NSW Supreme Court: no joint tenancy in the absence of written record

Heir claimed his father told him that the other would inherit the property if either of them died

NSW Supreme Court: no joint tenancy in the absence of written record

The NSW Supreme Court has rejected an heir’s contention that there was a common intention to hold the deceased’s property in joint tenancy.

In Hogden v Hogden [2023] NSWSC 1149, a dispute arose between two siblings over a half-interest in a property at Big Jacks Creek, located approximately 90 kilometres southwest-south of Tamworth. The plaintiff, Suzanne Hogden, sought orders for a trustee sale of the property, invoking the Conveyancing Act 1919 (NSW). The lawsuit revolved around the ownership of the property, which Suzanne claimed to have inherited from her late father, Allan James Hogden. Suzanne has been the registered proprietor of half of the property as executrix of the father's will.

The deceased, Allan James Hogden, held a half-share of the property in question as a tenant in common with his son, Gregory Hogden, the defendant in this case. The defendant contested the orders for sale, arguing that he and his father had a mutual understanding that the property would be held as joint tenants, which he believed should be recognized through a "common intention constructive trust."

The defendant's claims relied solely on conversations he alleged to have had with his deceased father. However, the NSW Supreme Court was not convinced by this uncorroborated evidence. In the judgment, it was noted that there was no written record to support the alleged conversations, and the defendant had not produced any evidence from the solicitors who handled the property transactions. The court also found it implausible that the defendant would have received incorrect information about the property's ownership structure if it was meant to be held as joint tenants.

The property dispute started in 2001 when Allan James Hogden and Gregory Hogden purchased a farm at Breeza, NSW, known as the "Old Farm." They each contributed approximately half the purchase price as "tenants in common in equal shares."

The defendant claimed his father assured him that the other would inherit the entire property if either of them passed away. According to the defendant, the deceased did "most of the negotiations" with the solicitor concerning how title to the Old Farm would be held, and the deceased then told the defendant, "We own the farm 50/50. If either of us dies, their share in the farm will go to the survivor."

In October 2009, the Old Farm was sold for $2,200,000.00, and shortly before the sale, the deceased and the defendant agreed to purchase the property at Big Jacks Creek for $1,450,000.00. The defendant alleged that his father wanted to ensure that his ex-partner would not have a claim on the property if he were to pass away. Therefore, the defendant asserted that the deceased wanted to "set up" title to the property as joint tenants. However, the court found no concrete evidence to support this claim. The court noted that the defendant did not explain how his ex-partner might have a lawsuit over the property if he died.

The court ultimately rejected the defendant's assertions of a common intention to hold the property as joint tenants, citing a lack of corroborating evidence and inconsistent conduct on the defendant's part. The judge noted that the defendant had communicated with his siblings about his father's ownership of half of the property and had never asserted a common intention of a joint tenancy before the legal proceedings began.

Accordingly, the court concluded that the alleged conversations between the defendant and the deceased did not occur. Consequently, there was no need to examine the elements of a common intention constructive trust. Ultimately, the court ordered a trustee sale according to the Conveyancing Act.

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