Anderson v Anderson - [2016] NSWSC 1204 - NSWSC 2016 case summary — Zoe

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Anderson v Anderson

[2016] NSWSC 1204

Supreme Court of NSW|2016-04-07|Before: Hallen J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2016-04-07

Before

Hallen J

Catchwords

REAL PROPERTY - Torrens title - Unilateral severance of joint tenancy under s 97 Real Property Act 1900 - Claim of agreement not to sever

Source

Original judgment source is linked above.

Catchwords

REAL PROPERTY - Torrens title - Unilateral severance of joint tenancy under s 97 Real Property Act 1900 - Claim of agreement not to sever

Judgment (34 paragraphs)

[1]

[2010] WASC 160 Learn & Play (Rhodes No1) Pty Ltd as Trustee for Rhodes 1 Childcare Centre Unit Trust v Lombe [2011] NSWSC 1506 Leybourne v Permanent Custodians Ltd [2010] NSWCA 78 Lincolne v Williams [2008] TASSC 41; (2008) 18 Tas R 76 McCoy v Caelli [2010] NSWSC 1233 McCoy v Estate Peter Anthony Caelli [2008] NSWSC 986; 13 BPR 25,515 McNab v Earle [1981] 2 NSWLR 673 Macquarie Bank Ltd v Sixty-Fourth Throne Pty Ltd [1998] 3 VR 133 National Commercial Banking Corporation of Australia Ltd v Hedley (1984) 3 BPR 9477 Orr v Slender [2005] NSWSC 1175 Peldan v Anderson [2006] HCA 48; (2006) 227 CLR 471 Perpetual Trustees Victoria Limited v Belcastro (No 2) [2013] NSWSC 1189 Perpetual Trustees Victoria Limited v Menzies [2012] NSWSC 1066 Plunkett v Bull (1915) 19 CLR 544 Public Trustee v Grivas [1974] 2 NSWLR 316 Quest Rose Hill Pty Ltd v the Owners Corporation of Strata Plan 64025 [2012] NSWSC 1548 Re Hodgson (1885) 31 Ch D 177 Sang v Choy [2004] NSWSC 1121 Sansom v Westpac Banking Corporation (1996) 7 BPR 14615 Scott v Scott [2012] NSWSC 1541 Schultz v Corwill Properties Pty Ltd (1969) 90 WN (Pt. 1) (NSW) 529 Secured Income Real Estate (Aust) Pty Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596 Spina v Conran Associates Pty Limited; Spina v M&V Endurance Pty Limited [2008] NSWSC 326 Spina v Permanent Custodians Limited [2008] NSWSC 561 Stanford v Stanford [2012] HCA 52; 247 CLR 108 Stirling v Maitland & Boyd (1864) 22 ER 143 Thomas v The Times Book Co [1966] 2 All ER 241 Tobin v Broadbent [1947] HCA 46; (1947) 75 CLR 378 Vella v Permanent Mortgages Pty Ltd [2008] NSWSC 505; (2008) 13 BPR 25, 343 Waimiha Sawmilling Co Ltd v Waione Timber Co Ltd [1926] AC 101 Webb v Ryan [2012] VSC 377 Weeks v Hrubala [2008] NSWSC 162 Westpac Banking Corporation v Sansom (1994) 6 BPR 13790 Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598 Williams v Davis [2003] NSWSC 453 Zahra v Francica [2009] NSWSC 1206 Zisti v Ryde Joinery Pty Ltd (1996) 7 BPR 15,217 Texts Cited: Professor Butt, Land Law (6th ed, 2010) Law Reform Commission, Community Law Reform for the Australian Capital Territory: Third Report, Enduring Powers of Attorney (AGPS, 1988) Natalie Skead and Penny Carruthers,"Fraud against the Registrar - An Unnecessary, Unhelpful and Perhaps, No Longer Relevant Complication in the Law on Fraud under the Torrens System" (2014) 40(3) Monash University Law Review 821 Category: Principal judgment Parties: Stephen Wayne Anderson (Plaintiff) Marilyn Anderson (first Defendant) Natalie Elizabeth Anderson (second Defendant) Representation: Counsel: Mr R Wilson SC and Mr D Steirn (Plaintiff) Mr V Russoniello (first Defendant) Mr J Simpkins (Estate of Norris Frank Anderson)

[3]

Introduction

HIS HONOUR: In barest outline this litigation as now constituted concerns, firstly, the ownership of a property in the southern Sydney suburb, Sans Souci ("the Sans Souci property"), and whether the unilateral severance of the joint tenancy of that property, which severance took place in 2012, validly occurred. More particularly, the dispute relates to whether the second Defendant, Natalie Elizabeth Anderson, as substitute Attorney, had power to execute a statutory declaration on 30 July 2012, in support of the registration of a transfer, by one joint tenant, her father, Norris Frank Anderson (to whom I shall refer as "Norrie") to himself as tenant in common, and if not, for that and other reasons, whether the fraud exception to the indefeasibility provisions of the Real Property Act 1900 apply since the transfer has been registered. I shall refer to the Plaintiff's claims for relief in more detail, later in these reasons.
At the time of the purported severance, the other joint tenant registered on the title to the Sans Souci property, and in the events that happened subsequently, the survivor of the two joint tenants, was Miriam Veronica Anderson (to whom I shall refer as "Minnie"), the former wife of Norrie. The Plaintiff, Stephen Wayne Anderson, is their son, and the executor of Minnie's Will, she having died after the events which are the subject of dispute.
The claims made were strenuously resisted and shortly prior to the hearing, the first Defendant, Marilyn Anderson, the wife of Norrie at the date of his death, sought leave to file a Statement of Cross-Claim, in which she sought a family provision order out of the notional estate of her deceased husband. She wished to propound that claim only in the event that the Plaintiff was successful in setting aside the severance of the joint tenancy.
(It was agreed by the parties that Norrie had no actual estate if the severance of the joint tenancy was set aside since the Sans Souci property would then pass to Minnie by survivorship.) The first Defendant accepted that if the Plaintiff was unsuccessful, the Cross-Claim should be dismissed: T3.11 - T3.14.

[4]

The Course of the Hearing

It is unnecessary to encumber these reasons with the procedural history of the matters that brought the parties to the hearing before me. It is a somewhat long and tortuous history which included the matter being listed for an earlier hearing before Lindsay J, in November 2015, which hearing was aborted.
However, it is to be noted that as long ago as December 2013, similar proceedings were brought by the Plaintiff against the Defendants, and that in those proceedings he also made a claim for a family provision order out of Norrie's estate. During the course of those proceedings, in February 2014, I had ordered that a tutor be appointed for Minnie. In April 2014, the Plaintiff's wife was appointed to act as her tutor. These proceedings were discontinued by the Plaintiff following Minnie's death.
The second Defendant, who is a daughter of the first Defendant and Norrie, appeared at the hearing without legal representation, she having terminated the retainer of her solicitors and counsel on the Friday before the hearing began. She stated that she had then instructed them not to appear at the hearing: T1.41 - T1.42.
At the commencement of the hearing, she stated that she "did not wish to take an active part in the proceedings"; that she wished "to take a back seat role"; that she was present in Court as a result of the service of a subpoena to give evidence (T1.46 - T1.48); and that she agreed to abide the orders of the Court save as to costs (T5.06 - T5.07). (There had been a falling out between the two Defendants, "from the evening of 6 November 2015", the reasons for and the extent of which do not require elucidation.)
As the second Defendant, since the commencement of the proceedings, has been an "active party" (relevantly, a party who has an address for service in the proceedings as defined in the Dictionary to the Uniform Civil Procedure Rules 2005 (NSW) ("the UCPR")), she remains at risk as to costs in the event that the Plaintiff is successful.
Despite her stated wish, during the course of the hearing, the second Defendant was permitted to sit at the Bar table and to cross-examine witnesses after counsel had done so. She also gave evidence and was cross-examined.
Then, at the hearing, another daughter of the first Defendant and Norrie, Frances Margaret Rae, sought leave to appear by counsel. She was prepared to represent the estate of Norrie, in respect of the Cross-Claim, propounded by the first Defendant.
However, in the course of exchanges between the Bench and counsel, it was agreed, in the event the Cross-Claim is to be determined, and because it is Minnie's estate that will be adversely affected by any notional estate order (i.e. Norrie's interest as joint tenant in the Sans Souci property, or the proceeds of sale of that property), the appropriate person to act as the contradictor in the Cross-Claim was the Plaintiff.
As the Plaintiff is the executor of Minnie's Will to whom Probate has been granted, and as the first Defendant sought a family provision order to be made out of property to be designated as notional estate, he will be bound to satisfy any family provision order, any notional estate order and any costs order made in favour of the first Defendant.
Furthermore, upon enquiry from counsel who appeared for Frances, he indicated that he did not propose to "put forward anything about the way in which the Court should deal with the Cross-Claimant's application for provision or an extension of time, [or] notional estate… [but] would be essentially adopting a neutral stance and not saying anything, leaving it to [the Plaintiff's] side to argue what needs to be argued": T5.39 -T5.43.
In all the circumstances, the only persons interested to argue the factual and legal issues that arise are the parties to these proceedings. For this reason, it was noted that "consideration has been given to the joinder of an independent person to represent the estate and notional estate [of Norrie] but since the only claim for provision is out of notional estate, and as the only party who would be relevant in those proceedings is [the Plaintiff], as the executor of Minnie's estate, there is no need to join anyone else": T6.22 - T6.26.
The parties were also able to agree, in the event the Plaintiff is successful, or the first Defendant is successful on the Cross-Claim, that the costs and disbursements of Frances for the work done by her legal representatives and the appearance, estimated to be $3,102, would be paid out of Minnie's estate. In the event the Plaintiff is unsuccessful, those costs and disbursements will be paid out of Norrie's estate. In view of the result, the costs should be borne out of Norrie's estate.
The hearing was set down for three days but, regrettably, it was not completed within that time. The submissions took more than one day as there were so many issues of fact and law raised by the further amended Statement of Claim and by the Cross-Claim. The only witnesses relied on were the parties themselves and the wife of the Plaintiff.

[5]

The Pleadings

The most recent pleading by the Plaintiff is a further amended Statement of Claim, filed in Court on 5 November 2015, in which the following relief is claimed (correcting minor typographical errors and omitting, for privacy reasons, the relevant title details and omitting the full address of the Sans Souci property): "1. A Declaration that in the events which have happened, the Second Defendant was not authorised by Power of Attorney dated 28 March 2006 and registered Book No. xxxx/xxx granted by the late Morris Frank Anderson, also known as Norris Frank Anderson, ('the Deceased') to execute a Statutory Declaration on 30 July 2012 in support of a Transfer by the Deceased severing the joint tenancy he held in the property known as xx xxxxx Street, Sans Souci (Folio Identifier x/xxxxx) (' the Sans Souci Property ') with the First Plaintiff. 2. An Order that Transfer AHxxxxxxD dated 30 July 2012 severing the joint tenancy in the Sans Souci property be set aside. 2A In the alternative to 2, a declaration that in the events which have occurred, the first defendant as executor of the estate of the late Norrie Anderson, holds a one half interest as tenants in common in the Sans Souci property upon constructive trust for herself and the plaintiff as executor of the estate of Minnie Anderson as equitable joint tenants. 3. A Declaration that in or about December 1970, Minnie Veronica Anderson ('the Late Mrs Anderson') and the Deceased entered into an Agreement incidental to the Orders for Property Settlement made between them under the Matrimonial Causes Act 1959 on 29 December 1970, by which they agreed to retain the Sans Souci property as joint tenants and not take any steps to sever that joint tenancy so that the Sans Souci property would pass in any event, to the survivor. 4. A Declaration that in breach of the Agreement entered into by the Late Mrs Anderson and the Deceased in or about December 1970, the Deceased, by his Attorney, the Second Defendant, severed the joint tenancy in the Sans Souci property. 5. An Order that the Defendant, as Executor of the Estate of the Deceased, holds one half interest as tenant in common in the Sans Souci property on trust for the Estate of the Late Mrs Anderson."
The Plaintiff asserted that the "Agreement" identified in Paragraph 3 was to the effect that Norrie and Minnie would retain the ownership of the Sans Souci property "as joint tenants in equal shares"; that neither could sever the joint tenancy; and that the title to the Sans Souci property would pass to the survivor. It was also asserted that the agreement was made by Norrie and Minnie "in about November 1970".
In particulars, the Plaintiff asserted: "The agreement was partly in writing and partly implied. Insofar as it was in writing, it arose from the Terms of Settlement entered into by the Late Mrs Anderson and the Deceased on 24 November 1970 and from the Orders subsequently made on 26 November 1970. Insofar as it was implied, the said agreement arises from the fact that the scheme of the Late Mrs Anderson and the Deceased was that title to the Sans Souci property would pass solely to the survivor of them on the death of the first of them and the only means by which this could be achieved was to maintain their joint tenancy of the property notwithstanding their separation and divorce."
The Plaintiff then asserted that there had been a breach of the Agreement by virtue of the registration of a dealing which had resulted in the joint tenancy being severed and Norrie and Minnie, thereafter, being registered as tenants in common in equal shares. In addition, the Plaintiff claimed consequential relief.
In the alternative, the Plaintiff asserted that the second Defendant had no authority to execute a statutory declaration in support of the severance of the joint tenancy; that the Power of Attorney upon which she relied was a General Power of Attorney that had ceased to have any operation by virtue of Norrie's mental state at the time of the transfer; that the second Defendant's conduct in lodging the statutory declaration and transfer amounted to "fraud" within the meaning of that term in s 42 of the Real Property Act 1900 (NSW); and that by virtue of the breach of the Agreement, the first Defendant, as the devisee of Norrie's one half interest as tenant in common, held that one-half interest upon constructive trust for Minnie.
The Plaintiff did not assert, in the pleadings, that Minnie had adopted an assumption that the joint tenancy would not be severed, or that she had acted upon that assumption so that it would be unconscionable for the first Defendant, as Norrie's legal personal representative, to depart from the assumption.
Nor was it asserted by the Plaintiff that Norrie and Minnie had reached some arrangement or understanding, short of a binding agreement, which, nonetheless, gave rise to an equitable obligation to the same effect, which obligation equity would enforce by disregarding a severance of the joint tenancy.
The Defendants filed a further amended Defence, which made very few admissions and asserted that any alleged agreement was unenforceable by reason of s 54A of the Conveyancing Act 1919 (NSW) (or in the alternative, by reason of s 23C of the Conveyancing Act); that the first Defendant, as a result of the registration of title, obtained an indefeasible title to the one half share, as tenant in common to the Sans Souci property; that the conduct of the Defendants did not amount to fraud within the meaning of that term in s 42 of the Real Property Act 1900 (NSW); and that if the second Defendant lacked authority (which lack of authority was denied), the first Defendant had ratified the transfer and the severance of the joint tenancy.
The first Defendant filed a Cross-Claim on 8 March 2016, pursuant to leave granted, without opposition, on 7 March 2016, in which she sought the following relief: "1. An order for an extension of time in which to commence these proceedings up to the date of filing of this Statement of Cross-Claim pursuant to section 58(2) of the Succession Act 2006. 2. An order pursuant to s. 59 of the Succession Act 2006 making provision out of the Estate of Late Morris Frank Anderson ("the Deceased") for the Plaintiffs' maintenance, education and advancement in life. 3. An order pursuant to s. 78 and s. 80 of the Succession Act 2006 that the deceased's interest in the property known was xx xxxxx Street, Sans Souci [sic] (Folio Identifier x/xxxxx)("the Property") be designated as notional estate of the Deceased."
At the hearing, the Plaintiff, as Cross-Defendant, without objection, filed a Defence to the Cross-Claim, in which he effectively denied the first Defendant/Cross-Claimant's entitlement to a family provision order and notional estate order. However, the Plaintiff could not deny that the first Defendant, as the wife of Norrie at the time of his death, was an eligible person within the meaning of that term in s 57(1)(a) of the Act.
Senior counsel for the Plaintiff foreshadowed one of the issues for determination in the Cross-Claim, in the following exchange (which was predicated on the assumption that the severance of the joint tenancy would be set aside and, as a result, that the whole of the Sans Souci property would be held by Minnie's estate, she having survived Norrie) (T3.25 - T3.43): "HIS HONOUR: So there's no actual estate. Then the issue is whether his interest as a joint tenant could be designated as notional estate. RUSSONIELLO: Correct, your Honour. HIS HONOUR: I assume, Mr Wilson, you accept that it could be. The issue is whether it should be. Is that the position or something else? WILSON: It could be if the cross-claimant proves a related property transaction, yes. HIS HONOUR: But it's the interest in the joint tenancy. So it would be whether or not, as a matter of discretion, the Court ought to-- WILSON: It's more than discretion, your Honour. Our case will be that the deceased lacked capacity in 2006 when he went into the nursing home and so, going back three years from his date of death in 2012, there couldn't have been any related property transaction, but that's I said what I've said, your Honour…."
The parties seemed to agree, in the event that the first Defendant was successful on the Cross-Claim, and if a family provision order were made by way of lump sum legacy for her, then the Plaintiff should be given a reasonable opportunity to pay the lump sum legacy and any costs ordered to be paid without ordering the sale of the Sans Souci property. Only if he was unable to do so, should an order for the sale of the Sans Souci property be made.
Neither party, in the pleadings, sought an order for the appointment of trustees for sale in the event that the Plaintiff was unsuccessful and following the dismissal of his claim and the dismissal of the Cross-Claim. They will need to consider whether orders under s 66G of the Conveyancing Act 1919 (NSW) will need to be made so that further litigation between them will be avoided.
I shall allow the parties an opportunity to consider these reasons and stand the proceedings over to a mutually convenient date to enable orders to be prepared reflecting the reasons and any argument about costs.

