Plaintiff v Defendants

1 In this proceeding commenced by originating motion the plaintiff (Graeme) applies for declarations that transfers of land executed by his late father, Leonard Charles Wilson (Leonard), in his own capacity and as attorney for his late mother, Austral Jean Wilson (Austral), are valid and effective according to their terms. Graeme also seeks orders that the first defendant, who is the administrator of the estate of Leonard (Mr Dillon), be directed to lodge the transfers of land for registration in accordance with the Transfer of Land Act 1958 (Vic) (TLA).[1]

2 The defendants are Graeme's siblings and the estate of his mother, in relation to which at the time of the filing of the originating motion there was no grant of representation. After the commencement of the proceeding and before the trial, letters of administration with the will of Austral annexed were granted to Mr Dillon.[2] This application was enabled by the parties agreeing to it at a case management conference to which I refer below.

3 Leonard and Austral had six children. In order of birth they are:

(a) Lynette Dawn Edwards (Lynne);

(b) Graeme;

(c) John Charles Wilson (John);

(d) Sue-Martine Marie Wilson (Sue), who is the contradictor;

(e) Janine Rhebina Roostan (Janine); and

(f) Joy-Michelle Patricia Wilson (Joy).

4 The properties in question are as follows (collectively, the Properties):

(a) 60 Beveridge Road, Silvan - Certificate of Title Volume 8085 Folio 935 (Beveridge Road property). This was the home of Leonard and Austral;

(b) 64 - 68 Pietro Road, Heatherton - Certificate of Title Volume 8633 Folio 646 (Pietro Road property);

(c) a one-half interest in 22 Grantulla Road, Kallista - Certificate of Title Volume 8652 Folio 151 (Grantulla Road property). Leonard and Austral's joint interest is held as tenants in common with Graeme and his wife Jaqueline Maria Wilson, as joint tenants. It is the home of Graeme and his family;

(d) Lots 1, 2 and 3 Kallista-Emerald Road Kallista - Certificate of Title Volume 8701 Folio 449 (Kallista property);

(e) A one-third interest in properties at 1 and 1A-1F Hamilton Street, Mont Albert - Certificate of Title Volume 8807 Folios 607,608,609 and 612; Volume 9302 Folios 244, 245 and 246 (Hamilton Street properties).

5 Leonard died on 2 October 2011 leaving a will dated 9 July 2008. On 5 October 2012 probate of the will was granted to the executors named in the will being Graeme, the fourth defendant, John and the third defendant, Joy. There were disputes between the executors of Leonard's estate which led them to apply for the appointment of an administrator. On 15 April 2016, Graeme, John and Joy were removed as executors and trustees of Leonard's estate and Mr Dillon was appointed administrator of Leonard's estate, with the will annexed, and trustee of his estate. A vesting order was also made.[3]

6 Before Mr Dillon's appointment, proceedings had been commenced by Austral (by her administrators before she died on 30 October 2016) for further provision out of Leonard's estate under pt IV of the Administration and Probate Act 1958 (Vic) (A&P Act),[4] as well as proceedings by two of Leonard's children for the same relief.[5] After his appointment, further pt IV proceedings were commenced by another two of Leonard's children.[6] It was anticipated that upon a grant of representation in respect of Austral's estate, the pt IV proceeding commenced by her would be discontinued and pt IV proceedings would be commenced by some of the children seeking further provision from her estate.

7 Issues arose in Mr Dillon's administration of Leonard's estate which led him to make application to the Court for advice, for certain questions to be answered and for orders, including a Beddoe order[7] authorising the administrator to commence and prosecute proceedings at the expense of the estate (administration proceeding).[8] One of the issues was what comprised the estate of the deceased and this question, in turn, depended in part on whether there had been a severance of the joint tenancies in the Properties. This question was one of the questions raised for advice in the administration proceeding. It is important to the determination of what assets are in each of the deceased estates of Leonard and Austral and, as well, which estate is responsible for the maintenance of the properties, especially the Beveridge and Pietro Road properties, and which estate is entitled to the rents derived from the Hamilton Place properties.

8 As I have mentioned, Austral died on 30 October 2016. She left a will dated 26 March 1998. She appointed Leonard as executor and trustee of her estate, and if Leonard did not survive her (as was the fact), Graeme, John and Joy as the executors and trustees of her estate. The disagreements between these named executors and between them and their siblings held up any grant of representation for Austral's estate. In these circumstances, another application made in the administration proceeding was the appointment of Mr Dillon as administrator and trustee of the estate of Austral.[9]

9 There was something of a stalemate in the progress of the pt IV proceedings and the administration proceeding. The course adopted by the Court was to hold a compulsory case management conference of all the parties to the administration proceeding (who were also parties in the pt IV proceedings) with a view to the determination of the administration proceeding, possibly in discrete stages.[10]

10 The case management conference was held on 24 May 2018 and orders and directions were made in consequence of that conference on 31 May 2018.[11] All parties at the conference, including the executors named in the will of Austral, consented to Mr Dillon obtaining Letters of Administration with the will annexed in that estate. The following relevant orders were made in the administration proceeding:

(a) by consent, authorising Mr Dillon to make application for a grant of administration with will annexed of the estate of Austral and for that purpose take all necessary steps to obtain the original will of Austral;

(b) that Graeme, in his personal capacity, commence a proceeding by way of originating motion against the other children of the deceased seeking declarations as to whether the joint interest of the deceased and Austral in the Properties has been severed. That is this proceeding.

11 A directions hearing was held in this proceeding on 13 September 2018. At that directions hearing the parties agreed, and orders were made, that:

(a) Sue (the second defendant) should be the sole contradictor at the trial of this proceeding, subject to Mr Dillon, as administrator, exercising the right to file and serve an affidavit and submissions, if the affidavits or submissions of the plaintiff or second defendant omitted a relevant fact or submission and to appear at the trial;

(b) the trial of this proceeding be fixed for 10 December 2018, and trial directions were made.

(c) the first and third to seventh defendants be excused from appearing at the trial of the proceeding, but will remain parties to the proceeding and be bound by the outcome of the proceeding;

(d) the parties shall be bound by the outcome of this proceeding in any hearing of the administration proceeding.[12]

12 The administrator exercised his liberty to filed both affidavit material and submissions and appeared at the hearing of the trial. The administrator's role in the proceeding is not to argue on behalf of a beneficiary, but to assist the Court.[13]

13 The plaintiff relies[14] on the affidavit sworn by Graeme Leonard Wilson[15] and Christian Louis Teese.[16] The first and fifth defendant relies on the affidavit of Geoffrey John Dillon[17] and Geoffrey Ronald King.[18] The second defendant has not filed any affidavit.

14 Mr Dillon's affidavit identified certain documents that in his opinion contained relevant facts not referred to by the plaintiff. The affidavit of Christian Louis Teese responds to the Mr Dillon's affidavit. Mr King's affidavit cleared up some uncertainty in the evidence.

