Property & Equity

Semester 2 Notes

The Torrens System.

Land first came under the Torrens System in 01/01/1863 if it was

land:
1. Alienated; or
2. Granted
by the Crown, under the Real Property Act 1862.
The current legislation is; Real Property Act 1900 (NSW).

This Act it also states that if land was alienated by the Crown
before the introduction of the Torrens System then it still is Old
System title but one may apply to convert it under the new
legislation, i.e. the Torrens System.

Under Torrens Title property is protected by State guaranteed

Titles. All registration fees contribute to a fund as a condition of
the certificate being issued to cover the risk of compensation to a
person deprived of an interest by registration of the applicants
title.

If the registrar rejects an application for a certificate of title, the

applicant may call upon the registrar to state the reasons before
the court: NSW, s 121, (Riley v Nelson (1965) 119 CLR).

Certain persons, including the owner of a fee simple estate, an

agent authorised by the owner and trustees for sale of the land
are empowered to apply to bring the property under the Transfer
of Land Act 1958, NSW, s 14(2).
A mortgagor (that is, the holder of the equity of redemption under
the general law) cannot apply without the consent of the
mortgagee, NSW, s 14(4).
The registrar must give notice of the application by publication in
a newspaper circulating in the relevant area and must give notice
to the occupier of the land in question. The registrar has the
power to give notice to any other persons and does in fact give
notice to persons who are identified in the application as having
an interest in the land. NSW, s 17(2)-(4).

Any person claiming any estate or interest in the land and who
wishes to prevent registration of the title of an applicant may
lodge a caveat forbidding registration; NSW, ss74B-74E.

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The caveator then has a period of days to institute proceedings to

establish the interest. During this period the registrar cannot
proceed with the application. If the caveator has not given notice
in the specified period then the registrar may issue a certificate of
title to the applicant. The system creates a risk that those who do
not lodge a caveat against an applicant whether through
ignorance or other reason will then remit to a claim against the
assurance fund.
If however the failure to object to registration is due to fraudulent
actions of the applicant, the registered title of the applicant will
not be conclusive against that person).

A qualified certificate of title may be issued in a doubtful case;

NSW, s 28B, BUT a qualified title does not prevail over subsisting
interests and a caution is recorded on the title to indicate this.
The registrar may apply a qualified title without going into an in
depth search of the situation (search of old system chain of title)
but just based on intuition; NSW, ss28B-28E.

Once a plan of survey has been lodged in which the boundaries

are adequately described the registrar general may remove the
limitation; NSW, s 28V (page 423).

The effect of a limitation is that where any land is incorrectly

included in a limited folio because of a wrong description of
boundaries, the title of the registered proprietor is defeasible to
the extent of the error; NSW, 28U. NB: that a title may be both
limited and qualified.

Compulsory Extension of the Torrens System

If purchasing a property and you have signed a contract, (i.e. a sale

note before the official full contract is drawn up), that specifies that
you have agreed to buy the property, there is a 5 day cooling off
period so you may retract your decision, NSW, s 66W. The cooling off
period does not apply to property that is sold by auction or on the
same day on which it was passed in at an auction. The formal
contract in the majority of cases is standard form. In NSW certain
statutory conditions are implied into the contracts for sale of land:
Conveyancing Act 1919 (NSW) s 60.
The purchasers solicitor must perform certain tasks before s/he
allows his/her client to sign:
The register must be searched to check that the vendor has good
title to the property for sale.

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Only worthwhile checking title after contracts are exchanged, (in

theory), because a failure by the vendor to disclose a defect in title
will provide the purchaser with a contractual remedy of rescinding
the contract, or damages or compensation, (Adolfson v Jengendor
(1995) BPR). In practice the search is conducted at the earliest
opportunity.
Next certificates are obtained by the statutory bodies which show
what rates and taxes are owed on the land and are included in the
contract and are usually apportioned between the vendor and
purchaser, as well as apportionment of rents and profits as from
date of completion of purchase.
Next the purchasers solicitor must obtain certificates of proposed
plans, if any are proposed for that area, by the planning authority,
to see if the purchaser will be able to use the land for particular
purposes. This precaution, in obtaining a certificate, is important
so that recent proposed plans by the planning dept will not
constitute defects in title sufficient to justify a purchaser in
refusing to complete the purchase or rescind the contract,
(Yammouni v Condidorio 1959). The formal contract of sale often
provides specifically for the relevant certificate to be attached to
the contract, thus allowing the purchaser to rescind if the planning
restrictions affecting the land are otherwise than as stipulated in
the certificate. The usual consequence is that the purchaser has a
right to rescind if the land is affected by a planning scheme:
(Sargent v ASL Developments Ltd (1974)).
Fourthly, the purchasers solicitor must be satisfied that the terms
of the draft contract of sale are not detrimental to the interests of
the purchaser. Also in NSW in is common practice to obtain a
survey before exchanging contracts, principally to ascertain if
there are any encroachments over the land. It also has been long
the practice of obtaining a pest report.
The general philosophy to the law is still caveat emptor, i.e. let the
buyer beware of what they are buying. In NSW the vendor is
required to disclose some info and annex certain certificates from
the relevant authorities: Conveyancing Act 1919 s 52A. Failure by
the vendor to annex these documents entitles the purchaser to
rescind the contract.
Where there is typed and handwritten as well as printed terms in a
contract the handwritten and typed terms will usually prevail over
the printed and standard terms as the hand written terms are
specifically formulated by the parties themselves (Hobbs Bell v
Pola [1996] ANZ Conv R).
Then the purchasers solicitor delivers requisition on title, which is
a series of questions which further help to determine if there are
any defects in title not revealed by the search of title or the

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contract, but which might nonetheless bind the purchaser if not

detected. Examples of the questions included in the requisition
would include if there are any easements with respect to the
relevant property.
Requisitions are not required but if they are not delivered to the
vendor then it will be considered that that right has been waived.
If they are delivered the vendor must answer them.
If the requisition does reveal a defect not accounted for in the
contract then the purchaser may ask for it to be taken care of at
the cost of the rescission of the contract.
Once all is agreed upon the purchasers solicitor prepares a
transfer of title to the land from the vendor to the purchaser.
The transfer is forwarded to the vendors solicitor for execution in
readiness for settlement, or completion, of the transaction.
While the above is taking place, the purchasers solicitor deals with
the mortgagees solicitor, i.e. the banks solicitor. The latter draws
up a mortgage of the land that the purchaser executes in
contemplation of settlement.
Settlement usually takes place at the office of the vendors
solicitor, or if a mortgage is involved at the office of the
mortgagees solicitor. In NSW stamp duty is paid on execution of
the contract, but can be refunded if the agreement is subsequently
rescinded. A cheque provided by the purchaser and mortgagee are
handed to the vendors solicitor, who in return, delivers the
duplicate certificate of title together with the signed transfer to the
mortgagees solicitor who also receives the executed mortgage.
The mortgagees solicitor lodges these documents at the Office of
Titles for registration.
When the transfer to the purchaser and the mortgage have been
duly recorded on the register and on the duplicate certificate of
title, the duplicate certificate and the duplicate mortgage are
retained by the mortgagees solicitor.
When the mortgage is discharged, the duplicate certificate of title
and discharge of mortgage are handed to the mortgagor, i.e. the
now registered proprietor, for registration.
Following settlement, the only major remaining duty of the
purchasers solicitor is to notify all the relevant rating and taxing
authorities of the change in ownership of the land.

The Principle of Indefeasibility

The idea that a proprietor had a perfect title subject only to

encumbrances, (a proprietary right held by one person over the
property of another that limits the ways in which the owner may use
or deal with the property. Mortgages, trusts for securing money,
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liens, and charges are all encumbrances; {NSW Conveyancing Act

1919 s7; Davies v Littlejohn [1929]}), specifically notified on the
register.
The conclusiveness of the register is, in general, what is meant by the
principle of indefeasibility - Indefeasibility is the immunity from attack
by adverse claim to the land or interest in respect of which he is
registered, which a registered proprietor enjoys; (Frazer v Walker
[1967]).
The indefeasibility provisions, for NSW refer to NSW, ss40(1A),
(1B), 96D; s40.
This provision has a threefold operation:
1. Fraud will vitiate, (i.e. make invalid or ineffectual), a registered
title.
2. The estate or interest of the registered proprietor is subject only
to those encumbrances actually noted on the register, with two
exceptions.
3. Nevertheless there are certain unregistered interests which are
enforceable against the registered proprietor.
The indefeasibility rule is supported by the notice provision. That is,
except in the case of fraud, no person that is the registered proprietor
will be affected by notice actual or constructive of any trust or
unregistered interest, any rule of law or equity to the contrary
notwithstanding. The knowledge that any such trust or unregistered
interest is in existence shall not of itself be imputed as fraud. (NSW,
s43 [see also s43A]).
Objective 1 - to protect a person dealing with the registered
proprietor from the effect of notice of any trusts or unregistered
interests. Thus, a purchaser taking a transfer from the registered
proprietor takes free of any outstanding unregistered interest
once the transfer is registered in the purchasers name, unless the
unregistered interest is protected by a specific statutory exception
to indefeasibility.
Objective 2 - achieved by the direction in s 43 that the knowledge
that any such trust or unregistered interest is in existence shall
not of itself be imputed as fraud to the person purchasing from
the registered proprietor.
The notice of provision drastically departs from the general law
doctrine of notice.
A further provision, sometimes referred to as the ejectment
provision, extends the protection to a bona fide purchaser where
they will not be exposed to an action for recovery of damages or to
an action of ejectment or to deprivation of his or her estate or
interest on the ground that:
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1. the vendor may have been registered through fraud or error;

or
2. that they may have derived title from or through a person
registered as proprietor through fraud or error: (NSW, ss124,
135).
The Concept of Indefeasibility - Deferred and immediate
indefeasibility
Under immediate indefeasibility the purchaser, A, is protected under
registration immediately regardless of its validity of the registered
interest, unless A has acted with fraud and has not given valuable
consideration for the transfer. Under deferred indefeasibility, A, is
not protected on registration immediately and may be challenged as
being the proprietor complete by another party, B, even if A acted
without fraud. Only C is protected in this case immediately from
challenge if they bought off A as a bona fide purchaser without notice
for value and registers an instrument executed by A.
In Clements v Ellis, (regarded as an incorrect decision as the other
side should have won, as stated in [Frazer v Walker] and supported
and followed in [Breskvar v Wall]) the registration of what a
purchaser bought was not recognised as free of encumbrances as
the vendor inaccurately described. That is it was held that the
purchaser did not take free of any other interests in the property
because the mortgage interest of the vendor was on the register. If
this interest were not registered than the purchaser would have an
indefeasible claim/ hold over the property.

Frazer v Walker
It is the title which registration itself has vested in the proprietor.
Consequently, a registration which results from a void instrument is
effective according to the terms of the registration. It matters not
what the cause or reason for which the instrument is void. The
affirmation by the Privy Council in Frazer v Walker of the decision of
the Supreme Court of New Zealand in Boyd v Mayor of Wellington,
now places that conclusion beyond question, (Breskvar v Wall).
Frazer v Walker was not a case of conflict of unregistered interest as
Breskvar v Wall. It was about mortgagees who had registered a
mortgage from registered proprietors to which one signature was a
forgery, sold the land under their power of sale to a purchaser who as
duly registered as proprietor. The only fraud in the case was that of
one of the registered proprietors who forged the name of her
husband. Her fraud afforded no statutory basis for impeaching the
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title of the mortgagees when they were registered or of the registered

proprietor from them. Both the mortgagees and the registered
proprietor acted in good faith and without knowledge of the forgery.
The poor husband lost the title to the property. It was never an issue
of competing interest as there was an establishment of a new
registered proprietor.
Hence, it is now settled that an estate or interest purportedly created
by an instrument, void under the general law, derives validity and
indefeasibility from the registration of the instrument purporting to
create that estate or interest. This is the bottom line in this shit fuck
case above, F vW.

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Breskvar v Wall
There were two objections to whatever title Wall had:
1. It was obtained illegally by the use of an invalid instrument
2. It was obtained by his own fraud.
The appellants can without doubt displace Walls title. But there is a
third party involved namely Alban Pty Ltd, which Wall sold and
transferred to. For the appellants to succeed against Alban they must
go further than that of with Wall. They must show that Wall either did
not have title at all, or that their claim is to be preferred to that of
Alban.
The claim of Alban is that it holds a transfer from Wall to carry out a
purchase of the land, made for valuable consideration in good faith,
without any notice of the rights of the appellants. Their rights only
came to the notice of Alban only when a caveat to prevent the
registration of the transfer to it by Wall had been lodged (that is, after
Alban had given the money to Wall) on the settlement day and when
they went to the registry to transfer the title did they see a caveat,
but it was too late as settlement was already executed. It was held in
this case that Alban was a purchaser in good faith and for valuable
consideration without notice of the appellants rights.
It must be recognised that, in absence of fraud on the part of the
transferee, (i.e. the purchaser or the one receiving the property), or
some other statutory ground of exception, an indefeasible title can be
acquired by virtue of a void transfer. It seems follow that, where
there is fraud or one of the other statutory exceptions to
indefeasibility, a transferee does, by registration of a void transfer,
obtain a defeasible title.
The question to be asked is whether Wall became registered
proprietor and therefore deposing the appellants from that position
even though it was an illegal way of doing it. In Menzies J mind it did
depose the appellants and now. Therefore after the registration of
Wall, the appellants rights was no longer those of registered
proprietors but were simply to impeach the defeasible title that Wall
had obtained by that registration. The bottom line is that if B realised
what had happened before W sold it on then B could have got it back
because Ws title was not indefeasible, as he obtained it illegally.
Walsh J stated that once the title went to W, B could have got it back
because the obtainment of the title was illegal. But until B did get the
title back all B had was an equitable interest in the property, as did A.
So although they were prior in time to A, A is to be awarded the title
as a bona fide...etc.
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It must be noted that in this case, it was clear that immediate

indefeasibility was accepted.

A Note: Security of title is undoubtedly a basic aim of the Torrens

system and a registered proprietor is insecure to the extent that his
or her signature can be forged to a registrable instrument and the
certificate of title can be obtained by the forger. Yet deferred
indefeasibility potentially threatens the security of all titles, since an
innocent purchaser always runs the risk of having title impeached on
the ground that registration of that title was based on a void
instrument. Ultimately the most convincing rationale for immediate
indefeasibility lies in the position that no purchaser of Torrens system
land should be required to investigate the history of the vendors title
or to make inquiries that are burdensome or difficult.
The Registrar-General is given power to withhold registration of a
resumption, (i.e. to acquire land, or when the Crown compulsorily
reacquires land that was previously alienated), application pending
notification to the person affected, thus giving an opportunity to
contest the resumption: NSW, s31A(4), and (5).
In personam: an action or right of an action against a specific person.
The right of a beneficiary is a right in personam against the trustee.
That is, in certain circumstances, there exist the in personam
exception to indefeasibility.
There are many cases concerning the effect of registration on forged
or otherwise void instruments. Many of these cases are ultimately
decided by other exceptions to indefeasibility but most of these
exceptions give rise to difficulties. An example below:

Westpac Banking Corporation v Sansom

The wife mortgaged the marital home by forging her husbands
signature. An officer of the bank falsely attested that the husband had
signed the mortgage in his presence and the bank registered the
mortgage. It was held that the bank officers false attestation
constituted fraud within the meaning of s42 of the Real Property Act
1900 (NSW). However the fraud affected the validity of the mortgage
only against the husband and it was still enforceable against the wife.

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In 6.3.56, it is stated that if there is a mortgage between two parties

and one side is forged, fro example, by the solicitor because the
mortgagee was not available, the discharge of the mortgage is not
effect against the land. That is, the mortgagee has no claim to the
land because they did not sign, someone else did, hence they are not
even a party to the contract. Personally the mortgagor may be liable
but not within the ambit of the Real Property Act 1900. That is, it did
not operate as a deed for the purpose of s36 (11), RPA 1900.

Mercantile Credits Ltd v Shell Co of Australia Ltd (1976, HC)

Shell leased the property as a petrol station from the owner. The
owner had a mortgage with Mercantile. Shell intimated that it wished
to extend the lease for another five years, as the covenant allowed
them to do so with the requisite notice. The owner set up the extra
five-year term in a registrable form but was negligent and did not
actually register the lease as he was supposed to. Mercantile
intimated to the owner and to Shell that it wished to sell the land
This is when the shit hit the fan!
The proceedings were commenced after the respondent lodged a
caveat claiming to be entitled to the registration of an extension of
lease, and forbidding the registration of any dealing with the estate
unless such dealings were expressed to be subject to the respondents
claim. The appellant took out an originating summons seeking a
declaration that the extension of lease was not binding on it as
mortgagee and that it was entitled to exercise its power of sale free
from any leasehold estate in the respondent. Sangster J dismissed the
summons and held that the respondent was entitled to registration of
the extension of lease.
Gibbs J: The question is which prevails.the title of the respondent
arising from the exercise of the right of renewal or the title of the
appellant under the mortgage. It was argued by the appellants that
for something to be registered, it had to be of significance, that is, a
term of the lease, hence the covenant of a lease extension is not a
term of a lease. The Js response to this was; If the right of renewal
created by the covenant can rightly be said to be part of the estate or
interest specified in the lease, or if it is a right whose registration is
authorised by the Act, it will take priority over the mortgage which
was subsequently registered, but otherwise it will not, unless, in
either case, the Act contains a particular indication of intention to the
contrary. We are not concerned with a question of indefeasibility but
with the question of priority. As in Pearson v Aotea District Maori
Land Board, it is accepted here that the right of renewal is so
intimately connected with the term granted to the lessee, which it
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qualifies and defines, that it should be regarded as part of the estate

or interest which the lessee obtains under the lease, and on
registration is entitled to the same priority as the term itself. Hence,
the respondents rights of renewal prevail over the appellants
mortgage. The appellants rights as mortgagee can only be exercised
subject to the respondents right of renewal and any extension
resulting from its valid exercise. Appeal; dismissed.

Volunteers

Is that you have not paid value, you have just received a gift.

Bogdanovic v Kotef
Mrs Bogdanovic lived in part of Koteffs house and paid K rent for
this. K and B seemed to have made an agreement that B could reside
there for the rest of her life. K died and K junior became the
beneficiary. That is K jnr became the registered proprietor. He began
proceedings to reclaim possession of the land from the appellant.
Arguments:
There was a constructive trust in her favour this was accepted,
(refer to Ogilvie v Ryan)
B had an equitable interest in the property
K jnr is the registered proprietor- argues that his registered title is
indefeasible and he took title against all equitable interests.
K snr would not have been able to reject her equitable interest as
he was the one who made the agreement in personam argument
cannot renege on a contract that you make
Even K jnr had notice and then registered, that would not have
constituted fraud, (s43 RPA)
A volunteer has not a better title than that of their donor
If the person who gave the interest to you was bound by something
then so are you
Your interest can never be in a better condition and unaffected by any
interest which would bind the donor
HELD: not bound
held that the RPA is absolute and makes no differentiation
between volunteers or purchases with value (s42), hence has
absolute effect. That is, under s42 K jnr held his interest in the

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land as registered proprietor of an estate in fee simple absolutely

free from any estate or interest in her.

Rasmussen v Rasmussen [1995] 1 VR 613

Plaintiff claiming constructive trust arose out of circumstances of the
family farming partnership.

The salient point to take from this case is:

The purchaser who takes with notice of an antecedent interest but
who becomes registered under the Act without fraud takes free of
that interest. Registration of the transfer is not fraudulent merely
because the transferee knows that an antecedent interest of which
he has notice will be defeated thereby.
(per Coldrey J)

The Torrens system of title is intended to be the final and ultimate

register of land ownership, where its provisions are absolute (or
largely so).

Exceptions to indefeasibility
Five main categories of exceptions to indefeasibility of title have been
identified:
1. Express exceptions created by the Torrens legislation itself.
2. The Registrars power to correct the register in certain
circumstances - refer to s12(1)(d) and 3(b) of the Real Property
Act.
3. Specific exceptions imposed by other statutes, e.g. compulsory
acquisition of land.
4. Overriding statutes, which on general principles of statutory
interpretation affect the Torrens legislation by subjecting the
registered proprietor to interests not noted on the register.
5. Exceptions permitted by the courts, such as in personam
exceptions.

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The limitations inherent in a registered proprietors title may be

regarded as another exception to indefeasibility or as merely defining
the breadth of it e.g. covenants in a lease.
The most direct exception to indefeasibility arises from the provisions
of the Real Property Act, where the registered proprietor is guilty of
fraud. The general body of case law defines fraud as meaning
something in the nature of personal dishonesty or moral turpitude
Butler v Fairclough (1917) 23 CLR 80 at 90 per Griffith CJ.

