McCoy v Estate Peter Anthony Caelli

McCoy v Estate Peter Anthony Caelli - [2008] NSWSC 986 - NSWSC 2008 case summary — Zoe

[16]

6 Also on 15 August, Donovan Oates wrote to the Registrar-General advising that they would be lodging a Notice of Death but might not be able to obtain a death certificate within the 30 days allowed by the notice. The Registrar-General replied on 20 August, to the effect that insufficient evidence of death had been furnished but that in lieu of a death certificate a statutory declaration verifying that the registered proprietor had died would suffice. The Registrar-General wrote: When I receive sufficient evidence, which should be lodged before the expiration of the notice, I will write to the lodging party of the transfer unilaterally severing joint tenancy AE137074 and raise a requisition that I have received information which may render AE137074 unregistrable. Therefore it will be up to the necessary parties to negotiate. Until that time the notice dated 08 August 2008 is effective. The expiration of time contemplated by that notice is 08 September 2008. I also refer you to section 12A(3) of the Real Property Act 1900. 7 On 28 August, Mrs McCoy signed a Notice of Death annexing a death certificate and lodged it with the Registrar-General where it was given dealing number AE187549. On 29 August, the Registrar-General wrote to Hinterland Lawyers as follows: I note that on 08 August 2008 a Notice of Severance of Joint Tenancy pursuant to section 12A, as required by section 97(5) of the Real Property Act 1900, was sent to Valerie Doris McCoy. Subsequently, I have been advised by Valerie Doris McCoy's lawyers that Peter Anthony Caelli died on 04 August 2008, being a date before the expiration of time contemplated by the aforementioned notice. Please note that the following requisition is raised: It would appear that section 101 of the Real Property Act 1900 has come into operation and that the more appropriate dealing should be a Notice of Death (Form 01ND). I advise that the solicitor for Valerie Doris McCoy is Mr Stephen Miles of Donovan Oates Hannaford, … and I have been advised that they intend on filing a Notice of Death in due course. The proceedings and issues

[17]

8 On 29 August, Mrs McCoy instituted proceedings by an ex parte application, when she obtained leave to file a summons returnable on 4 September with an abridgement of time for service, and an order that until further order, pursuant to Uniform Civil Procedure Rules r 7.10(2)(a), the proceedings continue in the absence of a representative of the Estate of Peter Anthony Caelli; however, notice to the Estate was directed by service on Hinterland Lawyers. 9 On the return of the summons on 4 September, Mrs McCoy sought leave to file an amended summons, claiming the following relief: 1. A Declaration that the Plaintiff is the sole owner of the land described in the schedule ("the Land"). 2. A Declaration that the Plaintiff is entitled to be recorded in the register maintained by the Second Defendant as the sole registered proprietor of the Land. 3. A Declaration that the Notice of Death dealing number AE187549 ("Notice of Death") is entitled to be registered in priority to the Transfer unilaterally Severing Joint Tenancy dealing number AE137074 ("the Transfer"). 4. An Order that the Second Defendant register the Notice of Death in priority to the Transfer. 5. An Order that the second Defendant be restrained from registering the Transfer. 6. An Order that the First Defendant be restrained from proceeding with the application to have the Second Defendant register the Transfer. 7. In the alternative, a Declaration that upon registration of the Transfer by the Second Defendant the First Defendant is to hold on trust, for the benefit of the Plaintiff, that share of the Land held by the First Defendant as tenant in common with the Plaintiff which the Plaintiff is entitled to as the beneficiary of a constructive trust. 8. A further Order that following registration of the Transfer the First Defendant duly execute and lodge a transfer in registrable form with the Department of Lands NSW transferring that share of the Land to which the Plaintiff is entitled as beneficiary of the constructive trust referred to in order 7, such as to constitute the Plaintiff as sole legal owner of the Land. 9. An Order that the First Defendant pay the Plaintiff's costs. 10. Such further or other order as the nature of the case requires. 10 An interlocutory hearing, within the constraints of a busy duty list, took place on 4 September 2008, when I reserved judgment but, in the meantime, upon the plaintiff by counsel giving to the court the usual undertaking as to damages, ordered that until further order the Registrar-General be restrained from registering the notice unilaterally severing joint tenancy. 11 For present purposes the issue is a narrow though not straightforward one. Mrs McCoy's claim to be beneficially entitled pursuant to a resulting trust (which would in any event encounter the presumption of advancement) may for the time being be set to one side; the present issue is whether Mrs McCoy has a seriously arguable case for a final injunction restraining registration of the transfer upon the basis that, the deceased having died before it was lodged let alone registered, her claim to be entitled by survivorship has priority. The question is one of law. Generally speaking, on an interlocutory application where the question is one of law the court should endeavour to determine the question, unless there is good reason (such as the impracticability of doing so, or the possibility that it will be affected by controversial facts) for not doing so. There is no such reason in the present case. The material facts are straightforward and uncontroversial: Mr McCoy and Peter were joint tenants of the property; Peter signed the transfer on 11 July 2008; he died on 4 August 2008; the transfer was lodged for registration on 7 August 2008, and has not yet been registered. The critical question is whether execution of the unilateral transfer effected a severance in equity prior to Peter's death, although it had not yet been lodged, let alone registered.

