Corin v Patton (LAWS2381)

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Citation: Corin v Patton (1990) 169 CLR 540.

This information can be found in the Textbook: Edgeworth et all, Sackville and Neave's Property Law Cases and Materials, 8th edition, Lexis Nexis, 2008, pp. 322-24 [4.53].

Contents

Background Facts

  • Mr Patton [Respondent] and Mrs Patton were joint proprietors of land.[1]
  • Mrs Patton did not want the interest to transfer to her husband after her death, Mrs Patton executed a transfer of her interest in the land 5 days before her death to Corin [Appellant], her brother.
  • She also executed a deed of trust. Under it, the Appellant was to hold the property on trust for Mrs Patton, or as she directed, in accordance with an order of the court.
  • The transfer & deed were handed to Mrs Patton’s solicitor.
  • To register the transfer, Mrs Patton had to obtain a duplicate copy of the certificate of title from the Bank of NSW. She took no steps to do so before dying.

Legal issues

  • Gifts - Imperfect Gift.
    • Whether Mrs Patton had effectively disposed of her interest in the land prior to her death, thus severing the joint tenancy and defeating her husband’s right of survivorship.

Judgment

Mason CJ & McHugh J:

  • A joint tenancy can be severed in one of three ways:
    1. An effective disposition of a joint tenant’s legal or equitable interest in the property;
    2. Mutual agreement between the joint tenants; or
    3. A course of dealing sufficient to show that the interests of all joint tenants were mutually treated as constituting a tenancy in common.
  • In this case, Mrs Patton attempts to use the first way - disposing of her interest through gifting it to the Appellant.
  • For equity to recognise a gift, the intending donor has to do all that is necessary to transfer the legal title, such that the legal transfer could be effected without any further action on his/her part.
    • ‘Necessary’ means necessary to effect the transfer, according to the nature of the property.
    • The preferred approach from those mentioned in Anning v Anning[2] is the first, lenient approach: only the donor had to have done everything necessary to complete the gift.
  • It should be mentioned that whilst s 41 of the Real Property Act 100 (NSW) says that transfers do not pass an interest in land until regiestered, it does not prevent the passing of an equitable estate to the donee under a completed transaction.
  • Mrs Patton did not do all that was necessary for her to do in order to effect a transfer. The certificate of title remained throughout with the mortgagee and Mrs Patton took no steps to arrange for its production for the purposes of registration.
  • The mere fact that (a) Mrs Patton had declared her intention to discontinue the joint tenancy; and (b) Mrs Patton acted in such a way as to effect a discontinuation of the joint tenancy, did not suffice to sever her joint tenancy.
  • Therefore,the gift is not recognised by equity and the Appellant fails.
  • The Court discussed some other cases as well:

Discussion of Brunker v Perpetual Trustee

  • In Brunker v Perpetual Trustee,[3] there was a transfer of an estate under Torrens system. The donor made no mention of a mortgage in his transfer to the donee. After his death, the donee’s solicitors inserted particulars of the mortgage and sought to register the transfer. The mortgagee at all times held the certificate of title.
  • The majority, led by Dixon J, found that the alteration to the transfer had not been authorised and that the donor gave no authority for it to be handed to the donee’s solicitors or presented for registration. The donor had not manifested any intention to create a trust. He said that under the Real Property Act, even without legal or equitable estate, the transferee had a statutory right to vest legal estate in himself. Note that this judgment corresponds with Isaacs J’s approach C in Anning'.
  • Latham CJ’s dissent centred on the fact that the donee could still obtain legal title without any further action by the donor. The absence of the certificate of title did not preclude the donee from presenting the transfer for registration. This judgment corresponds with Griffith CJ’s approach A in Anning.
  • Mason CJ and McHugh J rejected Dixon J’s judgment, and accepted Latham CJ's.

Discussion of Norman v Federal Commissioner for Taxation

  • In Norman v Federal Commissioner for Taxation,[4] Windeyer J adopted Griffith CJ’s view of the donor needing to have done everything necessary ‘on his part’.
  • Equity will not perfect an imperfect gift. The rationale is that a person should not be compelled to make a gift. However, where the donor has done all that is necessary for him to effect the transfer, the rationale cannot continue.

References

  1. When a joint tenant dies, their interest transfers to the surviving tenant.
  2. (1907) 4 CLR 1049.
  3. (1937) 57 CLR 555.
  4. (1963) 109 CLR 9.
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