Loke Yew v Port Swettenham Rubber Co Limited [1913] AC 491

This is the rubber plantation case, which focuses on whether a failure
to acknowledge and abide by a pervious undertaking is fraud in the
sense of Torrens legislation.

The key point to take from this case is:

It may be laid down as a principle of general application that
where the rights of third parties do not intervene no person can
better his position by doing that which is not honest to do, and in
as much as the registration of this absolute transfer of the whole
of the original grants was not an honest act under the
circumstances it cannot better the position of the plaintiffs as
against the defendant and they cannot rely on it as against him
when seeking to enforce rights which formally belong to them only
by reason of their own fraud.
(per Lord Moulton)

The registered proprietor is bound to act in accordance to proper

standards of conduct.

Fraud has been defined as meaning something more than mere

disregard of rights of which the person affected had notice. It
imports something more in the nature of personal dishonesty or
moral turpitude Wicks v Bennett (1921) 30 CLR 80 at 91 per
Knox CJ and Rich J
Fraudulent behaviour is also determined on a subjective level, where
the party in question has to have known, or clearly should have
known, that their act was fraudulent. Further, the fraudulent act
must be clearly referable to that registered proprietor, and not merely

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something that could have been discovered or the registered

proprietor was willfully blind towards.

Bank of SA v Ferguson (1998) 151 ALR 729

Where a bank officer forged an internal bank document used in the
approval process for a mortgage.
Forged documents have not been held to be fraudulent in nature
(sufficient to negate indefeasibility) where the document was not
prepared for, and was not used for the purpose of, and did not
have the effect of, harming, cheating or otherwise being dishonest
to the injured party in question.
There were several key points identified by the High Court in relation
to the question of fraud under the Torrens system:
1. Statutory fraud embraces less, not more than the species of fraud
which, at general law, founds the rescission of a conveyance
2. Statutory fraud is not itself directly generative of legal rights and
obligations, its role being to qualify the operation of the doctrine
of indefeasibility upon what would have been the rights and
remedies of the complainant if the land in question was held under
unregistered title.

Fraud requires actual dishonesty and not mere notice of an

unregistered interest (given the provisions of the respective notice
sections in various real property legislation. Therefore, a purchaser
was entitled to use registration to defeat the interests of the prior
unregistered interest, notice of which was provided.
RM Hosking Properties Pty Limited v Barnes [1971] SASR 100

The In Personam Exception

The principle of indefeasibility in no way denies the right of a plaintiff

to bring against a registered proprietor a claim in personam, founded
in law or in equity, for such relief as a court acting in personam may
grant
Frazer v Walker [1967] 1 AC 569 per Wilberforce LJ
This exception, although commonly applied to contractual or trustee
relationships and obligations, is not limited to obligations that the
registered proprietor voluntarily enters into.
It also includes
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obligations imposed by equity in its inherent jurisdiction to relieve

from unconscionability.

Bahr v Nicolay (1988) 164 CLR 604

This case focuses on a contractual provision for the Bahrs to
repurchase land from Nicolay under the terms of a contract for the
sale of land, where the land has been subsequently sold to Thompson.
The object [of the Torrens system] is to save persons dealing with
registered proprietors from the trouble and expense of going
behind the register, in order to investigate the history of their
authors title, and to satisfy themselves of its validity.
Per Mason CJ and Dawson J
Neither [legislation] nor the principle of indefeasibility preclude a
claim to an estate or interest in land against a registered
proprietor arising out of the acts of the registered proprietor
himself. Thus, an equity against a registered proprietor arising
out of a transaction taking place after he became registered as
proprietor may be enforced against him. So also with an equity
arising from the conduct of the registered proprietor before
registration, so long as the recognition and enforcement of that
equity involves no conflict with [the relevant legislation].
Per Mason CJ and Dawson J
Fraud involves actual fraud, personal dishonesty or moral turpitude.
Legislation restricts rights existing at law or in equity in the interests
of maintaining indefeasibility of title. The main exception that exists
covers fraudulent conduct. It begs the question that shouldnt other
fraudulent behaviour, such as the dishonest repudiation of an
acknowledged prior interest, be included in this exception to
indefeasibility. Such repudiation is held to be fraudulent as it goes
towards denying a necessary precondition to the execution of the
transfer in question. It goes to the fact that the registered proprietor
made a binding representation to others so as to effect the transfer of
property, as opposed to merely receiving notice of the existence of an
interest.
It is the case that acknowledging an antecedent agreement may
amount to an agreement or undertaking to recognise and be bound by
the terms of that antecedent agreement.

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If the inference to be drawn is that the parties intended to create

or protect an interest in a third party and the trust relationship is
the appropriate means of creating or protecting that interest or of
giving effect to the intention, then there is no reason in a given
case an intention to create a trust should not be inferred.
Per Mason CJ and Dawson J
[The] indefeasibility provisions of the Act may not be
circumvented. But, equally, they do not protect a registered
proprietor from the consequences of his own actions where those
actions give rise to a personal equity in another. Such an equity
may arise from conduct of the registered proprietor after
registration. It may arise from the conduct of the registered
proprietor before registration.
Per Wilson and Toohey JJ
However, the title of a purchaser who not only has notice of an
antecedent unregistered interest but who purchases on terms that
he will be bound by the unregistered interest is subject to that
interest. Equity will compel him to perform his obligation. A
registered proprietor who has undertaken that his transfer should
be subject to an unregistered interest and who repudiates the
unregistered interest when his transfer is registered is, in equitys
eyes, acting fraudulently and he may be compelled to honour the
unregistered interest.
Per Brennan J
One means of protecting unregistered interests in this situation may
be through the imposition of a constructive trust.

Mercantile Mutual Life Insurance Co Limited v Gosper (1991) 25

NSWLR 32
Husband forges the wifes signature in obtaining and varying a
mortgage. The mortgagee acts in accordance with the husbands
unauthorised actions.
Two things need to be noted about the in personam rights/obligations
accrued:
1. Such rights may have enforced whether they arose before or after
the registered interest was acquired.
2. The enforcement of such an unregistered right must not be
inconsistent with the terms of the relevant Torrens Act.

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3. Not every right which, under the general law, would be

enforceable against the holder of the interest which the registered
proprietors hold is enforceable against it under the Act.
Clearly, we can see that the personal equities exception to
indefeasibility extends to encompass the actions of the registered
proprietor before and after the registration.
The existence of such an equity does not depend upon any
intention on the part of the new owner to contravene the rights of
the previous owner.
Per Mahoney JA
The intended finality of the Torrens registration process needs to be
considered:
The Torrens system of registered title of which the Act is a form is
not a system of registration of title but a system of title by
registration. That which the certificate of title describes is not the
title which the registered proprietor formerly had, or which but for
registration would have had. The title it certifies is not historical
or derivative. It is the title which registration itself has vested in
the proprietor. Consequently, a registration which results from a
void instrument is effective according to the terms of the
registration. It matters not what the cause or reason for which
the instrument is void.
Per Meagher JA (citing Barwick CJ in Breskvar v Wall (1971) 126
CLR 376 at 385-386)

All states have created an exception to indefeasibility in the cases

where an interest is asserted by a proprietor claiming under a prior
certificate of title or where the land has been included in the register
by a wrong description of parcels or boundaries.

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JUDICIAL APPROACH TO THE TORRENS

SYSTEM
Inconsistent Legislation

Pratten v Warringah Shire Council [1969] 2 NSWR 161

This case considers the proper approach in dealing with land
compulsorily acquired through legislative provisions and how this
relates to Torrens legislation.
It has been long accepted that in the case of Real Property Act
land there can exist proprietary rights which do not depend upon
registration for their efficacy.
Per Street J
It follows, therefore, that the question upon which our decision
must turn is whether in the enactments creating the statutory
charges such a clear intention is expressed to include land under
the Real Property Act and to give to the charges an absolute and
indefeasible priority over all other interests that, notwithstanding
s6 of the Act, no course is open but to allow the intentions so
expressed in the later enactments to be paramount over the
earlier Real Property Act.
Per Street J (citing Dixon J in South-Eastern Drainage Board (SA) v
Savings Bank of South Australia (1932) 62 CLR 603)
So it is enacted that the title to every registered proprietor of
land, which includes a mortgage security, shall be absolute and
indefeasible subject to certain qualifications, that no instruments
shall be effectual to pass any land to or render any land liable as
security for the payment of money unless registered as prescribed
by the Act, that no unregistered estate, interest, right, power,
contract or trust shall prevail against the title of a registered
proprietor taking bona fide for valuable consideration or for any
person bona fide claiming through or under him. The charges do
not depend upon registration nor upon the execution or entry of
any instrument. They are complete and effective by reason of the
provisions of the Acts creating them.
Per Street J (citing Starke J in South-Eastern Drainage Board (SA)
v Savings Bank of South Australia (1932) 62 CLR 603)

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Under s196A of the Conveyancing Act 1919, any resumption of land is

required to notify the Registrar-General. Following this, s31A(3) of
the Act requires that the Registrar-General record the resumption on
the register.

The Register
Bursill Enterprises Pty Ltd v Berger Bros Trading Co Pty Ltd (1971)
124 CLR 73
Facts:

Guy

1872

Long

Roof

Transfer
No 7922
executed
Bursill
(who purchased the
property and denied
Bergers interest)

Guy granted to Long a

right of way over the
, and a right to erect
and maintain buildings

Berger

Guy
- Bursill

Long
- Berger

is right of Floor

way, but is the

building
occupying
the

The land acquired by Bursill contained in its certificate of title a

notification of an incumbrance in the following terms: Right of Way
created by and more fully set out inTransfer No 7922.
In 1872, transfer no 7922 was granted from Guy to Long.
Berger, in occupation of the building over the right of way, sought a
declaration that it was entitled:
a) To retain the building for its own exclusive use;
b) To receive the support of a building on Bursills land; and
c) To build and rebuild over the right of way at a height of not less
than 12 feet from the ground, but otherwise without restriction as
to height.
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Supreme Court:
McLelland CJ in equity held that Transfer No 7922 created an
easement over Bursills land, which although misdescribed on
Bursills certificate of title, was protected by s 42 of the Real Property
Act 1900. McLelland allowed the declarations sought by Berger
except for the third one. Bursill appealed to the High Court, and
McLelland cross-appealed against McLelland CJs refusal to grant the
third declaration sought.

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High Court, per Windeyer J: (the accepted view)

Windeyer argued that the transfer from Guy to Long involved a
transfer of the easement (that is, the right of way which is denoted in
the diagram as diagonal shading), as well as an exclusive grant of the
building on top of this right of way (denoted as the polka-dot shading
in the diagram above). Windeyer disagreed with McLelland CJ that
the grant of the building was the creation of an easement. This is
because the grant does not reserve any rights to the transferor, and
also because the transferee can pull down the existing building and
re-erect one if he so wishes. Since the grant does not create an
easement, s 42 affords no protection to Berger, and therefore, at this
point at least, the omission in the certificate of title is fatal to Bergers
claim of the building.1
Windeyer J holds, however, that the reference to Transfer 7922 in the
folium of the certificate of title (this is before the definitions changed)
is constructive notice of its contents. This is because no prudent
person, seeing the reference to a right of way, would neglect to
ascertain what exactly was the nature of the right of way Therefore
Berger does get exclusive possession of the building after all because
it was notified in the folium of the certificate of title.
Windeyer J therefore dismisses the appeal.
High Court, per Menzies J: (the dissenting view)
Menzies argued that the notification to the right of way was just that
it was a notification to the right of way. He did not expect the
potential purchaser to check out the details of the transfer, as the
reference to the instrument was too a right of way, not to a right of
way and the right of land upon that right of way:
It seems to me that the only interests notified were the rights of
way and that that description cannot be regarded as covering the
transfer of the interest in land constituted by the transfer of the
building.
Ratio:

This is because if the building were an easement, s 42 of the Real

Property Act would allow for misdescribed easements (an easement
not noted is a misdescribed easement). However, since the building
was held by Windeyer not to be an easement, then there is no
rectification section available.
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The ratio of this case is therefore that a reference to a registered

dealing in the folio of the register is constructive notice of the
contents of such registered dealing.
Obiter:
An easement that is not described on the folio itself but is described
on a dealing to which the folio makes reference is one that is omitted
or misdescribed, and thanks to s 42 of the Real Property Act, such an
easement will nevertheless operate as an incumbrance on the
registered proprietors title. (This is of course unnecessary because
of the ratio listed above there is no need to argue about
misdescribed easements where such easements were described in a
separate dealing, and the dealing was referred to in the original
certificate of title or folio of the register)

See cases Maurice Toltz and Scallan v Registrar-General on pages

509 and 510.

Equitable Interests and Equitable Unregistered Instruments

Torrens legislation recognizes that certain unregistered or equitable

interests can continue to exist in respect to registered land (despite
the guarantee of indefeasibility). For example, trusts may operate as
incumbrances on the registered proprietors land, yet the RegistrarGeneral is not allowed to record these on the register.

Barry v Heider (1914) 19 CLR 197

Facts:
The facts are complicated and unimportant for the most part. Here is
an essential summary:
Barry purported to sell land to Schmidt for 1200, who then
mortgaged the land out to Mrs Heider for 800 and to Gale for 400.
However, it was found that Schmidt forged the original transfer from
Barry, and that Barry never intended to sell the land for such a low
price of 1200.
In the present case, Schmidt is out of the question, but there is a
conflicting interest between Barry, and Heider and Gale.
High Court, per Griffith J:
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Griffith J first establishes that the Real Property Act does take into
account unregistered and equitable interests. Sections 82, 86, 72 and
44 of the Real Property Act take such interests into account in the
following way:
Section 82: although this section holds that trusts may not be
registered (trusts being equitable interests), an instrument may
declare a trust, which may be deposited with the Registrar-General.
If it is so deposited, then the Registrar-General must enter on the
register a caveat forbidding the registration of any further interest on
the land in question that is not in accordance with the terms of the
trust.
Section 86: this section allows vesting orders to be made under the
relevant Trustee Acts.
Section 72: a caveat is the means by which an equitable and
unregistrable instrument can be recognized and protected.
Section 44: this section implicitly acknowledges the existence of
rights and incumbrances not on the register which may nevertheless
burden the registered proprietor: other circumstances which would
affect the vendors right.
Griffith then argued that though the transfer from Barry to Schmidt
might have been fraudulent, Mrs Heider was a bona fide purchaser
for value without notice, and that she was entitled to rely upon the
representation inherent in the existence of the transfer that Schmidt
did own the property. Furthermore, the fact that there was a letter
from Barry gave strength to the representation.
Therefore, Mrs Heider retains the mortgage.
As for Mr Gale, who is a partner at Gale and Gale solicitors, the
mortgage to him is in a different position, because he had notice
(actual or otherwise) through his previous contacts with the relevant
parties of the caveat that was served by Peterson the solicitor on the
land. This was a caveat lodged on behalf of Barry claiming an unpaid
vendors lien. Because of noticing this caveat, Gale was obliged to
inquire further that Barry, the vendor, had in fact received the full
price due to him. In actual fact he had not received anything. 2
2

Additional details: The caveat lodged on behalf of Barry further

qualifies Barrys earlier purported representations due to the transfer
and the letter. The later removal of the caveat also does not remove
Gales notice of the unpaid vendors lien either Gale is still obliged
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Therefore Gale was entitled to his mortgage for 400 subject to

Barrys unpaid vendors lien for 1200.
Because Gale had an
equitable interest (equitable mortgage), and so did Barry (unpaid
vendors lien), the earlier interest in time prevails.
Ratio:
1. The
Torrens
system
recognizes
the
existence
of
equitable/unregistered instruments.
2. Where there is a conflict between competing equitable interests
(such as between an unpaid vendors lien and a mortgage), the
first in time will prevail, unless there has been postponing conduct
see Rice v Rice (first session case).
3. In this case, was there a conflict between competing equitable
interests or between a legal interest and a subsequent equitable
interest? The court seemed to treat the case like the former
(therefore see point 2), but it should have been seen as the latter,
because Barry had not in fact got an unpaid vendors lien (as there
was fraud) but still was the legal registered owner of the
property.3 In such a case, the earlier legal will prevail against the
later equitable unless there is postponing conduct see Northern
Counties v Whipp; Walker v Linom (first session cases)

to check before he is entitled to the mortgage as mortgagee.

3
Unless, of course, he had agreed to sell the property for 4000, in
which case there would be competing equitable interests.

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Obiter:
1. A registered interest will still defeat an inconsistent unregistered
interest due to the principle of indefeasibility. The registered
proprietor is absolved from notice of the unregistered interest.

Caveats
Equitable interest-holders under the Torrens system can best protect
their interests by lodging a caveat in favour of those interests. Indeed
it has even been held that a failure by an equitable interest holder to
lodge the caveat may amount to postponing conduct in favour of a
persons later interest (Butler v Fairclough).
A caveat works in the following way:
1. A holder of an estate/interest in land under an unregistered
instrument lodges the caveat, forbidding the registration of any
person as transferee/proprietor, or of any instrument affecting the
estate or interest.
2. Memorandum of caveat is entered on:
(i) Crown Grant; or
(ii) Certificate of Title; or
(iii)Folio of the Register.
3. Notice of caveat is given to the registered proprietor.
4. Where someone wants to register an interest protected by the
caveat, the caveator must either consent or show cause as to why
the dealing should not be registered.
5. If the caveator does not respond within a specified time, the
caveat lapses, and cannot be renewed.
Further points about caveats:
a) In Vella v Aliperti, it was held that a caveat will be extended if the
caveators claim has or may have substance, if the claim raises a
serious question to be tried, and if the balance of convenience
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favours retention of the caveat pending the trial to substantiate

the interest claimed.
b) The onus of proving that the caveat is reasonable lies on the
caveator.
c) The caveator may be liable to pay compensation to any person
suffering loss where the caveat is lodged without reasonable
cause.
d) If a prospective purchaser searches the register and finds no
interests registered or caveats noted on the title of the registered
proprietor, the unregistered interest may take priority over earlier
interests which are neither registered nor protected by a caveat.

Kerabee Park Pty Ltd v Daley [1978] 2 NSWLR 222

Facts:
The registered proprietor of land mortgaged the land to P, the first
mortgagee, who registered the mortgage. The R.P. then mortgaged
the land to D1 and D2, the second and third mortgagees respectively.
D1 and D2 lodged caveats preventing the registration of all
inconsistent dealings. P applied to the court to remove the caveats.
Ratio:
All caveats must specify the quantum of the estate claimed by the
caveator, and the source of the interest, in order to comply with the
requirements as to form pursuant to s 74F (5) and Reg 8 Sch 2 of the
Real Property Act. Otherwise the Registrar-General is entitled to
reject the caveat application. However, once the caveat has gone
through, s 74L holds that the caveators interest should not be
defeated solely on the ground that it doesnt follow the form.
Also, if a second mortgagee lodges a caveat against a first mortgagee
so as to pressure the first mortgagee into selling for a high price so as
to pay off the second mortgagee, such action will detract from the
first mortgagees ability to sell land for a good price (as people dont
want to buy a lawsuit). In the absence of any proven fraudulent
conduct by the first mortgagee, the second mortgagees refusal to
remove the caveat is unreasonable in that it detracts potential buyers.
Section 74P will therefore apply to award the first mortgagee
compensation against the seond mortgagee.

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Further points about caveats

What is a caveatable interest? According to Chris Rossiter, at least, a

caveatable interest is an equitable interest (unregistered proprietary
interest).
The following is a list of all caveatable interests:
Interest of purchaser under a Jessica Holdings v Anglican
conditional sale if court would
Property Trust
protect by injunction.
Beneficiarys interest in a unit trust. Costa & Duppe Properties v
Duppe
Interest of a builder on the land if Gibson v Coordinated Building
the contract provides for a charge.
Services;
Rising Developments v Hoskins
Unregistered profit a prendre.
Permanent Trustee Aust Ltd v
Shand
Borrower under loan contract Avco Financial Services v White
charges
property
as
security,
creating an equitable charge.
Oral agreement for the extension of Deanshaw v Marshall
an easement supported by acts of
past performance sufficient to
justify caveat on title to servient
tenement.
Guarantee, provided equity would Composite Buyers v Soong
grant Sp. Perf.
Others such as:
constructive, resulting or express
trusts
equitable mortgages and leases
equity of acquiescence
equitable easements
unpaid vendors lien
equity of redemption
The following are not caveatable:
An equity to set aside transaction for fraud
An agreement to share profits
A right of preemption.
For the names of cases on these, see page 522 of the book.

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Application for removal of caveat

The registered proprietor can apply for removal of the caveat in s

74MA of the Real Property Act.

In Morling v Morling, the court held that its discretion to order the
removal of the caveat depended on it being satisfied that the
caveator will be protected.
So if the caveator loses out
unjustifiably by removal of the caveat, the court will not order
such removal.

The vendors obligation under a contract for the sale of land to

make good title requires it to remove all caveats on the title:
Zanee Pty Ltd v CG Maloney.

