Corinne Griffin & Co v Fraser
[2024] WASC 264
•31 JULY 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: CORINNE GRIFFIN & CO -v- FRASER [2024] WASC 264
CORAM: LUNDBERG J
HEARD: 18 JULY 2024
DELIVERED : 31 JULY 2024
FILE NO/S: TRU 2 of 2024
BETWEEN: CORINNE GRIFFIN & CO AS TRUSTEE OF THE CORINNE GRIFFIN & CO LAW PRACTICE TRUST ACCOUNT
Applicant
AND
JULIE MARIE FRASER
Respondent
Catchwords:
Trustees - Application for directions by solicitor under s 92 of the Trustees Act 1962 (WA) - Summary nature of an application to the court seeking judicial advice - Whether appropriate to give judicial advice in the circumstances
Trustees - Matrimonial home held by husband and wife as joint tenants - Proceeds of sale of matrimonial home held on trust by husband's solicitor - Separate written authority instruments signed by husband and wife to authorise funds to be held on trust - Status of funds in trust following death of husband prior to the institution of any proceedings in the Family Court - Whether joint tenancy severed by course of conduct - Whether funds now held on trust for husband and wife as tenants in common - Whether former wife's right of survivorship subsists - Whether solicitor justified in distributing funds held on trust received from husband and wife - Judicial advice given - Turns on own facts
Legislation:
Family Court Act 1975 (Cth), s 79 and s 87
Interpretation Act 1984 (WA), s 10
Legal Profession Uniform Law (WA), s 135, s 138 and s 142
Rules of the Supreme Court 1971 (WA), O 58
Trustees Act 1925 (NSW), s 63
Trustees Act 1962 (WA), s 92
Result:
Judicial advice given
Category: B
Representation:
Counsel:
| Applicant | : | S M Standing |
| Respondent | : | M N Blandford |
| Non-party | : | E J Fleming |
Solicitors:
| Applicant | : | Corinne Griffin & Co |
| Respondent | : | Lewis Kitson |
| Non-party | : | HFM Legal |
Case(s) referred to in decision(s):
Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42, 11
Abela v Public Trustee (NSW) [1983] NSWLR 308
Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29; (2019) 269 CLR 333
Blatchford v Laine [2018] WASC 207
Calabrese v Miuccio (No 2) [1985] 1 Qd R 17
Calabrese v Miuccio [1984] 1 Qd R 430
In the Marriage of Pertsoulis (1980) 6 Fam LR 39
Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 237 CLR 66
Patzak v Lytton [1984] WAR 353
Public Trustee v Pfeiffle [1991] VR 19
Singh v Kaur Bal (No 2) [2014] WASCA 88
Slater v Slater (1987) 12 Fam LR 1
Whitty v Talia [2023] VSCA 246; [2023] 72 VR 1
Wood (As Co‑Executor and Trustee of the Will of the Deceased) v Wood (No 4) [2014] WASC 393; (2014) 13 ASTLR 544
Wright v Gibbons (1949) 78 CLR 313
Table of Contents
A. Introduction and summary
B. The competing positions
Julie's position
Dianne's position
The applicant's position
C. Legal Profession Uniform Law (WA)
D. Issues arising on the Application
E. The nature of judicial advice proceedings
F. Proposed joinder of Dianne Fraser
G. The facts
H. Disposition – judicial advice
Preliminary
Submissions
Relevant principles
Conclusion
I. Conclusion and orders
ATTACHMENT A Extracts from the Applicant's letter dated 14 July 2023
LUNDBERG J:
A. Introduction and summary
These reasons relate to an application for judicial advice brought by the applicant law firm (Corrine Griffin & Co), in its capacity as a trustee, pursuant to s 92 of the Trustees Act 1962 (WA) (Trustees Act). Section 92 provides as follows:
92. Directions, trustee may ask Court for
(1) Any trustee may apply to the Court for directions concerning any property subject to a trust, or respecting the management or administration of that property, or respecting the exercise of any power or discretion vested in the trustee.
(2) Every application made under this section shall be served upon, and the hearing thereof may be attended by, all persons interested in the application or such of them as the Court thinks expedient.
The application was brought by way of originating summons dated 16 February 2024 (Application), filed in effect pursuant to O 58 r 2 of the Rules of the Supreme Court 1971 (WA) (RSC). The Application was supported by two affidavits sworn by Ms Griffin and a further affidavit sworn by an employed solicitor, Mr Ryan Hockley.[1] No objection was taken to any of this affidavit material at the hearing of the Application.
[1] See the affidavit of Corrine Griffin sworn on 15 February 2024 (First Griffin Affidavit), the affidavit of Corrine Griffin sworn on 17 July 2024 (Second Griffin Affidavit), and the affidavit of Ryan Hockley sworn on 8 April 2024. Mr Hockley is a solicitor employed by Corrine Griffin & Co.
The Application was ultimately listed before me for hearing on 18 July 2024. I take this opportunity to record my gratitude to counsel for both parties for the helpful submissions which were filed in advance of the hearing, and for the economical manner in which the hearing itself was approached.
The applicant seeks directions from the Court as to whether it would be justified in distributing a fund in a particular manner (amounting to $541,298.32), which it holds on trust in the firm's trust account (Trust Fund).
It is not disputed that the fund consists of the proceeds of the sale of the former matrimonial home of the defendant (Ms Julie Fraser) and her late husband (Mr Lance Fraser).[2] Julie and Lance had previously been the registered proprietors as joint tenants of a property in Rockingham (Property).[3] Julie and Lance were divorced in December 2022.[4] The applicant law firm had acted as the legal representative for Lance in his divorce and property settlement matters with his former wife.[5]
[2] I will refer to the parties in these reasons by their first names for convenience.
[3] First Griffin Affidavit [5], and Attachment CG2.
[4] Julie Fraser Affidavit sworn 21 March 2024 [7] - [8], and Attachments JMF1 and JMF2 (Julie Fraser Affidavit).
[5] First Griffin Affidavit [3].
Following the divorce and property settlement negotiations, the detail of which I will explain in due course, the Property was sold[6] and the sale proceeds were deposited into the applicant's trust account, pursuant to written trust account authorities signed by both Lance and Julie.
[6] Julie Fraser Affidavit [12] - [14].
Unfortunately, Lance died in October 2023.[7]
[7] Julie Fraser Affidavit [18].
At the time of Lance's death, proceedings in the Family Court of Western Australia had not been commenced to give effect to the divorce and property settlement to which Lance and Julie had agreed.[8] To further complicate matters, Lance died intestate and, at the time of the hearing before me, no application had been brought for the grant of letters of administration in respect of Lance's estate. Lance's de facto wife, Dianne Fraser, has however informed the Court through her solicitors that she intends to initiate such an application.
[8] First Griffin Affidavit [15] - [16].
For the reasons which follow, I am of the opinion that:
(a)the Application falls within s 92 of the Trustees Act (in that it concerns 'property subject to a trust' within the meaning of that provision);
(b)this is an appropriate case in which judicial advice should be given to the applicant trustee;
(c)a direction should be given to the applicant trustee in the form of order 1 of the applicant's minute of proposed orders dated 18 July 2024, to the effect that the trustee would be justified in releasing half of the Trust Fund to the respondent, Julie; and
(d)a direction should also be given to the applicant trustee to the effect that the trustee would be justified in releasing half of the Trust Fund to the legal personal representative of Lance's estate.
I will hear from counsel as to the precise form of the orders which should be made and receive such further submissions in relation to costs as is necessary.
B. The competing positions
The present Application has been precipitated by the competing contentions asserted by Julie and Dianne as to the manner in which the applicant law firm should distribute the Trust Fund.
Julie's position
In December 2023, the applicant law firm received a written instruction from the solicitors acting for Julie requiring that the entirety of the Trust Fund be distributed to her.[9] Julie contended that she retained full ownership over those funds as the surviving joint tenant. In giving that instruction, Julie rejected the contention that the joint tenancy had been severed through conduct or by any agreement.
[9] First Griffin Affidavit, Attachment CG11.
In the alternative, Julie submitted that, if the Court were to find the agreement between her and Lance was legally binding,[10] then that agreement would ground an entitlement on Julie's part to the entire amount of the Trust Fund. Further, Julie contends that, in this scenario, only she would be able to authorise the disbursement of the entire amount held by the applicant law firm.[11]
[10] Being the agreement constituted by the exchange of correspondence between solicitors on 14 and 26 July 2023.
[11] Respondent's submissions [33] – [34].
The applicant law firm did not accept the lawfulness of the instruction and thereafter initiated the present Application.
Julie sought the following orders in the proceedings, consistent with the written direction which she caused to be issued in December 2023:
1.The applicant is justified in releasing the entirety of the amount of $541,298.32 which it holds in its trust account, to the respondent.
2. The applicant's costs of external counsel only, be paid out of the amount of $541,298.32, to be taxed if not agreed, on a solicitor and client basis, and there be no further orders as to costs.
In support of these orders, the respondent filed an affidavit which she swore on 21 March 2024. No objection was taken to this affidavit at the hearing of the matter.
Dianne's position
In contrast to Julie's position, Dianne has contended that only 50% of the Trust Fund ought be distributed to Julie, having regard to the severance of the joint tenancy and the contention, advanced by Dianne, that the fund is held by the applicant law firm on behalf of Lance and Julie as tenants in common in equal shares.[12] Dianne further contends that a direction should be given to the applicant that 50% of the Trust Fund may be distributed to the legal personal representative of Lance's estate, upon that person being appointed.
