ON APPEAL FROM THE SUPREME COURT OF Real Property-Joint tenancy-Three joint tenants-Two tenants cross-transferring H.
interest to each other-Single instrument of transfer-Severance-Real Property Act 1862-1935 (Tas.) (25 Vict. No. 16-26 Geo. v. No. 99).
A, B and C were registered as joint tenants for an estate in fee simple in land under the provisions of the Real Property Act 1862-1935 (Tas.). By one instrument of transfer A purported to transfer to B her undivided interest in the land and B purported to transfer to A her undivided interest in the land to the intent that A, B and C should all three be tenants in common in equal shares.
Held that upon registration of the memorandum of transfer the joint tenancy was severed, and that A, B and C became tenants in common. The alienation of the share of one joint tenant to another joint tenant and the exchange of shares between joint tenants at common law and under the provisions of the Real Property Act 1862-1935 (Tas.), discussed.
Decision of the Supreme Court of Tasmania (Clarke J.) reversed.
APPEAL from the Supreme Court of Tasmania.
Olinda Gibbons, Ethel Rose Gibbons and Bessie Melba Gibbons were registered, under the provisions of the Real Property Act 1862-1935 (Tas.), as joint tenants for an estate in fee simple of certain land at Hobart, subject to a registered mortgage. By a document executed on 6th December 1945, duly registered by the Recorder of Titles as a memorandum of transfer, Ethel Rose Gibbons,
in consideration of the transfer to her of the one-third share in the
joint tenancy by Olinda Gibbons, transferred to Olinda Gibbons all her one-third share estate and interest in the said piece of land and Olinda Gibbons, in consideration of the transfer above described, transferred to Ethel Rose Gibbons all her one-third share estate and interest in the said piece of land. On registration the appro- priate certificate of title was indorsed with a memorial of the memorandum of transfer as a result of which the former joint tenants were registered as tenants in common in equal shares. Bessie Melba Gibbons who survived the two other tenants, sought a declaration in the Supreme Court of Tasmania that the memorandum of transfer did not effect a severance of the joint tenancy, and conse- quently that she, as survivor of the three, became solely entitled to an estate in fee simple, the defendants being Reginald Charles Wright (the executor of the wills of Ethel Rose Gibbons, who died on 26th January 1946, and Olinda Gibbons, who died on 30th November 1946) and the Recorder of Titles.
Pursuant to an order for the determination of the question before trial, Clark J. held that the joint tenancy had not been severed by reason of the memorandum of transfer. His Honour said that in contemplation of law joint tenants are jointly seised for the whole estate they take in land…
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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AGLC
Wright v Gibbons [1949] HCA 3
Case
[1949] HCA 3
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard an appeal from the Supreme Court of Tasmania concerning the severance of a joint tenancy. The dispute arose between Bessie Melba Gibbons, the respondent and plaintiff, and the executors of the estates of her deceased co-joint tenants, Olinda Gibbons and Ethel Rose Gibbons, who were the appellants. The core issue was whether a memorandum of transfer executed by Olinda and Ethel, purporting to cross-transfer their interests to each other, had effectively severed the joint tenancy under the *Real Property Act 1862-1935* (Tas.).
The legal question before the court was whether the registration of a single instrument of transfer, by which two of three joint tenants purported to transfer their respective undivided interests to each other, operated to sever the joint tenancy. The Supreme Court of Tasmania had held that the joint tenancy was not severed, reasoning that such a mutual assurance between joint tenants could achieve nothing and therefore failed. The appellants contended that the transaction, particularly under the Torrens system, should be recognised as a severance.
The High Court, in allowing the appeal, determined that the joint tenancy had been severed. The Court reasoned that while at common law a release was the traditional method for one joint tenant to transfer their interest to another, the *Real Property Act* provided for alienation by transfer. The Act did not alter the substantive common law principles of joint tenancy but simplified the conveyancing mechanism. The Court held that the cross-transfers, when registered, effectively operated as a transfer of each sister's interest to the other, thereby destroying the unity of title and creating a tenancy in common. This was consistent with the intention of the parties and the principles of the Torrens system, which prioritised registration and simplified conveyancing.
The High Court ordered that the joint tenancy in the land under the *Real Property Act* was severed by the registration of the transfer. Consequently, the deceased sisters' estates were entitled to one-third shares as tenants in common, and the respondent, Bessie Melba Gibbons, did not take the entirety of the land by survivorship.