Bonifacio v NSW Trustee and Guardian

Supreme Court of NSW|2019-06-11

Solicitors: Lincoln Smith & Company Solicitors (Applicant - Jack Edward Walsh) Keypoint Law (Respondent - Russell Eric Templeton) File Number(s): 2005/00262592

Introduction

On 6 June 2005, a property situated in Tenterfield, New South Wales (the Property) was sold by Tenterfield Shire Council (the Council) by reason of non-payment of rates levied on the Property. [1] On 28 November 2005, the proceeds of sale, after deduction of the amount of outstanding rates and costs, were paid into Court by the Council. [2] These proceedings are concerned with entitlement to the net proceeds of sale now in Court.
The question of entitlement to the fund in Court depends principally upon whether, at the time of the sale by the Council, the Property was owned solely by Lucille Walsh (Lucille), solely by the estate of the late Jeanette Walsh (Jeanette), or jointly by the estate of Jeannette and Lucille as tenants in common. Lucille was Jeanette's daughter. A secondary question in the proceedings is whether, prior to the sale of the Property by the Council, Mr Sean Vicary (Mr Vicary) had any interest in the Property as mortgagee from Lucille.
On 7 April 2003, the Guardianship Tribunal appointed the Public Guardian as Jeanette's guardian and appointed, as her financial manager, her son, Mr John Walsh (Jack). In its reasons for doing so, the Tribunal reported that Jeanette agreed that she needed assistance with her financial affairs and that she trusted Jack to assist her in that regard. The reasons recorded that Jeanette was opposed to Lucille being involved in her financial affairs, expressing "vehement opposition", and that there was clearly hostility towards Lucille on Jeanette's part in relation to previous dealings.

Ownership of the Property

As at March 1973, the Property was held under common law title. By deed of conveyance dated 30 March 1973 (the Conveyance), Harold and Winifred Moulds conveyed the fee simple in the Property to Jeanette and Lucille as joint tenants. Shortly after the date of the Conveyance, Kathaleen Evans (Kathaleen), and her husband, Alan Evans (Alan), moved into the Property with their son. Kathaleen is another daughter of Jeanette. Kathaleen and Alan remained in occupation for about 18 months and paid rent to Mr Harold Curry (Mr Curry), a real estate agent in Tenterfield, who managed the Property, in that he received rent from various tenants and paid that rent to Jeanette during various periods from December 1974 to July 1994.
During 2004, Lucille applied to the Registrar General to have the Property brought under the provisions of the Real Property Act 1900 (NSW) (the Real Property Act). She made the application on the basis that she was the surviving joint tenant following the death of Jeanette. On 30 November 2004, the Registrar General issued a qualified certificate of title showing Lucille as the sole owner of the Property, subject to a caution under s 28J of the Real Property Act in relation to the Conveyance. Under s 28J, when creating a qualified folio of the Register for any land, the Registrar-General is required to record in that folio a caution warning persons dealing with the registered proprietor that the land comprised therein is held subject to any subsisting interest, whether recorded therein or not. Jack did not become aware of the creation of the qualified certificate of title until sometime in 2017.

Dealings between Jeanette and Lucille

Prior to July 1993, Jeanette was the sole owner of a property in Gladesville (the Gladesville Property). On 9 July 1993, Jeanette entered into an agreement with Lucille and Lucille's husband, Peter Marshall (Peter), that recorded that Jeanette had agreed to transfer to Jeanette and Peter a one-half share in the Gladesville Property, which was to be held by "[Jeanette] and [Lucille and Peter] as tenants-in-common in equal shares" (the Deed of Partition). By cl 1 of the Deed of Partition, Jeanette covenanted and agreed to transfer to Lucille and Peter a one-half share of the Gladesville Property "to be held by [Lucille and Peter] as tenants-in-common with [Jeanette]". By cl 2, the parties covenanted and agreed that, upon registration of the transfer, they would jointly obtain the approval of Ryde Municipal Council to the development of the Gladesville Property so as to allow for the erection of two separate residential dwellings on the Gladesville Property.
By transfer dated 30 September 1993, Jeanette transferred the Gladesville Property to "[Jeanette, Peter and Lucille] as joint tenants as to a one half share and [Peter and Lucille] as joint tenants as to a one half share". Curiously, that transfer does not appear to reflect the obligations under the Deed of Partition. That is to say, Jeanette had only an interest as a joint tenant with Lucille and Peter in respect of a moiety, rather an interest as the sole owner of a moiety.
On 4 February 1994, a mortgage to Westpac Banking Corporation (Westpac) was purportedly signed by Peter, Lucille and Jeanette. The mortgage was stamped to secure $191,000. In August 1996, the Gladesville Property was sold for $355,000. The transfer of the Gladesville Property to the buyer was signed by Lucille on behalf of Jeanette under power of attorney. The proceeds of sale were applied in satisfaction of the amount owing to Westpac.
Jeanette subsequently complained that she had not received any part of the advance from Westpac, had not authorised the sale of the Gladesville Property and did not receive any share of the proceeds of sale. While no proceedings were actually commenced, an affidavit sworn by Jeanette on 23 January 1997, which was intended to be filed in proceedings to be commenced in the Equity Division, is indicative of ill will felt by Jeanette towards Lucille. I shall refer to the affidavit below. Jeanette also expressed her grievance to Jack, saying to him that Lucille had sold the Gladesville Property without her knowledge and "taken the money". She told Jack that Lucille had signed documents under a power of attorney without telling her. On 22 October 1996 Jeanette revoked the powers of attorney formerly given to Lucille and Peter.
On 24 September 2003, Jack commenced proceedings in the Equity Division against Lucille claiming a declaration that the joint tenancy between Jeanette and Lucille in respect of the Property had been severed and a declaration that, as a result of the severance, Jack was entitled, in his capacity as administrator of the estate of Jeanette, to be registered as the owner of the Property to the exclusion of the Lucille (the 2003 Equity Proceedings). At that stage, no grant of administration had been made to Jack in respect of the estate of Jeanette. In March 2004, the proceedings commenced by Jack were discontinued and Jack was ordered to pay Lucille's costs of the proceedings. As I have said, it was not until 24 July 2004 that letters of administration were granted to Jack in respect of Jeanette's estate.
Jack asserts that, when the summons was filed, it was accompanied by an affidavit that he had sworn setting out the evidence on which he intended to rely but that that affidavit cannot now be found. He says that he believed that the summons and affidavit were served on Peter Prior & Co, solicitors who were acting for Lucille and who agreed to accept service. Peter Prior & Co had acted for Lucille in the transfer of the Gladesville Property in 1996. Jack asserts that, when he discontinued the proceedings in the Equity Division, he had no intention of giving up the claim that he made against Lucille and that it was always his intention to continue with the claim after he obtained a grant of administration.
Jack asserted that the last time he had direct contact with Lucille was on 8 December 2004, when he attended an address in Ashfield for the purpose of effecting service on Lucille of a statement of claim that he had filed on behalf of Jeanette's estate in the Supreme Court of Queensland. In those proceedings, Jack claimed an order that Lucille account to him for one half of the proceeds of the sale of the Gladesville Property. Jack alleged that the proceeds of the sale of the Gladesville Property had been utilised by Lucille and Peter to repay a loan for which they were solely responsible and in the purchase of a property situated at Highland Park, Queensland Highland Park. He claimed a declaration that Lucille held the fee simple in the Highland Park property on trust for him in his capacity as administrator of Jeanette's estate.

