Booth v Booth [1935] HCA 15

Booth v Booth [1935] HCA 15 - HCA 1935 case summary — Zoe

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Apprat from the Central Court of the Territory of New Guinea. 4. ©. oF A. Charles Booth, of Wau, New Guinea, miner, brought an action Nae in the Central Court of the Territory of New Guinea, against his Boor wife, Doris Regina Booth, in which he claimed (1) that he was el beneficially entitled to (a) a dredging or sluicing lease, known =~ as " Cliffside," in the Morobe district, registered in the name of the defendant, all the improvements thereon, and the mining business carried on in connection with it, together with all the machinery, plant and tools used and employed in the business ; (b) the dredging or sluicing lease known as " Clifftop," in the same district, registered in the name of the defendant, and that the transfer of the lease, dated 13th January 1932, from one Ruth Evelyn Mateer to the defendant was void and of no effect ; and (2) the sum of £3,000 which he alleged belonged to him and was wrong- fully retained by the defendant. In her defence the defendant claimed that she was the beneficial as well as the legal owner of the two leases, and that all that the plaintiff had done in respect of those properties was done by him as her agent. The plaintiff demurred to this defence on the ground that by reason of the principles and rules of common law and equity in force in the Territory of New Guinea, pursuant to sec. 16 of the Laws Repeal and Adopting Ordinance 1921-1933 (N.G.), he was the owner of the properties ; that all his wife's property became his by the jus mariti. Chief Judge Wanliss overruled the demurrer. The action subsequently came on for hearing before the Chief Judge. The defendant alleged that the sum of £3,000 claimed by the plaintiff was portion of the proceeds of gold won from the "Cliffside "? lease and was her property. The following statement of facts is substantially as appears in the judgment of the Chief Judge : - About 22nd March 1924 the plaintiff and the defendant left Rabaul for Salamaua with the intention of going to the Morobe goldfields. They had practically no capital. The plaintiff had an account with Burns, Philp & Co. Ltd. at Rabaul. That company in effect acted as plaintiff's bankers and into his account with them was, amongst other moneys, paid his war pension and also that of his wife, the defendant. Before

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leaving Rabaul the company supplied him on ec! of stores and mining material for his use on the fields and were apparently prepared to give on credit further supplies if necessary. On arriving about the end of May at Salamaua, at that time an uninhabited landing place, their stores were put ashore and for some weeks they remained there, living in a hut or under a tent fly. This delay was caused by the necessity of obtaining native carriers to transport their stores inland to the neighbourhood of what is known as the Wau, which was to be their destination. Both husband and wife took part in this and eventually, about the end of June, a sufficient number was obtained to enable them to start on their rough and difficult journey. A day or two after the start most of the carriers deserted, leaving them with about six, a number quite insufficient for the carriage of the stores. It was then decided that the plaintiff with four of the natives should push on to the goldfields, leaving his wife and two boys, to follow as best they could with the stores. As she had to obtain carriers from the native population adjacent to the road, this was a matter of great difficulty and the journey took some five weeks, weeks of hardship and not unattended by danger. After joining her husband they made a camp on the Bulolo and carried on mining operations. Each of them had a miner's right, but the defendant's share in the work was simply that of helping her husband so far as she was able. Of mining she had no experience. This continued until Christmas, the results of their efforts being about fruitless. On Christmas Day one of the older and more experienced and successful miners in the neighbour- hood, named Park, gathered practically the whole of the small mining community to his camp for a Christmas dinner and amongst them were the plaintiff and the defendant. In the course of conversation it transpired that the defendant was the holder of a miner's right. Park was desirous of going to Rabaul and offered the defendant £5 a week if she would look after his lease in his absence. After discussing the matter with her husband the defendant agreed to do so. At this time the plaintiff and defendant were living and working at the Namie Creek, further up the Bulolo than the mouth of the Koranga Creek, where Park's camp was; his (Park's) lease extended for some distance down the Bulolo from his camp. A day or two

