Estate of Judith Ann Watson

[2017] NSWSC 596

Supreme Court

New South Wales

Medium Neutral Citation:	Estate of Judith Ann Watson [2017] NSWSC 596
Hearing dates:	15 May 2017
Date of orders:	15 May 2017
Decision date:	15 May 2017
Before:	Sackar J
Decision:	Orders made
Legislation Cited:	Real Property Act 1900 (NSW).
Category:	Principal judgment
Parties:	Rodney Spencer Scarfe (plaintiff) Julie Ann Watson (defendant)
Representation:	Counsel: R K Weaver (plaintiff) No appearance (defendant)   Solicitors: Konstan lawyers No appearance
File Number(s):	2016/216525

Judgment – ex tempore

1. HIS HONOUR: The plaintiff, Rodney Spencer Scarfe, and the defendant, Julie Ann Watson have agreed certain facts in this matter. I will come to the facts briefly, but orders are sought from this court this morning. A number of declarations are sought and an alteration to the probate of the deceased Judith Ann Watson is also sought. For reasons that I shall come to, I think those orders are appropriate to be made.

2. The agreed statement of facts disclosed a number of matters which are important to record. From June 1992 until November 2006 the plaintiff, together with the defendant's mother, Judith, were the registered proprietors, as joint tenants, of a property known as 65 Pritchard Road, Annandale, being the whole of the land contained in folio D/319852. The plaintiff and the defendant's mother had lived together for about 38 years. The property had been purchased in April 1992 for $250,000. The plaintiff paid a deposit of $100,000 and obtained a mortgage of $150,000 to complete the purchase from National Australia Bank. The plaintiff was able, in 1993, to discharge the mortgage as a result of a cash advance from his father. The title deeds were thereafter held by the plaintiff and the defendant's mother in their home in a safe.

3. It is uncontroversial that in about November 2006 Judith unilaterally severed the joint tenancy without providing any notice to the plaintiff and, indeed, sad though it is, she appears to have actively concealed that activity from him. In or about late 2006 Judith advised the defendant, her daughter, that she had unilaterally severed her joint tenancy with the plaintiff and actively concealed that fact from him and asked the defendant in turn to keep that fact from the plaintiff as well. The defendant, however, informed the plaintiff shortly after Judith's death that his joint tenancy with Judith had been severed in 2006 and that her mother had left a will dated 11 August 1980 in which she left the whole of her estate to the defendant.

4. Happily, however, after discussions, the plaintiff and the defendant have reached an agreement which is embodied in a deed dated 5 May 2017. The defendant has entered into a contract to purchase a property, the completion of which is due to take place on 22 May 2017 and the plaintiff has agreed to pay the balance of the moneys due to the defendant by their agreement prior to 22 May 2017 in order that the defendant can complete her purchase, on the condition that certain orders which are sought here are made and entered by that time.

5. The court is invited to make certain declarations by consent. That fact is clearly relevant but not determinative of whether and, if so, to what extent, a court will make orders by way of declaration by consent. As Young JA observed in Nicholls v Michael Wilson & Partners [2010] NSWCA 222 at 132, it is clear the court has a very wide discretion to make declaratory orders. It is also clear the court, in its discretion, may determine that it is inappropriate to make a declaration. Because the matter is one of the exercise of discretion, special facts in a particular case may mean that the discretion is exercised other than in accordance with principle.

6. More recently, Pembroke J in GeorgeZoltan Ajkay v Hickey & Co Pty Ltd [2011] NSWSC 822 collected the various authorities as to when a court may or may not make declarations by consent, from which a number of propositions can be identified. First, declarations are somewhat of a rarity when made by consent. Secondly, the making of a declaration is a judicial act determining and pronouncing a legal right. Thirdly, as an order of the court, a declaration binds the parties to the proceedings but, because the impact of a declaration may not be confined to the parties, in doing so a court needs to take into account therefore the possible consequences of any declaratory relief granted. Fourthly, in circumstances where the court is satisfied the declaration is confined to the private rights between the various parties, it may be appropriate to make the orders sought.

7. Here the evidence supports the view, and I am satisfied accordingly, that the defendant's mother unilaterally severed the joint tenancy without notice to the plaintiff and actively concealed that severance from him. Her conduct was fraudulent in a relevant sense of s 42 of the Real Property Act 1900 (NSW). The court has power under s 138(3)(b) of the Real Property Act to set aside the dealing where it is of the opinion that the circumstances require it. I am satisfied here that the defendant's mother's act of concealment, as I have said, constituted fraud for the purposes of the Real Property Act. It follows that I am satisfied that it is both appropriate and justified to make the declarations sought. It also seems to me that only the plaintiff and the defendant's rights are involved, there being no mortgagee or other third party who, in my view, could possibly have any interest in the outcome of these proceedings.

8. Accordingly I will make the orders sought and therefore I will make declarations in accordance with paras 1 and 3 of the orders sought. I make an order the transfer unilaterally severing the joint tenancy registered number AC724476H be set aside. I also make an order in accordance with para 4 that the probate of the deceased be altered in accordance with the requests made in paras (a) and (b) and, lastly, I make a declaration in accordance with para 5 of the orders sought. I make para 6 that there be no order as to costs. In para 7 I note these orders be entered forthwith. In those circumstances I will then formally make those orders.

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Decision last updated: 16 May 2017