Dealings by Lucille

Mr Robert Picone, a solicitor, acted for Lucille in relation to the primary application made in 2004 to bring the Property under the provisions of the Real Property Act and other matters at that time and Mr Templeton's solicitors have obtained documents from Mr Picone's files. The documents included a copy of a form of contract for the sale of the Property by Lucille to Mr Vicary for a price of $118,000, purportedly signed by Lucille but not dated. Attached to the form of contract was a title search dated 30 November 2004 showing Lucille as the registered proprietor of the Property under qualified title and a copy of a rate notice addressed to "Ms J R & Mrs L C Walsh" issued by the Council. An application for finance addressed to Macquarie Mortgages, purporting to be made by Mr Sean Vicary, was also included in the documents.
Also included in the documents obtained from Mr Picone was a copy of a letter of 25 January 2005 from Mr Picone to Lucille headed "Re: WALSH Sale to VICARY". The letter relevantly said as follows: "We note the Purchaser still does not have finance approval to purchase your Tenterfield property, accordingly, we confirm no exchange of contracts has taken place. We also note that you have only yesterday finalised the purchase price as $118,000.00 with a deposit of $82,500.00. The deposit was previously $54,000.00 being the amount the Purchaser had previously lent to you. As a result of our conversation of yesterday, this has also changed and you now tell us you have paid some back. We confirm the property is to be auctioned by the local council on 9 April 2004 unless you can pay the outstanding council rates before the said date. We also once again confirm the property is in your name as it was transferred into your name in accordance with your instructions. A title search conducted by us yesterday confirms Jack Walsh has lodged a caveat. This does not seem to accord with your instructions that your matter with Jack Walsh was finalised with respect to the property. On numerous occasions, we questioned you as to whether Jack Walsh still had a claim against the property, whether there were any orders in place or proceedings, whether there was a chance Jack Walsh had an interest in the property. Our enquiry was based on comments made to us by an officer at the local council. You indicated to us that you were offended by our enquiry and that everything had been settled and that your previous solicitor filed consent orders with respect to this property. You also indicated that the local council was wrong and that it was conspiring to keep your house. Unfortunately, your earlier instructions have been found to be incorrect by Jack Walsh's latest actions. In our early meetings, you wanted us to prepare contracts quickly, [to] urgently obtain the zoning certificate and other documents for the contract to exchange contracts. We did this to the point of paying urgency fees on your behalf, but exchange never took place because of the Purchaser's inability to obtain finance. Unfortunately, your Purchaser's continual failure to obtain finance jeopardised the sale. We have been informed … that the finance was not approved as your purchaser was trying not only to buy this property, but also another property, something that you only indicated to us yesterday. Also we note, due to the condition of the property, no lender would lend money to your purchaser. We note you only recently completed some works to enable the Purchaser to possibly get funding. Your instructions have continually changed from our first meeting. The above are only some examples. We have asked you to pay our fees if you want us to act further under the circumstances but you say you cannot." Also included amongst the documents obtained from Mr Picone was a tax invoice dated 25 January 2005 addressed to Lucille for work done in connection with the proposed sale to Mr Vicary. The reference in the letter of 25 January to a proposed auction on 9 April 2004 was clearly an error.
Also included among the documents obtained from Mr Picone was a handwritten file note is as follows: "Walsh 02/02/05 Att Alan Nicol - he said Sean Vicary called yester - urging exchange, all rates paid - why then was exchange req'd - AWN asked - issue of caveat." The note is somewhat Delphic and, in the absence of further evidence, it is difficult to make much of it. It might suggest that the contract with Mr Vicary was not necessarily a genuine transaction. However, no submission was made to that effect.
On 26 May 2005, Penhall & Company Lawyers (Penhall & Co), solicitors acting on behalf Lucille, wrote to Lincoln Smith & Co, solicitors acting for Jack, noting that Lucille was the registered proprietor of the Property and that the Property was "presently subject to a sale contract by [the Council] for unpaid rates". The letter noted that Jack, as the administrator of Jeanette's estate, had lodged a caveat claiming a half interest and said that that interest was disputed. The letter also referred to the 2003 Equity Proceedings.
The letter of 26 May 2005 requested the provision of any documentary evidence supporting the alleged severance of the joint tenancy and that Lincoln Smith & Co indicate how it was that Jack had a claim against the sole registered proprietor "achieved by registration of a Notice of Death". Penhall & Co said that, since the completion of the sale of the Property was imminent, Lincoln Smith & Co were requested to provide urgently particulars of the basis upon which the claim of severance was made. The letter said that if "the sale is lost" because of Jack's caveat, Lucille reserved her rights in damages.
Lincoln Smith & Co responded on 27 May 2005, saying that Jack maintained his position in relation to the severance of the joint tenancy, which was based not only on documents referred to in the 2003 Equity Proceedings but also on other evidence that had "only come to light" since those proceedings were discontinued. The letter said that Jack was quite prepared to withdraw his caveat on completion of the sale of the Property by the Council provided that the net sale proceeds were held in trust until any issues between Jack and Lucille were resolved.
Lincoln Smith & Co's facsimile of 27 May 2005 went on to refer to the affidavit of 23 January 1997 concerning the Gladesville Property and attached a copy of the affidavit. The facsimile asserted that, although Jeanette had signed the affidavit, the proceedings were not actually commenced "because of her deteriorating health and the significant costs involved". On 17 June 2005, Lincoln Smith & Co wrote to Penhall & Co again with reference to a lapsing notice in respect of Jack's caveat. The facsimile requested that Lucille allow the caveat to remain in place pending the completion of the sale of the Property by the Council on the basis that, after the sale was completed, the balance of the monies would be held in a trust account until any outstanding issues between Jeanette's estate and Lucille could be determined.
On 20 June 2005, Lincoln Smith & Co wrote to Penhall & Co again, setting out the substance of the allegations made on behalf of Jeanette's estate in relation to the Gladesville Property. In further exchanges on 20 June 2005, agreement was reached that Jack's caveat would be withdrawn to permit completion of the sale by the Council, that the Council would hold the proceeds of sale in trust and neither Jack nor Lucille would seek payment from the Council without written agreement and direction to the Council or an order of the Court.
It appears that Penhall & Co sought access to Mr Picone's file and, on 29 June 2005, Mr Picone told Penhall & Co that the file would only be released upon full payment of their fees, as shown in the tax invoice referred to above. Penhall & Co responded on 1 July 2005 saying as follows: "Our client is … not in a position to pay your outstanding fees at present. We are presently acting on a contingency basis endeavouring to recover part of the proceeds of sale of [the Property] which has been sold by Tenterfield Council for non-payment of rates. Her late mother's estate is claiming an interest in the property under a Caveat which on our assessment is a spurious claim but which may require litigation to secure payment of the remaining sale proceeds of about $60,000. Your files would likely assist us in either litigating or settling the dispute and we are more than happy to seek an arrangement whereby your costs are paid from any successful result." Mr Picone replied on the same day confirming that no files would be released until full payment had been received. On 20 July 2005, Mr Picone informed Penhall & Co that he was prepared to release the file on payment of disbursements and an undertaking in relation to the balance.

