St. George Bank- a Division of Westpac Banking Corporation v (an application of Norman Ashley Wright)

[2015] NSWSC 255

Supreme Court

New South Wales

Medium Neutral Citation:	St. George Bank- A Division of Westpac Banking Corporation v. (an application of Norman Ashley Wright) [2015] NSWSC 255
Hearing dates:	2 March 2015
Date of orders:	02 March 2015
Decision date:	02 March 2015
Jurisdiction:	Equity Division
Before:	Rein J
Decision:	At [13]
Catchwords:	PROPERTY - joint tenants - de facto partners - survivorship of one joint tenant - sale of property by mortgagee - monies paid into court - whether proceeds of sale held entirely by applicant as surviving joint tenant or between applicant and estate of deceased as tenants in common
Legislation Cited:	S 26 Conveyancing Act 1919 (NSW)
Cases Cited:	Re Commonwealth Bank of Australia (2009) NSWSC 81 Scott v Scott (2009) NSWSC 567 Singh v Kaur Bai (No 2) (2014) WASCA 88
Texts Cited:	Peter Butt, Land Law (6th ed 2010 , Thomson Reuters)
Category:	Principal judgment
Parties:	Norman Ashley Wright (Applicant) St. George Bank- A Division of Westpac Banking Corporation (Respondent)
Representation:	Counsel: D. Roberts (Applicant) Solicitors: Rachel Stubbs and Associates (Applicant) Kemp Strang (Respondent)
File Number(s):	2012/19395
Publication restriction:	Nil

EX TEMPORE Judgment

1. The applicant and his late de facto partner, Michelle, bought a property at Bonnyrigg. Michelle bore two children by the applicant; one is 18 and the other is 17.

2. St George Bank obtained possession of the property following non payment of a debt to the bank and sold the property with a net surplus of $351,000 approximately. That money has been paid into Court in accordance with the usual procedures.

3. The applicant and Michelle separated in 2008 and Michelle passed away in December 2013. The applicant claims that he is the surviving joint tenant and is entitled to all of the net proceeds. Through his solicitors, he has contacted solicitors who were until her death previously acting for Michelle. Those solicitors have, it seems, sought to find a suitable relative of Michelle to act as an administrator of her estate but no one has been willing to do so. Those solicitors have encouraged the daughters to obtain representation which they have done. Ms Susan Green has written to the solicitors for the applicant on the children’s behalf indicating that she is instructed by the beneficiaries of the estate of Michelle.

4. In the correspondence Ms Green has advanced reasons why the joint tenancy has been severed and she asked the applicant to withdraw his application for the funds. Ms Green has, however, indicated that she would be seeking instructions in relation to the matter but most recently on 27 February Ms Green advised that she would no longer be acting. This may well be explained by the fact that Indira, the elder of the applicant’s two daughters, has written to the solicitors for the applicant advising that she and her sister were happy for their father to obtain the money from the house that had been sold although she did not know the remaining amount and that she understood that it would be split into trust for her sister and her herself, and used for investments. She stated that she and her sister fully agree with what their father intended to use the money for: see annexure E to the affidavit of Laura McCrohon of 24 February 2015. Also read on this application is the affidavit of Norman Ashley Wright and another affidavit of Ms McCrohon of 18 December 2014.

5. Neither the estate nor the children have sought to take steps to be heard in relation to these proceedings and it would appear that Ms Green and the children have effectively abandoned any attempt to resist the orders that are sought by the applicant. In one sense since neither the estate nor the children have sought to be heard in these proceedings in order to resist the applicant’s application, it may be thought that there being no competing interest for the money that the applicant should be entitled to receive the money without any further consideration.

6. Mr D Roberts of counsel, who appears for the applicant, has properly sought to deal with the suggestion that comes through the correspondence from Ms Green that somehow or other the joint tenancy has been severed.

7. At annexure B of the affidavit of Ms McCrohon of 24 February in a letter of 18 December 2014 Ms Green makes three points in relation to this. Firstly, she asserts that the mortgage has been severed by reason of the bank entering into possession of the property and that a new asset entirely was thereby created. Secondly, she refers to section 26(1) of the Conveyancing Act which she says reverses the common law presumption of joint tenancy and, thirdly, she contends that the parties indicated an intention that any joint tenancy was severed referring to the correspondence "read by me, between your firm and that of Mr Thomas Murphy" asserting that the parties no longer consider themselves to be joint tenants. She asserts that the applicant and Michelle assumed that the proceeds would be divided between them rather than remain as a single unit

8. In relation to first point it is not consistent with authority. Mr Roberts has drawn my attention to a decision of Young CJ in Eq (as his Honour then was) in Re Commonwealth Bank of Australia (2009) NSWSC 81, to Scott v Scott (2009) NSWSC 567 (see [59] - [61]) a decision of Ward J (as her Honour then was) and a recent decision of Singh v Kaur Bai (No 2) (2014) WASCA 88 particularly at [36]. These authorities are entirely consistent with what is found in Peter Butt, Land Law (6th ed 2010, Thomson Reuters) paragraph 14.68 that a mortgage does not sever the joint tenancy and that the joint tenancy continues over the proceeds of sale following the exercise of rights by a mortgagee. The situation is different where the land is held under the old system title; that topic is dealt with by Professor Butt at 14.67.

9. Section 26(1) of the Conveyancing Act appears to have no relevance to this matter. There has been no disposition by the applicant.

10. So far as the third matter is concerned which is the conduct of the parties, there is no evidence of an agreement as to severance of the joint tenancy written or oral between the applicant and Michelle. Although Ms Green has advanced the argument in terms of matters arising out of correspondence, she does not in fact assert an agreement but rather an understanding held on behalf of Michelle and asserts a similar understanding on the part of the applicant.

11. The applicant's evidence is that no agreement has ever been made between himself and Michelle (see paragraph 17 of his affidavit) and of course he has not been cross examined. Whilst it is possible that a case for severance might be capable of being made out on the basis of evidence, nothing has been put and no arguments advanced to the Court by any of those who might have an interest in obtaining half of the net proceeds.

12. Accordingly, I am satisfied on the material before me that no severance has occurred. Therefore, the property, that is, the net proceeds of sale, vests in the applicant and he is free to deal with that half. Of course, if he has given an undertaking to his daughters to arrange matters for their welfare that is a separate matter. I am informed that the daughters have close contact with the applicant and that he has their interests and welfare at heart. Hopefully, that will be reflected in his future conduct.

13. I am satisfied that the applicant is entitled to an order. That order is that the sum of $351,000 paid into Court pursuant to section 112 (4) of the Conveyancing Act 1919 together with any interest accrued thereon be paid to the applicant, Norman Ashley Wright, by cheque made out to Rachel Stubbs and Associates Solicitors.

14. The applicant does not seek an order as to the applicant’s costs.

Decision last updated: 18 March 2015