AGOSTINA TERESA RAPHAEL as executor of the will of TONINO LUCIANO RANDAZZO -v- RANDAZZO [2023] WASC 312 (17 August 2023)

1. The following four issues require consideration:

(a) has the plaintiff commenced the application with the correct originating process;
>
> (b) is it appropriate to proceed in the absence of Ms Randazzo;
>
> (c) was the joint tenancy severed; and
>
> (d) is it appropriate to order the sale of the Property pursuant to s 126 of the PLA.

1. The plaintiff relies on six affidavits, which I take as read, being:

(a) an affidavit of the plaintiff, sworn 19 July 2023 (Plaintiff's first affidavit);
>
> (b) an affidavit of the plaintiff, sworn 9 August 2023 (Plaintiff's second affidavit);
>
> (c) an affidavit of service of Ed Versaico, sworn 27 July 2023;
>
> (d) an affidavit of service of Stephen Kenneth Morris, sworn 28 July 2023;
>
> (e) affidavit of service of Matthew Michael Petriwskyj, affirmed 11 August 2023; and
>
> (f) affidavit of attempted service of Steven John Walker, sworn 14 August 2023.

2. The following factual summary is taken from these affidavits.
3. As outlined above, the plaintiff is the executor of the will of the Deceased who passed away on 30 June 2022 and was granted probate on 21 October 2022.[1]
4. Ms Randazzo is the Deceased's ex-wife. The plaintiff deposes that the Deceased and Ms Randazzo separated on a final basis in or around April 2018. However, they did not divorce or initiate or complete a property division of their assets.[2]
5. The Deceased is survived by Ms Randazzo, and his three daughters.[3]
6. Immediately prior to his death, the Deceased and Ms Randazzo were the registered proprietors of the Property.
7. The Property is a residential property in the suburb of Hammond Park. There is a two-story dwelling on the Property, which was built by the Deceased and Ms Randazzo in or about 2007. A review of an aerial photograph of the Property reveals that it occupies the majority of the lot.[4]
8. The Landgate records indicate that the property is 712m2. The Property is zoned R20 Residential under the City of Cockburn's Local Planning Scheme No.3, which has the consequence that the minimum lot size is 500m2.[5]
9. The Property is encumbered by a mortgage to Citigroup Pty Ltd (Citibank) which was registered on 25 August 2017.[6]
10. On or around 24 June 2022, the Deceased and Ms Randazzo executed a transfer form in relation to the Property, in which they purported to transfer their interests in the Property as joint tenants to themselves as tenants in common in equal shares.[7]
11. The Deceased and Ms Randazzo had jointly instructed a conveyancer to act for them.[8]
12. The transfer was submitted to the Office of State Revenue for assessment for stamp duty, and was assessed for nominal stamp duty. Citibank had also produced the Certificate of Title to Landgate to enable registration of the transfer document.[9]
13. However, that transfer was not lodged or registered prior to the death of the Deceased and has not yet been lodged. The plaintiff deposes that on 5 August 2022, Ms Randazzo ceased her instructions with the conveyancer and requested that the transfer not be lodged with Landgate.[10]
14. In October 2022, the plaintiff's solicitors lodged a caveat to protect the estate's interest in the Property.[11]
15. The plaintiff deposes that the Deceased told her that the purpose of the transfer was to sever the joint tenancy in the property and convert it to a tenancy in common and that it was his intention that his half‑share interest in the Property pass to his daughters.[12] In this regard, the Deceased's will provides:[13]

I have made NO PROVISION in this my Will for my former wife JULIE RANDAZZO (nee SANGINITI) of 11 Pilgrim Way Hamilton Hill 6163 in the State of Western Australia, I state that she has no claim to either my real and personal estate NOR guardianship of my minor children.

