Supreme Court New South Wales Medium Neutral Citation: Loumbos v Ward [2016] NSWSC 885 Hearing dates: 6,7 and 8 October and 11 November 2015 Decision date: 28 June 2016 Before: Lindsay J Decision: (1) A deed of gift signed by the plaintiff in favour of the defendant, but held in escrow subject to a condition not fulfilled, should be set aside and the original instrument delivered up for cancellation. (2) A residential property purchased in the name of the defendant is held by her on trust for the plaintiff. (3) The plaintiff's claims to return of a motor vehicle and rings should be dismissed. Catchwords: EQUITY - General principles – Unconscionability, unconscionable dealings and other forms of equitable fraud – Execution of deed of gift under mistaken belief operation of deed conditional upon marriage – Unilateral mistake – Gift in contemplation of marriage – No marriage, no gift Cases Cited: Banque Nationale de Paris v Falkirk Developments Ltd (1977) 136 CLR 177 Cohen v Sellar [1926] 1 KB 536 Commercial Bank of Australia Limited v Amadio (1983) 151 CLR 447 Kais v Turvey (1994) 11 WAR 357 Kakavas v Crown Melbourne Limited (2013) 250 CLR 392 Louth v Diprose (1992) 175 CLR 621 Scook v Premier Building Solutions Pty Ltd (2003) 28 WAR 124 Segboer v AJ Richardson Properties Pty Ltd [2012] NSWCA 253 Taylor v Johnson (1983) 151 CLR 422 Texts Cited: Meagher, Gummow & Lehane, Equity: Doctrines and Remedies (LexisNexis Butterworths, Australia, 5th edition, 2015) N Seddon, Seddon on Deeds (Federation Press, Sydney, 2015) Category: Principal judgment Parties: Plaintiff: Valentine John Loumbos Defendant: Deborah Jane Ward Representation: Counsel: Plaintiff: M Dicker SC Defendant: MA Ashurst SC and LD Corbett Solicitors: Plaintiff: Adams and Partners Lawyers Defendant: Marsdens Law Group File Number(s): 2013/00363949 Judgment INTRODUCTION 1. Between February 2011 and March 2013 or thereabouts, the plaintiff and the defendant (mature adults, each in search of something more than a single life) rode an emotional rollercoaster towards a marriage that was never to be. They quickly established a personal relationship with an intensity that, if sustainable, was not sustained. It ended in acrimony, setting the tone for the current proceedings. 2. Long before November 2011 or thereabouts, when the parties formally became engaged to be married, marriage was within their contemplation. No date for its solemnisation was ever set. An environment in which the plaintiff had yet to be (as, in due course, he was) acquitted of criminal charges was not conducive to the setting of a date. His final acquittal was followed by a business failure that offered no encouragement to an early wedding, but fertile ground for deterioration in a personal relationship conceived in affluence since lost. 3. When the parties' relationship was on the up-and-up, they lived a life of extravagance that, in more sober times, seems foolhardy. The plaintiff (an older man, apparently wealthy) lavished the defendant (an attractive, middle-aged woman 21 years his junior) with expensive trips, dinners and gifts which, as his commercial fortunes took a turn for the worst, he could ill afford. 4. When everything turned sour, in the Christmas-New Year period of 2012/2013, with the provocation of a third party who claimed (she says, falsely) to be the defendant's lover, the parties' relationship turned to dust as quickly as it had sprung to life two years earlier. 5. By these proceedings, the plaintiff seeks the return of property he gifted to the defendant in the halcyon days. He says that the gifts were conditional upon a marriage that never occurred. She says that all gifts, save one, were unconditional. The exception, a gift of rings to celebrate the parties' engagement, she says, became unconditional when, at the end of their relationship, the plaintiff told her she could treat the rings as her own. 6. The parties are agreed that, subject to the terms of the particular transaction, a gift of property in contemplation of marriage is generally to be regarded as a gift upon a condition that the property must be returned in the event that the contemplated marriage does not take place: Kais v Turvey (1994) 11 WAR 357. THE SUBJECT MATTER OF THE DISPUTE 1. In temporal terms, the property the subject of disputation focuses attention on three transactions. 2. First, on 6 June 2011 the plaintiff outlaid $87,000 in the purchase of a BMW motor vehicle for the defendant. By his statement of claim, he seeks an order that the defendant "return" the vehicle to his possession. In substance, he seeks a declaration that he is the owner of the vehicle, coupled with an order that she deliver it up to him. 3. Secondly, on 14 July 2011 the plaintiff, with borrowed money, funded a purchase, in the name of the defendant, of the residential property at Lilyfield (an inner western suburb of Sydney) at which the defendant had for several years resided as a tenant; the purchase price of the property was $1.3 million. By his statement of claim, he seeks a declaration that the defendant holds the property on trust for him, together with orders for its transfer to him 4. Thirdly, on 19 December 2011 the plaintiff outlaid $61,721 in the purchase of three rings (a diamond engagement ring and two wedding rings) given to the defendant in celebration of their engagement to be married. By his statement of claim, the plaintiff claims an order that "the engagement ring" be "returned" to his possession or alternatively, an order that she pay him a sum of money that represents its value. The plaintiff's claim to relief speaks of a single ring. The parties' submissions speak of the three rings the subject of the gift. PARAMETERS OF THE DISPUTE The BMW Motor Vehicle 1. The defendant contends, and the plaintiff denies, that the BMW was a birthday present, bought for her to celebrate her 44th birthday on 10 June 2011. The plaintiff's denial