Whiting v Whiting [2009] NSWSC 104 | Case summary

2486/06 Douglas Edward Whiting v Dorothy Catherine Whiting JUDGMENT 1 HIS HONOUR: The plaintiff Mr Whiting claims an adjustment of property interests under s 20 of the Property (Relationships) Act 1984. The parties lived together in a de-facto relationship from about October 1968 until 25 March 2001. Before I address the issues in a more systematic way I will deal with the most important controversies at the hearing. 2 Mr Whiting brought proceedings 3963 of 2001 against Mrs Whiting and her mother Mrs Ruby Holley. He claimed remedies under s 20, and also claimed a constructive trust interest over the house property at Daphne Avenue Bankstown then owned by Mrs Holley. Mrs Holley was suffering from cancer and obtained an order for an expedited hearing, and I dismissed the proceedings on 14 June 2002 because Mr Whiting had not complied with procedural directions. Mrs Whiting died on 1 October 2002: Mr Whiting commenced the present proceedings on 26 April 2006: Mrs Holley's executrix is not a party and there is no claim for a constructive trust interest. 3 The constructive trust claim related to the house property that Mrs Holley owned at 19 Daphne Avenue, Bankstown, NSW. In her last Will, which she made on 27 June 2002, Mrs Holley gave her niece Mrs Pamela M Houghton $30,000.00 "in repayment of her loan to me". She gave the residue of her estate to Mrs Whiting. Mrs Houghton was the executrix and she obtained probate on 25 June 2003. Mrs Houghton sold the property at Daphne Avenue, the only large asset, for $600,544.58, paid the debts and liabilities and paid herself the gift of $30,000.00 (which her evidence shows settled a debt of about that amount which Mrs Holley owed to her). Mrs Houghton paid Mrs Whiting $443,587.40 which was the balance of the estate. Mrs Whiting used this to buy the house she now lives in at Picnic Point for $560,000.00, and the total cost with stamp duty and legal costs was $582,297.21. To complete the purchase she borrowed about $148,000.00 on mortgage from St George Bank and most of this debt is still outstanding. The balance owing on 30 September 2008 was $139,220.51. 4 Indirectly most of the money used to buy the house at Picnic Point can be traced to inclusion in Mrs Holley's residuary estate of the house at Daphne Avenue, Bankstown. Mrs Whiting received the residue of the estate years after the de-facto relationship ended, wholly a result of dispositions Mrs Holley made in the Will which she executed long after the de-facto relationship ended. Mr Whiting made no contribution to Mrs Whiting's acquisition of her house at Picnic Point. 5 For many years until 1993 the parties lived on a property called Seelands near Grafton. Mr Whiting's evidence is that in 1993 Mrs Holley told him that she wanted Mrs Whiting to come back to Sydney and live closer to her and said "If you can get Council permission to build a house in the back yard of my land, then go ahead and do it because this will all be yours one day anyway" or similar. He speaks of this as a promise and says that he relied on it when he built the house. He also said in evidence that he and Mrs Whiting borrowed $100,000.00 from St George Bank about 1994 and used $50,000.00 of it to construct the house called 19A Daphne Avenue on the rear of the property. (The $100,000 loan was a loan made by Advance Bank, later St George Bank, secured by a mortgage over a house at Drummer Place Seelands owned by Whiting Timberlock Homes Pty Ltd, supported by guarantees by the parties.) 6 In another statement of the circumstances Mr Whiting says to the effect that from about 1991 Mrs Whiting told him that she wanted to move to Sydney closer to Mrs Holley, that he told Mrs Holley that he could not afford to move to Sydney or to buy a block of land although he had enough money to build a house, and Mrs Holley said to the effect "If you can get the Council permission to build a house on the back part of the land, I am happy to go along with it. If you build something in the back yard it will be yours anyway". Mr Whiting gives evidence that he then built the house with sub-contractors, and says that Mrs Holley made no contribution to the costs of construction or to the physical labour. He says too that he made repairs and renovations to 19A Daphne Street while he and Mrs Whiting occupied it. He gives an extensive list of repairs and renovations. 7 Mrs Whiting gives a different account of conversations preliminary to coming to live at Daphne Street. She says she had a conversation with her mother prior to December 1993. She also says that at about that time Mr Whiting said to her to this effect: "I have spoken to your mother and she has agreed to build a house at the back of her property where we can live. We don't have any money and so Ruby is going to pay for all the materials and I will do what building work I can and subcontract the rest". 