1. The will goes on to provide that the Deceased devises all his real and personal estate to his trustee upon trust for such of his children as shall survive him and attain the age of 21 (or marry before that age).[14]
2. Citibank has a registered mortgage over the property for a joint loan account in the name of the Deceased and Ms Randazzo.
3. The plaintiff deposes that the most recent statements for the mortgage account show that the account is in arrears by $29,603.46 and the current balance owing on the loan is $586,907.[15]
4. The plaintiff deposes that since January 2023, the first defendant has only made three payments for a total of $1,001 towards the mortgage.[16] The plaintiff deposes that the estate does not have the financial means to meet the mortgage obligations.[17]
5. The plaintiff's solicitors have attempted to correspond with Ms Randazzo as to the Property. By letter dated 26 October 2022, the solicitors wrote to Ms Randazzo advising that the caveat had been lodged and asking her intentions in relation to the Property.[18]
6. The plaintiff deposes that she is informed by one of the Deceased's daughters that Ms Randazzo began occupying the Property on 1 December 2022. No rental income has been received by the estate.[19]
7. On 8 March 2023, the solicitors wrote to Ms Randazzo with a proposal to deal with the Property, but that proposal was rejected on 22 March 2023 without a counter proposal. The plaintiff deposes that the solicitors have written to Ms Randazzo on multiple occasions since then in an attempt to resolve the issues, but no contact has been received from Ms Randazzo since the rejection on 22 March 2023.[20]
8. The plaintiff's solicitors have engaged in correspondence with Citibank in relation to the mortgage payments and requesting a deferral of the payment of the mortgage pending negotiations with Ms Randazzo regarding the sale of the Property. On 7 March 2023, the solicitors requested a two month moratorium for the mortgage repayments. On 16 March 2023, Citibank advised the solicitors that they were waiting for Ms Randazzo's consent to provide the two month moratorium. The plaintiff deposes that Ms Randazzo did not respond to the requests to provide her consent and therefore Citibank did not grant the requested two month moratorium and therefore the mortgage arrears continue to accrue on the account.[21]
9. On 28 June 2023, National Australia Bank (who by this point had become the successor in law of Citibank) commenced proceedings CIV 1681 of 2023 in this court against Ms Randazzo only, seeking possession of the Property and payment of the unpaid mortgage payments.[22]
10. Following correspondence with the solicitors, on 14 July 2023, National Australia Bank filed a notice of discontinuance in CIV 1681 of 2023.[23]
11. On 17 July 2023, the National Australia Bank issued a Notice of Default addressed to Ms Randazzo, the estate of the Deceased and the plaintiff in her capacity as executor of the Deceased's estate. The Notice of Default states that the balance owing on the loan as at 11 July 2023 was $591,190.55 and the total arrears amounted to $25,516.10.[24] Further, the Notice of Default states that if repayment of the specified amount is not made within 21 days of the date of service, then enforcement proceedings may be commenced on 24 August 2023.[25]
12. The originating summons (together with the plaintiff's first affidavit, the certificate of urgency, the memorandum of conferral and a letter from the plaintiff's solicitors) was served on Ms Randazzo by way of personal service by a process server on 21 July 2023.[26]
13. Ms Randazzo has not entered an appearance to the originating summons. Ms Randazzo did not attend the first return date being 3 August 2023.
14. The same documents were served personally on the second defendant on 21 July 2023.[27] The second defendant has not entered an appearance, but rather has indicated by way of letter that he does not wish to be heard on the merits of application, but has provided comments to the plaintiff's solicitors as to the appropriate wording of any orders should the application be granted, to ensure that the second defendant and the Commissioner of Titles have the statutory powers to give effect to any proposed orders made.
15. The matter came before me on 3 August 2023. At that hearing, I adjourned the originating summons to 14 August 2023 for a final hearing, to allow further time for Ms Randazzo to file an appearance and to attend, and to enable further consideration to be given to a number of issues.
16. I ordered that the plaintiff personally serve Ms Randazzo with the orders made on 3 August 2023. However, as deposed to in the affidavit of attempted service of Steven John Walker, sworn 14 August 2023, Mr Walker made four attempts to serve Ms Randazzo at the Property, but she was not at home on any attempt and has not responded to the calling card left on each occasion. On 12 August 2023, Mr Walker attended the Property and again Ms Randazzo was not home. Mr Walker then left the orders and a letter from the plaintiff's solicitors by affixing them to the front door of the Property. [28]
17. Mr Petriwskyj deposes that on 8 August 2023 at 4.23 pm he emailed a letter to Ms Randazzo and also a copy of the orders made on 3 August 2023 to her last known email address, being an address that he had previously received email correspondence from Ms Randazzo. On 9 August 2023 at 4.31 pm, Mr Petriwskyj emailed a copy of the Plaintiff's Affidavit to Ms Randazzo at the same email address. Mr Petriwskyj deposes that he did not receive any notice that the emails failed to send.
18. On 11 August 2023, the court also emailed Ms Randazzo the orders made on 3 August 2023 to the same email address. Order 1 of those orders states that the matter is adjourned to 14 August 2023 for final hearing.
19. In light of the comments made by the second defendant in relation to the appropriate orders, the plaintiff filed an amended originating summons on 11 August 2023.
20. In light of some of the comments made by the second defendant, and the corresponding changes made in the amended originating summons, I requested that the second defendant appear on 14 August 2023 to assist the court by providing an explanation of the amendments and the appropriate orders should I grant the application. I thank the second defendant and counsel for the second defendant for appearing.
21. The first defendant did not appear on 14 August 2023.