The applicant's position
[12] Email from HFM Legal to the Associate to Master Russell dated 17 July 2024.
The applicant law firm, by its further amended minute of proposed orders dated 18 July 2024, seeks the following orders and directions (the first of which is similar in substance to the approach advocated by Dianne):
1.Subject to receipt of a written direction signed by the [respondent], the [applicant] would be justified in releasing to the [respondent] 50% of the funds of $541,298.32 held in trust by the [applicant] (after deduction of 50% of the [applicant's] costs and expenses as agreed or taxed).
2.The [applicant] would be justified in not releasing to the legal personal representative of the late Lance Malcolm Fraser or to any other person the balance of those funds pending resolution of the [respondent's] claim to such funds, or until further order.
3. Pursuant to s 97 of the Trustees Act 1962 (WA) and Order 66 Rule 9(2), the [applicant's] costs and expenses of and incidental to this application be paid out of the trust funds on an indemnity (alternatively solicitor client) basis, such costs to be taxed if not agreed.
4. For the avoidance of doubt, the costs payable pursuant to order 3 above include –
(a) the [applicant's] out of pocket expenses (including counsel's fees);
(b) the professional fees of the [applicant].
5. The [applicant] shall give notice to the [respondent] of any charges which it proposes to recover pursuant to s 98(5) of the Trustees Act for time expended and acts done (in additional to fees to which order 3 above applies) before remunerating itself for the same out of trust funds, and in the event that those charges are not agreed, the [applicant's] charges must be taxed by the Court.
The second of these orders was added by the applicant on the morning of the hearing, in order to address the status of the balance of the funds held on trust by the applicant.[13] This order proposes a direction that the applicant be justified in not releasing the balance to Lance's estate (i.e. the applicant law firm would retain the balance of the Trust Fund).
[13] ts 11 - 12.
In the face of the competing positions, the applicant law firm contends it was proper to have commenced these proceedings for judicial advice. The applicant law firm emphasises that it is subject to important (and onerous) obligations and duties, including statutory obligations, as to the manner in which they can lawfully deal with a fund such as this.[14] The relevant statutory provisions are set out below.
[14] ts 17.
C. Legal Profession Uniform Law (WA)
The parties drew my attention to several provisions of the Legal Profession Uniform Law (WA) (Uniform Law), which are found in div 2 pt 4.2 of the legislation. Part 4.2 is headed 'Trust money and trust accounts'. The provisions identified by the parties were ss 135, 138 and 142. These are all civil penalty provisions, such that breach would expose the law practice to civil penalty proceedings.
Section 135(1) of the Uniform Law states:
135Dealing with trust money
(1)A law practice must deal with trust money in accordance with this Law and the Uniform Rules and not otherwise.
Civil penalty: 50 penalty units.
Section 138 of the Uniform Law states:
138Holding, disbursing and accounting for trust money in general trust account
(1)Except as otherwise provided in this Part, a law practice must—
(a)hold trust money deposited in the law practice's general trust account exclusively for the person on whose behalf it is received; and
(b)disburse the trust money only in accordance with a direction given by the person.
Civil penalty: 50 penalty units.
(2)Subsection (1) applies subject to an order of a court of competent jurisdiction or as authorised by law.
(3)The law practice must account for the trust money as required by the Uniform Rules.
Civil penalty: 50 penalty units.
Note
Jurisdictional legislation may provide for disbursement for the purpose of statutory deposit accounts.
Section 142 of the Uniform Law states:
142Trust money subject to a written direction
(1)A law practice that receives a written direction to deal with trust money (other than cash) in a particular way must comply with that direction within the period specified in the direction, or otherwise, as soon as practicable after it is received.
Civil penalty: 50 penalty units.
(2)The law practice must keep the written direction for 7 years after the matter has been finalised.
Civil penalty: 50 penalty units.
I pause to note that the reference to the singular 'person' in s 138(1) of the Uniform Law will, as a matter of statutory interpretation, include the plural form.[15]
[15] Interpretation Act 1984 (WA), s 10(c).
Accordingly, as Rees J observed in Wilson v Giles[16] in examining the same provision in the New South Wales context, when trust money is received on behalf of more than one person, then each of those persons must give a direction to the solicitor to disburse the funds.
[16] Wilson v Giles [2020] NSWSC 657 [26] (Rees J).
D. Issues arising on the Application
Having regard to the submissions advanced by the parties[17] and the manner in which the hearing was conducted, the following issues fall for determination on the Application:
(a)First, whether the Application falls within s 92 of the Trustees Act.
(b)Second, assuming the answer to the first question is yes, whether judicial advice in the terms sought by the applicant trustee should be given, whether the judicial advice sought by the respondent should be given, or whether some different form of advice ought be given by the Court. Implicit within this issue is the need for the Court to consider whether this is an appropriate case to provide judicial advice to the applicant trustee. In addressing these matters, the following specific issues would appear to arise for consideration:
(i)whether the Trust Fund was held by the applicant law firm on behalf of Lance and Julie as joint tenants, or whether that relationship of joint tenancy had been severed in some respect;
(ii)whether Lance and Julie had reached a binding agreement in relation to the entitlement to the Trust Fund (and whether it is necessary for the Court to be satisfied that any such agreement was binding at law); and
(iii)the operation of s 138(1) of the Uniform Law and whether that provision permits a distribution in the respective ways proposed by the parties.
(c) Third, what orders should be made as to the costs of the proceedings and, in particular, whether the applicant (as a self-represented litigant) is entitled to recover all of its costs, in light of the High Court's decision in Bell Lawyers Pty Ltd v Pentelow.[18] In the interests of expediency, I propose to hold over the issue of costs until these reasons have been published and the parties have had a further opportunity to make any additional submissions on those issues as is necessary.
[17] Applicant's submissions dated 3 May 2024; applicant's supplementary submissions on costs dated 12 July 2024; and the respondent's submissions dated 24 May 2024.
[18] Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29; (2019) 269 CLR 333.
E. The nature of judicial advice proceedings
As already noted, the Application before the Court is for judicial advice pursuant to s 92 of the Trustees Act. The nature of such a proceeding necessitates some preliminary observations.
Relatively recently in Blatchford v Laine,[19] Vaughan J (as his Honour then was), drawing upon earlier authorities of the High Court and this Court, set out several principles concerning the operation and scope of the process under s 92, including that the process is intended to be a summary one.[20] I endorse the principles detailed by Vaughan J in Blatchford v Laine, without repeating them in their entirety. Two particular matters identified by his Honour should however be emphasized.
[19] Blatchford v Laine [2018] WASC 207 [57] (Vaughan J).
[20] Blatchford v Laine [57] (Vaughan J), citing Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 237 CLR 66 [61] - [63] (Gummow ACJ, Kirby, Hayne and Heydon JJ), [199] (Kiefel J); and Wood (As Co‑Executor and Trustee of the Will of the Deceased) v Wood (No 4) [2014] WASC 393; (2014) 13 ASTLR 544.
The first matter is that the court retains a discretion whether to provide a direction under the statutory procedure. That is, the court is not obliged to give advice merely because it has been sought by a trustee.
The second matter is that judicial advice proceedings do not require the Court to finally determine the rights and obligations of the parties. It is important to recognise that the proceedings are not to be treated as a trial of the issues that are to be agitated in any substantive proceedings. The court is not embarking on a process by which it will finally resolve the merits of the underlying dispute.
Vaughan J's exposition of the second of these principles was undertaken in the context of an application by a trustee for directions as to the position the trustee should take in relation to proposed litigation. The position in the present case is different. The trustee in the present case is seeking a direction as to the distribution of a fund - not seeking directions as to whether proceedings should be commenced.
Where the trustee is seeking directions in relation to the commencement or defence of legal proceedings, one can readily comprehend why the judicial advice proceedings should not be employed to finally decide the issues to be agitated in the substantive proceedings, nor be transformed into such proceedings. The same position equally holds where the judicial advice proceedings seek specific directions in relation to the administration of a trust or as to the distribution of trust property, in my view. Nothing said by the High Court in Macedonian Orthodox Community Church, or by Vaughan J, would suggest otherwise.
At least one explanation for this is that the proceeding operates as 'an exception to the court's ordinary function of deciding disputes between competing litigants'.[21] That is, it affords a facility for giving 'private advice'.[22] The advice is private in nature because its function is to give personal protection to the trustee.[23] The underlying controversy is not being determined by the Court. Further, there is nothing within the statutory provision to limit applications for judicial advice to non-adversarial proceedings.[24]
[21] Macedonian Orthodox Community Church [64].
[22] Macedonian Orthodox Community Church [64].
[23] Macedonian Orthodox Community Church [64].
[24] Macedonian Orthodox Community Church [56].
The historical origins of the statutory jurisdiction were closely analysed by the High Court in Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand.[25] As there explained, the statutory jurisdiction represented a marked contrast to the previous cumbersome and expensive exercise which trustees were required to follow, by commencing an administration suit which required pleadings and the usual trappings of inter partes civil litigation.[26]
[25] Macedonian Orthodox Community Church [61] - [63] (Gummow ACJ, Kirby, Hayne and Heydon JJ), and [199] (Kiefel J).
[26] Macedonian Orthodox Community Church [61] (Gummow ACJ, Kirby, Hayne and Heydon JJ).