In Re Jorrss Caveat it was held that the onus lies upon the
caveator in an application by the caveatee for removal of a caveat.
The onus comprises the following the caveator must satisfy the
court that on the evidence presented to it his claim to an interest
in the property does raise a serious question to be tried; and,
having done so, he must go on to show that on the balance of
convenience it would be better to maintain the status quo until the
trial of the action, by preventing the caveatee from disposing of
his land to some third party.

The test for whether compensation under section 74P is available

depends on whether the caveat has been lodged without
reasonable cause.

The fact that a caveator fails to sustain the caveat at full trial must
not unconsciously be equated with an absence of reasonable
grounds for lodging the caveat in the first place: Amalgamated
Finance Ltd v Wyness.

Few cases on possible misuses of the caveat on bottom of page

524 and top of page 525.

Competing equitable interests

Major Issues
[1] Postponing Conduct: Where the registered proprietor signs
transfer of the land along with the certificate of title

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to another on particular terms and the terms are

breached at the detriment of the proprietor.
Every time, the proprietors interest is postponed to the later interest
because of his/her conduct ie their conduct estops them from seeking
priority.
Abigail v Lappin
Heid v Reliance Finance
[2] Where the proprietor creates a series of unregistered
interests in the land and the Q is raised of how the
interests compete with each other.
This is not a Q of how they can assert their rights against the owner
but against each other. This is where the lodging of a caveat becomes
crucial.

Main Principle
In a competition between equitable interests the first in time,
all other things being equal, is entitled to priority. But all other
things must be equal, ad the claimant who is first in time may
lose his priority by an act or omission, which had or might have
the effect of inducing a claimant later in time to act to his
prejudice.
Failing to lodge a caveat may qualify as conduct, which results
in an earlier interest losing its priority to a later interest.

Butler v Fairclough
In NSW given the practice of lodging caveats, the trend is that if you
do not lodge a caveat there is every chance that your interest will be
postponed.

Person-to-Person Finances v Shahari

In Victoria however this is not always the case. There could be policy
issues here that may be mooted in NSW.

Jacobs v Platt
When there are two competing equitable interests the later interest
cannot claim being misled by the conduct of the earlier interest when
the circumstances are such that reasonable inquiries could have been
made.

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Just Holdings v Bank of NSW

AVCO Financial Services v Fishman (Vic)

Section 43A, RPA

Main points of s43A
[a] When a reg prop of TT land gives an unreg mortgage to X
and then sells to P. The Qs is what protection does the
P have under s43A? (AIC v Courtenay) and (Jonray)
Under the section, the purchaser is deemed to have a legal
interest as if it was OST.
Void dealings: ie ones created by actual fraud: the true owner can
prevent registration and the purchaser may be guilty of
participatio criminis. No s43A protection.
Voidable dealings: The sale will go through if the purchaser did
not have previous notice. What if the purchaser did have notice?
Then the earlier interest will prevail. If the purchaser gets to
settlement before receiving notice and satisfies the requirements
of s43A, then he will override the unreg interest
[b] Conditions to get the protection of s43A, the dealing must
be registrable immediate.
-So if the purchaser gets a mortgage to buy the property, then the
mortgage is not protected by s43A becos it is not a direct dealing.
Both mortgages are simply competing equitable interests.
i) It has to be in formal order (AIC v Courtenay)
ii) It has to be accompanied by a duplicate or the cert of title (Finlay
v R&I)
iii) It must be immed registrable as in received and executed by the
reg prop; but transfers by direction are permitted whereas
discharge and recharges of morts are not becos two differ parties
BUT the Wilkes and Spooner principle will apply. (Jonray)
iv) It has to be bona fide, ie cannot ignore notice: knowledge that any
registered interest exist itself shall not be imputed as fraud ie
mere notice is not the same as notice but even constructive notice
is enough to strike out s43A.
[1] Postponing Conduct: Where the registered proprietor signs
transfer of the land along with the cert of title to
another on particular terms and the terms are
breached at the detriment of the propietor.
Every time, the proprietors interest is postponed to the later
interest because of his/her conduct ie their conduct estops them
from seeking priority.
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Abigail v Lappin p525 text

[1934] AC 491 (Privy Council)
FACTS:
The Lappins are the registered proprietors of TT land. They sign a
transfer of the land to Mrs H and they hand the title over to her.
This transaction was a loan, but instead of signing a mortgage,
they signed the transfer of title. If they defaulted in payment, H
would be able to transfer the land to her name. Lappins could if
they wished had lodged a caveat to prevent any improper dealing
by H but they did not.
Then H gives a mortgage to A, who does not search the register
before lending the money but even if she did, she would not have
found a caveat. H had transferred the title into her name, which
was fraudulent, because it breached the terms of the agmt. So
her name would be struck off the register.
Qs were whether As mortgage prevailed over L when they lodged
a caveat to protect their rights?
Privy Council said yes.
HELD:
Lord Wright: apart from priority in time, the test for
ascertaining which incumbrancer has the better equity must
be whether either has been guilty of some act or default
which prejudices his claim.

A person who has an equitable charge upon the land may

protect it by lodging a caveat, which in my opinion operates
as notice to all the world that the RPs title is subject to the
equitable interest alleged.

By signing a transfer, the Lappins voluntarily armed (Rice v

Rice principle) Mrs H to represent herself as owner in fee
simple to Abigail.
They could have lodged a caveat to
prevent such improper dealings. Therefore Ls interest
postponed to A.

Heid v Reliance Finance Corp Pty Ltd p533 text

(1983) 154 CLR 326
FACTS:
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H is the reg. Prop. Of TT land. He sells his land to a purchaser

who is a rogue who persuades H to hand over a signed transfer
along with a certificate of title with a promise of money to be paid
in the future to his solicitor (who was actually the rogues
employee).
The transfer says that the money has been paid. H never gets
paid.
The rogue gave a mortgage to the finance co who relied on the
fact that the rogue had the possession of the cert of title and the
signed transfer.
H returns after the rogue is registered but before the mort is
registered. Claims equit interest in land is paramount to that of
the respondent.
Qs as to whether Hs interest is postponed by his conduct?

HELD:

HC said that H could have lodged a caveat and therefor put the
finance co on notice of Hs interest in the land. But this was not
the grounds on which the case was decided.

HC said that Hs interests were postponed because of his

conduct in handing over the signed documents; followed
Lappin: he armed the rogue with the ability to represent to
third parties that they had unencumbered interests in the
land.

Was the HC persuaded by the argument that H was compelled to

trust a solicitor as we all have to at some stage when dealing with
land so have to hand over documents? No the HC said that it was
not so much that this was a solicitor but that H knew the person
given the documents was also an employee of the rogue and
therefore not an independent person. This conduct of handing
over to someone known not to be independent is also conduct,
which results a postponing of Hs interests

[2] WHERE

THE PROPRIETOR CREATES A SERIES OF UNREGISTERED

INTERESTS IN THE LAND AND THE Q IS RAISED OF HOW THE INTERESTS
COMPETE WITH EACH OTHER.

Butler v Fairclough p531 text

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23 CLR 78 (1917)
FACTS:
Good is the registered proprietor of TT land which was subject to
a registered mortgage.
30/6/1915 gives a mortgage that is unregistered to Butler. B
could have lodged a caveat which he does but much later.
2/7/1915, G sells the land to Fairclough who checks the folio and
any instruments or caveats mentioned in the folio and finds none
so is not put on notice. F pays purchase price and receives
transfer in registrable form.
7/7/1915, B finally lodges a caveat.
Later F lodges his transfer for registration which is then stopped
because of the caveat. F withdrew the transfer from registration.
The RG took the view that since the transfer had been withdrawn,
the caveat had lapsed. F relodged his application and since RG
mistakenly believed that caveat had lapsed, registered Fs
transfer.

The HC said that since the mortgage was unregistered and F was
registered, F would prevail.

Then consider the situation had the defendants mortgage

not been registered: a person who has an equitable charge
over the land may protect it by lodging a caveat. This
operates as notice to the entire world that the registered
proprietors title is subject to the equitable interest alleged
in the caveat.
If the plaintiff had been diligent, the
defendant would have found his caveat in the Register
before paying the price for the interest. If two equitable
interests, all other things being equal, the first in time is
entitled to priority. But here the pt would have failed.

Why does failure result in a postponement? Because the

conduct of the plaintiff misleads later interest in the land
into believing that there are no prior interests on the land.

How prompt do you have to be to lodge a caveat? B did it a week

later, but the court felt that two days would have been more
prompt. (per Griffith CJ).

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Note: Lands Title Office will now give caveators fresh notice to
prevent a repeat of the unfortunate scenario for the plaintiff in Butler
v Fairclough.

Just Holdings v Bank of NSW p533 text

(1971) 125 CLR 456 (High Court)
FACTS:
Mortgage to the bank, which it does not register but the certificate
of title is taken as security. The bank could have lodged a caveat but
it didnt becos there was a commercially accepted practice to take
possession of the certificate of title.
Owner then gives a second mortgage to anor bank that asks for the
title and the owner replies Its with my bank for safekeeping.

M2 did not go to the bank and ask them the details of the
safekeeping but did check the register and also lodged a caveat. Are
you always postponed for not lodging a caveat?
Per Barwick CJ:
Mere failure to lodge a caveat does not result in postponing.
Postponing will occur when the failure to lodge a caveat
COMBINED with other circs results in conducing or
contribution to the belief on the part of the subseq equity
holder that no prior equit interest existed over the land in
Qs. It is the fact that you mislead (by act or omission) others
who are interested in the land that will determine
postponement.
In this case here it is not the act or default of the dt that
contrib. to the assumptions of the co. The bank was entitled
to rely on its possession of the duplicate certificate of title
and the practice of the RG of not registering mortgages
without production of the certificate.
The purpose of a caveat is protective, it is not to give notice;
so if the information is there to be found out and the co do
not take advantage of it, then the initial mortgagor will
prevail. Ie M2 should have made their own inquiries about
the safekeeping of the title given that the owner did not
produce the title or a copy.

The standard practice estab with regards to the producing of the

title for dealings and the fact that the owner did not produce it
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should have put the co on notice so banks interests not

postponed.

AVCO financial services v Fishman (1993) 1 VR 90

FACTS:
Proprietor gives the mortgage to M1 who registers the mortgage
and takes possession of the certificate of title. Then gave a second to
the same mortgagor which is unreg. Owner gives a third mortgage to
anor mortgagor M3. M3 checks the register and finds M1 but not M2
becos no caveat. If no caveat, does that mean that M3 will prevail
over the postponed M2 as in Butler?
Vic SC said that M1 obviously would have prevailed becos
registered. But M3 should have made inquiries about
M2 before giving the mortgage, the court said that M1
was sufficient to put M3 on notice about M2 and
therefore Just Holdings will prevail

In NSW if you fail to caveat, there is every chance according to Butler

that your interests will be postponed. In Vic, this is not always the
case

Jacobs v Platt p538 text

[1990] VR 146
FACTS:
Platt Nominees owns TT land. The co is owned by husband and
wife. The co gives the daughter Ms Platt an option to buy the
property. An option to buy, simply the existence of it, before it is
even exercised in property law, is an equitable interest in the land.
It is an instrument in writing, which cannot, like a contract, be
registered, but a caveat can be lodged.
Ms P did not lodge a caveat on the land because she was afraid to
insult her dad. She also thought that the mother would be careful
to protect the interest.
The father later sells land to anor
purchaser. The purchaser searches the register and finds no
caveat.

She could have lodged a caveat and failed to do so, therefore

her interest is postponed.

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One would assume that since she could have lodged a caveat but
failed to do so, her interest is postponed. But in Victoria, the court
found that her interest prevailed. Because:
[1] They looked closely at why she fail to lodge the caveat and gave
great weight to these reasons eg her father, did not want to insult
him etc.
[2] Also said that in Vic there isnt any standard practice of lodging
caveats. Therefore the purchaser should not assume that an
absence of caveat means an absence of prior interest in the land.

Person to Person finances v Sherrari (NSW, 1980)

FACTS:
A gives a reg mortgage to Tredgolde (T) and gives anor unreg
mortgage to Shahari (S).
Later gives mortgage to Person-to-Person (P).
P relied on representation that T was the only mortgagee. A title
search by P confirmed this.
To enable registration P wrote to Ts solicitors to get consent and
for production of title certificate. There was no reply so P remained
unregistered.
P sought a declaration to assert the priority of his interest over Ss.
HELD:
McLelland J: Ps mortgage had a priority over Ss
An earlier equitable interest has priority over a later one,
unless some act or omission by the holder of the first interest
misleads the second into believing the first didnt exist.
The circumstances of each case shall determine the effect of
failure to lodge a caveat. It may or may not postpone an earlier
equitable interest to a later equitable interest.
In NSW it was the normal practice of solicitors acting for
subsequent mortgagees to promptly register the mortgage or
lodge a caveat.
Ss failure to lodge a caveat had caused P to give its
mortgage on the supposition that there was no second
mortgage. Consequently, it would be inequitable that S should
have priority over P.

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Section 43A, RPA

[1] DEFINITIONS
s43A (1)
For the purpose only of protection from notice for persons
contracting or dealing with land under this Act before registration,
the estate or interest in land under the prvns of this act, shall be
taken to have been deemed to be the legal estate.
What does this mean?
An Old System Title purchaser of the land gets the conveyance of
the land after 6 weeks of agmt of sale. If the land purchased bona
fide, for value and without notice, all equitable interests are
defeated upon completion of sale.

But a Torrens title purchaser only gets the equitable interest even
after paying a full purchase price if they are or remain
unregistered.
IF there are previous equitable interests,
regardless of whether they were given notice, at completion land
is taken subject to the interests of other interests until
registration. That is what s43A is about. It is said to protect TT
purchasers who are completing the purchase and they will be
deemed as having legal interests even if not yet registered.

[2]Main points of s43A

a) When a reg prop of TT land gives an unreg mortgage to X
and then sells to P. The Qs is what protection does the P
have under s43A? (AIC v Courtenay) and (Jonray)

Under the section, the purchaser is deemed to have a legal

interest as if it was OST.

Void dealings: i.e. ones created by actual fraud: the true

owner can prevent registration and the purchaser may be
guilty of participatio criminis
No s43A protection.

Voidable dealings: The sale will go through if the purchaser

did not have previous notice. What if the purchaser did have
notice?
Then the earlier interest will prevail.
If the
purchaser gets to settlement before receiving notice and
satisfies the requirements of s43A, then he will override the
unreg interest

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b) Conditions to get the protection of s43A, the dealing must

be registrable immediate.
So if the purchaser gets a mortgage to buy the property, then the
mortgage is not protected by s43A becos it is not a direct dealing.
Both mortgages are simply competing equitable interests.
i) It has to be in formal order (AIC v Courtenay)
ii) It has to be accompanied by a duplicate or the cert of title
(Finlay v R&I)
iii) It must be immed registrable as in received and executed by
the reg prop; but transfers by direction are permitted whereas
discharge and recharges of morts are not becos two differ
parties BUT the Wilkes and Spooner principle will apply.
(Jonray)
iv) It has to be bona fide, ie cannot ignore notice: knowledge that
any registered interest exist itself shall not be imputed as
fraud ie mere notice is not the same as notice but even
constructive notice is enough to strike out s43A.

Wilkes v Spooner
A person who purchases land bona fide without notice can give
good title to a person with notice. Ie anyone who takes title
through a purchaser will prevail becos they are taking through the
bona fide purchaser (now become vendor) even if they themselves
have notice of a previous interest.
So if A buys land from B and C has an equitable interest in that
land which A does not know about, then A sells to D who has
notice of Cs interests, Ds interests (like As) will prevail as legal
interests even if given prior notice of Cs equit interest.

[a] What is the protection given by s43A?

IAC Finance v Courtenay 1961 HC p544 text

FACTS:
A as reg prop entered into a contract of sale to C. Then retained
the memorandum of transfer and title as mortee. Lodged the title
for regn but later withdrew and then org to sell the land to Denton
who was financed by IAC.

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Transfer to D and morts were lodged for regn and Cs brought a

suit to estab the right to be registered. Upon settlement, D
became aware of the Cs transaction. Did they have the protection
of s43A? What does the phrase legal estate mean in s 43A?

HELD:
Kitto J:
Legal estate means registered estate; it is as if the purchaser on
completing the purchase is to be treated as a registered interest,
ie have a deemed TT interest. The benefits of this according to
s43 of the Act is that a person who takes TT dealing need not be
concerned about notice they have received on unregistered
interests on the land. S43 was Torrens way of trying to abolish
notice in the TT system but the courts have consistently read down
this section as applying only to protecting a person who has
registered their interests.

Kitto thought that s43A was there to move back the benefits of the
Torrens system to completion of purchase rather than when
became registered.

E.g. if a proprietor of land creates an unregistered mortgage,

giving the M an equitable interest and then organises to sell the
land to P who has notice of Ms unregistered interests, according
to Kittos view, at the point of completion of sale, Ps interests
prevails over Ms unregistered interests as if deemed to be a
registered interest.

Taylor: like an old system purchaser; a person who has paid

his money and who has secured the registrable
memorandum of transfer will be protected against notice
received thereafter until registration but it does not have
the effect of giving him title.

Legal estate means the same as that in common law ie a

person who has acquired a legal estate in land bona fide
without prior notice of an equit interest. So, D had express
notice of Cs equitab interest in land, in which case, Ds legal
interests will be postponed to C.

The view of Taylor is the one later adopted by the HC

[b] The conditions of s43A?

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AIC v Courtney
If you get a deemed registered estate which is dealing
registerable what does this mean?

HC said it means dealings, which are registrable

immediately, ie instruments which can be registered by the
Registrar immediately. It has to be a dealing, which is in
order formally, received from and executed by the reg prop
and accompanied by the grant or cert of title or duplicate.

If the dealing requires some other dealing before being

registrable, then it is not a dealing registrable and s 43A does
not apply.
E.g. if a registered prop gives an unregistered M to someone
and then sells to a purchaser who gets the transfer and the
certificate of title.
P is not registered.
Q is how the
purchasers interests lie against a previous unregistered
interest? As long as the purchaser does not have notice of the
earlier interest, the purchaser prevails. But, to invoke the
provisions in s43A, the dealing also has to be a direct dealing
from the registered proprietor to the purchaser. Here they
both dealt with the registered proprietor so ok.

if the purchaser gave a mortgage to another who takes the

certificate of title to register the mortgage, then could not invoke
the protection of s43A against earlier unregistered mortgagor
because it is not a direct dealing from the registered proprietor.

Jonray v Partridge p533 text

FACTS:
Court of appeal had to deal with this case on the facts.
There were two purchasers. A, the reg prop of the land entered
into a contract to sell to M who even before the sale was
completed entered into a contract to sell to J.
At the settlement of As sale M proposes to hand the memorandum
of transfer over to J by direction, together with an unreg discharge
of mort. J refused to accept this and demanded that M becomes
registered and the discharge of mortgage is registered before he

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receives the transfer. J wanted to make sure his interests were

guaranteed.
Court considered two Qs
1) Can purchaser be compelled to accept a transfer by direction?
2) Can a purchaser be compelled to accept on settlement a discharge
of mortgage or insist on discharge being registered before
settlement.
Issue 1: Yes because no disadvantage to purchaser by accepting
transfers in this fashion.
Whilst dealing goes through a mediate person, it is a direct
transfer from the RP to P2; therefore P2 enjoys the protection of
s43A. He is entitled to ensure that the other parties are practicing
no fraud but in any event, his indefeasible title upon registration is
only subject to actual fraud ie fraud practiced by him.
Issue 2: Court of Appeal said yes.
Where the mortgage is concerned, there is no direct dealing since
the mortee is a differ person to the vendor by direction and the
title goes from RP to P1 to P2? C of A says that P2 still entitled to
some protection. Used Taylors interpretation of s43A, said that
once registered the title would be indefeasible; before settlement
if the earlier equit interest holder takes steps to assert his rights,
he would have priority; before registration and after settlement,
the purchaser has the same common law protection that an ord
legal interest gets when purchase for value without notice of a
prior equit interest. Applying Wilks v Spooner principles to this;
P2 could enjoy the immunity accord to vendor/mortor under the
section.

So long as P1 has no notice of the other interests when accepting

the registrable discharge, then P2 will not be affected by any other
notice. But as in Wilks, if P1 buys bona fide without notice, then
P2 will get good title even if put on notice.

BUT limitations to the successive effect:

1. P2 is not a dealing registrable so cannot get the full
protection of s43A but P2 gets the successive effects of
s43A
2. P2 is only protected if P1 is protected by s43A. So if P1
had notice of the unreg mortgage before purchasing,
then P1 would not be protected under s 43A, so neither
would P2. There has to be protection initially in order to
get a successive effect

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Semester 2 Notes

if the dealing or transfer to P1 is forged, then it will get

no protection under s 43 and therefore no protection to
P2.

