Chapman v Chapman

Introduction 1The plaintiff, Mackton Chapman, is the father of the defendant, Debra Ann-Marie Chapman. He claims possession of a property in Gardner Street, Dudley (the property) of which he is the sole registered proprietor.

Facts 2The plaintiff was born in 1935 and is now aged 79. He and Betty Harcus married on 24 November 1956. When they married they purchased the property and were registered as joint tenants. They had four children: Michael, Stephen, Darren and the defendant, the youngest, who was born in 1965. On 26 November 1971 Betty made a will in which she left the whole of her estate to the plaintiff if he survived her for thirty days, but otherwise to her trustee on trust for her four surviving children equally (the 1971 will). 3The plaintiff and Betty separated in 1982. According to the plaintiff, at the time of the separation he told Betty that she could live on the property for as long as she wanted but that they should always keep the property. Betty confirmed that the property would remain in both their names. The plaintiff offered to continue to help to pay the bills. His evidence was that he did not take his name off the bills for the property and visited the property to collect the bills for rates, water, electricity etc for payment. The plaintiff left some of his belongings in the house and the shed on the property. 4The plaintiff went to live at the Gaytime Caravan Park in Belmont and Betty remained living in the property for the rest of her life. 5The defendant's evidence, which is denied by the plaintiff, was that, at Christmas time in 1982, the plaintiff said to Betty: "Right Betty, you can have the house, the car and the caravan." 6The plaintiff and Betty divorced in 1984. The decree nisi of dissolution of marriage became absolute on 7 December 1984. No orders for settlement of the matrimonial property were made and no agreement for property settlement was formalised. 7There is some correspondence in evidence relating to the separation and divorce. The plaintiff's solicitors wrote to Betty by letter dated 9 February 1983 and sought her permission for him to remove the caravan (registered in his name) located on the property since he proposed to use it as his residence. They noted that the plaintiff had given Betty the motor vehicle and purchased another for his use. 8The defendant tendered documents said to have been written by Betty, including one dated 1983, which read in part: "Our caravan is for both our use together only and is to remain on this same property otherwise at all times until our eventual deaths. If one objects to any property/ item on our property being sold (or disposed of) at any time then it is not to be disposed of until all agree. The responsibility is to remain all four (4) children to keep our property and our property is to keep in all our following children's children continually. Renting will only be allowed each year to pay the land rates and such on this same property. No selling until after the last one is alive then can be willed to only our 6 grandchildren, blood line only." 9The defendant tendered a further document which was dated 29 June 2002, although the date was struck out, in which Betty apparently expressed an intention that the property, which she described as "our family home" not be sold. 10The defendant lived on the property for a short time after her parents' separation but left in 1985. She returned for discrete periods between 1985 and 2011 but she mostly lived away. From the time of the separation the plaintiff and the defendant were largely estranged. However, the defendant tendered some photographs that showed that she had some contact with the plaintiff over the years following separation. 11The defendant returned to live on the property in October 2011. Betty died on 12 September 2012. The defendant has not paid rent to the plaintiff for her occupation of the property. There is neither a lease nor an agreement to lease. 12Following Betty's death, the plaintiff had himself registered as the sole proprietor of the property. On 20 November 2012, the plaintiff hand-delivered a letter to the defendant at the property in which he alleged that she was a tenant at will. He gave her until Saturday 15 December 2012 to vacate the property. 13By letter dated 30 November 2012 the defendant's solicitors wrote to the plaintiff with a view to resolving the dispute between them. The letter contained the following paragraph: "We have also provided advice to Debbie [the defendant] regarding her rights under the Succession Act in relation to a potential Family Provision Claim. In the circumstances, the Court may treat some or all of the real estate as being held in trust for Betty's Estate." 14The defendant failed to comply with the notice to vacate. The defendant lodged a caveat on the property which described her interest as "equitable interest as a beneficiary". The caveat lapsed following the service of a notice dated 4 February 2013 under s 74J of the Real Property Act 1900 (NSW), no order for its extension having been obtained. 15By letter dated 20 December 2012, the defendant's then solicitors referred to an informal will said to post-date the 1971 will. No such informal will is in evidence. 16By letters dated 1 February 2013 and 5 February 2013 the defendant's then solicitors wrote to the plaintiff's solicitors informing them that the defendant proposed to seek provision from her late mother's estate. However no proceedings for a family provision order have been commenced. 17The plaintiff's solicitors proposed a mediation but the defendant chose not to participate in any such mediation. On 22 July 2013 the plaintiff went to the property and delivered a further notice to vacate the premises by 29 July 2013. The defendant remains in possession of the property. The plaintiff continues to live in a property purchased in 1995 by Darren, one of his sons, which he leases at reduced rent. 18The plaintiff commenced these proceedings by filing a statement of claim on 19 November 2013. The defendant resisted the order for possession on the following bases: (1)The plaintiff surrendered ownership of the property to Betty at the time of their divorce and is no longer the owner of the property. (2)Betty did not intend the plaintiff to have possession of the property after she died. (3)The gift to the plaintiff in the 1971 will was revoked by the divorce. 19Much of the evidence adduced by the defendant relates to her personal financial circumstances, the nature of the marriage between the plaintiff and Betty and the plaintiff's conduct generally. Such evidence might be germane to an application for a family provision order under the Succession Act 2006 (NSW). An application for such an order must be made, unless an extension is granted, within 12 months of the date of Betty's death, or by 12 September 2013. The evidence established that the defendant sought and obtained legal advice about such a claim in November 2012 but has not commenced any such proceedings. Consequently, this evidence is irrelevant to the present proceedings except insofar as it is capable of bearing on the question whether there was a severance of the joint tenancy of the property prior to Betty's death. Accordingly, I have not summarised it in these reasons unless it bears on that question.