Noelle Elizabeth Hillman v Lynda Box, Debrah Box and Skye Box as Executors of the Will of Graeme William Box

• Jurisdiction: Australian Capital Territory
• Judge: Refshauge J
• Judgment Date: 31 January 2011
• Date: 31 January 2011
• Court: Supreme Court of ACT
• Docket Number: No. SC 564 of 2010

[2011] ACTSC 10

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Judge:

Refshauge J

No. SC 564 of 2010

Between:

Noelle Elizabeth Hillman

Plaintiff

and

Lynda Box, Debrah Box and Skye Box as Executors of the Will of Graeme William Box

Defendants

Counsel for the plaintiff: Dr D Hassall

Counsel for the defendants: Dr C Ward

Hillman v Box and Ors as the Executors of the Will of Box [2010] ACTSC 153

Re Robertson (1943) 44SR (NSW) 103

Wright v Gibbons (1949) 78 CLR 313

Corin v Patton (1990) 169 CLR 540

Abela v Public Trustee [1983] 1 NSWLR 308

Goyal v Chandra (2006) 68 NSWLR 313

Barham v Barham [2010] NSWSC 503

Burgess v Rawnsley [1975] Ch 429

Calabrese v Miuccio [No 2] [1985] 1 QdR 17

Breskvar v Wall (1971) 126 CLR 376

Frazer v Walker [1967] 1 AC 569

National Trustees, Executors and Agency Company of Australia Ltd v Barnes (1941) 64 CLR 268

Prince v Cooper (1853) 16 Bean 545; 51 ER 890

London and County Banking Co v Dover (1879) 11 Ch D 204

Tulloch v Tulloch [1867] LR 3 Eq 574

Re Robinson; Pickard v Wheater (1885) 31 Ch D 247

Farrow Mortgage Services Pty Ltd (In Liq) v Centre Line Corporation Pty Ltd & Ors (VSC, Beach J, 5101 of 1993, 31 May 1995, unreported)

Murray v Geoffroy (1918) 18 SR (NSW) 259

Davies v Wright (1886) 32 Ch D 220

Brewer v Square [1892] 2 Ch 11

Re Hurley's Settled Estate (1920) 37 WN (NSW) 88

Partition Act 1900 (NSW)

Trustee Act 1898 (NSW), s 35

Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW), s 4(3)

Family Provision Act 1969 (ACT)

Land Titles Act 1925 (ACT), ss 73, 135, 136, 170

Powers of Attorney Act 2006 (ACT), s 60

Court Procedures Rules 2006 (ACT), rr 781–3

Civil Law (Sale of Residential Property) Act 2003 (ACT), ss 9, 10

Civil Law (Property) Act 2006 (ACT), s 237, 244

Trustee Act 1925 (ACT), ss 71(n), 79

Chancery Procedure Act 1852 (UK), s 55

Rules of the Supreme Court 1883 (UK), Order 51 Rule 1

De Groot, J K and Nickel, B W. Family Provisions in Austalia (LexisNexis Butterworths: Sydney, 2007) 3 ^rd ed.

Walker, D M The Oxford Companion to Law (Clarendon Press: Oxford, 1980)

REAL PROPERTY — Sale by the Court — Need to avoid possible prejudice to competing parties — appointment of Registrar to execute conveyance — Trustee Act 1925 (ACT) s 79.

REAL PROPERTY — Sale by the Court — circumstances when court should order sale — conduct of the sale.

1 This is a proceeding to resolve disputed issues about an estate of the deceased, Graeme William Box, in respect of which estate the plaintiff has made application for order under the Family Provision Act 1969 (ACT), and for other orders.

2 The defendants are sued as executors of the estate of the deceased, though in the original and amended statement of claim there was no pleading to that effect. Probate was alleged to have been granted on 2 March 2010 of a will of the deceased, said to have been made on 15 April 2009. There is no information before me as to whether the defendants are all, or some of them and with or without others, the beneficiaries under the will.

3 On 24 November 2010, I made interlocutory orders to give effect to what I considered was the desire of all parties to these proceedings that part of the estate, namely a property in the ACT suburb of Spence (the Spence property) and a property in Queanbeyan (the Queanbeyan property), be sold so costs associated with the properties, including the loan costs secured by a mortgage for which the plaintiff was continuing to be liable, would cease accruing.

4 The orders I then made have turned out to provide some difficulties. Initially, I suggested that the parties endeavour to resolve the issues by negotiation and present to me an agreed proposed order that I could make. Regrettably, the parties were not able to come to any agreement and so it falls to me to decide between them again.

The background

5 The broad circumstances are set out in my earlier reasons for decision: Hillman v Box and Ors as the Executors of the Will of Box [2010] ACTSC 153 (at [17] to [20]).

