Legal Research
Cases
Whitty v Talia

Whitty v Talia

Case [2023] VSCA 246 19 October 2023

Co-ownership

Joint Tenancy

Severance of Joint Tenancy

Transfer of Land Act 1958

Legitimate Expectation

Equitable Estoppel

Property Law

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2022 0065

CATHERINE ANNE WHITTY	Applicant
v
NATALIE TALIA (IN HER CAPACITY AS ADMINISTRATOR AD LITEM OF THE ESTATE OF MARIO CARUSO DECEASED, PURSUANT TO ORDER OF THE HONOURABLE JUSTICE MCMILLAN MADE 28 JULY 2021) AND OTHERS ACCORDING TO THE SCHEDULE	Respondents

---

JUDGES:	McLEISH, KENNEDY and WALKER JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	29 August 2023
DATE OF JUDGMENT:	19 October 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 246
JUDGMENT APPEALED FROM:	[2022] VSC 242 (Gorton J)

---

REAL PROPERTY – Co-ownership – Joint tenancy at law – Whether joint tenancy severed in equity by course of conduct – Purchase of matrimonial home partly funded by unsecured loan from husband’s siblings to husband – Husband and wife instructed solicitors tenancy to be joint – Husband and wife executed deed at time of settlement – Deed provided for husband or executor to sell property on behalf of owners in event of default in loan or death of husband while loan outstanding – Purpose of deed to provide comfort to siblings for loan – Whether objective intention of husband and wife to destroy right of survivorship – Joint tenancy severed – Leave to appeal granted – Appeal dismissed.

Transfer of Land Act 1958, s 33(4), referred to.

Williams v Hensman (1861) 1 J&H 546; 70 ER 862, applied – Mischel Holdings Pty Ltd (in liq) v Mischel [2013] VSCA 375; Corin v Patton (1990) 169 CLR 540, discussed.

---

Counsel
Applicant:	Mr DG Collins KC with Mr HC McAvaney
First Respondent:	No appearance
Second to Fourth Respondents:	Mr RC Wells with Mr DKR Kinsey
Solicitors
Applicant:	Mills Oakley
First Respondent:	Hicks Oakley Chessell Williams Pty Ltd
Second to Fourth Respondents:	Mazzeo Lawyers

MCLEISH JA
KENNEDY JA
WALKER JA:

On 23 September 2017, Mario Caruso and Catherine Whitty, a married couple, executed a contract to purchase a property in Nicholson Street, Fitzroy. Settlement was due to take place on 23 January 2018.
Settlement was delayed. In anticipation of it taking place, the purchasers signed a transfer of land on 24 February 2018. In that document, they were described as joint proprietors. It is not in dispute that, when the contract was signed and until shortly before settlement, at least, the purchasers intended to acquire the property as joint tenants.
Settlement took place on 6 March 2018 and the property was subsequently registered in the names of the purchasers as ‘joint proprietors’. The purchase price was provided from three principal sources:
(a)a loan from the Commonwealth Bank;
(b)the proceeds of sale of another property which had been owned by Ms Whitty; and
(c)a loan to Mr Caruso from two of his brothers and his sister‑in‑law, to whom it is convenient to refer, albeit somewhat inaccurately, as ‘the siblings’.
The siblings’ loan to Mr Caruso was documented by an agreement dated 6 March 2018. Ms Whitty was not a party to that agreement. On the same day, Mr Caruso and Ms…

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.

Continue reading Whitty v Talia

Details

AGLC: Whitty v Talia [2023] VSCA 246
Case: [2023] VSCA 246
Decision Date: 19 October 2023

CaseChat Overview and Summary

In the matter of Whitty v Talia, the dispute involved the nature of the co-ownership of a matrimonial home, specifically whether the joint tenancy at law was severed in equity. The case was heard in the Supreme Court of Victoria. The wife sought a declaration that she held the property as a tenant in common with the husband, rather than as joint tenants. This arose from the husband taking an unsecured loan from his siblings to assist in purchasing the property, with the siblings' concern addressed by a deed that provided for the husband or his executor to sell the property in certain circumstances.

The primary legal issue was whether the husband and wife's conduct and the execution of the deed constituted an intention to sever the joint tenancy, thereby destroying the right of survivorship. The court considered whether the objective intention of the parties was to sever the joint tenancy, as opposed to any subjective intentions that might not have been communicated. The wife argued that the deed and the husband's course of conduct indicated a clear intention to sever the joint tenancy.

The court found that the deed and the husband's course of conduct did indeed demonstrate an objective intention to sever the joint tenancy. The deed was intended to provide comfort to the husband’s siblings, and the purpose it served, along with the husband's conduct, was sufficient to indicate an intention to destroy the right of survivorship. The court relied on the principles established in Williams v Hensman and Mischel Holdings Pty Ltd (in liq) v Mischel, and noted the discussion in Corin v Patton. The court held that the joint tenancy was severed in equity, and the wife held the property as a tenant in common with the husband. The wife was granted leave to appeal, but the appeal was subsequently dismissed.

The final orders of the court recognised the wife's interest as a tenant in common and dismissed the husband’s cross-claim for an account of rents and profits.

Orders