Wade v Wade

[2007] WASC 120

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   WADE & ANOR -v- WADE & ANOR [2007] WASC 120

CORAM:   MASTER SANDERSON

HEARD:   8 MAY 2007

DELIVERED          :   8 JUNE 2007

FILE NO/S:   CIV 2079 of 2004

BETWEEN:   STANLEY ALAN WADE

MARILYN LYNETTE WADE
Plaintiffs

AND

ALAN ANDREOUS FRANKLYN WADE
First Defendant

REGISTRAR OF TITLES
Second Defendant

Catchwords:

Real property - Application to extend operation of caveat - Turns on own facts

Legislation:

Transfer of Land Act 1893 (WA), s 138 D

Result:

Caveat extended

Category:    B

Representation:

Counsel:

Plaintiffs:     In person

First Defendant              :     In person

Second Defendant         :     No appearance

Solicitors:

Plaintiffs:     In person

First Defendant              :     In person

Second Defendant         :     No appearance

Case(s) referred to in judgment(s):

Nil

1. MASTER SANDERSON:  This is a most unfortunate case.  It involves a dispute between Mr and Mrs Wade, who are the plaintiffs, and their son, Mr Alan Wade, who is the defendant.

2. The matter has dragged on for years.  Both parties are unrepresented and they are dealing with legal issues of some complexity.  Mediation has been tried but was spectacularly unsuccessful.  The level of animosity that now exists between the parties makes any settlement unlikely.  Even more regrettably, this application will not solve any of the parties' problems.

3. At issue is a residential property at 31 Johnson Street, Redcliffe. The property was purchased in 2001 and the registered proprietor is Mr Alan Wade. In September 2003, Mr and Mrs Wade lodged a caveat over the property. On 3 August 2004, at the request of Mr Alan Wade, the Registrar of Titles issued a 21‑day notice under s 138D of the Transfer of Land Act 1893 (WA). Mr and Mrs Wade then issued these proceedings. By its terms, the originating summons sought to extend the operation of the caveat indefinitely. Mr Alan Wade opposes that extension.

4. Initially, Mr and Mrs Wade were represented by solicitors.  However, due to the expense, that is no longer the case.  Initially, Mr Alan Wade was not represented by solicitors, but some time after the proceedings were issued he did engage a lawyer.  Now he too is unrepresented.  Not surprisingly, given the complexity of this matter, all parties have had difficulty coming to grips with the real issues which arise in determining the originating summons.  In fairness, it must be said that both parties have made every effort to present all relevant material and articulate their positions as carefully as possible.

5. As this decision will not finally determine the issues between the parties, it is appropriate that I do no more than give a summary of the relevant facts and outline the parties' positions.  It was Mr and Mrs Wade who located the Redcliffe property.  The purchase price was $133,500.  That purchase price was paid by way of a deposit of $6000, further payments comprising $35,000 and a first mortgage of $97,500.  The deposit of $6000 was paid by Mr and Mrs Wade.  They also paid the $35,000.  The offer and acceptance was signed by Mr Alan Wade and the mortgage is in his name.  As I have said, he is the registered proprietor of the property.

6. It would appear from Mr Alan Wade's evidence that he was initially reluctant to purchase the property.  He had no part in locating it and he says it did not conform with his investment strategy.  At the time of the purchase, he had in mind buying vacant land and building a property.  He says, however, that once he was shown the Redcliffe property by his parents he decided that it was a sound investment and he went ahead with the purchase.

7. It is Mr and Mrs Wade's position that it was always intended by all parties that the Redcliffe property would be theirs.  But Mr and Mrs Wade, because of their age, their financial position and perhaps other reasons, were unable to obtain finance.  So the property was registered in the name of Mr Alan Wade.  Mr and Mrs Wade say that they have made all the mortgage repayments, they have met the utility outgoings and they have in all respects treated the property as their own.  They say that all of this was done to further the agreement that they would own the beneficial interest in the property.

8. Mr Alan Wade says that there was no agreement that he would hold the property on trust for his parents.  Rather, he says that it was always intended he would own the property without any obligation to his parents.  He says that the fact Mr and Mrs Wade have paid the mortgage and the outgoings is only proper given that they occupy the property and he does not.  He wants the caveat removed because he says that Mr and Mrs Wade have no interest in the property.  He may sell the property thereafter or he may not.  But either way, he maintains that he has all the rights of a registered proprietor.

9. The difficulties with each of the parties' respective positions are plain.  So far as Mr and Mrs Wade are concerned, they now occupy a property of which Mr Alan Wade is the registered proprietor.  That gives him all the rights and interests consequent upon registration of title.  Furthermore, when the property was purchased, Mr Alan Wade received the benefit of a reduction in stamp duty as a first home buyer and the applicable Commonwealth First Home Buyer's grant.  Mr and Mrs Wade were content to allow both of these benefits to accrue.  At the very least, to have done so is inconsistent with their argument that the property belonged to them.  There is nothing in writing which evidences their alleged agreement with Mr Alan Wade - a difficulty when dealing with interests in land.  But then they have met the mortgage payments and they have paid the utilities' accounts.  It might well be argued that these steps were taken consistent with the alleged agreement.

10. So far as Mr Alan Wade is concerned, he accepts that his parents provided the sum of $41,000 to allow him to purchase the Redcliffe property.  He says that this was a gift and that it was made unconditionally.  While the evidence of Mr and Mrs Wade was not tested by cross‑examination, it is difficult to see why a gift of that amount of money would be made by persons in the financial state of Mr and Mrs Wade.  Having parted with those funds, they were left with almost nothing.  Why, it might be asked, should they take that step when the result was of no benefit to them and favoured one child against his siblings?

11. If this matter is to proceed further, these and other questions must be determined.  But, in my view, they must be determined in the context of a full trial.  For the purposes of this originating summons, I am required only to decide whether there is a serious question to be tried as to whether the caveat ought be maintained.  In my view, there is a serious question to be tried.  It is arguable that there is an agreement between the parties in the terms put by Mr and Mrs Wade.  Payment of the mortgage and outgoings by them may amount to part‑performance of that agreement.  For Mr Alan Wade to now resile from the agreement may be unconscionable, and it may be that Mr and Mrs Wade are entitled to an order that the property vest in their name.  Again, this is a result not without its difficulties.  The property is mortgaged and the mortgage is in the name of Mr Alan Wade.  It is hard to see how there could be a transfer of the property in such circumstances.  This is yet another issue which will need to be canvassed at trial.

12. For the present, I am satisfied that there is a serious question to be tried and insofar as it is relevant, the balance of convenience favours the maintenance of the caveat.  However, this matter must be brought to a conclusion.  What I would propose is that the caveat remain until further order of the Court, provided that Mr and Mrs Wade issue proceedings for the determination of all matters in issue within a specified period.  I will hear from each of the parties as to what that period should be.