Public Trustee v Theissl

[1999] NSWSC 708

CITATION:	Public Trustee v Theissl [1999] NSWSC 708
CURRENT JURISDICTION:	Equity
FILE NUMBER(S):	2888 of 1999
HEARING DATE(S):	6 July 1999
JUDGMENT DATE:	6 July 1999
PARTIES :	The Public Trustee (Plaintiff) Carmela Theissl (Defendant)
JUDGMENT OF:	Windeyer J at 1

COUNSEL :	Mr. L. Ellison (Plaintiff) Mr. J.A. Darvall (Defendant)
SOLICITORS:	P.J. Whitehead (Plaintiff) Coleman & Greig (Defendant)
CATCHWORDS:	CONVEYANCING Torrens System - Caveats - Extension of caveat pursuant to s74K of Real Property Act 1900 - suspicions that wife as joint tenant involved in murder of husband - no sufficient interest for extension of caveat
DECISION:

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THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WINDEYER J

Tuesday 6 July 1999

2888/99 PUBLIC TRUSTEE v CARMELA THEISSL

JUDGMENT

1 HIS HONOUR: This is an application by the Public Trustee pursuant to s 74K of the Real Property Act 1900 for an order over the operation of a caveat number 5615229 which is entered against the title of property 11 Domain Court, Baulkham Hills, be extended until further order.

2    The Public Trustee is administrator of the estate of John Albert Theissl who died on 7 November 1994, he having been murdered. Letters of administration were granted to the Public Trustee on 31 July 1995, with leave reserved to Carmela Theissl to apply for the removal of the Public Trustee and for her own appointment. Although some assets were disclosed in the inventory of property annexed to the grant of administration, it seems that no assets have been received in the estate, superannuation moneys have been paid or applied for the benefit of the three children of the deceased, and the value of long service leave, holiday pay etc. having been paid direct to the widow.

3    At the date of his death the deceased and his wife, Mrs Theissl, were registered as proprietors, as joint tenants, of property, 2 Campbell Street, Northmead. Thus, on the death of the deceased, that property passed to his wife as the surviving joint tenant, or at least the legal estate in it did. The Public Trustee entered a caveat against the title to that property, claiming an undivided one half share in the estate.

4    By agreement, when the widow wished to sell that property, the caveat was withdrawn, and the caveat the subject of the present proceedings was entered against the title of the new property purchased by Mrs Theissl. There is no proper basis set out in the caveat for the interest claimed, but nevertheless the interest which is claimed proceeds upon the following basis.

5    It is said that the deceased was murdered. Two persons, namely Gary Glasby and Suzette Glasby have been convicted of his murder. Both of those persons have been sentenced to substantial periods of imprisonment. The defendant, Mrs Theissl, was also committed for trial for the murder of her husband. However, the Director of Public Prosecutions determined not to proceed with the prosecution and acceded to a no bill application.

6    It seems likely that this decision was based on the fact that evidence would be required from the two persons convicted and that such evidence was conflicting and, by its nature, would not be sufficient to support the charge, if brought.

7    The position of the Public Trustee is that, despite that decision, it might be found by a court in a civil proceedings that the defendant did murder her husband, or was in some way responsible for his death, in which circumstance the court could be expected to make an order or to declare that the property purchased in substitution for the property originally jointly held at Northmead, was held as to a one half share or an appropriate share upon trust for the estate of the deceased, thereby giving the Public Trustee an interest in it.

8    At the present time, apart from the fact of the original charge, it could not be said that there is anything to show that the Public Trustee might have an interest in the subject property, and indeed unless and until some constructive trust is imposed, it is clear that he has no such interest.

9    It is possible that at some stage in the future, if proceedings are brought by the Public Trustee against Mrs Theissl, seeking the imposition of a constructive trust, those proceedings might succeed, but that is a possibility only and certainly could not be said to be a probability as things stand. Apart from anything else, the Public Trustee has made an application for judicial advice as to what action he should take, and although that matter is before the court at the present time, there are significant questions about the funding of any such action.

10    In a matter such as this there remains some underlying discretion in the court as to whether or not an order should be made extending the caveat when, on the evidence presently available, the interest which is claimed has not been shown to exist, but merely "might", if subsequent proceedings succeed, be shown to exist.

11    In my view at the present time the possible interest claimed is so remote that in the exercise of the discretion no order extending the caveat should be made.

12    There is an alternative claim in the summons for an injunction restraining the defendant from dealing with the land in question until further order. In my view such a claim could be no stronger than the claim for extension of a caveat and is, I think, considerably weaker.

13    In all the circumstances the summons in matter number 2888 of 1999 should be dismissed with costs.

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