Wilce v Wilce
[2022] QSC 94
•19 May 2022
SUPREME COURT OF QUEENSLAND
CITATION:
Wilce v Wilce & Anor [2022] QSC 94
PARTIES:
JANE SARELLE WILCE
(plaintiff)
v
ANGELA MAREE WILCE(first defendant)
AND
KHALIL JAMES SMITH
(second defendant)
FILE NO/S:
T536 of 2019
DIVISION:
Trial Division
PROCEEDING:
Claim
ORIGINATING COURT:
Supreme Court at Cairns
DELIVERED ON:
19 May 2022
DELIVERED AT:
Cairns
HEARING DATES:
17-19 May 2022
JUDGE:
Bradley J
ORDER:
The parties are to confer and submit draft orders on 23 May 2022
CATCHWORDS:
EQUITY - GENERAL PRINCIPLES - UNDUE INFLUENCE AND DURESS - GENERALLY - where the plaintiff is the stepmother of the first defendant and the mother-in-law of the second defendant - where the plaintiff and her husband executed a transfer of the fee simple in certain land to the defendants by way of gift - where the defendants became the registered proprietors of the fee simple - where the plaintiff alleged that the transfer by her of her interest in the land was the result of undue influence - where the undue influence was said to be in the form of pressure placed on her by her husband and the first defendant - whether the conduct on the part of the plaintiff’s husband and the defendants was unconscionable conduct - whether declarations should be made as to the plaintiff’s interest in the land, the validity of the transfer and other matters on the grounds of undue influence.
COUNSEL:
P F Mylne for the plaintiff
C Ryall for the defendantsSOLICITORS:
O’Shea & Dyer for the plaintiff
Far North Injury Lawyers for the defendants
On 27 November 2018, the plaintiff Jane Sarelle Wilce (Jane) and her husband Frank Stanley Wilce (Frank) executed a transfer of the fee simple in certain land (Lot 40) to the first defendant Angela Maree Wilce (Angela) and the second defendant Khalil James Smith (Khalil), by way of gift. On 7 December 2018, the transfer was registered over the title and Angela and Khalil became the registered proprietors of the fee simple.
Jane alleged that the transfer of her interest in Lot 40 was the result of undue influence in the form of pressure placed on her by Frank and Angela, in particular the pressure of threats made by Frank in November 2018. Jane alleged the same conduct, on the part of Frank, and the conduct of Angela and Khalil, was unconscionable conduct. Jane sought a remedy from the court.
On 19 May 2022, at the conclusion of a three day trial, I gave reasons for concluding that the court should grant relief to Jane in her claim against Angela and Khalil. This is an edited version of those reasons.
Reasons
This proceeding is part of a family story. The plaintiff Jane is the stepmother of the first defendant Angela and the mother-in-law of the second defendant Khalil.
In cases involving allegations of undue influence and unconscionable conduct, the court is to examine with precision the particular facts, scrutinise the exact relations between the parties that those facts establish, and consider the mental capacities, processes and idiosyncrasies of the relevant parties.[1]
[1]Jenyns v Public Curator (Qld) (1953) 90 CLR 113, 118-119 (Dixon CJ, McTiernan and Kitto JJ); quoted with approval in Thorne v Kennedy (2017) 263 CLR 85, 105 [43] (Kiefel CJ, Bell, Gageler, Keane and Edelman JJ).
The family relationships
From about 1985 or 1986 until late November 2018, Jane was in a relationship with Frank. Before she began her relationship with Frank, Jane had two children: Stacy Andrew Brown (Stacy), who was born in 1980, and Sarelle Brown (Sarelle), born in 1983. Frank also had two children before he began the relationship with Jane: Barry Wilce (Barry), who was born before 1982, and Angela, born in 1982. Khalil has been in a relationship with Angela since 2004.
Jane is the plaintiff and Angela her stepdaughter and Khalil her son-in-law are the parties to the proceeding. Sarelle passed away in 2016. Frank, Stacy, and Barry are not parties. From the family, Frank and Barry were witnesses at the trial.
Jane’s story to 1989
Jane was born in December 1961. She finished school at about 14½ years of age in Alice Springs. Jane went to work in hospitality at the Telford Hotel there. She moved to Cairns and worked as a supermarket attendant. Jane married when she was about 19 years and lived with her first husband on the Atherton Tablelands. Her son Stacy was born the next year, and her daughter Sarelle a few years later.
Jane commenced her relationship with Frank in about 1985 or 1986. She would have been about 23 or 24 years old. Jane came to live with Frank in his home in Bayview Gardens, Cairns. Frank was working in Cairns as a mechanic. Jane was working at the Cairns Post as a cleaner.
From early in his relationship with Jane, Frank suffered from poor health. In about 1987, Jane and Frank moved from Cairns to Yungaburra on the Atherton Tableland. They moved there to operate a service station business Frank’s father had run. They lived with Frank’s mother in his parents’ house in Fig Street, across the road from the service station. Both Frank and Jane worked in the business. Due to his health condition, Frank was unable to work a full day at the service station. In 1989, Frank had heart transplant surgery. Afterwards, he was unable to work. They sold the service station business.