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Plaintiff broke up his camp on the Namie and on Park's advice went about three miles down the Bulolo from Park's camp prospecting until he came to a small creek which he named Regina Creek, Regina being the defendant's Christian name, and there found good prospects, and on or about 31st December 1924 pegged out a lease extending from a gorge in the river up to the lower end of Park's lease. The ground was pegged by him in the name of the defendant. The ground pegged out had previously been applied for as a lease by one Darling, who however had not complied with the legal requirements. Plaintiff informed his wife of what he had done and she applied for a dredging or sluicing lease of the ground pegged out in her name by her husband, at the same time applying for the forfeiture of Darling's land to the Warden at Morobe together with a withdrawal form on the savings bank at Morobe for the necessary fees and rent which together came to nearly £50. This amount - £50 - had been advanced to her by Park. The plaintiff swore that, although it was pegged by him in his wife's name and although she applied for it in her own name and paid all the preliminary fees and rent required to be paid on applica- tion, she did all this as his agent and on the distinct understanding that the lease was his property and that she held it for him. The defendant, on the other hand, swears that at this Christmas time in 1924 at Park's camp, Park told the plaintiff that he would tell him of good ground for a lease if he, the plaintiff, would peg it out for her, that he would advance the necessary money for fees &c. out of her wages, that he did tell the plaintiff where to go down the Bulolo past the bottom of his, Park's, lease and that the ground had been applied for by one Darling, who had not done anything with it, but that it would be necessary to have that application forfeited. Admittedly Park did advise the plaintiff where to go; in fact the top boundary of Cliffside adjoins the bottom boundary of Kaindi 4, which is the name of Park's lease. Admittedly it was pegged and applied for in the defendant's name. Admittedly she applied for and obtained the forfeiture of Darling's lease. Admittedly the necessary fees and rent were paid by the defendant out of money advanced by Park to her. The name given by the plaintiff to the lease was Cliffside, the name of the defendant's house in Brisbane,

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there for use both there and at the Edie, the labour for the Edie was supplied from there and the boys were sent down there from Edie for medical treatment and to recuperate. All gold won by the plaintiff at the Edie was sent to Cliffside and it, together with the gold produced at Cliffside, was sent down by the plaintiff, or in his absence, the defendant, at first to Burns, Philp & Co. Ltd.. who credited it, together with the Cliffside gold, to the plaintiff's account with them, and, on the other hand, all stores for both places ordered from Burns, Philp & Co. at Rabaul were sent up and debited to the same account. In July 1926 the plaintiff opened an account with the Bank of New South Wales at Rabaul. After that the gold went down to that bank and was credited to plaintiff's account. Throughout 1926 the plaintiff, except when on recruiting expeditions, was at Edie Creek making very large profits. He paid frequent short visits to Cliffside and undoubtedly kept his eye on affairs there. Towards the end of 1926 the defendant informed him that a company

the Morobe Guinea Gold N.L. - had approached her for the sale of Cliffside to them, and asked what he thought about it. His reply was that if he thought the terms satisfactory "' we should sell." After some months of negotiation between the company on one side and the defendant on the other an agreement was arrived at and executed by the company and the defendant by which for the sum of £5,000 the company was to have the option of purchasing Cliffside, with certain stores and labour, for a large sum in cash and shares. This agreement bears date 28th April 1927. It is probable from the evidence that it was executed by one Miller, a director of the company, on behalf of the company, on that date, and by the defendant on the following day. Whether executed by both parties on the same day or by one on the 28th and the other on the 29th is of no importance except for the fact that the plaintiff and defendant gave conflicting accounts of what took place and each impugned the veracity of the other, as indeed they did with great consistency throughout the case. Whichever version may be correct, it is common ground that on her executing the deed the defendant was given a crossed cheque of the company on the Bank of New South Wales in her favour for the sum of £5,000. The defendant paid the amount into her

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send down money."" The defendant denies that she sent any radio. Tn effect it does not matter much which version is true. From the fact that the plaintiff sent the money down immediately on his arrival it is probable that he had arranged to do so before leaving Brisbane. Again, even crediting her with the worst intentions, it is hardly likely that the defendant would have made use of such a subterfuge to obtain the money, if she knew that the business had not been and would not be completed. What did happen was that the business was not completed because Brain's employer would not release him from his contract with it and Brain's and the plaintiff's projected arrangement lapsed. The defendant, however, had the £3,000 in her possession and without consulting her husband or obtaining his consent or approval spent £500 of it, placed £1,500 on fixed deposit in her own name and bought £1,000 worth of Common- wealth bonds. This was in October 1927. The plaintiff's account of what subsequently happened in connection with the business is incredible. He says that he knew nothing about it until he next saw his wife at Salamaua or the fields, that he then said to her: '* What happened to that aeroplane business?", that she said that the Qantas board of directors would not sell the 'planes if it would cause them to lose Brain's services, that he said: '* What have you done with the money ?"', that she replied that she had spent £500, had put £1,500 on fixed deposit and had bought £1,000 worth of Common- wealth bonds. He said: 'In whose name?" She said: '* My own." He said : " You are pretty rough aren't you?" She said: " Don't be silly, what is mine is yours." He concluded the narrative by saying that he did not bother any further about it then. In fact the defendant was not at Salamaua or the fields before February 1929, well over a year after she received the money. In fact too. he did see her in Australia about February 1928, some four months after he sent her the money. [If there is any truth in any part of his account, she must have told him then. It is, however. incredible that he sent down £3,000 to his wife because she radioed that the business was completed and got no acknowledgment of its receipt, got no word as to what arrangements were made or being made to start the service that he was so keen about, that he was left in