1. The plaintiff commenced the application by way of originating summons.
2. The first question is whether this is the appropriate originating process.
3. In Martin-Smith v Woodhead,[29] Kennedy J held that an application for sale in lieu of partition made under s 126 of the PLA, ought properly be commenced by way of a writ of summons.
4. In Martin-Smith v Woodhead, Kennedy J considered whether an application under s 126 of the PLA fell within the then equivalent of the current day O 59 r 1(1)(n) of the Rules of the Supreme Court 1971 (WA). This rule provides that applications for or relating to the sale by auction or private contract of property, and as to the manner in which the sale is to be conducted, and for payment into court and investment of the purchase money, are to be heard in chambers (and therefore in accordance with O 58, to be commenced by way of originating summons). Kennedy J held that an application under s 126 of the PLA did not fall within O 59 r 1(1)(n). His Honour held that:

As a preliminary point, counsel for the defendant argued that, pursuant to [O 59, r 1(12)] of the Rules of the Supreme Court the principal proceedings should have been instituted by originating summons, as the relief sought is the sale of land. In my opinion, this submission is without foundation. Order 55, r 2(14) of the English Rules, as it was at the time when the Partition Act 1868 (Imp) and the Partition Act Amendment Act 1876 (Imp) were repealed, and O 55, r 1(14) of the Victorian Rules are in the same general terms as [O 59, r 1(12)]. The practice in England was, and the practice in Victoria still appears clearly to be, to institute actions for sale in lieu of partition by way of writ. In my experience, that has been the almost invariable practice in this State. In my opinion, an action for sale in lieu of partition does not fall within the scope of [O 59, r 1(12)] so as to require that the proceedings be instituted by originating summons, a procedure which is quite inappropriate in contested cases where there are likely to be disputes of fact.

1. Master Sanderson adopted the same approach in Trainor v Trainor,[30] relying on Martin-Smith v Woodhead. A review of other cases involving applications made under s 126 of the PLA indicates that commencement by writ seems to be the general practice adopted in this court.
2. The present case is, however, somewhat different. In this case, the executor of an estate is applying to the court not only for an order under s 126 of the PLA, but also for a declaration as to the rights of the Deceased (and therefore now the estate) falling out of the executed, but not lodged or registered, transfer signed by the Deceased and Ms Randazzo. These factors raise other possible grounds by which an originating summons may be the appropriate originating process in this case.
3. Order 58 r 2 provides that executors of a deceased person may take out an originating summons returnable in chambers for relief including the determination of any question arising in the administration of the estate or trust.
4. Further Order 58 r 10 provides that any person claiming to be interested under (relevantly) a will or other written instrument may apply by originating summons for the determination of any question of construction arising under the instrument and for a declaration of the rights of the persons interested.
5. Further, unlike Martin-Smith v Woodhouse and some other cases concerning s 126 of the PLA before this court, in light of the non‑appearance by Ms Randazzo, and the nature of the evidence before me, this case does not involve any contested issues of fact.
6. Accordingly, in the particular factual circumstances of this case, I consider that it was open to the plaintiff to commence this application by way of originating summons.
7. However, even if I am wrong in this respect, pursuant to O 2 r 1, it is open to me to order that the originating summons proceed as if begun by a writ of summons. Given the past treatment by this court of applications under s 126 of the PLA, I consider it appropriate to proceed on that basis with this matter. I will then order the originating summons stand as if it is a writ of summons.
8. In all the circumstances (including the lack of any appearance by Ms Randazzo, the impending foreclosure action by the bank and the lack of any obvious factual disputes) I also consider it is reasonable to order (pursuant to O 36 r 2) that evidence in this matter be given by affidavit.