relies, in part, upon his purchase of a pearl and sapphire ring for her, on 9 June 2011, at a cost to him of $3,500. That, he suggests, was her birthday present, not the car. Engagement Rings 1. Unsurprisingly, the defendant concedes that the rings given to her by the plaintiff to mark their engagement were a gift conditional upon a marriage that never occurred; but, she contends, the plaintiff is not entitled to recover the rings because: 1. he ended the parties' relationship without sufficient cause on 19 March 2013, and thus disentitled himself from calling for a return of the rings; she had made a promise of marriage as consideration for the rings, and she had not resiled from her promise: Cohen v Sellar [1926] 1 KB 536; and 2. in ending their relationship, via an intemperate email, the plaintiff abandoned his interest in the rings (or, as she puts it, made the gift unconditional) by telling the plaintiff, in the course of an argument in which she claimed moneys due from his company for consultancy fees, that she could sell the rings (that is, treat them as her own). Beneficial Ownership of the Lilyfield Property 1. In economic terms, the major battlefield upon which the proceedings have been fought concerns beneficial ownership of the Lilyfield property. 2. It is not in dispute that the plaintiff funded the whole of the purchase price, stamp duty payable on the purchase and all other costs of acquisition. 3. Nor is it in dispute that, in formal terms: 1. the plaintiff became the registered proprietor of the property subject to a mortgage in favour of the Commonwealth Bank (subsequently replaced by a mortgage in favour of JWH Nominees Pty Ltd). 2. the purchase was part of a larger set of transactions in which the plaintiff and associated interests "refinanced" his business by replacing the National Australia Bank with the Commonwealth Bank as his financier. 3. in support of the mortgage over the Lilyfield property, the defendant executed a guarantee in favour of the Commonwealth Bank. 4. in support of the defendant's position, the plaintiff (on 12 July 2011) executed in her favour two deeds prepared by solicitors (the firm known as Clarke Kann) on her instructions. 1. Of these two deeds, most attention has focused on a document entitled "Deed Poll-Gift". The other document, a "Deed of Indemnity", reflects the fact that, although the defendant gave a guarantee to the bank, as between the plaintiff (and associated companies) and the defendant, the parties' arrangement was that the plaintiff would pay or bear the whole of any liability to the bank. 2. In terms, the Deed Poll-Gift characterised the plaintiff's gift to the defendant as a gift of money, the purchase price of the property, rather than the real estate itself. 3. In essence, the plaintiff contends, and the defendant denies, that: 1. the Deed Poll-Gift was executed on the basis that it would be held in escrow pending solemnisation of the parties' marriage. 2. alternatively, the deed should be rectified to record that the gift it evidences was made in contemplation of marriage; that is, conditional upon a marriage being solemnised. 3. alternatively, upon an exercise of equitable jurisdiction, the deed should be set aside as unconscionable. A PLEADING DISPUTE 1. The last of these contentions involves a dispute between the parties about the scope of the plaintiff's statement of claim: more particularly, paragraph 18 of the amended statement of claim filed on 24 September 2015. 2. The defendant accepts that the plaintiff has pleaded, and is entitled to rely upon, an allegation of "unconscionability" in the context of an allegation of mistake based upon Taylor v Johnson (1983) 151 CLR 422. However, she denies that the plaintiff has pleaded, or fairly conducted a case on the basis of, an allegation of a "catching bargain" in which she is said to have acted unconscientiously in taking advantage of him in circumstances in which he was at a special disadvantage. Specifically, she denies that it is open to him to rely upon the line of cases best exemplified, in the current proceedings, by Louth v Diprose (1992) 175 CLR 621. 3. In this judgment I assume, in favour of the defendant, that her pleading objection is well taken. Loosely drafted, the scope of the statement of claim is open to debate. There is no primary allegation, but only a particularised allegation of unconscionability on the basis, that the plaintiff was at a special disadvantage. The particularised allegation of disadvantage is arguably limited to an absence of legal representation, although it might also be taken as extending to an allegation that the plaintiff was, at the time the Deed Poll-Gift was executed, "romantically attached" to the defendant. No "special disadvantage" suffered by the plaintiff is clearly, unequivocally identified. 4. Nevertheless, as I followed the course of the final hearing, the plaintiff did advance, without material objection on the part of the defendant, an allegation of unconscionability arising from a catching bargain, not merely a case of mistake. 5. In written submissions dated 1 October 2015, entitled "Preliminary Outline of the Plaintiff's Submissions for Trial", counsel for the plaintiff (under the heading of "unconscionability") submitted that there had been "unconscionability within Kakavas v Crown Melbourne Limited (2013) 250 CLR 392", and that the question before the Court was "whether there was unconscionable conduct based on a special disability or disadvantage involving a predatory state of mind in [the defendant]". Louth v Diprose would have been a better exemplar of the case sought to be advanced by the plaintiff, but the common roots of Kakavas v Crown Melbourne Limited and Louth v Diprose find expression in their respective references to Commercial Bank of Australia Limited v Amadio (1983) 151 CLR 447. 