Australian property law : cases and materials [Fifth edition.] 9780455237886, 0455237883

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AUSTRALIAN PROPERTY LAW Cases and Materials

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AUSTRALIAN PROPERTY LAW: CASES AND MATERIALS ANTHONY P MOORE JD (Chicago), LLM (Melb) Adjunct Associate Professor of Law, Adelaide and Flinders Universities

SCOTT GRATTAN BA LLB (Hons) (Macquarie), LLM (British Columbia), PhD (UNSW) Senior Lecturer, University of Sydney

LYNDEN GRIGGS LLB (Hons), LLM by Research (Tasmania) Fellow, Higher Education Research and Development Society of Australasia Senior Lecturer, University of Tasmania

FIFTH EDITION

LAWBOOK CO.2016

Published in Sydney by Thomson Reuters (Professional) Australia Limited ABN 64 058 914 668 19 Harris Street, Pyrmont, NSW First edition ............................................... Second edition .......................................... Third edition ............................................. Fourth edition ...........................................

1996 2003 2007 2011

National Library of Australia Cataloguing-in-Publication entry Australian property law : cases and materials / Anthony Moore, Scott Grattan and Lynden Griggs. 5th edition. 9780455237886 (pbk.) Includes index. Real property – Australia. Real property – Australia – Cases. 346.94043 © 2016 Thomson Reuters (Professional) Australia Limited This publication is copyright. Other than for the purposes of and subject to the conditions prescribed under the Copyright Act, no part of it may in any form or by any means (electronic, mechanical, microcopying, photocopying, recording or otherwise) be reproduced, stored in a retrieval system or transmitted without prior written permission. Inquiries should be addressed to the publishers. All legislative material herein is reproduced by permission but does not purport to be the official or authorised version. It is subject to Commonwealth of Australia copyright. The Copyright Act 1968 permits certain reproduction and publication of Commonwealth legislation. In particular, s 182A of the Act enables a complete copy to be made by or on behalf of a particular person. For reproduction or publication beyond that permitted by the Act, permission should be sought in writing. Requests should be submitted online at www.ag.gov.au/cca, faxed to (02) 6250 5989 or mailed to Commonwealth Copyright Administration, Attorney-General’s Department, Robert Garran Offices, National Circuit, Barton ACT 2600. Editor: Zoe Haynes Product Developer: Vickie Ma Publisher: Robert Wilson Printed by Ligare Pty Ltd, Riverwood, NSW

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PREFACE The fifth edition of this book continues to provide a comprehensive collection of materials to enable any student of property law in Australia to gain a knowledge and understanding of that law. Property law is a required area of practice for admission to the legal profession in Australia, with the description for admission purposes encompassing both real and personal property. This book seeks to meet those admission needs through its analysis and coverage of real and personal property. The book also recognises that property law students in Australia undertake a wide variety of courses in terms of length and scope. For shorter courses, key chapters can be selected for that course and the material is self-sufficient. For longer courses all material traditionally included is covered. A basis is provided for specialist courses in areas such as native title, housing or land dealings. The book deals equally with all eight Australian jurisdictions so that reference is made to statutes and cases for each jurisdiction. The book is divided into five parts which examine the nature of property, obtaining title to property (including the range of property interests and the way in which ownership is obtained), property dealings (sales and gifts), coping with shared property interests (including co-ownership and rights of holders of lesser interests such as tenants) and relations between neighbouring land-holders. The book emphasises the role of the Torrens system in Australian land law, not only as the means for the transfer of land but as the definitional basis of all interests in land. This edition marks an evolution in the authorship. Adrian Bradbrook and Susan MacCallum have ended their ongoing involvement, with authorship now divided between Tony Moore (University of Adelaide; Flinders University), Scott Grattan (University of Sydney) and Lynden Griggs (University of Tasmania). The current authors are indebted to the work and scholarship of Adrian and Susan, whose significant intellectual contribution is acknowledged. Again all current authors accept responsibility for the totality of the work. In turn the authors have personal debts to their partners and families. The work could not have been accomplished without the support of the facilities, colleagues and students of the home universities. The publishers have also given unstinting support to the continuation of the book. Some substantive corrections have flowed from reader comments and modern technology assists this welcome feedback. Again this work fully covers and explains all material but is designed to be able to be used in conjunction with Australian Real Property Law whose publication precedes it by six months. The authors continue to seek to develop a critical understanding from the knowledge provided by these materials. The authors no longer have to argue that property law has an influence beyond the means of transferring land and other items from one person to another. Since the first edition the role of property law as an essential part of a free market economy has been almost universally accepted and property concepts have been relied upon to deliver energy supplies, ration water between human and environmental claims and to reduce carbon emissions. At the same time, inequalities of wealth in Australian and global society have increased, and through the selection of materials embodied in this text, we intend students to consider matters such as the relationship between those events.

ANTHONY MOORE SCOTT GRATTAN LYNDEN GRIGGS March 2016

v

TABLE OF CONTENTS Preface ............................................................................................................................................. v Table of Cases .................................................................................................................................. ix Table of Statutes ........................................................................................................................ xxxvii

Part 1: Context of Property Law Chapter 1: Concept of Property ................................................................................ 3

Part 2: Title to Goods and Land Chapter 2: Foundational Concepts of Land Ownership: Tenures, Estates, Trusts and Priorities ............................................................................. 91 Chapter 3: Possession ............................................................................................. 149 Chapter 4: Title to Personal Property .................................................................. 201 Chapter 5: The Torrens System: The Principle of Indefeasibility ..................... 257 Chapter 6: Unregistered Interests in Torrens Land: Nature and Priorities .... 407 Chapter 7: Public Lands and Land Rights of Indigenous Peoples .................... 511 Chapter 8: Security Interests in Land and Personal Property .......................... 595

Part 3: Dealings in Goods and Land Chapter 9: Dispositions of Land and Goods ........................................................ 659 Chapter 10: Defeasible Transactions .................................................................... 735

Part 4: Division of Ownership of Goods and Land Chapter 11: Future Interests and Perpetuities ................................................... 803 Chapter 12: Co-ownership ..................................................................................... 845 Chapter 13: Management Where Ownership is Divided ................................... 917 Chapter 14: Leases .................................................................................................. 971 Chapter 15: Housing ............................................................................................. 1065

vii

Australian Property Law: Cases and Materials

Part 5: Relations Between Neighbouring Landholders Chapter 16: Scope and Meaning of Real Property ........................................... 1129 Chapter 17: Easements and Related Interests .................................................. 1183 Chapter 18: Land Use Agreements: Restrictive and Positive Covenants ...... 1271 Index ..................................................................... .................................................................. 1341

viii

TABLE OF CASES [Where an extract from a case is reproduced the citation and paragraph number at which the extract appears is in bold.] A AG(CQ) Pty Ltd v A&T Promotions Pty Ltd [2010] QCA 83 ...................... 2.135, 2.140, 6.90 ANZ Banking Group Ltd v Alirezai (2004) Q ConvR 54-601; [2004] QCA 6 .................. 5.265, 10.115 ANZ Banking Group Ltd v Barns (1994) 13 ACSR 592 ................................................................ 5.85 ANZ Banking Group Ltd v Dzienciol [2001] WASC 305 ............................................................. 5.265 ANZ Banking Group Ltd v Widin (1990) 102 ALR 289 .................................................... 9.35 Abbiss v Burney (1881) LR 17 Ch D 211 ................................................................................... 11.55 Abela v Public Trustee [1983] 1 NSWLR 308 ........................................................................... 12.185 Abigail v Lapin [1934] AC 491; (1934) 51 CLR 58 .................. 6.90, 6.95, 6.100, 6.105, 6.155 Abjornson v Urban Newspapers Ltd [1989] WAR 191 ................................................................. 9.25 Accordent Pty Ltd & Portellos v Breismark Nominees Pty Ltd (2008) 101 SASR 286 ................ 14.235 Ace Property Holdings Pty Ltd v Australian Postal Corporation [2010] QCA 55 ....................... 14.260 Ackroyd v Smith (1850) 10 CB 164; 138 ER 68 ........................................................................ 17.20 Adami v Lincoln Grange Management Ltd [1998] 17 EG 1; [1997] EWCA 4760 ..................... 14.150 Adamson v Hayes (1973) 130 CLR 276 ....................................................................................... 9.25 Adler v Blackman [1953] 1 QB 146 ........................................................................................... 14.70 Advance Investment Finance No 1 Pty Ltd v Commissioner for Consumer Affairs [1992] ASC 57 .......................................................................................................................................... 4.65 Agripower Barraba Pty Ltd v Blomfield (2015) 317 ALR 202 ..................................................... 16.22 Akiba v Commonwealth (2013) 250 CLR 209 ................................................................... 7.95 Akici v LR Butlin Ltd [2005] EWCA Civ 1296 ........................................................................... 14.205 Aldin v Latimer, Clark, Muirhead & Co [1894] 2 Ch 437 ........................................... 14.170, 14.190 Alfred F Beckett Ltd v Lyons [1967] Ch 449 ............................................................................ 17.190 Allen v Proprietors of Strata Plan No 2110 [1970] 3 NSWR 339 .................. 13.105, 13.110 Allen v Roughley (1955) 94 CLR 98 ............................................................................................ 3.80 Allen v Snyder [1977] 2 NSWLR 685 ................................................................................ 2.85, 5.275 Amad v Grant (1947) 74 CLR 327 ............................................................................... 14.60, 14.250 Amatek Ltd v Googoorewon Pty Ltd (1993) 176 CLR 471 ...................................................... 16.125 Amber (Eastern Suburbs) Pty Ltd v Herman (1986) 5 BPR 11,188 .................................. 5.130, 14.85 Ambrose v Hodgson (1781) 1 ER 1405; 3 Bro Parl Cas 416 ...................................................... 11.20 Anchor Brewhouse Developments Ltd v Berkley House (Docklands Development) Ltd [1987] 2 EGLR 173; (1987) 284 EG 625 ............................................................................... 16.60 Andel Pty Ltd & Century Car Care Pty Ltd, Re (1989) Q ConvR 54-315 ...................................... 6.50 Anderson v Bowles (1951) 84 CLR 310 ..................................................................................... 14.05 Anderson v O’Donnell (2000) 10 BPR 18,501 ......................................................................... 12.185 Andrews v Australia and New Zealand Banking Group Ltd [2012] HCA 30 .............. 8.100 Andrews v Partington (1791) 29 ER 610; 3 Bro CC 401 ............................................................ 11.90 Andrews v Superannuation Fund (1985) 124 LSJS 153 ............................................................. 5.165 Annen v Rattee (1985) 273 EG 503 ........................................................................................ 12.155 Anson v Anson (2004) 12 BPR 22,303 .................................................................................... 12.100 Anthony v Commonwealth (1973) 47 ALJR 83; 29 LGRA 61; [1973] ALR 769 ........................... 16.22 Aoun Investments Pty Ltd v Chief Commissioner of State Revenue [2006] NSWSC 1394 .................................................................................................................... 12.05 Application of Poltara Pty Ltd, Re [1982] 2 NSWLR 161 ............................................................ 18.75 Apriaden v Seacrest Pty Ltd (2005) 12 VR 319; [2005] VSCA 139 ........................................... 14.295 Arab Bank Ltd v Ross [1952] 2 QB 216 ................................................................... 1.65, 4.185 Arcade Hotel Pty Ltd, Re [1962] VR 274 ......................................................................... 18.10, 18.45 Arcadi v Whittem (1992) 59 SASR 515 ................................................................. 5.295, 5.300 Argyle Art Centre v Argyle Bond & Free Stores Co Pty Ltd [1976] 1 NSWLR 377 .... 14.265 Armory v Delamirie (1722) 1 Str 506; 93 ER 664 ........................................................................ 3.55 Arscott v Coal Authority [2005] Env LR 6; [2004] EWCA (Civ) 892 .......................................... 16.100 ix

Australian Property Law: Cases and Materials

Ashburn Anstald v Arnold [1988] 2 WLR 706 ................................................................. 1.140 Asher v Whitlock (1865) LR 1 QB 1 ........................................................................... 3.75, 3.80 Ashoil Holdings Pty Ltd v Fassoulas [2005] NSWCA 80 .............................................. 17.180, 18.105 Ashworth v Gloucester City Council [2002] 1 All ER 377; [2001] 1 WLR 2180 ......................... 14.215 Assets Company Ltd v Mere Roihi [1905] AC 176 ..................................................................... 5.150 Associated Midland Corporation v Sanderson Motors Pty Ltd [1983] 3 NSWLR 395 ............................................................................................................................. 4.65, 4.80 Astley Industrial Trust Ltd, The v Miller [1968] 2 All ER 36 ................................... 4.70, 4.75 Atkins’ Will Trusts, Re [1974] 1 WLR 761 ................................................................................... 11.75 Atlantic 3-Financial (Aust) Pty Ltd v Deskhurst Pty Ltd [2005] 1 Qd R 1 .................................... 5.130 Atler Pty Ltd v CDFC Australia Ltd (1982) 103 LSJS 70 .............................................................. 14.70 Attorney-General v Chambers (1854) 43 ER 406; 4 De GM & G 206; [1859] All ER Rep 559 .... 16.100 Attorney-General v Great Cobar Copper Mining Co (1900) 21 LR (NSW) 351; 6 ALR (CN) 91 ........................................................................................................................................ 16.75 Attorney-General v Morgan [1891] 1 Ch 432 ........................................................................... 16.75 Attorney-General (Cth) v RT Co Pty Ltd (No 2) (1957) 97 CLR 146; 31 ALJR 504 ...................... 16.22 Attorney-General (Hong Kong) v Reid [1994] 1 AC 324 .............................................................. 2.85 Attorney-General (NSW) v Brown (1847) 2 Legge 312 ............................................................... 2.25 Attorney-General (NT) v Chaffey (2007) 231 CLR 651 ................................................................ 1.55 Aussie Traveller Pty Ltd v Marklea Pty Ltd [1998] 1 Qd R 1; [1997] Q ConvR 54-585 ............. 14.165, 14.170, 14.190 Austerberry v Corporation of Oldham (1885) 29 Ch D 750 ............. 18.175, 18.180, 18.190 Australian Conservation Foundation Inc v Commonwealth (1986) 146 CLR 493 ......................... 1.45 Australian Guarantee Corporation Ltd v de Jager [1984] VR 483 .................................... 5.185, 5.210 Australian Hi-Fi Publications Pty Ltd v Gehl [1979] 2 NSWLR 618 ............................................. 17.65 Australian Mutual Provident Society v 400 St Kilda Road Pty Ltd [1991] 2 VR 417 .................. 14.135 Avco Financial Services Limited v White [1977] VR 56 ................................................................. 6.90 Avco Financial Services Ltd v Fishman [1993] 1 VR 90 ............................................. 6.90, 6.95, 6.155 Avco Financial Services Ltd v White [1977] VR 561 ..................................................................... 6.50 Azkanaad Pty Ltd v Galanos Bros Pty Ltd (No 2) [2008] NSWSC 476 ........................................ 14.50

B Bacon v O’Dea (1989) 25 FCR 495 ............................................................................................. 6.50 Bahr v Nicolay (1987) 163 CLR 490 ......................................................................................... 10.85 Bahr v Nicolay (No 2) (1988) 164 CLR 604 ............. 5.160, 5.165, 5.185, 5.215, 5.220, 5.225, 10.80 Baigent v The Random House Group Ltd [2006] EWHC 719 .......................................... 4.100, 4.165 Baillie, Faithful v Sydney Industrial Blind Institution, Re (1907) 7 SR (NSW) 265 ......................... 2.65 Ballarat Corp v Waller [1924] VLR 115 .................................................................................... 14.180 Ballard’s Conveyance, Re [1937] Ch 473 .................................................................................. 18.45 Baloglow v Konstantinidis (2001) 11 BPR 20,721 ........................................................................ 9.25 Bamford v Loy (1982) NSW ConvR 55-043 ............................................................................... 6.155 Banco de Portugal v Waterlow and Sons Ltd [1932] AC 452 ....................................... 4.170 Banjima People v State of Western Australia [2015] FCAFC 84 .................................................... 7.75 Banjo v London Borough of Brent [2005] All ER (D) 282 (Mar); [2005] EWCA Civ 292; [2005] 1 WLR 2520 ............................................................................................................. 14.05 Bank of England v Cutler [1908] 2 KB 208 .............................................................................. 17.130 Bank of South Australia Ltd v Ferguson (1998) 192 CLR 248 ..... 5.190, 5.100, 5.185, 5.215 Bank of Victoria v Forbes (1877) 13 VLR 760 ............................................................................. 3.110 Bannister v Bannister [1948] 2 All ER 133 ...................................................................... 10.65 Baramon Sales Pty Ltd v Goodman Fielder Mills Ltd [2002] V ConvR 54-654; [2001] FCA 1672 ...................................................................................... 14.235, 18.15, 18.90 Barber, Re (1937) 37 SR (NSW) 470 ......................................................................................... 11.20 Barbour, Re [1967] Qd R 10 ..................................................................................................... 12.25 Barclay’s Bank plc v O’Brien [1994] 1 AC 180 ........................................................................... 5.255 Barlin Investments Pty Ltd v Westpac Banking Corporation (2012) 16 BPR 30,671 .................................................................................................................... 6.210, 6.215 Barnes v Addy (1874) LR 9 Ch App 244 ...................................................................................... 2.85 Barnes v James (1902) 27 VLR 749 ........................................................................................... 6.155 x

Table of Cases

Barnhart v Greenshields (1853) 9 Moo 18; 14 ER 204 .............................................................. 2.110 Barrett v Lounova (1982) Ltd [1989] 1 All ER 351; [1989] 2 WLR 137 ..................................... 14.135 Barrowcliff, Re [1927] SASR 147 ............................................................................................. 12.195 Barry v Heider (1914) 19 CLR 197 ................................................ 2.120, 6.20, 6.25, 6.30, 6.50 Bartlett v Tottenham [1932] 1 Ch 114 .................................................................................... 17.105 Barwick’s Case (1597) 77 ER 199; 5 Co Rep 93b ....................................................................... 11.10 Basham, Re [1987] 1 All ER 405 ................................................................................................ 9.165 Bathurst City Council v PWC Properties Pty Ltd (1998) 195 CLR 566; 157 ALR 414; 72 ALJR 1470; [1998] HCA 59 ................................................................................. 7.15 Baumgartner v Baumgartner (1987) 164 CLR 137 .................................. 6.190, 10.70, 12.40 Baxendale v Instow Parish Council [1981] 2 All ER 620; [1981] 2 WLR 1055 ........................... 16.100 Baxter v Four Oaks Properties Ltd [1965] 1 Ch 816 .................................................................. 18.75 Bay Bon Investments Pty Ltd v Selvarajah [2008] NSWSC 1251 ................................................ 8.105 Bayport Industries Pty Ltd v Watson (2006) V ConvR 54-709 .................................................... 3.110 Bazley v Wesley Monash IVF Pty Ltd [2010] QSC 118 .................................................................. 1.15 Beak Fast Investments Pty Ltd v PCH Melboune Pty Ltd (2007) 20 VR 311 ................................ 16.60 Beamer Pty v Star Lodge Supported Residential Services Pty Ltd [2005] VSC 236 .................... 14.280 Beames v Leader [2000] 1 Qd R 347 ........................................................................................ 5.370 Beattie v Fine [1925] VLR 363 ................................................................................................... 14.70 Beatty v ANZ Banking Group Ltd [1995] 2 VR 292 .................................................................... 5.100 Beca Developments Pty Ltd v Idameneo (No 92) Pty Ltd (1990) 21 NSWLR 459 ........................ 6.65 Beconwood Securities Pty Ltd v ANZ Banking Group Ltd [2008] FCA 594 ................................... 8.15 Bell v Graham [2000] VSC 142 ................................................................................................... 6.50 Bellevue Crescent Pty Ltd v Marland Holdings Pty Ltd (1998) 43 NSWLR 364 ......................... 17.130 Belmont Park Investments Pty Ltd v BNY Corporate Trustee Services Ltd [2012] 1 AC 383 .......... 2.65 Belyea v McBride [1942] 3 DLR 785 ......................................................................................... 11.85 Bendal Pty Ltd v Mirvac Project Pty Ltd (1991) 23 NSWLR 464; 74 LGRA 406 ........................... 16.60 Berdal v Burns [1990] WAR 140 .............................................................................................. 12.185 Berger Bros Trading Co Pty Ltd v Bursill Enterprises Pty Ltd [1970] 1 NSWR 137; (1969) 91 WN (NSW) 521 ................................................................................................................... 16.40 Bernstein of Leigh (Baron) v Skyviews and General Ltd [1978] 1 QB 479 ...... 16.50, 16.60 Beswick v Beswick [1968] AC 58 ........................................................................ 18.155, 18.160 Bettison v Langton [2000] Ch 54 ............................................................................................ 17.190 Bevilacqua v Merakovsky [2005] VSC 235 ............................................................................... 18.105 Bewick, Re [1911] 1 Ch 116 ..................................................................................................... 11.85 Big Rock Pty Ltd v Esanda Finance Corporation Ltd (1992) 10 WAR 259 ..................................... 4.40 Billiet v Commonwealth Bank of Australasia Ltd [1906] SALR 193 ........................................... 17.105 Billing v Pill [1954] 1 QB 70; [1953] 2 All ER 1061; [1953] 3 WLR 758 ...................................... 16.22 Bird v Trustees Executors and Agency Co Ltd [1957] VR 619 ................................................... 18.160 Birmingham, Dudley and District Banking Co v Ross (1888) 38 Ch D 295 .............................. 17.120 Birstar v Ocean Breaze [1996] QCA 110 .................................................................................... 13.35 Bishop v Taylor (1968) 118 CLR 518; 42 ALJR 277 .................................................................... 14.50 Black v Apps [2005] NSWSC 943 ............................................................................................ 16.125 Black v Garnock (2007) 230 CLR 438; 81 ALJR 1338 .......................................... 6.140, 6.145 Black v Poole (1895) 16 ALT 155 ............................................................................................. 14.110 Blackler v Felpure Pty Ltd (2000) NSW ConvR 55-921 .............................................................. 14.35 Blacks Ltd v Rix [1962] SASR 161 .............................................................................................. 18.90 Blathwayt v Baron Cawley [1976] AC 307 .................................................................................. 2.65 Bligh v Martin [1968] 1 WLR 804 ............................................................................................. 3.110 Bloch v Bloch (1981) 37 ALR 55 ................................................................................................. 9.15 Blockbuster Entertainment Ltd v Leakcliff Properties Ltd [1997] 1 EGLR 28 ............................. 14.215 Boardman v Phipps [1967] 2 AC 46 ............................................................................................ 2.85 Bob Jane T-Marts v The Baptist Union of Victoria [1999] VSC 346 ............................................... 6.50 Bocardo SA v Star Energy UK Onshore Ltd [2011] 1 AC 380 ..................................................... 16.65 Boddington v Robinson (1875) LR 10 Ex 273 ........................................................................... 11.10 Bogdanovic v Koteff (1988) 12 NSWLR 472 ............................................................................. 5.275 Bolton v Bolton (1879) 11 Ch D 968 ........................................................................................ 17.85 Bondi Beach Astra Retirement Village Pty Ltd v Gora (2010) 14 BPR 27,743 ................................ 4.10 Bondi Beach Astra Retirement Village Pty Ltd v Gora (2011) 82 NSWLR 665 ............................... 2.65 Bondi Beach Astra Retirement Village Pty Ltd v Hohman [2010] NSWCA 38 ......... 15.150 xi

Australian Property Law: Cases and Materials

Bookville Pty Ltd v O’Loghlen [2007] VSC 67 .................................................. 17.175, 17.180 Boreham v Bignall (1850) 68 ER 302; 8 Hare 131 ..................................................................... 11.90 Borman v Griffith [1930] 1 Ch 493 ............................................................................ 17.105, 17.120 Borthwick-Norton v Romney Warwick Estates Ltd [1950] 1 All ER 798 ..................................... 14.280 Bosca Land Pty Ltd’s Caveat, Re [1976] Qd R 119 ....................................................................... 6.50 Boss v Hamilton Island Enterprises Ltd [2009] QCA 229 .......................................................... 14.215 Bouel v Cooktown Municipal Corporation (1885) 2 QLJ 93 ...................................................... 11.20 Bourke, In the Marriage of (1993) 16 Fam LR 779 .................................................................. 12.185 Box v Attfield (1886) 12 VLR 574 .............................................................................................. 14.70 Boyd v Mayor of Wellington [1924] NZLR 1174 ........................................................................ 5.240 Brand v Chris Building Co Pty Ltd [1957] VR 625 ............................... 9.170, 16.115, 16.120 Brandon v Robinson (1811) 34 ER 379; 18 Ves Jun 429 ............................................................. 11.10 Bray v Bray (1926) 38 CLR 542 ............................................................................................... 12.205 Breams Property Investment Co Ltd v Stroulger [1948] 2 KB 1 ............................................... 14.235 Bree v Scott (1903) 29 VLR 692 ................................................................................................ 3.110 Breen v Williams (1996) 186 CLR 71 ................................................................................ 4.155 Breheney (dec’d), Re [1915] VLR 242 ..................................................................................... 11.100 Bremner v Bleakley (1923) 54 OLR 233 ............................................................................. 3.35 Brennan v Duncan (No 2) [2006] NSWSC 851 ......................................................................... 12.70 Breskvar v Wall (1971) 126 CLR 376 ...................... 5.70, 5.95, 5.100, 6.90, 6.95, 6.110, 6.190 Breskvar v White [1978] Qd R 187 ............................................................................................ 5.360 Brickwood v Young (1905) 2 CLR 387 ................................................................. 12.85, 12.115 Bridgewater v Leahy (1998) 194 CLR 457 ..................................................................... 10.105 Brierfield’s Application, Re (1978) 35 P & CR .......................................................................... 18.105 Brikom Investments Ltd v Carr [1979] QB 467 ........................................................................ 14.250 Brisbane City Council v Attorney-General (Qld) [1978] 3 WLR 299 ............................................. 1.45 British Bakeries (Midlands) Ltd v Michael Testler & Co Ltd (1986) 277 EG 1245; [1986] 1 EGLR 64 ............................................................................................................................. 14.215 Broadcast Australia Pty Ltd v Minister assisting the Minister for Natural Resources (Lands) (2004) 221 CLR 178 ............................................................................................................ 5.290 Bromley Park Garden Estates Ltd v Moss [1982] 2 All ER 890; [1982] 1 WLR 1019 .................. 14.215 Bromor Properties Ltd’s Application, Re (1995) 70 P & CR 569 ................................................. 18.75 Brooker’s Colours Ltd v Sproules (1910) 10 SR (NSW) 839 ..................................................... 14.280 Brown v Commonwealth Bank of Australia [1993] SASC 4232 ....... 15.120, 15.125, 15.145 Brown v Commonwealth Bank of Australia (1994) 63 SASR 188 ............................................. 15.125 Brown v Independent Baptist Church of Woburn 325 Mass 645; 91 NE 2d 922 (1950) .......... 11.150 Brown & Austrust Ltd v Commonwealth Bank of Australia (1993) 173 LSJS 145 ........................ 5.290 Brownfield v Earle (1914) 17 CLR 615 ...................................................................................... 11.75 Brownsea v National Trustees Executors & Agency Co of Australasia Ltd [1959] VR 243; [1959] ALR 650 .................................................................................................................... 14.50 Brunker v Perpetual Trustee Co Ltd (1937) 57 CLR 555 ............................................................ 9.140 Brunner v Greenslade [1971] Ch 993 .......................................................................... 18.75, 18.120 Brunswick Developments Pty Ltd v Shock Records Pty Ltd (1996) V ConvR 54-604 .................. 14.50 Bruton v London & Quadrant Housing Trust [2000] 1 AC 406 .................................................... 2.50 Buchan v Nash [1983] 2 NSWLR 575 ....................................................................................... 12.50 Buchholz v Kempsey Shire Council [2005] NSWSC 235 ............................................................ 17.40 Buckinghamshire County Council v Moran [1990] Ch 623 ....................................................... 3.110 Bull v Bull [1955] 1 QB 234 ...................................................................................................... 12.40 Bulli Coal Mining Co v Osborne [1899] AC 351 ........................................................................ 16.65 Bundy v Alberts [2007] VSC 90 ......................................................................................... 15.95 Bunney v South Australia (2000) 77 SASR 319; [2000] SASC 141 ........................................... 16.125 Bunney v State of South Australia (2001) 112 LGERA 213; [2001] SASC 18 ............................. 16.125 Bunning Building Supplies Pty Ltd v Sgro (1995) V ConvR 54-535 .............................................. 6.50 Burgess v Rawnsley [1975] Ch 429 ......................................................................................... 12.185 Burke v Yurilla SA Pty Ltd (1991) 56 SASR 382 ............................................................... 18.10, 18.90 Burman v AGC (Advances) Ltd [1994] 1 Qd R 123 ..................................................................... 6.80 Bursill Enterprises Pty Ltd v Berger Bros Trading Co Pty Ltd (1971) 124 CLR 73; [1971] ALR 551 .......................................................................................... 5.140, 5.145, 16.40 Burton v Camden London Borough Council [2000] 2 AC 399 .................................................. 12.10 Butler v Fairclough (1917) 23 CLR 78 ................................................................... 6.90, 6.130, 6.155 xii

Table of Cases

Byrnes v Jokona Pty Ltd [2002] FCA 41 ................................................................................... 14.295 Byron Bay Retirement Villages Pty Ltd v Zandata Pty Ltd [2008] NSWSC 1123 ........................ 14.280

