form 1).
(b)Lodging the invalid Form 1 for registration with intent to effect a transfer of the title of the Harbut Street property to each of the Defendants absent any valid contract for the sale or transfer of the Harbut Street property from the Plaintiff and [Colin Trouton] to the Defendants.
(c)Alternatively, if the Harbut Street Agreement[59] is valid (which is denied), lodging the invalid Form 1 for registration with intent to effect a transfer of the title of the Harbut Street property to each of the Defendants in circumstances where it was the case, and the Defendants knew that:
[59]The reference to the Harbut Street Agreement is taken to be a reference to the defined agreement at [20] and [21] of the 2ADCC. Where the reference is only to the written agreement dated 9 March 2007 the defined term of the 9 March Written Agreement will be used.
(i)the deposit of $10,000 under cl.6.4 was not paid to the Plaintiff;
(ii)there was no variation in writing signed by the parties to the Harbut Street Agreement for deferring payment of the said deposit;
(iii)There was no variation in writing signed by the parties to the Harbut Street Agreement varying the time for payment of the purchase price; and
(iv)there was no provision in the Harbut Street Agreement for the transfer of title prior to payment of the purchase price.
(d)Further or alternatively, lodging the invalid Form 1 for registration with intent to effect a transfer of the title of the Harbut Street property to each of the Defendants in circumstances where, at the time of lodgement, the Defendants:
(i) had not paid the consideration of $525,000 stated in the Form 1 transfer, or any part thereof;
(ii) had not paid the consideration stated in the alleged Harbut Street Agreement of $550,000, or any part thereof; and
(iii) had not paid the adjusted consideration stated in the alleged Harbut Street Agreement of $500,000, or any part thereof.
(e)Further or in the alternative, lodging the invalid Form 1 for registration with intent to effect a transfer of the title of the Harbut Street property to each of the Defendants in circumstances where, at the time of lodgement, the Defendants:
(i) had taken no steps to sell 53 Dagmar Street;
(ii) were not in a financial position to pay the purchase price for the transfer of the Harbut St[reet] property or any significant part thereof;
(iii) failed to inform the mortgagee of the fact of the transfer of the Harbut Street property; and
(iv) failed to make any payments or contributions towards the RAMS mortgage secured over the Harbut Street property prior to September 2018.”
The conduct identified in (1)(a) is clearly directed at fraud under s 184(3)(b) of the Land Title Act. While “unlawful” may also include “ineffectual”, the phrase “unlawfully and surreptitiously” executing the Form 1 transfer can only be construed as raising fraud by the defendants.
The conduct identified in 1(b) picks up the defined term of “invalid Form 1” thereby importing the conduct in 1(a) into 1(b) in the particular circumstances of there being no valid contact for the sale or transfer of the Harbut Street property. The SOC at [17(a)] already pleads that “there was, at material times, never any contract in writing for the sale of the Harbut St[reet] property to the defendants executed by the plaintiff or at all”. The effect of the pleading and the particulars is to be construed as raising fraud under s 184(3)(b) of the Land Title Act.
The conduct identified in 1(c) is in the alternative and deals with the inferences from the conduct if the Harbut Street Agreement is found to be valid. Again the “invalid Form 1” defined term is imported. It is combined with there being an agreement, a key term of which the defendants did not intend to comply with, and there being no written variation of that requirement. Again, the effect of the pleading and particulars is to be construed as raising fraud under s 184(3)(b) of the Land Title Act.
Importantly, while paragraph 1(c) of the particulars does raise the effect of the alleged Harbut Street Agreement, it is deployed against the defendants as the foundation of fraud rather than in a positive way to found an equity in favour of the plaintiff as a result of the conduct of the defendants.
The conduct identified in 1(d) is also in addition or in the alternative, and again imports the defined term of the “invalid Form 1”, this time into the context of the non-payment of consideration[60] at the time the transfer was lodged. Again, the effect of the pleading and particulars is to be construed as raising fraud under s 184(3)(b) of the Land Title Act.
[60]Either the amount stated in the transfer or the full amount, or adjusted amount, in the Harbut Street Agreement.
Similar to (c) above, while paragraph 1(d) of the particulars does raise the effect of the alleged Harbut Street Agreement, it is deployed against the defendants as the foundation of fraud rather than in a positive way to found an equity in favour of the plaintiff as a result of the conduct of the defendants.
The conduct identified in 1(e) is also in addition or in the alternative, and again imports the defined term of the “invalid Form 1” into the context that, at the time the transfer was lodged, no steps had been taken to sell the Dagmar Street Property, the defendants were not in a financial position to pay the purchase price for the Harbut Street Property, the defendants failed to inform the mortgagee of the transfer of the Harbut Street Property and the defendants failed to make any payments towards the RAMS Facilities secured by the mortgage prior to September 2018. Again, the effect of the pleading and particulars is to be construed as raising fraud under s 184(3)(b) of the Land Title Act.
Similar to (c) and (d) above, while paragraph 1(e) of the particulars does raise interactions between the plaintiff and the defendants at the time of the lodgement of the transfer,[61] this is deployed against the defendants as the foundation of fraud rather than in a positive way to found an equity in favour of the plaintiff as a result of the conduct of the defendants.
[61]Although (e)(iv) extends post lodgement up to September 2018.
Paragraph (2) of the particulars is stated to be particulars of the fraud. The fraud is said to be evidenced by or inferred from what is set out. The matters identified in (a) to (f) arise after the date of lodgement of the transfer but are said to give rise to the inference that the defendants “never had any intention of paying the purchase price”.
Paragraphs (2)(a) to (f) state the that the defendants:
“(a)have not made any payments to the Plaintiff with respect to the purchase of the Harbut Street property;
(b) have taken no steps to sell 53 Dagmar Street;
(c)have paid no part of the purchase price, whether from the proceeds of sale of 53 Dagmar Street or at all;
(d)have never provided to the Plaintiff a ‘granny flat’ in which to live;
(e)on or about 12 December 2012, obtained a development approval deleting the proposed ‘granny flat’ shown in plans and drawings …; and
(f)by email dated 13 December 2012 from the First Defendant, instructed the Plaintiff not to contact the mortgagee with respect to arranging a discharge of the mortgage.”
These “facts” are largely contentious between the parties.
The plaintiff does plead at paragraph 17 of the SOC relevantly:
“(b)the defendants have not paid and the plaintiff has not received, the, or any part of the, consideration of $525,000 referred to at Item 4 of the Form 1 Transfer Instrument …; and
(c)that no liability for payment of the, or any part of then (sic), said consideration was assumed by the defendants; …”
The particulars logically are particulars of the fraud alleged within s 184(3)(b) of the Land Title Act. Paragraph 19(a) of the SOC expressly says that. The opening sentence of the Further and Better Particulars links back to paragraph 19(a) of the SOC. Then the matters set out in (1) and (2) of the particulars go to “[t]he ‘fraud’ on the Defendants” in the sense of being “comprised in, evidenced by or to be inferred from”.
The facts or conduct identified in the particulars cannot logically be the basis for anything other than the claim of fraud identified in paragraph 19(a) of the SOC which is limited to s 184(3)(b) of the Land Title Act.
The particulars, whilst introducing dealings between the plaintiff and defendants prior to the execution and lodgement of the Form 1 Transfer and also post lodgement, cannot form the basis in relation to a claim in respect of “an equity arising from the act of the register proprietor” for the purposes of s 184(3)(a) and/or s 185 of the Land Title Act.
The SOC does plead some limited facts that, in isolation, could arguably be part of what would need to be established in respect of a claim under s 185(a) of the Land Title Act. But the structure and content of the SOC is not consistent with a claim of that nature being included.
The plaintiff’s SOC clearly sets out a claim based upon fraud in respect of the execution of the Form 1 Transfer. It does not plead the circumstances of any agreement prior to that, such as the Harbut Street Agreement or other “interactions” between the plaintiff and the first and second defendants which may have resulted in a claim in personam by the plaintiff against the defendants.
To the extent that the SOC does plead some wider facts (for example, paragraphs 17(A), (b) and (c)), those facts are limited in scope and do not “link” to a form of pleading that supports a claim other than that identified as “fraud within the meaning of s 184(3)(b) of the [Land Title Act].”
The 2ADCC raises significant factual issues in respect of interactions between the plaintiff and the first and second defendants that predate the execution and lodgement of the Form 1 Transfer and also post that time. The defendants plead various different causes of action relying on material facts that emerge from those interactions. These are relevant to claims by the defendants of a constructive trust and unjust enrichment, deceit by the plaintiff and estoppel.
In the 5ARD, the plaintiff traversed those factual matters raised by the defendants but does not raise any claim in respect of an equity that would fit within s 185(1)(a) of the Land Title Act.
If, such a claim was to be made by the plaintiff in light of the matters pleaded in the 2ADCC, the plaintiff should have taken steps to amend the SOC to squarely raise those issues. She did not do so.
The submission made on behalf of the plaintiff that no objection was taken to evidence does not really assist with resolution of the issue. Whilst some of the evidence at trial may arguably be relevant to the type of claim now sought to be raised by the plaintiff, it arguably is equally relevant to the causes of action pleaded by the defendants in the 2ADCC. The explanation for the absence of any objection is logically that the relevance of the subject evidence could only have been to the claims made in the 2ADCC as the plaintiff did not make any claim other than fraud under s 184(3)(b) of the Land Title Act.