6. The plaintiff's pleading is obscure enough not to allow the defendant's objection to be dismissed out of hand. However, in light of my findings it is not necessary for me to dwell unnecessarily on, or to resolve, the pleading dispute. 7. In my assessment, the interests of justice can best be accommodated by accepting the defendant's confinement of the case and assessing the evidence on that basis. QUESTIONS OF FACT AND CREDIT 1. A determination of the proceedings turns, essentially, on findings of fact. 2. Acknowledging that, counsel, on both sides, tested the evidence robustly in cross examination and made extensive submissions on the credit of witnesses. 3. Subject to one qualification, I am prepared to accept that, despite substantial conflicts and inconsistencies in the evidence, all witnesses endeavoured to tell the truth as far as it has been given to them to see truth. That said, there was a substantial amount of reconstruction in the evidence of most witnesses, and much of it related to particular recollections of casual conversations, a recipe for unreliability. 4. Significantly (in the absence of contemporaneous file notes) the evidence of the solicitors who acted for the defendant in connection with the critical conference of 12 July 2011 at which the Deed Poll-Gift was executed, Mr Gray and Ms Kerry of Clarke Kann, involved substantial reconstruction of events. 5. For their part, both the plaintiff and the defendant remain blinkered by the emotional trauma of a soured relationship and an unconscious bias of self-interest. Neither was entirely consistent in their recollections. Neither was an entirely reliable witness. 6. The foreshadowed qualification on my general observations about credit (which has an important bearing on a critical issue in the proceedings) is that I do not accept, as reliable, the defendant's protestations of innocence about the course of events surrounding the preparation and execution of the Deed Poll-Gift, or about the withholding of a copy of that deed from the plaintiff and his solicitor (Mr Beattie), in the critical period between 12-14 July 2011 inclusive. That is the period between execution of the Deed Poll-Gift and the day upon which the contract for purchase of the Lilyfield property was exchanged and settled as part of the plaintiff's refinancing transactions. The defendant's conduct appears to have been a misguided endeavour to bind the plaintiff, immediately, to a deed which he was led to believe, mistakenly, could and would only operate upon the solemnisation of a marriage between the defendant and himself. 7. Any assessment of the evidence requires that allowances be made for human frailty, in more than a single dimension. In a world in which strong emotions have held sway, one must remain mindful of objective considerations. THE GENERAL FACTUAL MATRIX 1. At their first meeting, the plaintiff (born in October 1945) was aged 65 years; the defendant (born in June 1967) was aged 43 years. 2. At the time they first met (introduced by the defendant's father) in February 2011, the plaintiff presented to the defendant as a successful businessman and, perhaps, also as a father figure. He was in truth, I venture, a lonely, comparatively unsophisticated man looking for companionship in the wake of experience with divorce, on two occasions, and a grown up family. He was susceptible to charm. He found the defendant charming. He was besotted by her. In his pursuit of her – though she did not run far or fast to escape – he lavished her with attention and material gifts. 3. At the time they met, the defendant, for her part, was ready for companionship. She was a single mother responsible for the welfare of an adult, disabled child. Despite superficial trappings of economic success, and commercial sophistication, she lacked the security of home ownership and anything like a substantial income. Although she longed to own the residence at which she and her daughter had lived (the Lilyfield property) since 2007 or thereabouts, she was but a leasee; part of her income was derived from a boarder (Mr Rivadavia) who occupied a granny flat; and she lacked the wherewithal to purchase the property from her own resources. I hesitate to say that she was besotted with the plaintiff, but I accept that she genuinely imagined herself to be in love with him, and she was predisposed to accept his advances even though, at the outset, the attention he gave her was not undivided. 4. She was not deflected in her pursuit of a better life with him by his announcement, early on, that, without prejudice to their ongoing intimacy, he wanted to explore the possibility of re-establishing a relationship with a former female friend, a fiancé of sorts. At about the same time, and for about 15 months thereafter, she stood by him during the pendency of criminal proceedings (involving two trials, one in November 2011, the other in June 2012) culminating in his acquittal of charges (promoted by the former fiancé) of sexual assault against the fiancé's daughter. 5. The constancy that the defendant here demonstrated towards the plaintiff, coupled with that shown by her in caring for a disabled child, counsels caution against the plaintiff's endeavour to have the Court characterise her as a mere gold digger. On the other side of the relationship, so too does the profligate pattern of expenditure exhibited by the plaintiff in his courtship of her. 6. Both parties had expensive tastes, and a tendency to indulge them. They dined out regularly. Early on, they spent a weekend together at a Central Coast holiday resort (in March 2011), and shortly thereafter travelled to the Gold Coast for a holiday with a friend of the defendant. The plaintiff funded trips to Mauritius (over Christmas 2011) and India (shortly after Christmas 2012). Within the first few weeks of their relationship commencing, he bought her a pearl necklace worth $10,000. He also bought her a mink coat, other clothing and more expensive jewellery. He not only bought her a brand-new BMW; he paid off a $52,500 finance debt on her Mercedes Benz. 7. From about mid-2012, through their respective corporate vehicles, the plaintiff caused the defendant to be paid a fortnightly fee of $2,500 for "consultancy services" in circumstances in which the plaintiff's payments might more readily be seen as an attempt to provide her with a layer of financial security. 