8 Mrs Whiting disputes there was any promise made about ever owning the property. She says that during construction, when materials were delivered, Mr Whiting would hand the invoices to Mrs Holley who would pay them. Mrs Whiting's evidence about what the St George Bank Loan was used for, if accepted, would establish that it was not used for the purchase of building materials. 9 Mrs Holley made a statement, purportedly an affidavit, in the last weeks of her life after Mr Whiting's proceedings against her had been dismissed. She denied giving any kind of assurance to Mr Whiting about his having any entitlement. She denied that he had paid for materials. It is not disputed that he himself worked on the construction of the second house as a builder. 10 Mrs Holley's statement, made for the purposes of contemplated future proceedings and in evidence without the benefit of any opportunity to cross-examine her, has to be approached with considerable caution, but the main pillars of what she says are borne out by other evidence. 11 Mr Whiting was made bankrupt by a sequestration order on 17 June 1998 on the petition of the Commonwealth Bank, to which he had given a guarantee of finance to Gokit Pty Ltd, a company he controlled which had enterprises including developing the land at Seelands. In his bankruptcy it was, at the least, a matter for consideration and investigation whether Mr Whiting had any constructive trust or other interest in the property at 19A Daphne Avenue, having regard to whatever part he had played in building the house. If moneys lent by St George Bank to Whiting Timberlock Homes Pty Ltd ("WTH") had been used to purchase materials for the construction it would I suppose be for consideration whether that company had any claim against Mrs Holley or her property. Mr Whiting and Mrs Whiting each owned half the shares in WTH when Mr Whiting became bankrupt: so, although no evidence deals with what the trustee in bankruptcy Mr Donnelly had in mind, it seems well possible that he may have considered bringing some proceedings as bankruptcy trustee or in the name of WTH, half the shares of which had passed to him. 12 Mr Whiting was examined in bankruptcy before a Deputy Registrar of the Federal Court on 10 February 1999. While being examined Mr Whiting said to the effect that WTH paid for the construction of the cottage, for the actual building materials, that he built it and nobody paid him. He said that WTH had no arrangement with Mrs Holley that he knew of. Introducing some qualification he later said that he thought that the money for the materials came from WTH and that the only other source he could think of was his wife's wages. He also said that there would have been some money from the St George Bank Loan to build a cottage but he could not say how much. No records were kept. He was asked: (transcript 56) And do you regard the ownership or do you regard the five-room cottage at Bankstown - do you regard that as an asset of Timberlok? --- No. Whose asset is that? --- That's got to be my mother-in-law's. Timberlok simply provided her with a five-bedroom cottage by way of an asset, did it? --- No. I think the way you're putting it is the way you want to put it. In reality. Tell me how else it can be put as a matter of common sense? --- That lady gave us somewhere to go so we didn't have to pay rent. No, she didn't? --- Yes, she did. She allowed you to build a house on her land? --- That's correct. What did she give you in return for Timberlok building a five-bedroom cottage on her land? --- Nothing. Not a thing. Why should she? She stopped us from - if we had to go out and pay rent somewhere, we would have paid two or three hundred dollars a week. 13 He was asked: So, the position is then that you, through your company, Timberlok, have provided your mother-in-law with a five-bedroom cottage on her land. Did you say there was no agreement between the company and your mother-in-law relating to that construction? --- No. Definitely not. 14 In my finding, Mr Whiting and Mrs Whiting were in financial difficulties in investments in and near Grafton, they needed to leave Grafton, Mrs Whiting wished to live near Mrs Holley and Mrs Holley wished her to do so, Mrs Holley permitted them to live first in her house, but later in the second house which she allowed Mr Whiting to build on her land. Mrs Holley paid significant sums towards the building materials, perhaps all of the costs of the building materials. Mr