McGregor v Rogers

These proceedings concern a dispute between a father (the plaintiff) and an adult son (the defendant) about the beneficial ownership of Units 1-6, 165 Bradley Street, Guyra in the State of New South Wales being Lots 3, 4 and 18 in Deposited Plan 758497 and being the whole of the land contained in Folio Identifiers 3/758497, 4/758497 and 18/758497 (“the Guyra property”).

On the face of the documentary record, the plaintiff acquired the Guyra property in 2001 for a purchase price of $18,000. The purchase was effected pursuant to a contract dated 31 August 2001 with the vendors, SL & DS McKern (Mr and Mrs McKern). The contract was completed on 17 December 2001. The contract and the memorandum of transfer (subsequently registered as dealing number 8227155) were stamped on 14 September 2001 with stamp duty totalling $237.

The contract records that the transaction was entered into “without the benefit of an agent” and that both parties to the transaction were represented by Abbott Pardy and Jenkins, Solicitors, of Armidale. Within that firm, Mr Christopher Strong acted for the vendors and Mr Mac Jenkins acted for the plaintiff as purchaser.

It is common ground between the parties that (to use a neutral expression) the defendant contributed financially to the purchase price of the Guyra property. The defendant contends that he paid the whole of the purchase price, plus more. The plaintiff contends that the defendant contributed only $15,000.

The defendant contends that the property was purchased as an investment for him and that the plaintiff had no right to acquire title to the property in his own name. The plaintiff contends that he acquired the property as an investment for himself and that the defendant’s contribution of $15,000 was a loan, implicitly unsecured.

Tragedy struck the family in December 2002 when the plaintiff was arrested on a charge of the murder of his then partner (the defendant’s stepmother) at the Guyra property. The plaintiff was convicted on 17 June 2004 and sentenced to imprisonment for 20 years commencing on 9 December 2002 (the date of his arrest), with a non-parole period of 15 years. An appeal by him to the Court of Criminal Appeal was dismissed on 15 December 2006. He was released from prison in December 2018.

Anticipating a long period of incarceration, on 12 December 2002 the plaintiff executed in favour of the defendant a general power of attorney, the material terms of which are the following:

No “conditions” or “limitations” were specified in Part 2 of the Instrument.

On 13 December 2002 the defendant caused the Power of Attorney to be registered in the Deeds Register of the Registrar General as Book 4372 Number 833.

Passing over for the purpose of this introduction the context in which the Guyra property came to be registered in the name of the plaintiff and subsequently transferred into the name of the defendant, the documentary record establishes that by a memorandum of transfer dated 15 September 2011 (registered as dealing number AG514315 on 23 September 2011) the defendant caused the title to the property to be transferred from the plaintiff’s name to his own.

He signed the memorandum of transfer as the plaintiff’s attorney, without notice to the plaintiff. On the face of the Transfer he was represented by a solicitor, Adam William Stack, of Bondi Junction. The Transfer recorded the transferor’s “receipt” of consideration of $36,000. Stamp duty of $520 was paid on the Transfer.

In December 2011, the plaintiff (by Hal Ginges & Co, Solicitors of Katoomba) lodged a caveat (numbered AG712158) against the title to the Guyra property claiming “an equitable interest pursuant to legal interest formerly held” by virtue of the following claimed facts:

The title to the Guyra property is and was at all material times unencumbered by a mortgage.

At the hearing of these proceedings the parties agreed to limit their respective claims to a claim for determination of beneficial ownership of the Guyra property (without pursuit of consequential claims for an accounting), save only that the plaintiff accepted that, if the Court determines that he is the beneficial owner of the property, he should nevertheless be required to “repay” to the defendant the sum of $15,000 plus interest calculated at the Court’s usual rates.

Both sides disclaimed any reliance upon delay as a defence to the other’s claims for relief.

Correspondence was entered into in or about February-March 2020 between solicitors no longer acting for the parties. In that correspondence (not all of which is in evidence) the solicitor then acting for the plaintiff denied that the plaintiff had ever received any part of the $36,000 recorded in the Transfer dated 15 September 2011 as having been received by him and demanded that the defendant re-transfer the Guyra property to the plaintiff. He also foreshadowed a professional disciplinary complaint against the solicitor for the defendant. Whether such a complaint was in fact made is not the subject of evidence.

The solicitors now acting for the plaintiff sent further letters of demand to various addresses thought to be associated with the defendant, between May and September 2021, designed to reach the defendant but evidently received no response from him.

By his statement of claim filed on 22 June 2022 the plaintiff seeks a declaration that the defendant holds the Guyra property on trust for him, and consequential relief including orders for the delivery up of possession of the property to him.

By his amended statement of cross claim filed on 29 August 2023 the defendant seeks a declaration that he is absolutely entitled to the Guyra property, with an alternative claim to beneficial ownership of 83.33% of the property (representing $15,000 as a percentage of $18,000) and a further, alternative claim for the sum of $15,000 plus interest. At the hearing of the proceedings he also sought an order that the plaintiff’s caveat over the property be withdrawn.

Passing reference needs to be made to the competency of each party to maintain these proceedings and to associated questions of credit each side has endeavoured to raise against the other.

The plaintiff spent approximately 16 years in prison (between 2002-2018) for the murder of the third of his three partners, the stepmother of the defendant.