Counsel for the defendants also points to the relief sought by the plaintiff as being consistent with only a fraud claim under s 184(3)(b) of the Land Title Act being raised on the pleading. The relief sought is an order pursuant to s 187 of the Land Title Act cancelling the registration of the Form 1 Transfer and an order for recovery of possession of the Harbut Street Property.
It is necessary to consider the relevant provisions of the Land Title Act at this stage.
Section 184 of the Land Title Act states:
“184 Quality of registered interests
(1) A registered proprietor of an interest in a lot holds the interest subject to registered interests affecting the lot but free from all other interests.
(2)     In particular, the registered proprietor—
(a)     is not affected by actual or constructive notice of an unregistered interest affecting the lot; and
(b)     is liable to a proceeding for possession of the lot or an interest in the lot only if the proceeding is brought by the registered proprietor of an interest affecting the lot.
(3)     However, subsections (1) and (2) do not apply—
(a) to an interest mentioned in section 185; or
(b)     if there has been fraud by the registered proprietor, whether or not there has been fraud by a person from or through whom the registered proprietor has derived the registered interest.”
Section 185(1) of the Land Title Act states:
“(1) A registered proprietor of a lot does not obtain the benefit of section 184 for the following interests in relation to the lot—
(a) an equity arising from the act of the registered proprietor;
(b) the interest of a lessee under a short lease;
(c) the interest of a person entitled to the benefit of an easement if its particulars have been omitted from, or misdescribed in, the freehold land register;
(d) the interest of a person who, on application, would be entitled to be registered as owner of the lot because the person is an adverse possessor;
(e) the interest of another registered proprietor making a valid claim under an earlier existing indefeasible title for all or part of the lot;
(f) the interest of another registered owner if there are 2 indefeasible titles for the same interest in the lot and the inconsistency has arisen through failure on transfer to cancel, wholly or partly, the indefeasible title of the first registered owner;
(g) the interest of another registered proprietor if the lot described in the indefeasible title wrongly includes land in which the other registered proprietor has an interest;
…”
Section 186 gives the Registrar power to correct the title if s 185(1)(g) applies.
Section 187 gives the Supreme Court certain power in respect of fraud and other identified interests and states as follows:
“187 Orders by Supreme Court about fraud and competing interests
(1) If there has been fraud by the registered proprietor or section 185(1)(c), (d), (e), (f) or (g) or (1A) applies, the Supreme Court may make the order it considers just.
(2) Without limiting subsection (1), the Supreme Court may, by order, direct the registrar—
(a)     to cancel or correct the indefeasible title or other particulars in the freehold land register; or
(b)     to cancel, correct, execute or register an instrument; or
(c)     to create a new indefeasible title; or
(d)     to issue a new instrument; or
(e)     to do anything else.”
Specifically, the Supreme Court has power to cancel the registration of the transfer where there is:
(a)“fraud” by the registered proprietor (this is relevantly the exception to indefeasibility of title in s 184(3)(b) of the Land Title Act); and
(b)Sections 185(1)(c), (d), (e), (f) or (g) of the Land Titles Act (also section 185(1A) in respect of a relevant mortgagee) apply.
Relevantly for current considerations, s 187 of the Land Title Act does not apply in respect of the exceptions in s 185(1)(a) and (b).
The relief pleaded is consistent with the claim of fraud pursuant to s 184(3)(b) and is inconsistent with a claim under s 184(3)(a) on the basis of an equity pursuant to s 185(1)(a) of the Land Title Act.
The authority of Williams v Turner[62] is relied upon to highlight the different relief that would be relevant if a claim pursuant to s 185(1)(a) had been pleaded by the plaintiff. In that case, Wilson J also had to consider sections 184, 185 and 187 of the Land Title Act. Relevantly, her Honour stated at [33] in respect of a claim of an equity within s 185(1)(a):
“Although the Court’s powers under s 187 would not have been applicable, relief could have been granted by making a vesting order under s 82 of the Trusts Act 1973, which could be registered under s 110A of the Land Title Act 1994.”
[62][2009] 1 Qd R 296; [2008] QSC 327.
In Real Property Law in Queensland[63] the authors consider the differences between the scope of s 184(3)(a) and (b) and s 185(1)(a) of the Land Title Act. Relevantly:
[63]A Wallace, M Weir and L McCrimmon, Real Property Law in Queensland (4^th Edition, Lawbook Co, 2015).
(a)At [10.220] at page 325 in respect of s 184(3)(b):
“Fraud, as an exception to the indefeasibility of Torrens Title, is codified in the [Land Title Act], s 184(3)(b). This provision stipulates that the quality of indefeasibility will be destroyed “if there has been fraud by the registered proprietor, whether or not there has been fraud by a person from or though whom the registered proprietor has derived the registered interest”.[64] Fraud, as used in the context of this section, “may not have fixed and definite boundaries”;[65] however, two propositions can be stated with certainty:
[64]Land Title Act, s 184(3)(b).
[65]Hinds v Uellendahl (1992) 107 FLR 254 at 258 per Asche CJ (NTSC).
1. The fraud complained of must relate to the current state of the title. Unless the current registered proprietor, or the current registered proprietor’s agent, can be implicated in the fraud, fraud on the part of a predecessor in title will not make the title of the current registered proprietor defeasible.[66]
2. Fraud means actual dishonesty by the registered proprietor or her or his agent. Accordingly, the meaning of the term “fraud” is more restricted under the [Land Title Act], s 184(3)(b), than under the general law.”
(b)At [10.330] at pages 348 - 349 in respect of s 185(1)(a):
“The [Land Title Act], s 185(1)(a), codifies the current state of the law by stipulating that a registered proprietor does not obtain the benefits of indefeasibility as against “an equity arising from the act of the registered proprietor”. Unfortunately, the section is drafted in terms of an “equity” arising from the act of the registered proprietor, but it is clear that the section is referring to a claim in personam that arises from the act of the registered proprietor and extends to both legal and equitable claims. The use of the term “equity” in this context is apt to be misleading because it appears to leave out of account legal claims such as those arising from breach of contract. For that reason the term “in personam” claim is preferred.[67] Registered proprietors cannot rely on the protection indefeasibility of title confers to escape obligations personally incurred by them. In other words, registered proprietors cannot create legal or equitable interests in their land and then purport to disregard them on the basis that such interests are not recorded on the Register. The court will enforce “an equity arising from the act of the registered proprietor”,[68] notwithstanding that the interest is not reflected on the registered proprietor’s title.”
(c)At [10.375] at page 358 as to the potential overlap between the two and the differences in remedies:
“… there are some circumstances where a claim can be categorised as either fraud or within the in personam exception, for example, the claim in Bahr v Nicolay and a claim for accessory liability under the second limb of Barnes v Addy. For many purposes, it may not matter which category is relied upon, but it is probably wise to plead both. The remedies available for each category differ slightly. If fraud is established, an order for rectification of the register by removing the relevant registered interest may be available under s 187 of the [Land Title Act]. This remedy is not available for a claim under s 185(1)(a) and instead the court will need to make orders against the defendant to transfer property to the plaintiff, along with a vesting order under the Trusts Act 1973.[69] The end result is likely to be the same but the form of the orders and procedure is different and more cumbersome.”
