Edwards v Edwards

Judgment (5 paragraphs)

[1]

JUDGMENT - Ex TEMPORE (Revised)

This is an application by the administrator of the estate of the late Sharon Margaret Edwards (deceased) for declaratory relief that relies on the forfeiture rule in relation to three properties held by the deceased and the defendant as joint tenants, and consequential orders in relation to those properties.
The application is made in the context where the defendant was convicted of the murder of the deceased.
The plaintiff's application is made by statement of claim filed 25 May 2023. It is supported by an affidavit of the plaintiff affirmed on 24 July 2023, affidavits of service sworn 3 August 2023, 19 July 2023 and 23 August 2023, two affidavits of Alexa Stefanovski sworn 21 and 31 August 2023, an affidavit of Adrian Corbould affirmed 31 August 2023 and an affidavit of Gavin Hanrahan affirmed 31 August 2023.
The defendant is a prisoner at the Macquarie Correctional Centre. He was served with the statement of claim and supporting affidavits and was given notice of today's hearing but has not filed a notice of appearance or defence. He has appeared at today's hearing by audio-visual link, the Court having made an order enabling him to do so under s 77 of the Crime (Administration of Sentences) Act 1999 (NSW).

Consideration and determination

By his statement of claim filed on 25 May 2023, the plaintiff seeks relief that relies on the application of the forfeiture rule in respect of the Properties so as to preclude the defendant from inheriting them under the law of survivorship. He seeks a declaration that the defendant holds a half share of the Properties upon trust for the plaintiff as the administrator of the deceased's estate and for consequential orders under s 66G of the Conveyancing Act 1919 (NSW) (Conveyancing Act) for the appointment of trustees for sale of the Properties.
The statement of claim also seeks a declaration that the application of the forfeiture rule causes a severance of the joint tenancy in each of the Properties, which is no longer pressed.
But for the application of the forfeiture rule, the deceased's interest as a joint tenant in the Properties would pass to the defendant in accordance with the law of survivorship.
The forfeiture rule is a rule of public policy that provides that a person who has unlawfully killed another person is precluded from acquiring a benefit in consequence of the killing: Settree Estates; Robinson v Settree (2018) 98 NSWLR 910; [2018] NSWSC 1413.
The Forfeiture Act 1995 (NSW) (Forfeiture Act) was enacted to empower the Court to modify the effect of the forfeiture rule in certain circumstances, but that power does not apply to an unlawful killing that constitutes murder: Forfeiture Act, ss 3 and 4.
It is ordinarily necessary, on an application such as this that relies on the forfeiture rule, for a plaintiff to reprove the guilt of a defendant, that they have unlawfully killed a person, albeit to the civil and not the criminal standard: Josifovski v Velevski [2013] NSWSC 1103 (Josifovski v Velevski) at [20], citing Helton v Allen (1940) 63 CLR 691 (Helton v Allen) and Troja v Troja (1994) 33 NSWLR 269; and Nay v Iskov [2012] NSWSC 598 (Nay v Iskov) at [9].
I am satisfied on the balance of probabilities that the defendant unlawfully killed the deceased on or about 14-15 March 2015 by murder and so find. This is for the following reasons.
First, the defendant's certificate of conviction, which was tendered on this application, is admissible under s 178 of the Evidence Act 1995 (NSW) and establishes that the defendant was convicted of the deceased's murder. As observed in Helton v Allen by Dixon, Evatt and McTiernan JJ, a certificate of conviction is admissible as an estoppel against a party to civil proceedings: Helsham v Blackwood (1851) 11 C.B. 111 at 121.
Second, the judgment of the Court of Criminal Appeal unanimously dismissed the defendant's appeal on all four grounds raised, which included the ground that the verdict of murder was unreasonable and could not be supported having regard to the evidence. In considering that ground, the judgment discloses a very careful and extensive consideration of the evidence against the defendant in support of the verdict of murder.
Third, the defendant has not lodged a further appeal to the High Court of Australia.
Fourth, the defendant appeared at the hearing before me and did not oppose the making of the orders sought by the plaintiff, having stated at the outset of the hearing, "I don't think I've got a leg to stand on".
Thus, in this case, I am satisfied that the forfeiture rule operates to prevent the defendant from taking the benefit of his wrongful act.
As to the effect of the application of the forfeiture rule on a joint tenancy, in Rasmanis v Jurewitsch [1970] 1 NSWR 650; (1969) 70 SR (NSW) 407 (Rasmanis v Jurewitsch), Jacobs JA (as his Honour then was and with whom Wallace P and Mason JA, as his Honour then was, agreed) stated at 411-2: "… equity will require that the interest taken by the felon be held by him upon a constructive trust which will ensure that the interest be held in the same way as it would have been held if there had, on the slaying, been no enlargement of the interest of the felon. … Upon the basis that legal title is unaffected but that equity will interfere on grounds of public policy, the question then is how equity will so interfere in order to prevent the felon from reaping a benefit from his slaying. It may do so by determining that the slaying caused a severance of the joint tenancy in equity, or it may do so by imposing a constructive trust. Again, the constructive trust may be in favour of the victim's estate or it may be a trust in favour of the third joint tenant. Where there are only two joint tenants there is no difference in result between severance and constructive trust. … I think that the primary rule to be enforced is that the felon must not be allowed to retain any benefit flowing to him from the slaying and that he is required to hold any such benefit which flows at law upon trust for someone other than himself."
The principles from Rasmanis v Jurewitsch have been applied by other judges of this Court: see Neubacher v Good (2003) 11 BPR 20,877; [2003] NSWSC 379; Nay v Iskov; and Josifovski v Velevski.
In Nay v Iskov, a case also involving the application of the forfeiture rule to a joint tenancy, Brereton J (as his Honour then was) stated at [13]: "In those circumstances, the defendant is entitled to be registered as proprietor by survivorship of the whole of the property, but holds a half interest in it upon trust for the executors and could be required, in order to give effect to that trust, to transfer a half interest to the executors. Alternatively, the executors would prima facie be entitled to an order under (NSW) Conveyancing Act 1919 s 66G for sale of the property."
Applying those principles, the result is that while the defendant was recognised at law as entitled to be the sole registered proprietor of the Properties by right of survivorship that benefit does not accrue to the defendant and he holds a half interest in each of the Properties upon trust for the deceased's estate in equal shares and the deceased's estate is to be regarded as the owner in equity of the undivided half share in the Properties. It follows, in my view, that the plaintiff, as the administrator of the deceased's estate, is entitled to the consequential relief he seeks for orders for the appointment of trustees for sale of the Properties pursuant to s 66G of the Conveyancing Act.
The plaintiff proposes that he and Adrian Corbould, a solicitor and partner of Turnbull Hill Lawyers, be appointed as trustees for the sale of the Properties. There is evidence before the Court that they consent to the proposed appointments and further evidence from third parties that satisfies me that they are fit and proper to be appointed as trustees to conduct the sale.
Accordingly, I am satisfied that the relief sought at the hearing should be granted in the circumstances of this case. The main difference between the short minutes of order which the plaintiff has proposed and the orders which I will make is that I consider it to be appropriate to make a declaration that the defendant unlawfully killed the late Sharon Margaret Edwards, consistent with the approach of Brereton J (as his Honour then was) and Kunc J in Nay v Iskov and Josifovski v Velevski respectively.
As to costs, the plaintiff initially sought an order that his costs in these proceedings be paid on an indemnity basis from the defendant's share of the sale proceeds of the Properties. That order was opposed by the defendant and was ultimately not pursued by the plaintiff. In that regard, I note that prior to the commencement of these proceedings the plaintiff had not written to the defendant requesting his consent to a procedure that would have provided for the outcome which the plaintiff has now obtained.

