Supreme Court of the ACT|2014-05-28

Hillman v Box as Executors of the Estate of Graeme William Box (No 4) [2014] ACTSC 107 (28 May 2014)

NOELLE ELIZABETH HILLMAN v LYNDA BOX, DEBRAH BOX AND SKYE BOX AS EXECUTORS OF THE ESTATE OF GRAEME WILLIAM BOX (NO 4)

[2014] ACTSC 107 (28 May 2014)

DEEDS - What Amounts to a Deed - Whether document in question Agreement or Deed - No extrinsic evidence of intention of parties - Construction of document required - Document in question is a Deed

DEEDS - Claim Deed should be set aside on the ground of non est factum - Alternative claim that Deed should be set aside due to undue influence exerted on the Applicant - Applicant not prevented from seeking independent legal advice - Applicant freely signed Deed - Applicant capable of understanding the Deed - No undue influence exerted on the Applicant - Claim dismissed

SUCCESSION - FAMILY PROVISION AND MAINTENANCE - Applicant former domestic partner of deceased - Whether domestic partnership had ended at the time of the death of the deceased - Whether Applicant cared for the deceased during last illness - Applicant not adequately provided for

SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - Claim for chattels alleged to be jointly owned with the deceased - Chattels divided under Deed - Claim dismissed

SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - Claim that half the proceeds of a property sale held on constructive trust for the Applicant - Title in name of deceased only - Property purchased with funds of deceased - No significant financial contribution by the Applicant - No constructive trust exists

Rules of the Supreme Court 1965 (UK), Order 62 Rule 28

400 George Street (Qld) Pty Ltd v B G International Ltd [2012] 2 Qd R 302

Abela v Public Trustee [1983] 1 NSWLR 308

Allcard v Skinner (1887) 36 Ch D 145

ANZ Banking Group Ltd v Alirezai [2004] QCA 6

Bank of New South Wales v Rogers [1941] HCA 9; (1941) 65 CLR 42

Barbaro v The Queen [2014] HCA 2; (2014) 305 ALR 323

Barrett v Hartley (1866) LR 2 Eq 789

Baumgartner v Baumgartner [1987] HCA 59; (1987) 164 CLR 137

Burgess v Rawnsley [1975] Ch 429

Burton v Camden London Borough Council [2000] UKHL 8; [2000] 2 AC 399

Calabrese v Miuccio (No 2) [1985] 1 Qd R 17

Churton v Christian (1988) 13 NSWLR 241

Coldunell Ltd v Gallon [1986] 1 All ER 429

Delaney v Molloy (1993) NSW Conv R 55-664

Garcia v National Australia Bank Ltd [1998] HCA 48; (1998) 194 CLR 395

Giumelli v Giumelli [1999] HCA 10; (1999) 196 CLR 101

Green v Green (1989) 17 NSWLR 343

Greer v Kettle [1938] AC 156

Hackett v Public Trustee for the Australian Capital Territory (Unreported, ACTSC, Higgins J, 2 May 1997)

Hibberson v George (1989) 12 Fam LR 725

Hillman v Box & Ors as executors of the will of Box (2010) 5 ACTLR 122

Hillman v Box & Ors as executors of the will of Box (No 2) [2011] ACTSC 10

Hillman v Box & Ors as executors of the will of Box (No 3) [2011] ACTSC 24

Hughes v National Trustees Executors and Agency Co Ltd [1979] HCA 2; (1979) 143 CLR 134

In Re Grimthorpe (deceased) [1958] Ch 615

In Re Whitley (deceased) [1962] 1 WLR 922

In re Wilks; Child v Bulmer [1896] 3 Ch 59

In the Estate of Guthrie (1983) 32 SASR 86

Johnson v Buttress [1936] HCA 41; (1936) 56 CLR 113

Krause v Sinclair [1983] VicRp 7; [1983] VR 73

Luciano v Rosenblum (1985) 2 NSWLR 65

Magill v Magill (1993) NSW ConvR 55-663

McNab v Earle [1981] 2 NSWLR 673

Mercantile Credit Co Ltd v Hamblin [1965] 2 QB 242

Meredith Projects Pty Ltd v Fletcher Constructions Australia Ltd [2000] NSWSC 493