The defendant is presently a “protected person” within the meaning of section 38 of the NSW Trustee and Guardian Act 2009 NSW, the NSW Trustee has management of his protected estate and he is conducting these proceedings through the NSW Trustee as his tutor because throughout the early stages of the proceedings he manifested such aberrant behaviour that I was persuaded that he was not able to manage his affairs.

The fact that the plaintiff was convicted on a charge of murder and served a sentence of imprisonment for that crime has no bearing on his capacity to institute or maintain these proceedings.

Had he sought to institute these, or similar, proceedings, while in custody he would have required an order of the Court granting him leave (under section 4 of the Felons (Civil Proceedings) Act 1981 NSW) to institute the proceedings.

As it happened, these proceedings were commenced by the plaintiff’s filing of the statement of claim on 22 June 2022, about four years after his release from prison. He made no earlier claim for relief.

Although submissions made on the plaintiff’s behalf have relied upon the fact that he was in prison in partial explanation of his delay in asserting the claims for relief set out in his statement of claim, no submissions have been made to the effect that, by reason of his imprisonment, he is or has been incompetent to advance his claims for relief.

In weighing the truth and reliability of the plaintiff’s evidence I do not hold against him the fact of his conviction for murder or his service of a term of imprisonment. For the record I note that neither party has seen fit to inform me of the detailed facts behind the conviction and, respecting their judgement, I have not read any judgment or other documentation relating to the conviction. I know only that Vivian was murdered at the Guyra property and a gun was evidently involved in the offence. The defendant says that the plaintiff shot Vivian.

In my assessment, the plaintiff endeavoured to give his evidence honestly and to the best of his ability, bearing in mind that he is no longer a young man, and the critical events material to a determination of these proceedings occurred over 20 years ago.

Understandably, his memory of distant events was at times not strong. That he could not remember paying stamp duty on the Guyra purchase may be understandable for a non-lawyer. But, more significantly, his memory did not extend, for example, to identification of the person who paid an account of his solicitors (AW Simpson & Co) which led to a Local Court judgment for $7,840.67 against him in March 2004, the issue of a writ of execution and lodgement of a caveat against the Guyra property which was not withdrawn until September 2005 or thereabouts. Withdrawal of the caveat was recorded on the title on 9 January 2006. The undisputed evidence of the defendant (which the plaintiff accepted) was that he paid $9,000 to the solicitors and, in his words, he “got access to the title deeds” as a result of which he found out that title to the property was in his father’s name, not his.

The plaintiff attributed the solicitors’ account to legal costs of a family law dispute about his children, presumably those of Vivian and himself. The defendant understood the account to relate to the plaintiff’s criminal law proceedings.

The defendant sincerely holds strong, idiosyncratic views about Maori culture and the history of colonisation of Australia which might reasonably be characterised as eccentric, if not delusional. His early appearances as a self represented litigant in these proceedings, attended by bad behaviour, warranted a finding that he was incapable of managing his affairs, at least so far as concern these proceedings, and that the orderly conduct of the proceedings required that he be represented by a tutor. Left to his own devices he has manifested a tendency to send unsolicited, ranting emails to a wide audience, commonly seeking attention for his cause (for example, by working into his narrative the word “bomb” in a context unrelated to assertions about his case).

With the benefit of representation by the NSW Trustee (a calming influence), he presented his evidence at the hearing in a measured way, honestly and to the best of his ability. In my assessment, his solicitor correctly captured this in his submission that “the defendant presented honestly in the character and the personality that we know of him from his presentation previously and from his emails to everybody. He made concessions, he argued when he wanted to, and he presented in his genuine sense”.

I do not hold against the defendant the fact that he holds strong, idiosyncratic views about topics not germane to these proceedings or that he has exhibited a tendency to express those views inappropriately. Nor do I hold against him that he has a chequered history of criminal convictions, and engagement with the police, dating back to 1997 and extending to early this year, evidencing an early history of drug abuse and, in recent years, subjection to apprehended violence orders. His record is consistent with his presentation to the Court as a person incapable of managing his affairs.

He says that he got himself out of drug and alcohol abuse when, after the plaintiff shot their mother, he took on raising his younger brothers. One of them still lives with him at the Guyra property and assists him in a business (as a personal trainer) he runs from the property. If he did indeed extricate himself from a drug culture that did not happen immediately. In 2008 he was convicted of a 2007 offence of cultivating marijuana, a prohibited drug,

In assessing the evidence of both the plaintiff and the defendant I take into account the fact that both of them have lived a hard life the marks of which are visibly present. I do not exclude the possibility that the plaintiff was traumatised by the military service of which he remains proud (a possibility he himself contemplated in a letter dated 8 September 2011 he wrote to his solicitor, Mr Jenkins) or that the defendant was traumatised by the domestic discord (including “an extremely abusive father” and abuse of drugs and alcohol) that attended his youth. On both sides of the record the Court is bound to work with the clay at hand.

I do not accept the submission of counsel for the plaintiff that a determination of these proceedings necessarily requires a finding that one or other of the parties is a liar or has given false evidence. In particular, I do not accept that a rejection of evidence of the plaintiff, or a preference for evidence of the defendant over that of the plaintiff, requires a finding that the plaintiff lied to the defendant and gave false evidence to the Court. The task of the Court is to assess, on the balance of probabilities (and with due regard to the embodiment of Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-363 in section 130 of the Evidence Act 1995 NSW), where the truth lies. That does not necessitate a finding that a party has given false evidence, particularly when (as in these proceedings) contested events occurred long ago and depend for their proof on fallible memory.