[66]Footnote omitted.
[67]Wu, “Beyond the Torrens Mirror: A Framework of the In Personam Exception to Indefeasibility” (2008) 32 Melb Uni LR 672 at 679. It is acknowledged that the term “in personam” is not a precise description and has its own limitations and critics: see Moses and Edgeworth, “Taking it Personally: Ebb and Flow in the Torrens System’s In Personam Exception to Indefeasibility” (2013) 35 Syd LR 107 at 108; Low, “The Nature of Torrens Indefeasibility: Understanding the Limits of Personal Equities” (2009) 33 Melb Uni LR 205 at 208 (who suggests the ‘inter se’ rule is a better description).
[68]Land Title Act, s 185(1)(a).
[69]For further detail see Chapter 12, [12.30]. See also Williams v Turner [2008] 1 QdR 296; [2008] QSC 327.
The plaintiff’s pleaded case in the SOC, including the particulars, is consistent with the plaintiff bringing a claim based on fraud pursuant to s 184(3)(b) only. The pleading clearly raises fraud and s 184(3)(b) of the Land Title Act. This is also reflected in the summary of issues stated by the plaintiff (reproduced at Annexure A).
Further, the relief sought in the SOC and as identified in the summary of issues is also consistent with that position. An order pursuant to s 187 of the Land Title Act is available if fraud is established, including reconveyance of the title to the plaintiff and payment of equitable compensation to the defendants for the costs of the improvements to the land.
Further, if fraud is not established, the only additional issue identified in the summary of issues in respect of the plaintiff’s claim is whether an order should be made pursuant to s 127 to the Land Title Act for the removal of the caveats and payment of equitable compensation to the plaintiff for the balance of the purchase price.
There is no issue identified by the plaintiff in the summary of issues which goes to a claim “in personam” pursuant to s 185(1)(a) of the Land Title Act, nor to the form of relief that would give effect to that claim if it was established.
Even if some material facts pleaded are arguably consistent with a claim under s 185(1)(a) of the Land Title Act,[70] the catch all relief sought of “[s]uch further or other order as the Honourable Court deems meet” is not sufficient to support a claim “in personam” having been made.
[70]I do not determine whether this is the case as the plaintiff has not endeavoured to identify how the pleading is said to support an “in personam” claim other in a very general way.
All of these factors support the conclusion that:
(a)the plaintiff has not pleaded a claim under s 184(3)(a) and/or s 185 of the Land Title Act; and
(b)the plaintiff is precluded from now pursuing a claim for relief on the basis of s 184(3)(a) and/or s 185(1)(a) of the Land Title Act outside of the plaintiff’s pleaded case.
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].
Overall, the plaintiff submits that the Court should not accept either the first or second defendants’ evidence on critical events unless it was corroborated by another witness, or by contemporaneous documents.
Conversely, the submissions on behalf of the first and second defendants are that the Court should have no difficulty in accepting the entirety of the first defendant’s evidence. It is submitted that the first defendant’s evidence was clear, concise, responsive and was given in a direct manner. Further, the first defendant acknowledged when he could not specifically recall certain matters.[76]
[76]DCS [123].
It is also submitted that the first defendant’s testimony is directly corroborated by the email communications and other documentary evidence contained in the Court Book, exhibit 2. The plaintiff has accepted the truth of the statements and facts contained in those documents.[77]
[77]DCS [124].
The first and second defendants also submit that the evidence of the second defendant should also be accepted. It is submitted that the second defendant’s demeanour was calm and the second defendant was doing her best to give responsive answers to the questions asked, notwithstanding that those events occurred many years ago.[78]
[78]DCS [125(i)].
In relation to the plaintiff’s evidence, the first and second defendants submit that it is open to the Court to find that the plaintiff was not a witness of truth. It is submitted that she lied in her testimony.[79] Ultimately, the first and second defendants submit that the Court should reject the entirety of the plaintiff’s testimony where it is in conflict of the testimony of the first defendant, second defendant and Luke Cashin in respect of:
(a)the events leading to the Harbut Street Agreement the plaintiff and Colin Trouton entered into with the first and second defendants;
(b)the signing of the 9 March Written Agreement;
(c)the plaintiff’s actions to register Colin Trouton’s Power of Attorney in May 2007;
(d)the purpose of the plaintiff and Colin Trouton visiting the first and second defendants on 3 June 2007; and
(e)the communications and dealings the plaintiff had with the first and second defendants.[80]
[79]DCS [126].
[80]DCS [127].
It is submitted that the plaintiff’s testimony was not responsive to questions, she made speeches, was deliberately evasive, and introduced new matters which were inconsistent with her own case, as well as the documents in evidence.[81]
[81]DCS [128].
The first and second defendants also submit that Christine Trouton was an unreliable witness and the Court should not accept any of her evidence.[82]
[82]DCS [129].
Both parties submit that the evidence of Dr Deanne Hummelstad should be accepted by the Court.[83]
[83]PCS [105]; DCS [160].
I had the benefit of seeing all of the witnesses give evidence at trial and have considered my contemporaneous notes taken during the trial.
While it is necessary for me to make specific findings in respect of the evidence of various issues, at a general level I make the following findings in respect of the plaintiff’s evidence:
(a)The evidence of the plaintiff was plainly implausible in a number of respects.
(i)One example is the plaintiff’s evidence as to why she did not list the Harbut Street Property as an asset when completing her application for a Centrelink pension if she thought that she still owned the Harbut Street Property. As she was then living at the Gold Coast as her principal place of residence, the Harbut Street Property would have been an investment property if she still owned it. I find that the plaintiff’s explanation of an oversight is implausible.
(ii)Another example is the plaintiff’s explanation of her lack of knowledge concerning the District Court proceedings by RHG seeking orders in respect of the default on the RAMS facilities and the related Supreme Court proceedings by the defendants seeking orders, in effect, permitting the defendants to make payments in respect of the RAMS Facilities and preserving the position until the determination of these proceedings. These proceedings were more recent in time and also had serious consequences if the plaintiff was still the owner of the Harbut Street Property. The mortgagee could have taken possession of the Harbut Street Property and sold it. Given the central importance of the Harbut Street Property to these proceedings it is implausible that the plaintiff would not have had a greater involvement in, and knowledge of, those proceedings if she was in fact the rightful owner of the Harbut Street Property.
(b)The plaintiff’s evidence was largely unresponsive to questions asked, and the plaintiff kept repeating matters in a way that suggested she was giving evidence consistent with her own case.
(c)The plaintiff’s evidence was not credible or reliable.
(d)Overall, I do not accept the evidence of the plaintiff except where it is consistent with the evidence of the first and second defendants, or it is consistent with contemporaneous documents.