Finlay v R&I
FACTS: accord to AIC v Courtenay mortor has to either have the cert
of title or have auth to use for the purposes of regn. Reg prop gives a
reg mort to A, unreg to B and anor unreg mort to C. C has no notice
of B and seeks to prevail over B by claiming s43 A.

Court said no becos C had no access to the cert of title and

therefore this was not a direct dealing within the meaning of
s43A of dealings registrab as interpreted in AIC and
Jonray

The other Qs was whether B becos a company charge, and

therefore a secured credit which would have been on anor
register, put C on constructive notice as a prudent searcher? A
charge is something less than a mortgage, ie dont have the power
to sell for default but can take to court to demand payment.

Court said no, you are not put on notice to search anything
other than the Torrens register.

The General Law of Landlord and Tenant.

Person granting lease is the lessor or landlord.

May assign the reversion
Person taking lease is known as the lessee or tenant.
May assign the lease.
May also sublet the premises for any period less than the
duration of the lease.
A lease for a period equal to or in excess of the
balance of the term is at law an assignment of the lease
Milmo v Carreras [1946]
Conversely a purported assignment less than the
balance of the term operates a sublease. Lonsdale Pty
Ltd v Carra [1974]
A yearly tenant has a sufficient reversion to enable a
sublease for a term of years Oxley v James (1844)
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Protected tenant ie by legislation may sublet for

longer than contractual lease Skelton v Harrison
[1975]

Specified period leases continue for a specified duration unless

determined earlier eg forfeiture or surrender of lease.
Periodic tenancy lasts for designated period and continues
thereafter for a further definite tern of same period unless one
party gives appropriate notice. Commonwealth Life v Anderson
(1945)
L

R
Assignment of reversion
25 Years

(Lease)

Assignment of Lease

A 10 Year
(Sublease)

Options to Renew
Usually exercisable only so long as there are no existing breached
of the lease covenants. They are strictly construed and may be lost
even in trivial breaches.
Requires lessor to serve notice on the lessee, specifying the breach
and stating the lessor proposes to treat the breach as precluding
the option. Lessee may then apply t court for order for relief
against the effect on the option. NSW ss133C-133G
Solicitors have a duty to explain the effects of unusual terms in
leases. Sykes v Midland Bank [1969]
Creation of Leases
Lease created by:
Express agreement
Implication of law
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Continuation of possession after determination of lease and

pays rent
Tenant entering possession of land within concluding
agreement as to lease terms but pays rent.
Agreement to enter in a lease at a later date. Does not create
of itself an a legal leasehold estate may create an equitable
leasehold.

Formal Requirements
Conveyancing Act 1919 (NSW)
S23B
1) No Assurance of land shall be valid to pass an interest at law
unless made by deed.
2) This section does not apply to:
(c) surrender by operation of law and a surrender which may , by
law, be effected without writing
(d) a lease of tenancy or other assurance not required by law to be
made in writing.
3) This section does not apply to land under the provision of the RPA
1900.
S23C
1) (a) no interest in land can be created or disposed of except in
writing signed by the person creating or conveying the same, or by
his agent thereunto lawfully authorised in writing, or by will, or by
operation of law.
S23D
1) All interests in land created by parol and not put in writing and
signed by the
person so creating the same, or by his agent
thereunto lawfully authorised in writing, shall have, not
withstanding any consideration having been given for the same,
the force and effect of interests at will only.
2) Nothing in this section or in sections 22B or 23C shall affect the
creation by parol of a lease at the best rent which can reasonably
be obtained without taking a fine taking effect in possession for a
term not exceeding 3 years with or without right for the lessee to
extend the term at the best rent which can reasonably be obtained
without taking a fine for any period which the term would not
exceed 3 years.
S23E Nothing in SS 23B, 23C or 23 D shall
(c) affect the right to acquire an interest in land by virtue of taking
possession.
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Agreement for a Lease

Agreements for leases in the future are enforceable at law as a
contract but does not of itself create a legal leasehold estate.
Equity, Walsh v Lonsdale (1882), may regard the parties to an
enforceable agreement for a lease (ie in writing or supported by
sufficient acts of part performance) as landlord and tenant. Need
specifically enforceable agreement - will need to be complete and
enforceable on the usual contractual principles.
Need either part performance or in writing.
Implied Tenancies at Law
Where a person went into possession of land as a tenant and paid
rent, an implied tenancy arose at common law.

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Dockrill v Cavanagh (1944) 45 SR (NSW) 78

Three types of leases: fixed terms, leases at will and leases
creating periodic tenancies.
Focus on s127.
Essentially indicates how old position prior to s127 existed.

New position is that any conditions, e.g. when possession was

entered and rent paid, which would have previously brought into
existence a lease from year to year shall bring into existence a
lease at will terminable by a months notice expiring at any time.
The phrase and no agreement as to its duration mens no
agreement as to its duration which, at common law, is
incorporated in the lease for all purposes.

Same situation can give rise to multiple leases

Implied tenancies at common law
Walsh v Lonsdale Lease
Rights under contract.

Agreement can be incorporated into implied tenancy.

Position at CL in NSW with respect to creation of leases is as follows:
Old System: A purported lease, to be operative at common law, must
be by deed if it is for period exceeding three years. (Conveyancing Act
s23B)
If it is for a period not exceeding three years it may be by deed: if its
is not by deed but is at best rent it its operative however made
whether written or oral (Conveyancing Act s23D)
Whenever a lease is intended what ever its period and is not
otherwise validly created at common law a lease at will, terminable by
a months notice, may arise at CL by the combined operation of
Conveyancing Act s127 and the implication of law arising from
possession and payment of rent. Conveyancing Act ss23C(1)(a) and
23E(c).
RPA 1900: A purported lease, to be operative, must be both in
the form of a memorandum of lease and duly registered if it for
a period longer than 3 yrs.
If for less than 3 yrs may be duly registered memorandum of lease if
this is not so may still be operative if made in writing duly signed
(Conveyancing Act s23C(1)(a))or if it is for best rent it is operative at
common law however made, oral or written (Conveyancing Act
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s23D(2)). An otherwise intended lease not validly created a lease at

will terminable by a months notice may arise at common law by s127
and implication of law arising from possession and payment of rent.

No agreement as to duration means that an agreement for duration

that is not in a lease that complies with legal formalities will be
irrelevant to consideration of whether s127(1) applies but will be
relevant as to whether the rent is referable to an aliquot part of a
year.

Moor v Dimond (1929) 43 CLR 105

Nature and derivation of the tenancy from year to year implied
from payment of rent.
Rent is compensation for the entire lease period and is not to be
interpreted as paying for distinct terminable periods.
Where the intention of the parties is to hold for a greater duration
than a yearly tenancy would give them and this intention fails due
to want of appropriate expression there is a presumption of a
tenancy from year to year.

Turner v York Motors Pty Ltd (1951) 85 CLR 55

Decided that a monthly tenancy was created rather than a yearly
tenancy.
Also s 127 did not apply since evidence did not support a
presumption in favour of a tenancy from year to year arising from
the payment of rent.

Where a lease for one year expires and the tenancy remains in
possession paying rent on a weekly basis the position is that the
tenancy is presumed to hold under a weekly tenancy not a tenancy
from year to year. Adler v Blackman [1953].

However if after holding over they pay rent with reference to the
period of the former tenancy the presumption is that the same

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periodic tenancy has been revived Burnham v Cartroll Musgrove

(1928)

Leitz Leeholme Stud Pty Ltd v Robinson [1977] 2 NSWLR 544

Agreement and tenancy at will are independent sources of rights.
Lease under RPA more than 3 yrs creates no legal interest unless
it is both registrable and registered. But the informal instrument
maybe treated as evidence of a formal lease, The unregistered
memo of lease operates merely as an agreement specifically
enforceable in equity but not of itself creating a legal term in land.
Entry into possession and payment of rent bring into existence a
common law tenancy upon such terms of the unregistered
memorandum as are applicable to the tenancy at will.
Contract is still enforceable even without lease.
Upon repudiation and subsequent acceptance the lessor may upon
such rescission become entitled to sure for damages for loss of
bargain.

Tenancy by Estoppel

It is a rule that a tenant is estopped from denying the landlords

title and a landlord may also be estopped from denying the tenants
title.
A landlord cannot claim that a lease is invalid on the ground that
the landlord lacked the title to create the lease. This may create a
tenancy by estoppel. The parties are estopped from deny in that a
tenancy was effectively created and thus as between themselves
and their successors in title, a landlord-tenant relationship will be
deemed to exist.
If a estopped landlord subsequently acquires an estate in land
sufficient to support the tenancy the acquisition is said to feed
the estoppel and in place of the tenancy by estoppel an actual
tenancy will spring up so that the tenant will now have a leasehold
interest in land.
A tenant who has been in possession of the lease premised for the
whole term of the lease is estopped from denying the landlords
title during the period of possession unless faced with a claim
based on title paramount.

Concurrent Leases

A landlord who has granted a lease to a tenant may grant another

lease in respect of the same land for the same or a different period.
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The landlord is said to have granted a lease of the reversion and to

have created concurrent leases.
A concurrent lease must be distinguished from a future or
reversionary lease which takes effect as a new lease after the
termination of the existing lease.

Substantive requirements
Exclusive Possession

Radaich v Smith (1959) 101 CLR 209

Licence v Lease: Exclusive possession.
Test is whether in actuality exclusive possession is conferred upon
the lessee regardless of wording in lease. It is generally decisive
with a few exceptional cases where exclusive possession has been
given without grant of a leasehold interest.
Intention is irrelevant.

When a person occupying part of the premises are considered

licensee. The test is usually said to be whether the person
granting the right of occupation retains general control of the
premises.

Pastoral Leases do not confer exclusive possession.

Duration
The CL rule is that a valid lease must be of a duration that is
certain or at lease capable of being rendered certain.
Prudential Assurance v London Residuary Body [1992]
Contract sufficient to make a lease should be certain in three
areas
Commencement of the lease
Continuance of it
End of it

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If the maximum period of the lease is certain the fact that it may
be determined within that period on the occurrence of an event
the timing of which is uncertain does not render the lease invalid.

It is permissible for the parties to a lease to combine the features

of a term of years and those of a periodic tenancy. Amad v Grant
(1947)

Reversionary Leases
These are leases which provide that the actual term of the lease is
not to commence until some future date.
Legislation however limits this. It provides that a term limited to
take effect more than 21 years form the date of the instrument
purporting to create it, shall be void, and any contract to create
such a term shall likewise be void. NSW s 120A

COVENANTS

Legislation may imply terms in lease but these are allowed to be

varied by express agreement of the parties.
E.g. NSW includes covenants by the lessee to pay rent and the
keep the premises in repair. Lessor is also give power to enter and
view the premises, execute repairs where the tenant is in default,
enter and carry out structural repairs required by public
authorities and to forfeit the lease in the even of breach by the
tenant. NSW ss 74, 84, 85
Any promise in a lease of agreement for lease.
Covenants my be derived from:
- Implied by law
- Implied by Statute
- By necessary implication
- Subject of express agreement between the parties.

Covenants in Law
Principle covenants on part of landlord are quiet enjoyment, not to
derogate from grant and a covenant that certain furnished dwelling
are fit for habitation.
The Tenant impliedly covenants top use the premises in a tenant like
manner and to yield up possession.

Quiet Enjoyment

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Malzy v Eichholz [1916] 2 KB 308

A landlord is not liable, under this covenant, merely because he

knows of what is being don and does not take any steps to prevent
what is being done. There must be something much more than
that.
There must be something which can fairly amount to his doing the
act complained of or allowing the act complained of, either by
actual participation by himself or his agents.
The possibility of a nuisance is not enough but if it were let for a
purpose that necessarily involved a nuisance then liability may be
possible.

A landlord is not liable is not under an express implied covenant

for quiet enjoyment for interference with the tenants possession of
the premises caused by the exercise of a title paramount. Jones v
Lavington [1903]

Covenant has been implied into a weekly tenancy. Lavender v Betts

[1942]. This case is also the case where the landlord removed all
the windows and doors.

Landlord may be liable even from actions authorised by Statutory

Authorities. JC Berndt Pty Ltd v Walsh [1969].

Clauses that attempt to exclude liability cannot exclude liability for

negligent acts nor can they exclude liability for acts by the
Landlord not relating to the premises actually demised to tenants.

Obligation not to Derogate From Grant

A landlord impliedly, if not expressly, covenants with the tenant not to

derogate from the grant.
Aldin v Latimer [1894]
Where a landlord demises part of his property for carrying on a
particular business he is bound to abstain from doing anything on
the remaining portion which would render the demised premises
unfit for carrying on such business in the way in which it is
ordinarily carries on. Does not extend to special branches of
business requiring extraordinary protection.
Access of air to drying sheds of timber.

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Lend lease v Zemlicka (1985)

Difference in scope between covenant of quiet enjoyment and
obligations not to derogate from grant were distinguished by Kirby
P.
Threats or other intolerable nuisances which offend the covenant
for quiet enjoyment and user of the retained part which makes the
demised premises ess fit for the purpose for which they were let.

Telex Pty Ltd v Thomas Cook Pty Ltd [1970]

An implied condition that lessor would not do anything to render
the premises unfit for the purpose for which they were demised. It
does not matter how such a condition is classified unless covenant
for quiet enjoyment were restricted to actual physical
interference.

Implied condition for fitness for habitation

Note that there is no general duty on the part of the landlord to

provide premises fit for habitation.

Cruise v Mount (683)

Statutory development: note that this case has been superseded
by s 25 Residential Tenancies Act 1987.

On landlords: S 25 implies into every residential tenancy

agreement a term requiring the LL to provide premises in a
reasonable state of cleanliness and fit for habitation by the
tenant, and to maintain them in a reasonable state of repair
throughout the tenancy.

The duty imposed on landlords extends the common law obligation

in two ways:

The duty includes the provision and maintenance of habitable

premises.

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They duty extends to the contents supplied by the LL.

On tenants: to adhere to ordinary standards of cleanliness and to

repair all damages caused by them.

However, this is statutory. In any event, the common law principle

in this case is restricted to furnished premises. The principle does
not extend to flats: flats are not furnished.

Liverpool City Council v Irwin (685)

There was an implied obligation on the LL to take reasonable care
to keep the (common) areas in reasonable repair and useability.
But generally, there is no common law obligation to repair.
This obligation is not absolute and the nature and extent of the
implied obligation will depend on the circumstances.
In this case, the court held that the LL had not breached the
covenant as the T caused the damage.

Hill v Harris (685)

There is no implied warranty on the part of the landlord arising
from a lease for a particular purpose that the premises could be
lawfully used for that purpose: the tenant should search the title to
find out any restrictions on usage. (caveat emptor).
S 52 Trade Practices Act may now affect a case such as this.

Duty to take reasonable care for the safety of occupants

Northern Sandblasting Pty Ltd v Harris (686)
In this case the court held that a duty in tort arose on the part of the
landlord to take reasonable care for the safety of occupants in the
premises.

Brennan and Gaudron held that engaging a licensed electrician to

repair the stove = discharge of duty but there was a breach of the
duty for failing to inspect the premises adequately before the
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tenants took possession. An inspection would have identified the

problem.

Toohey and McHugh: that the duty is non-delegable and personal.

Brennan CJ: L owes tortious duty of care toward occupants of

demised premises = standard of care required of occupiers
towards those who enter the premises by consent and for reward,
but this duty is limited to:
Defects in the premises at the time when the tenant is let into
possession;
Owed to the tenant and to those who, to the knowledge of the
landlord, are intended to occupy the premises under and for
the purpose of the tenancy.
The duty does not extend to defects in premises discoverable
only after the landlord parts with possession.

This tortious duty may be recognised as an implied term in the

lease. However, regardless, the fact that the duty in tort exists will
in effect bind the landlord as if there was an implied term to
ensure reasonable safety of occupants. Although it is important to
note that this duty in tort is different from the obligation to repair
in property law.

Obligation to repair (689)

On landlord: no general duty apart from furnished premises and

tortious duty to ensure occupants safety as in Northern
Sandblasting.
On tenants: obliged to use the premises in a tenant-like manner:
Warren v Keen.

Warren v Keen (689)

Obligation on tenant higher: obliged to do such jobs (or repairs) as
a reasonable tenant would do.
Sources of obligations: expressed in leases, implied by common
law (by necessity or business efficacy), implied by statute (s 84(1)
(b) Conveyancing Act).
S 84(1)(b): tenant must yield premises up in good and tenantable
repair having regard to their condition at the commencement of
the lease subject to exception of war damage, damage from fire,
flood, etc. The parties may expressly exclude this section.

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S 26 Residential Tenancies Act: a tenant must not intentionally or

negligently damage the premises and must keep it in a reasonable
state of cleanliness having regard to their condition at the start of
tenancy. (690)

Tenants obligation to yield up possession

At the determination of the lease, the T is bound to yield up vacant
possession to the LL: T must ensure that subtenants and other
occupiers have also vacated.
Covenants implied by statute
SS 74, 84-85 Conveyancing Act.
S 74: that covenants implied by statutes would apply unless
expressly negatived but in practice the court will be reluctant to
uphold a statutory implied covenant in the face of an express
covenant.
S 84(1)(a): covenants on the part of the tenant: pay rent unless
premises destroyed: this covenant is usually expressno need to
be implied.
S 84(1)(b): that the tenant is to yield up the premises in good and
tenantable repair.
S 85(1)(a): right to inspect by the LL.
S 85(1)(d): right of entry by LL to end lease if tenant commits
breach (eg late rent, covenant breaches). Note the complex notice
requirement: also, tenant protected by legislation: may apply to
court for relief against forfeiture.
Covenants by necessary implication (691)
To give effect to the intention of the parties gathered from the
instrument as a whole: Dillion v Nash.
Express covenants (691)
Common express covenants:
The covenant to repair
The covenant against assignment or subletting
The covenant as to user
The covenant to pay rent
Covenant to repair
Factors commonly taken into account in assessing the extent of the
repair obligation:

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The nature and locality of the premises, the age and the
condition of the premises at the commencement of the lease:
Proudfoot v Hart (692).

Note: distinction between renew and repair:

- Repair: make good defects.
- Renew: give LL something new, replacing old materials with
new ones.
- Therefore, a covenant to repair does not extend to giving
something new or replacing the whole or substantially the
whole of the demised premises: Lister v Lane.

The scope of a covenant to keep in repair

Proudfoot v Hart (692)
Covenant to keep premises in good and tenantable repair
imposes obligation to remedy all defects whether arising before or
after taking possession. T must yield up possession in good and
tenantable repair if covenanted to do so.
Held that good and tenantable repair will depend on the age,
character, and locality of the premises. The standard is that which
would make it reasonably fit for the occupation of a reasonably
minded T of the class who would be likely to take it. (An objective
test?) It need not be in perfect repair nor does it need to be in the
same condition as when the T first took possession.

Usually, a lessee is exempt from liability for damage caused by

reasonable wear and tear: Haskell v Marlow

Bailey v Paynter (693)

Any structural alteration without Ls consent = breach of covenant.
If T covenanted to keep premises in repair:
- The position of the original tenant: liable for all structural
alterations and repairs associated/ caused by him.
- The position of subsequent tenants: liable only for those
structural alterations or defects that give rise to visible
disrepair. The justification for this more limited obligation:
the subsequent tenant could not have known of any inherent
structural changes and defects at the time of lease.

The position is different with respect to residential tenancies.

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Inherent defects
Ravenseft Properties Ltd v Davstone (Holdings) Ltd (695)
A covenant to repair may include repairing inherent defects. The
test: depends on the degree and extent of the repair: if the remedy
involved substantial remodelling then it is not included in a
covenant to repair.
This is consistent with the repair vs renew concept. Repair does
NOT include acts of renewal. Ie it all depends on what is included
in the term repair.
Covenant to repair does not involve giving L something more/ new/
different to what the T took when he entered into the covenant.

Covenant against assignment or subletting (700)

Unless the lease provides otherwise, the lessee may assign or
sublet without the consent of the lessor: Commonwealth Life
(Amalgamated) Assurance Ltd v Anderson.
However, since LL usually want to retain control, they almost
invariably include a covenant in the lease prohibiting an
assignment or underletting by the tenant.
But LL can waive this covenant in the case of a specific agreement:
ss 120, 123.
It is implied in every such covenant that consent is not to be
withheld unreasonably: s 133B(1): this section operates
notwithstanding any express provision to the contrary in the lease.
Note that s 133B(1) has no operation where the covenant
absolutely prohibits assignments: Re Giles and McConachys
Lease.
T must seek Ls consent where such covenant is in place and give
reasonable time for approval: Richardson v Somas (702).
An assignment in breach of the covenant is effective to pass the
leasehold estate to the assignee, but if the lease permits the L to
forfeit upon breach this remedy may be exercised against the
assignee: Barrows v Isaacs.
These types of covenants are usually construed quite strictly
against the L. There will be no breach of the covenant unless the T
has voluntarily disposed of the leasehold inter vivos.
s133 permits bequeathment by will or the involuntary assignment
e.g. by bankruptcy.