15 Austral's will (made 26 March 1998) presupposed that, at the time of her death, she would hold real property capable of being devised, because she directed her trustee to hold various parts of the Properties on several trusts established by her will. On the day of executing her will, Austral appointed Leonard as her attorney pursuant to an enduring power of attorney.[19] In 2000 Austral was diagnosed as suffering from dementia and because of her lack of capacity her will could not be varied.

16 Leonard's will, dated 9 July 2008, was made 'tak[ing] into account the inability of [Austral] to reconsider the terms of her Will...due to her legal incapacity' (cl 14.A).[20] The evidence is that at the time of Leonard's will Austral suffered from vascular dementia, lacked legal capacity and was in poor physical health.[21]

17 On the same day as making his will, Leonard executed severance transfers in relation to the Properties.[22] In each case:

(a) the transferor was expressed to be 'Leonard Charles Wilson and Austral Jean Wilson';

(b) the transferee was expressed to be 'Leonard Charles Wilson and Austral Jean Wilson both of 60 Beveridge Road, Silvan South in Victoria, 3795, as Tenants in Common in equal shares';

(c) the consideration was expressed to be 'Love and Affection'; and

(d) the document was expressed to be executed by Leonard in his personal capacity, and as attorney for Austral pursuant to the enduring power of attorney dated 26 March 1998.

18 Each transfer was submitted to the State Revenue Office and stamped exempt from duty on 10 July 2008.

19 Leonard died on 2 October 2011, aged 77. Austral died on 30 October 2016, aged 87.[23] The six children are the only surviving beneficiaries of the estates of both Leonard and Austral. The differing effect of the wills of Austral and Leonard mean that differing members of the family are better off under one will compared with the other.

20 The effect of a finding of severance of the interests of Leonard and Austral in the Properties is that, at the time of their deaths, each will have had an equal interest in the Properties as tenants in common in equity. Each therefore will have had an interest capable of being devised by will, and the beneficiaries' entitlement to the Properties is therefore the combination of their interests they derive under each of Leonard's and Austral's wills. By contrast, if there were no severance, the right of survivorship means that after Leonard's death Austral held the whole interest in the Properties. After her death, and upon proof of her will, the Properties would pass to the beneficiaries in the proportions set out in her will.

21 Leonard could not have known that Austral would survive him. Austral was five years older than Leonard, and was in a poor state of health when Leonard made his will.[24] His will did not presuppose that Austral would outlive him. This is made clear by cls 4 and 7E of the will. Clause 4 makes provision for the residue of his chattels, if Austral does not survive him, to be disposed of by his trustees as they determine in their absolute discretion. Clause 7 provides for the situation where none of his children, or their issue, or Austral survive him. In cl 14 of Leonard's will he stated:

In making this Will, I have taken into account the inability of my wife, Austral Jean Wilson, to reconsider the terms of her Will made on the 26th March, 1998 due to legal incapacity. I have endeavoured to make adjustments in the division of my estate between my children and their issue to reflect current assets that are likely to form part of my estate and the estate of my said wife. I have also taken into account changes in circumstances with respect to our six children and their families and their respective contributions to the establishment and development of assets that are associated with me and my said wife. I have also considered the needs of my wife and those with whom the responsibility for her care is most likely to repose after my death.

22 The administrator filed, as I have said, both an affidavit and submissions and appeared at the trial. The primary affidavit was that sworn by the administrator on 8 November 2018 exhibiting documents in his possession and obtained from solicitors formerly acting for the former executors of Leonard's will, Ronald Segal & Associates, and the solicitor formerly acting in relation to the preparation of Leonard and Austral's wills.

23 The first letter of significance is from Ronald Segal & Associates to MST Lawyers, who took over acting on behalf of Leonard's estate in the pt IV proceedings. The letter is dated 14 September 2015 and for convenience states, so far as is relevant, as follows:

We now enclose the file in relation to the Will and estate of the late Leonard Charles Wilson.

We understand that both Austral and Leonard Wilson originally attended Mr Geoffrey King, Solicitor of Kings Legal Services in Glen Waverly in 1998 to prepare their Wills and Powers of Attorney.

In 2008 a further review was initiated by Mr Leonard Wilson of his will. This was done by Mr King of Kings Legal Services.

As a consequence of the review, Mr Wilson requested that ownership of a number of properties held by both he and his wife change from Joint Tenancy to Tenancy in Common. He signed transfers to alter interests in the properties [from] Joint Tenants to Tenants in Common.

The transfers have been stamped non-dutiable by SRO. These transfers are yet to be lodged together with transmission applications that will follow the transfer dealings. We understand that the transfers to tenancy in common were not registered in 2008 at the request of Mr Leonard Wilson due to the sensitive nature of his relationship with the ANZ Bank as a consequence of the insolvency of his son, John's manufacturing business (Micro Pellets Pty Ltd).

We have provided a copy of a letter to the ANZ Bank dated 23 July 2008 in the documents transferred with this file to your firm. We are informed that this letter was not sent for the reasons set out in the previous paragraph.

Probate of the Will dated 9 July 2008 of Leonard Charles Wilson was granted the 5 October 2012.

On the 22 March 2013 we wrote to ANZ Bank and requested their approval to make titles available for transmission application & survivorship application for the following properties:

* 5 Alexandra Street, Aspendale 3195 (Title 06868/573)

* 64 - 68 Pietro Road, Heatherton 3202 (Title 08633/646)

* 60 Beveridge Road, Silvan 3795 (Title 08085/935)

* 22 Grantulla Road, Kallista 3791 (Title 08652/151)

We have been waiting for Joy Wilson to sign some transfer documents as part of the administration of the Estate.

24 There was also produced a draft letter dated 23 July 2008 from Kings Legal Services to the ANZ Bank enclosing copies of the transfers and the power of attorney used by Leonard to execute them on behalf of Austral and requesting that the Bank endorse orders to register on each transfer and make the certificates of title available for registration. This is the letter referred to in the above quoted letter that was never sent. In it the following statement appears:

Mr Wilson does not want his share of these properties to fall into his wife's hands given her current lack of legal capacity which is not expected to improve.[25]

25 Another letter produced was confirmed by the affidavit of Geoffrey Ronald King of Kings Legal Services as a draft of a letter ultimately sent by Mr King to Leonard on 11 June 2008. That letter was a letter of advice confirming that Austral suffered from a disability within the meaning of the Guardianship and Administration Act 1986 (Vic). He advised as to the consequences of that condition, including the advice in relation to Leonard's powers pursuant to the enduring Power of Attorney given on 26 March 1998. One of the matters canvassed was a change of ownership of various properties held as joint tenants by Austral and Leonard to a holding as tenants in common.

(a) a letter that he had written to Leonard on 1 July 2008 which attached the transfers of land changing ownership from a joint tenancy to a tenancy in common as well as a redraft of his will and other documents;[26]

(b) notes of a conference he held with Leonard and Mr Neil Sproat (an advisor to Leonard) and Mr Walter Chelotti (Leonard's accountant) at which Mr King recorded Leonard's instructions to transfer all the properties held by Leonard and Austral as joint tenants to them both as tenants in common 'to minimise the risk of all these properties passing to Austral if Len predeceases her. This result will halve the impact of Austral's Will on Len's division of the assets'.[27]

27 Mr Dillon submitted that the documents were admissible either as business records pursuant to s 69 of the Evidence Act 2008 (Vic)(Evidence Act)[28] or under s 63(2)(a) of the Evidence Act to the extent the letters or notes contained evidence of representations given by a person who saw, heard or otherwise perceived the representation being made. To that end, Mr Dillon gave reasonable notice under s 67 of the Evidence Act of his intention to adduce evidence of the previous representations made by Leonard to Mr King.

