Supreme Court New South Wales Medium Neutral Citation: Chapman v Chapman [2014] NSWSC 1140 Hearing dates: 20 August 2014 Decision date: 20 August 2014 Jurisdiction: Common Law Before: Adamson J Decision: 1. Order judgment for the plaintiff, Mackton Hugh Chapman for possession of the land comprised in Certificate of Title Lot 3 of Section E in Deposited Plan 2304 at Dudley, being the land situated at and known as 19 Gardner Street, Dudley in the State of New South Wales. 2. Order the defendant to pay the plaintiff's costs. 3. Order that the order for possession may be taken out forthwith. Catchwords: POSSESSION - joint tenancy between plaintiff and plaintiff's wife not severed - the plaintiff did not give the property to his wife as part of a marriage settlement - on death of plaintiff's wife property passed by survivorship to the plaintiff - in any event the plaintiff was the beneficiary of his wife's estate - s 13 of the Succession Act 2006 (NSW) not applicable as decree absolute of dissolution of marriage occurred before 1 March 2008 - order for possession granted Legislation Cited: Family Law Act 1975 (Cth) Land Title Act 1994 (Qld) Real Property Act 1900 (NSW), ss 74J, 97 Succession Act 2006 (NSW), ss 13, 63, 75, 76, Sch 1 Cases Cited: Abela v Public Trustee [1983] 1 NSWLR 308 Corin v Patton (1990) 169 CLR 540 Patton v Corin (1987) 13 NSWLR 10 Peldan v Anderson [2006] HCA 48; 227 CLR 471 Public Trustee v Pfeiffle [1991] 1 VR 19 Scott v Scott [2009] NSWSC 567 Category: Principal judgment Parties: Mackton Hugh Chapman (Plaintiff) Debra Ann-Marie Chapman (Defendant Representation: Counsel: EA Walker (Plaintiff) Defendant in person Solicitors: Evans & Wislang (Plaintiff) File Number(s): 2013/349839 Publication restriction: Nil Judgment Introduction 1The plaintiff, Mackton Chapman, is the father of the defendant, Debra Ann-Marie Chapman. He claims possession of a property in Gardner Street, Dudley (the property) of which he is the sole registered proprietor. Facts 2The plaintiff was born in 1935 and is now aged 79. He and Betty Harcus married on 24 November 1956. When they married they purchased the property and were registered as joint tenants. They had four children: Michael, Stephen, Darren and the defendant, the youngest, who was born in 1965. On 26 November 1971 Betty made a will in which she left the whole of her estate to the plaintiff if he survived her for thirty days, but otherwise to her trustee on trust for her four surviving children equally (the 1971 will). 3The plaintiff and Betty separated in 1982. According to the plaintiff, at the time of the separation he told Betty that she could live on the property for as long as she wanted but that they should always keep the property. Betty confirmed that the property would remain in both their names. The plaintiff offered to continue to help to pay the bills. His evidence was that he did not take his name off the bills for the property and visited the property to collect the bills for rates, water, electricity etc for payment. The plaintiff left some of his belongings in the house and the shed on the property. 4The plaintiff went to live at the Gaytime Caravan Park in Belmont and Betty remained living in the property for the rest of her life. 5The defendant's evidence, which is denied by the plaintiff, was that, at Christmas time in 1982, the plaintiff said to Betty: "Right Betty, you can have the house, the car and the caravan." 6The plaintiff and Betty divorced in 1984. The decree nisi of dissolution of marriage became absolute on 7 December 1984. No orders for settlement of the matrimonial property were made and no agreement for property settlement was formalised. 7There is some correspondence in evidence relating to the separation and divorce. The plaintiff's solicitors wrote to Betty by letter dated 9 February 1983 and sought her permission for him to remove the caravan (registered in his name) located on the property since he proposed to use it as his residence. They noted that the plaintiff had given Betty the motor vehicle and purchased another for his use. 8The defendant tendered documents said to have been written by Betty, including one dated 1983, which read in part: "Our caravan is for both our use together only and is to remain on this same property otherwise at all times until our eventual deaths. If one objects to any property/ item on our property being sold (or disposed of) at any time then it is not to be disposed of until all agree. The responsibility is to remain all four (4) children to keep our property and our property is to keep in all our following children's children continually. Renting will only be allowed each year to pay the land rates and such on this same property. No selling until after the last one is alive then can be willed to only our 6 grandchildren, blood line only." 9The defendant tendered a further document which was dated 29 June 2002, although the date was struck out, in which Betty apparently expressed an intention that the property, which she described as "our family home" not be sold. 10The defendant lived on the property for a short time after her parents' separation but left in 1985. She returned for discrete periods between 1985 and 2011 but she mostly lived away. From the time of the separation the plaintiff and the defendant were largely estranged. However, the defendant tendered some photographs that showed that she had some contact with the plaintiff over the years following separation. 11The defendant returned to live on the property in October 2011. Betty died on 12 September 2012. The defendant has not paid rent to the plaintiff for her occupation of the property. There is neither a lease nor an agreement to lease. 12Following Betty's death, the plaintiff had himself registered as the sole proprietor of the property. On 20 November 2012, the plaintiff hand-delivered a letter to the defendant at the property in which he alleged that she was a tenant at will. He gave her until Saturday 15 December 2012 to vacate the property. 