C CPT Custodian Pty Ltd v Commissioner for State Revenue (2005) 221 ALR 196 .......................... 6.50 Cable v Bryant [1908] 1 Ch 259 ................................................................................ 14.170, 14.190 Caboche v Ramsay (1993) 119 ALR 215 ..................................................................................... 2.65 Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2006] FCA 363 ...... 4.100, 4.165 Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 4) [2006] FCA 446 ..... 4.100, 4.165 Cadell v Palmer (1833) 6 ER 956; 1 Cl & Fin 372 ...................................................................... 11.65 Cadia Holdings Pty Ltd v New South Wales (2010) 242 CLR 195 .............................................. 16.75 Cain v NSW Land and Housing Corporation [2014] NSWCA 28 ................................... 15.74 Caldwell v Rural Bank of NSW (1951) 53 SR (NSW) 415 ............................................................. 5.85 Callow v Rupchev [2009] NSWCA 148 .............................................................................. 12.75 Calverley v Green (1984) 155 CLR 242 ............................................................................. 10.50 Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304; [2009] HCA 235 .................... 10.15 Campbell v Hedley (1917) 39 OLR 528 ...................................................................................... 3.20 Campbell v Holyland (1878) 7 Ch D 166 ............................................................................ 8.30 Cancer Care Institute of Australia Pty Ltd, Re (2013) 16 BPR 31,529; [2013] NSWSC 37 .............................................................................................................. 16.20, 16.30 Capital Finance Australia Ltd v Karabassis (2003) 11 BPR 21,123 ................................................ 6.50 Car and Universal Finance Co Ltd v Caldwell [1965] 1 QB 225 ............................. 4.90, 4.95 Carbure Pty Ltd v Brile Pty Ltd [2002] VSC 272 ...................................................................... 14.150 Carisfield Estate Pty Ltd v Douglas [1998] SASC 7003 ................................................ 15.130 Carlin v Mladenovic (2002) 84 SASR 155 ............................................................................... 16.125 Carnovale v Pollack [1995] NSWSC 133 ..................................................................................... 8.50 Carnovale v State Bank of New South Wales (unreported, NSWSC, Rolfe J, 3 November 1992) .................................................................................................................................... 8.50 Carpet Fashion Pty Ltd v Forma Holdings Pty Ltd [2004] NSWCA 150 ....................... 14.170, 14.190 Carrathool Hotel Pty Ltd v Scutti [2005] NSWSC 401 ............................................................. 14.150 Case of Mines, The (1567) 75 ER 472; 1 Plow 310 ................................................................... 16.75 Casey v Aldous (1994) 63 SASR 347 ......................................................................................... 15.40 Cashmore’s Application, Re [1967] Tas SR 217 ............................................................ 18.90, 18.190 Cassegrain v Gerard Cassegrain & Co Pty Ltd [2015] HCA 2 ........................................ 5.203 Castagna v Great Wall Resources Pty Ltd [2005] NSWSC 942 ................................................. 18.105 Castle Constructions Pty Ltd v Sahab Holdings Pty Ltd [2013] HCA 11 ..................................... 17.65 Catanzariti v Whitehouse (1981) 55 FLR 426 ............................................................... 12.145 Caunce v Caunce [1969] 1 WLR 286 ........................................................................................ 2.110 Ceda Drycleaners Ltd v Doonan [1998] 1 NZLR 224 ................................................................ 18.10 Celsteel Ltd v Alton House Holdings Ltd (No 2) [1987] 2 All ER 240; [1987] 1 WLR 291 .......... 14.165 Central Estates (Belgravia) Ltd v Woolgar (No 2) [1972] 3 All ER 610; [1972] 1 WLR 1048 ...... 14.260 Central Mortgage Registry of Australia Ltd v Donemore Pty Ltd [1984] 2 NSWLR 128 ......................................................................................................................... 8.70 Centrovincial Estates PLC v Bulk Storage Ltd (1983) 46 P & CR 393 ....................................... 14.220 Cervi v Letcher (2011) 33 VR 320 ............................................................................................. 3.110 Chairman, National Crime Authority v Flack (1998) 86 FCR 16 ..................................... 3.45 Chaka Holdings Pty Ltd v Sunsim Pty Ltd (1987) NSW ConvR 55-367 ...................................... 14.25 Chan v Cresdon Pty Ltd (1989) 89 ALR 522 ...................................................................... 9.45 Chang v Registrar of Titles (1925) 137 CLR 177 .......................................................................... 9.50 Chapman’s Settlement Trusts, Re [1978] 1 All ER 1122; [1977] 1 WLR 1163 ........................... 11.100 Charalambous v Ktori [1972] 1 WLR 951 ................................................................................ 14.125 Chardon, Re [1928] Ch 464 ..................................................................................................... 11.55 Charles Frodsham & Co Ltd v Morris (1972) 229 EG 961 ....................................................... 14.235 Chasfild v Taranto Pty Ltd [1991] 1 VR 225 ............................................................................... 5.100 Chester v Buckingham Travel Ltd [1981] 1 All ER 386; [1981] 1 WLR 96 ................................. 14.125 Cheyne v Moses [1919] S R Qd 74 ......................................................................................... 14.235 Chief Commissioner of Land Tax v Macary Manufacturing Pty Ltd (1999) 48 NSWLR 299 ......... 2.75, 2.85 xiii

Australian Property Law: Cases and Materials

Chiodo v Murphy (1995) V ConvR 54-531 ................................................................................. 6.50 Chipperfield v Carter (1895) 72 LT 487 .................................................................................... 14.50 Chirnside v Registrar of Titles [1921] VLR 406; 27 ALR 268 .............................. 16.80, 16.85 Chittick v Galea [2007] NSWSC 38 ......................................................................................... 14.280 Christie v Dalco Holdings Pty Ltd [1964] Tas SR 34 ................................................................... 18.75 Chronopoulos v Caltex Oil (Australia) Pty Ltd (1982) 45 ALR 481 ............................................. 14.50 Chudleigh’s Case (1595) 76 ER 261; 1 Co Rep 113b ................................................................ 11.35 Church of England Collegiate School of St Peter, The v Chesser House Pty Ltd (1993) ANZ ConvR 110 ............................................................................................................................. 8.50 Churcher v Danis Hotels Pty Ltd (1980) 8 BPR 15,863 .............................................................. 12.50 Circuit Finance Australia Ltd v Registrar of Titles [2006] 1 Qd R 204 ............................................ 6.80 Cirino v Registrar-General (1993) 6 BPR 13 260 ........................................................................ 5.345 Citibank Pty Ltd v Simon Fredericks Pty Ltd [1993] 2 VR 168 .................................................. 14.110 Civil Service Cooperative Society Ltd v McGrigor’s Trustee [1923] 2 Ch 347 ........................... 14.260 Clambake Pty Ltd v Tipperary Projects Pty Ltd (No 3) [2009] WASC 52 .......................... 14.05, 14.70 Clark v Raymor (Brisbane) Pty Ltd [No 2] [1982] Qd R 790 .............................................. 6.90, 6.155 Clarke v Burnie City Council [2008] TASSC 75 .............................................................. 18.110 Classic Heights Pty Ltd v Black Hole Enterprises Pty Ltd (1994) V ConvR 54-506 ......................... 6.50 Clayton v Ramsden [1943] AC 320 ............................................................................................. 2.65 Clem Smith Nominees Pty Ltd v Farrelly (1978) 20 SASR 227 ............................. 18.10, 18.50, 18.60 Clement v Jones (1909) 8 CLR 133 ........................................................................................... 3.110 Clements v Ellis (1934) 51 CLR 217 ................................................................................... 5.70, 5.85 Clifford’s Settlement Trusts, Re [1981] Ch 63 .......................................................................... 11.100 Clos Farming Estates v Easton [2002] NSWCA 389 ........................................................ 17.05 Clubley v Bochrinis [2005] WASC 24 ...................................................................................... 18.105 Clyne v Lowe (1968) 69 SR (NSW) 433 .................................................................................. 14.120 Cobb v Lane [1952] 1 All ER 1199 ............................................................................................ 14.25 Cobbold v Abraham [1933] VLR 385 ........................................................................................ 18.75 Cole, Re [1964] Ch 175 ....................................................................................................... 9.105 Coleman v Bone (1996) 9 BPR 16,235 ........................................................................................ 6.50 Coleman v London County & Westminster Bank Ltd [1916] 2 Ch 353 ...................................... 2.140 Collins v Hopkins [1923] 2 KB 617 ......................................................................................... 14.150 Collins v Winter [1924] NZLR 449 .......................................................................................... 14.150 Colman v Golder [1957] VR 196 ............................................................................................... 14.50 Colvin v Bowen (1958) 75 WN (NSW) 262 ............................................................................. 14.215 Commercial Bank of Australasia Ltd v Schierholter [1981] VR 292 ............................................... 6.65 Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 ................................... 1.115, 10.20 Commonwealth v Registrar of Titles (Vic) (1918) 24 CLR 348; [1918] VLR 228; 24 ALR 106 ............................................................................................................ 17.25, 17.30 Commonwealth v Yarmirr (1999) 101 FCR 171 ........................................................................ 7.100 Commonwealth v Yarmirr (2001) 208 CLR 1; 184 ALR 113 ....................................................... 7.100 Commonwealth Bank of Australia v Baranyay [1993] 1 VR 589 ................................................... 6.50 Commonwealth Life (Amalgamated) Assurance Ltd v Anderson (1945) 46 SR (NSW) 47 .......... 14.05 Composite Buyers Ltd v Soong [1995] 38 NSWLR 286 ............................................................... 6.50 Concept Projects Ltd v McKay [1984] 1 NZLR 560 .............................................. 16.25, 16.30 Concrete Constructions Pty Ltd v Government Insurance Office of New South Wales [1966] 2 NSWR 609 ...................................................................................................................... 18.160 Conlan v Registrar of Titles (2001) 24 WAR 299 ...................................... 5.165, 5.210, 5.270 Connolly v Noone [1912] St R Qd 70 ....................................................................................... 6.155 Consolidated Development Pty Ltd v Holt (1986) 6 NSWLR 607 ...................... 5.130, 11.40, 14.260 Consul Developments Pty Ltd v DPC Estates Pty Ltd (1975) 132 CLR 373 ................................... 2.85 Contract between Fawcett and Holmes, Re (1889) 42 Ch D 150 .............................................. 18.35 Cooke v Dunn (1998) 9 BPR 16,489 ......................................................................................... 3.110 Coomber v Curry (1993) V ConvR 54-464 ..................................................................... 5.100, 5.240 Cooper v Stuart (1884) 14 AC 286 ............................................................................................. 7.30 Cooper v Stuart (1889) LR 14 App Cas 286 .............................................................................. 11.40 Cooper’s Lease, Re (1968) 19 P & CR 541 .............................................................................. 14.215 Copeland v Greenhalf [1952] 1 Ch 488 .................................................................................... 18.20 Cordingley, Re (1948) 48 SR (NSW) 248 ................................................................................ 12.215 Corin v Patton (1990) 169 CLR 540; 92 ALR 1 .......................... 5.275, 9.135, 12.170, 12.185 xiv

Table of Cases

Corinne Court (Owners of) 290 Stirling Street Perth Strata Plan 12821 v Shean Pty Ltd (2000) 23 WAR 1 ................................................................................................................. 5.100 Corozo Pty Ltd v Total Australia Pty Ltd [1988] 2 Qd R 366 ...................................................... 5.130 Corporate Affairs Commission v ASC Timber Pty Ltd (1989) 18 NSWLR 577 ........................... 17.200 Corry v Corry (1983) FLC 91-343 ........................................................................................... 12.185 Cory v Davies [1923] 2 Ch 95 .................................................................................................. 17.95 Costa & Duppe Properties Pty Ltd v Duppe [1986] VR 90 ........................................................... 6.50 Costin v Costin (1995) NSW ConvR 55-717 ........................................................................... 12.185 Cottee Dairy Products Pty Ltd v Minad Pty Ltd (1999) 8 BPR 15,611 ........................................ 16.30 Couche v Adams (2002) 11 BPR 20,101; [2002] NSWSC 27 ................................................... 17.180 Cousin v Grant (1991) 103 FLR 236 ......................................................................................... 18.75 Cowell v Rosehill Racecourse Co Ltd (1936) 56 CLR 605 .............................................. 1.120 Cox v Glue (1848) 136 ER 987; 5 CB 533 ................................................................................. 16.65 Crabb v Arun District Council [1976] 1 Ch 179 ........................................................................ 9.155 Cram Foundation v Corbett-Jones [2006] NSWSC 495 ............................................................... 2.65 Crampton v French (1995) V ConvR 54-529 ............................................................................... 6.50 Crawley Borough Council v Ure [1995] 3 WLR 95 ................................................................... 12.155 Crocombe v Pine Forests of Australia Pty Ltd [2005] NSWSC 151 .............................. 13.10 Crompton, Re [2000] QSC 386 ................................................................................................ 5.370 Crook v Consumer, Trader & Tenancy Tribunal of New South Wales (2003) 59 NSWLR 300 ...................................................................................................................... 15.70 Crouch v Credit Foncier of England Ltd (1873) LR 8 QB 374 .................................................... 4.190 Crow v Wood [1971] 1 QB 77 ............................................................................. 17.115, 17.120 Crowther v Brisbane City Council [2010] QCA 348 ..................................................................... 1.45 Cruse v Mount [1933] Ch 278 ................................................................................................ 14.150 Cruz v Osborne [1999] WASC 8 .................................................................................................. 6.65 Cuckmere Brick Co Ltd v Mutual Finance Ltd [1971] Ch 949 .................................................... 8.165

D D’Arcy v Burelli Investments Pty Ltd (1987) 8 NSWLR 317 ........................................................ 16.30 DKLR Holdings Co (No 2) v Commissioner of Stamp Duties [1980] 1 NSWLR 510 ..... 2.75, 2.80, 2.85 Da Costa, Re [1912] 1 Ch 337 .................................................................................................. 11.55 Daar Pty Ltd v Feza Foundation Ltd (2001) 10 BPR 19,099; [2001] NSWSC 949 ..................... 17.105 Dabbs v Seaman (1925) 36 CLR 538; 31 ALR 402 ........................................... 17.125, 17.130 Dairy Industry Marketing Authority v Southern Farmers Co-operative Ltd (1982) 61 FLR 174 .... 4.100, 4.165 Daniell v Paradiso (1991) 55 SASR 395 ....................................................................................... 6.50 Daventry Holdings Pty Ltd v Bacalakis Hotels Pty Ltd [1986] 1 Qd R 406 ................................ 14.215 Davidson v Registrar of Titles [2002] WASC 168 .......................................................................... 8.75 Davies v Laughton (1996) 3 NZ ConvC 192,356; (1997) 3 NZLR 705 ...................................... 5.120 Davies v Littlejohn (1923) 34 CLR 174; [1923] HCA 64 ................................................... 7.05 Davies v Ryan [1951] VLR 283 .................................................................................................... 5.85 Davis v Commonwealth (1988) 166 CLR 79 ...................................................................... 1.10 Davis v Williams (2003) 11 BPR 21,313; [2003] NSWCA 371 ................. 5.170, 5.185, 5.210 Dayani v Bromley London Borough Council [1999] EGLR 144 ................................................ 14.135 De Campo Holdings Pty Ltd v Cianciullo [1977] WAR 56 ........................................................ 12.205 De Landgrafft v Brown (1993) 9 SR (WA) 236 ......................................................................... 14.295 De Rose v South Australia (2003) 133 FCR 325 .............................................................. 7.105 Deane (dec’d), Re [1913] VLR 272 .......................................................................................... 11.100 Debonair Nominees Pty Ltd v J & K Berry Nominees Pty Ltd (2000) 77 SASR 261 ................... 14.220 Delehunt v Carmody (1986) 161 CLR 464 ............................................................ 12.55, 12.60 Denham Bros Ltd v W Freestone Leasing Pty Ltd [2004] 1 Qd R 500; [2003] ANZ ConvR 522; [2003] QCA 376 ........................................................................................................ 11.160 Dennerstein, Re [1963] VR 688 .............................................................................. 18.80, 18.90 Dennis v Dennis (1971) 124 CLR 317; [1971] HCA 50 ................................................... 12.15 Destri Enterprises Pty Ltd v Maxwell [2012] NSWSC 295 ........................................... 17.170 Di Napoli v New Beach Apartments Pty Ltd (2004) 11 BPR 21,493 ........................................... 16.75 Diemasters Pty Ltd v Meadowcorp Pty Ltd (2001) 52 NSWLR 572 .................. 5.340, 5.345 xv

Australian Property Law: Cases and Materials

Dikstein v Kanevsky [1947] VLR 216 ....................................................................................... 14.135 Dillon v Nash [1950] VLR 293 ................................................................................................. 14.135 Dimond v Bostock (1875) LR 10 Ch App 358 ........................................................................... 11.90 Director of Public Prosecutions v Murdoch [1993] 1 VR 406 ..................................................... 4.150 Dobbie v Davidson (1991) 23 NSWLR 625; 73 LGRA 402 ................................... 17.60, 17.65 Dobbs v Seaman (1925) 36 CLR 538; 31 ALR 402 .................................................................. 17.130 Doe d Carter v Barnard (1849) 13 QB 945; 116 ER 1524 ............................................................ 3.80 Doe d Lloyd v Powell (1826) 5 B & C 308; 108 ER 115 ........................................................... 14.260 Doe d Seebkristo v East India Co (1856) 10 Moo PC 140; 6 Moo Ind App 267; 14 ER 445 ..... 16.100 Dogrow Pty Ltd v Teakdale Pty Ltd [2013] NSWSC 1380 ........................................... 14.185 Dolphin’s Conveyance, Re [1970] Ch 654 ................................................................................ 18.75 Dominion Lifestyle Tower Apartment Ltd v Global Capital Corporation Pty Ltd (2005) V ConvR 54-696 ....................................................................................................................... 6.50 Double Bay Newspapers Pty Ltd v AW Holdings Pty Ltd (1996) 42 NSWLR 409 ............... 6.95, 6.190 Downie v Lockwood [1965] VR 257 ....................................................... 2.110, 14.105, 14.125 Dowse v Wynyard Holdings Ltd [1962] NSWR 252 ................................................................. 14.165 Doyle v Phillips [1997] NSW ConvR 56,427 ................................................................. 18.45, 18.160 Drummond’s Settlement, Re [1988] 1 WLR 234 ................................................ 11.95, 11.105 Duggan v Kelly (1848) 10 Ir Eq Rep 473 ..................................................................................... 2.65 Duke of Norfolk’s Case (1682) 22 ER 931; 3 Ch Cas 1 .............................................................. 11.10 Duke of Westminster v Guild [1984] 3 All ER 144; [1984] 3 WLR 630 ...................................... 14.135 Duncan v McDonald [1997] 3 NZLR 669 ................................................................................. 5.120 Dungannon v Smith (1845) 8 ER 1523 ..................................................................................... 11.40 Durian (Holdings) Pty Ltd v Cavacourt Pty Ltd [2000] NSWCA 28 .......................................... 18.105

E ER Ives Investment Ltd v High [1967] 2 QB 379 ................................................ 9.180, 18.190 Eade v Vogiazopoulos (No 2) (1993) V ConvR 54-458; [1999] 3 VR 889 ................................... 5.100 Eade v Vogiazopoulos (No 2) (1994) V ConvR 54-497 ................................................... 5.120, 5.130 Eagling v Gardner [1970] 2 All ER 838 ...................................................................................... 18.75 Earl Bathurst v Fine [1974] 1 WLR 905 .................................................................................... 14.280 Earl of Stafford v Buckley (1750) 28 ER 111; 2 Ves Sen 170 ....................................................... 11.10 Eastdoro Pty Ltd (No 2), Re [1990] 1 Qd R 424 ............................................................. 5.130, 14.85 Eastern Distributors Ltd v Goldring [1957] 3 WLR 237 ................................................................ 4.40 Ebers v MacEachern [1932] 3 DLR 415 ....................................................................................... 3.20 Ecclesiastical Commissioners for England v Kino (1880) 14 Ch D 213 ..................................... 17.180 Eckford v Stanbroke Pastoral Co Pty Ltd [2012] 2 Qd R 324 ...................................................... 3.110 Eddadock Pty Ltd v Denning Properties Pty Ltd [2002] NSWSC 208 ....................................... 14.215 Edwards v Sims 24 SW 2d 619 (1929) ...................................................................................... 16.65 Elitestone Ltd v Morris [1998] ANZ ConvR 478; [1997] 2 All ER 513; [1997] 1 WLR 687 ........... 16.22 Ell t/as GNP Printing v Cisera [2001] NSWSC 242 ..................................................................... 14.70 Ellenborough Park, Re [1956] Ch 131 ............................................................................ 17.20, 17.30 Ellison v Vukicevic (1986) 7 NSWLR 104 .......................................................... 17.195, 17.200 Elliston v Reacher [1908] 2 Ch 374 ........................................................................................... 18.75 Elmant Pty Ltd v Dickson (2001) V ConvR 54-647 ...................................................................... 6.50 Elsafty Enterprises Pty Ltd v Mermaids Café & Bar Pty Ltd [2007] QSC 394 ............................ 10.135 Elton v Cavill (No 2) (1994) 34 NSWLR 289 .................................................................. 2.65, 12.140 Emerald Quarry Industry Pty Ltd v Commissioner of Highways (1976) 14 SASR 486 ............... 17.200 Emerald Securities Pty Ltd v Tee Zed Enterprises Ltd (1981) 28 SASR 214 ............... 8.175 Endeavour Lodge Motel Ltd v Langford [1998] 2 NZLR 121 ................................................... 14.260 Eon Metals NL v Commissioner of State Taxation (WA) (1991) 91 ATC 4841; 22 ATR 601 ......... 16.22 Epic Feast Pty Ltd v Mawson KLM Holdings Pty Ltd [1997] SASC 6391 ............................ 9.40, 14.50 Equitiloan Securities Pty Ltd v Registrar of Titles [1997] 2 Qd R 597 ............................... 5.370, 5.380 Equus Corp Pty Ltd v Antonopoulos [2008] VSCA 179 .............................................................. 14.50 Errington v Errington and Woods [1952] 1 KB 290 ................................................................... 14.25 Estate of Bristow, Re [2005] NSWSC 1252 .............................................................................. 18.160 Estate of Soukup (1997) 97 A Cr R 103 ................................................................................... 12.195 Euston Centre Properties Ltd v H&J Wilson Ltd (1982) 262 EG 1079 ......................................... 14.50 Evanel Pty Ltd v Nelson (1995) 39 NSWLR 209; 7 BPR 14,388 .................................................. 17.20 xvi

Table of Cases

Executive Seminars Pty Ltd v Peck [2001] WASC 229 .............................................................. 16.125

F FTFS Holdings Pty Ltd v Business Acquisitions Australia Pty Ltd [2006] NSWSC 846 .................... 6.65 Facchetti v Facchetti [2004] NSWSC 898 ................................................................................ 12.185 Facchini v Bryson [1952] 1 TLR 1386 ........................................................................................ 14.25 Fair Trading, Commissioner for v Voulan [2005] WASC 229 ...................................................... 15.15 Fairbairn v Varvaressos (2010) NSWLR 577 ............................................................................... 11.05 Fairwather v St Marylebone Property Co Ltd [1963] AC 510 ..................................................... 3.110 Faloon and Piesse v District Land Registrar [1997] 3 NZLR 498 ................................................. 17.20 Fantl v The Owners of Strata Plan 60492 (unreported, Consumer Trader & Tenancy Tribunal, 2002) .................................................................................................................... 13.80 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 ................... 2.85, 5.250 Farley v Hawkins [1997] 2 Qd R 361; [1996] Q ConvR 59,381 ................................................. 16.22 Farmer v Residential Tenancies Tribunal [2002] NSWSC 199 ....................................... 15.85 Farquharson Bros & Co v C King & Co [1902] AC 325 ..................................................... 4.35 Fawaz (dec’d), Re [1958] VR 426; [1957] ALR 999 .............................................. 11.70, 11.75 Federal Airports Corporation v Makucha Developments Pty Ltd (1993) 115 ALR 679 ............... 14.25, 14.280 Federated Homes Ltd v Mill Lodge Properties Ltd [1980] 1 All ER 371; [1980] 1 WLR 594 ...................................................................................... 18.40, 18.45, 18.170, 18.180 Fejo v Commonwealth (1999) 195 CLR 96 ........................................................................ 7.55 Felnex Central Properties Ltd v Montague Burton Properties Ltd (1981) 260 EG 705 ................ 14.70 Ferella v Otvosi [2005] NSWSC 962 ............................................................................ 18.75, 18.105 Ferguson v Miller [1978] 1 NZLR 819 ............................................................................. 12.120 Fernance v Simpson [2003] NSWSC 121 ........................................................................ 17.140 Ferrari v Beccaris [1979] 2 NSWLR 181 ................................................................................... 12.240 Ferrishurst Ltd v Wallcite Ltd [1999] Ch 355 ............................................................................. 2.110 Festing v Allen (1843) 152 ER 1204; 12 M & W 279 ................................................................. 11.35 Findlay v Nut Farms of Australia Pty Ltd [1989] ANZ ConvR 40 ............................................... 14.295 Fischer v Body Corporate for Centrepoint Community Title Scheme 7779 [2004] QCA 214 ............................................................................................................................ 13.75 Fisher v Aboriginal Hostels Ltd [1998] VSCA 130 ........................................................ 15.100 Fitt v Luxury Developments Pty Ltd [2000] VSC 258 ................................................................. 18.10 Fiver Trading Pty Ltd v Spajak Pty Ltd [2005] NSWSC 532 ........................................................ 14.50 Forbes v Git [1922] 1 AC 256 ................................................................................................... 12.25 Forbes v New South Wales Trotting Club Ltd (1979) 25 ALR 1 .................................... 1.135 Forder v Cemcorp Pty Ltd (2001) 51 NSWLR 486 ....................................................................... 6.50 Forestview Nominees Pty Ltd v Perpetual Trustees WA Ltd (1998) 193 CLR 154 .... 18.05, 18.170 Forgeard v Shanahan (1994) 35 NSWLR 206 ............................................................... 12.70, 12.100 Forrest Trust, Re [1953] VLR 246 ........................................................................................ 8.45 Forslind v Bechely-Crundall ([1922] SC (HL) 173 .................................................................... 14.295 Forsyth v Blundell (1973) 129 CLR 477 ........................................................................... 8.170 Four Oaks Enterprises Pty Ltd v Clark [2002] ANZ ConvR 440; [2002] TASSC 39 ....... 6.65, 6.70, 6.75 409 Lonsdale Pty Ltd v Carra [1974] VR 887 ........................................................................... 14.195 Fowley Marine (Emsworth) Ltd v Gafford [1967] 2 All ER 472; [1967] 2 WLR 1461 ................. 16.100 Francis v Francis [2009] SASC 363 .................................................................................. 12.200 Frater v Finlay (1968) 91 WN (NSW) 730 ............................................................................... 18.190 Frazer v Walker [1967] 1 AC 569 ................... 5.15, 5.70, 5.75, 5.85, 5.90, 5.100, 5.215, 5.370 Freeman d Vernon v West (1763) 95 ER 745; 2 Wils KB 165 ...................................................... 11.10 Fremantle Trades Hall Industrial Assn of Workers v Victor Motor Co Pty Ltd [1963] WAR 201 .... 14.260 French v Queensland Premier Mines [2004] VSC 294 .................................................... 5.120, 5.130 Friedman v Barrett; Ex parte Friedman [1962] Qd R 498 ........................................................... 5.165 Frieze v Unger [1960] VR 230 ................................................................................................. 12.155 Frost, Re (1889) 43 Ch D 246 ................................................................................................... 11.75 Fuller’s Theatre & Vaudeville Co Ltd v Rofe [1923] AC 435 ...................................................... 14.195 Fyfe v Smith [1975] 2 NSWLR 408 .................................................................................... 8.115 xvii

Australian Property Law: Cases and Materials

G GIO v Reed [1988] VR 829 ....................................................................................................... 9.185 Gadsdon v Gadsdon [2003] WASC 48 ........................................................................................ 6.50 Gaite’s Will Trusts, Re [1949] 1 All ER 459; 65 TLR 194 .............................................................. 11.75 Galati v Deep Point Holdings (1999) ANZ ConvR 573 ............................................................ 12.205 Gallagher v Rainbow (1994) 179 CLR 624; 121 ALR 129; 68 ALJR 512 ....................... 17.45 Gallo v St Cyr (1983) 144 DLR (3d) 146 ................................................................................. 14.135 Garcia v National Australia Bank Ltd (1998) 194 CLR 395 ................... 1.115, 5.265, 10.110 Gardiner v Chief Commissioner of State Revenue (2004) 59 NSWLR 549 ............................... 12.185 Garofano v Reliance Finance Corporation Pty Ltd (1992) NSW ConvR 55-640 ................. 5.85, 5.240 Gas & Fuel Corp (Vic) v Barba [1976] VR 755; (1977) 51 ALJR 219 ........................................... 17.20 Gaskin v Balls (1879) 13 Ch D 324 ......................................................................................... 18.125 George v Biztole Corporation Pty Ltd (1995) V ConvR 54-519 ........................................... 6.50, 6.65 Georges v Davies [2007] NSWSC 1284 ..................................................................................... 1.155 Ghilarducci v Ghilarducci [1993] ANZ ConvR 331 .................................................................... 3.110 Gibbs v Messer [1891] AC 248 ................................................................ 5.75, 5.80, 5.85, 5.100 Gifford v Lord Yarborough (1828) 130 ER 1023; 5 Bing 163 ................................................... 16.100 Gill v Lewis [1956] 2 QB 1 ...................................................................................................... 14.280 Ginelle Finance Pty Ltd v Diakakis (2004) NSW ConvR 56-064 ....................................... 5.130, 5.240 Giumelli v Giumelli (1999) 196 CLR 101 ....................................................................... 9.165, 6.190 Given v Pryor (1979) 24 ALR 442 .............................................................................................. 10.15 Gladwell v Steen (2000) 77 SASR 310; [2000] SASC 143 ........................................................ 16.125 Glasshouse Investments Pty Ltd v MPJ Holdings Pty Ltd [2005] NSWSC 456 ............. 14.165, 14.170, 14.190 Gleeson v Richey [1959] VR 258 .................................................................................. 14.60, 14.250 Glensaugh Pty Ltd v Registrar-General (2001) 10 BPR 19,311 ................................................... 5.365 Global College Pty Ltd v Sooncorp Holdings Pty Ltd [2008] NSWSC 750 ................................ 14.250 Global Finance Group Pty Ltd (in liq), Re; Ex parte Read [1999] WASC 46 ................................ 5.210 Global Minerals Australia Pty Ltd v Valerica Pty Ltd (2000) 10 BPR 18,463 .................................. 6.50 Glynn, Re; Ex parte Royle [2003] WASCA 122 ................................................................. 15.10 Golby v Golby (1997) NSW ConvR 55-802 ............................................................................. 12.215 Goldberg v Edwards [1950] Ch 247 .......................................................................... 17.105, 17.120 Golding v Tanner (1991) 56 SASR 482; [1992] ANZ ConvR 233 ............................................... 17.75 Goldmile Properties Ltd v Lechouritis [2003] 2 P & CR 1 ........................................................ 14.165 Goldstraw v Goldstraw [2002] VSC 491 ...................................................................................... 6.50 Goodtitle on the demise of Dodwell v Gibbs (1826) 108 ER 264; 5 B & C 709 ......................... 11.10 Goodwin v Baylis (1875) 13 SCR (NSW) Eq 27 ......................................................................... 11.20 Gordon v Body Corporate Strata Plan 3023 [2004] VSC 359 .................................................. 17.105 Gordon v Lidcombe Developments Pty Ltd [1966] 2 NSWR 9 ................................... 14.170, 14.190 Gotobed v Pridmore (1970) 115 Sol J 78 ................................................................................ 17.180 Gower v Postmaster-General (1887) 57 LT 527 ....................................................................... 14.235 Goyal v Chandra [2006] NSWSC 239 ..................................................................................... 12.185 Graham v KD Morris & Sons Pty Ltd [1974] Qd R 1 .................................................................. 16.60 Gration v C Gillen Investments Pty Ltd [2005] QCA 184 ........................................................... 15.40 Green v Ashco Horticulturist Ltd [1966] 2 All ER 232 ............................................................... 17.120 Green’s Case (1582) Cro Eliz 3; 78 ER 269 .............................................................................. 14.260 Grgic v ANZ Banking Group Ltd (1994) 33 NSWLR 202 ............... 5.120, 5.185, 5.210, 5.235 Griffies v Griffies (1863) 8 LT 758 ............................................................................................ 12.125 Groongal Pastoral v Falkiner Co Ltd (1924) 35 CLR 157 .............................................. 8.125 Guggenheimer v Registrar of Titles (2002) V ConvR 54-658 ...................................................... 3.110 Gumana v Northern Territory (2007) 158 FCR 349 ................................................................. 16.100 Gumland Property Holdings Pty Ltd v Duffy Bros Fruit Market (Campbelltown) Pty Ltd (2008) 234 CLR 237; [2008] HCA 10 .................... 14.230, 14.235, 14.260, 14.290 Gurfinkel v Bentley Pty Ltd (1966) 116 CLR 98 ................................................................ 8.10 Guthrie v Australian and New Zealand Banking Group Ltd (1991) 23 NSWLR 672 .................................................................................................................................. 12.180 Gyarfas v Bray (1989) 4 BPR 9736 .......................................................................................... 18.120 xviii

