Real Property—Joint tenancy—Severance—Torrens system land—Memorandum of transfer from one tenant to trustee for herself executed and delivered to transferee—Certificate of title in possession of mortgagee—Death of transferor—Whether joint tenancy severed—Whether equitable interest alienated before death—Real Property Act 1900 (N.S.W.), s. 41—Conveyancing Act 1919 (N.S.W.), ss. 24, 96.
Decisions
MASON C.J. AND McHUGH J. The respondent, Ronald John Patton, and his wife were joint registered proprietors of land under the Real Property Act 1900 (N.S.W.). On about 6 July 1984 Mr Smallwood, a solicitor, received instructions to take the steps required to sever the joint tenancy. It is not altogether clear from whom those instructions were in fact received. Mr Smallwood prepared documents which he took on 12 July 1984 to the Pattons' house where Mrs Patton was terminally ill. John Jeffrey Corin, the first appellant, who was Mrs Patton's brother, also went to the house.
2. Mr Smallwood produced and explained the documents, which were a form of memorandum of transfer and a declaration of trust. They were then executed by Mrs Patton and Mr Corin and taken away by Mr Smallwood, who was to do what was necessary to complete the transaction. The certificate of title was held by the State Bank of New South Wales as unregistered mortgagee of the property. Mrs Patton took no action to procure the production of the certificate of title so as to enable the transfer to be registered. Mrs Patton died on 17 July 1984. She left a will in which she appointed Mr Corin and the second appellant, Judith Jones, as executors.
3. The instrument of transfer was in the prescribed form and expressed to be subject to the bank's mortgage. In the instrument the printed provisions concerning consideration had been deleted and the following words substituted: "In consideration of and pursuant to the terms of a Deed of Trust between the Transferor and Transferee of even date transfers her estate and interest as joint tenant in the said land to (John Jeffrey Corin)." The deed of trust stated, so far as is relevant:
"WHEREAS: 1. The beneficiary is the registered proprietor as joint tenant with her husband RONALD JOHN PATTON of the property known as 19 Wyatt Avenue, Belrose and being the whole of the land contained in Certificate of Title Volume 11010 Folio 202 (such land being hereinafter referred to as "the property"). 2. The beneficiary desires a severing of the joint tenancy over the said property. 3. The beneficiary has contemporaneously herewith executed a form of Transfer of her estate in interest in the said property to the Trustee to hold as tenants in common with the said Ronald John Patton. 4. Such Transfer as aforesaid is made to the Trustee for the beneficiary and the Trustee has agreed to execute the declaration of Trust hereinafter contained.
NOW THIS DEED WITNESSETH AS…
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 v Patton
Sign in free to access the full text
Details
AGLC
Corin v Patton [1990] HCA 12
Case
[1990] HCA 12
Decision Date
CaseChat Overview and Summary
The dispute in *Corin v Patton* concerned the attempted severance of a joint tenancy in Torrens system land. The deceased, Mrs. Patton, who was a joint tenant with her nephew, Mr. Corin, sought to sever the joint tenancy by transferring her interest to a trustee for herself. The memorandum of transfer was executed and delivered to the trustee, but the duplicate certificate of title remained with the mortgagee, who held it as security for a loan. Mrs. Patton died before the transfer could be registered. The case came before the High Court of Australia.
The central legal issue before the High Court was whether Mrs. Patton had effectively alienated her equitable interest in the land prior to her death, thereby severing the joint tenancy. This required the court to consider the requirements for the alienation of an equitable interest in Torrens system land, particularly in circumstances where the duplicate certificate of title was not available to the transferor. The court also had to determine the effect of s 41 of the *Real Property Act 1900* (N.S.W.) and ss 24 and 96 of the *Conveyancing Act 1919* (N.S.W.) on the validity of the attempted alienation.
The High Court held that for a joint tenant to effectively alienate their equitable interest in Torrens system land, they must take all necessary steps to divest themselves of that interest. In this case, Mrs. Patton had not taken all necessary steps because she had not obtained the duplicate certificate of title from the mortgagee, which was required to effect registration of the transfer. Without registration, or at least the ability to compel registration, the equitable interest had not been alienated. Therefore, the joint tenancy was not severed before her death.