The plurality of the High Court examined the scope of s 63 of the Trustees Act 1925 (NSW), which is functionally equivalent to s 92 of the Trustees Act in this State. The plurality was addressing the error which had been made by the NSW Court of Appeal in concluding that the judicial advice which had been sought should not be given. The NSW Court of Appeal had concluded that the primary judge had been wrong to give directions in this regard. The plurality of the High Court stated eight general points about the provision, several of which I have extracted below:
[55]Implications not to be read in. First, the following much cited statement of this Court in Owners of "Shin Kobe Maru" v Empire Shipping Co Inc is relevant to s 63:
'It is quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words'.
[56]No implied limitations on power to give advice. Secondly, although at least Ipp JA and Hodgson JA were not prepared to hold that in the circumstances of this case s 63 gave no power to give judicial advice and although the plaintiffs did not argue to the contrary, it is desirable to confirm, with respect, that their Honours were correct. There are no express words in s 63, and no implications from the express words which are used in s 63, that automatically preclude the court from giving the advice which the Association sought. There is nothing in s 63 which limits its application to "non-adversarial" proceedings, or proceedings other than those in which the trustee is being sued for breach of trust, or proceedings other than those in which one remedy sought is the removal of a trustee from office.
[57]This conclusion follows the principle referred to in the previous paragraph: from the unqualified words of s 63(1), particularly the words "respecting the interpretation of the trust instrument"; from the contemplation of s 63(4) that affidavit or other evidence may be used and that notice may be given; from the contemplation of s 63(8)-(10) that advice may be given not only where there are controversies among beneficiaries, but where beneficiaries are in dispute with trustees about those controversies; and from the contemplation of s 63(11) that there may be an appeal from the opinion, advice or direction.
[58]Only one jurisdictional bar to s 63 relief exists: the applicant must point to the existence of a question respecting the management or administration of the trust property or a question respecting the interpretation of the trust instrument. The Court of Appeal did not deny that both kinds of question existed in the present case. Hence, as the Court of Appeal recognised and as the plaintiffs accept, the dispute in this appeal relates only to the question whether Palmer J erred in the exercise of his discretion.
[59]No implied limitations on discretionary factors. Thirdly, there are no express words in s 63, and no implications from the express words which are used in s 63, making some discretionary factors always more significant or controlling than others. In particular, s 63 does not provide that the adversarial nature of the proceedings about which the advice is sought, the tendency of the advice to foreclose an issue in those proceedings, or the fact that the trustees seeking the advice are being sued for breach of trust are of special significance. Hence the discretion is confined only by the subject-matter, scope and purpose of the legislation. While it was accepted by the Court of Appeal that the court has power under s 63 to give advice even if the proceedings are "adversarial" in character, their approach was to give that consideration very great significance as pointing to an exercise of the discretion against granting advice.
…
[61]Summary character of s 63 procedure. A fourth noteworthy aspect of s 63 procedure is what Lord St Leonards described as its "summary" character.
…
[64]Private and personal advice. A fifth matter, closely related to the fourth, is that s 63 operates as "an exception to the Court's ordinary function of deciding disputes between competing litigants"; it affords a facility for giving "private advice". It is private advice because its function is to give personal protection to the trustee.
[65]Section 63(2) precludes any trustee, who acts in accordance with the private advice, from being held liable for breach of trust in the event that in conventional proceedings it is later held that the legal position does not correspond with the advice given, so long as the proviso to s 63(2) is satisfied. The possibility that the rights of beneficiaries under private trusts could be affected by judicial advice led the New South Wales Parliament in 1925 to introduce the protections given by s 63(8)–(11) and in that sense to strike a compromise. However, those protections did not alter the primary function of s 63 as creating a procedure for private advice to trustees. Even if notice of the application for private advice is given to other persons (by reason of rules of court, or a court direction under s 63(4), or by reason of s 63(8)), those persons are not strictly speaking “parties” to “proceedings” by reason of the closing words of s 63(11), although they are able to participate in the proceedings to some extent. Section 63 reflects a compromise between a procedure for affording private advice to trustees and the need for affected persons to be given a hearing in some cases. (footnotes and citations omitted)
In her Honour's concurring judgment in Macedonian Orthodox Community Church, Kiefel J (as her Honour then was) explained the proper approach as follows:
[195]Proceedings provided for by s 63 do not involve the determination of a controversy, but rather the giving of advice or direction to a trustee with respect to questions of the kind referred to in the section. Section 63 is an exception to a court's ordinary practice of deciding disputes between competing litigants, as Palmer J observed. But his Honour's orders were not determinative of the parties' rights. The advice given was as to whether, and upon what terms, proceedings should be pursued in order to finally determine the controversy as to the terms of the trust upon which the association held property. The advice was advice respecting the interpretation of the trust instrument and was therefore within power. The interests of the parties and the liability of the association as trustee were to be determined, but in the main proceedings.
[196] It may be inferred that their Honours in the Court of Appeal considered that the connection of the advice to the pursuit, or defence, of the main proceedings to be so important a factor as to foreclose the giving of such advice. I agree with the plurality that the discretion is not to be exercised by reference to some such overriding consideration. In exercising the discretion the court should be guided by the scope and purposes of the section. The principal purpose of the section, and the opinion, advice or direction given under it, is the protection of the interests of the trust. Another purpose is the protection of a trustee who is acting in that regard and upon advice. Securing the latter purpose may ensure the attainment of the principal purpose, by removing the concern of a trustee about exposure beyond their usual indemnity.
[197]It is apparent from the reasons of Palmer J that his Honour considered that it was in the interests of the trust that the uncertainty as to the terms of the trust should be resolved, once and for all. The correctness of that view cannot be doubted, particularly given that the trust is for a charitable purpose. The issues relating to the trustee in the main proceedings should be seen in this perspective. They assume a lesser importance than the attainment of the principal object of the section. His Honour expressed himself as satisfied that opinions of counsel demonstrated that there were sufficient prospects of success to warrant the association defending the question of construction.
[198] The questions that are identified by s 63 as the subject of the advice of the court may predictably arise in the context of litigation where a trustee is accused of breach of trust. If the litigation may resolve a question to which s 63 refers, and it is in the interests of the trust estate to do so, the trustee should be protected in achieving that resolution. That the trustee may also benefit from a determination, as would here be the case if the association's version of the terms of the trust were upheld, is not to the point. It may be appropriate that the court condition the advice or limit the access to the trust estate to the costs of determination of the dispute in question. It was not necessary in this case to altogether refuse to give the advice or direction sought.
[199] I agree that, in determining to give the advice sought, Palmer J did not fail to address relevant questions, for the reasons given by the plurality. His Honour was well aware of the issues relating to the association in the main proceedings and of the impact of orders for costs upon the trust estate, to the extent that the parties contended for. His Honour was entitled to determine the application on facts which had not been tested in litigation. The summary nature of the proceedings under s 63 will often require a court to proceed in this way. The extent of the information available to the court and its apparent reliability are factors going to the exercise of the discretion to give the advice…(footnotes omitted)
The decision of the High Court in Macedonian Orthodox Community Church is described as having 'dismantled the impediments that lower courts had, over time, imposed on the curial discretion to give a trustee advice and directions', and a decision which 'expanded the jurisdiction'.[27]
[27] JD Heydon and MJ Leeming, Jacobs' Law of Trusts in Australia (LexisNexis Butterworths, 8th ed, 2016), [21 - 34].
The foregoing expositions of the proper approach to judicial advice proceedings have particular relevance to the present proceedings in two respects. First, in assessing the evidence adduced by the parties on the Application, and in seeking to resolve contests between the parties as to the inferences to be drawn from that evidence, the summary nature of the proceedings must be borne in mind. The evidence before the Court was presented solely by way of affidavit material,[28] without any cross-examination of the deponents. This necessarily limits the ability of the Court to reach findings of fact on contested matters. But in truth, that is not necessary given the summary nature of the proceedings.
[28] In accordance with O 58 r 21 RSC.
Second, the role of the parties joined to judicial advice proceedings, who are not strictly speaking parties in the conventional sense of the term, was relevant to the late application made by Dianne to be joined to the proceedings. I now turn to that issue.
F. Proposed joinder of Dianne Fraser
The applicant properly gave notice of the Application to a number of persons, including to Dianne. This notice was given before, and also upon, the proceedings being filed. The applicant joined Julie to the proceedings. Had a personal representative of Lance's estate been appointed at the time the proceedings were commenced, it would also have been proper for that representative to be joined. As already noted, no such representative had been appointed at the time the proceedings were commenced, nor indeed by the date of the hearing of the summons.
Rather belatedly, Dianne sought to be heard on the Application and formally sought an order that she be joined as a party thereto. This was opposed by the defendant, with the applicant adopting a generally neutral position on the issue.
I heard brief submissions from the parties and from Dianne's counsel at the hearing and formed the view that joinder was neither necessary nor appropriate, but gave leave for Dianne's counsel to make brief oral submissions. In large respects, the position advanced by Dianne at the hearing mirrored the primary position of the applicant law firm in terms of the judicial advice which should be given by the Court.
I gave brief reasons at the hearing for the course I proposed to adopt in dealing with Dianne's late application for joinder.[29] I need not repeat them here. It is sufficient to observe that, as I have explained above, given the nature of these proceedings, it was not necessary in a strict sense for Dianne Fraser to be joined as a party. In any event, persons joined as defendants to such proceedings are not parties in the usual sense of that term, but are persons permitted to be heard and allowed to participate to an extent.[30] An application for joinder to a proceeding such as the present must be seen through that prism.