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If L withholds consent: 2 courses for T to take:

Apply to court for a declaration that the L is withholding consent
unreasonably.
T may assign anyway. If L brings proceedings against T, court may
hold in favour of T: ie that L was withholding consent
unreasonably: but T has no right to recover against the L: Yared v
Spier.
If

T assigns without Ls consent: L can:

Apply for an injunction
Sue tenant for breach of covenant
Forfeit lease: this would be exercised against the assignee.

The assignee could:

Sue T for breach of contract if assignment forfeited by L.
Reasonableness of landlords refusal of consent:
Generally the Q is one of fact depending upon the circumstances:
Lee v K Carter. It has been held that it is unreasonable for the L to
withhold consent if any disadvantage incurred by the lessor on an
assignment is minimal and out of proportion to the harm that
would be suffered by the lessee if consent was refused:
International Drilling Fluids v Louisville Investments. (702).
Retail Leases Act 1994 (NSW): provides that the lessor may not
withhold consent to an assignment unless the assignee proposes to
change the use to which the shop is put or the proposed assignee
has inferior financial resources or retailing skills to those of the
assignor: s 39(1).

Covenant as to user (703)

Another means of control by the L: need to look at the lease to see

what uses are permitted: planning legislation may restrict uses.
Where a lease contains a covenant not to alter the use of the
premises without the Ls consent, the L cannot charge a premium
(fine) WRT to that consent. However, the L can demand payment
for the diminution in the value of the premises and legal expenses:
s133B.

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Covenant to pay rent (704)

L has common law right to recover a reasonable sum from any

person occupying the land as tenant for the use and occupation of
that land: Gibson v Kirk.
Rent need not be fixed, but may vary with circumstances: Walsh v
Lonsdale. But it must be capable of being rendered certain: Daniel
v Grace.
Note that an agreement as to rent is crucial to the enforceability of
an agreement to lease/ equitable lease: Walsh v Lonsdale.
S 84(1)CA: T must pay rent reserved in lease and must pay it on
time.

Enforceability of covenants after assignment

If a T covenanted on behalf of himself and successors in title:
Privity of contract
As between the original parties to a lease: privity of contract
means that all covenants specified in the lease (contract) will be
enforceable. Without assignment, there is also privity of estate
between the two parties. After assignment, contractual liability
remains even though privity of estate is terminated. All covenants
in lease remain contractually enforceable as between these
original parties after assignment. T will therefore be liable for
future breaches by assignees. But T can usually seek indemnity
from the assignee who breached the covenant.
Privity of estate
Exists between the parties who stand in the relationship of L and T,
not restricted to the original parties to the lease.
Upon assignment, there is only privity of estate, and no privity of
contract, hence only those covenants that touch and concern the
land are enforceable.
Where there is neither privity of contract or privity of estate
This would be the position of a subtenant (S). This means that the
head landlord will not be able to sue the subtenant for breaches of
covenants, and vice versa. But both L and S can sue T. L & T:
privity of contract, T&S: privity of estate; but L&S: no privity of
contract or estate.
Covenants that touch and concern the land
Options to renew = run with the land. Option to purchase does
NOT run with the land

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The option to purchase should be separately assigned as property,

to make it run with the land. S 53(3) RPA provides for
registration of options to purchase.

Assignment of the lease

Upon assignment of the lease the burden and benefit of covenants

which touched and concerned the land passed to the assignee:
Spencers Case (706).

Moule v Garrett (707)

T covenants to repair for the period of the lease regardless of
whether there will be an assignment or not (ie covenants for the
whole term of the lease). Question is whether the T is liable for
breaches by subsequent assignees? Can T be reimbursed by the
guilty assignee?
Since it is now recognised that there is privity of estate between
assignees and the L, the L can sue T in contract or sue A via privity
of estate should A breach a covenant. L may prefer to sue T if A
defaults on rent, assuming that A may not have the money.
If the T (assignor) gets sued for As default, then T may sue A to
recover the money. This applies to all subsequent As which are not
contractually linked with the T anymore. Ie A2 and A3, etc.
The court held that the indemnity that A2 extends to A1 extends all
the way back to T, such that T could sue to recover any damages
paid to L as a result of A2s breach. Note however that A1 cannot
be sued for A2s breach since A1 would not have committed any
legal default in that circumstance. Hence, intermediate As cannot
be sued by anyone for breaches of covenants by subsequent
assignee as they have committed no legal default and their privity
of estate with the L has been terminated upon assignment to the
subsequent assignee.
L

A1

A2

A3

If A3 is in breach, L can sue A3 directly or sue T. T can recover from

A3 but neither T nor L may sue A1 or A2.

where one person is compelled to pay damages by the legal

default of another, he is entitled to recover from the person by
whose default the damage was occasioned, the sum so paid.
Therefore, since T was sued by L as a result of the breach (legal
default) by A2 (the def), T could recover from A2.
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Note that the Moule v Garrett principle only applies to assignments

and NOT to subleases. There is no privity of estate or privity of
contract between sublessee and head landlord, since a sublease
does not terminate the privity of estate between the T and the L.
Note also that squatters are not assignees, hence T not liable for
breaches of covenants by squatters: Tichbourne v Weir.

Chronopoulos v Caltex Oil (709)

Assignment of a s 23D(2) lease: must be by deed: s 23B to be legal.
This is so even though the original lease was a s 23D(2) exception
to deed requirement. This is because s 23B requires that all grants
of interest in land must be by deed.

Equitable assignments and enforceability of covenants

If the assignment was equitable: ie not registered (Torrens) or not

by deed (Old system) then assignee merely has an equitable
interest and NO privity of estate and hence cannot be sued by the
landlord.
However, the benefit of the covenants may be passed to the
assignee by contract: this gives the assignee a right to sue the L
for breaches by the L.

Assignment of the reversion (710)

SS 117 & 118 CA: the benefit (s 117) and burden (s118) of every
covenant in the lease having reference to the subject matter of
the lease runs with the reversion.
The phrase having reference to the subject matter of the lease =
touch and concern the land: Davis v Town Properties Investment
Corp (710).

Re Hunters lease (710)

The obligations on the reversioner are limited to those that touch
and concern the land.

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In this case, the obligation on the original L to pay T 500 pounds

was held to be a personal/ collateral obligation and did not run
with the land, hence unenforceable against the subsequent
assignee of the reversion.

Ashmore v Eaton (712)

Facts:
Ashmore (landlord)
(registered)
T

Assignee

A1

of

the

reversion

A2 (Eaton)

Under the general legal principles, when you sell the land, you sell
the rights under the lease as well.
Accordingly, even though E defaulted on rent during Ashmores
ownership, upon assigning the reversion to the assignee, Ashmore
parts with the right to sue for unpaid rent: s 117 provides that all
benefits of covenants are passed on to the assignee.
However, in this case, clause 14 of the contract of assignment
specifies that the right to sue for unpaid rent was to remain with
Ashmore after the assignment. This is calculated to defeat the
operation of s 117.
Normally, it would have been permissible to expressly exclude the
operation of s117. However, the problem in this case is that cl14
represented an assignment of debt by the assignee to Ashmore,
and there are complicated technicalities involved with such an
assignment. Cl14 failed to meet these technicalities (namely to
notify Eaton) and failed for that reason only.

REMEDIES (pp716-749)
Remedies of the Landlord
Summary of remedies available to a landlord
Contractual (also available to a T)
Recission of contract

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Damages for loss of bargain

Proprietary
Compensation for the uses of the land
Rent in arrears
Mesne profits
Damages and injunction
Forfeiture
By re-entry
By service of a writ

Progressive Mailing House Pty Ltd v Tabali Pty Ltd (pp716-724)

(1985) HC Australia
Facts
Appellant was a tenant under an unregistered lease
Appellant didnt pay rent for the first two months of the lease, and
defaulted at a later stage
Respondent (landlord) sought possession and judgement for
outstanding rent + interest, mesne profits + damages
Mason J
The ordinary principles of contract law, including the termination
for repudiation or fundamental breach apply to leases: Highway
Properties Ltd v Kelly; Leitz Leeholme Stud Pty Ltd v Robinson.
The presence of an express provision for re-entry does not exclude
any other right of termination of the lease by the lessor
The respondent cannot recover damages for loss of bargain unless
repudiation or fundamental breach is established:
Repudiation: party evinces an intention to be no longer bound
by the contract or to fulfil the contract only in a manner
substantially inconsistent with his/her obligations
Fundamental Breach: A breach of a term that is so serious that
it deprives the other party of substantially the whole benefit of
the contract
The law of property treats tenants leniently. Mere breaches of
covenants on the part of the lessee do not amount to
repudiation of fundamental breach. The instances in which
courts have held that a lessee has repudiated a lease are cases
in which the lessee has abandoned possession, however
repudiatory conduct is not restricted to this.

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The appellants various breaches of covenants in addition to the

failure to pay rent amounted to repudiatory conduct.
Damages are recoverable even if the contract is not discharged,
however for an award of loss of bargain the defendant must no
longer be required to perform his/her contractual obligations.
The right to recover damages for loss of bargain consequent upon
repudiation or fundamental breach is present unless the lease
excludes it.

Brennan J
Under property law, once a lease has been determined, a lessee is
under no obligation to pay rent for the unexpired portion of the
lease: Jones v Carter. However a lessor is entitled to mesne profits
for the period in which the lessee remains in possession of the
property after the service of a writ for the recovery of possession:
Canas Property v K L Television Services Ltd. The lessor may
recover an amount equal to the rent in respect of that period.
The rules of contract apply to both registered and unregistered
memorandums of leases that do not convey a legal leasehold
interest: Leitz Leeholme Stud v Robinson
Breaches of covenant that show an intention to act only in a
manner substantially inconsistent with their obligations under the
lease amount to repudiatory conduct.
Also, contractual principles relating to anticipatory breach
apply to leases.
Anticipatory breach: a promise to breach.
If a lessor discharges a lease, he is entitled to recover the full
amount of the agreed rent for the full term, less an amount that
the jury thinks he/she is likely to derive as profits from use of the
land during the remainder of the term: Buchanan v Byrnes.
A lessor is required to mitigate loss.
Until a promisee accepts the repudiation, the contract and its
obligations remain on foot: McDonald v Denny Lascelles Ltd.
Unless the lessees interest is determined in some way, there is
no recission of the contract.
Where the lease is liable to forfeiture, as in the present case,
enforcing the forfeiture both determines the lessees interest
and constitutes the lessors election to accept the repudiation.
Conversely, a waiver of the forfeiture constitutes the lessors
election to keep the lease on foot.(p723)
Enforcement of forfeiture is not the only method of accepting
repudiation. In the present case, service of a statement of claim
determined the lessees interest and accepted the lessees
repudiation.
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Held
The appellants conduct amounted to repudiation.
The lessor was entitled to damages for loss of bargain.
The appeal was dismissed.

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J & S Chan Pty Ltd v McKenzie (p724)

(1994) SC(ACT)

If a landlord waives the repudiation and keeps the lease on foot,

he can commence proceedings for recovery of rent as it falls due.
If he chooses this course there is no duty to attempt re-letting on
behalf of the tenant to mitigate loss: J & S Chan Pty Ltd v
McKenzie

Shevill v Builders Licensing Board (p725)

(1982) HC Australia

If a landlord determines a lease pursuant to a re-entry clause for

the breach of covenants he will only be entitled to loss of bargain
damages if:
1. The parties have expressly agreed that damages for loss of
bargain will be available; or
2. The tenants breach has been repudiatory.
In Shevill v
Builders Licensing Board the tenants failure to pay rent fell
short of repudiatory conduct. The tenant showed that they
were trying to meet the rent payment.

Marshall v Council of the Shire of Snowy River (p726-728)

(1994) SCNSW CA
Facts
The appellant (tenant) entered into an agreement to lease for a
term of five years, with options to renew the lease.
The lease was not registered.
The tenant failed to pay rent for a period of 7 years.
The landlord sent a notice requiring the T to vacate the premises,
which was not complied with.
The landlord then sent the tenant a notice of the termination of the
statutory tenancy at will.
Conveyancing Act
s129(1) A right of re-entry under a provision in a lease shall not be
enforceable until the lessor serves on the lessee a notice
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(a) specifying the particular breach complained of

(b) requiring the tenant to remedy the breach if it is capable of
remedy
(c) requiring the tenant to pay compensation within a reasonable time
s128 Defines a lease for the purposes of s129 as including an
agreement for a lease where the lessee has become entitled to have
his lease granted, that is, equitable leases.
Kirby P
A landlord is required to give a tenant s129 notice for equitable
leases.
However Kirby P was not prepared to recognise an equitable
lease due to the tenants persistent refusal to pay rent.
Marshall only had a s127 implied tenancy at will.
This lease is terminable with 1 months notice.
s129 does is not relevant with respect to s127 leases.
Meagher JA
If you rely on the ordinary principles of contract law to terminate a
lease, s129 notice is not required.
But this view is probably not correct. The policy behind s129 is
to prevent the ending of leases by the lessor until the lessor
has given the tenant adequate notice. Section 129(10) states
that s129 notice cannot be expressly excluded.

Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (p728)
(1989) HC Australia

If a lessor repudiates his obligations under a lease, a tenant may

accept this repudiation and terminate the lease and recover loss of
bargain damages.

Summary of Difference Between Property and Contract Law Remedies

Property
No loss of bargain damages.
No duty to mitigate (lessor can leave the lease on foot and sue for
rent as it accrues).
Enforceable against an assignee (privity of estate).
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Lessor can forfeit the lease.

Contract
Loss of bargain damages.
Can
terminate
the
lease
for
repudiation/fundamental
breach/anticipatory breach.
A duty to mitigate
General right to rescind for both L and T.
Only enforceable against parties to the contract (privity of
contract) and not assignees.

Forfeiture of Lease
The Right to Forfeit (p733)
The lessor has no right to forfeit for breach of covenant unless the
lease expressly or impliedly gives that right, or the L has a
statutory right to do so. That is, the right arises from:
An express proviso for re-entry.
A statutory right under s85(1)(d) Landlord and Tenant Act
1899 NSW for the L to re-enter and determine the Ts interest
if the T is in arrears for rent for 1 month, or if the T defaults
for 2 months performing any stipulation in the lease, or T fails
to comply with a notice to repair.
Where the T breaches a covenant other than a covenant to pay
rent, s129 CA provides for the service of a notice as a condition to
the exercise of the Ls right.
The Procedure for Forfeiture (p733)
1. The L must show that the Ts breach has trigger the right to
forfeit.
2. The L must not waive the breach.
3. The L must comply with any formal requirements expressed in the
lease or by statute. This might include giving notice under s129
CA.
4. The L must exercise the right by: (a) Physically re-entering, or (b)
Serving an unequivocal writ for possession.
5. Even after the lease is validly forfeited, the T may approach the
court for relief against forfeiture.

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Moore v Ullcoats Mining Co Ltd (p729)

(1908) Chancery Division
Facts
L leased some mines to T for 23.5 years.
T covenanted to keep accounts and produce them to L upon
request, to work the mines, to allow L and his agents to inspect
the mines at reasonable times.
There was an express provision for forfeiture by re-entry on
breach by the T.
L died and his executors tried to inspect the mines but were
refused. They subsequently served notice on T that the lease had
been breached and claimed possession, mesne profits, an
injunction to restrain T from further working the mines, an order
permitting inspection, a receiver, damages and costs.
Issue
What is necessary to constitute re-entry?
Warrington J
A writ claiming possession simpliciter would be equivalent to a reentry.
- The writ must be an unequivocal demand for possession
- The Ls writ was equivocal. The claims for an injuction and
permission to inspect the mines are inconsistent with a
termination of the lease.
Where the lease expressly provides for re-entry, re-entry or the
issue of a writ are required.
- A notice to the T demanding possession does not constitute reentry.

Ex parte Whelan (p730)

(1986) Full Court of SCQld
Physical re-entry or re-entry by writ are not the exclusive methods
of effecting a forfeiture.
An unequivocal demand communicated to the T was sufficient to
effect re-entry.

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Jones v Carter (p731)

The effect of a provision for re-entry on breach is to render the
lease voidable at the option of the L. A breach will not render the
lease void unless it is expressly stated that way in the lease.

Elliot v Boynton (p731)

If a landlord decides to forfeit a lease upon a breach by a tenant
the lease is determined from the date that the L unequivocally
elects to forfeit the lease. From that day forth the T is a trespasser
liable to pay mesne profits.

Canas Property v K L Television Services (p732)

The re-entry is effected when the writ is issued and served.

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Waiver of Breach

If the landlord elect to treat the lease as sill in force the L is said to
waive the breach. The waiver may be express or implied.
It is implied if the L is aware of the Ts breach and performs some
act that clearly recognises the lease as still in effect, such as
accepting rent (that accrued after the event giving rise to the reentry) after learning of the breach: Lidsdale Nominees Pty Ltd v
Elkharadly (p732).
Once waiver occurs, the L cannot thereafter forfeit the lease for
the same breach.

Relief Against Forfeiture

A tenant has a right to relief against forfeiture even if the landlord

has a right to forfeiture. For example if the T pays their rent, the
courts will allow the T to keep possession. This reflects the view that
a forfeiture clause is basically a security for rent. Where a lease has
been forfeited for non-payment of rent and the rent has subsequently
been repaid, it is a very heavy burden for the L to demonstrate that
relief should not be granted.

Stiepor v Deviot Pty Ltd (p735-737)

(1977) NSWCA
Facts
The appellant was a T under an unregistered lease for 5 years
The L forfeited the lease pursuant to a power provided in the lease
for breaches to pay rent.
The L later paid the rent outstanding.
The T also showed a lack of care for the premises by storing
inflammable liquids in contravention with the Inflammable Liquids
Act 1915 on the premises.
Issue
What circumstances warrant refusal of relief when breaches
concerning payment of rent are remedied?
Moffitt P
Relief is granted on equitable principles. The court has an
unlimited discretion in awarding relief, and will consider the
conduct of the parties. That is, the court can consider other

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breaches (subject to s129 CA notice) in deciding whether to grant

relief.
- Equity can refuse relief in exceptional cases, such as in Gill v
Lewis, where the T was using the premises as a disorderly
house.
- Here, the conduct of the T in storing dangerous liquids showed
a disregard for the L, and it would be unjust to grant the Ts
application for relief.

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Hayes v Gunbola (p737)

(1986) SCNSW
Section 128 CA gives the court jurisdiction to grant relief from
forfeiture of an equitable lease.
Breaches of a lease requiring service of a notice under s129 CA
ought not be taken into account when considering relief against
forfeiture for non-payment of rent.
- Where s129 notice is required and defective, relief will be
granted.

Love v Gemma Nominees Pty Ltd (p739)

Burt CJ
The discretion to relieve against forfeiture is very broad.
It is unfair for one man to take advantage of anothers breach from
which he is not commensurately and irreparably damaged.
His Honour granted relief because the T had performed work on
the premises that resulted in an improvement in the premises that
outweighed the breach.

Ladies Sanctuary v Parramatta (p740)

Windeyer J
The statutory right to relief against forfeiture (s129(2)) is a broad
one.
A willful breach of a covenant is not determinative in granting
relief under either the statute or in equity, though it will be taken
into account.

Grounds for not Granting Relief

Conduct of the T, that is, unclean hands.
Repeatedly not paying rent.
Other breaches (for which notice has been given).
No ability to pay rent in the future.

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Mortgagees
With commercial leases, if a T has a mortgage on the lease, and the
T breaches the lease, the mortgagee can ask for relief against
forfeiture.

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Subtenants
If a T breaches a lease but a subtenant hasnt, a court may vest the
lease in the subtenant, if they can prove that they have not
participated in the breach: s130 CA; Imray v Oakshette.
Self-help (p742)
A landlord can enter the premises and physically retake possession
with a show of force, (after the termination or expiration of the lease)
but he/she runs the risk of being prosecuted.
The Plea of Set-off
Where the L breaches a covenant in the lease, the tenant may:
Bring an action at law for damages, or
Have rent in arrears set off, or
Withhold rent, and plead set-off when the L demands rent.

British Anzani Ltd v International Marine Management (UK) Ltd

(p745)
(1979) Queens Bench Division
Facts
A 99 year lease between L (plaintiffs) and T. A 21 year sublease to
the defendants.
The covenant for the L to make good any defects within 2 years
was to remain in force notwithstanding subletting.
The L claimed possession, unpaid rent and mesne profits from the
T who was 5 million pounds behind in rent.
The T admitted to owing rent, but argued for a set-off, based on
the L breach of the covenant to make good defects in the
premises.
- The condition of the floors in the two warehouses being leased
was poor.
Forbes J
Common Law Set-of (Taylor v Beal)
There are two circumstances at common law in which set-off against
rent owing may be granted:
1. The T has expended money on repairs to the demised premises
which the L has covenanted to carry out, but in breach has failed
to do so.