Mischel (as executor of the Estate of Mischel) v Mischel Holdings Pty Ltd [2012] VSC 292

Muschiuski v Dodds [1985] HCA 78; (1985) 160 CLR 583

Muskham Finance Ltd v Howard [1963] 1 QB 904

National Westminster Bank plc v Morgan [1985] UKHL 2; [1985] AC 686

On v On [2002] NTSC 18

Petelin v Cullen [1975] HCA 24; (1975) 132 CLR 355

Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9

Public Trustee v Pfeiffle [1991] VicRp 3; [1991] VR 19

Re Adamow (deceased) (1989) 97 FLR 410

Re Adams (deceased) [1967] VicRp 115; [1967] VR 881

Re Cutts (deceased) [1969] VicRp 31; [1969] VR 254

Reeves v Berge Phillips (1982) 7 Fam LR 940

Re Fullard [1981] 2 All ER 796

Re Fulop (deceased) (1987) 8 NSWLR 679

Re Salathial [1971] QWN 18

Robertson v Robertson [1930] QWN 41

Russell v Scott (1936) 55 CLR 440

Saunders v Anglia Building Society [1970] UKHL 5; [1971] AC 1004

Slater v Slater (1987) 12 Fam LR 1

Starceavich v Swart & Associates Pty Ltd (2006) 12 BPR 98,204

Stivactas v Michaletos (No 2) [1993] NSW Conv R 55-683

Stroughill v Buck [1850] EngR 295; (1850) 14 QB 781

Swift v Roberts [1764] EngR 50; (1764) 97 ER 941

Takemura v National Australia Bank Ltd [2003] NSWSC 339; (2003) 11 BPR 21,185

Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165

Tulloch (Dec'd) v Braybon (No 2) [2010] NSWSC 650

Turner v Perpetual Trustees Australia Ltd [2001] ACTSC 56

Union Fidelity Trustee Co of Aust Ltd v Gibson [1971] VicRp 69; [1971] VR 573

Watkins v Combes [1922] HCA 3; (1922) 30 CLR 180

West v Government Insurance Office of New South Wales [1981] HCA 38; (1981) 148 CLR 62

Williams v Hensman [1861] EngR 701; (1861) 70 ER 862

Wilton v Farnworth [1948] HCA 20; (1948) 76 CLR 646

Wright v Gibbons [1949] HCA 3; (1949) 78 CLR 313

Xenos v Wickham (1867) LR 2 HL 296

AND: LYNDA BOX, DEBRAH BOX AND SKYE BOX AS EXECUTORS OF THE ESTATE OF GRAEME WILLIAM BOX

1. The plaintiff receive by way of provision out of the estate of the late Graeme William Box the sum of $50,000, such sum to be paid forthwith to the plaintiff's solicitors, Capital Lawyers;

2. Otherwise, there be judgment for the defendants on each other claim by the plaintiff.

3. The costs of the defendants of the proceedings be paid on a trustee basis from the estate of the late Graeme William Box.

4. The parties be heard as to the costs of the plaintiff.

Ms Hillman's contribution to the maintenance of the bought properties [121]

Relationship between Mr Box and Ms Hillman after 2006 [166]

APPLICABILITY OF JOINT TENANCY AND THE LAW OF SURVIVORSHIP [266]

THE CLAIM UNDER THE FAMILY PROVISION ACT [340]

Jurisdiction and powers of the Court under the Family Provision Act [341]

1. On 15 April 2009, Graeme William Box made a simple will of three paragraphs and all contained on one page. The simplicity of the will, unfortunately, belies the complexity of litigation that it has spawned.

2. Mr Box was born on 8 February 1948 and died on 23 November 2009. Mr Box married twice; he first married Sarah Dobel in 1968 and three children were born during that marriage, Lynda Box, Debrah Box and Skye Box. They are the defendants in these proceedings.

3. I do not have any details of how that marriage ended nor of his second marriage to Helen Hewitt or how that marriage also ended. In any event, Mr Box entered into a domestic relationship in 1998 with Noelle Elizabeth Hillman, the plaintiff.