[29] ts 9 – 11.
[30] Blatchford v Laine [53] (Vaughan J).
Further, having had sufficient notice of the proceedings, and having been legally represented over the course of the past few months, I formed the view that Dianne's application was made too late in the day and would have been inconsistent with the proper objects of modern case management. Any such application ought to have been made some months before the hearing, when Dianne was first alerted to the proceedings (noting that Dianne had been legally represented throughout).
Although I declined to join Dianne to the proceedings, I did permit her counsel to make submissions to the Court in relation to her substantive position in the matter. Dianne has also been given advance notice of the publication of these reasons.
G. The facts
Against the background I have already summarised, I propose to now identify the primary factual matters upon which the parties placed reliance in support of their respective positions on the Application. As will be apparent, the compass of these factual matters is relatively confined. The facts set out at [48] to [67] below appear from the affidavit evidence relied upon by the parties.
On 18 July 1992, Lance and Julie were married.[31]
[31] Julie Fraser Affidavit [5].
In December 2004, whilst they were married, Lance and Julie purchased the Property in Rockingham.[32] The Property was held by Lance and Julie as registered proprietors of the Property as joint tenants.
[32] Julie Fraser Affidavit [9].
Lance and Julie separated in or around 28 September 2021 and were divorced on 22 December 2022.[33]
[33] Julie Fraser Affidavit [7] - [8], and Attachments JMF1 and JMF2.
On or about 5 July 2022, Lance appointed the applicant law firm to act on his behalf in relation to a family law property settlement and divorce matters with Julie.[34]
[34] First Griffin Affidavit [3].
Then, in March 2023, Lance and Julie spoke and agreed to sell their former matrimonial home in Rockingham, being the Property to which I have earlier referred.[35]
[35] Julie Fraser Affidavit [11].
The Property was sold on or about 9 April 2023.[36]
[36] Julie Fraser Affidavit [12].
In May 2023, Lance and Julie received the proceeds for the sale of the Property.[37]
[37] First Griffin Affidavit [5] and Attachment CG2; Julie Fraser Affidavit [12] - [14].
Lance and Julie agreed the proceeds of the sale would be deposited into the applicant law firm's trust account. The sum of $541,298.32 represents the Trust Fund. That sum was deposited into the trust account pursuant to written trust account authorities signed by both Lance and Julie.[38] Lance and Julie initially contemplated that the sale proceeds would be held in a joint account, but for various reasons that proved impractical.[39] Julie's solicitors informed the applicant law firm by email on 9 May 2023 that Julie had a 'preference for the sale proceeds of the Rockingham Property to be held by your office on trust pending final property settlement'.[40]
[38] First Griffin Affidavit, Attachment CG6 and Attachment CG7.
[39] First Griffin Affidavit [8].
[40] First Griffin Affidavit, Attachment CG5.
The trust account authority signed by Julie, which had been prepared by the applicant law firm, relevantly stated as follows:[41]
I, Julie Fraser of [address redacted]… do hereby irrevocably authorise and direct the law firm Corrine Griffin & Co to hold my property settlement moneys with Lance Fraser on my behalf until further signed direction or agreement from me to disburse those funds.
I acknowledge that these moneys will be placed in a non-interest bearing account.
I acknowledge that this authority shall operate as a direction to Corrine Griffin & Co for the purposes of The Legal Profession Uniform Law Application Act 2022. (emphasis added)
[41] First Griffin Affidavit, Attachment CG6.
Lance signed a written authority in the same terms as the authority signed by Julie,[42] save that the authority referred to the holding of 'my property settlement moneys with Julie Fraser'. The evidence did not explain how these written authorities came to be prepared, or whether they had been the subject of any negotiation or discussion.
[42] First Griffin Affidavit, Attachment CG7.
From about 10 May 2023 through to October 2023, without prejudice negotiations occurred between Lance and Julie's legal representatives in the family law matters. As a result of these negotiations, a property settlement agreement was reached in July 2023 through an exchange of correspondence. I do not need to conclude whether this was a legally binding agreement in order to dispose of the application presently before the Court. The terms of that correspondence are referred to below, at [61] and [62].
In or about May or June 2023, Julie spoke with Lance over the telephone, and he said he agreed that Julie should get the $541,298.35 that was held in the trust account of the plaintiff law firm as part of the divorce property settlement.[43]
[43] Julie Fraser Affidavit [15].
On 12 June 2023, Lance appears to have sent an SMS message to Julie saying that she had $540,000 waiting for her to buy a property. That sum, according to Julie, was the amount in the trust account of the plaintiff law firm.[44]
[44] Julie Fraser Affidavit [16] and Attachment JFM5.
The applicant law firm, on behalf of Lance, wrote to Julie's lawyers on 14 July 2023, setting out the assets and liabilities of the couple.[45] The letter identified the primary asset as the sale proceeds of the Property, which it described as 'Joint'. The relevant portions of the letter are set out in Attachment A to these reasons. As can be seen, other assets and liabilities within the schedules are variously described as being 'Joint', assigned as being Julie's or Lance's, or referred to as 'Lance's half share'.
[45] First Griffin Affidavit, Attachment CG8.
Julie's lawyers responded by email on 26 July 2023. That email included the following statement:[46]
Our client accepts your client's offer of settlement, and we are instructed to commence drafting the Form 11 – Application for Consent Orders.
We will provide the draft Application to your office for your client's review in due course.
[46] First Griffin Affidavit, Attachment CG9.
On 17 October 2023, Julie's solicitors sent an email to the applicant law firm, attaching a Form 11 – Application for Consent Orders, a Minute of Final Consent Orders and a Schedule of Assets and Liabilities, for execution by Lance.[47] The attachments to the email were not in evidence before me.
[47] First Griffin Affidavit, Attachment CG10.
Unfortunately, Lance died in tragic circumstances on 21 October 2023.[48]
[48] Julie Fraser Affidavit [18].
At the time of Lance's death, proceedings in the Family Court of Western Australia had not been commenced to give effect to the divorce and property settlement to which Lance and Julie had agreed.[49]
[49] First Griffin Affidavit [15] - [16].
On 15 December 2023, Julie's solicitors issued a letter to the applicant law firm which indicated that the firm had been instructed to request that the applicant law firm transfer the Trust Fund to the trust account of Julie's solicitors.[50] The salient parts of the letter are as follows:
[50] First Griffin Affidavit, Attachment CG 11.
As a consequence of the death of the Deceased, and in absence of any proceedings having been commenced in the Family Court regarding property settlement between our client and the Deceased, we are instructed to request you transfer the sale proceeds to our trust account…on the grounds that:
1.Our client now authorises you to do so pursuant to your enclosed Trust Account Authority.[51]
[51] I understand this is a reference to the written authority signed by Julie on 9 May 2023, which is Attachment CG6 to the First Griffin Affidavit, referred to at [56] above.
2.Additionally, our client is now entitled to the sale proceeds by survivorship as:
a.The sale proceeds originated from a joint asset (being the former matrimonial home) and thereafter remained characterised as a joint asset.
b.The intention of the Deceased was that our client was at all material times entitled to the sale proceeds.
That intention is evidenced in 'without prejudice' communications between you and the family lawyers then instructed by our client…in which:
i.Schedules of assets and liabilities were exchanged allocating all the sale proceeds to our client;
ii.Copies of unsigned Form 11 – Application for Consent Orders with accompanying Minute of Final Consent Orders were exchanged and consistently allocated all the sale proceeds to our client; and
iii.An offer was put to our client on behalf of your client which includes the allocation of all the sale proceeds to our client.
c. The intention of the Deceased is further evidenced in SMS communications between our client and the Deceased.
The applicant law firm responded to the written instruction, by email on 20 December 2023.[52] The applicant informed Julie's solicitors that she was not satisfied she could lawfully release the funds as sought by Julie, and foreshadowed bringing the present Application.
[52] First Griffin Affidavit, Attachment CG12.
H. Disposition – judicial advice
Preliminary
I turn now to address the first two issues identified at [27] above.
As to the first issue, that is whether the Application falls within s 92(1) of the Trustees Act, the answer is ‘yes’. The Application seeks directions from the Court as to the distribution of the Trust Fund, which is 'property subject to a trust' within the meaning of s 92(1) of the Trustees Act. As to compliance with s 92(2), which requires that the Application be served upon all interested persons, I accept this has been satisfied.
As to the second issue, that is whether judicial advice should be given by the Court and the terms of that advice, it is necessary to consider a number of specific issues which have been raised by the parties and, of course, to bear in mind the principles as to the proper approach to judicial advice proceedings set out earlier in these reasons.
Submissions
As one might expect, the applicant law firm draws support from Public Trustee v Pfeiffle[53] for the primary submission it advances, to the effect that an intention to sever the joint tenancy can be found. The applicant points to the following factors in particular, as evidencing an intention to sever the joint tenancy.
[53] Public Trustee v Pfeiffle [1991] VR 19.
First, Lance and Julie had agreed to sell the house as part of the process of dividing their assets in some (yet to be agreed) proportions pursuant to a binding order of the Family Court. Upon agreeing to sell the house, they were agreeing a course of dealing which evinced an immediate intention by both of them that their shares would thereafter be held in common and not jointly, and the actual sale and division of proceeds were merely consequential to the severance that had already been agreed. The breakdown of the matrimonial relationship meant that the original purpose of the joint tenancy was at an end, and in those circumstances a common intention of severance may more readily be inferred from a course of conduct (in this case, the agreement to sell).
