Corinne Griffin & Co v Fraser - [2024] WASC 264

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…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Corinne Griffin & Co v Fraser

Details

AGLC: Corinne Griffin & Co v Fraser [2024] WASC 264
Case: [2024] WASC 264
Decision Date: 31 JULY 2024

CaseChat Overview and Summary

In Corinne Griffin & Co v Fraser, the dispute arose between the solicitors for the deceased husband and the surviving wife, concerning the status of funds held in trust following the sale of their matrimonial home. The case was heard in the Supreme Court of Western Australia. The solicitors for the deceased husband sought directions from the court regarding the distribution of the trust funds, while the surviving wife argued that the joint tenancy in the matrimonial home had been severed, and that she was entitled to the full proceeds of the sale as a tenant in common with her deceased husband.

The legal issues before the court involved determining the nature of the joint tenancy in the matrimonial home, whether it had been severed by the course of conduct, and whether the surviving wife's right of survivorship subsisted. Additionally, the court had to decide whether the solicitors were justified in distributing the trust funds received from both parties.

The court found that the joint tenancy had indeed been severed by the course of conduct, as the husband and wife had agreed to hold the proceeds of the sale in trust. Consequently, the funds were held as tenants in common. The court also held that the surviving wife's right of survivorship had been extinguished by the joint agreement to hold the funds on trust. Given these findings, the court provided judicial advice that the solicitors were justified in distributing the funds in accordance with the terms of the trust and the separate written authority instruments signed by both parties. The court's decision turned on the unique facts of this case, emphasising the importance of clear communication and documentation in such circumstances.

Orders