Smith v Smith

[2025] NSWSC 287

Supreme Court

New South Wales

Medium Neutral Citation:

Smith v Smith [2025] NSWSC 287

Hearing dates:

27 March 2025

Date of orders:

27 March 2025

Decision date:

27 March 2025

Jurisdiction:

Equity - Duty List

Before:

Meek J

Decision:

Temporary injunction granted.

Catchwords:

LAND LAW — Severance of joint tenancy by registration of unilateral transfer — Plaintiff (wife) sought to restrain registration of a transfer by the defendant (husband)

LAND LAW — Very urgent ex-parte application to restrain NSW Land Registry Services from registering a transfer to sever a joint tenancy — Basis for claim to prevent registration said to arise from mutual Wills — Husband’s Will contains no promise regarding not severing joint tenancy — However there is some evidence, though not in ideal form, suggesting there existed some understanding between the parties that they would hold the relevant property indefinitely as joint tenants so that the survivor would inherit the property on the other’s death, supported by some consideration or detriment — Injunction sought until further order — Temporary injunction granted in the exigent circumstances

Legislation Cited:

Family Law Act 1975 (Cth)

Land and Property Information NSW (Authorised Transaction) Act 2016 (NSW)

Rural Property Act 1900 (NSW)

Cases Cited:

Goyal v Chandra (2006) 68 NSWLR 313; [2006] NSWSC 239

Category:

Principal judgment

Parties:

Xueyan Smith (plaintiff)
James Harold Smith (defendant)

Representation:

Solicitors:
G Wu (plaintiff)

File Number(s):

2025/114716

EX TEMPORE JUDGMENT (rEVISED)

1. HIS HONOUR: The application by notice of motion before the Court seeks to restrain NSW Land Registry Services (LRS) from registering a transfer severing a joint tenancy. The application has been brought on very urgently. The evidence reveals that if an order restraining registration of the transfer is not lodged before today, that LRS will register the transfer.

2. On one view, there is some doubt as to whether the application is too late. However Mr Wu, a solicitor who appeared on behalf of the plaintiff, informed the Court that yesterday he spoke to a person at LRS, sent them a copy of the summons and a notice of motion, and was apparently informed by “the registrar” that LRS would put the registration on hold because they are aware that Mr Wu is applying for an urgent injunction order.

3. The Land and Property Information NSW (Authorised Transaction) Act 2016 (NSW) established the mechanisms for the Registrar General to be the regulator of a privately-operated land titles business. “NSW Land Registry Services” is the business name of a private company that operates the land titles registry on behalf of the NSW Government under a 35-year concession that took effect on 1 July 2017. It provides titling and registry services, subject to regulation by the Registrar General.

4. The plaintiff and the defendant are husband and wife, although apparently separated, living under the same roof. Seemingly, the defendant is not in good health. They own property at Auburn as joint tenants. On 19 February 2025, the defendant caused his solicitor to lodge a transfer severing a joint tenancy supported by a statutory declaration. On 25 February 2025, LRS caused to be sent to the plaintiff a notice pursuant to s 12A of the Rural Property Act 1900 (NSW) attaching a copy of the lodged transfer severing the joint tenancy and intimating that, if the plaintiff did not lodge a court order stopping registration of the transfer before 27 March 2025, the Registrar would register the transfer with the consequence asserted to be that the joint tenancy would then be severed.

5. The plaintiff, on 25 March 2025, commenced these proceedings seeking final relief restraining the defendant from severing the joint tenancy. The summons has a return date of 15 April 2025 at 9.30 am. There is evidence that the summons has been served. Seemingly cognisant of the fact that the return date of the summons would be after the date of 27 March 2025, the plaintiff caused her solicitor to e-file this morning a notice of motion seeking an interim injunction restraining LRS, until further order, from registering the transfer.

6. LRS is not a party to the proceedings. The question as to whether LRS ought properly to be joined to the proceedings having regard to the nature of the orders sought, will need to be addressed on further hearing.

7. The plaintiff relies upon two affidavits of itself, the first affirmed on 23 March 2025, and the second, yesterday, 26 March 2025. Although the notice that I have referred to from LRS is dated 25 February 2025, the plaintiff in her affidavit affirmed yesterday asserts that she received the documents, in particular, the notice regarding severance of joint tenancy, the transfer and the statutory declaration, on or about 13 March 2025.

8. Mr Wu indicated that the basis for the relief sought was premised on the parties having executed mutual Wills, and he directed me to a copy of the defendant’s last known Will signed on 21 October 2015. The Will itself does not contain any promise not to sever the joint tenancy.

