(c) the third issue, raised by Beaters, is whether there is in any event a resulting trust in favour of Beaters by reason of the payment to Mr Whalebone of the consideration of $100,000.
17 I propose to consider these issues in the order in which I have listed them, but before doing so, I need to say a few words about the witnesses.
The witnesses
18 The affidavit evidence before me consisted of affidavits sworn by the liquidator of Beaters, namely Mr Parbery, Mr York who was the former accountant for Beaters and Mr Whalebone himself. Mr Parbery was not cross-examined but the other two witnesses were.
19 So far as Mr York is concerned, I found him to be a relatively reliable witness. Quite clearly he did not remember much of the detail relating to the various documents on which he was cross-examined, some of which go back to the 1980s. He had been employed by the Australian Taxation Office between 1966 and 1985, whereafter he commenced private practice as an accountant. He became the accountant for Mr Whalebone and for Beaters in about 1988 and remained in that position until about 2004.
20 Although Mr York showed signs of nerves in the witness box (which is not unusual for someone who is not accustomed to giving evidence in Court) I formed the view that he was trying to answer the questions asked of him honestly and that he was not attempting to evade answering questions when he said that he could not recall certain events.
21 Overall, I am prepared to accept his evidence.
22 By contrast, I cannot say the same about Mr Whalebone. While I accept that people who are skilled in other areas may not handle their "paperwork" particularly well, I do not accept Mr Whalebone's evidence by which he sought to blame matters that he could not satisfactorily explain on sloppy paperwork on his part. I found his answers to be evasive, and it was my impression that Mr Whalebone was at least in some cases intentionally "bending" the truth. More often, it was my impression that Mr Whalebone had retrospectively convinced himself as to what his intentions had been in 1987, and persisted in that belief even if it caused him to answer questions in terms that were quite absurd. He was prone to blame others, particularly Mr York, for any matter that was inconsistent with his principal theme, and I am of the view that unless it is supported by objective or independent corroborative evidence, or unless it is inherently probable, I should not rely on his evidence.
23 Accordingly, where the evidence of Mr York and Mr Whalebone conflict, I prefer the evidence of Mr York.
24 In forming that view, I have not ignored the evidence given by Mr Whalebone and Mr York concerning their conversation outside the Court on the first day of the hearing before me. According to Mr Whalebone, Mr York said to him:
"This whole thing could have been avoided and it's not necessary. We could have amended our returns".
25 Mr York denied saying words to that effect. Further, although it was suggested to him that he had said to Mr Whalebone that he was "sorry about all of this", in fact on Mr Whalebone's own evidence, what Mr York said was:
"Oh Roger, I felt very sorry for you in relation to the loss of your family and your daughters and friends and that, horrific Family Law business and the loss of properties and assets".
26 Whichever of Mr York and Mr Whalebone has recalled the conversation more accurately, that exchange between the witnesses does not change the opinions I have recorded above.
The first issue--unilateral or common mistake?
27 Mr Whalebone's evidence was to the following effect. He said that it was his belief that Beating was a company which he had "inherited" from his uncle and aunt, Mr and Mrs Neale. The circumstances giving rise to his belief in relation to such "inheritance" were not explored, but he gave evidence to the effect that he considered Beating to be a "shelf company", which was a company that had some unspecified "family" connection, and which he owned and controlled. He said he had found the common seal and various other documents relating to Beating in the office where the panel beating business had been carried on at 1509 and said that he believed that whoever had the common seal of a company owned it.
28 He claimed that he understood Beating to be an entity quite distinct from Beaters, in that Beaters was the company that carried on the panel beating business, whereas Beating had nothing to do with that business but was, as I have said, an otherwise inactive shelf company.
29 He claimed that he decided to transfer the Property to Beating for "asset protection" purposes, that is to say, to protect it from risks inherent in the panel beating business. However, he was unable to articulate a reason as to why he considered that moving the Property out of his own ownership into the ownership of a shelf company which he owned and controlled would assist in relation to asset protection.
30 The submission which was ultimately put on his behalf was that he was labouring under the mistaken belief that he was transferring the Property to a company that he owned and controlled, namely Beating, and that the name inserted in the Transfer as that of the transferee was the result of a clerical error, put down to sloppy paperwork. The submission continues by saying that contrary to his stated belief, Beating turned out not to be a company which Mr Whalebone either owned or controlled, but a company associated with Mr Barclay, whose interests acquired it in 1973. His evidence was that if he had not been so mistaken, he would not have sought to transfer the Property to Beating, and certainly not to a non-existent entity.
31 In those circumstances, it was submitted on his behalf that as a consequence of that unilateral mistake, the Transfer should be set aside and the Property should be returned to him.