28 In my view, much of the hearsay material I have summarised above is, as a general proposition, admissible on the grounds advanced. There was only faint dispute in this regard, and Counsel for the Contradictor relied on the material in any event.[29] The contention of Counsel for Graeme was that the hearsay material was irrelevant to the question before the Court. The points made from the hearsay material by the Contradictor are that:

(a) they show that by Leonard requesting the transfers not be lodged for registration 'due to the sensitive nature of his relationship with the ANZ Bank' he had not authorised his solicitors to lodge the transfers for registration, and was turning his back on severing the joint tenancies. This, Counsel for the Contradictor conceded, went to the second order sought by the application, that Mr Dillon, as the administrator, should be ordered to lodge the transfers for registration;[30]

(b) they show by the statement in the draft letter of 23 July 2008 that Leonard acted pursuant to the enduring power of attorney in conflict of interest. The interests in conflict were his own property interests and with regard to his prospective estate and the corresponding interests of Austral.[31]

29 I consider and reject each submission below, so it is not strictly necessary to consider whether all the 'representations' contained in the material are uniformly admissible. In this regard, I note that the reason for the severance quoted in the draft letter dated 23 July 2008 (see above at [24]) is, strictly speaking, not a previous representation and is not admissible under s 63(2)(a) of the Evidence Act. At best it is a part of the business records of Kings Legal Services that has been passed through from that firm to the firm now acting for the Leonard's estate. Having examined the draft letter (pursuant to the power in s 58 of the Evidence Act) the inference I draw is that the author of the letter (who appears to be one Angela Hsiang):

(a) did not have personal knowledge of the asserted fact (s 69(2)(a) of the Evidence Act), as there is no evidence to support that proposition (apart from the source of the draft letter itself);

(b) did not make the statement on the basis of information directly or indirectly supplied by a person who had, or who might reasonably be supposed to have had, personal knowledge of the asserted fact (s 69(2)(b) of the Evidence Act), as there is no evidence to support that proposition (apart from the source of the draft letter itself).

30 If, however, I am wrong in the conclusion that this particular asserted fact[32] is inadmissible, for the reasons I give below it can only be partially true and gives an incomplete and one-sided view of the explanation for the transaction.

31 The plaintiff claims that Leonard validly executed severance transfers and those transfers:

(a) were effective to sever the joint tenancies in equity, with the effect that Leonard and Austral became tenants in common in equal shares;

(b) could validly be registered so as to sever the joint tenancies at law; and

(c) were not revoked or rendered ineffective by the deaths of either Leonard or Austral.[33]

32 For these reasons, supported by considerable legal analysis to which I will refer, the plaintiff seeks a declaration that the execution of the severance transfers are valid and effective according to their terms and that the Court should order that the administrator lodge the severance transfers for registration.

33 The Contradictor claims that although the instrument of power of attorney lends authority to Leonard to execute the transfers, the same instrument is not evidence of Austral's intention to effect the transfers. In effect, the Contradictor argues that there was never any mutual agreement or intention between Leonard and Austral regarding the severance transfers.[34] The Contradictor also contends that:

(a) the transfers represented voluntary gift so that the cases of Milroy v Lord[35] and Corin v Patton[36] are applicable to the current proceeding;

(b) Leonard had not authorised his solicitors to lodge the transfers for registration, and by his conduct, as revealed by the hearsay material, in effect contradicted his intention to sever the joint tenancies, so that there should be no order requiring the Administrator to register them.

34 The issues raised by the parties in the written and oral submissions can be broken down into three questions:

(a) whether the execution of the severance transfers demonstrate a mutual intention to sever the joint tenancies in equity;

(b) was it within Leonard's power and authority to have the transfers registered, thus severing the joint tenancies at law?

(c) if the first and second questions are answered in the affirmative, whether Leonard acted lawfully and within the scope of his authority as attorney;

Did the execution of the transfers demonstrate an intention to sever the joint tenancies in equity?

35 It is common ground that unless the transfers are registered Leonard and Austral remain as joint tenants at law in respect of their interests in the Properties. That is because of the present state of their registered titles and s 30(2) of the TLA, the effect of which is:

(a) two or more persons who are registered as joint proprietors of land shall be deemed to be entitled thereto as joint tenants; and

(b) where two or more persons are entitled as tenants in common to undivided shares of or in any land, the Registrar may make any necessary recordings in the Register and may create a single folio for the entirety or separate folios for each of the individual shares, and may produce a certificate of title or certificates of title accordingly.

36 The principal features of a joint tenancy are the right of survivorship and the 'four unities'. The four unities of a joint tenancy are the unities of title, possession, interest and time. These unities are defined as follows:[37]

(a) unity of title, which means all joint tenants must take under the same instrument;

(b) unity of interest, which means the interest of each joint tenant must be identical in nature, extent and duration;

(c) unity of possession, which means each joint tenant is entitled to undivided possession of the whole of the property and none holds any part separately to the exclusion of the others; and

(d) unity of time, which means at common law the interest of each joint tenant must vest at the same time.

37 The unity of time of vesting only applies to the original creation of the joint tenancy and cannot be affected by any subsequent act. The destruction of the unities of title, interest or possession severs the joint tenancy and creates a tenancy in common or several tenancies. In this case it is only the unity of title that is potentially affected by execution of the transfers of land.

38 It is clear, and also not disputed, that the legal position arising as a result of the operation of the system of title by registration established by the TLA, does not exclude the operation of equity.[38] Moreover, equity favours tenancies in common as a form of concurrent ownership, probably to give effect to the maxim 'equity is equality'.[39] In equity, even slight circumstances are enough to indicate the parties did not intend to hold property as joint tenants. As stated by Gibbs CJ in Delehunt v Carmody:

...slight circumstances would have been enough to indicate that it was intended that there should not be a joint tenancy. Equity had a dislike for joint tenancies, because their effect was to make the ultimate ownership of the property depend on the chance of survivorship, and, in the words of Snell's Principles of Equity, 28th ed. (1982), at p. 37: 'There is here no equality except, perhaps, an equality of chance.'[40]

39 On the question of severance, a useful starting point is Williams v Hensman, where Page Wood V-C outlined three approaches to severing a joint tenancy:

A joint-tenancy may be severed in three ways: in the first place, an act of any one of the persons interested operating upon his own share may create a severance as to that share. The right of each joint-tenant is a right by survivorship only in the event of no severance having taken place of the share which is claimed under the jus accrescendi. Each one is at liberty to dispose of his own interest in such manner as to sever it from the joint fund - losing, of course, at the same time, his own right of survivorship. Secondly, a joint-tenancy may be severed by mutual agreement. And, in the third place, there may be a severance by any course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common. When the severance depends on an inference of this kind without any express act of severance, it will not suffice to rely on an intention, with respect to the particular share, declared only behind the backs of the other persons interested. You must find in this class of cases a course of dealing by which the shares of all the parties to the contest have been effected... [41]

40 The above passage has been cited with approval in subsequent cases, including Corin v Patton,[42] Mischel Holdings,[43] Public Trustee v Pfeiffle[44] and Abela v Public Trustee,[45] amongst many others.

