Hill v Dunn

The absence of the defendant

1. The defendant was served with the summons and affidavit in support on 27 June 2018. The plaintiff's solicitors' prior attempts to serve him had been unsuccessful.
2. Other than instructing a legal representative (who filed a notice of appearance on 3 July 2018 and a notice of ceasing to act on 18 October 2018), the defendant has not taken an active role in the proceedings.
3. On 4 December 2018, the court listed the matter for hearing, which was scheduled to take place on the morning of 9 April 2019.
4. During the period from 5 December 2018 to 24 March 2019, the plaintiff's solicitors attempted to contact the defendant to notify him of the hearing date. Those attempts included sending a letter by email to the defendant; sending a letter by registered post to the defendant's last address for service; attempting to serve a letter by messaging the defendant on Facebook Messenger; calling the defendant on his last known mobile telephone number; sending a text message to the defendant's last known mobile telephone number; sending a message to the defendant by Facebook Messenger and attempting to serve a letter at a new residential address identified by an investigation service who had conducted an urgent skip trace on the defendant.
5. On 25 March 2019, the court ordered the plaintiff to take further steps to seek to notify the defendant of the hearing date by leaving a copy of the letter at the residential address identified by the investigation agent and by contacting him via Facebook Messenger. The letter was served on 3 April 2019 but, as a result of an oversight, no message was sent via Facebook Messenger.
6. On the morning of the hearing before me the defendant did not appear and the matter was stood down to 2pm to allow time for the plaintiff's solicitors to attempt to contact the defendant via Facebook Messenger or some other means and determine whether he wanted to appear at the hearing.
7. The plaintiff's solicitor spoke to the defendant during the morning adjournment and was advised that the defendant did not have funds to attend court in Sydney. The plaintiff advised the defendant that he could attend the hearing by phone at 2pm and that it was scheduled to proceed at that time.
8. When the matter resumed at 2pm, the Court tried to contact the defendant by phone with no success. Further attempts were made between 2pm and 3pm with no success. The hearing of the matter was adjourned to 10am on 11 April 2019 to enable steps to be taken to try and contact the defendant. The plaintiff was directed to notify the defendant that the hearing had been adjourned to 11 April 2019 and that he could attend by phone or in person.
9. On 10 April 2019, the defendant sent a statutory declaration to the Court Registry in Sydney advising that he had no money, could not attend court in Sydney and wanted an adjournment for a few months to allow the defendant to obtain employment. The defendant also stated that he did not wish to be contacted by phone, and provided a preferred email address, being the same email address that the plaintiff's solicitors had used previously to inform the defendant of the scheduled hearing date. The Registry responded by email and advised the defendant that he could attend the hearing on 11 April 2019 by telephone and that, if he failed to attend, the matter may be heard and determined in his absence.
10. On 10 April 2019, my associate sent the defendant an email advising him that any application for an adjournment would need to be made in person or via telephone on the morning of the hearing, being at 10am on 11 April 2019. The email further stated that the Court would call him prior to the start of the hearing and, if he failed to appear by phone at 10am, the matter would proceed to a final hearing.
11. Four attempts were made by the Court prior to, and at the start of, the hearing, to contact the defendant by phone, without success.
12. The absence of the defendant at the hearing raises the issue of the Court's obligation to ensure a fair hearing and its duty to unrepresented litigants. That duty was examined in Hamod v State of New South Wales [2011] NSWCA 375 at [309] - [316] by Beazley JA (as her Honour then was) and the propositions emerging from that case are set out in Bauskis v Liew [2013] NSWCA 297 by Gleeson JA at [67] - [70].
13. Applying those principles to this case, I accepted the plaintiff's submission made at the start of the hearing that an adjournment should not be granted to the defendant and that it was appropriate for the court to proceed to hear and determine the matter in the absence of the defendant. I made that decision for the following reasons.
14. First, the defendant has been given sufficient information about the procedures and expectations of the Court, including repeated communications from the plaintiff's solicitors informing him of the hearing date and that the Court would proceed to hear the matter if he failed to attend by phone on 11 April 2019. This information was, in my view, sufficient for him to understand the consequences of his failing to attend.
15. Second, the court's duty does not extend to assisting an unrepresented litigant as to their substantive rights. The obligation on the judge is to put the unrepresented litigant in the position of being able to make an effective choice: Hamod v State of New South Wales [2011] NSWCA 375, per Beazley JA at [312]. The Court, and the plaintiff, explained to the defendant the steps he could take regarding his attendance, that he would be given an opportunity to make an adjournment application by phone on the morning of 11 April 2019 and what would happen if he did not attend. He chose not to attend by phone and did not provide any explanation for his non-appearance.
16. Third, the duty of the court is not solely to the defendant as an unrepresented litigant, but also to the plaintiff who would, if this matter was adjourned again, suffer prejudice from the delay. The plaintiff is an unemployed single mother of two children who is unable to work due to a disability sustained in a serious car accident. Her only real asset is the property and she has wanted to move to be closer to relatives since 2015. Properly, she tried to engage with the defendant to resolve the issues early on, only resorting to legal proceedings when he refused to do so. She should not be expected to have to wait further when he has failed to take any steps in this case.
17. Fourth, in my view, the defendant has been treated fairly. He has had many opportunities to take part in this case and has not done so, other than to retain a lawyer for a few months in 2018. During that time, the case was adjourned for one month to allow for settlement discussions. There is no evidence before the court as to whether the defendant participated in those discussions. There is also no evidence as to why his lawyers ceased to act. Based on his recent communication, I infer that he has not had sufficient funds to retain lawyers. However, no evidence has been presented to the Court demonstrating that the defendant has attempted to obtain pro bono legal advice or legal aid. The defendant also failed to acknowledge any communications from the plaintiff's solicitors prior to the morning of the adjourned hearing notwithstanding that they had contacted him on the email address that he acknowledged is correct and the mobile telephone number which he used on that morning.
18. Finally, the recent communication from the defendant to the Court did not indicate what his position was in respect of the substantive application. It simply stated that he would like an adjournment. Further, based on the authorities to which I refer below - which confirm that the only relevant intention is that of the plaintiff - there is also a question as to what information the defendant could bring before the court that would assist his case.