4. That relationship is said to have ended in 2006. I shall deal with that later.

5. During the relationship, Mr Box and Ms Hillman together purchased a number of properties for investment.

6. Mr Box's will, of which probate was granted on 2 March 2010, appointed his daughters, to whom I will refer for ease of reference and with no disrespect intended, as Lynda, Debrah and Skye, as his executors and left them the whole of his estate in equal shares as tenants in common. Ms Hillman was not mentioned in the will at all.

7. Ms Hillman commenced proceedings on 26 August 2010, originally under the Family Provisions Act 1969 (ACT), seeking that provision be made out of Mr Box's estate for Ms Hillman and certain declarations concerning dealings and property to which I will later refer.

8. The proceedings came on for hearing on 17 December 2012. On 20 December 2012, I granted leave to the defendants to file an experts report on or before 8 January 2013, but otherwise reserved my decision.

9. In order to understand the proceedings, it is necessary to set out in more detail the circumstances of the relationship between Mr Box and Ms Hillman and their various property dealings.

10. The evidence was that, in 1998, Mr Box and Ms Hillman were introduced by a mutual friend. Ms Hillman said that, about six weeks later, Mr Box asked her to marry him and bought some rings. She declined, but they lived together until 2006. The nature of their relationship after that will need to be considered in detail later.

11. During this time, Ms Hillman said that they "shared [their] lives and gave each other assistance and support".

12. Mr Box and Ms Hillman initially lived in a property at Latham, owned by Ms Hillman and which she had purchased in about 1994. It was then unencumbered. They later lived in some of the homes they purchased together.

13. Mr Box was a qualified builder and was said to be self-employed and continuously working during their relationship. It appears, in fact, that he earned the bulk of his income from work he did for a company, GMC Pty Ltd trading as Capital Shopfitting. From 3 October 2002 to 23 November 2009, he seems to have earned $430,673.40 from that company. Although there was a suggestion that for a period Mr Box was unemployed, I do not accept that. The evidence satisfies me that he was employed at least during the period of his relationship with Ms Hillman. From time to time, he was paid for his work in cash. Lynda said that he worked until about six months before his death.

14. Mr Box and Ms Hillman were involved together in purchasing properties and renovating them with a view to selling them at a profit. I shall have to deal with that in more detail later.

15. In 2006 they "separated" (Ms Hillman's word) and Mr Box went to live in a factory in Queanbeyan ("the Queanbeyan factory") that he had purchased and which included a three-bedroom self-contained unit. Lynda put the date of separation as August 2006.

16. Ms Hillman said that, nevertheless, they "continued to relate", though Ms Hillman then lived at her property at Latham.

17. Ms Hillman stated that Mr Box moved to the Queanbeyan factory as "it was closer to his work at that time". She said that they were renovating it. Ms Hillman said that the relationship, however, did not alter, and they would spend weekends and other times together, staying at either Latham or Queanbeyan to each of which properties they both had keys.

18. She described her relationship with Mr Box as "a very loving and caring relationship" from the beginning to the end.

19. In about May 2009, Mr Box was diagnosed with cancer and required treatment. Ms Hillman stated in her affidavit

I looked after the deceased at the end. I talked to his doctors. I bathed him. I drove him to outings to make his last days better.

20. She later particularised some of this assistance as follows:

(a) The Plaintiff supported and cared for the Deceased throughout the parties' said domestic relationship;

(b) The Plaintiff cared for the Deceased after the deceased was diagnosed with cancer (in or about May 2009);

(c) The Plaintiff accompanied the Deceased to his medical appointments and treatments from May 2009 and allowed him to visit the Plaintiff's home from when he could no longer care for himself. Oxygen was delivered to the Plaintiff's home for the Deceased's use. Also the Plaintiff visited the Deceased at his home frequently to care for him.

21. She later added that initially she was Mr Box's sole carer and went with him to all his appointments with his oncologist and radiation specialist. She said she would shower, shave and dress him and wash his clothes as well as cook for him, though this seems likely to have only occurred after the progress of the cancer rendered him disabled and unable to care for himself, a point at which other evidence not entirely consistent with this evidence suggested other arrangements for such assistance had actually been made.