Whiting did not pay towards the building materials. It is possible that some money advanced by St George Bank and owned by WTH was used for this purpose, although that has not been clearly proved. Mrs Holley's affidavit denies giving him any kind of promise or assurance and also denies that he paid for the building materials. What she said in that statement was to the effect that she paid for the building materials. What she said about this is borne out by evidence of Mrs Houghton to the effect that Mrs Houghton advanced Mrs Holley money, which Mrs Holley was to repay out of her estate: and Mrs Holley's Will says that the $30,000.00 gift was in payment of a debt. 15 Having regard to these considerations, Mr Whiting's evidence on affidavit and before me, and his evidence on examination in the Federal Court and also to my adverse impression of him as a witness, I find that there was no promise or arrangement between Mr Whiting and Mrs Holley under which he had any entitlement or expectation of any interest in the property at Daphne Avenue, either during her lifetime or afterwards. In my finding Mr. Whiting had no constructive trust or other property interest in the house and at no time had any prospects of being awarded a remedial constructive trust by the Court. 16 Mr Whiting gave me a very poor impression while giving evidence. He gave evidence in a highly combative way, with some expressions of hostility. I do not regard his evidence as reliable. 17 Mr Whiting gained considerable advantages from his work in building the cottage, as he had since 1993 lived in Mrs Holley's house without paying rent and when the cottage was built he occupied it, without paying rent and without paying all the outgoings, until she required him to leave on 25 March 2001. The advantages to him were considerable. They arose from his dealings with Mrs Holley, not with Mrs Whiting. He has overstated what he put in. What he got out before Mrs Holley called the police and told him to go at least balanced out what he put in. 18 In the circumstances, and addressing s 120(1)(a) considerations, what is just and equitable does not in my judgment require that any allowance be made to Mr Whiting when making an order adjusting property between the parties in respect of anything he did in building or later maintaining the property at 19A Daphne Avenue. He did it to meet his present needs, he got free housing for seven years or more, and there was and is no claim in justice for him to get anything else. 19 At the time of separation Mrs Whiting owned all the shares in WTH. Until Mr Whiting's bankruptcy, each owned half the shares: that had been the arrangement throughout the company's existence. The company was the vehicle through which Mr Whiting carried out building work. He gave an account of its affairs in his evidence in the Federal Court according to which the business used up all the revenue. Before you were made bankrupt, did you enter into written contracts in the name of Whiting Timberlok Homes Proprietary Limited? -- I don't think so. Really, I am not sure about that. Did you quote in the name of the company or in your own right? -- I think it might have been both, actually. Mainly, it would've been the company. But anyway, any money that did come in, went into the company; it didn't come to me. So you say the company, yes. Right. Now money that came in went into the company account. Agreed? -- Yes And the company -- out of the company account went expenses such as purchasing plumbing supplies, and whatever else was required. Do you agree with that? -- Yes. What happened, so far as wages for you or remuneration for you, were concerned? -- Well, there wasn't any. Why wasn't there any? -- Well, that's a good question that, but there has always been - don't get me wrong - the company - we've always made money, but the money just disappears before your eyes. It has either been spent on court cases, or it has been spent on insurances, or running of vehicles and what have you. So far as me drawing a wage, there hasn't been enough money there to draw a wage, but I mean, the vehicles still run. The petrol still goes into it. I mean, all those sort of things to happen. Just pardon me for a moment? -- Yes. Was there any profit made between '93 and '98? -- Well, if there was, I don't know where it has gone. So do you say to the Registrar you never took any regular drawings? -- No. Before '98 when you were made bankrupt. What is the arrangement between you and the company since you have been made bankrupt. Are you given wages? How does it work? -- There's been no agreement. All right. So in other words, everything is continuing the same as it was before? -- I believe