Sprott v Harper

[2000] QCA 391

SUPREME COURT OF QUEENSLAND

CITATION:

Sprott v Harper [2000] QCA 391

PARTIES:

KAREN SPROTT
(applicant/respondent)
v
LAURENCE VICTOR HARPER
(respondent/appellant)

FILE NO/S:

Appeal No 1749 of 2000
DC No 4330 of 1999

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

29 September 2000

DELIVERED AT:

Brisbane

HEARING DATE:

20 September 2000

JUDGE:

Pincus and Thomas JJA, White J
Judgment of the Court

ORDER:

Appeal dismissed with costs.

CATCHWORDS:

REAL PROPERTY – INCIDENTS OF ESTATES AND INTERESTS IN LAND – JOINT TENANCY AND TENANCY IN COMMON – INCIDENTS – JOINT TENANCY – SEVERANCE – IN FAMILY LAW MATTERS - whether joint tenancy severed where spouses executed agreement for settlement of property and assets – further negotiations afterwards – whether registration in the Family Court necessary – effect of such agreement inter se whether registered or not – course of dealing

Bourke v Bourke (No 2) (1994) FLC 92-479; (1994) 121 FLR 124, considered
Smallman v Smallman [1972] Fam 25 at 31, considered
Calabrese v Miuccio (No 2) [1985] 1 Qd R 17, considered
Corin v Patten (1990) 169 CLR 540, applied
Williams v Hensman [1861] 1 J & H 546, (1861) 70 ER 862, applied

COUNSEL:

J W Lee for the appellant
S R D Blaxland for the respondent

SOLICITORS:

O'Reilly's Solicitors for the appellant
Spranklin Solicitors for the respondent

1. THE COURT:  The issue in this case is whether a joint tenancy has been severed.  If it has the deceased wife's estate will be entitled to a half interest in the property as tenant-in-common; if it has not, the husband will be sole owner of the property by survivorship.

1. The property is a house property at Morayfield.  It was formerly owned by the appellant Mr Harper and his wife as joint tenants.  His wife died on 29 July 1999 apparently having fallen out with the appellant some time previously.  Her will made in June 1998 appoints her daughter, who is the respondent in these proceedings, as executrix and trustee of her estate.  The appellant was left no benefit under that will.

1. The learned District Court judge held that the former joint tenancy had been severed and that as a consequence the respondent (on behalf of the estate) is entitled to an equal share in the property as tenant-in-common with the appellant.

1. The appellant and Mrs Harper had married in 1989 and purchased the property as joint tenants in 1991.  Mrs Harper by October 1998 had ceased to reside at the property and had commenced living apart from the appellant.  The solicitors for Mrs Harper and the solicitors for the appellant then commenced negotiations in writing with a view to reaching a property settlement.  On 1 April 1999 the appellant and Mrs Harper met in the absence of their solicitors and executed a handwritten document entitled "Agreement for Settlement of Property and Assets between Janice A Harper and Laurence V Harper".  It was in these terms:

"We do both agree to…