Orders

For these reasons I make the following orders: 1. Declare that on or about 14-15 March 2015, John Wallace Edwards (Defendant), unlawfully killed the late Sharon Margaret Edwards (Deceased). 2. Declare that the Defendant is precluded from having the Deceased's interest in the land comprised in: 1. Folio Identifier XXXXX located at Neill St, Lawrence, New South Wales; 2. Folio Identifier XXXXX located at Pringles Way, Lawrence, New South Wales; and 3. Folio Identifier XXXXX located at Riverdale Court, Grafton, New South Wales (together, the Properties), pass to him under the right of survivorship. 1. Declare that the Defendant holds each of the Properties upon trust as to one half share for himself and as to the other half share for the Plaintiff as administrator of the Deceased's estate as tenants in common in equal shares. 2. Order that Joshua Lee Edwards (Plaintiff) and Adrian Corbould of Turnbull Hill Lawyers be appointed trustees for the sale (Trustees) of each of the Properties pursuant to s 66G of the Conveyancing Act 1919 (NSW). 3. Order that each of the Properties be vested in the Trustees subject to any encumbrances affecting the entirety of each of the Properties, but free from encumbrances affecting any undivided share or shares therein, to be held by the Trustees upon statutory trust for sale under Division 6 of Part 4 of the Conveyancing Act 1919 (NSW). 4. Order that the Trustees be empowered to offer and sell each of the Properties at a public auction or by private treaty. 5. Order that, on completion of the sale of any of the Properties, the proceeds of sale shall be distributed in the following way: 1. firstly, to pay all selling costs and expenses in connection with the sale and any amounts owing in relation to the Property such as rates or other charges; 2. then, to pay the Plaintiff's costs of these proceedings on the indemnity basis; and 3. then, to pay the remaining net proceeds of sale as follows: 1. one half share to the Plaintiff as administrator of the estate of the Deceased; and 2. one half share to the Defendant, with his share to be held in the Plaintiff's solicitors' trust account unless and until the Defendant or his legal representatives advise the Plaintiff's solicitors or the Trustees where the Defendant's one half share of the proceeds of sale are to be paid. 1. Order that, if it is necessary to transfer one half share of the Properties into the name of the Plaintiff to be registered and recorded in the PEXA computer system, the Defendant execute any transmission application or other document where required to effect that transfer within 14 days of being requested to do so by the Plaintiff's solicitors or the Trustees. 2. Order that, in the event the Defendant refuses or neglects to comply with Order 8, upon receipt of an affidavit from the Plaintiff's solicitors confirming non-compliance, the Registrar of the Supreme Court of New South Wales, or any of their deputies, be authorised and permitted to sign any documents on behalf of the Defendant pursuant to section 94 of the Civil Procedure Act 2005 (NSW). 3. Order that the Plaintiff's costs of these proceedings be paid on the indemnity basis in the manner set out in Order 7 above. 4. Order that the Defendant bears his own costs of these proceedings, to the extent that he has incurred any. 5. Direct the Plaintiff to serve a copy of these Orders on the Defendant together with a copy of Henry J's ex tempore reasons as soon as practicable. 6. Reserve liberty to the parties and the Trustees to apply on seven days' notice in relation to the implementation of these orders.

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Judgment (5 paragraphs)

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