Payment into Court

On 6 June 2005, the Property was sold by the Council under Ch 17, Pt 2, Div 5 of the Local Government Act 1993 (NSW) (the Local Government Act). On 5 September 2005, a dealing was registered under the Real Property Act effecting the transfer of the Property by the Council to the purchaser.
Chapter 17, Pt 2, Div 5 of the Local Government Act consists of ss 713 to 726 and deals with the sale of land for unpaid rates and charges. Under s 713(2), a council may sell any land on which any rate or charge remains unpaid for more than five years from the date on which it became payable. Section 713 prescribes certain steps that must be taken before exercising that power. Those matters are not in issue. Section 717 provides for the purchase money for land sold under Div 5 to be paid to the relevant council. Under s 718, the council must apply any purchase money in or towards payment, first, of the expenses of the council incurred in connection with the sale and, secondly, any rate or charge in respect of the land due to the council. Section 720(1) provides that any balance of the purchase money must be paid into the council's trust fund and held by the council in trust for the persons having estates or interests in the land immediately before the sale, according to their respective estates and interests. The council may pay the balance of the purchase money, or any part of the balance, to or among the persons who are, in its opinion, clearly entitled to it.
On 8 November 2005, the Council received a facsimile communication purporting to have been sent by Mr Vicary showing an address in Willoughby, New South Wales. A handwritten page forming part of the facsimile communication relevantly said as follows: "I understand you are holding in trust the proceeds from the sale of [the Property]. Please arrange for my name to be added to the claimants for the amount of $76,000.00. I am attaching a copy of a mortgage I hold on [the Property] for $76,000 dated 07/02/2005. I am in the process of writing a formal claim for this money but in the meantime please be sure not to disburse the money you are holding in trust." Enclosed as part of the facsimile was a copy of a document headed "Deed of Mortgage" and purporting to be a mortgage of the Property by Lucille to Mr Vicary. The document was stated to be "page 1 of 7" but only the first page was included in the facsimile. The document was not dated.
On 28 November 2005, the sum of $73,298.69 was paid into Court by the Council under Division 4 of Part 70 of the Supreme Court Rules 1970 (NSW) (the Supreme Court Rules) [3] , which applied to the payment of funds into Court under Part 4 of the Trustee Act 1925 (NSW) (the Trustee Act), which consists of ss 95 to 99. Section 95(1) relevantly provides that, where trustees have in their hands or under their control money belonging to a trust, they may pay the same into Court. Section 98(1) provides that the payment of money into Court is to be subject to rules of Court and, under s 98(3), money paid into Court is, subject to rules of Court, to be dealt with according to the orders of the Court. The Court may make such order as it thinks fit as to the investment payment or distribution of money paid into Court, or the dividends or income thereof.
Under rule 12 (1) of Order 70, a person wishing to pay funds into Court was not required to commence any proceedings in relation to the payment. However, under rule 13, a person paying funds into Court was required to file an affidavit made by the person paying the funds into Court or, if that person was a corporation, by an officer of the corporation. The affidavit was required to set out: 1. a short description of the trust and of the instrument creating it or, as the case may be, of the circumstances in which the trust arose, 2. the amount and description of the funds, 3. the names and addresses, so far as known to the person paying the funds into Court, of the person interested in or entitled to the funds, 4. the name of the person paying the funds into Court and his address for service. Under r 14 of Order 70, a person paying funds into Court was required, unless the Court otherwise ordered, to post, not more than one day after the date of payment into Court, notice of the payment into Court to each person whose name and address is set out in the affidavit under rule 13.
The payment into Court on 28 November 2005 was made by the Council under cover of an affidavit sworn on 18 November 2005 by Mr Paul Chawner, an officer of the Council. The affidavit stated that the names of all persons claiming an interest in or entitlement to the funds held by the Council, so far as known to the Council, were Jack, Lucille and Mr Vicary. The affidavit specified addresses for those three parties, being the addresses of Lincoln Smith & Co for Jack, Penhall & Co for Lucille, and the address in Willoughby given to the Council in the email to which I referred above, for Mr Vicary.
On 8 October 2006, Mr Sam Parmaxidis, a solicitor, wrote to Lincoln Smith & Co saying that he had been requested by Mr Vicary to advise him in relation to the monies held in Court and asking for copies of any documents relating to the proceedings. Lincoln Smith & Co responded saying: "Although you do not say so in your letter, we assume that your inquiry relates to the estate of [Jeanette]. If that is the case, please advise what relationship (if any) Mr. Vicary is alleged to have to that estate as we have no idea as to who he is."
On 17 October 2006 Mr Parmaxidis sent a facsimile to Lincoln Smith & Co attaching a copy of Mr Chawner's affidavit. Lincoln Smith & Co responded on 26 October 2006 saying that they were unclear as to who was Mr Parmaxidis' client. They asked whether he was acting for Lucille or Mr Vicary and said: "If you are acting for Mr. Vicary, please advise us of what claim, if any, he makes to the moneys that have been paid into Court and indicate to us the basis for that claim. If his claim is supported by documents, please provide copies of them to us so that we can consider the issue." There does not appear to have been a response to that letter.
On 16 June 2008, Lincoln Smith & Co wrote to Mr Parmaxidis again saying: "You may recall from previous conversations and communications that we act for [Jack]. In the past, you have apparently been assisting [Lucille] in relation to moneys which are presently held in the Supreme Court of NSW arising from the sale of a property at Tenterfield. Our client has now instructed us to make an application to the Supreme Court for an order that the moneys held in Court be paid to the Estate. Would you please therefore advise us as a matter of urgency whether or not you are still acting for [Lucille] or, if you are not, whether or not you are able to provide us with an address at which she might be able to be contacted." There was no response to that letter.

These Proceedings

The sum of $73,298.69 paid into Court by the Council on 28 November 2005 represented the balance of the net surplus realised on the sale of the Property after deducting the costs of the Council's solicitors in respect of the payment into Court. The proceeds have remained in Court earning interest since that time.
On 10 August 2017, the Court wrote to Jack, Lucille and Mr Vicary. The letters to Jack and Lucille were addressed to the solicitors named in Mr Chawner's affidavit. The letter to Mr Vicary was addressed to the address in Willoughby specified in Mr Chawner's affidavit. The letters informed the recipients that the Court currently held monies in trust totalling $111,596.62, being surplus funds paid to the Court following the sale of the Property by the Council together with interest. The letters said that the funds had been held by the Court for a period of greater than six years and that, since no Court orders had yet been made to pay the funds to any person or other party who may be entitled to them, the Court was preparing to pay the money to Treasury NSW as unclaimed funds, in accordance with Pt 41.10 of the Uniform Civil Procedure Rules 2005. The letters then said that, if a claim was to be made for the funds, it should be received at the Registry of the Court by 22 September 2017.
Penhall & Co wrote to the Court by email seeking particulars necessary to identify their client. The Court responded on 15 August 2017 repeating the information contained in the earlier letter. In the meantime, of course, Lucille had died and Mr Templeton had been appointed as administrator of her estate.
The letters from the Court appear to have prompted these proceedings. By notice of motion filed on 18 September 2017, Jack seeks an order under Part 4 of the Trustee Act and s 720 of the Local Government Act that the monies in Court be paid out to him in his capacity as administrator of Jeanette's estate. By notice of motion filed on 31 January 2018, Mr Templeton seeks an order under s 98 of the Trustee Act that the monies in Court be paid out to him in his capacity as administrator of Lucille's estate. The Council has not participated in the hearing of either motion. It has, in effect, interpleaded, having paid the funds into Court without any claim to entitlement.
I am satisfied by an affidavit sworn by Mr Vicary on 6 June 2019 that Mr Vicary has been effectively joined as a party to the motions filed on behalf of Jack and Mr Templeton, in that he has been personally served with each of them together with the evidence filed in the motions. While he has not filed an appearance, Mr Vicary has indicated that he has received independent legal advice and does not intend to make any application for the funds held in Court.
The two applications before the Court have proceeded on the basis of points of claim and points of defence. Jack asserts that he is entitled to the monies in Court, together with accrued interest, on the basis of the following: 1. For more than 12 years after the acquisition of the Property by Jeanette and Lucille, Jeanette took possession of and occupied the Property to the exclusion of Lucille by: 1. leasing the Property to tenants; 2. appointing a local real estate agent to manage the tenancies on her behalf; and 3. receiving and appropriating the whole of the rent raised from the Property to herself to the exclusion of Lucille. 1. By reason of the foregoing, upon the expiration of 12 years from the first letting of the Property, or alternatively from the letting of the Property to the Council, the title of Lucille, as joint tenant, became statute barred and was extinguished by the operation of the Limitation Act 1969 (NSW) (the Limitation Act). 2. Alternatively, by facsimile dated 25 February 1999, Lucille relinquished any and all claims to the Property (the Property Relinquishment Document). 3. Alternatively, to the extent that the interest of Lucille had not been extinguished under the Limitation Act or surrendered and relinquished by the Property Relinquishment Document, the jointure was severed in equity in consequence of a falling out between Jeanette and Lucille and the effect of the Property Relinquishment Document, such that the joint tenants were no longer treating their co-ownership at law as being held as joint tenants.
Mr Templeton's points of claim rely on the fact that Lucille is registered under the Real Property Act as the proprietor of an estate in fee simple in the Property, having acquired the legal fee simple by right of survivorship following Jeanette's death. He also resists the claim by Jack on the ground of delay and laches.
Thus, Jack has the burden of establishing that, prior to Jeanette's death, Lucille's interest as joint tenant was extinguished or, alternatively, the jointure was severed in equity, such that, in equity, Lucille was entitled to no more than an undivided moiety. Mr Templeton has the onus of making out an answer based on delay or laches. Both Jack and Mr Templeton must satisfy the Court that Mr Vicary had no interest in the Property.
I shall deal first with Jack's claim based on the Limitation Act. I shall then address the Property Relinquishment Document and its alleged effect. After that, I shall deal with the allegation of laches and delay made by Mr Templeton.

