Written by In the recent case of Guo v Gao (No 2) [2023] NSWSC 231, the NSW Supreme Court considered whether the rules of survivorship for joint tenancy can be defeated. This is an automatic entitlement to full ownership of joint property to the surviving joint owner in the event of death of the other.
In 2001, Mr Gao (the defendant) and Ms Hong separated. Ms Hong was allegedly intending to go back to China. From this date, Ms Hong disappeared from the life of Mr Gao and her then infant daughter, Sijia (the plaintiff). In prior proceedings, the Court held that Ms Hong, on presumption of death, was no longer alive. At the time of her disappearance, Ms Hong owned a property in Carlingford as registered joint tenant with Mr Gao. Under intestacy rules, Ms Hong’s entire estate passed to her spouse leaving nothing for Sijia.
Sijia sought a declaration that Mr Gao held the Carlingford property on resulting trust for Ms Hong. Mr Gao counter-argued that the property was held on resulting trust for him. The issue was whether the property was subject to a resulting trust in favour of the estate.
The Court found that no resulting trust arose because there was insufficient evidence to satisfy the balance of probabilities that Ms Hong and Mr Gao intended to hold their respective interests in the property other than as joint tenants. The fact that Ms Hong had paid a significant amount of the purchase price could not cause equity to recognise a position different from that evidenced by the registration of the property as held on a joint tenancy. As such, the rights of survivorship could not be defeated, as contended by Sijia.
This case highlights the importance of intention when considering whether a property held on a joint tenancy should in fact be regarded otherwise.