The plaintiff was born in New Zealand in 1940. He is currently 83 years of age and frail in appearance. At some point before 8 September 2011 he suffered a stroke. On that date (shortly before transfer of the title of the Guyra property to the defendant) he wrote his letter to Mr Jenkins (seeking assistance to protect his title to the Guyra property from the defendant) in which he casually mentioned his stroke as a fact known to Mr Jenkins.

He has had three domestic relationships. The evidence about their nature and duration is not clear. The plaintiff referred to each of his partners as a “wife”, but whether he was married to any of them was a question not dealt with explicitly. I am able to notice them only in broad outline and, perhaps, inaccurately as providing family context in aid of an understanding of the relationship between the plaintiff and the defendant.

The first relationship, with a woman called Katarina, lasted 17 years and produced three children.

The second relationship, with a woman called Te Kaiwhakapaepae Rogers, produced the defendant as their only child. The defendant says that his parents separated when he was about 10 years of age.

The third relationship, with a woman named Vivian, lasted three years (until her death at the hands of the plaintiff) and produced two children.

The defendant was born in Queensland in 1977. He is now aged about 46 years. At the time Vivian died, he regarded her as his stepmother.

The evidence provides no elaboration of the timing or course of the breakdown of the plaintiff’s relationship with Vivian, but on 15 March 2004 AW Simpson & Co, Solicitors, of Armidale obtained a Local Court judgment against the plaintiff for unpaid legal fees which he explained, in cross-examination, related to a family law dispute with Vivian, who died in December 2002. The caveat lodged against the title to the Guyra property by the solicitors in April 2004 suggests that they were retained by the plaintiff in “November or December 2002”, shortly before Vivian’s death.

Whether or not the plaintiff was personally involved in a drug culture at or about the time the Guyra property was purchased in December 2001 is unknown. What is known, on his evidence, is that he intended to use the property “as a house for drug addicts and … homeless people”, an intention which (he says) induced the owners of the property to accept his offer of purchase over that of a person or persons who had offered more. The defendant’s evidence is that at or about the time the property was purchased his then (Greek) girlfriend was “doing some sort of rehabilitation with” the plaintiff. The defendant himself had a history of drug use in the years preceding purchase of the Guyra property.

The evidence did not explore how realistic the plaintiff’s intended use of the property was. The Local Council had issued a certificate dated 17 April 2001 under section 149 of the Environmental Planning and Assessment Act 1979 NSW, a copy of which was attached to the contract dated 31 August 2001 for the purchase of the Guyra property. That certificate incorporated a letter of the Council dated 30 November 2000. That letter recorded that, on a recent inspection of the residential flat building on the property, “it was noted that the site was overgrown and that the flats and other buildings on the site have been vandalised and have deteriorated to the point where they are in a dilapidated, dangerous and unsightly condition”.

The letter threatened a demolition order and noted that “the subject premises must not be reoccupied until they have been properly refurbished, inspected by Council and a Certificate of Occupation … has issued.”

It should also be noted that, under the “General Business” zoning for the property “boarding houses” were prohibited. This was known to the plaintiff at the time he executed the contract for purchase of the property.

A determination of the beneficial ownership of the Guyra property has at its core a dispute about:

A problem for both sides of the record is the absence of any independent, third party witness to their conversations, and the absence of contemporaneous documentation bearing directly upon what was said and how much money was provided.

The plaintiff’s evidence does not spell out verbatim the terms of any conversation about the defendant’s financial contribution to acquisition of the Guyra property. His first affidavit (affirmed on 13 May 2022) was silent about any contribution made by the defendant. His second affidavit (affirmed on 2 November 2022, after the defendant, in his affidavit of 26 October 2022, had sworn that he had paid the whole of the purchase price of the property) asserted that the defendant had lent him $15,000 so that he “could complete the purchase” and that the money had been “provided in cash shortly prior to purchase”.

As a matter of form, the affidavit asserts the nature of the plaintiff’s case, rather than provides a narrative of facts. It was evidently prepared in support of an application for default judgment because it concludes with an assertion that the defendant has no reasonable defence to the plaintiff’s statement of claim.

The affidavit includes paragraphs to the following effect:

The first of the defendant’s two affidavits (sworn or affirmed on 26 October 2022) was prepared and filed at a time when the defendant was self represented. It was equally terse. So far as it was read at the final hearing, it was in terms to the following effect:

The defendant’s second affidavit (affirmed on 9 October 2023), prepared at a time when he was legally represented, includes evidence to the following effect:

In cross-examination, with some hesitancy, the defendant said that he thought the plaintiff was living at the Emmaville property at the time he transferred funds to the plaintiff’s bank accounts. The plaintiff, he said, commenced living at the Guyra property only after the defendant had arranged, with his then girlfriend, (also described in the evidence as his ex-partner Julie, a member of a Greek family) for furnishings for the Guyra property to make it habitable.

The plaintiff says that the defendant paid him $15,000 in cash which he, in turn, paid to one of the vendors of the property, without involvement of any solicitor acting on behalf of the parties. Any such payment was not the subject of a receipt issued by the plaintiff to the defendant or by the vendors to the plaintiff. No records of a solicitor evidence the alleged payment of $15,000.

