Noyce v Jeromel - [2021] SASCA 87

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
NOYCE v JEROMEL
[2021] SASCA 87
Judgment of the Court of Appeal
(The Honourable President Kelly, the Honourable Justice Livesey and the Honourable Justice Blue)
2 September 2021
SUCCESSION - FAMILY PROVISION - PROCEDURE - TIME FOR MAKING APPLICATION - GENERALLY - SOUTH AUSTRALIA
SUCCESSION - FAMILY PROVISION - PROCEDURE - TIME FOR MAKING APPLICATION - EXTENSION OF TIME - APPLICATION TO BE BEFORE FINAL DISTRIBUTION
The applicant seeks further provision out of the estate of Irene Jeromel pursuant to section 7 of the Inheritance (Family Provision) Act 1972 (SA). These reasons address a separate issue arising in the action referred to the Court of Appeal, namely whether the executor of the estate, who is also the principal beneficiary, (Paul Jeromel) distributed, within the meaning of subsection 8(5) of the Act, a property at Royal Terrace Royal Park or a property at Arnold Street Royal Park.
The Arnold Street property was owned by Irene Jeromel. The Royal Terrace property had been owned jointly by Irene and her late husband Ferdinand Jeromel, who had died in 2000, but no steps had been taken to transfer the title out of his name.
On 19 May 2020 Paul Jeromel signed a client authorisation authorising Donlan Lawyers to execute and lodge for registration certain instruments. On the same date, a solicitor at Donlan Lawyers executed an Application to Register Death by Survivor in respect of the Royal Terrace property, a Transmission Application for transmitting both properties into the name of Paul Jeromel as executor and a transfer transferring both properties by Paul Jeromel as executor to Paul Jeromel as beneficiary. The instruments were lodged for registration on that date.
The Registrar-General issued a requisition requiring amendments to the Application to Register Death. As at 2 June 2020, when the application by the applicant for further provision was served on the executor, the amendments had been initialled by the solicitor but the amended Application to Register Death had not been relodged with the Registrar-General.
Held (by the Court):
1The word “distribution” in subsection 8(5) of the Inheritance (Family Provision) Act 1972 takes its meaning from the text, context and evident purpose of that provision and does not merely import equitable concepts applying to executors and trustees or as to when gifts become effectual (at [75]).
2The Registrar-General was entitled and obliged to reject the Application to Register Death (at [84]).
3As the amended Application to Register Death had not been lodged as at 2 June 2020, and the Transmission Application and Transfer were dependent on registration of the Application to Register Death, neither the Royal Terrace property nor the Arnold Street property had been distributed as at 2 June 2020 (at [100] and [103]).
4Even if equitable principles as to when gifts become effectual applied to determine when property is distributed within the meaning of subsection 8(5), the gifts of the Royal Terrace property and the Arnold Street property had not become effectual in equity as…

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 Noyce v Jeromel

Details

AGLC: Noyce v Jeromel [2021] SASCA 87
Case: [2021] SASCA 87
Decision Date: 2 September 2021

CaseChat Overview and Summary

This case concerned an application for further provision from the estate of Irene Jeromel, brought by Danuta Noyce against the executor and residuary beneficiary, Paul Jeromel. The central dispute revolved around whether the estate had been finally distributed before the expiry of the time limit for making such an application, or an application for an extension of time. The matter was heard in the Supreme Court of South Australia.

The legal issues before the Court were whether the lodgement of certain documents with the Registrar-General on 19 May 2020 constituted a "final distribution" of the Royal Terrace and Arnold Street properties within the meaning of subsection 8(5) of the *Inheritance (Family Provision) Act 1972* (SA). This subsection allows for an extension of time for family provision applications, provided the application for extension is made before the final distribution of the estate.

The Court reasoned that the word "distribution" in subsection 8(5) should be interpreted according to its plain text, context, and evident purpose, rather than importing general equitable concepts concerning the finality of gifts. The Court found that the Registrar-General was entitled and obliged to reject the Application to Register Death, and that the subsequent Transmission Application and Transfer were dependent on this initial registration. As these steps had not been completed, neither the Royal Terrace property nor the Arnold Street property had been distributed as at 2 June 2020. Even if equitable principles were applied, the Court found that the gifts of these properties had not become effectual in equity by that date.