22. Ms Hillman explained that her mother was ill with cancer at this time as well, which required her to travel to Sydney and to leave her part-time job to care for both of them. She referred to other activities, such as attendance at theatre performances and concerts, to which she took Mr Box until he was too ill to attend.

23. Lynda gave evidence about this period also, however, which was very different to that of Ms Hillman. She said that after Mr Box was diagnosed with cancer, she and her sisters set up a roster to ensure one of them saw him every day and, as his condition deteriorated, one of them was with him at all times.

24. Debrah lived in Townsville but came to Canberra to live with Mr Box and to take care of him. In an affidavit, Debrah gave the dates when she was in Canberra from her home in Townsville as 19 June to late September 2009, when she returned to Townsville for two weeks. She returned to Canberra in early October 2009 until 11 November 2009, and then again from 19 November to 8 December 2009, a total of about five months, or a little over four months to the date of Mr Box's death on 23 November 2009.

25. Prior to that, Lynda made arrangements with her employer to work out of the office from about midday, when she would go to Mr Box's residence to be with him. She would also be with him for one day at the weekend and Skye would be with him on the other day.

26. From the last six weeks of his life, Mr Box lived in Lynda's main bedroom to have easy access to the ensuite. He moved into Claire Holland House for the last week and a half of his life.

27. Lynda said that Ms Hillman did not visit Mr Box once in the last month of his life.

28. As to the matters to which Ms Hillman referred and which I have set out above (at [20]), Lynda stated in one of her affidavits

Dad was happy for the plaintiff to him to some appointments and we did not want to argue with Dad. My sisters and I were more than able to and had made arrangements to take him. I regularly drove Dad to Sydney for specialist appointments. The oxygen was delivered to the plaintiff's house because no one was at home at my house to sign for it as we were always at Dad's side taking care of him. The plaintiff was not visiting to care for him as one of us was always looking after him. As far as we were concerned the plaintiff was visiting as a friend like all his other family, work mates and friends did.

29. This was in context to the evidence of Ms Hillman about caring for Mr Box until his death, as set out above (at [19]).

30. Debrah deposed in her affidavit that while she was looking after Mr Box, Ms Hillman spent one night at the house where she was staying. She added that Ms Hillman made Mr Box sleep on the floor while she slept on the lounge where he had been sleeping because he was unable to climb the step between the living room and the bedroom.

31. I turn then to the period from when Ms Hillman and Mr Box commenced their relationship and the operation of buying and selling houses.

32. From 1999, Mr Box and Ms Hillman purchased a number of properties. The first property was a residential property in Spence, purchased on 19 February 1999 for $75,000 in the names of both as joint tenants. I refer to this as the Spence property.

33. The funding for that purchase came about in this way. On 21 January 1999, Mr Box deposited into his IMB account the sum of $297,406.21 which was the net proceeds of the sale of a property he had owned at Bingie, New South Wales since before he met Ms Hillman.

34. Ms Hillman said that she was a signatory on that account but there was no evidence to show that she otherwise had any legal entitlement to the funds in that account. It does not seem to me that this made the account a joint account of the kind described in Russell v Scott (1936) 55 CLR 440. While Ms Hillman had authority to operate on the account, the chose in action represented by the account was a debt the bank owed to Mr Box alone.

35. The purchase price for the Spence property came directly from that account. Ms Hillman, in her affidavit of 21 December 2010 (her fourth affidavit) deposed that she paid $10,000 in cash borrowed from her sister as the deposit for the purchase of the property. In her oral evidence, however, she said that she had contributed $10,000, not for the deposit, but for the purchase of paint, curtains, a new screen door, electrical work including a stove and of air conditioning for the property. It was clear to me that it was not a deposit, as Ms Hillman had claimed, in the ordinary conveyancing sense. Ms Hillman's evidence suggested payments for improvements to the property, but the entire funds for its purchase came from funds of Mr Box alone. The payments for improvements are, of course, a relevant matter, but not a deposit as she had claimed.

