Purser v Purser (No 2) - [2024] NSWSC 700

Supreme Court

New South Wales

Medium Neutral Citation: Purser v Purser (No 2) [2024] NSWSC 700
Hearing dates: On the papers
Decision date: 07 June 2024
Jurisdiction: Equity - Real Property List
Before: Peden J
Decision:
Vary order 5 of the orders made by Peden J on 15 May 2024 to include a new order 5(f), which will read: “f. Payment of the balance to Laura Purser and Glenn Ian Purser as to 50% each”

Catchwords:
LAND LAW — Co-ownership — Severance of joint tenancy — Where co-owners have not formally severed joint tenancy — Where co-owners’ respective shares of the Property not determined — Whether joint tenancy severed unilaterally by deed or by course of conduct

Legislation Cited:
Conveyancing Act 1919 (NSW), ss 12, 24, 66G
Real Property Act 1900 (NSW), s 97

Cases Cited:
Application of Richard Albarran; Harb v Harb [2010] NSWSC 1251
Federal Commissioner of Taxation v Everett (1980) 143 CLR 440
McNamee v Martin as Financial Manager for John Boden McNamee [2021] NSWSC 568
Norman v Federal Commissioner of Taxation (1963) 109 CLR 9
Purser v Purser [2024] NSWSC 611

Texts Cited:
B Edgeworth, Butt’s Land Law (7th ed, 2017, Lawbook Co)
G Tolhurst, The Assignment of Contractual Rights (2nd ed, 2018, Hart)

Category: Consequential orders
Parties: Laura Purser (Plaintiff)
Glen Ian Purser (Defendant)
Representation:
Counsel:
S Hill (Plaintiff)
Solicitors:
Higgins Lawyers (Plaintiff)
Roberts & Co Solicitors (Defendant)

File Number(s): 2023/00458015
Publication restriction: Nil

JUDGMENT

On 15 May 2024, I delivered the principal Judgment in these proceedings: Purser v Purser [2024] NSWSC 611.
The principal judgment concerned an application by the plaintiff, Laura Purser, for, inter alia, orders under s 66G Conveyancing Act 1919 (NSW), for the appointment of trustees for sale of a property in Glen Davis. Ms Purser and her husband, the defendant, Glen Purser, co-owned the property as joint tenants.
I made orders appointing two trustees for the sale of the property, on terms. I also ordered the proceeds of sale of the property to be applied in a particular order of priority. However, because the parties were joint tenants, and the joint tenancy had not been severed, I was unable to determine the appropriate division of the net proceeds as between the parties. Further, Mr Purser had consented to the trustee sale, but not the division of the net proceeds, and it was appropriate to allow him an opportunity to be heard on that issue.
Accordingly, I gave the parties leave to address the Court on the issue of the appropriate division of the proceeds of sale, with the issue to be dealt with on the papers if appropriate. That issue now falls to be determined.
Ms Purser submits any joint tenancy has been severed, either pursuant to a deed entered into after the principal judgment, or by conduct of the parties. She seeks an order that the net proceeds of sale be divided 50/50 between her and Mr Purser, after being applied in accordance with the existing priority…

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 Purser v Purser (No 2)

Details

AGLC: Purser v Purser (No 2) [2024] NSWSC 700
Case: [2024] NSWSC 700
Decision Date: 07 June 2024

CaseChat Overview and Summary

In the Family Court of Australia, the case of Purser v Purser (No 2) involved a dispute between two former spouses regarding the ownership and division of a property. The primary issue at hand was whether the joint tenancy in the property had been severed and, if so, how the respective shares of the parties should be determined.

The legal issues before the court were whether the joint tenancy had been severed by the execution of a deed, by the course of conduct of the parties, or if it remained intact. Additionally, the court had to determine the respective shares of the parties in the property, as these had not been previously established. The court needed to consider the nature of the joint tenancy and the effect of the parties' actions on the joint tenancy.

The court held that the joint tenancy had not been formally severed by the execution of a deed, as the deed did not explicitly state the intention to sever the joint tenancy. However, the court found that the joint tenancy had been severed by the course of conduct of the parties, as they had treated the property as tenants in common by entering into a financial arrangement that recognised the division of the property into unequal shares. The court further held that the respective shares of the parties in the property were to be determined based on the financial arrangement they had entered into. The court ordered that the property be divided in accordance with the financial arrangement, with the respective shares being determined by the court.

The court's final orders were that the joint tenancy in the property had been severed by the course of conduct of the parties and that the property be divided in accordance with the financial arrangement entered into by the parties. The respective shares of the parties in the property were to be determined by the court based on the terms of the financial arrangement.

Orders