8. Although the parties did not formally announce an engagement to be married until November 2011 or thereabouts, marriage was expressly in contemplation when (in June 2011) the plaintiff bought the BMW for the defendant; and a month later, when the Lilyfield residence was purchased (with a simultaneous exchange and settlement of contracts on 14 July 2011), a personal indulgence on the part of the plaintiff buried in his refinancing arrangements. DETERMINATION OF THE PLAINTIFF'S CLAIMS The BMW Motor Vehicle 1. Although the plaintiff's purchase of the BMW was, I accept, motivated, in part, by an expectation that he and the defendant would be married, the car was purchased for the defendant without the imposition of any condition referrable to marriage. It was bought as an act of generosity, as a part of ongoing acts of generosity, with the intention that the defendant own it absolutely, immediately. It was bought for her personal use, as her car, not as the car of a family in formation. It was not bought, specifically, as a birthday present for the defendant, although the proximity of its purchase to her birthday may have been a factor in the plaintiff's thinking, and in her acceptance of it. It was not beyond the plaintiff to buy her expensive jewellery in addition to the car. I accept that the plaintiff may have referred to the prospect of marriage in commentary about the car, but not that he made marriage a condition of his gift of it. 2. On these findings, the plaintiff's claim to a "return" of the BMW must fail. The Engagement Rings 1. For different reasons, so too must his claim for a "return" of the rings given to the defendant in celebration of the parties' engagement. 2. Characterisation of the rings as an "engagement ring", together with "wedding rings", lends support to their characterisation as gifts conditional upon marriage, even though no date for solemnisation of a marriage was set. If property in the rings passed to the defendant only conditionally at that time, the plaintiff abandoned any ongoing interest he had in them when, at the termination of their relationship, he told her via email that she could sell them. Intemperate and emotionally charged though his communication on that occasion undoubtedly was, I accept that his intention, communicated to her in vulgar language, was that she could keep the rings. He spoke in anger and frustration; but, objectively, he emphatically abandoned the rings as a means of marking the death of a romantic relationship. She says, and I accept, that, shortly after his email, they met face to face; they agreed to go their separate ways; and he told her to keep the rings. 3. No fault is to be attributed to either the plaintiff or the defendant for termination of their relationship. The relationship broke down, without attributable blame, under pressure the plaintiff and, indirectly, the defendant, experienced from: a business failure; in light of that failure, an inability on the part of the plaintiff to maintain earlier levels of generosity, to which the defendant had become accustomed; and seeds of suspicion sown in the mind of the plaintiff by a claim of the defendant's boarder (Mr Rivadavia) to have an ongoing sexual relationship with the defendant as well as a business relationship. For her part, the defendant had her own suspicions about the plaintiff's fidelity, which he held groundless. A relationship of mutual confidence by this time had fallen away. 4. What may have been a mischievous intervention by Mr Rivadavia, at a time when the parties were travelling in India but the plaintiff was pressed for money, and refinancing his loans on comparatively onerous terms (with JWH Nominees), exacerbated differences between the parties. The defendant conceded an historical, sexual connection with Mr Rivadavia but she denied an ongoing connection, and she secured from him a retraction. It was not enough. Irreparable damage had been done. Expressions of contempt clouded communications on both sides. The relationship between the plaintiff and the defendant came to an end, in effect, by mutual assent, on terms that entitle the defendant to keep the rings. The Lilyfield Property, and the Deed Poll-Gift 1. The larger problem, of determining who has beneficial ownership of the Lilyfield property, is not so readily resolved. 2. If the Deed Poll-Gift were to be held operative, and enforceable, according to its terms, the plaintiff's claim to beneficial ownership of the Lilyfield property must fail. 3. The document, executed as a deed poll by the plaintiff, was expressed to be made by the plaintiff as "Donor" in favour of the defendant as "Donee". She signed it under a statement to the effect that she "[acknowledged] the gift the subject of the deed". 4. Under the heading "background", the deed provided a preamble in the following terms (with emphasis added): "The Donor intends to make an immediate gift of the purchase price of $1,300,000, and the stamp duty and any other fees and costs ('the Gift') associated with the purchase by the Donee of the property located at … Lilyfield NSW to the Donee on the terms set out in this Deed Poll". 