[6]

Some General Matters

The Court is required to determine, on the balance of probabilities, taking into account s 140(2) of the Evidence Act 1995 (NSW), which version of events is the more likely and plausible.
Since both Norrie and Minnie are dead, it is also necessary to bear in mind the careful scrutiny to which evidence about conversations with, or between, them should be subjected: Plunkett v Bull (1915) 19 CLR 544, per Isaacs J, at 548-549. This is because neither was available, at the hearing, to admit, or directly deny, specific allegations.
McLelland CJ in Eq cited Plunkett v Bull in Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785 at 789, in which case his Honour wrote that "in a claim based on communications with a deceased person, the court will treat uncorroborated evidence of such communications with considerable caution". Whilst there is no absolute legal requirement for it, the Court should look for some corroboration: Re Hodgson (1885) 31 Ch D 177 at 183; Day v Couch [2000] NSWSC 230 at [9]; Weeks v Hrubala [2008] NSWSC 162 at [20].
Also, I remember what Bryson AJ said in Zahra v Francica [2009] NSWSC 1206 at [1]: "In these proceedings the plaintiff makes claims against the deceased's estate and the facts that he alleges depend for proof very largely upon his own evidence. In approaching his evidence and making findings on a matter he alleges, I bear in mind the need for careful scrutiny to which evidence in such a case should be subjected. This need is well established and was stated clearly by Isaacs J in Plunkett v Bull (1915) 19 CLR 544. Two more modern statements appear in the judgment of McLelland CJ in Eq in Eyota Pty Limited v Hanave Pty Limited (1994) 12 ACSR 785 at 789 in a passage which was cited with approval in the judgment of Sheller JA in Eggins v Robinson (2000) NSWCA 61 at [26]."
On the question whether to accept the evidence of one witness or the other, I also remember that in Thomas v The Times Book Co [1966] 2 All ER 241; [1966] 1 WLR 911 at 916, Plowman J stated: "... [N]ot only in this case is the onus of proof on the defendants, but I am enjoined by authority to approach their story with suspicion, having regard to the fact that the other actor in this story, the late Dylan Thomas, is dead and cannot therefore give his own version of what took place."
(The reference to the Defendants in the case identified would be a reference to the Plaintiff in the present case since he bears the onus of proof in relation to matters in the further amended Statement of Claim.)
Whelan J in Webb v Ryan [2012] VSC 377 at [22], referred to the difficulties in assessing evidence in such circumstances, stating: "An important matter which may arise in these kinds of cases is the difficulty of assessing evidence concerning things allegedly said by a person who is dead. The court can never be certain it knows all the circumstances, and more often than not one may be sure that the court knows few of them. It is impossible to hear what the other party to the conversation, the deceased, says about it. There is a significant risk of reconstruction. There are dangers in relying on evidence of what may have been a casual observation made to a person who at the time had no reason to remember the exact words used. In the light of these concerns, a substantial burden is placed upon an applicant whose case relies upon such evidence. Such evidence must be very carefully examined."
Furthermore, a Court, in cases involving events, some of which occurred long before the litigation, usually prefers to rely upon contemporaneous, or near contemporaneous, documents, which will often provide valuable and, usually, more revealing, information than what may be flawed attempts at recollection of those facts by persons with an interest in the outcome of the litigation: Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200 at [1247] (Jagot J). Greater weight is usually accorded to such documents, as often they provide a safer repository of reliable fact, particularly when it is clear that they have been prepared by a person with no reason to misstate those facts in the documents and where there is no suggestion that the documents are other than genuine: Hughes v St Barbara Mines Ltd (No 4) [2010] WASC 160, at [157] (Martin J).
Because it may be relevant, particularly to the evidence of the second Defendant, what Kirby J, although in dissent, wrote in Whisprun Pty Ltd v Dixon [2003] HCA 48; 77 ALJR 1598, at [119]-[120] must also be remembered: "… Some judges in the past regarded untruthful evidence - even about peripheral or irrelevant matters - as fatal to a litigant. Most judges today understand that the evaluation of evidence involves a more complex function, requiring a more sophisticated analysis. Courts, after all, are not venues for the trial of the parties' morality or credibility, as such. As judges often explain to juries in criminal trials, people sometimes tell lies in court and elsewhere for extraneous and irrelevant reasons, having nothing to do with the legal issues in the trial. If this is true in criminal trials, it is equally true in civil trials. What is important is not the proof of untruthfulness, as such, but the significance (if any) of any demonstrated falsehoods for the issues at trial. That significance can only be judged when measured against the entirety of the relevant testimony. By its logical force, that testimony may well require that the falsehoods be ignored as irrelevant or immaterial to the decision-maker's ultimate conclusion. In particular cases, it may require the decision-maker, within the pleadings, to consider and decide a case different from - or even contrary to - that advanced by the party, because such is the legal entitlement of the person concerned. Obligations of this kind recognise the ultimate duty of the decision-maker in an Australian court to decide a case according to law and the substantial justice of the matter proved in evidence, not as some kind of sport or contest wholly reliant on the way the case was presented by a party. Litigants are represented in our courts by advocates of differing skills. Litigants are sometimes people of limited knowledge and perception. Occasionally, they mistakenly attach excessive importance to considerations of no real importance. In consequence, they may sometimes tell lies, or withhold the entire truth, out of a feeling that they need to do so or that the matter is unimportant or of no business to the court. This is not to condone such conduct. It is simply to insist that, where it is found to have occurred, it should not deflect the decision-maker from the substance of the function assigned to a court by law." [Footnotes omitted]

[7]

Some Salient Facts - Norrie and Minnie

I am satisfied that the following facts have been established, and that they provide a useful background. In relation to any disputed matters, the following facts should be regarded as the findings of the Court.
Norrie was born in July 1928, and he died on 15 May 2013, aged 84 years.
Minnie was born in November 1918, and she died on 1 February 2015, aged 96 years.
Minnie was married, first, to Gregory James Thomas Horgan, but the marriage was dissolved by this Court (in its then Matrimonial Causes Jurisdiction), by decree absolute dated 18 June 1950.
Subsequently, Minnie and Norrie married on 24 December 1951 and they remained married until 26 November 1970, when a decree nisi for the dissolution of their marriage was granted by this Court (in its then Matrimonial Causes Jurisdiction).
There were two children of the marriage of Minnie and Norrie, being the Plaintiff, who was born in June 1956, and Karen Fay Robson ("Karen"), who was born in February 1958. (Minnie had a daughter from her prior marriage, namely Jeanette Frances Martin, who was born in October 1937. Neither of Minnie's daughters has played any part in the proceedings.)
In August 1958, Minnie and Norrie purchased, as joint tenants, the Sans Souci property for £1,200.
The Sans Souci property, at the time of purchase, was, and it currently is, registered under the Real Property Act 1900 (NSW). It follows that the indefeasibility provisions of that Act, to which I shall later refer, operate.
Between the date of its purchase and late 2012, Norrie and Minnie remained the joint registered proprietors of the Sans Souci property. Thereafter, the title to the Sans Souci property was, and currently is, registered, in their names as tenants in common in equal shares.
In about late 1959, Minnie and Norrie erected a home on the Sans Souci property at a cost of about $8,000. From about 1960, they lived there together with their children, until their separation in October 1968, when Minnie left, after being the victim of domestic violence.
Norrie and Minnie borrowed money from Metropolitan Homes No 13 Building & Investment Co-operative Society Limited, to enable the purchase of the Sans Souci property, or to enable the construction of the home, and a mortgage securing that borrowing was registered on the title to the Sans Souci property.
As at 1 December 1968, the amount owing under the mortgage was $4,443.12, which amount included arrears of $843.02 (Ex. 11). A discharge of this mortgage was registered in November 1984.
Norrie operated a mechanical repair business, on weekends, on part of the Sans Souci property.
The relationship between Norrie and Minnie, after their separation, was acrimonious. In March 1969, Minnie initiated family law proceedings against Norrie seeking orders for a decree nisi for the dissolution of their marriage, interim maintenance, injunctive relief, and property settlement, in this Court, pursuant to the Matrimonial Causes Act 1959 (Cth). Those proceedings were determined by Carmichael J on 26 November 1970. His Honour granted Minnie's application for dissolution of the marriage on the grounds of cruelty.
In the Petition for Dissolution of their marriage, a copy of which is Ex. 11, paragraph 16 provided: "The petitioner seeks an order under Section 86 of the Matrimonial Causes Act 1959-1966 for a settlement of the property to which she and the respondent are jointly entitled at … Sans Souci, and of the household furniture, chattels and affects therein contained vesting the whole of the respondent's interest in the petitioner. In the event of this order being refused then the petitioner seeks an order that she be permitted to reside in the premises and have the use of the household furniture, chattels and effects during her life or until her remarriage or in any event during the minority of the infant children of the marriage to the exclusion of the respondent…"
Notice dated 6 November 1968, of Minnie's application, was given to The Secretary, Metropolitan Homes No. 13 Building & Investment Co-operative Society Limited, the registered mortgagee.
It appears that shortly prior to the determination of the proceedings, Minnie and Norrie entered into "Terms of Settlement", dated 24 November 1970, in accordance with part of which the Court made orders as follows: "2. That Orders be made in accordance with the terms of Paragraphs Nos. 1 to 5. Inclusive and No. 7 of the document titled "Terms of Settlement" dated the twenty-fourth day of November 1970 signed by the Petitioner and the Respondent initialled by His Honour and filed herein as set out hereunder: '1. The petitioner is to have the right to reside rent free in the former matrimonial home situated at Number xx xxxxx Street, Sans Souci for her lifetime or until her remarriage. 2. Whilst the petitioner occupies the former matrimonial home, the respondent is to be responsible for mortgage repayments and for the payment of rates, taxes and repairs and maintenance on the said home. 3. The respondent will pay to the Clerk of Petty Sessions, Kogarah for payment out to the petitioner by way of permanent maintenance the sum of $15.00 per week. 4. The respondent will pay to the Clerk of Petty Sessions, Kogarah permanent maintenance for each of the children of the marriage, the sum of $8.00 per week otherwise usual order. 5. The custody of the two children of the marriage is to be granted to the petitioner with reasonable access to the respondent. 7. The respondent is to pay the petitioner's costs of an incidental to the suit including the costs reserved of the Application of Interim Maintenance and Injunction dated the 3rd day of March, 1969.' 3. That the maintenance ordered to be paid pursuant to Order No. 2. sub-paragraphs 3. and 4. herein continue in respect of the Petitioner during the joint lives of the parties and in respect of Stephen Wayne Anderson and Karen Fay Anderson the children of the marriage until each of such children respectively shall have completed secondary education or shall have become self-supporting whichever event shall first occur as from the twenty-sixth day of November 1970 and that the first of such payments be made on the third day of December 1970. AND THE COURT NOTED that the maintenance ordered to be paid pursuant to Order No. 2., sub-paragraph 3., herein, includes a contribution towards the electricity account at the aforesaid premises. AND THE COURT FURTHER NOTED the undertaking of the Petitioner that whilst she occupies the former matrimonial home she will permit the Respondent to have the full use of the garage portion of the premises for the purpose of his carrying on his Car Repair business."
Norrie continued to conduct his mechanical repair business on part of the Sans Souci property until about late 1974, when, apparently, he was no longer permitted to do so by the local Council.
The financial relationship of Minnie and Norrie, particularly as it related to the Sans Souci property, did not end at the time of the dissolution of their marriage and the making of the orders by the Court.
By letter dated 1 November 1984, Norrie's then solicitors, McDonnell Morgan Milne & Salier, informed Minnie that: "We advise that we have received from Mr. N. F. Anderson, the sum of $107.50 for costs and disbursements in respect of registration of Discharge of Mortgage over the property at xx xxxxx Street, Sans Souci. Such registration has now been completed in the Registrar-General's Department and the Title documents returned to this office. As the Title is registered in the name of N. F. Anderson and M. V. Anderson as joint tenants, we would require an authority from both parties in order to release the Title documents. In the meantime, pending receipt of such authority, we propose to lodge the documents in a safe custody packet in joint names."
(There was no suggestion that the statements made in this letter should not be treated as proof of the truth of what was stated.)
In a letter dated 10 August 1991, from Norrie's then solicitors, Werry Altobelli, to Messrs Philip Wood & Co, the following passage is found: "… In relation to the Sans Souci property we are instructed that our client's former wife has already indicated that she is not in the least interested in severing her joint tenancy in the property. Please remember that even if our client could unilaterally sever the joint tenancy, it would be worth absolutely nothing to him because of the life tenancy of his former wife. Seen in that light, and with great respect, the offer contained in your letter of 25th July, 1991 is quite inadequate..."
In a letter dated 7 June 1995, from Norrie's then solicitors, Dear & Lonergan, addressed to Minnie, the following passage appears: "We act for your former husband Norris Frank Anderson. We wish to advise that our client would be agreeable to the sale of the above property if you desire to effect a sale in due course. Our client has requested us to advise you of his offer as follows: 1. His agreement to sell the property will remain open to you for a period of 12 months from the date of this letter. 2. That upon the sale of the above property and after payment of the usual agent's commission, legal fees and outstanding rates (if any), that the proceeds of the sale be distributed as follows: (i) the sum of $30,000.00 to you to cover out of pocket and relocation expenses; (ii) the balance to be divided equally between yourself and our client. If you wish to effect a sale of the above property, please contact this office or our client so that arrangements can immediately be put into place for you both."
In a letter dated 20 June 1995, from Minnie's then solicitors, Adrian Twigg & Co, the following response appears: "… We note that your letter commences in heavy capitals with the following words, "RE: PROPOSED SALE XX XXXXX STREET, SANS SOUCI". In case you are unaware, there can be no sale of the property during our client's lifetime unless she earlier remarries. She has not remarried and has no intention of so doing. The terms of the Orders contained in the decree nisi between our client and your client are clear. We are further instructed by our client that your client is in arrears with his maintenance payments and his payments of rates on the property and maintaining maintenance of the property in proper repair. We believe from our client that your client received a substantial superannuation lump sum and we should be obliged if you would forward to us a Statement of Financial Circumstances sworn by your client setting out full particulars of his income, assets and liabilities,"
(The Plaintiff said that he was unaware of these letters and that Minnie had not discussed the contents of either letter with him.)
On 24 July 1996, a caveat on the title to the Sans Souci property was lodged on behalf of Minnie, claiming an interest as "a registered proprietor". The address for service of notices on the caveator was shown as the Sans Souci property.
(Again, the Plaintiff said that he was unaware of the caveat and that Minnie had not discussed it with him.)
Other than as set out above, there is no evidence of any written communication between Norrie and Minnie regarding the Sans Souci property.
Some of the evidence suggests that Norrie was not aware of the caveat having been lodged until about March 2006 when he attended upon a solicitor to have a Will and a Power of Attorney drafted, and when he was informed of the caveat. However, there is evidence to the contrary, given by the Plaintiff, which evidence I accept, that in a conversation with him in December 2004, Norrie referred to the caveat and that he "found out that the caveat she had Twigg put on the place means nothing".
Also contrary to the suggestion that Norrie did not know about the caveat is the evidence of the Plaintiff's wife, upon which she was not cross-examined, that in December 2004, Norrie had visited the Plaintiff and her, and he had referred to "that bloody caveat your mother has on the house down there at Sans Souci". I accept her evidence also.
Apart from a short time immediately following their separation, Minnie continued to occupy the Sans Souci property until 15 November 2010, when she was admitted to a nursing home. Then, the Sans Souci property was left vacant, except for brief periods when it was occupied by Karen.
Between late November 1970 and May 2013, neither Minnie nor Norrie brought proceedings, in any Court of competent jurisdiction, to vary, or discharge, the Orders made in the family law proceedings.
For completeness, I should mention Ex. M, which is a copy of a document dated 31 July 2006, from Centrelink, addressed to Norrie, which has attached "Your Assets Summary Statement". Next to the heading "Real Estate and Business Interests" is the amount $35,000, although to what asset this amount relates is not disclosed. The first Defendant accepted that there was no reference to the Sans Souci property in this document: T138.00 - T138.07.

[8]

Some Salient Facts - Norrie and the First Defendant

The first Defendant was born in November 1949. She met the deceased in 1966. Their relationship commenced in about 1968. They moved in together in early 1969. They married in March 1971 and they remained married to each other until Norrie's death.
There were three children of their marriage, being the second Defendant, who was born in April 1972; Frances, who was born in March 1974; and Norrie Jnr, who was born in May 1975.
The first Defendant gave evidence of some turbulent periods during her marriage to Norrie. She attributes their marital problems, during these periods, to Norrie's excessive consumption of alcohol.
The first Defendant and Norrie separated in December 1990. A short time later, each sought legal advice regarding a property settlement.
In about April 1992, Norrie and the first Defendant had what she described as "a legal property settlement" pursuant to which she received a 63 per cent share of a property that they had purchased in Beverly Hills. They agreed that she would purchase Norrie's 37 per cent share for about $60,000, which she did in about April 1992. Thereafter, the Beverly Hills property was registered in her sole name until its sale in 2002, whereupon she purchased, in her name alone, a property at Wood Street, Swansea.
The description "legal property settlement" appears to relate to Consent Orders, dated 20 December 1991, signed by each of them, filed in the Family Court of Australia, a copy of which Consent Orders forms part of the first Defendant's evidence.
It is not necessary to set out all of the contents of the Consent Orders, but the following passages appear (correcting some typographical errors): "NOTATIONS … G. The Husband and his former wife Miriam Anderson co-own … the Sans Souci property as joint tenants in equal shares. … I. At the time of the parties marriage (being the Husband's second marriage) there was a mortgage secured over the Sans Souci property and under a matrimonial settlement with the Husband and his former wife, the Husband paid out the said mortgage from matrimonial income of the Husband's second marriage and over a period of approximately 15 years. J. The Wife has agreed to relinquish any right title and interest in the Sans Souci property. … M. Pursuant to Section 81 of the Family Law Act 1975, the parties intend that that these orders shall, as far as practicable finally determine the financial relationship between them and avoid further proceedings between them. ORDERS … 9. The Wife shall transfer to the Husband her right title and interest in…(b) the Sans Souci property."
Despite the events referred to above, the first Defendant and Norrie reconciled and he returned to live with her in the Beverly Hills property.
In December 1992, Norrie purchased a property at Kandos, a small town about 235 kilometres north-west of Sydney. The property, initially, was registered in Norrie's name only, but in July 1996, he transferred ownership so, thereafter, it was held as joint tenants with the first Defendant. He and the first Defendant moved there at about this time.
The first Defendant says that she and Norrie never spoke about the Consent Orders following their reconciliation. Neither party sought to set aside those Orders. Furthermore, it appears that both parties complied with his, and her, obligations thereunder, respectively, so far as their property was concerned.
In any event, as will be read, the interest of the first Defendant in the Sans Souci property arises because of Norrie's Will, which was made many years after the Consent Orders were entered into.