1. I am satisfied that it is appropriate to proceed in the absence of Ms Randazzo.
2. The originating summons, which founds the jurisdiction of the court, was personally served on Ms Randazzo as required on 21 July 2023. Ms Randazzo was also personally served with the plaintiff's first affidavit at the same time.
3. Ms Randazzo was required to enter an appearance to the originating summons within 10 days. No appearance has been entered.
4. On 3 August 2023 I ordered that the plaintiff personally serve Ms Randazzo with my orders dated 3 August 2023. Those orders state that the matter is adjourned to 14 August 2023 for a final hearing. As previously outlined, the plaintiff has been unable to personally serve Ms Randazzo with those orders.
5. The court has also emailed Ms Randazzo the orders made on 3 August 2023 to the same email address.
6. In all the circumstances, I consider that service by email of the orders made on 3 August 2023 is appropriate, and I grant leave for the plaintiff to serve Ms Randazzo with the orders made on 3 August 2023 by email in lieu of personal service.
7. In light of Ms Randazzo's failure to file an appearance and to appear on either 3 August or 14 August 2023, and in light of the pending enforcement action by the bank, I consider it appropriate to proceed to a final hearing in the absence of Ms Randazzo.

1. The authorities establish that a joint tenancy can be severed by (at least) mutual agreement between the joint tenants or by conduct showing a common intention to sever the joint tenancy.[31]
2. On an agreement to sever a joint tenancy, the registered joint tenants will hold the property as trustees for themselves as tenants in common in equal shares.[32] Once the joint tenants have agreed to sever the joint tenancy, the subsequent repudiation of the agreement by one of the joint tenants does not affect the severance.[33]
3. Further, the authorities establish that an executed, but unregistered, transfer of land confers upon the transferee an equitable claim or right to the land which operates as a representation that the transferee has an assignable interest in the land.[34]
4. I am satisfied that in the present case the Deceased and Ms Randazzo had severed the joint tenancy in the Property prior to the Deceased's death and that they instead held the Property on trust for themselves as tenants in common in equal shares. I am satisfied that the severance was done by agreement and/or by their conduct.
5. The facts relevant to my conclusion in this regard include: the breakdown in the marriage between the Deceased and Ms Randazzo; the execution of the transfer severing the joint tenancy and instead providing for each to hold the Property as tenants in common in equal shares; the joint engagement of a conveyancer to give effect to the severance; the presentation of the transfer document to the Office of State Revenue for assessment, and the subsequent assessment of the transfer for nominal duty and the provision of the Certificate of Title by Citibank to Landgate to give effect to the transfer. I also consider that the Deceased's will, and his intention to devise his real and personal property to his children and not to make any provision for Ms Randazzo, and his explanation of the joint tenancy to the plaintiff, is conduct consistent with the severance of the joint tenancy.
6. Accordingly, I am satisfied that in the present case the Deceased and Ms Randazzo had severed the joint tenancy in the Property prior to the Deceased's death and that they instead held the Property on trust for themselves as tenants in common in equal shares. I am satisfied that as at the date of his death, the Deceased therefore held an equitable interest in the property as a tenant in common in equal shares with Ms Randazzo.

Where in an action for partition the party or parties interested, individually or collectively, to the extent of a half share or upwards in the land to which the action relates request the Court to direct a sale of the land and a distribution of the proceeds, instead of a division of the land between or among the parties interested, the Court shall, unless it sees good reason to the contrary, direct a sale accordingly.

1. As can be seen from the wording of s 126(1), the provision does not embody a broad discretion in the court to grant or refuse an order for sale. If the applicant has a half interest (or upwards) in the land to which the action relates, and that party requests the court to direct a sale in lieu of partition, the court shall make such an order unless it sees good reason to the contrary.[35]
2. In the present case, I am satisfied that the plaintiff has standing to bring the application in her capacity as executor of the Deceased's estate and has the requisite half interest in the Property. I have found that the joint tenancy was severed prior to the Deceased's death, and therefore the Deceased and Ms Randazzo held the legal title on trust for each other as tenants in common in equal shares. Pending registration of the transfer, the Deceased therefore held an equitable interest in the Property as a tenant in common in equal shares with Ms Randazzo.
3. Section 126(1) applies where the party has a half interest (or upwards) in the land. The term 'land' is defined in s 7 of the PLA as follows:

land includes land of any tenure and mines and minerals whether or not they are held apart from the surface of the land, a building or part of a building, whether the division of the building is horizontal, vertical or made in any other way, and other corporeal hereditaments, and also includes a rent and other incorporeal hereditaments and an easement, right, privilege or benefit in, over or derived from the land and an undivided share in land.

