IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

Denbow v. Leong,

 

2007 BCSC 1400

Date: 20070920
Docket: S064328
Registry: Vancouver

Between:

John Gary Denbow

Plaintiff

And

Wendy Anne Leong

Defendant


Before: The Honourable Madam Justice Brown

Reasons for Judgment

Counsel for the plaintiff

G.M. Raphanel

Counsel for the defendant

P.G. Kuchar

Date and Place of Trial/Hearing:

July 10-12, 2007

 

Vancouver, B.C.

INTRODUCTION

[1]                In February 1991, Mr. Denbow transferred his condominium unit from himself, as sole owner, to himself and Ms. Leong as joint tenants.  Mr. Denbow asks that the property be re-conveyed to him as sole owner.  Ms. Leong says that the property was transferred to her as a gift and asks that the property be sold and the proceeds divided equally between them.

[2]                Mr. Denbow and Ms. Leong were never married.  They met in 1983, when she was 17 and he was 50 or 51, and started an intimate relationship within a year.  They dated, although they did not live together from 1985 to 1990.  In 1990, Ms. Leong moved into Mr. Denbow’s condominium unit.  Within a few months of her move into the unit, Mr. Denbow transferred title from himself, as sole owner, to himself and Ms. Leong as joint tenants. 

[3]                Their relationship eventually deteriorated and Ms. Leong moved out of the unit in May 2002. 

POSITION OF THE PARTIES

[4]                Mr. Denbow says that he transferred title to himself and Ms. Leong jointly because he wanted Ms. Leong to represent his interest on the strata council and she could not sit on the council unless she held an interest in the property.  He says that she knew this was the only reason for the transfer and that he was not transferring a beneficial interest to her.  He says she agreed with his proposal.

[5]                Mr. Denbow relies on the presumption of resulting trust.  He says that the property was transferred gratuitously and is held by Ms. Leong in trust for him.  The plaintiff says that the defendant has the burden of proof to establish that the property was transferred as a gift.  The plaintiff says that the timing of the transfer, shortly before the strata council’s annual general meeting, and very soon after the parties started to cohabit, supports his version of events.  He says that the fact that the defendant did sit on the council, starting shortly after the property was transferred, is further support for his version of events. 

[6]                The plaintiff says that shortly after Ms. Leong moved out of the unit, he discovered that she had withdrawn $20,000 from their joint investment account and told her that she could keep the money on condition that she leave his property alone.  He says that her statements that she paid some strata fees “because she lived there” is further evidence that she considered herself paying because she lived in the unit, not because she was a half owner. 

[7]                Mr. Denbow says that Ms. Leong did nothing regarding transfer of title after she left the unit because she was hoping that he would die and she would inherit the unit on his death.  He says that her statement, “both names are on title”, when he requested that she return title to him, also supports his version of events.  He says that if she believed that she had a half interest in the property, she would have worded her statement differently, for example, “remember you gave me that half interest”. 

[8]                The plaintiff says that there were other instances where the defendant took advantage of him and his evidence should be preferred over hers.  He says that Ms. Leong has not met the burden on her to rebut the presumption of a resulting trust.

[9]                Ms. Leong says that before she moved into the unit, Mr. Denbow told her he loved her, asked her to marry him, and asked her to move in with him.  After she moved into the unit, Mr. Denbow said that he wanted to transfer a half-interest in the unit to her.  She saw the transfer of the half-interest as a demonstration of his love.  He said he wanted her to have half of the property.

[10]           They attended the notary public together and the transfer correctly refers to the consideration as “… natural love and affection”.  She says that she did love Mr. Denbow, as their many years together attest.  When the relationship came to an end and she decided that she could no longer live with Mr. Denbow, she told him that she was leaving.  He did not want her to leave, told her that he loved her, and wanted her to stay.  She says that he told her that he would leave her as the beneficiary of his will and she understands that he did so until 2006. 

[11]           She said that they continued on friendly terms for several years.  She helped him when he had knee surgery and did other things for him.  It was not until 2004, after he returned from a trip to Thailand, that his attitude toward her changed.  After his return from Bangkok, he became hostile and said things like “I have to go back to work” but wouldn’t say why.  Finally he said that he was broke and would be selling the unit to get money and move to Thailand. 

[12]           In March 2005, Mr. Denbow told her she could buy him out for $140,000.  In 2006, she received a message from him wanting to meet.  They eventually met and he said that he wanted to clear her name from title.  She asked him how much he would pay her, but he wouldn’t say.  He became angry.  She asked him about the $140,000 buy-out and he said that she didn’t have the money. 

[13]           Ms. Leong says that after she left the apartment, she had no plans to sell it and hoped that he would live there happily for his natural life.  She didn’t think about what would happen – their relations were good until the end of 2004.

DISCUSSION

[14]           The Supreme Court of Canada has recently considered the law with respect to gratuitous transfers in Pecore v. Pecore, 2007 SCC 17, [2007] 279 D.L.R. (4th) 513.  Rothstein J., writing for the majority in Pecore, stated:

As in other civil cases, regardless of the legal burden, both sides to the dispute will normally bring evidence to support their position.  The trial judge will commence his or her inquiry with the applicable presumption and will weigh all of the evidence in an attempt to ascertain, on a balance of probabilities, the transferor’s actual intention.  Thus […] the presumption will only determine the result where there is insufficient evidence to rebut it on a balance of probabilities.

(Pecore at ¶44.)

[15]           In this case, I am satisfied that Mr. Denbow intended to transfer his property to Ms. Leong as a gift; Ms. Leong has rebutted the presumption of resulting trust. 