Table of Cases

H HG & R Nominees Pty Ltd v Fava [1997] 2 VR 368 ................................................................... 5.255 Haggerty v City of Oakland 161 Cal App 2d 407; 326 P 2d 957; 66 ALR 2d 718 (1958) ........... 11.85 Haidar v Blendale Pty Ltd [1993] 2 VR 524 ............................................................................. 14.220 Hali Retail Stores Pty Ltd v Hafaz [2007] NSWSC 412 ............................................................... 14.50 Hall v Busst (1960) 104 CLR 206 ................................................................................................ 4.10 Hall v Hall [1956] QWN 28 ....................................................................................................... 8.150 Halsall v Brizell [1957] Ch 169 ................................................................................................ 18.190 Hamble Parish Council v Haggard [1992] 1 WLR 122 ............................................................... 17.20 Hamersley Iron Pty Ltd v Roberts (1996) 10 WAR 52 ................................................................. 15.15 Hamilton v Joyce [1984] 3 NSWLR 279 .................................................................................. 17.145 Hammersmith and Fulham London Borough Council v Monk [1992] 1 AC 478 ...................... 12.155 Hampshire v Wickens (1878) LR 7 Ch D 555 .......................................................................... 14.125 Handberg v MIG Property Services Pty Ltd [2010] VSC 388 .............................. 6.135, 6.140 Harada v Registrar of Titles [1981] VR 743 .......................................................... 17.20, 17.40, 18.20 Hardebol v Perpetual Trustee Co Ltd [1975] 1 NSWLR 221 ....................................................... 11.65 Hardie v Cuthbert (1988) 65 LGRA 5 ...................................................................................... 16.125 Harmer v Jumbil (Nigeria) Tin Areas Ltd [1921] 1 Ch 200 ............................. 14.170, 14.190, 17.105 Harrem Pty Ltd v Toyo Tyre Rubber Australia Ltd [2008] NSWSC 776 ........................ 14.135, 14.150 Harrington-Smith on behalf of the Wongatha People v Western Australia (No 8) .[2004] FCA 338 ........................................................................................................................................ 7.50 Harris v The King (1936) 56 CLR 177; [1937] ALR 78 ................................................................ 11.75 Harrison v Lia [1951] VLR 470 ............................................................................................. 9.90 Hart v Windsor (1843) 12 M & W 67; 152 ER 1114 ........................................ 14.145, 14.150 Harvey v Pratt [1965] 2 All ER 786 (CA); [1965] 1 WLR 1025 .................................................... 14.50 Hawkesbury Nominees Pty Ltd v Battik Pty Ltd [2000] FCA 185 .............................................. 14.165 Hayes v Northern Territory (1999) 97 FCR 32; [1999] FCA 1248 ............................................... 5.100 Hayes v O’Sullivan (2001) 24 WAR 40 ......................................................................................... 6.50 Hayward v Chaloner [1968] 1 QB 107 ...................................................................................... 3.110 Hayward v Skinner [1981] NSWLR 590 ................................................................................... 12.215 Haywood v Brunswick Benefit Building Society (1881) 8 QBD 403 ........................................... 18.10 Heasman v Pearse (1871) LR 7 Ch App 275 .............................................................................. 11.55 Hedley v Roberts [1977] VR 282 .......................................................... 12.150, 12.155, 12.175 Heggies Bulkhaul Ltd v Global Minerals Australia Pty Ltd (2003) 59 NSWLR 312 ....................... 5.165 Heid v Connell Investments Pty Ltd (1987) 9 NSWLR 628 ........................................................ 5.345 Heid v Reliance Finance Corporation Pty Ltd (1983) 154 CLR 326 ............ 6.85, 6.90, 6.95, 6.100, 6.130 Heidke v Sydney City Council (1952) 52 SR (NSW) 143 ................................................ 1.130 Hemmes Hermitage Pty Ltd v Abdurahman (1991) 22 NSWLR 343 .......................................... 5.145 Henderson v Squire (1868) LR 4 QB 170 ................................................................................ 14.135 Henderson’s Caveat, Re [1998] 1 Qd R 632 ....................................................................... 6.50, 6.65 Henningsen v Nolan (2004) 88 SASR 214 ............................................................................... 14.195 Henry, Ex parte; Re Commissioner of Stamp Duties (1963) 63 SR (NSW) 298; [1962] 80 WN (NSW) 435 ........................................................................................................................ 17.200 Henville v Walker (2001) 206 CLR 459 ............................................................................ 10.10 Hickey v Powershift Tractors Pty Ltd (1998) NSW ConvR 55-889 ................................... 5.185, 5.210 Hill vTupper (1863) 2 H & C 121; 159 ER 51; 9 Jur NS 725; [1865] All ER Rep 696 ................... 17.20 Hillpalm Pty Ltd v Heaven’s Door Pty Ltd (2004) 220 CLR 472 ................................................. 5.290 Hindson v Ashby [1896] 2 Ch 1 .............................................................................................. 16.110 Hircock v Windsor Homes (Development No 3) Pty Ltd [1979] 1 NSWLR 501 ......... 12.45, 12.50 His Grace Metropolitan Petar v Macedonian United Society of Western Australia Inc [2003] WASC 15 ............................................................................................................................... 6.65 Hobson v Gorringe [1897] 1 Ch 182; [1896] All ER Rep 1231 ................................................... 16.22 Hobson’s Will, Re [1907] VLR 724; 13 ALR 703 ......................................................................... 11.75 Hodgson v Marks [1971] Ch 892 .............................................................................................. 2.110 Homebase Ltd v Allied Dunbar Assurance PLC [2002] EWCA Civ 666 ...................................... 14.215 Homebush Abattoir Corp v Bermria Pty Ltd (1991) 22 NSWLR 605 ........................................ 14.135 Honey v Australian Airlines Ltd (1989) 14 IPR 264 ........................................................ 4.125 xix

Australian Property Law: Cases and Materials

Hong v Choo [2004] HKCFI 24 ............................................................................................... 12.155 Hooper v ANZ Banking Group Ltd (1996) 5 Tas R 398 ................................................................ 6.65 Hooper, Re [1932] 1 Ch 38 ...................................................................................................... 11.55 Hordern v Permanent Trustee Co (1894) 10 WN (NSW) 190 ....................................... 11.15 Horsfall v Braye (1908) 7 CLR 629 .......................................................................................... 17.105 Horvath v Commonwealth Bank of Australia [1999] 1 VR 643 ................................................... 5.100 Houghton v Immer (No 155) Pty Ltd (1997) 44 NSWLR 46 ......................................... 13.60 House v Caffyn [1922] VLR 67 ............................................................................... 10.20, 10.35 Howard v B Miles Womens Foundation Inc [2012] NSWSC 1173 ................................. 15.72 Howie v NSW Lawn-Tennis Grounds Ltd (1956) 95 CLR 132 .................................................... 18.10 Hughes v Cork [1994] EGCS 25 ................................................................................................ 3.110 Humphries v The Proprietors of “Surfers Palms North” Group Titles Plan 1955 (1994) 179 CLR 597 ............................................................................................. 13.30, 13.35 Hunt v Luck [1902] 1 Ch 428 ................................................................................................... 2.110 Hunter’s Lease, Re [1942] Ch 124 .......................................................................................... 14.235 Hutchinson v Lemon [1983] 1 Qd R 369 .................................................................................. 5.145 Hutton v Watling [1948] Ch 26 ................................................................................................ 11.55 Hyde Management Services Pty Ltd v FAI Insurances Ltd (1979) 144 CLR 541 ............................ 8.95 Hynes v Vaughan (1985) 50 P & CR 444 ................................................................................... 16.22

I I and L Securities Ltd Pty v HTW Valuers (Brisbane) Pty Ltd (2002) 210 CLR 109 ....................... 10.15 IAC (Finance) Pty Ltd v Courtenay (1963) 110 CLR 550 ...... 6.90, 6.95, 6.160, 6.165, 6.205, 6.215 ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 140 ................................................. 1.55 IGA Distribution Pty Ltd v King & Taylor Pty Ltd [2002] VSC 440 ........................ 2.110, 6.130, 6.180 IceTV Pty Ltd v Nine Network Australia Pty Ltd (2009) 239 CLR 458 ........................................... 1.15 Iggulden v May (1806) 7 East 237; 103 ER 91 ........................................................................ 14.125 Immer (No 145) Pty Ltd v Uniting Church in Australia Property Trust (NSW) (1993) 182 CLR 26; 112 ALR 609 .................................................................................................................. 16.40 Imray v Oakshette [1897] 2 QB 218 ....................................................................................... 14.280 India v Chelikani Rama Rao (1916) LR 43 Ind App 192; 85 LJPC 222 ...................................... 16.100 Indian Taj Pty Ltd v Gilany [2004] NSWSC 1193 ..................................................................... 14.250 Inglis v Clarence Holdings Ltd [1997] 1 NZLR 268 .................................................................... 14.50 Inner City Businessmen’s Club Ltd v James Kirkpatrick Ltd [1975] 2 NZLR 636 ....................... 14.260 Insearch Ltd v Kin Hing Pty Ltd [2004] ANZ ConvR 111; [2003] NSWSC 875 ........................... 14.50 International Alpaca Management Pty Ltd v Ensor (1995) 133 ALR 561 ...................................... 4.85 International Drilling Fluids Ltd v Louisville Investments (Uxbridge) Ltd [1986] Ch 513 ............................................................................................................... 14.210, 14.215 International Tea Stores Co v Hobbs [1903] 2 Ch 165 ............................................................ 17.120 Ioppolo v Ioppolo (1978) 4 Fam LR 124 ..................................................................................... 6.50

J J & C Reid Pty Ltd v Abau Holdings Pty Ltd [1989] ANZ ConvR 44 .......................................... 14.295 J & H Just (Holdings) Pty Ltd v Bank of New South Wales (1971) 125 CLR 546 .......... 6.50, 6.90, 6.95, 6.150, 6.155 JA McBeath Nominees Pty Ltd v Jenkins Development Corp Pty Ltd [1992] 2 Qd R 121 .......... 14.215 JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 ........................................................................ 3.110 JA Pye (Oxford) Ltd v United Kingdom [2008] 46 EHRR 45 ....................................................... 3.110 Jabbour v Sherwood [2003] FCA 529 ....................................................................................... 6.190 Jackson v Crosby (No 2) (1979) 21 SASR 280 ........................................................................... 9.165 Jackson, Re (1883) 25 Ch D 162 ............................................................................................... 11.90 Jackson, Re (1887) 34 Ch D 732 ............................................................................................... 12.40 Jacobs v Platt Nominees Pty Ltd [1990] VR 146 .......... 2.110, 6.90, 6.95, 6.125, 6.130, 6.140 Jacobs v Seward (1872) LR 5 HL 464 ...................................................................................... 12.125 Jaggard v Sawyer [1995] 1 WLR 269 ................................................................................ 1.150 Jalnarne Ltd v Ridewood (1989) 61 P & CR 143 ..................................................................... 17.120 xx

Table of Cases

Jam Factory Pty Ltd v Sunny Paradise Pty Ltd [1989] VR 584 ...................... 14.275, 14.280 James v Registrar-General (1967) 69 SR (NSW) 361 ....................................................... 5.370, 5.380 Jared v Clements [1903] 1 Ch 428 ............................................................................................ 2.110 Javins v First National Realty Corp 428 F2d 1071 (1970) ........................................................ 14.150 Jee v Audley (1787) 29 ER 1186; 1 Cox 324 .............................................................................. 11.75 Jessica Holdings Pty Ltd v Anglican Property Trust Diocese of Sydney (1992) 27 NSWLR 140 ...... 6.50 Jesson v Wright (1820) 4 ER 230; 2 Bli 1 ................................................................................... 11.20 Jigrose Pty Ltd, Re [1994] 1 Qd R 382 ................................................................................ 3.60 Jobson v Nankervis (1943) 44 SR (NSW) 277 .......................................................................... 17.130 John Nitschke Nominees Pty Ltd v Hahndorf Golf Club Inc (2004) 88 SASR 334 ......................... 2.65 Johnson, Re [1973] 2 Qd R 502 ................................................................................................ 3.110 Johnstone, Re [1973] Qd R 347 .............................................................................................. 12.185 Jolevski v Jolevska [2010] NSWSC 416 ........................................................................... 12.210 Jones v Daniel (2005) 212 ALR 588 ......................................................................................... 12.185 Jones v Jones [1977] 1 WLR 438 ............................................................................................. 12.100 Jones v Lavington [1903] 1 KB 253 ......................................................................................... 14.165 Jones v Lock (1865) 1 Ch App 21 ...................................................................................... 9.125 Jones v Morgan (1783) 28 ER 1086; 1 Bro CC 206 ................................................................... 11.20 Jones (dec’d), Re (1950) 66 TLR (Pt 2) 51 ................................................................................. 11.85 Jonns v Tan (1999) NSW ConvR 55-906 ..................................................................................... 6.50 Jonray (Sydney) Pty Ltd v Partridge Bros Pty Ltd (1969) 89 WN (NSW) (Pt 1) 68 ...................... 6.215 Joyce v Barker Bros (Builders) Ltd (1980) 40 P & CR 512 .......................................................... 12.25 Julian-Armitage v The Proprietors Astor Centre [1998] QCA 111 ............................. 13.120 Julong Pty Ltd v Fenn (2003) Q ConvR 54-586 .............................................................. 5.120, 5.130

K KY Enterprises Pty Ltd v Darby [2013] VSC 484 ......................................................................... 3.110 Karacominakis v Big Country Developments Pty Ltd (2000) 10 BPR 18,235 ................... 5.100, 5.130 Karaggianis v Malltown Pty Ltd (1979) 21 SASR 381 ................................................... 14.135, 17.95 Kaufman v Michael (1892) 18 VLR 375 ..................................................................................... 14.50 Kay’s Leasing Corporation Pty Ltd v CSR Provident Fund Nominees Pty Ltd [1962] VR 429 ...... 16.22 Kazas & Assocs Pty Ltd v Multiplex Pty Ltd (2002) 11 BPR 20,353; [2002] NSWSC 840 .......... 14.135 Keane v Carter (1994) 12 WAR 20 .............................................................................................. 3.65 Kearry v Pattinson [1939] 1 KB 471 ............................................................................................ 3.20 Keddell v Regarose Pty Ltd [1995] 1 Qd R 172 ......................................................................... 5.365 Keech v Sandford (1726) 2 Eq Cas Ab 741; 22 ER 629 ................................................................ 2.85 Keitley, Re [1992] 1 VR 583 .................................................................................................... 12.195 Kellow-Falkiners Motors Pty Ltd v Nimorakiotakis [2000] VSCA 1 ............................................ 14.280 Kelly, Re [1932] IR 255 ............................................................................................................. 11.65 Kelsen v Imperial Tobacco Co (of Great Britain and Ireland) Ltd [1957] 2 QB 334; [1957] 2 All ER 343; [1957] 2 WLR 1007 ............................................................ 16.45 Kenny v Preen [1963] 1 QB 499 ............................................................................................. 14.165 Kent v Johnson (1973) 21 FLR 177 ...................................................................................... 1.30 Kenworthy v Ward (1853) 11 Hare 196; 68 ER 1245 ................................................................. 12.10 Kerabee Park Pty Ltd v Daley [1978] 2 NSWLR 222 ................................................ 6.60, 6.65 Kerridge v Foley (1964) 82 WN (Pt 1) (NSW) 293 .................................................................... 18.10 Ketby-Fletcher’s Will Trusts, Re [1969] 1 Ch 339; [1968] 2 WLR 34 ......................................... 11.100 Kettlewell v Refuge Assurance Co [1908] 1 KB 545 ................................................................... 5.210 Kilgour v Gaddes [1904] 1 KB 457 ......................................................................................... 17.145 King v AGC (Advances) Ltd [1983] 1 VR 682 ................................................................... 6.50, 6.165 King v Smail [1958] VR 273 ...................................................................................................... 5.275 King Investment Solutions Pty Ltd v Hussain (2005) 64 NSWLR 441; [2005] NSWSC 1076 .................................................................................................................... 8.135 Kingdon v Hutt River Board (1905) 25 NZLR 145 ................................................................... 16.110 Kingsnorth Trust Ltd v Tizard [1986] 1 WLR 783 ....................................................................... 2.110 Kirby v Cowderoy [1912] AC 599 ............................................................................................. 3.110 Kirk v Sutherland [1949] VLR 33 ............................................................................................... 3.120 Knight v Williams [1901] 1 Ch 256 ......................................................................................... 14.250 Knightsbridge Estates Trust Ltd v Byrne [1939] Ch 441 ................................................. 8.90 xxi

Australian Property Law: Cases and Materials

Koompahtoo Local Aboriginal Land Council v KLALC Property Investment Pty Ltd [2008] NSWCA 6 ....................................................................................................... 5.285 Koorootang Nominees Pty Ltd v ANZ Banking Group Ltd [1998] 3 VR 16 ................................. 5.255 Korda v Australian Executor Trustees (SA) Ltd [2015] HCA 6 ....................................................... 9.25 Kort Pty Ltd v Shaw [1983] WAR 113 ...................................................................................... 18.105 Kranz v National Australia Bank Ltd (2003) 8 VR 310; [2003] VSCA 92 ......................... 5.265, 10.115 Kreglinger v New Patagonia Meat & Cold Storage Co Ltd [1914] AC 25 .................................... 8.85 Kuper v Keywest Constructions Pty Ltd (1990) 3 WAR 419 ......................................................... 6.50 Kuru v New South Wales (2008) 236 CLR 1 .............................................................................. 1.105

L LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd (1989) 24 NSWLR 490; 74 LGRA 282 ................................................................................................ 16.55, 16.60 Lace v Chantler [1944] KB 368; [1944] 1 All ER 305 ................................................................. 14.35 Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 WLR 273 ....................................... 1.15 Laffer v Gillen (1927) 40 CLR 86 ............................................................................................. 14.280 Lake v Craddock (1732) 3 P Wms 158; 24 ER 1011 .................................................................. 12.40 Lam Lee Ying Sdn Bhd v Lam Shes Tong [1975] AC 247 ......................................................... 14.205 Lambeth London Borough Council v Blackburn (2001) 82 P & CR 494 ..................................... 3.110 Lamos Pty Ltd v Hutchison (1984) 3 BPR 9350; NSW ConvR 55-183 ...................................... 17.130 Lancaster v Lloyd (1927) 27 SR (NSW) 379 ............................................................................ 17.105 Landale v Menzies (1909) 9 CLR 89 .......................................................................................... 14.60 Lane Cove Municipal Council v H & W Hurdis Pty Ltd (1955) 72 WN (NSW) 284 ..................... 18.45 Lang v Asemo Pty Ltd [1989] VR 773 ...................................................................................... 14.235 Langdale Pty Ltd v Sollas [1959] VR 637 ................................................................................... 18.75 Langmead v Thyer Rubber [1947] SASR 29 ............................................................................... 4.100 Lansen v Olney (1999) 100 FCR 1 ............................................................................................ 5.275 Lanyon Pty Ltd v Canberra Washed Sands Pty Ltd (1966) 115 CLR 342; [1967] ALR 283 ............................................................................................................. 16.105, 16.110 Lapin v Abigail (1930) 44 CLR 166 ....................................................................... 6.90, 6.100, 6.155 Lardil Peoples v Queensland [2004] FCA 298 ............................................................................ 7.100 Laserbem Pty Ltd v Gainsville Investments Pty Ltd [2004] VSC 62 ............................................. 14.50 Latec Investments Ltd v Hotel Terrigal Pty Ltd (in liq) (1965) 113 CLR 265 .... 2.140, 6.90, 6.185, 6.190 Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623 .................... 14.295 Lawrence v Griffiths (1987) 47 SASR 455 ................................................................................ 17.160 Lawrence v South County Freeholds Ltd [1939] Ch 656 ........................................................... 18.75 Leads Plus Pty Ltd v Kowho Intercontinental Pty Ltd [2000] NSWSC 459 ................................ 14.280 Leaver, Re [1997] 1 Qd R 55 ..................................................................................................... 12.25 Legal Services Commissioner v Dempsey [2008] 2 Qd R 272 ...................................................... 2.75 Legione v Hateley (1983) 152 CLR 406 .................................................................................. 14.280 Lehrer and the Real Property Act, Re [1960] NSWR 570; (1960) 61 SR (NSW) 365 .................................................................................................................................... 16.35 Leigh v Jack (1879) 5 Ex D 264 ................................................................................................. 3.110 Leigh v Taylor [1902] AC 157 ................................................................................................... 16.22 Lemon v Lardeur [1946] 1 KB 613 ............................................................................................ 14.60 Lend Lease Development Pty Ltd v Zemlicka [1985] 3 NSWLR 207 ............... 14.165, 14.170, 14.190 Lensworth Finance Pty Ltd v Whittenbury (unreported, VSC, 1 September 1970) ..................... 6.155 Leonard v Ielasi (1987) 46 SASR 495 ....................................................................... 4.60, 4.100 Leros Pty Ltd v Terara Pty Ltd (1992) 174 CLR 407 ................................................................... 5.100 Leverhulme (No 2), Re [1943] 2 All ER 274 ............................................................................... 11.65 Lewenberg and Pryles v Direct Acceptance Corp Ltd [1981] VR 344 ........................................... 6.65 Lewis v Averay [1992] 1 QB 525 ................................................................................................. 4.95 Lewis v Bell (1985) 1 NSWLR 731 ............................................................................................. 14.25 Lickbarrow v Mason (1787) 2 TR 63; 100 ER 35 ................................................................ 4.30, 4.40 Lighting by Design (Aust) Pty Ltd v Cannington Nominees Pty Ltd [2008] WASCA 23 ............. 14.05, 14.50 Linden v Staybond Pty Ltd [1986] NSW ConvR 55-308 .......................................................... 14.135 Liristis v Wallville [2001] NSWSC 428 ...................................................................................... 14.220 xxii

Table of Cases

Liu v Adamson (2004) NSW ConvR 56–074 .............................................................................. 5.265 Liverpool City Council v Irwin [1977] AC 239; [1976] 2 All ER 39; [1976] 2 WLR 562 ............................................................................................. 14.130, 14.135, 14.150, 17.95 Lloyds & Scottish Finance Ltd v Williamson [1965] 1 WLR 404 ..................................... 4.45 Lloyds Bank Plc v Rosset [1989] Ch 350 .................................................................................... 2.110 Lloyds Bank Plc v Rosset [1991] 1 AC 107 ................................................................................. 2.110 Lockett v Norman-Wright [1925] Ch 56 ................................................................................... 14.50 Loke Yew v Port Swettenham Rubber Co Ltd [1913] AC 491 ............................ 5.155, 5.165 Lolakis v Konistas [2002] NSWSC 889 ..................................................................................... 18.105 London & Blenheim Estates v Ladbroke Retail Parks Ltd [1993] 4 All ER 157; [1994] 1 WLR 31 ........................................................................................................................................ 17.40 London County Council v Allen [1914] 3 KB 642 ...................................................................... 18.10 Long v Gowlett [1923] 2 Ch 177 ............................................................................................ 17.120 Long v Michie [2003] NSWSC 233 ............................................................................ 17.180, 18.105 Long v Piper [2002] ANZ ConvR 43; (2002) NSW ConvR 56-000; [2001] NSWCA 342 ............. 14.50 Lonsdale v Gilbert [2006] NSWLEC 30 .................................................................................... 16.125 Lord Stratheden & Campbell, Re [1894] 3 Ch 265 ................................................................... 11.85 Lord’s Settlement, Re [1947] 2 All ER 685 ............................................................................... 11.100 Louis Vuitton New Zealand Ltd v Prices Wharf Property Fund Ltd [2005] ANZ ConvR 245 ...... 14.215 Louis and the Conveyancing Act, Re [1971] 1 NSWLR 164 ..................... 18.60, 18.85, 18.90 Lukacs v Wood (1978) 19 SASR 520 ......................................................................................... 5.255 Lund v MacArthur 462 P2d 482 (1969) .................................................................................. 14.150 Lynch v O’Keefe [1930] St R Qd 74 .......................................................................................... 6.155 Lyons v Lyons [1967] VR 169 ..................................................................................... 12.155, 12.185 Lysaght v Edwards (1876) 2 Ch D 499 ............................................................................. 9.70, 14.50

M Mabey v Ramsey [1963] NSWR 599 ......................................................................................... 11.20 Mabo v Queensland (No 1) (1988) 166 CLR 186 ....................................................................... 7.30 Mabo v Queensland (No 2) (1992) 175 CLR 1; 107 ALR 1 ......... 1.05, 2.05, 2.15, 2.35, 3.95, 7.25, 7.30, 7.35, 7.90, 16.75 Macfarlane v Nairn [1903] Tas LR 136; 2 N & S 136 ............................................................... 17.180 Mack and the Conveyancing Act, Re [1975] 2 NSWLR 623 ................................ 18.70, 18.75 Mackay, Re; Associated Securities (SA) Ltd v Official Receiver (1972) 20 FLR 147 ..... 4.07 Macleay, Re (1875) LR 20 Eq 186 ............................................................................................... 2.65 Macquarie Bank Ltd v Sixty-Fourth Throne Pty Ltd [1998] 3 VR 133 ............. 5.185, 5.200, 5.215, 5.245 Maddison v Alderson (1883) 8 App Cas 467 .................................................................. 9.165, 14.50 Magill v Magill (1993) NSW ConvR 59,793 (aff (1997) NSW ConvR 56,241) .......................... 12.185 Magnussen v Flanagen [1981] 2 NSWLR 926 ............................................................................. 4.85 Maguire v Makaronis (1997) 188 CLR 449 .................................................................... 10.125 Maiden Civil (P & E) Pty Ltd, Re [2013] NSWSC 852 ........................................................ 8.76 Main Roads, Commissioner for v North Shore Gas Co Ltd (1967) 120 CLR 118 ........................ 17.20 Mair v Rio Grande Rubber Estates Ltd [1913] AC 583 ............................................................... 5.210 Malayan Credit Ltd v Jack Chia Mph Ltd [1986] 1 AC 549 ................................ 12.35, 12.40 Malsons Pty Ltd, Re [1991] 2 Qd R 61 ........................................................................... 5.130, 14.85 Malter v Procopets (2000) V ConvR 54-624 .............................................................................. 3.110 Malzy v Eichholz [1916] 2 KB 308 .......................................................................................... 14.165 Mancetter Developments Ltd v Garmanson Ltd [1986] QB 1212; [1986] 1 All ER 449 .............. 16.30 Manjang v Drammeh (1990) 61 P & CR 194 ............................................................................ 17.85 Manton v Parabolic Pty Ltd (1985) 2 NSWLR 361 ........................................................... 9.05 Maori Trustee v Kahuroa [1956] NZLR 713 ............................................................................. 14.280 Marcroft Wagons Ltd v Smith [1951] 2 KB 496 ......................................................................... 14.25 Marengo Cave Co v Ross 7 NE (2d) 59 (1937) ......................................................................... 3.110 Maridakis v Kouvaris (1975) 5 ALR 197 ................................................................................... 14.250 Marist Brothers Community Inc v Shire of Harvey [1994] 14 WAR 69 .......................................... 9.25 Markin, Re [1966] VR 494 ...................................................................................................... 18.105 Marriott v Franklin (1993) 60 SASR 457 .................................................................................. 12.125 Marsden v Heyes Ltd [1927] 2 KB 1 ........................................................................................ 14.135 xxiii

Australian Property Law: Cases and Materials

Martin-Smith v Woodhead [1990] WAR 62 ............................................................................. 12.205 Martyn, Re (1965) 65 SR (NSW) 387 ........................................................................................ 18.90 Mason v Clarke [1955] AC 778 ............................................................................................... 17.200 Massart v Blight (1951) 82 CLR 423 ....................................................................................... 14.250 Masters v Cameron (1954) 91 CLR 353; 28 ALJR 438 ............................................................... 14.50 Maughan, Re (1885) 14 QBD 956 ............................................................................................ 14.50 Maurice Toltz Pty Ltd v Macy’s Emporium Pty Ltd [1970] 1 NSWR 474 ..................................... 17.20 Maxted v LC Smith & Co Pty Ltd [2008] QSC 165 ................................... 9.160, 15.60, 15.65 McDonald v Reicht (1984) 36 SASR 295 ............................................................... 15.05, 15.15 McDonald Trust No 1, Re [2010] VSC 324 ................................................................................ 11.65 McEacharn v Colton [1902] AC 104 ........................................................................................... 6.50 McEwin v Valuer-General (1993) 80 LGERA 12 .......................................................................... 16.40 McGrath v Campbell [2006] NSWCA 180 ......................................................................... 17.70 McGregor v McGregor (1859) 1 De GF & J 63 ......................................................................... 12.10 McIntyre v Porter [1983] 2 VR 439 ......................................................................................... 17.180 McKean’s Caveat, Re [1988] 1 Qd R 524 .................................................................................... 6.50 McKee v McKee (1986) 10 Fam LR 754 .................................................................................. 12.185 McKenzie v McAllum [1956] VLR 208 ..................................................................................... 14.215 McKinnon v Portelli (1959) 60 SR (NSW) 343 ......................................................................... 14.260 McLernon v Connor (1907) 9 WALR 141 .................................................................................. 17.85 McMahon v Ambrose [1987] VR 817 ........................................................................................ 14.50 McMillan v Dunoon [2006] ANZ ConvR 87; [2005] VSC 440 ...................................................... 6.50 McPhail v Persons, Names Unknown [1973] Ch 447 .............................................................. 14.270 McPherson v Minister for Natural Resources (1990) 22 NSWLR 671 ....................................... 14.280 McVey v Dennis (1984) FLC 91-521 ....................................................................................... 12.185 McWilliam v McWilliams Wines Pty Ltd (1963) 114 CLR 656 ....................................................... 9.50 Medforth v Blake [2000] Ch 86 ................................................................................................ 8.165 Medical Benefits Fund of Australia Ltd v Fisher [1984] 1 Qd R 606 ........... 5.130, 5.255, 5.275, 5.370 Melacare International v Daley Investments [1999] NSWSC 496 ............................................. 14.280 Melksham v Archerfield Airport Corp [2004] QSC 164 .................................. 14.200, 14.205 Members of the Yorta and Yorta Aboriginal Community v Victoria (2002) 214 CLR 222; [2002] HCA 58 ................................................................................................. 7.115 Mercantile Credits Ltd v Shell Co of Australia Ltd (1976) 136 CLR 326 ......... 5.120, 5.125, 5.130, 14.80 Mercantile Mutual Life Insurance Co Ltd v Gosper (1991) 25 NSWLR 32 ....................... 1.115, 5.240 Merhi v New Quay Stage 2 Pty Ltd [2003] VSC 190 ............................................................... 14.280 Meriton Apartments Pty Ltd v McLaurin & Tait Developments Pty Ltd (1976) 133 CLR 671 ...... 6.215 Mervin, Re [1891] 3 Ch 197 ..................................................................................................... 11.55 Metal Manufacturers Ltd v Federal Commissioner of Taxation (1999) 43 ATR 375 ..................... 16.22 Metropolitan Trade Finance Co Pty Ltd v Coumbis (1973) 131 CLR 396 ................................. 14.195 Meye v Electric Transmission Ltd [1942] Ch 290 ....................................................................... 14.05 Micklethwait v Newlay Bridge Co (1886) 33 Ch D 133 ........................................................... 16.110 Middle Harbour Investments Ltd, Re [1977] 2 NSWLR 652 ......................................................... 2.35 Midland Brick Co Pty Ltd v Welsh [2006] WASC 122 ................................................................... 6.65 Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 ......................................................................... 7.30 Miller v Cannon Hill Estates Ltd [1931] 2 KB 113 .................................................................... 14.150 Miller v Emcer Products Ltd [1956] Ch 304 ............................................................................ 14.165 Miller v Evans [2010] WASC 127 ..................................................................................... 18.135 Miller v Minister of Mines [1963] AC 484 ........................................................................ 5.280, 6.50 Mills v Brooker [1919] 1 KB 555 ................................................................................................. 3.40 Mills v Renwick (1901) 1 SR ...................................................................................................... 2.110 Milroy v Lord (1862) 4 De G F & J 264; 45 ER 1185 ................................................................. 9.130 Mimi v Millenium Developments Pty Ltd (2004) V ConvR 54–687 ................................. 6.130, 6.155 Minter v Minter (2000) 10 BPR 18,133 ..................................................................................... 12.50 Mischel v Mischel Holdings Pty Ltd (in liq) [2012] VSC 292 .................................................... 12.185 Mitcham City Council v Clothier (1994) 62 SASR 394; 83 LGERA 431 ...................................... 17.20 Mitchell v Arblaster [1964-1965] NSWR 119 ............................................................................. 12.60 Moffett v Dillon [1999] 2 VR 480 ...................................................... 2.110, 6.90, 6.170, 6.180 Monash City Council v Melville (2000) V ConvR 54-261 ........................................................... 3.110 Monk v Custom Credit Corporation Ltd (1982) 104 LSJS 310 ..................................................... 4.75 xxiv