Second, Lance and Julie had agreed that the sale proceeds were going to be divided pursuant to a binding order of the Family Court. Consequently, even if Lance and Julie had not, by their conduct, agreed to the severance of their undivided interests in the house when they agreed to sell the house, it is hard to avoid the conclusion that they had agreed to severance in respect of the sale proceeds. In this regard, the fact that the funds were paid into the trust account as one sum, and that it had not been agreed in what proportions the funds would be divided, probably does not matter, according to the applicant. Rather, the fact that it had been agreed that the proceeds of sale were going to be divided operated to sever any joint tenancy which might otherwise then have existed in the proceeds.
Third, the applicant notes that each of Lance and Julie provided separate trust authorities to the applicant. Those authorities refer to holding 'my property settlement funds' on '…my behalf until further signed direction or agreement from me to disburse those funds' (emphasis added). The references to 'my ..funds' (instead of 'our funds') and 'my behalf' (instead of 'our behalf') and the requirement for a direction from 'me' (instead of a direction from 'us') are inconsistent with the notion that Lance and Julie had a continuing intention to maintain an undivided interest in the whole of the funds.
The applicant fairly acknowledges a contrary argument in this regard. Namely, that the parties would have held the funds in a joint account if that could conveniently have been arranged, and so placing the funds in the trust account was simply an act of expedience that did nothing to displace the joint tenancy.
The respondent accepts the general principles to which I have referred above, but contends that the filing and service of an application and affidavits in property settlement proceedings under s 79 of the Family Law Act 1975 (Cth) by one party, or both parties, does not sever a joint tenancy.[54] This is because, at any time prior to the order being made, the parties could have withdrawn their applications. Severance can only take place, at the time that the order was made, it is submitted.[55]
[54] In the Marriage of Pertsoulis (1980) 6 Fam LR 39, 47 (Pawley J); and Patzak v Lytton [1984] WAR 353, 357 - 358 (Pidgeon J).
[55] In the Marriage of Pertsoulis (47) (Pawley J).
Nonetheless, the respondent accepts that the real issue is whether the parties agreed to hold their beneficial interest in the property as tenants in common, citing Ormiston J in Public Trustee v Pfeiffle.[56]
Relevant principles
[56] Public Trustee v Pfeiffle (35) (Ormiston J).
The starting point of the analysis is to characterise the basis on which Lance and Julie held their interest in the Property prior to its sale, and then examine the terms on which the proceeds of the sale came to be held on trust by the applicant law firm.
Prior to the sale of the Property, Lance and Julie were registered proprietors of the house and land as joint tenants. As joint tenants, Lance and Julie each had an undivided interest in the whole of the Property.[57] That is uncontroversial. It is also uncontroversial that the mere entry into a contract for sale of a property the subject of a joint tenancy does not, of itself, sever the joint tenancy, but rather converts the joint interest in the property to a joint interest in the sale proceeds.[58]
[57] Singh v Kaur Bal (No 2) [2014] WASCA 88 [33] citing Butt P, Land Law (6th ed, 2010) [1402] - [1404]; Hargreaves & Helmore, An Introduction to the Principles of Land Law (1972) (86 - 87).
[58] Singh v Kaur Bal (No 2) [36]; Abela v Public Trustee (NSW) [1983] NSWLR 308, 314.
However, severance of the joint tenancy thereafter can be effected. Severance can be found by way of an agreement to sever, or through conduct which falls short of evidencing an agreement but which evidences a common intention to sever, and also any conduct which in the slightest degree indicates an intention to divide property.[59]
[59] Public Trustee v Pfeiffle (22 - 23) (Kaye J) and (37) (Ormiston J).
Some analysis of the decision of the Appeal Division of the Supreme Court of Victoria in Public Trustee v Pfeiffle is necessary at this stage. Counsel for both parties made submissions in relation to the effect of this authority. In that case, a husband and wife held two properties as joint tenants. Following dissolution of their marriage, they had entered into an agreement, which had been approved by the Family Court, to settle their respective property claims. The agreement provided, among other things, as follows:[60]
(a)each of them was entitled both legally and equitably to a one half interest in each of the two properties;
(b)they held their respective interests in the two properties upon trust on the terms of the agreement;
(c)the two properties would be sold upon the remarriage of either of them, or at the expiration of three years from the date of approval of the agreement and upon 12 months' notice in writing by one party to the other, or at any time by mutual agreement of both parties; and
(d)the balance of any sale proceeds (after deducting fees) would be dealt with by dividing the proceeds equally between them.
[60] Public Trustee v Pfeiffle (20 - 22) (Kaye J).
The proceedings which were instituted were not seeking judicial advice, but rather involved a substantive motion seeking final declarations. The primary judge dismissed the application by the Public Trustee (as administrator of the wife's estate) for declarations that the respondent husband held the title to the two properties on trust for the Public Trustee and the husband as tenants in common. Kaye, McGarvie and Ormiston JJ, in separate concurring judgments, each agreed the appeal should be allowed.[61]
[61] Public Trustee v Pfeiffle (28) (Kaye J), (32) (McGarvie J), and (42) (Ormiston J).
In addressing the issue of severance, Kaye J held as follows:[62]
The question to be determined upon this appeal is the correctness of the decision of the learned judge holding that the joint tenancy of the two properties was not severed by the terms of the agreement.
The answer to the question depends upon the application of common law principles concerning the nature of a joint tenancy and principles of equity concerning severance. Those principles relating to severance do not permit consideration of the individual subjective intentions of the parties. Nevertheless, it is appropriate to examine the terms of the agreement to ascertain whether it was the common intention of the parties to terminate their joint tenancy.
In the present matter, the circumstances giving rise to the parties having entered into their agreement is a relevant consideration. Those circumstances include the fact that the parties' marriage had been dissolved and that they were seeking to separate and divide between them their jointly owned properties, both real and personal. In addition it is significant that the parties acknowledged that the approval of the agreement by the Family Court - without which the agreement would be null and void (cl. 15) - would operate as a complete bar to any proceedings thereafter by either of them for maintenance or property under Pt VIII of the Property Law Act 1975-76.
When considering the operation of the agreement there is need to be mindful of the essential elements of a joint tenancy. Blackstone, Commentaries, Bk. 2., 8th. ed., p. 180 wrote of the four unities of a joint tenancy, being those of interest, title, time and possession so that "joint tenancies have one and the same interest, accruing by one and the same conveyance, commencing at one and the same time, and held by one and the same undivided possession". At common law a joint tenancy is severable in one of three ways, namely, by disposal of one of the interests, by mutual agreement, and "by any course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common": William v Hensman (1861) J & H 546, at p. 557; 70 ER 862, at p. 867, per Sir William Page Wood V-C.
[62] Public Trustee v Pfeiffle (22) (Kaye J).
These principles were expressed in similar terms by Murphy JA in Singh v Kaur Bal [No 2].[63] Importantly, his Honour noted that a mere declaration of intent, or a desire on the part of one joint tenant to no longer hold jointly, even where communicated to the other joint tenants, does not itself effect a severance.
[63] Singh v Kaur Bal (No 2) [42] (Murphy JA).
Returning to Public Trustee v Pfeiffle, Kaye J formulated the relevant enquiry as follows:[64]
The enquiry to be made in the present matter is therefore whether the joint tenancy of the two properties was severed in any one or more of the three recognised ways. The agreement does not contain a term by which it is expressly provided that the joint tenancy is agreed or acknowledged to be severed. Nevertheless, the manner in which it was agreed that the properties should be dealt with might operate to bring about severance, or might reveal the parties' shared intention to sever their joint proprietorship: Burgess v Rawnsley [1975] Ch 429, at p. 447, per Sir John Pennycuick.
[64] Public Trustee v Pfeiffle (23) (Kaye J).
Kaye J concluded as follows:
In my opinion, from the several terms of the agreement when read together, there emerges the parties' common intention to sever their joint tenancy. First, by para 4 of the recital, they acknowledged that they were the registered joint proprietors of the two properties, and by cl. 1 they agreed that they were each entitled both legally and equitably to a one half interest in each property. Thus by cl. 1 the parties agreed that the title of each of them was one half of the properties, thereby destroying the unity of interest essential for the continuance of their joint tenancy. Furthermore, their declaration in cl. 11 that they each held their respective interests in the properties upon trust on the terms of the agreement was inconsistent with unity of title and interest, but the declaration was an appropriate acknowledgment by the parties of conversion of their joint tenancy to a tenancy in common: see Megarry and Wade, The Law of Real Property, 4th ed., p. 406.
Further terms of the agreement provided for the sale of the properties in the following circumstances, namely upon the remarriage of either party (cl. 6), at the expiration of three years from the date of approval and upon 12 months' notice in writing given by one party to the other (cl. 7), and at any time by mutual agreement in writing of both parties (cl. 8). The parties further agreed that the balance of any such sale, after payment of agent's company and legal fees and expenses, would be divided equally between them (cl. 6). It follows that by these terms the sale of the properties envisaged would take place during the lifetime of both parties and would be followed by an equal division of the net proceeds. A sale made in any one of the three ways so provided by the agreement would have brought about the destruction of all the unities which are incidents of joint tenancies. Yet the sales so provided for were in the future, and depended upon events which might or might not have taken place.