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2. The T has paid money at the request of the L in respect of some

obligation of the L connected with the land demised.
There are two conditions that must be satisfied:
1. The Ls obligation to repair does not arise until the T has notified
the L of the defect.
2. The sum has already been paid and is of a certain amount and the
L has acknowledged this or cannot dispute it.
Equitable Set-of
1. Is only available when common law set-off is unavailable.
2. Can be unliquidated damages (of an uncertain amount) and
remain unquantified until an award by a court is made.
3. The Ts cross claim must arise directly from the relationship of L
and T created by the lease.
- Here, the Ts claim was based on the agreement rather than
the sublease.
- However it is not necessary that the Ts claim arise under the
sublease or the same contract as the Ls claim.
- There is a close enough connection between the claim and the
cross claim in this case.
Held
The defendant was entitled to defend the plaintiffs claim by raising
equitable set-off.

Citibank v Simon Fredricks (p749)

The tenant was awarded damages against the lessor for breach of
covenant for quiet enjoyment, but before these damages were paid
the L defaulted under its mortgage and the mortgagee went into
possession.
Since the right to damages is a personal right, the T cannot defeat
the mortgagees statutory right to rent consequent upon taking
possession.

HK and Shanghai Banking Corp v Kloeckner (p749)

It is possible to exclude the right to set-off by clear and

unequivocal provision.

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LEASES AND THE TORRENS SYSTEM

The Torrens legislation contemplates the registration of leases, but

also creates specific exceptions to the principles of indefeasibility to
protect certain unregistered leases. The NSW Act provides for the
registered proprietor to execute a memorandum of lease in the
approved form where land is intended to be leased or demised for a
life or lives or for any term of years exceeding three years: NSW
s53(1).
The wording of the legislation generally does not make it clear
whether a lease for a term less than that specified may be registered.
In NSW the practice of registered short-term leases, although not
expressly authorised, has been judicially sanctioned: Parkinson v
Braham.
In NSW s53(3) provides specific protection to options to purchase
contained in leases.
The effect of an unregistered lease which is in registrable form, or
which would be registrable if in proper form, is determined according
to the general principles governing the enforceability of unregistered
interests in land under the Torrens system. An unregistered lease
may be enforceable against a registered proprietor of the land
because it comes within one of the statutory exceptions to
indefeasibility.
It is not clear whether such a lease should be
regarded as legal. A tenant holding under an unregistered lease,
which is not within the statutory exceptions, has an equitable interest
on the principle of Barry v Heider. Such an interest would be
defeated by the later registration of a transfer from the lessor but
would be protected by the lodging of a caveat.
The legislation creating exceptions to indefeasibility for unregistered
leases is quite different in NSW compared to the other states. In
NSW, s42(1)(d) provides that the registered proprietor holds the land
free from unregistered estates or interests except:
a tenancy whereunder the tenant is in possession or entitled to
immediate possession, and an agreement or
option for the
acquisition by such a tenant of a further term to commence at the
expiration of such a
tenancy, of which in either case the
registered proprietor before he became registered as proprietor
had
notice against which he was not protected:
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(i) The term for which the tenancy was created does not exceed
three years; and
(ii) In the case of such an agreement or option, the additional term
for which it provides would not, when added to the original
term, exceed three years.

United Starr-Bowkett Co-operative Building Society v Clyne (1967) 68

SR (NSW) 331
Facts:
Clyne was the registered proprietor for an estate in fee simple. At all
material times the applicant was the weekly tenant to Clyne of the
premises; but there was no registered lease. By memorandum of
mortgage duly registered, Clyne mortgaged the premises to the StarrBowkett Society (S) to secure an advance. The S had actual notice of
the existence of the tenancy at the time when it obtained a registrable
memorandum of mortgage or a memorandum which, when
appropriately signed by it or on its behalf, would be registrable.
Clyne having made default under his mortgage, the S sued out a writ
of ejectment in which he alone was named as defendant. Judgement
of possession was signed by default for want of appearance and a writ
of habere facias was issued (one where a successful plaintiff in
ejectment proceedings to put him in possession of the premises
recovered). These proceedings first came to the knowledge of the
tenant when he received notice to vacate the premises. He thereupon
applied for and obtained leave to appear and defend the action of
ejectment and now seeks to have the judgement and the writ of
habere facias set aside.
Issue: Whether in these circumstances the S is entitled to judgement
in ejectment against the tenant?
Sugerman JA: To answer the above question s42(d) and s43A must
be read in conjunction with each other.
The result, is that,
notwithstanding registration, the purchaser holds subject to a tenancy
for a term not exceeding three years created by a previous registered
proprietor (whereunder the tenant is in possession or entitled to
immediate possession) if he had notice of that tenancy before he
obtained a registrable instrument, or one which when appropriately
signed by him or on his behalf would be registrable i.e. before
completion of the purchase.
This is the situation in the present case. The S, having become
registered subject to the tenancy, by force of s42(d), could not bring
an action of ejectment in order to recover possession against him
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without first terminating his tenancy by the appropriate notice to quit

and that was not done. For that reason alone the judgement should be
set aside. His Honour held that a mortgagee of land under the Real
Property Act who is bound by a pre-existing tenancy is, or at the least
becomes on default by the mortgagor, a successor in title. Thus S
was bound by s62 of the Act and was unable to determine the
tenancies of the applicants except in accordance with the Act.

CONCURRENT OWNERSHIP
Joint Tenancy - essential features

Where two or more persons hold an interest in land simultaneously.

Two distinguishing features:
The right of survivorship (jus accrescendi)
When one person dies the whole of the estate remains with the
surviving joint tenants. The interest cannot be bequeathed or
disposed of by will, but can sever the joint tenancy during his lifetime.
This feature makes it necessary to determine the order in which joint
tenants died. If deaths are uncertain, they are presumed to occur in
order of seniority: s35 of the Conveyancing Act 1919 (NSW).
The four unities (all must be present for a joint tenancy to
exist)
1. Unity of possession: Each co-owner is entitled to possession of the
whole of the property, not exclusively for himself but to be enjoyed
together with the other joint tenants;
2. Unity of interest: The interest of each joint tenant must be the
same in nature, extent and duration;
3. Unity of title: All the joint tenants must derive their interests from
the same document or the same act;
4. Unity of time: The interests of all joint tenants must vest at the
same point in time. Two exceptions: any conveyance executed to a
trustee for beneficiaries or any disposition in a will may be given
rise to a joint tenancy in the grantees, even where unity of time
does not exist.

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Position at common law

At common law there is a presumption that an interest given to two or
more persons either by way of legacy or otherwise is joint unless
there are words of severance.
Statutory position
The common law presumption is reversed by s26(1) of the
Conveyancing Act 1919 (NSW). It has the effect of vesting the
beneficial interest in the property conveyed to persons as tenants in
common.
Torrens title land
The Registrar General requires instruments presented for registration
to state expressly whether co-owners are to take as joint tenants or
tenants in common.
Tenancy In Common - essential features
Basis of tenancy in common is the entitlement to only an undivided
share. Unity of possession must exist, the others can be absent. A
tenant in common may deal with his undivided share as he wishes.
There is no right of survivorship.

Creation of co-ownership - joint tenancy or tenancy in common?

At law
As stated, the common law leans in favour of joint tenancy. But this
has been reversed by legislation.
In Re Estate of Leaver, a will provided that the residue of the estate
was to be held on trust for A and B absolutely as joint tenants. Later,
the testator made a codicil to the will providing that he wished to
include C to share equally as a joint tenant with A and B, previously
named as joint tenants in the will. It was held that the use of the word
equally indicated that A, B and C should take as tenants in common.
The principle that tenancies in common should be favoured over joint
tenancies was applied in Delehunt v Carmody. In that case, a man and
a women were living together in a de-facto relationship for 31 years,
in a house registered under the mans name. Both had contributed
equally to the purchase price. In equity, the person with the legal title
holds on trust for himself and other contributors as joint tenants.
However, it was held that equity should follow the principles
established by the Conveyancing Act s26, so that the property was
held on trust for the man and de facto spouse as tenants in common.
On death of the man, his de facto received only her own half share
and his estranged wife was entitled to his half share in the property.
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Mitchell v Arblaster [1964-65] NSWR 119

Facts: Arblaster left estate to Mr and Mrs Mitchell, dated 22/10/60.
On 8/7/61 (after will before Arblasters death) Mr Mitchell died. On
18/6/63 Arblaster died.
Issue: Does Mrs Mitchell take whole interest of 1/2; the other 1/2
passing to Mr Mitchells next of kin?
Hardie J: Mr and Mrs Mitchell were appointed as the executors.
Plaintiffs argument can be supported either on the basis of the
residuary gift being a joint one or as a class gift. These arguments
were based on the gift being a joint one based on the provisions of
s26(2) of the Conveyancing Act 1919. It was contended that this subsection preserved the earlier presumption in favour of joint interests
for cases such as the present case.
However, Mr and Mrs Mitchell were beneficiaries as well as
executors. His Honour was satisfied that the sub-section has no
application to interest which they take as beneficiaries and not as
executors. Hence, gift was not appropriate to create a joint tenancy.

In NSW, the Torrens legislation provides that if two or more persons

are registered as joint proprietors of an estate or interest in land,
they are deemed to be entitled as joint tenants: s100 Real Property
Act 1900 (NSW).
The interaction between above and s26 of the Conveyancing Act
wasnt decided till decision in:
Hircock v Windsor Homes (Development No 3) Pty Ltd [1979] 1
NSWLR 501.
Facts: Mr and Mrs Hircock were protected tenants of a house which
the defendant wished to demolish in order to erect a block of home
units. The defendant agreed with the Hircocks, in a document under
seal, to grant them a lease of a unit in the building at a fixed rental,
for a term lasting for the lifetime of the survivor. In due course, a
lease from the defendant to the Hircocks was registered. The lease
was for 10 years with an option to renew for a further 10 years
subject to a proviso that the lease and any extension would determine
on the death of the survivor of the lessees. The option was exercisable
at the written request of the lessees. Mrs Hircock died during the
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first 10-year period and Mr Hircock purported to exercise the option

in his own right.
Issue: Whether he was entitled to do so as surviving joint lessee, or
whether the option could only be exercised with the participation of
the representatives of the estate of Mrs Hircock.
Hutley JA: Under s26, the parties were presumed to hold the
beneficial estate as tenants in common. This, however, was only a rule
of construction and the proper interpretation of the lease, taking into
account the surrounding circumstances, was that the option was to be
exercisable by the surviving lessee. Thus, the presumption
established by s26 was rebutted and the option had been effectively
exercised. Even if the lessees held as tenants in common, the option,
as a matter of construction, could be exercised by one of the lessees.
In equity
Malayan Credit Ltd v Jack Chia-MPH Ltd [1986] 2 WLR 590
Facts: United Overseas Land Ltd (U) purchased a building from
Malayan United Credit Properties Pty Ltd, which was a subsidiary of
Malayan Credit Ltd. Pursuant to a clause in the agreement for sale, U
leased the 7th floor of the building to Malayan Credit Ltd (the
defendant) and Jack Chia-MPH Ltd (the plaintiff). Prior to entry into
the lease, the plaintiff and defendant had arranged for allocation of
the floor space between them and for apportionment of liability for
rent. The parties went into occupation of the allocated areas and were
separately invoiced by United Overseas for their proportion of rents
and charges.
The Trial Judge held that the premises were disproportionately
divided between the parties, there was a tenancy in common in
unequal shares i.e. situation C. The Court of Appeal reversed the trial
judge, holding that there was a joint tenancy which, on later
severance, became a tenant in common in equal shares i.e. situation
A.
Lord Brightman: As the lease itself contains no words of severance,
it necessarily take effect as a grant to the lessees as joint tenants at
law. Regarding equitable position three alternatives exist:
Situation A: The lessees at the inception of the lease hold the
beneficial interest therein as joint tenant in equity;
Situation B: The lessees at the inception of the lease hold the
beneficial interest as tenants in common in equity in equal shares;

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Situation C: The lessees at the inception of the lease hold the

beneficial interest as tenants in common in equity in unequal shares.
From the facts of this case, a tenancy in common in unequal shares
can be seen. This is because of:
1. Lease was clearly taken to serve the separate commercial
interests of plaintiff and defendant;
2. Prior to grant of the lease the parties had settled between
themselves what space they would respectively occupy;
3. Measurement of allotted areas and divided rent liability;
4. Unequal apportionment of deposit;
5. Stamp duty and survey fees paid unequally;
6. Rent and service charges paid in unequal shares.
Appeal allowed.

Lake v Craddock (1733) 3 P Wms 158

Facts: In 1695 the defendant, Craddocks father, the plaintiff, Lake,
and three others took a conveyance of certain marshland. The price of
the land was 5145 pounds, of which Craddocks father contributed
1025. The conveyance to the 5 business partners did not employ
words of severance so that they took the legal estate as joint tenants.
About 5 years later, Craddocks father abandoned the enterprise
altogether and took no further part in it. In 1703 the remaining 4
partners purchased some neighbouring land as part of the scheme.
The purchase was made in their names, omitting Craddocks father.
Craddocks father died leaving the defendant Craddock his heir and
executor. Lake, one of the original partners, brought a bill against the
others for an account and division of the partnership estate.
Master of the Rolls: 5 partners, although joint tenants at law were
tenants in common in equity. This was because it would be unfair to
permit the principle of survivorship to operate in an undertaking
designed to produce a profit, since the partner who died first would
lose all his investment.

Another case in which equity will presume a tenancy in common,

despite the view of the common law, is where two or more persons
advance money on mortgage, whether in equal or unequal shares: Re
Jacksons. A surviving mortgagee who received repayment of the
whole of the money lent would hold the relevant portion of it in trust
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for the personal representative of the deceased mortgagee. Statute

now provides that a person dealing in good faith with a mortgagee is
entitled to assume that the mortgagees, if more than one, were
entitled to the money on a joint account and that the mortgagee can
give a valid receipt for the money: ss96A, 99 of the Conveyancing Act
1919 (NSW).
If two or more persons acquire an interest in land, having contributed
unequally to the purchase price, they are presumed in equity to hold
as tenants in common in proportion to their respective contributions:
Robinson v Preston.

Rights of enjoyment inter se of co-owners of land

Forgeard v Shanahan
Facts: Forgeard (F) and Shanahan (S) were join tenants of a property
in which they had lived during the course of their de facto
relationship. The relationship ended. Some years later, Fig. Brought
proceedings in the Supreme Court for the appointment of statutory
trustees for sale of the property and division of the proceeds under
Conveyancing Act 1919 (NSW) s66G. After the relationship broke
down, S had remained in occupation of the property with the children,
made mortgage payments as they fell due, and paid rates, insurance
and expenses for pest control.
Issue: Whether S was liable for an occupation rent and whether any
allowance should be made in her favour for the mortgage repayments,
rates, insurance and other expenses.
Meagher J (majority): Where one co-owner is in occupation and the
other not, but there has been no actual ouster or exclusion by the
other, the law treats the latter simply as someone who has chosen not
to exercise his legal right to occupy the land. He was not liable unless
he excluded his co-owner, in which case he rendered himself liable in
ejectment and for mesne profits, or if he constituted himself a bailiff,
in which event he would be liable in an action labour force account,
like any other bailiff.
As far as equity is concerned, an occupation fee is charged in a
partition suit or if the owner in occupation claims an allowance in
respect of improvements effected by him., in respect of the amount by
which the value of the property has been increased, not exceeding the
amount expended, ht e value to be ascertained at the
commencement of the action.

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Meagher J held that S was entitled to an allowance for 1/2 the cost of
the mortgage repayments and the rates, but not for 1/2 the costs of
insurance and pest control which were neither improvements to the
property nor payments for debts jointly owing. The basis for recovery
was that the mortgage payments and rates were payments made by
one debtor of a debt jointly owned by both debtors. He also held that
the claim for an occupational fee should not be allowed in excess of
the value of improvements.
Kirby J (dissenting): Both Fig. And S had proper complaints about
the adjustment if their claims. His Honour took the view that exercise
of the judicial discretion under s66G of the Conveyancing Act 1919
(NSW) was not restricted to the common law and equity principles
previously applied in action to partition the land.

Rights of occupation

Each co-owner has the right to possess and enjoy the whole of the
land. The right to possess and enjoy the whole of the land includes the
right to invite someone to live on the premises: Thrift v Thrift.

Luke v Luke (1936) 36 SR (NSW) 310

Facts: Laura and Ada Luke occupied land as tenants in common
under their fathers will from 1915 to 1920. Laura died interstate and
thereafter Ada remained in possession of the land. She did not
exclude Lauras next of kin and they did not attempt to exercise their
rights of possession. In a suit for administration of the fathers estate,
the administrator sought sale of the land and an order charging Ada
with an occupational rent.
Held: Ada was not chargeable, since she had nether excluded the
other co-owners, nor claimed an allowance for improvements. The
principle that a co-owner in sole occupation of property is not
normally chargeable for occupational rent was applied.
Compare above with:
Jones v Jones [1977] 1 WLR 438
Facts: The defendants father bought a house in his name. However,
the defendant contributed 1/4 of the purchase price and understood

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that his father intended to give him the house. After the fathers
death, his widow brought proceedings claiming possession of the
house.
Held: The defendant had a 1/4 beneficial interest as tenant in
common and accordingly refused to make an order for possession
against him. The widow commenced a second action, claiming 3/4 of a
fair rent or, alternatively the sale of the house. The Court of Appeal
held that one tenant in common could not claim rent from the other
even though that other occupied the whole. Moreover, the plaintiff
could not obtain an order for sale and division of proceeds, since the
fathers conduct led the son reasonably to believe he could stay in the
house for his lifetime.

Accounting for rents and profits

The Statute of Anne 1705 allowed a co-owner to bring an action of
account against the other co-owner for receiving more than their just
share or proportion of rents. In NSW, this has been repealed by the
Imperial Acts Application Act 1969 s8.
Compensation for repairs and improvements to land by one coowner
Brickwood v Young (1905) 2 CLR 387
Facts: Brickwood was a successor in title to the person who originally
built houses on the land. He was of the belief that he alone was
entitled to the property.
Issue: Was he entitled to have the value of improvements taken into
account in determining his share of the compensation paid when the
land was compulsorily acquired from himself and the other co-owners.
High Court: A co-owners right to recover compensation for
improvements was a defensive or passive equity which could only
be exercised in actions involving the rights of other co-owners. The
right to obtain compensation is an equitable charge attaching to the
land which can be exercised by a successor in title to the person
originally entitled to it. Thus, Brickwood was entitled to have the
value of the improvements taken into account in determining his
share of the compensation paid.

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The defensive equity in relation to compensation for improvements is

not enforceable against a bona fide purchaser of the legal estate in
general law land, for value without notice. If the land is under
Torrens, a purchaser who registered an interest in the land against
which the charge is enforceable will take free of it.
Squire v Rogers (1979) 27 ALR 330
Facts: The joint lessees of a lease in perpetuity of land in the Darwin
area applied for an order for sale and an account against the other
joint lessee. The plaintiff had not lived on the leasehold land for about
16 years. During this time, the defendant had made improvements to
the land to provide accommodation for visitors and to establish a
caravan park. Defendants expenditure accounted to $100,000 but
because of the devastation of Cyclone Tracey the increase in value
was only $15,000.
Issue: Is the compensation to be calculated by reference to the cost
of the improvements or to the value of the improvements at the time
the court of equity hears the matter?
Deane J: The plaintiff could only claim rents and profits attributable
to the defendants improvements if she were willing to make an
allowance for their cost, over and above that to which the defendant
was entitled; i.e. must credit them with $100,000 not $15,000!

Liability for waste

A co-owner can bring an action against another co-owner for
voluntary waste. In Ferguson v Miller, a co-owner was held to be
entitled to an injunction to prevent another co-owner from destroying
the character of a driveway by removing ornamental trees planted
along it, but not to an injunction to prevent a resealing and widening
of the driveway, which was regarded as an act of repair.
Dispositions of interests by co-owners
A joint tenant or tenant in common may sell or give his interest to
another person provided this does not interfere with the right of the
other co-owner to possession of the land. In Frieze v Unger it was
held that a joint tenant could grant a lease which would bind his own
undivided share. However, the lessee could not exclude other joint
tenants, who had not joined in the grant of the lease, from entering
into occupation of the premises with the lessee: see also Catanzariti v
Whitehouse.

