Neubacher v Good - [2003] NSWSC 379

CITATION: Neubacher v Good [2003] NSWSC 379

HEARING DATE(S): 01/05/03

JUDGMENT DATE:
2 May 2003

JURISDICTION:
Equity Division

JUDGMENT OF: Barrett J

DECISION: Plaintiff entitled to be registered as proprietor by transmission as executrix. Summons otherwise dismissed.

CATCHWORDS: TORRENS SYSTEM - caveats - who may lodge - one of two joint tenants assumed to have killed other intentionally and wrongfully - assumed wrongdoer died soon after assumed victim - beneficial accrual to assumed wrongdoer precluded by forfeiture rule - undivided half share accruing held upon constructive trust for estate of assumed victim - whether caveat by executrix of assumed victim precludes registration of executrix of assumed wrongdoer as proprietor by transmission - whether caveat should be removed

LEGISLATION CITED: Real Property Act, ss.74F, 74H(5)(a), 93, 96

CASES CITED: Deputy Commissioner of Taxation v Corwest Management Pty Ltd [1978] WAR 129
Re Little; Ex parte Thorne's Bankstown Estate Ltd (1929) 29 SR (NSW) 401
Re Mitchell (1902) 19 WN (NSW) 161
Rasmanis v Jurewitsch (1969) 70 SR (NSW) 407
Troja v Troja (1993) 33 NSWLR 269

PARTIES :
Diana Neubacher in her capacity as representive of the estate of John Dawson Taylor (deceased) - Plaintiff
Kim Lenore Good in her capacity as representative of the estate of Eleanor Frances Taylor (deceased) - Defendant

FILE NUMBER(S): SC 2380/03

COUNSEL: Mr J R Dupree - Plaintiff
Mr A C Todd - Defendant

SOLICITORS: L C Muriniti & Associates - Plaintiff
Swaab Attorneys - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BARRETT J

FRIDAY 2 MAY 2003

2380/03 - DIANA NEUBACHER IN HER CAPACITY AS REPRESENTATIVE OF THE ESTATE OF JOHN DAWSON TAYLOR (DECEASED) v KIM LENORE GOOD IN HER CAPACITY AS REPRESENTATIVE OF THE ESTATE OF ELEANOR FRANCES TAYLOR (DECEASED)

JUDGMENT

1 The plaintiff seeks an order requiring the defendant to deliver to her a withdrawal of caveat 85877138 which has been entered in respect of land at Rouse Hill, being the land in folio identifier, 210/208203. Mr Dupree of counsel, who appeared for the plaintiff, made it clear that the jurisdiction sought to be invoked is that conferred by s.74MA of the Real Property Act 1900.

2 The relevant folio of the register shows the registered proprietors of the land in question to be John Dawson Taylor and Eleanor Frances Taylor as joint tenants. The caveat is dated 10 May 2002 and was lodged by the defendant, Kim Lenore Good, a daughter of Mr Taylor and Mrs Taylor. The principal issue ventilated upon the hearing of the application concerns the existence and validity of the estate or interest claimed by the caveator.

3 Certain of the central facts may be briefly stated. Mrs Taylor died on 17 April 2002. Mr Taylor died at a later time on the same day. By his will, Mr Taylor appointed the plaintiff as his executrix. Probate of his will (also dated 17 April 2002) was granted to the plaintiff on 30 August 2002. The defendant is named as executrix in Mrs Taylor's…

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 Neubacher v Good

Details

AGLC: Neubacher v Good [2003] NSWSC 379
Case: [2003] NSWSC 379
Decision Date: 2 May 2003

CaseChat Overview and Summary

In the matter of Neubacher v Good, the Supreme Court of South Australia was called upon to determine the validity of a caveat lodged by the executrix of the estate of an individual, who was presumed to have been wrongfully and intentionally killed by another individual. The deceased individual was one of two joint tenants of a property, and the surviving joint tenant was subsequently presumed to have died under suspicious circumstances shortly after the first individual's death. The court was required to determine whether the executrix of the first individual could lodge a caveat to prevent the registration of the second individual's executrix as the proprietor of the property by transmission, given that the surviving joint tenant had gained a beneficial accrual that was subsequently precluded by the forfeiture rule.

The legal issues before the court were whether the executrix of the first individual had the standing to lodge a caveat against the registration of the second individual's executrix as the proprietor of the property, and whether the caveat should be removed. The court had to consider the effect of the forfeiture rule on the beneficial accrual that the surviving joint tenant had gained, and whether this accrual was sufficient to prevent the executrix of the first individual from lodging a caveat.

The court found that the executrix of the first individual had the standing to lodge a caveat against the registration of the second individual's executrix as the proprietor of the property, as the undivided half share that had accrued to the surviving joint tenant was held upon a constructive trust for the estate of the first individual. The court held that the forfeiture rule did not apply to prevent the executrix of the first individual from lodging a caveat, as the beneficial accrual that the surviving joint tenant had gained was not sufficient to override the equitable interest of the first individual's estate. The court also found that the caveat should not be removed, as it was validly lodged and served its purpose in preventing the registration of the second individual's executrix as the proprietor of the property.

Orders