The Limitation Act

Section 27(2) of the Limitation Act relevantly provides that an action on a cause of action to recover land is not maintainable by a person if brought after the expiration of a limitation period of 12 years running from the date on which the cause of action first accrues to the person. Section 65 and Sch 4 to the Limitation Act have the effect that, on the expiration of a limitation period fixed by or under the Limitation Act for a cause of action to recover land, the title of a person formerly having the cause of action to the land is, as against the person against whom the cause of action formerly lay and as against that person's successors, extinguished.
Jack contends that Jeanette treated herself as the sole owner of the Property and that, through her tenants, she occupied the Property to the exclusion of Lucille, with the effect that Lucille's title was extinguished by the operation of the Limitation Act. Thus, Jack contends, for a period well in excess of 12 years from the date of the Conveyance, Lucille was excluded by Jeanette from occupation and use of the Property and Jeanette, for that period, was in occupation and used the Property to the exclusion of Lucille. Accordingly, Jack contends, Lucille's title to the Property was extinguished. It is necessary, therefore, to recount the facts as to occupation of the Property, which are not in dispute.
Papers located by Jack at Jeanette's home at the time of her death indicate that, during various periods from December 1974 to July 1994, Mr Curry managed the Property, in that he received rent from various tenants and paid that rent to Jeanette. There is no evidence that Lucille ever received any of the rent paid by the occupiers of the Property. Among the papers located by Jack were documents indicating that rates in respect of the Property were paid by Jeanette for some time and that insurance premiums in respect of the Property were paid by Jeanette. The documents refer only to Jeanette as the person to whom rents were paid and the person by whom outgoings were paid. They indicate that Jeanette was the only person from whom directions or decisions relating to the Property were sought by Mr Curry.
During the time that Kathaleen and Alan lived in the Property, Lucille did not visit the Property and did not have any contact or conversation with Kathaleen in relation to the occupancy of the Property. When Kathaleen had any issues with the Property or with her occupancy, such as in relation to repairs, she spoke to Jeanette or to Mr Curry's office in relation to such issues. At no time prior to moving into occupation of the Property and at no time during her occupation of the Property, did Jeanette say anything to Kathaleen that indicated or suggested in any way that Lucille may have had an interest in the Property. Kathaleen was not aware until after the death of Jeanette that Lucille had or claimed to have any interest in the Property.
From approximately December 1974 until the end of 1980, the Property was occupied by a "G. Ready". From approximately January 1981 until October 1985, the Property was occupied by a "B. Williams". From approximately June 1986 until December 1990, the Property was occupied by the Council for use as the Tenterfield Youth Centre. From approximately June 1991 until July 1994, the Property was occupied by a person named "Daly".
Amongst the documents of Jeanette located by Jack were cheques drawn by Mr Curry in favour of Jeanette during the period from August 1988 to October 1998. The cheques represent rent paid by occupiers of the Property during that period. It appears that none of those cheques was presented for payment.
The common law jurisprudence concerning the acquisition or loss of an interest in land by prescription is based on that of Rome. For Jeanette to have acquired Lucille's interest in the Property, she must establish that she exercised rights of ownership that are inconsistent with Lucille retaining an interest in the Property and that she exercised those rights nec vi, nec clam, nec precario, namely, not forcibly, not secretly and not without consent. Putting it positively, Jeanette must be shown to have exercised the rights peaceably, openly and as of right [4] .
In determining whether an interest has been extinguished by prescription, the question is whether the possessor has dispossessed the owner with the paper title (the paper owner) by going into ordinary possession of the land for the requisite period without the consent of the paper owner. The paper owner is deemed to be in possession on the basis that that person has the prima facie right to possession. If possession of land is to be attributed to someone other than the paper owner, the claimant must be shown to have both factual possession and the requisite intention to possess [5] . That requirement for both a physical element and a mental element before possession can be shown, which is an incident of the common law, also has its analogy with, and probable origin in, Roman jurisprudence [6] . The possession must be open, not secret, it must be peaceful, not by force and it must be adverse, not by consent of the true owner or the paper owner [7] .
There is no evidence that, following the completion of the purchase of the Property, there was any communication between Jeanette and Lucille as to the use and occupation of the Property, the payment of outgoings in respect of the Property or the disposition of surplus income from the letting of the Property. Importantly, there is no evidence that the arrangements for letting the Property described above were put in place without the consent or knowledge of Lucille. There is no evidence from which to conclude that Lucille was unaware of the arrangements put in place for the letting of the Property and that she did not give her consent to those arrangements. Indeed, there is no reason why Jeanette and Lucille would not have reached an understanding that Jeanette would attend to the management of the Property and would receive the net income from the Property without Lucille abandoning her right of survivorship under the joint tenancy.
Although Jeanette may have contributed the whole, or substantially the whole, of the purchase price for the Property, albeit by means of borrowings from her bank, there was no suggestion that there was a resulting trust in favour of Jeanette. The presumption of a resulting trust may well have been rebutted by a presumption of advancement by Jeanette to Lucille. However that may be, no contention of resulting trust has been advanced.
Nevertheless, the fact that Jeanette contributed to the purchase price may give rise to an inference that Lucille was prepared to consent to Jeanette receiving the benefits arising from ownership of the Property during her lifetime. To do so is not in any way inconsistent with an intention to retain an interest in the Property as joint tenant, including the right of survivorship. There was no evidence that Jeanette intended to exercise rights in relation to the Property as though she were the only person entitled to possession.
Apart from absence of evidence of the necessary intent on the part of Jeanette, it is also by no means clear that Jeanette physically possessed the Property for the whole of the period in question. For example, there is no evidence about occupation of the Property from November 1980 to January 1981, from October 1985 to January or June 1986 or from December 1990 to February 1991 and from August 1994 onwards. There is no evidence about any financial or other dealings between Jeanette and Lucille from the time of completion of the purchase until July 1993, when the Deed of Partition was entered into.
As a legal joint owner of the Property, Lucille was jointly liable for the payment of rates as well as being entitled to a share in rents. The inference can be drawn that rent received from tenants of the Property was applied in the payment of outgoings including rates and insurance. As I have said, many cheques for the payment of rent received from Mr Curry were never presented for payment by Jeanette.
I am not persuaded that it is more likely than not that, to the extent that Jeanette was in occupation of the Property through tenants, that occupation was without Lucille's consent. It follows that I am not persuaded that Lucille's interest as joint tenant was extinguished by the operation of the Limitation Act.