I do not agree with the submissions made on behalf of the plaintiff in respect of the evidence of the first defendant.
The first defendant has a hearing impairment and was provided with technology by the Court to assist him in giving evidence and for use during the trial. There were difficulties with the technology at various points which required adjustments to be made. The suggestion that the demeanour of the witness in those circumstances should be given considerable weight in evaluating the truth of the evidence is dangerous.
It was clear from observing the first defendant during the time he was giving evidence that there were difficulties in him clearly hearing the questions put to him by both Counsel. At times the technology did not assist and may have in fact exacerbated the first defendant’s hearing difficulties. The plaintiff submits that the observed delay in the first defendant providing answers to questions should operate against his credit. I consider there is no basis for that conclusion.
This is particularly so when the evidence given by the first defendant is consistent in many respects with contemporaneous documents which are in evidence. In these circumstances, I do not accept the submission that the first defendant’s demeanour in giving evidence reflects on his credibility or truthfulness.
Similarly, in relation to the second defendant, I do not accept the plaintiff’s submissions that the demeanour of the second defendant in any way diminishes the testimony that the second defendant gave.
I accept the evidence of the first and second defendants as credible and reliable. I also accept the evidence of Dr Deanne Hummelstad.
In respect of the evidence of Christine Trouton, I find that her evidence was not reliable or credible in respect of the key areas relevant to the issues in dispute. In particular, I find that her account of how she first realised that the Harbut Street Property had been transferred to the defendants is implausible. I do not accept the evidence of Christine Trouton.
It is necessary to further consider the evidence that was given on the key material facts relevant to the plaintiff’s claim.
Execution of the Form 1 Transfer
Central to the plaintiff’s claim, as set out in the SOC, are the circumstances giving rise to the execution of the Form 1 Transfer in relation to the Harbut Street property.
It is not contentious that the Form 1 Transfer was executed on 19 June 2007 and that on the face of the document, the “transferors” are listed as Colin Trouton and the plaintiff, and the transferees are recorded as the first and second defendants, both as joint tenants.
Further, it is not contentious that Colin Trouton died on 15 June 2007, prior to the execution of the Form 1 Transfer.
The evidence of the plaintiff in respect of the Form 1 Transfer is:
(a)The plaintiff received a telephone call from the first defendant asking the plaintiff to come to Brisbane quickly because “we had to address something with the estate”.[84]
[84]T 1-55, lines 19-25.
(b)The first defendant asked the plaintiff to sign the Form 1 Transfer.[85]
[85]T 1-56, lines 34-35.
(c)The plaintiff did not know what it was about.[86]
[86]T 1-56, lines 36-38.
(d)The first defendant did not explain to the plaintiff what she was signing.[87]
[87]T 1-56, lines 39-40.
(e)The second defendant did not explain to the plaintiff what she was signing.[88]
[88]T 1-56, line 44.
(f)The plaintiff did not ask what she was signing as she was too grief stricken. She also trusted the first and second defendants.[89]
[89]T 1-56, lines 46-47 and T 1-57, lines 1-4.
(g)The plaintiff signed things for the first defendant when he brought them to her. “It was never in [her] mind to think that this would happen”.[90]
[90]T 1-57, lines 1-4.
(h)The plaintiff first learned that the title had been transferred when her daughter Christine Trouton discovered that the title was no longer in her or Colin Trouton’s name.[91]
(i)The plaintiff had no idea that the title had been transferred. The plaintiff stated:
“I always thought it was my land and my son would be building on it”.[92]
(j)The plaintiff gave evidence that she never received $525,000.[93]
(k)If the plaintiff had understood that the document was to transfer the title she would not have signed it at the time.[94]
(l)The first defendant did not mention that title had transferred when the first defendant made enquiries as to why the RAMS home loan was in default. The first defendant did not mention to her that the title had been transferred.[95]
(m)The plaintiff asked the first defendant to pay the arrears on the RAMS home loan. The plaintiff thought at the time the first defendant agreed to take over the mortgage payments that it would only be for a year or so, or two years like a normal build would be.[96]
(n)The plaintiff “expected the build to go ahead on [her] land”. She further said “At the completion of the build, I would then speak to the rest of my children – four daughters, seek – and the advice, and go to my solicitor – he’d already given me the advice – go to my solicitor, and the expectation would be, in conjunction with everything, we’d all get together, we’d sort out the finances, I’d be paid and the amount that Neil was owed, he’d be paid to. But it would be done legally”.[97]
[91]T 1-57, lines 36-44.
[92]T 1-57, lines 45-46.
[93]T 1-58, line 7.
[94]T 1-58, lines 9-10.
[95]T 1-60, lines 20-22.
[96]T 1-61, lines 14-18.
[97]T 1-61, lines 37-43.
For the plaintiff to be successful on her pleaded claim the plaintiff’s evidence in respect of the circumstances that the Form 1 Transfer was executed needs to be accepted.
In particular, the plaintiff needs to establish the matters pleaded in [14(b)] of the SOC, namely:
“On 19 June 2007 [the defendants]:
i. procured the signature of the plaintiff on the Form 1 Transfer Instrument by:
Atelephoning the plaintiff on the morning of 19 June 2007 informing her, in substance or effect, that there was a problem that required her to travel to Brisbane immediately to sign some documents;
Bmeeting the plaintiff at Garden City Shopping Centre;
Caccompanying the plaintiff to an office within Garden City Shopping Centre;
DHanding the plaintiff, in said office, a bundle of documents (including the Form 1 Transfer Instrument) (herein after the “bundle”);
Erequesting the plaintiff to sign documents in the bundle (including the Form 1 Transfer Instrument); and indicating by hand gesture where the plaintiff was to sign;
Ffailing at any stage to explain, or otherwise inform, the plaintiff of the legal nature and effect of documents including the Form 1 Transfer Instrument; and
Ghaving the plaintiff’s various signatures witnessed by a justice of the peace.”
The evidence of the first defendant in respect of the circumstances leading up to the signing of the Form 1 Transfer on 19 June 2007 includes:
(a)The second defendant prepared the Form 1 Transfer in early May.[98]
[98]T 10-57, lines 34-35.
(b)The plaintiff and Colin Trouton met the first and second defendant on 3 June 2007 at the Carindale Shopping Centre in the afternoon.[99]
[99]T 10-57, lines 38-40.
(c)Colin Trouton fell ill on the night of 3 June 2007 and as a consequence, the Form 1 Transfer was not signed by the plaintiff and the first defendant. The plaintiff and Colin Trouton returned to the Gold Coast on 4 June 2007.[100]
[100]T 10-58, lines 1-8.
(d)The day after Colin Trouton’s death, on 16 June 2007, the first defendant received a telephone call from John Hummelstad, Dr Deanne Hummelstad’s husband, who advised that arrangements were being made to remove certain care items from the Gold Coast unit. The first and second defendants travelled to the Gold Coast to see what was happening in respect of the removal of the care items.[101]
[101]T 10-59, line 38 to T 10-60, line 2.
(e)When the first and second defendants arrived at the Breakers North unit on the Gold Coast, they observed that care items were being removed and taken away by a third party.[102]
[102]T 10-60, lines 4-10.
(f)The first defendant was quite shocked. The first and second defendants stayed at the Breakers North unit on the evening of 16 June 2007.[103] The first defendant had a discussion with Dr Deanne Hummelstad to the following effect:
[103]T 10-60, lines 13-16.
“Deanne asked me when I was at the computer in the alcove. She said that, ‘are you still going to proceed with the Harbut Street property?’ … I said we had already invested a huge amount of time and money and that mum would have the granny flat.”[104]
[104]T 10-60, lines 46-47 to T 10-61, lines 1-2.
(g)The first defendant returned to Brisbane and spoke to the plaintiff next on 18 June 2007 when the first defendant rang the plaintiff as he was upset that he was not included in the casket and funeral arrangements in respect of Colin Trouton.[105]
[105]T 10-61, lines 18-31.
(h)During the telephone conversation between the first defendant and the plaintiff on 18 June 20017:
(i)the first defendant told the plaintiff that Dr Deanne Hummelstad had asked him the “other night” whether he would be proceeding with Harbut Street. The plaintiff responded by saying “the girls are asking questions”.[106]
[106]T 10-61, lines 31-34.
(ii)the first defendant asked the plaintiff did the plaintiff still want to proceed with Harbut Street. The plaintiff replied “definitely yes” and commented that “it’s what dad wanted”.[107]
[107]T 10-64, lines 4-6.
(iii)the plaintiff said that she was coming up to Brisbane the next day and the plaintiff and the first defendant would “organise what we had to do tomorrow”, that is, arrange the transfer.[108]
[108]T 10-64, lines 8-13.
(i)On 19 June 2007, the first defendant telephoned the plaintiff in the morning, which is what had been discussed the day before. During the telephone conversation, the transfer was discussed and finding “a JP to witness the transfer” and “locating a JP”.[109]
[109]T 10-64, lines 17-26.