From about 1989 Frank was on a disability pension and Jane on a carer’s pension, as Frank’s fulltime carer. Frank has continued to experience poor health ever since.
The land at Barrine
In about 1989 or 1990, Jane and Frank purchased land at Barrine on the Tableland. It was on Shadforth Road, about 10 kilometres along the main road from Yungaburra towards Cairns. So, it was about 20 kilometres east of Atherton and about 60 kilometres south west of Cairns. Its real property description was Lot 4 on RP 748421 Parish of East Barron, County of Nares (Lot 4). Jane and Frank were the registered proprietors of the fee simple in Lot 4 as joint tenants.[2]
[2]Jane and Frank were not then married. Jane’s surname on the title to Lot 4 was Boddington.
For a while they lived between Fig Street and Shadforth Road as a house was built on their land. Once completed, they lived in the house on Lot 4.
Their children lived there also, from time to time. Stacy and Sarelle lived there. Angela spent all but one year of her primary schooling living elsewhere with her mother. She spent all but about three months of her secondary school years living with Frank and Jane on Lot 4. For a while, after she finished school, Angela lived in a caravan on the property. Barry spent about half of his childhood living with Frank and Jane and the balance elsewhere with his mother.
After they purchased Lot 4, when their respective children were still quite young, perhaps 10 to 13 years of age, Jane and Frank planned that eventually they would subdivide Lot 4 to create a separate lot for each of the children. Lot 4 was about 100 acres, or 40.5 hectares. Jane and Frank planned to create a new lot of about 20 acres for each child. The planned to do so at a time when the child was able to pay the cost of the subdivision. They planned to retain about 20 acres as their own.
On 16 January 1993, Jane and Frank married.
In time, the children finished school and began to make lives of their own.
The subdivision to create Lot 40 and Lot 44
In about 2006, Stacy raised the topic of subdividing Lot 4 and transferring a new lot of about 20 acres to him. Jane and Frank discussed this with the other children, Angela, Barry and Sarelle. Only Stacy was willing and able to pay for the cost of a subdivision. Angela and her partner Khalil were able to pay or contribute to the subdivision cost, but they were not prepared to do it at that time. Nor was Barry willing at that time. Sarelle was not able to do so. Jane and Frank could not afford to pay the cost of a subdivision for any of the children.
In 2007, surveyors drew a plan of a “Proposed reconfiguration creating Lots 40 & 44 Cancelling Lot 4”. This plan showed the proposed Lot 44 by dark line boundaries and, by dotted lines, a division of the balance of Lot 4 (proposed Lot 40) into four further areas of approximately equal areas. The proposed Lot 44 and two of the dotted line areas had frontages to Shadforth Road along the Southern boundary. Each of the two dotted line areas at the North of the land, away from the road, had a long thin corridor of land connecting it to Shadforth Road. This plan of subdivision was not one eventually pursued. From the evidence, I infer this was because the other three children were either not willing or unable to pursue it at that time.
In about 2008, Stacy told Angela that she should seek a subdivision of the land and a block for herself, because he understood the local government planning arrangements were to change to make further subdivision impossible.
Angela said she met with officers of the Atherton Shire Council about this. She said the officers told her they were not prepared to give her “the paperwork” to apply for a subdivision, because the law was changing. Angela said she consulted town planners and lawyers in Cairns about a subdivision to create a separate lot for her. Her evidence was that the various people she consulted told her it was not possible or it would be difficult or she should come back to them when they had more time. With the benefit of this information, Angela did not pursue a subdivision.
Khalil gave evidence that he attended the Council with Angela to enquire about a subdivision. He also said the Council officers were not prepared to give her “the paperwork” to apply for a subdivision, because the law was changing.
Frank also gave evidence that he went to the Council offices with Angela to find out about a subdivision. According to Frank, he saw subdivision paperwork produced by both Angela and by his son Barry. Frank said both did a lot of work with the Council trying to get Lot 40 subdivided. He said this happened after the subdivision Stacy arranged that created Lots 40 and 44.
Oddly, Angela gave no evidence that she was accompanied by Khalil or by Frank when she went to the Council.
There was some confusion about when these enquiries were made. The defence alleged it was in 2008, when the Atherton Shire Council was still in existence. It seems more likely the enquiries were made later, or at least some of them were. Some of them may have happened after 2010 or in 2015, when Angela and Khalil renewed their interest and activity about the land.
The surveyors prepared another plan of Lots 40 and 44 dated 22 September 2009. It altered the North-west and North-east boundaries of the proposed Lot 44. This increased the area of Lot 44, from 8 Ha shown on the 2007 plan, to 9.356 Ha. This plan included an Easement C in Lot 44, a Covenant A in Lot 40 and a Covenant B in Lot 44. Frank and Jane signed this plan to certify their agreement to it and to dedicate the easement and the two covenants.
