Perpetual Trustees Company Ltd; Application of Chen [2010] NSWSC 808

Supreme Court of NSW|2010-07-06|Before: Ms J, Mr J

CITATION : Perpetual Trustees Company Ltd; Application of Chen [2010] NSWSC 808

HEARING DATE(S) : 6 July 2010; 15 July 2010; 20 July 2010

Chen's Notice of Motion (a) That one half of the amount paid into Court by the Perpetual Trustee Company Limited in proceedings 2010/72853, together with one half of the interest accrued thereon, be paid out to Vincent Chen. (b) No order as to the costs Mr Chen's Notice of Motion. (c) Note that the issue of costs between Mr Chen and ASIC will be determined by separate agreement between them. (d) That the exhibits may be returned. DECISION : ASIC's Notice of Motion (a) Grant leave to ASIC to discontinue the Notice Of Motion filed on 1 July 2010 on the basis that it is not prevented from claiming the same relief by a fresh Notice of Motion. (b) No order as to ASIC's costs to the intent that it will pay its own costs of the Notice Of Motion. (c) No order as to Mr Chen's costs in relation to ASIC's Notice of Motion. (d) Note that the issue of costs will be determined by separate agreement between them. (e) The exhibits and documents marked for identification may be returned.

CATCHWORDS : PROCEDURE - miscellaneous procedural matters - funds paid into Court under Trustee Act Part IV - application for payment out of court - matters to be established - Held: matters required are established - order for payment made out.

Trustee Act 1925 (NSW), Part IV, ss 95, 98 LEGISLATION CITED : Corporations Act, 2001(Cth) Real Property Act 1900 (NSW) s58 Uniform Civil Procedure Rules 2005 rr 55.11

Adams v Bank of New South Wales [1984] 1 NSWLR 285 Avco Financial Services Ltd v Commonwealth Bank of Australia (1989) 17 NSWLR 679, at 681 Bank of New South Wales v Adams (1982) 2 NSWLR 659 and on appeal (1984) 1 NSWLR 285, at 299 CASES CITED : Commonwealth Bank of Australia v The Estate of the Late Mahmoud Slieman [2010] NSWSC 661 La Trobe Capital [2009] NSWSC 1118 Public Trustee v Pfeiffle [1991] 1 VR 19 Scott v Scott [2009] NSWSC 567

TEXTS CITED : Land Law 5th ed (2006) Thompson Lawbook Co

Perpetual Trustees Company Limited, Plaintiff; PARTIES : Vincent Chen, Applicant; Australian Securities & Investment Commission, Second Applicant

Mr A M Gruzman (Chen) COUNSEL : Ms J Single (ASIC) - 06/07/10; 15/07/10 Mr J A Halley SC (ASIC) - 20/07/10

Mario Fiorenzo Di Lizio (Chen) SOLICITORS : Georgina Hayden (ASIC) Meredith Dodds (ASIC) - 23/07/10

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

2010/ 72853 PERPETUAL TRUSTEES COMPANY LIMITED; THE APPLICATION OF CHEN 1 HIS HONOUR: Perpetual Trustees Company Limited, the Plaintiff in these proceedings, was the mortgagee of a property in Lugarno ("the Lugarno property"). The mortgagors of the Lugarno property were Ken Chen (now Vincent Chen, his change of name being pursuant to deed poll made 11 October 2004) ("Mr Chen") and his, now, former wife, Min Hua Li ("Ms Li"). They were the registered proprietors of the Lugarno property as joint tenants. A copy of the title search shows that there were no caveats, or other encumbrances, shown on title. 2 There is no dispute that the Plaintiff entered into possession of the Lugarno property in, or about, September 2009; that it sold that property, by public auction, on, or about, 31 October 2009, for $618,000; and that settlement of the sale of the Lugarno property took place on 4 December 2009. 3 Upon settlement of the sale, the debt of about $310,000, due to the Plaintiff, secured by the mortgage granted by Mr Chen and Ms Li, was repaid from the proceeds of sale. Following the repayment of that debt and the enforcement expenses of the Plaintiff, there were surplus proceeds amounting to $285,400.64 ("the Proceeds"), which amount the Plaintiff paid into Court pursuant to Part IV of the Trustee Act 1925 on 23 March 2010. 4 The payment of the Proceeds into Court was made following the filing of a Summons, on 23 March 2010, pursuant to the liberty provided under s 95 of the Trustee Act to a trustee to make such payment into Court. 5 On 11 May 2010, Mr Chen filed a Notice of Motion in the proceedings, in which he sought, inter alia, an order that one half of the Proceeds be paid to him.