The Disputed Documents

Amongst Jeannette's papers located by Jack were two thermal paper documents bearing the date 25 February 1999, being the Property Relinquishment Document and another document dealing with a motor vehicle (together the Disputed Documents). The present condition of the Disputed Documents makes them virtually indecipherable, since they have deteriorated substantially over the years. Forensic examination of the Disputed Documents has resulted in somewhat unsatisfactory opinion evidence, some of which is not disputed, as to their original contents, although the authors of the opinions were not called to give evidence.
There is an issue between Jack and Mr Templeton as to the circumstances in which the Disputed Documents came into Jeanette's possession or custody. There is also a dispute as to whether the evidence in relation to the Disputed Documents is sufficient to support a finding that they were signed by Lucille. Jack contends that an inference should be drawn that the documents were signed by Lucille and that Lucille sent them to Jeanette by facsimile communication or some other means. Mr Templeton, on the other hand, disputes that any such inference should be drawn. There is also a significant question at to the legal effect of the Disputed Documents, assuming that they were signed by Lucille and provided by her to Jeannette.

Provenance of the Disputed Documents

By the Property Relinquishment Document, Lucille purported to "relinquish all claims over the property owned jointly by my mother Mrs Janette Walsh and myself … Lucille Mary Marshall referring to […] Logan St Tenterfield NSW property". As will appear below, the street number specified was not the correct street number of the Property. The document then stated, somewhat ungrammatically, that "the name shown on the deeds of title are under Miss Lucille Walsh and Mrs Janette I Walsh".
As Mr Templeton observes, Jack has the onus of proving the instrument that he contends has a dispositive effect in relation to Lucille's interest in the Property. That is to say, I must conclude that it is more likely than not that the Disputed Documents were signed by Lucille on or about the date that they bear, and that they were provided to Jeanette by Lucille with the intent that they have effect according to their terms, whatever that effect may be. There is no direct evidence as to the circumstances in which the Disputed Documents came into the possession of Jeanette. In that regard it may be relevant for purposes referred to below that Lucille was not asked about the documents after Jack became aware that money representing proceeds of sale of the Property had been paid into Court and prior to Lucille's death in 2012. Jack became aware of the Disputed Documents no later than June 2005, being the date of a Report provided to his solicitors by Mr J Connell of Chris Anderson & Co Pty Limited.
The Report of Chris Anderson & Co Pty Limited was provided in response to a letter dated 15 June 2005 from Lincoln Smith & Co. It appears that the Disputed Documents came into the possession or under the control of Jack when he was appointed as Jeanette's financial manager in 2003. As administrator of Jeanette's estate from July 2004, Jack was entitled to possession of the Disputed Documents.
While steps were taken, by consulting Chris Anderson & Co Pty Limited, as to the deciphering of the words of the Disputed Documents, no attempt was made to verify the signatures that appear on the Disputed Documents. No opinion evidence from qualified persons as to whether the signatures are those of Lucille was adduced on the hearing of the motions. There is evidence before me as to signatures that may well have been signatures of Lucille. Thus, Lucille purportedly signed a Deed of Mortgage in February 2005, a transfer of the Gladesville Property in 1993, a mortgage of the Gladesville Property in 1994 and a contract for sale in 2005 as well as the Deed of Petition in 1993.
The signatures on the Disputed Documents in their present condition make it very difficult to form a judgment as to whether the signatures are the same as those in the Documents just described. The enhancement of the signatures produced in the report by Mr Connell is not inconsistent with the signatures identified as those of Lucille. I have considerable difficulty, however, in being positively persuaded that the signatures on the Disputed Documents are those of Lucille.
Mr Templeton draws attention to the fact that the Disputed Documents are not addressed to Jeanette but "To whom it may concern". He suggests that that gives rise to the possibility that the instruments were created for another purpose or other purposes unconnected with any dealings between Jeanette and Lucille conceivably, for the purpose of presenting a state of affairs about Lucille's asset position to a third party. I do not consider there is any basis for concluding that, if the Disputed Documents were signed by Lucille, they were created for a purpose other than truthfully stating their intended effect.
An satisfactory aspect of the evidence concerns the precise circumstances in which the Disputed Documents were uncovered by Jack. Jack's evidence is that, after Jeanette died, he was "going through her personal papers and records" when he "came across" the Disputed Documents. He said that after discovering the Disputed Documents he gave them to his solicitor who arranged for them to be examined by Chris Anderson & Co Pty Limited. Thus, there is no evidence as to the other papers and records where the Disputed Documents were found, which may have cast some further light on the documents.
Mr Templeton also asserts that Jack led no evidence to establish that Jeanette communicated complaints about the Gladesville Property to Lucille before the date of the Disputed Documents. However, Jeanette's affidavit of 23 January 1997 records Jeanette's visit to Lucille's home in Queensland in January 1997 and the altercation concerning the Gladesville Property. I do not have any difficulty in drawing an inference that there was a confrontation between Lucille and Jeanette concerning the Gladesville Property. Whether the bad feelings that were apparently the result of Lucille's dealing with the Gladesville Property led to the creation of the Disputed Documents, assuming they were signed by Lucille and provided by Lucille to Jeanette, is a matter of pure conjecture.
Both documents contain signatures that were deciphered in 2005 as "Mrs J M Marshall". Ms Melanie Holt, a forensic document examiner, whose opinion report dated 27 November 2018 was admitted without objection, deciphered the signatures as "Mrs L M Marshall". Each of the Disputed Documents appears to have been produced in the same type and each is signed immediately below the typewritten words "Thank you" and immediately above typewritten name "Mrs L M Marshall". Each of them bears a further signature next to the word "witness". Ms Holt provided a transcription of the documents, which is set out in the Appendix to these reasons.
Each of the Disputed Documents exhibits a horizontal fold consistent with the documents being folded together and inserted in a standard size postal envelope. Jack contends that an inference should be drawn that Lucille folded them, put them in an envelope and sent them to Jeanette. Thus, he contends, an inference should be drawn that Lucille provided the Disputed Documents to Jeanette. He points to both textual and contextual factors that he contends support that inference. However, Mr Templeton points out that the Disputed Documents were in Jack's possession from 2003 onwards and there is no evidence as to how they were dealt with from that time onwards. No evidence was given by Jack as to those matters either in evidence in chief or in cross-examination. The folding was first raised in written submissions provided after the oral hearing.
Jack contends that Jeanette's belief as to Lucille's conduct in relation to the Gladesville Property was an incentive on the part of Jeanette, and possibly Lucille, to ensure clarity about the ownership of property in which they may both have had an interest. He relies on that as a basis for urging the conclusion that the Disputed Documents are likely to have been brought into existence to achieve that clarity. Thus, he says, the Disputed Documents, on their face, are designed to provide clarity about the ownership of the Property as well as the motor vehicles referred to. The existence of hostility between Jeanette and Lucille is, Jack says, a good reason for concluding that the Disputed Documents were brought into existence by Lucille and were signed by her. Thus, he contends, the text and presentation of the Disputed Documents indicates that they were prepared as a formal record of some form of separation agreement under which Lucille confirmed agreements or concessions made by her concerning ownership of the items of property to which reference is made. For example, each of the Disputed Documents follows a similar form, in that each begins with the date and is addressed "to whom it may concern". Each begins with the words "I, Mrs Lucille Mary Marshall relinquish …" and concludes with "thank you" followed by similar provisions for signature by "Mrs L M Marshall" and by a witness.
Jack contends that the formality of the language of the Disputed Documents and the precise identification of the properties being relinquished, coupled with the formality of execution before a witness, support the conclusion that the Disputed Documents were intended to prove and provide written evidence of the fact that Lucille relinquished her claims in relation to the relevant property. He says that, as between mother and daughter, the formality of expression discloses a clear intention that the Disputed Documents were intended to settle and conclude the matters to which they refer.
Jack also points to evidence consisting of a rate notice issued in respect of the Property in late January 1999. The joint names of Jeanette and Lucille were crossed out and Jeanette's name was substituted. He says that the handwriting is that of Jeanette. The rate notice was posted on 27 January 1999 and was payable no later than 1 March 1999. Jack contends that, as the rate notice most recently received prior to the date of the Disputed Documents and payable shortly thereafter, that alteration, assuming it was made by Jeanette, reflects a belief on Jeanette's part that Lucille had surrendered any interest in the Property and that Jeanette agreed with and accepted that position. Mr Templeton points to the absence of evidence as to how and when on the rate notice was altered and by whom. Jeanette paid no rates on the Property in 1999. Mr Templeton also points to the absence of evidence of communication before 25 February 1999 between Jeanette and Lucille about the Property. Accordingly, he says, the contention advanced on behalf of Jack is pure speculation. Indeed, Jeanette's failure to pay rates is inconsistent with her asserting total ownership of the Property. In the circumstances, I would give no weight to the alteration.
The fact that the Property Relinquishment Document identifies the address of the Property incorrectly, in so far as it refers to the wrong street number, is not a basis for doubting its authenticity or that it was intended to relate to the Property. Making an error with the street number would be consistent with Lucille taking no interest in the Property and having nothing to do with it after it was first acquired. It is clear enough that the intention of the author of the Property Relinquishment Document was to identify the Property as the subject of the relinquishment of claims. Thus, there is no evidence of any other property being property owned jointly by Lucille and Jeanette. The Conveyance describes Lucille and Jeanette as the transferees. Insofar as the Property Relinquishment Document referred to "the Deeds of Title" as being "under" Lucille and Jeanette, there is no evidence of any other property to which such a reference could be made. The Property located at the street number referred to in the Disputed Documents was at all material times owned by the trustees of the Wesleyan Methodist Church. Accordingly, it is clear enough that the reference to a street number was an error.
Mr Templeton also suggests that the text of the Disputed Documents is consistent with their having been prepared for a purpose other than dealings between Jeannette and Lucille. However, no hypothesis was advanced as to what such a purpose might have been. No positive contention has been advanced, for example, that they are forgeries. There is no basis for drawing any inference or any conclusion that Jeanette could have fabricated the Disputed Documents. No reason has been advanced as to why she would have any reason to do so. If she did, it is highly unlikely that she would have made an error in describing the property in question and in misspelling her own first name. It would be highly unlikely that she created the document and then made a copy on thermal paper without retaining the original document.
In the circumstances, I am persuaded that it is more likely than not that the originals of the Disputed Documents were signed by Lucille. I am also persuaded that it is more likely than not that Lucille provided to Jeanette the thermal paper copies found amongst Jeanette's papers following her death. It is therefore necessary to consider the legal consequences and effect, if any, of the Disputed Documents.