On about 21 December 2009, the Tableland Regional Council approved the plan of subdivision. On 22 December 2009, the plan was registered over the title to the land, cancelling Lot 4 and creating two new lots. Their real property descriptions are Lot 40 and Lot 44 on SP 230967 Parish of East Barron, County of Nares (Lot 44). On registration of the plan, Jane and Frank became the registered proprietors of the fee simple both Lot 40 and Lot 44 as joint tenants.
Stacy paid the cost of the subdivision that created Lot 40 and Lot 44, the surveyors fees and all the associated approval and registration fees.
The transfer of Lot 44 to Stacy
On 9 February 2010, the transfer of the fee simple in Lot 44 by Jane and Frank to Stacy, as a gift, was registered.
Jane and Frank retained Lot 40 as joint tenants and continued to live in the house, which was on that part of the land. Stacy has remained the registered proprietor of the fee simple in Lot 44, subject to the easement, the covenant and, later, a mortgage.
Events after the subdivision in 2010
Angela and Khalil’s version of what happened after the subdivision created Lot 40 has changed over the life of this proceeding. Indeed, it changed over the course of the trial. An individual’s ability to recall the dates of events and to assess the relative importance of different events is necessarily imperfect. I do not regard the changes reflected in amendments to their defences as a basis for rejecting the evidence given by Angela and Khalil at the trial. Nor do I regard the differences between the evidence they gave and the case they pleaded as significant in that regard. I have considered their evidence in the context of the evidence given by each of the other witnesses at the hearing and with the contemporaneous documentary evidence created and kept by persons outside the family.
In their defence, Angela and Khalil alleged that before the transfer of Lot 44 to Stacy was completed, Jane told Frank (apparently in the presence of Angela) that Lot 40 would be transferred to the remaining children. This would have been a change from the plan for Jane and Frank to give each child a portion and retain one for themselves. Jane, Frank and Angela were witnesses at the trial. Not one of them gave evidence that Jane made such a statement at that time.
Frank said he wanted the land transferred to his children before he passed away. He explained, “I got really sick, and I wanted to see myself the – the land title changed.” Whenever he suffered a major health setback, he would renew his interest in transferring Lot 40. He said:
“I’ve had a lot of illnesses, and whenever I got to the stage of really being sick and worried I wanted to see the land changed. So, yeah, it happened a few times.”
It seems not to be in dispute that the first time this occurred was in 2015, when Frank contracted a “golden staph infection” [3] at the site of his pacemaker. He was in the intensive care ward at Prince Charles Hospital in Brisbane, and very seriously ill.
[3]Staphylococcus aureus.
Frank knew that if he died, his interest in Lot 40 would pass to Jane as a joint tenant or under his will. He described that scenario as “Not good.” In his view, Jane could have Lot 40 “only to look after the kids.” It was not to be for her benefit in any way.
Angela says, from about that time, she pressed Jane and Frank to transfer the whole of Lot 40 to her and Khalil. I accept the evidence of Frank that he was in agreement with Angela. I accept the evidence of Jane that she was not.
Frank recovered from this infection.
In amendments to the defence,[4] Angela and Khalil alleged that in the first half of 2016, Jane, Frank and Angela agreed to transfer Lot 40 to Angela and Khalil.
[4]The amendments were made on 13 August 2020 and on 4 February 2022.
At about this time, Angela and Khalil arranged to see a solicitor in Cairns, Alan Griffiths, about the transfer. They arranged for Frank and Jane to attend. Mr Griffiths readily identified that Jane and Frank needed their own independent legal advice. Frank was dismissive of this. He said they would not be getting any independent advice. The solicitor’s visit identified other issues, including capital gains tax, transfer duty, and the need to know the value of the land.
When Frank described the visit to see Mr Griffiths, he said “We were all there.” But when he was asked to name the people present, he said “Khalil, Ange, Myself. I don’t think Stacy and Sarelle were there. No, it was just us.” Jane did not rate a mention. Angela and Khalil distinctly recalled that Jane was there.
Jane’s opinion and interests did not come into Frank’s consideration. When asked to explain what he was talking to Jane about with respect to the property, he said:
“Just I wanted somebody else to look after what I’ve been looking after for a long time. I felt not confident in myself. So my daughter is smarter than me.”
The intolerance, on the part of Frank, to any other course than a transfer of the title to his daughter Angela and her husband Khalil was evident in his evidence. It was also clear that Frank placed no value on Jane’s opinion or interest. He never spoke of seeking her view or thinking about her welfare. In giving his evidence, he referred to Jane as if she were a servant. Frank’s explanation was that he wanted the land transferred to Angela and Khalil while he was alive. The urgency arose from the thought that Frank might pass away before the transfer was done.
In July 2016, Sarelle passed away. Khalil contacted Mr Griffiths and told him they were not ready to proceed with a transfer of Lot 40.
Angela and Khalil had not given up on a transfer. In 2017, they attended the property with a valuer they knew from Trinity Beach, to get a current valuation. Khalil explained, “we needed to understand the present evaluation of the property for any potential transfer to happen.”
