Craigie and Harley v Kemp
[2016] WASC 243
•11 AUGUST 2016
CRAIGIE & HARLEY -v- KEMP [2016] WASC 243
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 243 | |
| Case No: | CIV:2967/2015 | 21 JULY 2016 | |
| Coram: | MASTER SANDERSON | 11/08/16 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | No severance of joint tenancy | ||
| B | |||
| PDF Version |
| Parties: | CYRIL FREDERICK CRAIGIE & SYLVIA JEAN HARLEY as Executors of the Estate of MARY ENA FORREST DANIELLE RENEE KEMP THELMA DAWN KEMP |
Catchwords: | Property law Severance of joint tenancy Whether attempt to sever joint tenancy effective in equity Turns on own facts |
Legislation: | Nil |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
The Estate of Mary Ena Forrest late of Bethanie Fields, 111 Eaton Drive, Eaton, Western Australia (Dec)
- Plaintiffs
AND
DANIELLE RENEE KEMP
First Defendant
THELMA DAWN KEMP
Second Defendant
Catchwords:
Property law - Severance of joint tenancy - Whether attempt to sever joint tenancy effective in equity - Turns on own facts
Legislation:
Nil
Result:
No severance of joint tenancy
Category: B
Representation:
Counsel:
Plaintiffs : Ms E C Hensler
First Defendant : Ms C H Thompson
Second Defendant : Ms W F Gillan
Solicitors:
Plaintiffs : Benz Legal
First Defendant : Chris Garvey Lawyers
Second Defendant : Ball & Co
Case(s) referred to in judgment(s):
Nil
1 MASTER SANDERSON: The plaintiffs are the executors of the will of the late Mary Ena Forrest (the deceased). They seek directions as to how they should proceed in relation to the deceased's estate. As at the date of the death of the deceased the deceased and the second defendant were registered as joint tenants of a property at 10 Houston Crescent, Bunbury. By her will the deceased purported to leave her interest in that property to the first defendant. The second defendant says that as she was a joint tenant with the deceased the property passed to her on the death of the deceased. Really the question to be determined is whether or not steps taken by the deceased during her lifetime terminated the joint tenancy.
2 There was no dispute between the parties as to the relevant facts. In late 1971 or early 1972, the deceased transferred her interest in the Houston Crescent property to herself and the second defendant as tenants in common. By mid-2009 the deceased had decided she wished to sever the joint tenancy. She consulted Mr Clive Young of Young & Young solicitors. Mr Young drew up a document which is entitled 'Deed to Sever Joint Tenancy'. As this deed is central to determination of the questions at issue I will quote it in full:
BACKGROUND
A. The Joint Tenant is registered as one of two joint tenants of an estate in fee simple in ALL THAT piece of land being Lot 91 on Plan 9027 the whole of the land in Certificate of Title Volume 175 Folio 41A ('The Land') and wishes to sever the joint tenancy.
B. The parties hereto ('The Parties') have agreed that The Joint Tenant will transfer to Clive the interest of The Joint Tenant in The Land, the effect of which will be to sever the joint tenancy and that thereafter Clive will hold the one undivided half share of an estate in fee simple in The Land which he acquires by virtue of the said transfer in trust for The Joint Tenant whereafter he will immediately transfer the same back to The Joint Tenant pursuant to the trusts upon which he holds the share in The Land.
OPERATIVE PART
1. The Parties HEREBY CONFIRM AND ACKNOWLEDGE the Background provisions hereof.
2. Accordingly, The Joint Tenant will immediately execute a transfer of the interest of The Joint Tenant in The Land to Clive.
3. Clive will immediately execute a transfer of the one undivided half share in The Land which he will hold as a result of the transfer referred to in paragraph 2 hereof back to The Joint Tenant who will then hold a one undivided half share in The Land with the other party who was previously a joint tenant with The Joint Tenant and thereafter the parties who originally held The Land as joint tenants will hold the same as tenants in common in equal shares.
4. The Parties CONFIRM AND ACKNOWLEDGE that The Joint Tenant appoints Clive as her agent to do all things necessary to complete and effect the transactions referred to in this Deed, including effecting the registration of the transfers referred to in paragraphs 1 and 2 above.
3 It is common ground between the parties, although this deed was signed it did not result in the registration of the property into the names of the deceased and the second defendant as tenants in common. The reason for that was the second defendant held the title and she refused to produce it. Without the title Landgate would not register the change of ownership. As a consequence there was no severing of the joint tenancy at law. Counsel for the first defendant accepted that to be the case. She submitted however, that there was a severance of the joint tenancy in equity and this court could give effect to that severance.
4 Both parties accepted it was possible to sever a joint tenancy in equity. Both counsel also accepted for such a severance to be effective there had to be consideration for the transaction. In other words Mr Young had to provide to the deceased some consideration for the transfer to him of the deceased's interests in the property. If there was no consideration then equity would not intervene and the joint tenancy would hold good.
5 Counsel submitted the consideration in this case was the fees paid by the deceased to Mr Young for his services. (In fact, Mr Young waived his fees, but it can be accepted for the purposes of the argument he was entitled to charge and he did so). Counsel produced an heroic argument. But to no avail. It is clear there was no consideration for the transaction.
6 As I understand it, deeds such as the one produced by Mr Young are commonly used to sever a joint tenancy. The Office of State Revenue does not levy duty on the transaction. After all what is happening is a change in the status of the owners of the land - there is no actual change in ownership. The deed is not really intended to vest any property in a party such as Mr Young. It is just a device to sever the joint tenancy. There is nothing wrong in that; it is a perfectly proper course to follow. But, there is no exchange of consideration as would be the case in a commercial transaction. During the course of submissions there was considerable argument about whether or not remedies of specific performance might be available to Mr Young or the deceased. But, really, that misses the point. The fact is on no view could it be said consideration passed between Mr Young and the deceased for the transfer of the property. That being so, the deed is ineffective in equity and the joint tenancy was un-severed.
7 The first question posed by the plaintiff's originating summons was in the following terms:
Did her actions in signing the deed dated 30 October 2009 and the two land transfers constitute conduct by the deceased sufficient to sever the joint tenancy existing in respect of the ownership by her and the second defendant of 10 Houston Crescent Bunbury.
8 The answer to that question is no.
9 Questions two, three and four then fall away. The only remaining question is as to costs. I will hear the parties on that question.
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