Gibbons v Wright [1954] HCA 17

High Court of Australia Dixon C.J. Kitto and Taylor JJ. Gibbons v Wright [1954] HCA 17

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The Court delivered the following written judgment:—

April 23, 1954 Dixon C.J., Kitto and Taylor JJ.

The appellant was the plaintiff in an action in the Supreme Court of Tasmania against the respondent as executor of the respective wills of Olinda Gibbons deceased and Ethel Rose Gibbons deceased. The plaintiff sought in the action to establish a title, as the last survivor of three joint tenants, Olinda Gibbons, Ethel Rose Gibbons and herself, to an estate in fee simple in possession in two parcels of land situate respectively in Liverpool Street and Park Street, Hobart. After a trial before Morris C.J. and a jury the plaintiff obtained judgment, but on appeal the judgment was set aside by the Full Court. From the Full Court's order the plaintiff now appeals to this Court.

The title to the land in Park Street and part of the land in Liverpool Street is under the provisions of the Real Property Act, and the title to the remainder of the land in Liverpool Street is governed by the general law. Until 4th April 1943, the fee simple in the lands of both descriptions was vested in Olinda Gibbons and Ethel Rose Gibbons, who were sisters, and their brother Gustav Gibbons, as joint tenants. On that date the brother died. On 3rd July of the same year, the sisters, pursuant to a covenant to do so entered into on 14th April 1943, conveyed the land under the general law, and transferred the land under the Real Property Act to themselves and the appellant (who is Gustav's widow) as joint tenants. Shortly afterwards, however, they purported to sever the joint tenancy thus created. As to the land under the general law, each sister on 11th October 1944 mortgaged her interest to a solicitor, who happens to be the respondent, by means of a deed of conveyance with a proviso for redemption, to secure a loan of £10. As to the land under the Real Property Act, the sisters on 6th December 1945 executed a memorandum of transfer (subsequently duly registered) whereby each transferred to the other her one-third share in the joint tenancy in consideration of a similar transfer by the other to her.