Table of Cases

Monte Carlo Caravan Park Pty Ltd v Curyer & Curyer [2006] QCA 363 ...... 15.110, 15.115 Moody v Steggles (1879) 12 Ch D 261 .................................................................................... 18.20 Moore v Dimond (1929) 43 CLR 105 ..................................................................... 14.65, 14.70 Moore v Ullcoats Mining Co Ltd [1908] 1 Ch 575 ........................................... 14.255, 14.260 Moore, Re [1901] 1 Ch 936 ...................................................................................................... 11.65 Moorhouse v Angus & Robertson (No 1) Pty Ltd [1981] 1 NSWLR 700 ...................................... 3.65 Morley v Bird (1798) 3 Ves 628; 30 ER 1192 ............................................................................. 12.40 Morley v Rennoldson (1843) 2 Hare 570; 67 ER 235 .................................................................. 2.65 Morton v Black (1986) 4 BPR 9164 ........................................................................................... 5.100 Mount Eden Land Ltd v Straudley Investments Ltd (1996) 74 P & CR 306 .............................. 14.215 Mulcahy v Curramore Pty Ltd [1974] 2 NSWLR 464 ....................... 3.80, 3.110, 3.115, 3.120 Multi-Span Constructions No 1 Pty Ltd v 14 Portland Street Pty Ltd (2001) 10 BPR 19,253 ........ 6.50 Murphy v Harris [1924] St R Qd 187 ...................................................................................... 14.245 Murphy v Michel (1867) 4 WW & A’B (L)13 ............................................................................. 3.120 Murphy v Overton Investments (2004) 216 CLR 388 .............................................................. 15.125 Murphy v Wright (1992) NSW ConvR 55-652 ............................................................................ 6.50 Murray-Oates v Jjadd Pty Ltd (1999) 76 SASR 38 .................................................................... 14.295 Muschinski v Dodds (1985) 160 CLR 583 ................................................................................. 6.190

N N Jobson and the Real Property Act 1990, Re (1951) 68 WN (NSW) 23 .................................... 5.380 NGL Properties Pty Ltd v Harlington Pty Ltd [1979] VR 92 ...................................................... 14.260 NRMA Insurance Ltd v Martin (1988) 84 ACTR 1 ........................................................................ 6.80 NSW Land and Housing Corporation v Stannard [2000] 50 NSWLR 89 ..................... 15.25 Naish and the Conveyancing Act, Re (1960) 77 WN (NSW) 892 ............................................... 18.75 Nangus Pty Ltd v Charles Donovan Pty Ltd [1989] VR 184 ..................................................... 14.295 Nathan Securities Ltd v Stavefield Holding (No 29) Ltd (1993) 6 BCB 227 ................................ 8.165 National Australia Bank Ltd v Blacker (2000) 104 FCR 288; 179 ALR 97; [2000] FCA 1458 ............................................................................................................... 16.10, 16.22 National Australia Bank Ltd v Maher [1995] 1 VR 318 ............................................................... 5.100 National Australia Bank Ltd v New South Wales (2009) 182 FCR 52; 260 ALR 115 ...................... 2.35 National Bank of Australia v Dyer (1996) V ConvR 54-533 .......................................................... 6.50 National Banking Corporation of Australia Ltd v Hedley (1984) NSW ConvR 55-211 ................. 5.185 National Commercial Banking Corp. of Australia Ltd v Hedley (1984) NSW ConvR 55-211 ....... 5.210 National Executors and Trustees Co of Tasmania Ltd v Edwards [1957] Tas SR 182 .................................................................................................................................. 17.205 National Outdoor Advertising Ltd v Wavon Pty Ltd (1988) 4 BPR 9732 ..................................... 14.25 National Trustees, Executors & Agency Co of Australasia Ltd v Boyd (1926) 39 CLR 72 ........... 14.110 National Trustees Executors and Agency Co of Australasia Ltd v Long [1939] VLR 33; [1939] ALR 46 .................................................................................................................. 17.105, 17.120 Naziridis v Rimis (1985) 9 BPR 16,201 .................................................................................... 12.240 Neilson v Letch (No 2) [2006] NSWCA 254 .............................................................................. 12.60 Nelson v Nelson (1995) 184 CLR 538 ....................................................................................... 10.55 Netherby Properties Pty Ltd v Tower Trust Ltd (1999) 76 SASR 9; [1999] SASC 247 ......................................................................................................................... 18.25, 18.90 Neubacher v Good (2003) 11 BPR 20,877 .............................................................................. 12.195 New South Wales v Koumdjiev (2005) 63 NSWLR 353 ........................................................... 12.155 New South Wales Sports Club Ltd v Solomon (1914) 14 SR (NSW) 340 .................................. 14.125 New South Wales in Williams v State Transit Authority of NSW [2004] NSWCA 179 .................. 17.75 Newcastle-under-Lyme v Wolstanton Ltd [1947] 1 Ch 92 ......................................................... 17.20 Newton Abbot Cooperative Society Ltd v Williamson and Treadgold Ltd [1952] Ch 286 .......... 18.60 Newtons of Wembley Ltd v Williams [1965] 1 QB 560 .............................................................. 4.100 Newtons of Wembly Ltd v Williams [1965] 1 QB 560 .................................................................. 4.95 Nguyen v Huy On (2004) NSW ConvR 56-065 ........................................................................... 6.50 Ninubon v Gag Pty Ltd (1998) 9 BPR 16,479 ......................................................................... 14.250 Norden v Blueport Enterprises Ltd [1996] 3 NZLR 450 ........................................................... 14.165 North Sydney Printing Pty Ltd v Sabemo Investment Corp Pty Ltd [1971] 2 NSWLR 150 ........................................................................................................... 17.80, 17.85 Northern Building Contractors Pty Ltd v Bourseguin (1992) ANZ ConvR 598 ........................... 5.165 xxv

Australian Property Law: Cases and Materials

Northern Countries Fire Insurance Co v Whipp (1884) 26 Ch D 482 ............... 2.115, 2.120 Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 ........................... 15.35, 15.40 Northern Territory v Arnhem Land Aboriginal Land Trust (2008) 236 CLR 24 .......................... 16.100 Nullagine Investments Pty Ltd v Western Australian Club Inc (1993) 177 CLR 635 ...................... 2.65

O O’Byrne v Gillett (Real Property) [2006] VCAT 1053 ................................................................ 12.115 O’Neil v Hart [1905] VLR 107 ................................................................................................... 3.110 Oak Property Co Ltd v Chapman [1947] KB 886 .................................................................... 14.260 Obadia v Morris (1974) 232 EG 333 ....................................................................................... 17.180 Oceanic Village Ltd v Shirayama Shokusan Co Ltd [2001] All ER (D) 62 (Feb); [2001] L & TR 35 ......................................................................................................................... 14.170, 14.190 Official Receiver v Klau; Ex parte Stephenson Nominees Pty Ltd (1987) 74 ALR 67 .................... 5.275 Official Trustee in Bankruptcy v Mateo (2003) 202 ALR 571 ........................................... 6.50, 12.185 Old Papa’s Franchise Systems Pty Ltd v Camisa Nominees Pty Ltd [2003] WASCA 11 ............. 14.215, 14.220, 14.280 Oleander Nominees Pty Ltd v Owners of Lakeside Villas Strata Plan 14025 [2002] WASC 255 .... 18.105 195 Crown Street Pty Ltd v Hoare [1969] 1 NSWR 193 .......................................................... 14.220 Oppenheimer v Attenborough [1908] 1 KB 221 ......................................................................... 4.75 Osmanoski v Rose [1974] VR 523 ............................................................................................. 6.155 Oversea-Chinese Banking Corp Ltd (OCBC) v Malaysian Kuwaiti Investment Co (MKIC) [2003] VSC 495 ................................................................................................................... 2.110 Owen v Gadd [1956] 2 QB 99 ................................................................................................ 14.165 Owners - Strata Plan 5709, The v Andrews [2009] NSWCA 189 .................................. 13.40 Owners Strata Plan 50276 v Chee Min Thoo [2013] NSWCA 270 .............................. 13.115 Owners of Metro Inn Apartments Strata Plan 11880 v Transmetro Corporation Ltd [2000] WASC 293 ........................................................................................................................... 13.35 Oxford v Moss (1979) 68 Cr App R 182 ....................................................... 1.65, 4.145, 4.150

P P&A Swift Investments v Combined English Stores Group Plc [1989] AC 632 ....... 14.225, 14.235 PT Ltd v Maradona Pty Ltd (1991) 25 NSWLR 643 ............................................. 5.100, 5.120, 5.130 Pacific Motor Auctions Pty Ltd v Motor Credits (Hire Finances) Ltd [1965] AC 867 ................... 4.100 Palais Parking Station Pty Ltd v Shea (1980) 24 SASR 452 ......................................................... 5.240 Palgo Holdings Pty Ltd v Gowans (2005) 221 CLR 249; 215 ALR 253; 79 ALJR 1121; [2005] HCA 28 ............................................................................................... 4.15, 8.05 Palmer v Board of Land and Works (1875) 1 VLR (E) 80 ............................................................ 17.30 Palumberi v Palumberi (1986) 4 BPR 9106 .......................................................... 16.15, 16.22 Pampris v Thanos [1968] 1 NSWR 56 ..................................................................................... 14.150 Pan Australian Credits (SA) Pty Ltd v Kolim Pty Ltd (1981) 27 SASR 353 ................................... 16.22 Pancontinental Mining Ltd v Commissioner of Stamp Duties [1989] 1 Qd R 310 ...................... 4.150 Panizutti v Trask (1987) 10 NSWLR 531 .................................................................................. 12.215 Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 ............................ 4.120 Parker v Mortgage Advance Securities Pty Ltd [2003] QCA 275 ...................... 5.260, 5.265 Parker v Registrar-General [1977] 1 NSWLR 22 ............................ 5.345, 5.350, 5.360, 5.365 Paroz v Paroz [2010] QSC 203 ........................................................................................ 12.130 Parry v Sullivan (1979) 9 RFL (2d) 349 .................................................................................... 12.185 Parsons v McBain (2002) 109 FCR 120; 192 ALR 772 ............................................................... 6.190 Parsons v Queen (1999) 195 CLR 619 ..................................................................... 1.60, 4.190 Patmore v Upton (2004) 13 Tas R 95 ............................................................................... 6.50, 6.190 Paul v Nurse (1828) 8 B & C 486; 108 ER 1123 ...................................................................... 14.245 Paulet v Stewart [2009] VSC 60 ........................................................................................ 10.90 Payne v Inwood (1996) 74 P & CR 42 .................................................................................... 17.120 Pearson v Rose & Young Ltd [1950] 2 All ER 1027; [1951] 1 KB 275 ........................................... 4.75 Peck v Peck [1965] SASR 293 ................................................................................................. 12.205 Peck, Re [1893] 2 Ch 315 ....................................................................................................... 17.120 xxvi

Table of Cases

Peckham v Ellison (1999) 77 P & CR 172 .................................................................................. 17.95 Peddie v Stein (1998) NSW ConvR 55-379 ............................................................................... 5.210 Pedulla v Panetta [2011] NSWSC 1386 ..................................................................................... 5.345 Pekel v Humich (1999) 21 WAR 24 ......................................................................................... 17.145 Peldan v Anderson (2006) 229 ALR 432 .................................................................................. 12.185 Pemberton v Dimitrijevic [2001] NSWSC 54 ............................................................................. 14.50 Pendlebury v Colonial Mutual Life Assurance Society Ltd (1912) 13 CLR 676 ............................ 8.165 Penn v Gatenex Co Ltd [1958] 2 QB 210 ............................................................................... 14.150 Penny Nominees Pty Ltd v Fountain (No 3) (1991) NSW ConvR 55-561 ................................. 12.185 People of the State of New York ex rel, The Nonhuman Rights Project Inc, on behalf of Tommy v Lavery (2014) WL 6802767 (NYAD 3 Dept) ............................................................ 1.15 Perman v Maloney [1939] VLR 376 ........................................................................................ 12.205 Permanent Trustee Australia Ltd v Esanda Corp Ltd (1991) 6 BPR 13,420; [1991] ANZ ConvR 565 .......................................................................................................................... 16.22 Permanent Trustee Ltd v Shand (1992) 27 NSWLR 426 .......................................................... 17.200 Perpetual Ltd v Barghachoun [2010] NSWSC 108 .................................................................... 5.100 Perpetual Trustee Co v Williams (1913) 13 SR (NSW) 209 ......................................................... 11.55 Perpetual Trustee Co Ltd v Gilmour [1979] 2 NSWLR 716 .......................................................... 2.65 Perpetual Trustee Company Ltd v Smith [2010] V ConvR 54-779 .......... 2.110, 6.90, 6.175, 6.180 Perpetual Trustees Victoria Ltd v Cox [2014] NSWCA 328 ......................................................... 5.110 Perpetual Trustees Victoria Ltd v English [2010] ANZ ConvR 10-015; [2010] NSW ConvR 56-260 ................................................................................................................................ 5.110 Perpetual Trustees Victoria Ltd v Suncorp-Metway Ltd [2009] NSWLEC 1326 ......................... 16.125 Perpetual Trustees Victoria Ltd v Tsai (2004) 12 BPR 22,281 ........................................... 5.120, 5.130 Perpetual Trustees Victoria Ltd v Xiao Hui Ying [2015] VSC 21 .................................................. 5.120 Perrin v Blake (1770) 98 ER 355; 4 Burr 2579 ........................................................................... 11.20 Perry v Clissold [1907] AC 73 ............................................................................. 3.80, 3.85, 3.90 Perry v Rolfe [1948] VLR 297 ............................................................................................. 8.40, 8.50 Person-to-Person Financial Services Pty Ltd v Sharari [1984] 1 NSWLR 745 ............ 6.120, 6.155 Perth Construction Pty Ltd v Mount Lawley Pty Ltd (1955) 57 WALR 41 ................................. 18.105 Pertsoulis v Pertsoulis (1980) FLC 90,823 ............................................................................... 12.185 Peters v Lithgow Forge Pty Ltd [2010] NSWSC 283 .................................................................... 6.50 Phillips v Marrickville Municipal Council (2002) 11 BPR 20,135 ................................................ 3.120 Phipps v Pears [1965] 1 QB 76; [1964] 2 All ER 35; [1964] 2 WLR 996 ........................ 17.20, 17.120 Picwoods Pty Ltd v Panagopoulos (2005) NSW ConvR 56-120; [2004] NSWSC 978 ................. 14.50 Pigot’s Case (1614) 11 Co Rep 26b .......................................................................................... 5.100 Pilcher v Rawlins (1872) 7 Ch App 259 ................................................................... 2.95, 2.100 Pile’s Caveats, Re [1981] Qd R 81 ............................................................................................... 6.50 Pimms Ltd v Tallow Chandlers Co Ltd [1964] 2 QB 547 .......................................................... 14.215 Pines v Perssion 111 NW 2d 409 (1961) ................................................................................. 14.150 Pinewood Estate, Farnborough, Re [1958] Ch 280 ................................................................... 18.60 Pirie v Registrar-General (1962) 109 CLR 619 ........................................................................... 18.60 Pitt v Baxter (2006) 159 A Crim R 293; [2006] WASC 4 ........................................................... 12.155 Pivotal Pty Ltd, Re [2000] VSC 264 ......................................................................................... 18.105 Platt v Ciriello [1998] 2 Qd R 417 .................................................................................. 13.100 Platzer v Commonwealth Bank of Australia [1997] 1 Qd R 266 ............................... 2.110, 6.90, 6.95 Plenty v Dillon (1991) 171 CLR 635 .................................................................................... 1.95 Polden v Bastard (1865) LR 1 QB 156 ..................................................................................... 17.105 Ponderosa International Development Inc v Pengap Securities (Bristol) Ltd (1986) 277 EG 1252 .................................................................................................................................. 14.215 Port v Griffith [1938] 1 All ER 295 ........................................................................................... 14.170 Porter v Williams (1914) 14 SR (NSW) 83 ................................................................................. 14.35 Post Investments Pty Ltd v Wilson (1990) 26 NSWLR 598 .......................................... 18.105, 18.120 Postle v Sengstock [1994] 2 Qd R 290 ........................................................................................ 8.15 Pozzi, Re [1982] Qd R 499 ...................................................................................................... 12.185 PricewaterhouseCoopers Legal v Perpetual Trustees Victoria Ltd (2007) 14 BPR 26,835 ............ 16.22 Prior v Lansdowne Press Pty Ltd [1977] VR 65 .......................................................................... 12.14 Prior’s Case (1368) YB 42 Ed III ............................................................................................... 18.170 xxvii

Australian Property Law: Cases and Materials

Progressive Mailing House v Tabali Pty Ltd (1985) 157 CLR 17 ............................................... 14.295 Property Unit Nominees (No 2) Pty Ltd, Ex parte [1981] Qd R 178 .......................................... 5.145 Proprietors Strata Plan No 30234 v Margiz Pty Ltd (1993) 32 NSWLR 294 .............. 13.50 Proprietors Strata Plan No 9,968 v Proprietors Strata Plan No 11,173 [1979] 2 NSWLR 605 .... 17.180 Proprietors of Strata Plan 6522 v Furney [1976] 1 NSWLR 412 ............................................... 13.110 Proprietors of the Centre Building Units Plan No 343, The v Bourne [1984] 1 Qd R 613 ......... 12.125 Prospect County Council v Cross (1991) 21 NSWLR 601 ........................................................ 17.105 Provident Capital Ltd v Zone Developments Pty Ltd [2002] NSW ConvR 56-003; [2001] NSWSC 843 ....................................................................................................................... 14.215 Prudential Assurance Co Ltd v London Residuary Body [1992] 2 AC 386 ................................... 14.35 Public Trustee v Evans (1985) 2 NSWLR 188 ........................................................................... 12.195 Public Trustee v Fraser (1987) 9 NSWLR 433 .......................................................................... 12.195 Public Trustee v Gittoes (aka Caldar) [2005] NSWSC 373 ......................................................... 12.50 Public Trustee v Grivas [1974] 2 NSWLR 316 .......................................................................... 12.185 Public Trustee v Hall [2003] ACTCA 27 ................................................................................... 12.185 Public Trustee v Paradiso (1995) 64 SASR 387 ............................................................... 5.240, 5.305 Public Trustee v Pfeiffle [1991] 1 VR 19 ................................................................................... 12.185 Pugh v Savage [1970] 2 QB 373; [1970] 2 All ER 353 ............................................................. 17.145 Pulleyn v Hall Aggregates (Thames Valley) Ltd (1992) 65 P & CR 276 ....................................... 3.110 Purchase v Lichfield Brewery Co [1915] 1 KB 184 ................................................................... 14.245 Purefoy v Rogers (1671) 85 ER 1181; 2 Wms Saund 380 ............................................... 11.25, 11.35 Pwllbach Colliery Co Ltd v Woodman [1915] AC 634; [1915] All ER Rep 124 ................. 17.30, 17.95 Pyramid Building Society (in liq) v Scorpion Hotels Pty Ltd [1998] 1 VR 188 .......... 5.100, 5.120, 5.130, 5.175, 5.185

Q Quach v Marrickville Municipal Council (No 2) (1990) 22 NSWLR 55 ....................................... 3.110 Quarmby v Keating [2008] TASSC 71 ......................................................................................... 2.75 Queensland v Beames (2002) 120 LGERA 309; Q ConvR 54-571; [2002] QCA 209 ................. 16.100 Queensland Premier Mines Pty Ltd v French (2007) 235 CLR 81 .............................................. 5.120 Queensway Marketing Ltd v Associated Restaurants Ltd (1984) 271 EG 1108 ......................... 14.165

R R v Cattell [2010] SASCFC 18 ................................................................................................... 1.105 R v Commissioners of Sewers for Pagham (Sussex) (1828) 108 ER 1075; 8 B & C 355 ............ 16.100 R v Credit Tribunal (SA); ex parte GMAC (1977) 137 CLR 545 .................................................. 15.20 R v Delphin (2001) 79 SASR 429 .............................................................................................. 1.105 R v McKay [1957] VR 560 ........................................................................................................... 1.55 R v Recorder of Titles; Ex parte Horlock [1991] Tas R (NC) N4; [1992] ANZ ConvR 172 ............ 5.145 R v Stewart (1988) 50 DLR (4th) 1 ............................................................................................ 4.150 R v The Registrar of Titles; Ex parte Waddington [1917] VLR 603; 23 ALR 315 ...... 17.15, 17.20 R v Turner [1962] VR 30 ........................................................................................................... 1.105 R K Roseblade and V M Roseblade and the Conveyancing Act, Re [1964-5] NSWR 2044 ........ 18.105 R M Hosking Properties Pty Ltd v Barnes [1971] SASR 100 ........................................................ 5.165 RJ Finlayson Ltd v Elder, Smith & Co Ltd [1936] SASR 209 ........................................................ 17.20 Radaich v Smith (1959) 101 CLR 209; [1959] HCA 45 ........................................ 14.20, 14.25 Rains v Buxton (1880) 14 Ch D 537 ......................................................................................... 3.110 Rands Development Pty Ltd v Davis (1975) 133 CLR 26 ............................................................. 9.50 Ransome, Re [1957] Ch 348; [1957] 1 All ER 690 ................................................................... 11.100 Raphael, Re; Permanent Trustee Co of New South Wales Ltd v Lee (1903) 3 SR (NSW) 196 ...... 11.55 Rasch Nominees Pty Ltd v Bartholomaeus [2012] SASC 70 ......................................................... 9.70 Rasmanis v Jurewitsch [1968] 2 NSWR 166 .................................................................. 12.190 Rasmanis v Jurewitsch (1969) 70 SR (NSW) 407 .......................................................... 12.190 Rasmussen v Rasmussen [1995] 1 VR 613 ...................................................................... 5.100, 5.275 Ratcliffe v Watters [1969] 2 NSWR 146; (1969) 89 WN (Pt 1) ................................................... 5.210 Ratto v Trifid Pty Ltd [1987] WAR 237; (1985) 56 LGRA 22; [1985] ANZ ConvR 202 ................. 14.50 xxviii

Table of Cases

Ray v Hazeldine [1904] 2 Ch 17 ............................................................................................... 17.85 Raymond Pemberton v Milivoj Dimitrijevic [2001] NSWSC 54 .................................... 14.30 Redden v Wilks [1979] WAR 161 ................................................................................................. 9.25 Redglove Projects v Ngunnawal Local Aboriginal Council (2004) 12 BPR 22–319 ....................... 6.50 Regent v Millett (1976) 133 CLR 679; 10 ALR 496 ................................................ 9.30, 14.50 Regis Property Co Ltd v Dudley [1959] AC 370 ....................................................................... 14.135 Regis Towers Real Estate Pty Ltd v CSS Holdings Pty Ltd [2001] NSWSC 139 ............................ 13.35 Registrar-General v Behn [1980] 1 NSWLR 589 .............................................................. 5.345, 5.365 Registrar-General v Cleaver (1996) 4 NSWLR 713 ..................................................................... 5.145 Registrar-General v Fairless [1997] 1 VR 404 ............................................................................. 5.360 Registrar-General (NSW) v Jea Holdings (Aust) Pty Ltd [2015] NSWCA 74 .... 17.35, 17.65 Registrar General of New South Wales v Van Den Heuvel [2010] NSW ConvR 56-266; [2010] ANZ ConvR 10-040 ............................................................................... 5.105 Registrar of Titles (WA) v Franzon (1975) 132 CLR 611 ............................................................. 5.345 Renshaw v Maher [1907] VLR 520 .......................................................................................... 14.245 Renwarl Pty Ltd v Birky (1998) V ConvR 54-578 ......................................................................... 6.50 Reste Realty Corp v Cooper (1968) 53 NJ 444; 251 A 2d 268 (1968) ...................................... 14.295 Reuthlinger v MacDonald [1976] 1 NSWLR 88 ........................................................................... 2.65 Rhone v Stephens [1994] 2 AC 310 ........................................................................... 18.180, 18.190 Rice v Rice (1853) 2 Drew 73; 61 ER 646 .................................................................................... 6.90 Richardson v Landecker (1949) 66 WN (NSW) 236 ................................................................ 14.195 Ridley v Taylor [1965] 2 All ER 51 ............................................................................................ 18.105 Riley v Penttila [1974] VR 547; 30 LGRA 79 ................................. 3.110, 17.10, 17.20, 17.180 Road Australia Pty Ltd v Commissioner of Stamp Duties [2001] 1 Qd R 327 ............................... 2.50 Roads and Traffic Authority v Swain (1997) 41 NSWLR 452 ........................................ 15.80 Roake v Chadha [1984] 1 WLR 40 ............................................................................................ 18.45 Robertson v Butler [1915] VLR 31 ............................................................................................. 3.120 Robertson v Fraser (1871) 6 Ch A 696 ............................................................................. 12.20 Robinson v Hardcastle (1788) 2 Term Rep 241; 100 ER 131 ...................................................... 11.55 Robinson v Kilvert (1889) LR 41 Ch D 88 ................................................................... 14.170, 14.190 Robinson v Kingsmill (1954) 71 WN (NSW) 127 ..................................................................... 14.250 Robinson, Re [1972] VR 278 ............................................................................... 18.100, 18.105 Robson-Paul v Farrugia (1969) 20 P & CR 820 ........................................................................ 12.155 Roche and Murdoch’s Contract, Re [1921] VLR 296 ............................................................... 17.120 Roche and the Conveyancing Act, Re (1960) 77 WN (NSW) 431 .............................................. 18.45 Rochford v Hackman (1852) 68 ER 597; 9 Hare 475 ................................................................. 11.10 Rock v Todeschino [1983] Qd R 356 ......................................................................................... 5.100 Roclin Investments Pty Ltd v Makris (1974) 7 SASR 485 .............................................................. 6.65 Roddy v Fitzgerald (1858) 10 ER 1518; 6 HL Cas 823 ............................................................... 11.20 Rodwell v GR Evans & Co Pty Ltd [1978] 1 NSWLR 448; [1979] ANZ ConvR 8 ....................... 17.145 Rogers v Hosegood [1900] 2 Ch 388 ........................................................................... 18.45, 18.170 Rogers v Mutch (1878) 10 Ch D 25 .......................................................................................... 11.90 Rogers v Resi-Statewide Corporation Ltd (1991) 101 ALR 377 .................................................. 5.295 Rosa Investments Pty Ltd v Spencer Shier Pty Ltd [1965] VR 97 .............................................. 14.260 Rosher, Re (1884) 26 Ch D 801 .................................................................................................. 2.65 Routledge v Dorril (1794) 30 ER 671; 2 Ves Jun 357 ................................................................. 11.55 Roy v Lagona [2010] VSC 250 ................................................................................................ 16.120 Royal Bank of Scotland v Etridge (No 2) [2002] AC 773 ............................................................ 5.255 Royal Brunei Airlines v Tan [1995] 3 WLR 64 ............................................................................... 2.85 Royal College of Surgeons of England v National Provincial Bank Ltd [1952] AC 631; [1952] 1 All ER 984; [1952] 1 TLR 978 ............................................................................................. 11.55 Royal Melbourne Hospital v Equity Trustees Ltd (2007) 18 VR 469; [2007] VSCA 162 ......................................................................................................................... 13.20, 13.25 Royal Victoria Pavilion (Ramsgate), Re [1961] Ch 581 ............................................................... 18.35 Rufa Pty Ltd v Cross [1981] Qd R 365 .......................... 9.185, 17.155, 17.160, 18.185, 18.190 Rule v Mallon (2000) 10 BPR 18,005 ........................................................................................ 12.50 Rural View Developments Pty Ltd v Fastfort Pty Ltd [2009] QSC 244 ...................... 17.155 Russo v Bendigo Bank Ltd [1999] 3 VR 376 .............................................. 5.180, 5.185, 5.210 Ruthol Pty Ltd v Mills (2003) 11 BPR 20,793 ............................................................................. 6.190 Ryan v Dries (2002) 10 BPR 19,497 ....................................................................... 12.65, 12.70 xxix

Australian Property Law: Cases and Materials

Ryan v King [1932] QWN 1 .................................................................................................... 12.240 Ryan v O’Sullivan [1956] VLR 99 ......................................................................................... 8.60 Ryan v Starr [2005] NSWSC 170 ............................................................................................... 5.165 Rye v Rye [1962] AC 496 ........................................................................................................ 17.120