[9]

The Wills, the Probate, and the administration of each Estate

Norrie left a Will dated 6 April 2006, Probate of which Will was granted, on 20 August 2013, to the first Defendant as the executrix appointed under that Will.
Relevantly, Clauses 6, 7 and 9 of Norrie's Will, provided: "… 6. IN THE EVENT that I own the property situate at and known as xx xxxxx Street, Sans Souci then I GIVE this said property to my Trustee UPON TRUST as follows:- 6.1 As to a one half share to my said wife for her own use and benefit absolutely 6.2 As to the remaining one half to my children STEPHEN WAYNE ANDERSON, KAREN FAY ROBSON, NATALIE ELIZABETH ANDERSON, FRANCES MARGARET LEWIS & NORRIE FRANCIS BENJAMIN ANDERSON as tenants in common in equal shares for their own use and benefit absolutely; 7. IN THE EVENT that I only own half of the property situate at and known as xx xxxxx Street, Sans Souci then I GIVE this said property to my Trustee UPON TRUST as follows:- 7.1 As to a one half share to my said wife for her own use and benefit absolutely 7.2 As to the remaining one half to my children NATALIE ELIZABETH ANDERSON, FRANCES MARGARET LEWIS & NORRIE FRANCIS BENJAMIN ANDERSON as tenants in common in equal shares for their own use and benefit absolutely… 9. In the event that I am not the registered proprietor of that property situated at and known as … Street Sans Souci then I GIVE the whole of my Estate of whatsoever nature and wheresoever situate to my said Wife for her own use and benefit absolutely."
At the date of his Will, Norrie knew that he and Minnie owned the Sans Souci property as joint tenants. He appears to have known, also, that when one joint tenant died his, or her, interest in the jointly held property would pass, by survivorship, to the other.
The terms of Norrie's Will demonstrate that he contemplated three alternatives, the first being that he might come to be the sole registered proprietor of the Sans Souci property by survivorship (Clause 6); the second being that the joint tenancy would be severed and that he would be registered as to one-half of the Sans Souci property (Clause 7); and the third being that he would not survive Minnie, with the result that she would come to be the sole registered proprietor of the Sans Souci property (Clause 9).
Indeed, I infer that, by inserting Clause 7 in the Will, Norrie and his legal advisers believed that the Sans Souci property remained held in joint tenancy, but that the joint tenancy, at some time in the future, may be severed. The Will, on its own, does not, necessarily, negative the Agreement not to sever the joint tenancy alleged by the Plaintiff.
In the Inventory of Property placed inside, and attached to, the Probate of Norrie's Will, his estate was disclosed as having an estimated value of $400,027. The estate was said to consist of money in bank ($27) and Norrie's interest, as tenant in common in equal shares, in the Sans Souci property ($400,000). In addition, there was disclosed, as jointly held property at the date of death, Norrie's interest as a joint tenant with the first Defendant, in a property situated at Kandos, NSW ($95,000).
(I should mention that Clause 4 of Norrie's Will provided that if he was the registered proprietor of the Kandos property at the date of his death, he gave it to the second Defendant, Francis and Norrie Jnr, as tenants in common in equal shares.)
At the hearing, the parties were able to agree that the current value of the Sans Souci property is $1,250,000. It follows that the gross value of Norrie's share, assuming the severance of the joint tenancy is not set aside, is about $625,000. Alternatively, if it is set aside, the maximum gross amount that may be designated as the notional estate of Norrie is about $625,000.
Minnie left a Will dated 12 May 2006, Probate of which Will was granted on 10 June 2015 to the Plaintiff, as substituted executor, the instituted executors having renounced Probate.
In Minnie's Will, there is no specific reference to any interest that she might have in the Sans Souci property. By the Will, after directing the payment of debts, funeral and testamentary expenses, State Death Duty, Federal Estate Duty, and all other duties or taxes whatsoever payable by reason of her death, she gave one third of the residue of her estate to her daughter, Jeanette; one third of the residue of her estate to the Plaintiff; and she divided the balance, as to 20 per cent for her granddaughter, Belinda Jane McFarlane, and 80 per cent to Karen.
As identified above, the gross value of Minnie's share of the Sans Souci property, assuming the severance of the joint tenancy is not set aside, is about $625,000. If the severance is set aside, the whole of the Sans Souci property falls into Minnie's estate by survivorship, although up to half of its value could possibly be clawed back into Norrie's estate if a notional estate order is made.
As at 31 August 2013, the amount outstanding for Council rates on the Sans Souci property was $24,388. At the hearing, the amount outstanding was $29,238. It was accepted that the amount payable by Norrie's estate, or from notional estate if his interest as joint tenant is designated as such, is $26,813, being the amount of rates outstanding as at 31 August 2013 (accepted as at about the time of Norrie's death), and one half ($2,425) of the balance of the rates ($4,850). A reference to the amount to be paid to Minnie's estate should be included in any orders to be made.
At the hearing, it was also agreed that if the Plaintiff is successful, and if an order for the sale of the Sans Souci property was required, that there would be costs and expenses of sale, estimated to be about $30,000.

[10]

The diminution of Norrie's estate on account of legal costs

The first Defendant gave evidence that in the event that Norrie's actual estate comprises a one half interest in the Sans Souci property, she does not wish to proceed with the Cross-Claim. She accepted that she will then receive, pursuant to Clause 7 of Norrie's Will, one half of the share of the proceeds of sale that will have to be paid to her as executrix of Norrie's Will to whom Probate has been granted. She also accepted that the balance of the proceeds of sale passing to his estate will be divided between her three children.
However, subject to submissions that may be made on the question of costs in a claim for a family provision order, usually, in calculating the value of the estate, or notional estate, finally available to be distributed, the costs of the proceedings, (at least so far as they relate to the Cross-Claim) should be considered, with circumspection.
The first Defendant/Cross-Claimant, if successful, normally, will be entitled to an order that her costs, calculated on the ordinary basis, be paid out of the notional estate of the deceased, whilst the Plaintiff/Cross-Defendant, as the appropriate contradictor, irrespective of the outcome of the Cross-Claim, normally, will be entitled to an order that his costs of defending the Cross-Claim, calculated on the indemnity basis, be paid out of the estate or notional estate.
Because the Cross-Claimant's costs, as the first Defendant, in defending the proceedings might be relevant, an affidavit of costs was filed, without objection, on the second day of the hearing. Mr G Walsh, solicitor, estimated the first Defendant's costs of the proceedings to be about $115,000 (about $45,000 of which had been paid by the second Defendant to her former solicitors).
Of the total amount of costs and disbursements, the Court was informed from the Bar table, without demur or objection, that her costs and disbursements, so far as they relate to the Cross-Claim, are $25,000. (It was accepted that the Court should treat the figure as an estimate only.)
Ms L M Young, solicitor, estimated the Cross-Defendant's costs of defending the Cross-Claim, calculated on the indemnity basis, to be $35,000.

[12]

Norrie's Medical Condition after 2005

Between 19 and 28 April 2006, Norrie was an in-patient at the John Hunter Hospital, Newcastle.
In a report dated 28 April 2006, headed "To Whom it May Concern", Dr Judy Luu, a Neurology Registrar, opined that Norrie had been: "admitted for investigation of declining memory and neurological symptoms. During this period, he was noted to have poor short term memory and findings consistent with normal pressure hydrocephalus [an abnormal accumulation of cerebrospinal fluid in the brain]. As a result, he is not able to make fully informed legal or financial decisions at the moment. He will need further treatment and reassessment before he can be deemed competent to undertake any legal or financial decisions."
The first Defendant gave evidence that following Norrie's discharge from that Hospital, he returned to live with her for a short time, but "he suffered setbacks and in late 2006, he went into high dependency nursing home care at Belmont NSW".
Each of the Defendants, whilst prevaricating somewhat in cross-examination, accepted that between April 2006 and June 2012, Norrie's medical and mental condition deteriorated. Whilst each endeavoured to suggest that his condition fluctuated, the contents of various copy medical records, which were tendered, to my mind clearly reveal that in the years between 2006 and 2012, his condition was deteriorating quite significantly.
In an Admission Form dated 14 August 2006 (Ex. B), Norrie was diagnosed as suffering from Dementia (Frontal Lobe), depression, hypertension, having sustained recurrent trans-ischaemic attacks ("TIA's"), and atrial fibrillation ("AF").
In an Aged Care Assessment Team Central Register Form dated 11 July 2006 (Ex. H), Norrie was assessed as suffering from short term memory problems, confusion, and disorientation of time, place and other people. He was dependent in many activities of daily living (including shopping, preparing meals, eating, drinking, and oral hygiene). Again, he was shown as requiring residential high care. He was described as being unable to "manage personal hygiene", "location, change, mobility and transfers", his "own medication" or "specialised treatment".
Exhibit H also reveals a diagnosis of "progressive dementia", "short and long term memory problems, confusion, disorientation of time place and other people". Norrie is described as needing "high level (permanent) nursing home care".
The last page of this document includes the signature of the first Defendant and under the heading "Why was the applicant unable to sign", the word "Dementia" is written.
In a report dated 30 August 2006 (Ex. K), Norrie was diagnosed as continuing to suffer frontal lobe dementia and recurrent transient ischaemic attacks, and as having a limited concentration span and short term memory loss. Part of the "interventions" suggested included "re-orient Norrie to time and place as often as needed".
There is another document, described as a "Uniting Church Resident Care Plan" (Ex. J) in relation to Norrie's condition in December 2006, which supports the evidence of the first Defendant that by the end of 2006, he had suffered a sudden deterioration as a result of which he was unable to attend to his personal hygiene requirements.
Part of this document covers the period between 17 November 2006 and 27 February 2010. It is clear that Norrie's condition did not improve over this period.
A Resident Movement Form with Uniting Care dated 5 March 2007, which forms part of Ex. A, identified Norrie as being in need of "Permanent" and "High Care" assistance.
In the copy of a document entitled Progress Notes, which forms part of the same Exhibit and which covers the period to 21 February 2010, Norrie, as at January 2010, was said to be "completely dependent in all aspects".
The Death Certificate, dated 25 May 2013, relating to Norrie, reveals that one of the causes of his death was "Cerebrovascular accident, 8 years".
I am satisfied, from all of the evidence, that, from about August 2006, Norrie was suffering from a number of different medical conditions that would have significantly affected his capacity. There can really be no dispute that he had suffered numerous transient ischaemic attacks which are also likely to have affected his cognitive abilities.
I did not find very convincing the second Defendant's evidence that she could not be specific about Norrie's state of health in 2012: "because his health generally fluctuated to extremes. It was never the same day to day, week to week, even hour to hour, minute to minute. You could go there some days and he'd talk, talk, talk. You could go there others and he wouldn't speak at all" (T119.15 - T119.20).
In my view, her evidence is inconsistent with the contemporaneous medical evidence that was tendered in the proceedings. I do not accept her evidence on this topic as reliable.
I am satisfied, on the balance of probabilities, that by about 2007, Norrie was not likely to have had capacity to give instructions to sever the joint tenancy of the Sans Souci property. He is also unlikely to have been able to comprehend the steps that the Defendants were taking to sever the joint tenancy in 2012.

[13]

The Power of Attorney given by Norrie

Norrie appointed the first Defendant as his Attorney pursuant to a document described as a General Power of Attorney dated 28 March 2006, the original of which is Ex. C. It is a printed form signed, sealed and delivered by Norrie in the presence of a witness, Peter Kilpatrick, solicitor.
It is clear that the first Defendant, alone, was appointed by Norrie as what I shall describe as "the specified Attorney". There was no dispute that she accepted her appointment as Attorney by signing the Power of Attorney on 28 March 2006.
The Power of Attorney went on to provide that, "should my said wife be unwilling or unable to act, I appoint my daughter [the second Defendant] to be my attorney". It is clear that the second Defendant, alone, was appointed by Norrie as what I shall describe as "the substitute Attorney". It follows that there was, in each case, only a single Attorney appointed.
(Neither of the terms "specified attorney" or "substituted Attorney" is used in the Powers of Attorney Act in 2006. However, "attorney" was defined, in s 3, as meaning, in relation to a power of attorney, "a person to whom the power is given".)
It will be necessary to return to the question when the second Defendant executed the acceptance of her appointment. The submission made on behalf of the Plaintiff was that the Court should not be satisfied that it was executed by her on the date the Power of Attorney bears, but rather that it was "backdated" some years later.
Clause 2 of the General Power of Attorney signed by Norrie provided that it is given: "with the intention that it will continue to be effective if I lack capacity through loss of mental capacity after its execution".
Yet, Part 2 of the General Power of Attorney, under the heading "ADDITIONAL POWERS & RESTRICTIONS", Clause 8 provided: "This power of attorney is subject to the following conditions and limitations. should I become incapacitated by physical illness or injury. should I become incapacitated through unsoundness of mind."
Then, the paragraphs of the Power of Attorney, under the heading "Acceptance by attorney", contemplate that what follows was "[t]o be used for enduring Powers of Attorney only" and the acceptance of the appointment by the Attorney "under this enduring Power of Attorney".
There was, initially, a dispute concerning whether Norrie's Power of Attorney is a General, or an Enduring, Power of Attorney. It is headed "General Power of Attorney". Although as stated above, the Plaintiff asserted, in the further amended Statement of Claim, that the Power of Attorney was a "General Power of Attorney" and that it had ceased to operate from about August 2006 as a result of the conditions and limitations identified in it, during submissions, senior counsel for the Plaintiff seemed to accept that since the form of the Power of Attorney was the same as the form of the Power of Attorney signed by Minnie at about the same time, which was clearly an enduring Power of Attorney, Norrie's Power of Attorney should also be regarded in the same way: T207.49 - T208.21.
It follows that one of the issues raised by the pleadings regarding the construction of Norrie's Power of Attorney ceased to be an issue.
The Power of Attorney signed by Norrie gave no additional powers to the Attorney. Relevantly, the power to confer benefits was expressly omitted by the striking out of Clauses 5, 6 and 7.
The evidence reveals that Mr Sean Peters, a solicitor to whom reference will be made later, sent the original Power of Attorney and one copy to his Law Agents, for registration, on about 27 June 2012: Ex. 5. The Power of Attorney was registered by the Registrar General on 28 June 2012: Ex. C.

[14]

When did the first Defendant accept her Appointment as Attorney?

A factual matter that loomed large in the proceedings related to when the second Defendant accepted her appointment as the substitute Attorney. (This was despite the fact that in the submissions dated 23 March 2016, senior counsel for the Plaintiff wrote that "the First and Second Defendants would appear to have both accepted their appointments as Attorneys on 28 March 2016".)
As will be obvious from the Power of Attorney itself, there was a need for acceptance by the specified Attorney and also by the substitute Attorney. The acceptance by each was to be express, not simply by acquiescence or by some other less formal way, as the Power of Attorney provided for each to sign.
What acceptance by an attorney is designed to do is to "convey to the attorney that he or she is accepting serious responsibilities": Law Reform Commission, Community Law Reform for the Australian Capital Territory: Third Report, Enduring Powers of Attorney (AGPS, 1988) p 13.
In Lincolne v Williams [2008] TASSC 41; 18 Tas R 76, at [4] and [9], Blow J referred to the giving and acceptance of a Power of Attorney as follows: "The giving and acceptance of the power of attorney created a relationship of principal and agent between the parties… … in my view the giving and acceptance of an enduring power of attorney, without more, cannot amount to the making of a contract. The legislative requirement of written acceptance contained in the 1934 Act, s 11A(2)(b), and now to be found in the 2000 Act, s 30(2)(c), serves important non-contractual purposes. It protects the donee of an enduring power against the risk of becoming a trustee without his or her knowledge and consent. It also protects the donor of the enduring power from the risk that, once it is too late to make alternative arrangements, the donee will turn out to be unwilling to act."
The date identified by the second Defendant as the date of acceptance on Norrie's Power of Attorney, was 28 March 2006. The second Defendant said that she believed that she had signed the document "in the afternoon of that date": T92.30 - T92.31.
Although, as will be read, a substitute attorney may accept the appointment at the time the instrument creating the enduring power of attorney is executed, or at any time after it is executed (s 20(3) and 20(4) Powers of Attorney Act 2003 (NSW)), senior counsel for the Plaintiff submitted that the placing of a date on the Power of Attorney which was incorrect, supported the assertion that the second Defendant knew that what she was doing was beyond power and demonstrated actual, or constructive, fraud.
It was submitted, also, that the determination of this question was relevant to whether the second Defendant should be accepted as a witness of truth.
There are a number of problems in relying only upon the date shown in the Power of Attorney itself in resolving the question. The following evidence, in particular, supports the conclusion that the date on which the second Defendant signed the acceptance of appointment was not the date shown on the Power of Attorney. It also provides reasons to doubt the reliability of the second Defendant's evidence on the topic: 1. Despite such a serious allegation being levelled against her, the second Defendant seemed to withdraw any denial of the allegation that her signature on the Power of Attorney was placed on it at a date other than the date shown on it. Indeed, she became unsure, having reflected on the matter, whether she had signed it on the date stated on the Power of Attorney under her signature: T102.13 - T102.40. The following passage of cross-examination, at T104.46 - T105.01, does not assist the second Defendant: "Q. Was it someone at Mr Peters' office who suggested that it be backdated to 28 March 2006 or did you discuss that with your mother that it be backdated to 28 March 2006? A. That's making a very big assumption, Mr Wilson. Q. You can deny it, if you wish. A. I'm unsure." And at T118.00 - T118.05: "Q. I'm suggesting to you that the separate legal constraint which made your declaration in paragraph 1 incorrect was that you hadn't signed the power of attorney on 28 March 2006 but much later when you saw Mr Peters, or shortly thereto. A. I'm just going to say I'm unsure to that question." 1. The second Defendant's evidence that she attended the solicitor's office late in the afternoon of 28 March 2006, following a telephone call from her parents, does not seem likely, if the first Defendant's evidence that she and Norrie only returned from the solicitor's office between 3:00 p.m. and 5:00 p.m. (she could not be sure which) is correct. The second Defendant would have had to travel from Beverly Hills, Sydney, to the solicitor's office in Swansea, about 25 miles from Newcastle. There was no suggestion that any arrangements were made to meet the solicitor to attend to the signing of the Power of Attorney. 2. The first Defendant's affidavit of 28 March 2014, does not refer to the acceptance by the second Defendant of her role as Attorney on 28 March 2006, when she says the Power of Attorney was prepared and signed by Norrie and when the appointment as Attorney was accepted by her. Nor does the first Defendant state, in that affidavit, that she was informed by the second Defendant, on that date, or subsequently, that the second Defendant had accepted the appointment on 28 March 2006. 3. Ex. A included a copy of the Power of Attorney which was produced by Uniting Care Hunter Central Coast New England and appears to have related to Norrie's admission to Narla Village Nursing Home in August 2006. That copy, dated 6 April 2006, by Mr P Kilpatrick, the solicitor who had prepared the Power of Attorney, described as "a true and correct copy of the original document", did not include the signature of the second Defendant under the heading "Acceptance by Attorney". Had the Power of Attorney been signed on 28 March 2006, one would have expected the verified copy to include the second Defendant's signature. 4. The date "28th March 2006" which appears under the signature of each of the first Defendant and the second Defendant appears to be in different handwriting. (This, on its own, would not be determinative, since neither of the Defendants suggests that each placed her signature on the Power of Attorney in the presence of the other.) 5. Part of Ex. A is a copy of a document headed "Appointment of Enduring Guardians". The signature of the first Defendant under the heading "Acceptance of appointment" bears the date "28.03.06". Then, underneath that date, is the reference to the second Defendant. Her signature then appears and underneath it is the date "21.04.06". 6. Ex. B was an Admission Form dated 14 August 2006. Although both Defendants are named as next of kin, only the first Defendant is referred to next to the term "Relationship" as "POA/Enduring Guardian". The second Defendant next to the term "Relationship" is referred to as "Daughter". 7. The solicitor who gave the Certificate on the Power of Attorney under s 19 of the Powers of Attorney Act, Mr Peter Kilpatrick, was not called to give evidence. Furthermore, no diary entry, contemporaneous file note, or any other document, prepared by the solicitor, was relied upon in evidence by the Defendants. No explanation for not calling the solicitor or producing any diary or contemporaneous diary note was given. 8. Ex. O is a Uniting Care "Consent to Disclose Information" form, which was signed by the first Defendant on 15 August 2006. In this document, there is a reference to the first Defendant as "POA" and a further reference to the "Person Responsible/Next of Kin". The first Defendant is referred to, but next to the reference to "Other", the following appears: "NATALIE ELIZABETH ANDERSON - DAUGHTER - Natalie & Marilyn Anderson Power of Attorney only."
Having heard and read all of the evidence, I am not satisfied that the second Defendant accepted the appointment as Attorney on 28 March 2006.
However, this conclusion does not mean that the second Defendant did not accept the appointment some time later, and certainly by the time she took the steps that she did to sever the joint tenancy. Norrie's Power of Attorney was registered on 28 June 2012. There is no suggestion that the second Defendant had not accepted the Power of Attorney by that date, which, of course, is prior to the date of her signing the statutory declaration and transfer. Indeed, in that statutory declaration, she identified herself as "Attorney under registered Power of Attorney Book 4634/249". This statement, which is undoubtedly correct, makes clear that it had been registered by that date.
Nor am I satisfied, having come to the conclusion that the General Power of Attorney was not signed by the second Defendant on the date it bears, that the insertion of the incorrect date demonstrates any knowledge of fraud. As stated, the acceptance by the substitute Attorney could take place at any time before she acted as such.