In 2018, Angela and Khalil moved to live in Malanda and work on the Tablelands. According to Khalil, “everything [to do with a transfer] sort of came back to life again in 2018.” I infer part of the reason was the state of Frank’s health.
Frank travelled to Brisbane frequently for medical tests and treatment. Jane accompanied him. In early 2018, while in Brisbane for that purpose, Frank fell. He suffered several fractures of his eye socket and an intercranial hematoma caused by a rupture of a blood vessel within the brain.[5] He was admitted to the Royal Brisbane Hospital in a serious condition. He remained an inpatient until about May 2018. While Frank was in hospital, Jane’s mother also fell ill. Jane flew to Darwin to see her mother.
[5]Jane described it as a “bleed on the brain”.
Events in November 2018
The parties adduced evidence about events in November 2018 leading to the signing of the transfer on 27 November 2018.
8-9 November 2018 – Jane in Atherton Hospital
On Thursday 8 November 2018, Jane was admitted to the Atherton Hospital. Diane Serafini, a friend of Frank and an acquaintance of Jane had brought her there.[6] This was about three weeks before Jane signed the transfer. Some hospital notes were tendered. These record that at 1:30 pm Jane said she needed to see a social worker. The social worker’s notes are for 2:50 pm. In them, Jane is described as a domestic violence patient “admitted with possible cardiac chest pain, sudden onset of chest tightness with palpitations.” The notes record a little of Jane’s relationship with Frank, noted above. They continue:
“Pt [patient] reports he [Frank] can’t be alone so she never gets space from him or time for herself which she feels she needs. Pt reports hasn’t been to GP in over 6 yrs due to finances & not having time to focus on herself.[7] Pt reports husband doesn’t have insight into the way he acts. Pt reports he is manipulative & can be “at times” emotionally abusive towards her. Pt reports in past he has hit her “only once or twice” “mostly [the abuse has been] emotional”. Pt reports husband, Frank, does not understand why she would need counselling. Whenever she has discussed it – he thinks everything is normal. Pt reports she feels overwhelmed & like she has no one to talk about any thing & her concerns.”
[6]Ms Serafini gave evidence, but it did not bear upon the matters in issue.
[7]As Mr Ryall submitted, this part of the social worker’s notes indicates on that day Jane’s memory of her visit to her general practitioner was wrong. Jane had seen her doctor on 19 October 2016 and on 3 October 2017. Given her physical and mental state, I place no importance on Jane’s inability to recall how long ago was her last GP visit in her November 2018 discussion with the social worker.
The social worker recorded some advice given to Jane about self-harm. The notes then continue:
“Pt has added stress & an unwell mother in NT. Has had to fly there recently to care for her whilst husband was still in Brisbane. Pt reports feeling torn between her husband & her mother. Pt reports she feels like “just a carer” & no one identifies she needs help also.”
The social worker noted that Jane was teary many times during the interview. She records that Jane was receiving the carer’s pension from Centrelink and struggling financially. The notes then continue:
“Reported some family tensions re property & inheritance which she reports is added stress. Pt reports minimal social connections as everything is done husband’s way & “what he wants”.”
The social worker then noted discussions with Jane about a GP Management Plan, attempts to harm herself a “long time” in the past, taking medication for depression, and a community social work referral. The notes include a discussion about the option to leave Frank: “Pt agreed she has already considered this”. The social worker records concerns expressed to Jane about discharging her home that day without further discussions and plans for support. According to the notes, the social worker discussed these concerns with the medical registrar, and Jane was referred for observation prior to discharge “due to emotional state & stressors.” The social worker and the medical registrar discussed with Jane “wanting her to stay” and see them both the following day.
According to the hospital records, the social worker explained to Frank that Jane would be staying the night in hospital. Frank told the social worker a friend would stay with him “to look after him” while Jane was in Hospital.
The next entry in the Hospital records is for 9:50 pm that night:
“Pt stated she is very stressed [with] dealing [with] her husband’s illness & travelling to Brisbane for his care & her mother’s illness in Alice Springs (travelling between both cities), the death of her daughter, property disagreement [with] husband/children & dealing [with] changed behaviour of husband since his medical condition “more abrupt”. Pt stated that she has no one to talk to & debrief with & she feels that it is “building up in head”. Pt is very keen to seek help [or] counselling [with the] social worker[’s] assistance.”
The notes record that Jane was discharged at 10:00 am on Friday 9 November 2018. The handwritten discharge summary gives Jane’s “current state” as “Very low mood [with] possible domestic abuse & violence from husband”, attributing this information to the registrar, social worker, the registered nurse, and the patient information.
12 November 2018 – meeting at Montgomery Solicitors
On Monday 12 November 2018, Jane went with Frank and Angela to see Montgomery Solicitors in Atherton. This was 15 days before the transfer was signed. The meeting was at 11:00 am. Khalil met them there. The solicitor’s appointment had been arranged by Angela. The solicitors were to act for Angela and Khalil in obtaining a transfer of Lot 40 from Jane and Frank.