1. The definition of land should be contrasted with the definition of the term 'land' under the Transfer of Land Act 1893 which is defined in s 7 of the PLA Act as:

any estate or interest registered, or incorporated in the Register, under that Act;

1. These sections in combination are therefore sufficiently broad to include an equitable interest in the land to which an application is made, as in the present case.
2. Therefore, I consider the plaintiff, as executor of the Deceased's estate, is able to make an application under s 126(1) of the PLA.
3. I am satisfied on the basis of all the evidence before me that there is no good reason not to direct the sale of the Property. The facts which are significant in reaching this conclusion include the inability of the Deceased's estate to pay the mortgage repayments on the Property, the importance of giving effect to the obvious intention of the Deceased and Ms Randazzo to sever the joint tenancy, and the subsequent importance of giving effect to the Deceased's intention as recorded in his will regarding the disposition of his estate; the need to administer the Deceased's estate; the failure by Ms Randazzo to pay the mortgage repayments on the Property; the failure by Ms Randazzo to communicate with the plaintiff's solicitors, or the bank, and to put forward any counter proposal to deal with the Property (including any proposals for Ms Randazzo to purchase the Deceased's half interest in the Property); the importance of the impending enforcement action by the bank in terms of the amount of time available to address the issues arising under this matter and the need to sell the Property to enable the mortgage repayments to be met to preserve what is left of the Deceased's estate.
4. I am also satisfied that partition of the Property is not possible. The Property is a residential property in the suburb of Hammond Park. The Landgate records indicate that the property is 712m2. There is a two-story dwelling on the Property which occupies the majority of the lot. The Property is zoned R20 Residential under the City of Cockburn's Local Planning Scheme No.3, which has the consequence that the minimum lot size is 500m2. Accordingly, further subdivision is not likely.
5. In those circumstances, I do not consider there is any good reason not to direct the sale of the Property and I so direct.

1. I will hear further from the parties in relation to the precise orders necessary to give effect to my decision and to ensure that, in the event that Ms Randazzo continues to refuse to engage with the plaintiff's solicitors and/or the National Australia Bank, that the second defendant can give effect to these orders and in particular to register the eventual sale of the Property.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Plaintiff's first affidavit [3] and ATR1 - ATR2.

[4] Plaintiff's second affidavit [3] - [5] and [8].

[5] Plaintiff's second affidavit [6] - [7].

[6] Plaintiff's first affidavit [9] and ATR3.

[7] Plaintiff's first affidavit [10] and ATR4.

[10] Plaintiff's first affidavit [14].

[11] Plaintiff's first affidavit [15].

[12] Plaintiff's first affidavit [11].

[13] Plaintiff's first affidavit - ATR 2.

[14] Plaintiff's first affidavit - ATR 2.

[15] Plaintiff's first affidavit [23] and ATR6.

[16] Plaintiff's first affidavit [22] and [25].

[17] Plaintiff's first affidavit [26].

[18] Plaintiff's first affidavit [16].

[19] Plaintiff's first affidavit [17].

[20] Plaintiff's first affidavit [19].

[21] Plaintiff's first affidavit [27] - [31].

[22] Plaintiff's first affidavit [35] and statement of claim in CIV 1681 of 2023.

[23] Plaintiff's first affidavit [36] - [37].

[24] Plaintiff's first affidavit [38] - [39] and ATR8.

[25] Plaintiff's first affidavit - ATR8.

[26] Affidavit of Stephen Kenneth Morris.

[29] Martin-Smith v Woodhead [1990] WAR 62.

[30] Trainor v Trainor [2021] WASC 40 [3].

[31] Corin v Patton (1990) 169 CLR 540, 546 - 547 (Mason CJ & McHugh J); 574 (Deane J); 587 (Toohey J); Abela v Public Trustee [1983] 1 NSWLR 308, 314 - 315; Moore A, Grattan S and Griggs L, Australian Real Property Law (7th Ed 2020) [12.330] - [12.365].

[32] Corin v Patton (1990) 169 CLR 540, 574 (Deane J).

[33] Abela v Public Trustee [1983] 1 NSWLR 308, 314 (and the authorities referred to therein).

[34] Barry v Heider [1914] HCA 79; (1914) 19 CLR 197, 208 (Griffith CJ, Barton J agreeing); although qualified in Corin v Patton (1990) 169 CLR 540 in so far as the transfer must record an agreed contract for sale for consideration or otherwise perfected gift or other completed transaction: see 567 (Brennan J) and 588 - 589 (Toohey J). In Corin v Patton the court held that no severance had occurred on the facts of that case.

[35] See also Trainor v Trainor [2021] WASC 40 [4] - [5]; Bombara v Bombara [2010] WASC 314 [79] ‑ [81].