Ewert v Martin [2018] QDC 176

DISTRICT COURT OF QUEENSLAND CITATION: Ewert v Martin and Martin [2018] QDC 176 PARTIES: ANITA GERTRUD EWERT (plaintiff) v JONATHAN MARTIN (first defendant) and LEKEETA MARTIN (second defendant) FILE NO/S: 1235 of 2017 DIVISION: Civil PROCEEDING: Trial ORIGINATING COURT: District Court at Brisbane DELIVERED ON: 9 April 2018 (ex tempore) DELIVERED AT: Brisbane HEARING DATE: 4, 5, 6, 9 April 2018 JUDGE: Koppenol DCJ ORDER: 1. It is Declared that the First and Second Defendants hold the property located at 14 Yaldara Street, Pacific Pines in the State of Queensland, more particularly described as Lot 823, Survey Plan 145034, County of Ward, Parish of Barrow, Title Reference 50386869 (“the Property”), presently registered in the names of the First and Second Defendants, by way of trust in favour of the Plaintiff. 2. An order that the First and Second Defendants take all necessary steps to transfer to the Plaintiff the Property including but not limited to the following: (a) That within 7 days of this Order, the First and Second Defendants attend to completion, execution and return to the Plaintiff of a Form 1 Transfer and Form 24 in the form attached to this order and marked A (the “Transfer”) in accordance with the requirements of the Land Title Act so as to affect a transfer of the First and Second Defendant's registered interest in the -- 1 of 11 -- 2 Property to the Plaintiff; (b) That within 14 days of this Order, the First and Second Defendants attend to completion, execution and return to the Plaintiff of any and all other documents necessary to affect a transfer of the First and Second Defendant's registered interest in the Property to the Plaintiff; and (c) That within 14 days of this Order, the First and Second Defendants attend to the completion, execution and return to the Plaintiff of any and all documents (including any Discharge Authority) as may be required by the Commonwealth Bank of Australia so as to issue a Release of Mortgage concerning Registered Mortgage Number 711413739 currently registered on title of the Property. 3. That the Plaintiff shall attend to payment of: (a) Registration Fees of the Department of Natural Resources and Mines required to affect a transfer of the title of the Property into her name as contemplated by these Orders; and (b) Stamp duty (if any) that may be payable on the transfer of the title of the Property into her name as contemplated by these Orders. 4. In the event the First and Second Defendants fail to complete, execute and return the Transfer as required by Order 2 (a) hereof, then upon an affidavit of the Plaintiff being filed in the Court in these proceedings attesting to the fact that the First and Second Defendants have failed to comply with these Orders, then a Registrar of this Honourable Court shall sign the Transfer, on behalf of the First and Second Defendants, transferring the First and Second Defendant’s registered interest in the Property to the Plaintiff as contemplated by these Orders. 5. In the event the First and Second Defendants fail to complete, execute and return any of the documents required by Order 2 (b) and (c) hereof, then upon an affidavit of the Plaintiff being filed in the Court in these proceedings attesting to the fact that the First and Second Defendants have failed to comply with these Orders, then a Registrar of this Honourable -- 2 of 11 -- 3 Court shall sign the documents, on behalf of the First and Second Defendants. 6. That the First and Second Defendants pay the Plaintiff’s costs of and incidental to this proceeding, including any reserved costs, on the indemnity basis. CATCHWORDS: CONTRACT - GENERAL CONTRACTUAL PRINCIPLES – FORMATION OF CONTRACTUAL RELATIONS – whether contract was entered into by the parties EQUITY – TRUSTS AND TRUSTEES – EXPRESS TRUSTS CONSTITUTED INTER VIVOS – oral agreement – where money paid by plaintiff to defendants – whether payment made to purchase property for plaintiff – whether payment made as gift to defendants – where property is purchased in defendants’ names – whether property held in trust by defendants for plaintiff – whether declaration should be made BREACH - whether breach of trust established – whether defendants required to transfer property to plaintiff COUNSEL: MT de Waard for the plaintiff The defendants appeared on their own behalf SOLICITORS: OMB Solicitors for the plaintiff The defendants appeared on their own behalf [1] The plaintiff seeks a declaration that certain property (a house and land at 14 Yaldara Street, Pacific Pines, Queensland) is held on trust for her by the defendants. Consequential relief to effect the transfer of title to her name is also sought. [2] The second defendant is the plaintiff’s daughter and the first defendant is the second defendant’s husband. [3] In