6 A copy of the Plaintiff's Summons, the Notice of Motion and Mr Chen's affidavit in support were forwarded to the Australian Securities & Investment Commission ("ASIC") under cover of a letter dated 17 May 2010. The letter and documents were received by ASIC on 19 May 2010. 7 There is no dispute that the Plaintiff had identified each of Mr Chen, Ms Li and ASIC as a party who, or which, had, or may have had, an interest in the Proceeds. 8 On 29 June 2010, Mr Chen's Notice of Motion was referred to Rein J. On that day, Rein J, made orders, noting that the dispute then existing between the Plaintiff and Mr Chen was resolved, and that the Plaintiff was excused from any further appearance in the matter. 9 ASIC appeared on 29 June 2010, before Rein J. Certain procedural orders were made regarding the filing of any Notice of Motion and the evidence on which ASIC intended to rely, by 1 July 2010. 10 On 1 July 2010, ASIC filed a Notice of Motion in the proceedings in which it sought, inter alia, that it be joined as a party to the proceedings and that all of the Proceeds be paid into proceedings that can, compendiously, be described as "the Secured Bond proceedings". 11 Both Notices of Motion were returnable before the Court on 6 July 2010 and on that day were referred to me. The dispute for determination, now, relates to how one half of the Proceeds should be paid out. 12 It is necessary to set out some of the background facts in the evidence of Mr Chen, about which there appears to be no dispute:

(a) Mr Chen and Ms Li were married on 18 October 1993. Their marriage was dissolved by decree of dissolution of marriage made by the Federal Magistrates Court, in Sydney, on 16 July 2004, which decree became absolute on 17 August 2004;

(b) The Lugarno property was the former matrimonial home of Mr Chen and Ms Li;

(c) Ms Li is presently being held by authorities in a Shanghai Detention Centre in China; authorities have postponed her trial while her lawyer seeks supplementary evidence to assist her defence. Mr Chen does not know when the proceedings, in China, might resume;

(d) Detainees, such as Ms Li, are not permitted visitors, or telephone calls, whilst in detention, except from consular officers, or her locally appointed legal counsel; there is discretion in local authorities to allow Ms Li to sign documents;

(e) By letter dated 16 June 2010, the solicitors for Mr Chen forwarded to the Australian Embassy in China, a letter referring to the Court proceedings, requesting certain information, and asking her to sign a document in the following form:

"To Whom it May Concern Supreme Court of New South Wales (Case Number: 2010/72853) Proceedings involving Perpetual Trustee Company Limited, Vincent Chen and ASIC

I, MS MIN HUA LI, currently a Defendant in proceedings brought against me by Australian Securities and Investment Commission hereby confirm the following points:-

I confirm that my former husband and I previously owned the property at … Lugarno as Joint Tenants; and

I believe that Vincent Chen is entitled to at least a 50% share of any net sale proceeds arising from the sale of the said property; and

I have no objection and hereby consent to Vincent Chen receiving at least a 50% share of any net sale proceeds arising from the sale of the said property."

(f) The document referred to was, in fact, signed by Ms Li on 25 June 2010, her signature thereon being witnessed by the Vice Consul. Present also, at the time of the visit with Ms Li, was a Consular Officer from the Consulate General, one court official, and court interpreter, as well as a detention centre official. The discussion during the visit was conducted in English and Chinese. Ms Li provided consent to disclose related information to Mr Chen's solicitors;

(g) The legal issues raised in letters passing between Mr Chen's solicitors and the Consular Officer were drawn to Ms Li's attention by the Consul, following which Ms Li signed the document;