The defendant says that he paid to the plaintiff, by several tranches, sums totalling $36,000 or thereabouts by transfers made from his bank to accounts nominated by the plaintiff. In cross-examination he said that his contribution was $32,000 in bank deposits and about $4,000-$6,000 in cash. His primary position, to which he adhered, was that he paid the full amount of the purchase price of the property as requested by the plaintiff and that he had provided additional funds of an indeterminate amount for renovations for the property. With the passage of time no bank records bearing upon any such transactions are available. The defendant holds no withdrawal or deposit slips, bank statements or receipts evidencing the transactions.

The plaintiff’s evidence about what accounts he held in 2001 was vague, as was the evidence of the defendant as to the identity of the accounts to which he says he transferred money. The passage of time has played on the memory of both men.

In cross-examination of the plaintiff the following exchange occurred:

That equivocal answer was not followed up in cross-examination or re-examination, but falls short of a denial. It is not a strong response to the defendant’s evidence that the plaintiff at one stage said to him, words to the effect that “The price of the property is $36,000. I think you should buy it.”

In giving his oral evidence the plaintiff could remember that he had had an account with the Commonwealth Bank. He could not remember whether he had had an account with Westpac or the New England Credit Union. Nevertheless, in handwritten notes annexed to his affidavit of 13 February 2023 (to which he was not expressly taken in cross-examination) he mentioned having had accounts with both the Commonwealth Bank and the New England Credit Union.

In response to a subpoena the Commonwealth Bank reported to the Court that, upon search of their records, they were “unable to locate any accounts” in the various names attributed to the plaintiff for the period between 1 December 2000 and 31 December 2002. That report is not inconsistent with the memory of both the plaintiff and the defendant that the plaintiff had a Commonwealth Bank account.

The evidence of both the plaintiff and the defendant lacks clarity about the timing of the defendant’s payment(s) of money towards the purchase price of the property. The timeframe presumably runs between about 31 August 2001 (the date of the contract for purchase) and 17 December 2001, the date of the contract’s completion. However, given the informality of the way the purchase price was paid, one cannot be too sure.

The plaintiff had no funds available to him for the payment of the purchase price from his own resources. His evidence is that he borrowed $2,000 (to pay a deposit of $1,800) from prospective purchasers of a property owned by him at Emmaville which, on 11 October 2001, they (CW & LJ Chaplain, Mr and Mrs Chaplain) contracted to buy for $35,000. He had an expectation, he says, that the proceeds of sale of Emmaville would provide the whole of the funds necessary to complete the Guyra purchase.

The precise relationship between the parties to each of the contract for the purchase of the Guyra property (dated 31 August 2001 and completed on 17 December 2001) and the contract for the sale of the Emmaville property (dated 11 October 2001 and apparently not formally abandoned by the parties until 14 June 2002 or thereabouts) is opaque. Both contracts record the absence of involvement of an agent. Although the contracts identify a solicitor “on the record” for each party the plaintiff and those who contracted with him appear to have attended to some conveyancing tasks personally. That said, file notes of Abbott Pardy & Jenkins dated 26 July 2001 and 11 October 2001 record that firm’s active engagement in the process of exchanging contracts on both transactions. The prospective purchasers of the Emmaville property advanced to the plaintiff, well before the date of their contract, $2,000 of a projected deposit of $3,500 for the purchase and, at an indeterminate time, appear to have come to a private arrangement with the plaintiff for abandonment of their purchase and, on terms not disclosed in the evidence, to recover or otherwise deal with repayment of the $2,000 loan. The file note of Abbott Pardy & Jenkins dated 11 October 2001 is consistent with the $2,000 “part deposit” (also characterised as a loan) having been paid by the purchasers of the Emmaville property to the plaintiff personally.

The plaintiff says that his expectation of funding from the Emmaville sale collapsed when the purchasers of the Emmaville property withdrew from the transaction on account of a fire which had burnt down buildings on the property. He says that the collapse of the Emmaville transaction left him with a need for “a short term loan” to allow him to complete the Guyra purchase before receiving a payout on his insurance cover over the Emmaville property. It was for that reason and no other, he says, he turned to the defendant for assistance.

The defendant’s evidence, in cross-examination, was that, at the time of the purchase of the Guyra property, he was told nothing about the plaintiff’s proposal to sell the Emmaville property. He knew about the fire affecting the Emmaville property but denied that there was any discussion between himself and the plaintiff to the effect that his funds would be treated as a loan repayable upon receipt of insurance compensation referrable to fire damage to the Emmaville property. He says that he simply provided funds upon a representation by the plaintiff that the Guyra property was to be purchased as his “first investment”. He says that he was initially told by the plaintiff that the vendor’s asking price for the Guyra property was $56,000, but that that sum was reduced to $36,000. He insisted that he had paid, by three bank transactions, all that was asked of him by the plaintiff including, after the purchase of the Guyra property, funds for renovation of the property to make it habitable.

It was not explicitly put to the defendant in cross-examination that in 2001 he did not have access to funds of the order he says he paid to the plaintiff. He says that at about the time the Guyra property was purchased he was working two jobs. One was as a “night manager” at Coles. The other was the head of a Telstra building security team. He was, he says, living with his mother in Sydney at that time but that he was frequently travelling between Sydney and Guyra.

The timing of the plaintiff’s conversations with the defendant about the provision of money for the purchase of the Guyra property is not clear on the evidence. The plaintiff says that the defendant provided $15,000 in cash to him “shortly prior to purchase” of the Guyra property when, “several days prior to settlement” of the purchase, a fire on the Emmaville property left him in need of a short term loan. The defendant says that “in person” and “phone” discussions about his provision of money occurred about three months before settlement of the Guyra purchase. The course of the parties’ discussions was not explored in the evidence.