41 The first method of severing a joint tenancy identified in Williams v Hensman is one of the subjects discussed and determined in Corin v Patton. The Court found that a unilateral declaration of intention or other act inconsistent with the continuation of a joint tenancy, without more, does not suffice for the purposes of the first method of severance because:[46]

(a) unilateral action cannot destroy the unity of time, of possession or of interest unless the unity of title is also destroyed, and it can only destroy the unity of title if the title of the party acting unilaterally is transferred or otherwise dealt with or affected in a way which results in a change in the legal or equitable estates in the relevant property;

(b) if statements of intention were held to effect a severance, uncertainty might follow; it would become more difficult to identify precisely the ownership of interests in land which had been the subject of statements said to amount to declarations of intention;

(c) there would then be no point in maintaining as a separate means of severance the making of a mutual agreement between the joint tenants;

(d) the approach taken in Burgess v Rawnsley[47] should not be adopted in Australia for the reasons stated above and because the decision depended in part on s 36(2) of the Law of Property Act 1925 (UK), which permits the severance of a joint tenancy by notice in writing by one joint tenant to the other, and there is no Australian counterpart of that section.

42 Notwithstanding this conclusion, it was accepted in Re Murdoch and Barry[48] that transfer to oneself could sever a joint tenancy. In that case, the deed by which the transfer was made was registered and the legislation specifically allowed a proprietor to convey property to himself. The effect of the transfer was to destroy the unity of title. Mason CJ and McHugh J referred in Corin v Patton to this method of severance, without deciding whether it is correct.[49] It seems that the legislation and relevant property law in that case in the Province of Ontario confine it to its own circumstances.

43 In relation to the second and third methods of severance, in Abela,[50] Rath J examined relevant authorities and summarised the law as follows:

The conclusions as to severance of a joint tenancy by agreement and conduct that I draw from the authorities are as follows:

1. Severance is effected by an agreement to sever the joint tenancy.

1. The agreement need not be specifically enforceable or even binding as a contract of law.
2. Subsequent repudiation of the agreement does not affect its operation of severance.
3. Severance may also be effected by conduct of the joint tenants not evidencing an agreement to sever but showing a common intention that the joint tenancy shall be severed.[51]

44 It is an important point to observe, as did Rath J in Abela, that an agreement need not be enforceable to effect a severance of joint tenancy. The question of enforceability is independent of the parties' intention to sever a joint tenancy,[52] as manifested in an agreement. Indeed, this point has been acknowledged by the plaintiff and the Contradictor.[53]

45 Additionally, in the case of Pfeiffle, Kaye J opined that 'it is the common intention of joint tenants to sever as evidenced by their mutual agreement which may bring about severance instanter'.[54] Similarly, in Pfeiffle McGarvie J also stated that:

In view of the tendency of equity towards severance, there is usually good reason for treating the parties as intending immediate severance... If a mutual intention were treated as intending no immediate severance but intending only severance on the happening of [a] specified future event, it would often achieve nothing.[55]

46 In equity, a mutual intention to sever a joint tenancy is immediately effective to create a tenancy in common.[56] The mutual intention can arise from an agreement to sever, or from conduct of the joint tenants indicating a common intention that the joint tenancy shall be severed.[57] Severance in equity is not revoked or rendered inoperative by reason of one or other of the parties' deaths.[58]

47 The requirement of a mutual agreement or intention brings us to the crux of the argument in this case. It is a long held equitable doctrine that equity favours a tenancy in common, and 'requires little by way of evidence to show an intention that joint tenants are to hold as tenants in common.'[59] In this case, the plaintiff argues that evidence arises from the execution of the severance transfers. The transfers were executed by Leonard on his own behalf, and on Austral's behalf pursuant to the enduring power of attorney.

48 The rationale relied upon by the plaintiff for this argument is a general rule stated by Stirling LJ in Bevan v Webb that 'a man may do by an agent that which he may do himself'.[60] Therefore, the plaintiff's argument goes, the transfers were effective to manifest the mutual intention of Leonard and Austral, because Leonard acted lawfully and within the scope of his authority as attorney. In addition, an unregistered but registrable instrument itself gives rise to an equitable interest in land consistently with the terms of that instrument.[61]

49 The Contradictor contends that there was no mutual intention at the time the severance transfers were executed as they were executed under a power of attorney. She acknowledges that although the instrument of power of attorney grants Leonard the authority to execute the transfers, the same instrument is not evidence of Austral's intention to effect the transfers.[62] Rather, the transactions in question are voluntary transactions and constitute imperfect gifts. The Contradictor relies upon Milroy v Lord and Corin v Patton as authorities for this proposition. She also relies on Brunker v Perpetual Trustee Co (Ltd)[63] as authority for the argument that as Leonard never gave instructions to his solicitors to take the necessary steps to lodge the transfers and never showed any intention to the contrary before his death, it is now too late to order the administrator to lodge the transfers.[64]

50 In Corin v Patton, Mason CJ and McHugh J gave this account of the famous case of Milroy v Lord:

The long line of earlier authority concerning voluntary conveyances and transfers culminated in the judgments in Milroy v. Lord. In that case Thomas Medley executed a voluntary deed purporting to assign certain shares to Samuel Lord, to be held by him on trust for Andrew Milroy and his wife. The shares could be transferred only by the making of appropriate entries in the books of the company, but no such action took place. However, Lord held a general power of attorney from Medley authorizing him to transfer the shares, and a further power of attorney authorizing him to receive the dividends on the shares. The dividends were received by Lord for the following three years, until Medley's death. The issue for decision was whether or not Medley had effected a gift of the shares in equity prior to his death.

The Court held that the gift was imperfect. Knight Bruce L.J. held that the instrument of transfer was insufficient to constitute Medley a trustee of the shares. Nor did it amount to a specifically enforceable contract. Rather, Medley left imperfect and incomplete that which he might have perfected and completed by making a transfer of the shares so as to confer legal ownership upon Lord. Turner L.J. stated:

I take the law of this Court to be well settled, that, in order to render a voluntary settlement valid and effectual, the settler [sic] must have done everything which, according to the nature of the property comprised in the settlement, was necessary to be done in order to transfer the property and render the settlement binding upon him. He may of course do this by actually transferring the property to the persons for whom he intends to provide, and the provision will then be effectual, and it will be equally effectual if he transfers the property to a trustee for the purposes of the settlement, or declares that he himself holds it in trust for those purposes; ... but, in order to render the settlement binding, one or other of these modes must, as I understand the law of this Court, be resorted to, for there is no equity in this Court to perfect an imperfect gift. The cases I think go further to this extent, that if the settlement is intended to be effectuated by one of the modes to which I have referred, the Court will not give effect to it by applying another of those modes. If it is intended to take effect by transfer, the Court will not hold the intended transfer to operate as a declaration of trust, for then every imperfect instrument would be made effectual by being converted into a perfect trust.

