Corin v Patton

Corin v Patton - [1990] HCA 12 - HCA 1984 case summary — Zoe

[28]

I think that the words "necessary to be done", as used by Turner L.J. in Milroy v. Lord, mean necessary to be done by the donor. If, however, anything remains to be done by the donor, in the absence of which the donee cannot establish his title to the property as against a third person, the gift is imperfect, and in the absence of consideration the Court will not aid the donee as against the donor. But, if all that remains to be done can be done by the donee himself, so that he does not need the assistance of the Court, the gift is, I think, complete. Isaacs J. took a stricter view of the matter. His Honour said [17] : If the legal title is assignable at law it must be so assigned or equity will not enforce the gift. If for any reason, whether want of a deed by the assignor, or a specifically prescribed method of transfer, or registration, or statutory notice, the transfer of the legal title is incomplete when the law permits it to be complete, equity regards the gift as still imperfect and will not enforce it. In such a case, the fact that the assignor has done all that he can be required to do is not applicable. Higgins J. [18] appeared to adopt an intermediate position. His Honour stated that the word "necessary" refers to the nature of the property, not to any obligation upon the donor, and went on to say [19] : What the Courts look at is what the donor might have done. This point has been put so fully in the judgment of Mr. Justice Isaacs that I need not deal with it further. Despite the reference to the judgment of Isaacs J., it seems that Higgins J. would have been prepared to recognize in equity a gift which the donor could have done no more to perfect, for example, a gift incomplete simply because the transfer, lodged for registration, remained unregistered, the donor having done all that he could do. Isaacs J. would not have recognized such a gift because the transfer of the legal title was incomplete. 1. (1907) 4 C.L.R., at p. 1057. 2. (1907) 4 C.L.R., at p. 1069. 3. (1907) 4 C.L.R., at pp. 1081-1082. 4. (1907) 4 C.L.R., at p. 1082.

[83]

When a donor's intention to make an immediate gift of property is established and the nature of property is such that title to it can be passed by the acts of the donor and donee without the intervention or consent of a third party, an inquiry as to the passing of title is answered by determining whether the donor has done all that is necessary on his part to vest title in the donee and whether the donee has accepted the gift. But when the nature of the property is such that the passing of title to it depends on the registration of an instrument of transfer or on some other act of a third party, an inquiry into the passing of title is more complex. An intention to give and an intention to accept being established, three distinct but related questions then arise: (i) has the donor done what is necessary on his part to make the gift effectual? (ii) when does title pass from the donor to the donee? and (iii) can the donor recall the gift after he has done what is necessary on his part to make the gift effectual but before the title passes to the donee? The single question "Is the gift complete?" conflates these three questions, and one must be careful to understand the sense in which completeness is used. Thus, in Anning v. Anning [70] , Griffith C.J. expressed this view: in the case of shares in a company which are only transferable by an instrument of transfer lodged with the company, I think that the donor has done all that is necessary on his part as soon as he has executed the transfer. So, in the case of a gift of land held under the Acts regulating the transfer of land by registration, I think that a gift would be complete on execution of the instrument of transfer and delivery of it to the donee. If, however, anything remains to be done by the donor, in the absence of which the donee cannot establish his title to the property as against a third person, the gift is imperfect, and in the absence of consideration the Court will not aid the donee as against the donor. But, if all that remains to be done can be done by the donee himself, so that he does not need the assistance of the Court, the gift is, I think, complete. His Honour's description of a gift as "complete" refers to the donor's completion of doing what is necessary on his part to make the gift effectual; "complete" in this context does not connote that title has vested in the donee but connotes that there is nothing more for the donor to do to enable title to be so vested. On the other hand, Isaacs J. [71] described a gift as complete when "the intention of the donor [is] perfectly effectuated so far as the nature of his property admits". His reference to In re Earl of Lucan; Hardinge v. Cobden [72] makes it clear that completeness of a gift, as his Honour used the term, connotes that the title intended to pass has passed. 1. (1907) 4 C.L.R. 1049, at p. 1063. 2. (1841) 8 Cl. & F. 374, at p. 401 [8 E.R. 145, at p. 156]. 3. (1851) 1 De G. M. & G. 176 [42 E.R. 519]. 4. (1907) 4 C.L.R., at p. 1057. 5. (1907) 4 C.L.R., at p. 1063. 6. (1890) 45 Ch. D. 470, at p. 474.

