Wilms v Wilms
[2016] WASC 396 (S)
•4 MAY 2017
WILMS -v- WILMS [2016] WASC 396 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 396 (S) | |
| Case No: | CIV:1730/2013 | ON THE PAPERS | |
| Coram: | KENNETH MARTIN J | 4/05/17 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Final orders given | ||
| B | |||
| PDF Version |
| Parties: | HARALD WILMS RENE THOMAS WILMS REGISTRAR OF TITLES |
Catchwords: | Final orders Contended life tenancy Interest in plaintiff First defendant's contention of leasehold interest Costs follow event of trial Turns on own facts |
Legislation: | Nil |
Case References: | Perpetual Trustee Co Ltd v Smith [2010] FCAFC 91; (2010) 186 FCR 566 Re Potter, Deceased [1970] VR 352 Wilms v Wilms [2016] WASC 396 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
RENE THOMAS WILMS
First Defendant
REGISTRAR OF TITLES
Second Defendant
Catchwords:
Final orders - Contended life tenancy - Interest in plaintiff - First defendant's contention of leasehold interest - Costs follow event of trial - Turns on own facts
Legislation:
Nil
Result:
Final orders given
Category: B
Representation:
Counsel:
Plaintiff : No appearance
First Defendant : No appearance
Second Defendant : No appearance
Solicitors:
Plaintiff : McVay Bates & Associates
First Defendant : Chris Baker & Associates
Second Defendant : No appearance
Case(s) referred to in judgment(s):
Perpetual Trustee Co Ltd v Smith [2010] FCAFC 91; (2010) 186 FCR 566
Re Potter, Deceased [1970] VR 352
Wilms v Wilms [2016] WASC 396
1 KENNETH MARTIN J: In the aftermath of the publication of my reasons for decision in this action which was determined by trial, the parties remain in disagreement concerning the terms of final orders.
2 The plaintiff and the first defendant, who are father and son, through their legal representatives, have submitted rival minutes of orders concerning appropriate orders giving effect to the post-trial reasons of 12 December 2016: see Wilms v Wilms [2016] WASC 396, 194.
3 One particular issue which has divided the parties conceptually subsequent to trial concerns a point which received only scant attention at trial, since it presented as ostensibly an uncontentious concession made as to the plaintiff's interest in the Clarkside Court property at Wanneroo.
4 It will be remembered it was the contention of the plaintiff at trial that he was entitled to relief by way of a constructive or resulting trust, which trust effectively gave him full legal and beneficial entitlement to the Clarkside Court property. The first defendant successfully opposed relief in those terms - but made an important concession from the outset of that trial. I noted that concession at [46] - [47] of the reasons in terms:
[46] Importantly, however, is this concession by Rene - there is no challenge by Rene, and the complete acceptance at trial, that his father is presently entitled to a life tenancy beneficial interest in the Clarkside Court property (or until his father decides that he no longer wants to live there). The acknowledged lifetime tenancy interest for Harald is accepted on a conditional basis that Harald does not need to pay any further funds to or for Rene, but must continue to meet all outgoings associated with Harald and Linda's ongoing occupation of the Clarkside Court property during Harald's life tenancy occupation of Clarkside Court.
[47] Rene, in effect, also accepts that he must not jeopardise his father's enjoyment of that life tenancy interest for as long as Harald wishes by any dealings with the property - such as high level borrowings leading to a risk of an exercise of the mortgagee's power of sale. But subject to his father's life tenancy interest, Rene otherwise asserts full rights of legal and beneficial ownership over Clarkside Court, including the right to borrow a reasonable level of funds against it under the redraw facility, as Rene sees fit.
5 There are a number of further references within my reasons to a concession about Harald's interest which always prevailed during the course of that trial: see [55] and [86].
6 With the benefit of hindsight terminology used in [46] in referring to a 'lifetime tenancy interest' was less than clear (notwithstanding that it was the first defendant's terminology at the trial).
7 The actual evidence-in-chief concerning a critical father-son conversation of early 1997 by telephone was set out in par 13 of Rene's witness statement, which the reasons capture at [103]. The significant component of this aspect of the conversation was Rene then telling his father:
I also told him that he could live in the home until he died or no longer wanted to live there, and pay rent to me on a monthly basis. I said the amount of rent would be equal to the monthly mortgage repayments, and that I would use the monies that he paid to me as rent, to repay the loan. He told me that the Wanneroo Property would be mine anyway.