Accordingly, the purported transfer could not be supported as a declaration of trust, and failed as a transfer because the powers of attorney did not suffice to permit Lord to execute a transfer in his favour without express directions from Medley, which Medley had not given.

Two propositions emerged from the observations of Turner L.J. First, the donor must have done everything necessary to be done, according to the nature of the property, in order to transfer the property and render the gift binding. Secondly, if the gift was intended to have been effectuated by one means, the court will not give effect to it by another means. However, as the later cases were to reveal, there was an element of uncertainty in the first proposition. Did it require that the donor must have done himself all that was necessary to be done in order to transfer the property or did he only have to do all that was necessary to be done by him in order to achieve that result?[65]

51 Mason CJ and McHugh J then traced the authority of Milroy v Lord through the important decision of the High Court concerning, particularly, gifts of land under the operation of Torrens title legislation (such as the TLA) in Anning v Anning,[66] Brunker v Perpetual Trustee Co Ltd, Norman v Federal Commissioner of Taxation,[67] Cope v Keene,[68] Olsson v Dyson[69] and Taylor v Deputy Federal Commissioner of Taxation,[70] as well as the decision of the English Court of Appeal in Re Rose.[71] It is not now necessary to give a complete account of the debate that those cases reveal between the views of Griffith CJ and Isaacs J in Anning v Anning and the views of Dixon J in Brunker v Perpetual Trustee Co Ltd. It is enough to state the conclusions reached:

Accordingly, we conclude it is desirable to state that the principle is that, if an intending donor of property has done everything which it is necessary for him to have done to effect a transfer of legal title, then equity will recognize the gift. So long as the donee has been equipped to achieve the transfer of legal ownership, the gift is complete in equity. "Necessary" used in this sense means necessary to effect a transfer. From the viewpoint of the intending donor, the question is whether what he has done is sufficient to enable the legal transfer to be effected without further action on his part.[72]

52 In relation to the operation of the TLA, which provides that until registration, an instrument of transfer shall be ineffectual to pass an estate or interest in the land,[73] Mason CJ and McHugh said:

Although that injunction applies to equitable as well as legal estates, it "does not touch whatever rights are behind" the instrument...Where a donor, with the intention of making a gift, delivers to the donee an instrument of transfer in registrable form with the certificate of title so as to enable him to obtain registration, an equity arises, not from the transfer itself, but from the execution and delivery of the transfer and the delivery of the certificate of title in such circumstances as will enable the donee to procure the vesting of the legal title in himself. Accordingly, s. 41 [of the Real Property Act 1900 (NSW)] does not prevent the passing of an equitable estate to the donee under a completed transaction.[74]

53 In Corin v Patton, Mr and Mrs Patton were joint registered proprietors of land in New South Wales. Mrs Patton, who was terminally ill, executed a transfer of her interest in the land to her brother, Mr Corin, to be held on trust for her. Mrs Patton died before the transfer was registered and the certificate of title to the land was held at all times by a mortgagee. The question was whether the joint tenancy between Mr and Mrs Patton was severed by the 'gift' of the land to her brother or whether by right of survivorship Mr Patton was entitled to be registered as sole registered proprietor. In addition to expressing views as to the meaning and application of the doctrine attributed to Milroy v Lord, Mason CJ and McHugh J concluded in relation to the question whether Mrs Patton did all that it was necessary for her to do in order to effect a transfer that there were two obstacles. First, the certificate of title remained throughout with the mortgagee and Mrs Patton took no steps to arrange for its production for the purposes of registration. Secondly, it is not clear whether or not the solicitor engaged by Mrs Patton, Mr Smallwood, held the executed transfer on Mrs Patton's instructions or those of Mr Corin. They concluded:

Whether or not it is correct to say that the production of a certificate of title is "necessary" to achieve registration of a transfer of Torrens system land, it is apparent that a gift of such land cannot be regarded as complete in equity while the donor retains possession or control of the certificate of title....That is because it can scarcely be said that the donor has done everything necessary to be done by him if he has retained the certificate of title, by virtue of the possession of which the gift might well be thwarted.

In the present case Mrs. Patton gave no authority for the mortgagee bank to hand the certificate of title to Mr. Corin for the purposes of registration. At least, if she authorized Mr. Smallwood to obtain the certificate, there is no clear evidence to that effect.

54 Ultimately, Mason CJ and McHugh J ruled that Mrs Patton failed to pass the equitable property in the land to Mr Corin and because the gift was incomplete, Mrs Patton could have recalled the transfer at any time. Accordingly, the joint tenancy was not severed.

55 A critical point of distinction between the aforementioned cases and the case at hand is the presence of a third party, or lack thereof, in the relevant transactions. The three cases cited above and relied upon by the Contradictor involve gratuitous transfers to a third party, that is, a gift of an interest in land. As Counsel for the plaintiff elucidated in his oral submissions, these cases concern what must be done to transfer title to a volunteer other than the registered proprietors.[75] No such third party exists in this proceeding. Indeed, in this case the transferors and transferees are the same people - Leonard and Austral Wilson. In short, the relevant transactions in this case were effected within a closed circle. Accordingly, the authorities relied upon by the Contradictor are distinguishable from the current proceeding to the extent that the Contradictor relies upon them. This case is not one where equity is asked to complete an imperfect gift.

56 It is also important to the application of the rule in Milroy v Lord to identify a gift, in the sense, relevantly to this case, of a voluntary disposition of an interest in land. That is not what has occurred here. What has occurred by the execution of the transfers of land in this case is that each joint tenant has (at least by implication) agreed to relinquish the beneficial interest of a joint tenant of the common property, including the right of accretion by survivorship, in return for the share of a tenant in common. Just as in the case of an agreement between joint tenants to sever their joint tenancy, the mutual 'relinquishment' of the joint interest in the land and the right of survivorship constitutes valuable consideration.[76] In determining whether a party to a transaction has given valuable consideration, equity looks to the substance, not the mere form.[77] The correct characterisation of the transaction, however, involves no gift. There is no voluntary disposition of land. The reason that the mode of effecting a severance in Corin v Patton did not work is that it turned on an attempt to voluntarily dispose of an interest in the land to Mr Corin, who otherwise had no interest in the land in question.

Was it within Leonard's power and authority to have the transfers registered, thus severing the joint tenancies at law?

57 The Contradictor argued that Leonard did not take all the steps necessary to enable registration.[78] This argument proceeds on the basis that Leonard instructed his solicitors not to send the letter dated 23 July 2008, which requested the ANZ Bank to endorse orders to register on the severance transfers and to make the relevant titles available for registration.[79] Accordingly, the Contradictor's argument goes, Leonard never officially sought, and thus obtained, the ANZ Bank's approval regarding the transfers and the provision of the certificate of title during his lifetime.