36. While Ms Hillman asserted a number of times that she and Mr Box

were a couple, we were partners and we would do everything equally and share. And what he has was mine and what I had was his

it was clear that each had separate property; each of them had separate bank accounts, Ms Hillman was at all relevant times the only registered proprietor of the property at Latham. I note, too, that Mr Box was not a signatory on Ms Hillman's bank account and had no capacity to access the funds in it.

37. In about March 1999 Mr Box and Ms Hillman opened a joint account with St George Bank. It was used for many of the transactions they made in relation to the properties they purchased, rented and sold. There may have been other such accounts, but both retained their individual accounts.

38. On 26 February 1999, Mr Box and Ms Hillman purchased a property at Deakin for $220,000. The funds for that purchase also came from the IMB account of Mr Box, utilising further of the funds received from the sale of the property at Bingie.

39. In her fourth affidavit, Ms Hillman deposed that she contributed $110,000 to the purchase price of the Deakin property. That is not supported by the evidence. Ms Hillman explained in her oral evidence that what she described as her contribution was made because of her asserted interest in the IMB account of Mr Box. She said that the funds came from the "joint account", but that is not correct either and ultimately she conceded that the funds came entirely from the proceeds Mr Box had received from the sale of his property at Bingie.

40. Ms Hillman asserted that she also provided funds to "finance, maintain, upkeep and improve" the Deakin property, amongst others. No affidavit evidence identified what amounts had been spent on these matters. In her oral evidence, Ms Hillman was unable to identify any such amounts. She conceded that she contributed no funds to finance the property as she acknowledged that all the funds came from Mr Box's IMB account.

41. The Deakin property was sold on 28 June 2000 for $320,000. The proceeds of the sale were paid into the IMB account of Mr Box.

42. On 18 March 1999, Mr Box and Ms Hillman, as joint tenants, purchased a property in Ainslie for $185,000. The deposit was paid from Mr Box's IMB account. The balance of the purchase price was provided by a loan made jointly to Mr Box and Ms Hillman by St George Bank. Ms Hillman made no mention of this property in her earlier affidavits apparently through a simple error.

43. The property was sold on 26 April 2000 for $230,000. On settlement, $196,000.27 was paid to St George Bank to discharge the loan. The balance of the funds received on sale was equally shared between Mr Box and Ms Hillman. It was asserted to be about $9,000 each and Ms Hillman appeared to accept that, though the evidence was unclear.

44. The next property they purchased was in Reid. It was purchased on 9 January 2001 for $400,000 by Mr Box and Ms Hillman as joint tenants. Mr Box provided the deposit of $40,000 and then a further amount of $210,242 from his IMB account as well as paying from that account stamp duty of $13,515. These funds are traceable to the original funds received by Mr Box from the sale of his property at Bingie. The balance was provided by a joint loan to Mr Box and Ms Hillman from St George Bank of $140,000. There was no evidence of Ms Hillman providing $200,000 as she asserted in her affidavit. At best, she provided $70,000, being half of the joint loan required for the balance of the purchase price for which she was jointly responsible.

45. This property was sold on 26 September 2003 for $835,000. The amount to discharge the mortgage was $168,175.66, suggesting that little of the principal had been discharged, thus making Ms Hillman's actual contribution of finance very limited. The evidence was a little unclear but Ms Hillman acknowledged receiving $230,000 from the sale proceeds and that accorded with contemporaneous notes on their lawyer's conveyancing file. In any event, the net proceeds were paid equally, one half to each of Mr Box and Ms Hillman.

46. On 7 October 2003, Mr Box and Ms Hillman purchased a property in Campbell as joint tenants. The purchase price was $600,000. The source of the funds to purchase the property was somewhat obscure on the evidence. A loan of $400,000 from Westpac Banking Corporation contributed the bulk of the purchase price. Ms Hillman initially suggested in her December affidavit that she contributed $300,000. That includes her joint liability for the loan. She suggested that she also used some of the proceeds of the sale of the Reid property, though she used $100,000 of that money for another purpose to which I refer below (at [51]). That may have been so; on the other hand, in oral evidence, Ms Hillman actually stated that she and Mr Box borrowed the further $200,000 to complete the purchase, which is contrary to that.

