Gambacorta v Di Giovanni - [2021] NSWSC 61

Supreme Court

New South Wales

Medium Neutral Citation: Gambacorta v Di Giovanni [2021] NSWSC 61
Hearing dates: 18 and 19 November 2020
Decision date: 09 February 2021
Jurisdiction: Equity
Before: Robb J
Decision:
The plaintiff is entitled to a declaration in appropriate terms that the joint tenancy in the joint bank accounts and jointly owned shares was severed. See par [140]. Parties should confer and provide draft short minutes of order giving effect to these reasons to my Associate.

Catchwords:
EQUITY — Co-ownership — Severance of joint tenancy — Severance in equity — where married couple held as joint tenants several shared bank accounts and shares — where the wife predeceased the husband — whether their conduct severed the joint tenancy in the shared bank accounts and shares — where wills were made by the wife and the husband — whether the distribution of assets in those wills indicated an intention that each will would operate in accordance with its terms on the death of either — where the deceased’s will would operate on the deceased's half of the property, such that it would not pass by survivorship — joint tenancy severed in equity.

Cases Cited:
Bergen v Bergen 2013 BCCA 492
Corin v Patton (1990) 169 CLR 540; [1990] HCA 12
Mischel Holdings Pty Ltd (in liq) v Mischel [2013] VSCA 375
Scott v Scott [2009] NSWSC 567

Category: Principal judgment
Parties: Caterina Gambacorta (plaintiff)
Giuliano Di Giovanni (defendant)
Representation:
Counsel: C Stomo / V Chan (plaintiff)
J Thomson (defendant)
Solicitors: Team Legal Group (plaintiff)
Calabrese Lawyers (defendant)

File Number(s): 2018 / 60480

Judgment

The plaintiff, Caterina Gambacorta, is the niece and executrix of the estate of the late Maria Di Giovanni, who died on 9 August 2017.
The defendant is the deceased's husband, Giuliano Di Giovanni.
As has become conventional in matters such as the present, and in conformity with the approach adopted by the parties, I will, without meaning any disrespect, refer to the parties and other relevant members of the family by their first names.

Issues

These proceedings were commenced by summons filed on 30 July 2019 whereby Caterina principally claims declaratory relief.
The principal issue in the proceedings is whether half of the value of some shares owned jointly by Maria and Giuliano, as well as half of the money that was in a number of bank accounts in the joint names of Maria and Giuliano at the date of Maria's death, are assets of Maria's estate to be dealt with in accordance with her final will.
Giuliano withdrew the money from the joint bank accounts, and after negotiations between the solicitors for the parties, half of the amount withdrawn, being $237,319.09, was paid into Giuliano's solicitor's trust account, pending the outcome of these proceedings. The amount of $237,319.09 is therefore the amount in issue insofar as the joint bank accounts are concerned.
Caterina’s summons also claims a declaration that 1900 AGL shares held in Giuliano’s name were held as tenants in common between…

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 Gambacorta v Di Giovanni

Details

AGLC: Gambacorta v Di Giovanni [2021] NSWSC 61
Case: [2021] NSWSC 61
Decision Date: 09 February 2021

CaseChat Overview and Summary

In the matter of Gambacorta v Di Giovanni, the dispute arose from the death of a married couple who held several shared bank accounts and shares as joint tenants. The wife predeceased the husband, leading to a question of whether their conduct had severed the joint tenancy in these assets, such that they would not pass by survivorship. The case was heard in the Supreme Court of Victoria.

The legal issues that the court needed to address were whether the conduct of the parties severed the joint tenancy in equity and whether the distribution of assets in their respective wills indicated an intention that each will would operate in accordance with its terms on the death of either party. The court had to determine if the joint tenancy in the shared bank accounts and shares was severed in equity, and if so, whether this was due to the conduct of the parties or the terms of their wills.

The court held that the conduct of the parties had severed the joint tenancy in equity. The shared bank accounts and shares were held for the benefit of both parties as joint tenants, but their conduct indicated an intention to sever the joint tenancy. The court found that the distribution of assets in the wills, which would operate on the deceased's half of the property, further supported the conclusion that the joint tenancy had been severed in equity. The court was satisfied that the evidence pointed to an intention to sever the joint tenancy, such that the assets would not pass by survivorship.

The final orders of the court were that the joint tenancy in the shared bank accounts and shares was severed in equity, and that the deceased's will would operate on their half of the property. The court's decision provides clarity on the circumstances in which joint tenancy can be severed in equity and the factors that may be considered in determining whether such severance has occurred.

Orders