58 The Contradictor argues that it is now too late to lodge the transfers, referring to the fact that the instrument of transfer never reached the intended donee during the registered proprietor's lifetime,[80] as in the case of Brunker v Perpetual Trustees Co (Ltd). It is then further argued that Leonard did not intend any dealing with the titles to the Properties other than by registration of the transfers. As such, Leonard intended that there would be no change in the status of ownership other than by a change to the register.[81]

59 Obtaining the ANZ Bank's approval and provision of certificate of title is only relevant in the context of dealing with third parties. Indeed, this was the key issue in the cases involving voluntary transactions, such as that of Brunker v Perpetual Trustee Co (Ltd). This is not relevant to the current proceeding as the only people concerned here are the registered proprietors themselves. There is nothing to stop the registered proprietors from retrieving their own certificate of title.[82] Furthermore, the instruments of transfer had been submitted (presumably by Kings Legal Services) to the State Revenue Office for stamping and had been stamped as exempt from duty and were already in the hands of the transferees legal representative at the time of Leonard's death (since the transferees and transferors are the same people). If, as I have concluded, there was a severance in equity, it is well within the power and authority of Leonard, and his administrator standing in his shoes, to lodge them for registration.

60 Leonard's and Austral's estates, now administered by the administrator appointed by the Court, Mr Dillon, hold the instruments of transfer, stamped exempt from duty, in registrable form and have the right to require the mortgagee, if any, to produce the certificates of title (which under the practice in Victoria it would do by endorsing orders to register on each transfer and make the certificates of title available to the Registrar of Titles) so as to enable the administrator to obtain registration. In these circumstances, an equity arises, not from the transfers themselves, but from the execution and delivery of the transfers and the right to require delivery of the certificates of title. This enables Leonard's and Austral's estates to procure the vesting of the legal title. It is a completed transaction.[83]

61 As to the argument that Leonard only intended to change the status of ownership through a change in the register, this is contrary to one of the principles of severance of joint tenancy outlined above. As Kaye and McGarvie JJ noted in Pfeiffle, where there is a mutual intention to sever a joint tenancy, equity will give effect to that intention immediately. It is also contrary to the known facts, in particular that steps were taken to register the transfers (stamping them as exempt from duty) and drafting a letter to the mortgagee Bank, but not sending only because of a concern for the 'sensitive nature of his relationship with the ANZ Bank'. This gives no indication that Leonard, either for himself or as attorney for Austral, had any second thoughts and resiled from intending to effectuate the severance by lodging the transfers at the appropriate time. It merely shows a concern not to upset the relationship with the Bank at that time.

62 The cases of Mischel Holdings and Pfeiffle provide a closer analogy to the factual matrix at hand. In both cases, the registered proprietors were joint tenants and, in both cases, the relevant transactions included only the registered proprietors. As such, there was no dealing or voluntary transaction involving a third party. In Mischel Holdings, Mrs Mischel and Mischel Holdings Pty Ltd were joint tenants of a property in St Kilda. The property was sold a few months before Mrs Mischel died and Mrs Mischel's proceeds from the sale were placed into the trust account of a solicitor. The issue for determination in that case was whether the joint tenancy was severed between Mrs Mischel and Mischel Holdings Pty Ltd prior to her death, such that she was a tenant in common in equity as at the date of her death.

63 The Court of Appeal upheld the primary judgment and found that the joint tenancy was severed by the prior agreement or conduct between the parties. Any question of consideration was irrelevant to the determination of tenancy in common in equity.[84]

64 In Pfeiffle, the Full Court considered an agreement between a husband and wife, which had been approved by the Family Court, to settle their respective property claims. Each party acknowledged in that agreement that the other was legally and equitable entitled to a one half interest in each of their properties and that the properties should be sold upon the happening of specified events, and upon completion of the sale, the proceeds should be divided equally. The issue for determination in that case was whether, upon the wife's death, the husband held the title to the properties on trust for himself and the estate of his wife as tenants in common. The Full Court upheld the appeal and declared that the interests in the properties were held as tenants in common.

65 These cases demonstrate that where the relevant transactions take place between the registered proprietors themselves, and no third parties are involved, equity favours a tenancy in common if intention of severance of joint tenancy can be shown. It follows that in this case, as the transactions took place between Leonard and Austral themselves, a tenancy in common in equity is found to be established.

66 As to the question of Austral's intention, it is undisputed that the instrument of power of attorney gave Leonard authority. The Contradictor has argued that although the power of attorney grants Leonard the authority to effect the severance transfers, the same instrument does not demonstrate Austral's intention to do so. This argument is fallacious; it defeats the very purpose of executing a power of attorney. Austral lacked the legal capacity to form an intent to enter into a contract and, accordingly, it fell on Leonard to do the things she could not do by herself, by virtue of the enduring power of attorney. To say that the power of attorney does not demonstrate Austral's intention renders the instrument of power of attorney ineffective. Accordingly, the Contradictor's submission is rejected.

Did Leonard act lawfully and within the scope of his authority as attorney?

67 The Powers of Attorney Act 2014 (Vic) had not commenced at the relevant time, and the transitional provisions in s 142 of that Act do not retrospectively apply the rules about improper transactions in pt 6 div 1 of the Act. Therefore, it is the former pt XIA of the Instruments Act 1958 (Vic) and the general law of fiduciary duties that apply to determine whether any transaction entered by Leonard Wilson as attorney was lawful.

68 An attorney stands in a fiduciary relationship with the donor of the power.[85] Fiduciaries owe two fundamental duties:

(a) to avoid a situation of conflict of interest, and

(b) to account for any benefit or gain obtained or received by reason of or by use of his fiduciary position or of opportunity or knowledge resulting from it.[86]

69 The plaintiff maintains that in executing the severance transfers, Leonard was neither in a situation of conflict of interest, nor did he receive any unauthorised benefit because:

(a) the scope of any fiduciary duty must accommodate itself to the particulars of the underlying relationship, so that it is consistent with and conforms to the scope and limits of that relationship.[87] It must be moulded according to the nature of the relationship and the facts of the case.[88] In this case those facts are:

(i) the relationship of joint tenancy subsisting between Leonard and Austral, which was inherently capable of unilateral destruction by one or other of the joint tenants;

(ii) the unchangeable nature of Austral's will, which presupposed that she would die owning real property capable of being devised;

(iii) that severance of the joint tenancies was the only way of ensuring that the presupposition in Austral's will would be honoured; and

(iv) the declaration in cl 14.A of Leonard's will - contemporaneous with the execution of the transfers - that explained the basis on which he acted;

(b) unless and until the order of deaths of the registered proprietors could be known, severance of the joint tenancies did not advantage one proprietor over the other. Each proprietor gave up their right of survivorship; but each gained an equal interest as tenant in common that could be devised by will. For that reason, use of a power of attorney to sever a joint tenancy could not of itself give rise to a conflict of interest. In that respect it is unlike, for example, the use of a power of attorney to make a gratuitous transfer to a stranger;

