Legal Research
Cases
Edwards v Edwards

Edwards v Edwards

Case [2023] NSWSC 1067 1 September 2023

Forfeiture

Joint Tenancy

Trustees

Statutory Interpretation

Succession Law

No judgment structure available for this case.

Type to search within this case.

Supreme Court

New South Wales

Medium Neutral Citation: Edwards v Edwards [2023] NSWSC 1067
Hearing dates: 1 September 2023
Date of orders: 1 September 2023
Decision date: 01 September 2023
Jurisdiction: Equity
Before: Henry J
Decision:
Declarations and orders made applying the forfeiture rule and appointing trustees for sale of properties

Catchwords:
SUCCESSION — forfeiture under public policy rule — where defendant and deceased are joint tenants of three properties — whether the defendant convicted of murdering deceased — forfeiture rule applied — trustees for sale of properties pursuant to s 66G Conveyancing Act 1919 (NSW) appointed

Legislation Cited:
Conveyancing Act 1919 (NSW)
Crime (Administration of Sentences) Act 1999 (NSW)
Evidence Act1995 (NSW)
Forfeiture Act 1995 (NSW)

Cases Cited:
Helsham v Blackwood (1851) 11 C.B. 111
Helton v Allen (1940) 63 CLR 691
Josifovski v Velevski [2013] NSWSC 1103
Nay v Iskov [2012] NSWSC 598
Neubacher v Good (2003) 11 BPR 20,877; [2003] NSWSC 379
Rasmanis v Jurewitsch [1970] 1 NSWR 650; (1970) 70 SR (NSW) 407
Settree Estates; Robinson v Settree (2018) 98 NSWLR 910; [2018] NSWSC 1413
Troja v Troja (1994) 33 NSWLR 269

Category: Principal judgment
Parties: Joshua Lee Edwards (Plaintiff)
John Wallace Edwards (Defendant; Self-Represented)
Representation:
Counsel:
I Hoskinson (Plaintiff)
Solicitors:
Turnbull Hill Lawyers (Plaintiff)

File Number(s): 2023/167091
Publication restriction: Nil

JUDGMENT – Ex TEMPORE (Revised)

This is an application by the administrator of the estate of the late Sharon Margaret Edwards (deceased) for declaratory relief that relies on the forfeiture rule in relation to three properties held by the deceased and the defendant as joint tenants, and consequential orders in relation to those properties.
The application is made in the context where the defendant was convicted of the murder of the deceased.
The plaintiff’s application is made by statement of claim filed 25 May 2023. It is supported by an affidavit of the plaintiff affirmed on 24 July 2023, affidavits of service sworn 3 August 2023, 19 July 2023 and 23 August 2023, two affidavits of Alexa Stefanovski sworn 21 and 31 August 2023, an affidavit of Adrian Corbould affirmed 31 August 2023 and an affidavit of Gavin Hanrahan affirmed 31 August 2023.
The defendant is a prisoner at the Macquarie Correctional Centre. He was served with the statement of claim and supporting affidavits and was given notice of today’s hearing but has not filed a notice of appearance or defence. He has appeared at today’s hearing by audio-visual link, the Court having made an order enabling him to do so under s 77 of the Crime (Administration of Sentences) Act 1999 (NSW).
An explanation has been provided by the Court to the defendant about the nature of the proceedings and the orders sought by the plaintiff, and he was able to hear the submissions advanced by the plaintiff's counsel in support of the application. The defendant was content for the hearing to proceed and indicated that he does not oppose the orders sought by the plaintiff save in…

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 Edwards v Edwards

Details

AGLC: Edwards v Edwards [2023] NSWSC 1067
Case: [2023] NSWSC 1067
Decision Date: 01 September 2023

CaseChat Overview and Summary

In the case of Edwards v Edwards, the dispute centred around the ownership of three properties held in joint tenancy between the defendant and the deceased. The deceased was murdered by the defendant. The court was tasked with determining whether the defendant, having been convicted of the murder, was entitled to inherit the properties or if the public policy rule against a murderer profiting from their crime applied, thereby resulting in forfeiture of the defendant's interest. The court had to interpret and apply the relevant statutory provisions, specifically section 66G of the Conveyancing Act 1919 (NSW), to resolve the ownership dispute.

The primary legal issue before the court was whether the public policy rule against a murderer profiting from their crime applied in this instance, leading to the forfeiture of the defendant's interest in the jointly held properties. The court needed to determine if the defendant's conviction for the murder of the deceased resulted in the automatic forfeiture of their interest in the properties, as per the established common law principles. Furthermore, the court had to consider the statutory framework provided by section 66G of the Conveyancing Act 1919 (NSW) and its application to the facts of the case.

In its decision, the court found that the public policy rule against a murderer profiting from their crime did indeed apply, resulting in the forfeiture of the defendant's interest in the jointly held properties. The court emphasised that this rule is a fundamental principle of equity and public policy, designed to prevent a murderer from benefiting from their criminal act. The court also noted that the statutory provisions under section 66G of the Conveyancing Act 1919 (NSW) provided a clear mechanism for the appointment of trustees to sell the properties and distribute the proceeds in accordance with the law. Accordingly, the court ordered that trustees be appointed to sell the properties and distribute the proceeds according to the statutory requirements.

The final orders of the court were that the defendant's interest in the jointly held properties was forfeited due to their conviction for the murder of the deceased. Trustees were appointed to sell the properties and distribute the proceeds in accordance with the provisions of section 66G of the Conveyancing Act 1919 (NSW). The court's decision underscored the importance of the public policy rule against a murderer profiting from their crime and the role of statutory provisions in facilitating the resolution of such disputes.

Orders