Melissa Klein, a solicitor at the firm, gave evidence of what occurred, largely relying on some notes of the meeting in her own handwriting, which she said were made at and shortly after the meeting. According to those notes:
“Angela explained that this would be her inheritance gifted early and [she was] happy to have Frank + Jane live there.
…
Frank was quiet for the meeting and only stressed once that he is unwell.
Jayne told Angela to ‘take her time and that everything was okay” at one point as Angela was flustered with her folder of prior research + info.
[Ms Klein] Told Frank + Jayne that they have the option to get their own legal representation + that a letter would be sent to them [with the] transfer documents – We cannot witness as not acting.
Send paperwork to Angela’s address + she can bring it to them.
Everyone was very relaxed and Angela was the main speaker.
Jayne asked me directly whether she would need to sign as “Jayne Wilce” or “Jayne Boddington”. I said that the title is in Jayne Boddington so that is how she will have to sign.”
I accept the evidence, common to all the witnesses, that at the meeting Frank was completely opposed to him or Jane receiving any independent legal advice or any advice at all about the transfer. Frank said, “We were asked if we wanted to get our own solicitor to verify things. But it was just for the kid. So, it really didn’t matter. The solicitors were there.” When cross-examined, Frank’s evidence was that he had said, “Don’t need it.”
At the meeting, Angela said she and Khalil were happy for Frank and Jane to live in their house on Lot 40 for the rest of their lives. This is reflected in Ms Klein’s note. However, Ms Klein had a fuller recollection of this part of the meeting. Ms Klein said she left the room to consult the principal of the firm about this. When she returned, Ms Klein told Angela and Khalil that they should not do anything to protect Jane and Frank’s ability to continue to live on Lot 40. Ms Klein told them it was “fine” to give Jane and Frank a verbal assurance, but they should not give any written assurance. Ms Klein advised Angela and Khalil that it was up to Jane and Frank to get their own advice on having a lease or to organise any document to allow them to continue to live in the house on Lot 40. As a result, Ms Klein recalled, there was no discussion of a lease for the house or land at all.
26 November 2018
On Monday 26 November 2018, the solicitors had prepared the transfer instrument, a letter to Frank and Jane, and another to Angela and Khalil. This was the day before the transfer was signed.
The solicitors posted these documents that day. All were sent to the post office box held by Angela and Khalil in Malanda. None was sent to Jane and Frank’s home at Barrine. In the letter addressed to Frank and Jane, but posted to Angela and Khalil’s address, Ms Klein confirmed the firm’s recommendation that Frank and Jane obtain independent advice on the transfer.
At about 9:30 am that morning Angela called the solicitor’s office by telephone, asking about the transfer documents. Angela gave evidence, which I accept, that Ms Klein returned the call, told her the papers had been posted and told her she could call at the solicitor’s office to collect a set of the transfer papers. I also accept Angela’s evidence that she collected a copy of the transfer papers from the solicitors that day.
On the evening of Monday 26 November 2018, Jane brought Frank to Atherton Hospital. Frank had a bad stomach complaint. At 8:54 pm Jane sent Angela a text message telling her they were at the hospital and asked Angela to call. Frank was admitted to Atherton Hospital.
27 November 2018
On the morning of Tuesday 27 November 2018, Jane went to see her general practitioner at Eacham Medical Centre. Jane had a long discussion with her doctor about relationship stress, controlling behaviour and emotional abuse by Frank over a long period of time, and disclosed she was thinking about leaving Frank “finally.” This was on the morning of the day she signed the transfer.
Jane’s general practitioner completed a GP Mental Health Care Plan for Jane that morning. In the patient history section, Jane’s general practitioner recorded:
“Married to husband Frank for 36yrs. Long history of abusive relationship – initially physical violence, currently emotional abuse and controlling behaviour. … Recently put under pressure by Frank and his daughter to sign over ownership of their property to his daughter – feels manipulated to do so.”
Jane went from seeing her general practitioner to visit Frank at Atherton Hospital. There she was met by Angela and Khalil in Frank’s room. Jane was not told this would happen. She said she was surprised to see Angela when she went there.
There, in Frank’s presence, Angela presented Jane with the transfer with all the required detail completed except for her signature and Frank’s signature. Angela asked, “Are you ready to sign the transfer?” and said words to the effect, “You’ve got paperwork to sign.”
Rayad Haig, a work colleague of Angela’s, gave evidence, which I accept, that at Angela’s request he came to the Atherton Hospital to witness the signatures of Jane and Frank on the transfer form. Mr Haig said he arrived at the hospital and was met by Angela. She took him into Frank’s room.
Mr Haig said, “Inside the room was the two people who were going to sign the document. The document was presented. We went through. They signed in front of me. I then witnessed their signature.” He was asked if any words were spoken while he was in the room. He said, “Just quiet niceties. There was no major conversation at all.” He could not recall saying anything more than something “just to ensure that both of them were happy to sign the document.”