S Sabri, Re (1996) 137 FLR 165; (1997) FLC 92-732 ........................................................... 6.50, 6.190 Sacher Investments Pty Ltd v Forma Stereo Consultants Pty Ltd [1976] 1 NSWLR 5 ................ 18.160 Sahade v BP Australia Pty Ltd (2005) NSW ConvR 56–113 .......................................................... 6.50 Saint v Jenner [1973] Ch 275 ................................................................................................. 18.150 Sames v The District Council of Mount Barker [2004] SASC 374 .............................. 18.145 Sampi on behalf of the Bardi and Jawi People v Western Australia (2010) 266 ALR 537 ............. 7.110 Sanderson v Mayor of Berwick-on-Tweed (1884) LR 13 QBD 547 ........................................... 14.165 Sandhurst Mutual Permanent Investment Building Society v Gissing (1889) 15 VLR 329 ........ 14.110 Sandhurst Trustees Ltd v 72 Seventh Street Nominees Pty Ltd (in liq) (1998) 45 NSWLR 556 ..... 2.35 Sansom Nominees Pty Ltd v Meade [2005] WASC 9 ............................................................... 14.150 Santucci v Barnes (1992) V ConvR 54-434 ................................................................................ 3.110 Sanwa Australia Leasing Ltd v National Westminster Finance Australia (1988) 4 BPR 9514; (1989) NSW ConvR 55-437 ................................................................................................. 16.22 Sarson v Roberts [1895] 2 QB 395 .......................................................................................... 14.150 Sawyer v Starr [1985] 2 NZLR 540 ............................................................................................ 18.90 Saxby Soft Drinks Pty Ltd v George Saxby Beverages Pty Ltd (2009) 14 BPR 27 ........................ 11.65 Sayers v Collyer (1884) 28 Ch D 103 ...................................................................................... 18.125 Schmidt v 28 Myola Street Pty Ltd [2006] VSC 343 ........................................................... 6.50, 6.80 Schnytzer v Wielunski [1978] VR 418 ...................................................................................... 12.205 Schultz v Corwill Properties Pty Ltd [1969] 2 NSWR 576 .................................. 5.205, 5.210 Scmlla Properties Ltd v Gesso Properties (BVI) Ltd [1995] BCC 793 ............................................ 2.35 Secure Parking (WA) Pty Ltd v Wilson [2005] WASC 264 ......................................................... 14.195 Secure Parking (WA) Pty Ltd v Wilson [2008] WASCA 268 .......................................... 14.170, 14.190 Sefton v Tophams Ltd [1967] 1 AC 50 .................................................................................... 18.180 Segal v Barel [2013] NSWCA 92 ............................................................................................. 12.215 Segal Securities Ltd v Thoseby [1963] 1 QB 887 ..................................................................... 14.260 Seidler v Schallhofer [1982] 2 NSWLR 80 .................................................................................... 2.65 Seiwa Pty Ltd v Owners Strata Plan 35042 [2006] NSWSC 1157 ................................. 13.85 Selous, Re [1901] 1 Ch 921 ...................................................................................................... 12.50 Selwyn v Garfit (1888) LR 38 Ch D 273 .................................................................................. 14.260 Seven Network (Operations) Ltd v TCN Channel 9 Pty Ltd (2005) 222 ALR 569 ....................... 12.14 Shadbolt v Wise (2006) 1 Qd R 553; [2005] QCA 443 ............................................................ 16.125 Shaw v Garbutt (1996) 7 BPR 14,816 ............................................................................ 3.110, 3.120 Shaw Excavations Pty Ltd v Portfolio Investments Pty Ltd (2000) 9 Tas R 444 ............................. 6.50 Sheahan v Cooper [1999] FCA 190 ......................................................................................... 12.205 Shean Pty Ltd v Corinne Court (Owners of) 290 Stirling Street Perth Strata Plan 12821 (2001) 25 WAR 65 ............................................................................................................... 5.100 Shell Co Ltd v Kenpark Pty Ltd (1985) 38 SASR 297 ................................................................. 15.15 Shelley’s Case (1581) 76 ER 206; 1 Co Rep 93b .................................................. 11.10, 11.20, 11.25 Shelmerdine v Ringen Pty Ltd [1993] 1 VR 315 ............................................................ 3.120, 17.180 Shepherd v Ingram (1764) 27 ER 296; Amb 448 .................................................................... 11.100 Shepherd Homes Ltd v Sandham (No 2) [1971] 2 All ER 1267 .................................................. 18.10 Sheppard v Gibbons (1742) 26 ER 666; 2 Atk 441 .................................................................... 11.20 Sherrard v Registrar of Titles [2004] 1 Qd R 558 ....................................................................... 3.100 Shiloh Spinners Ltd v Harding [1973] AC 691 ......................................................................... 18.190 Shropshire Union Rlys & Canal Co v The Queen (1875) LR 7 HL 496 ........................................ 2.140 Sidebotham v Holland [1895] 1 QB 378 ...................................................................... 14.60, 14.250 Siemenski v Brooks Nominees [1990] Tas R 236 ............................................................ 5.145, 18.30 Silvan Properties Ltd v Royal Bank of Scotland PLC [2004] 1 WLR 1410 .................................... 8.165 Simmons v Body Corporate of Strata Plan 5181 [1980] VR 103 .............................................. 13.110 Simmons v Dobson [1991] 4 All ER 25; [1991] 1 WLR 720 ..................................................... 17.145 Simpson v Weber (1925) 133 LT 46 .......................................................................................... 17.95 Sinclair v Hope Investments Pty Ltd [1982] 2 NSWLR 870 .......................................................... 6.50 xxx

Table of Cases

Site Developments (Ferndown) Ltd v Cuthbury Ltd [2011] Ch 226 ........................................... 3.120 Sixty-Fourth Throne Pty Ltd v Macquarie Bank (1996) V ConvR 54-546 .................................... 5.100 Smith v Jones [1954] 1 WLR 1089 .......................................................................... 2.105, 2.110 Smith v Lloyd (1854) 9 Exch 562; 156 ER 240 .......................................................................... 3.110 Smith v Marrable (1843) 11 M & W 6; 152 ER 693 ......................................... 14.140, 14.150 Smith (dec’d), Re [1967] VR 341; (1966) 18 LGRA 403 ............................................................. 11.55 Smith Kline and French Laboratories (Australia) Ltd v Secretary, Department of Community Services and Health (1990) 95 ALR 87 .................................................................................. 4.150 Smith and Snipes Hall Farm Ltd v River Douglas Catchment Board [1949] 2 KB 500 ..................................................................................................................... 18.165, 18.170 Snowlong Pty Ltd v Choe (1991) 23 NSWLR 198 ..................................................................... 5.165 Sodhi v Stanes [2007] NSWSC 177 ................................................................................. 17.150 Somma v Hazelhurst [1978] 2 All ER 1011; [1978] 1 WLR 1014 ................................................ 14.25 South-Eastern Drainage Board (SA) v Savings Bank of South Australia (1939) 62 CLR 603 ....... 5.280, 5.290 Southern Centre of Theosophy Inc v South Australia [1982] AC 706 ......................... 16.95 Southlink Holdings Pty Ltd v Morerand Pty Ltd [2010] VSC 214 ................................................. 2.65 Southwark London Borough Council v Mills [2001] 1 AC 1; [1999] 4 All ER 449; [1999] 3 WLR 939 ......................................................................................................... 14.160 Sovmots Investments Ltd v Secretary of State for the Environment [1979] AC 144; [1977] 2 All ER 385; [1977] 2 WLR 951 ............................................................................... 17.105, 17.120 Spark v Whale Three Minute Car Wash (Cremorne Junction) Pty Ltd (1970) 92 WN (NSW) 1087 ............................................................................................................................. 3.80, 3.90 Sparta Nominees Pty Ltd v Orchard Holdings Pty Ltd [2002] WASC 54 ................................... 14.280 Spathis v Havane Investment Co Pty Ltd [2002] NSWSC 304 .................................... 14.165, 14.260 Spence v Federal Commissioner of Taxation (1967) 121 CLR 273 ............................................. 12.40 Spencer’s Case (1583) 5 Co Rep 16a; 77 ER 72 ................................................ 14.240, 14.245 Sprott v Harper (2000) Q ConvR 54-545 ................................................................................ 12.185 Spunter Pty Ltd v Hall [2006] WASC 6 ........................................................................................ 6.50 Spyer v Phillipson [1931] 2 Ch 183 ............................................................................... 16.22, 16.30 Squire v Rogers (1979) 39 FLR 106 ........................................................................................... 12.90 Staight v Burn (1869) LR 5 Ch App163 ................................................................................... 17.180 Stanhill Pty Ltd v Jackson [2005] VSC 169 .............................................................................. 18.105 Stansfield, Re (1880) 15 Ch D 84 ............................................................................................. 11.90 State v Shaw (1902) 67 Ohio St 157 .......................................................................................... 3.20 State Bank of New South Wales v Berowra Waters Holdings Pty Ltd (1986) 4 NSWLR 398 .......................................................................... 5.255, 5.275, 5.370, 5.375, 5.380 State Bank of New South Wales v Yee (1994) 33 NSWLR 618 .................................................... 5.210 State Electricity Commission of Victoria & Joshua’s Contract, Re [1940] VLR 121; [1940] ALR 105 ............................................................................................ 17.90, 17.95 State Transit Authority of NSW v Australian Jockey Club (2003) 11 BPR 21,107; [2003] NSWSC 726 ....................................................................................................................... 17.145 State for the Army, Minister of v Dalziel (1944) 68 CLR 261 .................................................... 14.295 State of Queensland v Congee [2015] HCA 17 ........................................................................... 7.75 Steadman v Steadman [1976] AC 536 ............................................................................. 9.40, 14.50 Stephen v Bell (1934) 37 WALR 52 ........................................................................................... 16.22 Stern (dec’d), Re [1962] Ch 732 ............................................................................................... 11.65 Steve Christenson & Co Ltd v Furs and Fashions (NZ) Ltd [1971] NZLR 129 ........................... 14.250 Stevens and Evans v Allan and Armanasco (1955) 58 WALR 1 ................................................. 17.105 Stillman v Youmans 266 SW 2d 913 (1954) ............................................................................ 14.295 Stilwell v Blackman [1968] Ch 508 ........................................................................................... 18.60 Stockdale v City of Charles Sturt (2000) 76 SASR 225 ................................................ 15.135 Stone v Owen [2001] 1 Qd R 419 ......................................................................... 12.95, 12.100 Stoneham, Re [1919] 1 Ch 149 ......................................................................................... 9.100 Stow v Mineral Holdings (Australia) Pty Ltd (1977) 180 CLR 295; 14 ALR 397 ......... 1.40, 7.20 Street v Mountford [1985] AC 809 .............................................................................. 14.25, 14.205 Strugwell v Walker (1993) DFC 95-134 ..................................................................................... 10.45 Stuy v BC Ronalds Pty Ltd [1984] 2 Qd R 578 ........................................................................... 17.65 Subiaco, City of v Heytesbury Properties Pty Ltd (2001) 24 WAR 146; [2001] WASCA 140 ...... 14.295 xxxi

Australian Property Law: Cases and Materials

Sullivan v McMahon [1999] WASC 84 ........................................................................................ 6.65 Sunlea Investments Pty Ltd v New South Wales (1998) 9 BPR 16,707; [2000] ANZ ConvR 274 .................................................................................................................................... 16.100 Sunny Corporation Pty Ltd v Elkayess Nominees Pty Ltd [2006] VSC 314 .................................. 3.110 Supply & Development, Minister for v Servicemen’s Co-operative Joinery Manufacturers Ltd [1951] HCA 15; (1951) 82 CLR 621 .............................................. 9.80 Swan v Sinclair [1925] AC 227 ................................................................................................ 17.180 Swanston Mortgage Pty Ltd v Trepan Investments Pty Ltd [1994] 1 VR 672 ........... 2.110, 6.45, 6.50, 6.190 Swanville Investment Pty Ltd v Riana Pty Ltd [2003] WASCA 121 ................................. 14.50, 14.295 Sweet & Maxwell Ltd v Universal News Services Ltd [1964] 2 QB 699 .................................... 14.125 Symbion Pathology Pty Ltd v Healthscope Ltd [2006] ANZ ConvR 347; [2006] VSC 191 .......... 5.225

T Taddeo v Catalano (1975) 11 SASR 492 ................................................................................... 6.155 Tallon v Proprietors of Metropolitan Towers Building Units Plan No 5157 [1997] 1 Qd R 102 .... 16.125 Tannous v Cipolla [2001] NSWSC 236 .................................................................................... 14.280 Tanwar Enterprises Pty Ltd v Cauchi (2003) 217 CLR 315; [2003] HCA 57 .............. 6.50, 9.65, 9.70, 10.130 Tanzone Pty Ltd v Westpac Banking Corp (1999) NSW ConvR 55-908 ...................................... 5.255 Tapling v Jones (1865) 12 CB (NS) 826; 142 ER 1367 ............................................................. 17.180 Targetts Pty Ltd v Target Australia Pty Ltd (1993) 26 IPR 51 ...................................... 4.135 Taxation, Commissioner of v Linter Textiles Australia Ltd (in liq) (2005) 220 CLR 592 ................. 2.75 Taxation, Commissioner of v Metal Manufacturers Ltd (2001) 108 FCR 150; 182 ALR 98; 2001 ATC 4152; 46 ATR 497; [2001] FCA 365 ...................................................................... 16.22 Taylor v Browning (1885) 11 VLR 158 .................................................................................... 17.105 Teague v Trustees, Executors and Agency Co Ltd (1923) 32 CLR 252 ........................................ 11.75 Tennant v Adamczyk [2006] 1 P & CR 28 ................................................................................. 3.110 Tenstat Pty Ltd v Permanent Trustee Aust Ltd (1992) 28 NSWLR 625 ............................. 5.130, 14.85 Teparyl Pty Ltd v Willis [2009] VSC 259 .................................................................................. 14.245 Terry v O’Connell [2010] NSWSC 255 ........................................................................................ 6.50 Tessari v Bais Pty Ltd (1992) 60 SASR 59 ........................................................................ 5.130, 14.85 Texaco Antilles Ltd v Kernochan [1973] AC 609 ...................................................................... 18.120 Thamesmead Town Ltd v Allotey (1998) 30 HLR 1052 ............................................................ 18.190 The Land Transfer Act 1908, Re; Ex parte Matheson (1914) 33 NZLR 838 ................................. 11.05 Thearle v Kelley (1958) 76 WN (NSW) 48 ............................................................................... 14.295 Thellusson v Woodford (1805) 32 ER 1030; 11 Ves Jun 112 ....................................................... 11.65 Theodore v Mistford Pty Ltd (2005) 221 CLR 612; [2005] HCA 45 ............ 6.155, 8.20, 8.65 Thomas v Hayward (1869) LR 4 Ex 311 .................................................................................. 14.235 Thomas Australia Wholesale Vehicle Trading Co Pty Ltd v Marac Finance Australia Ltd (1985) 3 NSWLR 452 ........................................................................................................................ 4.65 Thomas W Ward v Alexander Bruce (Grays) Ltd [1959] 2 Lloyd’s Rep 472 ................................. 17.40 Thompson v Whittard (1925) 25 SR (NSW) 430 ..................................................................... 17.210 Thwaites v Brahe (1895) 21 VLR 192 ...................................................................................... 17.145 Tidex v Trustees Executes & Agency Co Ltd [1971] 2 NSWLR 453 ........................................... 11.100 Tillack v Tillack [1941] VLR 151 ............................................................................................... 12.240 Tiller v Hawes [2005] NSWSC 1232 .......................................................................................... 17.40 Tiltwood, Sussex, Re [1978] 1 Ch 269 .................................................................................... 18.120 Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2010] NSWSC 29 ................................. 14.260, 14.295 Titchmarsh v Royston Water Co Ltd (1899) 81 LT 673) ............................................................. 17.85 Tito v Waddell (No 2) [1977] Ch 106 ...................................................................................... 18.190 Toohey v Gunther (1928) 41 CLR 181 ....................................................................... 8.80, 8.85 Tooth & Co Ltd v Barker (1960) 77 WN (NSW) 231 ................................................................... 6.50 Torrisi v Magame Pty Ltd [1984] 1 NSWLR 14; (1984) NSW ConvR 55-168 .............................. 17.85 Town and Country Marketing Ltd v McCallum (1998) 3 NZ ConvC 192,698 ........................... 5.145 Townsend v BBC Hardware Ltd [2003] QCA 572 ............................................................ 14.10 Transphere Pty Ltd, Re (1986) 5 NSWLR 309 .............................................................................. 2.85 Travinto Nominees Pty Ltd v Vlattas (1973) 129 CLR 1 ....................................... 5.130, 5.290, 14.85 Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd (1992) 27 NSWLR 326 .................. 14.295 xxxii

Table of Cases

Tredegar v Harwood [1929] AC 72 ......................................................................................... 14.215 Treloar v Nute [1976] 1 WLR 1295 ........................................................................................... 3.110 Trident General Insurance v McNiece (1988) 165 CLR 107 ....................................................... 5.225 Trieste Investments Pty Ltd v Watson (1963) 64 SR (NSW) 98 ........................................ 5.345, 5.355 Trifid Pty Ltd v Ratto [1985] WAR 19 ........................................................................................... 9.25 Troja v Troja (1994) 33 NSWLR 269 ........................................................................................ 12.195 Troncone v Aliperti (1994) 6 BPR 13,291; (1994) NSW ConvR 55-703 ........................................ 6.50 Trustees of the Property of Cummins (a bankrupt) v Cummins (2006) 224 ALR 280 ...... 12.40, 12.60 Trusts of the Will of Foss, Re (1868) 7 SCR (NSW) Eq 68 ......................................................... 17.210 Tsirikolias v Oakes (1993) 169 LSJS 249 .................................................................................... 5.305 Tubantia, The [1924] P 78 .................................................................................................... 3.25 Tujilo v Watts [2005] NSWSC 209 ............................................................................................. 17.20 Tulk v Moxhay (1848) 1 H and Tw 105; 47 ER 1345 ................................................................. 18.65 Tulk v Moxhay (1848) 2 Ph 774; 41 ER 1143 ................................................................. 18.10, 18.30 Turner v York Motors Pty Ltd (1951) 85 CLR 55 .................................... 14.35, 14.55, 14.250 Tutt v Doyle (1997) 42 NSWLR 10 ............................................................................................ 5.255 Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110 ............................................ 14.280 Tyler, Re [1891] 3 Ch 252 ......................................................................................................... 11.55

U Unic v Quartermain Holdings Pty Ltd [2002] 2 Qd R 660 ......................................................... 5.195 Unimin Pty Ltd v Commonwealth (1974) 2 ACTR 71 .............................................................. 17.200 Union Lighterage Co v London Graving Dock Co [1902] 2 Ch 557 ............................... 17.85, 17.95 Union of London and Smith’s Bank Ltd’s Conveyance, Re [1933] 1 Ch 611 .............. 18.55 United Starr-Bowkett Cooperative Building Society v Clyne [1968] 1 NSWR 134 .... 14.115 Uniting Church in Australia Property Trust (NSW) v Immer (No 145) Pty Ltd (1991) 24 NSWLR 510 ......................................................................................................................... 16.40 Universal Guarantee Pty Ltd v Metters Ltd [1966] WAR 74 ........................................... 4.55 Universal Guarantee Pty Ltd v National Bank of Australasia Ltd [1964-1965] NSWR 977 ........... 4.190 Upton v Baron (2000) 9 Tas R 178 ............................................................................................ 5.100 Upton v Tasmanian Perpetual Trustees Ltd [2007] FCAFC 57 ...................................... 8.155

V Valbirn Pty Ltd v Powprop Pty Ltd [1991] 1 Qd R 295 ............................................................... 5.165 Valerica v Global Minerals Australia Pty Ltd (2001) NSW ConvR 55-963 ...................................... 6.50 Valoutin Pty Ltd v Furst (1998) 154 ALR 119 ............................................................................. 5.275 Van Grutten v Foxwell [1897] AC 658 ....................................................................................... 11.20 Van Schaik Organic Soils & Bark Supplies Pty Ltd v Woakwine Industries Pty Ltd (2001) 215 LSJS 278; [2001] SASC 297 .................................................................................................. 14.50 Vassos v State Bank of South Australia [1993] 2 VR 316 ............ 5.100, 5.120, 5.130, 5.230, 5.240 Vedejs v Public Trustee [1985] VR 569 ........................................................................... 12.40, 12.60 Vella v Wah Lai Investment (Aust) Pty Ltd [2004] NSWSC 748 .................................................. 14.50 Vercorp Pty Ltd v Lin [2007] 2 Qd R 180 .................................................................................... 2.65 Vernon v Smith (1821) 5 B & Ald 1; 106 ER 1094 ................................................................... 14.235 Victoria Park Racing and Recreation Grounds Company Ltd v Taylor (1937) 58 CLR 479 ............................................................................................................................... 1.20 Villar, Re [1929] 1 Ch 243 ....................................................................................... 11.60, 11.65 Vopak Terminals Australia Pty Ltd v Commissioner of State Revenue (2004) 12 VR 351 ............. 16.30

W Wade v NSW Rutile Mining Co Pty Ltd (1969) 121 CLR 177; [1969] ALR 577 ........................... 16.65 Waimiha Sawmilling Co (in liq) v Waione Timber Co Ltd [1923] NZLR 1137 ............................. 5.185 Walker v Linom [1907] 2 Ch 104 ........................................................................... 2.125, 2.140 Wallis’s Cayton Bay Holiday Camp Ltd v Shell-Mex and BP Ltd [1975] QB 94 ........................... 3.110 Walmsley, In the Will of (1922) 18 Tas LR 32 ........................................................................... 17.210 xxxiii

Australian Property Law: Cases and Materials

Walsh v Lonsdale (1882) LR 21 Ch D 9 ................................................................. 14.45, 14.50 Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 ............. 9.150, 14.50, 14.280 Warburton v National Westminster Finance Australia Ltd (1988) 15 NSWLR 238 ....................... 5.100 Ward v Kirkland [1967] Ch 194; [1966] 1 All ER 609; [1966] 1 WLR 601 ................................. 17.105 Ward v Stephens (1886) 12 VLR 378 ........................................................................................ 4.100 Ward v Van der Loeff [1924] AC 653 ......................................................................................... 11.75 Warnford Investments Ltd v Duckworth [1979] Ch 127 .......................................................... 14.220 Warren v Keen [1954] 1 QB 15 .......................................................................... 14.135, 14.175 Washington Construction v Ashcroft [1982] Qd R 776 .............................................................. 5.275 Water Wine and Juice Pty Ltd v Konstantopoulos [2010] NSWSC 312 ..................................... 14.280 Waterhouse v Waugh [2003] NSWCA 139 .............................................................................. 14.245 Watt v Lord (2005) 62 NSWLR 495 ......................................................................................... 12.185 Watt v State Bank of NSW [2003] ACTCA 7 ............................................................................... 5.265 Waverley Borough Council v Fletcher [1996] QB 334 ...................................................... 3.50 We are Here Pty Ltd v Zandata Pty Ltd [2010] NSWSC 262 ...................................................... 5.100 Websdale v S & JD Investments Pty Ltd (1991) 24 NSWLR 573 ................................... 8.145 Webster v Strong [1926] VLR 509; 32 ALR 323b ..................................................................... 17.180 Weeks v Bond [1999] 1 Qd R 134 ..................................................................................... 15.45 Weeks’ Caveat, Re [1971] QWN 4 .............................................................................................. 6.50 Weg Motors Ltd v Hales [1961] Ch 176 .................................................................................. 14.235 Weller v Williams [2010] NSWSC 716 ....................................................................................... 6.215 Wellsmore v Ratford (1973) 23 FLR 295 .................................................................................... 16.22 Wenczel v Commonwealth Bank of Australia [2006] VSC 324 ................................................. 10.115 Wernher’s Settlement Trusts, Re [1961] 1 All ER 184; [1961] 1 WLR 136 ................................. 11.100 West v Weston (1998) 44 NSWLR 657 ...................................................................................... 12.60 Western v Lawrence Weaver Ltd [1961] 1 QB 402 .................................................................. 18.150 Western Australia v Commonwealth (1995) 128 ALR 1 ............................................................... 7.30 Western Australia v Ward (2000) 170 ALR 159 ................................................................ 2.40 Western Australia v Ward (2002) 213 CLR 1; 191 ALR 1; [2002] HCA 28 ............ 7.30, 7.65, 7.70, 7.75, 7.90, 16.75 Western Electric Ltd v Welsh Department Agency [1983] 2 All ER 629 ..................................... 14.135 Western Metals Resources Ltd v Murrin Murrin East Pty Ltd [1999] WASC 257 ............................ 2.65 Westpac Banking Corp v Tanzone Pty Ltd (2000) 9 BPR 17,521 ..................................... 5.165, 5.255 Westpac Banking Corporation v Dimopoulos [2006] VSC 10 ...................................................... 6.50 Westpac Banking Corporation v Rabaiov [1991] ANZ ConvR 560 ............................................. 16.22 Westpoint Corp Pty Ltd v Registrar of Titles [2004] WASC 189 ............................ 6.50, 18.10, 18.180 Wheaton v Maple & Co [1893] 3 Ch 48 ................................................................................. 17.145 Wheeldon v Burrows (1879) 12 Ch D 31 .......................................................... 17.100, 17.105 Wheeler v JJ Saunders [1996] Ch 19; [1995] 2 All ER 697; [1995] 3 WLR 466 .......................... 17.105 Whelan, Ex parte [1986] 1 Qd R 500 ...................................................................................... 14.260 White v Betalli (2007) 71 NSWLR 381; [2007] NSWCA 243 ......................................... 13.95 White v Cariste [2004] NSWCA 460 ......................................................................................... 14.70 White v Kenny [1920] VLR 290 .................................................................................. 14.195, 14.235 White v Summers [1908] 2 Ch 256 ................................................................................... 11.30 White v Tomasel [2004] 2 Qd R 438 ......................................................................................... 5.255 Whittlesea City Council v Abbatangelo (2009) 259 ALR 56 .............................. 3.105, 3.110 Wicklow Enterprises Pty Ltd v Doysal Pty Ltd (1986) 45 SASR 247 ............................................ 5.295 Wik Peoples v Queensland (1996) 187 CLR 1 ...................... 1.55, 2.05, 2.30, 7.10, 7.60, 7.65 Wilcox v Richardson (1997) 34 NSWLR 4 ................................................................................ 17.105 Wilkes v Spooner [1911] 2 KB 473 ............................................................................................ 2.100 Wilkinson v Duncan (1861) 54 ER 831; 30 Beav 111 ................................................................. 11.90 Williams v Hensman (1861) 1 J & H 546; 70 ER 862 ....................................... 12.160, 12.185 Williams v Lewis [1915] 3 KB 493 ........................................................................................... 14.180 Williams v Usherwood (1981) 45 P & CR 235 ........................................................................... 3.110 Williams Bros Direct Supply Ltd v Raftery [1958] 1 QB 159 ....................................................... 3.110 Williams and Glyn’s Bank Ltd v Boland [1981] AC 487 .............................................................. 2.110 Williamson v Wootton (1855) 61 ER 883; 3 Drew 210 .............................................................. 16.65 Willshire v Dalton (1948) 65 WN (NSW) 54 .............................................................................. 14.60 Wilmer’s Trusts, Re [1903] 2 Ch 411 ......................................................................................... 11.65 Wilson v Anderson (2002) 213 CLR 401; 76 ALJR 1306 .......................................... 2.65, 7.80 xxxiv

Table of Cases

Wilson v Finch Hatton (1877) LR 2 Ex D 336 .......................................................................... 14.150 Wilson v Graham (1997) 10 BPR 19,051 ..................................................................................... 6.50 Wilson v Meudon Pty Ltd [2004] NSWSC 1183 .................................................... 13.65, 13.70 Wincant Pty Ltd v South Australia (1997) 69 SASR 126 ............................................................. 16.30 Windella (NSW) Pty Ltd v Hughes (1999) NSW ConvR 55-926 ................................................... 6.65 Wirth v Wirth (1956) 98 CLR 228 ..................................................................................... 10.40 Wolfe v Freijahs Holdings Pty Ltd [1988] VR 1017 ................................................................... 17.180 Wollondilly Shire Council v Picton Power Lines Pty Ltd (1994) 33 NSWLR 551 ............................ 2.65 Wolveridge v Steward (1833) 1 Cr & M 644; 149 ER 557 ....................................................... 14.245 Wong v Beaumont Property Trust Ltd [1965] 1 QB 173 ............................................................ 17.85 Wood, Re [1894] 3 Ch 381 ...................................................................................... 11.80, 11.85 Wood Factory Pty Ltd v Kiritos Pty Ltd (1985) 2 NSWLR 105 .................................................. 14.295 Woodson (Sales) Pty Ltd v Woodson (Australia) Pty Ltd (1996) 7 BPR 14,685 .......................... 12.215 Woodward v Wesley Hazell Pty Ltd (1994) 3 Tas R (NC) N4 ...................................................... 3.110 Woollerton & Wilson Ltd v Richard Costain Ltd [1970] 1 WLR 411 ............................................ 16.60 Woolley v Attorney-General (Vic) (1877) LR 2 App Cas 163 ........................................ 16.70 Woolley, Re [1903] 2 Ch 206 .................................................................................................... 12.30 World Tech Pty Ltd v Yellowin Holdings Pty Ltd (1993) ANZ ConvR 121 ..................... 8.55 Worrall v Commissioner for Housing for the Australian Capital Territory [2002] FCAFC 127 ........................................................................................................................ 15.50 Wratten v Hunter [1978] 2 NSWLR 367 ............................................................................. 9.20 Wright v Gibbons (1949) 78 CLR 313 ....... 5.203, 9.135, 12.05, 12.10, 12.45, 12.145, 12.165, 12.180 Wright v Macadam [1949] 2 KB 744 ...................................................................................... 17.120 Wrightson v McArthur [1921] 2 KB 807 .......................................................................... 9.115 Wurridial v Commonwealth (2009) 237 CLR 309 ....................................................................... 1.55 Wycombe Health Authority v Barnett (1984) 47 P & CR 394 .................................................. 14.180 Wykes v Samilk Pty Ltd (No 2) [1998] NSW ConvR 56,821 ....................................................... 14.70

X Xenou v Katsaras (2002) 7 VR 335 ................................................................................. 12.40, 12.60

Y Yanner v Eaton (1999) 201 CLR 351 .............................................. 1.50, 2.35, 3.20, 4.10, 7.85 Yerkey v Jones (1939) 63 CLR 649 ................................................................................ 1.115, 10.115 Young v Hichens (1844) 6 QB 606; 115 ER 228 ............................................... 3.15, 3.20, 3.30 Young v Hoger [2001] Q ConvR 54-557 ................................................................................... 5.185 Youssef v Victoria University of Technology [2005] VSC 223 ...................................................... 6.190

Z Zapletal v Wright [1957] Tas SR 211 ......................................................................... 2.60, 2.65

xxxv

TABLE OF STATUTES COMMONWEALTH

Corporations Act 2001: 2.35

Atomic Energy Act 1953 s 35: 16.65

Currency Act 1965 s 14(1): 4.175

Australian Consumer Law: 10.25, 15.20 s 1: 15.20 s 18: 4.120, 10.05, 10.15, 15.125 s 20: 10.25 s 21: 10.25 s 21(2): 10.25 s 22: 10.25 s 23: 10.25 s 24: 10.25 s 25: 10.25 s 30: 10.15 ss 30 to 50: 10.05 s 31: 10.15 s 52: 10.05 s 61: 15.20 s 82: 10.15 s 218: 10.15 s 219: 10.15 s 224: 10.15 s 232: 10.15 s 236: 10.15 s 243: 10.15 Pt V: 10.05 Pt IV: 10.05

Designs Act 2003: 4.165

Bankruptcy Act 1966: 2.35, 9.110 ss 115 to 116: 5.275 s 120: 9.110 ss 120 to 123: 5.275 s 121(1): 12.185

Native Title Act 1993: 7.35, 7.65 s 14: 7.45 s 15: 7.45 s 223: 7.40, 7.90 Pt II: 7.65

Cheques Act 1986: 4.180 s 39: 4.190 s 54: 4.190 s 55: 4.190

Northern Territory (Self Government) Act 1978 s 69(4): 16.65

Circuit Layouts Act 1989: 4.165 Commonwealth of Australia Constitution Act 1901 s 51(xxxi): 1.55, 4.150 s 96: 1.55 s 122: 1.55 Competition and Consumer Act 2010: 8.85, 15.20 s 4(1): 4.10 s 45B: 8.85 Sch 2: 10.05 Copyright Act 1968: 4.165 s 100AE: 12.240

Family Law Act 1975: 12.40 s 4AA: 2.65 s 4AA(5): 2.65 s 79: 6.50, 12.185 s 90SL: 2.65 s 90SM: 2.65 Land Title Act 1994 s 9A: 5.185 s 189(1)(ab): 5.185, 5.360 National Consumer Credit Act 2009 s 35: 8.05 National Consumer Credit Code: 14.05 National Consumer Credit Protection Act 2009: 4.10, 10.25 National Credit Code: 10.25 ss 14 to 17: 8.05 ss 70 to 73: 10.25 s 72: 8.05 s 76: 8.05 s 88: 8.05, 8.150

Patents Act 1990: 4.165 s 16: 12.240 s 17: 12.240 Personal Property Securities Act 2009: 4.10, 4.30, 4.100, 4.180, 4.190, 8.05, 8.78 ss 69 to 72: 4.190 Plant Breeders Rights Act 1994: 4.165 Racial Discrimination Act 1975: 7.30 Reserve Bank Act 1959 s 36(1): 4.175 Seas and Submerged Lands Act 1973: 7.100 Trade Marks Act 1995: 4.165 Trade Practices Act 1974: 10.05, 15.125 xxxvii