(c) even without use of the power of attorney, it remained open to Leonard unilaterally to sever the joint tenancies, for example by transfer of his interest to himself.[89] In a passage approved many times in Australia,[90] in Williams v Hensman, Page Wood V-C explained that:

The right of each joint-tenant is a right by survivorship only in the event of no severance having taken place of the share which is claimed under the jus accrescendi. Each one is at liberty to dispose of his own interest in such manner as to sever it from the joint fund - losing, of course, at the same time, his own right of survivorship.[91]

(d) The relationship between joint tenants is not itself fiduciary, and Austral's interest as joint tenant was always vulnerable to unilateral severance. Put another way, no harm to Austral's interests arose from any misuse of Leonard's fiduciary position as attorney; it arose (if at all) from the very nature of joint tenancy;

(e) in using the power of attorney to make good the presupposition in Austral's will, Leonard was acting in favour of her interests, and not adversely to them. In particular, the proper characterisation of Leonard's motivation for acting is not to be drawn simply from a retrospective projection from the now-known order of his and Austral's deaths;

(f) the circumstance that Leonard's will made different bequests than Austral's will cannot invalidate his exercise of the power of attorney. Leonard was under no fiduciary or other obligation to make a will in the same terms as Austral's. He and Austral did not agree to make mutual wills.[92] Even if they did so, that very agreement to make mutual wills would have severed the joint tenancies in equity.[93]

70 The Contradictor argues that the draft letter dated 23 July 2008 to the ANZ Bank is evidence of Leonard acting in self-interest.[94] The thrust of this argument is that Leonard's intention of not wanting 'his share of [the] properties to fall into his wife's hands' is evidence that he had in his mind to defeat the operation of survivorship if he died first.[95] Thus, Leonard acted in conflict of interest. The interests in conflict were his own property interests and with regard to his prospective estate and the corresponding interests of Austral.[96]

71 The phrasing in the draft letter dated 23 July 2008 might be taken to demonstrate that Leonard acted in his own self-interest. However, it is entirely unclear whether these words are attributable to Leonard. They are a statement by Kings Legal Services in a draft letter never sent. They are not properly a previous representation of Leonard's. They are a conclusion regarding Leonard's motives made by someone other than Leonard. It does not appear from the letter that those were the exact words or even the exact intention of Leonard. Rather, it seems to be a case of unfortunate phrasing by the author of the draft letter. Aside from the letter, there is no other evidence of Leonard having acted improperly. Indeed, at the time Leonard made his will no one could have known with certainty as to who would die first and, subsequently, who would benefit from the right of survivorship. Nevertheless, given Austral's poor health and the fact that she was five years older than Leonard, it could have been reasonably believed that Austral would die first.

72 Austral's will presupposes that, at the time of her death, she would hold real property capable of being devised and the only way to honour Austral's will would have been to sever the joint tenancies. If Austral had died first, as could be reasonably believed from the circumstances at the time, Leonard stood to gain more from maintaining the joint tenancies than from severing it, as after Austral's death her interest in the Properties would pass to Leonard by right of survivorship. This, however, would have meant that her interests would not be devised as set out in her will.

73 It follows that by severing the joint tenancies, Leonard effectively guaranteed that half of their interests in the Properties would fall into Austral's estate, thus allowing them to be devised as per her will. It is only with the benefit of hindsight that one can say that Austral's survivorship and the severance of the joint tenancies affected her estate disproportionately. Accordingly, the Contradictor's argument is dismissed.

74 In my opinion, Leonard's severance of the joint tenancies was valid. The severance transfers were effective to sever the joint tenancies in equity, with the effect that Leonard and Austral became tenants in common in equal shares and the transfers should be registered so as to sever the joint tenancies at law.

75 I will ask the plaintiff to submit draft orders for consideration.

GEOFFREY JOHN DILLON (who is sued as the administrator of the Will and Estate of LEONARD CHARLES WILSON, deceased)

SUE-MARTINE MARIE WILSON (both personally and as the former executor and trustee of the Estate of Leonard Charles Wilson and one of the executors and trustees named in the Will of Austral Jean Wilson deceased)

JOY-MICHELLE PATRICIA WILSON (both personally and as the former executor and trustee of the Estate of Leonard Charles Wilson and one of the executors and trustees named in the Will of Austral Jean Wilson deceased)

JOHN CHARLES WILSON (both personally and as the former executor and trustee of the Estate of Leonard Charles Wilson and one of the executors and trustees named in the Will of Austral Jean Wilson deceased)

GEOFFREY JOHN DILLON (who is sued as the administrator of the Will and Estate of AUSTRAL JEAN WILSON, deceased)

[1] By order made on 7 December 2018, Justice McMillan referred the hearing and determination of this proceeding to me pursuant to r 77.05 of the Supreme Court (General Civil) Procedure Rules 2015 (Rules).

[3] Order of McMillan J in proceeding S CI 2016 00808; Exhibit GW-2 to the affidavit of Graeme Leonard Wilson made 1 August 2018 (Graeme's affidavit).

[4] Austral Jean Wilson v Dillon, proceeding S CI 2013 01651, commenced on 4 April 2013.

[5] Sue-Martine Marie Wilson v Dillon, proceeding S CI 2013 01563, commenced on 27 March 2013 and Joy-Michelle Patricia Wilson v Dillon, proceeding S CI 2016 05283, commenced 27 March 2016.

[6] Janine Rhebina Roostan v Dillon, proceeding S CI 2017 04801 and Lynette Dawn Edwards v Dillon, proceeding S CI 2017 04802, both commenced on 27 November 2017.

[7] Re Beddoe, Downes v Cottam [1893] 1 Ch 547; see also Wales v Wales [2014] VSCA 101.

[9] By application under s 15 of the A&P Act calling on Graeme, John and Joy, in effect, to bring Austral's will into Court and renounce probate.

[10] The conference was ordered pursuant to s 48(2)(d) of the Civil Procedure Act 2010 (Vic) for the purpose of considering the most cost effective and efficient means of conducting the administration proceeding and bringing it to trial.

[11] By order made on 30 May 2018, Justice McMillan referred the hearing and determination of the administration proceeding to me pursuant to r 77.05 of the Rules.

[13] In re Burton, Danby v Burton [1901] WN 202, referred to in Nangus Pty Ltd v Charles Donovan Pty Ltd (in liquidation) [1989] VicRp 17; [1989] VR 184, 185, [40]-[45] (Young CJ).

[14] Transcript of Proceedings, Wilson v Dillon (as administrator of the Will and Estate of Leonard Charles Wilson) (Supreme Court of Victoria, S ECI 2018 00792, Derham AsJ, 10 December 2018) 2 ('Transcript of Proceedings').

[15] Sworn on 1 August 2018 (Graeme's affidavit).

[16] Sworn on 30 November 2018 (Christian's affidavit).

[17] Sworn on 8 November 2018 (Mr Dillon's affidavit).

[19] Exhibit GW-4 to Graeme's affidavit, [8].

[20] Affidavit of Graeme Wilson at [2], Exh GW1.

[25] Exhibit GJD-2 to the affidavit of Mr Dillon.