[89]

Even so, it is doubtful whether Mrs. Patton, by mere delivery of a registrable transfer, had done all that was necessary on her part to effect a transfer of an estate or interest in the land to Mr. Corin. She took no step to secure the production of the relevant certificate of title either by requesting the bank to produce the certificate of title or by authorizing Mr. Corin to apply to the bank to produce it. The appellants submit that it was not necessary for her to take any step to secure production of the relevant certificate of title because Mr. Corin was himself entitled as mortgagor under s. 96 of the Conveyancing Act 1919 N.S.W. to have the certificate of title lodged to allow registration of the transfer. For the reasons given by the Chief Justice and McHugh J., I agree that s. 96 is of no assistance to the appellants. However, it may be that, without production of the relevant certificate of title, Mr. Corin could have prevailed upon the Registrar-General to dispense with its production and to proceed to register the transfer: see ss. 36(6)(b)(ii) and 38 of the Real Property Act and the discussion of earlier provisions by Dixon J. in Brunker [7] . Or it may be that Mr. Corin, merely as proposed transferee, could have prevailed upon the bank to produce the relevant certificate of title to allow registration of the transfer. But speculation as to the likelihood of Mr. Corin's obtaining of a favourable exercise of discretion by either the Registrar-General or the bank is relevant to the question whether Mrs. Patton had done all that was necessary on her part to complete the gift, and this case can be resolved without finally determining the answer to that question. It is sufficient to note that it is doubtful whether Mrs. Patton had done all that was necessary on her part to allow Mr. Corin to be registered as proprietor of the interest intended to be given. But we are not concerned with Mr. Corin's right to secure registration nor with Mrs. Patton's right to prevent registration; we are concerned with the state of title to the interest intended to be given at the time of Mrs. Patton's death. At that time, clearly enough, no favourable exercise of discretion had been obtained and, without the production of the relevant certificate of title, the transfer could not then have been registered.

[91]

But, in applying that test to the present question, care must be taken to keep in mind what that question exactly is. It is not whether the intending donor has divested himself of his estate or interest in the land, or has done all that lies in his legal power to do so. For obviously it was within his legal power himself to cause the immediate registration of the transfer. The question is whether by his acts he has placed the intended donee in such a position that under the statute the latter has a right to have the transfer registered, a right which the donor, or his executors, cannot defeat or impair. (Emphasis added.) In Cope v. Keene [9] , Taylor J. recalled the admonition by Dixon J. to take care in keeping in mind precisely what the relevant question is and in Taylor v. Deputy Federal Commissioner of Taxation [10] , that statement by Dixon J. (together with the passage following it) was cited with approval by Barwick C.J., Taylor and Menzies JJ. In each of these cases the issue was whether a registered proprietor had effectively and beyond recall given land to a voluntary transferee. In Brunker it was held that the purported gift failed because the registered proprietor had not delivered the instrument of intended transfer to the intended transferee and (by Rich and Dixon JJ.) because the instrument was not in registrable form. In Cope v. Keene, the purported gift also failed because the registered proprietor had not delivered the instrument of intended transfer to the intended transferee. And in Taylor v. Deputy Federal Commissioner of Taxation, executors successfully resisted a claim by the Deputy Commissioner against property which had come into their hands as assets in the estate of a deceased taxpayer and which, they contended, had been distributed to the beneficiaries without notice of the Deputy Commissioner's claim. It was held that the executors had done all that was necessary on their part to make the distribution effectual and that the executors could not prevent registration of the beneficiary as registered proprietor. In none of these cases were the parties other than alleged donor or donee or a claimant through donor or donee; none was concerned with the question of the time of the passing of title to the land the subject of the gift or purported gift as distinct from the question whether the donor had done all that was necessary on his part to effect the gift or had done so beyond recall. 1. (1937) 57 C.L.R., at p. 602. 2. (1968) 118 C.L.R., at p. 12. 3. (1969) 123 C.L.R. 206, at p. 213.

