Facchetti v Facchetti

[2004] NSWSC 898

CITATION:	Facchetti v Facchetti & Anor [2004] NSWSC 898
HEARING DATE(S):	12/08/04
JUDGMENT DATE:	29 September 2004
JUDGMENT OF:	White J
DECISION:	See Judgment
CATCHWORDS:	Joint tenancy between husband and wife - Agreement to sever effective in equity but not at law - Death of husband - Probate of husband's estate granted to wife - Wife entitled to be registered as proprietor of whole estate and holds husband's half share on trusts of the will.
LEGISLATION CITED:	Real Property Act 1900 (Cth) Trustee Act 1925 (Cth) Wills, Probate and Administration Act 1989 (Cth)
CASES CITED:	Williams v Hensman (1861) 1 J&H 546; 70 ER 862 Re Wilks; Child v Bulmer [1891] 3 Ch 59 Wright v Gibbons (1949) 78 CLR 313 Lyons v Lyons [1967] VR 169 Abela v Public Trustee [1983] 1 NSWLR 308 Corin v Patton (1990) 169 CLR 540 Magill v Magill (1993) 5 BPR 12,022
PARTIES :	Cecilia Facchetti v Cecilia Facchetti as executrix of the Estate of the Late Giuseppe Facchetti & Registrar-General of New South Wales
FILE NUMBER(S):	SC 2673/04
COUNSEL:	D K L Raphael
SOLICITORS:	Messrs Capolupo & Co Solicitors

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY LIST

WHITE J

Wednesday, 29 September 2004

2673/04 CECILIA FACCHETTI v CECILIA FACCHETTI AS EXECUTRIX OF THE ESTATE OF THE LATE GIUSEPPE FACCHETTI & REGISTRAR-GENERAL OF NEW SOUTH WALES

JUDGMENT

1 HIS HONOUR: The plaintiff is the widow and executrix of the estate of the late Giuseppe Facchetti who died on 7 April 2002. The plaintiff and her late husband were the registered proprietors of a property at 61 Queen Street, Canley Vale which they held as joint tenants. On 7 September 2000 they each executed a deed which recited, inter alia, that they had agreed to sever the joint tenancy and to henceforth hold the land as tenants in common in equal shares and which provided for such severance.

2 Mr Facchetti died on 7 April 2002. Probate of his will was granted to the plaintiff on 11 June 2003. By his will he devised his interest in the property at 61 Queen Street, Canley Vale to his daughters.

3 In these proceedings the plaintiff claims a declaration that the joint tenancies were severed on 7 September 2000 and that, as and from 7 September, the plaintiff and the deceased held the title to the land on trust for themselves as tenants in common in equal shares.

4 It is not clear why the present proceedings are necessary. The plaintiff has brought the proceedings against herself in her capacity as executrix of the estate of the late Giuseppe Facchetti. In support of the summons her solicitor deposed that “the Registrar-General refused to acknowledge that the effect of the deed is, as and from the moment of execution thereof, to sever the joint tenancy between the two signatories thereof in respect of the property”. At my direction the Registrar-General was added as a defendant to the proceedings. He has entered a submitting appearance by which he consents to such orders as the Court may make except as to costs. It appears from correspondence between the Registrar-General and the plaintiff’s legal advisers that the Registrar-General took the position that:

(a) the deed did not effect a severance of the joint tenancy at law;

(b) the Court does not have jurisdiction to effect a severance of a joint tenancy by order;

(c) there was no effective severance in equity because the deceased did not do all that he could have done prior to his death to ensure that the deed was irrevocable and to effect a severance at law;

(d) the plaintiff must obtain a vesting order from the Supreme Court vesting the land in the plaintiff and the Court order must “overcome the issue of ‘survivorship’ which took effect upon the death of the deceased joint tenant”; and

(e) alternatively to (d) the plaintiff could lodge a notice of death so that ‘the severance is noted’, followed by a transfer to give effect to the intended disposition of the land.

5 There is no issue about (a) or (b). There is no doubt that the deed of 7 September 2000 was effective in equity but not at law to sever the joint tenancy. The instrument was not a voluntary or unilateral act of the deceased. It recorded and gave effect to the agreement between the plaintiff and the deceased to sever the joint tenancy. It has never been doubted that in equity a joint tenancy may be severed by mutual agreement. (Williams v Hensman (1861) 1 John & H 546; 70 ER 862 at 867; Re Wilks; Child v Bulmer [1891] 3 Ch 59 at 61-2; Wright v Gibbons (1949) 78 CLR 313 at 322; Lyons v Lyons [1967] VR 169 at 170; Abela v Public Trustee [1983] 1 NSWLR 308 at 315, 316; Corin v Patton (1990) 169 CLR 540 at 547, 548, 574 and 587; Magill v Magill (1993) 5 BPR 12,022 at 12,024 and 12,025).

6 No severance, however, was effected at law as no transfer was registered to convey the estate of the registered proprietors from themselves as joint tenants to themselves as tenants in common. It follows that, as from 7 September 2000, the deceased and the plaintiff held the land as joint tenants but on trust for themselves as tenants in common.

7 However, the Register is not concerned with trusts. Following the death of the deceased, the plaintiff is entitled to be registered as proprietor of the whole estate. By filing a Notice of Death, she may request the Registrar-General to register her as the proprietor of the land. (Real Property Act s 101(1)). She will then be the holder of the entire legal estate but will hold a half share of the property on the trusts of the deceased’s will.

8 No reason has been advanced in the correspondence from the Registrar-General or in the submissions from the plaintiff as to why it is necessary to make a vesting order under s 71 of the Trustee Act. The deceased’s interest as a beneficial owner as tenant in common of a half share of the land is now vested in the plaintiff, as the executrix of his estate, pursuant to s 44 of the Wills, Probate and Administration Act 1898. The only way in which the legal estate can be vested in the plaintiff is by registration pursuant to s 101 of the Real Property Act. Lodgment of a Notice of Death will not be a “notice of severance”. Severance in equity has already been effected. Severance at law is impossible because the joint tenancy has come to an end by Mr Facchetti’s death. Once the plaintiff is registered as proprietor of the whole of the land she will be able to deal with the half interest she holds on the trusts of the deceased’s will as her duty as executrix might require, including, if that be appropriate, by transfer to the deceased’s daughters.

9 In the circumstances the only relief which it is appropriate to grant is the following declarations:

(1) That as and from 7 September 2000 the plaintiff and Giuseppe Facchetti, being the registered proprietors as joint tenants of the land in folio identifier 7338/201 and known as 61 Queen Street, Canley Vale held the said land on trust for themselves as tenants in common in equal shares.

(2) That the beneficial ownership of the late Giuseppe Facchetti of a one half interest in the said land is property which is vested in the plaintiff as executrix of his estate.

10 I so declare.

11 I make no orders as to costs of the proceedings.

12 I grant liberty to either party to apply on seven days’ notice in writing.

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Last Modified: 09/29/2004