Facchetti v Facchetti & Anor [2004] NSWSC 898

Facchetti v Facchetti & Anor [2004] NSWSC 898

The deed of 7 September 2000 recorded and gave effect to a mutual agreement between the plaintiff and the deceased to sever their joint tenancy, and was therefore effective in equity though not at law because no transfer was registered. From that date they held the legal title as joint tenants on trust for themselves as tenants in common in equal shares. On the deceased's death, legal survivorship meant the plaintiff was entitled to be registered as proprietor of the whole estate, but she held the deceased's one-half beneficial interest on the trusts of his will as executrix.

Jurisdiction
Australia
Judgment Date
29 September 2004
Procedural Posture
Equity List Proceedings Seeking Declarations Concerning Severance of a Joint Tenancy and Beneficial Ownership of Torrens Land / Final Judgment
Outcome
Declarations made; no order as to costs; liberty to apply granted.
Legal Topics
['severance of Joint Tenancy' 'joint Tenancy and Tenancy in Common' 'survivorship' 'trusts of Land' 'registration After Death of Joint Tenant' "executrix's Vesting of Estate Property"]
['property Law' 'equity and Trusts' 'succession and Probate'] ['severance of Joint Tenancy' 'joint Tenancy and Tenancy in Common' 'survivorship' 'trusts of Land' 'registration After Death of Joint Tenant' "executrix's Vesting of Estate Property"]

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Procedural Posture

Equity List Proceedings Seeking Declarations Concerning Severance of a Joint Tenancy and Beneficial Ownership of Torrens Land / Final Judgment

Legal Issues

  1. 1 ['Whether the deed executed on 7 September 2000 severed the joint tenancy in equity between Cecilia Facchetti and Giuseppe Facchetti.' "Whether any severance of the joint tenancy occurred at law before Giuseppe Facchetti's death." "Whether the plaintiff, as surviving registered proprietor and executrix, required a vesting order or could be registered as proprietor and hold the deceased's half share on the trusts of his will."]

Ratio Decidendi

The deed of 7 September 2000 recorded and gave effect to a mutual agreement between the plaintiff and the deceased to sever their joint tenancy, and was therefore effective in equity though not at law because no transfer was registered. From that date they held the legal title as joint tenants on trust for themselves as tenants in common in equal shares. On the deceased's death, legal survivorship meant the plaintiff was entitled to be registered as proprietor of the whole estate, but she held the deceased's one-half beneficial interest on the trusts of his will as executrix.

Court Disposition

Declarations made; no order as to costs; liberty to apply granted.

Orders

  • ['As and from 7 September 2000 the plaintiff and Giuseppe Facchetti, being the registered proprietors as joint tenants of the land in folio identifier 7338/201 and known as 61 Queen Street, Canley Vale, held the land on trust for themselves as tenants in common in equal shares.' 'The beneficial ownership of the late...