[15]

Benefit to the Attorneys

At the time of the severance, it cannot be said that to sever the joint tenancy would not have been in Norrie's best interest. Since it was not known who would die first, the certainty of a one half interest as tenant in common of the Sans Souci property, as compared with the uncertainty of coming to be registered as the sole registered proprietor if Minnie died first, or not being registered as a proprietor at all if she did not, might very well have been in his best interest.
The first Defendant gave evidence that one of her motives in seeking advice about the severance of the joint tenancy in 2012 was "to fulfil my husband's wishes that were in his will" (T152.41). This evidence is inconsistent with her denial that the second Defendant had proceeded to sever the joint tenancy because she "knew that, in due course, when Norrie died, Sans Souci would pass into his estate and you would benefit from it to some extent": T152.34 - T152.41; T157.28 - T157.32.
The second Defendant was cross-examined upon her motive in taking the steps to sever the joint tenancy. It was put to her that she was aware of the terms of Norrie's 2006 Will, and that she knew that she, her siblings and the first Defendant, would receive a share of Norrie's estate, (and thus a share of the proceeds of sale) in the event that the severance of the joint tenancy occurred. She admitted that in 2012, she knew of the 2006 Will, but she denied that her interest under that Will motivated her to take the steps that she did. She did, however, admit that a consequence of the severance was that she would benefit under the terms of that Will: T125.38 - T125.40.
The second Defendant asserted that a motive for the severance of the joint tenancy was to improve Norrie's lot in life. She gave by way of example, the fact that he required extensive dental work and, perhaps, a desire to have him move into the Sans Souci property.
She admitted that even after the steps taken to sever the joint tenancy, no further steps were taken to sell the Sans Souci property and no request was made to permit Norrie to move back into the property even though Minnie was no long living in it: T132.32 - T133.07.
Neither Defendant could explain, however, how improving his lot in life would be achieved unless, following the severance of the joint tenancy, the Sans Souci property was sold, with the result that there would be one half of the proceeds of sale available to improve Norrie's financial circumstances. In these circumstances, it is difficult to accept the asserted motive for doing what was done.
There was no immediate benefit to either of the Defendants as a direct result of the severance of the joint tenancy. Had the severance been effective, what would have occurred was that he would hold his interest therein as a tenant in common in equal shares with Minnie, and upon his death, Norrie's interest, as tenant in common in equal shares, would form part of his estate, with the consequence that Clause 7 of his Will would take effect. Only then would the named beneficiaries, including the first and second Defendants, each receive a benefit under the Will.

[16]

Conversations about the Sans Souci property

The Plaintiff gave evidence that in about 1982, following a request made by the Plaintiff to Norrie to repair a fence at the Sans Souci property, Norrie said to him that "[t]he bloody house is going to be yours and Karen's in the end anyway". However he did not say that he had agreed with Minnie words to the effect that "there will be no severance of our joint tenancy and she inherits if I die": T54. 07 - T54.23; T56.08 - T56.14; T57.13 - T57.26.
(There is evidence in a Statement of Costs and Disbursements, that in November 1982, a search was conducted by Norrie's solicitors at the Registrar of Births Deaths and Marriages. However, the correspondence referred to, addressed to the Registrar General, is not in evidence.)
The Plaintiff also accepted, later in the cross-examination, that whilst Norrie had said that he had "no intention of selling anything", he did not say that he had made an agreement with Minnie that he would not do so: T54.49 - T55.14.
Rather, the deceased had said that he was not pushing Minnie to do anything she did not wish to do; that if the Sans Souci property were sold "it would bugger up my pension"; and that he had earlier agreed with Minnie not to sell: T58.07 - T59.03.
The Plaintiff also agreed that when he went with Minnie to make her Will in 2006, there was a discussion with her and the solicitor about the joint tenancy and the ability to have the joint tenancy severed. He accepted, at T61.03 - T61.24, that Minnie had said: "Absolutely not, I don't want to give his wife and kids anything. I fought hard over the years to get the house for my kids and I'm not going to give it away. If I did that the next thing the old man would be wanting to sell it on me", but she had not said "I'm afraid I've agreed with Norrie that I will never sever the joint tenancy."
The Plaintiff also gave evidence that in April 2006, when he visited his father in hospital, Norrie had told him that he "had been to see a local solicitor at Charleston to get my affairs in order. I've made no changes to Sans Souci and I've told Marilyn the house there is for your mother, eventually going to you and Karen when the time comes and Kandos and Swansea is for Marilyn and my other kids".
The Plaintiff denied that he had fabricated this conversation. Whilst counsel for the first Defendant put to him that the conversation had not taken place, and "that the reason you have told what I've said to be a lie is because you wish to advance your interests in the case" (T60.45 - T60.46), the second Defendant, who was said to have been present during the conversation, only put to the Plaintiff that "our father was seriously ill at the time and under the influence of medication in a hospital and the words should not have been taken literally": T65.36 - T65.48.
Later, the following exchange occurred at T67.11 - T67.32: "HIS HONOUR: --if you are going to say to me that I should accept that the conversation asserted by Mr Anderson in paragraph 36, whilst you were present, did not occur, then you have to put to him that it did not occur. Do you, firstly, wish to put that to him that the conversation that he has asserted did not occur? At the moment all you've put to him was that because of the medical condition-- SECOND DEFENDANT: Sure. HIS HONOUR: --from which he suffered - what you need to decide upon is whether you're going to suggest to him that the words that he attributes to Norrie did not occur, if you say they did not occur. That may mean that you have to give some evidence about what you say the conversation was at a later time, because you haven't said so in any affidavit but, in fairness to this witness, if you're going to put to me that I should not believe the conversation that is in paragraph 36, then you have an obligation to put to the witness that the conversation in those terms did not occur, if you say they did not occur. If they did occur, then you don't have to say anything. I'll leave for you to decide. SECOND DEFENDANT: I guess the point I was trying to make, your Honour, is perhaps the conversation did occur, but it should not have been considered acceptable because of the influence he was under."
I drew from this exchange that the second Defendant did not wish to seriously challenge the Plaintiff's version of the conversation with Norrie. Nor did she suggest forgetfulness, or fabrication, on the part of the Plaintiff. All that she did was to raise with the Plaintiff his knowledge of Norrie's medical condition at the time, and suggest to him that what Norrie had said should not be regarded as "acceptable".
Having heard, and seen, the Plaintiff in the witness box, I accept his statement that he had not fabricated the conversation and that such a conversation did occur in the terms that he asserted. That does not mean, however, that what Norrie told the Plaintiff was true.
The Plaintiff's wife, Carolyn, also gave evidence of being present at a number of conversations between the Plaintiff and Norrie in which Norrie had said that if anything happened to him, the Sans Souci property was for the Plaintiff and Karen, whilst the Narwee property was for his other children.
Carolyn accepted that Norrie had not said that if anything happened to him, Minnie was going to inherit the Sans Souci property, or that he and Minnie had agreed not to sever the joint tenancy: T70.34 - T70.45. She also accepted, at T71.41 - T71.45, that Norrie had not said: "I want to keep the house as joint tenant with your mum/Minnie Anderson, because on the death of either of us, I want it to go to the other of us, the survivor of us."
The first Defendant gave evidence that she had never heard Norrie "mention any agreement that the survivor would take the Sans Souci property".

[17]

Events relating to the Sans Souci property from 2006

On 11 May 2006, it would appear that Norrie, by his solicitor, Peter Kilpatrick, made an Application for the preparation of a Lapsing Notice in respect of the caveat that had been lodged by Minnie on title to the Sans Souci property and also gave instructions for the unilateral severance of the joint tenancy.
There is a copy Tax Invoice dated 24 May 2006 from Messrs Kilpatrick and Hatton, addressed to Norrie, which refers to: "…our costs of acting for you in relation to taking instructions and providing advice, preparation of Lapsing Notice of the Caveat and Transfer to Unilaterally Sever the Joint Tenancy together with all other necessary attendances and correspondence"
However, I bear in mind Norrie's medical, and mental, condition, at, or about, this time, as revealed in the medical reports that form part of the evidence, to some of which I have referred.
An Application for Preparation of Lapsing Notice dated 11 May 2006, in fact, was lodged by Mr Kilpatrick in the office of the Department of Lands Property and Information Division. On about 15 May 2006, the Registrar General appears to have forwarded a notice of the proposed lapsing of the caveat with a letter stating that the original "should be served on the caveator in the manner authorised by Section 74N of the Act".
On 15 June 2006, the Registrar sent a Notice of Intended Rejection to Legalink Pty Ltd, on behalf of Norrie, advising that: "…Acceptable evidence of service of the caveator has not yet been received. [U]nless evidence of service of the notice is lodged by 13 July 2006, I propose to take no further action in relation to the lapsing of the caveat. As a result your application will then be rejected and the lodgement fee forfeited."
On 24 July 2006, a Notice of Rejection was forwarded to Legalink Pty Ltd, on behalf of Norrie, the basis of such rejection being that a "Requisition dated 15/5/2006 was not satisfied". Nothing appears to have been done, thereafter, to have caused the caveat to lapse.
There is also, in evidence, a copy of an unsigned and undated Transfer Unilaterally Severing Joint Tenancy in the name of Norrie which appears to have been prepared by Mr Kilpatrick. There is no evidence that this document was completed, or lodged, at the Land Titles Office. In addition, there is a copy email, dated 18 May 2006, which appears to report a conversation between someone at the office of Mr Kilpatrick and the first Defendant, in which the first Defendant is recorded as having given instructions "not to worry about doing anything: 'It's all too much.'"
(This instruction also seems to support the earlier conclusion regarding the medical condition of Norrie after April 2006.)
On 12 May 2006, Minnie appointed the Plaintiff as her Attorney under an enduring Power of Attorney and as her enduring Guardian. He accepted his appointment on the same date.
There is no documentary evidence of any steps taken by, or on behalf of, either Norrie, or Minnie, in respect of the Sans Souci property, then, until 2012.
The first Defendant gave evidence in her first affidavit that between December 2010 and March 2011, she and her children, Frances and Norrie Jnr, "witnessed activities at the Sans Souci property… I had become aware that Minnie had vacated the house and had moved into a nursing home in November 2010."
In February 2011, there was a conversation between the first Defendant and the Plaintiff's wife, Carolyn, in which the first Defendant acknowledged that "we know [Minnie] is no longer living in the house" and Carolyn confirmed that she was "in care".
In April 2011, there was a telephone conversation between the Plaintiff and the first Defendant in which the first Defendant asked him whether he was interested in selling the Sans Souci property. He confirmed that he was Minnie's Attorney and that she had told him on many occasions that she did not want to sell.
The first Defendant also gave evidence in her first affidavit that Carolyn "continued to communicate with me regarding Norris' health and their family events, often sending letters, cards and photos, up until July 14, 2013". She did not suggest that she could not have contacted Carolyn, or asked the second Defendant to do so, in order to ascertain the whereabouts of Minnie.

[18]

Events surrounding the Purported Severance of the Joint Tenancy

The second Defendant gave evidence that she and the first Defendant attended upon Mr Peters, solicitor, and "were advised that it was possible to unilaterally sever the joint tenancy" of the Sans Souci property. She says that, at another meeting, "in the presence of Mr Peters, [the first Defendant] declared that she lived too far away (in Swansea NSW) making it very difficult for her to act as the Attorney… It was not physically possible for my mother to make the frequent trips from Swansea to Leumeah to conduct this legal matter".
On 19 June 2012, the second Defendant sent an email to Mr Peters requesting advice. A copy of this email is Ex. E, and, relevantly, it is in the following terms: "My mother, Marilyn Anderson, would like to see you next week (Tuesday around 4pm if possible) to discuss a family property issue. She has asked me to fill you in on the nature of the case in the meantime. My father, Mr NORRIS FRANK ANDERSON has been married to my mother, Marilyn, for the last 41 years. He was married previously (from 1951-1970) to MINNIE VERONICA ANDERSON (aka Miriam Veronica Newlyn [maiden name] / Hogan [married name prior to marrying my father] DOB: 17/11/1918). They continue to hold a jointly owned home at … SANS SOUCI (Sandringham) NSW 2219. The terms of the divorce permitted Minnie to reside in the house until she died or remarried. My parents paid off the home and paid associated costs of the property up until around 1980. Minnie resided in the home until 2010. My father and Minnie had two children, Stephen Wayne Anderson and Karen Fay Anderson-Robson. Minnie also has a daughter from her first marriage. My father and mother, Marilyn, have three children: Natalie Elizabeth Anderson (me), Frances Margaret Anderson-Rae, Norrie Francis Benjamin Anderson. My father has been in a nursing home for the past six years in Belmont, NSW. My mother resides in Swansea NSW approx. 15 minutes from the nursing home. My mother and I share his Power of Attorney. Minnie, we understand entered a nursing home in November, 2010. Stephen has her Power of Attorney. In May this year, my sister Frances called her nursing home and was told Minnie had "departed" which was later changed to "discharged." Her whereabouts is unknown. We do not know if she is still alive. The Sans Souci property, which remains a joint tenancy, has now been vacant for almost 2 years. The council rates on the property have not been paid for up to 20 years. … Dad approached Minnie several times over the years to sever the joint tenancy; to sell and share the property but she always refused. The property now sits in a vacant limbo. My mother would like to find out if Minnie is in fact deceased. My mother and father would like to return to Sydney and occupy the property as Dad is now approaching 84 years of age and has never had any sole use or enjoyment of the property in question."
In an email dated 20 June 2012, a copy of which is Ex. D, the second Defendant requested Mr Peters to ascertain whether Minnie was still alive and stated that "any course of action will only be determined by whether or not she is still alive".
Mr Peters wrote a letter dated 11 July 2012, a copy of which is Ex. 4, to the Registrar of Births, Deaths & Marriages enclosing an application for a Death Certificate and supporting documents in which he advised that he acted for Norrie "who was the ex-husband of the deceased". He enclosed a copy of the title search of the Sans Souci property.
On about 20 July 2012, Mr Peters wrote an email to the second Defendant, a copy of which forms part of Ex. G, stating that he had ordered a Death Certificate and that he had "also got in place the Lapsing Notice form ready to go depending on the result of the Death Certificate application."
The next email from Mr Peters to the second Defendant, a copy of which also forms part of Ex. G, stated (with editorial amendment) that his investigations had not revealed an entry for Minnie's death and that "this could mean that she is still alive" and that "If this is the case and your father dies first the whole property will go to [Minnie]. Hence, we need to consider whether we should prepare and file a Unilateral Severance of Joint Tenancy so that the property is 50/50".
The second Defendant responded on 29 July 2012, a copy of the response also being part of Ex. G, relevantly stating: "Is there a way to check if she is still alive via Medicare or Centrelink…Mum has said to go ahead with severing the tenancy if it turns out Minnie is in fact still alive. She would like to know what sort of challenge the other party could put up in this respect and any implications we should consider. Mum has been in Sydney today and will be here till around 12 pm tomorrow. She is happy for you to communicate with me or you can contact her directly by phone".
On 30 July 2012, the second Defendant completed a Transfer Severing Joint Tenancy, pursuant to s 97 of the Real Property Act 1900 (NSW), which appears to have been lodged for registration a short time later.
There was evidence given by each of the first and second Defendants as to the events of June and July 2012 and why the second Defendant had acted as the substitute Attorney in completing the steps to sever the joint tenancy.
The first Defendant stated that she had spoken with the second Defendant and asked her whether she "would be prepared to sign the paperwork with Sean to save me coming and back and forth to Sydney". She also said that at the time, she "had been travelling for my medical appointments and attending the nursing home twice a day to visit Norrie". She added that "Keeping up with this and my various medical issues kept me very busy and I found it difficult to keep going backward and forward to Peters".
The second Defendant stated that the first Defendant had requested her to act "and declared that she lived too far away (in Swansea NSW) making it very difficult for her to act as the Attorney".
Despite the evidence set out above, the first Defendant accepted that in 2012, she had not been unwilling to act as Norrie's Attorney and that, whilst it might have been more convenient for the second Defendant to sign the relevant documents, she, the first Defendant, had not been unable to do so: T148.38 - T150.03.
She also accepted that there had been no urgency in severing the joint tenancy, and that Mr Peters could have attended upon her, at her home, to have her sign the relevant documents: T150.16 - T150.25. In re-examination, she said that Mr Peters had said that "a possibility [was] that Natalie could sign the paperwork on my behalf if I was not available and I was not available to come to Sydney when that paperwork was drawn up": T158.35 - T158.39.
The second Defendant gave evidence that there was email correspondence to the effect that the first Defendant would be in Sydney on 29 and 30 July 2012 and would be able to confer with Mr Peters: Ex. G. She seemed to accept that had she been in Sydney, she could have signed the documentation: T109.41 - T109.43.
There was no evidence produced concerning the precise whereabouts of the first Defendant on 29 or 30 July 2012 and, in particular, whether she was not in Sydney on either, or both, of those days.
However, she stated that, at about that time, she was undergoing treatment "for cancers around my eyes." She agreed that she attended upon Mr Peters to obtain advice regarding the severance, but that between her medical appointments and attending the nursing home to visit Norrie, she had asked the second Defendant to "sign the paperwork with Sean to save me coming and back and forth to Sydney".
Mr Peters sent the documents signed by the second Defendant to his Law Stationers for registration on or about 30 July 2012: Ex. 6.
As previously stated, Mr Peters did not give evidence. No explanation for his failure to do so was proffered by either of the Defendants.
As required by s 97(5) of the Real Property Act, under cover of letter dated 21 August 2012, the Registrar General sent a copy of the transfer, addressed to Minnie. However, the notice was sent to the Sans Souci property, that being the address identified by the second Defendant.
The notice that was sent stated that it was the Registrar-General's "intention to register [the Transfer] in thirty (30) days from the date of this letter". It noted that "[t]he effect of registration of this dealing will be that the joint tenancy will be severed and you will then own the land as tenant in common with MORRIE (sic) Frank Anderson".
The Notice also stated: "Right to change ownership from joint tenants to tenants in common. Under the law in New South Wales, a joint tenant can register a document at Land and Property Information that changes the ownership from joint tenants to tenants in common. In most cases a joint tenant can make this change with or without the agreement of the other joint tenant(s). In other cases, a joint tenant cannot make this change without agreement of the other joint tenant(s). Instances where a joint tenant cannot make this change are where he or she: is a trustee; or has made an agreement not to change the tenancy Should you consult a solicitor? If any of the following circumstances apply, you should see a Solicitor: You and the other owner(s) own the land as trustee; or You and the other owner(s) had an agreement not to change the ownership from joint tenants to tenants in common, or you had an agreement that said that it would be changed in a different way to how it was done; or You contributed a bigger share to the purchase of the land or its improvements than the other owner(s); or You have any doubts about what is in this notice. If you have not lodged a court order stopping me from registering the dealing severing the joint tenancy within 30 days from the date of this letter. I will register it and the joint tenancy will then be severed as set out in this letter…"
The Plaintiff gave evidence, upon which he was not challenged, that Minnie at this time was a resident of a nursing home, and that he would collect the mail from the Sans Souci property. He denied that he had collected the Notice from the Registrar General from the Sans Souci property. I accept his evidence on this topic.
On 3 December 2012, in circumstances that do not require elucidation, the Plaintiff spoke with Mr Peters, by telephone, and was told by Mr Peters that the joint tenancy of the Sans Souci property had been severed. The Plaintiff told Mr Peters, at that time, that neither Minnie, nor he, as Minnie's Attorney, had received any notification regarding the severance.
Subsequently, the Plaintiff found out that a notice had been sent to the Sans Souci address, by registered mail, but that it had not been collected from the Sans Souci Post Office, with the result that it had been returned to the Land Titles Office. The Plaintiff denied having received any notification that a registered letter was at the Post Office for collection. It was not suggested that the notice had been received by Minnie.