essence, the plaintiff’s claim is that: (1) by agreement with the second defendant, the plaintiff paid $90,000 to the defendants in January-February 2007 on the condition that it was to be held in their home loan account but on trust for (and repayable on demand to) the plaintiff; that was done to assist the defendants by reducing the mortgage interest which they were paying at the time; -- 3 of 11 -- 4 (2) in mid-2007, the plaintiff told the second defendant that she was considering moving to Queensland and asked the second defendant to help locate a suitable property for her to purchase; (3) in late 2007, after the second defendant located the 14 Yaldara Street property and informed the plaintiff that the sale price was $465,000, the plaintiff and the second defendant (on behalf of the defendants) agreed that the defendants would purchase that property in their names but would hold it on trust for the plaintiff who would repay the defendants the purchase price and associated costs, fees and outlays once she received an anticipated matrimonial property settlement from her husband; (4) the defendants purchased the property in January-February 2008, with the assistance of a mortgage from the Commonwealth Bank of Australia; (5) in October 2008, the plaintiff paid to the defendants the sum of $400,000 (pursuant to the agreement in paragraph (3) above) and the subject mortgage was paid out in full by January 2009; (6) the plaintiff moved into the subject property in February 2009 and continued to reside there and pay council rates and property outgoings; and (7) in April 2014, the plaintiff informed the second defendant that she wanted the subject property transferred to her; the second defendant said that she was agreeable to that but subsequently the defendants refused to execute the transfer document. [4] The defendants did not deny that they received the initial $90,000. The first defendant said that he assumed that it was a gift because on previous occasions, the plaintiff had made gifts of money to his wife’s brothers. The second defendant also said that it was a gift. She denied that she had earlier agreed that it was to be held on trust for her mother. The first defendant’s evidence seemed to accept that $65,000 of that $90,000 was part of the money that was used to pay out their mortgage. [5] The defendants accepted that they did receive the further payment of $400,000 and indeed, tendered documents from the Commonwealth Bank of Australia confirmed that they did. The first defendant said that he assumed that it was used to repay the mortgage principal and thus enable the mortgage to be repaid in full within 12 months of the purchase of the property. He also said that he thought that the defendants purchased the property as an investment—but he accepted that the defendants had had the benefit of the plaintiff’s $400,000 and that the plaintiff was out of pocket for at least that sum of money. The second defendant said that she had not withdrawn or used any of that $400,000—but she was unable to suggest any other plausible way in which their mortgage could have been paid off so quickly. [6] The second defendant denied that she had told her mother in April 2014 that she was agreeable to transferring the property to the plaintiff. However, there was independent evidence from Ms Alana Anderson (the conveyancing clerk from the -- 4 of 11 -- 5 firm of solicitors who prepared the transfer form) that the second defendant also told her that she was agreeable to transferring the property to the plaintiff. [7] In my opinion, this case can be decided by the application of common sense in the context of an assessment of the credibility of the witnesses. [8] I found the plaintiff to be a credible, reliable and impressive witness. She gave her evidence in a measured way. She did not exaggerate or become excited. Her version of events was eminently plausible and logical. She had some spare money and wanted to help her daughter and son-in-law with their mortgage payments. She did not say or suggest that the $90,000 was a gift or a loan and it was not put to her in cross-examination that it was either of those things. [9] She was keen to relocate to Queensland because of an unhappy marriage. She knew that she would receive a substantial matrimonial property settlement. Then, when a suitable house property was located for her, and not wanting to miss the opportunity to buy it, she arranged with her daughter for the defendants to purchase the property in their names but on trust for her, on the footing that she would repay them once her matrimonial property settlement came through—which she did. I accept the plaintiff’s evidence. [10] In contrast, I regret to say that I found the second defendant to be an unimpressive witness who was argumentative