Roda & Ors & Roda & Anor

[2013] FamCAFC 27

FAMILY COURT OF AUSTRALIA

RODA AND ORS & RODA AND ANOR [2013] FamCAFC 27

FAMILY LAW ─ APPEAL AND CROSS-APPEAL ─ PROPERTY ─ Common intention to sever joint tenancy ─ Whether the trial Judge erred in rejecting the contentions of the husband and the father that the husband and the mother intended to sever the joint tenancy with respect to the property ─ Where the Court was not persuaded that the trial Judge erred in failing to find that the common intention of the husband and the mother was to acquire the property as tenants in common in equal shares ─ Where the Court was not persuaded that the evidence established, either as attorney under power in the case of the husband, or as agent in the case of the mother, that the father’s intentions should have been imputed to the husband or the mother ─ Challenge unsuccessful.

FAMILY LAW ─ APPEAL AND CROSS-APPEAL ─ PROPERTY ─ Joint tenancy severed due to partnership ─ Where it was submitted that the property, having been “commercial land” acquired by the husband and the mother as a commercial investment, the husband and mother were presumed to hold the property on trust for themselves as tenants in common in equal shares ─ Where it was submitted that the presumption having arisen, and there being no evidence to rebut it, that the husband and the mother at all material times held the property as tenants in common in equal shares ─ Where the Court was not persuaded that the evidence before the trial Judge established that a partnership in the strict sense ever existed between the husband and the mother ─ Where the real issue was whether, in the absence of a permissible finding of a partnership in the strict sense between the husband and the mother, the presumption of an intention to acquire as tenants in common in equal shares applied in the circumstances of this case ─ Discussions of the principles arising from the authorities ─ Where the Court was persuaded that the facts in this case gave rise to the presumption of an intention to acquire the property as tenants in common in equal shares ─ Challenge successful.

FAMILY LAW ─ APPEAL AND CROSS-APPEAL ─ PROPERTY ─ Agreement to sever joint tenancy ─ Whether the trial Judge erred in failing to find that the deed entered into by the husband and the mother in 1996 severed their joint tenancy of the property ─ Where it was submitted that the “logic” of the Court in Pfeiffle applied in the present circumstances, given the acknowledgement in the 1996 deed that the property was “owned by the above parties in equal shares” ─ Where the Court found that it was difficult to suggest an intention to preserve the right of the surviving joint tenant to acquire the whole of the property by survivorship upon the death of the other joint tenant in the face of such a clear defining of the beneficial interests of the…