Orders

Orders of the court

Held (by the Court):

1 The word “distribution” in subsection 8(5) of the Inheritance (Family Provision) Act 1972 takes its meaning from the text, context and evident purpose of that provision and does not merely import equitable concepts applying to executors and trustees or as to when gifts become effectual (at [75]).

2 The Registrar-General was entitled and obliged to reject the Application to Register Death (at [84]).

3 As the amended Application to Register Death had not been lodged as at 2 June 2020, and the Transmission Application and Transfer were dependent on registration of the Application to Register Death, neither the Royal Terrace property nor the Arnold Street property had been distributed as at 2 June 2020 (at [100] and [103]).

4 Even if equitable principles as to when gifts become effectual applied to determine when property is distributed within the meaning of subsection 8(5), the gifts of the Royal Terrace property and the Arnold Street property had not become effectual in equity as at 2 June 2020 (at [104]-[105]).

5 Separate issue so determined (at [110])

Background

Background to the litigation

The separate trial proceeded on the basis of uncontested documentary evidence, there being no dispute about the facts, and it essentially involves questions of law.Background Irene and Ferdinand had three children: Fred Jeromel (Fred), Danuta Noyce (Danuta) and Paul Jeromel (Paul).[1][1] We refer to Paul Jeromel regardless of whether he is the executor of Irene’s estate, residuary beneficiary of Irene’s estate or otherwise as Paul or Paul Jeromel. We refer to Paul Jeromel in his capacity as the executor of Irene’s estate as the Executor. We refer to Paul Jeromel in his capacity as the residuary beneficiary of Irene’s estate as Mr Jeromel. In or before 1992 Irene became the owner of a property at 4 Arnold Street Royal Park (the Arnold Street property). In 1993 Ferdinand and Irene became the owners as joint tenants of a property at 24 Royal Terrace Royal Park (the Royal Terrace property). In February 2000 Ferdinand died. No grant of probate or letters of administration in respect of his estate was sought or made. His name remained on the certificate of title for the Royal Terrace property. In November 2017 Fred died. In March 2018 Irene made her last will (the Will). She appointed Paul as her executor and trustee. She left $2,000 to each of Irene and her two children. She left the residue to Paul. In September 2019 Irene died. On 17 November 2019 probate of the Will was granted to the Executor. In addition to her interest in the Arnold Street and Royal Terrace properties, Irene owned furniture, household and personal effects and held money in two bank accounts valued in total at about $35,000. On 17 May 2020 the prima facie time limit for an application for further provision out of Irene’s estate (the Estate) to be made under section 8 of the Act expired.[2][2] Inheritance (Family Provision) Act 1972 (SA) subsection 8(1). Subsection 8(2) confers on a court a power to extend the time for making an application provided that the application for the extension is made before the final distribution of the estate. On 19 May 2020 Paul signed a Client Authorisation authorising Donlan Lawyers to do certain things (the Client Authorisation). The Client Authorisation was signed by a solicitor, Joel Siepmann, on behalf of Donlan Lawyers. On 19 May 2020 Mr Siepmann signed three documents:1an Application to Register Death by Survivor (the Register Death Application) in respect of the Royal Terrace property describing the applicant as:Paul Jeromel of [address] as executor of the estate of the deceased proprietor vide Probate dated the 17 November 20192a Transmission Application by Personal Representatives (the Transmission Application) in respect of the Royal Terrace and Arnold Street properties describing the applicant as:Paul Jeromel of [address] as executor of the estate of the deceased proprietor vide Probate dated the 17 November 20193a Transfer (the Transfer) of the fee simple in the Royal Terrace and Arnold Street properties describing the consideration as pursuant to the terms of a Will, the transferor as Paul Jeromel as executor of the estate of the deceased proprietor vide Probate dated the 17 November 2019 and the transferee as Paul Jeromel.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The situation is distinguishable from that in Re Largo deceased,[31] where the executed transmission application, transfer to the beneficiaries, duplicate certificate of title and copy of the probate had all been lodged at the Titles Office for registration.[31] [1984] VR 706.Conclusion As at 2 June 2020 the Royal Terrace and Arnold Street properties had not been distributed within the meaning of subsection 8(5) of the Act. We determine the preliminary issue as follows:1Paul Jeromel in his capacity as executor of the deceased estate of the late Irene Johanne Jeromel (“the Deceased”) did not, by reason of the lodgement at the Lands Titles Office on 19 May 2020 of Dealing 13303591, Dealing 13303592 and Dealing 13303593, distribute the land described and comprised in Certificate of Title Register Book Volume 6062 Folio 610 (“the Royal Terrace property”), being part of the estate of the Deceased, within the meaning of subsection 8(5) of the Inheritance (Family Provision) Act 1972 (the IFP Act). 2Paul Jeromel in his capacity as executor of the deceased estate of the Deceased did not, by reason of the lodgement at the Lands Titles Office on 19 May 2020 of Dealing 13303592 and Dealing 13303593, distribute the land described and comprised in Certificate of Title Register Book Volume 5686 Folio 188 (“the Arnold Street property”), being part of the estate of the Deceased, within the meaning of subsection 8(5) of the IFP Act. We will hear the parties regarding the orders which it may be necessary to make, and as to costs.