and evasive on many occasions and gave a number of inconsistent answers to questions (especially questions concerning whether she knew that the plaintiff paid $70,000 into the defendants’ account). I also formed the impression that the second defendant felt a sense of entitlement to the initial $90,000 payment because her brothers had previously received gifts of hundreds of thousands of dollars from their mother. She denied the content of key conversations with her mother and even called Ms Anderson (the conveyancing clerk) a liar. [11] I do not accept the veracity of the second defendant’s denials. She could not explain why her mother (whom she described as untrustworthy) would have transferred the $400,000 to the defendants’ account, if it were not for the reason that her mother had said that she did—other than to suggest in an unpleaded allegation that the plaintiff wanted to hide money from her husband. I do not accept the second defendant’s evidence when it disputed the plaintiff’s evidence. [12] In my view, the first defendant (who gave evidence after his wife) was trying to support his wife’s evidence to the extent that he could. He did not have any of the critical conversations with the plaintiff. He fairly conceded that the $400,000 must have been used to pay out the defendants’ mortgage on the subject property. He attempted (rather faintly, I thought) to suggest that there were credibility issues with the plaintiff—but those points were not put to the plaintiff in cross-examination and were not pleaded or the subject of any disclosed documents. He gave me the impression of a man who would like to do the right thing now with respect to the plaintiff and to return her money, but does not have the financial capacity to follow it through. [13] In the end, I am satisfied that (a) the plaintiff advanced the $90,000 and then the $400,000 to the defendants on trust for her, and (b) she has established her case on -- 5 of 11 -- 6 the balance of probabilities. I do not accept the defendants’ alleged defences to the plaintiff’s claim—which consisted mainly of denials of the essential facts. [14] Accordingly, there will be a declaration that the defendants hold the subject property on trust for the plaintiff and an order for consequential relief as claimed by the plaintiff. [15] In light of the offer to settle made in the trial bundle at page 185, and having heard the submissions by Mr de Waard and Mr and Mrs Martin, I am satisfied that it is appropriate that I order the defendants to pay the plaintiff’s costs of and incidental to this action including reserved costs (if any) on an indemnity basis, such costs to be as agreed between the parties or assessed. [16] Orders accordingly. -- 6 of 11 -- QUEENSLAND TITLES REGISTRY READ THIS BEFORE SIGNING A TITLES REGISTRY FORM 1 – TRANSFER OR FORM 2 – MORTGAGE IF YOU FAIL TO PROVIDE THE WITNESSING OFFICER ADEQUATE EVIDENCE OF YOUR ENTITLEMENT TO SIGN THE FORM, THE WITNESSING OFFICER MAY DECLINE TO WITNESS YOUR SIGNATURE Note – This page is NOT part of the form and should NOT be lodged in the titles registry Signing and witnessing of titles registry transfer or mortgage forms A person who witnesses the signature of an individual on a titles registry form is required by law to take reasonable steps to ensure the person signing the form is entitled to do so. If you take your transfer or mortgage form/s to a Justice of the Peace or Commissioner for Declarations (or other person qualified under Schedule 1 of the Land Title Act 1994 to witness a titles registry form, such as a lawyer) to have your signature witnessed, you must provide to the satisfaction of the witness, the following – 1. proof of identity showing your photo and signature; and 2. supporting documentation that shows your name and property details, and helps to confirm you are entitled to sign the form/s. 1. Proof of identity documents Proof of identity documents may include –  driver licence; or  passport. 2. Supporting documentation that helps to confirm you are entitled to sign the form/s If you are selling property or are only refinancing, supporting documentation may include either –  a local government current rates notice for the property; or  a recently issued current title search statement for the property; or  a recently issued registration confirmation statement for the property; or  a current certificate of title (if one exists) for the property. If you are a purchaser and/or financing the purchase, supporting documentation may include either –  a copy of the contract of sale for the property; or  official loan documentation from your lender; or  a letter from a solicitor confirming you are entitled to sign the form. -- 7 of 11 -- QUEENSLAND TITLES REGISTRY TRANSFER FORM 1 Version 5 Land Title Act 1994, Land Act 1994 and Water Act 2000 Duty Imprint Page 1 of 1 Dealing Number OFFICE USE ONLY Privacy Statement Collection of information from this form is authorised by legislation and is used to maintain publicly searchable records. For more information see the Department’s website. 