The evidence of the plaintiff

1. The evidence in the matter was given on affidavit by the plaintiff and establishes the following.
2. The relationship between the plaintiff and the defendant started in 2008 when the plaintiff was 15. They started living together sometime in 2009 when the defendant moved into the home of the plaintiff's mother. They lived together in various places after that except for a period in 2011 when the plaintiff moved away due to a violent incident with the defendant.
3. Prior to the purchase of the property on 5 April 2013, the plaintiff and the defendant were in a de facto relationship, had two children and were living in a caravan park in Dubbo, having previously lived with the defendant's mother in Gilgandra.
4. The purchase price of the property was $305,000. It was paid for entirely by the plaintiff out of settlement monies she received from a personal injury claim she made following a car accident that took place in December 2008, in which the plaintiff suffered serious injuries. The plaintiff also paid all other costs related to the purchase of the property. Since moving into the property in April 2013, the plaintiff has paid all outgoings and other property-related costs, as well as most of the costs of living. The defendant has not paid anything towards the purchase or maintenance of the property.
5. Prior to the purchase, the plaintiff had not considered whether to put the house in her name alone, or whether to include the defendant as a joint tenant. The plaintiff decided to include the defendant on the title of the property because she felt pressured to do so by the defendant and his mother. The plaintiff was fearful of what the defendant might do if she did not purchase the property in his name as well as hers. There was a history of threats and violence towards the plaintiff by the defendant in the period prior to her purchase of the property.
6. In August 2014, the plaintiff ended the relationship and the defendant moved out of the property to live with his mother. There were further threats and violence by the defendant during the period they both lived in the property, continuing until at least the end of the relationship.
7. In early 2015, the plaintiff decided to move from Dubbo and sell the property. A local real estate agent informed the plaintiff that she could not sell the property without the defendant signing an agency agreement. The defendant refused to sign the agency agreement, or discuss the sale with the plaintiff.
8. There is no evidence of any contact between the plaintiff and the defendant since 2015.

Does the defendant hold his legal interest in the property on resulting trust for the plaintiff?