(h) On a date that is not disclosed in Mr Chen's evidence, but which was well before the document to which I have referred was signed, Mr Chen and Ms Li had a conversation in which they agreed to wait to sell the Lugarno property "until the children had grown up and then we can sell it and we will each receive one half of the proceeds of sale";

(i) On 23 March 2010, Mr Chen obtained a Certificate from the A/Court Revenue and Trust Co-ordinator, Supreme Court of NSW, disclosing that $285,400.64 was deposited with the Supreme Court and invested with the NSW Trustee & Guardian; that the amount of interest was unable to be advised as it was calculated quarterly; and that there were no stop orders in place. 13 It is next necessary to set out some of the background facts in the evidence of ASIC, about which there also appears to be no dispute:

(a) On 2 July 2007, ASIC commenced an investigation of suspected contraventions of various sections of the Corporations Act , 2001(Cth) by Ms Li and others;

(b) In aid of the investigation, ASIC commenced certain injunctive proceedings under the Corporations Act . In one of those proceedings ("the Secured Bond proceedings"), Ms Li is named as the fourth Defendant;

(c) On 2 September 2008, an asset preservation order and passport orders were made in the Secured Bond proceedings in respect of Ms Li; these orders were extended, or new orders were made, at various times between 4 September 2008 and 11 December 2008; and as against Ms Li, again at various times between 19 December 2008 and 11 June 2010. The last of those orders is in force until 30 August 2010. 14 On 15 July 2010, Ms J M Single, counsel then appearing for ASIC, informed the Court that it was not intended to proceed, further, with the Notice of Motion that had been filed by ASIC. The Court was also informed that ASIC no longer wished to be heard on the Notice of Motion filed by Mr Chen. It is, therefore, unnecessary to further address the Notice of Motion filed by ASIC in this judgment. 15 When the matter was before me on 6 July 2010, it became clear that one relevant consideration in determining the questions that were raised would be whether the joint tenancy between Mr Chen and Ms Li had been severed. Directions were made for the filing of further evidence going to this issue and, by consent, the matter was adjourned until 15 July 2010, for mention, and until 20 July 2010, for further hearing. 16 On 15 July 2010, Mr Chen's solicitors, by letter, requested ASIC to produce any affidavits of assets and liabilities of Ms Li. Although there was, initially, some argument about whether the letter requesting production of such documents was a proper notice to produce, a short time later, ASIC's solicitors produced an affidavit sworn on 26 September 2008, by Ms Li, to the Court. 17 Because I thought the contents of part of this affidavit were relevant on Mr Chen's application for costs, and as there was no opposition, by ASIC, to inspection of the affidavit by Mr Chen's legal representatives, I permitted inspection of the affidavit, on terms, and also permitted the affidavit, although filed in other proceedings, to be relied upon by Mr Chen if he wished to do so. Subsequently, Mr Chen relied upon part of Ms Li's affidavit. 18 So far as is relevant, the affidavit of Ms Li provided: "Property owned by me

I have a one-half interest in a residential property at … Lugarno, … which I own jointly with my ex-husband. I have a mortgage account with AIMS Home Loans … through which facility my ex-husband and I borrowed $330,000 for the purchase of the property. The debit balance of this account was $300,674.60 as at 30 June 2008. Annexed to this Affidavit … is a copy of a letter from AIMS Home Loans dated 29 July 2008, attaching a statement dated 30 June 2008. My personal estimate of the value of the equity I currently hold in my share of the property is approximately $150,000." 19 The substance of Mr Chen's claim is that as a co-owner, he is entitled to 50 per cent of the Proceeds. 20 I turn now to the issues to be determined so far as they relate to Mr Chen's Notice of Motion. The procedure to be followed in respect of the claim 21 Section 58 of the Real Property Act 1900 operates to make a first mortgagee a trustee for any purchase money in excess of that required to pay out the first mortgage and the expenses of the sale: Bank of New South Wales v Adams (1982) 2 NSWLR 659 and on appeal (1984) 1 NSWLR 285, at 299; Avco Financial Services Ltd v Commonwealth Bank of Australia (1989) 17 NSWLR 679, at 681. 22 Once moneys are paid into court under Part 4 of the Trustee Act 1925, those moneys become subject to the Uniform Civil Procedure Rules 2005 ("UCPR"): s 98 of the Trustee Act. The party who pays money into court does not retain any legal, or equitable, interest in the money. The money is invested by the Court and is disbursed in accordance with the directions of the court. Division 3 of Part 55 of the UCPR applies to the payment of funds into court under Part 4 of the Trustee Act and to proceedings arising out of payment into court under that Part. 23 So far as is materially relevant, rule 55.11 of the UCPR provides: Proceedings for directions as to payment out of court