(j)The plaintiff indicated that she would assist in finding a Justice of the Peace and she would make some phone calls. The first defendant would also make some phone calls to locate a Justice of the Peace.[110]
[110]T 10-64, lines 36-43.
(k)The first defendant spoke to the second defendant and the second defendant assisted in making some phone calls to find a Justice of the Peace while the plaintiff was also making phone calls.[111]
[111]T 10-65, lines 3-9.
(l)The plaintiff telephoned the first defendant and said that she had found a Justice of the Peace at the Garden City Shopping Centre through Mortgage Choice.[112]
[112]T 10-65, lines 14-24.
(m)The plaintiff said that she would come up to Brisbane and that the first and second defendants would meet her at Garden City. A time was arranged based on how much time the plaintiff needed to travel to Brisbane.[113]
[113]T 10-65, lines 26-28.
(n)A time around 10 o’clock, midmorning, was arranged.[114]
[114]T 10-65, lines 30-31.
(o)The plaintiff said that she would bring the Colin Trouton Power of Attorney.[115]
[115]T 10-65, lines 33-38.
(p)The first and second defendants and their children travelled to Garden City Shopping Centre to meet the plaintiff.[116]
[116]T 10-65, lines 42-46.
(q)Mortgage Choice was located in the Centre Manager’s area, on level 1 above the main section of the shopping centre. There was a lift and a staircase. The first and second defendants met the plaintiff where the staircase went up to the Centre Manager’s area.[117]
[117]T 10-66, lines 3-9.
(r)The plaintiff, the first and second defendants and their children, greeted each other and went up the stairs to Mortgage Choice. Mortgage Choice was in an enclosed office. They went through a doorway and up to a reception desk.[118]
[118]T 10-66, lines 13-26.
(s)A person (now known as Luke Cashin) came out of the back office and came up to the side of the reception desk. The second defendant introduced herself and others to Luke Cashin and said that we were there to get him to witness a transfer document.[119]
[119]T 10-66, lines 21-26.
(t)The second defendant had the Form 1 Transfer and put it on the reception desk.[120]
[120]T 10-66, lines 28-32.
(u)The plaintiff produced the Colin Trouton Power of Attorney and put that on the reception desk.[121]
[121]T 10-66, lines 31-32.
(v)Prior to signing the Form 1 Transfer, Mr Cashin asked for a driver’s licence as identification and each of the plaintiff and the first and second defendants produced their drivers’ licences.[122]
[122]T 10-67, lines 11-13.
(w)Mr Cashin briefly looked at the documents on the table (being the Form 1 Transfer and the Colin Trouton Power of Attorney).[123]
[123]T 10-67, lines 13-16.
(x)Mr Cashin asked if everyone understood document they were about to sign. The plaintiff and the first and second defendants each said yes.[124]
[124]T 10-67, lines 15-17.
(y)The first defendant heard the plaintiff say “yes” in response to Mr Cashin’s question whether everyone understood the document they were about to sign.[125]
[125]T 10-67, lines 19-24.
(z)The first defendant did not direct the plaintiff as to where to sign on the Form 1 Transfer.[126]
[126]T 11-61, lines 15-27.
(aa)The plaintiff signed the Form 1 Transfer first, the first defendant signed the Form 1 Transfer second and the second defendant signed the Form 1 Transfer third.[127]
[127]T 10-67, lines 8-9.
(bb)Following the plaintiff and the first and second defendants signing the Form 1 Transfer, Mr Cashin completed his signature and applied his stamp as the Justice of the Peace.[128]
[128]T 10-67, lines 28-35.
(cc)The first defendant does not recall who wrote the dates on the Form 1 Transfer. It is not the first defendant’s writing.[129]
(dd)The handwritten words immediately under the transferor’s signature in respect of Colin Trouton were on the Form 1 Transfer prior to signing.[130]
(ee)The plaintiff and the first and second defendants were standing at the high reception desk when signing the document.[131]
(ff)After the Form 1 Transfer was signed, the plaintiff, the first and second defendants and their two children went downstairs and walked through the Garden City Shopping Centre.[132]
(gg)They grabbed a takeaway coffee on the way up to Harvey Norman. The first and second defendants at the time were looking at replacing a kettle. The plaintiff indicated she was going to look around at some other things in the store. They were in the store for 15-20 minutes, maybe a bit longer, half an hour.[133]
(hh)By the time they left Harvey Norman, it was getting close to lunch. The first and second defendants said that they were taking their children home for lunch. The plaintiff said she was going to go visit her daughter Margo Powell who was then living at Wynnum.[134]
(ii)The whole process of signing the Form 1 Transfer took less than 10 minutes.[135]
(jj)The first defendant observed the plaintiff’s demeanour as being “normal” in that she was happy to see them and was talking normally.[136]
(kk)After having lunch at home, the first and second defendants and their children got into their car and went into the city. They went to Charlotte Street for the Office of State Revenue. The second defendant was dropped off as the first defendant could not find a parking spot. The first defendant drove around the block.[137]
(ll)The second defendant returned and the first defendant drove to the Titles Office and dropped off the second defendant. The second defendant went into the Titles Office and returned sometime later.[138]
[129]T 10-67, lines 37-38.
[130]T 10-67, lines 40-45.
[131]T 10-68, lines 9-12.
[132]T 10-68, lines 14-16.
[133]T 10-68, lines 16-24.
[134]T 10-68, lines 24-30.
[135]T 10-68, lines 31-33.
[136]T 10-68, lines 35-40.
[137]T 10-68, lines 42-47; T 10-69, lines 1-19.
[138]T 10-69, lines 22-37.
It is submitted on behalf of the first and second defendants as follows:
“The details in the … testimony from [the first defendant] highlights the fact that [the plaintiff’s] version of all of the events that led to the signing of the form 1 transfer is a lie. This prospect of any witness being able to fabricate or make up the facts with the detail recounted by [the first defendant] and of being able to testify with the fluency that he did when giving his testimony are so remote that the court would have no hesitation in accepting his testimony in its entirety.”
Counsel on behalf of the plaintiff cross-examined the first defendant in relation to these circumstances. This included putting to the first defendant that he had approached the plaintiff with a form for the registration of the Colin Trouton Power of Attorney and asked her to fill it in. The first defendant rejected this proposition.[139]
[139]T 11-59, lines 41-47.
Further, it was put to the first defendant that the reason that the Form 1 Transfer document was not executed on 3 or 4 June 2007 was that the registered power of attorney had not yet come back from the Titles Office. The first defendant rejected this proposition.[140]
[140]T 11-60, lines 4-10.
The plaintiff led no evidence to establish when the Colin Trouton Power of Attorney was received back from the Titles Office and did not point to any evidence in support of the proposition. On the face of the document, there is a date stamp of 21 May 2007 at 14:25 under the amount of money that had been paid. This date and time is also endorsed on the front page of the Colin Trouton Power of Attorney.
The first defendant’s evidence in respect of 3 and 4 June 2007 is that the plaintiff and the first defendant were to sign the transfer as the attorneys of Colin Trouton on 3 or 4 June.[141]
[141]T 11-14, lines 20-43.
The transfer document was prepared in May and the second defendant wrote the words “Colin William Trouton by his duly constituted attorney”. It was not the plan to sign under the Colin Trouton Power of Attorney until June.[142]
[142]T 11-14, line 20 to T 11-16, line 15.
The first defendant was also cross-examined about the events on 18 June 2007. This evidence is consistent with the first defendant’s evidence in chief, which included:
(a)there was a conversation that the plaintiff wanted to proceed with the Harbut Street Property.[143]
(b)the plaintiff indicated that she would be travelling to Brisbane and brought the Colin Trouton Power of Attorney with her.
(c)the first defendant recalls that the plaintiff volunteered to bring the Colin Trouton Power of Attorney.[144]
[143]T 11-57, lines 35-37.
[144]T 11-58, lines 32-45.
The first defendant reiterated in cross-examination that he never said that he “had some documents” and “had a problem”.[145]
[145]T 11-60, line 40 to T 11-61, lines 1-4.
The first defendant was also cross-examined about the events on 19 June 2007. The first defendant’s evidence was that:
(a)On 19 June when the plaintiff brought the Colin Trouton Power of Attorney to the Garden City Shopping Centre, that was the first time the first defendant had seen it since it was executed years earlier.[146]
(b)The first defendant had not seen the document when the plaintiff and Colin Trouton visited on 3 and 4 June 2007.[147]
(c)When the first defendant saw the Form 1 Transfer on 19 June 2007, it already had the words “Colin William Trouton by his duly constituted attorney” written on it.[148]
(d)The only writing he observed on the Form 1 Transfer on the day that it was executed at the Garden City Shopping Centre on 19 June 2007 were the signatures. He was not absent at any time during the document being executed.[149]
(e)The Form 1 Transfer was produced at the Garden City Shopping Centre for execution and the first defendant did not indicate to the plaintiff where to sign.[150]
(f)The first defendant did not tell the plaintiff what the document was that she was signing as the plaintiff knew what the document was and the plaintiff knew she was signing a transfer.[151]
[146]T 11-16, lines 16-21.
[147]T 11-16, lines 40-41.
[148]T 11-17, lines 18-19.
[149]T 11-17, lines 21-46.
[150]T 11-61, lines 3-27.
[151]T 11-61, lines 22-23.

