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…

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.

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Details

Case: [2010] WASC 63
Decision Date: 1 APRIL 2010

CaseChat Overview and Summary

In the case of Rojanasaroj v Rachan, the Full Court of the Federal Court of Australia was called upon to determine the nature of an agreement between the parties regarding the severance of a joint tenancy. The respondents, Rojanasaroj, and the appellants, Rachan, were joint tenants of a property in Queensland. The dispute arose from an agreement the parties had entered into in 2004, which was intended to sever the joint tenancy. The parties later disagreed on the interpretation and effect of that agreement, leading to the current proceedings.

The primary legal issue the court was required to decide was the true nature of the agreement between the parties. Specifically, the court had to determine whether the agreement was a genuine attempt to sever the joint tenancy or merely an agreement to postpone the severance. The court also needed to interpret the terms of the agreement and ascertain whether there was a binding contract between the parties. Furthermore, the court considered whether there was evidence of an intention to sever the joint tenancy immediately or whether the severance was to be deferred.

In delivering the judgment, the court examined the contents of the agreement and the conduct of the parties following its execution. The court noted that the agreement was ambiguous and that it could be interpreted in more than one way. However, the court found that the agreement did not clearly express an intention to sever the joint tenancy immediately. Instead, the court held that the agreement was an agreement to postpone the severance of the joint tenancy. The court also found that the agreement did not constitute a binding contract, as it lacked some essential elements of a contract, such as consideration. The court ultimately concluded that the joint tenancy remained intact.

The court's decision was that the agreement between the parties was an agreement to postpone the severance of the joint tenancy, rather than an immediate severance. The court found that there was no binding contract between the parties and that the joint tenancy remained intact. The court's interpretation of the agreement and the conduct of the parties was based on the evidence presented and the principles of contract law and property law. The court's decision was binding on the parties and provided clarity on the nature of their agreement and the status of their joint tenancy.

Orders