Roda & Roda & Ors - [2011] FamCA 77

FAMILY COURT OF AUSTRALIA

RODA & RODA AND ORS

[2011] FamCA 77

FAMILY LAW – PROPERTY – Declaration – Joint tenancy

APPLICANT:

Ms Roda

FIRST RESPONDENT:

Mr Roda

SECOND RESPONDENT:

K Roda

THIRD RESPONDENT:

Y Roda

FOURTH RESPONDENT:

S Roda

FILE NUMBER:

SYC

2084

2007

DATE DELIVERED:

21 February 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

The Hon. Justice Cohen

HEARING DATE:

14 September 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Dr Birch SC
and Ms Bateman

SOLICITOR FOR THE APPLICANT:

Brazel Moore Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Gersbach

SOLICITOR FOR THE RESPONDENT:

Taperell Rutledge Lawyers

COUNSEL FOR THE SECOND, THIRD AND FOURTH RESPONDENT:

Mr Allen

COUNSEL FOR THE SECOND, THIRD AND FOURTH RESPONDENT:

Wisewoulds Lawyers

Orders

It is hereby declared that the husband as the registered joint tenant with his mother, deceased, of real property at and known as G, in the State of Victoria being the whole of the land contained in the Certificate of Title volume … folio … pursuant to the Transfer of Land Act 1958 (Vic) holds such land by survivorship in trust for himself as to a one half interest as tenant in common and for the estate of his mother, deceased, as to a one half interest as tenant in common pursuant to the deed executed by the husband on 19 August 2005 and entitled Nominee Trust Deed in Respect of Land marked Exhibit “F” a copy of which is annexed hereto.
It is hereby declared that he husband is not by any document agreement or deed he has executed or otherwise bound to sell his interest in the said land in the event that he wishes to sell that land to any specific person or for any predetermined price.
Costs are reserved to the judge who finally decides the s 79 proceedings between the husband and the wife.

IT IS NOTED that publication of this judgment under the pseudonym Roda & Roda and Ors is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:

MS RODA

Applicant

And

MR RODA

Respondent

And

K RODA

Second Respondent

And

Y RODA

Third Respondent

And

S RODA

Fourth Respondent

REASONS FOR JUDGMENT

The principal matter for determination involves the limited issue of whether the husband is the sole legal and beneficial owner of commercial land known at G in Victoria, or holds it for the benefit of the executor or administrator of the estate of the late Mrs Roda Senior, his mother, in one half share as a tenant in common.
There is another issue which the parties accepted at the hearing that I should deal with. It is whether, as against the wife, the husband’s interest in the property is worth $275,000 because of an agreement he made with his mother on 10 February 1996 and/or an agreement he supposedly made with his father, K Roda, the second respondent on 4 June 2005 to sell it for the same amount.…

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 Roda & Roda & Ors

Details

AGLC: Roda & Roda [2011] FamCA 77
Case: [2011] FamCA 77
Decision Date: 21 February 2011

CaseChat Overview and Summary

In the matter of *Roda & Roda & Ors*, Cohen J of the Supreme Court of Victoria considered a dispute concerning the beneficial ownership of real property. The proceedings involved a husband, his deceased mother, and his wife. The central issue revolved around the husband's interest in a property registered in his name and his deceased mother's name as joint tenants.

The court was required to determine the extent to which a Nominee Trust Deed, executed by the husband on 19 August 2005, affected the beneficial ownership of the property. Specifically, the court had to ascertain whether the deed had severed the joint tenancy and established a tenancy in common, and if so, in what proportions. Furthermore, the court needed to determine if the husband was contractually obligated by any agreement or deed to sell his interest in the property to a specific person or at a predetermined price.

Cohen J reasoned that the Nominee Trust Deed effectively severed the joint tenancy, converting the beneficial ownership into a tenancy in common. The deed declared that the husband held the land in trust for himself as to a one-half interest and for the estate of his deceased mother as to a one-half interest. The court also found that the husband was not bound by any document, agreement, or deed to sell his interest in the land to any specific person or for any predetermined price. Consequently, the court declared the husband's beneficial interest as a tenant in common of one half, with the remaining half belonging to the estate of his deceased mother. Costs were reserved for the judge who would ultimately decide the section 79 proceedings between the husband and wife.

Orders

Orders of the court

It is hereby declared that the husband as the registered joint tenant with his mother, deceased, of real property at and known as G, in the State of Victoria being the whole of the land contained in the Certificate of Title volume … folio … pursuant to the Transfer of Land Act 1958 (Vic) holds such land by survivorship in trust for himself as to a one half interest as tenant in common and for the estate of his mother, deceased, as to a one half interest as tenant in common pursuant to the deed executed by the husband on 19 August 2005 and entitled Nominee Trust Deed in Respect of Land marked Exhibit “F” a copy of which is annexed hereto.

It is hereby declared that he husband is not by any document agreement or deed he has executed or otherwise bound to sell his interest in the said land in the event that he wishes to sell that land to any specific person or for any predetermined price.

Costs are reserved to the judge who finally decides the s 79 proceedings between the husband and the wife.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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