Effect of the Disputed Documents

There is also a dispute as to the legal effect of the Property Relinquishment Document, assuming it was signed by Jeanette. Jack contends that the effect of the Property Relinquishment Document was to sever the jointure in equity, such that the right of survivorship of Lucille was extinguished. Alternately, he contends, it had the effect of extinguishing Lucille's interest in the Property.
If joint tenants at law agree to terminate their joint tenancy, equity would impose a trust on them as legal owners such that their beneficial entitlement to the land thereafter will be as tenants in common. The legal joint tenants will hold as trustees for themselves as tenants in common in equal shares. In such a case, there is valuable consideration passing from each of the joint tenants in that each party agrees to relinquish the beneficial interest of a joint tenant of the common property, including the right of survivorship, in return for an undivided share as a tenant in common. Such an agreement might be express or it can be implied from a course of dealing [8] .
Significantly, the Property Relinquishment Document does not purport to constitute an agreement to sever a joint tenancy. It is quite possible that the author of the instrument did not have a conception of the nature of a joint tenancy, as distinct from a tenancy in common. The document refers to "the property owned jointly", indicating an understanding that both Lucille and Jeanette had an interest in the Property and that their interests were equivalent in the sense that they both owned it. It is not possible to find in the document an intention on the part of Lucille, assuming it bears her signature, that she was intending to change the nature of the joint ownership in the Property. The clear intention was to extinguish Lucille's interest in the Property in that she was to "relinquish all claims".
I do not consider that the Property Relinquishment Document can be construed as a mutual agreement between Lucille and Jeanette, or as evidencing such an agreement, that each was foregoing a right of survivorship in exchange for an interest in an undivided one half share as tenant in common. I do not consider that it can be construed as converting a joint tenancy into a tenancy in common either at law or in equity.
The question, therefore, is whether the document was effective to achieve the extinguishment of Lucille's interest in the Property. As at 25 February 1999, Lucille and Jeanette held the legal fee simple in the Property as joint tenants. The question is whether the Property Relinquishment Document operated to extinguish Lucille's interest as joint tenant.
Section 23B(1) of the Conveyancing Act 1919 (NSW) provides that no assurance of land shall be valid to pass an interest at law unless made by deed. Section 23C(1)(a) relevantly provides that no interest in land can be created or disposed of except by writing, signed by the person creating or conveying the same. Section 23C(1)(c) relevantly provides that a disposition of an equitable interest subsisting at the time of the disposition must be in writing signed by the person disposing of the same. Under s 7(1) of the Conveyancing Act, assurance includes a conveyance and a disposition. Disposition relevantly includes a conveyance, vesting instrument, declaration of trust, disclaimer, release and every other assurance of property by any instrument. Conveyance includes any assignment, appointment, lease, settlement or other assurance by deed of any property. There is a certain degree of circularity in those definitions. The question is whether the instrument in question was an assurance of land within the meaning of s 23B(1). In so far as the Property Relinquishment Document is said to have the effect of extinguishing Lucille's interest in the Property, it must have the effect of passing her interest to Jeanette. The effect of s 23B(1) is that, since the document is not a deed, it was invalid to pass an interest at law in the Property to Jeanette.
Putting aside the question of whether the document was liable to duty, the question is whether it constituted the creation or disposition of an interest in land or a disposition of an equitable interest. It appears to satisfy s 23C(1)(a) and s 23C(1)(c) in that it is writing signed by the person creating or conveying interest in land or the person disposing of the equitable interest, on the assumptions indicated above. Thus, the question is whether the document can be construed as having the effect that, upon its signature by Lucille, it effected a disposition of her equitable interest in the Property. That is to say, is it capable of extinguishing Lucille's equitable interest even though, by reason of s 23B of the Conveyancing Act, it does not have any effect in relation to her legal interest.
There is no direct evidence of any agreement between Jeanette and Lucille that required Lucille to "relinquish" her interest in the Property. On its face, the instrument is entirely voluntary on the part of Lucille, in that it makes no reference to any consideration that would enliven the jurisdiction of equity to enforce a promise. The instrument is not, in its terms, limited to the disposition of an equitable interest. On its face, it purports to deal with the whole of Lucille's interest in the Property.
There is no reason to conclude that the author of the Property Relinquishment Document intended to draw a distinction between legal interest and equitable interest. I do not consider that it is capable of being construed as a disposition of an equitable interest. It purports to be a disposition of the whole of Lucille's interest. Having regard to the effect of s 23B, I do not consider that it was valid to pass any interest in the Property to Lucille.

