The Facts

Husband and wife buy property together

A husband and wife met in 1990. Two years later they married and bought a house, property P. They were described as tenants-in-common in equal share on the Torrens Title Register and the certificate of title. The husband was also owner of another property, property B.

The marriage was troubled and in 1999 the couple separated. They filed for divorce in 2000.

According to consent orders issued by the Family Court, the husband and wife would each be the sole legal and beneficial owner of one half of property P.

Property P used as location for running business

The husband and wife had a business partnership. Part of this business involved making polystyrene beer holders. This work was conducted out of various locations, including property P.

Between 1999 and 2004, the husband paid the wife $500 per week for this labour.

There were complications around these payments and periods when the husband would not provide the funds to the wife, which caused problems.

Wife sells property P without advertising on market or involving real estate agent

In 2003 the wife sold property P without notifying her ex-husband that the sale was taking place.

She did not contact a real estate agent in order to sell the property and she did not advertise it on the market in any way.

Instead she initially offered the property for sale to friends, but when this was not successful she found a buyer by approaching a person she saw leaving a property inspection of a unit that was advertised for sale not far from her house.

Wife's cousin poses as ex-husband in meetings with solicitor

The wife met with a solicitor on several occasions in 2003 to discuss the ownership and sale of property P. She brought her cousin with her to these meetings to pose as her husband.

The wife told the solicitor that her husband did not speak English well and that was why he was not speaking during their meetings. The solicitor accepted this and spoke in English only to the wife.

There were assistants in the office who could speak the language of the husband. The wife and the solicitor both knew this, but did not ask these assistants to help translate for the husband.

The solicitor was not suspicious of anything, because the wife had forged statements which were supposedly from the husband and which referred to her as "my wife".

Settlement of property and husband's discovery of sale

Property P was sold in September 2003 for $269,000. The wife achieved this by forging her ex-husband's signature on the contract for sale of property P, on a document purporting to authorise her to sell the property, another document authorising her to receive all the proceeds of the sale and on the transfer of the property to the buyers.

In October 2003 the wife received approximately $266,000, being the net proceeds of the sale of property P.

When the husband discovered that property P had been sold without his knowledge and contrary to the orders of the Family Court, he sued his ex-wife for violating his rights to the property, claiming $134,500 as his share of the property, plus interest calculated to November 2011, amounting to a sum of $234,547.

The husband also sued his ex-wife's solicitor for negligence.

CASE A
The case for the wife and her solicitor

CASE B
The case for the husband
  • There was a verbal agreement between my ex-husband and me that I was to have 100% ownership of property P.
  • Even though my ex-husband and I were both named as owners of property P, the verbal agreement still holds weight.
  • My ex-husband gave me verbal permission to sign documents on his behalf.
  • The solicitor had worked with many paired clients in the past, where one would take the lead and the other would assume a more passive role.
  • It's true that I signed the contract for sale on behalf of my ex-husband, but that's only because we had agreed in the past that property P would be mine and that another property, property B, would be his.
  • My ex-husband was paying me $500 per week indefinitely to work from property P as part of our business venture. Doesn't that indicate my ownership?
  • Property P did not belong to my ex-wife 100% - we were both owners, listed on the certificate of title as tenants-in-common in equal share.
  • My ex-wife should not have forged my signature on the contract for sale of the property. It was illegal for her to do so.
  • My ex-wife should not have forged statements from me supposedly allowing her to sell the property and receive the whole of the proceeds. By doing this, she effectively stole my half of the property. She needs to pay me my half of the sale proceeds, plus interest.
  • Property B has nothing to do with my ex-wife. I am the sole owner of this property and my ex-wife has never made any contribution to it.
  • My ex-wife should not have had her cousin pose as me. That was a blatant act of deception which proves her dishonesty.
  • Obviously, the solicitor was negligent. He should have checked the identity of the person posing as me.
  • The solicitor owed me a duty of care and was negligent in not asking the impersonator to produce a photo ID.

So, which case won?

Cast your judgment below to find out

Sue Steel
Conveyancing
Stacks Law Firm

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.