Corin & Anor v Patton - [1989] HCATrans 197

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S230 of 1988
B e t w e e n -
JOHN JEFFREY CORIN and
JUDITH JONES
Appellants

and
RONALD JOHN PATTON
Respondent

MASON CJ

BRENNAN	J .
DEANE J TOOHEY J McHUGH J
Corin(2)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 5 SEPTEMBER 1989, AT 10.16 AM

C2T J. / 1 /HS

5/9 / 89

MR D.M.J. BENNETT, QC: May it please the Court, l aooear
with mv learned frined, MR P.E. KING, for the
appellant. <instructed bv Smallwood Cathcart)

MR B.C. OSLING!ON, QC: Mav it please the Court, I appear with
mv learned friend, MR D.L. DAVIES, for the

respondent. (instructed bv Rowlandson & Co)

MASON CJ: Mr Bennett.

MR BENNET!: If the Court pleases. Your Honours, I hand up an
outline of submissions. I have provided an original
and a copy for Your Honour the Chief Justice because
such is modern technology that the photocopy is much
clearer than the original.

MASON CJ: Than1< you. Yes.

MR BENNETT: If the Court pleases. In July 1974, when
Mrs Annette Patton was dying of cancer, her sole substantial asset was her interest as ioint tenant in a ,ouse with her husband and on that date she decided to sever the ioint tenancy and leave her

half interest to her four children. She did this bv

executing three documents: the first was a transfer
of her half interest under the REAL PROPERTY ACT
to her brother expressed to be in consideration of
his execution of a deed of trust: the second was a
deed of trust which she and the brother thereupon
executed, under which he agreed to hold the propertv
as bare trustee for her, and the third was a wiD. 1.eavin~ her
residual of·the estat~.virtuallv al1 of w~ich was
the ~alf interest, to ~he f~ur ~hildren.
The deed of trust itself recites that the whole

purpose was to sever the ioint tenancv, and that was the whole purpose of the transaction and there ts no
doubt at all in the face of the documents of her

intention. She died five days later. At that stage
there was still an unregistered mortgage to the

State Ban~ which held the certificate of title in
support of that mortgage and the question is whether

she succeeded in effectuating her unrevo1<ed intention
of severing the ioint tenancy prior to her death.
Now, the courts below relied on three arguments

to defeat her intention, two of them by wav of ratio,
one by way of obiter. The two by way of ratio, I am
told, were not really put to the courts but were, in

both cases, adopted by them. The third, by way of
obiter, is the one that seems to have been the main

argument below. The first argument which was used to
defeat the document was the one used by

Mr Justice McT~elland. He said,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Corin & Anor v Patton

Details

AGLC: Corin & Anor v Patton [1989] HCATrans 197
Case: [1989] HCATrans 197
Decision Date

CaseChat Overview and Summary

The case of *Corin & Anor v Patton* concerned an appeal to the High Court of Australia regarding the effectiveness of a deceased woman's attempt to sever a joint tenancy over her home. The deceased, Mrs Annette Patton, who was terminally ill, executed three documents in July 1974 with the intention of severing the joint tenancy she held with her husband. She transferred her half interest in the property to her brother, who simultaneously executed a deed of trust agreeing to hold the property as a bare trustee for her. She also executed a will leaving her residual estate, which comprised this half interest, to her four children. Mrs Patton died five days later, before the transfer was registered and while an unregistered mortgage to the State Bank, which held the certificate of title, remained outstanding. The central dispute was whether Mrs Patton had successfully severed the joint tenancy prior to her death.

The High Court was required to determine whether Mrs Patton's intention to sever the joint tenancy had been effectively carried out. Specifically, the Court had to consider the legal effect of the executed transfer and deed of trust in the context of the Real Property Act and the principles governing the completion of voluntary dispositions. The arguments presented below, which the appellant sought to overturn, focused on two main grounds. The first, adopted by McLelland J, was that the transaction created a situation where the brother held the equitable interest on trust for Mrs Patton, who in turn held it on trust for herself, thereby eliminating the need for the intermediate trustee and rendering the severance ineffective. The second ground, accepted by the Court of Appeal, was that Mrs Patton, as the ultimate beneficiary, retained the power to revoke the transaction, thus failing to meet the test for a completed gift or disposition.

The Court's reasoning addressed the requirements for a valid severance of a joint tenancy, particularly in the context of unregistered dealings with Torrens system land. The principles derived from cases such as *Milroy v Lord* and *Anning v Anning* were central to the determination. The Court considered whether Mrs Patton had done all that was necessary to be done on her part to effectuate the transfer of her equitable interest to her brother, such that the equitable interest would pass to him, and he would hold it on trust for her. The Court rejected the argument that the creation of a trust for herself eliminated the severance, finding that the intermediate trust for the brother was a necessary step in severing the joint tenancy. Furthermore, the Court examined the concept of revocation, concluding that once Mrs Patton had taken all necessary steps to divest herself of her equitable interest, she could not unilaterally revoke the transaction. The critical question was whether she had put the legal title beyond her own power to deal with it.

The High Court allowed the appeal, finding that Mrs Patton had taken all the necessary steps to sever the joint tenancy. The Court held that the transfer to her brother, coupled with the deed of trust, effectively passed the equitable interest to the brother, who then held it on trust for Mrs Patton. This constituted a valid severance of the joint tenancy, as Mrs Patton had done all that was necessary to be done on her part to divest herself of her interest and had put it beyond her power to recall. The Court determined that the existence of the unregistered mortgage and the retention of the certificate of title by the bank did not prevent the equitable severance from taking effect.

Orders