Fremantle Lawyers Pty Ltd, Ashley David Wilson, Nicholas Emil Gvozdin and Ante Zorotovic v Ivan Josip Sarich as executor of the estate of Ivan Branimir Saric

[2019] WASCA 48

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Succession
2. › Wills
3. › Construction
4. › Devise of portions of single lot
5. › Whether devise of part of lot constitutes subdivision
6. › Whether devise void for illegality
7. › Planning and Development Act 2005 (WA), s 135(1)(a)
1. Statutory Interpretation
2. › Meaning of 'subdivide'
3. › Planning legislation
4. › Whether 'subdivide' encompasses testamentary dispositions or only applications to create new lots with separate certificates of title
5. › Presumption against interference with fundamental rights of alienation
6. › Penal provision — strict construction
7. › Reconciliation of overlapping provisions — s 135 and s 136
8. › Planning and Development Act 2005 (WA), ss 135, 136
1. Real Property
2. › Subdivision of land
3. › Planning approval
4. › Prohibition on subdivision without approval
5. › Distinction between subdivision and dealings in land
6. › Equitable interests in portions of lot
7. › Planning and Development Act 2005 (WA), s 135(1)(a)
8. › Transfer of Land Act 1893 (WA), ss 166, 167
1. Appeal
2. › New point on appeal
3. › Notice of contention
4. › Whether ground raised for first time on appeal
5. › Whether point could have been met by evidence below
6. › Whether absence of evidence equated with proof of impossibility

Quick Take

A testamentary devise of part of a lot does not constitute a 'subdivision' within s 135(1)(a) of the Planning and Development Act 2005 (WA) and is not void for illegality. The word 'subdivide' in s 135(1)(a) means to make or lodge an application to create new lots with separate certificates of title; it does not encompass dealings in land such as testamentary dispositions, leases, licences or sales — those are regulated by s 136. The earlier decisions in Palamore, Riverwest and Bakranich, which held that testamentary devises of parts of unsubdivided lots were void, are no longer good law. Solicitors drafting wills may devise portions of a single lot to different beneficiaries; the executor/trustee will need to obtain subdivision approval to transfer legal title, but the equitable interests are valid.