Further, it is alleged that there was an oral agreement between the defendants and the plaintiff, for herself and on behalf of Colin Trouton, that the balance of the purchase price did not need to be paid immediately and could be repaid pursuant to a payment arrangement. This payment arrangement is said to be inferred from the matters pleaded at [6], [7], [8] and [9] of the 2ADCC.
That is, payments made by the defendants made to or at the direction of the plaintiff were payments towards the purchase price owing in respect of the Dagmar Street Property. Schedule 1 sets out the claimed charges made to the defendant’s Mastercard account by the plaintiff totalling $147,451.14.
The defendants claim they overpaid the plaintiff and Colin Trouton by an amount of $29,453.83. Further, at [9], the defendants plead that the plaintiff repaid the overpayment of $29,453.83 by a payment of $5000 made on or about 31 January 2004 and $24,454 paid on or about 19 April 2004.
The position of the plaintiff is that she denies that the costs of the subdivision were to be set off against the purchase price of $160,000. The plaintiff contends that the first defendant was to pay all costs of the subdivision on a permanent basis. In contrast, the plaintiff contends that the costs of any subdivision were to be paid by the first and second defendants.[398]
[398]ARD [4(g)]; [4(h)].
Specifically, the plaintiff pleads that she agreed to a sale price of $160,000 on the basis that the first defendant paid the cost of the subdivision.[399]
[399]ARD [4(h)].
Overall, the plaintiff contends that the full purchase price of $160,000 was owed together with a further amount of $10,000 repayment of a loan from the plaintiff to the defendants.[400]
[400]ARD [5].
The plaintiff acknowledges that it was agreed that the defendants were not required to tender the balance of the purchase price for the Dagmar Street Property immediately upon subdivision but to pay the balance purchase price promptly over a time to be agreed.[401]
[401]ARD [6].
Further, the plaintiff contends that she never agreed that any payments or advances by the defendants to or for Scaasi would be offset against the purchase price payable in respect of the Dagmar Street Property.[402]
[402]ARD [6(b)].
In respect of the amounts identified in Schedule 1 to the 2ADCC, the plaintiff alleges that this includes payments made to or on behalf of Scaasi in the amount of $82,488.88 which were not to the benefit of the plaintiff.[403]
[403]ARD [6(b)(iii)].
In respect of the amounts allegedly paid from the plaintiff to the defendants, the plaintiff denies that she made a payment of $29,453.83 and says that amount was paid by Scaasi in repayment of loans.[404]
[404]ARD [8]; [9].
The plaintiff’s written submissions also address the Dagmar Street Property and make a claim for equitable compensation. The plaintiff acknowledges that there was no demand for payment of the balance of the purchase price and she did not make common law claim in the proceeding. However, in dealing with the defendants’ equitable claim, it is submitted that the outstanding amount in respect of the balance purchase price of Dagmar Street should be brought into account or otherwise offset against any claim made by the defendants.
The defendants contend that no equitable compensation is payable by the defendants to the plaintiff as it has not been pleaded and there is no relief sought in respect of it by the plaintiff. In any event, the defendants’ primary position is that the Dagmar Street purchase price has been paid as set out in Schedule 1.
The plaintiff gave evidence in respect of the schedule marked Exhibit 3. Exhibit 3 is a list of the payments accepted by the plaintiff paid on her behalf and offset against the purchase price for the Dagmar Street Property. The total amount accepted by the plaintiff is $52,843.85.
Accordingly, the plaintiff’s primary case is that the balance of $107,156.15 remains payable in respect of the Dagmar Street Property. Alternatively, the balance owing is $94,607.29.[405]
[405]This is slightly different to the amount in question 4 of Annexure A Summary of Issues prepared on behalf of the plaintiff.
Exhibit 17 sets out the payments that the plaintiff contends were payments for and on behalf of Scaasi, totalling $94,607.29.
Exhibit 50 is a list of the payments identified by the defendants as payments made to or at the direction of the plaintiff in relation to the Dagmar Street Property purchase price. This reflects Schedule 1 to the 2ADCC. The total of the payments is $147,451.14.
For the reasons articulated previously in these reasons, I accept the evidence of the first and second defendants in respect of the issues at trial.
The first defendant gave evidence in chief in respect of the Dagmar Street Agreement. Pages 3421A and 3421B of the Court Book are a document prepared using an accountancy package which identifies the costs claimed by the defendants in respect of costs paid against the defendant’s Mastercard, transfers, cheques and cheque butts. It is described as being a full summary of all the costs associated with the subdivision.
Further, page 3421C of the Court Book is a record of what was done in relation to the subdivision and organising the various plans and includes an approximation of the time spent on the relevant activities.
These documents were provided with a letter to the plaintiff.
The first defendant’s evidence clearly was that he had discussions with the plaintiff in relation to the Scaasi loan and the first defendant gave evidence that that was to be used as a payment towards the purchase of the Dagmar Street Property.[406] As a result of that discussion, he prepared the schedules in relation to how the costs were to be dealt with.[407]
[406]T 9-22, lines 30-34.
[407]T 9-22, line 40.
The first defendant gave evidence that he prepared a spreadsheet from primary documents including Mastercard statements, cheque butts, cheque statements and other primary documents and imported the dollar values into the spreadsheet maintained by him in respect of the payments which were being offset against the Dagmar Street Property purchase price.
In respect of the payments that were made, the first defendant gave evidence that these were done following requests from his mother for the specific payment to be made on her behalf or on behalf of the company, Scaasi.
The first defendant also gave evidence that occasionally, the second defendant would be contacted by the plaintiff and ask for a specific payment to be made. Payments of this nature were factored into the spreadsheet.
Exhibit 50 is the version of Schedule 1 which was addressed by the first defendant in giving evidence. This reflects the payments made at the direction of the plaintiff in relation to Dagmar Street.
I accept the first defendant’s evidence in respect of the agreement reached between the plaintiff and the defendants to set off amounts paid for and on behalf of the plaintiff including payments for and on behalf of Scaasi as offsetting against the Dagmar Street Property purchase price. In this respect, I find that the payments made by the defendants on account of the purchase price of the Dagmar Street Property are as set out in exhibit 50, totalling $147,451.14.
I accept the evidence of the defendants in respect of the amounts that were paid by the plaintiff to, in effect, repay the claimed overpayment of $29,453.83.[408] Accordingly, on the evidence of the defendants, which I accept, the purchase price of $160,000, including the offset of the subdivision costs, has been paid and no balance remains outstanding.
[408]2ADCC [8].
Alternative claims - Harbut Street Property
The defendants’ 2ADCC raises a number of alternative claims in respect of the Harbut Street Property. As I have found that the plaintiff has not established fraud and the Harbut Street Property is not to be re-conveyed to the plaintiff, these claims do not arise.
I consider these claims in the alternative below in case I am wrong about the plaintiff’s claim. However, given the nature of the claims it is not possible to consider every possible scenario in respect of these claims and the issues may need to be further considered in light of the outcome of any appeal.
Alternative claim - Specific performance of the Harbut Street Agreement
The 2ADCC includes a pleading at [65] to [67] under the heading “Specific Performance of the Harbut Street Agreement.” However, in the prayer for relief it appears that the defendants are not seeking any relief and that the claim for specific performance has been abandoned.
Alternative claim - Harbut Street Property constructive trust and unjust enrichment
Further or in the alternative, if the Harbut Street Property is conveyed to the plaintiff and is not to be reconveyed to the defendants, the defendants allege that the plaintiff holds the title to the Harbut Street Property on constructive trust for the defendants to the extent of the amounts determined in respect of the defendants’ claims for unjust enrichment.
The amounts claimed by the defendants include the sum of $745,497.74 which they expended in the development and construction of the new house on the Harbut Street Property, the payments as directed by the plaintiff pleaded at Schedule 2 to the 2ADCC, the time and energy expended in the construction of the new house on the Harbut Street Property, the money in payment of the rates, sewerage and water charges in relation to the Harbut Street Property and the payments on behalf of the plaintiff in respect of the RAM Facilities secured by registered mortgage over the Harbut Street Property.
The plaintiff accepts that if the Court was to make an order pursuant to s 187 of the Land Title Act cancelling the registration of the Form 1 Transfer a condition could be imposed requiring equitable compensation to be paid to the defendants.
The amount of that equitable compensation is in dispute, however some components are not contentious. The plaintiff accepts the amount of $49,900.69 in respect of the claim in Schedule 2. The plaintiff does not accept that the whole of the payments made in respect of the RAMS Facilities should be allowed as some of the delay was caused by the defendants rather than the plaintiff. The plaintiff does now accept the Schedule 4 costs of $745,497.74 but does not accept the Schedule 6 costs as recoverable.
Further to the findings made above, some further relevant findings of fact are set out below at [501]-[512].
If it is necessary to consider this alternative claim, then further submissions should be made in light of any matters identified by the Court of Appeal and the basis that requires the claim to be considered.
Alternative claim – damages for deceit
The defendants also seek relief by way of damages for deceit if an order is made pursuant to s 187 of the Land Title Act.
The amount claimed is similar and in the alternative to the claim in respect of a constructive trust and unjust enrichment.
As a claim in deceit is also brought if the Harbut Street Property is not transferred to the plaintiff, the principles in respect of a claim in deceit are deal with below.
Alternative claim - Estoppel
Further, the defendants contend that the plaintiff, by her conduct as pleaded, represented to the defendants that she would cause the title to the Harbut Street Property to be transferred to the defendants and did not subsequently challenge the defendants’ entitlement to be registered as proprietors of the Harbut Street Property.
Further alternatively, the defendants also allege that the plaintiff’s conduct induced the defendants to assume that she would cause the title to the Harbut Street Property to be transferred and would not subsequently challenge the defendants’ entitlement to be registered as proprietors of the Harbut Street Property.
The defendants point to the money that they have expended and the time and effort spent in relation to the Harbut Street Property. Materially, the defendants contend that they believed that the plaintiff would not subsequently challenge the defendants’ entitlement to be registered as proprietors of the Harbut Street Property.
The defendants contend that they placed reliance on the representations by the plaintiff and made the payments as directed by the plaintiff pleaded at Schedule 2 to the 2ADCC, expended time and energy in the construction of the new house on the Harbut Street Property, expended money in payment of the rates, sewerage and water charges in relation to the Harbut Street Property and made significant payments on behalf of the plaintiff in respect of the RAM Facilities secured by registered mortgage over the Harbut Street Property.
Further, the defendants point to the sum of $745,497.74 which they expended in the development and construction of the new house on the Harbut Street Property. This is particularised in Schedule 4 to the 2ADCC.
Further in the alternative, the defendants allege that in reliance on the assumptions and in the belief that they were true, they took those steps. Further, it is alleged that the plaintiff knew that the defendants held and were relying upon the assumptions.
The defendants’ position is that if the plaintiff is successful in obtaining the relief claimed in the SOC, the defendants would suffer detriment. The detriment is, in particular, the contributions to the purchase price in Schedule 2, the expended amounts particularised in Schedule 3, the expended amounts particularised in Schedule 4 and the time and energy they exerted in constructing the new dwelling for which they have received no benefit.
It is in these circumstances that the defendants also contend that it would be unconscionable for the plaintiff to assert against the defendants that the representations are incorrect. A similar position is taken in respect of the assumptions. Further or in the alternative, the defendants assert that it will be unconscionable for the plaintiff to assert against the defendants that she is entitled to an order for recovery or possession of the Harbut Street Property.
Further to the findings made above, some further relevant findings of fact are set out below.
If it is necessary to consider this alternative claim, then further submissions should be made in light of any matters identified by the Court of Appeal and the basis that requires the claim to be considered.
Further claims by the defendants
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.
Further, the plaintiff denies that she caused the defendants to suffer loss and damage as alleged or at all as she believes the allegations to be untrue and relies on the various matters pleaded in the reply.
The defendants found themselves in the position of effectively being guarantors of the RAMS Facilities. Supreme Court proceedings were taken in relation to steps by RAMS (RHG) to take possession of the property. The defendants commenced separate proceedings in the Supreme Court for orders that they be permitted to pay the amounts owing under the RAMS Facilities until these Court proceedings were determined so that the RAMS Facilities were not in default.
The defendants, in effect, have made the necessary repayments in respect of the RAMS Facilities on behalf of the plaintiff.
In the defence and counterclaim, the defendants seek a declaration that the plaintiff is liable for repayment of the RAMS Facilities, and order that the plaintiff repay the RAMS Facilities and discharge the mortgages against the Harbut Street Property which are securing the RAMS facilities.
As between the plaintiff and the defendants, I have found there was a term of the oral agreement that the plaintiff was responsible for paying out the RAMS Facilities secured by the mortgage registered over the Harbut Street Property. Further, the plaintiff remains liable to RAMS/RHG for the amounts owing under the RAMS Facilities by the terms of the original loan agreements.
The difficulty is that this claim fails to take into account that the defendants are seeking to rely on the payments made in respect of the RAMS Facilities on behalf of the plaintiff as being part payment of the purchase price for the Harbut Street Property. The defendants cannot seek to deploy these amounts as meeting the contractual obligation to pay the purchase price, as well as claiming that they are amounts owing to the defendants.
While the plaintiff was and remains primarily responsible for the payment of the amounts owing under the RAMS Facilities, by becoming the registered owners of the Harbut Street Property with notice of the mortgage, the defendants in effect became guarantors for the amounts outstanding. Where the plaintiff is unable to make the required payments, the plaintiff would be in default and the mortgagee could take steps in respect of the security over the Harbut Street Property. The defendants are faced with that risk as they had notice of the mortgage and obtained the title subject to the mortgage.

