GRAEME LEONARD WILSON	Plaintiff
v
GEOFFREY JOHN DILLON (who is sued as administrator of the Will and Estate of the late LEONARD CHARLES WILSON) and ORS (according to the Schedule attached)	Defendants

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JUDGE:	Derham AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	10 December 2018
DATE OF JUDGMENT:	2 April 2019
CASE MAY BE CITED AS:	Re Wilson
MEDIUM NEUTRAL CITATION:	[2019] VSC 211 Revised 8 April 2019

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REAL PROPERTY – Joint tenancies – Severance of joint tenancies of several parcels of land – Torrens system land – Transfers executed by one joint tenant for himself, and as power of attorney for the other, to themselves as tenants in common – Transfers unregistered at the death of both joint tenants – Transfers stamped exempt from duty and held by or on behalf of joint tenants – Whether severance of joint tenancies in equity – Whether doctrine that equity will not perfect an imperfect gift applicable – Milroy v Lord (1862) 45 ER 1185 – Doctrine not applicable to transfers between joint tenants – Whether in executing transfers under enduring power of attorney involved a breach of fiduciary duty – Whether appropriate to order administrator of the deceased estates of both co-owners to lodge transfers for registration – Joint tenancies severed in equity – Appropriate to order administrator to lodge the transfers for registration: Williams v Hensman (1861) 70 ER 862; Barry v Heider (1914) 19 CLR 197; Corin v Patton (1990) 169 CLR 540; Public Trustee v Pfeiffle [1991] 1 VR 19; Mischel Holdings Pty Ltd (in liq) v Mischel [2013] VSCA 375 considered.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J McComish	HWL Ebsworth
For the First and Fifth Defendants	Mr R D Shepherd	Geoff Dillon & Co Lawyers
For the Second Defendant	Mr B Carew	Moores Legal

TABLE OF CONTENTS

Introduction......................................................................................................................................... 1

Procedural history.............................................................................................................................. 2

Affidavits............................................................................................................................................. 5

Background......................................................................................................................................... 6

Plaintiff’s contentions...................................................................................................................... 12

Contradictor’s contentions.............................................................................................................. 12

Submissions and Consideration................................................................................................... 13

Did the execution of the transfers demonstrate an intention to sever the joint tenancies in equity? 13
Was it within Leonard’s power and authority to have the transfers registered, thus severing the joint tenancies at law?................................................................................................................ 23
Did Leonard act lawfully and within the scope of his authority as attorney?.................. 26

Conclusion......................................................................................................................................... 30

HIS HONOUR:

Introduction

In this proceeding commenced by originating motion the plaintiff (Graeme) applies for declarations that transfers of land executed by his late father, Leonard Charles Wilson (Leonard), in his own capacity and as attorney for his late mother, Austral Jean Wilson (Austral), are valid and effective according to their terms. Graeme also seeks orders that the first defendant, who is the administrator of the estate…

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 Re Wilson

Details

AGLC: Re Wilson [2019] VSC 211
Case: [2019] VSC 211
Decision Date: 2 April 2019

CaseChat Overview and Summary

In the case of Re Wilson, the dispute arose in the context of the administration of the estates of two deceased individuals who were joint tenants of several parcels of land. The matter was before the Supreme Court of Victoria. The primary issue was whether the joint tenancies were severed in equity and whether the doctrine that equity will not perfect an imperfect gift, as established in Milroy v Lord, applied in this scenario. Additionally, the court examined whether executing transfers under an enduring power of attorney constituted a breach of fiduciary duty, and whether it was appropriate to order the administrator of the deceased estates to lodge the transfers for registration.

The court found that the transfers executed by one joint tenant, for himself and as power of attorney for the other, to themselves as tenants in common constituted a severance of the joint tenancies in equity. This conclusion was based on the established precedent that the doctrine in Milroy v Lord does not apply to transfers between joint tenants. Furthermore, the court determined that executing transfers under the enduring power of attorney did not involve a breach of fiduciary duty. It was held that the joint tenancies were severed in equity, and it was appropriate to order the administrator to lodge the transfers for registration. This decision was supported by cases such as Williams v Hensman, Barry v Heider, Corin v Patton, Public Trustee v Pfeiffle, and Mischel Holdings Pty Ltd (in liq) v Mischel.

In light of the findings, the court ordered the administrator of the deceased estates to lodge the transfers for registration. This order ensures that the joint tenancies are formally severed in accordance with the equitable principles established in the case law. The court's decision provides clarity for future cases involving the severing of joint tenancies and the administration of estates in similar circumstances.

The final orders of the court mandated that the administrator of the deceased estates of both co-owners must lodge the transfers for registration. This ensures that the severance of the joint tenancies is properly documented and recognised in the Torrens system. The decision reaffirms the importance of clear and decisive action in the administration of estates, particularly in cases involving the severing of joint tenancies and the execution of transfers under a power of attorney.

Orders