1. A resulting trust may arise where property is paid for and purchased by one party in the joint name of that party and another party. In those circumstances, the law presumes that the purchasing party did not intend to give the other party a beneficial interest in the property and the other party holds its legal interest on trust for the purchasing party: Calverley v Green (1984) 155 CLR 242 (Calverley v Green); Muschinski v Dodds (1985) 160 CLR 583 (Muschinski v Dodds).
2. As Gibbs CJ said in Calverley v Green, at 246: Where a person purchases property in the name of another, or in the name of himself and another jointly, the question whether the other person, who provided none of the purchase money, acquires a beneficial interest in the property depends on the intention of the purchaser. However, in such a case, unless there is such a relationship between the purchaser and the other person as gives rise to a presumption of advancement, i.e., a presumption that the purchaser intended to give the other a beneficial interest, it is presumed that the purchaser did not intend the other person to take beneficially. In the absence of evidence to rebut that presumption, there arises a resulting trust in favour of the purchaser.
3. The presumption of resulting trust may be displaced if the relationship between the parties is of a type that would attract the presumption of advancement, such as that where a husband has purchased property on behalf of himself and his wife. The law currently does not recognise a presumption of advancement where a wife puts property in the name of her lawful husband or where a woman puts property into the name of her de facto husband: Muschinski v Dodds, Gibbs CJ at 590; Mercier v Mercier [1903] 2 Ch 98; Calverley v Green, Mason and Brennan JJ at 260; Deane J at 268 - 269.
4. Gibbs CJ in Calverley v Green considered whether the Court should reflect changing social attitudes and apply the presumption of advancement to de facto relationships (at 250 - 251). His Honour, in dissent, noted that it seemed natural to conclude that a man who puts property in the name of the woman to whom he is living in a de facto relationship does so because he intends her to have a beneficial interest, and that the presumption of advancement is raised. The nature of a de facto relationship and the presumption of advancement was considered by Ward J (as her Honour then was) in Ryan v Ryan [2012] NSWSC 636 where her Honour reviewed the High Court's comments in Calverley v Green and subsequent decisions on the issue. Her Honour noted that the majority's reasoning in Calverley v Green turned in part on the differential treatment under the Family Law Act 1975 (Cth) accorded to de facto couples vis-a-vis married couples and that there have been a number of changes to the legislative regime governing property division between de facto couples since that case was decided in 1985. While noting that those legislative developments might invite reconsideration of established categories to which the presumption of advancement applies, her Honour considered that until Calverley v Green is reconsidered at an appellate level, it was of appropriate precedential weight such that it should be followed.
5. I accept that Calverley v Green and Muschinski v Dodds are of sufficient precedential weight and should be followed. I have, therefore, approached this case on the basis that the presumption of advancement does not apply to the de facto relationship between the plaintiff and the defendant at the time of purchase.
6. In those circumstances, the presumption of a resulting trust can only be displaced by evidence of the actual intention of the purchasing party at the time of acquisition of the property. It is only their intention that is relevant in deciding whether the resulting trust is rebutted: Calverley v Green, per Gibb CJ at 251; see also JD Heydon and MJ Leeming, Jacobs' Law of Trusts in Australia (8th ed 2016, LexisNexis Butterworths) at [12-14].
7. In the present case, the evidence establishes that the plaintiff paid the entirety of the purchase price, related purchase costs and outgoings for the property. Detailed bank statements identified that the plaintiff received settlement monies in early 2013, and then purchased the property. These bank statements also identified various outgoings relating to the property paid from the plaintiff's bank account.
8. While the title reflects that the plaintiff and defendant are joint tenants, there is no evidence before the Court that can be taken to indicate that the plaintiff intended the defendant to benefit by way of a half interest in the property. To the contrary, the evidence indicates that, initially, she did not consider the issue at all, and then put the defendant's name on the title because she felt pressured to do so and feared the consequences if she did not.
9. Even if there were facts to show that the defendant had been a parent and a support for some time before the purchase, such evidence would not, in my opinion, displace the presumption of a resulting trust.
10. There is no evidence that the defendant provided any financial or other support in relation to the ongoing maintenance of the property and costs of living together. In any event, evidence of the defendant's subsequent conduct is not relevant to the question of whether the property was acquired on a resulting trust basis.
11. Accordingly, I am satisfied that the defendant holds his legal interest on resulting trust for the plaintiff.

Should a declaration be made in the absence of the defendant?