(1) Funds that have been paid into court may only be paid out of court pursuant to the directions of the Supreme Court.

(2) An application for such directions is to be made by filing a notice of motion in the proceedings in which the funds were paid into court. 24 In La Trobe Capital [2009] NSWSC 1118, Slattery J, discussed the rule and noted (at [7]) that the claim for payment out was to be by Notice of Motion. In this case, the claim by Mr Chen was commenced by Notice of Motion. The Claims 25 In Commonwealth Bank of Australia v The Estate of the Late Mahmoud Slieman [2010] NSWSC 661, Slattery J, again, dealt with rule 55.11 of the UCPR and, helpfully, stated what needed to be established by a claimant. His Honour said: [8] An applicant under UCPR r 55.11 must establish three matters to justify an order for the payment of money out of Court. The first is to identify the person who is primarily entitled to any funds paid into Court and the basis of that entitlement. It is fundamental that the person be identified from the best evidence available, so that the Court can be sure that the person has been given appropriate notice of the application and can if necessary contest it.

[9] The second matter that needs to be proved by a claimant is that he or she is not merely an unsecured creditor against the person primarily entitled to the fund but is a person who has an beneficial interest in the very fund that has been paid into Court. The same evidence that demonstrates a person's primary entitlement to the funds in Court often establishes this second matter.

[10] Thirdly, it is necessary for an applicant to identify the other potential claimants to the fund in Court and to prove that those persons were notified of its claim. Those persons may consent to the claim. Alternatively, the applicant may prove that those persons either do not have valid claims against the fund or that their claims do not have priority over the applicant's claims.

[11] The Court requires strict proof as to who has the entitlement to the funds in Court. There is a heavy burden placed on a party seeking payment of money out of court under Trustee Act s 98 and UCPR r 55.11. It is necessary for that party not only to prove his or her entitlement to the funds but also to prove that all other potential claimants to the funds in Court have been properly notified. Otherwise there is a risk of incorrect payments being made.

26 In the present case, dealing with the third matter first, I am satisfied that the identity of potential claimants of the Proceeds has been identified. I am also satisfied that notice of Mr Chen's claim has been given to Ms Li and to ASIC. In this regard, there can be no doubt that Ms Li, as co-owner of the Lugarno property, prior to its sale, could be a claimant on, at least, part of the Proceeds. 27 ASIC, in view of the asset freezing order that it had obtained in respect of Ms Li's property, was entitled to, and was, in fact, given, notice of Mr Chen's claim.

28 To obtain an order for payment out of court, the claimant must also establish a proprietary interest in the funds in court. I am satisfied that there is evidence identifying the registered proprietors of the Lugarno property, one of whom was Mr Chen. The copy of the title search of the property identifies him as one of the joint tenants.

29 The evidence also establishes that the Lugarno property was sold by a mortgagee and after deducting the costs and expenses of sale and enforcement costs, there was a surplus available for distribution (the Proceeds). Without more, as the mortgagors, Mr Chen and Ms Li would have been entitled to the Proceeds. A mortgagee holds surplus proceeds of sale, after satisfaction of the mortgage debt, on trust for the registered proprietors, but subject to any other secured interests: s58(3) of the Real Property Act and Bank of New South Wales v Adams at 663-665; Adams v Bank of New South Wales [1984] 1 NSWLR 285, at 295F and 299B per Hutley JA. In this case, I am satisfied that there are no other secured interests. Accordingly, Mr Chen has a proprietary interest in the Proceeds. Severance of the joint tenancy

30 In Scott v Scott [2009] NSWSC 567, Ward J summarised the relevant principles which apply. I respectfully, and gratefully, adopt, what her Honour wrote: [59] In Abela v Public Trustee [1983] 1 NSWLR 308 at 314, Rath J considered the ways in which a joint tenancy may be terminated, those including by agreement between the joint tenants and by a course of conduct unequivocally evincing an intention to treat their interests as severed. The mere sale to a third party of their joint interest in the land does not itself sever the joint tenancy. Rather, it is converted into a joint interest in the sale Proceeds.