The Emmaville contract, like the Guyra contract, is marked as involving no agent acting on behalf of the vendor. Mr Jenkins of Messrs Abbott Pardy & Jenkins, Solicitors, of Armidale, is recorded in both contracts as acting on behalf of the plaintiff.

Special Condition 33 of the Guyra contract is heavily relied upon by the plaintiff in explanation of his need for a short term loan. That special condition is in the following terms:

A short affidavit from Mr Jenkins, solicitor, records that in 2001, the plaintiff instructed him as his solicitor to undertake conveyancing on the sale of the Emmaville property; that, on 11 October 2001, he received into his trust account a part deposit of $1,500 from the purchasers and that (with emphasis added):

In presentation of his oral evidence, the plaintiff contended that the fire at the Emmaville property occurred after the exchange of contracts on 11 October 2001, which prompted the purchasers of that property to withdraw from their purchase, imposing on the plaintiff an urgent need for a short term loan from the defendant. The plaintiff’s affidavit evidence was to the effect that a fire destroyed the building on the Emmaville property “several days prior to settlement” of the Guyra purchase, but as a statement of timing this is imprecise.

In submissions the plaintiff relied upon a file note dated 26 October 2001 taken from the files of Abbott Pardy & Jenkins relating to the sale of the Emmaville property. The author of the file note is unidentified but I infer that it is a record by a member of his staff of a message he left on the staff member’s “answering machine”. The substance of the file note reads as follows:

In both cross-examination and re-examination the plaintiff confirmed that the house on the Emmaville property burned down before he signed the contract dated 11 October 2001 for the sale of the Emmaville property.

In cross-examination the plaintiff answered “yes” to a question to the effect that “the house on the [Emmaville] property had already burnt down [at the date of the Emmaville contract, 11 October 2001], hadn’t it?”

In re-examination counsel for the plaintiff elicited the following answers (omitting an objection on behalf of the defendant):

Although there is room for debate, and it may not matter a great deal in the ultimate analysis, I am inclined to the view that the plaintiff was correct in stating in his oral evidence that the fire occurred before (not after) 11 October 2001. In the contract for the purchase of the Guyra property (dated 31 August 2001) the plaintiff’s address was recorded as the Emmaville property. In the contract for the sale of the Emmaville property (dated 11 October 2001) his address was identified as a property at Torrington, a property he identified in his oral evidence as owned by his then partner, Vivian, but which, as suggested in the handwritten notes annexed to his affidavit of 13 February 2023, may have been beneficially co-owned by Vivian and himself. The defendant’s evidence, in cross-examination, was that at the time he transferred funds to the plaintiff, the plaintiff was living at the Emmaville property.

Whenever the fire may have occurred vis-à-vis the date of the contract for the sale of the Emmaville property, the purchasers may simply have reassessed their commitment to the property and may simply have been released from the contract by the plaintiff. There is no clear evidence that he sought to hold them to the contract. The nature of the Emmaville property as a “bush property” and any intention the purchasers may have had as to its use were not explored in the evidence.

The evidence includes a letter dated 14 June 2002 addressed by the plaintiff’s solicitor (Mr Jenkins) to the solicitor for the purchasers (Mr Picone of Webb and Boland) in terms to the following effect:

In final submissions I was invited to draw inferences permitted by Jones v Dunkel (1959) 101 CLR 298 about the absence of various witnesses. By reference to Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389, the same might be said of Mr Jenkins in the absence of questions lead from him in chief about his dealings with the plaintiff.

One imagines that there are a number of uncalled witnesses who might have given material evidence. They include, for example, the Guyra property vendors (Mr and Mrs McKern), the Emmaville property purchasers (Mr and Mrs Chaplain), Messrs Strong and Picone (respectively solicitors for the McKerns and the Chaplains), Mr Stack (who acted for the defendant on transfer to him of the Guyra property), the defendant’s friend Bret Smith (said by the defendant to have been with him when he deposited funds in a bank account of the plaintiff), the defendant’s ex-partner (the Greek, Julie) who engaged in a drug rehabilitation programme with the plaintiff at the Guyra property, and the plaintiff’s daughter, Terina. One might also speculate as to why the ambit of Mr Jenkins’ affidavit was so narrow and why he was not cross-examined.

However, there is doubtful utility in speculation about what evidence might have been given by these witnesses, or about whose interests might have been served by their presence or absence from the witness box. The passage of time and the absence of contemporaneous documentation dampens expectations about the availability of cogent evidence from absent witnesses.

In presentation of his case the plaintiff relied heavily on the fact that he personally had carriage of the process of dealing with the vendors of the Guyra property and with the solicitor who acted on the purchase.

That he played the primary role in negotiating the purchase process is not altogether surprising. On his case, he intended to buy the property as an investment, for which reason the purchase contract was in his name. He was the older man; he was aged 61 years. He lived in the Armidale area, where the solicitors (Abbott, Pardy and Jenkins) were located. The defendant, his son, was aged 24 years and his life experience to that date was marred by drugs, alcohol and a disrupted family life. He lived in Sydney with his mother (now deceased). At that stage of their lives, father and son were on good terms. From the perspective of the defendant, he relied upon his father to do right by him. From the perspective of both men, it is likely that they would have expected the property to be occupied and enjoyed by both of them from time to time no matter whose name was on the title.