[19]

The Transfer severing the joint tenancy and the Statutory Declaration

The second Defendant signed the Transfer Severing the Joint Tenancy. The document included the following (omitting the full address of the Sans Souci property): "(F) STATUTORY DECLARATION BY THE TRANSFEROR/TRANSFEREE* I solemnly and sincerely declare that to the best of my knowledge and belief - 1. I, Natalie Elizabeth Anderson, am not subject to any legal constraint which would prevent Morrie Frank Anderson severing the joint tenancy; 2. The full name and street address of each of the other joint tenants is shown below: Miriam Veronica ANDERSON of ### Sans Souci, NSW, 2219 3. Every registered mortgagee, chargee and covenant chargee of the above land has been notified in writing. I make this solemn declaration conscientiously believing the same to be true and by virtue of the provisions of the Oaths Act 1900, and I certify this dealing to be correct for the Purposes of the Real Property Act 1900."
(I note that the document does not refer to the residential address of the other joint tenants but simply to "the street address". It is unlikely to mean anything other than the address of the joint tenant to which the notice is required to be sent.)
The separate statutory declaration sent to the Registrar General, which the second Defendant had completed, and dated 30 July 2012, is in the following terms: ""I, Natalie Elizabeth Anderson, do solemnly and sincerely declare that I am one and the same person as: Natalie Anderson (DOB x/4/1972) being attorney under registered power of attorney book 4634/249. I am also the same child of Norris Frank Anderson who is one and the same person as Morrie Frank Anderson being a registered proprietor of the property Vol xxxx Fol xxx. I am have [sic] no knowledge of any revocation of this power of attorney."
The second Defendant was cross-examined on the contents of the statutory declaration and the transfer, and, in particular, the statement that the address and street name, of Minnie, as the joint tenant, was identified in the Statutory Declaration as the Sans Souci property.
The first Defendant had found out that Minnie was not living in the Sans Souci property and that she was a resident in a nursing home at Bass Hill prior to her conferring with Mr Peters in July 2012. She admitted that she knew these facts and that she had "probably" told the second Defendant of them: T150.29 - T150.44.
There is little doubt that the second Defendant, as at 19 June 2012, was aware that Minnie was not living at the Sans Souci property as she had been told, previously, by the first Defendant, or by her sister and brother, that the Sans Souci property was vacant. Indeed her evidence is that her sister had telephoned the nursing home in which Minnie was a resident: T106.08 - T106.09. (It was not suggested that the second Defendant had known the precise name and address of the nursing home.)
I have earlier referred to the email dated 19 June 2012, copy of which is Ex. E, sent to Mr Peters, which specifically refers to Minnie living in the Sans Souci property until 2010.
A copy of a hand written Diary Note dated 15 January 2013 (Ex. F), having been produced by the second Defendant, was accepted by her to have been written by Mr Peters during a conversation that she had with him, and that it records the Sans Souci property had been "vacant 2 years. Disrepair. Council rates. Both parties in nursing homes": T108.11 - T108.33.
In answer to questions from the Bench, the second Defendant said that when she signed the statutory declaration that was sent to the Registrar General she did not know whether Minnie was, or was not, living in the Sans Souci property, or whether she was alive or dead: T112.00 - T112.03. I do not accept her evidence in this regard. More probably than not, she knew that Minnie was not living at the Sans Souci address.
Nor do I accept that she "had no reliable source to know where [Minnie] was" (T113.10 - T113.11). There is no doubt that she could have made further enquiries to ascertain where Minnie was then living. There was no suggestion that either of the Defendants could not have contacted the Plaintiff, or his wife, Carolyn, at the time, to ascertain where Minnie was.
I am satisfied that the second Defendant knew, as did the first Defendant, that Minnie was no longer living in the Sans Souci property and that she had not been living there for about two years. In stating the Sans Souci address as the address of the other joint tenant, and to which the notice of severance was to be sent, the second Defendant should have known that she was providing only the address of the property to the Registrar General and that that address was not Minnie's then residential address.
The second Defendant suggested that some enquiries had been made by Mr Peters. However, as she accepted, he was not a witness in the proceedings and, therefore, she had merely assumed that he had made enquiries. In any event, there was no evidence of any investigations that he might have carried out as to Minnie's whereabouts in June or July 2012.
I am not as confident that the second Defendant understood the legal significance of the underlying factual issues upon which she was cross-examined. It appears, in this regard, that she was relying upon the solicitor to assist in taking the necessary steps to effect the severance of the joint tenancy. The intricacies of notice having to be given to other joint tenants are unlikely to have been appreciated by either of the Defendants.

[20]

Correspondence following the Severance

Adrian Twigg & Co, acting on behalf of Minnie, wrote a letter dated 21 December 2012 (a copy of which letter was Ex. 7), to Mr Peters, stating that "our client was unaware of the severing of the joint tenancy… our client was not given the opportunity to respond to the Land Titles Office…"
Then, the solicitor for the Plaintiff (in his capacity as Minnie's Attorney), wrote a letter dated 24 July 2013, to the Defendant's solicitors, in which a number of the issues that have been raised in these proceedings were outlined. The letter provides: "… I note that Natalie Anderson was appointed as Mr Norris Frank Anderson's Attorney in the event his ex-wife, Marilyn Anderson, was 'unwilling or unable to act.' Please provide evidence of Marilyn Anderson's notice that she was unwilling or unable to act as Mr Norris Frank Anderson's Attorney at the time Natalie Anderson undertook action to server the Joint Tenancy of Sans Souci on 30 July 2012. I am instructed to advise, and request you bring to your client's attention, that my client regards the severing of the joint tenancy as an extremely serious matter in light of the fact that for 42 years following the making of the Orders on 26 November 1970, no action was taken by Mr Norris Anderson to sever the joint tenancy. In my client's opinion, this is overwhelming evidence of the Agreement between Mr Norris Anderson and Mrs Minnie Anderson they intended the real property at Sans Souci be held in a joint tenancy and that the said property would pass to the survivor of the two. In our view, the default Attorney's actions contravene that Agreement and in the event that a negotiated resolution is not forthcoming, my client will not hesitate to commence proceedings without further notice to you or your client. As you are aware, my client had no knowledge of that action until it came to his attention several months later. Further, I note that the Transfer Severing the Joint Tenancy identified Mrs Anderson's address as the Sans Souci property notwithstanding that she did not reside in the property at the time. I note your advice to Adrian Twigg & Co by letter dated 23 January 2013 that the property had been vacant for two years. In the circumstances, it seems apparent that the Transfer was unlikely to come to Mrs Anderson's attention. I note that Ms Natalie Anderson provided a Statutory Declaration in support of the severing of the tenancy. Ms Anderson states she is Mr Anderson's Attorney, notwithstanding that she is his default Attorney only. Nor does she provide evidence of her Mother's inability or unwillingness to act as Mr Anderson's Attorney. I note that that Statutory Declaration was witnessed by your Mr Peters. Further, I note that as Mr Anderson's daughter, Natalie Anderson is likely to receive a benefit arising from the severing of the Tenancy upon Mr Anderson's death. This would not have been the circumstances if the property remained as Joint Tenancy and Minnie Veronica Anderson were to outlive Norris Frank Anderson. I am instructed to seek such a response providing the information sought within 14 days. In the event such a response is not forthcoming, my client reserves his right to seek relief to restore the joint tenancy. I look forward to hearing from you."
There does not appear to have been a specific response to the allegations made in the letter from the Plaintiff's solicitors.
The solicitors acting for the second Defendant, however, did write a letter dated 21 August 2013 which includes: "We refer to the above matter and apologise for not replying sooner. We have been instructed to advise you that Norris Anderson died on 15 May 2013. Our client has also asked for us to send the enclosed envelopes to you so that you can provide one to Stephen and his sister Karen. We will write to you in the next few days in relation to your correspondence."

[21]

Evidence of the First Defendant regarding the Failure to Commence the Claim for a Family Provision order within the time prescribed by the Act

Although it will not ultimately be relevant, since there is a significant issue of credit raised in this case, I shall deal with this topic.
The first Defendant gave evidence, which was the subject of challenge, that she did not commence the proceedings within 12 months of the death of the deceased because she had not been told of her entitlement to make a claim for a family provision order by solicitors that had been retained by her before and after the death of the deceased.
She also said that it was not until January 2016 that she had been informed, for the first time, by her current solicitor: "that I may have been entitled to make a family provision claim pursuant to the Succession Act 2006, that such a claim was out of time, and that the grant of leave by the Court was required to bring it. He also informed me that the family provision claim ought to have been made on account of the possibility that if the Court set aside the severance of the joint tenancy of the Sans Souci property, it may nevertheless order that provision be made for me out of Norrie's notional estate".
The first Defendant also wrote: "The explanation from Mr Walsh, my hospitalisation (in late November 2015) and treatment for depression and the delay in the transfer of my file have caused my delay in bringing this cross claim."
However, there is a copy of an email dated 9 November 2015 from Mr C Wood of counsel, to Mr Peters (Ex. 9) which is in the following terms: "As you are aware, s.75(1) of the Probate and Administration Act encompasses not just acts, but a failure to act that results in property being held by another person. It follows that, if the severing of the joint tenancy is set aside, the half share of the San Souci [sic] house that would pass to Minnie on survivorship may be designated notional estate (s.80(3)). Given that, other than the house, there is some $27 in the estate, the other preconditions seem to be met and the discretionary consideration seem to weigh in favour of a notional estate order if Marilyn was to bring a family provision claim out of time… It follows, it seems to me, that the only significant hurdle that Marilyn would face in seeking family provision and an order for notional estate is that the claim would be out of time. The present proceedings would appear to provide a good reason for a delay in bringing the claim (in that any order setting aside the transfer is an order that does not operate retrospectively) and the estate (ie the house) is still intact. It seems to me that the only real question is whether to bring a cross claim in the present proceedings, or to wait for the outcome of these proceedings and to put the plaintiff on notice that a family provision claim [sic]. It seems to me that there is a risk that an Anshun estoppel may operate to preclude your clients later bringing a family provision claim. Accordingly, I recommend that Marilyn bring a cross claim for family provision in these proceedings. Consideration would have to be given to how that cross-claim would be framed (given that she is the executrix), the costs implications given that costs would normally come out of the estate, whether Natalie or any of the other children would bring such a claim, and whether Marilyn in particular has received adequate provision under the Will. If nothing else it places some real pressure on Stephen to engage with settlement negotiations. Given that this strategy changes the equation in your clients' favour significantly, they should give urgent consideration to withdrawing their present offer and making a further offer less favourable to Stephen."
There is a letter dated 16 November 2015 from Mr Peters to the solicitors acting for the Plaintiff, a copy of which is Ex. N, which includes the following: "The first defendant will make a claim for a 'family provision' order seeking that one half of the Sans Souci property be declared notional estate. We do not believe that it will be an insurmountable obstacle, in the circumstances, to commence these proceedings out of time. The failure to validly sever the joint tenancy will be claimed to be a prescribed transaction as per Cetojevic v Cetojevic and similar cases."
Clearly, if that letter was written after instructions were given by the first Defendant, her evidence about when she found out about her rights is incorrect.
However, the first Defendant gave evidence of a number of personal difficulties that she suffered in November 2015. She says that she was hospitalised. She does not state for how long, although she stated that "my depression and hospitalisation have prevented my solicitors from obtaining my instructions."
I tend to the view that her solicitors simply gave notice of the likelihood of proceedings for a family provision order, rather than having received specific instructions from the first Defendant about that being done. There was no challenge to the first Defendant about those personal issues.
I have earlier noted that the first Defendant did not file the Cross Claim until 8 March 2016. If she did find out about her right to make a claim in January 2016, there is no explanation for the delay, between January and March 2016, in filing the Cross-Claim. However, by that time, the prescribed period for making an application had well passed.

[24]

The Swansea property, which was owned by the first Defendant in her own name, was sold by her in late 2014, for about $395,000. The first Defendant purchased, with the second Defendant and her husband, Colin Mylonas, a property situated at Harrington Park, the purchase price being $635,000, of which she paid $380,000.
The first Defendant owns a one half share, as tenant in common, with them, and they hold the other half share as joint tenants with each other. There is a registered mortgage on the Harrington Park property securing a debt of $320,000 which was borrowed by the second Defendant and her husband to purchase their one half interest in the property. However, the mortgage is registered on the title to the Harrington Park property.
I do not accept that the liability secured by mortgage is, necessarily, a liability of the first Defendant which she will be required to pay. There is no reason to assume that the interest of the second Defendant and her husband in the Harrington Park property, if realised, would not be sufficient to pay out the mortgage debt which they incurred to purchase that interest. Indeed, the second Defendant gave the following evidence, at T126.28 - T126.30: "We bought that property on the guarantee that my husband and I would fund that mortgage for the rest of my mother's life and it's been articulated to her more than once in writing."
The first Defendant described the property that was purchased at Kandos, which was held in the joint names of Norrie and her, as being a property with "a 100 year old timber cladded home that is in a relatively poor state of repair. It urgently requires a replacement roof…".
The first Defendant is an aged pensioner. She receives a pension of $820 per fortnight. She stated that her fortnightly expenditure totals $777 which includes payments for utilities, and other expenditure, for the Harrington Park property and for the Kandos property.
The first Defendant suffers from Ischaemic heart disease, stage 3 kidney disease and diabetes.
The first Defendant gave evidence that she "presently and also going into the future, require funds to meet my ongoing medical expenses. I will also need funds to meet my ongoing daily living expenses which I currently am not able to meet and are no longer being assisted with by my children".
I am satisfied that, other than in respect of the mortgage liability, which I do not suggest was intended to mislead the Court, there is no reason to disbelieve the first Defendant's evidence on this topic.