[60] Reliance was placed in this regard by Counsel for Mrs Scott (Mr Armfield) on the decision of Myers J in Re Debney [1960] SR (NSW) 471 and Young CJ in Eq as he then was, in Re Commonwealth Bank [2009] NSWSC 81. In Re Debney , Myers J held that the making of an order under s 66G of the Conveyancing Act 1919 did not sever the parties' joint tenancy. Similarly, in Re Commonwealth Bank , a mortgagee sale did not sever the joint interest in the sale proceeds. In order to effect such a severance, there must have been either an agreement to sever (such as an agreement to sell and to divide the proceeds) or unequivocal conduct referable to a mutual intention of the parties not to continue the joint tenancy). Mr Armfield also referred to Nielson-Jones v Feddon [1935] 1 Ch R 222 as illustration of the proposition that mere sale, not accompanied either by actual agreement or by conduct of an unequivocal nature by both parties, does not lead to severance.

[61] Accordingly, absent proof of an agreement or conduct evincing a common intention to sever their joint tenancy, on the sale of the Soldiers Point property the joint interest of the deceased and Mrs Scott in the land would have been converted into a joint interest in the sale proceeds (see, for example, Re Allingham [1932] VLR 469 where the unilateral conduct of the husband in paying the whole of the deposit into a separate bank account did not sever the joint tenancy).

[62] In Fenato v Antonello [2006] NSWSC 763, Campbell J considered the question whether in that case there had been effective severance of a joint tenancy (also in the context of a Family Provision Act application). There, his Honour considered that the execution of a severance document had amounted to an effective severance of the joint tenancy in equity, noting what was said by Rath J in Abela v Public Trustee : (i) Severance is effected by agreement to sever the joint tenancy;

(ii) The agreement need not be specifically enforceable or even binding as a contract at law;

(iii) Subsequent repudiation of the agreement does not affect its operation as severance.

(iv) Severance may be effected by conduct of the joint tenants not evidenced in an agreement to sever but showing a common intention that the joint tenancy shall be severed. [63] In Abela , Rath J held that a consent order agreed between husband and wife, after inconclusive negotiations and applications for distribution of property, evidenced the parties' agreement that they no longer intended the tenancy to operate as a joint one so that it automatically effected a severance whether or not that agreement was binding.

Severance by agreement [64] As to severance in equity by agreement, what is necessary is that the joint tenants agree that the property is thenceforth to be held as tenants in common, ie that the joint tenants' interests are to be treated as distinct. Professor Butt notes that it is not necessary for such an agreement to be specifically enforceable, provided "it serves as an indication of a common intention to sever" (citing, for those propositions, among others Burgess v Rawnsley [1975] 2 Ch 449 and Magill v Magill (1993) NSW Conv R 55-663 at 59-795). (The fact that a binding agreement is not necessary to sever the joint tenancy is relevant in this case, where it is submitted for Mrs Scott that any agreement to divide up assets would not have been enforceable as a "financial agreement" under the Family Law Act 1975 (something I discuss later).) An understanding of the concept of joint tenancy is also not necessary. Professor Butt notes that:

Whether the joint tenants have turned their mind to the actual concept of severance is not important. What is required is that the parties have acted "in such a manner as to require an inference of severance to be drawn", for co-owners may sever a joint tenancy without knowing what a "joint tenancy" is or what "severance" is. (Land Law para 1478, citing Sprott v Harper [2000] QCA 391). [65] So, for example, in Fenato the fact that the plaintiff may not have appreciated all the implications of the severance of a joint tenancy was not to the point, nor was the fact that he was doing it for the "sake of peace". In that case, from the time a document was signed by the parties purporting on its face to effect a severance of the joint tenancy in the property, his Honour held that it was so severed in equity.