32 By contrast, it was submitted on behalf of Beaters that I should not believe the evidence given by Mr Whalebone as to his belief and that I should find that Mr Whalebone was at all relevant times aware that there was one and only one company which he and his wife controlled, namely Beaters, and that he intended to transfer the Property to that company.
33 It was further submitted that, given that he owned 99 percent of the issued shares in Beaters, and that he and his wife were its only directors, with Mr Whalebone being its principal decision maker, Beaters likewise intended to acquire the Property from Mr Whalebone.
34 As a consequence, according to Beaters' submission, the Transfer clearly did not reflect that common intention of the parties thereto, namely that of Mr Whalebone as transferor and that of Beaters as transferee, to transfer the Property to Beaters. The Transfer misstated Beaters' corporate name as transferee. That, it is submitted, constituted a mistake common to both parties to the transaction and for those reasons it was submitted that the Court should rectify the Transfer by inserting as the transferee the proper corporate name of Beaters.
35 It seems to me that the resolution of this issue turns largely on Mr Whalebone's belief and intention at the time he purported to transfer the Property to the non-existent Transferee. For the reasons that follow, I do not accept Mr Whalebone's evidence and find that, contrary to what he now claims, he intended to transfer the Property to the only company then relevantly in existence, and which he owned and controlled, namely Beaters, and in his capacity as a director and the principal decision maker of Beaters, he intended that Beaters acquire the Property from him.
36 First, I do not accept Mr Whalebone's evidence to the effect that he believed that in addition to, and quite separately from, Beaters, he owned and controlled a separate and distinct company, namely Beating. As I have already noted, there was no explanation given by him as to how he thought he had "inherited" Beating from his uncle and aunt (there being no evidence to suggest that either his uncle or his aunt had passed away as at 1987), nor is there any satisfactory explanation proffered as to how he had come to understand that Beating had a separate existence as a family shelf company which he, and he alone, owned or controlled.
37 I do not accept his evidence that he believed that whoever had the common seal owned the company. Under cross-examination, he was unable to give any rational explanation for that alleged belief. Given that I do not accept that Mr Whalebone honestly believed that Beating was a separate and distinct company which he owned and controlled, it follows that I do not accept that he intended to transfer the Property, for which he had paid valuable consideration, to a separate company that he did not own and control.
38 Secondly, I do not accept that his asserted belief was supported by documents and other items he had found on the premises at 1509. There is in evidence a Second Hand Dealers Licence and a Membership Certificate of the Motor Traders Association, both in the name of Beating. I do not doubt that as Mr Whalebone says, he found those documents at 1509, where the panel beating business had always been carried on. However, both of those documents are dated in 1965, long before Beating had changed its name and ceased carrying out panel beating operations in 1973.
39 I do not consider that Mr Whalebone could seriously have relied on the existence of those documents, or on finding a common seal in the name of Beating at the premises on 1509, to persuade him that a separate company by that name was still in existence in 1987 and that it was a family shelf company that he owned and controlled.
40 Thirdly, as I have already noted, Mr Whalebone could offer no satisfactory explanation as to why a transfer from him to Beating, even if it was a family shelf company, served as a means of asset protection. Having said that, I should note that I have a similar difficulty in trying to understand why Mr Whalebone would have wished to transfer the Property to Beaters either. The transfer, if intended to be to Beaters, would expose the Property to the risks inherent in carrying on Beaters' panel beating business. There may be some satisfactory explanation, but that topic was not explored.
41 Fourthly, the financial statements and tax returns of Beaters show the Property as an asset of that company at an "at cost" value of $103,641.50. That figure appears in each set of accounts and income tax returns that are in evidence, the earliest being for the year ended 30 June 1991, and the latest for the year ended 30 June 2004. Although it is not entirely clear, those financial statements also appear to show the rental income derived by Beaters from the Property, which was leased to unrelated third parties.
Most of those financial statements and tax returns were signed by Mr Whalebone himself.
42 Much of the evidence before me centred upon the significance of these accounts. Mr Whalebone asserted that all of those accounts were false in the sense that they incorrectly included the Property as an asset of Beaters. He said that such was never the case and that he did not realise those entries had been made. Rather, he said that it was Beating that should have shown the Property as an asset, not Beaters. Mr Whalebone said that the accounts for Beaters had been prepared by Mr York ever since he had become Mr Whalebone's accountant (a proposition with which Mr York agreed) and that Mr York had never explained to Mr Whalebone that the Property was shown in the financial statements and tax returns as an asset of Beaters (a proposition with which Mr York did not agree).
43 I do not accept Mr Whalebone's evidence in that respect. I prefer the evidence of Mr York, which was to the effect that he explained to Mr Whalebone the most significant aspects of the financial statements and tax returns before they were actually signed by Mr Whalebone. Mr York did not suggest that he explained each and every item to Mr Whalebone--a suggestion I would have found difficult to accept--but I do not accept that every year Mr York asked Mr Whalebone simply to sign the documents without proffering any explanation at all. Even without a specific explanation, I would have expected that Mr Whalebone's eyes would have been caught by the reference to the Property in the accounts of Beaters, which reference he would have found strange if he had honestly believed that the Property had nothing to do with Beaters but had been transferred to Beating, as he now claims.