1. Under the heading "Operative Provisions", the deed comprised only three substantive provisions. Clause 1 (entitled "Gift") provided (with emphasis added) that "[the] Donor hereby gives to the Donee all monies comprised in the Gift". Clause 2.1 provided that the law of New South Wales governed the deed, and that the parties submitted to the non-exclusive jurisdiction of New South Wales courts. Clause 2.2 contained a covenant for further assurances, providing that "[each] party must take all steps, execute all documents and do everything necessary or desirable to give full effect to any of the transactions contemplated by this Deed" 2. The respective addresses of the parties recorded in the deed were different. The plaintiff's address was at Hunters Hill, the defendant's at the Lilyfield property. On the face of the deed, there was nothing to suggest that the parties were in a de facto relationship or contemplating marriage. 3. The deed bears the date 14 July 2011 although it was executed, at the offices of Clarke Kann, in the course of a conference on 12 July 2011. The dating of the document demonstrates that, contrary to the plaintiff's understanding, it was not held strictly in escrow but purportedly allowed to operate according to its tenor as an incident of the transactions carried into effect on 14 July 2011. 4. Under the direct supervision of Mr John Gray (a partner of the firm), Ms Morgan Kerry (an employed solicitor of five years standing) had carriage of a comparatively short conference (of uncertain duration) with the plaintiff and the defendant. 5. The documents signed at the conference comprised the Deed Poll-Gift; the "Deed of Indemnity" executed by the plaintiff on behalf of himself, and his companies, in favour of the defendant; and the Contract for purchase of the Lilyfield property. 6. Although executed on 12 July 2011 the Deed of Indemnity, like the Deed Poll-Gift, now bears the date 14 July 2011. 7. As has been noted, the apparent object of the Deed of Indemnity (reflected in clause 3 as its central provision) was to ensure that, as between the plaintiff (and companies associated with him) and the defendant, the plaintiff's interests would bear the whole of any liability arising under the plaintiff's refinancing arrangements. 8. A fundamental flaw in the Deed of Indemnity, which corroborates the plaintiff's evidence that that he did not read any documentation at the conference and was offered only a minimal explanation of it, is that the plaintiff's financier is described as the National Australia Bank rather than as the Commonwealth Bank of Australia. That misstatement appears in paragraph A of the preamble and in the definition of "Facility Agreement" in clause 1.1. The NAB was the outgoing financier, not the incoming financier to whom guarantees were being given. Had the plaintiff read the deed, or had it been read to him, this error would have been exposed. 9. The purchaser's counterpart of the contract, signed at the conference (but since annotated with a note that suggests, erroneously, that it was signed the following day) bears handwritten amendments that: (a) evidence an agreed change in the identity of the purchaser from the plaintiff to the defendant; and (b) record that the purchaser's solicitors were "Clarke Kann with Gray & Perkins", the defendant's personal solicitors, rather than Wiltshire Webb Staunton Beattie (the plaintiff's solicitors on the broader refinance transactions). The purchase is described as being subject to existing tenancies, a reference to the defendant's occupation of the Lilyfield property as a tenant. It is perhaps the residue of an earlier proposal (from which the defendant persuaded the plaintiff) that the plaintiff buy the property in his own name, assuming the role of landlord to the defendant. 10. What occurred at the conference, and how long the conference took, is the subject of conflicting evidence, the resolution of which is not assisted by the absence of any contemporaneous file notes prepared by the solicitors. 11. In their reconstruction of events, the solicitors appear at one time to have imagined that the conference took place on 13 July 2011. However, it is now common ground that it took place on 12 July 2011. 12. Estimates of how long the conference took vary but, on any view of the evidence, it was a brief affair, taking no more than 30 minutes, most of which was evidently spent by Ms Kerry explaining the terms of the purchase contract. Little, if anything, appears to have been said by way of explanation of the two deeds. No letter of advice was provided by the solicitors in relation to the documentation, none of which was provided to the plaintiff (or his solicitor, Mr Beattie) before the simultaneous exchange and settlement transaction effected on 14 July 2011. 13. The defendant suggests in her evidence that, at the time of the conference, she understood Clarke Kann to have been instructed by the plaintiff. However, the evidence objectively points to Clarke Kann being instructed by, and perceiving themselves to be retained only on behalf of, the defendant herself. 14. The plaintiff's evidence as to what occurred at the conference bears the marks of uncertainty about incidental detail that characterises the evidence of all participants. Ms Kerry appears not to have made much impression on him at all, and he appears to have misidentified Mr Gray as another partner of Clarke Kann. 15. Focusing attention on the substance of what he says occurred, the plaintiff's version of events may be taken (with editorial adaptation and emphasis added) from an affidavit sworn by him on the 13 February 2015: "[50] … After exchanging pleasantries [the defendant], the lawyer [who I find to have been Mr Gray] and I entered a meeting room and had a conversation that included an exchange of words to the following effect: Me: 'My children do not get on well with [the defendant] and do not like her. She is concerned that if we do get married, any assets which I have will be taken by my kids and she will miss out in the event that I die or something happens to me. I would like to put in place something that will give her the house at … Lilyfield if we get married and something goes wrong, such as me passing away or going broke. The document is not to take effect until we are married