1. The Court has inherent power to grant declaratory relief: s 75 Supreme Court Act 1970 (NSW).
2. A party seeking a declaration must have a real interest to raise and "must be able to secure a proper contradictor, that is to say, someone presently existing who has a true interest to oppose the declaration sought": Russian Commercial and Industrial Bank v British Bank for Foreign Trade [1921] 2 AC 438 at 448.
3. The Court recognises that a proper contradictor is required in order to ensure that there is a person to be bound by the relief sought. That does not mean that the party must take steps to contest declaratory relief. It has been accepted that declaratory relief may be granted where a party with an interest in opposing the proceedings refuses to say whether it will take any action to contest the conduct: Australian Competition and Consumer Commission v MSY Technology Pty Ltd (2012) 201 FCR 378; IMF (Australia) Ltd v Sons Of Gwalia Ltd (admin apptd) (ACN 008 994 287) (2004) 211 ALR 231 at 244.
4. Accordingly, there is a difference between having an interest in opposing the granting of declaratory relief and, once having that interest, choosing whether or not to oppose the granting of that relief.
5. In this case, the defendant, as a person who could be prejudiced by the grant of the relief sought, was properly made a party to the proceedings. Once served, he took steps to instruct solicitors who then ceased to act for him. He did not file any affidavit evidence in support of a defence, despite directions giving him the opportunity to do so by 17 October 2018, and choose not to attend the hearing by phone on 9 or 11 April 2019.
6. The fact that he has taken no active steps to defend or oppose the grant of relief does not, in my view, deprive the court of jurisdiction or provide sufficient justification for it not to exercise its discretion to make a declaration in this matter. The issues raised by the plaintiff in this case are neither abstract nor hypothetical and the defendant was a proper contradictor.
7. Consistent with the approach of Parker J in Zetting v Müller [2017] NSWSC 659, a declaration in the terms sought by the plaintiff should be made. The evidence presented in support of the plaintiff's claim is persuasive and the making of a declaration is the best way to resolve the issues raised by that claim.
8. Accordingly, I propose to make the declaration sought in paragraph [1] of the Summons.

Other relief

1. The plaintiff seeks a vesting order under s 71 of the Trustee Act 1925 (NSW) and, in the alternative, orders that the defendant sign and return all documents and do all things necessary to transfer his legal interest in the property to the plaintiff and, if the defendant fails to sign, an order that a Registrar execute the documents on behalf of the defendant pursuant to s 94 of the Civil Procedure Act 2005 (NSW).
2. A vesting order may be made to give effect to the declaration pursuant to s 71(2)(o) of the Trustee Act 1925 (NSW). The effect of this section is that the Court may make an order that the defendant's interest in the property vest in the plaintiff absolutely and forthwith. It is an appropriate order to make in this case.
3. The alternative order is sought due to the plaintiff's concern that, without a signed transfer form, a transfer of the property to the plaintiff will not be actioned by the Land Registry Services, NSW. This concern arises from a communication between the lawyer for the plaintiff and a representative of the Land Registry Service office, where the latter indicated that a signed transfer of some kind, which may be signed by the Registrar of this Court, was required. This position is consistent with the Registrar General's published guidelines for "Transfer Without Monetary Consideration", which refers to the need for a transfer to be signed by the transferor (in this case the defendant) or his attorney, an officer of a Court or by any person so directed by a Court. Those guidelines refer to the Family Court, but I infer that a transfer signed by an officer of this Court would also be acceptable
4. The procedural history and attitude of the defendant to date suggests that it is very likely the plaintiff will have difficulty in contacting him and obtaining his co-operation to sign and execute any transfer or other documents to give effect to a vesting order made by the Court.
5. Having regard to the approach of the office of Land Registry Services, NSW and the anticipated difficulties of obtaining execution of a transfer form by the defendant, I am satisfied that it is appropriate that the alternative orders, including those under s 94 of the Civil Procedure Act 2005 (NSW), should be made in this case.
6. The plaintiff does not seek any costs order as the defendant has not taken any active role in the proceeding. Accordingly, I make no order as to costs with the intent that the parties are to bear their own costs of the proceeding.

Orders

1. For these reasons, the Court makes the following orders: 1. Declare that the defendant holds his legal interest in the property at 54 Catherine Drive, Dubbo (NSW) being Lot 43 in deposited plan 241935 (the property) on resulting trust for the plaintiff. 2. An order pursuant to s 71 of the Trustee Act 1925 (NSW) that the property be vested absolutely in the plaintiff forthwith. 3. In the alternative to order 2, orders that: 1. the defendant forthwith sign and return all documents and do all things necessary to transfer his legal interest in the property to the plaintiff; and 2. if the defendant fails or refuses to sign and return such documents within 14 days of them being served on him in accordance with Order 3(a) above, the Registrar of the Court execute documents on behalf of the defendant pursuant to s 90 of the Civil Procedure Act 2005 (NSW). 1. Direct the plaintiff to serve a copy of these orders and published reasons on the defendant by email to jaidunn7@gmail.com. 2. No order as to costs.

Amendments 16 April 2019 - 16 April 2019 - pursuant to the 'slip rule' contained in the Uniform Civil Procedure Rules 2005 (NSW) r 36.17 the Court amends Order 3(b) of the Orders made 12 April 2019 by her Honour Justice Henry so that the reference to "the directions below" is corrected to "Order 3(a) above". 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 April 2019