It is not appropriate to make the declaration in the terms sought by the defendant. It is too broad and does not deal with the impact of the amounts paid being part payment of the purchase price.
In respect of the order sought for repayment of the RAMS Facilities and discharge of the mortgage, I am not satisfied that a sufficient basis has been established to support the making of the orders sought. In any event, the defendants could not seek to be paid in respect of the amounts that are claimed to be part payment of the purchase price.
Damages for deceit
The defendants also make a claim that the plaintiff represented to the defendants the total amount of debt, owing to RAMS, secured by mortgage over the Harbut Street Property in June 2007, relevantly being the time of the transfer of the title of the Harbut Street Property to the defendants, was approximately $240,000. It is contended that the plaintiff knew that this was false and that the plaintiff intended the defendants to rely on the representation.[410]
[410]DCS [267]-[269].
The defendants allege that the two amounts secured by mortgage over the Harbut Street Property totalled approximately $421,067.67 as a result of the plaintiff causing further amounts to be drawn down against the facilities without informing the defendants. Further, the plaintiff caused an additional facility to be advanced secured by a mortgage against the Harbut Street Property without informing the defendants.[411]
[411]2ADCC [90].
The defendants contend that, acting in reliance of the representation, the defendants caused to Form 1 Transfer to be lodged and made contributions to the Harbut Street Property price in accordance with the amounts in Schedule 2 to the 2ADCC, and also expended sums in payment of the rates, sewerage and water charges in respect of the Harbut Street Property and also expended the amounts particularised in Schedule 3 and Schedule 4 to the 2ADCC.
If the Court finds that the Harbut Street Property is not transferred to the plaintiff, then the defendants claim loss and damage in the amounts particularised at Schedule 3 to the 2ADCC and any additional payments made by the defendants on the RAMS facilities from 1 July 2021 to the date of judgment.
In respect of the defendant’s claim based on deceit, the plaintiff contends that the claim is misconceived and should fail. The case alleges fraudulent misrepresentation and must be established to the Briginshaw standard of proof.
In particular, the plaintiff argues that there is no evidence of any “unequivocal” representation or statement made by the plaintiff capable of being relied upon or capable of being considered to be an inducement for the defendants to enter into the Harbut Street Agreement.
Even if it is accepted that the plaintiff made a representation that the RAMS Facilities were drawn down in an amount of $240,000, in order to succeed the defendants would need to establish that the statement was untrue when it was made and/or there was an express promise not to draw down additional amounts on the RAMS Facilities. Neither of these two latter matters are pleaded by the defendants.
The plaintiff submits that it is not alleged that any representation that the facility was drawn down in the amount of $240,000 was coupled with a collateral or additional representation that the amount drawn down would remain and there would be no further drawdowns. Without there being such a collateral promise or representation, the claim must fail.[412]
[412]PCS [219].
Further, the plaintiff points to there being no evidence that the plaintiff promised there would not be any further draw down. Nor is there any evidence that at the time when the representation that $240,000 was drawn down was made that it was false or made with reckless indifference as to the truth or falsity.[413]
[413]PCS [220]; [222].
I am not satisfied that the defendants have discharged the onus on them of proving the necessary elements to establish deceit. Accordingly, the claim for damages for deceit fails.
Breach of contract
The defendants also claim damages for breach of contract in the amounts particularised at Schedule 3 to the 2ADCC and any additional payments made by the defendants on the RAMS facilities from 1 July 2021 to the date of judgment.
The plaintiff submits that the claim for damages for breach of contract must fail as:
(a)There was no such agreement or if there was such an agreement, its terms are unascertainable and it is void for uncertainty;
(b)The defendants are in fundamental breach;
(c)There has been a total failure of consideration;
(d)A necessary party – Colin Trouton’s estate – has not been joined to the proceedings;
(e)Had the estate been sued, it would have had a complete defence due to the admitted lack of capacity; and
(f)The 9 March Written Agreement gives rise to no enforceable obligations on the estate of Colin Trouton, it cannot survive as an agreement enforceable solely against the plaintiff.[414]
[414]PCS [191].
The plaintiff also raises a further issue: a party in breach is not entitled to seek damages against the innocent party. Here the plaintiff submits that the defendants were in breach of the contract by not paying the purchase price within a reasonable period of time and that was the reason why the defendants ended up having to pay the RAMS Facilities for the extended period since 2008.[415]
[415]PCS [192].
There is a further conceptual difficulty in respect of the claim for damages for breach of contract. Again, this claim fails to take into account that the defendants are seeking to utilise the payments identified in Schedule 3 as being part payment of the purchase price for the Harbut Street Property. The defendants cannot seek to deploy these amounts as meeting the contractual obligation as well as claiming that they are a loss to be compensated for by damages.
The plaintiff was and remains primarily responsible for the payment of the amounts owing under the RAMS Facilities. By becoming the registered owners of the Harbut Street Property with notice of the mortgage, the defendants in effect became guarantors for the amounts outstanding.
Absent the requirement to pay the purchase price and the agreement to pay the required amounts under the RAMS Facilities on behalf of the plaintiff in part payment of the purchase price, the defendants did arguably suffer loss. But, there was no loss when the amounts were paid as part payment of the purchase price.
To the extent that the amount paid may exceed the purchase price, there may arguably be a basis for an amount owing from the plaintiff to the defendant. However, the submissions and the evidence at trial did not deal with this possibility.
The contention that the defendants contributed to any loss as a result of the delay in paying the purchase price over such an extended period is also a relevant factor.
In all of the circumstances, I am not satisfied that the defendants have established an entitlement to damages for breach of contract.
Further findings of fact
If it is necessary and appropriate to consider the alternative or additional claims, I make the following additional findings.
Exhibit 71 is the consolidation of exhibits 59 and 69, to reflect all payments made by the defendants in respect of the RAMS Facilities secured by the mortgage over the Harbut Street Property. As at 30 November 2021, the total payments made by the defendants in respect of the RAMS facilities is $531,726.18.
I accept the evidence of the defendants in relation to the amounts paid by them in respect of the RAMS Facilities and find as at 30 November 2021, the total amount paid by the defendants in relation to the relevant RAMS facilities is $531,726.18.
In respect of the amounts paid by the defendants to or at the direction of the plaintiff in relation to the Harbut Street Property purchase price, exhibit 67 sets out the amounts in Schedule 2 totalling $94,547.55. This is in contrast to the amounts identified by the plaintiff and accepted by the plaintiff as being payments in part payment of the purchase price.
The plaintiff identifies payments made before and on behalf of Scaasi which the plaintiff says should not be included in Schedule 2. Exhibit 18 is a schedule of the amounts said to be payments for and on behalf of Scaasi totalling $44,646.86.
I accept the evidence of the defendants in relation to the payments made to or at the direction of the plaintiff in relation to the Harbut Street Property purchase price and find that it included the payments made for and on behalf of Scaasi. Accordingly, the total amount paid to or at the direction of the plaintiff in relation to the Harbut Street Property purchase price is $94,547.55.
In respect of the money expended by the defendants on the development of and construction upon the Harbut Street Property, Schedule 4 to the 2ADCC itemises those amounts claimed by the defendant. Exhibit 61 sets out the construction costs and expenses claimed totalling $745,497.74 including GST.
Exhibits 62, 63 and 64 provide evidence of the work undertaken by the first defendant in the design, project management and construction of the new Harbut Street dwelling. This includes, relevantly, detailed drawings, onsite work and offsite work.
Exhibit 66 reflects Schedule 6 to the 2ADCC, being the first defendant’s time and effort in design and managing and building the new dwelling on the Harbut Street Property. This claims an amount per week of $1500 for the relevant periods totalling $190,500.
I accept the defendants’ evidence in respect of these costs and expenses and make the findings in accordance with the exhibits.
I find that the amount claimed in Schedule 6 and set out in exhibit 66 is a reasonable estimate of the costs reflecting the time and work undertaken by the first defendant in respect of the management of the development and construction of the Harbut Street dwelling.
The defendants also claim in respect of the payment of rates, sewerage and water charges in relation to the Harbut Street Property. As at 30 June 2021, the amount claimed in total is $54,781.47. Relevantly, I find that the defendants have paid the amount of $54,781.47 in respect of rates and utilities for the Harbut Street Property up to 30 June 2021.