47. The property at Campbell was sold on 15 August 2008 for $762,000.

48. Ms Hillman acknowledged receiving $99,000 from the sale. She said that she and Mr Box shared the net proceeds equally. Lynda said that her father told her that this payment was part of the settlement he made when he and Ms Hillman separated.

49. There were also property transactions by Mr Box and Ms Hillman which did not directly involve the other. I have already mentioned Ms Hillman's Latham property which she had purchased before the relationship developed and which she owned at all relevant times herself. She said that she and Mr Box lived there from time to time. At other times, when they were living elsewhere (principally, it appeared, in the Deakin and then Reid properties), it was rented and the rental received applied towards paying bank loans for the purchase of other properties.

50. In addition, in early 2002, Ms Hillman purchased a property, which was referred to at all times to as being at Kingston, though it may have actually been in Griffith. I shall refer to it as the Kingston property. She borrowed funds secured by a mortgage over the Latham property for about 18 months. The property was purchased in the name of Ms Hillman and her daughter, though there was no evidence that her daughter paid any part of the purchase price.

51. Ms Hillman said that she applied $100,000 of the proceeds she received from the sale of the Reid property to discharge the mortgage loan. She also said that she transferred the property to her daughter in 2003. Although a title search of the property on 17 December 2012 showed the property still registered in the joint names of Ms Hillman and her daughter, she tendered an account from Nelson & Co for the following work:

To our costs of and incidental to acting to acting on your behalf in relation to Deed of Trust to your daughter in relation to your share of [Redacted] Kingston ACT, including drafting and attending you on execution of Deed of Trust and Transfer to your daughter together with all other necessary documents.

52. Mr Box also purchased a property in his own name alone. This was the Queanbeyan factory. It was purchased on 15 December 2003 for $340,000. Lynda says that her father told her that he bought the Queanbeyan factory from his share of the proceeds of the sale of the Reid property. She said he was very proud of being able to do so. Mr Box would, however, have needed some additional funds to complete the purchase.

53. Ms Hillman said there was some discussion with Mr Box about the Queanbeyan factory before it was purchased. She said that the discussion was that Mr Box said that it would be "good ... to buy the factory so [they] could increase [their portfolio]". This is rather an odd conversation, given that it was the only property purchased solely in the name of Mr Box. She added that he said he intended "to buy the factory so [they] could make [their] business more profitable so [Mr Box] could work in the factory and do the renovations on the houses that [they] were going to buy and that [they] already have".

54. The summary of the conveyancing file that was admitted into evidence showed that the deposit of $34,000 was paid by a St George Bank Cheque, the stamp duty of $10,793.00 paid with a St George Bank Cheque and on settlement $260,000 was paid with a St George Bank Cheque. These funds did not come from the joint account with St George Bank. Cheques drawn on a Westpac Bank account for $42,567.22 and $1,668 were also produced on settlement. They coincided with a mortgage taken over the Spence property.

55. Ms Hillman denied that Mr Box used the proceeds he had received from the sale of the Reid property to purchase the Queanbeyan factory, though she said that she thought Mr Box used some of those proceeds to purchase machinery for the factory.

56. Ms Hillman thought that a line of credit was taken out with the Westpac Bank to finance the purchase of the Queanbeyan factory. She suggested that it was in joint names. She seemed to agree, however, that only $55,047 was drawn down on that line of credit. Her evidence was

I know that when we bought the factory, my recollection is when we bought the factory we didn't have enough funds so we had to go and borrow funds to buy the factory and those funds went towards the factory.

57. She added that they "had to mortgage Spence to buy the factory" and this was from Westpac Bank. This is supported by a recital in the Termination Agreement, but no evidence shows that anything other than the small amount I have mentioned at [56] was provided by the Westpac Bank.

58. Ms Hillman tendered no documents to support her recollection of the transaction. This was troubling as it was the only property bought in the name of Mr Box alone and at the time when she was applying proceeds of the Reid property for a purchase of a property, the Kingston property, in which Mr Box had no interest.

59. Given that there was no such documentation, I am not satisfied that Ms Hillman had any direct interest in the Queanbeyan factory apart from that which may come from her joint ownership of the Spence property over which a mortgage to secure a small loan was made. She has simply not satisfied me that she has any further interest.