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Sec. 16 of the Laws Repeal and Adopting Ordinance, as originally framed and as now framed, should be similarly construed. Under the common law in force on 19th May 1921 the respondent was and is in the position of a feme sole. In the circumstances of this case the explanation of every action is that the parties were husband and wife living together in amity. The facts show that Cliffside was not an advancement made by the appellant to the respondent. The acts of the parties do not establish a trust. The property was her separate property. The position is that whilst the parties were living together in amity as husband and wife, the respondent allowed the appellant to receive proceeds from that property, which proceeds became his except in certain specific circumstances (In re Young; Young v. Young (3); Halsbury's Laws of England, \st ed., vol. 16, p. 397). As to Clifftop, there is not any evidence that the donor of the power of attorney agreed that the property was taken up and held in trust for the appellant or for anybody. There was not a partnership between the appellant and the respondent relating either to Cliffside or to Clifitop. The evidence relating to those properties does not disclose any of the usual and essential indicia of partnership (Badeley v. Consolidated Bank Ltd. (4); Peacock v. Peacock (5) ). The Cliffside and Clifitop properties are the respond- ent's separate estate in equity because by clear acts the appellant has manifested an intention that they should be her separate estate (Slanning v. Style (6); Mews v. Mews (7); Ex parte Whitehead; In re Whitehead (8) ), even if the Married Women's Property Act does not apply to New Guinea. As regards the item of £3,000, the evidence shows that the appellant acquiesced in the position for six years ; during four of those years the parties lived together in amity. This item, held by the respondent without any demur from the appellant, was a rebuttal as to certain of the respondent's moneys received or held by, or under the control of, the appellant.

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the consideration of most weight in deciding the question whether - they, or, at any rate Booth, did not intend that his wife should take the beneficial ownership. Chief Judge Wanliss has reviewed at - length the greater part of the material events which befell them, and it is unnecessary to recount those facts. It is sufficient to state shortly what are the chief additional matters relied upon by the appellant in support of his contentions. All the expenses of operating claims standing in the name of either of them was borne by accounts in Booth's name. In dealing with the gold produced from Cliffside and that produced from other claims taken up in Booth's name no discrimination was practised. Until the middle of 1926, current accounts were opened by the parties in a bank at Rabaul: all the gold was consigned to the commercial house which provided the stores and other supplies. When the bank accounts had been opened, most of the gold was despatched through the bank on Booth's account, but two parcels, each worth something over £600, were - sent through the bank on his wife's account, and these parcels came, not from Cliffside, but from the claim taken up in Booth's name. - When, in April 1927, a deposit of £5,000 was paid by the proposing purchasers of Cliffside, a deposit ultimately forfeited, the amount was divided between Booth and his wife. The transaction was carried out in her name and the cheque for the deposit was paid into her bank account, but she gave him a cheque for £2,500 and invested the remaining £2,500 on fixed deposit in her own name. According to his evidence, which on this point was accepted, he proposed the division and she at once assented. The assets, in respect of which the deposit was paid, consisted of the lease of Cliffside, which was in Mrs. Booth's name, the plant and stores which had been acquired by him in his own name and the benefit of the native labour which had been recruited by him. They were all included in an agreement in which she was the vendor and he was not a party. In relation to native labour on Cliffside, it seems almost to be an accident whether official returns were made in his name or hers. Then in their financial relations before the break between them, no effort was made to distinguish funds either in reference to their source or in their application.