Examining the effect of this last point, that is the relevance of the fact that the sales were to take place in the future, Kaye J traced through a number of authorities including the decision of Rath J in Abela v Public Trustee. His Honour, Kaye J, ultimately accepted the force of the submission that, if joint tenants agree to a sale and division of the proceeds on the happening of a particular event, then the joint tenancy is immediately severed, notwithstanding that the event had never occurred.[65] His Honour's ultimate conclusion on the appeal was in the following terms:
In my opinion, it is the common intention of joint tenants to sever as evidenced by their mutual agreement which may bring about severance instanter. Mechanism for sale of the subject property and division of the proceeds of sale do not fix the time of severance, but are merely consequential to severance. Consequently, the possible failure of a mechanism in the form agreed by the parties will not defeat the severance which has already been effected by the common intention. I therefore consider that Dr Hardingham's submission [counsel for the appellant] was soundly based on authority.
In the present matter, as I have earlier noted, the respondent and the deceased by mutual agreement evinced their shared intention to sever the joint tenancies of the two properties. The approval of the Family Court having been given to the agreement, severance took place immediately upon the making of the agreement. It follows that terms for the sale of the properties in circumstances which might not have eventuated were not relevant to the effectuation of the severance by their common intention.
[65] Public Trustee v Pfeiffle (24 - 28) (Kaye J).
In the course of examining the issue of severance, McGarvie J emphasised that the requisite mutual intention to sever need not be expressed in an enforceable contract, or in any contract. McGarvie J held as follows:[66]
Conscious that survivorship frequently operates unfairly, courts applying principles of equity have leant towards severance and have facilitated it by treating a mutual intention of the parties to sever as sufficient to effect severance in equity: Burgess v Rawnsley [1975] Ch 429. The mutual intention to sever may be an expressed intention (Calabrese v Miuccio (No. 2) [1985] 1 Qd R 17, at p. 26 (underlying intention revealed by agreement)) or may be inferred from the conduct and dealings of the parties: Re Pozzi [1982] Qd R 499, at p. 501 and Burgess v Rawnsley [1975] Ch 429, at pp. 439, 440, 444, 446 and 447. The mutual intention to sever does not need to be expressed in an enforceable contract (Burgess v Rawnsley [1975] Ch 429, at pp. 439, 440, 444 and 446) or in any contract: Abela v Public Trustee [1983] 1 NSWLR 308, at pp. 313-15.
The essential unities of a joint proprietorship are identified in the passage from Blackstone cited by Kaye J, as those of interest, title, time and possession. If the proprietors depart significantly from any of those essential unities a mutual intention to sever is readily inferred.
Where the mutual intention is to sever immediately it effects a severance forthwith. Where the mutual intention is to depart immediately from one or more of the essential unities the usual inference is of an intention to sever immediately.
[66] Public Trustee v Pfeiffle (29 - 30) (McGarvie J).
McGarvie J then addressed the effect of the occurrence of a future event upon severance, and examined the issue as follows:[67]
When the mutual intention has been to depart from one or more of the essential unities upon the occurrence of a future event which must happen, it has been necessary to choose whether the parties as reasonable people should be treated as intending to sever immediately, or as intending to sever when the event occurs. In such a situation the courts have usually treated the parties as intending to sever immediately but there has been little discussion of the principle or approach which justifies such a conclusion.
In view of the tendency of equity towards severance, there is usually good reason for treating the parties as intending immediate severance. It is realistic to treat the parties, as reasonable people, as having the mutual intention which will go as far as practicable towards achieving their objectives, even if the intention will not necessarily achieve those objectives completely. If a mutual intention were treated as intending no immediate severance but intending only severance on the happening of the specified future event, it would often achieve nothing…
In my opinion, considerations such as these have led courts of equity readily to infer an intention to sever immediately in circumstances such as those of the example I gave.
[67] Public Trustee v Pfeiffle (30 - 31) (McGarvie J).
Ormiston J adopted a very similar approach to that which appears in the decisions of Kaye and McGarvie JJ, although his Honour preferred to view the true question as whether the conduct of the parties created a tenancy in common in equity, rather than to determine whether the legal interest by way of joint tenancy had been severed.[68] In undertaking this analysis, Ormiston J endorsed the long-standing proposition that anything which in the slightest degree indicates an intention to divide the property must be held to abrogate the idea of a joint tenancy, and to create a tenancy in common.[69]
[68] Public Trustee v Pfeiffle (35) (Ormiston J).
[69] Public Trustee v Pfeiffle (33) (Ormiston J).
More recently, in Whitty v Talia,[70] the Victorian Court of Appeal examined the issue of severance of a joint tenancy. The factual circumstances may be briefly stated. In summary, a husband and wife had executed a contract to purchase a property in Fitzroy. Settlement of the purchase was delayed. In anticipation of settlement, the husband and wife signed a transfer of land in which they were described as joint proprietors (and it was not in dispute they intended to acquire the property as joint tenants). Settlement subsequently occurred and the property was registered in the names of the purchasers as 'joint proprietors'. The purchase price was provided from three sources, which included a loan to the husband from his siblings, which was documented in an agreement to which the wife was not a party.
[70] Whitty v Talia [2023] VSCA 246; [2023] 72 VR 1.
The husband and wife also executed a deed, making provision for the husband to be able to sell the property in certain circumstances, subject to a right of first refusal on the part of his wife. That deed provided that the rights of the parties could be exercised after they died, by their executors.
Unfortunately, the husband died unexpectedly in October 2019. He did not make a will.
His wife applied for a grant of administration of his estate upon intestacy. In the inventory of assets and liabilities forming part of that application, the husband was recorded as owning no real estate, evidently on the basis that it was said that his wife had succeeded to ownership of the property by survivorship. There was said to be an 'alleged debt' outstanding to the husband's siblings. One of the siblings lodged a caveat, alleging that the loan agreement and the deed effected a severance of the joint tenancy in relation to the property and vested a right of sale of the property in the husband or his estate.
The trial judge concluded that the joint tenancy had been severed so that the estate of the husband and the wife were each entitled to an equal undivided share as tenants in common. Further, the trial judge declared that a right of sale would vest in the husband's legal personal representative upon appointment, and that the estate would be entitled to receive 'such part of the proceeds of sale as is appropriate for a tenant in common in equal parts' with his wife.
The Court of Appeal dismissed the appeal. McLeish, Kennedy and Walker JJA outlined the applicable principles as follows:
[29]On that basis, the question to be asked in respect of the third method in Williams v Hensman is whether there was a course of conduct on the part of the joint tenants inconsistent with a joint tenancy, from which one would infer an objective intention to hold the property as tenants in common.
[30]A particular application of that test concerns a course of conduct which sustains the inference that the joint owners objectively intended to destroy the right of survivorship.
[31]In general, equity 'leans against' joint tenancies, going so far as to regard them as 'an odious thing'. This is because of the element of chance they involve, which Deane J described as the 'gamble of the tontine'. That gamble runs counter to the notion that equity is equality. As Deane J explained, in equity, good conscience and actual or presumed intention may prevail over common law interests. He added that the right of accretion by survivorship was one of the two aspects of joint tenancy most likely to attract the operation of overriding equitable doctrine.
[32] Little is therefore ordinarily required by way of evidence to show an intention that joint tenants hold as tenants in common; anything which to the slightest degree indicates an intention to divide the property will abrogate the joint tenancy and create a tenancy in common. At the same time, however, the evidence must establish a definite intention to retain beneficial title, not a nebulous intention to exercise control over it. It has been said, in this context, that the evidence of intention must be unequivocal.
[33] On the other hand, in the context of the present case, it is also relevant that equity presumes that a married couple intend to be joint owners of the matrimonial home, irrespective of their respective contributions. This means, as the trial judge recognised, that the ordinary rule that equity favours a tenancy in common does not apply. That is because, in effect, a married couple is presumed to have committed themselves to an identical shared interest in a matrimonial home for their joint enjoyment, and that of the survivor after one of them dies.
In applying these principles, the Court of Appeal noted that the case had been argued on the basis that severance in equity was effected by the course of conduct in which the husband and wife engaged, the question being whether it may objectively be inferred from that course of conduct that they intended to hold the property as tenants in common.[71] The Court held:
[71] Whitty v Talia [61].
[62]The critical event in the course of conduct was the entry into the deed, but it is not said that it was an agreement to sever the joint tenancy, express or implied, being the second method of severance identified in Williams v Hensman. The question is therefore not whether the deed, properly construed, achieved severance. As such, it is not necessary to have resort to principles of construction to determine the legal meaning and operation of the deed. The issue is what the deed, seen as part of a course of conduct on the part of those who executed it, reveals about their intention with respect to the joint tenancy.
…
[69]Beyond the mere signing of the deed, it is clear, in our view, that Mr Caruso and Ms Whitty intended Mr Caruso's right to compel a sale to pass to his estate upon his death. They had already agreed that this right would exist during his lifetime, so that he could put himself in a position to repay the siblings' loan if he wished. The siblings had wanted some comfort as to their position if Mr Caruso were to die with the loan outstanding. The solution was to extend the existing arrangement enabling him to sell the property so that it continued after his death, and to make the loan repayable at that point. Mr Caruso and Ms Whitty had been told by their solicitor that the amendments would enable the right to sell the property to be enforced if Mr Caruso should die or become totally and permanently disabled, and there is no reason to doubt that, in signing the deed, that was their intention.