[66] In Saleeba v Wilke [2007] QSC 298, Chesterman J noted that reported cases of severance by mutual agreement were not common, (most of the reported cases being concerned with whether one could either infer or imply an agreement for severance from a contract between the joint tenants to sell the property and divide the proceeds), these occurring most frequently in the realm of failure of marriages and attempts by spouses to readjust their property interests. [67] Chesterman J noted also (at [19]) that: There is a discernable trend in Australian authorities that an agreement between joint owners to sell their property and divide the proceeds, whether equally or unequally, gives rise to an inference that there was a further agreement that the joint tenancy be severed immediately on the making of the agreement to sell. The cases, of course, turn upon their own facts and each is concerned with its particular circumstances that there is, I think, a general inclination, demonstrated by the decisions, to reach the result I mentioned … [68] Chesterman J referred to Public Trustee v Pfeiffle [1991] 1 VR 19, which had considered a line of cases including (sic). Chesterman J noted (at [25]): What seems to underlie the reasoning in these cases is that the right of survivorship is an essential incident of joint ownership. A sale of the jointly owned property and a division of the proceeds destroys the possibility of a survivorship. After the sale none of the co-owners can succeed to the interests of any other who might die. Accordingly, an intention to sell has implicit within it an intention to destroy the co-owners' right to survivorship which is essential to joint ownership. The agreement to sell is a manifestation of the intention to bring the joint tenancy to an end.

[69] There, what Chesterman J was looking to see was whether the evidence established an intention not only to sell the home unit but also to divide the proceeds. His Honour said, "I do not overlook the point that one does not need a binding contract, or indeed any contract, to support the requisite intention. However, one must have evidence of a mutual intention to sever the joint tenancy."

[70] As to severance by conduct (treated by Professor Butt as a ground of severance independent of severance by agreement, citing Pfeiffle v Pfeiffle (1989) 13 Fam LR 692 at 707; On v On [2002] NTSC 18 and Burgess v Rawnsley , though seen by others as a subset of severance by agreement Saleeba v Wilke per Chesterman J at [46]), there must be, at the least, "a general dealing, sufficient to manifest the intention to divide the whole" Groom v De Vandes (1805) 11 Ves Jun 330; 32 ER 1115 at 1116. It is clear that the conduct must be mutual. A course of dealing by one joint tenant is not sufficient ( Minter v Minter (2000) 10 BPR 18,133), nor is one tenant's assertion that the joint tenancy is to be severed ( Corin v Patton (1990) 169 CLR 540). What is required is that the parties, by agreement or conduct, have treated themselves as if they were separate owners of their interests.

[71] In Saleeba , Chesterman J approached the question by reference to what was said in Sprott "Was there a course of conduct inconsistent with a joint tenancy from which one would objectively infer an intention to hold property as tenants in common?" His Honour noted that in Slater v Slater (1987) 12 Fam LR 1, Cohen J had rejected an argument that a joint tenancy had been severed in circumstances where, in the course of negotiations between parties' solicitors following the dissolution of a marriage there was an acceptance of the defendant's solicitors that the joint tenancy be severed, subject to, or conditional upon agreement in relation to costs. Cohen J said (at 5):

[T]he reply took the matter no further than indicating that the defendant would, subject to costs, consent to orders being made by the court which would themselves effect a severance and the creation of a tenancy in common.

Further, the dealings must be taken as a whole, and one should look at what follows. The deceased failed to give further instructions for another three years, and when he did so, there was no assumption that the parties had agreed on severance.

[72] His Honour considered, "In effect, whatever else might be required … the creation of a tenancy in common must be acknowledged as having been decided upon so that thereafter, whether the negotiations are concluded or not, the mutual attitudes of the parties on this aspect is unchanging".

[73] In noting that Burgess must be regarded with caution by courts in Australia, Chesterman J said, "In particular if a course of dealing is to be relied upon as establishing a consensus (to use the word employed by Mahoney P in Magill ) it must be a course of dealing in which all co-owners participated and the intention to sever to which the course of dealings give rise must be the intention held in common by all the co-owners. The unilateral acts of one co-owner will not suffice, nor will an intention of that co-owner to bring about the severance, however forcibly expressed to the others. The course of dealing must be mutual to give rise to a common intention."