6 On 8 December 2010, I ordered, in relation to the property at Spence (and Queanbeyan) as follows:

4. I direct, as to the properties at Spence ACT (the Spence property) and Queanbeyan (the Queanbeyan property), that:

• (a) before the defendants enter into any contract for the sale of those properties, or either of them, they give to the plaintiff, by service on her solicitors, seven clear days notice of their intention to enter into such a contract together with a copy of the proposed contract showing all terms including as to price and finance in them;

• (b) in the event that the plaintiff makes no application to the Court as a result of the notice of intention to enter into a contract for the sale of these properties, or either of them, or no order is made on such an application, the defendants be at liberty to enter into such a contract or contracts subject to this order;

• (c) where the defendants have contracted to sell the Spence property, they shall submit to the plaintiff a Transfer in registrable form no later than 14 days before the date of completion of the sale;

• (d) where the defendants have contracted to sell the Queanbeyan property, the plaintiff submit to the defendants no later than seven days prior to the date of completion a Withdrawal of Caveat Dealing Number [provided] in registrable form;

• (e) if the plaintiff does not sign the Transfer submitted to her within seven days after it is submitted to her (or such further time as the defendants may allow) the Registrar shall have power to execute the Transfer as Registrar and that shall be as effectual as if the plaintiff had executed the Transfer herself;

• (f) on completion of the sale of the properties, or either of them, the defendants shall deduct from the proceeds of sale:

  • (i) payment of all moneys necessary to discharge any encumbrances on the property or properties;

  • (ii) any agent's commission and disbursements payable;

  • (iii) the proper costs and disbursements payable to any solicitor acting for the estate in the sale; and,

  • (iv) the payment of any moneys necessary to enable an adjustment of rates to the date of settlement.

The balance shall be paid to the defendants' solicitors' trust account to be held on an interest bearing deposit pending further order.

The problems

7 The orders I made presupposed that the contract for the sale of the Spence property and the subsequently required Memorandum of Transfer of title to the property could be signed by persons whose signature as transferors would be accepted by the Registrar General so that the sale could be completed and the transfer of title registered. For reasons that appear below, that was an assumption I was not entitled to make.

8 The proposed conveyance of the Spence property raises some particular issues in the context of the principal proceedings. In order to appreciate these, it is desirable to describe the circumstances in some detail.

9 The Spence property was purchased, it is alleged (and there seems no real dispute about that), by the deceased and the plaintiff as joint tenants. It is, it appears, still registered in the names of the plaintiff and the deceased as joint tenants.

10 Described by Roper J (as his Honour then was) in Re Robertson (1943) 44SR (NSW) 103 (at 105) as ‘the most important right of a joint tenancy’, the right of survivorship is poignantly relevant here. That right is what was described by Latham CJ in Wright v Gibbons (1949) 78 CLR 313 (at 323) as follows:

The interests of each joint tenant in the land held are always the same in respect of possession, interest, title and time. No distinction can be drawn between the interest of any one tenant and that of any other tenant. If one joint tenant dies his interest is extinguished. He falls out, and the interest of the surviving joint tenant or joint tenants is correspondingly enlarged.

11 It was described by Deane J in Corin v Patton (1990) 169 CLR 540 (at 575) this way:

When one joint tenant dies during the subsistence of the joint tenancy, his interest ceases: the interests of the remaining joint tenants expand by accretion. When there is but one survivor, the joint tenancy has run its course and the survivor becomes the full owner of the whole property. In that context, it is not surprising that one joint tenant cannot effectively assign at law his place in a continuing joint tenancy.

12 That is to say, when a joint tenant dies, his, her, or its interest devolves by operation of law, exclusive of the laws of testamentary devolution, upon the other joint tenant or joint tenants.

13 When, sometime before his death, the deceased and the plaintiff ceased to live together in a domestic relationship, they sought to separate their property interests. This led to the execution of a ‘Termination Agreement’. In this Agreement, the plaintiff is purported to have transferred ‘all her rights, title and interest in the Spence property’ to the deceased. Further, she executed a transfer, being a Memorandum of Transfer under s 73 of the Land Titles Act 1925(ACT) (the Land Titles Act), which, on registration, would have the effect of severing the joint tenancy and transferring the whole of the title to the Spence property to the deceased.

14 The execution of the Agreement and the signing of the transfer, without its registration, may have been sufficient to sever the joint tenancy: see Abela v Public Trustee [1983] 1 NSWLR 308 (at 314). It may, however, only have been an agreement to do so: Wright v Gibbons.

15 Given that the court has power, in an appropriate case, to restrain a joint tenant from severing a joint tenancy, as provided for in Goyal v Chandra (2006) 68 NSWLR 313 (and see Barham v Barham [2010] NSWSC 503), it may be that these proceedings have intervened before the tenancy is severed.

16 Nevertheless, the plaintiff...