- See also [150] and [192] of the reasons.
8 The issue of controversy that has emerged in the wake of my reasons for decision being published is the plaintiff's contention that the abovementioned concession by Rene, upon which the trial proceeded, in effect, had acknowledged for Harald a lifetime fee simple interest in the Clarkside Court property at Wanneroo - rather than a lifetime leasehold interest - until Harald died or chose to relocate to other premises. Orders and relief in those broader terms are now sought by Harald by way of a declaration in the following terms under final orders he proposes, namely:
1. the court declares that the plaintiff has a life interest in the property situated at 24 Clarkside Court, Wanneroo, in the State of Western Australia, being lot 277 on plan 9615 and being the whole of the land comprised in Certificate of Title Volume 1813 Folio 448 (Property); and
2. the plaintiff has the powers of a life tenant as set out in s 109 of the Trustees Act 1962 (WA), and in equity, and it is further declared that the plaintiff or his personal representatives may remove all domestic, ornamental or trade fixtures taken onto the Property by the plaintiff upon the termination of the life interest.
9 In accord with directions which I issued, the parties have since filed written submissions to support their various contended orders for final relief following the trial. Harald contends in these terms under pars 16, 19 and 20 of his written submissions of 17 March 2017:
16. The agreement contended for by Rene must have been that Harald had a life estate in Clarkside Court as there could not be a valid leasehold estate determinable on Harald's death by virtue of the uncertain duration of Harald's life, and Rene was not conceding an estate of inheritance.
…
19. On this basis Rene's only interest in Clarkside Court is a reversionary interest which gives him no power to interfere with Harald's possession, save to the extent permitted by the doctrine of wasteuntil the fee simple vests in him on Harald's death.
10 Reliance is placed upon an extract from the text Bradbrook, McCallum & Moore, Australian Real Property Law (3rd ed, 2002) 2.26.
20. It follows in the plaintiff's submission that the orders proposed by the first defendant [Rene] at orders 2, 3 and 4 are either inconsistent with the rights in the land granted to Harald or superfluous as being already covered by the doctrine of waste. Similar observations apply to a specific order requiring Harald to pay rates and taxes as those obligations form part of the life estate. However, if the court considers that there is ambiguity about this or that it is desirable to make orders as to Harald's liability as to the payment of rates and taxes, this could be achieved by adding to the plaintiff's proposed order in 1 above the words:
'subject to him paying any rates, taxes and outgoings on the property described herein.'
- after the words 'the Court declares that'.
5. The plaintiff's right to reside in the land was limited until his death or until he vacated the property. In that sense, the right to which the plaintiff is entitled would be akin to the 'tangible right to reside personally'.
12 The first defendant's submissions draw what, on my assessment, is the correct and appropriate distinction for present circumstances as between two different concepts - in the first place, a 'lease for life', which interest differs in legal character from a life estate or life interest in real property, as explained by the Full Court of the Federal Court in Perpetual Trustee Co Ltd v Smith [2010] FCAFC 91; (2010) 186 FCR 566 [50]. A lease for life creates only a leasehold interest, whereas a life estate creates a freehold interest in the subject land.
13 For present circumstances, it is clear that it was only the first genre of leasehold interest which was accepted at trial by the first defendant as being held by his father in respect of the Clarkside Court property.
14 That assessment is demonstrable, once regard is had to the agreement found as between the Harald and Rene concerning the character of payments made by Harald being in the nature of rent. I refer in that regard to my reasons for decision at pars 141 - 146 concerning rental payments. The arrangement between the parties for payments, which I accepted, displays a character of rental payment arrangement. That feature is inconsistent with a wider freehold genre of life interest in the Clarkside Court property which Harald, essentially the unsuccessful party at trial, would now seek to assert by way of his contended declaratory relief.
15 Upon this issue, therefore, I am of the view that Harald's submissions upon this point of controversy must be rejected. They are fundamentally inconsistent with determinations of fact which I reached in my primary reasons for judgment concerning what was, in effect, the first defendant's concession to his father as to an enjoyment of only a leasehold interest in the Clarkside Court property held by his father until he died or if he decided to reside elsewhere.
16 Rene's written submissions contend that these leasehold arrangements are governed by the provisions of the Residential Tenancies Act1987 (WA). Strictly speaking, it is not necessary for me to reach a determination about that issue, although I am inclined to accept that the Residential TenanciesAct would apply in relation to the leasehold relationship accepted as between the plaintiff and first defendant.