though. Is this possible to do?' Lawyer: 'Yes. You can gift the house to [the defendant]. I have already spoken to her and we have prepared the necessary documents for you to sign.' Me: 'Fine. So long as it doesn't see the light of day until we are married.' Lawyer: 'That's right.' [51] [The defendant] and I then signed some documents which the lawyer provided to us. I did not read the documents properly. I just signed where I was told to by the lawyer. [52] We then left the office of Clarke Kann. As we were leaving the office, I said to [the defendant] words to the effect: 'There you go, you are covered.' … [The] Deed Poll-Gift signed by [the defendant] and myself … was subsequently dated 14 July 2011. [53] I observed that [the defendant] seemed very pleased upon leaving the Clarke Kann offices. [54] [The defendant] and I continued to have many discussions regarding our commitment to each other and getting married to each other. These conversations would include statements in day to day discussions between the two of us with [the defendant] saying words to the following effect; 'When we are married …', 'When you win this court case we will get married.' [At about that time, I was involved in criminal proceeding]." 1. The critical question for the Court's determination as a question of fact is whether the plaintiff did say anything at the conference to the effect, as he deposes, that the Deed Poll-Gift was not to take effect until the parties were married, and that it might be signed "so long as it doesn't see the light of day until we are married". 2. The defendant denies that any such statements were made at the conference by any participant, and her denial is ostensibly corroborated by the solicitors, Mr Gray and Ms Kerry. 3. For several reasons, I am satisfied that the substance of the plaintiff's account should be accepted. I accept that he made statements to the effect that any operation of the deed was to be conditional on the parties' marriage. I doubt that any lawyer specifically said "that's right"; but I accept that, however the solicitors responded, the plaintiff not unreasonably believed that they acquiesced in his statement of intention. 4. Mr Smith, the plaintiff's mortgage broker, gave evidence, which I accept, of a conversation with the parties in which the defendant explained, as the rationale for a change in the identity of the purchaser (from the plaintiff to the defendant), a desire on the part of the parties, contemplating marriage, to protect the defendant against claims by his children in the event of his death. That is consistent with what the plaintiff says he told Mr Gray. It is independently plausible even if, as the defendant says, she had not had material contact with the plaintiff's children. 5. On their own evidence, the Clarke Kann solicitors did not really engage with the plaintiff, or listen to him meaningfully. They ought to have heard what he said, digested it and confronted him with contrary terms of the deed, and an insistence that he obtain independent legal advice before signing anything. They ought to have done that as much in the interests of the defendant as in the interests of the plaintiff. 6. They did not do so, in my assessment, because Mr Gray (the senior solicitor, under whom Ms Kerry worked) failed to appreciate that there was any conflict of interest between the parties; he regarded his professional duties as owed only to the defendant, to the exclusion of the plaintiff; he did not reflect upon the possibility that performance of his professional duties to the defendant required him to ensure that the plaintiff gave a fully informed consent to the documentation presented for signature; although he has no precise recall of what happened at the conference, he believes that he would have made an opening statement to the effect that his firm acted only for the defendant and, consequently, he believes he would have disregarded any statements made by the plaintiff. Ms Kerry's attention was narrowly focussed on explaining the terms of the purchase contract, and on the mechanical exercise of obtaining signatures on the documentation to be signed to facilitate the purchase. 7. The formalities of an introduction to the plaintiff having been attended to in a perfunctory way, the solicitors relegated him to the background, focusing their attention on the defendant, the only one they recognised as a client. By a wilfully blind indifference to his rights, they marginalised his participation in the conference and disregarded anything he said, thereby failing to protect either party. 8. Besotted as he was with the defendant, the plaintiff's mind was preoccupied with the purchase transaction as a means of facilitating his intended marriage to the defendant. That was necessarily in the context of the broader refinancing transactions proceeding in tandem. They, in combination with the $1.3 million purchase price he had negotiated for the Lilyfield property, compelled him to retain an element of sobriety in his thought despite his implicit, ongoing trust of the defendant. In funding purchase of the property in the defendant's name, the plaintiff committed himself to a regime for repayment of debt over time, a fact consistent with a belief on his part that he had a future with the defendant. This was not a one-off transaction. It was part of an ongoing relationship in contemplation. 9. Although the property was to be purchased in the defendant's name, it formed part of the security available to the plaintiff for business purposes, a fact corroborated by the Commonwealth Bank mortgage and related documentation, as well as security documentation attending his subsequent refinancing with JWH Nominees. The parties proceeded on the basis that, although the property was to be and was purchased in the defendant's name, it was available to the plaintiff for his business purposes. 