Lennon v Bell - [2005] QSC 286

SUPREME COURT OF QUEENSLAND

CITATION:

Lennon v Bell & Ors [2005] QSC 286

PARTIES:

JOHN LENNON
(applicant)
v
RICHARD BELL and JANICE MARIE GABBOTT AS PERSONAL REPRESENTATIVES OF THE ESTATE OF THE LATE PAULINE MARY LENNON
(respondents)

FILE NO/S:

BS4218 of 2005

DIVISION:

Trial Division

PROCEEDING:

Originating application

DELIVERED ON:

14 October 2005

DELIVERED AT:

Brisbane

HEARING DATE:

28 July 2005

JUDGE:

Mullins J

ORDER:

1. It is declared that the applicant and the late Pauline Mary Lennon held Lot 143 on RP 176791, County of Canning Parish of Maroochy as joint tenants at all material times up to the time of the death of the late Pauline Mary Lennon.

2. It is declared that the said joint tenancy was not severed prior to the death of the late Pauline Mary Lennon.

CATCHWORDS:

REAL PROPERTY - GENERAL PRINCIPLES – INCIDENTS OF ESTATES AND INTERESTS IN LAND - JOINT TENANCY AND TENANCY IN COMMON – INCIDENTS – JOINT TENANCY – SEVERANCE – IN FAMILY LAW MATTERS - where joint tenants were husband and wife – where husband and wife had separated 6 months prior to wife’s death – where the wife’s attorney signed a notice of intention to sever the joint tenancy and registrable transfer to effect severance – where that notice and a copy of the transfer were forwarded to the husband – where the transfer had not been lodged for registration at the date of the wife’s death – whether s59 of Land Title Act 1994 (Q) can apply – whether that act of sending notice and copy of the transfer together with negotiations for a property settlement was a course of mutual dealing sufficient to sever the joint tenancy – no severance of joint tenancy

Land Title Act 1994

Carmody v Delehunt [1984] 1 NSWLR 667
Corin v Patton (1990) 169 CLR 540
Sprott v Harper [2000] QCA 391
Williams v Hensman (1861) 1 J&H 546; 70 ER 862

COUNSEL:

D A Skennar for the applicant
M Horvath for the respondents

SOLICITORS:

Noel Woodall & Associates for the applicant
Schultz Toomey O’Brien for the respondents

MULLINS J: The applicant and the late Mrs Pauline Lennon (“Mrs Lennon”) who commenced a relationship in 1971 were married in 1987, but separated on or about 3 June 2004. Mrs Lennon died on 3 December 2004. The issue to be determined on this application which was brought by the applicant is whether the joint tenancy in which they held the matrimonial home which they had purchased in 1999 (and was unencumbered) was severed prior to the death of Mrs Lennon. The application was brought against Mr Bell and Ms Gabbott who are the children of Mrs Lennon from her first marriage. They are sued as the personal representatives of the estate of Mrs Lennon. No issue was taken as to whether they were, in fact, the appropriate respondents. On any view, they had a relevant interest in the issue raised by the application.

Facts

Ms Gabbott deposed to being informed by Mrs…

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 Lennon v Bell

Details

AGLC: Lennon v Bell [2005] QSC 286
Case: [2005] QSC 286
Decision Date: 14 October 2005

CaseChat Overview and Summary

In the case of Lennon v Bell, the High Court of Australia was called upon to determine the status of a joint tenancy following the death of one joint tenant, Pauline Mary Lennon. The dispute arose between her estate and her former husband, who claimed an interest in the property as a result of actions taken by the deceased prior to her death. The central issue was whether the deceased's actions, which included signing a notice of intention to sever the joint tenancy and forwarding a registrable transfer to her husband, were sufficient to sever the joint tenancy under the Land Title Act 1994 (Q).

The court was required to decide whether the act of sending the notice and transfer, together with the ensuing negotiations for a property settlement, constituted a mutual course of dealing that was sufficient to sever the joint tenancy. Additionally, the court had to consider the application of section 59 of the Land Title Act, which pertains to the effect of actions taken by one joint tenant on the joint tenancy. The court had to determine if the sending of the notice and transfer, even though the transfer had not been lodged for registration, was enough to sever the joint tenancy.

The court held that the actions taken by the deceased did not constitute a sufficient mutual course of dealing to sever the joint tenancy. The court emphasised that severance of a joint tenancy requires clear and unequivocal actions that demonstrate an intention to sever. In this case, the court found that the negotiations for a property settlement did not amount to the necessary course of dealing. Furthermore, the court held that section 59 of the Land Title Act did not apply as it requires a transfer to be lodged for registration, which had not occurred in this instance. Consequently, the court concluded that the joint tenancy remained intact until the death of the deceased.

The final orders of the court declared that the applicant and the late Pauline Mary Lennon held the property as joint tenants until her death and that the joint tenancy had not been severed prior to her death.

Orders

Orders of the court

1. It is declared that the applicant and the late Pauline Mary Lennon held Lot 143 on RP 176791, County of Canning Parish of Maroochy as joint tenants at all material times up to the time of the death of the late Pauline Mary Lennon.

2. It is declared that the said joint tenancy was not severed prior to the death of the late Pauline Mary Lennon.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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CITATION:	Lennon v Bell & Ors [2005] QSC 286
PARTIES:	JOHN LENNON (applicant) v RICHARD BELL and JANICE MARIE GABBOTT AS PERSONAL REPRESENTATIVES OF THE ESTATE OF THE LATE PAULINE MARY LENNON (respondents)
FILE NO/S:	BS4218 of 2005
DIVISION:	Trial Division
PROCEEDING:	Originating application
DELIVERED ON:	14 October 2005
DELIVERED AT:	Brisbane
HEARING DATE:	28 July 2005
JUDGE:	Mullins J
ORDER:	1. It is declared that the applicant and the late Pauline Mary Lennon held Lot 143 on RP 176791, County of Canning Parish of Maroochy as joint tenants at all material times up to the time of the death of the late Pauline Mary Lennon. 2. It is declared that the said joint tenancy was not severed prior to the death of the late Pauline Mary Lennon.
CATCHWORDS:	REAL PROPERTY - GENERAL PRINCIPLES – INCIDENTS OF ESTATES AND INTERESTS IN LAND - JOINT TENANCY AND TENANCY IN COMMON – INCIDENTS – JOINT TENANCY – SEVERANCE – IN FAMILY LAW MATTERS - where joint tenants were husband and wife – where husband and wife had separated 6 months prior to wife’s death – where the wife’s attorney signed a notice of intention to sever the joint tenancy and registrable transfer to effect severance – where that notice and a copy of the transfer were forwarded to the husband – where the transfer had not been lodged for registration at the date of the wife’s death – whether s59 of Land Title Act 1994 (Q) can apply – whether that act of sending notice and copy of the transfer together with negotiations for a property settlement was a course of mutual dealing sufficient to sever the joint tenancy – no severance of joint tenancy Land Title Act 1994 Carmody v Delehunt [1984] 1 NSWLR 667 Corin v Patton (1990) 169 CLR 540 Sprott v Harper [2000] QCA 391 Williams v Hensman (1861) 1 J&H 546; 70 ER 862
COUNSEL:	D A Skennar for the applicant M Horvath for the respondents
SOLICITORS:	Noel Woodall & Associates for the applicant Schultz Toomey O’Brien for the respondents