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But the true explanation of all the conduct upon which the appellant relies appears to be that the parties placed complete confidence in one another and each desired no better title to the enjoyment of the benefits arising from property vested in the other than the matrimonial relationship gave. When Mrs. Booth applied in her own name for the lease of Cliffside, all the probabilities are that her husband had no thought of her occupying the position of trustee, still less of nominee. Although he did the work of prospect- ing and of pegging out the claim, it is not a case of a husband acquiring property in his wife's name. The property, the lease of Cliffside, 'was acquired by an application made by Mrs. Booth herself and by a payment which she made out of money lent to her. Booth's motives for encouraging this course cannot, perhaps, be determined with certainty upon the conflicting testimony which the parties gave. But, with the absolute confidence in her which he then apparently possessed, he probably disregarded the possibility of any question of property arising between them and thought that she ought, as against the outside world, to be established as owner of one of the claims taken up. She had not the least objection to an affectionate husband's management of the claim and to his assumption of control over the revenue produced. But all this affords no ground for the inference that she intended to constitute herself a trustee or that he considered himself the beneficial owner. Partnership is a relation springing from agreement express or implied. There is no ground for imputing to the parties any tacit agreement to operate the claims or any of them as partners. Some expressions in the book she published were relied upon, but, whether she used them herself, or they were the product of the mind whose aid in literary composition she acknowledges, the allusions they contain to the firm of Booth & Booth are but figurative. There is no trace in the evidence of any intention to share in any fixed proportion either profits or capital. All that they did is distinctly referable to

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the relationship of husband and wife. The beneficial ownership of the lease of Cliffside rested where the legal ownership was placed. The lease of Clifitop presents, perhaps, another question, because the nominee who gave the power of attorney, although the repository of the legal title, clearly meant to assert no claim to the beneficial ownership and probably gave little or no thought at the time she gave the power to the question whether the beneficial ownership was: to be in Mrs. Booth or her husband. But she was Mrs. Booth's friend and lent her name at her request. The purpose of taking up the Clifftop lease was to extend the boundaries within which the working of Cliffside was confined, and the application acknowledges that it was ancillary to Cliffside, which, as Booth knew, belonged to his wife. It is incumbent on the plaintiff to establish affirmatively that a trust in his favour existed, and, in face of these considerations, it is necessarily very difficult for him to do so. In other circum- stances, the fact that it was he who pegged out the lease and framed the application and paid the fees might be enough. But the fees came out of funds which included money arising from Cliffside, and the statement in the application itself suggests that he regarded the properties as a unit. The circumstances are at least consistent with, if they do not establish, the inference that he meant his wife to enlarge her property in Cliffside by the acquisition of Clifftop. Booth's claim to the £3,000 transmitted to his wife fails for other reasons. All but £500 was invested in a form which for some time preserved its identity. If he had chosen to assert a claim to these investments at the time, he might have established a beneficial or equitable title to them. But he clearly acquiesced in his wife's assumption of control over the fund and indicated, with as much certainty as if he had made a formal gift to her, that he was content that she should retain it as her own. It would not be strange for a husband to take such a course in ordinary circumstances, but when to the relationship of husband and wife is added the fact that the money was gained from a venture in which she took so active a part and from mining claims of which an important one was taken up in her name, it appears most natural for him to acquiesce in her retention of the money. The £500 had been spent in travelling expenses and the like, the money for which, otherwise, he would

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For these reasons, assuming that Mrs. Booth has a legal capacity independent of her husband such as arises from the Married Women's Property Act, she is entitled to retain the property which Booth claims in this appeal. But he contends that under the law of New Guinea she has not such a capacity. This contention depends upon the manner in which English law has been introduced into the Mandated Territory. The Laws Repeal and Adopting Ordinance 1921-1933, made under the New Guinea Act 1920-1932, excludes German law (sec. 4). By sec. 11 certain Commonwealth statutes are brought into operation in New Guinea. By sec. 13, it applies to the Territory certain statutes of Queensland which do not include the Married Women's Property Act. By sec. 14, the Acts, statutes and laws of England that are in force in Queensland and are applicable to New Guinea are adopted as laws of the Territory. But this section does not refer to English statutes in force in Queensland only in the sense that the Parliament of that State has enacted legislation based upon or transcribed from them. The English Married Women's Property Acts are not in force in Queensland except in that sense. Sec. 15 of the Laws Repeal and Adopting Ordinance applies to New Guinea certain Papuan ordinances, but none of these affects the matter, Sec. 16 then provides that the principles and rules of common law and equity that were in force in England on 9th May 1921 shall be in force in the Territory so far as applicable and so far as not repugnant to the provisions of any Act, ordinance, or the like having the force of law there. It may, of course, be said that the English Married Women's Property Act forms no part of the principles and rules of common law and equity. On the other hand, it displaced principles and rules of common law which, accordingly, were not "in force " in England in May 1921. But, except for local ordinances, the whole of the law of New Guinea appears to be 'derived from or through the provisions quoted from the Laws Repeal and Adopting Ordinance. Accordingly, if the suggested interpretations were placed upon that ordinance, there would, on

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Judgment (120 paragraphs)