9. Nonetheless, there is some material in the plaintiff’s affidavit affirmed 23 March 2025 to the effect that on or about 19 July 2012, she and the defendant engaged lawyers to make mutual Wills, she says, with the intention that the property would pass to her if the defendant passed away and she survived him by 30 days.

10. Further, she asserts that the defendant transferred the property into their joint names on 25 July 2012, with the understanding between them that they would hold it indefinitely as joint tenants so that the survivor would inherit the property on the other’s death, as a gesture to acknowledge her contribution to renovating the property and looking after him on a daily basis. Conceptually, those matters (or any others that evidence might ultimately reveal) might amount to some consideration provided by the plaintiff, or detrimental reliance on a promise or representation.

11. I have had to deal with the matter urgently, in particular, without the benefit of detailed argument or reference to any case law or legal principles addressing the matter.

12. Where one joint tenant has an expectation that he or she will acquire by survivorship the interest of the other and acts on that expectation to his or her detriment, and the other is implicated in the creation of the expectation and encourages the reliant activity of the first, then at least ordinarily, it is arguable that it is unconscionable for the second to act contrary to the expectation or assumption, and that equity may preclude the second party from severing the joint tenancy: see, for example, Goyal v Chandra (2006) 68 NSWLR 313; [2006] NSWSC 239 (Goyal v Chandra). It is unclear to me whether, in this case, the plaintiff contends that there is an actual agreement between the parties or her claims are, as intimated in Goyal v Chandra, supportable either by equitable estoppel or perhaps by the imposition of a constructive trust.

13. More particularly, in the case of parties to a marriage, the provisions of the Family Law Act 1975 (Cth), and, in particular, the discretionary property adjustment regime provided for by s 79, may impact upon the matter.

14. The evidence of the arrangements said to support the plaintiff’s claim that the parties would hold the Auburn property indefinitely as joint tenants so that the survivor would inherit the property on the other’s death is not in ideal form. In light of that, there is some doubt in my mind as to the strength of the plaintiff’s contended prima facie case.

15. I enquired about an undertaking as to damages and Mr Wu indicated that he was instructed to give such an undertaking.

16. Whilst I have the doubt that I have expressed, it seems to me in the extremely urgent circumstances of the matter, the appropriate step to take having regard to the balance of convenience is to grant very temporary injunctive relief, not as asked until further order, but until next week. This will enable the application to be brought to the attention of the defendant as soon as reasonably possible and will give an opportunity to both parties to persuade the Court of their position.

17. For those very brief reasons, I have made the orders as set below.

1. Notes that the plaintiff has by notice of motion e-field this morning today urgently moved the Court to seek as interlocutory relief an order restraining the defendant from severing a joint tenancy of property they hold at Auburn.

2. Notes the plaintiff relies on affidavit of herself affirmed on 23 March 2025 and 26 March 2025.

3. Notes NSW Land Registry Services (LRS) issued to the plaintiff a notice pursuant to s 12A Real Property Act 1900 dated 25 February 2025 indicating that if the plaintiff has not lodged a Court order preventing LRS registering a transfer severing the joint tenancy before 27 March 2025 that LRS will register it with the stated consequence that the joint tenancy will be severed.

4. Upon the plaintiff given by her solicitor giving to the Court the usual undertaking as to damages pursuant to r 25.8 UCPR order that LRS be restrained from registering or otherwise processing the Transfer XX severing the Joint Tenancy, lodged in respect of the property located at XX Park Road Auburn NSW 2144, the being the whole of land described in folio XX of NSW Land Registry, until 5pm on 3 April 2025.

5. Notes that the above order is without prejudice to the right of the defendant, LRS and or the Registrar General to seek to be joined to the proceedings and to seek to discharge the order on 48 hours’ notice prior to 3 April 2025.

6. Abridge time for service of the summons, notice of motion, the plaintiff’s affidavits and these orders on the defendant and LRS to 12pm on 28 March 2025.

7. Vacates the listing of the summons for 15 April 2025.

8. Stands the notice of motion and the summons over to before the Equity Duty Judge at 10am on 3 April 2025 for hearing of the question as to whether the injunction in Order 5 ought to be continued or not.

9. Order that costs be reserved.

10. Orders that these orders be entered forthwith.

11. Grant leave to the plaintiff, in the first instance to notify LRS and the defendant of notice of these orders by telephone, text or email means.

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Decision last updated: 28 March 2025