Wright v. Gibbons

(1949) 78 CLR 313

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(Judgment by: Rich J.)

Wright
v Gibbons

Court:

Judges: Latham C.J.

RichDixon JJ

Hearing date: Hobart, 1948, November 8;
Judgment date: 22 February 1949

Melbourne

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Judgment by:
Rich J.

RICH J. The questions raised by the facts alleged in the statement of claim in the action before the learned primary judge related to two parcels of land of which the parties were seised in fee simple as joint tenants. The title to one parcel was under the old system and the other parcel was registered under the Torrens system of conveyancing. The question in each case was whether the transaction concerning the particular parcel of land effected a severance of the joint tenancy. Clark J. before whom the action was tried, decided in favour of severance in the first case but against severance in the case of the land under the Torrens system. We, however, are not concerned with the question relating to the old system land because this appeal is limited to the land under the Torrens system. (at p325)

2. The material facts may be briefly stated. At the relevant date - 6th December 1945 - the plaintiff Bessie Melba Gibbons, Olinda Gibbons and Ethel Rose Gibbons were registered under the Real Property Act as the proprietors of an estate in fee simple as joint tenants of the land the subject of this action. And on the date mentioned they executed a memorandum of transfer in the following terms: -

"I, Ethel Rose Gibbons of Hobart in Tasmania spinster and I, Olinda Gibbons of Hobart in Tasmania spinster each being registered as the proprietor of an estate in fee simple in one third share as joint tenant with Bessie Melba Gibbons, subject, however, to such encumbrances, liens, and interests as are notified by memorandum underwritten or indorsed hereon, in all that piece of land situated in the City of Hobart containing eighteen perches and two tenths of a perch be the same a little more or less and being the land comprised and described in certificate of title volume 328 folio 93 subject to memorandum of mortgage No. 75757 to the Bank of Australasia to secure advances not exceeding two thousand three hundred pounds.

In consideration of the transfer to the other of us by the transferror of her one third share in the said joint tenancy I the said Ethel Rose Gibbons do hereby transfer to the said Olinda Gibbons all my one third share estate and interest in the said piece of land as tenant in common with the said Bessie Melba Gibbons and myself of land above described and I the said Olinda Gibbons for the consideration aforesaid do hereby transfer to the said Ethel Rose Gibbons all my one third share estate and interest in the said piece of land as tenant in common with the said Bessie Melba Gibbons and myself. And it is hereby declared that the value of the interest of the said transferrors does not exceed the sum of three hundred and fifty pounds. In witness whereof we have hereunto subscribed our names this sixth day of December 1945."

This transfer was only registered on 21st January 1946. The defendants contend that this document effected a severance of the joint tenancy. (at p326)

3. I think that some confusion has occurred by concentrating attention on the principles of common-law conveyancing and not observing the innovation effected by the new or Torrens system. The Torrens system, which is in use in all the States and in New Zealand, originated in two statutes passed in 1858 by the Parliament of South Australia prompted by Sir Robert Torrens whose name the system commemorates. Its basal features are that transactions in land should be carried out by their registration in a government office, thus guaranteeing ownership of an absolute and indefeasible title to realty and that by the exclusive use of a transfer in the statutory form conveyances and assurances which under the old system had become cumbersome and intricate should be simplified. (at p326)

4. An examination of the relevant Act - the Real Property Act 1862 (Tas.) as originally enacted - shows how the system works. "Land" includes every estate and interest in land, and "transfer" means the passing of any estate or interest in land under this Act, whether for valuable consideration or otherwise (s. 3). "Joint tenants," by the statutory fiction "deemed," are treated as joint proprietors or co-proprietors (ss. 87, 88). Registration is provided for in ss. 34 (3), 37, 42 and Form IV. in the first schedule. The scheme of transfer and registration is the only method by which any alienation or disposition of a share or interest in land may be made. (at p326)

5. The ownership by two or more persons of real property with the requisites of unity of possession, interest, title and time confers on each such person a share or right severable and capable of alienation. The instrument in question is an adaptation of the form provided in the schedule which is the appropriate and only form by which any share in land registered under the Act can be disposed of. In the instant case the fact that there is only one document and not separate transfers does not, in my opinion, result in a "futility" but is effective and operates as a severance. (at p327)

6. The statutory forms "may be used with such alterations as the character of the parties or the circumstances of the case may render necessary": s. 3, concluding provision: cf. Perpetual Executors & Trustees Association of Australia Ltd. v. Hosken (1912) 14 CLR 286 . Under the old system severance may be effected by alienation to a stranger or by release (operating as an extinguishment of right) or by grant from one joint tenant to another. Even the grant of a lease by one joint tenant to another has been considered to effect a severance: Cowper v. Fletcher (1865) 6 B & S 465, at p 472 (122 ER 1267, at p 1270); 13 WRQB 739, at p 740 ; In re Armstrong (1920) 1 IR 239. Having regard to the acts of the parties, I would give effect to their intention and construe the transfer as constituting a severance. (at p327)

7. I would add that, even assuming that the form used by the parties could be regarded as so vitally irregular as to be incapable, upon registration, of producing the result which it was obviously intended to produce - that of vesting the legal estate in Ethel Rose Gibbons and Olinda Gibbons as to one-third each as tenants in common - nevertheless it is clear that it would operate in equity as an agreement for valuable consideration by each to vest in the other a one-third interest as tenant in common, an agreement which would in equity be specifically enforceable by an order directing the execution of whatever might be the proper form of instrument, and would, pending such execution, operate in equity to sever the joint tenancy and create equitable interests as tenants in common: Brown v. Raindle (1796) 3 Ves Jun 256 (30 ER 998) ; Parker v. Taswell (1858) 2 De G & J 559, at pp 570, 571 (44 ER 1106, at pp 1110, 1111) ; Caldwell v. Fellowes (1870) LR 9 Eq 410 ; In re Hewett; Hewett v. Hallett (1894) 1 Ch 362, at p 367 ; Zimbler v. Abrahams [1903] 1 KB 577 , at p 588 ; In re Fireproof Doors Ltd.; Umney v. The Company (1916) 2 Ch 142, at pp 150, 151 ; Wellington City Corporation v. Public Trustee, McDonald, and District Land Registrar, Wellington (1921) NZLR 1086. (at p327)

8. For these reasons I would allow the appeal. (at p327)