Although it can be accepted that the plaintiff dealt with the solicitor who acted on the Guyra purchase the evidence of the defendant in cross-examination was that he met “the solicitors” (Abbott Pardy and Jenkins) in Armidale on one occasion. That is consistent with an involvement, albeit it a minor part, in the purchase process. Nevertheless, what passed between the defendant and the solicitors, and when they had contact, is not the subject of evidence.

Given the relationship between the parties at the time the Guyra property was acquired and the dependence of the plaintiff on the availability of funds from the defendant to purchase the property, the defendant’s evidence that he provided those funds to the plaintiff on the plaintiff’s assurance that the property was being purchased for him as his first investment is plausible.

The plaintiff’s concession that the defendant provided $15,000 as a contribution to the purchase price of the Guyra property and his characterisation of that sum as a loan carries with it an acknowledgement that whatever sum was paid by the defendant it was not intended to be a gift to the plaintiff.

Despite the plaintiff’s characterisation of the sum as a short term loan, he took no steps to “repay” any money to the defendant until, after the commencement of these proceedings and to secure a forensic advantage, he conceded for the first time that the defendant had made a financial contribution to the purchase and he offered to repay “the $15,000 loan” if held to be entitled to be registered as proprietor of the land.

The plaintiff’s characterisation of the defendant’s contribution as a loan was accompanied by an assertion that his agreement with the defendant was that he would “repay” the defendant when he recovered an insurance payout consequent upon the Emmaville fire. The defendant disputes that there ever was such an agreement.

As it happens, the plaintiff’s evidence is that he recovered from his insurer a sum ($17,000) substantially less than he expected. He applied the insurance compensation in the payment of rates on the Guyra property up to 11 September 2011, a date roughly equivalent with the date the property was transferred into the defendant’s name. There is no evidence that, in doing this, he consulted the defendant. The defendant’s evidence is that, when he began paying rates on the property in 2011 (after having paid them in or about 2002-2004), he had to pay $6,000 arrears. That is consistent with the evidence of Janet Parkinson (a friend of the plaintiff, through her husband) that, as a signatory on the plaintiff’s bank account for the very purpose of attending to rates while the plaintiff was in prison, she paid rates on the property until mid-2011 when the defendant told her he was taking over the role of ratepayer.

The plaintiff agrees that the rates were in arrears in 2011 but quantifies the arrears at about $3,000 and says that he paid them through Janet Parkinson.

The plaintiff says that he “can’t recall” telling the defendant (as the defendant remembers) that the purchase price of the Guyra property was of the order of $36,000. However, his evidence is also to the effect that the vendors’ asking price was substantially greater than $18,000 but (to an extent not quantified in the evidence) substantially reduced because the male vendor was sympathetic to his proposed use of the Guyra property as accommodation for drug addicts and homeless people.

Whether the plaintiff told the defendant that the purchase price for the Guyra property was of the order of $36,000 cannot be determined with complete confidence. However, the sum of $36,000 remembered by the defendant is close to the $35,000 sale price of the Emmaville property, which the plaintiff says he was expecting to receive as a means of funding the purchase of the Guyra property.

The possibility cannot be excluded that, when the Emmaville sale fell through, the plaintiff sought from the defendant, a sum of money roughly equivalent with the lost purchase price.

For his part, at a time when he was unrepresented, the defendant swore an affidavit in the following terms:

There is no evidence that after the sale of the Emmaville property fell through in 2001 the plaintiff sought to raise funds by a fresh sale of the property or use of it as security to borrow funds. His evidence is that he never made any application to a bank for a loan.

The plaintiff continues to own the Emmaville property.

One flaw in the defendant’s case is inconsistency in his recollection of precisely how much he paid to the plaintiff on purchase of the Guyra property and precisely when and by what means he paid money to the plaintiff. In his affidavit evidence he said he transferred a total of $36,000 into bank accounts nominated by the plaintiff at the New England Credit Union, the Commonwealth Bank and Westpac. In cross-examination he explained that he “made transfers to my dad’s account from the banks in Maroubra” where he was living (with his mother) at the time. In cross-examination he faltered in specifying the precise amount paid via banks, suggesting initially that it was $32,000 and adding that he had also paid about $4,000-$6,000 in cash, including funds for renovation of the building on the Guyra property.

Another (alleged) flaw is inconsistency in the defendant’s recollection of the time at which he first discovered that the Guyra property had been purchased in the plaintiff’s name rather than his own; was it shortly after he became aware of AW Simpson & Co’s claim against the property (whenever that may have been) or closer to the time when he transferred title to the property from the name of the plaintiff to his own?

A third (alleged) flaw is that he appears to have occupied the property for some years without paying rates himself, but allowing the plaintiff’s friend to pay them (from the time of the plaintiff’s incarceration) before taking over payment of the rates and paying arrears at about the time he transferred the property into his name. Why he allowed the plaintiff to pay or bear the burden of rates levied against the property for about a decade without insisting upon clarification of title to the property is not clear on the evidence, but appears to have been a social protest against the plaintiff on learning that the property had been acquired in the name of the plaintiff, not his. Lethargy appears to have been a family trait.

On balance (in contemplation of the second and third “flaws” I have identified), I take the defendant’s evidence to be that:

It is against this background that, until the time of the altercation, the defendant, as he has endeavoured to explain, saw to payment of the rates following the acquisition of the Guyra property (at least in the initial period after the plaintiff was imprisoned) but, after the altercation between the two men, he ceased paying the rates, one might infer as a form of social protest against what he believed to be his father’s failure to buy the property in his name.