Australian Property Law: Cases and Materials

s 104A(1): 6.80 s 105(1): 6.80 s 106: 6.80 s 107: 6.80 s 107A(1)(b): 6.80 s 109: 18.45, 18.160 s 110: 18.160 s 113: 18.45 ss 119 to 120: 14.135 s 124: 6.40 s 124(3): 6.40 ss 143 to 155: 5.330 s 147(a): 5.360 s 147(b): 5.360 s 152: 5.65 s 154(1)(a): 5.345 s 154(2): 5.360 s 154(3): 5.345 s 155: 5.345 s 159: 5.65 s 160: 5.370 s 160(6): 5.370 ss 160 to 162: 5.370

Trade Practices Act 1974 — cont s 52: 4.120

AUSTRALIAN CAPITAL TERRITORY Civil Law (Property) Act 2006 s 201: 9.00, 17.55 s 201 to 203: 9.15 s 203: 14.40 s 204: 14.50 s 208: 12.185 ss 210 to 211: 12.50 s 211: 12.50 s 213(1): 12.10 s 213(2): 12.10 s 213(3): 12.10 s 224: 12.10 s 225: 11.05 ss 242 to 247: 12.205 s 400: 14.245 s 401: 14.245 s 426: 14.280 s 428: 14.195, 14.280 Civil Law (Sale of Residential Property) Act 2003 s 9: 9.190 s 10: 9.190 s 11: 9.190 s 12: 9.190 s 25: 9.190 s 28: 9.190 s 29: 9.190, 9.195 s 30: 9.190 Land Titles Act 1925: 3.100 s 14(1)(d): 5.370 s 33(2): 6.75 s 48(4): 6.15 s 48(5): 6.15 s 54(1): 12.50 s 54(2): 12.50 s 55: 12.10 s 57: 9.10 s 58: 5.135 s 58(1): 5.15, 5.150 s 58(1)(a): 5.310 s 58(1)(b): 17.55 s 58(1)(c): 5.310 s 58(1)(d): 14.90 s 58(1)(f): 5.320 s 59: 5.55 s 60(2): 5.55 s 79: 11.05 s 82: 14.75 s 83: 5.130 s 87: 14.280 s 103B: 17.55 s 103C: 17.30 s 103G: 17.200 s 104: 6.55 s 104(1): 6.40

Leases (Commercial and Retail) Act 2001: 14.05 Legislation Act 2001 s 2: 16.40, 16.85 Limitation Act 1985: 3.100 s 5: 3.65 s 5(a): 3.100 s 11(1): 3.65 s 18: 3.65 s 43: 3.65 Mercantile Law Act 1962: 4.30 Perpetuities and Accumulations Act 1985: 11.105 s 5: 11.110 s 8(1): 11.110 s 8(3): 11.110 s 8(4): 11.110 s 9: 11.125 s 10(1): 11.140 s 10(3): 11.140 s 15(1): 11.150 s 15(3): 11.160 s 16: 11.160 Real Property Act 1925 s 109(1): 18.170 Residential Tenancies Act 1997: 14.05 ss 5 to 6: 15.15 s 9: 15.20 Retirement Villages Act 2012: 15.125 ss 184 to 190: 15.125 Sale of Goods Act 1954 s 23: 9.85 xxxviii

Table of Statutes

s 88(3)(a): 18.30, 18.115 s 88(3)(c): 18.120 s 88B: 18.120 s 88E: 18.10 s 89: 18.105 s 89(1): 17.165, 17.180, 18.95 s 93: 8.95 s 96A: 12.40 s 99: 12.40 s 117: 14.245 s 118: 14.245 s 127(1): 14.60 s 128: 14.245 ss 128 to 131: 14.280 s 129: 14.280 s 130: 14.195, 14.280 s 132: 14.215 s 133B(1): 14.215 s 134: 18.190 s 164: 2.110 s 179: 17.145 s 184: 5.100 ss 184A to 184J: 2.145 Pt 4, Div 6: 12.215

Sale of Goods Ordinance 1954: 4.30 Unit Titles Act 2001: 16.40 s 14: 13.90 s 15: 13.90 s 17: 13.35 Unit Titles (Management) Act 2011 s 17: 13.35, 13.45 Wills Act 1968 s 7(2): 11.05

NEW SOUTH WALES Agricultural Tenancies Act 1990 s 5(3): 16.30 s 10: 16.30 s 14(3): 16.30 Civil Liability Act 2002 s 72(1): 16.60 Contracts Review Act 1980: 10.25 Conveyancing Act 1919: 18.170 s 7(1): 17.120 s 12: 18.170 s 16(1): 11.35 s 17: 11.20 s 19(1): 2.50 s 23B: 17.55 s 23B(1): 9.00, 9.70, s 23C: 9.15, 18.50 s 23D: 9.00, 9.15 s 23D(2): 14.40 s 23E: 9.15 s 24: 12.185 s 26: 12.50, 12.60 s 26(2): 12.50, 12.60 s 27: 12.50 s 35: 12.10 s 36A: 12.240 s 36C: 18.160 s 38(3): 14.40 s 44(1): 10.45 s 44(2): 12.10 s 44(2A): 12.10 s 47(1): 2.50 s 47(2): 2.50 s 47(3): 2.50 s 50(1): 11.05 s 50(2): 3.120 s 53(1): 2.110 s 53(3): 2.110 s 54A: 14.50 s 67: 17.110 s 70: 18.45 s 70A: 14.245, 18.35 ss 84 to 85: 14.135 s 88(1): 18.60, 18.90 s 88(1)(a): 18.45, 18.90

Conveyancing and Law of Property Act 1898 Pt IV: 13.25 Crown Lands Act 1989 s 172(7): 16.110 Damage by Aircraft Act 1952 s 2(1): 17.30 Encroachment of Buildings Act 1922: 16.125 Factors (Mercantile Agents) Act 1923: 4.30 Forfeiture Act 1995: 12.195 Imperial Acts Application Act 1969 s 8: 2.70, 11.35 s 18: 14.270 Interpretation Act 1987 s 21: 16.40 Landlord and Tenant Act 1899 ss 8 to 10: 14.280 Limitation Act 1969: 3.100 s 11(3): 3.120 s 14(1): 3.65 s 27(2): 3.110 s 28: 3.110 s 38: 3.110 s 38(2): 3.120 s 39: 3.120 ss 52 to 53: 3.120 s 54: 3.120 s 54(1): 3.120 s 54(4): 3.120 ss 55 to 56: 3.120 s 65: 3.65 xxxix

Australian Property Law: Cases and Materials

s 97: 12.185 s 100(1): 12.50 s 100(2): 11.05 s 101(1): 12.10 s 118: 5.65 s 120: 5.330 s 120(1): 5.345 s 120(2): 5.345 ss 128 to 135: 5.330 s 129(1): 5.345 s 129(2)(b)(i): 5.360 s 129(2)(e): 5.360 s 129(2)(f)(i): 5.360 s 129(2)(f)(ii): 5.360 s 136: 5.370 s 137: 5.370 Pt 6A: 3.100

Mining Act 1992 s 4: 16.65 Perpetuities Act 1984: 11.105 s 3(2): 11.110 s 7(1): 11.110 s 8: 11.125 s 9(1): 11.140 s 9(4): 11.140 s 14(2): 11.150 s 14(4): 11.160 s 15: 11.150, 11.155 Petroleum (Onshore) Act 1991: 16.65 Property, Stock and Business Agents Act 1941 s 49: 9.195 Public Works Act 1912: 17.105 Real Estate of Intestates Distribution Act 1862: 14.05

Real Property Amendment (Compensation) Act 2000: 5.330

Real Property Act 1900: 5.290 s 3(1)(a): 16.85 s 12(1)(d): 5.370 s 12(3)(b): 5.380 s 12(3)(b)(c): 5.370 s 36(4): 6.15 s 36(5): 6.15 s 41: 9.10 s 42: 5.135 s 42(1): 5.15, 5.150, 17.55 s 42(1)(a): 5.310, 17.55 s 42(1)(c): 5.310 s 42(1)(d): 14.60, 14.90, 14.120 s 43(1): 5.55 s 43A: 6.195, 6.200 s 45(1): 5.65 s 45(2): 5.65 s 46: 17.55 ss 46 to 47: 17.200 s 47: 17.55 s 47(6A): 17.165 s 49(2): 17.180 s 53(1): 14.75 s 53(3): 5.130 s 55: 14.280 s 67(5): 17.120 s 74F: 6.40 s 74F(2): 6.50 s 74F(5): 6.55, 6.65 s 74F(6): 6.80 s 74G: 6.80 s 74H: 6.80 s 74H(1)(a): 6.80 s 74H(1)(b): 6.80 s 74L: 6.65 s 74O: 6.80 s 74MA: 6.75 s 82(2): 6.40 s 82(3): 6.40

Real Property Regulations 2003 reg 6: 12.50 Residential (Land Lease) Communities Act 2013: 15.107 s 4: 15.115 Pt 5: 15.115 Pt 8: 15.115 Residential Parks Act 1998: 16.22 s 3: 15.115 s 6A: 15.115 Residential Tenancies Act 2010: 14.05 ss 5 to 6: 15.15 s 15: 15.20 s 35A: 15.55 s 44: 15.30 s 129: 3.65 Retail Leases Act 1994: 14.05 Retirement Villages Act 1999: 15.125 s 92: 15.140 s 93: 15.140 ss 133 to 136A: 15.125 Sale of Goods Act 1923: 4.30 s 5: 4.05 s 23: 9.85 Strata Schemes Development Act 2016 s 9: 13.35 ss 28A to 28QH: 13.35 Strata Schemes (Freehold Development) Act 1973: 16.40 Strata Schemes (Leasehold Development) Act 1986: 16.40 Strata Schemes Management Act 2015 s 5(2): 13.90 ss 28 to 40: 13.35 xl

Table of Statutes

s 145: 6.80 s 157: 6.15 s 177: 17.165 s 180: 6.15 s 183: 5.275 s 184: 9.10 s 185: 17.55 s 187: 12.185 s 188(1): 5.25, 5.135 ss 188(1) to (3): 5.150 s 188(2)(a): 5.55 s 188(2)(c): 5.65 s 188(3)(b): 5.65 s 189(1)(a): 5.215 s 189(1)(c): 17.55 s 189(1)(d): 5.310 s 189(1)(e): 5.310 s 189(1)(f): 5.310 s 192(2): 5.345 ss 192 to 196: 5.330 s 193: 5.345 s 195(1)(a): 5.360 s 195(1)(b): 5.360 s 195(1)(b)(d): 5.360 s 195(1)(d): 5.360 s 198: 3.100, 17.75

Strata Schemes Management Act 2015 — cont s 33: 13.35 Sch 2: 13.35, 13.45 Succession Act 2006 s 4: 11.05 Trustee Act 1925 s 87: 12.240 Wills, Probate and Administrative Act 1898: 14.05

NORTHERN TERRITORY Business Tenancies (Fair Dealings) Act: 14.05 Caravan Parks Act: 15.107 s 6: 15.107 Encroachment of Buildings Act: 16.125 ss 13 to 14: 16.120 Interpretation Act s 17: 16.40, 16.85 Land Title Act: 5.330, 5.345 s 4: 14.90 s 17(1)(a): 5.370 s 17(1)(b): 5.370 s 20: 5.370 s 26(a): 5.370 s 31: 5.320 s 31(2): 6.80 s 35: 5.320 s 38: 5.320 s 39: 5.25 s 56: 11.05 s 57(1): 12.50 s 57(2): 12.50 s 57(3): 12.50 s 57(4): 12.50 s 59: 12.185 s 65: 14.75 s 70: 14.280 s 81: 17.85 s 91: 17.55 s 112: 18.115 ss 116 to 124: 17.200 s 126(1): 6.40 s 126(2): 6.40 s 137: 6.55 s 138: 6.40 s 138(1)(c): 6.50 s 139: 6.80 s 140: 6.40 s 140(1): 6.80 s 140(3)(b): 6.80 s 142: 6.80 s 142(1): 6.80 s 142(3): 6.80 s 143(2): 6.75

Law of Property Act s 4: 17.120 s 6: 2.70, 11.35 s 9(1): 9.00, , 17.55 s 9 to 11: 9.15 s 10: 18.50 s 11(2): 14.40 s 13(3): 12.185 s 22: 2.50 s 26: 12.50 s 28: 11.20 s 29: 2.50 s 30(1): 11.35 s 31: 11.05 s 35(3): 12.50 ss 35 to 36: 12.50 s 36: 12.50 s 43: 12.240 s 45: 12.70 s 47(2): 14.40 s 56: 18.160 s 62: 14.50 s 103: 12.40 s 117: 14.135 s 130: 14.245 s 131: 14.245 s 134(1): 14.215 s 134(1)(b): 14.215 s 136(2): 14.245 ss 136 to 143: 14.280 ss 137 to 138: 14.280 s 139: 14.195, 14.280 s 144: 14.60 xli

Australian Property Law: Cases and Materials

Law of Property Act — cont s 170: 18.170 s 171: 14.245, 18.35, 18.45 s 177: 17.165 s 182: 18.170 s 187: 11.110 s 188: 11.125 s 189: 11.125 s 190: 11.125 s 191: 11.140 s 192: 11.140 s 196: 11.150 s 196(5): 11.160 s 197: 11.160 s 216(2)(d): 12.10 Pt 11: 11.105

QUEENSLAND Acts Interpretation Act 1954 s 36: 16.40 Body Corporate and Community Management Act 1997: 16.40 s 62: 13.35, 13.45 Factors Act 1892: 4.30 Land Act 1994 s 13(4): 16.110 s 13A: 16.110 Land Title Act 1994: 5.345, 14.90 s 4: 14.90 s 11A: 5.185, 5.360 s 11B: 5.185, 5.360 s 15(1)(a): 5.370 s 15(1)(b): 5.370, 5.380 s 19: 5.370 s 29(2): 6.80 s 36: 13.35 s 38: 5.15 s 55: 11.05 s 56(1): 12.50 s 56(2): 12.50 s 59: 12.185 s 64: 14.75 s 68: 14.280 s 82: 17.55 s 83: 17.55 ss 97E to 97J: 17.200 ss 98 to 108B: 3.100 s 110(1): 6.40 s 110(2): 6.40 s 110(3): 6.40 s 110(4): 6.40 s 114: 12.10 s 121: 6.55 s 122: 6.40 s 122(1)(c): 6.50 s 123: 6.80 s 124: 6.40 s 124(1): 6.80 s 124(2)(b): 6.80 s 126: 6.80 s 126(1): 6.80 s 126(1)(b): 6.80 s 126(2): 6.80 s 127(2): 6.75 s 150: 6.215 s 159: 6.15 s 170: 17.75 s 177: 6.15 s 180: 5.275 s 181: 9.10 s 183: 17.85 s 184(1): 5.15, 5.135 ss 184(1) to (3): 5.150 s 184(2)(a): 5.55

Limitation Act: 3.100 s 12(1): 3.65 s 19: 3.65 Minerals Acquisition Act s 2: 16.65 Petroleum Act: 16.65 Property Law Act Pt 5, Div 2: 12.215 Residential Tenancies Act s 5: 15.15 s 6: 15.15 s 19: 15.20 s 42: 15.30 s 74: 15.15 s 99A: 15.55 s 100: 15.55 Residential Tenancy Act: 14.05 Retirement Villages Act: 15.125 Sale of Goods Act 1923 s 23: 9.85 Sale of Goods Ordinance 1972: 4.30 Trustee Act s 69: 13.25 Unit Titles Act: 16.40 s 4(2): 13.90 Unit Titles Schemes Act s 18: 13.35 s 78: 13.35, 13.45 Water Act s 9: 16.110 s 13: 16.110 Wills Act s 3: 11.05 s 6: 11.05 xlii

Table of Statutes

s 36: 12.50 s 41(1): 12.240 s 43: 12.70 s 45(2): 14.40 s 53: 18.35, 18.45 s 53(1): 18.170 s 53(2A): 14.245 s 55: 18.160 s 59: 14.50 s 60: 9.195 s 93: 12.40 ss 105 to 107: 14.135 s 117: 14.245 s 118: 14.245 s 121: 14.215 s 121(1): 14.215 s 123(2): 14.245 ss 123 to 128: 14.280 s 124: 14.280 s 125: 14.195, 14.280 s 129(1): 14.60 s 155: 16.30 s 178: 17.145 s 181: 17.165, 18.95 ss 182 to 194: 16.125 ss 196 to 197: 16.120 s 199: 18.170 s 200: 18.170 s 209(1): 11.110 s 210: 11.125 s 210(4): 11.110 s 212: 11.125 s 213: 11.140 s 214: 11.125 s 217: 11.160 s 218: 11.160 s 219: 11.150 s 219(2): 11.160 s 237(1): 2.110 s 237(6): 2.110 s 239: 17.110 ss 241 to 249: 2.145 s 346: 2.110 Pt 5, Div 2: 12.215 Pt 14: 11.105

Land Title Act 1994 — cont s 184(2)(b): 5.65 s 184(3)(b): 5.65 s 185(1): 17.85 s 185(1)(a): 5.215 s 185(1)(b): 14.90 s 185(1)(c): 17.55 s 185(1)(d): 3.100 s 185(1)(e): 5.310 s 185(1)(f): 5.310 s 185(1)(g): 5.310 s 185(3): 17.105 s 188(2): 5.345 s 188A: 5.345 ss 188 to 190: 5.330 s 189(1)(a): 5.360 s 189(1)(b): 5.360 s 189(1)(b)(e): 5.360 s 189(1)(e): 5.360 s 189(1)(f): 5.360 s 189(1)(g): 5.360 s 203(a): 14.90 s 234: 17.120 Pt 7A: 6.215 Limitation of Actions Act 1974: 3.100 s 10(1): 3.65 s 12(2): 3.65 s 13: 3.110 s 19: 3.110 s 21: 3.120 s 29: 3.120 s 35(1)(a): 3.120 ss 35 to 37: 3.120 s 36(1): 3.120 s 38: 3.120 Manufactured Homes (Residential Parks) Act 2003: 15.107, 15.115 Mineral Resources Act 1989 s 6: 16.65 Petroleum Act 1923: 16.65 Property Law Act 1974 s 1: 18.50 s 3: 17.120 s 7: 2.70, 11.35 s 10: 17.55 s 10(1): 9.00, s 10(2): 14.40 s 11 to 12: 9.15 s 14(3): 12.185 s 22: 2.50 s 28: 11.20 s 29: 2.50 ss 29(1) to (2): 2.50 s 30(1): 11.35 s 31: 11.05 s 35(3): 12.50 ss 35 to 36: 12.50

Queensland Coast Islands Declaration Act 1985: 7.30 Real Property Act 1877 s 11: 14.90 Residential Tenancies and Rooming Accommodation Act 2008: 14.05, 15.107 s 15: 15.105 ss 29 to 41: 15.15 s 61: 15.115 s 92: 15.30 s 228: 15.115 ss 249 to 250: 15.105 ss 257 to 265: 15.105 xliii

Australian Property Law: Cases and Materials

s 28(1): 9.00, s 29: 18.50 s 29 to 31: 9.15 s 30(2): 14.40 s 34: 18.160 s 36: 17.110 s 40(3): 12.185 s 41(4): 14.245 ss 54 to 55: 12.40 s 59(2): 11.50 s 61(1): 11.40, 11.45 s 62: 11.50 s 62(1): 11.50 s 62(2): 11.50 s 69(2): 12.205 ss 69 to 74: 12.240 s 71: 12.205 s 117: 2.110 Pt 8: 12.205

Residential Tenancies and Rooming Accommodation Act 2008 — cont Ch 2: 15.115 Ch 4: 15.105 Residential Tenancies and Rooming House Agreements Act 2008 s 61: 15.20 Retail Shop Leases Act 1994: 14.05 Retirement Villages Act 1999: 15.125 s 90A: 15.140 s 90B: 15.140 s 190: 15.125 Sale of Goods Act 1896: 4.30 s 23: 9.85 Succession Act 1981 s 8(1): 11.05 s 65: 12.10

Limitation of Actions Act 1936: 3.100 s 4: 3.110 s 6: 3.110 s 18: 3.120 s 21: 3.120 s 21(b): 3.120 s 35: 3.65 s 45: 3.120 s 47: 3.120 s 48: 3.120

SOUTH AUSTRALIA Acts Interpretation Act 1915 s 4: 16.40 Community Titles Act 1996: 16.40 s 13: 13.35 s 19: 13.90 s 82: 13.35, 13.45 Consumer Credit Act 1972 s 46: 10.25

Mercantile Law 1936: 4.30 Mining Act 1971 s 6: 16.65

Criminal Law Consolidation Act 1935 s 15A: 1.105

Native Title (South Australia) Act 1994: 16.40

Development Act 1993 s 57(3B): 18.140

Petroleum and Geothermal Energy Act 2000: 16.65

Encroachments Act 1944: 16.125

Real Property Act 1886: 5.210 s 3: 16.85 s 56(1): 6.15 s 58: 6.15 ss 60 to 63: 5.370 s 64: 17.165 s 67: 9.10 s 69: 5.25, 5.30, 5.135 s 69(a): 5.150 s 69(b): 5.295 s 69(c): 5.310 s 69(d): 17.55 s 69(e): 5.310 s 69(f): 3.100 s 69(h): 14.90 s 69(i): 5.320 s 69II: 5.295 s 70: 5.25, 5.30 s 71: 5.325 s 71(d): 5.215 s 71(e): 5.215

Land and Business (Sale and Conveyancing) Act 1974 s 24N: 9.195 Landlord and Tenant Act 1936 s 4: 14.280 s 5: 14.280 s 7: 14.280 s 9: 14.280 s 10: 14.280 s 12: 14.280 s 12(4): 14.215 Law of Property Act 1936 s 7: 17.120 s 10: 11.05 s 15: 18.170 s 22: 17.145 s 25: 11.35 s 26: 14.50 s 28: 17.55 xliv

Table of Statutes

Retirement Villages Act 1987: 5.290, 15.125 s 9(4): 5.290 s 9(4A): 5.290 ss 19(3) to (6): 5.290 s 19(4): 5.290 s 31: 15.125

Real Property Act 1886 — cont s 74: 12.50 s 75: 11.05 ss 80A to 80I: 3.100 s 81: 17.55 s 84: 17.75 s 86: 5.55 s 96: 17.55 s 111: 11.05 s 116: 14.75 s 117: 5.130 ss 124 to 125: 14.135 s 126: 14.280 s 129: 6.80 s 149: 8.65 s 151: 14.245 s 152: 14.245 s 162: 6.40 s 187: 5.55 s 188: 12.10 s 191: 6.40 s 191(a): 6.55 s 191(b): 6.80 s 191(d): 6.75 s 191(e): 6.80 s 191(f): 6.80 s 191(k): 6.80 ss 201 to 219: 5.330 s 203: 5.345 s 205: 5.345 s 207: 5.65 s 208: 5.345 s 211: 5.360 s 212: 5.360 s 214: 5.360 s 220(f): 5.370 s 251: 3.100 Pt 13A: 6.215

Sale of Goods Act 1895: 4.30 s 18: 9.85 Settled Estates Act 1880: 13.25 Summary Offences (Gatecrashers at Parties) Amendment Act 2007: 1.105 Wills Act 1936 s 4(2): 11.05

TASMANIA Acts Interpretation Act 1931 s 46: 16.40 Conveyancing and Law of Property Act 1884: 18.160 s 2: 17.120 s 5: 2.110 s 6: 17.110 s 10: 14.245 s 11: 14.245 s 15: 14.280 s 15(3): 14.195, 14.280 s 30: 12.40 s 35(1): 2.110 s 35(5): 2.110 s 35A: 2.110 s 36(1): 14.50 s 60(1): 9.00, , 17.55 s 60(2): 18.50 s 60(2) to (5): 9.15 s 60(4): 14.40 s 61(2): 2.50 s 61(c): 18.160 s 62: 11.05 s 62(1): 12.185 s 62(2): 12.185 s 65: 2.50 s 71: 18.45, 18.170 s 71A: 18.35 s 71A(2): 14.245 s 80: 11.05 s 80(1): 11.05 s 80(2): 11.35 s 81: 11.35 s 83: 18.190 s 84C: 17.165, 18.95 s 84L(1): 12.240 s 86: 18.170

Registration of Deeds Act 1935: 2.145 Residential Parks Act 2007 s 5: 15.115 s 6(2): 15.115 s 50: 15.115 s 66: 15.115 Residential Tenancies Act 1995: 14.05 s 3: 15.105 s 5: 15.15 s 49: 15.20 s 56(1): 15.30 s 89A: 15.55 s 95: 15.55 ss 103 to 105A: 15.105 Residential Tenancies (Rooming House) Regulations 1999 Sch 2: 15.105

Crown Lands Act 1976 s 54: 16.65 Damage by Aircraft Act 1963

Retail and Commercial Leases Act 1995: 14.05 xlv

Australian Property Law: Cases and Materials

s 137(1): 6.80 ss 138T to 138ZA: 3.100 s 138U: 3.110 s 139(1): 5.370 s 139(2)(b): 5.370 s 149: 5.65 ss 150 to 159: 5.330 s 151(1)(a): 5.360 s 151(1)(b): 5.360 s 151(1)(d): 5.360 s 151(2): 5.360 s 152(2)(b): 5.345 s 152(7): 5.345 s 152(8): 5.345 s 153(1): 5.345 Fourth Schedule: 17.120

Damage by Aircraft Act 1963 — cont s 3: 16.60, 17.30 Environmental Management and Pollution Control Act 1994 s 74M: 5.280 Factors Act 1891: 4.30 Fair Trading (Code of Practice for Retail Tenancies) Regulations 1998: 14.05 Land Titles Act 1980 s 3(1): 16.85 s 33(6): 11.05 s 33(8): 11.05 s 40: 5.135, 17.105 s 40(1): 5.35, 5.40 s 40(2): 5.35, 5.40, 5.150 s 40(3): 17.55 s 40(3)(a): 5.150 s 40(3)(b): 5.310 s 40(3)(d): 14.90 s 40(3)(e): 17.85 s 40(3)(f): 5.310 s 40(3)(g): 5.320 s 40(3)(h): 3.100 s 41(1): 5.55 s 41(2): 5.55 s 42: 5.65 s 44: 12.50 s 48: 6.15 s 48(2): 6.15 s 48(3): 6.15 s 49(1): 9.10 s 52: 6.215 s 63: 12.185 s 64(1): 14.75 ss 66 to 67: 14.135 s 68: 14.280 s 91: 17.120 s 100: 12.10 s 102(2)(a)(iv): 18.90 ss 102 to 104: 18.30 s 103(1): 18.120 s 103E: 17.165 s 104: 18.115 s 105: 17.55 s 106: 17.55 s 107: 17.200 s 107C: 6.80 s 108(1): 17.165 s 108(3): 17.180 ss 127 to 128: 5.330 s 132(1): 6.40 s 132(3): 6.40 s 133: 6.40 s 133(1): 6.55 s 133(1)(a): 6.80 s 133(2): 6.55 s 133(3)(b): 6.80 s 137: 6.80

Landlord and Tenant Act 1935 s 26: 16.30 Limitation Act 1974: 3.100 s 4(1): 3.65 s 6(2): 3.65 s 10(2): 3.110 s 11: 3.110 s 16: 3.110 s 19: 3.120 ss 26 to 28: 3.120 s 29: 3.120 ss 29 to 31: 3.120 s 30(1): 3.120 Mineral Resources Development Act 1995 s 3: 16.65 s 6(4): 16.65 Partition Act 1869: 12.205 Perpetuities and Accumulations Act 1992: 11.105 s 3(2)(c): 11.110 s 6(1): 11.110 s 7: 11.125 s 9: 11.125 s 10: 11.125 s 11(1): 11.140 s 11(2): 11.140 s 11(3): 11.140 s 11(4): 11.140 s 15: 11.160 s 16: 11.150 s 16(5): 11.160 s 20: 11.160 s 24: 11.140, 11.145 Presumption of Survivorship Act 1921 s 2: 12.10 Registration of Deeds Act 1935: 2.145 Residential Tenancy Act 1997: 14.05 s 3: 15.105 s 5: 15.105 xlvi

Table of Statutes

s 6(2): 3.65 s 8: 3.110 s 9(1): 3.110 s 14(1): 3.110 s 16: 3.120 s 23: 3.120 s 24(1)(a): 3.120 ss 24 to 26: 3.120 s 25: 3.120 s 25(1): 3.120 s 25(2): 3.120 s 27: 3.120

Residential Tenancy Act 1997 — cont s 6: 15.15 ss 13 to 14: 15.20 ss 48A to 48H: 15.105 ss 48B to 48F: 15.105 s 68: 15.30 Retirement Villages Act 2004: 15.125 Sale of Goods Act 1896: 4.30 s 18: 9.85 Settled Land Act 1884: 13.25 Strata Titles Act 1998: 16.40 s 9: 13.90 s 35: 13.35 s 46: 13.35 s 75: 13.35, 13.45 Supreme Court Civil Procedure Act 1932 s 11(14): 14.280 s 11(14A): 14.280 Transfer of Land Act 1980 s 163: 5.370 s 164: 5.370 Wills Act 2008 s 4: 11.05 s 6: 11.05

VICTORIA Fair Trading Act 1999: 10.25 ss 32U to 32ZD: 10.25 Goods Act 1938 Pt II: 4.30 Goods Act 1958: 4.30 s 23: 9.85 Imperial Acts Application Act 1980: 12.70 s 5: 2.70, 11.35 Instruments Act 1958 s 126: 14.50 Interpretation of Legislation Act 1984 s 38: 16.40 Land Act 1958 s 42(1)(b): 5.310 s 42(2)(f): 5.320 s 385: 16.110 s 386: 16.110 Land Legislation Amendment Act 2009 s 22: 6.40 Landlord and Tenant Act 1958 s 28(2): 16.30 Limitation of Actions Act 1958: 3.100 s 5(1): 3.65

Local Government Act 1989 s 187A: 17.20 s 509(1B): 17.30 Mineral Resources (Sustainable Development Act 1990 s 4: 16.65 Owners Corporation Act 2006 s 24: 13.90 s 69: 13.35, 13.45 Perpetuities and Accumulations Act 1968: 11.105 s 5(1): 11.110 s 6(1): 11.115, 11.120 s 6(4): 11.110 s 8: 11.125, 11.130 s 9: 11.140 s 10: 11.125, 11.130, 11.140 s 13: 11.160 s 15: 11.160 s 16: 11.150 s 16(2): 11.160 Petroleum Act 1998: 16.65 Planning and Environment Act 1987: 18.130 Property (Co-ownership) Act 2005: 12.105, 12.185, 12.240 s 233: 12.105 s 234: 12.105 Property Law Act 1958 s 18(1): 17.120 s 19: 11.05 s 19(1): 11.05 s 19A: 2.70 s 23B: 17.55 s 28A: 12.70 s 44(1): 2.110 s 44(6): 2.110 s 52(1): 9.00, s 53: 18.50 s 53(1)(a): 9.25 s 53 to 55: 9.15 s 54(2): 9.10, s 56(1): 18.160 s 60(6): 2.50 xlvii