[26]

Whether there was an Agreement not to sever the Joint Tenancy

Even though senior counsel for the Plaintiff submitted that it "is unnecessary for the Court to consider this argument if it is satisfied that the joint tenancy was severed without authority on the part of the second Defendant", I consider that I should deal with the alleged agreement first.
If an agreement were established, subject to the question of indefeasibility, the severance would be in breach of that agreement and would be void, and Norrie's interest in the Sans Souci property would be held upon trust for the Plaintiff as executor of Minnie's estate.
The Plaintiff's case is that the Terms of Settlement filed in this Court, in its Matrimonial Causes Jurisdiction, in November 1970, taken with the subsequent conversations, to which reference have been made, should lead to the conclusion that Norrie and Minnie agreed that neither had the right, without the consent of the other, to sever the joint tenancy. There was no dispute that it was for the Plaintiff to establish such an agreement.
(There is evidence that the agreement not to sever was raised, for the first time, in a letter dated 24 July 2013. Otherwise, there was no earlier correspondence from Minnie or her solicitors alleging such an agreement.)
No doubt because of cases such as Goyal v Chandra [2006] NSWSC 239; 68 NSWLR 313, the Defendants did not submit that there could not be such an agreement upon which reliance could be placed. Nor was it submitted that the registration of a transfer effecting severance might be refused because of the existence of a private agreement not to sever the joint tenancy: Sang v Choy [2004] NSWSC 1121 at [34] (Macready M). I have earlier referred to the notice sent by the Registrar General which referred to the existence of a private agreement not to sever the joint tenancy.
There can be no doubt that in 1968, Norrie and Minnie separated, with no prospect of reconciliation, and that shortly thereafter Minnie commenced proceedings for the dissolution of their marriage and property settlement. It is also clear that she sought orders, the effect of which would be to have Norrie's interest in the Sans Souci property transferred to her.
However, the document headed "Terms of Settlement", which appears to have been prepared by lawyers, does not refer to any agreement of the type relied upon by the Plaintiff. There was no express written term in that document reflecting any promise not to sever the joint tenancy. Nor was there any covenant whereby the Sans Souci property was to continue to be owned as joint tenants until otherwise agreed by the parties.
It seems to me that the absence of such an express term in a document prepared by lawyers indicates a lack of contractual consensus about that subject. Had such a consensus been reached, one would have expected a term reflecting it to have been included in the Terms of Settlement.
In my view, whilst neither the Terms of Settlement, nor the Court's Orders, disturbed, or altered, the joint tenancy of the Sans Souci property, it does not follow that Norrie and Minnie also intended that they would be bound in a joint tenancy until such time as they both agreed to sever it.
Reasonably read, what the Terms of Settlement and the Orders, principally, were intended to protect was Minnie's right of residence in the Sans Souci property for as long as she wished to reside therein; to ensure that Norrie paid certain outgoings on the Sans Souci property whilst she did so; and also that he paid maintenance to her. Neither the Terms of Settlement nor the Orders contained any promise not to sever the joint tenancy or otherwise alter the way in which the title was held.
There does not appear to have been any thought given to whether there was, or could be, a severance of the joint tenancy by one joint tenant without the consent of the other. There was nothing in the Terms of Settlement, or in the Orders, as to what would occur on the cessation of Minnie's right of residence.
Even though the evidence establishes that Minnie was adamant that the Sans Souci property would not be sold, that, on its own, does not mean that the joint tenancy could not be severed. As the written submissions of the Plaintiff seem to acknowledge, Minnie could have continued to reside in the Sans Souci property, pursuant to the Terms of Settlement, whether it was held as joint tenants or as tenants in common.
Moreover, the alleged Agreement not to sever the joint tenancy, if said to have been wholly or partly an oral one, is one in respect of which there is no contemporaneous written note. That, on its own, poses difficulties of proof, particularly after over 40 years have passed and when neither of the parties to the alleged agreement is alive.
In any event, the conversations relied upon by the Plaintiff do not lead me to infer such an agreement. Norrie may have believed that Minnie would survive him (because of his belief about the respective state of health of each) and that she would leave the Sans Souci property to their children. However, mere expectation, or mutual desire, as to the intended ultimate beneficiaries is not sufficient to give rise to an enforceable obligation.
Also, the fact that Norrie did nothing to sever the joint tenancy after 1970, that he gave consideration to doing so in 2006 but did not proceed, and that it was only in 2012 when steps were taken by the second Defendant, as substitute Attorney, to sever the joint tenancy, does not mean that Norrie and Minnie had an agreement to bind them in a joint tenancy until such time as they both agreed to sever it.
The evidence of the Plaintiff and his wife, in this regard, that has been quoted above, also makes clear that neither Minnie, nor Norrie, ever referred to any such agreement.
As importantly, none of the solicitors who acted for Minnie, in responding to the requests made on behalf of Norrie to sell and distribute the proceeds of sale of the Sans Souci property, ever asserted, on her behalf, that there was an agreement not to sever the joint tenancy.
Norrie's persistent requests to sell the Sans Souci property and to share the proceeds of sale do not suggest, on their own, that he held a belief that there was an agreement to not sever the joint tenancy. Rather, it is clear that he realised, justifiably, that he was unlikely to obtain the consent, or co-operation, of Minnie in severing the joint tenancy, or in selling the Sans Souci property. That does not mean that an agreement of the type asserted had been reached by them.
Also, it would appear, because of Minnie's right to reside rent free in the Sans Souci property for her lifetime, or until her remarriage, it was thought by those advising Norrie that there was no point in him taking any steps to try to dispose of his interest in the Sans Souci property. Typically, particularly in the past, unilateral severance involved alienation by sale, or by gift, to a third party. In this case, any alienation by sale, or by gift, would have been subject to Minnie's right of residence provided by the Court's orders.
Those advising him also did not seem to have considered whether Norrie could have executed a transfer, in registrable form, to himself as tenant in common; could have sought the production of the certificate of title; and then could have procured the registration of that transfer. In this way, there would have been a unilateral act which resulted in an actual, or effective, alienation of Norrie's share in the Sans Souci property, with the result that the joint tenancy would have been severed.
However, none of these matters mean that Norrie was committed to a life-long joint tenancy. To the contrary, the correspondence to which I have referred was concerned to find a way to separate his interest in the Sans Souci property from Minnie's interest.
Furthermore, whilst the Consent Orders in December 1991, between Norrie and the first Defendant, refer to the Sans Souci property being held by Norrie and Minnie as joint tenants, there is no reference to an agreement not to sever the joint tenancy with the result that Norrie, on survivorship, would come to own it.
Finally, I have earlier referred to the terms of Norrie's Will relating to the devise of any interest that he held in the Sans Souci property.
Before leaving this topic, I should mention a passage in Stanford v Stanford [2012] HCA 52; 247 CLR 108 at 122, which, albeit written in a very different context, is apposite: "No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end…."
As submitted by counsel for the first Defendant in his written submissions, the reference to re-marriage in the Terms of Settlement is important. That something could be done in respect of the Sans Souci property, for example, by then selling it, in the event that Minnie did remarry, is inconsistent with any term of an agreement not to sever the joint tenancy.
It follows that I am not satisfied that there was any "scheme that title to the Sans Souci property would pass solely to the survivor of Norrie and Minnie on the death of the first of them, and that the only means by which this could be achieved was to maintain their joint tenancy of the property notwithstanding their separation and divorce".
To the extent that any such agreement could be implied, I have considered Secured Income Real Estate (Aust) Pty Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596 at 605 - 606, in which Mason J (as his Honour then was) stated the conventional test for the existence of a term implied into a contract in fact, in the following terms: "I need only refer, as did Kelly J. in the Full Court, to the majority judgment of the Judicial Committee in BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 16 ALR 363 at 376; 52 ALJR 20 at 26, where their Lordships said: "Their Lordships do not think it necessary to review exhaustively the authorities on the implication of a term in a contract which the parties have not thought fit to express. In their view, for a term to be implied, the following conditions (which may overlap) must be satisfied: (1) it must be reasonable and equitable; (2) it must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it; (3) it must be so obvious that 'it goes without saying'; (4) it must be capable of clear expression; (5) it must not contradict any express term of the contract."
The five conditions for implying a term propounded by the majority of the Privy Council in BP Refinery (Westernport) Pty Ltd v Shire of Hastings 180 CLR 266, were again adopted by Mason J (with whom Stephen and Wilson JJ agreed) in Codelfa Construction Pty Ltd v State Railway Authority (NSW) [1982] HCA 24; 149 CLR 337 at 347.
Not only was there no reference in the Plaintiff's submissions to any of these conditions, there was no submission made that any of them had been established. In my view, no term that the joint tenancy of the Sans Souci property would not be severed can be implied because none of the five conditions have been satisfied.
Nor is this is a case where the principle in Stirling v Maitland & Boyd (1864) 122 ER 1043, at 1047, applies, to the effect that if "a party enters into an arrangement which can only take effect by the continuance of a certain existing state of circumstances, there is an implied engagement on his part that he shall do nothing of his own motion to put an end to that state of circumstances under which alone the arrangement can be operative".
It follows that I reject the claim of the Plaintiff that there was an Agreement made between Norrie and Minnie not to sever the joint tenancy. Consequently, this is not a case where the first Defendant, as executrix of Norrie's Will, holds the one-half interest as tenant in common, on trust for the Plaintiff because equity would enforce Norrie's obligation to not sever by disregarding the severance of the legal joint tenancy.

[27]

The Power of Attorney

There are a number of contentions of the Plaintiff relating to the use, by the second Defendant, of the Power of Attorney granted by Norrie in March 2006, the main one being that because the first Defendant was not "unwilling or unable to act", she was not the substitute Attorney, with the effect that she had no power or authority to sign the Statutory Declaration and the Transfer.
The Defendants, of course, rely upon the terms of the Power of Attorney. Thus, it is for them to show that, on a proper construction, the power and the authority is to be found within the instrument, either in express terms or by implication.
It is also necessary to consider the Powers of Attorney Act as it was in about March 2006, when Norrie executed the Power of Attorney.
The Powers of Attorney Act consolidated and revised existing provisions of the Conveyancing Act 1919 (NSW) relating to powers of attorney. It did not affect the operation of any principle, or rule, of the common law, or equity, in relation to powers of attorney, except to the extent that the Act otherwise provided, whether expressly or by necessary intention: s 7.
In particular, it preserved the general law doctrine of ratification: Dimitrovski v Australian Executor Trustees Limited [2014] NSWCA 68 per Meagher JA, at [17].
The Powers of Attorney Act made no attempt to define "power of attorney". The expression, thus, had its ordinary meaning: Vella v Permanent Mortgages Pty Ltd [2008] NSWSC 505; 13 BPR 25, 343 at [205], being a formal grant of agency powers: Scott v Scott [2012] NSWSC 1541 at [176] (Lindsay J).
Section 5 of the Powers of Attorney Act, relevantly, provided that there is a vacancy in the office of attorney if the appointment of the attorney is revoked, if the attorney renounces the power, if the attorney dies, resigns, becomes bankrupt, or if the attorney, by reason of any physical or mental incapacity, ceases to have the capacity to continue to act as an attorney.
Section 8 of the Powers of Attorney Act provided that "[a]n instrument (whether or not under seal) that is in or to the effect of" the form set out in Schedule 2 (the "prescribed form") and is duly executed creates a "prescribed power of attorney" for the purposes of this Act".
There was no dispute in this case that Norrie's Power of Attorney was a "prescribed power of attorney".
Then, subject to the Act, a prescribed power of attorney conferred on the attorney the authority to do on behalf of the principal anything that the principal may lawfully authorise an attorney to do. The prescribed power of attorney has effect subject to compliance with any conditions or limitations specified in the instrument creating the power: s 9 of the Powers of Attorney Act.
Section 12 of the Powers of Attorney Act provided that "[a] prescribed power of attorney does not authorise an attorney to execute an assurance or other document, or to do any other act, as a result of which a benefit would be conferred on the attorney unless the instrument creating the power expressly authorises the conferral of the benefit".
Under s 13(1), "[a] prescribed power of attorney does not authorise an attorney to execute an assurance or other document, or to do any other act, as a result of which a benefit would be conferred on a third party unless the instrument creating the power expressly authorises the conferral of the benefit".
It has been held that sections 12 and 13 "as their terms make clear, are intended to do no more than restate the principles of the general law, namely, that, without the express authority of the grantor, an attorney is not authorised by a power to execute instruments in his own favour or in favour of a third party"; however, those provisions do not of themselves "invalidate any instrument" executed by the attorney: Dimitrovski v Australian Executor Trustees Limited at [68], Emmett JA (with whom Bergin CJ in Eq. agreed).
A benefit has been conferred where there is a direct link between the exercise of the power and the benefit; that is, the act of the attorney must be the cause of the benefit: Orr v Slender [2005] NSWSC 1175; 64 NSWLR 671, at [29], (Nicholas J).
In that case, an elderly man, whose only substantial assets were a home unit and a sum of money, made a Will in which there was a specific devise of the home unit, and a gift of the residue to the plaintiff, who had been appointed as his attorney under an enduring power of attorney. A consequence of the legislation establishing the institution of enduring powers of attorney was that the attorney did not have authority to do any act "as a result of which a benefit would be conferred on the attorney". Following the man becoming incapable, the attorney sold the home unit, and used a large part of the proceeds to pay for an accommodation bond at the hostel where the man was being cared for.
Nicholas J held that the limitation on the attorney's authority did not apply to the sale of the home unit, because that limitation applied only where the act of the attorney was a direct cause of a benefit to him. His Honour held that it did not prevent an indirect benefit to the attorney, such as arose when the sale of a home unit had the indirect consequence that the attorney became entitled to any surplus proceeds of the sale by virtue of being the residuary beneficiary under the will.
At [33], Nicholas J wrote: "Nothing moved to him which had any existence in law or in which he had any right or interest, or over which he had any control as a result of the sale. Whatever he takes under cl 4 of the will is not as a result of his action as the testator's attorney. The evidence shows, and I find, that the only person to benefit from the sale was the testator, for whose maintenance and welfare its proceeds were applied."
The Plaintiff submitted that the General Power of Attorney did not authorise either of the Defendants, in her capacity of specified Attorney or substituted Attorney, to deal with Norrie's property for her own benefit: Tobin v Broadbent [1947] HCA 46; (1947) 75 CLR 378 at 401 (Dixon J); Spina v Conran Associates Pty Limited; Spina v M&V Endurance Pty Limited [2008] NSWSC 326 at [77] (Austin J).
However, I am satisfied, in this case, for the same reasons given by Nicholas J, that the severance of the joint tenancy did not confer any direct benefit on either of the Defendants and that there was no direct link between the exercise of the power and the benefit. In other words, it was not the severance of the joint tenancy (the act of the second Defendant as substitute Attorney) that was the cause of the benefit provided for by Norrie's Will.
Section 19 of the Powers of Attorney Act provided that an instrument that created a power of attorney created an "enduring power of attorney" for the purposes of that Act if: "(a) the instrument is expressed to be given with the intention that it will continue to be effective even if the principal lacks capacity through loss of mental capacity after execution of the instrument, and (b) execution of the instrument by the principal is witnessed by a person who is a prescribed witness (not being an attorney under the power), and (c) there is endorsed on, or annexed to, the instrument a certificate by that person stating that: (i) the person explained the effect of the instrument to the principal before it was signed, and (ii) the principal appeared to understand the effect of the power of attorney, and (iii) the person is a prescribed witness, and (iv) the person is not an attorney under the power of attorney, and (v) the person witnessed the signing of the power of attorney by the principal."
Section 20 of the Powers of Attorney Act provided: "(1) An enduring power of attorney does not operate to confer any authority on an attorney until the attorney has accepted the appointment by signing the instrument creating the power. (2) If more than one attorney is appointed by an enduring power of attorney, the power of attorney operates to confer authority only in relation to such of the attorneys who accept their appointments as provided by subsection (1). (3) An attorney may accept the appointment at the time the instrument creating the enduring power of attorney is executed or at any time after it is executed."
Unlike a later version of the Powers of Attorney Act, which referred to the section extending to substitute attorneys, s 20, as it then was, did not make this clear.
Section 21(1) provided that "[s]ubject to this Act, an act done by an attorney that is within the scope of the power conferred by an enduring power of attorney and that is of such a nature that it is beyond the understanding of the principal through mental incapacity at the time of the act is as effective as it would have been had the principal understood the nature of the act at that time".
In the Power of Attorney executed by Norrie, he appointed the first Defendant as the specified Attorney and she accepted her appointment by signing the Power of Attorney on 28 March 2006. Then, in the events of the first Defendant being "unwilling or unable to act", the second Defendant was appointed as the substitute Attorney.
Section 52 of the Powers of Attorney Act provided that a conveyance or other deed affecting land executed on or after 1 July 1920 under a power of attorney has no effect unless the instrument creating the power had been registered and that if the instrument is registered after the time when the conveyance or other deed was executed, the conveyance or other deed has effect as if the instrument had been registered before that time.
Generally, powers of attorney are instruments that have traditionally been strictly construed: Spina v Permanent Custodians Limited [2008] NSWSC 561 at [108].