I accept Angela’s evidence that she had originally planned for Jane and Frank to go to her workplace to sign the transfer in Mr Haig’s presence. Frank’s admission to hospital had caused her to change this plan. This may account for Jane’s surprise.
Frank explained in own words why he wanted the transfer signed that day:
“I had a bad stomach complaint, so I ended up in there. They were going to send me away to Prince Charles again and I had doubts, you know, like, I was already doubting living, so I wanted the paperwork to be finished, signed out, so I didn’t have to worry about it.”
Frank and Jane signed the transfer. Angela remined Jane to sign as “Boddington” not as “Wilce”. Mr Haig witnessed the signatures. Mr Haig left.
Angela took the transfer to her solicitors. They executed it on behalf of Angela and Khalil, marked the transfer duties paid, and sent it by post to the Registrar of Titles.
On 7 December 2018, the transfer was registered, making Angela and Khalil the registered proprietors of the fee simple in Lot 40. The mortgage granted by Frank and Jane to their bank remained on the title.
Consideration of the evidence
The undue influence alleged here is excessive pressure on Jane. To succeed, Jane must show that the effect of the pressure on her was such that she had no free will.
Like Angela, Jane’s recollection of specific events, when and in what sequence each occurred was imperfect. Jane accepted she had a poor memory of events at the relevant time. This did not detract from the genuineness with which Jane gave her evidence or, in my observation, the reliability of her testimony when checked with objective points of reference.
Many criticisms of Jane’s evidence were advanced on behalf of Angela and Khalil. Those said to affect her reliability included that, if Jane had concerns about undue pressure from Frank, “she kept them to herself and did not reveal them” to family members, the social worker at the Atherton Hospital or her general practitioner at Eacham Medical Centre. I reject these criticisms. Jane did reveal her concerns to the social worker at the hospital, who recorded them in the notes three weeks before the transfer was signed. She disclosed them to her general practitioner on the morning of the day she signed.
A specific criticism of Jane’s reliability was that she did not tell the social worker “that she was in a difficult position because a husband was holding her ransom by threatening to terminate the relationship if she did not sign the document”. It was also put that Jane’s evidence failed to show that “termination of her marriage and/or her leaving the family home was something that she ought fear because it would cause her some great difficulty”. It was said that, before signing the transfer, Jane “had commenced a process of coming to the conclusion that she would leave her husband.” This last point is consistent with Jane’s recorded disclosures to the social worker and to her general practitioner. I do not find these matters have any adverse consequence for the reliability of her evidence.
For Angela and Khalil, it was also put that Jane should be found unreliable because, they say, Jane “offered no oral evidence about what led to her leaving her husband” and because Jane’s evidence “was contradicted directly by her husband Frank.” Added to these was the submission that Jane had not provided “the sort of detailed evidence that would be necessary to accept her case generally.” The following examples were given: that Jane had “not suggested that anyone had ever seen” Frank display his anger by breaking things in the house; and Jane “did not give evidence to the effect that” [Frank] “was doing the offensive acts deliberately at times when there would be no one present to witness them or the like.” It was also put that Jane’s evidence should not be accepted because “a number of serious allegations made against Frank in the statement of claim … were not proved”.
Not uncommonly, such arguments have been raised to challenge the reliability of evidence given by a woman about the conduct of her partner in her home. They do not cause me to regard Jane as an unreliable witness.
I accept Jane’s evidence that Frank’s domestic violence had been long-standing. It is consistent with the documentary records tendered at the trial. These were admitted after Counsel for Angela and Khalil put questions that suggested Jane had invented the allegations in order to set aside the transfer.
The medical record from the social worker at the accident and emergency outpatient service at Atherton Hospital for 27 January 1994 records:
“Referred [Clinical Nurse Consultant] – Some D.V. started since marriage ceremony “no longer partner but now a wife (with all that used to imply)” - not suicidal now [Jane] feels she needs to be around for her 2 children (13 [year old female] and 10 [year old boy]) so despite some thoughts [and] one previous attempt will not try again, at least for time being. Mother flying from Darwin to look after family whilst Jane is here.
A social admission for Monday, please, if for no other reason. Thanks.”
The next entry in the accident and emergency outpatient service records at Atherton Hospital is for 8 August 1994. It records:
“Presents distressed + tearful – relational crisis at home – has been sitting in car for 1 hour contemplating suicide – had rung Womens Centre but reluctant to go there.”
The next for 16 December 1994 records:
“Left husband [3 weeks] ago – has restraining order against him. Kids [with] him but stayed with Jane in unit in Atherton for [3 days]. Has good supports [with] friends in area. Feels emotional turmoil is settling a bit.”
Jane’s general practitioner records for her visit on 6 March 2009 record that Jane:
“is under an enormous amount of pressure in her role as carer for her husband who is unwell with ischaemic heart disease and her husband (Frank)’s uncle, an 86yo man with physical and mental disabilities. She has been having increasing difficulty coping with the demands placed on her. Her husband sounds as if he is unusually controlling of her.”