so. Now could I go back to the extensions on the property at Daphne Avenue, Bankstown. That property you believe to be owned by your mother-in-law? -- Yes, it is. 20 After his bankruptcy Mr Whiting continued to work, still using WTH as the vehicle. Mrs Whiting was involved as she was also a shareholder and (it seems) a director, perhaps the only director, and funds received by the company and paid out were banked or dealt with in an account of hers, as well (it would seem) as in account in the name of company. Not all the funds were banked. Mrs Whiting's signature thus appears on cheques, but her evidence was to the effect that she had no real knowledge of affairs and acted under the control of Mr Whiting. 21 In October 1999 Mrs Whiting bought the shares formerly owned by Mr Whiting from the bankruptcy trustee Mr Donnelly, in whom the shares had vested upon the bankruptcy. The price paid was $75,000.00. According to the evidence of Mrs Whiting and of Mrs Pam Houghton, her cousin, who was then a bank officer, the $75,000.00 was paid to Mr Donnelly by bank cheque which Mrs Houghton obtained, from her own resources, in an arrangement to lend that amount to Mrs Whiting. The arrangement is evidenced by a written loan agreement, prepared by solicitors. 22 According to Mr Whiting's case this was not the true source of the $75,000.00 which was paid for the shares. He alleges that Mrs Whiting put money into Mrs Houghton's control, and into Mrs Houghton's bank account, by misdirecting funds in several ways and in several different instalments; one of these was by taking money in cash out of a safe in the house at Daphne Avenue which Mr Whiting and Mrs Whiting then occupied. It is not clear whose money this is said to have been: it is hardly likely to have belonged to Mr Whiting himself, in his circumstances as a bankrupt, and if it belonged to WTH it is not Mr Whiting's business to complain if it was misappropriated, because he did not have any interest in the company at that time. The most probable origin of the funds in the safe were that they arose from work for which WTH was entitled to payment. If one real source of funds to pay for the shares was money out of the safe as Mr Whiting alleges, that would not be a contribution by Mr Whiting to Mrs Whiting's acquisition of half the shares and consequent control of WTH. 23 I do not accept the account, given by Mr Whiting in paragraph 18.6 of his principal affidavit, according to which Mrs Whiting told him, not that she was to buy shares in WTH but that she had to pay the official trustee's firm $75,000.000 "because they say they are going to take my mother's home. I will pay them from the money in the safe and will take the rest out of the business bank account". In Mr Whiting's evidence he took $45,000.00 in money from the safe in the house at 19A Daphne Avenue and gave it to Mrs Whiting, and she told him that she and her mother would put the money in Mrs Houghton's account, "or similar". He mentioned other sources from which he conjectured money was obtained to pay to Mrs Houghton. I do not believe what he says about these things. I do not believe that he gave approximately $45,000.00 of the money in the safe to Mrs Whiting, and I do not believe that Mrs Whiting received any such sum, or that she put it and other sums into Mrs Houghton's control, so as to give colour to the $75,000.00 being advanced by Mrs Houghton. Mr Whiting's narration, which has elements of fantasy, is far outweighed by Mrs Houghton's evidence: she appeared to me to be a sober and careful witness, a person very unlikely to be constructing a sham transaction, and I find that she was truthful about the origin of the money advanced. An aspect of what Mr Whiting says which I regard as strikingly improbable is Mr Whiting's claim that he did not know at the time that Mrs Whiting was acquiring the shares in WTH. However this is significant only as to his credibility. 24 I am satisfied and I find that Mrs Whiting bought the shares using money lent to her by Mrs Houghton. I do not doubt the evidence of Mrs Houghton and I regard it as clear that she was the true owner of the money which she advanced. 25 In my finding Mr Whiting's claim or theory about the true source of the $75,000.00 is luridly improbable. Evidence of Mrs Whiting, and also the evidence of Mrs Houghton, showed that the loan transaction was genuine, and they adhered to their evidence firmly. My confidence that their evidence on these subjects was accurate is not disturbed by what were said to be anomalies in their explanations of some banking transactions from about that time: or by any difficulties in their explaining banking transactions from later times. It is not surprising, and in no way suggests that their evidence on the main subject was fabricated, that they were unable to explain in detail other transactions recorded in their bank accounts about that time: or at later times. It would be unremarkable that cousins with a good relationship had other transactions or that there were other aspects of this transaction which they are unable to explain after 10 years. 