Wright v Gibbons [1949] HCA 3

High Court of Australia Latham C.J. Rich and Dixon JJ. Wright v Gibbons [1949] HCA 3

ORDER Appeals allowed with costs. Order of Supreme Court as to land under the Real Property Act discharged and in lieu thereof declare that the joint tenancy between Olinda Gibbons, Ethel Rose Gibbons and the plaintiff was severed by reason of the making and registration of memorandum of transfer dated 6th December 1945, registered number 109689.

Cur. adv. vult.

The following written judgments were delivered:—

Feb. 22 Latham C.J.

These are appeals by each of two defendants in an action in which Bessie Melba Gibbons sought a declaration that she was entitled as the survivor of three joint tenants of certain lands to an estate in fee simple therein. The defendant R. C. Wright is the executor of the wills of the other two joint tenants, Olinda Gibbons and Ethel Rose Gibbons. Ethel Rose Gibbons died on 20th January 1946 and Olinda Gibbons died on 30th November 1946. The defendant Leonard Charles Pitfield is the Recorder of Titles of the State of Tasmania. An order was made that the following point of law raised by the pleadings should be heard and disposed of before trial:—"Whether by reason of the acts deeds and instruments admitted or alleged in the defence the joint tenancy subsisting between the plaintiff and Olinda Gibbons and Ethel Rose Gibbons was severed."

Olinda Gibbons and Ethel Rose Gibbons were sisters. They, together with their sister-in-law, the plaintiff Bessie Melba Gibbons, were seised of an estate in fee simple as joint tenants in certain lands under the general law and in certain other lands under the Real Property Act 1862-1935 Tas.. All the lands were subject to a mortgage to the Bank of Australasia.

On 11th October 1944 Olinda Gibbons and Ethel Rose Gibbons by separate instruments mortgaged their interests as joint tenants in the lands under the general law to R. C. Wright. It was contended for the defendants that these mortgages were effective to sever the joint tenancy theretofore existing in the lands under the general law, and this contention was upheld by the learned trial judge. There is no appeal with respect to this part of the order.