[34]

21 In Corin v Patton, a joint tenant of Torrens Title land executed and delivered a transfer of her interests to a trustee to be held on trust for herself, but died before the transfer was registered. The Certificate of Title was at all times held by a mortgagee. It was held that the joint tenant had not alienated any interest to the transferee at the date of death: by the majority (Mason CJ, Deane and McHugh JJ) on the ground that she had not done all that was necessary for her to have done to effect a transfer, because she had not authorised the mortgagee to hand the Certificate of Title to the transferee. The majority appeared to accept that an equitable estate could pass to a donee, notwithstanding Real Property Act, s 41(1), under a completed gift (although Toohey J took a different view). However, the joint tenancy was not severed because the transferor had not done all things necessary on her part to effect a transfer, because she had not authorised the mortgagee to hand the Certificate of Title to the transferee. Had she done so, the jointure would have been severed in equity. 22 Corin v Patton therefore may be taken to have established that a joint tenancy may be severed by a completed gift of the joint tenant's interest to a third party, albeit as trustee for the donor. Such severance results from the perfection of the gift vesting an equitable interest in the donee, prior to registration, so as to effect an actual alienation in equity of the interest. Where, as in Corin v Patton, there is a transfer by a joint tenant to a trustee to be held on trust for the transferor, that would be achieved by execution, delivery of the transfer to the transferee, and production of the Certificate of Title to permit registration. Once the transfer was in the hands of the transferee and the title deed produced, the transferor would have done all things necessary on its part to perfect the transaction - it would be in the transferee's power exclusively to lodge the transfer for registration.

[38]

26 In Freed v Taffel, the deceased and his widow were registered proprietors as joint tenants of a home unit. Prior to his death the deceased had executed memoranda of transfer purporting to transfer his interest from himself as joint tenant to himself as tenant in common for a consideration of $1.00, with the intention of severing the joint tenancy, so that the unit could be sold and the proceeds divided. Their son - who held the Certificates of Title on behalf of the widow - refused to produce them to enable registration, and the transfers were never registered. His Honour concluded that the actions of the deceased were ineffectual to pass any estate or interest at law, and did not operate in favour of himself to affect his beneficial interest in the land in any way. The conclusion that the deceased's actions did not operate in favour of himself to affect his beneficial interest in the land in any way must again involve (1) that they did not give rise to a binding and enforceable agreement to alienate his interest, and (2) that mere possession of a registrable transfer (at least in the absence of production of the Certificates of Title) did not vest an equitable interest in the transferee. 27 Section 97 was inserted in 1997, after Corin v Patton, to facilitate severance of a joint tenancy by unilateral action, by providing a new statutory method of severance, namely registration of a unilateral transfer. 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. Section 97 operates to sever a joint tenancy only upon registration of the transfer. It does so by operation of statute. Its effect is contingent upon registration. It does not provide merely for recognition by registration of a pre-existing entitlement [cf s 101], nor does it create a right to sever a joint tenancy arising before registration. It does not contemplate or support any pre-existing equitable severance upon lodgement, let alone on execution, of a unilateral transfer. An unregistered unilateral transfer effects no equitable severance.

At a glance

Court

Decision date

Before

Source

Judgment (44 paragraphs)

Parties

Cases Cited (2)

Cited By (3)