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In Hedley v Roberts the question, in proceedings for an interlocutory

injunction, was whether one or two tenants in common could create
an easement, binding on the other tenant in common and successors
in title, under which a neighbour was permitted to erect and use a
toilet on the co-owner land. Harris J considered the correct principle
to be that:
a joint tenant, or a tenant in common, can encumber his interest in
the land so as to compel his co-owner to submit
to the
encumbrance if the encumbrance does not interfere with the right
of that co-owner...to possession of the land and his other rights
with respect to the land.
The easement in this case did not subject the other co-owner to undue
interference with her right to possession, and hence was enforceable
against the registered proprietors of the co-owned land,
notwithstanding that the easement was unregistered.
A co-owner may unilaterally determine a bare licence granted by
another co-owner: Annen v Rattee. A periodic tenancy held by joint
tenants can be determined, by any one of the joint tenants giving the
landlord a notice ending the tenancy: Crawley Borough Council v Ure.
In Elton v Cavill (No 2) it was held that a deed made between coowners of home units, which contained a clause prohibiting sale,
transfer, lease or licence of the whole or part of each co-owners
interest in the property without the written consent of the other coowners was an invalid restriction on alienation. However, if the clause
had provided that such consent could not be unreasonably withheld, it
would have been valid on the ground that it served the legitimate
purpose of giving the co-owners the right to control who should own
other shares in the same property.

Severance of joint tenancy

Corin v Patton (1990) 164 CLR 540
Facts: Patton and his deceased wife were joint registered proprietors
of land. When the joint tenant dies, the remaining joint tenants
become entitled to the property. However, a joint tenancy may be
severed if a joint tenant effectively disposes of the interest in the
property prior to death. Mrs Patton, who was terminally ill, wished to
sever joint tenancy between herself and husband. She executed a
transfer to her brother. At the same time, a deed of trust was
executed under which Corin agreed to hold the property on trust for
Mrs Patton. The transfer of the property and the deed of trust were
handed to Mrs Pattons solicitor. The land was subjected to an
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unregistered mortgage to the State Bank, which held the duplicate

CT. Mrs Patton did not take steps to have the duplicate CT produced
so that the transfer can be registered. She died shortly after the
execution of the transfer and the deed of trust.
Issue: Whether she had effectively disposed of her interest in the
land prior to her death, thus severing the joint tenancy and defeating
her husbands right of survivorship.
Mason CJ and McHugh J: A joint tenancy can be severed in three
ways:
1. an act of any one of the persons interested operating upon his own
share may create a severance as to that share;
2. mutual agreement; or
3. any course of dealings sufficient to intimate that the interests of all
were mutually treated as constituting a tenancy in common.
In this case, the second and third means are irrelevant.
Thus it is necessary to demonstrate that Mrs Patton effectively
alienated the property in equity. The issue is primarily whether or not
the property was alienated.
Deane J: At law, if the four unities are present, a joint tenancy exists.
At equity, where good conscious and actual or presumed intention
may prevail over common law rights and interests, and tenancy in
common is seen as a preferred instrument.
Two aspects of joint tenancy which would most likely attract the
operation of overriding equitable doctrine are:
1. the equality of the interests of joint tenants, regardless of intention
or contribution, in the undivided rights constituting ownership of
the relevant property; and
2. the right of accertion by survivorship until there is a sole owner of
the whole.
Where legal joint tenancy persists, severance in equity must involve
the creation of some distinct beneficial interests, i.e. the creation of a
trust for the joint tenants themselves as tenants in common in equal
shares or for different beneficiaries or beneficial shares.
In the present case the starting point is a general inquiry about
whether the effect of the operation of any applicable doctrine of
equity was, as between Mrs Patton and Mr Corin, to give rise to a
trust of any interest in the subject land. Equity will impose a trust of
the legal owners as joint tenants agree to terminate the joint tenancy.
Such an agreement can be express or implied from a course of
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dealing sufficient to intimate that the interests of all were mutually

treated as constituting a tenancy in common. There was no such
express or implied agreement in this case.
There are circumstances in which equity will impose a trust for
tenants in common of land held by legal joint tenants notwithstanding
that there has been no relevant mutual agreement, understanding,
dealing or intention between or on the part of the joint tenants. One
such example is the voluntary or involuntary alienation in equity of
one legal joint tenants interest in the land. Where such alienation has
occurred, equity will, subject to any overriding competing equities,
enforce a trust not only of the alienated interest but of the whole of
the land under which the legal joint tenants hold it as trustees for
tenants in common in equity. Ultimately, it must be found in the nature
of joint tenancy and the manner in which equity acts in such a case.
All members if the court held that the joint tenancy had not been
severed. Appeal dismissed.

Wright v Gibbons (1949) 78 CLR 313

Facts: Three sisters, Olinda, Ethel Rose and Bessie, were registered
as joint tenants. In an attempt to sever the joint tenancy, Olinda and
Ethel executed a single document in which each purported to transfer
to transfer their interest as joint tenants to the other. This document
was registered and thereafter the three sisters were registered as
tenants in common in equal shares.
High Court: The registration of the transfer was effective to bring
about a severance, so that Bessies right of survivorship was defeated.

The Torrens legislation permits the notation of the phrase no

survivorship to be entered on the register. The purpose of this
provision appears to be to prevent a trustee who holds the land as a
joint tenant from unilaterally disposing of his interest in the property.
The effect of the no survivorship notation is to prevent dealings with
the land otherwise than by all the registered proprietors without a
court order.
McInerney AJ in Lyons v Lyons held that a mortgage of Torrens
systems land by a joint tenant did not of itself sever the joint tenancy.
There is competing authority on whether equitable mortgages of
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general law land will sever a joint tenancy. Guthrie v ANZ Banking
Group Ltd answers to the negative. Frieze v Unger stated that it did
not sever but merely suspended it during the period of the lease.
The question whether a joint tenancy has been severed and right of
survivorship terminated often arises in cases of divorce and
separation. Re Pezzi was a case where H & W were divorced, but
were joint tenants. There was an agreement that the wife had sole
rights to occupy the home until the occurrence of certain events, and
then the house would be sold. This agreement was registered. H died.
W in occupation. Court applied the principle that joint tenant can be
severed by agreement between the parties and held that a share in
the property passed to the husbands estate.
Calabrese v Miuccio: Couple made an oral agreement dividing the
proceeds of a joint bank account unequally between them. The
husband withdrew consent to the Family Court sanctioning. The wife
died following this. The court held that the oral agreement severed
the joint tenancy. The agreement was not conditional upon approval
by the Family Court, although it would have ceased to operate if such
approval were not obtained. Hence, the agreement severed the joint
tenancy and the funds were held by the parties in unequal
proportions.
The making of an application for the division of property under s79 of
the Family Law Act 1975 (Cth) doesnt bring about a severance: In the
Marriage of Persalis. A final court order requiring one joint tenant to
transfer his interest to the other, or requiring the jointly owned
property to be sold and the proceeds equally divided, will effect a
severance: Re Johnston.
If there are two joint tenants, one of whom is murdered by another,
the principle that a wrongdoer should not be entitled to benefit from
his own crime will prevent the wrongdoer taking survivorship in
equity. At law, the principle of survivorship will operate, so that the
murderer will be entitled to the whole interest, but a constructive
trust will be imposed under which the legal owner will hold a 1/2
interest on trust for the deceased joint tenant. In Rasmanis v
Jurewitsch there were three joint tenants, a husband, a wife and a
third party. The husband was convicted of manslaughter for killing his
wife. Street J held that the husband and the third party remained joint
tenants at law, taking the wifes interest by survivorship. However, in
equity the husband could not benefit by surviving the wife. Thus, the
husband and the other joint tenant held in trust for themselves as
tenants in common in the proportions 1/3 and 2/3, with the husband
taking the 1/3 interest.

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Termination of Co-ownership
Land
Joint Tenancy
1. mutual agreement
2. alienation (disposition) which affects the share
a. death of joint tenants
b. determination of JT or TinC when one co-owner purchases or
otherwise acquires the interests of all other co-owners.
3. course of dealing (courts can infer that there was an implied
agreement to sever)
NSW RPA s 101: allows the RG to register a person as sole proprietor
of an estate or interest previously owned by joint tenants if all other
joint tenants die, or there is a determination or defeasance of the
estate or interest in land.
NSW Conveyancing Act, Pt IV Div 6: allows for the sale or partition of
co-owned property. NB that the court has the discretion to appoint
trustees for sale regardless of whether the applicant is entitled to call
for partition of the land.
s 66G(1): on the application of any one or more co-owners of property
(other than chattels), the court may appoint trustees of the property
to hold the property on the statutory trust for sale or on the statutory
trust for partition
Darrington v Caldbeck (1990) (NSW): an applicant under s 66G
must be a co-owner at the date of making the application. An
application by the executors of a deceased co-owner (prior to the
grant of probate of the deceased persons will) does not come
within the section. (would vest in the Public Trustee instead)
ANZ v Scott (1993) BPR: a bank m'ee, who had the m'ge granted
by the joint tenants, did not come within the section. If the m'ge
had been granted by only one of the co-owners, they would have
come within the section.
s 66F(2): states how the property held on the statutory trust FOR
SALE is to be divided up after sale (ie what the property held on the
statutory trust 'stands possessed of')
s 66G(4): states how the property held on the statutory trust FOR
PARTITION will be divided up. Also states that if a co-owner satisfies
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the court that partition would be more beneficial than sale, the court
may appoint trustees for partition, rather than sale. s66H: the trustee
under either sale or partition must consult the beneficiaries and give
effect to their wishes, so far as is practicable and consistent with the
general interest of the trust.
Woodson v Woodson (1996) NSW SC: in the case of an application for
appointment of trustees for sale there is an onus in favour of sale
Re McNamara and the Conveyancing Act (1961): the court cannot
refuse such an application as in Woodson on the grounds of hardship
or unfairness, but can refuse if the sale would breach a contractual or
fiduciary obligation or where it would be unconscionable for the
applicant to invoke the section
Williams v Legg (1993) NSW CA: refused an application for the
appointment of trustees for sale in which a half-interest was left to the
applicant by will because the gift was subject to an equitable
obligation to permit another person to reside on the property until
their death.
Nullagine Investments v WA Club (1992-3) HC: the co-owners had
agreed not to apply for partition or sale without first offering their
interest to the other co-owners at a mutually agreeable price. The HC
held that this was not in conflict with public policy.
Chattels - termination of co-ownership
Conveyancing Act (NSW) s 36A allows the court, upon application of
any person with a half share or more of the chattel/s, to order a
division of the chattel/s as the courts thinks fit
Ferrari v Beccaris (1979) NSW: 'division' includes monetary
division and thus the section implies that sale may be ordered by
the court in order to facilitate the division
Trustee Act (NSW) s 87: allows court to order a division of chattels
where the chattels are held by a trustee for beneficiaries in undivided
shares
Eng = England
HC = High Court
CL = Common Law

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Mortgages
Unsecured loans: in the event of default on the part of the debtor
leaves the creditor the remedy of a personal action for repayment of
the loan
Secured loans: the advantage is that in the event of a default on the
part of the debtor, the creditor is entitled to exercise remedies over
specified property of the debtor in preference to unsecured creditors
If the security upon which the loan is secured is worth less than
the debt, then the debt will only be secured up to that amount. The
rest of the debt will be unsecured.
Forms which a security transaction may take
Charge: Wrightson v McArthur and Hutchinsons (1919) Eng
Pledge: Joseph v Lyons (1884) Eng
Hire-purchase agreement: Hobson v Gorringe (1897) Eng
Floating charge: Latec Investments v Hotel Terrigal (in liq) (1965)
HC
Alternative to mortgage: selling land on a terms (or instalment)
contract of sale
Conveyance/transfer not completed until final payment
At Common Law
Must be by deed to be effectual (Conv. Act, s23B)
The right of the mortgagor to occupy the land is subject to a
provision in the mortgage document. (Ie since the mortgagee holds
the legal title under common law mortgages, it is the mortgagee
who has automatic right to occupy) (Dudley v Four Oaks)
An equitable mortgage may be created according to Walsh v
Lonsdale
Specifically enforceable agreement
NOT granted unless the loan has been advanced by the
mortgagee
Equity of redemption: the equitable estate which the mortgagor
retains in the land after execution of the mortgage. Creates an
equitable right to redeem so long as the loan is paid off in a certain
period. Equity may grant extra time for this payment.
A second or subsequent mortgage can only operate in equity: eg
Northern Counties of England Fire Insurance Co v Whipp (1884)

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Torrens System Mortgage

Re Forrest Trust; Trustees, Executors and Agency v Anson (1953) (SC
Vic)
Redemption through equity requires the mortgagor to fulfil his
obligations under the mortgage.
Mortgagor had defaulted. Mortgagee had exercised power of reentry and had been in possession of the land for more than 15
years
Property Law Act (Vic) (equivalent to our Conveyancing Act):
prohibits the bringing of an action by the mortgagor to redeem the
mortgage when the mortgagor has defaulted and the mortgagee
has been in possession for more than 15 years
Issue: whether the Statute of Limitations applied (in Vic, statute
barring occurs at 15 years; NSW = 12 years)
Submission: that general law does not apply to Torrens System
mortgages; action for redemption is a term of art which applies to CL
land and not TS land
HELD:
Common law does apply to Torrens system land. Action for
redemption is not a term of art specific to CL land, it is a general
action in equity.
Admittedly, there is a difference between CL and TS land as to
how the land is to be returned to the mortgagor: CL land requires
a reconveyance (b/c the mortgagee has the legal title); TS land
requires a discharge of mortgage (statutory provisions). Each of
these methods destroy the rights and powers of the mortgagee.
An action of redemption applies in either case and describes each
method aptly. There is no magic in the words which would restrict
the action CL land.
Thus the CL applies to TS land in creating the right of the
mortgagor to an action for redemption of the mortgage, so long as
the mortgagor has paid all monies due to the mortgagee (action of
equity: those who ask equity must do equity...)
Thus, in this case, the mortgagor could not redeem, b/c more that
15 years had lapsed since the mortgagee took possession upon
default of the mortgagor, and the mortgagor was thus statute
barred from bring an action for redemption
NB from this case: TS land is not necessarily land governed only by
the Real Property Act. If the RP Act does not specify on a particular
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aspect, then that aspect of the will will probably be governed by the
CL, as in this case

RPA s 56: where Torrens title is to be security for a debt, the owner
must execute an approved form of mortgage.
RPA s 57(1): "the mortgage, when registered, takes effect as a
security but does not operate as a transfer of the land mortgaged or
encumbered" (text, p938-9)
S 60: where there has been a default in repayment, the mortgagee
may enter into possession or bring proceedings before the Supreme
Court for an order of possession
S 75: certain covenants are implied in Torrens system mortgages
Forsyth v Blundell (1973): when resolving the priority of interests
between mortgagor (legal fee simple) and purchaser (equitable fee
simple) note the types of interests that they have.
Vukicevic v Alliance Acceptance (1987) NSW CA: whether a profit a
prendre would take priority over the mortgagee's rights where the
mortgage was registered before the p.a.p. HELD: That priority is
governed principally by the order of registration (RPA s36(9). The RG
must register the interests in the order that they are received (RPA s
36(5). Postponement of the priority of interests will occur where there
has been fraud or breach of in personam obligations.
Barry v Heider (1914) HC: an equitable mortgage may be created by
a specifically enforceable agreement to grant a mortgage and an
unregistered mortgage creates an equitable mortgage before
registration
A mortgage by deposit of the certificate of title creates an equitable
mortgage in Torrens system land
J & H Just (Holdings) v Bank of NSW an equitable mortgagee of
Torrens system land may protect the interest by lodging a caveat.
English, Scottish and Australian Bank v Phillips (1937) HC: a
mortgagor of Torrens system land remains proprietor of the legal
estate even after registration of the mortgage, the latter operating by
way of a statutory charge.
Follows that a second or subsequent mortgage, when registered,
operates in the same manner as a first mortgage to give the
mortgagee a legal interest by way of statutory charge

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1. Tacking
Mercantile Credits v Australia and NZ Banking Group (1988) SC SA
(FC)
Mortgagee 1 creates legal mortgage with A. Mortgagee 2 creates
equitable mortgage with A.
Can Mortgagee 1 'tack' an additional advance, made after the
creation of the second mortgage, to the legal mortgage? (The
advantage of this would be to secure Mortgagee 1's priority of
payment if A defaults)
General law: if Mortgagee 1 has no notice of the subsequent
mortgage, the advance can be 'tacked' onto M1, thereby securing
priority of Mortgagee 1's original loan AND the advance over that of
Mortgagee 2's loan. If Mortgagee 1 has notice of M2, then Mortgagee
1's priority is limited to the amount at which the mortgage stood on
the date of notice: Hopkinson v Rolt (Rule of equity based on
considerations of fairness and justice.)

A number of NSW courts have applied the general rule to RPA land
- "I am in agreement with that trend."

Thus, Torrens System land: same rule applies to TS land as applies to

common law land.

In this case, Mortgagee 1 had notice of M2 and so could not 'tack'

an advance onto M1. Thus, priority of payment was M1, M2,
M1(advance).

Rules against tacking are equitable and are founded on notions of

fairness and good conscience. Thus, there is no recourse to the
principle of indefeasibility in attempting to gain supremacy through
an 'all moneys' covenant in the mortgage.
Central Mortgage Registry v Donemore (1984) NSW SC: Actual notice
given to Mortgagee 1 (of the subsequent mortgage ) is required
before Mortgagee 1 will be prevented from tacking further advances
onto M1. In this case, lodgment of a caveat after registration of the
first mortgage did not constitute constructive notice of the later
unregistered mortgage, as the caveat's purpose is security.
NB obiter dicta from High Court in Sibbles v Highfern (1987)
stating that the notice could be ACTUAL OR CONSTRUCTIVE.

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Matzner v Clyde Securities (1975) NSW: Mortgagee 1 knew had

notice of 2 subsequent mortgages. Mortgagee 1 made further
advances upon default of Mortgagor to complete building. HELD:
Mortgagee 1 could have first priority for all advances made up to the
total amount of the principle sum, or the amount required to complete
the buildings, whichever less. Reasons: if buildings incomplete, then
the security is incomplete (in interest of all parties to finish them).
The advances made the value of the security higher, thus making the
security of the later mortgages better. Reasons rest on notions of
equity and fair dealing between the parties.
Chase Corp v North Sydney Brick and Tile (1994) NSW: the right to
tack is only available to the mortgagee who holds a legal (or
registered) interest.
Sussman v AGC (Advances) (1991): the mortgagor cannot set up an
encumbrance owned by the mortgagor against the rights of the
mortgagee. (eg in order to attempt to stop the mortgagee from
exercising his/her power of sale)
RPA s 36(9): priority between registered dealings is to be determined
according to the date of registration. (In Merc Credits v Aust & NZ
BG it was not a conflict of priority between registered dealings, but a
conflict of amount that each registered dealing was entitled to. The
priority of dealings was already determined (ie M1, M2))
RPA s 56A: allows the priority of mortgages to be changed according
to memorandum
RPA s 58(3): stipulates the manner in which moneys eventuating from
the exercise of a power of sale over land: 1. In payment of expenses of
selling
land,
2.
Mortgagees/encumbrancees,
3.
Mortgagor/encumbrancer

2.

Covenants in mortgages
Must specify the essential terms of the agreement: amount of loan,
rate of interest, date of repayment
Must provide a legal framework for the preservation of the
mortgagee's security
Torrens: mortgagor remains in possession of fee simple, so retains
right to possession
Common law: mortgagee holds fee simple, and so mortgagor has
no right to possession. Thus if the mortgagor is to remain in
possession, this must be expressly stated in the covenants

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Typical mortgage has provisions requiring the mortgagor to repair

and maintain, pay costs, may forbid mortgagor to lease or grant
further mortgages without permission of mortgagee
NSW Conveyancing Act s 81: the inclusion of certain words implies
covenants set out at length in the schedule
S 80: where the mortgage is made by deed or registered mortgage,
covenants to keep the premises in repair and to permit the
mortgagee to enter and view are implied (Common law or Torrens)
See also s78(1)(c) and s 75

Remedies of the mortgagee

Right to sue on Personal Covenants

There will usually be a provision in the mortgage stating that the
principal sum and interest are payable on a specific date. If not, it
may be implied by the common law (Sutton v Sutton (1833)),
and/or the principal sum will be repayable on demand
If the mortgagor defaults on payment by the specific date, the
mortgagee may take an action against the mortgagor for breach of
the covenant (derived from contractual obligations of the
mortgage, rather than the mortgagee's security interest).
The effect of a discharge of mortgage on the binding effects of the
personal covenants in a mortgage: depends upon the wording of
the form of discharge
In Groongal Pastoral v Falkiner (1924) (HC): registration of the
discharge vacated the charge over the land AND the liability of
the personal covenant.
In Grundy v Lee (1984) NSW SC (for this case, see also
[6.3.56]): the wording of the form of discharge was adequate to
free the land from the mortgage charge but was not apt to
relieve mortgagor from personal liability on the covenants. In
this case the discharge had been forged, and it was held that
even if the wording had been apt to nullify liability on the
personal covenants, the forged discharge would render the
instrument inoperative as a deed for the purposes of s 36(11) of
RPA.
Palmer v Hendrie (1859): mortgagee can only sue on the covenant
if the mortgagee has the ability to reconvey the property to the
mortgagor.
Exceptions: where the mortgagor exercises a power of sale
conferred either by the mortgage document or by statute
A case where the mortgagor would not be able to sue on the
covenant: where the mortgagee forecloses and later sells.