[28]

Whether the first Defendant was "unwilling or unable to act"

The Power of Attorney signed by Norrie identified the only events, or circumstances, upon which the second Defendant, as substitute Attorney, could begin to act, they being when the first Defendant, as the specified Attorney was "unwilling or unable to act". Only one, or both, of those events, or occurrences, created a vacancy in the office of the specified Attorney enabling the substitute Attorney to begin to act.
The assessment of those events or occurrences was one of the questions agitated in the proceedings.
Both of the words "unwilling" and "unable" are very simple words, in ordinary daily usage as part of the English language. I tend to the view that the events referred to in s 5 of the Powers of Attorney Act may be examples of the events or occurrences that would be relevant in determining the question whether there was a vacancy in the office of the specified Attorney.
In this regard, none of the events identified in s 5 of the Powers of Attorney Act is relevant to the facts of the present case.
Norrie's Power of Attorney did not identify who was entitled to assess whether the first Defendant, as the specified Attorney, was unable or unwilling to act. One might think that it would be the first Defendant who would state her unwillingness, or her inability, to act, or those confining circumstances would be clear from surrounding events.
The term "unwilling" would apply to a specified attorney who did not wish to act. There is no suggestion that the first Defendant, as the specified Attorney, was "unwilling" to act. Accordingly, the question for determination is whether she was "unable to act" at the relevant times.
The word "unable" is a word not of definite, but of flexible, meaning, dependent on context. It is also a somewhat vague word. Its primary meaning is "not able to" or "incapable of". The term contemplates circumstances beyond the will of the specified attorney. In other words, a vacation in the office of attorney does not arise by the neglect, or default, of the specified attorney. Nor does it arise because it would be inconvenient to the specified attorney to act.
Whilst it may be accepted that, in some contexts, a person may be "unable" to do something today that she will, in all likelihood, be able to do in the future, with the result that there may be nothing inherently permanent about the status of "inability", I am of the view, in the context of a Power of Attorney, that there must be more than a temporary, or a passing, situation, during which the specified Attorney is unable to act.
In other words, whilst the word "unable" should not be read as equivalent to "impossible", the provision of the requirement for the appointment of the substitute attorney should not be practically destroyed by giving the word too extended a meaning, by allowing the substitute attorney, in any circumstances, to be appointed to act in place of the specified attorney. One must consider whether the circumstances experienced by the specified attorney are such that she, or he, cannot reasonably be expected to act.
Unlike the Powers of Attorney Act which was amended as from 13 September 2013, to add the provision that a substitute attorney may act as attorney "during" a vacancy in the office of the specified attorney, or a vacancy of the kind specified in the instrument creating the power of attorney, such a provision was not specified in that Act prior to the amendment. In addition, Norrie's Power of Attorney does not refer to the second Defendant, as substitute attorney, only acting "during" the period when the first Defendant, as specified attorney, was "unwilling or unable to act". This suggests that there would not be a revival of the specified attorney's appointment and corresponding revocation of the substitute attorney's appointment.
It should also be remembered that a third party may have been relying upon the authority provided by the Power of Attorney. This circumstance, too, suggests that more than a temporary, or passing, circumstance, or event, is required before the substitute attorney could begin to act. One would expect some certainty in this regard.
No doubt, it would be also be useful for there to be some documentation to evidence the vacation of office by the specified attorney and the appointment of the substitute attorney when the vacancy occurs.
The determination of the question is, ultimately, one of fact. The Defendants bear the burden of establishing that the first Defendant, in the present case, as the specified Attorney, was unable to act.
I should also mention, in passing, that Norrie's Power of Attorney did not permit the first Defendant, as the specified Attorney, to delegate the power to act as the attorney to somebody else: s 45 of the Powers of Attorney Act. (It is unnecessary to consider whether any exception to this rule applies where the specified attorney does no more than authorise the execution of a document by another person as a purely ministerial act.)
In this case, having considered the evidence given by the Defendants, I am not satisfied that there was a vacancy in the office of the first Defendant, as the specified Attorney, by her being unable or unwilling to act as Norrie's attorney when the second Defendant executed the documents purporting to sever the joint tenancy and were lodged for registration.
To the contrary, I am of the view that, at all relevant times, the first Defendant was both willing and able to act, but chose not to because it was inconvenient for her to do so. No reason was proffered for Mr Peters not being able to attend upon her in Swansea to have the relevant documents signed.
Alternatively, no reason was advanced why the second Defendant could not have taken the documents to the first Defendant to sign.
It follows that the second Defendant did not have power to act as the substitute Attorney at the time that she signed the Statutory Declaration and the Transfer.

[29]

Ratification

The Defendants say that if the second Defendant did not have authority under the Power of Attorney to act as Norrie's attorney, then Norrie ratified the severance of the joint tenancy.
In Leybourne v Permanent Custodians Ltd [2010] NSWCA 78 at [134] the Court of Appeal (Giles and Tobias JJA and Sackville AJA) wrote: "There must be full knowledge of all the material circumstances in which the act was done, unless the principal intends to ratify and take the risk whatever the circumstances (for example, Bremner v Sinclair NSWCA, 3 November 1998; (2001) ANZ Conv R 29 at [32] per Campbell J). The extent of knowledge necessary depends on the particular facts. It should be enough knowledge to decide whether or not to adopt the unauthorised act (Bremner v Sinclair at [32])."
In Learn & Play (Rhodes No1) Pty Ltd as Trustee for Rhodes 1 Childcare Centre Unit Trust v Lombe [2011] NSWSC 1506 at [21] - [24], Pembroke J referred to the relevant principles: "Ratification may be expressed or implied. It will be implied whenever the conduct of the person in whose name a transaction has been entered into is such as to show that the person adopts the transaction. Silence, acquiescence or inactivity may be sufficient to demonstrate implied ratification… If the principal is aware of all the material facts, takes no steps to disown the transaction within a reasonable time, or adopts no means of asserting his rights at the earliest opportunity, that may, in certain circumstances, amount to sufficient evidence of ratification. What is crucial however in any ratification is that it is necessary that the principal have full knowledge of all the material circumstances in which the transaction was purportedly entered into and its material features. There may be circumstances, probably rare, in which the principal should be taken as having intended to ratify and take the risk of the transaction, whatever the circumstances may have been... I should also observe that ratification has objective as well as subjective features. It is not open to a principal who, by his conduct, appears to the outside world to have adopted a transaction, to be able to prove subjectively that he did not intend to approve it. A principal is not entitled to prove subjectively that he did not intend to adopt a transaction when he has done an unequivocal act to adopt it with full knowledge of its terms and features… On the other hand, the subjective knowledge and understanding of the principal is also relevant. It must be shown that the principal was aware of the material terms and features of the transaction which he is said to have adopted and ratified. Without such full knowledge, there will not be ratification according to law. I doubt very much whether a principal, who was aware of the material terms, could successfully contend that he lacked the relevant knowledge because of his own obtuseness, neglect or failure for some other reason to appreciate the significance of those terms. However I need not decide that question in this case." (Omitting citations)
Pembroke J's remarks have been cited with approval on several occasions: Perpetual Trustees Victoria Limited v Menzies [2012] NSWSC 1066 at [326]; Perpetual Trustees Victoria Limited v Belcastro (No 2) [2013] NSWSC 1189 at [52]; Australia and New Zealand Banking Group Limited v Adventure Quest Paintball-Skirmish Pty Limited [2016] NSWSC 188 at [56].
Whether the conduct of the principal amounts to ratification is a question of fact, but there should be "clear adoptive acts" and the conduct must be unequivocal. If established, the ratification by the principal has retrospective effect, and the agent is treated as having had the requisite authority: Leybourne v Permanent Custodians Ltd at [131]-[132].
My view on this aspect is that Norrie's medical and mental condition in 2012 means that I cannot be satisfied that he had the capacity to ratify the actions of the second Defendant as the substitute Attorney which actions she was not authorised to perform by the terms of the General Power of Attorney. There is simply no evidence of any conduct to show that he had full knowledge of, or that he understood, or was capable of understanding, what had been done.
Furthermore, this is not a case where Norrie regained capacity and, thereafter, acquiesced in, and ratified, her acts. In my view, ratification has not been established.

[30]

Severance of the Joint Tenancy

It is trite to observe that the significant features of a joint tenancy are the right of survivorship (or jus accrescendi) and the existence of the "four unities", namely unity of possession, unity of interest, unity of title, and unity of time. The right of survivorship is not a "right" in any legal sense. Nor is there any vesting or transfer of ownership of a deceased joint tenant's interest. When a joint tenant dies his, or her, interest simply ceases to exist.
As Deane J, in Corin v Patton (1990) 169 CLR 540 at 575, noted: "When one joint tenant dies during the subsistence of the joint tenancy, his interest ceases: the interests of the remaining joint tenants expand by accretion. When there is but one survivor, the joint tenancy has run its course and the survivor becomes the full owner of the whole property."
A joint tenancy is readily severable. Severance is the conversion of a joint tenancy into a tenancy in common. It destroys the right of survivorship. If severance does not occur or is held to be ineffective, an attempt by one joint tenant to devise jointly held property by Will is also ineffective since, upon death, the interest of a joint tenant who dies, passes by survivorship to the remaining joint tenant, or tenants. The severance has a final, or irrevocable, character, precluding the joint tenant from claiming, by survivorship, any interest in the property that was held in joint tenancy.
The Defendants did not assert that the joint tenancy of the Sans Souci property was severed, at law, or in equity, at any time prior to the registration of the Transfer in August 2012. In particular, it was not submitted, in my view correctly, that upon the dissolution of their marriage the joint tenancy had been severed. It will have been read that the Orders did not require the Sans Souci property to be sold and the proceeds of sale divided between them. In other words, this was not a case where the orders evidenced an intention to divide the property in question between the parties without any limitation as to the length of the life of either of them. Nor was it one where the orders themselves evidence an agreement between Norrie and Minnie that, in respect of the Sans Souci property, there would be a final division of it, or the benefit of it, between them in the finalisation of the matrimonial affairs: Public Trustee v Grivas [1974] 2 NSWLR 316.
Section 24 of the Conveyancing Act 1919 (NSW) permits a person to "assure property to himself, or herself, or to himself or herself and others". However, a unilateral severance required an actual alienation of the property interest at law or equity: McNab v Earle [1981] 2 NSWLR 673; Freed v Taffel [1984] 2 NSWLR 322.
Professor Butt, in Land Law (6th ed, 2010), p 248, at [14-58] observed: "Strictly speaking, joint tenants do not have proportionate shares in the land. It might therefore be asked how a joint tenant can convert his or her "interest" into a proportionate share held as tenant in common. But for the purpose of severance this logical conundrum is ignored, and a joint tenant is regarded as having a potential share in the land commensurate with that of the other joint tenants. Where there are two joint tenants, that potential share is one-half; where there are three joint tenants, it is one-third; and so on. This potential share the joint tenant can deal with unilaterally during his or her lifetime. By so dealing with it, that share may be "severed" from the other shares and converted into an "aliquot" undivided share held in common, not jointly."(Citations omitted)
The law has recognised that a joint tenancy of Torrens title land may be unilaterally severed through an act by one joint tenant executing, and registering, a conveyance to himself or herself. However, s 97 was only enacted by Act No 95 of 1997 and it came into operation on 1 January 1998. It dealt with severance of a joint tenancy by unilateral action and provided a statutory mechanism for effecting a severance, namely registration of a unilateral transfer. In other words, it permits severance by operation of statute. (The wording of parts of the section was again amended by the Real Property and Conveyancing Legislation Amendment Act 1999.)
Section 97, relevantly, provides: "(1) Registration of a transfer by a joint tenant of the joint tenant's interest in the land that is the subject of a joint tenancy to himself or herself severs the joint tenancy. (2) If a joint tenancy is proposed to be severed by unilateral action by one joint tenant, the Registrar-General may require the person who proposes to sever the joint tenancy to provide the Registrar-General, before recording the instrument that severs the joint tenancy, with: (a) the names and addresses of the joint tenants or, if the addresses are unknown, evidence of the efforts made by the person to locate the addresses of the joint tenants, and (b) a statement that the person is not aware of any limitation or restriction on his or her capacity or entitlement to sever the joint tenancy (arising, for example, from the capacity in which the person holds an estate or interest in the land concerned or from a private agreement). (3) The Registrar-General may require the person who proposes to sever a joint tenancy to provide additional information concerning: (a) other persons who may be affected by the severance of the joint tenancy, and (b) any limitation or restriction on the capacity or entitlement of the person to sever the joint tenancy, and (c) any other matter that the Registrar-General considers appropriate. (4) The Registrar-General may require any information provided for the purposes of this section to be provided by statutory declaration. (5) The Registrar-General must give notice of the lodgement of a dealing for registration or recording that may sever a joint tenancy to all joint tenants in the joint tenancy (other than any joint tenant who executed the dealing, or on whose behalf the dealing was executed). Section 12A(2) and (3) applies to and with respect to a notice given under this section. (6) Despite subsection (5), the Registrar-General is not required to give notice of the lodgement of a dealing for registration or recording that may sever a joint tenancy to a joint tenant in any of the following circumstances: (a) if the proposed severance is to arise from the recording of a court order made in proceedings to which the joint tenant is a party, (b) if the proposed severance is to arise from the registration of a transfer pursuant to a writ in respect of an interest of any of the joint tenants, (c) if the dealing concerned is witnessed by the joint tenant and the dealing indicates that the joint tenancy is to be severed, (d) if the dealing is accompanied by a written acknowledgment by the joint tenant that he or she has received legal advice as to the effects of the severance of the joint tenancy, (e) if the proposed severance is to arise out of registration following an application under section 90."
The Explanatory Note to the provision stated that: "It is proposed that the Principal Act be amended to include a provision, declaratory of the common law, confirming that a joint tenant may sever a joint tenancy unilaterally by transferring his or her interest in the land that is the subject of the joint tenancy to himself or herself. If a joint tenancy is severed by unilateral action on the part of one joint tenant or a third party (such as on the lodgement of a bankruptcy application in relation to one joint tenant), the Registrar-General may require the person who effects the severance to provide the Registrar-General with the names and addresses of the joint tenants and a statement that the person is not aware of any impediment to his or her capacity or entitlement to sever the joint tenancy. The Registrar-General may also call on the person to provide additional information concerning other persons who may be affected by the severance or any possible limitation or restriction on the person's capacity or entitlement to sever the joint tenancy. (The information provided may, if the Registrar-General considers it appropriate, be used by the Registrar-General, in the exercise of powers under Part 2 of the Principal Act, to give notice of the severance to persons who may be affected by it, including joint tenants.) The proposed amendment is not intended to displace any private or statutory obligation pursuant to which a joint tenant is required to continue to hold his or her interest in a joint tenancy with the other joint tenants. (See Schedule 1 [10].)"
(Section 12A(1) of the Real Property Act 1900 states that where upon lodgement of a dealing for registration it appears to the Registrar-General that a person who is not a party to the dealing should be notified of the dealing, the Registrar-General may give notice of the dealing to that person. The Registrar-General may proceed to register the dealing at or after the expiration of the period specified in the notice unless he is first served with, or with written notice of, an order of the Supreme Court restraining him from doing so: s 12A(2). Section 12A(3) provides that where a person given a notice under s 12A(1) did not serve on the Registrar-General (or give the Registrar-General notice of) an order of the Supreme Court restraining the Registrar-General from taking the proposed action altering the Register, "no action by that person or by any person claiming through or under that person shall lie against the Registrar-General in respect of the taking of the action specified in the notice".)
Section 97 does not require the consent of the other joint tenant as a prerequisite for severance by the joint tenant who wishes to sever a joint tenancy, but the Registrar-General must give notice to the other joint tenant, or joint tenants, that the transfer has been lodged. He, or she, may do so upon registration of an appropriately executed instrument of transfer.
It is clear, from s 97(1), that it is only upon registration of an appropriately executed instrument of transfer that the joint tenancy is severed, and until registration, the joint tenancy remains on foot: McCoy v Estate Peter Anthony Caelli [2008] NSWSC 986; 13 BPR 25,515, per Brereton J, at [14] and [27]. As his Honour wrote, at [14]: "Under s 97(1), it is the act of registration that severs a joint tenancy. This is reinforced by s 97(2), which recognises that before recording the instrument of severance the Registrar-General may require information to be provided by a person who proposes to sever a joint tenancy by unilateral action. After lodgement but before registration or recording of the dealing, its status is that of a "proposed" severance [see s 97(5)]. Section 101, on the other hand, recognises that a surviving joint tenant becomes entitled to an estate or interest in land upon death of the other joint tenant, and that entitlement is a precondition to registration. Thus entitlement by survivorship arises before and independently of registration, although it is a precondition to it."
At [27], his Honour wrote: "The circumstance that the Registrar-General is required to give notice to the other joint tenants of the lodgement of the dealing for registration, and that it is only a "proposed severance" at that stage, tells strongly in favour of a construction that there is no severance until registration."
On registration, a new and indefeasible interest is created: Butt, at [14-59]. The particulars of the folio of the Register are altered and a new, and different, indefeasible title for the folio is created which gives rise to new registered interests of each as tenants in common: Peldan v Anderson [2006] HCA 48; 227 CLR 471, at [21].
Section 97 simply confirms the effectiveness of such a conveyance upon registration and provides a procedural mechanism for achieving it: McCoy v Caelli [2010] NSWSC 1233 at [47] (White J).
It has been noted that "absent some contractual or fiduciary obligation - and none arises merely from the relationship of joint tenancy - the other joint tenants will be powerless to prevent registration": Butt, at [1477].
Importantly, the existence of the caveat lodged by Minnie on title to the Sans Souci property would not have prevented the registration of the dealing which was to effect a severance of a joint tenancy: s74H(5)(x) Real Property Act. The caveat lodged by her was not one with the prohibition clause amended to prohibit the registration of a unilateral severance.
Section 36(11) of the Real Property Act provides: "(11) Upon registration, a dealing shall have the effect of a deed duly executed by the parties who signed it."
It follows that the method adopted to sever the joint tenancy of the Sans Souci property was available.
Section 97(2), however, does refer to the power of the Registrar-General to require the names and addresses of the joint tenants or, if the addresses are unknown, evidence of the efforts made by the person to locate the addresses of the joint tenants and also a statement that the person is not aware of any limitation or restriction on his or her capacity or entitlement to sever the joint tenancy.
The sub-section suggests the importance of each of these two matters.
An issue that was next raised related to the giving of the notice of the lodgement of a dealing for registration or recording that may sever a joint tenancy to Minnie as the only other joint tenant, as required by s 97(5). It was submitted that the address shown on the transfer completed by the second Defendant, to which notice was sent, was not her address, and no evidence was provided as to the second Defendant's efforts made to locate her address. It was then submitted that since notice of the lodgement of a dealing to sever the joint tenancy "must" be given to all joint tenants, the sub-section would appear to have not been complied with.
Regrettably, the submission did not go on to state what would result if the submission made was accepted.
As stated, it is clear that neither Minnie, nor the Plaintiff, as her Attorney, received the notice sent by the Registrar-General. There is no evidence that the Registrar-General required the second Defendant to provide the Registrar-General, before recording the instrument that severs the joint tenancy, with evidence of the efforts made to locate Minnie's address. Presumably, however, that was because it was not suggested that her address was "unknown".
Section 170(2A) of the Conveyancing Act provides that the provisions of that section extend to notices required to be served by any instrument affecting property (including any dealing under the Real Property Act 1900) executed, made, or coming into operation, after the commencement of the Conveyancing (Amendment) Act 1930, unless a contrary intention appears in the instrument or dealing or in the Real Property Act.
Thus, s 170 applies to the notice requirement in s 97(5) of the Real Property Act. It deals with the service of notices in general. Section 170(1)(b) states that any notice required, or authorised, to be served shall be in writing, and shall be sufficiently served, if sent by post to the last known residential address in, or out of, New South Wales, of the person to be served.
In this case, there can be no doubt that the notice sent by the Registrar General was in writing. It was in dispute that the Sans Souci property was Minnie's last known residential address but, on balance, since notification under s 97 appears to be the responsibility of the Registrar General, the Sans Souci property would be regarded as her last known residential address.
It follows that that I am satisfied that the Registrar General gave "notice of the lodgement of a dealing for registration or recording that may sever a joint tenancy to all joint tenants in the joint tenancy".

