NSW Caselaw
New South Wales Supreme Court
CITATION : McCoy v Caelli [2010] NSWSC 1233
HEARING DATE(S) : 12 March 2010
JUDGMENT DATE : 27 October 2010
JURISDICTION : Equity
JUDGMENT OF : White J
DECISION : 1. Declare that the plaintiff is the sole beneficial owner of property comprised in Folio Identifier 1/511056 and known as 1 Tuffins Lane, Port Macquarie, NSW (the "property") and that she is entitled to be recorded as the sole registered proprietor of the property in the register of titles maintained by the second defendant. 2. Order that the second defendant not register the Transfer Unilaterally Severing Joint Tenancy (dealing no. AE137074) executed by the deceased. 3. Order that the second defendant register the Notice of Death (dealing no. AE187549) and register the plaintiff as the sole proprietor of the property. 4. Dismiss the other claims for relief in the amended statement of claim and dismiss the cross-claim. 5. The exhibits may be returned after 28 days.
CATCHWORDS : REAL PROPERTY – Torrens title – unilateral severance of joint tenancy - Real Property Act 1900 (NSW), s 97 – where transfer unilaterally severing joint tenancy lodged with Registrar-General after death of severing tenant – modes of severing joint tenancy – whether severing tenant's acts before death sufficient to effect severance at equity – relevance of perfected gift doctrine in context of unilateral severance – whether transferor's death precludes transferee from proceeding to registration – implications of dealings taking effect as deeds under Real Property Act where person taking under deed dies before execution – whether severing tenant's death terminates solicitor's authority to lodge transfer - EQUITY – where surviving joint tenant alleged payment of acquisition costs and costs of improvements and repairs – whether resulting trust or constructive trust arises – whether presumption of advancement arises between mother and child – where insufficient evidence of payment – where mother intended son to hold property as joint tenant
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