Barham v Barham

[2010] NSWSC 503

CITATION:	Barham v Barham [2010] NSWSC 503
HEARING DATE(S):	20 May 2010
JUDGMENT OF:	Ball J
EX TEMPORE JUDGMENT DATE:	20 May 2010
DECISION:	Application for an extension of interlocutory injunction granted on 12 April 2010 is dismissed. Plaintiff to pay Defendant's costs.
CATCHWORDS:	CONVEYANCING - Joint tenancy and tenancy-in-common - Severance of joint tenancy - Plaintiff claimed understanding not to sever - Balance of convenience against granting of an interlocutory injunction restraining severance
CATEGORY:	Procedural and other rulings
CASES CITED:	Goyal v Chandra (2006) 68 NSWLR 313
PARTIES:	Annette Terese Barham (Plaintiff) Helen Margaret Barham (Defendant)
FILE NUMBER(S):	SC 2010/87397
COUNSEL:	G M Colman (Plaintiff) G M McGrath (Defendant)
SOLICITORS:	Hunt & Hunt (Plaintiff) Hanson Lawyers (Defendant)

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IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BALL J

20 MAY 2010

2010/87397 ANNETTE TERESE BARHAM v HELEN MARGARET BARHAM

EX TEMPORE JUDGMENT

1 HIS HONOUR: In this case the plaintiff is the defendant's daughter. She is one of six children. The plaintiff and defendant own rural property at Dapto as joint tenants. The plaintiff seeks the continuation of an interlocutory injunction restraining registration by the defendant of the transfer in respect of the property which would have the effect of unilaterally severing the joint tenancy.

2 There is a dispute between the parties in relation to the precise circumstances in which they came to hold the property as joint tenants, which I do not need to resolve. However, it is relevant to observe that the defendant maintains that she had not understood until recently that the property was held by them as joint tenants. Originally, it was held by a family company controlled by the defendant. The defendant says it was her belief that the property had been subdivided and that her daughter owned one part and that she owned the other. The property is apparently valuable because it can be developed into residential land. The defendant says it was her intention to leave the property that she thought she owned to be divided among her other five children.

3 The plaintiff, on the other hand, says it was always the intention of the parties that the property would be held as joint tenants. The plaintiff has been using the property for some time to run a farm. She says that in 2006 the defendant suggested that she (the defendant) wanted to transfer the property to the plaintiff and an adjacent property to the plaintiff's brother. Subsequently, the plaintiff says, the defendant decided to retain a fifty per cent share in both properties as a joint tenant and that that is what happened.

4 The plaintiff relies on the decision of Justice Brereton in Goyal v Chandra (2006) 68 NSWLR 313 in support of her claim that she is entitled to restrain severance of the joint tenancy on a final basis. In that case, the plaintiff and the defendant were husband and wife. The husband acquired property which became the matrimonial home. Both spent money on the property. Subsequently, the husband transferred an interest in it to his wife as joint tenants. The husband later sought to sever the joint tenancy. His Honour said in that case at 323:

“I am satisfied that there is a serious question to be tried, that Dr Chandra knew of and encouraged an expectation on the part of Dr Goyal that if he transferred an interest as joint tenant to her, she would not, at least without his prior agreement, sever the joint tenancy by a voluntary act, and also that she knew of and encouraged Dr Goyal's reliance on that expectation in effecting the transfer, that it would in the circumstance be unconscionable for her to depart from that state of affairs, and accordingly that she was bound in equity to leave the joint tenancy intact.”

5 I am prepared in this case to assume on the basis of that decision that there is a serious question to be tried. However, I do not accept that the balance of convenience favours a continuation of the injunction. If the injunction is continued and if the defendant were to die before a final hearing the plaintiff would have succeeded in her claim without a final hearing. It may be true that the risk of that happening is not substantial. However, given the defendant's age I do not think that that risk can be discounted altogether.

6 In addition, although, as I have said, I think there is a serious question to be tried, I do not think that the claim can be described as strong. The plaintiff does not assert a contract to the effect that the joint tenancy would not be severed. In addition, it is not easy to see how the plaintiff will succeed in establishing a conventional or promissory estoppel on the basis of the evidence that she has filed and there must be a real question whether she would be entitled to succeed at final hearing without establishing one of those two things. That fact must also be taken into account in deciding whether to give interlocutory relief of the type claimed by the plaintiff.

7 On the other hand, if the plaintiff succeeds she would be entitled to an equitable remedy in the form of a constructive trust. I cannot see how she would be prejudiced if she were left with that remedy. In those it circumstances, I think the balance of convenience clearly favours the defendant.

8 The plaintiff’s application for an extension of the injunction is dismissed. I order that the plaintiff pay the defendant's costs of the application.

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