60. The conveyancing file shows that all dealings on this property, unlike with the conveyancing files for the other properties, were all conducted by Mr Box alone without any evidence of dealings by Ms Hillman.

61. Her evidence about these transactions has been coloured by a view of the joint nature of the business of purchasing, renovating and selling the various properties and which she asserted in her affidavit, but which has simply not been substantiated by the documentary evidence. Indeed, much of the documented evidence is to the contrary of her view. I am, therefore, not prepared to rely on her assertions about these matters which are not corroborated by documents, especially where it appears there is no reason why such documentary evidence, such as documents from Westpac to show the position, could not have been obtained and where there has been no explanation as to why they have not been obtained.

62. There was some evidence about the funding of the various properties where Mr Box and Ms Hillman borrowed from financial institutions to purchase them, but none for the Queanbeyan factory, to disclose any interest by her.

63. So far as the joint account with St George Bank Ltd was concerned, it seems that there were three sources of funds paid into it. One was rental income of various amounts, $600 or more to more than $1,000 per month received from properties they owned, one was from Ms Hillman's wages of between $300 and $650 per fortnight and the third was from payments of between $540 and $3,000, but mostly $2,000 or more, by Mr Box from his personal IMB account.

64. It appears that the payments from the rent varied and, in the earlier years, was more than, but in the later years, was almost, sufficient to meet the loan repayments, although either of the funds from Ms Hillman or from Mr Box would have made up any difference.

65. The total amount apparently paid from Ms Hillman's wages for the period 31 January 2001 to 19 April 2006, when the amounts ceased to be paid into the account, was $70,500. The amounts paid by Mr Box from 23 September 2004 to 20 August 2008 was $60,460. In addition, there were earlier payments on an earlier date, namely at least $2,000 on 30 January 2001.

66. There were also two large cash payments made into the account. The first on 23 July 2001 was of $39,628.00. Ms Hillman had no record of that. She agreed that Mr Box did receive cash for his work but did not recall him depositing such a large amount; she thought never more than $5,000. She could not recall that sum coming from her personally. It seems more likely than not that it came from Mr Box.

67. The other amount was $10,000 deposited in cash on 3 April 2003. Ms Hillman gave evidence that this came from the sale of her daughter's car when her daughter went overseas. There was a timing discrepancy, but I am satisfied that this sum came from that transaction.

68. This analysis does not quite accord with Ms Hillman's assertion in her affidavit of 31 October 2012 (her fifth affidavit), made in reply to the affidavits of the defendants, where she says of the purchase of the Reid property for which a loan had been secured:

As I had regular work, I was paying part of my wage into the mortgage. For instance Graeme and I paid about $48,024.74 in mortgage payments on the Reid property between 12 February 2001 and 26 September 2003. I contributed about $27,300.00 from my wage. About $22,049.37 was paid from rent from the Spence property. Graeme earned about $166,541.62 gross over the period of the Reid property, but made no contribution to the mortgage. Instead Graeme paid for what was needed to be paid for, for building materials to renovate the investment property.

69. This does not take into account the cash deposit. It does acknowledge, however, that Mr Box made a contribution, in addition to his share of the rental income and the cash deposit, by way of the renovations for which he paid for the building materials.

70. In her affidavit of 25 August 2010 (her first affidavit), Ms Hillman identifies 2006 as when, to use her word, she and Mr Box "separated". I assume that she used that word deliberately. As I have noted above (at [15]), Mr Box moved into the flat at the Queanbeyan factory. Ms Hillman remained at her home in Latham, though she said that they "continued to relate".

71. In her fourth affidavit, Ms Hillman referred to what she did in the following terms:

I, during the course of my domestic relationship with [Mr Box] and afterwards, made direct and indirect contributions to the acquisition, conservation, maintenance, upkeep and improvements of property and [Mr Box's] accumulation of wealth.

72. She went on to list a number of domestic and business contributions she said she had made.

73. It is of significance that she was clearly accepting that the domestic relationship between she and Mr Box had terminated: the use of the word "afterwards" would not otherwise make any sense.

