Rule & 1 Ors v Mallon & 3 Ors [2000] NSWSC 346

Rule & 1 Ors v Mallon & 3 Ors [2000] NSWSC 346

Article 26 of the Company's articles did not work a disposition of the beneficial interest in the shares and did not plainly or clearly provide that the deceased and Nellie Jermyn took as joint tenants; it merely directed the Company whom to recognise as between the Company and registered holders pending any transmission under Article 27. Accordingly s26 of the Conveyancing Act 1919 (NSW) applied so that the shares were held as tenants in common, and the deceased's interest did not pass to Nellie Jermyn by survivorship.

Jurisdiction
Australia
Judgment Date
17 April 2000
Procedural Posture
Equity Proceeding Seeking Declarations and Orders Concerning Ownership and Transmission of Shares in a Home Unit Company / Ex Tempore Judgment on Plaintiffs' Summons and First and Second Defendants' Cross Claim
Outcome
Plaintiffs successful; held that the surviving wife was tenant in common of the relevant property, not joint tenant; each party to pay their own costs.
Legal Topics
['surviving Spouse' 'tenant in Common' 'joint Tenancy' 'home Unit Company Shares' 'conveyancing Act 1919 (nsw) S26' 'articles of Association' 'transmission of Shares' 'share Register Correction']
['property Law' 'equity' 'corporations'] ['surviving Spouse' 'tenant in Common' 'joint Tenancy' 'home Unit Company Shares' 'conveyancing Act 1919 (nsw) S26' 'articles of Association' 'transmission of Shares' 'share Register Correction']

Case Brief

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Procedural Posture

Equity Proceeding Seeking Declarations and Orders Concerning Ownership and Transmission of Shares in a Home Unit Company / Ex Tempore Judgment on Plaintiffs' Summons and First and Second Defendants' Cross Claim

Legal Issues

  1. 1 ["Whether the deceased and Nellie Jermyn held 1,601 shares in Moorings Home Units Pty Limited as tenants in common or as joint tenants immediately before the deceased's death." "Whether Article 26 of the Company's articles of association was an instrument expressly providing that the holders took as joint tenants for the purposes of s26(2) of the Conveyancing Act 1919 (NSW)." "Whether, on the deceased's death, his interest in the shares transmitted to Nellie Jermyn by survivorship." "Whether the Company's register should be corrected under s175 of the Corporations Law after probate is granted to the Plaintiffs."]

Ratio Decidendi

Article 26 of the Company's articles did not work a disposition of the beneficial interest in the shares and did not plainly or clearly provide that the deceased and Nellie Jermyn took as joint tenants; it merely directed the Company whom to recognise as between the Company and registered holders pending any transmission under Article 27. Accordingly s26 of the Conveyancing Act 1919 (NSW) applied so that the shares were held as tenants in common, and the deceased's interest did not pass to Nellie Jermyn by survivorship.

Court Disposition

Plaintiffs successful; held that the surviving wife was tenant in common of the relevant property, not joint tenant; each party to pay their own costs.

Orders

  • ['Declaration that immediately prior to the death of Ronald George Jermyn on 6 June 1999 the 1,601 shares held jointly by him and Nellie Jermyn in Moorings Home Units Pty Limited ACN 000 261 432 were held and owned by them as tenants-in-common and not as joint tenants.' 'Declaration that upon the death of Ronald...