…
[71]There are only two options. Either the joint tenancy was intended to be preserved, so that the power to sell, if exercised after Mr Caruso's death, would be exercised on behalf of Ms Whitty alone, or the tenancy was intended to be severed so that it would be exercised on behalf of the parties as tenants in common. Only the latter understanding would be of any commercial utility. The former intention would be perverse, because the insertion of cl 6 into the deed (and associated amendments) would have been an exercise in futility. It would have enabled the executor to sell the property but Ms Whitty, not the estate, would receive the proceeds and the siblings would be no better off than if the property remained unsold. The position would be even more absurd if, as was likely, the executor was Ms Whitty herself.
[72] In contrast, the latter intention would be consistent with the preparedness of Mr Caruso and Ms Whitty to accept that during Mr Caruso's lifetime, he could sell the property in order to repay the loan if he so wished. They would be extending that arrangement so that the same power would be held by his executor (whoever that might be). This was how their solicitor explained the final amendments to them in the emails that were in evidence. Whatever wishes Ms Whitty (and Mr Caruso) had to that point expressed as to the tenancy being joint, their subsequent execution of the deed can safely be inferred to have been intended to achieve the effect explained by their solicitor.
[73] In other words, the circumstances point clearly to Mr Caruso and Ms Whitty having decided, in order to complete the purchase, that they would agree to an arrangement whereby the property could be sold upon the death of Mr Caruso at the behest of his executor. Exercise of the power of sale would put the estate in funds to repay the siblings out of Mr Caruso's share of the proceeds. That arrangement could only be meaningful if the property did not vest solely in Ms Whitty by virtue of a right of survivorship upon his death. Their intention could not be effected if the property was held on a joint tenancy, and they must therefore be regarded as having intended to hold the property as tenants in common.
[74]For that reason, in our view the conclusion of the trial judge was correct. We are reinforced in that conclusion by the fact that, if the property was held as a joint tenancy, the right of first refusal which the parties intended Ms Whitty to enjoy would operate perversely after Mr Caruso's death by giving her a right to purchase a property she already owned.
Conclusion
In the face of the competing positions expressed by the parties, it was entirely proper in my view for the applicant law firm to have commenced these proceedings for judicial advice pursuant to s 92 of the Trustees Act. Further, I consider this is an appropriate case for judicial advice to be given by the Court, having regard to those competing contentions, the position in which the trustee solicitor finds itself, and statutory obligations and duties which fall upon the trustee as to the manner in which it can lawfully deal with a fund such as this.
As to the respective positions advanced by the parties, on my analysis, the facts available to the Court on the present Application provide a sufficient basis to conclude that the Trust Fund is presently held by the applicant law firm on behalf of Lance and Julie as tenants in common in equal shares. I reach this conclusion for the reasons set out below, which to some extent overlap, and I am mindful that I am not on the present Application seeking to finally determine the interests and entitlements of either Julie or Lance's estate to the Trust Fund.
First, what cannot be denied in the present case is that Lance and Julie had commenced, by at least March 2023, the process of dividing their assets in some proportions, pursuant to a future binding order of the Family Court. Lance had instructed solicitors to act for him in the property settlement and divorce matters as early as July 2022, and the couple were divorced in December 2022.
Second, having spoken in March 2023 regarding the potential sale of the primary asset of the marriage, being the Property, Lance and Julie agreed to sell that asset. That sale was undertaken in April 2023 and completed in early May 2023. Thus, by May 2023, Lance and Julie were well advanced with the property settlement process, having received the funds from the sale of the Property. At the time, Julie's solicitors confirmed in writing that the funds were to be held in the trust account of the applicant law firm 'pending final property settlement'.[72]
[72] First Griffin Affidavit, Attachment CG5 (email from Julie's solicitors to the applicant law firm on 9 May 2023).
The depositing of the sale proceeds into the applicant's trust account as part of the property settlement process meant the original purpose of the joint tenancy was at an end. I am conscious that Lance and Julie initially contemplated that the sale proceeds would be held in a joint bank account, but that proved impractical. This possibility does not weaken the above observation. The objective evidence is that the proceeds were being deposited into an account as a temporary step in the process of dividing the joint estate.
Third, Lance and Julie signed separate authorities, in the same terms, which authorised the applicant to hold the funds. The language employed by Lance and Julie in these instruments, signed at the time the sale proceeds were deposited into the trust account of the applicant, requires close analysis.
The authority instruments refer to 'my property settlement moneys' being held on 'my behalf', pending a signed direction or agreement 'from me to disburse those funds'. This language is consistent with the funds having lost the unity of interest essential for the continuance of their joint tenancy, in the sense that the funds are to be held in trust for each party on an individual basis. It was entirely open for the parties to have employed different language in these instruments had it been intended that the funds would retain a unity of interest. That was not done. The words used imply the existence or creation of separate interests.
I recognise that the authority instruments elsewhere refer to the property settlement moneys as being 'with' the other person – 'to hold my property settlement moneys with Lance Fraser on my behalf' and 'to hold my property settlement moneys with Julie Fraser on my behalf'. However, this reflects only that the moneys originated from the sale of the Property by both Lance and Julie. I do not accept that more significance should be given to the inclusion of the word 'with' in this regard, having regard to the other deliberate language used in the instrument.
The language employed by the parties evinced an intention on the part of both Lance and Julie that the sale proceeds would be held in common, and not jointly. The two of them held distinct interests at this time and no longer intended that the Property be subject to a right of survivorship. Absent any indication at that point to the contrary, the sale proceeds would be held as tenants in common in equal shares.
The language used by the parties in the written authorities is, I accept, less emphatic than the wording employed in, for example, the clauses of the agreement considered by the Supreme Court of Victoria in Public Trustee v Pfeiffle. I have identified that wording earlier in these reasons. The language used by Lance and Julie is nonetheless sufficient in my view to reveal their shared intention to sever the joint proprietorship, when understood against the backdrop of the property settlement process.
The overall course of conduct on the part of Lance and Julie, and their advisers, is sufficient to intimate that their interests were mutually treated as constituting a tenancy in common, and is sufficient to ground the conclusion that the prior joint tenancy had been severed. In reaching this conclusion, I have applied the long-standing principle that conduct or acts which indicate, in the slightest degree, an intention to divide the property will be sufficient to abrogate the idea of a joint tenancy. The tendency of equity to lean towards severance must also be given weight in this analysis.
Fourth, the property settlement process continued after May 2023, leading to the exchange of communications between the parties' advisers on 14 July 2023 and 26 July 2023. The conduct of the parties in this regard is wholly consistent with the shared intention to bring an end to the joint proprietorship. However, by this time, as indicated above, my view is that severance had been effected so the terms of these communications are not critical to the result. Accordingly, the allocation of the Property to Julie at this point (as part of the agreement reached) is less significant in my view and, in any event, would need to be viewed as part of the broader allocation of assets and liabilities agreed between the parties, and should not be viewed in isolation.
In examining the communications in July 2024, I note that the letter from the applicant law firm to Julie's solicitors used the descriptor 'joint' when referring to the sale proceeds. In the context of the broader purpose of the letter itself, which was proposing the division of property as between Lance and Julie, I do not consider that much significance should be placed on this descriptor. I favour the view that the descriptions of the assets and liabilities used within the letter, such as 'joint' and 'half share', reflected, at its highest, the historical ownership of the items. So the reference to the sale proceeds as 'joint' merely reflected the original terms on which the Property and the sale proceeds were held by the parties prior to the property settlement process.
In any event, as indicated above, the language employed by the parties in July 2023 comes after the point of severance, in my view, and could not resuscitate a joint tenancy at that point.
As to the verbal statements said to have been made by Lance to Julie in May or June 2023, and the text message sent on 12 June 2023, it seems to me these statements are certainly not inconsistent with the severance of the joint tenancy. However, little significance should be given to Lance's unilateral declarations in this regard.[73] The search is for the objective, shared intention of the parties.
[73] Singh v Kaur Bal (No 2) [42] (Murphy JA).
Fifth, to the extent to which the exchange of communications between the legal advisers in July 2023 is critical to the issue before the Court, and I prefer the view it is not, it would in any event be unnecessary to conclude that the exchange of communications between the legal advisers amounted to a legally binding agreement.[74] The requisite mutual intention to sever does not need to be expressed in an enforceable contract. On the evidence before the Court on this Application, and given the competing arguments of the parties as to the enforceability of the exchange of communications, it would not be possible to form a final view on that issue. But, as I have said, it is not necessary to do so. That may need to be addressed if the parties commence substantive proceedings seeking final relief as to their entitlements to the Trust Fund. I can conclude on the material that the exchange of communications between the solicitors in July 2023 is sufficient to amount to severance. This was an offer from the husband, Lance, as part of the property separation process, intended to conclude the process, including as to the Property. The objective intention of the offer, in its terms, was that Lance would not maintain an interest in the Property thereafter. Julie’s solicitors responded in terms which indicate her position was consistent with Lance’s position. This is sufficient evidence to reveal an intention to divide the Property. This is inconsistent with a joint tenancy arrangement.
[74] Public Trustee v Pfeiffle (29 - 30) (McGarvie J); Abela v Pubic Trustee (313 - 315).