[106]

The traditional law relating to severance has, at least since Blackstone, commonly been seen as deducible from the four unities - time, possession, title and interest - which are hallmark inhabitants of the institution of joint tenancy. Where all four unities are present in a multiple holding of land, there is joint tenancy. If one or other of them be absent, there ordinarily is not. The "captivating appearance of symmetry and exactness" (Challis's Law of Real Property, 3rd ed. (1911), p. 367) of this traditional ritual cloaks some obscurity of precise meaning, some overlapping between the unities and some conceptual difficulties about the essential character of joint tenancy. In addition, the analysis requires qualification in that there are cases where the absence of unity of time will be excused (see, e.g., Kenworthy v. Ward [23] ), where one or other of the joint tenants may enjoy contractual rights of separate possession of the whole or part of the property without severance of the underlying joint tenancy and where surrender of possession by one joint tenant to a third party under a lease of his interest for a term will lead to suspension rather than severance of the joint tenancy (see, e.g., Wright v. Gibbons [24] ). Nonetheless, at law, where time, possession, title and interest can be seen as of the stuff of property, the question whether there has been a severance of a joint tenancy by some dealing with, or operation of law upon, one joint tenant's share can, subject to such qualification, be equated with the question whether one or more of the unities of possession, title and interest has been destroyed: in that equation, the unity of time can be disregarded as a practical matter since, if unity of title, interest and possession remain undisturbed, the original unity of time will persist. In equity, where good conscience and actual or presumed intention may prevail over common law rights and interests, and tenancy in common is seen as a preferred instrument for the reason that it avoids the gamble of the tontine, particular care must be taken to ensure that the equation of those questions does not divert attention from principle and from the two aspects of joint tenancy which are most likely to attract the operation of overriding equitable doctrine, namely, (i) the equality of the interests of joint tenants, regardless of intention or contribution, in the undivided rights constituting ownership of the relevant property, and (ii) the right of accretion by survivorship until there is a sole owner of the whole. Where legal joint tenancy persists, severance in equity must involve the creation of some distinct beneficial interests, that is to say, the creation of a trust for the joint tenants themselves as tenants in common in equal shares or for different beneficiaries or beneficial shares (see, e.g., Gissing v. Gissing [25] ; Allen v. Snyder [26] ). In such a case, the imposition of a trust for tenants in common is likely to be the result of the direct operation of applicable equitable doctrine and the question whether the destruction in equity of one or more of the four unities has brought about a severance in equity of the joint tenancy may be an unhelpful and even confusing starting point. Accordingly, it seems to me that the preferable starting point in the present case is a more general inquiry about whether the effect of the operation of any applicable doctrine of equity was, as between Mrs. Patton and Mr. Corin, to give rise to a trust of any interest in the subject land. If it was, the question will then arise whether the effect of that trust or beneficial interest was to create a tenancy in common of the subject land in equity which bound Mr. Patton and effectively precluded him from enjoying the benefit of the right of survivorship which he enjoyed at law.

[111]

The substance of joint tenancy, while it subsists, lies in the equality and the personal character of the interests of the joint tenants in the undivided rights which constitute ownership of the whole of the relevant property. 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. In that context, it is not surprising that one joint tenant cannot effectively assign at law his place in a continuing joint tenancy (see Wright v. Gibbons [2] ). The only way in which an assignee can be substituted as a legal joint tenant is by the establishment of a new and different joint tenancy. On the other hand, it has long been settled that one joint tenant can, by an appropriate instrument or act of legal transfer and in the absence of applicable statutory restraint, alienate his legal interest in the relevant property. Involved in such an alienation are two steps which occur simultaneously: the creation of a distinct proportionate share of the whole and the detachment of that share from the property which is subject to the joint tenancy with the consequence that the transferee receives the share of a tenant in common. If there were initially two joint tenants, the transferee and the non-transferring joint tenant will thereafter hold as tenants in common in equal shares. If there were initially more than two joint tenants, the transferee will hold the detached proportionate share (i.e. 1 n where n equals the number of joint tenants) as tenant in common with the non-transferring joint tenants who, as between themselves, will hold the remaining share (n-1) n as joint tenants. If such a transfer is effective at law and the circumstances of the case do not attract the operation of equitable doctrine, the legal position will be uncomplicated by the existence of distinct equitable estates or interests. Where the circumstances attract the operation of equitable doctrine, equitable estates or interests may come into existence and prevail over legal entitlement.