1. Interest being transferred (if shares show as a fraction) Fee Simple Note: A Form 24 - Property Information (Transfer) must be attached to this Form where interest being transferred is "fee simple" (Land Title Act 1994), "State leasehold" (Land Act 1994) or “Water Allocation” (Water Act 2000) Lodger (Name, address, E-mail & phone number) Lodger Code 2. Lot on Plan Description Title Reference Lot 823 on SP 145034 50386869 3. Transferor LEKEETA LEAH MARTIN & JONATHAN MARTIN 4. Consideration Pursuant to Order of the District Court of Queensland in proceeding number 1235/17 dated 9 April 2018. 5. Transferee Given names Surname/Company name and number (include tenancy if more than one) ANITA GERTRUD EWERT 6. Transfer/Execution The Transferor transfers to the Transferee the estate and interest described in item 1 for the consideration and in the case of monetary consideration acknowledges receipt thereof. The Transferor declares that the information contained in items 3 to 6 on the attached Form 24 is true and correct. The Transferee states the information contained in items 1, 2, 4 to 6 on the attached Form 24 is true and correct. Where a solicitor signs on behalf of the Transferee the information in items 1, 2, 4 to 6 on Form 24 is based on information supplied by the Transferee. NOTE: Witnessing officer must be aware of their obligations under section 162 of the Land Title Act 1994. Separate executions are required for each transferor and transferee. Signatories are to provide to the witness, evidence that they are the person entitled to sign the instrument (including proof of identity). ...................................................................................... ............................................................................................................... / / ......................................................................... Witnessing Officer (signature, full name & qualification) Execution Date Transferor's Signature ...................................................................................... ............................................................................................................... / / ......................................................................... Witnessing Officer (signature, full name & qualification) Execution Date Transferor's Signature ...................................................................................... ............................................................................................................... / / ......................................................................... Witnessing Officer (signature, full name & qualification) Execution Date *Transferee's or Solicitor’s Signature ...................................................................................... ............................................................................................................... / / ......................................................................... Witnessing Officer (signature, full name & qualification) Execution Date *Transferee's or Solicitor’s Signature (Witnessing officer must be in accordance with Schedule 1 *Note: A Solicitor is required to print full name if signing on behalf of the Land Title Act 1994 eg Legal Practitioner, JP, C Dec) of the Transferee and no witness is required in this instance -- 8 of 11 -- QUEENSLAND TITLES REGISTRY PROPERTY INFORMATION (TRANSFER) FORM 24 Version 6 (This form must accompany Titles Registry Form 1 – Transfer when lodged in the Titles Registry) Duties Act 2001; Land Valuation Act 2010, Land Tax Act 2010, Local Government Act 2009, Water Act 2000, Electrical Safety Act 2002, Fire and Rescue Service Act 1990 South-East Queensland Water (Distribution and Retail Restructuring) Act 2009 PART A – Transferee to complete Title reference Page 1 of 2 Where insufficient space in an item, use Form 20 (Enlarged Panel). Mark appropriate [ ] with 'X' Refer to guide for completion for further information. Official use only 1. Transferee (a) ANITA GERTRUD EWERT (b) 04/06/1957 (c) 14 Yaldara Street, Pacific Pines QLD 4211 (d) Contact details after possession (i) Phone number - 0423 346 331 (ii) Postal address - As above [ X ] OR complete address below (e) Name of trust - N/A [ X ] OR complete - (f) Is transferee a foreign person / corporation? N/A [ ] NO [ X ] YES [ ]  Attach completed Form 25 (Foreign Ownership Information) (g) Does transferee ordinarily reside in Australia? N/A [ ] NO [ ] YES [ X ] 2. Transaction (a) Date of possession (dd/mm/yyyy) – 09 April 2018  The date of possession is the actual date the transferee has legal control or ownership of the property. Usually, this is the date of settlement, or the date as agreed to by both parties. (b) Date of settlement (dd/mm/yyyy) – 09 April 2018  The date of settlement must be completed even where it is the same as the date of possession. This form is comprised of two Parts -  Part A – Transferee to complete  Part B – Transferor to complete BOTH parts must be submitted with the Form 1 Transfer. -- 9 of 11 -- QUEENSLAND TITLES REGISTRY SCHEDULE / ENLARGED PANEL / Form 20 Version 2 Land Title Act 1994, Land Act 1994 ADDITIONAL PAGE / DECLARATION Page 2 of 2 and Water Act 2000 Title Reference Information from this form is collected and used under the authority of legislation stated at the top of this form. It is provided to Qld Government departments, local authorities and water distribution entities. Some information may be included in publicly searchable records maintained by those agencies. Information from the Valuation & Sales database may be provided to data brokers who may sell it as part of an information package. QUEENSLAND TITLES REGISTRY PROPERTY INFORMATION (TRANSFER) FORM 24 Version 6 (This form must accompany Titles Registry Form 1 – Transfer when lodged in the Titles Registry) PART B – Transferor to complete Title reference Page 2 of 2 Where insufficient space in an item, use Form 20 (Enlarged Panel). Mark appropriate [ ] with 'X' Refer to guide for completion for further information. 3. Transferor's residential or business address after settlement 1 Hemes Close, Pacific Pines QLD 4211 4. Details of sale price (Sale price must include GST if applicable) (a) Property excluding water allocation (b) Water allocation - N/A [ X ] OR complete below Cash Vendor terms Assumption of liabilities Other (specify above) Total $ $ $ $ Court Order $Nil Cash Vendor terms Assumption of liabilities Other (specify above) Total $ $ $ $ $ 5. Property details (a) Land / Water allocation description (b) Property address Lot Plan type & no. Street no. Street name Suburb/Town/Locality Postcode 823 SP 145034 14 Yaldara Street Pacific Pines 4211 (c) Property transferred Includes (d) Current land use (e) Water allocation - N/A [ X ] OR complete below Plant & machinery [ ] Livestock [ ] Crops [ ] Existing right [ ] Movable chattels [ ] Water licence [ ] Interim water allocation [ ] [ ] Other (specify above) Vacant land [ ] Dwelling [ X ] Multi-unit [ ] Flats [ ] Guest house / Private hotel [ ] Farming [ ] Industrial [ ] Commercial [ ] [ ] Other (specify above) (i) Is water allocation unsupplemented? NO [ ] YES [ ]  complete (ii) below (ii) Reference number of the water allocation dealing certificate - unsupplemented (f) Safety switch (i) Is an electrical safety switch installed? N/A [ ] NO [ ] YES [ X ] (ii) Has transferee been informed in writing about its existence? N/A [ ] NO [ X ] YES [ ] (g) Smoke alarm (i) Is a compliant smoke alarm/s installed? N/A [ ] NO [ ] YES [ X ] -- 10 of 11 -- QUEENSLAND TITLES REGISTRY SCHEDULE / ENLARGED PANEL / Form 20 Version 2 Land Title Act 1994, Land Act 1994 ADDITIONAL PAGE / DECLARATION Page 3 of 2 and Water Act 2000 Title Reference Information from this form is collected and used under the authority of legislation stated at the top of this form. It is provided to Qld Government departments, local authorities and water distribution entities. Some information may be included in publicly searchable records maintained by those agencies. Information from the Valuation & Sales database may be provided to data brokers who may sell it as part of an information package. (ii) Has transferee been informed in writing about its existence? N/A [ ] NO [ X ] YES [ ] 6. Transaction information (a) Has an agreement in writing for the transfer of dutiable property been entered into? NO [ X ] YES [ ] If Yes, complete (b) below (b) Date of written agreement (dd/mm/yyyy) - (c) Are the transferor and transferee related or associated at the date of the transfer? NO [ ] YES [ X ]  If Yes, complete (d) below (d) State the degree of relationship or association and supply evidence of value to Office of State Revenue - Mother and Daughter and Son in Law .........................................................................  See guide for completion (e) Is the consideration less than the unencumbered value of the property included in this transaction? NO [ ] YES [ X ]  See guide for completion (f) Does this transaction form part of an arrangement that includes other dutiable transactions? NO [ X ] YES [ ]  See guide for completion (g) Is GST payable on this transaction? See guide for completion NO [ X ] YES [ ]  If Yes, complete (h) below (h) Is the transaction under the margin scheme? NO [ X ] YES [ ] -- 11 of 11 --