[26] Exhibit GRK-4 to the affidavit of Geoffrey Ronald King made 7 December 2018.

[27] Exhibit GRK-5 to the Affidavit of Geoffrey Ronald King made 7 December 2018.

[28] In particular the letter dated 14 September 2015 from Ronald Segal & Associates to MST Lawyers; Matthews v SPI Electricity Pty Ltd (Ruling No 35) [2014] VSC 59, [37], [41].

[31] Second Defendant's Submissions [21].

[32] That the reason for the severance is as quoted in the draft letter dated 23 July 2008 from Kings Legal Services to the ANZ Bank.

[33] Graeme Leonard Wilson, 'Submissions of the Plaintiff', Submission in Wilson v Dillon (as administrator of the Will and Estate of Leonard Charles Wilson), S ECI 2018 00792, 2 November 2018, [2] ('Plaintiff's Submissions').

[34] Sue-Martine Marie Wilson, 'Submissions of the Second Defendant', Submission in Wilson v Dillon (as administrator of the Will and Estate of Leonard Charles Wilson), S ECI 2018 00792, 23 November 2018, [11] ('Second Defendant's Submissions').

[35] [1862] EngR 951; (1862) 45 ER 1185 (Milroy v Lord).

[36] (1990) 169 CLR 540 (Corin v Patton).

[37] See Mendes da Costa, 'Co-ownership under Victorian Land Law' [1961] MelbULawRw 20; (1961) 3 Melbourne University Law Review 137, 149-51; Re Murdoch and Barry (1975) 64 DLR (3rd) 222, 224-5.

[38] Barry v Heider [1914] HCA 79; (1914) 19 CLR 197; Corin v Patton (1990) 169 CLR 540, 560 (Mason CJ, McHugh J); Mischel Holdings Pty Ltd (in liq) v Mischel [2013] VSCA 375, [61] fn 39; Sacks v Klein [2011] VSC 451.

[39] Delehunt v Carmody [1986] HCA 67; (1986) 161 CLR 464, 470; Sacks v Klein [2011] VSC 451, [25(2)].

[40] Delehunt v Carmody [1986] HCA 67; (1986) 161 CLR 464, 473; Sacks v Klein [2011] VSC 451, [25(2)].

[41] [1861] EngR 701; (1861) 70 ER 862, 867. See Corin v Patton (1990) 169 CLR 540, 546-7 (Mason CJ and McHugh J).

[42] (1990) 169 CLR 540, 546 (Mason CJ and McHugh J).

[43] [2013] VSCA 375, [62].

[44] [1991] VicRp 3; [1991] 1 VR 19, 34 (Ormiston J) ('Pfeiffle').

[45] [1983] 1 NSWLR 308, 314 ('Abela').

[46] (1990) 169 CLR 540, Mason CJ and McHugh J (547-8), Brennan J (565-6), Deane J (584) and Toohey J (591) agreeing.

[47] [1975] Ch 429, 439, where Lord Denning said that it is sufficient 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.

[49] See Corin v Patton (1990) 169 CLR 540, 562 (Mason CJ and McHugh J).

[50] [1983] 1 NSWLR 308.

[52] Burgess v Rawnsley [1975] 1 Ch 429, 446.

[53] Transcript of Proceedings, 10; Second Defendant's Submissions 3-4.

[54] Pfeiffle [1991] VicRp 3; [1991] 1 VR 19, 28 (Kaye J) (emphasis added).

[56] Ibid 24-5 (Kaye J), 29-30 (McGarvie J), 35 (Ormiston J).

[57] Williams v Hensman (1861)70 ER 862, 867; Abela [1983] 1 NSWLR 308, 315; Mischel Holdings [2013] VSCA 375, [62]-[64].

[58] Pfeiffle [1991] VicRp 3; [1991] 1 VR 19, 24-5 (Kaye J), 29-30 (McGarvie J), 35 (Ormiston J).

[59] Mischel Holdings [2013] VSCA 375, [66].

[60] Bevan v Webb [1902] 2 Ch 59, 77; Motel Marine Pty Ltd v IAC (Finance) Pty Ltd [1964] HCA 7; (1964) 110 CLR 9, 13 (Kitto, Taylor and Owen JJ).

[61] Barry v Heider [1914] HCA 79; (1914) 19 CLR 197, 208 (Griffith CJ); Corin v Patton (1990) 169 CLR 540, 560 (Mason CJ and McHugh J). Cf Wright v Gibbons [1949] HCA 3; (1949) 78 CLR 313, 327 (Rich J).

[63] [1937] HCA 29; (1937) 57 CLR 555.

[64] Second Defendant's Submissions [17].

[65] Corin v Patton (1990) 169 CLR 540, 550 (footnotes omitted); see the analysis in Meagher, Gummow & Lehane's Equity Doc trines and Remedies, 5th ed, JD Heydon, MJ Leeming and PG Turner, 2015 LexisNexis Butterworths, [6-080].

[66] [1907] HCA 13; (1907) 4 CLR 1049.

[67] [1963] HCA 21; (1963) 109 CLR 9.

[69] [1969] HCA 3; (1969) 120 CLR 365.

[71] [1952] Ch 499.

[72] Corin v Patton (1990) 169 CLR 540, 559 (Mason CJ and McHugh J).

[74] Corin v Patton (1990) 169 CLR 540, 560 (Mason CJ, McHugh J); 566 (Brennan J) 582 (Deane J).

[76] Corin v Patton (1990) 169 CLR 540, 574 (Deane J).

[78] Second Defendant's Submissions [12]-[16].

[79] Exhibits GJD-1, GJD-2 to the Dillon affidavit.

[80] Second Defendant's Submissions [17].

[82] See s 86 of the TLA.

[83] Corin v Patton (1990) 169 CLR 540, 560 (Mason CJ, McHugh J); 566 (Brennan J) 582 (Deane J).

[84] Mischel Holdings [2013] VSCA 375, [99]-[100].

[85] See, eg, Ash v Ash [2016] VSC 577; Ash v Ash (No 2) [2017] VSC 569.

[86] Chan v Zacharia [1984] HCA 36; (1984) 154 CLR 178, 198-9 (Deane J).

[87] Howard v Commissioner of Taxation [2014] HCA 21; (2014) 253 CLR 83, [34] (French CJ and Keane J).

[88] Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64; (1984) 156 CLR 41, 102 (Mason J).

[89] Anderson v Anderson [2017] NSWCA 131, [54]-[62] (Leeming JA).

[90] See, eg, Corin v Patton (1990) 169 CLR 540, 546-7 (Mason CJ and McHugh J); Mischel Holdings [2013] VSCA 375, [62] (Ashley, Priest and Santamaria JJA).

[91] [1861] EngR 701; (1861) 70 ER 862, 867.

[92] Cf Birmingham v Renfrew [1937] HCA 52; (1937) 57 CLR 666.

[93] Re Wilford's Estate (1879) 11 Ch D 267; Re Heys [1914] P 192.

[94] Exhibit GJD-2 to the Dillon affidavit.

[95] Ibid; Second Defendant's Submissions [20].

[96] Second Defendant's Submissions [21].