[112]

In a case where equitable doctrine operates between all the legal joint tenants or between a third party and all the legal joint tenants, there is ordinarily no difficulty in understanding the theoretical basis of the resulting equitable estate or interest. Where, for example, equity imposes a trust to give effect to the actual or presumed intention of the joint tenants or to do equity between them, there is no difficulty in understanding how all joint tenants come to be bound by a trust of the whole property. The conceptual difficulty is with the case where the direct operation of equitable doctrine is between one only of the joint tenants and a third party. One such case is where one joint tenant effectively alienates his interest in the subject property to a third party by an "assignment" which is, as between the parties to it, effective in equity but not at law. In such a case, one can readily see a basis for a trust of the "assignor's" own legal interest as joint tenant, that is to say, a trust which did not affect the rights of accretion by survivorship of the legal joint tenants but bound the assigning joint tenant to hold his legal entitlement for the assignee. As has been indicated, however, the cases establish that the true position in the case of such an equitable assignment by one joint tenant is that, subject to competing equities, there will be a trust of the whole property: the legal joint tenants will hold the property in trust for the assignee and the non-assigning legal joint tenant or tenants as tenants in common in equity. The explanation of why the assignee's equitable rights in personam against the assignor should bring about a conversion in equity of the overall joint tenancy into a tenancy in common would seem to be that equity, disregarding the imperfection of the analogy between the equitable rights of a cestui que trust and actual ownership of the trust property, has treated the creation or transfer of those rights of a cestui que trust as equivalent, in equity, to an ad rem assignment of the actual property and, on that basis, superimposed equitable rights and interests to mirror what would have been the legal position if the assignment had been effective at law.

[114]

If it had been intended by Mrs. Patton and Mr. Corin that the latter would acquire for himself the beneficial interest in the subject land and if Mr. Corin had been a purchaser for value, equity would have lent Mr. Corin its aid to force completion of the transaction. In circumstances where there was no outstanding purchase price and all that remained to be done to complete the transaction was the registration of the transfer, equity, regarding as done that which it would order to be done, would, at least between Mrs. Patton and Mr. Corin, have regarded Mrs. Patton's interest as having been already assigned. The result would have been that, subject to any question of competing equities, the legal joint tenancy was overridden in equity at the time of Mrs. Patton's death. In fact, however, it was never intended that Mr. Corin should acquire for himself any beneficial interest in the subject land. The memorandum of transfer of Mrs. Patton's "estate and interest as joint tenant" was expressly stated to be "pursuant to the terms of" the deed of trust between Mr. Corin and Mrs. Patton under which Mr. Corin covenanted to hold the interest as tenant in common as bare trustee for Mrs. Patton. Nor was Mr. Corin a purchaser for value. It is true that the memorandum of transfer stated that the transfer was " in consideration of " the terms of the deed of trust. The execution by Mr. Corin of that deed of trust and the undertaking by him of the duties of a bare trustee did not, however, relevantly constitute valuable consideration for the purposes of equity. In determining whether a party to a transaction has given valuable consideration, equity looks to the substance, not the mere form. The trustee who promises to receive and hold property transferred to him as a bare trustee does not thereby give valuable consideration. The substance of the transaction in such a case is that the only benefit which he receives or is intended to receive, if benefit it can be called, is the bare legal estate and for that he gives no consideration at all (see, e.g., Milroy v. Lord [3] ;Toohey's Ltd. v. Commissioner of Stamp Duties [4] ; Golding v. Hands [5] ; D.K.L.R. Holding Co. (No. 2) Pty. Ltd. v. Commissioner of Stamp Duties (N.S.W.) [6] ).

[118]