[74] Although, in Pfeiffle , Ormiston J noted, "The slightest indication of the holding of separate interests has been considered to point to a tenancy in common" this does not appear to be the approach in Fenato or Saleeba . What is necessary is a dealing by the parties with the property in a manner consistent only with their being tenants in common. 31 Professor Peter Butt in Land Law 5th ed (2006) Thompson Lawbook Co states, at 1484: Whether a sufficient course of conduct exists is a matter of evidence. The onus of proof rests on the person asserting that severance has occurred. It is not necessary to show a specific act dividing the property, as long as there has been 'a general dealing, sufficient to manifest the intention to divide the whole'. Was there a severance?

32 It was accepted by Mr A M Gruzman, counsel for Mr Chen, that the onus was on Mr Chen to show either an agreement, or a course of conduct, pointing unequivocally to a mutual intention to sever the joint tenancy. In this regard, he relied, on Mr Chen's evidence of his conversation with Ms Li, and also upon the correspondence that led to, and the document dated 25 June 2010, signed by, her. 33 In addition, Mr Gruzman submitted, that the document should be seen as "a general dealing, sufficient to manifest the intention to divide the whole". Ms Li should be taken to have understood that by signing the document there was to be a division of the Proceeds, with Mr Chen receiving "at least 50% of any net Proceeds of sale". However, as has been acknowledged, he only seeks 50% of the Proceeds. 34 Mr Gruzman also relied upon the contents of Ms Li's affidavit to the effect that she only was entitled to one half of the net proceeds of sale. He submitted that this accorded with the conversation stated by Mr Chen and that it corroborated that conversation. 35 I accept that the document signed by Ms Li does not contain any express term by which it is provided that the joint tenancy was agreed, or was acknowledged, to have been severed. Nevertheless, the content of the correspondence to Ms Li, with the document that she subsequently signed, as to how the Proceeds should be dealt with, in my view, operated to bring about severance, if that had not previously occurred, and revealed the parties' shared intention to sever their joint ownership of the Proceeds. 36 In addition, the document executed by Ms Li, read with what she had earlier asserted in her affidavit, and the claim of Mr Chen to only one half of the Proceeds, is sufficient to amount to an agreement to sever the joint tenancy, or conduct unequivocally referable to a severance of the joint tenancy. They intended to declare that the beneficial interests were to be held as tenants in common and each expressed those interests to be several interests of a kind consistent only with a tenancy in common. It was sufficient for them to each assert that each was entitled to a one half interest in the property: Public Trustee v Pfeiffle [1991] 1 VR 19 per Ormiston JA, at 35. Each of the parties, by conduct, treated himself and herself as if he and she were separate owners of their interests. That then put an end to the joint tenancy. This was conduct that demonstrated that the mutual intent of the joint tenants was to treat their respective interests as being those of tenants in common. 37 Accordingly, in my view, there was a severance of the joint tenancy in the Proceeds. 38 In the circumstances, the orders I make are:

(a) That one half of the amount paid into Court by the Perpetual Trustee Company Limited in proceedings 2010/72853, together with one half of the interest accrued thereon, be paid out to Vincent Chen.

(b) No order as to the costs Mr Chen's Notice of Motion.

(c) Note that the issue of costs between Mr Chen and ASIC will be determined by separate agreement between them. (d) That the exhibits may be returned. 39 In relation to ASIC's Notice of Motion, the orders I make are: (a) Grant leave to ASIC to discontinue the Notice of Motion filed on 1 July 2010 on the basis that it is not prevented from claiming the same relief by a fresh Notice of Motion. (b) No order as to ASIC's costs to the intent that it will pay its own costs of the Notice of Motion. (c) No order as to Mr Chen's costs in relation to ASIC's Notice of Motion. (d) Note that the issue of costs will be determined by separate agreement between them. (e) The exhibits and documents marked for identification may be returned. **********

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(1989) 13 Fam LR 692

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