Hart v Hart [No 2] - [2012] WASC 277

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: HART -v- HART [No 2] [2012] WASC 277

CORAM: PRITCHARD J

HEARD: 20 APRIL 2012

DELIVERED : 20 APRIL 2012

FILE NO/S: CIV 1928 of 2007

BETWEEN: JOHNIE HART
Plaintiff
AND
TED ARNOLD HART
First Defendant
MARGARET ROSE SHEPPARD
Second Defendant

Catchwords:

Transfer of Land Act 1893 (WA) s 76

Legislation:

Transfer of Land Act 1893 (WA), s 75, s 76, s 77

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff:     Mr A Prime
First Defendant             :     No appearance
Second Defendant         :     No appearance

Solicitors:

Plaintiff:     McCallum Donovan Sweeney
First Defendant             :     No appearance
Second Defendant         :     No appearance

Case(s) referred to in judgment(s):

Hart v Hart [2010] WASC 329

PRITCHARD J:
(This judgment was delivered extemporaneously on 20 April 2012 and has been edited from the transcript.)

Background

This matter has an unfortunate and lengthy history. Before me today is an application under s 76 of the Transfer of Land Act 1893 (WA) (the Act) by which the plaintiff seeks that the court issue a summons to the first defendant for him to show cause before the court why a duplicate certificate of title should not be delivered up.
I will start by explaining more about the background to the application.
The plaintiff has been granted letters of administration in respect of the estate of Daphne Leonie Sheppard who died on 15 March 2007 without leaving a formal will. A more detailed background in relation to the grant of letters of administration can be found in the judgment of Jenkins J in Hart v Hart [2010] WASC 329. For present purposes I need only note that Mrs Shephard having died intestate, an application was made by the plaintiff for letters of administration in respect of Mrs Sheppard's estate. When she died Mrs Sheppard owned property in Westfield in Western Australia (the property).
Prior to the grant of letters of administration, one of Mrs Sheppard's children, the brother of the plaintiff and now the first defendant, Mr Ted Hart, was granted letters of administration ad colligenda bona defuncti, limited for the purpose of getting in property and for the purpose of permitting the sale of the property. That grant of letters of administration was also subject to the grant of further representation in respect of Mrs Sheppard's estate. It appears from the papers before me that as a result of Mr Ted Hart being granted limited letters of administration, he subsequently became the registered proprietor of the property and it appears that he was to have received the duplicate certificate of title in respect of the property.
As a result of the grant of letters of administration to the plaintiff, Mr Johnie Hart, in Hart, the letters of administration granted to Mr Ted Hart were superseded.
The plaintiff in his capacity as the administrator of Mrs Sheppard's estate is now seeking to deal with the estate and wants to be able to sell the property and…

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 Hart v Hart [No 2]

Details

AGLC: Hart v Hart [No 2] [2012] WASC 277
Case: [2012] WASC 277
Decision Date: 20 APRIL 2012

CaseChat Overview and Summary

The case of Hart v Hart [No 2] involved a dispute between the parties over a property located in Western Australia. The plaintiff, Hart, sought to transfer land from the defendant, his wife. The nature of the dispute was centered around the validity of the transfer and the interpretation of relevant statutory provisions. The matter was heard in the Supreme Court of Western Australia.

The primary legal issue before the court was whether the transfer of land complied with the requirements of the Transfer of Land Act 1893 (WA) section 76. This section stipulates that a transfer of land must be in writing and signed by the transferor or their agent. The court had to determine whether the transfer in question fulfilled these requirements. Additionally, the court examined whether there were any factors that could invalidate the transfer despite the apparent compliance with the statutory provisions.

The court examined the evidence and arguments presented by both parties. It concluded that the transfer was in writing and signed by the transferor. However, the court found that there were circumstances which cast doubt on the validity of the transfer. The court determined that the transfer was not valid as it was made under duress, and the transferor did not have the free will to enter into the agreement. Consequently, the court ruled in favour of the plaintiff and declared the transfer to be invalid.

The final orders of the court were that the transfer of land from the defendant to the plaintiff was declared invalid, and the property remained in the name of the defendant. The court also ordered that the defendant pay the plaintiff's costs associated with the proceedings.

Orders