Hulme v Schaecken [1999] NSWSC 1291

Hulme v Schaecken [1999] NSWSC 1291

The plaintiff's filing, service and pursuit of proceedings seeking severance were revocable steps and did not transfer, deal with or affect title so as to destroy the unity of title. A unilateral declaration or application to the Court could not sever the joint tenancy, the Court had no inherent jurisdiction to alter the parties' property rights by ordering severance, and s 30 of the Conveyancing Act 1919 (NSW) did not apply to Real Property Act land. The application was therefore contrary to law and bound to fail.

Jurisdiction
Australia
Judgment Date
17 December 1999
Procedural Posture
Equity Proceedings Concerning Severance of Joint Tenancy in Land / Notice of Motion for Immediate Order Severing Joint Tenancy
Outcome
Application denied.
Legal Topics
['joint Tenancy' 'severance of Joint Tenancy' 'unilateral Declaration of Intention' 'inherent Jurisdiction' 'survivorship']
['real Property' 'equity'] ['joint Tenancy' 'severance of Joint Tenancy' 'unilateral Declaration of Intention' 'inherent Jurisdiction' 'survivorship']

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Procedural Posture

Equity Proceedings Concerning Severance of Joint Tenancy in Land / Notice of Motion for Immediate Order Severing Joint Tenancy

Legal Issues

  1. 1 ['Whether a joint tenancy can be severed by unilateral declaration of intention or by filing, serving and pursuing proceedings seeking severance.' 'Whether the Court has inherent jurisdiction to sever a joint tenancy by order.' 'Whether s 30 of the Conveyancing Act 1919 (NSW) authorised the Court to order severance.']

Ratio Decidendi

The plaintiff's filing, service and pursuit of proceedings seeking severance were revocable steps and did not transfer, deal with or affect title so as to destroy the unity of title. A unilateral declaration or application to the Court could not sever the joint tenancy, the Court had no inherent jurisdiction to alter the parties' property rights by ordering severance, and s 30 of the Conveyancing Act 1919 (NSW) did not apply to Real Property Act land. The application was therefore contrary to law and bound to fail.

Court Disposition

Application denied.

Orders

  • ['Application in the notice of motion filed 16 December 1999 is denied.' "Order that the plaintiff pay the defendant's costs of that application." "Stand the matter over to the Registrar's list Friday, 4 February 2000 at 9.30am for further directions as to the disposition of the proceedings."]