Ratio Decidendi

Legal Principle Established

Section 188 empowers the Registrar-General, amongst other things, to make an entry recording that, when a registered joint proprietor dies, the surviving registered joint proprietor of Torrens System land succeeds to the interest of the deceased joint proprietor. It provides:188—Registration of survivor of joint proprietors, and of remainder-man entitled to estate in possessionUpon the death of any person registered together with any other person as joint proprietor of any estate or interest in land, … the Registrar-General shall, upon the application of the person entitled, and upon proof to his satisfaction of any such occurrence as aforesaid, make an entry thereof in the Register Book, and thereupon such person shall be the registered proprietor of the estate or interest to which he is entitled, as if the same had been transferred to him. An Application to Register Death by Survivor is the form prescribed by the Registrar-General for making an application under section 188 in this respect. Sections 175 to 178 empower the Registrar-General to register a transmission of an estate or interest in Torrens System land from the registered proprietor to their legal personal representative. They provide:175—Transmission of estate of deceased personsOn the death of the registered proprietor of any estate or interest in land, his estate or interest shall be transmitted to his executor or administrator, or to the Public Trustee in any case where the Court shall make an order authorising the Public Trustee to administer the estate of the deceased registered proprietor.176—Application to be made in such caseThe executor, administrator or Public Trustee shall, before dealing with such estate or interest, make application in writing to the Registrar-General to be registered as proprietor, and shall produce to the Registrar-General the probate or letters of administration, or the order of the Court authorising the Public Trustee to administer the estate of the deceased registered proprietor, or a copy of the probate, letters of administration, or order, as the case may be.177—Particulars of application to be recordedThe Registrar-General must record details relating to the application in the Register Book.178—Effect of such entryUpon such entry being made in the Register Book, the executor, administrator, or Public Trustee, as the case may be, shall be the registered proprietor of such estate or interest, and his title shall relate back to and take effect from the date of the death of the deceased registered proprietor. A Transmission Application by Personal Representatives is the form prescribed by the Registrar-General for making an application under section 176. Sections 96 and 103 empower the Registrar-General to register a transfer of an estate or interest in Torrens System land. They relevantly provide:96—Transfers(1) If—(a) land is intended to be transferred; or(b) a right‑of‑way or other easement is intended to be created or transferred,the transferor and the transferee must execute a transfer in the appropriate form to be lodged for registration in the Lands Titles Registration Office.(2) A transfer must include—(a) a description of the land intended to be dealt with (either by reference to the certificate of title for the land or by the inclusion of a description that clearly identifies the land); and(b) an accurate statement of the estate or interest intended to be transferred or created; and(c)a statement indicating that—(i) the transferee; or(ii)if the transferee is a child or a mentally incapacitated person (within the meaning of the Guardianship and Administration Act 1993)—the transferee's guardian or the administrator of his or her estate,accepts the transfer or grant of the land, right‑of‑way or easement.103—Registration of transfer hereunderUpon the production of a transfer of the land duly executed in pursuance of any such order, the Registrar-General must register such transfer, and enter on the certificate a memorandum cancelling the same either wholly or partially, as the case may require, and shall issue to the transferee a certificate of the land comprised in such transfer, free from all encumbrances, charges, exceptions, qualifications, and conditions whatsoever other than those mentioned in the transfer.