74. Nevertheless, despite these references, in her fifth affidavit, Ms Hillman asserted for the first time that this was not how these statements should be read. In that affidavit, she said

I now clarify that we continued in our domestic relationship until Graeme's death on 23 November 2009. We mostly lived under the same roof, except for the last few weeks of Graeme's life. When I used the word 'separate' in my earlier affidavit, I meant it in the sense that we no longer continuously lived under the same roof ...

In about August 2006, Graeme moved into the Queanbeyan factory on a more permanent basis, as it was closer to his work at that time. He and I were also renovating the Queanbeyan factory. I kept my permanent residence at Latham with my daughter. Except for this change, our relationship continued as before. We would spend weekends and other periods together, staying at either the Latham or Queanbeyan properties. We had keys to each of the properties. We paid costs on each of the properties. I looked after Graeme's dog 'yogi bear', when Graeme was away on work.

75. Her oral evidence was similar to this evidence. She said, "We were a loving couple right up 'til the day he died'". She was emphatic about their relationship that it was "never" over. She asserted that Mr Box told her that she "will always be looked after".

76. Ms Hillman did acknowledge that Lynda and Debrah looked after Mr Box when he became ill, though she qualified that with the word "partly".

77. Lynda said in her oral evidence that Mr Box had told her that he and Ms Hillman had separated; she said he "made it very clear". She said that dividing the properties, to which I shall shortly refer, was part of the separation.

78. Lynda also said that when Mr Box came to live with her, Ms Hillman came to visit once or twice a week but not regularly. She said that, when Ms Hillman's mother, who lived in Sydney, became sick, Ms Hillman went to Sydney and she did not then visit regularly.

79. Lynda also recounted discussions with her father about how his estate was to be managed after his death. He told her, she said, of the settlement he had reached with Ms Hillman which had resolved their separation.

80. It was not suggested to Debrah in cross-examination that, contrary to what she had in her affidavit asserted, she had not come from Townsville for over four months to look after Mr Box while living with him and to care for him.

81. Most significant to this issue is a document signed by Ms Hillman and Mr Box dated 26 February 2009. I shall refer to it by its title, the Termination Agreement. Because of its centrality in these proceedings, a copy of it is included as a schedule to these reasons.

82. It is expressed to be an agreement in its title and in the first line, but the operative part refers to it as a deed and the parties have executed it as a deed. It is expressed in the body of the document to be an agreement. There is no reference at the testamonium of the intention of the parties, such as "Executed as a Deed".

83. The question of whether a document is an agreement or a deed is not always an easy one to answer. Rolfe J gave detailed consideration to the issue in Meredith Projects Pty Ltd v Fletcher Constructions Australia Ltd [2000] NSWSC 493 at [123]- [176]. As his Honour said (at [123]):

Whether a document is a deed or some other type of contract is not determined by how the parties describe it, but by construing the document to see whether the parties intended that it should operate as such. Such construction may be aided by admissible extrinsic evidence. None was sought to be tendered in this case to explain how the Articles of Agreement were entered into or any other relevant matters relating to it. Therefore, as I understand it, the Court must interpret the document to decide its true nature.

84. See also 400 George Street (Qld) Pty Ltd v B G International Ltd [2012] 2 Qd R 302.

85. There was here no extrinsic evidence of the precise circumstances of the intention of the parties in this respect. Indeed, the issue was barely mentioned.

86. It does seem to me, however, that the document was a deed. I rely on the following.

(a) The use of the words "Now this Deed witnesses" before the operative clauses.

(b) The subject matter related to the settlement of the ownership of real property.

(c) There was no clear indication of consideration passing to or from either party but it was clearly intended, nevertheless, that the document be binding.

(d) The testamonium was clearly in the form to be expected of a deed rather than an agreement.

Hillman v Box as Executors of the Estate of Graeme William Box

At a glance

Court

Decision date

Source

Judgment (640 paragraphs)

Hillman v Box as Executors of the Estate of Graeme William Box (No 4) [2014] ACTSC 107 (28 May 2014)

Parties

Legislation Cited (18)

Cases Cited (34)