[16]           I accept Ms. Leong’s evidence regarding Mr. Denbow’s reason for the transfer, being a gift to her as evidence of his affection.  It is consistent with the document itself, which recites that the consideration is love and affection.  It is also consistent with the evidence of Rose Miller, the notary public who prepared the documents and registered the transfer. 

[17]           Ms. Miller has been a notary public since 1989.  She does not remember Mr. Denbow and Ms. Leong and no longer has her file.  She says that it is her standard practice to ask the reason for a transfer when she is asked to transfer a property to the owner and another.  She says that if she were told that the reason for doing so was so that the recipient could take a position on a strata council, she would recommend a transfer of 1% of the interest, together with a signed transfer back, so that the transferor would be in a position of control.  She says that she has never had anyone ask to have title transferred so that someone could sit on the strata council.  She has had similar requests, such as a transfer for tax purposes or to avoid a covenant prohibiting rentals. 

[18]           She testified that she never uses the words “consideration of $1.00 and natural love and affection” in a friendship situation.  She only uses those words in a relationship situation.  She does not take instructions from the person acquiring a property, only from the person transferring the property. 

[19]           I accept Ms. Miller’s evidence.  She was independent of the transaction and had no reason to color her evidence.  She struck me as a professional, capable person, clear in her practice.

[20]           If, as Mr. Denbow asserts, the only reason that Ms. Leong went on title was so that she could represent his interests on the strata council, and he was very concerned about putting her name on title, one would have expected him to ask Ms. Miller how best to protect his interest at the time of transfer.  One would also have expected him to have Ms. Leong removed from title as soon as she stopped sitting on the council, which occurred in approximately 1996.  However, he did not do so.  Indeed, in 1998 he attended a notary public and had a will and a power of attorney drawn in Ms. Leong’s favour.  Were Mr. Denbow anxious about the title to his property and anxious about having Ms. Leong’s name on title, one would have expected him to take steps at that time to rectify the situation.  Even if he intended to leave the property to her on his death, he would have protected his interest in the meantime.

[21]           Mr. Denbow’s own evidence is also consistent with the transfer being a gift:  at examination for discovery, Mr. Denbow said:

Q         Did you tell her that you needed money?

A          I told her I was going to sell my apartment.

Q         At any point in time after the breakdown of this relationship did you ask the defendant to buy your interest out in the property?

A          I told her if she wanted to buy out my half of the thing that I wanted $140,000.

Mr. Denbow’s answer to the question shows that he thought that he had a half interest in the property.  He would not have referred to Ms. Leong buying his half if he believed that he owned the entire unit.

[22]           Mr. Denbow says that after Ms. Leong moved out of the unit, he learned that she had improperly removed $20,000 from their joint investment account.  He gave evidence that he said to her at the time, words to the effect of “you can keep it – just so long as you leave my apartment alone”.  If Mr. Denbow were of the view that Ms. Leong had stolen $20,000 from him, and was untrustworthy, then one would have expected him to act immediately to remove Ms. Leong’s name from the title to the property.

[23]           I do not accept Mr. Denbow’s assertion that Ms. Leong took the $20,000 and agreed not to make any claim against the property.  I prefer Ms. Leong’s evidence that she thought she had contributed $20,000 to the investment account, and did not learn of her error until some time later.  Ms. Leong’s evidence is more consistent with the parties’ behaviour and with common experience.

[24]           Mr. Denbow called his friend, Norman Bradley, as a witness.  Mr. Bradley said that he recalled a meeting at his house at the end of 1988, or beginning of 1989, with Mr. Denbow and Ms. Leong.  He says that Mr. Denbow was not happy with the strata council, and said that he needed to put someone on title to his apartment, to sit on the council and represent his interests.  He recalls that Mr. Denbow was very anxious about putting Ms. Leong on title, but ultimately decided to do so.  Mr. Bradley says that he recalled the incident clearly because he had gone through a divorce and had concerns at the time about his winnings from a lottery and the claim of his former spouse.  For that reason, the incident stuck in his mind.  Ms. Leong denies the conversation.  Mr. Denbow did not mention the meeting. 

[25]           I do not accept Mr. Bradley’s evidence with respect to this meeting.  Mr. Bradley’s recollection is affected by his own circumstances; his sensitivity regarding title to assets has coloured his recollection of events.

REMEDY

[26]           Ms. Leong seeks partition and sale of the property pursuant to the Partition of Property Act, R.S.B.C. 1996, c. 347.  That act provides:

2. (1)    All joint tenants, tenants in common, coparceners, mortgagees or other creditors who have liens on, and all parties interested in any land may be compelled to partition or sell the land, or a part of it as provided in this Act.

. . .

6.         In a proceeding for partition where, if this Act had not been passed, an order for partition might have been made, […] the court must, unless it sees good reason to the contrary, order a sale of the property and may give directions.

[27]           Joint Tenants of an interest in land have a prima facie right to partition and sale under the Act: see Bradwell v. Scott, 2000 BCCA 576, 81 B.C.L.R. (3d) 210 at ¶29 and ¶39.  Partition should be refused only if the court concludes that justice so requires:  Bradwell v. Scott at ¶43-45. 

[28]           The evidence does not satisfy me that partition should be refused.  I order that the property be sold and the proceeds divided equally, after payment of costs of sale and discharge of encumbrances.  If the parties are not able to agree on conduct of sale, they may seek directions.

[29]           In conclusion, the plaintiff’s claim is dismissed, the counterclaim is allowed, and the relief sought at paragraphs 1 and 2 of the prayer for relief is granted.  The parties may apply to this Court if they are not able to agree with respect to conduct of sale and division of the proceeds.  The defendant is entitled to costs at scale B, unless there are matters of which I am not aware.

“B.J. Brown J.”
The Honourable Madam Justice B.J. Brown