[31]

Indefeasibility of title to the Sans Souci property

Since I have concluded that the second Defendant was not authorised to take steps to sever the joint tenancy as the substitute Attorney under Norrie's Power of Attorney, the question arises whether the transfer, once registered, nevertheless created an indefeasible title under which Norrie and Minnie held title to the Sans Souci property as tenants in common in equal shares.
The Plaintiff, relevantly, alleged that the second Defendant had no authority to execute the statutory declaration or the transfer in support of the severance. He went on to submit that her conduct, in executing each, without authority, without disclosing that Minnie was not living in the Sans Souci property, and then causing the transfer to be registered, thereby severing the joint tenancy, constitutes "fraud".
In other words, the Plaintiff alleged that there was actual fraud perpetrated by the second Defendant upon the Registrar-General in the preparation and certification of some of the information contained in documents lodged for registration in the Registrar-General's Office as a result of which there was the extinguishment of the interest of Norrie and Minnie as joint tenants (including the incident of survivorship), and the creation of interests as tenants in common in equal shares.
There was no suggestion that if the second Defendant had authority to act as the substitute Attorney, she was not acting as his agent. Since I have concluded that she did not have the authority, a question arises whether she was acting as Norrie's agent.
The Plaintiff also alleged equitable fraud. It was submitted that "the position of …Norrie would be equivalent to a person who obtains property by deception and who is not a bona fide purchaser without notice. Such a transferee will be held to hold the property upon constructive trust for the transferor" (See Young, Croft, Smith On Equity, 2009 at para 6.709).
The first Defendant denied these allegations. She submits: "1. The transfer severing the joint tenancy was a registered dealing with the land comprising x/xxxx (San Souci property). 2. The effect of registration of that transfer was that title to the San Souci property was held by the registered proprietors as tenants in common in equal shares. 3. The executor of Mr Anderson's estate holds an indefeasible title to the land, subject to the statutory exceptions: s 42 Real Property Act 1900 (NSW)."
Counsel placed reliance on the following passages in Quest Rose Hill Pty Ltd v the Owners Corporation of Strata Plan 64025 [2012] NSWSC 1548 at [78] and [96] (Sackar J): "Subject to any relevant exception to s 42 it seems to me that while it is clear various provisions of the relevant legislation may not have been complied with, once registered by operation of s 42 the interest has the benefit of indefeasibility. The whole point of s 42 is that, subject to the fraud exception, it is intended to overcome voidness in the instrument. In relevant circumstances it can cure a forgery, Frazer v Walker [1967] 1 AC 569. It can certainly provide a cure where there has been a lack of authority to authorise the execution of an instrument: Broadlands International Finance Ltd v Sly (1987) 4 BPR 9420. … There are many authorities where a lack of authority as well as other irregularities have been cured by registration. For example the cases discussed by Professor Peter Butt in Land Law, 4th Edition, at [2017] where, for example, powers of attorney have been deficient, statutory provisions concerning subdivisions breached, etc. In other words there are many cases where instruments were created and sealed and registered without there being any authority to do so and yet registration provided the cure."
Section 41(1) of the Real Property Act 1900 (NSW) provides, in part, that upon registration of a dealing, "the estate or interest specified in such dealing shall pass, or as the case may be the land shall become liable as security in manner and subject to the covenants, conditions and contingencies set forth and specified in such dealing ...".
Section 42(1) provides in part: "Notwithstanding the existence in any other person of any estate or interest which but for this Act might be held to be paramount or to have priority, the registered proprietor for the time being of any estate or interest in land recorded in a folio of the Register shall, except in case of fraud, hold the same, subject to such other estates and interests and such entries, if any, as are recorded in that folio, but absolutely free from all other estates or interests that are not so recorded ...".
The "fraud" spoken of has been described as "statutory fraud".
Section 118 provides that: "(1) Proceedings for the possession or recovery of land do not lie against the registered proprietor of the land, except as follows: .. (d) proceedings brought by a person deprived of land by fraud against: (i) a person who has been registered as proprietor of the land through fraud ….
The Real Property Act does not define "fraud". So far as the Real Property Act is concerned, the only assistance that can be derived is from s 43(1) which provides that notice is expressly excluded from the statutory concept. The provision provides, in substance, that a registered transferee of an interest in land is not to be affected by actual or constructive notice of any pre-existing unregistered interest or trust.
It is well settled, however, that the "fraud" spoken of in s 42 is actual fraud, not constructive or equitable fraud where there is no dishonesty or intention to cheat. The statutory fraud exception arises where there is dishonest conduct on the part of the registered proprietor, or his agent, whose title is challenged. It includes "dishonesty on the part of the registered proprietor in securing his registration as proprietor": Bahr v Nicolay (No 2) [1988] HCA 16; 164 CLR 604 at 614 (Mason CJ and Dawson J).
In Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89, at [192], the requirement that there be actual fraud or moral turpitude was confirmed.
In Waimiha Sawmilling Co Ltd v Waione Timber Co Ltd [1926] AC 101 at 106-107, Lord Buckmaster, in delivering the judgment of the Privy Council, wrote: "If the designed object of a transfer be to cheat a man of a known existing right, that is fraudulent and so also fraud may be established by a deliberate and dishonest trick causing an interest not to be registered and thus fraudulently keeping the register clear. It is not, however, necessary or wise to give abstract illustrations of what may constitute fraud in hypothetical conditions, for each case must depend upon its own circumstances. The act must be dishonest, and dishonesty must not be assumed solely by reason of knowledge of an unregistered interest."
Thus, the critical elements of statutory fraud are dishonesty, moral turpitude, a want of probity, and a wilful and conscious seeking to defeat or disregard another's rights.
In Grgic v Australian & New Zealand Banking Group Ltd (1994) 33 NSWLR 202 at 221, Powell JA wrote: " ... the position still remains that, for the purposes of s 42 of the Act, "fraud" comprehends actual fraud, personal dishonesty or moral turpitude on the part of the registered proprietor of the subject estate or interest or of that registered proprietor's agents: see Bahr v Nicolay [No 2] (at 614) per Mason CJ and Dawson J; (at 631-632) per Wilson J and Toohey J."
Fraud may also be established where the actionable fraud is said to be a "fraud against the Registrar". Natalie Skead and Penny Carruthers, in "Fraud against the Registrar - An Unnecessary, Unhelpful and Perhaps, No Longer Relevant Complication in the Law on Fraud under the Torrens System" (2014) 40(3) Monash University Law Review 821, at 822, wrote: "Fraud in this sense arises when a person becomes registered pursuant to an instrument and the person has actual knowledge of, or is recklessly indifferent to, the fact that the instrument does not comply with the formalities for the execution and attestation of the instrument. The fraud lies in the misrepresentation to the Registrar that the instrument is a valid document that may properly be acted upon, when in truth the person registering the instrument knows that this is not the case."
If registration is obtained by a fraud practised on the Registrar-General, that will be fraud for the purposes of s 42 of the Real Property Act which may be sufficient to deprive the registered proprietor of the advantage of registration: Australian Guarantee Corporation Ltd v De Jager [1984] VicRp 40; [1984] VR 483; National Commercial Banking Corporation of Australia Ltd v Hedley (1984) 3 BPR 9477 ("Hedley"); Grgic v Australian & New Zealand Banking Group Ltd; Westpac Banking Corporation v Sansom (1994) 6 BPR 13790; Sansom v Westpac Banking Corporation (1996) 7 BPR 14615. The "fraud" must be "practised with the aim either of depriving someone of an interest in land or of deceiving the Registrar-General": Butt, Land Law (6th ed, 2010) at [20-73].
In the present case, it was submitted that Norrie became registered as a tenant in common in equal shares with Minnie pursuant to the combination of the statutory declaration and the transfer and that his agent, the second Defendant, was recklessly indifferent to the fact that the statutory declaration was inaccurate as to her power to complete it and as to Minnie's address. The fraud would lie in the misrepresentation to the Registrar that each was a valid document that could properly be acted upon; when in truth the second Defendant knew that this was not the case.
In Hedley, Hodgson J, as his Honour then was, concluded that a bank employee's dishonesty, whilst was not "directed specifically to dishonestly depriving Mrs Hedley of her interest in the property", was, nevertheless, statutory fraud because: "[…] Mr Grace put his signature to the document with the intention of obtaining registration by representing to the Registrar General something which he knew to be false or at the very least was reckless about, namely that he had seen Mrs Hedley sign and he knew her personally. In my view that conduct does amount to actual dishonesty within the authorities concerning the meaning of the word 'fraud' under s 42 and s 43 of the Real Property Act …"
The fraud must be brought home to the person whose registered title is impeached or to his agent. In this case, this means that the second Defendant must either have committed a fraud, or known that the transaction was tainted with fraud.
There is little doubt that the acts of the agent will be relevant. In Schultz v Corwill Properties Pty Ltd (1969) 90 WN (Pt. 1) (NSW) 529 at 537-8, Street J explained: "If the fraud in question is the immediate act of the person whose title is impeached, then the position is not open to doubt. If, however, the fraud is that of an agent for the person whose title is impeached, the principle of respondeat superior, with all its limitations and qualifications, is applicable. The matter is to be tested by investigating whether or not the principal is, in the particular circumstances under consideration, liable to the person who has been defrauded for the acts of the agent. On this topic one need not delve more deeply than the general statement in Bowstead on Agency, 13th ed., p. 242: 'An act of an agent within the scope of his actual or apparent authority does not cease to bind his principal merely because the agent was acting fraudulently and in furtherance of his own interests. This principle is general, applicable to cases of actual and apparent authority; in tort; in the disposition of property; a similar result even appears in criminal cases. But the mere fact that the principal, by appointing an agent, gives that agent the opportunity to steal or otherwise to behave fraudulently does not without more make him liable: the agent must normally be acting within the scope of his actual or apparent authority for the principal to be responsible.'"
His Honour also wrote: "It is not enough simply to have a principal, a man who is acting as his agent, and knowledge in that man of the presence of a fraud. There must be the additional circumstance that the agent's knowledge of the fraud is to be imputed to his principal. This approach is necessary in order to give full recognition to (a) the requirement that there must be a real, as distinct from a hypothetical or constructive, involvement by the person whose title is impeached, in the fraud, and (b) the extension allowed by the Privy Council that the exception of fraud under s 42 can be made out if 'knowledge of it is brought home to him or his agents'."
In Cassegrain v Cassegrain [2015] HCA 2; 254 CLR 425 at [40], 102, the High Court endorsed the remarks of Street J, and stated that reference to fraud being "brought home" to the registered proprietor should be understood as posing "questions about scope of authority and whether the agent's knowledge of the fraud is to be imputed to the principal" and whether the registered proprietor was "knowingly involved" in the dishonest conduct.
In Zisti v Ryde Joinery Pty Ltd (1996) 7 BPR 15,217, the landlords' solicitors registered a lease after crossing out the signatures of the earlier registered proprietors and substituting the signatures of the present registered proprietors, and crossing out reference to a previous mortgage and substituting a reference to a new mortgage. The alterations were done with the view to registering the lease despite the lack of co-operation from the lessee, who appears to have wished for the roof to be fixed first. Young J held that it was not fraud in the relevant sense, and that "in registering the document the Registrar General was just doing what the parties originally had intended but might otherwise have been frustrated by the chance event of the transfer being registered before the lease".
In Williams v Davis [2003] NSWSC 453, a case between the executor of an estate and the former wife of the deceased, a registration clerk (without the knowledge or instructions of any of the parties) altered a transfer prior to registration by deleting the term "joint tenants" and substituting the term "tenants in common" in the mistaken belief that the alteration may save stamp duty, Davies AJ, at [22], wrote: "Fraud in this context has sometimes been referred to as "fraud for the purposes of the Act". It takes into account the need of the Torrens scheme for those persons who are responsible for the preparation, execution, certification and lodgement of documents to undertake their tasks responsibly, so that officers of the Registrar-General's Office may act on the basis that the documents lodged for registration are what they purport to be."
In the Court of Appeal case, Davis v Williams [2003] NSWCA 371; (2003) 11 BPR 21,313, Gzell J, in dissent, at [253], wrote: "In the instant circumstances, by altering the instrument and lodging it, the registration clerk falsely represented to the Registrar-General that New South Wales Land and Housing Corporation had transferred the land to the first opponent and her husband as tenants in common in equal shares. The false lodgement of the altered document was, in my view, enough to constitute fraud. That finding did not depend upon direct evidence that might have been given by the registration clerk as to her state of mind."
Hodgson JA, at [26] - [27], commented: "…If the registration clerk made a representation to the Registrar-General, knowing it to be false in a material respect, and intending that the Registrar-General be induced by the representation to act in a way materially different from what otherwise would have been done, then I think that would be sufficient dishonesty or moral turpitude, irrespective of whether she had any intention that anyone be disadvantaged by this. If a lie is material in respects such as these and understood to be so, I do not think that lack of intent to harm can justify treating it as a "white lie" and as excluding dishonesty or moral turpitude. Should it then be inferred that the registration clerk appreciated (1) that the Registrar-General would make entries reflecting the altered form of the transfer because induced to have a false belief that the altered transfer was the transfer as signed and certified by the parties, (2) that the misrepresentation that this was so was material (where the same effect would have been achieved by the two documents) and (3) that this action by the Registrar-General was materially different from what would have been done if the two documents had been submitted? I would draw inference (1); but in circumstances where the registration clerk did not give evidence for the reasons referred to above, and where the only plausible motives for what she did was concern for efficiency and possibly some small saving for Mr Williams in respect of government charges, I would not draw inferences (2) and (3). Appreciation of (2) and (3) would mean that the registration clerk appreciated that what she did was truly dishonest and not merely a convenient fiction of no consequence; and I am not prepared to infer that she appreciated this. In the absence of appreciation of (2) and (3), I do not think her conduct amounted to fraud."
Young CJ in Eq wrote, at [86]: "… it is clear that statutory fraud is actual fraud, not constructive or equitable fraud and that actual fraud connotes personal dishonesty or moral turpitude, but that this does not mean that all species of equitable fraud stand outside the statutory concept of fraud … [T]he fraud or dishonesty is 'dishonesty on the part of the registered proprietor in securing his registration as proprietor'."
I should say, at the outset, that the mere fact that the Defendants invoked the statutory mechanism available to seek the unilateral severance by Norrie of the joint tenancy with Minnie does not amount to trickery or deception.
I turn to the contents of the statutory declaration. The second Defendant said that the last address at which Minnie was living known to her was the Sans Souci property: T113.14 - T 113.23. She also gave this evidence: "Q. And you put her address down as [the Sans Souci property] because you knew she didn't live there and you knew that by putting it down there she wouldn't get notice of your actions to sever the joint tenancy, correct? A. That was not a deliberate move on my part Mr Wilson. I didn't prepare the document, my solicitor did. He made endeavours to find out whether or not she was deceased or located somewhere else. That was the last known address that we could rely upon."
She later went on to add that she assumed that "perhaps [the solicitor] followed up with the nursing home information that we provided to him", but this assumption is clearly without a reasonable factual basis as she admitted that she could not confirm that he made enquiries other than trying to obtain a copy of Minnie's Death Certificate.
In this case, in setting out Minnie's address as the Sans Souci property, it was submitted it appeared that the second Defendant acted without caring whether her action in stating that address was correct. In fact, she ought to have known that the information provided, more likely than not, was incorrect. She made no enquiries as to Minnie's then residential address.
It was also submitted that the second Defendant must have expected the Registrar-General to act upon the information as to Minnie's address, as, in fact, occurred. She did not give evidence that she did not know the significance of her inclusion of the address in the transfer and its importance in the process of registration of the Transfer. Rather, she seemed to deny that she knew that it was not Minnie's then address, a denial which I cannot accept bearing in mind the other evidence.
However, it should be noted that the second Defendant did not assert that the address was Minnie's "residential" address.
With some hesitation, I have come to the view that the second Defendant's failure was to make further enquiries, which is not fraud, rather than wilful blindness as to the existence of fraud, which is fraud. "Wilful blindness" was described by Tadgell JA in Macquarie Bank Ltd v Sixty-Fourth Throne Pty Ltd [1998] 3 VR 133, at 146, as: "a form of cognisance which law and equity alike equate to subjective knowledge from which dishonesty may be inferred. ... [which is] more than a failure to see or look … [and] connotes a concealment, deliberately and by pretence, from oneself - a dissembling or dissimulation. In other words wilful blindness connotes a form of designed or calculated ignorance …"
The other aspect of fraud relied upon is that the written statement made by the second Defendant that she was not subject to any legal constraint which would prevent Norrie severing the joint tenancy. It was put that she was under a legal constraint because the first Defendant was not unwilling or unable to act as the Attorney.
I accept the second Defendant's denial that she was not aware of this, believing that the first Defendant was unable to sign the documents because of the geographical distance and because of the other impositions on her time. In this regard, there was a legal practitioner involved in her doing what she did. He does not appear to have turned his mind to the terms of limitation in the General Power of Attorney upon the second Defendant acting as the substituted Attorney. There is no suggestion that he informed either of the Defendants of the meaning of the General Power of Attorney in this respect.
It follows that reliance on this allegation of fraud has not been established. There is also no evidence that the second Defendant appreciated the limitation on her power and authority to act under the General Power of Attorney.
Bearing in mind the seriousness of the allegations of fraud, having seen and heard the second Defendant, I am not satisfied that she really had it in mind to dishonestly mislead the Registrar-General in any material respects and, thereby, influence the Registrar-General to do something materially different from what otherwise would have been done. Nor am I satisfied that there was a deliberate and dishonest trick by her causing Minnie's interest to be converted from a joint tenancy to that of a tenancy in common. More than a lack of bona fides is required. In my view, it has not been shown that the second Defendant's conduct in completing the statutory declaration and the transfer had the element of dishonesty or moral turpitude required for fraud to be established.
Finally, I am not satisfied that the second Defendant's conduct lead the Registrar General to act in a way materially different from what otherwise would have been done. In this regard, I have earlier referred to s 170 of the Conveyancing Act as to service of notices by the Registrar General.
If I am wrong concerning the second Defendant's conduct in circumstances where she was not authorised to act under the General Power of Attorney, and if she was, in fact, guilty of fraud, would this fraud affect Norrie's title? As a result of my view concerning fraud, this question does not have to be decided. However, I think it is appropriate to express my view on it, albeit briefly.
Leaving aside all of the difficult questions which would arise concerning the authority of agents, in various circumstances, or in this case, the lack of authority, because of the first Defendant not being unwilling or unable to act, Norrie, because of his medical condition, could not have had knowledge, or notice, of what the second Defendant had done. Nor, for the same reason, would he have been able to hold any suspicion, upon which he failed to act by making further inquiries for fear of learning the truth.
It follows that fraud has not been established with the consequence that the severance of the joint tenancy and the registration of Norrie, as a tenant in common in equal shares with Minnie, prior to his death, is an indefeasible title.

Anderson v Anderson

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