The plaintiff contends that the defendant’s concession that he and the plaintiff were on good terms at the time of purchase of the Guyra property renders it more likely that the defendant agreed to provide funds for the plaintiff on a short term loan than that the plaintiff agreed to acquire the property in the name of the defendant despite the fact that he had contracted to buy it in his own name as an investment.

In my assessment, the fact that the men were on good terms is equally consistent with title to the property being acquired in one name or the other. In presentation of the case, neither side embraced the possibility that the parties informally agreed upon acquisition of the property as a joint venture. Both parties contended that the property was intended to be acquired in the name of only one of them.

In cross-examination the defendant said that the plaintiff had initially told him the vendors’ asking price for the property was $56,000 and that they could “go halves” in the property but, when the price had changed (to $18,000), it was purchased for $18,000, the defendant says, on a representation to him by the plaintiff that it would be his first home/investment property. That evidence was given after the plaintiff had left the witness box. He was not recalled to refute it.

Legalities aside, the property was, in a colloquial sense, purchased as a “family property”. There is no evidence that either party demanded or expected of the other (or anybody else) that rent be paid for residence at the property. According to the defendant, soon after the purchase of the property, he occupied the front unit in the building on the property; the plaintiff occupied the back unit upstairs; and a step brother to the defendant (a child of the plaintiff and Vivian) would “come around”. Whoever formally owned it, the propriety was informally “family property”. An illustration of this is, perhaps, the defendant’s evidence that the plaintiff’s intention to use the property as “a kind of rehabilitation centre” (“a project slowed up” by the plaintiff’s arrest) was supported by the defendant’s ex-partner, Julie and her parents.

In one of the defendant’s ranting circular emails (dated 17 August 2022) tendered in evidence by the plaintiff in order to highlight the defendant’s lack of precise knowledge of the purchase price of the Guyra property, the defendant makes the following (amongst other) observations:

In his cross-examination the defendant said that the money he gave to the plaintiff funded the purchase of the Guyra property, renovations to the property and the plaintiff’s unauthorised purchase of an ice cream shop which it fell to him to sell after the plaintiff’s incarceration. I infer that the reference to “further misappropriations with my excess money/change” is an allusion to the $9,000 ice cream shop purchase.

The defendant’s reference to “My Family and I” in the email was explained by him in his cross-examination as a reference to his brothers and sister.

The defendant’s email dated 17 August 2022 was preceded by an earlier email dated 25 July 2022 to the same effect, again tendered in evidence by the plaintiff.

The defendant denies any contemporaneous knowledge that the plaintiff proposed in 2001 to sell the Emmaville property and to use proceeds of its sale in the purchase of the Guyra property. There is no evidence, other than that of the plaintiff, that contradicts that denial. The plaintiff does not allege specifically that he told the defendant about the contract he entered into for a sale of the Emmaville property.

The plaintiff contends that significance attaches to his evidence that, following his acquisition of the Guyra property, he lived on the property until the death of Vivian. However, that is counterbalanced by evidence of the defendant that from an early stage he undertook repairs and renovation work to the property, which the Local Council had deemed dilapidated. At the time the plaintiff says he lived at the property he was evidently in conflict with Vivian, whose property at Torrington (in which he claimed a financial interest) was for a time for him a place of abode.

It reflects no credit in the defendant that, ostensibly in breach of his fiduciary obligations as an attorney, he transferred the Guyra property from the name of the plaintiff to his own name without notice to the plaintiff. Nevertheless, it is plain that he at that time (as well as at all other times) strongly believed that the property was his. That the transfer of title was effected through a solicitor tends to suggest honest intent on the part of the defendant.

In cross-examination he said he believed that the transfer of the property into his name (when it was liable to be sold by the Council to recoup arrears of rates) was in the plaintiff’s interests, and “the right thing to do”, because, with the transfer of the property into his name, the plaintiff would no longer have to account to him for the money provided by him for the purchase of the property and it would be available to be shared by him with his siblings and their children.

In an email dated 8 March 2020 the solicitor then acting for the plaintiff informed the solicitor who had acted on both sides of the Transfer (ostensibly for the plaintiff by the defendant as his attorney and for the defendant personally as transferee) that he had instructions to complain about the solicitor’s actions to the Law Society or the Legal Services Commission, but the evidence goes no further in a challenge to the propriety of the solicitor’s conduct.

A mystery, in the absence of evidence from that solicitor, is why the Transfer was effected for a notional consideration of $36,000 (upon which stamp duty was paid) if, as the defendant contends, he had earlier paid the whole of the purchase price and the plaintiff could have been said to have held the property on trust for the defendant from the outset.

Nevertheless, the fact that $36,000 is specified in the Transfer as consideration for transfer of the property into the defendant’s name provides an answer to any suggestion that the defendant’s evidence about providing $36,000 for acquisition of the property is a recent invention.

A further factor brought to attention in presentation of the defendant’s case is that there is no suggestion that the defendant used the plaintiff’s power of attorney to sell the Emmaville property. Had his object been to seize what was not his, rather than to take what he regarded as his own, the Emmaville property would have presented an opportunity not taken up.

Nor did the defendant transfer the Guyra property into his own name for the purpose of effecting a sale and disposition of proceeds of sale. He has instead been focused consistently on retaining and developing the property. It remains unencumbered, as it was when held in the plaintiff’s name.