Australian Property Law: Cases and Materials

Property Law Act 1958 — cont s 62: 17.110 s 72(3): 12.185 s 73A: 14.40 s 77(1)(c): 14.245 s 78: 18.45 s 78(1): 18.170 s 79: 14.245, 18.35 s 79A: 18.45 s 84(1): 18.95 ss 112 to 113: 12.40 s 130: 11.20 s 134: 18.170 s 136: 14.245 s 141: 14.245 s 142: 14.245 s 144(1): 14.215 s 146: 14.280 s 146(4): 14.195, 14.280 ss 146 to 147: 14.280 s 153: 18.190 s 154: 14.245 s 154A: 16.30 s 154A(1): 16.30 s 154A(2): 16.30 s 154A(3): 16.30 s 187: 12.240 s 187(1): 12.240 s 187(2): 12.240 s 191: 11.35 s 195: 17.145 s 196: 17.145 s 199: 2.110 s 199(1)(b): 2.110 ss 221 to 224: 12.230 s 225: 12.225 s 228(1): 12.220, 12.230 ss 228 to 231: 12.225 s 229: 12.230 s 230: 12.230 s 231: 12.230 s 232: 12.230 s 233: 12.110 s 233(2): 12.115 s 233(2)(a): 12.115 s 233(3): 12.115 s 233(4): 12.115 s 234: 12.110 s 249: 2.50 s 272: 16.90 s 273: 16.90 Pt I: 2.145 Pt IV: 12.105, 12.115, 12.220, 12.230, 12.240 Residential Tenancies Act 1997: 14.05 s 3: 15.105, 15.115 ss 6 to 14: 15.15 s 26: 15.20 ss 45 to 46: 15.30

ss 100 to 127: 15.105 ss 110 to 119: 15.105 ss 120 to 123: 15.105 ss 143 to 206A: 15.107 ss 146 to 148: 15.115 ss 185 to 187: 15.115 Retail Leases Act 2003: 14.05 Retail Tenancies Act 1986 s 21: 14.220 Pt 3: 14.220 Retirement Villages Act 1986: 15.125 s 16: 15.125 Sale of Land Act 1962 s 32: 2.110 s 38: 9.195 Settled Land Act 1958: 13.25 Subdivision Act 1988: 16.40, 18.130 s 37: 13.35 Summary Offences Act 1966 s 9(1)(g): 14.270 Supreme Court Act 1986 s 79: 14.280 s 80: 14.280 s 85: 14.280 Transfer of Land Act 1915 s 4: 16.85 Transfer of Land Act 1958 s 26R: 6.75 s 30(2): 12.50 s 33(4): 12.50 s 34: 6.10 s 34(1): 6.15 s 34(2): 6.15 s 34(3): 6.15 s 37: 6.40 s 37(2): 6.40 s 40(1): 9.10 s 41(1): 5.10 s 42: 5.70, 5.135 s 42(1): 5.05, 5.150 s 42(1)(a): 5.310 s 42(2)(b): 3.100 s 42(2)(d): 17.55, 17.85 s 42(2)(e): 14.90, 14.110 s 43: 5.45, 5.50, 5.70 s 44(1): 5.100, 5.150 s 44(2): 5.55, 5.60 s 44H(1): 5.380 s 50: 12.10 ss 60 to 62: 3.100 s 66(1): 14.75 s 67: 14.135 s 70: 14.280 s 72: 17.55 xlviii

Table of Statutes

Law Reform (Statute of Frauds) Act 1962: 14.50

Transfer of Land Act 1958 — cont s 73: 17.180 s 73(2): 17.165 s 73(3): 17.180 s 88: 18.30 s 88(1): 18.115 s 89(1): 6.40, 6.55 s 89(2): 6.80 s 89(3): 6.80 s 90(1): 6.80 s 90(1)(b): 6.80 s 90(2A): 6.65 s 91(1): 6.80 s 91(4): 6.80 s 91C to 91J: 6.215 s 96(2): 17.130 s 103(2)(a): 5.370 s 103(2)(b): 5.370 ss 108 to 111: 5.330 s 109(2)(a): 5.360 s 109(2)(b): 5.360 s 109(2)(c): 5.360 s 110(1): 5.345 s 110(2): 5.345 s 110(3)(a): 5.360 s 110(4): 5.365

Law of Property Act 1969 s 39: 10.45 Limitation Act 1935: 3.100 Limitation Act 2005: 3.100 s 19: 3.110 ss 30 to 54: 3.120 s 38(1): 3.65 ss 46 to 51: 3.120 s 47: 3.120 s 48: 3.120 s 65: 3.110 s 65(2): 3.120 s 66: 3.110 s 84(a): 3.120 Mining Act 1978 s 8(1): 16.65 Petroleum and Geothermal Energy Resources Act 1967: 16.65 Property Law Act 1969 s 7: 17.120 s 9(2)(4): 14.40 s 11: 18.160 s 20: 18.170 s 23(1): 2.50 s 26: 11.35 s 27: 11.20 s 33: 17.55 s 33(1): 9.00, 14.40 s 34: 18.50 s 35(2): 14.40 s 34 to 36: 9.15 s 37: 2.50 ss 37(1) to (4): 2.50 s 39: 12.10 s 41: 17.110 s 44: 12.185 s 47: 18.45, 18.170 s 48: 18.35 s 48(2): 14.245 s 49: 18.45 ss 67 to 68: 12.40 ss 71 to 72: 14.60 s 77: 14.245 s 78: 14.245 s 80(1): 14.215 s 81: 14.280 s 81(4): 14.195, 14.280 s 81(5): 14.245 s 101: 11.110 s 102: 11.125 s 103: 11.125 s 105: 11.140 s 106: 11.140 s 107: 11.140 s 108: 11.125

Transfer of Land (Electronic Transactions) Act 2004 s 6: 5.380 Transfer of Land (Single Register) Act 1998: 2.145 Trustee Act 1958 s 63(1): 13.25 Water Act 1989 s 136: 17.30 Wills Act 1997 s 4(2): 11.05 Wrongs Act 1958 s 30: 16.60, 17.30

WESTERN AUSTRALIA Commercial Tenancy (Retail Shops) Agreements Act 1985: 14.05 Damage by Aircraft Act 1964 s 4: 16.60 Family Court Act 1997 s 205ZA: 2.65 s 205ZB: 2.65 Interpretation Act 1984 s 5: 16.40 s 13A(3): 2.65 Land Administration Act 1997 s 195: 18.10 xlix

Australian Property Law: Cases and Materials

s 84: 11.05 s 91: 14.75 ss 92 to 93: 14.135 s 95: 14.245 s 96: 14.280 s 104: 14.280 s 129A: 18.30 s 129B(2): 18.115 s 129C: 17.165, 18.95 s 134: 5.55 s 136J(1): 17.165 s 137: 6.40 s 137(1): 6.55 s 138: 6.80 s 138(1): 6.80 s 138(2): 6.80 s 141(l): 6.80 s 188(ii): 5.370 s 196(1): 5.360 s 199: 5.65 s 201: 5.330, 5.345 s 202: 5.65 s 205: 5.345 ss 205 to 211: 5.330 ss 222 to 223A: 3.100 s 227: 12.10 s 229A: 17.180

Property Law Act 1969 — cont s 110: 11.160 s 111: 11.150 s 111(2): 11.160 s 120(d): 12.10 s 121: 17.145 s 122: 16.125 s 123: 16.120 s 129: 12.240 Pt XI: 11.105 Pt XIV: 12.205 Registration of Deeds Act 1856: 2.145 Residential Parks (Long-stay Tenants) Act 2006 s 10: 15.115 ss 21 to 54: 15.115 ss 59 to 61: 15.115 Residential Tenancies Act 1987: 14.05 s 5 to 6: 15.15 s 6: 15.15 s 27A: 15.20 s 32(1): 15.30 Retirement Villages Act 1992: 15.125 ss 58 to 64: 15.125 Rights in Water and Irrigation Act 1914 s 15(1): 16.110 s 16: 16.110

Wills Act 1970 s 4: 11.05 s 6: 11.05

Sale of Goods Act 1895: 4.30 s 18: 9.85 Sale of Land Act 1970 s 22: 2.110

IMPERIAL

Strata Titles Act 1985: 16.40 s 3(2)(a): 13.90 s 10: 13.35 s 18: 13.35 s 19: 13.35 s 49(1): 13.35, 13.45

Grantees of Reversions Act 1540: 14.245

1540 Statute: 14.245

Royal Mines Act 1688: 16.75 Statute of Forcible Entry 1381: 14.270

ENGLAND

Transfer of Land Act 1893 s 4(1): 16.85 s 31(2): 6.75 s 53(1): 6.15 s 55: 6.40 s 55(3): 6.40 s 58: 9.10 s 60: 12.50 s 63A: 17.55 s 64: 17.55 s 65: 17.55 s 67: 17.55 s 68: 5.135, 14.90, 17.85 s 68(1): 3.100, 5.150, 5.310, 5.320 ss 68(1) to (4): 5.15 s 68(2): 5.150 s 68(3)(c): 17.55 s 76: 5.370 s 77: 5.370

Factors Act 1823: 4.30 Factors Act 1825: 4.30 Factors Act 1842: 4.30 Factors Act 1847: 4.30 Statute of Anne 1705: 12.70 Statute of Frauds 1677 s 4: 14.50 Statute of Uses 1535: 2.70, 11.25, 11.35 Statute of Wills 1540: 11.35

NEW ZEALAND Land Transfer (Computer Register and Electronic Lodgment) Amendment Act 2002 l

Table of Statutes

s 70(1)(g): 2.110

Land Transfer (Computer Register and Electronic Lodgment) Amendment Act 2002 — cont s 80(1): 5.380 s 81(2): 5.380 s 81(3): 5.380

Land Registration Act 2002: 3.100 Sch 3, para 2: 2.110 Law of Property Act 1925 s 56(1): 18.160 s 62: 17.110, 17.120 s 78: 18.170, 18.180 s 78(1): 18.45, 18.170 s 79: 18.180

UNITED STATES Uniform Commercial Code: 10.25

UNITED KINGDOM

Perpetuities and Accumulations Act 1964: 11.105

Abolition of Feudal Tenures etc (Scotland) Act 2000: 2.35

Perpetuities and Accumulations Act 2009: 11.105

Age of Marriage Act 1929: 11.75

Real Property Limitation Act 1833: 3.110

Contingent Remainders Act 1877 s 1: 11.35

Statute of Frauds: 8.65 Statute of Quia Emptores 1290: 2.10

Contracts (Rights of Third Parties) Act 1999: 18.160

Statute of Tenures 1660: 2.10, 2.25 Statute of Wills 1540: 1.115

Land Registration Act 1925

li

CONTEXT OF PROPERTY LAW

PART1

CHAPTER 1 Concept of Property [1.05]

RECOGNITION BY THE COURTS OF PROPERTY ..................................................... 3 [1.10] [1.20] [1.30] [1.40] [1.50] [1.60]

[1.70]

WRITINGS ON THE MEANING OF PROPERTY ...................................................... 32 [1.70] [1.75] [1.85]

[1.95]

Women, Property and Family Relations ..................................... 60

BOUNDARY BETWEEN PROPERTY AND CONTRACT ............................................ 64 [1.120] [1.130] [1.135] [1.140]

[1.150]

Plenty v Dillon ........................................................................ 55

PROPERTY AND GENDER ISSUES ........................................................................... 60 [1.110]

[1.120]

Introduction: Some Theses on Property ..................................... 32 Property in Thin Air ................................................................. 37 Property and Sovereignty ......................................................... 47

PROTECTION FOR PROPERTY ................................................................................ 55 [1.95]

[1.110]

Davis v Commonwealth ............................................................ 4 Victoria Park Racing and Recreation Grounds Co Ltd v Taylor ....................................................................................... 9 Kent v Johnson ........................................................................ 16 Stow v Mineral Holdings (Australia) Pty Ltd .............................. 20 Yanner v Eaton ....................................................................... 23 Parsons v Queen ..................................................................... 28

Cowell v Rosehill Racecourse Co Ltd .......................................... 64 Heidke v Sydney City Council ................................................... 70 Forbes v New South Wales Trotting Club Ltd ............................. 72 Ashburn Anstald v Arnold ......................................................... 73

REMEDIES ................................................................................................................. 78 [1.150]

Jaggard v Sawyer .................................................................... 78

RECOGNITION BY THE COURTS OF PROPERTY [1.05] The creation of new proprietary interests is normally a matter for legislative bodies, primarily because they can act prospectively and can set out in one place all the characteristics of any interest. By contrast the courts describe the law that has been in existence and make binding decisions only with respect to the matters essential for the resolution of the dispute before them. However the possibility of new proprietary interests arises in the cases below as a result of the interpretation of statutes or the definition of tortious actions. The most significant recognition of new proprietary rights by Australian courts has been the recognition of land rights of indigenous people by the High Court in Mabo v Queensland (No 2) (1992) 175 CLR 1. These rights were derived from another legal system; that of the native persons as at the date of the exercise of British sovereignty. The authors of this text contend that the courts were forced to act by the failure of the Commonwealth parliament to make laws in an area of obvious contention and where non-recognition would have produced a result discriminatory against indigenous people. The definition of native title on a case-by-case basis has produced inevitable uncertainty. [1.05]

3

Australian Property Law: Cases and Materials

Davis v Commonwealth [1.10] Davis v Commonwealth (1988) 166 CLR 79 High Court of Australia DEMURRER: Louis Edward Davis, Allan Santo and Ernie Creighton sued the Commonwealth and the Australian Bicentennial Authority in the High Court for a declaration that ss 6 to 18, 22, 23 and 25 of the Australian Bicentennial Authority Act 1980 (Cth) were beyond the legislative power of the Commonwealth Parliament, and a declaration that the appropriation of money for the purposes of the Authority or the celebration by the Commonwealth of the Bicentenary was not authorised by s 83 of the Constitution. The first plaintiff alleged that he designed and printed articles of clothing bearing the name of the Authority and certain symbols and expressions prescribed under s 22 of the Act. His request for the Authority’s consent to the use of the name, symbols and expressions had been refused. One of the devices or symbols for which the Authority declined consent had a central symbol, with the figures “1788” and “1988”, bearing a discernible similarity to the first and second official symbols of the Authority. The inner symbol was surrounded with a outer ring in which the words “200 YEARS OF SUPPRESSION AND DEPRESSION” appeared. The first plaintiff further alleged that he intended selling articles to which the name of the Authority and/or a prescribed symbol or a prescribed expression had been applied. The first plaintiff intended to sell the articles by wholesale to the second and third plaintiffs who intended to sell them by retail. The defendants demurred to the statement of claim on the ground that the Act was valid. The demurrer was heard by the Full Court. … MASON CJ, DEANE and GAUDRON JJ: The scope of the executive power of the Common-wealth has often been discussed but never defined. By s 61 of the Constitution it extends to the execution and maintenance of the Constitution. As Mason J observed in Barton v The Common-wealth (1975) 131 CLR 477 at 498, the power: extends to the execution and maintenance of the Constitution and of the laws of the Commonwealth. It enables the Crown to undertake all executive action which is appropriate to the position of the Commonwealth under the Constitution and to the spheres of responsibility vested in it by the Constitution. These responsibilities derived from the distribution of legislative powers effected by the Constitution itself and from the character and status of the Commonwealth as a national polity: Victoria v The Commonwealth and Hayden (the “Australian Assistance Plan Case”) (1975) 134 CLR 338 at 396-397. So it is that the legislative powers of the Commonwealth extend beyond the specific powers conferred upon the Parliament by the Constitution and include such powers as may be deduced from the establishment and nature of the Commonwealth as a polity: see the discussion by Dixon J in Australian Communist Party v The Commonwealth (the “Communist Party Case”) (1951) 83 CLR 1 at 187-188. Dixon J expressed a like view of Parliament’s power of appropriation when he said in Attorney- General (Vict) v The Common-wealth (the “Pharmaceutical Benefits Case”) (1945) 71 CLR 237, at 271-272: In deciding what appropriation laws may validly be enacted it would be necessary to remember what position a national government occupies and … to take no narrow view, but the basal consideration would be found in the distribution of powers and functions between the Commonwealth and the States. The Constitution distributes the plenitude of executive and legislative powers between the Commonwealth and the States: see Colonial Sugar Refining Co Ltd v Attorney-General for the Commonwealth (1912) 15 CLR 182 at 214-215, per Isaacs J; Smith v Oldham (1912) 15 CLR 355 at 365, per Isaacs J. On this footing, as Isaacs J pointed out in The Commonwealth v Colonial Combing, Spinning and Weaving Co Ltd (the “Wooltops Case”) (1922) 31 CLR 421 at 437-439, s 61 confers on the Commonwealth all the prerogative powers of the Crown except those that are necessarily exercisable by the States under the allocation of responsibilities made by the Constitution and those denied by the Constitution itself. Thus the existence of Commonwealth executive power in areas beyond the express 4

[1.10]

Concept of Property

CHAPTER 1

Davis v Commonwealth cont. grants of legislative power will ordinarily be clearest where Commonwealth executive or legislative action involves no real competition with State executive or legislative competence. If we ask the question whether the commemoration of the Bicentenary is a matter falling within the peculiar province of the Commonwealth in its capacity as the national and federal government, the answer must be in the affirmative. That is not to say that the States have no interest or no part to play in the commemoration. Clearly they have such an interest and such a part to play, whether as part of an exercise in co-operative federalism or otherwise. But the interest of the States in the commemoration of the Bicentenary is of a more limited character. It cannot be allowed to obscure the plain fact that the commemoration of the Bicentenary is pre-eminently the business and the concern of the Commonwealth as the national government and as such falls fairly and squarely within the federal executive power. Implicit in what we have just said is a rejection of any notion that the character and status of the Commonwealth as the government of the nation is relevant only in the ascertainment of the scope of the executive power in the area of Australia’s external relations. In the legislative sphere the nature and status of the Commonwealth as a polity has sustained legislation against subversive or seditious conduct: Burns v Ransley (1949) 79 CLR 101 at 116; R v Sharkey (1949) 79 CLR 121 at 148-149; see the Communist Party Case, at 187-188. And there was no suggestion in the judgments in the Australian Assistance Plan Case (at 362, 375, 397 and 412-413) that the character and status of the Commonwealth as a national government was not relevant in ascer-taining the scope of the executive power in its application domestically. Indeed, the judgments in that case contradict the suggestion, the Australian Assistance Plan being a domestic scheme. From the conclusion that the commemoration of the Bicentenary falls squarely within Commonwealth executive power other consequences follow. The first is that the executive power extends to the incorporation of a company as a means for carrying out and implementing a plan or programme for the commemoration. There is no constitutional bar to the setting up of a corporate authority to achieve this object or purpose in preference to executive action through a Ministry of the Crown. Certainly there is no such bar to the incorporation of a company in the Australian Capital Territory, though we very much doubt that this procedure would enable the Commonwealth to circumvent limitations or restrictions which would otherwise attach to the federal executive power in so far as it extends to the commemoration of the Bicentenary: cf Johnson v Kent (1975) 132 CLR 164 at 169. Section 51(xxxix) of the Constitution enables the Parliament to legislate in aid of an exercise of the executive power. So, once it is accepted that the executive power extends to the incorporation of the Authority with the object set out in cl 3 of its memorandum of association, s 51(xxxix) authorises legislation regulating the administration and procedures of the Authority and conferring on it such powers and protection as may be appropriate to such an authority. It may be possible to support this conclusion without recourse to s 51(xxxix). The requisite legislative power may be deduced from the nature and status of the Commonwealth as a national polity in just the same way as Dixon J in the Communist Party Case thought that legislation prohibiting specific acts of sedition could be upheld. However it is unnecessary for us to pursue this question. … To return again to the incidental and implied powers. It is necessary, first, to refer to the four devices or symbols to the plaintiffs’ use of which the Authority refused to consent. The first device consists of the profile of a human head surrounded by the two words “AUSTRALIAN BICENTENARY” with the caption “DISCOVERED & DISCOLOURED”. The device is quite different from the official symbols of the Authority. And the words “AUSTRALIAN BICENTENARY”, though prescribed by reg 4 for the purposes of s 22(6)(d), are not used in the device in conjunction with “1788”, “1988” or “88”. Accordingly, the [1.10]

5

Australian Property Law: Cases and Materials

Davis v Commonwealth cont. plaintiffs’ proposed use of the expression does not fall within the concluding words of s 22(6)(d). The third and fourth devices to be used by the plaintiffs do not involve the use of a prescribed expression or an official symbol. However the plaintiffs’ second device stands in a different situation. It has a central symbol, bearing the figures “1788” and “1988”, that has a discernible similarity to the first and second official symbols of the Authority. The inner symbol is surrounded with an outer ring in which the words “200 YEARS OF SUPPRESSION AND DEPRESSION” appear. The device involves the use of a prescribed expression, the words “200 years”, in conjunction with “1788” and “1988”. Furthermore, the device incorporates a symbol that “so nearly resembles” the first and second official symbols “as to be capable of being mistaken for” those symbols. Accordingly, it is only the use of the second of the plaintiffs’ devices that would expose the plaintiffs to liability for the commission of offences against s 22(1)(a), (b) and (c), in the absence of the written consent of the Authority. Section 24 recognises that ss 22 and 23 are provisions “for the protection of (the) name, property or interests” of the Authority. The defendants submit that, when the two sections are so understood, the executive power, operating in conjunction with the incidental power (s 51(xxxix)) or the implied power, supports them as laws reasonably adapted to the purpose of facilitating and protecting the attainment of the objects of the commemoration of the Bicentenary and the objects of the Authority. This, the defendants argue, includes the protection of the integrity of the official symbols and the protection of the prescribed expressions. The broad proposition advanced by the defendants travels too widely in two respects. First, it suggests that the relevant exercise of executive and legislative power is directed not to the commemoration of the Bicentenary as such but to the attainment of objects lying beyond the commemoration itself. Secondly, the proposition suggests that the relevant exercise of power extends to the attainment of the objects of the Authority as though they are independent of the commemoration of the Bicentenary. In one respect this is so. The external affairs power supports the prescription in s 22(6)(d)(i) of the last four expressions mentioned in that paragraph. Australia is a party to the Convention Relating to International Exhibitions of 1928 as amended by subsequent Protocols. Expo 88 is an international exhibition to which the Convention applies. By Art 9(3) Australia is bound to: “use whatever means it considers most appropriate under its own legislation to act against the organisers of false exhibitions or exhibitions to which participants might be fraudulently attracted by false promises, notices or advertisements”. Apart from this aspect of s 22(6)(d)(i), the federal executive power authorises the commemoration of the Bicentenary and what is incidental to it. Likewise, in the manner already discussed, federal legislative power extends to the same extent. In exercising that power the Parliament may protect the name of the Authority, authorise the prescription of appropriate official symbols for use by the Authority and prohibit unauthorised use by others of the Authority’s name or of those symbols, or likenesses of them, for the purpose of protecting their integrity. The implied legislative power, as well as the incidental power (s 51(xxxix)), enables Parliament to enact coercive laws: see Burns v Ransley. Consequently, if the provisions of ss 22 and 23 relating to the use of the Authority’s name and prescribed symbols stood on their own we would uphold their validity. If we look to s 22(1)(a) as it applies to prescribed expressions, the first six expressions prescribed by s 22(6)(d)(i) are expressions which may be used in conjunction with “1788”, “1988” or “88”, in connection with a business, trade, profession or occupation, in a great variety of circumstances, without prejudicing in any way the commemoration of the Bicentenary or the attainment of the objects of the Authority. The expressions are commonly used by all sections of the community, particularly in this the Bicentennial year. There is every reason for thinking that a wide range of persons, companies and organizations have occasion to use them otherwise than for purposes of advertising and publicity, if only to record what they are doing in the Bicentennial year. And there is no 6

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Davis v Commonwealth cont. reason for thinking that the protection of the integrity of the commemoration of the Bicentenary and the attainment by the Authority of its objects require the prohibition of such a use of the six prescribed expressions in the circumstances mentioned in s 22(1), subject only to the written consent of the Authority. The difficulties do not stop at this point. Take the prescription of “Melbourne” and “Sydney” in par (d)(i). The use of “Family Law Conference Melbourne 1988”, without the prior written consent of the Authority, in connection with a conference of the legal profession in that city this year would infringe s 22(1)(a). Yet it is impossible to perceive how the prohibition of such a use contributes to the protection of the integrity of the commemoration of the Bicentenary or the attainment of the objects of the Authority. Many similar illustrations (for example, clothing or emblems displaying support for sporting teams) might be given of the use of a combination of “Melbourne” and “1988” or “Sydney” and “1988”. The illustrations given in the two preceding paragraphs indicate that the effect of the provisions is to give the Authority an extraordinary power to regulate the use of expressions in everyday use in this country, though the circumstances of that use in countless situations could not conceivably prejudice the commemoration of the Bicentenary or the attainment by the Authority of its objects. In arming the Authority with this extraordinary power the Act provides for a regime of protection which is grossly disproportionate to the need to protect the commemoration and the Authority. It is therefore no answer to say that the Authority’s power to refuse written consent is exercisable only for the purpose of ensuring such protection, assuming that to be a permissible construction of s 22(1). Here the framework of regulation created by s 22(1)(a) with s 22(6)(d)(i) and (ii) reaches far beyond the legitimate objects sought to be achieved and impinges on freedom of expression by enabling the Authority to regulate the use of common expressions and by making unauthorised use a criminal offence. Although the statutory regime may be related to a constitutionally legitimate end, the provisions in question reach too far. This extraordinary intrusion into freedom of expression is not reasonably and appropriately adapted to achieve the ends that lie within the limits of constitutional power. It follows that a reading down of the power to refuse or grant consent under s 22(1)(a) to the use of prescribed expressions would not avail to bring the provision within power. In any event it is not clear how one would read the provision down. The question is complicated by the contrast between the form of par (c)(ii) and pars (d)(i) and (ii). In the latter paragraphs no attempt is made to confine the concept of “prescribed expressions” to expressions the use of which would, in specified circumstances, convey some suggestion of connection or affiliation with the Authority or the commemoration which it is promoting and assisting. Moreover, the absence of any express limitation on the power of prescription contained in par (d)(ii) is consistent with an intention to confer on the Authority a wide-ranging power to regulate the use of expressions in common use, in the belief that there is a possibility that in some circum-stances the expressions could conceivably be used in a way that would be detrimental to the interests sought to be protected. Again, it is not easy to see how the power of prescription should be read down so as to bring it within the limits of constitutional power. [Wilson, Dawson and Brennan JJ agreed that the provisions of the Australian Bicentennial Authority Act 1980 were beyond the powers of the Commonwealth government.]

[1.15]

Notes and Questions

1. Although this case is expressed in terms relating to the legislative and executive powers of the Commonwealth government, the legislation under attack had purported to restrict the [1.15]

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use of expressions related to the bicentenary and thus in effect vest copyright in those words in the Bicentenary Authority. Copyright is an intangible form of property but as the following cases illustrate the essential nature of property is the preclusion of something from others. The High Court reacted to what was characterised as an attempt to take away from members of the Australian community the right to use common phrases of the English language. The general nature of protection for the products of intellectual endeavour is explored below in Chapter 4. 2. It is becoming common for governments to grant to promoters of special events exclusive rights for merchandising in association with that event. Thus the issue of the validity and nature of the rights conferred is likely to be an increasing matter of dispute. 3. The Australian Football League (and all similar bodies) claims copyright in its fixture of matches for the season. Does that prevent me from running a football tipping competition where I use the fixture as outlined by the AFL? If not, why not? (See IceTV Pty Ltd v Nine Network Australia Pty Ltd (2009) 239 CLR 458. Cf, on relevantly different facts, Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 WLR 273.) 4. Controversies as to the existence of proprietary interests have centred on the extent to which ideas and aspects of relationships should be protected. The acceptance of private property in Australian society has meant that most tangible things, including land, can be owned. One thing of which ownership has generally been regarded as inappropriate has been the human body. Australian society has not allowed the sale of blood or, more recently, human tissue. Whether connected to this prohibition or not a shortage of material for transplants has been an irritant for medical practitioners. Even corpses have been excluded from the domain of commerce with apparent consequences as far ago as the Edinburgh murders by Burke and Haire at the beginning of the 19th century to supply bodies for medical education. Australian courts have been prepared to recognise property rights in a human body which has been specially treated after death. In Doodeward v Spence (1908) 6 CLR 406 at 414 Griffiths CJ stated: a human body, or a portion of a human body, is capable by law of becoming the subject of property … I entertain no doubt that, when a person has by the lawful exercise of work or skill so dealt with a human body or a part of a human body in his lawful possession that it has acquired some attributes differentiating it from a mere corpse awaiting burial, he acquires a right to retain possession of it.

In Bazley v Wesley Monash IVF Pty Ltd [2010] QSC 118, the court held that frozen semen samples, stored for a fee by an assisted reproductive technology clinic after the donor’s death, constituted property. The transaction was one of bailment for reward, and the personal representative of the deceased was entitled to the return of the sperm samples despite the fact that National Health and Medical Research Council Ethical Guidelines required the destruction of the samples in the relevant circumstances. For a detailed philosophical analysis of the issues surrounding property rights and the human body, see Davies and Naffine, Are Persons Property? Legal Debates about Property and Personality (Ashgate, Aldershot, 2001). 5. Property represents a power relationship between the owner of something and the object of that ownership. In today’s society all natural persons are capable of owning property but the absence of slavery is relatively recent. Today (non-human) animals suffer, in part, because they are regarded as property. Prevention of cruelty laws impact only on the grossest abuses and continue to permit the commercial and non-commercial exploitation 8

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of sentient beings with which humans share the planet. In recent times, however, the idea that animals should merely be regarded as the object of human property rights has become increasingly contested: see Sunstein and Nussbaum (eds), Animal Rights: Current Debates and New Directions (OUP, Oxford, 2006). For a philosophical and doctrinal analysis of the legal status of animals in Australasia, see Cao, Animal Law in Australia and New Zealand (Thomson Reuters, Sydney, 2010). Also see [4.10] Note 3. Also compare People of the State of New York ex rel, The Nonhuman Rights Project Inc, on behalf of Tommy v Lavery (2014) WL 6802767 (NYAD 3 Dept) (chimpanzee held to be property and not entitled to be released from a caged environment), with an Argentinian court which held that an orangutan was entitled to succeed in a writ of habeas corpus sought on his behalf by an animal protection organisation. Anon, “Conceden un Habeas Corpus a Una Orangutana”, December 21, 2014, WLNR 36132917; Anon, “Una Orangutana en Libertad” December 26, 2014, WLNR 36603997.