44 It was asserted on behalf of Mr Whalebone that there is no satisfactory evidence before me as to how those entries came to appear in the financial statements and tax returns of Beaters. I do not place any particular significance on the fact that the accounts between 1987 and 1991 are not before me. That was a long time ago and I would not expect, except through sheer good fortune, to be provided with those documents. I would not draw an adverse inference against either party for not producing them. I do however accept the evidence of Mr York to the effect that he would not have made the entries in question had it not been either as a result of express instructions received from someone like Mr Whalebone, supported by some form of documentary material, or unless such an entry had already been inserted by the accountant who had previously prepared Beaters' financial statements, and that even then, he would make inquiries from someone who had knowledge about the correctness or otherwise of the entry.
45 I do not find it surprising that Mr York could not remember how it came about that by the financial year ended 30 June 1991, he had made an entry to that effect in the financial statements of Beaters.
46 It was submitted on behalf of Mr Whalebone that I should not place undue emphasis on the fact that such entries appeared year after year in the accounts of Beaters, given that the software used by Mr York provided for such entries to be rolled over automatically from year to year. I accept that submission and place no particular significance on the fact that such entries appeared on at least a dozen occasions, except to note that it would be surprising if Mr Whalebone had failed to notice that entry and query it with Mr York on at least one such occasion.
47 In terms of the genuineness of the entries, I also note that the amount in question is not an exact amount such as the $100,000 shown as consideration in the Transfer. The reason for the excess is not explained by the evidence. It might be stamp duty, legal fees or something else. However, given the precision of the figure at $103,641.50, it is unlikely in my opinion to have been arrived at without some genuine documentary support.
48 It is not entirely clear on the evidence whether Mr York was the accountant who first entered the Property in the financial statements of Beaters as an asset of that company. Mr York could not remember; nor could Mr Whalebone. However, as Mr York took over looking after the accounts of Mr Whalebone and his company in 1988, and the Transfer was registered on 22 July 1987, the probabilities are that it was Mr York who first made that entry. Either way, it is unlikely that anyone other than Mr Whalebone would have given instructions either to Mr York or to his predecessor as to how the Property was to be treated in an accounting sense. In my opinion, it is almost certain that it was Mr Whalebone who gave the instructions that the Property was to be shown as an asset of Beaters.
49 Fifthly, there is no evidence to suggest that any accounts were ever prepared or tax returns were ever filed on behalf of Beating. I would have thought that if Mr Whalebone genuinely believed, as he now claims, that there were two companies relevantly in existence, both of which he controlled, namely Beaters and Beating, he would have expected that financial statements would be prepared for Beating and tax returns would be filed in relation to the income it received from the rental of the Property. There is no suggestion that this ever happened or that Mr Whalebone ever took any steps to ensure that any statutory requirements imposed on Beating were complied with. Why Mr Whalebone would have permitted this to occur if he believed there were two separate companies remains unexplained.
50 Sixthly, there are in evidence before me a number of documents which were either filed, or prepared for use, in the Family Court in relation to the divorce and property settlement between Mr Whalebone and his former wife. Although there are numerous references to Beaters and to another company with which Mr Whalebone was associated (namely A1 Catering Services Pty Limited) there is no reference to Beating to be found anywhere in those documents. Given that the documents in question purport to list Mr Whalebone's income, property and financial resources, and are verified by affidavit, and which documents include specific references to Beaters and A1 Catering Services Pty Limited, the absence of any similar reference to Beating is a significant matter militating against Mr Whalebone's case.
51 Finally, there are before me a number of post-1987 documents relating to the panel beating business. They include quotations, invoices and copies of documents filed in various proceedings by which debts of the business were sought to be recovered. It is clear that the names of Beaters and Beating (and for that matter other similar names) were used interchangeably by Mr Whalebone, who acknowledged authorship of all but one of the documents on which he was cross-examined. Indeed, I find that even in respect of that one particular document, the handwriting appearing is clearly his and I reject his evidence that there is any doubt in his mind about the authorship of that particular document.
52 In one case, in documents relating to a particular proceeding in the Local Court, Mr Whalebone has in one document referred to the plaintiff in the name of Beaters, and in another document in the same proceeding, in the name of Beating. The same Australian Company Number is used on all documents, being the Australian Company Number shown in the Australian Securities and Investment Commission records as being that of Beaters. There is no reference in any of the documents to any other Australian Company Number.
