Pike v Campbell[2012] QSC 389

SUPREME COURT OF QUEENSLAND

HIS HONOUR:  Christopher Neil Butler, the deceased, died at Mackay on 18 September 2011.  He died intestate.  On 2 April 2012 letters of administration were granted to two surviving sisters, Susan Marie Pike and Karen Elizabeth Butler (Exhibit 41).

On 22 May 2012 Catherine Faye Campbell (Ms Campbell) applied in proceedings S215 of 2012 out of the Townsville Registry to revoke the letters of administration (s 6(1) of the Succession Act 1981).  She claims priority (UCPR 610) as the surviving spouse of the deceased, thus invoking s 6(3) of the Succession Act.

This is the trial of three proceedings.  The first is the claim by Ms Campbell to revoke the letters of administration in S215 of 2012.  The second is a claim in S314 of 2012 out of the Townsville Registry by the administrators against Ms Campbell for orders that she deliver up documents and property claimed to be owned by the estate.  The third is a claim in S25 of 2012 out of the Mackay Registry by the administrators for an order requiring Ms Campbell to transfer the house and land property to them.

I made orders that all three matters be tried together and that the evidence at the trial, subject to any issue of law as to relevancy, be evidence in the three matters.

The deceased and Ms Campbell were never married.  Ms Campbell claims to be his spouse within s 5AA of the Succession Act and UCPR 596 as a "de facto partner" of the deceased within s 32DA of the Acts Interpretation Act 1954.

This issue is central to the resolution of the proceedings for revocation of the letters of administration and for the standing of the administrators and their entitlement in proceeding S314 of 2012 for the delivery up of the documents and property which is claimed to be estate property.

It is also of relevance in proceeding S25 of 2012, which is the claim in respect of the house and land, as it clarifies the standing of the administrators as plaintiffs, but it should not be forgotten that there are other issues in this action, being the claims to a resulting trust and that of undue influence.

Turning to the spouse or de facto partner issue, there are several issues that arise, whether the deceased and Ms Campbell were de facto partners, that is that they had lived together as a couple on a genuine domestic basis within section 32DA of the Acts Interpretation Act.  That involves a consideration of their circumstances, including those mentioned in s 32DA(2) that may be relevant, and also, importantly, whether they had so lived together for a continuous period of at least two years, ending on the date of death (see s 5AA(2)(b)(ii) of the Succession Act and also UCPR 596).

It is convenient to deal first with the last mentioned issue.  For practical purposes the question is, am I satisfied that from at least 18 September 2009 (two years before death) the deceased and Ms Campbell lived together as a couple on a genuine domestic basis?

Ms Campbell's affidavits do not support such a conclusion.  In her affidavit (Exhibit 9, at paragraph 3) she swore:

"We began living together on a genuine domestic basis in December 2010."

Further, in her next affidavit (Exhibit 10, at paragraphs 20 and 21) she swore:
 

"The relationship was going extremely well and in September 2010 we started making plans to move to Mackay.  We were all very excited.  I promised my mum that I would spend Christmas with her and her partner, and my uncle and aunty, because it was there [sic] first Christmas in Australia, we spent the day in Mt Cotton.  The car was packed and the boys and I drove to Mackay on Boxing Day.  Chris had been asked to go to Sydney to have a family Christmas but he declined 'because he was waiting for us to arrive'.

We arrived on 27 December 2010.  This is when we commenced living together on a genuine domestic basis."

Ms Campbell's evidence was that their relationship commenced (including intimacy from the very beginning) in August 2009 and that it was continuous from then, and that it was an exclusive relationship.

In her affidavit, filed on 19 June 2012 (Exhibit 10), she gave an account of their first contact by phone in February 2009 (paragraph 8) and of several visits by her to Mackay (paragraphs 10 to 15) leading to a form of commitment on 30 August 2009 (paragraph 18) but her affidavit (Exhibit 10) demonstrates that no discussion with a view to making plans for a joint life occurred until September 2010 (paragraph 20).  The reason for this was because she was unwilling to uproot and unsettle her young children, she wanted to be sure (paragraph 19).

Even if I were to accept Ms Campbell's claim in her affidavits (Exhibits 9 and 10) that she and the deceased were in an intimate and committed or exclusive relationship as couple from August 2009 until September 2010 at face value, I am not persuaded that she and the deceased were "living together as a couple on a genuine domestic basis" on and from August 2009.

By reference to the criteria established by s 32DA(2)(a) of the Acts Interpretation Act, there is no evidence of a common residence mentioned in subparagraph (a), there is no evidence of financial dependence or interdependence or any arrangement for financial support as indicated by subparagraph (d).  There was no joint or common ownership or use or acquisition of property, as suggested by subparagraph (e), and there was not any sufficient degree of mutual commitment to a shared life including the care and support of each other demonstrated, as suggested by subparagraph (f).  Nor was there evidence of a joint care and support of children, nor the joint performance of household tasks, coming within subparagraphs (g) and (h) of that subsection.  See further KQ v HAE [2006] QCA 489 at paragraphs [13] to [20] and FO v HAF [2007] 2 Qd R 138 at 148 to 150 in the reasons of Keane JA, particularly at paragraph [21] and paragraphs [24] to [26].

There is a considerable body of evidence that contradicts Ms Campbell's account.  The indication from the bank and credit card records of both do not support the claim that she made a number of visits to Mackay or that he made a number of visits to her at Upper Coomera after August 2009 until the move in late December 2010.

The first transaction on her ANZ access account (Exhibit 23) that suggests her presence in or near Mackay was on  29 December 2010.  The first visa transaction on her visa account after April 2009 that suggests her presence in or near Mackay was in April 2011 (see Exhibit 24).

There are no entries in the deceased's records (see Exhibits 25 and 26) that place him at or near the residence of Ms Campbell at Upper Coomera, though there are transactions in August 2010 that suggested he was in South East Queensland. Nor is there evidence in the phone records of the couple (Exhibits 19 to 22) that the couple communicated during the Christmas/New Year period in 2009/2010 but during that period Ms Campbell made eight calls to New Zealand and sent a text message to a former lover (on Ms Campbell's account), a Mr Jeremy Johnson.

The phone records are telling.  Until 29 October 2010 there were no phone calls to the deceased from Ms Campbell's landline at Upper Coomera.  The deceased made some calls (five) from his landline to Ms Campbell's phone at Upper Coomera in February 2009, but the next call was not until January 2011 to Ms Campbell's mobile.  The first telephone call or SMS from Ms Campbell's mobile phone to either the deceased's mobile phone or his home phone was on 30 December 2010.

Ms Campbell's response to that evidence was that there were many phone calls, that they used phone cards and that she had other mobile phones.  There is some evidence that phone cards may have been used and of other phone numbers (see Exhibit 18) but no corroborative evidence of any calls in any number (as may be expected between a committed and intimate couple) was tendered.

There is other evidence from the phone records that is suggestive.  Ms Campbell gave evidence that she drove to Mackay in early April 2009 and stayed with the deceased for two days but her mobile phone records (Exhibit 20) record calls made at Oxenford, Helensvale and Hope Island on most of the days in the period that she said she was in Mackay.

In her affidavit filed 28 June 2012 (Exhibit 11, at paragraph 5), Ms Campbell admitted to a "brief rebound liaison" with Mr Jeremy Johnson between July 2008 and January 2009.  In an affidavit (Exhibit 35) Mr Johnson swore that he lived with Ms Campbell at her Upper Coomera residence from October 2008 to June 2010.  Ms Campbell denied this when she was cross-examined but she did not require Mr Johnson for cross-examination and his affidavit came before me unchallenged.

Ms Campbell was told that this decision not to require Mr Johnson to be cross-examined, and not to cross-examine him, might have consequences for her in the action.  The solicitors for the estate drew this to her attention in communications and I raised it with her on the second day of the trial, as the transcript of the trial towards the end of the second day demonstrates.

Ms Campbell admitted in cross-examination that she and Mr Johnson travelled together to Thailand in October 2009 and to New Zealand in March 2010 but she maintained that their relationship had ended on 23 January 2009.

Phone records of communications between Ms Campbell and Mr Johnson are illuminating.  Ms Campbell's mobile phone records (Exhibit 20) show that between 5 December 2009 and 20 October 2010 there were 815 SMS messages and 225 phone calls with Mr Johnson.  In the view I take, this evidence leads support to Mr Johnson's account in preference to Ms Campbell's.  I reject Ms Campbell's evidence that her relationship with Mr Johnson ended in January 2009.

When the evidence of the contact with Mr Johnson is compared with the evidence of the very few phones calls between Ms Campbell and the deceased in this period, together with the other evidence I have mentioned, I do not accept Ms Campbell's contention that she and the deceased were in a loving, intimate and exclusive or committed relationship at any time between August 2009 and December 2010. 

I find that Ms Campbell and the deceased were not de facto partners within the meaning of that term for a continuous period of two years ending at the date of death on 18 September 2011.  Consequently, she was not a spouse of the deceased within the meaning of that term contained in section 6 of the Succession Act or UCPR 610. 

This finding is sufficient to enable me to make final orders in proceeding S215 of 2012, which is Ms Campbell's claim for revocation of the letters of administration, and in proceeding S314 of 2012, which is the administrator's claim in respect of the estate documents and property.  But the issue of the nature of the relationship from December 2010 and through 2011 until 18 September 2011 is relevant to the administrator's claim in respect of the house and property which is proceeding S25 of 2012. 

Ms Campbell's case was that from December 2010 until 18 September 2011 she and the deceased and her two boys lived together as a family in Mackay.  Her case was that she and the deceased shared a bed and enjoyed the intimacy of a couple in love.  Her case was that they amalgamated their household contents and shared household duties and made plans for the future as a family (see generally Exhibit 9, Exhibit 10 at paragraph 28 and following and Exhibit 11 at paragraphs 28 to 32). 

Her evidence was that the deceased asked her to marry him in May 2011.  They never married.  Her evidence was that in May the deceased reinjured his back and because he was finding it increasingly difficult to work they made plans together so that he could retire. 

There is some evidence supporting Ms Campbell in the affidavits of P M Rainbow-Smith (Exhibit 3), Brent Rainbow (Exhibit 4), G E Johnson (Exhibit 5), G M Sturgeon (Exhibit 6), J A Watson (Exhibit 7) and A K Watson (Exhibit 8) and in their oral evidence (to the extent to which they could give admissible evidence) that corroborates some of the plaintiff's evidence.  They observed acts of tenderness between the deceased and Ms Campbell and that the deceased played with and seemed to enjoy the company of the children. 

But there is evidence to contradict the account of Ms Campbell in important respects.  The evidence of E A Sanderson came before me by affidavit (Exhibit 39).  Ms Campbell did not require her for cross-examination hence the evidence was uncontested.  At paragraph 10 of Ms Sanderson's affidavit she referred to a conversation she had with Ms Campbell at the house in Mackay on 26 February 2011. 
 

"During that time she told me that her and Harry (the deceased) were just mates and that her and her children were just staying at Harry's until they could get another house.  She told me that they were just friends and they did not sleep together."

Moreover, Ms Sanderson did not see any signs of affection between the two as a couple (see paragraph 12 of Exhibit 39).

Evidence to similar effect is found in the affidavit of R M Dally (Exhibit 34).  At paragraph 7 she swore as to a conversation with Ms Campbell.

"She told me that Chris was really a nice guy and was great with the kids but they were not in a relationship."

The affidavit of L T Pike was tendered (Exhibit 36) and he was not cross-examined.  At paragraph 45 he swore that in his dealings there was no indication of a de facto relationship or any other relationship. 

The evidence of Neil Davies (Exhibit 29) was that on the occasion of a visit in April 2011 he saw no signs of intimacy, nor did it appear the couple were sharing a bedroom that night.  His evidence is supported by his daughter, Lucy (see Exhibit 30).  Lucy Davies's evidence was not challenged. 

The evidence of J D Munro (Exhibit 32 at paragraph 69) was that the deceased told him on an occasion three or four weeks before he died:

"He also told me at that time he was sleeping in another bedroom and she was spending all her time on Facebook on the couch."

The evidence of N C Parsloe (Exhibit 31 at paragraphs 33, 34 and 35) was:

"I never saw them engage in any sort of behaviour that would have led me to believe they were in a de facto relationship.

I never saw them holding hands, kissing or saying goodbye to each other affectionately.

There didn't appear to be any affection of that sort between the two."

Earlier in my reasons I referred to evidence from the bank accounts and the phone records that contradicted Ms Campbell's evidence.  That included evidence of Mr Jeremy Johnson concerning their relationship. 

When making my findings concerning the relationship before December 2010, I deliberately refrained from making an express finding concerning the credit worthiness of Ms Campbell.  Counsel for the administrators submitted that I should not accept her evidence on any issue unless she was corroborated by reliable evidence.  It was submitted that when cross-examined, Ms Campbell was evasive, non-responsive, self-serving and implausible. 

In passing, I note that an example of her implausibility on one aspect was her statement that someone else may have been using her mobile phone when she was cross-examined concerning the number of phone calls and messages with Mr Jeremy Johnson.

There were aspects of her evidence in cross-examination when the description by counsel was borne out.  Though to be fair, the cross-examination was vigorous at times and may have been provocative in her eyes. 

At this juncture I should state my impression of Ms Campbell from her conduct before me.  She impressed me as being highly intelligent.  She has a strong and robust personality.  She conducted herself skilfully at times.  Her cross-examination of witnesses was often clever and demonstrated that it was well planned.  She was not familiar with trial procedure but she demonstrated an understanding of the issues and appeared to be familiar with the detail of the evidence. 

In support of his submission, Mr Cullinane, in addition to the aforementioned evidence, pointed to Ms Campbell's evidence concerning three documents.  The first was Exhibit 15 which is the document recording the sale of the deceased's Nissan Patrol vehicle subsequent to his death.  He submitted that it was implausible that the deceased would sign such a document and leave such a form undated in the glove box of the car as was suggested by Ms Campbell. 

He referred to the execution of the trust deed (Exhibit 16) and he invited comparison between the signature of Ms Campbell's sister, who is named as the settlor under the trust, with the sister's signature shown in her passport which can be found at Exhibit B to Ms Campbell's affidavit (Exhibit 11).  The evidence is that the settlor was not in Australia at the relevant time when the trust deed was apparently executed.  The signatures bear no resemblance.  In fact, Ms Campbell's evidence is that the trust may not have been settled in that no payment was made by her sister, the settlor. 

Mr Cullinane also referred to a Centrelink document (Exhibit 17) and particularly to the answer to question 40.  This document was completed by Ms Campbell.  It is incomplete in its disclosure of the bank accounts that were known to her at the time. 

In the result, I do not regard Ms Campbell as a witness of credit.  I am not prepared to accept her evidence unless it is supported by reliable evidence. 

I should also mention the evidence of Steven John Matthews.  He gave oral evidence and two affidavits were tendered (Exhibit 1 and Exhibit 2).  His evidence was that Exhibit 1 was false and that he swore it at the request of Ms Campbell who offered him $1,000.  He gave evidence that Exhibit 2 was truthful.  Curiously, Mr Matthews was called by Ms Campbell which made it easy for Mr Cullinane to explore issues relating to Ms Campbell's credit with this witness under the guise of cross-examination. 

I am not persuaded I should accept Mr Matthews' evidence.  He did not particularly impress me.  On the issue of who, as between Mr Matthews and Ms Campbell, should be preferred concerning their dealings, I am unable to conclude. 

The house and land, the subject of proceeding S25 of 2012, is at 16 Aura Street, McEwens Beach, Mackay, more particularly it is lot 40 on registered plan 379336.  Until 20 September 2011 the deceased was the registered proprietor.  The land was subject to a registered mortgage to the National Australia Bank. 

In support of her case, Ms Campbell pointed to the transfer document signed by the deceased (Exhibit 16) and the related document "Property Information (Transfer)" which is form 24 and forms part of Exhibit Q to Ms Campbell's affidavit (Exhibit 10). 

Ms Campbell gave evidence that the deceased prepared both documents.  There is no corroboration for that and I reject it.  There is no other evidence the deceased was aware that the form 24 described the transfer as a "de facto gift" (see section 4 of Exhibit Q to Exhibit 10) or that it described the relationship as a "de facto relationship" (see section 6 of Exhibit Q to Exhibit 10).

Concerning the transfer (Exhibit 16) Mr Gregory Clark swore an affidavit (Exhibit 28) and gave evidence.  He is a Justice of the Peace.  He witnessed the signatures of Ms Campbell and the deceased on the transfer, but by reference to his note of the event in his log book (see Exhibit GAC2 to Exhibit 28) his evidence was that he understood the transfer was a 50 per cent interest from the deceased to Ms Campbell (see also Exhibit 28 at paragraph 12). 

It is uncontentious that on 20 July 2011, the date of execution, there was no handwriting in section 5 to the effect that the transferee was Ms Campbell as the trustee of a family trust.  But Mr Clark's evidence goes further, if there had been a reference to children as transferees in section 5, he would have noted it.  Mr Clark impressed me as an honest and reliable witness.

The transfer (Exhibit 16) by its terms effects a transfer of the entire interest of the deceased in the land.  On 20 September 2011 (two days after death) the transfer in favour of Ms Campbell as trustee was registered in the land title register (see Exhibit 40), noting that it should be read with the transfer document (Exhibit 16). 

Ms Campbell gave evidence that the deceased wanted to transfer his interest in the land to her and her children. She swore that as part of that transaction she was to pay out the mortgage debt owing by the deceased, secured against the land.  Ms Campbell submitted that this transaction, as evidenced by the transfer and form 24, supported her case that they were de facto partners and that it evidenced mutual commitment and a mixing or sharing of property interests.  But there is evidence that the deceased thought the transaction was materially different. 

Justin Munroe gave evidence.  His affidavit (Exhibit 32) records a conversation with the deceased that suggests a different understanding.  Ms Campbell consented to paragraph 69 going into evidence. 

About three or four weeks before the deceased died, Mr Munroe called on the deceased And at paragraph 69 of Mr Munroe's affidavit he swore:

"We had a cup of coffee and a yarn and he told me that he bought Catherine a car for $25,000.  He also told me at that time that he was going to sell Catherine half the house for $240,000, which included payment for the car of $25,000.  He told me about an investment he had in Dubai, and also that he had sold all his shares that he had held in Australia.  I never heard Chris express any feelings about her to me, despite the fact that I'd asked him on a couple of occasions.  All he said to me was that he was glad that the children had a roof over their heads.  He also told me, at the time, that he was sleeping in another bedroom and that she was spending all of her time on Facebook on the couch."

Noel Cecil Parsloe swore an affidavit (Exhibit 31) and gave evidence.  He said the deceased told him he was selling one half his house to Ms Campbell. 

In his affidavit Mr Parsloe (at paragraphs 36 to 40) swore:

"A couple of months before Harry passed away, I was at the house and he told me that he was going to retire shortly.

He also told me that he had purchased a car for Catherine, and that he was selling her half of his house.  He told me that Catherine was getting a loan to repay him for her half of the house and for the cost of the car.  He had told me previously that he had the house valued at $400,000.  I expressed some surprise and shock that he would enter into a deal like this. 

Harry had also told me that he didn't want to die in Australia and that he wanted to go back to New Zealand for a few years, but that he wanted to retain ownership of half the house and when he had made up his mind to move back to New Zealand permanently, he would sell his half of the house."

Mr Cullinane submits and I accept that this evidence is admissible as against pecuniary interest as an exception to the rule against hearsay, see Lenehan v Queensland Trustees Ltd [1965] Qd R 559 at 573. 

Even if my ruling upon the admissibility of the affidavit evidence of Mr Parsloe is wrong, accepting the evidence of Mr Clark, Mr Munroe and the other evidence of Mr Parsloe as I do, I do not accept that the deceased intended, when he signed Exhibit 16, to transfer the entirety of his interest in the house and land.  In the circumstances of my acceptance of the evidence of the witnesses Clark, Parsloe and Munroe, I find that the deceased did not intend to gift any interest in his house and land to Ms Campbell or her children. 

While I accept there is some independent evidence of some affection shown by the deceased to Ms Campbell, and that he was well disposed to her boys, the evidence does not persuade me that at any time before death the deceased and Ms Campbell were de facto partners within the meaning of s 32DA of the Acts Interpretation Act.  The circumstance that I reject the evidence of Ms Campbell and the weight of the reliable evidence points overwhelmingly against that conclusion.

My finding that the couple were not "de facto partners" within the meaning of that statutory term does not mean that their relationship could not be one of those embraced in the wide variety of heterosexual relationships.  But any description would be obfuscatory of any legal principle except in distinguishing it from husband and wife and the statutorily recognised relationship I have referred to.  See Calverley v Green (1984) 155 CLR 242, per Mason & Brennan JJ at 260.

The administrator's claim that Ms Campbell holds the land on a resulting trust for the estate.  Alternatively, they claim that the transaction should be set aside for undue influence.  The transfer was effected for no consideration.  Even if Ms Campbell and the deceased discussed her paying out his mortgage debt, it was not done.  There was no payment to acquire the property (see Calverley v Green (1984) 155 CLR 242, per Mason & Brennan JJ at 257). 

I have found that the deceased did not intend to gift any interest in the land to Ms Campbell's children.  The only evidence suggesting to the contrary comes from Ms Campbell, and I reject her evidence.  At best the evidence suggests he was well disposed towards the children, and he hoped that if the sale he spoke of occurred, they would have "a roof over their heads" (see the affidavit of Munroe, Exhibit 32, at paragraph 69).  This does not establish a relationship of parent and child, or a quasi-parental relationship.  There can be no presumption of advancement to the children.  They were not named as transferees, the trust is of doubtful status, and there was no relationship between them and the deceased to suggest an intention of a gift to them. 

The transfer was to Ms Campbell as trustee of a trust.  There is a doubt whether that trust (as evidenced by the deed, Exhibit 16) was properly settled.  Be that as it may, Ms Campbell is not entitled, having not paid for an interest to hold the land other than on a resulting trust for the estate (see generally Calverley v Green (1984) 155 CLR 242). 

In view of these findings, there should be judgment for the plaintiffs in proceeding S25 of 2012 for orders that the defendant transfer the land referred to in the claim and statement of claim to the plaintiffs. 

It is not necessary for me to consider at length the administrator's alternative claim based on undue influence (see Johnson v Buttress (1936) 56 CLR 113).  It is sufficient to indicate that I am pursuaded that the deceased "reposed confidence and trust" in Ms Campbell, and that it has not been established to my satisfaction that the deceased knew what he was doing when he signed the transfer (Exhibit 16).  There is no evidence he obtained independent legal or financial advice upon the document.  The evidence is that he did not understand its effect and significance. 

In matter S215 of 2012 (Townsville) there will be an order that the application of Catherine Faye Campbell, filed 19 April 2012, be dismissed. 

Both proceedings S314 of 2012 and S25 of 2012, I will invite the representatives of the plaintiffs to submit draft minutes of orders to reflect these reasons.

In all three matters, I will hear submissions as to costs.