13By letter dated 30 November 2012 the defendant's solicitors wrote to the plaintiff with a view to resolving the dispute between them. The letter contained the following paragraph: "We have also provided advice to Debbie [the defendant] regarding her rights under the Succession Act in relation to a potential Family Provision Claim. In the circumstances, the Court may treat some or all of the real estate as being held in trust for Betty's Estate." 14The defendant failed to comply with the notice to vacate. The defendant lodged a caveat on the property which described her interest as "equitable interest as a beneficiary". The caveat lapsed following the service of a notice dated 4 February 2013 under s 74J of the Real Property Act 1900 (NSW), no order for its extension having been obtained. 15By letter dated 20 December 2012, the defendant's then solicitors referred to an informal will said to post-date the 1971 will. No such informal will is in evidence. 16By letters dated 1 February 2013 and 5 February 2013 the defendant's then solicitors wrote to the plaintiff's solicitors informing them that the defendant proposed to seek provision from her late mother's estate. However no proceedings for a family provision order have been commenced. 17The plaintiff's solicitors proposed a mediation but the defendant chose not to participate in any such mediation. On 22 July 2013 the plaintiff went to the property and delivered a further notice to vacate the premises by 29 July 2013. The defendant remains in possession of the property. The plaintiff continues to live in a property purchased in 1995 by Darren, one of his sons, which he leases at reduced rent. 18The plaintiff commenced these proceedings by filing a statement of claim on 19 November 2013. The defendant resisted the order for possession on the following bases: (1)The plaintiff surrendered ownership of the property to Betty at the time of their divorce and is no longer the owner of the property. (2)Betty did not intend the plaintiff to have possession of the property after she died. (3)The gift to the plaintiff in the 1971 will was revoked by the divorce. 19Much of the evidence adduced by the defendant relates to her personal financial circumstances, the nature of the marriage between the plaintiff and Betty and the plaintiff's conduct generally. Such evidence might be germane to an application for a family provision order under the Succession Act 2006 (NSW). An application for such an order must be made, unless an extension is granted, within 12 months of the date of Betty's death, or by 12 September 2013. The evidence established that the defendant sought and obtained legal advice about such a claim in November 2012 but has not commenced any such proceedings. Consequently, this evidence is irrelevant to the present proceedings except insofar as it is capable of bearing on the question whether there was a severance of the joint tenancy of the property prior to Betty's death. Accordingly, I have not summarised it in these reasons unless it bears on that question. Reasons Whether the joint tenancy was severed 20The plaintiff, as registered proprietor, has had legal title to the property since he became registered as such in 1956. His ownership was initially as a joint tenant. Unless the joint tenancy was severed before Betty's death, he became the sole proprietor thereafter, as the surviving joint tenant. He became the sole registered proprietor in 2012. 21A joint tenancy can be brought to an end in various ways: either it is terminated by survivorship when there is only one joint tenant alive; or it is terminated by agreement or court order. It can also be terminated by unilateral severance, which occurs when a joint tenant alienates or otherwise deals with his or her interest. It can also occur when a joint tenant executes and has registered the appropriate instrument of transfer: s 97 of the Real Property Act 1900 (NSW); see Peldan v Anderson [2006] HCA 48; 227 CLR 471 at [21]-[22] per Gummow A-CJ, Kirby, Hayne, Callinan and Crennan JJ, where s 59(1) of the Land Title Act 1994 (Qld), the Queensland equivalent of s 97 of the Real Property Act was considered. 22A joint tenancy can only be brought to an end at law when the severance is registered and the status of the co-owners is changed from joint tenants to tenants in common, or when the sole surviving joint tenant establishes that the other joint tenant or tenants have died and becomes registered as the sole proprietor. 23A joint tenancy can be severed in equity by court order, by agreement or by conduct. The principles that govern severance by agreement or conduct were summarised by Rath J in Abela v Public Trustee [1983] 1 NSWLR 308 at 315 as follows: 1. Severance is effected by an agreement to sever the joint tenancy. 2. The agreement need not be specifically enforceable or even binding as a contract at law. 3. Subsequent repudiation of the agreement does not affect itsoperation of severance. 4. Severance may also be effected by conduct of the joint tenants not evidencing an agreement to sever but showing a common intention that the joint tenancy shall be severed. 24Neither a unilateral declaration by one of the joint tenants of an intention to sever, nor an ineffective alienation is sufficient to sever a joint tenancy: Patton v Corin (1987) 13 NSWLR 10 at 12 per McLelland J; upheld in Corin v Patton (1990) 169 CLR 540. 25A joint tenancy is not severed by divorce, without more. However, separation of a married couple can be relevant to a determination whether a joint tenancy has been severed by agreement or conduct. Justice Rath said in Abela v Public Trustee at 315: In the case of husband and wife, joint tenancy, in favouring longevity, is usually achieving the object for which it was created; but once the matrimonial relationship has broken down the original purpose of the joint tenancy is at an end, and a common intention of severance may more readily be inferred from a course of conduct. 