Blundell v Curvers [2002] NSWSC 436

New South Wales Supreme Court

CITATION : Blundell v Curvers [2002] NSWSC 436 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 2539/99 HEARING DATE(S) : 1, 2, 3, 6 May 2002 JUDGMENT DATE : 22 May 2002

PARTIES : William Blundell as Executor of the Will of Germaine Marguerite Marie Francoise Toussaint Curvers (P) John William Antony Curvers (D) JUDGMENT OF : Burchett AJ

COUNSEL : M Rollinson (P) M Strikis (S)(D) SOLICITORS : Newman & Associates (P) Mikelis Strikis (D) CATCHWORDS : WILL- Ownership of personalty- Husband and wife- Resulting trust- Intention negativing presumption of advancement- Equity's preference for tenancy in common over joint tenancy- Court's power to direct division or sale of chattels owned in common under s 36A of the Conveyancing Act- Whether statement in will was evidence of facts. LEGISLATION CITED : Conveyancing Act 1919, s 36A Baker v Barclays Bank Ltd [1955] 1 WLR 822 Delehunt v Carmody (1986) 161 CLR 464 Hepworth v Hepworth (1963) 110 CLR 309 CASES CITED : Hughes v National Trustees, Executors & Agency Co of Australasia Ltd (1979) 143 CLR 134 Nelson v Nelson (1995) 184 CLR 538 Public Trustee v Pfeiffle [1991] 1 VR 19 Tillack v Tillack [1941] VLR 151 DECISION : See para 17.

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BURCHETT AJ

Wednesday 22 May 2002

2539/99 - William Blundell as Executor of the Will of Germaine Marguerite Marie Francoise Toussaint Curvers v John William Antony Curvers

JUDGMENT 1 BURCHETT AJ: Mrs Germaine Curvers died on 15 April 1997 and, after litigation in the Probate Division of this Court which was taken to the Court of Appeal, probate of her will was granted in solemn form to the plaintiff William Blundell. The order of the court admitting the document to probate deleted from it a gift of a painting by Emmanuel Phillips Fox, to which further reference will be made, purporting to be in favour of Mr Blundell. The present proceeding concerns the ownership of about 900 paintings etchings and drawings in the home of the deceased and her husband, of which her will purports to dispose, substantially for the benefit of certain charities. The husband, Mr John Curvers, whose evidence is supported by that of their daughter Mrs Sabrina McMahon, claims that the works of art are his own, in the case of most of them by virtue of a joint entitlement incidental to which was a right of survivorship. 2 With a few exceptions, the acquisition of the paintings and other works of art took place over a long period of years pursuant to a course of conduct which underwent some changes over the years, so that the reaching of conclusions about the ownership of items purchased requires, I think, an examination of that course of conduct and of the relations between the parties. Mr Curvers was born on 3 August 1921 and Mrs Curvers on 25 June 1925, in Belgium, where they married in 1950, just prior to migrating to Australia. There were two children of the marriage, one of whom is Mrs McMahon, now aged about 48. Mr Curvers established himself in business in Australia, apparently very successfully. In 1955, Mr Curvers purchased in his own name 299 Edgecliff Road Woollahra, a large building on one level of which the family lived, two other levels being converted into a guesthouse managed by Mrs Curvers. The home and guesthouse were furnished and decorated largely by the purchase of items at auctions, the purchase monies being provided initially by Mr Curvers from the business activities conducted by him, and later also from the earnings of the guesthouse business. In the early days, Mr and Mrs Curvers both attended auctions, but over a period, this activity became more and more the preserve of Mrs Curvers. She was extremely interested, not only in purchasing art for their home and guesthouse, but also in dealing in art. As a consequence, items which had been at 299 Edgecliff Road were frequently sold, to be replaced in due course by further purchases. Often, the money received by Mrs Curvers by selling one item would be used to purchase another, and from time to time she would ask her husband for further money to enable her to make a purchase. Mrs McMahon gave evidence of being taken by her mother to auctions on a very great number of occasions from quite early in her childhood. It is clear that the purchase of art became a major preoccupation of Mrs Curvers, and that the very large house became cluttered, well prior to the year 1985, with considerably in excess of 1,000 paintings, drawings, etchings and similar objects of art. 3 For approximately two and one half years between about 1980 and about 1982, Mrs Curvers was overseas in Europe, and in 1980, after managing the guesthouse business himself for about a year, Mr Curvers closed that business. The house at 299 Edgecliff Road remained the family home. Upon her return, Mrs Curvers resumed her purchases of artworks on an extensive scale. Partly because Mr Curvers objected to the cluttering of his house to such a great extent (at one stage, he said, the number of paintings in the house was 1,500), and perhaps even more because he objected to the use of the house for the negotiation of numerous dealings in artworks, Mrs Curvers acquired in 1985 premises for an art gallery in Windsor Street, Paddington. At about the same time, she arranged to rent, at first a quite small room, and later a quite large room, for the purpose of storage of works of art at Millers Self Storage Pty Limited, Ultimo. A number of paintings and similar works were moved from the home to these places by Mrs Curvers with the assistance of her daughter. Mrs McMahon gave evidence that her mother said to her: "I want to separate my stock from your father's. I want to be independent and free. I want to do business from my gallery without interruption from your father."