Delay

Mr Templeton contends that Mr Walsh's inaction and standing by with knowledge of relevant circumstances renders it inequitable and unreasonable that he be granted the relief claimed in his notice of motion as against Lucille's estate. Mr Templeton says that it would be inequitable and unreasonable to recognise or give effect to any claim that Jeanette's estate had an interest in the Property immediately before the sale by the Council in 2005, such that the Council held some or all of the surplus funds on trust for Jeanette's estate rather than for Lucille.
Jack 's claim based on adverse possession was advanced for the first time in 2018 and is said to arise from circumstances that occurred between 1973 and 1988. Thus, it is based on information that was available to him from the time of his appointment as administrator on 24 July 2004. The claim raises issues about which Lucille may have given evidence before her death in February 2012. For example, Lucille could have given evidence as to the arrangements between her and Jeanette in relation to the letting of the Property.
Further, Jack 's claim about the effect of the Disputed Documents depends upon events that occurred between late 1996 and February 1999. The claim raises issues about which Lucille may have similarly given evidence before her death in February 2012. That evidence may have consisted of a denial of the authenticity of the disputed documents, or may have extended to the circumstances in which the disputed documents came into the possession of Jeanette. Lucille may have been able to give evidence as to the location of the originals of the disputed documents, assuming that they are authentic.
In so far as Jack 's claim depends upon severance of the joint tenancy in equity, leaving Jeanette and Lucille as tenants in common in equal shares, the same observations can be made. That is to say, Lucille would have been able to give evidence about any common intention, as between herself and Jeanette, that the joint tenancy be severed in equity.
The Supreme Court Rules provided that the Council was required to notify Jack, Lucille and Mr Vicary, being the persons named in Mr Chawner's affidavit as having a possible interest in the Property. It is clear enough that Jack was aware of the payment into Court in 2005.
In 1988, Jack visited the Tenterfield Property and subsequently told Jeanette that it was not economical to spend money in fixing it up. During the weeks before Jeanette's death, Jack was appointed as her financial manager on 7 April 2003, after which he became aware that the rates for the Property were well overdue. He became aware that Lucille's name appeared on the rate notice and requested the Council to send all future rate notices to his address in Kempsey. Jack took no steps to cause Jeanette to pay the overdue rates in his capacity as her financial manager.
Jack said in his affidavit of 22 August 2018 that, when Jeanette died in April 2003, he was aware that there could conceivably be a dispute with Lucille about the Property. On 24 September 2003, he commenced proceedings against Lucille claiming a declaration that the joint tenancy in respect of the Property had been severed and a declaration that, as a consequence, he was entitled to be registered as the owner of the Property in his capacity as administrator of the estate of Jeanette, to the exclusion of Lucille. Those proceedings were discontinued in 2004 because, at that stage, Jack did not have standing to bring them, not having been appointed as Jeanette's administrator.
Following Jack 's appointment as administrator on 24 July 2004, he took no step to pay the amount of overdue rates in respect of the Property. However, on 8 December 2004, he lodged a caveat in his capacity as administrator of Jeanette's estate, claiming a stake or interest as owner of a half share in the fee simple of the Property.
On 7 January 2005, notice of the proposed sale under s 713 of the Local Government Act was published. That notice identified Lucille and Jack as the owners or persons having an interest in the Property.
On 16 June 2008, Lincoln Smith & Co wrote to Peter Prior & Co and to Mr Parmaxidis, saying that they were writing to them on the basis that they had formerly assisted or acted for Lucille. The letters stated that they had been instructed by Jack to apply to the Court for an order that the money in Court be paid to Jeanette's estate and asked where Lucille might be contacted. Peter Prior & Co replied on 17 June 2008, saying that they no longer acted for Lucille and would not accept service of any document on her behalf. As previously mentioned, [9] there was no response from Mr Parmaxidis.
Lincoln Smith & Co received a letter dated 7 July 2008 from Daniels Lawyers saying that they were acting on behalf of Lucille. The letter said that any application to the Court would be opposed and suggested an informal conference to attempt to resolve the issues existing between the parties. Lincoln Smith & Co responded on 14 August 2008, saying: "… a number of issues... remain outstanding between the Estate and your client involving the following: 1. The moneys paid into Court following upon the sale by the local Council of a property at Tenterfield of which [Lucille] and [Jeannette] were, at one time, joint tenants but in respect of which [Jack] alleges that such tenancy was severed prior to the death of [Jeannette]. 2. A substantial amount of money claimed by the Estate from your client in proceedings which were commenced against her in the Supreme Court of Queensland but in respect of which she never entered any defence. 3. The writer is prepared to meet with you at an informal conference to discuss these matters and to explore the possibilities of resolving them provided you first confirm to us in writing that you have instructions from her to accept service of any process on her behalf. The reason for that requirement is simply based upon past experience in which your client has had solicitors acting for her for short periods only and has then withdrawn her instructions or changed solicitors on very short notice. It would not be our client's intention to personally attend the first conference but he would be prepared to attend any subsequent conferences if we are of the view that there is a likelihood that these issues could be resolved."
The defence of laches will be available in equity where a claimant having knowledge of an alleged wrong is guilty of delay that causes unconscionable prejudice to the claimant's opponent. The question is whether, in all the circumstances, it would be practically unjust to give a remedy. That is to say, the opponent must show both delay and detriment caused by the delay. Where the defence is made out, the claimant's claim for equitable relief will be dismissed. Ultimately, the question is whether, in all the circumstances, the claimant has impliedly, in equity, released the opponent from the claim or has so acted as to make it unfair that the claim should succeed. The degree of knowledge, the nature of the transaction and the extent of the prejudice to the opponent caused by the delay must be evaluated in determining whether the defence of laches has been made out [10] .
The onus of proof is on the person who raises the defence, namely, Mr Templeton in the present proceedings. It is not sufficient for Mr Templeton to allege that, if Jack had acted sooner, Lucille may have been able to provide evidence that countered that given by Jack, such as, for example, the collection and application of rent between 1973 and 1994. Where the question of the loss of evidence as to such matters is suppositional, it does not necessarily constitute a matter that can be said to amount to prejudice that might defeat a claimant [11] .
Jack points to the absence of evidence from Mr Templeton as to the steps, if any, that he took to establish whether or not the alleged prejudice in fact occurred. For example, no attempt has been made to produce Lucille's banking records to demonstrate the absence of any receipt by her. There is no evidence of file notes or records from Lucille's lawyers concerning instructions received from her.
On 8 December 2004, Jack lodged a caveat in respect of the Property claiming in interest as tenant-in-common arising from severance of the joint tenancy. On 26 May 2005, Penhall & Co, acting for Lucille, wrote to Jack's solicitors disputing his claim to an interest in the Property. [12] The solicitors responded on 27 May 2005 enclosing a copy of the affidavit made by Jeanette on 23 January 1997 in relation to her complaints about the dealings with the Gladesville Property. [13] By 20 June 2005, Lucille and Jack had agreed that Jack would withdraw his caveat in order to permit the completion of the sale of the Property by the Council and that neither Lucille nor Jack would seek payment of the surplus from the Council without prior agreement and direction or an order of the Court. [14]
On 24 October 2007, Jack's solicitors instructed an investigator to attempt to locate Lucille. On 16 June 2008, Jack's solicitors wrote to the solicitors who had previously been acting for Lucille notifying them of Jack's intention to seek payment of the monies in Court and inquiring if either of the solicitors knew of Lucille's whereabouts so that she could be notified of the application. One solicitor, Peter Prior & Co, replied on 17 June 2008 saying that he no longer acted for Lucille and did not know her current address. The other solicitor, Mr Parmaxidis, did not reply. [15]
In July 2008, Jack's solicitors received a letter from Daniels Lawyers saying that they were acting for Lucille and had been instructed to oppose any application for the monies held in Court being paid out to Jeanette's estate. They suggested an informal conference to attempt to resolve the issues between Lucille and Jeanette's estate. [16]
On 14 August 2008, Jack's solicitors wrote to Daniels Lawyers, referring to the two issues that were still outstanding between Lucille and Jeanette's estate, being the money in Court and the estate's claim in relation to the Gladesville Property. They said that he would attend an informal conference subject to confirmation that Daniels Lawyers had instructions from Lucille to accept service of any process on her behalf. Nothing further was heard after the letter of 14 August 2008. [17]
Mr Templeton has not adduced evidence as to any inquiries that have been made as to the instructions given by Lucille to Daniels Lawyers for the purpose of the letter of 14 August 2008. There is no evidence of inquiries made about the instructions given by Lucille concerning the Property and the Gladesville Property. Jack asserts that, for years, Lucille avoided participation in legal proceedings or otherwise engaging with Jack's claims to resolve the issues in question.
Jack contends that the only relevant period of delay for the purposes of the application of the defence of laches is the period from August 2008 until 2 February 2012, when Lucille died. He points out that it was always open to Lucille to commence proceedings during her lifetime for an order that the monies in Court be paid out, thereby bringing to a head the question of ownership of the Property. No explanation has been proffered for Lucille's failure to seek an order of the Court prior to her death or the failure by Mr Templeton, as the administrator of her estate, prior to the filing of his notice of motion. Mr Templeton is in no better position than Lucille as a consequence of her own failure to bring any claim over a lengthy period.
Mr Templeton points out that, in the Equity Proceedings, Jack claimed that Lucille did not have any interest in the Property. He subsequently discontinued those proceedings. Mr Templeton asserts that, thereafter, Jack acted in a manner consistent with his conceding that Lucille owned half of the Property. Thus, the caveat that he lodged on 8 December 2004 referred to severance of the joint tenancy in February 1999, from which time Jeanette and Lucille held the Property as tenants-in-common. In the letter of 27 May 2005, Lincoln Smith & Co said that Jack maintained his position in relation to "the severance of the joint tenancy". The letter of 14 August 2008 also refers to the severance of the joint tenancy prior to Jeanette's death.
Mr Templeton asserts that Jack has delayed since 19 March 2004, when the Equity Proceedings were discontinued, with knowledge of his entitlement as Administrator of Jeanette's estate, or at least with sufficient knowledge to obtain advice about those rights and seeking equitable relief against the interests of Lucille's estate, in circumstances where it is appropriate to treat his conscience as being affected by the course of conduct briefly outlined above. Mr Templeton asserts that Jack 's inaction and standing by with that knowledge makes it inequitable and unreasonable to recognise or give effect to any claim that Jeanette's estate had an equitable interest in the Property, notwithstanding the qualified folio issued to Lucille on 30 November 2004.
Mr Templeton asserts that in his capacity as Administrator of Lucille's estate, he has been prejudiced by the loss of the then only surviving witness as to the dealings between Jeanette and Lucille in 1999. Lucille could have given evidence in response to the assertions made by Jack concerning the creation of the Property Relinquishment Document.
Mr Templeton points to the absence of any evidence that Jack or his solicitors provided the Property Relinquishment Document to Lucille or her solicitors. The closest that Jack came to such evidence is the assertion that an affidavit was served setting out the evidence on which he intended to rely. Specifically, Jack does not assert that the affidavit referred to the Property Relinquishment Document. Perhaps more significantly, Jack's solicitor gave no evidence on that question.
In an affidavit of 30 January 2019, Mr Wayne Annis-Brown of Lincoln Smith & Co, said that in the course of the Equity Proceedings, he had a number of discussions either with Mr Prior or another solicitor in Mr Prior's office in which two issues were raised and foreshadowed. He said that one of the issues was the provenance of the Property Relinquishment Document that Jack sought to rely on and in support of his contention that Lucille had relinquished her interest in the Property. Mr Annis-Brown said that those issues "were always 'live' issues in the proceedings". That suggests that solicitors acting for Lucille in 2004 had some awareness of the existence of the Property Relinquishment Document.
The question presently before the Court is whether Lucille, Jeanette or Mr Vicary had an interest in the Property at the time of sale by the Council and, if so, the nature of that interest. Jack is not seeking equitable relief. In all the circumstances, if Jack were otherwise able to establish a claim to the monies in Court, I do not consider that there are good reasons for denying that claim on the ground of his inaction, assuming the doctrine of laches can be invoked in the present circumstances.