Sixth, the respondent's contention that severance could not occur (whether in March 2023 or in July 2023) until an order of the Family Court had been made, should not be accepted. Upon agreeing to sell the Property, then selling the property and depositing the sale proceeds in the trust account, Lance and Julie were agreeing a course of dealing which evinced an immediate intention by both of them that their shares would be held in common and not jointly, and the actual sale and division of proceeds was merely consequential to the severance that had already been agreed. The breakdown of the matrimonial relationship and the additional conduct to which I have referred, meant that the original purpose of the joint tenancy was at an end, and in those circumstances a common and immediate intention of severance may more readily be inferred from a course of conduct. As Rath J held in Abela v Public Trustee, the joint tenancy in that case was severed at the time the settlement agreement in question was made, not later the same day when the court made the consent order.[75]
[75] Abela v Public Trustee (310 - 311).
The decision of Pidgeon J in this Court which is relied upon by the respondent does not stand in the way of the foregoing conclusion. In Patzak v Lytton,[76] his Honour concluded that the execution (but not delivery) of a transfer of land instrument (in respect of property held jointly) and the filing of applications in the Family Court did not provide a basis to conclude the parties had a mutual intention to sever the joint tenancy.[77] These amounted to no more than unilateral declarations of intent to sever the tenancy, which was inadequate.[78] The observation of Pidgeon J upon which the respondent relies to the effect that the applications to the Family Court could have been withdrawn at any time, must be seen in this context.
[76] Patzak v Lytton [1984] WAR 353.
[77] Patzak v Lytton (356 - 357).
[78] Patzak v Lytton (357).
Further, the authorities relied upon by the respondent to support the submission that severance can only take place at the time the final order of the Family Court is made, do not withstand scrutiny, in my respectful view.[79] Those authorities are naturally fact sensitive. In any event, they represent nothing more than cases in which the necessary mutual intention to effect severance was not otherwise apparent on the material before the court, and the filing of applications to the Family Court was regarded as a unilateral act that would be ineffective to amount to severance until final binding orders were made.
[79] In the Marriage of Pertsoulis (1980) 6 Fam LR 39, 47 (Pawley J); and Slater v Slater (1987) 12 Fam LR 1, 5 - 6 (Cohen J).
This point is apparent from the decision of Carter J in the Supreme Court of Queensland in Calabrese v Miuccio,[80] to which the respondent also referred. I note this decision was the subject of an appeal to the Full Court of the Supreme Court of Queensland, which was dismissed.[81]
[80] Calabrese v Miuccio 1984] 1 Qd R 430, 432 and 436 - 437 (Carter J).
[81] Calabrese v Miuccio (No 2) [1985] 1 Qd R 17 (Connolly, Thomas and Derrington JJ).
In Calabrese v Miucco, Carter J regarded the conduct of the parties as sufficient to sever the joint tenancy, even though the agreement of the parties in this regard was unenforceable and legally ineffective prior to final orders being made, by reason of s 87 of the Family Law Act 1975 (Cth).
The brief facts may be summarised as follows. The husband and wife held a savings bank account as joint tenants. Subsequent to the dissolution of their marriage they agreed that the proceeds of this account would be divided between them in such a way that the wife would receive more than the husband. It was further agreed that the matter so agreed upon would be included in a maintenance agreement for which approval of the Family Court would be sought under s. 87 of the Family Law Act 1975 (Cth). The husband then withdrew his consent to the Family Court sanctioning the agreement. Soon afterwards the wife died, with the bank account still standing in the parties' joint names.
Carter J held as follows, emphasising the entirety of the course of dealing between the parties:
Therefore, on the assumption that there was no “mutual agreement” between the plaintiff and the deceased to which effect can be given, the question remains whether there was yet “a course of dealing” from which it can be inferred that there was a common intention to sever. Sir John Pennycuick would say that this depends on the facts of the case.
In the first place, there was the filing in the Court and the service on the plaintiff of the application by the deceased for an order relating to the bank account. This occurred in August 1980 which was prior to the making of the decree nisi for dissolution of the marriage on October 15, 1980. The service of the application by the deceased upon the plaintiff for an order that the proceeds of the account be dealt with in a certain way was, in my view, an unequivocal declaration of intention on her part that the joint tenancy be severed. That declaration of intention was communicated to the plaintiff by the service on him of the application. But the matter went far beyond that. Negotiations were later embarked upon by solicitors on behalf of each party which culminated in each expressly declaring his and her intention that their respective interests in the fund as joint tenants be rearranged. What form the rearrangement should take was then agreed between them although not given effect to.
I am satisfied that, by on or about November 29, 1982 at the latest, there had occurred between the common owners of the fund a course of dealing consistent only with an intention on the part of each that they no longer hold the moneys in the account as joint tenants. `Further I am satisfied that on or about November 29, 1982 the joint tenancy was severed and that henceforth the moneys were held by the plaintiff and the deceased as tenants in common in unequal shares as to $8,000 of the total for the plaintiff and the balance for the deceased.
Accordingly I refuse to make the declaration sought.
The Full Court in Calabrese v Miuccio (No 2) dismissed the appeal against the decision of Carter J. Connolly J held it was permissible to have regard to the agreement between the parties although it required court approval, in order to identify the intention of the parties.[82] Thomas J concluded that the parties intended to be immediately bound by their agreement, subject only to the contingency (which was never fulfilled) that it would be undone in the event of a refusal by the court to approve it.[83] That is, a true condition subsequent. Derrington J preferred the view that while the severance was effective, the division into unequal portions was not, such that he would have concluded that the husband and wife held in common in equal shares.[84]
[82] Calabrese v Miuccio (No 2) (19).
[83] Calabrese v Miuccio (No 2) (23).
[84] Calabrese v Miuccio (No 2) (30).
Accordingly, in my view, at least by May 2023 when the sale proceeds were deposited into the trust account of the applicant law firm (and certainly no later than the exchange of communications as between the legal advisers in July 2023), the Trust Fund was held by the applicant law firm on behalf of Lance and Julie as tenants in common in equal shares, rather than as joint tenants (notwithstanding the absence of any formal proceedings in the Family Court or any order of that Court). The absence of such proceedings or any binding order does not preclude the Court reaching a finding as to severance or the mutual intention of the parties having regard to the overall course of conduct and acts of the parties, in my respectful view.
That being so, upon Lance's death in October 2023, there is no basis to contend that Julie would be entitled to the entirety of the Trust Fund by reason of any right of survivorship. Rather, the Trust Fund would continue to be held by the applicant law firm on trust for Lance and Julie as tenants in common in equal shares, to be distributed in accordance with the written authorities which had been given, as required by the provisions of the Uniform Law to which I have earlier referred.
It was thus proper for the applicant law firm to decline to accede to the request from Julie's legal advisers to distribute the entirety of the Trust Fund to Julie (as was sought in December 2023). The applicant law firm must hold the Trust Money 'exclusively for the person [or persons] on whose behalf it is received' (using the language of s 138(1)(a) of the Uniform Law). The applicant law firm is permitted to disburse the Trust Fund only 'in accordance with a direction given by the person [or by the persons]' (using the language of s 138(1)(b) of the Uniform Law). These restrictions are subject to any order of a court of competent jurisdiction or as authorised by law, as provided for in s 138(2) of the Uniform Law.
The effect of the foregoing is that it is permissible for the applicant law firm, in my view, to distribute half of the Trust Fund to Julie, upon receipt from her of a signed written direction to that effect. That follows from the nature of the property as being held for Julie as a tenant in common in equal shares with Lance, and from s 138(1)(b) of the Uniform Law. Ultimately, this is a direction which both the applicant law firm and Dianne submitted should be made by the Court.
Similarly, the applicant law firm, in my view, may properly distribute half of the Trust Fund to the legal personal representative of Lance, upon receipt from that person of a signed written direction to that effect. That also follows from the nature of the property as being held for Lance as a tenant in common in equal shares with Julie, and from s 138(1)(b) of the Uniform Law. This is a direction which only Dianne's counsel submitted should be made by the Court, the applicant trustee having proposed the neutral position that it would be justified in not distributing the fund to Lance's personal representative. In my view, a distribution in the manner I have identified would be justified given the conclusions I have reached on the Application.
Of course, as matters stand, no personal representative has been appointed to Lance's estate.
To allow for any proper application to be made by Julie, or any other party in anticipation of the distribution of the Trust Fund to the personal representative appointed in respect of Lance's estate, I propose that any distribution by the applicant to that personal representative be undertaken only upon the provision of no less than 14 days' notice to Julie's solicitors.
I should emphasise that my conclusions do not reflect a final determination by this Court of the underlying entitlements of the parties to the Trust Fund. To the extent the parties remain in dispute in that regard, substantive proceedings for declaratory and other relief will need to be instituted. The present proceedings serve only as a vehicle for the provision of judicial advice to the applicant trustee as to the manner in which it may proceed without exposure to liability. These reasons should not be regarded, expressly or otherwise, as any determination of the underlying controversy.
Conclusion and orders
I will hear from counsel as to the appropriate orders which should now be made to give effect to these reasons, and will make directions for the provision of any further submissions on the issue of costs to address the various costs orders which have already been foreshadowed, including the effect of the High Court's decision in Bell Lawyers Pty Ltd v Pentelow.
ATTACHMENT A
Extracts from the Applicant's letter dated 14 July 2023
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
TL
Associate to the Honourable Justice Lundberg
31 JULY 2024
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