17 It is pointed out by Rene that the Residential Tenancies Act provides for a right of termination of a residential tenancy agreement on any ground by the lessor - if there is not less than 60 days' notice given (s 64). On its face, such a provision presents as being out of alignment with the lifetime leasehold occupancy right which is acknowledged by the first defendant towards his father (subject to Harald deciding to live elsewhere). But there is no suggestion on the evidence that those somewhat inconsistent arrangements as regards a possible termination on 60 days' notice by the first defendant are sought to be invoked or are likely to be invoked against the plaintiff. Were that to be the case, then issues would present in relation to the existence of an estoppel against a termination favouring Harald, under circumstances where Harald is not otherwise in breach of his accepted leasehold rights over Clarkside Court - bearing in mind the concession premise upon which the trial was conducted.
18 All that, however, raises wholly theoretical matters potentially for another day, in the event it should be necessary to resolve such a threatened termination dispute.
19 Otherwise than for the now resolved issue as to the nature of Harald's interest, there was no real further conceptual clash as between the parties concerning final orders as proposed by Rene (although proposed order 4 of Rene's minute is not appropriate as a final order ending this action).
20 A further but minor issue arises concerning rights sought under the proposed orders of Harald, of 17 March 2017, to lodge a further caveat in terms protecting the conceded leasehold interest which has now been clarified under these reasons. As to that, the submissions of the first defendant of 20 February 2017 at par 18 indicated:
[I]f the court was minded to permit a second caveat, the court should not make a blanket order for the lodging of a second caveat until the court is satisfied that the proposed caveat accurately reflects the interest.
21 Bearing in mind the clarification of this issue, the leasehold interest held by the plaintiff in 24 Clarkside Court under the terms now declared seems to me to be legitimately capable of being protected by a subject to interest caveat acknowledging that limited interest of Harald as clarified by these supplementary reasons. There will be leave for that, but on the basis that any such further caveat from the plaintiff must strictly meet the limited parameters of his interest now clarified by these supplementary reasons.
22 So then and further to the final orders there will be one further order in terms:
The plaintiff may lodge a further caveat should he see fit in accordance with the terms of s 138D(1)(e) of the Transfer of Land Act 1893 (WA) provided it is in accord with the leasehold interest held by him, as declared … (under par 1 of the orders).
23 Accordingly, final orders (essentially in the terms as proposed by the first defendant with some minor modifications by me) will issue as follows:
1. The court declares that:
(a) The plaintiff holds, subject to par 1(b) below, the right to reside for life in respect of the property located at 24 Clarkside Court, Wanneroo ('Property'); and
(b) the right to reside for life referred to in preceding par 1(a) shall cease on the earlier of either the plaintiff's death or of the plaintiff vacating the property for any reason.
2. For avoidance of doubt, it is further declared that the rights of the plaintiff identified under par 1 above, do not entitle the plaintiff to:
(a) sublease, transfer or otherwise dispose of his leasehold interest in the Property to any other person;
(b) make or cause to be made to the Property any improvements or additions without the express consent of the first defendant.
3. Whilst the leasehold rights referred to in par 1 are being exercised and enjoyed by the plaintiff, the plaintiff shall:
(a) meet all outgoings in respect of the Property, including but not limited to all rates and taxes levied and all utility accounts rendered in respect of the Property;
(b) keep the Property in a reasonable state of cleanliness;
(c) not intentionally or negligently cause or permit damage to the Property premises;
(d) cause any damage to the Property to be timeously repaired;
(e) not use the Property, or cause or permit the Property to be used, for any illegal purpose; and
(f) permit the first defendant or his agent to inspect the Property upon giving not less than 14 days' written notice in writing, which notice is delivered to the Property.
4. That previous orders of this court extending the plaintiff's caveat number M126109, made on 7 December 2012, be hereby discharged and it is further ordered that caveat number M126109 shall lapse at midnight on the day these orders become effective.
5. The plaintiff is to pay the first defendant's costs of the action, including any reserved costs to be taxed, if not agreed.
6. The plaintiff may lodge a further caveat should he see fit in accordance with the terms of s 138D(1)(e) of the Transfer of Land Act 1893 (WA) provided it is in accord with the leasehold interest held by him, as declared under par 1 of the orders.
0
2
1