Jacovic v Public Trustee

[2010] WASCA 100

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   JACOVIC -v- PUBLIC TRUSTEE [2010] WASCA 100

CORAM:   PULLIN JA

MURPHY J

HEARD:   6 MAY 2010

DELIVERED          :   6 MAY 2010

FILE NO/S:   CACV 160 of 2009

BETWEEN:   DRAGAN JACOVIC

Appellant

AND

PUBLIC TRUSTEE
First Respondent

SHAUN WILLIAM CONLIN
Second Respondent

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :MASTER SANDERSON

File No  :CIV 2063 of 2009

Catchwords:

Practice and procedure - Dismissal of appeal for failure to comply with rules

Legislation:

Nil

Result:

Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     In person

First Respondent           :     Mr B W Ashdown

Second Respondent      :     No appearance

Solicitors:

Appellant:     In person

First Respondent           :     Public Trustee (WA)

Second Respondent      :     No appearance

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

Neubacher v Good [2003] NSWSC 379

Rasmanis v Jurewitsch (1969) 70 SR (NSW) 407

Troja v Troja (1994) 33 NSWLR 269

1. PULLIN JA:  This appeal has been listed to allow the appellant to show cause why the appeal should not be dismissed for failure to comply with the Supreme Court (Court of Appeal) Rules 2005 (WA). The appeal was commenced on 30 December 2009. The operation of the rules provides that the appellant's case should be filed by 22 February 2010. By letter dated 8 January 2010 the Court of Appeal registrar advised the appellant that should he fail to meet the time line set out in the rules or those set by the registrar, the appeal may be dismissed. Reference was made to r 43(2)(g) which provides that an appeal may be dismissed if the appellant does not obey the rules.

2. The letter from the registrar also advised the appellant that he must file and serve the appellant's case within 35 days of filing his appeal notice, that is, on or before 22 February 2010.  Advice was given as to what was to be contained within the appellant's case.  No appellant's case was filed and the case support officer of the Court of Appeal wrote to the appellant by letter dated 10 March 2010 advising that the appellant's case was due to be filed and served by 22 February 2010, and advising that the appellant's case should be filed without delay.  There was no appropriate response to that letter.

3. On 19 April 2010, the Court of Appeal registrar ordered that unless the appellant file and serve the appellant's case by 29 April 2010 the parties were to attend before the Court of Appeal today for the appellant to show cause why the appeal should not be dismissed for failure to comply with the rules. 

4. Although there are no grounds of appeal, in oral submissions this morning the appellant foreshadowed that his grounds of appeal would be that it was unfair that the Public Trustee should sell the two properties to which I will refer in a moment.  In my opinion, the foreshadowed grounds would have no reasonable prospect of succeeding if they were contained within an appellant's case and constituted the grounds of appeal.

5. The background to the case is as follows.  The appellant and his deceased wife were registered proprietors of two properties as joint tenants.  One property was in Parmelia and the other was in the suburb of Success.  The deceased died intestate.  The Public Trustee is the administrator of the estate of the deceased.  At law, the appellant is entitled to the two properties by the right of survivorship, however, in this case the deceased was murdered by the appellant.

6. In those circumstances, public policy precludes the appellant benefiting from his crime by a rule of forfeiture: see Troja v Troja (1994) 33 NSWLR 269. In the case of land held in joint tenancy by a murderer and the murderer's victim, the right of survivorship is recognised by law but equity intervenes, and the rule of forfeiture is observed by the imposition of a constructive trust whereby the wrongdoer holds the accretion of the deceased's interests in the land upon trust for the estate of the victim: see Rasmanis v Jurewitsch (1969) 70 SR (NSW) 407; Neubacher v Good [2003] NSWSC 379.

7. The Public Trustee commenced proceedings in the Supreme Court seeking, inter alia, declarations and orders which would deny the appellant his legal entitlement to his deceased wife's property and seeking declarations in addition because of certain payments made by the deceased in relation to the loan taken out by the deceased and the appellant in relation to the Parmelia property and by reason of other payments made by the deceased regarding the Success property.  Even in normal circumstances, the title that the appellant would have gained by survivorship would be held on a constructive trust by reason of the payments made by the deceased.

8. The details are as follows.  The Parmelia property was originally purchased with moneys borrowed by the appellant and the deceased and secured by a mortgage over the Parmelia property.  The borrowed moneys covered the entire purchase price.  This borrowing was subsequently discharged by another loan taken from the Commonwealth Bank which resulted in a borrowing of $8,100 less than the original purchase price, so at that point each of the two registered proprietors had an equity of just over $4,000.

9. However, the deceased won Lotto and these moneys were then used to discharge the mortgage.  Thus, the Parmelia property was debt-free as at the date of death of the deceased, and, in equity, the appellant's interest in the property, because of the equity which I have referred to earlier, represented just over 5% of the value of the property.  The deceased's interest was therefore just over 94% of the value of the property.

10. In relation to the Success property, this was purchased using the deceased's Lotto winnings and so the Public Trustee contended that the appellant should hold the entire property in trust for the estate.

11. The Public Trustee applied for summary judgment which was granted.  The judgment included a declaration that the appellant had

forfeited all and any rights to a distribution from, or to otherwise inherit from, the estate of the deceased, a declaration that the estate of the deceased be held and distributed equally between the four children of the deceased and a declaration that the appellant and the respondent hold the title to the Parmelia property as tenants in common in the proportions 94.5% to the respondent in its capacity as administrator of the estate of the deceased, and the appellant as to 5.6%.

1. As to the Success property, a declaration was made that the appellant holds the entire legal title to that property upon constructive trust for the respondent in its capacity as administrator of the estate of the deceased.

2. Other orders were made requiring delivery up of vacant possession of the properties to the respondent.  It is unnecessary to spell out other consequential and necessary orders which were made.

3. Now, because of this background, because of the appellant's failure to comply with the rules, the appeal should be dismissed pursuant to r 43.  In addition, as I have mentioned, the foreshadowed ground, even if it had been advanced in grounds of appeal, would have had no reasonable prospect of success.  For all of those reasons, I would dismiss the appeal.

4. MURPHY J:  I agree with Pullin JA.