53 The conclusion that I reach is that the corporate names of Beaters and Beating were used by Mr Whalebone interchangeably, without making any distinction between the two. That would explain the fact that he probably instructed his solicitors in 1987 to transfer the Property to Beating. Later, he used whatever stationery was presently at hand, and he paid no attention to the precise name that he was using on any documentation. That, to my mind, is a significant matter militating against any suggestion that Mr Whalebone honestly believed that there were two separate companies having quite distinct functions, namely Beaters carrying on business as a panel beater and Beating being a family shelf company to which the Property had been transferred for asset protection purposes. On the contrary, the interchangeable use of the two names firmly suggest that Mr Whalebone considered there to have been only one company, not two, and that he paid no attention to the company name he used in any particular transaction, including on the occasion when he transferred the Property in 1987.
54 In the course of his cross-examination in relation to these documents, Mr Whalebone said, in respect to a number of the documents which were in the name of Beating, that it was his intention that the relevant contracting party be Beating, not Beaters. He was forced to accept that the consequence of that explanation was that Beating, the company which he claimed was being used for asset protection purposes, became exposed to liability arising from the carrying of the panel beating business. He said, however, that the amounts involved were only small amounts and therefore they were not significant.
55 I do not accept Mr Whalebone's evidence in this regard. In my view, he found himself in a position where his evidence to the effect that there were two separate companies having two distinct functions could no longer be defended. In those circumstances, he was prepared to give any evidence that he considered would be consistent with the principal thrust of his evidence.
56 It was submitted on behalf of Mr Whalebone that I should place no significance on these documents as the issue before me, namely the intention of Mr Whalebone, had to be determined as at the date of the Transfer, namely 1987. It was submitted that whatever may have happened thereafter in terms of Mr Whalebone permitting Beating to expose itself to the risks inherent in carrying on business can be of no relevance.
57 There is clearly substance in that submission, and I accept that the relevant time to consider the state of Mr Whalebone's intentions is 1987. However, I do not accept that the subsequent events are irrelevant. They are relevant in my opinion in that those events reflect upon what the intentions of Mr Whalebone are likely to have been in 1987. The fact that Mr Whalebone was prepared to expose Beating to risks associated with carrying on the business of panel beating is an indication that he is most unlikely to have had in 1987 the intention he now says he had, namely to transfer the Property to a family shelf company for the purposes of asset protection. If that was in fact his intention in 1987, he is unlikely to have allowed Beating to risk being sued in relation to the panel beating business.
58 I accept that the probative value of those documents is reduced by the passage of time since 1987, but I consider that those documents are still of significant probative value, and I have taken them into account on that basis.
59 For all those reasons, I do not accept the evidence of Mr Whalebone in relation to his stated belief and intention in 1987. Instead, I accept the submission made on behalf of Beaters, and find that at the time of the Transfer, Mr Whalebone intended to transfer the Property to the one and only company that he relevantly believed he owned and controlled, Beaters, and that as a director, the majority shareholder, and principal decision maker of Beaters, he also intended on behalf of Beaters to acquire the Property and to accept the Transfer on Beaters' behalf. I find that the name placed on the Transfer, namely the name of the non-existent Transferee was placed thereon by mistake, a mistake common to both parties, their common intention being to transfer the Property to Beaters. In my view, effect needs to be given to their said true common intention.
The second issue--is the Transfer a nullity?
60 It was submitted on behalf of Mr Whalebone that the Transfer was a complete nullity as though it had never come into existence and that, as a result, not only in equity did the title to the property continue to reside in Mr Whalebone, but the legal estate has also remained with him notwithstanding the Transfer.
61 As I understand the submission, it starts off by noting that section 46 of the Real Property Act 1900 ("the Act") requires any transfer of land to be by way of a transfer in the approved form, which must then be registered in accordance with the Act in order to acquire the protection of the indefeasibility provisions that follow.
62 It is then said that section 106 of the Act required the Transfer to be executed but that in the present case, that requirement was not met. This was said to be because neither Mr Whalebone nor his former wife was a director or secretary of Beating at the time of the Transfer and that accordingly any attempt by them in 1987 to purport to execute the Transfer under the common seal of Beating did not constitute an effective execution of that document. It is then said that as a consequence, notwithstanding its registration, the Transfer is a total nullity and as a consequence, Mr Whalebone is entitled to the registered proprietor of the Property.
63 I do not accept that submission. Section 46(1) of the Act provides as follows:
"Where land under the provisions of this Act is intended to be transferred, or any easement or profit à prendre affecting land under the provisions of this Act is intended to be created, the proprietor shall execute a transfer in the approved form."
64 The term "approved form" is defined in section 3(1)(a) of the Act to mean, so for as it is relevant, a form "approved by the Registrar-General for the purposes of the provision of this… Act". Section 104 of the Act deals with "approved forms", which section, so far as is relevant, provides as follows:
" …