It was submitted on behalf of the appellants that the correct analysis of the situation which would have existed if the transfer to Mr. Corin had been registered was that Mr. Corin would have acquired the whole legal and equitable estate but would have held the property conveyed subject to a trust. That was said to be the effect of the approach taken in this Court in the D.K.L.R. Holding Co. Case. That being so, equity should give pro tanto effect to the intention of the parties by constituting Mrs. Patton a trustee of her interest in the subject land for Mr. Corin as bare trustee for herself. It seems to me that there are three related answers to that submission. The first is that, as Mason J. (with whom Stephen J. agreed) made plain in the D.K.L.R. Holding Co. Case [10] , that case turned upon the principle of stamp duties law that "duty is levied on instruments, not on the underlying transactions to which they give effect". That principle of stamp duties law is to be contrasted with the general approach of equity to pay regard to substance rather than mere form. The second answer is that, as Mason J. clearly recognized in the D.K.L.R. Holding Co. Case [11] , equity permits an owner of property to convey it to another as bare trustee for himself or for a third party. In such a case, it is convenient to speak of the transfer as being of a bare legal estate. If more precise analysis is required, it is that the equitable rights of the beneficiary attach to the property at the instant of transfer and the transferee receives the property subject to the equitable obligations of a bare trustee for the transferor or the third party. That being so, Mr. Corin would not, even if the intended transaction had been completed by registration of the memorandum of transfer, have ever had any beneficial interest in the property transferred. Before the transfer, there was no distinct beneficial ownership. If the transfer had taken effect, Mr. Corin would never have held the property transferred otherwise than as a bare trustee. The third answer is that equity, with its regard for substance rather than form, would not go through the charade of intervening to create trusts of property under which the legal owner held as bare trustee for another who in turn held as bare trustee for the legal owner. To the contrary, equity firmly denies the possibility of any such intervention in that it would disregard the interposed beneficiary whom it would see as having no interest in the property at all (see, e.g., Grainge v. Wilberforce [12] ; In re Lashmar; Moody v. Penfold [13] ; Baker and Langan, Snell's Principles of Equity, 28th ed. (1982), p. 104; Meagher and Gummow, Jacobs' Law of Trusts in Australia, 5th ed. (1986), par. 2312; Pettit, Equity and the Law of Trusts, 6th ed. (1989), p. 73; Hanbury and Maudsley, Modern Equity, 13th ed. (Martin) (1989), p. 113). That means that such a trust is not possible since, once the interposed beneficiary is disregarded, the trustee and the beneficiary would be the same person with the result that the legal and beneficial interests were merged.

[124]

It is somewhat difficult to understand precisely what Dixon J. meant by his reference to a "right of a new description" in Brunker. Plainly, the combination of entitlement against the Registrar-General and immunity from interference by the donor was intended to encompass more than the ordinary right of a person with standing to demand that a public official perform a statutory duty. The right did not arise until entitlement to registration of the transfer of the relevant land (and, consequently, entitlement to the legal title) was "indefeasible" [23] . Yet, apparently, it carried with it no standing to invoke equity's protection of its content. In a context where his Honour indicated that he was applying Turner L.J.'s well-known "test" of what is necessary "to make a voluntary settlement valid and effectual" (Brunker [19] , referring to Milroy v. Lord [24] ), Dixon J.'s judgment does not make clear his reasons for rejecting the approach that, if the donor had done all that was necessary to make the entitlement of the donee to be registered "indefeasible", the gift was complete in equity with the result that an equitable interest vested in the donee. That general approach had been accepted in earlier cases to which his Honour referred (see O'Regan v. Commissioner of Stamp Duties [25] ; Scoones v. Galvin and the Public Trustee [26] ) and was subsequently accepted by Windeyer J. in a discussion of voluntary equitable assignments with which Dixon C.J. himself would seem to have been inclined to agree (see Norman v. Federal Commissioner of Taxation [27] ). That general approach reflects the view that the relevant question in such a case is whether there has been "a complete gift within the rule in Milroy v. Lord" (see per Salmond J., Public Trustee v. Commissioner of Stamp Duties [28] ). It appears to me to be much more in accord with general principle (see, e.g., the discussion in Scoones v. Galvin [29] ) and with the established position that the provisions of the Act recognize, rather than preclude, the possible existence of unregistered equitable interests than is the notion of a statutory non-equitable right of a new character. It is not surprising that, as the judgment of Mason C.J. and McHugh J. demonstrates, the weight of subsequent cases in this Court supports that general approach (see, in particular, Cope v. Keene [30] ; Taylor v. Deputy Federal Commissioner of Taxation [31] ). Indeed, in the last-mentioned cases, Dixon J.'s test for determining when his "right of a new description" would arise was accepted as appropriate for determining when the disposition of Real Property Act land under a voluntary transfer (Cope v. Keene) or under a distribution by executors (Taylor) had become effective in equity. In my view, Dixon J.'s judgment in Brunker should be accepted not as establishing a new kind of statutory right but as identifying the test for determining whether the stage has been reached when a gift of Real Property Act land under an unregistered memorandum of transfer is complete and effective in equity. That test is a twofold one. It is whether the donor has done all that is necessary to place the vesting of the legal title within the control of the donee and beyond the recall or intervention of the donor. Once that stage is reached and the gift is complete and effective in equity, the equitable interest in the land vests in the donee and, that being so, the donor is bound in conscience to hold the property as trustee for the donee pending the vesting of the legal title. In that regard, it is not a matter of equity ignoring the provisions of s. 41 of the Act and treating the unregistered transfer as effective of itself to assign the beneficial interest in the land. It is simply that equity, acting upon the "fact or circumstance" that the donor has placed the vesting of the legal title within the control of the donee and beyond the donor's recall or intervention, looks at the substantial effect of what has been done and regards the gift as complete (see Olsson v. Dyson [32] ).

