Corinne Griffin & Co v Fraser

Case [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

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

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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