Conclusion

Both Jack and Mr Templeton invited the Court to consider their respective claims in the absence of Mr Vicary. While steps had been taken to locate Mr Vicary, they had not been successful. I therefore embarked on a hearing of the dispute as between Jack and Mr Templeton. Both closed their respective cases and I reserved, pending clarification of Mr Vicary's position. I indicated to the parties that I would not proceed to dispose of the matter until I was satisfied that Mr Vicary had been properly joined to each of the motions.
After doing so, Mr Vicary's affidavit of 6 June 2019 was filed. That part of the affidavit that dealt with his awareness of the proceedings and his stance in relation to the dispute were read without objection. However, the affidavit of 6 June 2019 also contains evidence from Mr Vicary as to his relationship with Lucille, his discussions with Lucille concerning the Property and his relationship with Jeanette. Jack objected to that part of the affidavit. That part of the affidavit was not pressed.
It follows from the conclusions set out above that Jack's claim to the funds in Court must fail and that Mr Templeton's claim must succeed. Accordingly, Jack's Notice of Motion filed on 18 September 2017 should be dismissed. On Mr Templeton's Notice of Motion of 31 January 2018, an order should be made under s 98 of the Trustee Act that the monies in Court be paid out to him in his capacity as Administrator of Lucille's estate.
In his Motion filed 31 January 2018, Mr Templeton also seeks an order that the costs of that motion be costs in the administration of Lucille's estate. [18] The order was not opposed by Jack in his written response to Mr Templeton's Points of Claim. [19] As the beneficiaries of Lucille's estate are not presently before me, I do not propose to make such an order. However, I propose to reserve for further submissions the question of whether the costs of the motions should be paid out of the fund in Court.

Appendix Transcription of content of facsimiles dated 25/02/99 Document 1: 25/02/99 To Whom it May concern I Mrs Lucille Mary Marshall relinquish all claims over one Toyota Seca model R.V registration number 884 DQQ I hand over the keys and responsibility to my Mother Mrs J Walsh address 114 Wisermans Ferry Rd Maroota South NSW The payments of this vechile (sic) still remain my responsibility. Furthermore the registration needs to stay under Statewide Recovery United because of the payments on this vechile (sic) Thank you [signature] Mrs L M Marshall Witness [signature] Document 2: 25/02/99 To Whom It May concern I Mrs Lucille Mary Marshall relinquish all claims over the property owned jointly by my mother Mrs Janette Walsh and myself Lucille Mary Marshall referring to 137 Logan St Tenterfield NSW property The name shown on the deeds of title are under Miss Lucille Walsh and Mrs Janette I Walsh. Thank you [signature] Mrs L M Marshall Witness [signature]

Endnotes

Exercising the power of sale in s 713 of the Local Government Act 1993 (NSW).
See Trustee Act 1925 (NSW) s 95; SCR Part 70 Division 4 (now repealed).
Part 70 was later repealed by the Supreme Court Rules (Amendment No 413) 2008, Sch 1[1].
See, for example, Digest of Justinian, in Corpus Juris Civilis (Theodor Mommsen & Paul Krueger eds., 1880-95) (Digest) 8.5.10.pr, Digest 43.17.1.pr and Justinian's Institutes (Paul Krueger ed., Peter Birks & Grant McLeod trans., 1987) (Institutes) 4.15.4.
See JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 at [36] cited in Bonifacio v NSW Trustee and Guardian [2015] NSWSC 124 at [50].
See Digest 41.2.3.1 and Pollock & Wright, Possession in the Common Law, page 20; JA Pye (Oxford) Ltd v Graham at [51]; and Weber v Ankin [2008] NSWSC 106 at [103].
See Mulcahy v Curramore Pty Ltd [1974] 2 NSWLR 464 at 475.
See Corin v Patton (1990) 169 CLR 540 at 574.
See paragraph [32].
See Crawley v Short (2009) 262 ALR 654; at [163] - [165], [175] and [180].
See Orr v Ford (1989) 167 CLR 316 at [24].
See paragraphs [18]-[19].
See paragraphs [20]-[21].
See paragraph [22].
See paragraphs [32], [92].
See paragraph [93].
See paragraph [93].
Mr Templeton's Notice of Motion filed 31 January 2019; Mr Templeton's Points of Claim dated 13 November 2018 at [5].
Jack's Response to Mr Templeton's Points of Claim, dated 17 December 2018. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 July 2019

See Trustee Act 1925(NSW)s 95

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Judgment (15 paragraphs)

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Cited By (1)