Given the private nature of the relationship within which Frank’s abusive behaviour occurred (and the fact that most incidents of domestic violence go unreported), the detailed accounts of Frank’s conduct given by Jane to the medical professionals and reported by them in their records are important pieces of evidence. Most women do not report domestic abuse and violence to other authorities, like police, particularly when the perpetrator is a current partner. Women subject to coercive control often stay in abusive relationships, lacking the confidence to leave and fearing the consequences if they were to do so.
In his evidence, Frank said that Jane left their home “many times” during their marriage. He said that Jane “kept disappearing”, but “she always come back.” Frank spoke of this as if it were a matter of utter unimportance. He spoke as if Jane was a person of no importance.
Frank denied the specific allegations that he smashed objects around the house, that on one occasion when Jane walked out of the house, he followed her in a vehicle, punched her in the jaw, forced her into the vehicle, and drove her back to the home. He denied deliberately driving a vehicle off the road so that a tree struck the front passenger side where Jane was seated. I found Jane’s account of each of these things more persuasive than Frank’s denial.
Jane gave evidence that, in November 2018, Frank said that, if Jane did not transfer or agree to transfer Lot 40 to Angela, he would end the marriage and she would be forced out of her home. Jane’s testimony was compelling. This was put to Frank in cross-examination. His reaction was derisive, as if Jane’s words did not merit a response. Observing Frank give his evidence, I formed the view this was the sort of thing he would say any day of the week, without giving it a second thought.
Jane’s evidence, and the contemporaneous records made by the professional caring for her, show she was affected by a kind of unacceptable behaviour towards women that is common, widespread and has far-reaching consequences. Like many other women, Jane endured an ongoing pattern of behaviour aimed at controlling her. By his bullying, threatening and, on occasions, violent behaviour, Frank made Jane afraid of him. By ignoring, disregarding or devaluing Jane’s opinion on important matters, Frank made Jane think her view and her interests were not worth mentioning and, if she mentioned them, she would not be heard. Frank used this range of tactics to exercise power and control over Jane.
Jane feared she would lose her income as a carer for Frank, should he pass away. She would suffer the same financial harm if she were to leave him permanently.
Perhaps the most disturbing evidence Jane gave was of finding a hammer on Frank’s dresser in their bedroom one evening in November 2018. Jane said she returned it to its proper place in the workshop near the house. According to Jane, the next evening, she found the hammer on the dresser, once again. Frank said he heard about this when police came to the property, after Jane had left. He denied being involved. There were others in and about the house at this time. It is not necessary to make any specific finding about this allegation, given the other evidence, which I accept, about the relationship between Jane and Frank.
On the evidence, I am satisfied that, by reason of many years of psychological, emotional and occasional physical abuse, Jane was in a position of special disadvantage with respect to any important step that Frank insisted upon. The stress and pressure Frank directed at her led Jane to seek medical assistance on several occasions, including twice in the weeks leading up to the signing of the transfer.
I am satisfied that Frank was in a position of emotional dominance which gave him influence over Jane.
At one point, for Angela and Khalil, Mr Ryall was careful not to suggest Jane was not “holding all these views that there were severe problems” in her relationship with Frank. However, he submitted, “The question is whether that was communicated in a way that the husband understood or could be seen to understand.” In my view, that is not a relevant or appropriate question, at all.
Mr Ryall’s main submission on this point was that, if there was such undue influence, it could conceivably only be that of Frank, and Angela and Khalil were not aware of it. For Angela and Khalil, it was submitted there was the evidence that Jane appeared willing, acted as though she was willing, and so Angela and Khalil should not be adversely affected by any actual undue influence exerted by Frank.
Angela and Khalil relied on their own conduct, and on what they observed of the conduct of Frank, to make a case that they thought Jane had agreed to the transfer of Lot 40. Mr Ryall asked the court, “If there wasn’t [agreement], why would they be seeing solicitors, why would they be going to have fish and chips and discuss what would happen when it had come together and the like?”[8]
[8]It was common ground that, after the meeting at Montgomery Solicitors, Frank, Jane, Angela and Khalil had a fish and chip lunch at the Super Star Café in the main street of Atherton.
The relevant questions are somewhat different to those Mr Ryall posed. They might be expressed in this form.
(a)Why was Jane taken to see the solicitors acting for Angela and Khalil?
(b)Why did Jane not see her own solicitor?
(c)Why was it that Jane was accompanied by Frank on visits to the solicitors?
(d)Why was the transfer to be signed by Jane without her own advice?
(e)Why was Jane to be asked to sign in the presence of Frank?
A logical answer to each of these questions is that these things were done to prevent Jane receiving advice about her own interests and to prevent Jane exercising her free will.