[126]

In the present case, the fact that Mrs. Patton had taken no step to enable Mr. Corin to procure the production of the duplicate certificate of title which was held by the bank meant that she had not done all that was necessary to place the vesting of the common law title within Mr. Corin's control. For the reasons given by Mason C.J. and McHugh J., s. 96 of the Conveyancing Act 1919 N.S.W. did not entitle him to require the bank to lodge the certificate of title with the Registrar-General (see, also, Brunker [33] ). It is true that there was a theoretical possibility that the Registrar-General would register the transfer without production of the certificate of title (see Act, s. 38 but note Brunker [34] : "Obviously in such a case the Registrar-General would not dispense with production"). The plain fact remains, however, that registration of the transfer and vesting of the legal title could not be said to be within Mr. Corin's control for so long as he was not entitled to procure production of the document of title. In any event, it is apparent that it remained in Mrs. Patton's power to intervene to prevent the vesting of any legal interest in him. In circumstances where Mr. Corin's only involvement was as a bare trustee for Mrs. Patton, she was entitled to terminate the trust at any time and demand the return of the unregistered transfer. It was submitted on behalf of the appellants that Mrs. Patton's position as beneficiary under the deed of trust should be disregarded. Her role as donor should not, it was said, be confused with any other role. The answer to that submission is that, in so far as equity is concerned, Mrs. Patton's role as prospective transferor and prospective beneficiary were inextricably connected. All that Mrs. Patton intended to confer and conferred upon Mr. Corin was the limited entitlement of a bare trustee. It was the limited content of that entitlement that resulted in the situation where, for so long as the memorandum of transfer remained unregistered, Mrs. Patton could recall the document and prevent the vesting of any legal title to the land in him (see Brunker [35] , and cf. Cope v. Keene [36] ; McNab v. Earle [37] ).

[128]

It follows that the transaction between Mrs. Patton and Mr. Corin did not have the effect that, in accordance with ordinary principles of equity, Mrs. Patton held her interest as a registered joint tenant of the subject land upon trust for Mr. Corin at the time of her death. It was, however, submitted for the appellants that ordinary equitable principles should be modified to produce that consequence. A joint tenancy should, it was submitted, be treated as "severed" in equity in any case where, as in the present, one joint tenant has unequivocally signified an intention to bring it to an end. In considering that submission, reference must inevitably be made to the judgment of Lord Denning M.R. in Burgess v. Rawnsley [38] . In that case, his Lordship expressed the view [39] that it is sufficient for "severance" of a joint tenancy in equity if "there is a course of dealing in which one party makes clear to the other that he desires that their shares should no longer be held jointly but be held in common". Lord Denning's view in that regard was, however, significantly influenced by the provisions of s. 36(2) of the Law of Property Act 1925 U.K. which have no Australian counterpart. It is true that there is little to be said from the point of view of logic or common sense for requiring that a joint tenant who desires to convert the joint tenancy into a tenancy in common should go through the charade of assigning his interest to a bare trustee for himself (or, arguably, conveying his interest to himself: cf. Re Murdoch and Barry [40] ; Re Sammon [41] ; Freed v. Taffel [42] , and Conveyancing Act, s. 24). It seems to me, however, that it has long been settled that, where what is involved is unilateral action by but one joint tenant, actual alienation either in law or in equity or at the least something equivalent thereto (e.g. by operation of estoppel) is necessary for severance of a joint tenancy (see Partriche v. Powlet [43] ; and, generally, Nielson-Jones v. Fedden [44] ; Freed v. Taffel [42] ). I do not think that it would be appropriate for this Court to alter the law in that regard in circumstances where the alteration would have a retrospective effect on conveyancing practice and would be likely to give rise to unintended consequences in other cases. Accordingly, Burgess v. Rawnsley (and the earlier English cases of Hawkesley v. May [45] and In re Draper's Conveyance [46] ) should not be followed in this country.

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Judgment (165 paragraphs)

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