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Conv. Act (NSW) s 100: foreclosures extinguishes the right to

action on the covenant, and the equity of redemption
S 102: where the mortgagee obtains judgment on the personal
covenant, the interest of the mortgagor in the land cannot be
taken in execution of that judgment.
Baypoint P/L v Baker (1994) NSW SC: there was a clause in a
second mortgage that one of the co-mortgagor's could not be liable
on the personal covenant to repay any amount due. The court
accepted this provision, and when the first mortgagee exercised
their power of sale, the mortgagors ceased to have any equity of
redemption. There was no longer any security against which the
2nd mortgagee could proceed, and under the terms, the comortgagor was not liable on the personal covenants.
Power to Appoint a Receiver
C. Act, s 109(1)(c): where the mortgage is made by deed, the
mortgagee has power to appoint a receiver
C. Act, s 109(5): s 109 applies to RPAct land also
C. Act s 115A: receiver cannot be appointed until there has been
default
S 115(3): receiver is the agent of the mortgagor, (8): and regulates
the manner in which moneys by the receiver are to be applied

Power of Sale
RPA s 57(1): provides that the mortgage takes effect as a statutory
charge
RPA s 57(2): s 58 may be exercised so long as there has been a
default and there has been a notice served on the m'or
RPA s 57(3): says what constitutes a notice for the purposes of s 57(2)
- requires the m'or to observe the required payments
- state that unless the requirements of the notice are met within
one month, the power of sale will be exercised.
S 58(1): mortgagee has power of sale so long as s 57 has been met
S 58(2): provides protection to purchasers buying from m'ee
S 58A: parties may agree to dispense with notice requirements
S 59: requires RG to register the transfer of sale of the fee simple to
the m'ee
Websdale v S & JD Investments P/L (1991) (NSW CA)
Facts: a notice was served under s 57 RPA correctly stating the
default in payment of interest, but incorrectly stating that the full
amount of the principle was due and payable. The mortgagee
submitted that the notice was invalid

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Clarke JA:
Have to assess whether such a notice, ie making a correct
assertion and an incorrect assertion, still complies with s 57
The purpose of the notice is to bring to the mortgagor's attention
the existence of particular defaults, and to give them the
opportunity to remedy them. Thus, it cannot be said that a notice
requiring the mortgagor to remedy a non-existent default complies
with the section
Mir Bros v 1924 (1980) NSW was decided wrongly. It said that
such a mistake did not matter
Campbell v Commercial Banking of Sydney (1881) was correct: it
said that a mistake as to the quantity of the amount to be paid was
OK. A different section was considered in this case, but the
reasoning can be applied to s 57 b/c similar
S 57 requires the default in payment of interest or principle,
but does not require the particular amount outstanding to be
specified - thus, if the wrong amount is specified but the
correct defaults, the section is still be complied with
Thus, the notice did not comply with s 57
Held: a notice issued under RPA s 57 incorrectly stating that the full
principle is due when it is not, does not comply with s 57, and is thus
invalid.

Southern Goldfields Ltd v General Credits Ltd (1991) WA SC (FC)

This case concerns the courts finding a balance between the
mortgagee's interest in selling the property quickly (ie at a low price)
and the mortgagor's interest in securing the highest possible price, so
as to retain as much money as possible.
Facts: 1st mortgagee, upon default of mortgagor, exercised power of
sale. 2nd mortgagee brought action claiming 1st mortgagee had acted
in bad faith by selling the property at too low a price (alleged 1 st
mortgagee had not taken into account two valuations, and had set the
reserve price for the auction too low)
Held:
The reserve price is set anonymously and is irrelevant for the
purposes of the duties of the mortgagee. The reserve price has no
effect on the amounts bid (and thus has nothing to do with the
duty to act fairly in order to secure a fair price)

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The mortgagee has a duty to act 'bona fide'

Upheld Pendlebury: recklessness is 'a disregard for the
mortgagor's interest... not caring whether its fair and proper value
was obtained or not'
The sale was OK because it was made at the highest price bid at a
properly conducted and advertised auction. Whether a sale price
amounts to a wilful sacrifice of the interests of a mortgagor
depends upon the circumstances of the sale
No evidence that a better offer could be obtained if the
mortgagee rejected the highest bid at the auction - thus, it
would be a risk for the mortgagee to take to reject the bid in
hope of a better offer. The mortgagee is not required to take
this risk
The test is whether the mortgagee has acted bona fide. If the
mortgagee has, then even if the price obtained is below market
value, the sale is still OK

Cuckmere v Mutual Finance (1971) (English case)

Sets the higher standard of negligence for the breach of duty of the
mortgagee in failing to advertise that the land on sale had been
approved for the building of 100 flats as well as 35 houses.
States that there is sufficient proximity between the mortgagor and
mortgagee for the mortgagee to have a duty to take reasonable
care to obtain the true market value at the date of the sale.

Note: There is disagreement in the courts as to which test,

Pendlebury or Cuckmere, to apply, and whether there is any real
difference. There is general agreement that until the High Court
decides the issue, the Pendlebury test must apply (see, eg, Westpac
and Kingsland (1991) NSW).
In Forsyth v Blundell (1973), the HC had the opportunity to decide the
matter but declined, on the basis that the mortgagee's conduct was
unacceptable whatever the standard. Menzies J thought there was no
conflict between the two tests and that the duty to take reasonable
precautions to obtain a proper price was part of the duty to act in
good faith.

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Westpac Banking Corporation Ltd v Kingsland (1991) 26 NSWLR 700

Facts: The plaintiff bank appointed receivers and managers, pursuant
to an equitable charge. Neither the bank nor receivers exercised a
power of sale over the mortgagors asset. The defendant (as
guarantor) claimed bank should have accepted offer for purchase of
asset. It alleged that the bank exercised its power of sale, the liability
of the guarantor would have been extinguished.
Issue: Was there a duty to take reasonable care to obtain best price
for asset as was reasonably obtainable in the circumstances.
Cole J: referred to China and South Sea Bank Ltd and Tan Soon Gin
[1990] AC 536 which held that there is no duty owed by a mortgagee
to a guarantor to exercise the power of sale at any point in time. The
mortgagee may exercise that power if it so chooses and when it so
chooses. If a surety believes he is suffering damage by failure of the
mortgagee to exercise the power of sale in that the surety believes
that the value of the mortgaged property may decline, his entitlement
is to pay out the mortgage, obtain the security and sell it.
Failure to assess any offers prior to a decision having been taken to
exercise the power of sale cannot constitute a breach of duty.
Followed principle espoused in Pendlebury v Colonial Mutual
Assurance Society (1912) 13 CLR 676 which stated that the obligation
of a mortgagee exercising a power of sale is to act in good faith.

Commonwealth of Australia v Lee

Wheeler J: That a mortgagee had a duty to act with reasonable care
to ensure that the interest of the mortgagor in the property was not
sacrificed rather than in any sense understood in the law of
negligence.
Mortgages under old system Land: s. 103 in NSW empowers the
court to order the sale of the property in lieu of foreclosure or
redemption.

In Palk v Mortgage Services Funding [1993], the English Court of

Appeal held that it had an unfettered discretion to make an order for
sale.

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In NSW, the legislation does not apply to land under the provisions of
the Real Property Act 1900 and there is no equivalent provision under
the Torrens system.

Although a mortgagee is under no general duty to sell the security,

it is otherwise if the mortgagee chooses to exercise the power of
sale and in doing so, breaches the duty owed to the mortgagor and
sells to the purchaser who cannot complete sale. If the mortgagee
resells at a later date when the market has fallen it is not
appropriate for the mortgagee to deny the loss suffered by
recourse to the principle that the mortgagee is under no duty to
sell at a particular time Highton Enterprises P/L v BFC Finance
[1007] 1 QD R 168.

A mortgagee cannot exercise a power of sale to sell to himself or

herself: Farrar v Farrars Ltd (1888) 40 Ch D 395.

Although there is no absolute prohibition on a mortgagee selling to

a related individual/corporation, the courts tend to view it with
disfavour.

Australian and New Zealand Banking Group v Bangadilly Pastoral Co

P/L. (1978) 139 CLR 195
Hall P/L was controlled by Mr & Mrs Hall, contracted to buy property
from Talga P/L for $470,000. After contracts exchanged Hall P/L paid
Talga a deposit and part of purchase price. At the time, the property
was subject to first mortgage to Glenthorne P/L and a second one to
ANZ. Talga did not complete it as it was in financial difficulties and
was also in default under the mortgage to Glenthorne.
Hall P/L commenced proceedings for specific performance of the
contract with Talga. The Halls arranged for Halco P/L (which they
controlled) to purchase the first mortgage from Glenthorne. Halco
immediately exercised its power of sale as mortgagee by selling at
auction. The sale was just before Christmas with only limited
advertising. Prior to the auction, Bangadilly P/L another company
controlled by the Halls were advised of the reserve price of $250k and
purchased it for $265k at the auction.
Jacobs J: Found that, upon the facts, the mortgagee did not prefer the
obtaining of the best price on realisation of its security over any
desire that the closely associated company should purchase at a price
favourable to it.

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That there was a conflict of interest due to the fact that the
mortgagee and purchaser companies were associated through
common directorship.
Appeal allowed

Forsyth v Blundell (1973) 129 CLR 477

Blundell borrowed an amount from ASL secured by a mortgage over a
petrol station. Later he obtained a further loan from ASL secured by a
second mortgage over the same property. He defaulted under the
mortgage and the mortgagee took steps to exercise its power of sale.
ASL contracted to Shell Oil for $120,000. However ASL knew that
another oil company were going to offer up to $150k. ASL sold
without notifying the mortgagor or the other oil company.
Blundell applied for an injunction to restrain the completion of the
contract between ASL and Shell.
Walsh J: Found that there was a breach of duty on the part of ASL in
exercising its power of sale. Ordered that Shell be restrained from
completing the sale in that it was not a bona fide exercise of the
power of sale. An injunction.was granted.
That the facts demonstrated a reckless sacrificing of the interests of
the mortgagor although it is not shown there is an actual intention to
defraud him or that there is corruption or collusion with the
purchaser.
Noted that Blundells interest was a fee simple interest and prior in
time to any interest acquired by the purchaser.

Remedies available against mortgagee who exercises power of sale

wrongfully include: an order setting aside a sale, and where a
contract has not been entered into, an injunction restraining the
mortgagee form proceeding to sell.

See s 59, Real Property Act 1900 (NSW) re: position of purchaser
from mortgagee after registration.

The position of the purchaser before registration subject to

legislative provision. s 58(2) of Real Property Act (NSW) states:
No such purchaser shall be answerable for the loss,
misapplication, or non-application, or be obliged to see the

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application of the purchase money by him paid, nor shall be

concerned to inquire as to the fact of any default or notice
having been made or given as aforesaid.

Interval between completion of contract and registration of

transfer: In NSW - governed by s 43 of Real Property Act. Where a
purchaser completes the purchase from the mortgagee without
notice of any impropriety by the mortgagee they may be protected
from action by the mortgagor taken before registration of transfer.

The Rule against Perpetuities

The modern rule against perpetuities states that for an interest in
property to be valid, it must be certain to vest, if it vests at all, not
later than the expiration of the perpetuity period. The perpetuity
period expires 21 years after the death of the last life in being at the
date the interest was created - includes gestation period (e.g. Where
death of the life in being, his wife is pregnant and the gift calls for
child to attain 21 before vested interest is received).
A future interest is invalid if at the outset there is any possibility
that it will vest outside the perpetuity period.
The issue is determined according to the facts which exist at the
date the instrument creating the interest takes effect- that is, the
date of execution of a settlement inter vivos or at the date of
testators death.

Vesting of interests

The rule lays down period beyond which interests must not vest. A
remainder is vested (as opposed to contingent) if:
1. The precise identity of the person acquiring interest can be
ascertained and
2. No condition precedent to the interest falling into possession
apart from the determination o the prior particular estate.

A remainder (legal or equitable) can vest in interest before the

remainderman becomes entitled to possession while an executory
interest which operates by cutting short the prior particular estate
does not vest in interest until it falls into possession.

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Also, before an interest can be regarded as vested, the precise share

of each person who is to take an interest must be ascertained.

Presumption in favour of vesting

The courts lean in favour of construing an interest as vested since

an interest that is vested at the outset cannot breach the
perpetuities rule.

If a gift is subject to a condition precedent, which may become

operative outside the perpetuity period, the divesting condition
fails and the gift is indefeasibly vested.

The commencement of the perpetuity period

The period begins to run at the date of creation of the interest or
interest in question. Thus, if the interests are created by will, the
period begins to run at the date of the testators death.

If created inter vivos, the perpetuity period commences at the date

of delivery of the deed. In some circumstances, this means that an
interest created by will is valid while a similar interest created by
deed is invalid.
E.g. 8 Settlement inter vivos to T on trust for all the settlors
grandchildren born after the date of settlement. The gift to
gchildren fails at common law since the settlor may have more
children after settlement date. Therefore the children are not
lives in being for the purposes of the rule. It is possible that
children of settlor born after settlement date may themselves
have children who will be born outside the perpetuity period.
(settlors life + 21 years)
Since there is a possibility that the gift will vest outside the
perpetuity period it fails at the outset.
E.g. 9 Bequest to all my gchildren born after my death. This
gift does not infringe the rule. Since testator is unable to have
further children after death, the children alive at the time are
lives in being. Any gchildren born after the testator's death
must be born during the lifetime of
the lives in being
(testators children).
Thus, the gift cannot possibly vest outside the perpetuity period.

Trusts

In a trust which is revocable by the settlor the perpetuity period

does not begin to run until the death of the settlor or until the time
when he or she releases his or her power of revocation.
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The commencement periods above are unchanged by statute.

Lives in Being

At common law the perpetuity is a life or lives in being at the date

of the creation of the interest plus 21 years. The measuring lives
are the lives of persons either expressly mentioned or necessarily
implied as measuring lives in the instrument that creates the
interest.
E.g. 10 Settlement to T in fee simple on trust for B for life,
remainder on trust for Cs first child to attain 21 in fee simple.
The life in being is C. Th gift is valid since Cs first child to
attain 21 must occur within 21 years of Cs death. The gift
cannot vest outside perpetuity period.

Need only to find one life in being which will enable the gift to
comply with the rule.

There is no limitation on number of lives that may be selected,

provided it is not so numerous so that last survivor cannot be
ascertained.

Re Moore [1901]: The vesting was postponed until 21 years from the
death of the last survivor of all persons who shall be living at my
death. This was held to be void for uncertainty.

It is not necessary for lives in being to be ascertained at the date

instrument takes effect, so long as the measuring lives are in
existence at that date and they do not form part of a class capable
of increase (i.e. Must be closed class)

At common law, where a class of people expressly or impliedly

mentioned in gift may increase with more members, the lives of
members of that class actually in existence cannot count as lives in
being so as to validate the gift.
E.g. 11 Settlement to T in trust for the first grandchild of B to
attain 21. This is void unless, at the date the instrument is
executed, either:
1. a grandchild has reached 21, thereby attaining a vested
interestor
2. B is dead.
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If B is alive at the date, the lives of existing children cannot be

used for the rule against perpetuities since it is not a closed
class. Its possible that B will have a further child whose own
child (Bs grandchild) might attain 21 outside the perpetuity
period, yet be the first grandchild to reach 21. However if B is
dead, therell be no further children and thus the children
living are the lives in being. It follows that any child born to Bs
children to attain 21 must be within perpetuity period,
Harris v King is not examinable.

Where the vesting of an interest is expressly make to depend on

one or two or more expressed contingencies happening, one of
which must occur within the perpetuity period, and the other
which may not occur within that period, the gift is valid if the first
contingency occurs but invalid if the second or other contingencies
occur. This is one of the exceptions to the principle that the
perpetuity period deals with possibilities rather than actual
occurrences. Here, the court will wait and see.

At common law, it is presumed that a living person is capable of

having children, regardless of his/her age or physical condition.
(see examples p627).

In NSW and ACT, since the perpetuity period is fixed at 80 years

with no option for selection of the common law period of a life plus
21 years there is no opportunity for problems of unborn widows,
fertile octogenarians and precocious toddlers to arise.

The Magic Gravel Pits case is Re Wood [1894].

The testator owned gravel pits, devised to trustees on trust to
work them until they were exhausted and then to sell then and
divide proceeds among the testators issue then living.
If the pits had been worked at same rate as in testators lifetime,
they would have been exhausted four yrs from date of death. In
fact, they were exhausted 6 yrs after death. Court of Appeal held
the gift was invalid, since the rule was concerned with possibilities
and it was possible that they might not be exhausted until after
the expiration of the perpetuity period.

The Statutory wait and see rule:

The common law rule is concerned with the possibility that
interest may vest outside the perpetuity period and invalidates any
disposition which involves this possibility.

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The reforming legislation overturns the common law rule. It holds

that a limitation is to be treated as valid until it becomes clear that
the vesting, if it is to occur, must do so outside the perpetuity
period. If in fact the interest vests within the permitted time it will
be valid.
(NSW s 8)

Reduction of age contingencies:

At common law, a disposition may infringe the rule against
perpetuities solely because the beneficiary is required to attain an
age greater than 21. Legislation now provides for reduction of the
stipulated age in these circumstances.
NSW s 9 provides that the age shall be read down to the greatest
age that would, if substituted for the specified age, save the
provision from the rule.

In NSW, the wait and see provision is applied before the age
reduction provision (see NSW s10.)

Class gifts:
Due to the operation of the all or nothing rule if, when the
instrument containing a disposition to a class takes effect, if it is
possible that the interest of one or more members will vest outside
the perpetuity period, then the disposition fails. (See examples on
p630).

The Class Closing rules:

The all or nothing rule can be mitigated by limiting the width of the
class.
The class may close naturally. For example, a testator bequeaths
the property to the children of B who attain 25 and B predeceases
the testator, the bequest is valid. The beneficiaries are all lives in
being, each of whom must attain a vested interest, if at all, within
his or her own lifetime.
The class may close artificially. Rules of construction enables the
court to close the class to after-born prospective members. This
effectively validated a gift that would otherwise infringe the
perpetuity rule.
Andrews v Partington (1791)
Where a gift is made to a class, the class closes to after-born
members as soon as one member of the class is entitled to call for his
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or her share. All members born up to this date are eligible for the
inclusion in the class. All potential members born after this date are
excluded.
Since the rule is one for construction, it can always be excluded by
the expression of a contrary intention.
(See examples on p632).
Reform of the all-or- nothing rule:
A class gift which would infringe the rule against perpetuities at
common law may be saved by one or more of the statutory reforms.
The application of the wait and see provision will save those class
gifts which actually do vest within the perpetuity period. If a class
gift containing an age contingency fails to vest within the
perpetuity period, reduction of the specified age may validate the
gift.
NSW s 9(4) abrogates the all or nothing rule in the case where the
all or nothing rule would lead to failure of the whole gift if some
members still do not attain a vested interest within the perpetuity
period.
Subsequent interests:
If an interest is void because it infringes the perpetuity rule, are
subsequent interests valid?
Where the subsequent interest is dependent on the prior (invalid)
interest, the subsequent interest will be invalid.
Eg: Bequest to T on trust for Bs first son to marry, but if B shall have
no such son, then to C. At the testators death, B is alive and has no
married son. The bequest to Bs son is invalid, as is the bequest to C
for the same reason.
Tidex v Trustees, Executors and Agency Co Ltd [1971] 2 NSWLR 453.
Where a limitation is dependent or expectant upon a prior limitation
which is void for remoteness that dependent or expectant limitation is
also invalid.
This rule has been abolished by reforming legislation (NSW s 17).
E.g. Bequest to T on trust for B for life then on trust for Bs
grandchildren but if there are no grandchildren, on trust for C. At
the testators death there are no grandchildren. At common law,
under rule relating to dependant limitations, the gift to C fails too.
Under the legislation, the wait and see provision applies. If no

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grandchildren born within perpetuity period, the gift to them will

fail. The gift to C will be saved by the abolition of the dependent
limitations rule.

The Perpetuities Act 1984 (NSW)

S4 the legislation does not apply retrospectively. A will coming into

effect after the commencement of the Act but executed before it will
not be invalidated but the legislation.
Despite the ambiguity, the better view appears that the disposition is
first examined applying the statute, and only if it invalidated under
the statute, the common law is applied.
(See examples p641).

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