26 Mrs Whiting is a witness of much of whose evidence I have reservations, as she is plainly capable of poorly considered, unconsidered or rash conduct: however Mrs Houghton, who had a career as a bank officer holding responsible positions, made a strong impression of sincerity as a witness on me and she is very unlikely to have been part of a wholesale fabrication of a financial transaction involving a significant amount of money. The fabrication must have dated back to the time of the transaction itself, and to the date of the Loan Agreement, 8 October 1999. It is extremely improbable that at that date, well before the separation, Mrs Whiting and Mrs Houghton were conspiring together to produce a body of false information adverse to Mr Whiting's interests. 27 The principal asset of the parties at the termination of the relationship was the entire shareholding in WTH. Mrs Whiting owned all the shares but they should be considered in two equal parcels. For many years, as long as the company had operated, each of the parties had owned half the shares. Their ownership of the shares resulted from their decades of shared life, shared economic activity and business interests, and each should be regarded as having made an equal contribution to the ownership of his or her parcel of shares. However Mr Whiting had lost his shares to the bankruptcy trustee and Mrs Whiting had bought them from the trustee. 28 The business of WTH came to an end when the parties separated. Soon after the separation Mrs Whiting, who was the only shareholder and was in complete control of the company's affairs, informally wound it up and disposed of its assets. The company's principal asset was the house at Drummer Place on the Seelands property, which was sold to an unrelated person by contract dated 29 May 2001 for $193,000.00. After payment of commission, costs and the secured debt to St George Bank the proceeds of the sale were $103,422.83. After some further expenses and repayment (including interest) to Mrs Houghton of $79,263.07, the balance to Mrs Whiting was $23,996.52. Mrs Whiting also sold a Mazda truck which was registered in the name of WTH and used the proceeds of $13,500 to pay some outstanding creditors of the company. She did not wind the company up in a regular way, and she did not prepare accounts. Creditors could have complained of this, but she must have paid them all. When Mr Whiting sued her five years later she did not have accounts, and she did not have all the details. It was claimed that this showed lack of frankness or concealment, but this comment had no basis. 29 Mr Whiting's counsel made severe criticisms of Mrs Whiting's not having accounts or any complete or written explanation of how she wound up the affairs of WTH, and what in detail she did with its money. It was irregular, in terms of Companies Law, to wind affairs up as she did. The people to whom she was responsible were the creditors, whom she says were paid, and they have not wound the company up properly, and herself as sole shareholder. It was over five years after the separation brought the company's business to an end that Mr Whiting brought these proceedings. I do not think that Mrs Whiting was reasonably called on to construct a set of accounts when these proceedings were brought against her: the company's affairs were long over, dead ashes, and she explained them as well as she could. No adverse influence or imputation of concealment or failure to make frank disclosure is reasonably available. 30 A significant amount of cash was held in the safe at 19A Daphne Avenue at some time. Mr Whiting's evidence was that, in association with paying the bankruptcy trustee $75,000 because the bankruptcy trustee said he was going to take Mrs Holley's home, (but the event is more likely to be associated with the purchase of the WTH shares) he took about $45,000.00 from the safe and gave it to Mrs Whiting. The evidence of each shows that in the period leading up to separation there were rolls of cash in the safe, but neither gives evidence establishing what the amount was, and each denies removing it, contending for the inference that the other took whatever cash was there, as each had a key. Mr Whiting's evidence does show that at some time, he says some time in 2000, there was about $45,000.00 in cash in the safe. About two years after settlement he had $80,000.00 available to contribute to buying other property: he says he had accumulated this from working during the period after separation. This is extremely improbable, as he carried very little with him when the separation occurred and he left Daphne Avenue under the supervision of Police, and during the intervening two years he had had two overseas trips, apparently holidays. He may well have accumulated some money from working, but it is unlikely to have been as much as $80,000.00. I infer that he took a significant sum of ready cash from the safe, the amount of which cannot be assessed. The figure of $45,000.00 which he says he took from the safe in the year 2000 is an indication of the scale of the amount involved. Precise finding is impossible. 31 At separation Mrs Whiting had other assets which should be seen as produced by contributions of the parties in the course of the relationship. One was a collection of jewellery. This was the accumulation of many gifts which Mr Whiting had made to her over many years. The jewellery or most of it was purchased by him during overseas journeys, which he took about once a year. He gave no evidence of the value of the collection of jewellery and did not give evidence of what it had cost, evidence which only he could have given as he made all the purchases over many years. He asserted on affidavit that the value was $50,000.00 to $100,000.00 but I rejected his evidence of value as he had no qualification to give the evidence. In June 2001 Mrs Whiting entered an agreement with Mrs Houghton to sell her the jewellery for $5,000.00: but this was treated as a pledge or hypothecation, and she received the jewellery back on repaying the $5,000.00. At a time when Mr Whiting's contention about its value was known to Mrs Whiting she says that she in effect destroyed the jewellery by throwing it down the toilet after what she seems to have regarded as a disheartening experience at a mediation session. I regard it as extremely unlikely that she in fact disposed of jewellery this way: at that time she did not have sufficiently large resources to treat jewellery which certainly had some value and for all she knew had a large value in this way. I regard it as much more probable that she disposed of the jewellery in some way which yielded value for it, or that she still has it. However there is no basis for assessing its value. Like the cash which Mr Whiting took at about the time of separation, it is an economic resource the value of which cannot be known, and it is or last was in her hands. In my judgment the only just way to treat these is not to have regard to the value of either the jewellery or the cash. 32 The household contents at Daphne Avenue remained there under the practical control of Mrs Whiting. Mrs Whiting said in 2007 that the furniture was 25 years old and had fair wear and tear for its age. She made a written agreement with Mrs Holley dated 12 June 2001 according to the terms of which she sold the contents to Mrs Holley for $167.40. However the true nature of this arrangement was a pledge or hypothecation of the furniture and Mrs Holley's interest in it ceased when she was later repaid $167.40. Eighty-six items are listed in this Loan Agreement. There is no reliable evidence establishing value. The proceeds of sale of second hand furniture can be disappointing but a lot of the items, from the brief descriptions in evidence, probably had some saleable value and should not be regarded as nominal. Some years later Mrs Whiting sold some of them at auction for $3000. She retains others. I must either take a fairly arbitrary approach or fail to give proper regard to these items, and I will adopt a value of $10,000.00 for them as at the time of separation. Included in the list are three chandeliers. Evidence returned to these several times: Mrs Whiting's evidence was that she sold them to a relative for $1,000.00 (or perhaps two of them). I have had regard to them in making my arbitrary assessment of $10,000.00. 33 Other assets which existed at the time of separation were: Mr Whiting's tools of trade including a diamond cutter. Mrs Whiting's evidence is that these were left at the Seelands property and the Daphne Avenue property and remained there before the respective sales of the two properties, and that she was required to disposed of them. She incurred cost in disposing of them, but they were not of any value. I did not attribute any value to them.

Whiting v Whiting

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Judgment (21 paragraphs)

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