Yann - v - Yann

[2015] VCC 771

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMERCIAL DIVISION
GENERAL LIST

Revised
Not Restricted

Case No. CI-14-02169

ALEXANDROS YANN	Plaintiff
V
NICK YANN	Defendant

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JUDGE:	HER HONOUR JUDGE KENNEDY
WHERE HELD:	Melbourne
DATE OF HEARING:	3 June 2015
DATE OF JUDGMENT:	3 June 2015
CASE MAY BE CITED AS:	Yann – v – Yann
MEDIUM NEUTRAL CITATION:	[2015] VCC 771

REASONS FOR JUDGMENT
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Catchwords:  PROPERTY – co-ownership – joint tenancy –whether joint tenancy severed – whether property now owned as tenants in common

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R. Sadler	Paul Harding
For the Defendant	No appearance	----

HER HONOUR:

1. For reasons expressed in my Ruling in this matter of this morning,[1] this matter has proceeded as an unopposed trial.

   [1] Yann v Yann [2015] VCC 770.

2. The plaintiff is the executor of the estate of his mother Vicki (Vassiliki) Yann.  The defendant is the plaintiff’s brother, while Panagiotis Yann is the father of the plaintiff and the defendant.

3. The proceeding concerns a determination of the parties’ interests in the properties at 27 McIlwrick Street Windsor (the “shop property”) and 25 McIlwrick Street Windsor (the “house property”).

4. Notwithstanding the range of claims constituting the Amended Statement of Claim dated 12 March 2015, the plaintiff chose to seek orders solely on the basis that the joint tenancy in relation to the two properties had been severed, such that he held the properties as a tenant in common with the defendant in equal shares (pursuant to paragraphs 17 and 29(b) of the Amended Statement of Claim).

5. Although the Defence to the Amended Statement of claim further raised a number of defences, including, primarily, that the defendant contributed all the funds to purchase the properties, the defendant has adduced no evidence in support of this allegation (paragraphs 3 and 7).

6. The sole issue for determination was therefore whether the plaintiff was entitled to the orders sought on the basis that the joint tenancy had been severed.

   Relevant findings

7. The properties at both 25 McIlwrick Street Windsor and 27 McIlwrick Street Windsor were originally registered in the names of the defendant, Vicki, and Panagiotis Yann as joint tenants.[2]

   [2] Admitted in paragraphs 2 and 6 of the Defence to the Amended Statement of Claim dated 22 April 2015.

8. Panagiotis died on 14 October 1975.[3] 

   [3] Admitted in paragraph 10 of the Defence to the Amended Statement of Claim dated 22 April 2015.

9. The result of the death of Panagiotis is that, by reason of the right of survivorship, the mother, Vicki, and the defendant became joint tenants in equal shares.[4] 

   [4] Mischel Holdings Pty ltd (in Liq) v Igo Mischel [2013] VSCA 375 at [56]-[57].

10. The plaintiff next alleges that on 1 May 1979 Vicki transferred to the plaintiff all her interest in the properties[5] which he held on trust for Vicki.

    [5] Paragraph 13 of the Amended Statement of Claim dated 12 March 2015.

11. In his Defence the defendant pleads: "Save that he refers to and relies upon paragraphs 3 and 7 above, the defendant admits paragraph 13".[6]

    [6] Paragraph 13 of the Defence to Amended Statement of Claim dated 22 April 2015.

12. Paragraphs 3 and 7 relate to the basis on which the property was originally held rather than the transfer.  It follows that the natural construction of paragraphs 13 is that the defendant admits the transfer.

13. The result of the transfer however is that the joint tenancy is severed. According to Peter Butt on Land Law[7]:

    "Alienation inter vivos of the whole of a joint tenant's interest in the land severs the joint tenancy as it relates to that interest.  So if A and B are joint tenants, and A conveys her interest to C, B and C hold as tenants in common.” 

    [7] Butt, Peter Land Law (Lawbook Co, 2006, 5^th ed.) paragraph 1462; see also Mischel Holdings Pty ltd (in Liq) v Igo Mischel [2013] VSCA 375 at [61]-[62].

14. It follows that the consequent result of the severance is that the plaintiff (as his mother’s executor) and the defendant, hold the properties as tenants in common.

    Conclusion

15. I am satisfied that the properties are held by the plaintiff and defendant as tenants in common, in equal shares.

16. I will hear from the plaintiff as to the appropriate form of final order, including whether it is appropriate to make an order for sale under Part IV of the Property Law Act 1958 (Vic).