There is conflict in the evidence of the plaintiff and the defendant about an altercation they had about the Guyra property while the plaintiff was in prison. The plaintiff says that there was an altercation “in early 2003” when the topic of the Guyra property came up. He says that the defendant insisted that he should transfer the property to the defendant and that when he refused the defendant physically struck him. He says that he did not retaliate as he thought this would imperil his situation further. Precisely what was said about a property transfer was not explored in the plaintiff’s evidence. He was not specifically cross-examined about the altercation.

During cross-examination of the defendant the following interchange took place between him and myself:

The following interchange then took place between counsel for the plaintiff and the defendant:

At a later point in his cross-examination the defendant denied that he had ever spoken to his father about a transfer of the Guyra property into his name after the altercation. And, at a still later point, he defended his use of the power of attorney on the basis that he was protecting not only his own interests, but those of “our family”.

Whenever “the altercation” (distinguished perhaps by an element of violence) may have occurred, the question of ownership of the Guyra property appears to have occupied more than one encounter between the plaintiff and the defendant during the plaintiff’s years of imprisonment. In the letter dated 8 September 2011 he wrote to Mr Jenkins, the plaintiff included the following paragraph:

The suggestion, here, that the plaintiff had at one time “dismissed” the defendant from “acting as Power of Attorney” was not pressed at the hearing of these proceedings – there was no evidence that the defendant had been given notice of a revocation of his authority – and the defendant’s sister was not called to give evidence; but the letter suggests that the topic of title to the Guyra property was discussed more than once while the plaintiff was in prison.

In his affidavit of 13 May 2022 the plaintiff says that he appointed his daughter (Terina) as his enduring attorney on or about 17 December 2004 by an instrument (not in evidence) registered as Deed Book 4446 No 370.

Taking into account all the circumstances of this case, which I have endeavoured to explore in what I have written in earlier paragraphs of this judgment, I am comfortably satisfied that the defendant’s version of events is to be preferred over that of the plaintiff; that the defendant provided to the plaintiff funding for the whole of the purchase price of the Guyra property and more; and that the defendant did so upon a representation by the plaintiff that the Guyra property was to be purchased as the defendant’s “first investment”. To paraphrase Briginshaw v Briginshaw (1938) 60 CLR 336 at 361, I “feel an actual persuasion” of the essential facts of the case for which the defendant contends.

When tested in cross-examination, the defendant adhered to his fundamental case and explained some otherwise obscure matters (including, for example, the course of payment of Council rates) in a plausible way.

The plaintiff, for his part, admitted that he was without funds of his own to pay the purchase price of the Guyra property and that not until after these proceedings were commenced did he take any steps to acknowledge the defendant’s contribution to the purchase of the property or to repay what he characterised, in the proceedings, as a “loan”. He did not contest the defendant’s evidence that the defendant had paid the debt owed by him to the solicitors AW Simpson and Co charged on the property.

Although the defendant was challenged about his evidence that he had paid the plaintiff something in the order of $32,000 or more referable to acquisition of the Guyra property, and questioned about the source of his funding (which he described as deriving from employment in two jobs while living with his mother), there was no concerted challenge to the defendant’s evidence that he had funds available to provide to the plaintiff. After all, it was the plaintiff’s case that, on short notice, the defendant had provided him with $15,000, nearly the whole of the purchase price of $18,000.

It is not necessary to quantify the precise amount of funding the defendant provided to the plaintiff for the purchase of the Guyra property. It is sufficient to record a finding that the funding provided by the defendant was in excess of the purchase price (and, incidentally, stamp duty) whether the amount provided by the defendant was $32,000 or some greater amount. In these proceedings the defendant seeks to vindicate his title to the Guyra property, not to recover compensation for funding provided beyond what was necessary for the purchase of the property. That said, I accept that it is more probable than not, that the funding provided by the defendant was applied, in part, in making the building on the property habitable so that it could be occupied in the shadow of a demolition order.

The plaintiff accepts that a finding that the defendant paid the whole of the purchase price for the Guyra property deprives a finding that the defendant acted in breach of the fiduciary obligations of an attorney when he transferred the Guyra property into his own name of any utility. The whole of the purchase price of the property having been funded by the defendant, upon a representation that the property was to be purchased as the defendant’s “first investment”, throughout the time that the plaintiff was the registered proprietor of the property he held the property on trust for the defendant. There would be no utility in an order that the defendant, as a defaulting attorney, reconvey the property to the plaintiff, only to have the plaintiff, as trustee for the defendant, under an obligation to reconvey it to the defendant.

If I am in error in finding that the defendant is and was at all material times the beneficial owner of the Guyra property, I would nevertheless find in favour of the defendant’s alternative case, that he contributed (as the plaintiff admits) $15,000 of the $18,000 purchase price of the property. As I do not accept that any such sum was provided to the plaintiff as a loan, and it is common ground that it was not provided to the plaintiff as a gift, my alternative finding in disposition of the case would be that the Guyra property is held on trust by the defendant for himself as to 83.33% and the plaintiff as to 16.67%. The parties accepted in the course of argument that, if the defendant were to succeed on his alternative case, the Court could adopt these percentages without exploring questions about the incidence of stamp duty and legal costs on purchase of the Guyra property, neither of which topics was explored in the evidence in any depth.

Subject to allowing the parties an opportunity to be heard as to the form of orders to be made and costs, I propose to make orders to the following effect in disposition of these proceedings: