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Bassett v Registrar of Titles[2021] QSC 341

Bassett v Registrar of Titles[2021] QSC 341

SUPREME COURT OF QUEENSLAND

CITATION:

Bassett v Registrar of Titles & Anor [2021] QSC 341

PARTIES:

MAVIS VIOLET BASSETT

(applicant)

v

REGISTRAR OF TITLES

(first respondent)

KONRAD HANS DE BOER (also known as JOHN DE BOER) AS PUTATIVE EXECUTOR OF THE ESTATE OF THE LATE ROSLYN MARJORIE BASSETT

(second respondent)

KONRAD HANS DE BOER (also known as JOHN DE BOER) IN HIS PERSONAL CAPACITY

(third respondent)

FILE NO:

BS 3646 of 2021

DIVISION:

Trial Division

DELIVERED ON:

14 December 2021

DELIVERED AT:

Brisbane

HEARING DATE:

3 November 2021

JUDGES:

Holmes CJ

ORDER:

  1. Judgment for the second respondent on the applicant’s claim against him for a declaration and orders in relation to the interest of Mrs Roslyn de Boer in the house property at Ashmore.
  2. The applicant’s application is dismissed so far as it seeks alteration of the register of titles.
  3. Judgment for the second respondent on the application for orders under s 122 of the Powers of Attorney Act 1998 that accounts be provided and audited in respect of the L R Bassett Nominees Pty Ltd as Trustee for the Bassett Family Trust Account.
  4. The application against the third respondent is dismissed.
  5. The applicant’s cross-application for summary judgment and disclosure is dismissed.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – GENERALLY – where the applicant owned a house at Ashmore (“the property”) as joint tenant with her late daughter (“the deceased”) – where the deceased signed a transfer just before her death which on registration severed the joint tenancy with the applicant pursuant to s 59 of the Land Title Act 1994 – where the third respondent is the husband of the deceased and the sole beneficiary of her estate, including her interest in the property as tenant in common – where the deceased was until her death the sole attorney of the applicant for financial matters – where the applicant claims the removal of the deceased’s name from the register of titles, her own registration as sole proprietor of the property and an injunction preventing the third respondent from registering his interest (“the property claim”) and the production of accounts to be audited and reimbursement of any loss suffered in respect of certain transactions by the deceased (“the accounting claim”) – where the second respondent applies pursuant to r 293 of the Uniform Civil Procedure Rules 1999 for summary judgment against the applicant for both claims – where the applicant cross-applies under r 292 of the Uniform Civil Procedure Rules 1999 for summary judgment against the second respondent in respect of the property claim –– where the third respondent applies for dismissal of the property claim against him pursuant to r 658 of the Uniform Civil Procedure Rules 1999 – whether the property claim and the accounting claim have reasonable prospects of success or require a trial – whether the Court should exercise its discretion to order summary judgment for either party – whether the Court should exercise its discretion to dismiss the proceedings against the third respondent

REAL PROPERTY – TORRENS TITLE – INDEFEASIBILITY OF TITLE – EXCEPTIONS TO INDEFEASIBILITY – FRAUD OR FORGERY – GENERALLY – where the applicant owned a house at Ashmore (“the property”) as joint tenant with her late daughter (“the deceased”) – where the third respondent is the husband of the deceased and the sole beneficiary of her estate – where the deceased signed a transfer just before her death which on registration severed the joint tenancy with the applicant pursuant to s 59 of the Land Title Act 1994 – where notice of the transfer was not sent to the applicant’s current address, known to the deceased – where the applicant alleges that the deceased’s solicitor and the third respondent acted in concert with the deceased to conceal her signing of the transfer from the applicant and convince the first respondent, the Registrar of Titles, that the notice requirements of s 59(2) of the Land Title Act 1994 were met, when in fact they had not been – where the applicant pleads that the severance of the joint tenancy and its concealment were acts of fraud by the deceased, such that she did not acquire an indefeasible interest as tenant in common – whether the severance of the joint tenancy was fraudulent – whether the applicant can succeed in an application  for orders under either s 187(2) or s 114 of the Land Title Act 1994 requiring the first respondent to remove the deceased’s name from the title and register the applicant as sole proprietor 

HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – ADMINISTRATION AND FINANCIAL MANAGEMENT – where the late daughter of the applicant (“the deceased”) was her attorney for financial matters – where the deceased severed the joint tenancy she held with the applicant over a property, with the result that on registration of the transfer she acquired an interest as tenant in common which formed part of her estate – where the third respondent, the deceased’s husband, as the sole beneficiary of her estate, would inherit the deceased’s interest – where the applicant pleads that the deceased’s severance of the joint tenancy was an unauthorised “conflict transaction” in breach of s 73 of the Powers of Attorney Act 1998 as she had preferred the third respondent’s interests over the applicant’s – where s 73(6) of the Powers of Attorney Act 1998 defines a conflict transaction as involving a conflict between the attorney’s duty to the principal and the attorney’s interest or a relation’s interest – whether the applicant has any prospect of establishing that the deceased owed her a relevant duty for the purposes of s 73 of the Powers of Attorney Act 1998

HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OR PERSONS WITH IMPAIRED CAPACITY – ADMINISTRATION AND FINANCIAL MANAGEMENT – where the late daughter of the applicant (“the deceased”) was her attorney for financial matters – where the applicant alleges that the deceased conducted three sets of transactions on three bank accounts with the result that the deceased, or the deceased and her husband, the third respondent, received payments at the expense of the applicant – where the applicant contends that the transactions were conducted by the deceased in conflict with her duties as attorney and in breach of s 73, and in one instance s 86, of the Powers of Attorney Act 1998 – where the applicant relies on the presumption of undue influence created by s 87 of the Powers of Attorney Act 1998 where a transaction is between a principal and attorney and under an enduring power of attorney – whether the deceased could be said to be exercising a power as attorney in relation to the transactions – whether it is arguable that s 87 applies to any of the transactions

Acts Interpretation Act 1954 (Qld), s 39

Land Title Act 1994 (Qld), s 59, s 114, s 184, s 187

Powers of Attorney Act 1998 (Qld), s 73, s 86, s 87, s 106, s 122

Uniform Civil Procedure Rules 1999 (Qld), r 292, r 293, r 658

Barnes v Addy (1874) LR 9 Ch App 244, distinguished

Brady v Stapleton (1952) 88 CLR 322; [1952] HCA 62, cited

Dunworth v Mirvac Qld Pty Ltd [2012] 1 Qd R 207; [2011] QCA 200, cited

Peldan v Anderson (2006) 227 CLR 471; [2006] HCA 48, distinguished

Re Watson [2017] NSWSC 596, doubted

COUNSEL:

D Topp for the applicant

D Keane for the first respondent

C Brewer for the second and third respondents

SOLICITORS:

Priala Legal for the applicant

Crown Law for the first respondent

Reaburn Solicitors for the second and third respondents

  1. [1]
    This proceeding was commenced by originating application and continued by statement of claim.  The applicant, Mrs Bassett, seeks two forms of relief: the first, the removal of the name of her late daughter, Mrs Roslyn de Boer, from the register of titles as joint tenant with her of a property and her own registration as sole proprietor (“the property claim”); and, the second, the production of accounts to be audited, and reimbursement of any loss suffered, in respect of dealings by Mrs de Boer in relation to three bank accounts during a period when she held an enduring power of attorney in respect of her mother’s affairs (“the accounting claim”).  The first respondent is the Registrar of Titles, against whom the orders relating to alteration of the register are sought.  Mrs de Boer’s husband, Konrad de Boer, is second respondent in his capacity as executor of his late wife’s estate and third respondent in his personal capacity, being the sole beneficiary of her estate.
  2. [2]
    For resolution now are cross-applications by Mrs Bassett and Mr de Boer, as second respondent, for summary judgment (Mrs Bassett’s application is confined to the property claim) and an application by Mr de Boer, as third respondent, for dismissal of the proceedings as against him personally, pursuant to r 658 of the Uniform Civil Procedure Rules 1999.  Although Mrs Bassett also cross-applied under r 223 for disclosure of documents in relation to the accounting claim, it was conceded at the hearing that if that claim were allowed to proceed, ordinary discovery processes would be adequate. 
  3. [3]
    Rule 292 of the Uniform Civil Procedure Rules permits a plaintiff to apply for judgment against the defendant for all or part of the claim, and r 293 permits the defendant to make the same application against a plaintiff; in each case, the court having a discretion to give that judgment if satisfied that the party against whom it is sought has no real prospect of succeeding on its defence or claim, as the case may be, and that there is no need for a trial.  Rule 658, on which Mr de Boer relied for the dismissal of the proceedings against him in his personal capacity, gives the court a general power at any stage of the proceeding to make an order, including a judgment, that the nature of the case requires.
  4. [4]
    It is convenient to deal with the applications by reference to the claim (property or accounting) to which they relate.

The pleaded factual background for the property claim

  1. [5]
    For the purposes of the present applications, I proceed on the basis that what is alleged as fact in the amended statement of claim can be proved.[1] From the statement of claim, I draw what follows. 
  2. [6]
    Mrs Bassett, who is elderly, gave Mrs de Boer an enduring power of attorney in relation to her financial affairs in 2012.  The two women, as joint tenants with Mrs Bassett’s husband, Lindsay Bassett, owned a house property at Ashmore, where both the Bassetts and the de Boers lived.  Mr Bassett died in 2015 and, in the first half of 2020, at the age of 94, Mrs Bassett moved to live in an aged care home at Ashmore, in the same street as the jointly owned property. 
  3. [7]
    Mrs de Boer died on 12 July 2020, having been admitted to hospital on 1 July 2020 in the last stages of cancer, suffering what is described as “unbearable stomach pain”.  Mr de Boer had told one of his wife’s sisters, Mrs Ormiston, not to tell another sister, Mrs Cawthorne, that his wife was in hospital. On 2 and 3 July, he told Mrs Ormiston that Mrs de Boer was not to receive visitors, but on 4 July 2020, he told her that she could visit her sister and actually drove her to the hospital on the following day. On 3 July, Mrs de Boer had signed a transfer by which she transferred to herself her interest in the Ashmore property.  (The effect of that transfer, once registered, would be to sever the joint tenancy.)
  4. [8]
    On 7 July 2020, Mrs de Boer’s solicitor, Mr L,[2] wrote a letter to Mrs Bassett, enclosing a copy of the transfer, which he addressed to the house property at Ashmore, and which was sent by registered post to that address.  That was despite the fact that he had the previous day visited Mrs Bassett at the aged care home on other business relating to her will.  Mr L made a statutory declaration as to what he had done in sending the transfer to Mrs Bassett, annexing his letter, the transfer form and an Australia Post receipt which showed that they had been delivered to the house address, “with signature from K de Boer”, on 13 July 2020.  The transfer and declaration were lodged with the Registrar of Titles and the transfer was promptly registered, with the result that at her death, Mrs de Boer was no longer a joint tenant and her interest as tenant in common formed part of her estate. 
  5. [9]
    On 7 August 2020, Mrs Bassett lodged a caveat over the land in which she asserted “reason to believe that fraud [had] been committed” in relation to it.  Some months later, Mr de Boer’s solicitors replied, noting that assertion, and expressing an intention nonetheless to lodge an application for transmission of his late wife’s interest to him.  However, because of the caveat, the title as tenant in common remains in Mrs de Boer’s name.

The pleaded inferences from, and legal consequences of, the facts alleged

  1. [10]
    The pleadings allege that Mr L’s actions in writing to the house address and making a statutory declaration as to having done so were an “artifice” which Mrs de Boer had designed, or, alternatively, Mr L had designed on her instructions, to convince the Registrar of Titles that the requirements of s 59(2) of the Land Title Act were met, when, it is alleged, in fact they were not.  There was also a design to conceal the fact of the severance from Mrs Bassett so that she was not aware of it until after her daughter’s death and was denied the opportunity to seek injunctive relief. It is alleged that she had interests capable of being protected by injunction, principal among them what is described as “the inevitability” of her becoming sole registered proprietor by right of survivorship.  It is said that both the severance and its concealment were acts of fraud by Mrs de Boer, with the result that she did not acquire an indefeasible interest as tenant in common; that she, and now Mr de Boer as her executor, held her half of the land on constructive trust for Mrs Bassett; and that it was unconscionable for Mr de Boer to rely upon any interest as executor in the land.
  2. [11]
    As against Mr de Boer personally, it is said that through Mrs Bassett’s caveat, he had become aware of his wife’s act of fraud.   He was not, therefore, entitled to rely on any interest he might, as a beneficiary, have in the land, and it was unconscionable for him to purport to do so.  On the strength of the pleading that he had discouraged Mrs Ormiston from telling her sister about his wife’s hospitalisation and from visiting her over a two-day period, it is alleged that Mr de Boer acted in concert with his wife to conceal her signing of the transfer from her sisters and denied them the opportunity then to tell their mother about it.  For that reason also, it is said that it would be unconscionable for him to purport to rely on any interest he may acquire as beneficiary. 
  3. [12]
    It is also pleaded that Mrs de Boer’s severance of the joint tenancy constituted a breach of s 73 of the Powers of Attorney Act 1998 as a “conflict transaction” entered without authorisation; she had, it is alleged, preferred her husband’s interests to those of Mrs Bassett, in conflict with her obligations as attorney for her mother.  Mrs Bassett is said to have suffered loss and damage as a result of this alleged breach of duty in losing the benefit of taking the whole of the land by right of survivorship.
  4. [13]
    By way of relief, Mrs Bassett seeks: a declaration that Mr de Boer holds one half of the land on trust for her and an order that he take the necessary steps to transfer it; a permanent injunction restraining him from ever seeking to register any personal interest in the land; and orders pursuant to either s 187(2) or s 114 of the Land Title Act for the removal of Mrs de Boer’s name as a proprietor of the land and the registration of Mrs Bassett as sole proprietor.  Mrs Bassett also applies for an extension of time within which to seek relief, purportedly under s 106(1) of the Powers of Attorney Act, in the form of an order requiring Mr de Boer to transfer his late wife’s share of the property to her.   

The statutory provisions of particular relevance to the property claim

  1. [14]
    Section 59 of the Land Title Act 1994 permits unilateral severance of joint tenancies:

59 Severing joint tenancy

  1. (1)
    A registered owner of a lot subject to a joint tenancy may unilaterally sever the joint tenancy by registration of a transfer executed by the registered owner.
  1. (2)
    However, the registrar may register the instrument of transfer only if the registrar is satisfied the registered owner has given, or made a reasonable attempt to give, each other joint tenant the following—
  1. (a)
    if the instrument is an electronic conveyancing document—written notice of the registered owner’s intention to sever the joint tenancy under subsection (1);
  1. (b)
    otherwise—a copy of the instrument.
  1. (3)
    On registration of the instrument of transfer, the registered owner becomes entitled as a tenant in common with the other registered owners.

…

  1. [15]
    Section 184 of the Land Title Act confers indefeasibility on a registered interest in property, except for interests mentioned in s 185 of the Act (which were not relied on here) or unless there has been fraud by the registered proprietor.  In the event of fraud, the Supreme Court may, under s 187, make “the order it considers just”, which includes directing the Registrar to correct the indefeasible title in the register.  Mrs Bassett sought that relief, but she also submitted that the court could make orders under s 114 of the Land Title Act, which is in the following terms:

114 Applying for Supreme Court order

  1. (1)
    This section applies to—
  1. (a)
    the Attorney-General; or
  1. (b)
    a trustee or beneficiary under a trust; or
  1. (c)
    a personal representative, a devisee or anyone else interested in—
  1. (i)
    a lot of a deceased registered proprietor; or
  1. (ii)
    a trust involving a lot of a deceased registered proprietor; or
  1. (iii)
    a lot registered in the name of a person as personal representative.

Example of a person interested in a lot mentioned in subparagraph (iii)—

a person claiming to be entitled to be appointed as personal representative in the place of the person in whose name the lot is registered

  1. (2)
    A person to whom this section applies may apply to the Supreme Court for an order that a named person be registered as proprietor of a lot.
  1. (3)
    The Supreme Court may make 1 or more of the following orders—
  1. (a)
    that a person be registered as proprietor of the lot;
  1. (b)
    that a person be removed from the freehold land register as proprietor of the lot;
  1. (c)
    that a caveat be lodged to protect a person’s interest in the lot;
  1. (d)
    that a person advertise in a specified form, content or way;
  1. (e)
    that costs be paid by any person or out of any property.

…

  1. [16]
    In addition to the Land Title Act provisions, Mrs Bassett relied on s 73 of the Powers of Attorney Act, the relevant sub-sections of which are as follows:

73 Avoid conflict transaction

  1. (1)
    An attorney for a financial matter may enter into a conflict transaction only if the principal, or the court under section 118 (2), has authorised the transaction, conflict transactions of that type or conflict transactions generally.

…

  1. (6)
    A conflict transaction is a transaction in which there may be conflict, or which results in conflict, between—
  1. (a)
    the duty of an attorney towards the principal; and
  1. (b)
    either—
  1. (i)
    the interests of the attorney, or a relation, business associate or close friend of the attorney; or
  1. (ii)
    another duty of the attorney.
  1. (7)
    However, a transaction is not a conflict transaction merely because—
  1. (a)
    the attorney is related to the principal; or
  1. (b)
    the attorney may be a beneficiary of the principal’s estate on the principal’s death; or
  1. (c)
    by the transaction the attorney, in the attorney’s own right and on behalf of the principal—
  1. (i)
    deals with an interest in property jointly held; or
  1. (ii)
    acquires a joint interest in property; or
  1. (iii)
    obtains a loan or gives a guarantee or indemnity in relation to a transaction mentioned in subparagraph (i) or (ii).

…

  1. (10)
    In this section—

joint interest includes an interest as a joint tenant or tenant in common.

Section 106(1) of the Act enables a court to order compensation for a loss caused, or an accounting for profits accrued, as a result of an attorney’s failure to comply with the Act in exercising a power.  Section 106(5) requires an application for such an order to be made within six months after the death of an attorney, but that time may be extended: s 106(7).

The applicant’s submissions in relation to the property claim

  1. [17]
    Counsel for Mrs Bassett argued that the steps taken by Mrs de Boer to sever the joint tenancy did not comply with the requirements of s 59 of the Land Title Act or s 39 of the Acts Interpretation Act 1954 and the severance was, consequently, fraudulent.   The High Court had decided in Peldan v Anderson[3] that, s 59(1) having conferred a unilateral right to sever a joint tenancy on registration of a transfer, the interests of the property owners as joint tenants were extinguished by registration of an instrument which created an indefeasible title in them as tenants in common in equal shares.[4]  However, it was contended, that decision  was distinguishable, because s 59(2) had subsequently been amended in 2013[5] to insert the reference to the Registrar’s satisfaction of “a reasonable attempt”.
  2. [18]
    Section 39 of the Acts Interpretation Act provided that where an Act required or permitted the service of a document or its giving to a person, that was to be done by delivering it to the person personally or sending it to their last known place of residence.  It was argued that both Mrs de Boer and Mr L must have known that notice was not given to Mrs Bassett at her last known address, demonstrating that the sending of the copy of the transfer to the house address was an artifice designed by Mrs de Boer, or Mr L on her instructions, so as to convince the Registrar of Titles that the elements of s 59(2) were met. The fact that the transfer was signed so close to Mrs de Boer’s death in circumstances where she must have apprehended that she would predecease her mother, who would, but for the transfer, acquire title to the whole of the property so that Mr de Boer would no longer have any right to live there, pointed to a fraudulent intent. 
  3. [19]
    In addition, counsel for Mrs Bassett argued, the concealment of the severance was itself an act of fraud.  Reliance was placed on an ex tempore decision of Sackar J in the New South Wales Supreme Court in Re Watson[6] in which his Honour found that one joint tenant’s active concealment from the other of having unilaterally severed the joint tenancy constituted fraud for the purposes of the Real Property Act 1900 (NSW). 
  4. [20]
    Section 187(2) of the Land Title Act, which enabled the Supreme Court to order correction of the register where there had been fraud, should be construed with regard to the principle that a statute should not be interpreted so as to enable a wrongdoer to take advantage of his or her wrong: Dunworth v Mirvac Qld Pty Ltd.[7]  Having regard to that principle, a court would find that Mrs Bassett had been the victim of fraud warranting the making of the remedial orders she had sought under that provision, removing her daughter’s name from the register and registering her as sole proprietor.
  5. [21]
    An order could also be made under s 114 of the Land Title Act, which provided for a “simplified procedure” and conferred a broad discretion to correct the register.[8] The s 114 contention was not well-explained, but seems to depend on an argument that Mr de Boer fell within the first limb in Barnes v Addy[9] as having knowingly received and retained trust property (Mrs de Boer’s interest in the land), which had that character because it had been acquired in a manner inconsistent with Mrs Bassett’s rights so as to give rise to a constructive trust in respect of it in her favour. (That argument may incorporate the allegation that Mrs de Boer breached fiduciary duties owed under the Powers of Attorney Act; it is not clear.) At any rate, it was contended that Mrs Bassett should be regarded as a beneficiary under a constructive trust within s 114(1)(b), and as a person interested in the lot of a deceased registered proprietor or a trust involving that lot, within s 114(1)(c).    Under s 114, it was said, Mr de Boer’s state of knowledge would be irrelevant (notwithstanding that the Barnes v Addy rule would require his knowing receipt of trust property). It was accepted that caution was to be applied in the making of orders under s 114, but the want of compliance with s 59(2) justified the step.
  6. [22]
    Counsel for Mrs Bassett submitted that there was a conflict for the purposes of s 73 of the Powers of Attorney Act between, on the one hand, Mrs de Boer’s obligation as an attorney not to cause loss and damage to his client, and, on the other hand, Mrs de Boer’s personal interests and those of her husband, who but for the transfer would have had no rights to the property as beneficiary.  Acknowledging in the course of argument that a breach of the Powers of Attorney Act would not affect the indefeasibility of the title as tenants in common created by the transfer’s registration,[10] counsel suggested that, although not presently sought in the statement of claim, compensation representing half the value of the land could instead be claimed under s 106 of the Powers of Attorney Act.
  7. [23]
    So far as the case against Mr de Boer personally was concerned, it was submitted, the pleading as to his having prevented Mrs Ormiston from visiting her sister on the day she executed the transfer gave rise to an inference that he was acting in concert with his wife to conceal the transfer.  A Jones v Dunkel inference should be drawn against him because he had not denied those acts.  The knowing receipt of trust property within the first Barnes v Addy limb was also argued against Mr de Boer in this context. There was a further argument that relief ought be given even in the absence of knowing receipt.  In Brady v Stapleton[11] the High Court had decided that where a bankrupt with fraudulent intent disposed of assets to a related company, the latter’s title was defeasible, whether or not it knew of the fraudulent intent.  By analogy, even if Mr de Boer knew nothing of the transfer or its concealment, his putative personal interest in one half of the land should be regarded as defeasible and he should be enjoined from seeking to register it. (It might have been simpler, for this point, to refer to the principle that an innocent volunteer receiving trust property without notice cannot retain the property once the true position comes to light: Black v S Freedman & Co[12].)

The respondents’ submissions on the property claim

  1. [24]
    Counsel who appeared for Mr de Boer, both in his capacity as executor and personally, submitted that the severance of the joint tenancy and its alleged concealment could not amount to acts of fraud.  A joint tenant was entitled by s 59(1) to sever; there was no need to seek the consent of a fellow joint tenant. The notice requirement in s 59(2) was designed to enable objection if the severance would infringe legal or equitable rights and to ensure that the other joint tenant could arrange his or her affairs knowing of the alteration of the nature of his or her interest in the land.[13]  Mrs Bassett had no cause of action in law or equity which would have entitled her to take any steps to prevent the severance. 
  2. [25]
    So far as reliance was placed on s 73 of the Powers of Attorney Act, no “conflict transaction” existed because a unilateral act by Mrs de Boer could not be a “transaction” and she was not acting as attorney in undertaking it. In any case, s 73(7)(c) expressly provided that a transaction was not a conflict transaction merely because it dealt with jointly held property, and nothing had been pleaded to show that there was anything more to this transaction.  So far as it was pleaded that there was conflict between the interests of both Mr and Mrs de Boer, on the one hand, and Mrs de Boer’s obligations as Mrs Bassett’s attorney on the other, Mr de Boer received no benefit from the severance of the tenancy, merely a hope that he might receive something as beneficiary if his wife predeceased him.  For similar reasons, no cause of action could be made out against Mr de Boer personally; he could acquire no interest in the land unless Mrs Bassett’s claim against him as executor failed.
  3. [26]
    The Registrar of Titles supported Mr de Boer’s application as executor for summary judgment in relation to the property claim.  Counsel for the Registrar submitted that, pursuant to s 184 of the Land Title Act, the title created by the registration of the transfer was indefeasible in the absence of fraud, which did not appear to be made out.  That was particularly so when there appeared to have been no basis on which Mrs Bassett could have sought to restrain the sale. The 2013 amendments to s 59 of the Act did not alter s 59(3) or contain any suggestion that there was an exception being created to the fundamental proposition that title derived from registration, so the High Court’s decision in Peldan v Anderson[14] was not distinguishable, contrary to Mrs Bassett’s submission. Section 114 of the Land Title Act should not be used where the severance of the joint tenancy could not be set aside without establishing an exception to the indefeasibility of the title that Mrs de Boer had acquired as tenant in common.  If summary judgment were given against Mrs Bassett on the property claim, her claim so far as it sought orders against the Registrar ought also be dismissed.

Consideration – the property claim

  1. [27]
    Mrs Bassett’s property claim is misconceived. It has no prospect of success and should not be permitted to continue to trial, for a number of reasons.  Beginning with the notion that noncompliance with s 59(2) of the Land Title Act could itself amount to fraud, it is not correct to say that the requirements of s 59(2) were not met in this case.  Section 59(2) contains a single requirement, that the Registrar be satisfied that the registered owner has given or made a reasonable attempt to give the other joint tenant (in the situation relevant here) a copy of the instrument of transfer.  The Registrar, it may be inferred, was satisfied; so that requirement was met.  The sub-section imposes no requirement on the registered proprietor to which s 39 of the Acts Interpretation Act could be relevant. 
  2. [28]
    It need hardly be said that Peldan v Anderson is not distinguishable by reason of the amendments to s 59(2) diluting the requirement for the notice of which the Registrar must be satisfied. Of course, if there were some equitable obligation not to sever, the resisting joint tenant could seek to restrain the other from registering the transfer.  A proprietor who deliberately misled the Registrar by falsely claiming to have given, or made a reasonable attempt to give, a copy of the transfer to his or her joint tenant in order to obtain a registration in the knowledge of such an equitable interest might well be guilty of fraud and liable to have an order made correcting the situation under s 187.  And, of course, notwithstanding the indefeasibility of the new title if fraud were not made out, the other joint tenant might yet have an equitable claim warranting the imposition of a constructive trust. 
  3. [29]
    It was conceded here, however, that Mrs Bassett had no claim which would have entitled her to resist the severance. That concession was clearly correct. Mrs Bassett had no rights in respects of her daughter’s interest in the property which could entitle her to prevent the transfer. All that she had as joint tenant was a hope that if her daughter pre-deceased her, she would take the whole of the property by right of survivorship.  Or, as the New South Wales Court of Appeal put it in Anderson v Anderson,[15] rather than a right, she had a liability to the severance of her interest.[16]  That gave her no cause of action which would entitle her to seek to restrain Mrs de Boer from severing the joint tenancy.  And it follows, the severance of the joint tenancy could not itself be a fraud; Mrs de Boer had an entitlement to sever, to which the giving of a copy of the transfer document to Mrs Bassett could have made no difference.
  4. [30]
    The proposition that a statute should not be interpreted to enable a wrongdoer to take advantage of his or her own wrong can have no application; Mrs de Boer obtained nothing to which she was not entitled. Instead, rather than any advantage, by the step of severing the joint tenancy, she lost any chance of herself taking the whole of the property should her mother die before her. Even if there were a wrong in the failure to give Mrs Bassett notice, given its inconsequentiality, it could hardly rise to the level of “actual fraud, moral turpitude”.[17]
  5. [31]
    And, of course, to enliven s 187, the fraud must be that of the registered proprietor.  The pleading alleges Mrs de Boer knew that her mother was living in the nursing home, as indeed seems very probable, but, crucially, it does not allege that she had any actual knowledge, or even any means of knowing, that her solicitor had sent the letter enclosing the copy of the transfer to the house address.[18]  The pleaded facts simply do not support the inference sought to be drawn, that Mrs de Boer had designed an artifice or asked Mr L to do so in order to convince the Registrar that a reasonable attempt had been made to give notice and thus procure the transfer.  Similarly, the pleaded facts do not support the inference that there was any design on Mrs de Boer’s part to conceal the existence of the transfer and the fact of the severance. 
  6. [32]
    I very much doubt, in any case, that concealment of a severance which in no way affected the joint tenant’s equitable and legal rights could amount to fraud.  Mrs Bassett relied on Re Watson,[19] in which Sackar J in the New South Wales Supreme Court found that an active concealment of the severance of a joint tenancy was fraudulent for the purposes of s 42 of the Real Property Act 1900 (NSW) so as to give the court power to set aside the dealing.  That, however, was in a context in which the defendant (the beneficiary of the transferring joint tenant’s estate) and the plaintiff (the other former joint tenant) were agreed on the facts, including that the plaintiff had paid the deposit on the property and discharged the mortgage. By consent they sought declarations and an order setting the transfer unilaterally severing the joint tenancy aside. Given that unity of approach, the judgment is very short and is principally concerned with the exercise of discretion when making declarations by consent.  It does not expand on his Honour’s reasons for concluding that the concealment constituted fraud; it may well have had to do with the equitable rights of the plaintiff, who had funded the purchase of the property.  At any rate, I do not think it stands as persuasive authority for the proposition that active concealment of a transfer effecting severance of a joint tenancy amounts, per se, to fraud.
  7. [33]
    The claim for compensation (formerly an application for alteration of the register) as a result of Mrs de Boer’s alleged entry of a conflict transaction within s 73 of the Powers of Attorney Act is also without merit. I doubt the correctness of the proposition that because the transfer was a unilateral act it could not constitute a transaction, but it does not matter.  Section 73(6) defines a conflict transaction as involving a conflict between the attorney’s duty towards the principal and, relevantly for present purposes, the attorney’s interests or a relation’s interest.  In the absence of a duty, there can be no conflict transaction.
  8. [34]
    Under the Powers of Attorney Act, an attorney has duties to exercise the power of attorney honestly and with reasonable diligence to protect the principal’s interests[20] and to exercise it subject to the terms of the document conferring the power.[21] An attorney for a financial matter (a “matter relating to the principal’s financial or property matters”, such as investing or withdrawing money from the principal’s account)[22] must: keep accurate records and accounts for dealings and transactions made under the power;[23] keep his or her property (other than jointly owned property) separate from the principal’s property;[24] and not give away or donate the principal’s property in a way the principal would not have done had she or he capacity, although the attorney is not precluded from receiving a gift.[25]  These are all duties that arise in connection with the exercise of powers under the power of attorney.  They are not obligations which exist at large in relation to what an attorney does in any context.
  9. [35]
    Correspondingly, s 106 enables compensatory or accounting orders to be made in respect of losses and profits resulting from the attorney’s failure to comply with the Act in the exercise of a power. Section 122 of the Act (on which Mrs Bassett relied for relief in respect of the accounting claim) enables orders for the filing of summaries of receipts and expenditure and accounts of dealings and transactions under the power.   The Act does not give relief in respect of activities by the attorney which are not carried out in the exercise of a power under the power of attorney.[26] It was submitted for Mr de Boer that his late wife’s actions fell, in any event, within the exception in s 73(7)(c)(i) as a dealing with an interest in property jointly held.  In fact, the exception is inapplicable because it requires a transaction on behalf of the principal (which on any view of the facts this was not), but that requirement itself serves to reinforce the conclusion that s 73 is solely concerned with conflicts of duty which arise in the attorney’s exercise on the principal’s behalf of powers under the power of attorney.
  10. [36]
    No relevant duty for the purposes of s 73 was identified in the pleading, nor could it have been.  Certainly, it would have been in Mrs Bassett’s interests, as matters turned out, had the severance not occurred; but that does not mean that Mrs de Boer was under some duty to arrange her affairs so as to turn Mrs Bassett’s hope of acquisition by survivorship into a reality.  Mrs de Boer had no duty as an attorney to retain her assets in a particular way so that her mother might receive them on her death. The pleading, which was that Mrs de Boer preferred her own or her husband’s interests to those of her mother, simply cannot support what is then alleged to follow, that her interests, or those of her husband, conflicted with her obligations as attorney for Mrs Bassett and was thus a breach of s 73.
  11. [37]
    Nor is there any prospect of Mrs Bassett’s obtaining an order under s 114 of the Land Title Act.  There is nothing in the pleading or the evidence which could support a finding that Mrs de Boer was under any fiduciary obligation in respect of her interest in the property; Mrs Bassett had no equitable right in respect of it; there was no trust property; and no part of the rule in Barnes v Addy applies. Mrs Bassett is not a beneficiary for the purposes of s 114(1)(b), nor has she any interest in Mrs de Boer’s property for the purposes of s 114(1)(c), and there is no conceivable basis on which a court could make an order under s 114.
  12. [38]
    It was conceded, correctly, that if Mrs Bassett could not succeed in establishing any conduct on Mrs de Boer’s part warranting relief, there was no basis on which it could be said that Mr de Boer had acted unconscionably or ought to be prevented from relying on his interest as beneficiary in the land.  I would make some additional observations, however. First, in the absence of any pleading or evidence that Mr de Boer’s advice to Mrs Ormiston that Mrs de Boer was not to receive visitors was false (as opposed to, for example, being based on medical advice) or of any awareness on his part that the transfer existed or had been signed, the pleaded inference that he had acted in concert with his wife to conceal its creation and execution could not be made out.[27] And second, even if there had been some basis for the assertion of unconscionability, the application for injunctive relief was pointless.  That is because, as Mr de Boer’s counsel pointed out, if he were not entitled to deal with his late wife’s interests as executor, there was no prospect of his doing so as beneficiary; and if he were entitled to take the interest as executor, there could be no impediment to his receiving it as beneficiary. 
  13. [39]
    It follows that Mrs Bassett’s application for summary judgment on the property claim must fail; that Mr de Boer’s application as executor against her for summary judgment must succeed in relation to the property claim; and that the proceeding as against him personally should be dismissed.

The pleadings and evidence in relation to the accounting claim

  1. [40]
    The second part of Mrs Bassett’s claim concerned three sets of transactions which were said to have been conducted by Mrs de Boer on three bank accounts, in conflict with her duties as attorney and in breach of s 73, and in one instance, s 86, of the Powers of Attorney Act. In respect of some of these transactions, Mrs Bassett relied on s 87 of the Powers of Attorney Act, which provides that the fact that a transaction is between a principal and an attorney under an enduring power of attorney gives rise to a presumption that the principal was induced to enter the transaction by the attorney’s undue influence.  She sought orders under 122(1) of the Act, which provides:

122 Records and audit

  1. (1)
    For an attorney for a financial matter under an enduring power of attorney, the court or the tribunal may make an order that—

…

  1. (b)
    the attorney files in the court or the tribunal, and serves on the applicant, more detailed accounts of dealings and transactions under the power for a specified period; or
  1. (c)
    the accounts be audited by an auditor appointed by the court or the tribunal and that a copy of the auditor’s report be given to the court or the tribunal and the applicant

…

  1. [41]
    Again I proceed on the basis that the facts alleged in the pleadings can be proved. In this instance, the pleadings are supplemented by the report of an accountant, Mr Simon Cook.  Some of the information on which Mr Cook acts in making “provisional findings” is, unfortunately, mysterious in its provenance.  He adverts to information from a Mr Kneijber, whose position is never explained.  Mr Kneijber had, apparently, examined ledgers said to have been kept by Mrs de Boer for her and her husband’s accounts, in which transactions relating to the three bank accounts relevant here were recorded. Mr Cook bases his analysis in part on Mr Kneijber’s observations of those ledgers.  According to Mr Cook, he “understands” (again it seems that Mr Kneijber may be his source of information) that Mrs de Boer also kept ledgers for the three accounts which are the subject of Mrs Bassett’s claims. 
  2. [42]
    Mr Cook also refers to some movements of funds which were not the subject of any allegation in the pleadings: amounts totalling some $326,000 were, he says, moved  from one of the three accounts to what he says were accounts or credit cards associated with Mrs de Boer.  He reaches that (provisional) conclusion on the basis of a document provided to him titled “2020 Roslyn – Cheque Origins”, There is a complete absence of information as to who provided this document or on what it was based.  While I am prepared to have regard to Mr Cook’s report in other respects, notwithstanding its hearsay on hearsay qualities, his findings of movements of funds to de Boer accounts on the strength of the utterly unidentified “2020 Roslyn – Cheque Origins” document are so devoid of evidentiary basis that I can take no account of them.
  3. [43]
    The first group of transactions involved Mrs de Boer’s receipt on eight occasions (two of them with her husband) of cheques signed by Mrs Bassett and drawn over a period between January 2013 and April 2015 on a Suncorp account which the Bassetts held jointly (and which Mrs Bassett maintained after her husband’s death).  The total value of the cheques was of the order of $70,000.  According to Mr Cook’s report, six of the entries in the ledger for the account in relation to these cheques contained a reference to “de Boer”.  They were described as “drawings”, something Mr Cook takes issue with; he considers they should have been described as transfers.  (It is not clear why they might not have been, for example, drawings for the purpose of effecting a gift.) The statement of claim alleges that these were transactions between Mrs de Boer as attorney and her mother as principal which had the effect of transferring Mrs Bassett’s funds to Mrs de Boer and therefore involved a potential conflict between Mrs de Boer’s obligations as attorney and her personal interests and/or those of her husband.  Also, it is said, Mrs Bassett’s entry of the transactions was, by virtue of s 87 of the Powers of Attorney Act, presumed to have been induced by undue influence on the part of Mrs de Boer. 
  4. [44]
    The second set of transactions involved six cheques, the first drawn in October 2012 and signed by an unknown signatory, in the amount of $150,000, and the remaining five, totalling about $348,000 in value, signed by Mrs Bassett and drawn in 2014 on the cheque account of L R Bassett Nominees Pty Ltd as Trustee for the Bassett Family Trust.  (It seems to be common ground that both Mrs Bassett and Mrs de Boer were beneficiaries of the trust.) Three cheques were in in favour of Mrs de Boer, one was in favour of Mrs de Boer and her husband and the remaining two were made out to the Deputy Commissioner of Taxation to pay tax on behalf of Mrs de Boer.  According to Mr Cook’s report, three of the payments were recorded in the trust cheque account ledger by reference to Mrs de Boer, while another made a reference to the Deputy Commissioner of Taxation, and the others referred to Mr and Mrs Bassett.  All were recorded in the trust ledger as trust distributions.   Because the  balance sheet for the trust as at 30 June 2013 showed that the total of all withdrawals from the account corresponded with a reduction by the same amount in the loan amount due to Mr and Mrs Bassett, the inference was that the distributions were being attributed (wrongly) to them.  (That logic is hard to follow, because all but one of the cheques in question were drawn in 2014.)
  5. [45]
    Again, a conflict is pleaded between Mrs de Boer’s obligations as attorney and her personal interests and/or of those of her husband.  It is said that Mrs de Boer, as one of the beneficiaries of the family trust, received payments at the expense of her mother, who, as another beneficiary, might instead have received them.  It is also pleaded that Mrs Bassett’s involvement in the transactions is presumed, pursuant to section 87 of the Powers of Attorney Act, to have been the result of undue influence.
  6. [46]
    Finally, it is alleged that in 2019, Mrs de Boer withdrew $464,050 from a Bank of Queensland account she held jointly with Mrs Bassett and deposited it to her own bank account.  In May 2020, she paid $450,000 of that amount to the aged care home where her mother was to reside, as part of a refundable accommodation bond.  However, it is said that she failed to account for the difference of some $14,050 between the amount withdrawn and the amount paid towards the bond, or for interest of $1,711 earned on her account in the intervening period.  This is said to amount to a breach of Mrs de Boer’s duty under s 86 of the Powers of Attorney Act to keep her property separate from Mrs Bassett’s and also to have had a potential to create a conflict, in breach of s 73 of the Act, between Mrs de Boer’s obligations as attorney and her personal interests and those of her husband (although it is not said he was a beneficiary of the recipient bank account).
  1. [47]
    In respect of the transactions on the Suncorp and family trust accounts, Mrs Bassett seeks, by way of relief in the statement of claim, orders pursuant to s 122 of the Powers of Attorney Act that Mr de Boer provide detailed accounts of his late wife’s dealings and transactions under the power of attorney for the eight years prior to her death to be audited by a court-appointed auditor, with reimbursement to be made of any loss suffered.  In respect of the joint Bank of Queensland account transactions she seeks, pursuant to s 106(1) of the Act, reimbursement of the $15,761 constituted by the balance left after payment of the bond, together with the interest earned.  On the cross-application before me, Mrs Bassett had sought, but as already noted, no longer maintains her application for, an order for disclosure of a number of documents identified in Mr Cook’s report; it was conceded that if the claim were to continue, the ordinary processes of discovery would suffice. 

The applicant’s submissions on the accounting claim

  1. [48]
    For Mrs Bassett, it was submitted that Mr Cook’s report, which detailed the transactions on the three accounts from his (or Mr Kneijber’s) review of the records, “vindicated” her pleaded case.  In the relation to the second set of transactions, which concerned cheques signed by Mrs Bassett and drawn on the cheque account of the trustee company for the family trust, Mrs de Boer’s conflict arose from her receiving a benefit as a co-beneficiary of the trust while acting as attorney for the other co-beneficiary.  Mr Cook’s further findings as to other transactions on Mrs Bassett’s account (the Suncorp account formerly held with her husband) which might, depending on the discovery of records, be questionable, gave rise to potential for a greater amount to be claimed.  His references to the incorrect recording of transactions on the Suncorp account and the family trust cheque account were very concerning. In relation to the Bank of Queensland joint account, it was not alleged that the withdrawal of the funds was wrongful; it was the retention in Mrs de Boer’s own account of the balance after the payment of the bond and the interest earned that constituted a wrongful dealing.  The provisions of the Powers of Attorney Act were remedial, and great caution should be exercised before shutting Mrs Bassett out of her ability to pursue a remedy. [28] 

The second and third respondents’ submissions on the accounting claim

  1. [49]
    Mr de Boer’s counsel submitted, in relation to the cheques drawn on Mr and Mrs Bassett’s joint cheque account, that Mrs Bassett’s signature of the cheques amounted to an authorising of any conflict. The presumption of undue influence in s 87 could not assist when there was no pleading by Mrs Bassett that she executed the cheques as a result of undue influence.  Nor had she given any evidence as to the circumstances in which she signed the cheques. In relation to the trust cheque account transactions, the property concerned was that of the trust; so there could be no conflict between Mrs de Boer’s interests and her mother’s.  Any causes of action arising from those transactions would belong to the trustee, not to Mrs Bassett as a beneficiary.  The delay in relation to the first and second sets of transactions was such that the proceeding should not be allowed to continue.
  2. [50]
    In respect of the final set of transactions, involving the withdrawal of funds from the joint Bank of Queensland cheque account of Mrs de Boer and Mrs Bassett, it was submitted that there was nothing in the pleading to show: that the withdrawals were not made with Mrs Bassett’s authority; that Mrs de Boer’s duties as attorney were in conflict with her interest as an account holder; or that the entirety of the funds in the account was beneficially held for Mrs Bassett.  As joint account owners, the two women were jointly entitled to the chose in action represented by their rights against the bank.  No case was pleaded in respect of any different equitable interest in the funds.  However, the amount paid by way of bond to the nursing home was much greater than any entitlement Mrs Bassett could make out.

Consideration – the accounting claim

  1. [51]
    For similar reasons to those discussed in relation to the property claim, s 73 of the Powers of Attorney Act can have no application to the transactions involving Mr and Mrs Bassett’s Suncorp account or the family trust cheque account.  There is nothing pleaded as to what power Mrs de Boer was said to be exercising as attorney, and clearly there was none.  She did not draw the cheques on the accounts, and her receipt of them was not part of any exercise of her powers as attorney.
  2. [52]
    However, there is alternatively claimed in respect of those transactions that they were presumed, by virtue of s 87, to be entered into by Mrs Bassett as a result of undue influence by Mrs de Boer.  In relation to the family trust cheque account transactions, as counsel for Mr de Boer pointed out, and counsel for Mrs Bassett accepted during argument, s 87 could not apply, because the principal in those transactions was, in fact, the trustee, not Mrs Bassett.   And, of course, any rights in relation to funds wrongly distributed were those of the trustee on behalf of the trust, not Mrs Bassett. But in respect of the Suncorp cheque account transactions, the s 87 presumption is available, notwithstanding that the receipt of the cheques by Mrs de Boer did not involve any exercise of her powers as attorney.[29]  Mrs Bassett’s claim may be viable to the extent that it alleges undue influence, although she would have to look to equity for compensation: as already mentioned, the remedies under s 106 and 122 of the Powers of Attorney Act are available only in relation to dealings and transactions under a power of attorney.[30] 
  3. [53]
    Section 87 was not relied on in relation to the Bank of Queensland joint account transactions, because there was nothing that Mrs Bassett did which could be attributed to undue influence.  This claim is based on Mrs de Boer’s having withdrawn the sum of about $464,000 on the account jointly held with her mother and depositing it to her own account, although it is accepted that most of the monies were used to pay the bond for the aged care home.  What is not pleaded is that she exercised any of her powers as attorney in order to undertake those acts.  As a joint account holder, she and her mother would, on ordinary principles, be jointly entitled to the credit balance in the account or, more correctly, the bank’s debt to them represented by that credit balance.[31]
  1. [54]
    There may well be circumstances pointing to a different conclusion; if the funds in the account were in fact deposited by Mrs Bassett with the intention that they be used for her purposes, the joint account simply being a means of facilitating withdrawals by Mrs de Boer to advance those purposes, there might well be a maintainable claim in respect of any monies not used for Mrs Bassett’s purposes and interest earned on the entirety of the amount withdrawn. (Mr Cook’s report was, unfortunately, of no assistance as to whether the funds were Mrs Bassett’s own.) There would, arguably, be a failure by Mrs de Boer to keep her property separate from her mother’s by the deposit of the funds to her own account, although there would still be a question as to whether in drawing and depositing the funds Mrs de Boer was acting as attorney or was simply exercising her right as joint signatory to the account to make withdrawals from it.  But none of that is pleaded or appears in the evidence.   However, I am hesitant to give judgment in respect of this claim, given that there seems to have been, to date, no consideration of the status of the funds in the account.
  1. [55]
    The net result is that I do not consider that there is any prospect of Mrs Bassett’s being able to succeed on her claim concerning the transactions on the family trust cheque account, or that there is any need for a trial of it, and will give summary judgment in respect of it.  I am not convinced that there are no reasonable prospects of success in respect of re-pleaded claims in respect of the Suncorp account transactions, relying on s 87 of the Powers of Attorney Act, or the alleged breaches of the Act in respect of the monies withdrawn from the joint Bank of Queensland account. Such faint prospect as there may be depends on those claims being properly pleaded, and, in the case of the latter, there in fact emerging some evidence to support it. 
  1. [56]
    Those claims together would be well within the jurisdiction of the Magistrates Court (or the District Court, if Mr Cook should establish there are withdrawals unaccounted for in a substantial amount.)  I will hear counsel as to the final orders, but I am minded to avoid the finality of summary judgment on those claims, instead dismissing them in the exercise of my discretion under r 658 on the basis that, as presently pleaded, they give rise to no reasonable cause of action, but there is no point in their being re-pleaded in this court. 

Costs

  1. [57]
    I will hear counsel as to costs, but there seems no reason the applicant should not pay Mr de Boer’s costs, as second respondent, of the proceeding.  On 20 April 2021, his solicitors pointed out to Mrs Bassett’s solicitors the futility of pursuing the application against him as third respondent and warned that indemnity costs would be sought. I will hear argument as to why the applicant should not pay Mr de Boer’s costs of the proceeding as third respondent on the standard basis up until the date of that letter and thereafter on the indemnity basis. The first respondent had not articulated any application for costs, but I will hear counsel on the point. 

Orders

  1. [58]
    My orders are as follows, with further orders to be made at the delivery of judgment:
  1. I give judgment for the second respondent on the applicant’s claim against him for a declaration and orders in relation to the interest of Mrs Roslyn de Boer in the house property at Ashmore.
  2. I dismiss the applicant’s application so far as it seeks alteration of the register of titles.
  3. I give judgment for the second respondent on the application for orders under s 122 of the Powers of Attorney Act that accounts be provided and audited in respect of the L R Bassett Nominees Pty Ltd as Trustee for the Bassett Family Trust Account.
  4. I dismiss the application against the third respondent.
  5. I dismiss the applicant’s cross-application for summary judgment and disclosure.

Footnotes

[1] The affidavit material filed and relied on for Mrs Bassett, consisting of her own affidavit, affidavits from her two surviving daughters and affidavits of her solicitor, did not assert any additional facts of relevance to the issues in the pleading concerning the property claim. The solicitor’s primary affidavit was oddly, and inappropriately, argumentative.

[2] The solicitor was not a party to these proceedings and his version of events is not known, so I do not propose to name him.

[3] (2006) 227 CLR 471.

[4] At 481.

[5] Section 118 Land, Water and Other Legislation Amendment Act 2013.

[6] [2017] NSWSC 596.

[7] [2012] 1 Qd R 207 at 213.

[8] Re Heathridge Pty Ltd [1998] QSC 243.

[9] (1874) LR 9 Ch App 244.

[10] Not to mention that the Powers of Attorney Act does not give a court any power to make orders concerning interests in land.

[11] (1952) 88 CLR 322.

[12] (1910) 12 CLR 105 at 109. See also Heperu Pty Ltd v Belle [2009] 76 NSWLR 230 at [92]; Shiu Seng Sze Tu v Lowe (2014) 89 NSWLR 317 at [141] – [144]; Fistar v Riverwood Legion and Community Club Ltd (2016) 91 NSWLR 732 at [45] – [47].

[13] Reference was made to discussion of the purposes of such a provision in the report of the New South Wales Law Reform Commission, Unilateral Severance of a Joint Tenancy, Report No. 73, July 1994 at 8.5 and 8.12.

[14] (2006) 227 CLR 471.

[15] [2017] NSWLR 591.

[16] At [58].

[17] Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 at [192].

[18] It was not pleaded that Mrs de Boer was the source of the address; unsurprisingly, given that in the correspondence exhibited to the affidavits relied on, Mr L is described as having acted for Mrs Bassett for many years.

[19] [2017] NSWSC 596.

[20] Section 66.

[21] Section 67.

[22] Schedule 2 s 1.

[23] Section 85.

[24] Section 86.

[25] Section 88.

[26] As opposed to creating the s 87 presumption in respect of such activities by reason of the existence of the relationship of principal and attorney.

[27] It is unnecessary to consider the logic of the proposition that, although on Mrs Bassett’s case, Mrs de Boer was prepared fraudulently to carry out the transfer and conceal it, all would have been revealed, nonetheless, had her sisters visited.

[28] Allingham v Fuller & Anor [2013] QSC 81 at [37].

[29] Smith v Glegg [2005] 1 Qd R 561 at [40]; Birch v Birch [2020] QCA 31 at [3].

[30] Whether such an order is available against the personal representative of an attorney was not canvassed and need not be considered here.

[31] Russell v Scott (1936) 55 CLR 440 at 450-451.

Close

Editorial Notes

  • Published Case Name:

    Bassett v Registrar of Titles & Anor

  • Shortened Case Name:

    Bassett v Registrar of Titles

  • MNC:

    [2021] QSC 341

  • Court:

    QSC

  • Judge(s):

    Holmes CJ

  • Date:

    14 Dec 2021

  • White Star Case:

    Yes

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Allingham v Fuller [2013] QSC 81
1 citation
Jump To
Cite 1 - [2013] QSC 81
Anderson v Anderson [2017] NSWLR 591
1 citation
Jump To
Cite 1 - [2017] NSWLR 591
Barnes v Addy (1874) L.R. 9 Ch. App. 244
2 citations
Jump To
Cite 1 - (1874) L.R. 9 Ch. App. 244
Cite 2 - (1874) L.R. 9 Ch. App. 244
Birch v Birch [2020] QCA 31
1 citation
Jump To
Cite 1 - [2020] QCA 31
Black v Freedman (1910) 12 CLR 105
1 citation
Jump To
Cite 1 - (1910) 12 CLR 105
Brady v Stapleton (1952) 88 CLR 322
2 citations
Jump To
Cite 1 - (1952) 88 CLR 322
Cite 2 - (1952) 88 CLR 322
Brady v Stapleton [1952] HCA 62
1 citation
Jump To
Cite 1 - [1952] HCA 62
Dunworth v Mirvac Qld Pty Ltd[2012] 1 Qd R 207; [2011] QCA 200
3 citations
Jump To
Cite 1 - [2011] QCA 200
Cite 2 - [2012] 1 Qd R 207
Cite 3 - [2012] 1 Qd R 207
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89
1 citation
Jump To
Cite 1 - (2007) 230 CLR 89
Fistar v Riverwood Legion and Community Club Ltd (2016) 91 NSWLR 732
1 citation
Jump To
Cite 1 - (2016) 91 NSWLR 732
Heperu Pty Ltd v Belle (2009) 76 NSWLR 230
1 citation
Jump To
Cite 1 - (2009) 76 NSWLR 230
In The Matter of Heathridge Pty. Ltd. [1998] QSC 243
1 citation
Jump To
Cite 1 - [1998] QSC 243
Pedlan v Anderson (2006) 227 CLR 471
3 citations
Jump To
Cite 1 - (2006) 227 CLR 471
Cite 2 - (2006) 227 CLR 471
Cite 3 - (2006) 227 CLR 471
Peldan v Anderson [2006] HCA 48
1 citation
Jump To
Cite 1 - [2006] HCA 48
Re Watson [2017] NSWSC 596
3 citations
Jump To
Cite 1 - [2017] NSWSC 596
Cite 2 - [2017] NSWSC 596
Cite 3 - [2017] NSWSC 596
Russell v Scott (1936) 55 CLR 440
1 citation
Jump To
Cite 1 - (1936) 55 CLR 440
Smith v Glegg[2005] 1 Qd R 561; [2004] QSC 443
1 citation
Jump To
Cite 1 - [2005] 1 Qd R 561
Sze Tu v Lowe (2014) 89 NSWLR 317
1 citation
Jump To
Cite 1 - (2014) 89 NSWLR 317

Cases Citing

Case NameFull CitationFrequency
Bampton v Vourlides [2023] QDC 2482 citations
1

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