10. I am satisfied that, in his execution of the Deed Poll-Gift and in his acquiescence to purchase of the Lilyfield property in the name of the defendant, the plaintiff believed that the deed could have and would have no operative effect unless and until he and the defendant were married and that, in the meantime, although the property was purchased in the name of the defendant, it remained beneficially his. Statements made by the plaintiff in a social setting (before and after 12 July 2011, before the parties' relationship breakdown), to the effect that the plaintiff proposed to give the property to the defendant when they were married, corroborate the existence of this belief. 11. I am also satisfied that, had the plaintiff not held this belief, he would not have agreed to fund purchase of the property in the defendant's name. He could not afford simply to give away $1.3 million even if disposed to do so. He cannot reasonably be thought to have been so disposed. He borrowed the whole of the purchase price. He relied upon what he perceived to be a common understanding, of future marriage, with the defendant. 12. I am satisfied, further, that the defendant procured the plaintiff's execution of the Deed Poll-Gift, and his provision of the whole of the purchase price and associated acquisition costs, knowing that this was the plaintiff's state of mind, believing him to be mistaken and doing nothing to correct his mistake. 13. Far from disabusing the plaintiff of a mistaken belief, she fostered it. She appears, deliberately, to have taken steps to ensure that the settlement of 14 July 2011 proceeded without either the plaintiff or his solicitor (Mr Beattie) obtaining a copy of the documentation signed at the conference of 12 July 2011. 14. The defendant arranged for Clarke Kann, as her solicitors, to prepare the Deed Poll-Gift without forewarning the plaintiff of its terms, or allowing him an opportunity (before or after its execution) to obtain timely, independent advice. That Clarke Kann directed its advices to the defendant, to the exclusion of the plaintiff, is illustrated, not only by their direction of substantially all their attention at the conference of 12 July 2011 towards the defendant, but by a written advice provided via email on 30 June 2011 addressed to the defendant, not copied to the plaintiff. For her part, the defendant took no steps to have a copy of that advice or the deed provided to the plaintiff or Mr Beattie before the purchase contract was exchanged and settled on 14 July 2011. Her failure to take such steps occurred despite an express request by Mr Beattie on 13 July 2011 that she obtain for him a copy of whatever documentation the plaintiff may have signed the previous day. The plaintiff was evidently unable to explain the character of the documentation to Mr Beattie. For her part, the defendant did not forward a copy of Mr Beattie's request to Clarke Kann or make a copy of the documentation available to Mr Beattie when she herself obtained it on 14 July 2011. 15. Her conduct appears, misguidedly, to have been calculated to ensure that the plaintiff not be kept fully informed of the terms, nature and purported effect of the Deed Poll-Gift or her intention to rely upon it unconstrained by any condition about future marriage. 16. In proceeding thus, the defendant's judgement was overborne by her anxiety for personal security in her home and her appreciation that the plaintiff, at that time, was generously disposed towards indulging her in the hope, and expectation, of marriage. She was not saved from error, as she should have been, by legal advice that insisted that the plaintiff obtain timely independent legal advice designed to ensure that there was no room for misunderstandings. Instead, without that advice, she encouraged the plaintiff to purchase the property, in her name, in the belief, regarded by her as mistaken, that the property would be owned by him unless and until they married. On the basis of that belief, and not otherwise, he signed the Deed Poll-Gift and funded purchase of the property in her name. 17. On these findings of fact, the case falls comfortably within the jurisdiction of equity to order that the Deed Poll-Gift be set aside, to declare that the defendant holds the Lilyfield property on trust for the plaintiff, and to order that the property be conveyed to the plaintiff. Such orders can, and should, be made on the basis that: (a) the deed was delivered by the plaintiff to the defendant's solicitors in escrow and, the condition to which the operation of the terms of the deed was subject (marriage) not having occurred, the deed never became operative according to its terms and it should be formally set aside and delivered up for cancellation; or alternatively (b) the plaintiff, to the knowledge of the defendant, entered into the deed (by execution and delivery) under a unilateral mistake as to its intended operation and it would be unconscionable on the part of the defendant to hold him to the terms of the deed so that, again, the deed should be set aside and delivered up for cancellation; and (c) in any event, the deed is not an impediment to a declaration that, the plaintiff having paid the whole of the purchase price of the property with the intention (known to the defendant) of retaining ownership of it, the defendant holds it on trust for him. 18. The common factual substratum underlying this analysis is the stated intention, and belief, of the plaintiff that the deed was executed, and delivered, conditionally upon marriage, coupled with a contrary subjective understanding on the part of the solicitors for the defendant and her knowledge of both the plaintiff's state of mind and the terms of the deed. 19. If, as I hold, the plaintiff told Clark Kann in conference, that the Deed Poll-Gift was not to take effect until the parties were married and that it might be signed "so long as it does not see the light of day until we are married" and if, as I also hold, the lawyers ought to have heard and paid heed to what he said, then, objectively (recognising that the "objective theory" of contract law, noticed in Taylor v Johnson (1983) 151 CLR 422 at 428-429, is equally applicable to an assessment of whether a document was intended to be delivered unconditionally as a deed or in escrow), Clarke Kann had no authority to date the deed or to allow the defendant to treat it as operative in the absence of a marriage. 