Rojanasaroj v Rachan - [2010] WASC 63

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: ROJANASAROJ -v- RACHAN [2010] WASC 63

CORAM: MASTER SANDERSON

HEARD: 9 MARCH 2010

DELIVERED : 1 APRIL 2010

FILE NO/S: CIV 1707 of 2008

BETWEEN: PANIDA ROJANASAROJ
Plaintiff
AND
CHAI RACHAN
Defendant

Catchwords:

Property Law Agreement to sever joint tenancy Turns on own facts

Legislation:

Nil

Result:

Declaration joint tenancy severed

Category: B

Representation:

Counsel:

Plaintiff: Mr M F Holler
Defendant: Mr D C Rice

Solicitors:

Plaintiff: Friedman Lurie Singh & D'Angelo
Defendant: Griffiths Rice & Co

Case(s) referred to in judgment(s):

Abela v Public Trustee (1983) 1 NSWLR 308

MASTER SANDERSON: By chamber summons filed 19 November 2009, the plaintiff sought the following orders:
1.The joint tenancy between the plaintiff and the defendant was severed by written compromise agreement on 11 December 2006 at a mediation conference in CIV 1701 of 2006.
2.There be leave to apply for and summary judgment is given for the plaintiff to the extent of a declaration that the joint tenancy was severed on making the written compromise agreement on 11 December 2006 in CIV 1701 of 2006.
3.Paragraphs 14 to 36 of the defence be struck out and paragraphs 37 and 38 of the counterclaim be struck out as disclosing no reasonable cause of defence or action and judgment be entered for the plaintiff.
4.The defendant pay costs of the application and the action.
The chamber summons is not entirely happily worded. Effectively, the first three paragraphs are alternatives. Given the way the matter was argued, it was really the relief set out in the first paragraph which was sought by the plaintiff. It is important to note the plaintiff did not seek any relief beyond the declaration that the joint tenancy was severed. It might have been expected that she would have sought an order for sale in lieu of partition under s 126 of the Property Law Act 1969 (WA), but this was not done.
There was no disagreement between the parties as to the facts. The plaintiff and the defendant are registered proprietors as joint tenants of a property in Rockingham. The plaintiff is the mother of the defendant. A dispute arose between them in relation to the property and proceedings were issued in this court. That was action CIV 1701 of 2006. On 11 December 2006, a mediation conference was held. As a result of that conference, the action was settled and the parties entered into a handwritten agreement. Clause 5 of the agreement is in the following terms:
This agreement severs the tenancy between the parties in law and in equity to the effect that the plaintiff and the defendant are tenants in common in equal shares.
The agreement itself anticipated the sale by the plaintiff of her half interest in the property to the defendant. The sale price was to be paid in a number of instalments with an amount of $180,000 paid not later than the tenth anniversary of the settlement of the transaction. That $180,000 was to be secured by a second mortgage on the property in favour of the plaintiff. The agreement was not carried into effect and the certificate of title still shows the plaintiff and the defendant own the property as joint tenants. That has led to these proceedings.
Drawing on a number of authorities, in particular Abela v Public Trustee (1983) 1 NSWLR 308, 315, the plaintiff says the principles in relation to severance of a joint tenancy are:
1.severance is effected by an agreement to sever the joint tenancy;
2.the agreement need not be specifically enforceable or even binding as a contract at law;
3.subsequent repudiation of the agreement does not affect its operation and the severance;
4.severance may also be effected by conduct of the joint tenants not evidencing an agreement to sever but showing a common intention that the joint tenancy should be severed.
The plaintiff says that all four of these requirements have been met. It is the plaintiff's contention that the fact the settlement agreement has not been carried into effect is of no consequence. The clear intent of the parties as expressed by cl 5 of the agreement was that the tenancy be severed. That has now occurred and as a consequence the plaintiff claims to be entitled to the declaration she seeks.
The defendant raises a number of arguments. First, it is said that the property was purchased from funds solely raised by the defendant's deceased father. It was the deceased's wish that eventually the whole of the title would pass to the defendant. As I understand the defendant's argument, it is then said that it would be unconscionable to sever the joint tenancy.
Leaving to one side the question of precisely how it would be unconscionable to sever the joint tenancy, the making of the declaration sought by the plaintiff would in no way determine what would eventually become of the property. If the plaintiff at some later stage sought a sale of the property, it would be open to the defendant to raise any argument he wished. In my view, there is no equitable principle standing in the way of making the declaration sought by the plaintiff.
Second, it was said that some estoppel had arisen which would prevent the declaration being made. The defendant acknowledges that estoppel requires detrimental reliance, but it is not clear what representation is said to have been made by the plaintiff and how the defendant relied on that representation to his detriment. In my view, there is no basis upon which an estoppel could be said to arise.
Third, it is said that there is no consideration for the agreement to sever. But the principles applicable to severing a joint tenancy do not require consideration. Any lack of consideration would not prevent the declaration being made.
Fourth, it was said that the failure to implement the settlement agreement was the responsibility of the plaintiff. The defendant alleges the plaintiff would not agree the terms of the mortgage security and was unreasonable. For that reason, the agreement lapsed. Even assuming the defendant's version of events is correct (and I am not in any way purporting to determine this issue) that would not stand in the way of a declaration the joint tenancy had been severed. Clause 5 of the settlement agreement stands alone. It operates independent of the rest of the agreement. The overall failure of the settlement agreement then has no consequences so far as the severance declaration is concerned.
Finally, it is alleged by the defendant that he was subject to 'undue influence' on the part of his former solicitor during the course of the settlement negotiations. As I understand the defendant's position, he says he should have had extra time to consider the settlement agreement away from the mediation venue. He says he felt pressured by his then solicitor to conclude the agreement. It seems implicit the defendant is saying if he had more time to consider the agreement he would not have entered into it.
There are a number of logical difficulties with this version of the facts. But these difficulties do not need to be explored. The fact remains the defendant signed the agreement and indicated that the joint tenancy was to be severed. If there is some fault on the part of his former solicitor, then avenues of redress are open to him. But none of that can stand in the way of the declarations sought by the plaintiff.
In all the circumstances, the plaintiff is entitled to the declaration she seeks. I will hear the parties as to the precise form of that declaration and as to costs.