Orders

I will hear further from the parties as to the appropriate orders in light of these reasons and costs.
Further, the parties should agree directions for:
(a)the provision of draft agreed orders, or if the orders cannot be agreed, competing draft orders and brief submissions in support; and
(b)the provision of brief submissions and any supporting material in respect of costs.

Annexure A

SUMMARY OF ISSUES

Claim

Whether the title to Harbut St was procured by the fraud of NT and LT within the meaning of s.184(3)(b) of the Land Title Act 1994 (“LTA”), such fraud consisting of -
·procuring PT’s signature on the Form 1 Transfer in the circumstances pleaded in paragraph 14 SOC and lodging it for registration
·the conduct set out in the Further and Better Particulars filed 9 September 2021
If fraud is established, what order should be made under s.187 of the LTA
·if title to Harbut St is to be reconveyed to PT should it be conditional upon an order for payment of equitable compensation to NT and LT (for the cost of improvements to the land, etc)
If fraud is not established, what order should be made under s.127 of the LTA
·for removal of Caveat (717953437) and Caveat (718136397)
·conditional upon an order for payment of equitable compensation to PT (for balance purchase price not paid)

Counterclaim

Dagmar St

Whether $94,673.85 of the claimed $147,451.14 in Schedule 1 should be offset against the $160,000 purchase price for Dagmar St.
Harbut St
Whether the 2007 Harbut St Agreement is valid and efficacious -
·was it signed by PT
·was it signed by CT
ois CT’s signature a forgery
oif not, did CT have capacity to enter into the 2007 Harbut St Agreement
oif CT did not have capacity, is the 2007 Harbut St Agreement
§void (degree of incapacity so high as to constitute non-est factum), or
§voidable (for want of capacity)
oif voidable was is [sic] avoided by CT or a representative of CT
If the 2007 Harbut St Agreement is valid and binding on the parties,
·what were the terms of that Agreement
oterms in writing
opartly in writing, partly oral or implied
Did NT and LT comply with its terms by -
·payment of the deposit
·payment of the balance purchase price -
oby sale of Dagmar St (as stated in the 2017 Agmt)
ore Schedule 2 amounts -
owhether PT and NT agreed those payments were made in reduction of the purchase price of Harbut St
· provision of a granny flat
· if not, ought there be an order for payment by any party to the other of equitable compensation by way of an equitable adjustment as a condition of equitable relief

Constructive Trust/Unjust Enrichment

If the Harbut St property is reconveyed to PT:
·does PT hold any part of the property on constructive trust for NT and LT
·ought an order for reconveyance to PT be conditional upon the payment of equitable compensation so as to avoid PT being unjustly enriched

Deceit

Whether PT is liable for damages for deceit -
·was the representation at para. 89 Def/CC made by PT
·was it knowingly false
·did NT and LT suffer loss in reliance on the representation
·if so, what amount of loss was suffered in reliance thereon

Estoppel

Is PT estopped from asserting that title should be reconveyed to PT or seeking an order under s.187 LTA cancelling registration of the Form 1 Transfer -
·was the estoppel representation at para. 70 Def/CC made by conduct of PT
·did that conduct induce an assumption pleaded in 71 Def/CC
·did NT and LT act to their detriment relying on the representation or assumption
·is it unconscientious for PT to assert otherwise and is PT estopped from so asserting

Enquiry

Whether there is any need for an order for enquiry to determine the value of the energy, skill and expertise contributed by the Defendants to increase the value of the Harbut St property together with an order for payment of any at all just allowances upon the taking of such enquiry

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 483 Bahr v Nicolay (No 2) (1988) 164 CLR 604 Bank of South Australia Limited v Ferguson (1998) 192 CLR 248 Banque Commerciale S.A. En Liqudiation v Akhil Holdings Limited (1990) 169 CLR 279 Briginshaw v Briginshaw (1938) 60 CLR 336 Browne v Dunn (1893) 6 R. 67, H.L Butler v Fairclough (1971) 23 CLR 78 Cassegrain v Gerard Cassegrain & Co Pty Ltd (2015) 254 CLR 425 Corin v Paton (1990) 169 CLR 540 Davis v Williams (2003) 11 BRP 21313 Hinds v Uellendahl (1992) 107 FLR 254 Macquarie Bank Ltd v Sixty-Fourth Throne Pty Ltd [1998] 3 VR 133 National Australia Bank v Maher [1995] 1 VR 318 Pyramid Building Society (in liq) v Scorpion Hotels Pty Ltd [1998] 1 VR 188 Royalene Pty Ltd v Registrar of Titles [2008] QSC 64 Waimiha Sawmilling Company Limited (in liq) v Waione Timber Co Ltd [1926] AC 101 White v Tomasel & Anor [2004] QCA 89 Williams v Turner [2009] 1 Qd R 296 Young v Hoger [2001] QCA 453
COUNSEL:	A J H Morris KC, with I Erskine for the plaintiff; G Allan for the defendants
SOLICITORS:	Creagh Weightman Lawyers for the plaintiff; Walt Allan for the defendants

2.	Lot on Plan Description	County	Parish	Title Reference
Lot 7 on SP 128612	Stanley	Yeerongpilly	50306461
3.	Transferors
Colin William Trouton and Patricia Ann Trouton
4.	Consideration
five hundred and twenty five thousand dollars ($525,000)
5.	Transferee Given names	Surname	(include tenancy if more than one)
Neil Simon Leanne	Trouton Trouton	Joint Tenants