20. The deed was delivered (by the plaintiff to Clarke Kann, as agents for the defendant) in "escrow" in the sense that it could not be recalled by the plaintiff, but it was not operative according to its terms unless and until a particular condition (marriage of the plaintiff and the defendant) occurred: Segboer v AJ Richardson Properties Pty Ltd [2012] NSWCA 253 at [72]-[73]. The fact that it took the form of a deed poll is no impediment to its being delivered, and held, in escrow: Banque Nationale de Paris v Falkirk Developments Ltd (1977) 136 CLR 177 at 185. 21. The evidence does not allow a finding to be made as to the identity of the person who dated the deed, but a reasonable inference is that it was someone within the office of Clarke Kann, in whose possession it remained. 22. Although the deed, held in escrow, could not, in the absence of a marriage (an unfulfilled condition of its operation) stand in the way of a declaration that the defendant holds the Lilyfield property on trust for the plaintiff, it remains a transactional document liable to be set aside. It was delivered subject to a condition implicitly required to be satisfied within a reasonable time if it was to become fully operative: N Seddon, Seddon on Deeds (Federation Press, Sydney, 2015), para [3.13]. 23. The plaintiff signed the deed in the belief that it could not and would not be given effect, not appreciating that, as executed, it could be put about (albeit without authority) as evidence of an immediate and absolute gift, as the defendant has purported to do. 24. The time for satisfaction of the escrow condition having passed, equitable relief would be available (even in the absence of mistake) to have the deed delivered up for cancellation: Scook v Premier Building Solutions Pty Ltd (2003) 28 WAR 124 at 135 [38]-[40]. The fact that it was executed at all, on one view under the influence of a mistake going to its enforceability, renders an order that it be set aside expedient, if not necessary. Such an order is not inconsistent with an order for the deed instrument to be delivered up for cancellation. The jurisdiction to order delivery up and cancellation extends to both void and voidable documents: Meagher, Gummow & Lehane, Equity: Doctrines and Remedies (LexisNexis Butterworths, Australia, 5th edition, 2015), paras [28-015]-[28-016]. 25. The enforceability of the deed having been discounted, both as a document held in escrow and on an application of principles governing enforcement of a transaction entered under a unilateral mistake (Taylor v Johnson (1983) 151 CLR 422 at 432-433), an application of the principles governing a gift made in contemplation of marriage (summarised in Kais v Turvey (1994) 11 WAR 357 at 360-362 and 364-365) reinforces a conclusion that the justice of the case requires a finding that the defendant holds the property on trust for the plaintiff. 26. The defendant cannot, in good conscience, deny the plaintiff's title to the property in circumstances in which no marriage has eventuated; the parties' relationship has come to an end without attributable blame; and the plaintiff paid the whole of the cost of acquisition of the property, reserving (to her knowledge) his beneficial ownership of the property pending a marriage that never happened. CONCLUSION 1. I will allow the parties an opportunity to make submissions about the appropriate form of orders to be made. I am conscious that other proceedings between the parties remain to be determined and that, in any event, attention may need to be given to consequential relief, as well as costs. 2. Prima facie, orders should be made to the following effect: 1. ORDER that the Deed dated 14 July 2011, styled "Deed Poll-Gift" and executed by the plaintiff and the defendant be set aside. 2. ORDER that the Deed be delivered up for cancellation. 3. DECLARE that the defendant holds the Lilyfield property on trust for the plaintiff. 4. ORDER that the defendant convey title to the Lilyfield property to the plaintiff. 5. ORDER, subject to further order, that the continuing operation of the plaintiff's caveat on the title to the Lilyfield property be continued. 6. ORDER that the plaintiff's claim to ownership, and possession, of the BMW motor vehicle be dismissed. 7. ORDER that the plaintiff's claim to ownership, and possession, of the three rings given to the defendant or about 19 December 2011 be dismissed. 8. RESERVE all questions relating to consequential relief (including any application made for possession of the Lilyfield property or for accounts to be taken between the parties) for further consideration. Amendments (before any orders made) 29 June 2016 – In paragraph 82, second sentence added 29 June 2016 – Paragraph 83 added, with consequential renumbering of paragraphs 29 June 2016 – In paragraph 88 (as now numbered), the word "mistaken" before the word "belief" deleted 29 June 2016 – In paragraph 89 (as now numbered), the words "on one view" added to second sentence. ********** Amendments 29 June 2016 - Amendments (before any orders made) 29 June 2016 – In paragraph 82, second sentence added 29 June 2016 – Paragraph 83 added, with consequential renumbering of paragraphs 29 June 2016 – In paragraph 88 (as now numbered), the word "mistaken" before the word "belief" deleted 29 June 2016 – In paragraph 89 (as now numbered), the words "on one view" added to second sentence. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 June 2016