Both Angela and Khalil knew that Jane had received no independent legal or other advice on the transfer. They knew Frank had made the decision not to seek independent advice for himself and for Jane, because Frank told them so at the meeting with Ms Klein, as he had done two years before in the meeting with Mr Griffiths. They knew Jane should seek independent advice, because Ms Klein had said so, as had Mr Griffiths. Ms Klein had gone as far as saying she would not be prepared to witness the signature of Frank or Jane on the transfer document because her firm was not acting for them.
Angela arranged for Jane and Frank to see the solicitors acting for her and Khalil. Angela picked up the transfer document from the solicitors. Angela brought the transfer to the Hospital where she knew Jane would come to see Frank. Angela asked Jane at the Hospital in the presence of Frank, “Are you ready to sign the transfer?” Angela arranged for her work colleague to come to the Hospital to witness the signatures of Frank and Jane. Angela told Jane at the Hospital, in the presence of Frank, “You’ve got paperwork to sign.”
Jane was constrained in assessing alternatives and deciding between them. She had no independent advice from any person acting for her or concerned about her interest. No step was taken by Angela or Khalil to arrange for Jane to get her own advice. On the contrary, Angela arranged for Jane to attend meetings with the solicitors acting for Angela and Khalil and always in the presence of Frank.
Jane described her situation in these words, “I had no option and no choice at that time but to agree.”
Jane was not free from the pressure exerted by Frank.
Although Angela knew there were other choices open to Jane,[9] she did not identify any of them for Jane or suggest that Jane pursue any of them. Nor did she arrange for or even suggest Jane obtain any advice or other social support. The only choice shown to Jane was to agree to what Frank, Angela and Khalil had decided. In the circumstances, Jane’s ability to make a judgment about what to do was impaired by the pressure from Frank and, to a lesser extent, Angela. Jane subordinated her interest and her will to what Frank wanted, as she had done for more than 30 years.
[9]Angela identified several options in cross-examination. One was that Angela and Khalil could build a cottage on Lot 40 with Frank’s and Jane’s consent and live there until the parents died. This would have put Angela and Khalil in a similar position to that they proposed for Jane and Frank. Another was that Angela and Khalil could offer to help Jane out with mortgage repayments (about $150 per fortnight), if Frank passed away. Another was that, if Frank died and she was unable to keep up mortgage payments, Jane could sell Lot 40.
I am satisfied Angela knew of Frank’s influence over Jane. Angela was concerned to use Frank’s influence over Jane to obtain a transfer of the land while Frank’s influence remained. Angela knew Frank’s ability to influence Jane would be lost once Frank passed away. Through Angela, Khalil also knew of and relied on Frank’s influence over Jane to obtain a transfer of the fee simple in Lot 40. Angela and Khalil accelerated their steps to obtain Jane’s signature on a transfer when Frank suffered a serious health setback. Late on 26 and on the morning of 27 November 2018, Angela thought that Frank might be so seriously unwell to be transferred to a tertiary hospital in Brisbane. This caused her to arrange for her work colleague to come to the Hospital and witness the signatures of Frank and Jane on the transfer. This is the logical explanation for Angela and Khalil taking up the time and energy of a very sick father in hospital with signing a legal document. I am satisfied that Angela and Khalil intentionally used Frank’s influence over Jane to obtain Jane’s signature on the transfer form that day.
In this way they took advantage of the special disadvantage suffered by Jane. It was unconscientious of Angela and Khalil to do so.
Part of the defence was put on the basis that Jane would have executed the transfer in the absence of the pressure applied to her by Frank.
The transfer of Lot 40 to Angela and Khalil was self-evidently contrary to Jane’s interests. By it, Jane lost the only substantial asset that she owned. She lost ownership of the place where she had lived, with numerous short withdrawals, for 28 years or more. Her financial security was completely undermined by the transfer. Her security of residence changed from being subject to Frank’s mood and conduct to being under the legal control of Angela and Khalil.
In the circumstances, I reject the submission that Jane would have signed the transfer without the influence of Frank. It is an inference unsupported by the evidence.
I also reject the submissions for Angela and Khalil that the transfer of Lot 40 to them was the carrying out of the original plan by Jane and Frank to subdivide Lot 4 into five lots and give one to each of their four children. The transfer was contrary to that plan. Jane and Frank had not planned to part with possession of the whole of the land, leaving them dependent on the wishes of one or more of their children. They had not planned to deny Barry any interest in the land.
I am satisfied on the evidence that Jane was not equal to protecting herself in respect of her interest in Lot 40. In the circumstances, the court should protect her.
Relief
Jane seeks declarations about her interest in Lot 40, the validity of the transfer and other matters. Angela and Khalil are the registered proprietors of an estate in fee simple in the land. Their title is indefeasible, save for an equity arising from their own act.[10] Their knowing use of undue pressure by Frank to obtain Jane’s signature on the transfer document gave rise to a personal equity. Jane may assert that equity against Angela and Khalil, notwithstanding they became the registered proprietors by registering the transfer.
[10]Land Title Act 1994 (Qld), s 185(1)(a).
As I indicated during addresses, I will allow the parties some time to consider the relief that should be granted and the form of the orders that should be made.
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