26The authorities and texts summarised by Ward J in Scott v Scott [2009] NSWSC 567 at [64]-[69] illustrate that severance will commonly be inferred when the parties to a marriage which has ended have come to an agreement to sell the matrimonial home but one dies before the sale is effected: see also Public Trustee v Pfeiffle [1991] 1 VR 19, at 23-28 per Kaye J. 27Unless there has been severance of a joint tenancy, an attempt by a joint tenant to pass the property by will is ineffective, since, upon death, the interest of a joint tenant who dies, passes by survivorship to the remaining joint tenant, or tenants. The Court can make an order made in proceedings for a family provision order under the Succession Act 2006 (NSW) designating as notional estate the interest of a deceased co-owner in circumstances where the joint tenancy was not severed during his or her lifetime: s 63(5); s 75, s 76(2)(b) and Part 3.3 of the Succession Act. However, in the present case, no such proceedings have been brought (although they were, at one stage, contemplated and were the subject of advice) and they are now out of time. 28There is no suggestion of an order under the Family Law Act 1975 (Cth) having been made to sever the joint tenancy. 29I understood the defendant to contend either that there was an agreement whereby the plaintiff gave his share of the property to Betty such that the whole of the property was to belong to her, or that their conduct established that this was her parents' mutual intention. 30In my view, there is insufficient evidence to establish that there was any such agreement or conduct. Indeed, I consider such evidence as there is to be to the contrary. The evidence is consistent with there being an agreement between the plaintiff and his former wife that she would be permitted to live in the property during her lifetime. There is no indication that the plaintiff and Betty had any intention to sell the property. Indeed the evidence establishes that Betty was adamant that the property not be sold and that it be available to any of the four children in case they needed it for accommodation in the future. Furthermore, the continuing connection between the plaintiff and the property (keeping belongings on the property, continuing to use the address, contributing to the payment of bills associated with the property and arranging for its repair and upkeep) is consistent with the maintenance of a joint tenancy. 31I do not accept the defendant's evidence that her father told her mother at about the time of their separation that she could have the house, the car and the caravan, although I have no reason to doubt that she is convinced, mistakenly, of the accuracy of her recollection. I accept the plaintiff's evidence that the arrangement was that Betty could continue to live in the house and that she could keep the car and he would buy another one for himself. I do not consider that the plaintiff intended to give Betty his interest in the property. Such intention cannot, in the circumstances of the present case, be inferred from his preparedness to allow her to live there. 32The defendant was not privy to the arrangements between her parents. The defendant gave the following evidence under cross-examination, which I accept: ". . . their business was their business. Unless I was happened [sic] to be present, my mother was a very private person with adult or parenting business, she didn't readily share her business, she was very private about that sort of thing 33In my view, the joint tenancy did not come to an end until Betty's death, when it passed by survivorship to the plaintiff, who is the sole legal owner. The assertion by the defendant that the plaintiff gave the property to Betty as part of the marriage settlement is not made out. Indeed the plaintiff's conduct, as established by the evidence, was inconsistent with that proposition. 34For completeness, I note the defendant's assertion that the gift to the plaintiff in Betty's will was revoked by the divorce. Section 13(1) of the Succession Act revokes beneficial dispositions to the testator's former spouse. However, although s 13 applies to wills made before 1 March 2008, it does not apply if the decree absolute of dissolution of the marriage occurred before that date: cl 3(9) of Sch 1 of the Succession Act. As the decree absolute of dissolution of the marriage between the plaintiff and Betty occurred on 7 December 1984, s 13 of the Succession Act has no application. Therefore the effect of the 1971 will is that the plaintiff inherited the whole of Betty's estate. Her estate did not include the property, which passed by survivorship on her death. Even if her estate had (contrary to my findings) included either a share in the property as tenant in common (if the joint tenancy had been severed) or the whole of the property (if it had been transferred to her by the plaintiff), it would have passed to the plaintiff as her beneficiary under her will. The nature of the defendant's occupation of the property 35Where someone occupies property with the knowledge of the owner but without a lease and does not pay rent, the person is a tenant at will. Such tenancies can be terminated by a demand by the owner for possession. 36The defendant has failed to establish any interest in the property, any basis for a right to remain in possession of the property or any defence to the plaintiff's claim for possession of the property. The plaintiff, as registered proprietor, has a right to exclusive possession of the property. 37Accordingly, the plaintiff is entitled to an order for possession. Costs 38By letter dated 29 April 2013 from the plaintiff's solicitors to the defendant's then solicitors, the plaintiff's solicitors foreshadowed an application for the costs of the proceedings for possession if they did not receive a response to earlier correspondence within seven days. There is no reason why costs ought not follow the event. Orders 39I made the following orders on 20 August 2014: 1. Order judgment for the plaintiff, Mackton Hugh Chapman for possession of the land comprised in Certificate of Title Lot 3 of Section E in Deposited Plan 2304 at Dudley, being the land situated at and known as 19 Gardner Street, Dudley in the State of New South Wales. 2. Order the defendant to pay the plaintiff's costs. 3. Order that the order for possession may be taken out forthwith. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 August 2014