Victoria Park Racing and Recreation Grounds Co Ltd v Taylor [1.20] Victoria Park Racing and Recreation Grounds Company Ltd v Taylor (1937) 58 CLR 479 High Court of Australia LATHAM CJ: This is an appeal from a judgment for the defendants given by Nicholas J in an action by the Victoria Park Racing and Recreation Grounds Co Ltd against Taylor and others. The plaintiff company carries on the business of racing upon a racecourse known as Victoria Park. The defendant Taylor is the owner of land near the racecourse. He has placed an elevated platform on his land from which it is possible to see what takes place on the racecourse and to read the information which appears on notice boards on the course as to the starters, scratchings, etc, and the winners of the races. The defendant Angles stands on the platform and through a telephone comments upon and describes the races in a particularly vivid manner and announces the names of the winning horses. The defendant the Common-wealth Broadcasting Corporation holds a broadcasting licence under the regulations made under the Wireless Telegraphy Act 1905-1936 and carries on the business of broadcasting from station 2UW. This station broadcasts the commentaries and descriptions given by Angles. The plaintiff wants to have the broadcasting stopped because it prevents people from going to the races and paying for admission. The evidence shows that some people prefer hearing about the races as seen by Angles to seeing the races for themselves. The plaintiff contends that the damage which it thus suffers gives, in all the circumstances, a cause of action. The plaintiff’s case is put as an action upon the case for nuisance affecting the use and enjoyment of the plaintiff’s land. It is also contended that there is an unnatural user of Taylor’s land by Angles to which the Broadcasting Co is a party and of which it takes advantage. The unnatural user is, I understand, alleged to consist in the erection of the wooden structure on Taylor’s land which Angles uses and the use of the land for broadcasting purposes. It is contended that, there being this unnatural user of the land, the defendant is liable for all the damage which may happen to any person, including the plaintiff, as a result of such user. The first contention is that the plaintiff’s land has been made suitable for a racecourse, that by reason of the action of the defendants it has been deprived of at least some measure of that suitability, and that therefore this is a case of nuisance – an unlawful interference with the use and enjoyment of land. No analogous case has been cited to the court. I agree that the category of nuisance is not closed and that if some new method of interfering with the comfort of persons in the use of land emerges the law may provide a remedy. For example, the increasing use of electricity, with the possibility of the escape of electricity into an adjoining property, has provided a new possible source of interference with the use of land and the law provides a remedy in such a case. [1.20]

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Victoria Park Racing and Recreation Grounds Co Ltd v Taylor cont. In this case, however, in my opinion, the defendants have not interfered in any way with the use and enjoyment of the plaintiff’s land. I am unable to see that any right of the plaintiff has been violated or any wrong done to him. Any person is entitled to look over the plaintiff’s fences and to see what goes on in the plaintiff’s land. If the plaintiff desires to prevent this, the plaintiff can erect a higher fence. Further, if the plaintiff desires to prevent its notice boards being seen by people from outside the enclosure, it can place them in such a position that they are not visible to such people. At sports grounds and other places of entertainment it is the lawful, natural and common practice to put up fences and other structures to prevent people who are not prepared to pay for admission from getting the benefit of the entertainment. In my opinion, the law cannot by an injunction in effect erect fences which the plaintiff is not prepared to provide. The defendant does no wrong to the plaintiff by looking at what takes place on the plaintiff’s land. Further, he does no wrong to the plaintiff by describing to other persons, to as wide an audience as he can obtain, what takes place on the plaintiff’s ground. The court has not been referred to any principle of law which prevents any man from describing anything which he sees anywhere if he does not make defamatory statements, infringe the law as to offensive language, etc, break a contract, or wrongfully reveal confidential information. The defendants did not infringe the law in any of these respects It has been argued that by the expenditure of money the plaintiff has created a spectacle and that it therefore has what is described as a quasi-property in the spectacle which the law will protect. The vagueness of this proposition is apparent upon its face. What it really means is that there is some principle (apart from contract or confidential relationship) which prevents people in some circumstances from opening their eyes and seeing something and then describing what they see. The court has not been referred to any authority in English law which supports the general contention that if a person chooses to organise an entertainment or to do anything else which other persons are able to see he has a right to obtain from a court an order that they shall not describe to anybody what they see. If the claim depends upon interference with a proprietary right it is difficult to see how it can be material to consider whether the interference is large or small – whether the description is communicated to many persons by broadcasting or by a newspaper report, or only to a few persons in conversation or correspondence. Further, as I have already said, the mere fact that damage results to a plaintiff from such a description cannot be relied upon as a cause of action. I find difficulty in attaching any precise meaning to the phrase “property in a spectacle”. A “spectacle” cannot be “owned” in any ordinary sense of that word. Even if there were any legal principle which prevented one person from gaining an advantage for himself or causing damage to another by describing a spectacle produced by that other person, the rights of the latter person could be described as property only in a metaphorical sense. Any appropriate-ness in the metaphor would depend upon the existence of the legal principle. The principle cannot itself be based upon such a metaphor. Even if, on the other hand, a spectacle could be said to exist as a subject matter of property, it would still be necessary, in order to provide the plaintiff in this case with a remedy, to show that the description of such property is wrongful or that such description is wrongful when it is widely disseminated. No authority has been cited to support such a proposition. RICH J: In these circumstances the learned judge held that the case was one of damnum sine injuria. The question to be solved is, “How far can one person restrain another from invading the privacy of land which he occupies, when such invasion does not involve actual entry on the land?” (Professor Winfield, Law Quarterly Review, vol 47, p 24.) The defendants contended that the law provides no remedy as their action did not fall within any classifica-tion of torts and that the plaintiff’s remedy lay either in self-defence, for example, raising the height of the fences round the course, or in an application to the legislature. It does not follow that because no precedent can be found a principle 10 [1.20]

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Victoria Park Racing and Recreation Grounds Co Ltd v Taylor cont. does not exist to support the plaintiff’s right. Nuisance covers so wide a field that no general definition of nuisance has been attempted but only a classification of the various kinds of nuisance. Courts have always refrained from fettering themselves by definitions. Courts of equity constantly decline to lay down any rule, which shall limit their power and discretion as to the particular cases in which such injunctions shall be granted or withheld. And there is wisdom in this course; for it is impossible to foresee all the exigencies of society which may require their aid and assistance to protect rights, or redress wrongs. The jurisdiction of these courts, thus operating by way of special injunction, is manifestly indispensable for the purposes of social justice in a great variety of cases, and therefore should be fostered and upheld by a steady confidence. (Story’s Equity Jurisprudence, Lt Eng Ed (1881), s 959 (b), p 625.) The common law has not proved powerless to attach new liabilities and create new duties when experience has proved that it is desirable. That this was so in the older days was due to the wide scope of the action upon the case. The action upon the case was elastic enough to provide a remedy for any injurious action causing damage … When relationships come before the courts which have not previously been the subject of judicial decision the court is unfettered in its power to grant or refuse a remedy for negligence. The action on the case for negligence has no limits set upon its territory, save by previous decisions upon such specific relationships as have come before the courts. (Salmond on Torts, 9th ed (1936) (Stallybrass), pp 18, 19; cf Pollock, Torts, 13th ed (1929), p 22.) An action on the case in the nature of nuisance was one of the flexible remedies capable of adaptation to new circumstances falling within recognised principles. This case presents the peculiar features that by means of broadcasting – a thing novel both in fact and law – the knowledge obtained by overlooking the plaintiff’s racecourse from the defendants’ tower is turned to account in a manner which impairs the value of the plaintiff’s occupation of the land and diverts a legitimate source of profit from its business into the pockets of the defendants. It appears to me that the true issue is whether a non-natural use of a neighbour’s land made by him for the purpose of obtaining the means of appropriating in this way part of the profitable enjoyment of the plaintiff’s land to his own commercial ends – a thing made possible only by radio – falls within the reason of the principles which give rise to the action on the case in the nature of nuisance. There is no absolute standard as to what constitutes a nuisance in law. But all the surrounding circumstances must be taken into consideration in each case. As regards neighbouring properties their interdependence is important in arriving at a decision in a given case. An improper or non-natural use or a use in excess of a man’s right which curtails or impairs his neighbour’s legitimate enjoyment of his property is “tortious and hurtful” and constitutes a nuisance. A man has no absolute right “within the ambit of his own land” to act as he pleases. His right is qualified and such of his acts as invade his neighbour’s property are lawful only in so far as they are reasonable having regard to his own circumstances and those of his neighbour (Law Quarterly Review, vol 52, p 460; vol 53, p 3). The plaintiff’s case must, I am prepared to concede, rest on what is called nuisance. But it must not be overlooked that this means no more than that he must complain of some impairment of the rights flowing from occupation and ownership of land. One of the prime purposes of occupation of land is the pursuit of profitable enterprises for which the exclusion of others is necessary either totally or except upon conditions which may include payment. In the present case in virtue of its occupation and ownership the plaintiff carries on the business of admitting to the land for payment patrons of racing. There it entertains them by a spectacle, by a competition in the comparative merits of racehorses, and it attempts by all reasonable means to give to those whom it admits the exclusive right of witnessing the spectacle, the competition and of using the collated information in betting while that is possible on its various events. This use of its rights as occupier is usual, reasonable and profitable. So much no one can dispute. If it be true that an adjacent owner has an unqualified and absolute right to overlook an occupier whatever may be the enterprise he is carrying on and to make any profitable use to which what he sees can be put, whether in his capacity [1.20]

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Victoria Park Racing and Recreation Grounds Co Ltd v Taylor cont. of adjacent owner or otherwise, then to that extent the right of the occupier carrying on the enterprise must be modified and treated in law as less extensive and ample than perhaps is usually understood. But can the adjacent owner by virtue of his occupation and ownership use his land in such an unusual way as the erection of a platform involves, bring mechanical appliances into connection with that use, ie, the microphone and land line to the studio, and then by combining regularity of observation with dissemination for gain of the information so obtained give the potential patrons a mental picture of the spectacle, an account of the competition between the horses and of the collated information needed for betting, for all of which they would otherwise have recourse to the racecourse and pay? To admit that the adjacent owner may overlook does not answer this question affirmatively. The Silver Fox Case [1936] 2 KB 468 shows that an adjoining owner may not fire a gun in the breeding season so as to interfere with his neighbour’s usual or normal use of his land. The besetting cases indicate that at common law the concert of others is a material factor. Eavesdropping suggests that at common law calculated overhearing differs from the casual sort. … Nuisance is not trespass on the case and physical or material interference is not necessary. The “vibration” cases and the “besetting and eavesdropping” cases are certainly against such a contention. What appears to me to be the real point in this case is that the right of view or observation from adjacent land has never been held to be an absolute and complete right of property incident to the occupation of that land and exercisable at all hazards notwithstanding its destructive effect upon the enjoyment of the land overlooked. In the absence of any authority to the contrary I hold that there is a limit to this right of overlooking and that the limit must be found in an attempt to reconcile the right of free prospect from one piece of land with the right of profitable enjoyment of another. … Indeed the prospects of television make our present decision a very important one, and I venture to think that the advance of that art may force the courts to recognise that protection against the complete exposure of the doings of the individual may be a right indispensable to the enjoyment of life. For these reasons I am of opinion that the plaintiff’s grievance, although of an unprecedented character, falls within the settled principles upon which the action for nuisance depends. Holding this opinion it is unnecessary for me to discuss the question of copyright raised in the case. I think that the appeal should be allowed. … DIXON J: The plaintiff’s counsel relied in the first instance upon an action on the case in the nature of nuisance. The premises of the plaintiff are occupied by it for the purpose of a racecourse. They have the natural advantage of not being overlooked by any surrounding heights or raised ground. They have been furnished with all the equipment of a racecourse and so enclosed as to prevent any unauthorised ingress or, unless by some such exceptional devices as the defendants have adopted, any unauthorised view of the spectacle. The plaintiff can thus exclude the public who do not pay and can exclude them not only from presence at, but also from knowledge of, the proceedings upon the course. It is upon the ability to do this that the profitable character of the enterprise ultimately depends. The position of and the improvements to the land thus fit it for a racecourse and give its occupation a particular value. The defendants then proceed by an unusual use of their premises to deprive the plaintiff’s land of this value, to strip it of its exclusiveness. By the tower placed where the race will be fully visible and equipped with microphone and line, they enable Angles to see the spectacle and convey its substance by broadcast. The effect is, the plaintiff says just as if they supplied the plaintiff’s customers with elevated vantage points round the course from which they could witness all that otherwise would attract them and induce them to pay the price of admission to the course. The 12 [1.20]

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Victoria Park Racing and Recreation Grounds Co Ltd v Taylor cont. feature in which the plaintiff finds the wrong of nuisance is the impairment or deprivation of the advantages possessed by the plaintiff’s land as a racecourse by means of a non-natural and unusual use of the defendants’ land. This treatment of the case will not, I think, hold water. It may be conceded that interferences of a physical nature, as by fumes, smell and noise, are not the only means of committing a private nuisance. But the essence of the wrong is the detraction from the occupier’s enjoyment of the natural rights belonging to, or in the case of easements, of the acquired rights annexed to, the occupation of land. The law fixes those rights. Diversion of custom from a business carried on upon the land may be brought about by noise, fumes, obstruction of the frontage or any other interference with the enjoyment of recognised rights arising from the occupation of property and, if so, it forms a legitimate head of damage recoverable for the wrong; but it is not the wrong itself. The existence or the use of a microphone upon neighbouring land is, of course, no nuisance. If one, who could not see the spectacle, took upon himself to broadcast a fictitious account of the races he might conceivably render himself liable in a form of action in which his falsehood played a part, but he would commit no nuisance. It is the obtaining a view of the premises which is the foundation of the allegation. But English law is, rightly or wrongly, clear that the natural rights of an occupier do not include freedom from the view and inspection of neighbouring occupiers or of other persons who enable themselves to overlook the premises. An occupier of land is at liberty to exclude his neighbour’s view by any physical means he can adopt. But while it is no wrongful act on his part to block the prospect from adjacent land, it is no wrongful act on the part of any person on such land to avail himself of what prospect exists or can be obtained. Not only is it lawful on the part of those occupying premises in the vicinity to overlook the land from any natural vantage point, but artificial erections may be made which destroy the privacy existing under natural conditions. … If English law had followed the course of development that has recently taken place in the United States, the “broadcasting rights” in respect of the races might have been protected as part of the quasi-property created by the enterprise, organization and labour of the plaintiff in establishing and equipping a racecourse and doing all that is necessary to conduct race meetings. But courts of equity have not in British jurisdictions thrown the protection of an injunction around all the intangible elements of value, that is, value in exchange, which may flow from the exercise by an individual of his powers or resources whether in the organization of a business or undertaking or the use of ingenuity, knowledge, skill or labour. This is sufficiently evidenced by the history of the law of copyright and by the fact that the exclusive right to invention, trade marks, designs, trade name and reputation are dealt with in English law as special heads of protected interests and not under a wide generalization. In dissenting from a judgment of the Supreme Court of the United States by which the organised collection of news by a news service was held to give it in equity a quasi-property protected against appropriation by rival news agencies, Brandeis J gave reasons which substantially represent the English view and he supported his opinion by a citation of much English authority (International News Service v Associated Press (1918) 248 US 215; 63 Law Ed 211). His judgment appears to me to contain an adequate answer both upon principle and authority to the suggestion that the defendants are misappropriating or abstracting something which the plaintiff has created and alone is entitled to turn to value. Briefly, the answer is that it is not because the individual has by his efforts put himself in a position to obtain value for what he can give that his right to give it becomes protected by law and so assumes the exclusiveness of property, but because the intangible or incorporeal right he claims falls within a recognised category to which legal or equitable protection attaches. … In my opinion, the right to exclude the defendants from broadcasting a description of the occurrences they can see upon the plaintiff’s land is not given by law. It is not an interest falling within [1.20]

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Victoria Park Racing and Recreation Grounds Co Ltd v Taylor cont. any category which is protected at law or in equity. I have had the advantage of reading the judgment of Rich J, but I am unable to regard the considerations which are there set out as justifying what I consider amounts not simply to a new application of settled principle but to the introduction into the law of new doctrine. … EVATT J: In the present case, the plaintiff relies upon all the surrounding circumstances. Its use and occupation of land is interfered with, its business profits are lessened, and the value of the land is diminished or jeopardised by the conduct of the defendants. The defendants’ operations are conducted to the plaintiff’s detriment, not casually but systematically, not temporarily but indefinitely; they use a suburban bungalow in an unreasonable and grotesque manner, and do so in the course of a gainful pursuit which strikes at the plaintiff’s profitable use of its land, precisely at the point where the profit must be earned, viz, the entrance gates. Many analogies to the defendants’ operations have been suggested, but few of them are applicable. The newspaper which is published a considerable time after a race has been run competes only with other newspapers, and can have little or no effect upon the profitable employment of the plaintiff’s land. A photographer overlooking the course and subsequently publishing a photograph in a newspaper or elsewhere does not injure the plaintiff. Individuals who observe the racing from their own homes or those of their friends could not interfere with the plaintiff’s beneficial use of its course. On the other hand, the defendants’ operations are fairly comparable with those who, by the employment of moving picture films, television and broadcasting would convey to the public generally (i) from a point of vantage specially constructed, (ii) simultaneously with the actual running of the races, (iii) visual, verbal or audible representations of each and every portion of the races. If such a plan of campaign were pursued, it would result in what has been proved here, viz, actual pecuniary loss to the occupier of the racecourse and a depreciation in the value of his land, at least so long as the conduct is continued. In principle, such a plan may be regarded as equivalent to the erection by a landowner of a special stand outside a cricket ground for the sole purpose of enabling the public to witness the cricket match at an admission price which is lower than that charged to the public bodies who own the ground, and, at great expense, organise the game. In concluding that, in such cases, no actionable nuisance would be created, the defendants insist that the law of England does not recognise any general right of privacy. That is true, but it carries the defendants no further, because it is not merely an interference with privacy which is here relied upon, and it is not the law that every interference with privacy must be lawful. The defendants also say that the law of England does not forbid one person to overlook the property of another. That also is true in the sense that the fact that one individual possesses the means of watching, and sometimes watches what goes on his neighbour’s land, does not make the former’s action unlawful. … If I may borrow some phrases from the majority decision, I would say that in the present case it is indisputable that the defendant broadcasting company has “endeavoured to reap where it has not sown”, and that it has enabled all its listeners to appropriate to themselves “the harvest of those who have sown”. Here, too, the interference with the plaintiff’s profitable use of its land takes place “precisely at the point where the profit is to be reaped, in order to divert a material portion of the profit from those who have earned it to those who have not”. (4) For here, not only does the broadcasting company make its own business profits from its broadcasts of the plaintiff’s races; it does so, in part at least, by conveying to its patrons and listeners the benefit of being present at the racecourse without payment. Indeed, its expert announcer seems to be incapable of remembering the fact that he is not on the plaintiff’s course nor broadcasting with its permission, for, over and over again, he suggests that his broadcast is coming from within the course. The fact that here, as in the International News Service Case (1918) 248 US 215; 63 Law Ed 211, the conduct of the defendants 14 [1.20]

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Victoria Park Racing and Recreation Grounds Co Ltd v Taylor cont. cannot be regarded as honest should not be overlooked if the statement of Lord Esher is still true that “any proposition the result of which would be to show that the common law of England is wholly unreasonable and unjust, cannot be part of the common law of England” (quoted in Donoghue v Stevenson [1932] AC, at 608, 609). The fact that there is no previous English decision which is comparable to the present does not tell against the plaintiff because not only is simultaneous broadcasting or television quite new, but, so far as I know, no one has, as yet, constructed high grandstands outside recognised sports grounds for the purpose of viewing the sports and of enriching themselves at the expense of the occupier. … McTIERNAN J: Passing from the question of nuisance the plaintiff would, of course, be entitled to redress if the broadcasting violated any right residing in it. In Hannam v Mockett (1824) 2 B & C 934, 937, Bayley J said: To maintain an action, the plaintiff must have had a right and the defendant must have done a wrong. A man’s rights are the rights of personal security, personal liberty, and private property. Private property is either property in possession, property in action or property that an individual has a special right to acquire … A man in trade has a right in his fair chances of profit, and he gives up time and capital to obtain it. It is for the good of the public that he should. But the element of exclusiveness is missing from the plaintiff’s right in the knowledge which the defendants participate in broadcasting. It was competent for the plaintiff to impose a condition on the right it granted to any patron to enter the racecourse that he would not communicate to anyone outside the racecourse the knowledge about the racing which he got inside. It would be actionable for a patron to break this condition or for any person to induce him to break his contract by disclosing the knowledge with a view to it being broadcast (Exchange Telegraph Co Ltd v Central News Ltd [1897] 2 Ch 48). But where the communication is not in breach of contract and there is no proof that what is communicated comes “from a source which could not honestly be made use of” its dissemination is not a matter in respect of which the court can give any relief. Angles got the information first hand from a position of vantage outside the racecourse. The law does not reserve to the plaintiff the exclusive right to broadcast or otherwise disseminate that which formed the subject matter of the broadcast-ing complained of. The case of Sports and General Press Agency Ltd v “Our Dogs” Publishing Co Ltd [1916] 2 KB 880, approved on appeal [1917] 2 KB 125, illustrates the limits of the plaintiff’s rights in the present case. It is quite true that, as they were in possession of the spot where it would probably be convenient to place the camera for the purpose of photographing, they had the advantage, so far as the land in their possession was concerned, of being the only persons who could conveniently take photographs, but that is a very different thing from saying that they had the sole right to photograph anything inside the show. If any person were to be in a position, for example from the top of a house, to photograph the show from outside it, the association would have no right to stop him (1916) 2 KB, at 884. In my opinion there are no legal principles which the court can apply to protect the plaintiff against the acts of the defendants of which it complains.

[1.25]

Notes

1. The definition of a proprietary interest in land flows in part from the extent of protection provided by tortious actions such as trespass and nuisance. The extent of my ownership of the air above my land depends in part on my ability to restrain by way of an action in [1.25]

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trespass overflying aircraft. My freedom from pollution in part flows from my ability in an action in nuisance to restrain my neighbour’s wood burning stove or heater. 2. The judgment of Rich J significantly points to the relationship between the decision and technological change. As the owner of a video camera can I be restrained from filming my neighbours talking in the street? in their own front yard? from submitting the film to one of the television programmes and having the film shown? from showing the film at a local public theatre? 3. Today activities in public places and on commercial premises are recorded by surveillance cameras; in Germany private surveillance of public places is prohibited. Furthermore satellite images of the earth’s surface overcome any of the barriers described by Latham CJ and are available through the internet; see http://www.googleearth.com. Clearly activities in a backyard swimming pool are technically available to the public at large, and increased picture resolution may allow the public to peer through unshuttered windows.

Kent v Johnson [1.30] Kent v Johnson (1973) 21 FLR 177 Supreme Court of the Australian Capital Territory SMITHERS J: The plaintiffs seek to restrain the defendants from constructing on the summit of Black Mountain in the City of Canberra a multi-purpose tower, providing television, radio, telephone and other communications services together with tourist and restaurant facilities. Black Mountain is about three-quarters of a mile from Civic and two miles from Parliament House. The site of the tower is about five acres at the summit surrounded by 1,280 acres of land declared to be public park comprising near natural bushland with native flora and fauna. Such an area is almost unique so close to a great city. The tower proposed is so large and the site so prominent that the tower will constitute a dominating and arresting feature in the Canberra scene. The natural outline of Black Mountain is a significant part of the skyline of the city. The contest is between those who see the tower as a necessary public work which will be an attractive addition to the capital and those who see it as a menace to the surrounding bushland, a gross distortion of the skyline of the city and incompatible visually and otherwise with the plan and conception of the national capital hitherto accepted and implemented. … Public nuisance – title of the relators On this issue the title of the plaintiffs to act as relators was challenged. It was said that so far as that title rested on their rights to use and enjoy the public park that such a right was not in its nature a property right or a right analogous thereto. It was said that at most a member of the public had a mere licence to go upon the park. In this context it is useful to consider the nature of a public nuisance. It is a criminal offence constituted by an unlawful act or omission to discharge a legal duty which act of omission endangers the lives, safety, health, property or comfort of the public or by which the public are obstructed in the exercise or enjoyment of any right common to all Her Majesty’s subjects. Clerk and Lindsell on Torts, 13th ed, p 1392. It is sufficient if it materially affects the reasonable comfort and convenience of a class of Her Majesty’s subjects who come within the sphere or neighbourhood of its operation, it may affect some to a greater extent than others, it is not necessary to prove that every member of the class has been 16 [1.30]

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Kent v Johnson cont. injuriously affected, and the question whether the number of persons affected is sufficient to constitute a class is one of fact: Attorney-General v PYA Quarries Ltd ([1957] 2 QB 169 at 184). In the case of a private nuisance the essence of the matter is that the right infringed is a right related to the ownership or occupation of land or of some easement, profit, or other right used or enjoyed in connexion with land: Clerk and Lindsell on Torts, 13th ed, p 1391. But a public nuisance is the invasion of a right in members of the public as such not necessarily related to land. Thus it is that public nuisances may be established in the case of exposing in public a person with an infectious disease, selling food unfit for human consumption, obstructing a highway, or allowing a house near a highway to be ruinous. Accordingly the contention that the plaintiffs lack a sufficient title to some interest in the nature of property in land is not relevant. However it is relevant to look at the nature of the rights of a member of the public in relation to land declared to be a public park pursuant to the Public Parks Ordinance 19281942. … Regulations applicable to all public parks and recreation reserves have been made. (Recreation Reserve Regulations of 1938.) They provide with respect to reserves, including public parks, that any person who without lawful excuse enters upon any portion of a reserve as to which a notice is posted that admittance is prohibited, or who takes any vehicles or rides any horse into any portion of a reserve except a portion especially provided therefor, shall be guilty of an offence. They prohibit unauthorised lighting of fires, camping, football, cricket or athletic sports save in portions set apart therefor, the taking on of dogs and various other activities. No portions of this park are set aside for horse riding or games or vehicular use. The result is that this park is substantially one for walking, resting, and relaxing in the atmosphere of wilderness created by the trees and other flora, and for those interested, studying the flora and fauna. But the existence of regulations under which the rights of members of the public cease to be absolute and pursuant to which some members of the public may have different privileges from others does not take away what may be called the public nature of the park or indicate that it lacks the essential quality of a public park, namely that it is set aside and used for the general welfare, open to common and general use for public health, recreation, enjoyment or the like. … Black Mountain Reserve – nature and qualities Black Mountain is a significant focal point in the Canberra landscape and an essential component of the mountain and lake concept of the Canberra scene. Its broad-scale scenic attributes give pleasure to many people living and working within a wide radius of the mountain as they go about their normal business or relax during their leisure hours. It has a more intimate appeal because of its attractive and varied complex of flora and fauna. Black Mountain reserve is unique in its setting within the inner boundary of the national capital. It is a remarkably preserved area in a condition near to what it was 200 years ago. … Public nuisance – disfiguring the skyline In my opinion a substantial deleterious unlawful interference with the nature and quality of the reserve as a park for one to use and enjoy as such as a member of the public would constitute a public nuisance. Injury to the flora and fauna seems to me to be the same class of interference with public rights as would be the fouling of a public swimming pool. [1.30]

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Kent v Johnson cont. The plaintiffs contend that the construction of the proposed tower would so interfere. In this connexion it is convenient to deal first with that aspect of public nuisance arising out of the contention that the proposed tower will permanently disfigure the natural skyline of Canberra. … Sir Keith Hancock expressed his feelings as follows: It would be like the tower of Babel reaching to high heaven. And if I were in the Parliamentary triangle I would never look at Parliament House, my eye would be all the time switched – to me it is a desecration of something lovely which belongs to this nation. There can be no doubt that these are views clearly, honestly and persuasively held by many people and they are the views in all or some of their aspects of all the witnesses but one who gave evidence on this aspect of the case. Various of the witnesses claimed no special expertise but merely spoke of the compatibility of the natural beauty of the mountain with the general aspect of Canberra as a city beautifully ringed with such hills and their feeling of dismay that this portion of the skyline should be dramatically changed by the construction of such a large building of technological purpose. But others were persons of town-planning and architectural skills and experience able to speak with expertise. I certainly believe that what was said by all these people constitutes opinion or real value from the point of view of the break in the skyline which the tower will create. But there is another point of view and this was expressed by Sir William Dargie. He spoke in enthusiastic terms of the design of the tower as such. He said he spoke as an artist, he was not a town planner. He praised its classical lines. He felt it would be an imposing piece of modern sculpture conforming however to a certain classical precept of design. It was made more interesting by the slender nature of what might be called the spindle upon which the bulky round objects are imposed which gives it almost a cathedral spire effect. He said he saw Black Mountain as an imposing podium for a structure, which if you are going to put it on Black Mountain has to be large. He added that he felt that Canberra, especially seen from a distance, seems to be laid out flat and needs accents of verticality here and there and that this building would lead to further such accents which would be all to the good of the whole visual environment of Canberra basin and hills. … And it is the existence of conflicting points of view which points up the difficulty of treating a dramatic change in the landscape which shocks those of one point of view, but does not shock but even attracts others, as a fit subject for public nuisance. It was put to me that the visual amenity of this skyline has a special factor in it, namely, that it is an amenity long established, deliberately planned, and historically implemented, hitherto accepted, and safeguarded as an integral feature of the national capital. It was conceded that there is no authority supporting the notion that interference with such an amenity is a wrongful act in the nature of a public nuisance. In these days one is familiar with the conception of the protection of the amenity of particular areas by official planning schemes, and preservation of the landscape is a recognised factor in such schemes. And in this case the preservation of this skyline is a factor for the attention of the NCDC. It is before such a tribunal that the conflicting interests concerned with the amenity of the area concerned are to be assessed and dealt with. But I do not find in the common law any recognition of a right in anyone to control what another may build upon his land by reference to its interference with his line of sight of the beauty or lack of it in what is built, or its incompatibility with the historical quality or character of the neighbourhood. 18 [1.30]

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Kent v Johnson cont. It was pressed upon me that the categories of nuisance are never closed and I accept this. See Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479 at 503 per Rich J. And it is true that nuisance covers so wide a field that no general definition of nuisance has been attempted but only classifications of various kinds of nuisance. But it is going much too far to suggest that it might be a crime to construct a building which offends even a large majority of citizens in some locality by reason that it is considered to break a skyline, to be too large, too dominating, incompatible with the local traditions or the hitherto accepted principles of the planning of the locality. Prima facie it is lawful to erect what one pleases on one’s own land (Rogers v Rajendro Dutt). In Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (29), the plaintiffs complained of the defendant broadcasting their dog races from a high platform erected on its own land outside the plaintiffs’ racecourse. McTiernan J said, “Even if, upon a comparison with other buildings in the locality, the structure holding the broadcasting equipment might have been regarded as peculiar or unusual the defendant had a right to have it erected.” ((1937) 58 CLR at 523.) … Findings In this case I find as follows: The interest of even a broad section of the community in the enjoyment of a particular skyline does not constitute a right in the public of such a nature that invasion of it constitutes a public nuisance. For recognition of such interests by law statutory provisions are necessary.

[1.35]

Notes

1. Is there any difference between the aesthetic assault on my senses of an ugly building and the assault by way of noise or smell or fumes? 2. The problem of formulating objective standards of aesthetic qualities is referred to in the case and emphasised by the change of perceptions in the time since the decision. Today most observers would rank the Black Mountain Tower as a significant attraction and not a detraction from the appearance of the public buildings at the heart of the national capital. 3. Whilst the courts have been reluctant to base any remedy in nuisance on aesthetic considerations, those same considerations have formed a central part of planning and development laws. In general, any building work on land requires consent from a relevant authority (normally the local council) and where discretion exists under those laws, amenity, which is a term encompassing aesthetics, is a key consideration. See also Fogg, Australian Town Planning Law: Uniformity and Change (AIUS, 1984). 4. Reference in the judgment to rights of view is probably a reference to the fact that the common law did not recognise a right of view as an easement. But are we seeing a subtle shift around the right to a view. Many jurisdictions, such as New South Wales and Queensland, New Zealand and England and Wales provide recourse for a land owner whose view is blocked by trees or hedges. The tribunals that adjudicate on these matters are required to balance the the interests of privacy with the aesthetics and economic value of a view. For a discussion of this issue, see the Tasmanian Law Reform Institute paper on high hedges (http://www.utas.edu.au/law-reform/). [1.35]

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Stow v Mineral Holdings (Australia) Pty Ltd [1.40] Stow v Mineral Holdings (Australia) Pty Ltd (1977) 180 CLR 295; 14 ALR 397 High Court of Australia AICKIN J: The appellants lodged with the warden objections in the form prescribed under the Mining Act. None of the objections claimed that the objector was a person “who claims any estate or interest in any land in the area in respect of which an advertisement” had been published. The grounds specified in each of the notices of objection were that the area was of scenic, recreational and scientific value, that prospecting or mining would damage the adjoining National Park, and that the land itself was under consideration by the National Parks and Wildlife Service for inclusion in the South-West National Park. The four objectors were described in their objections as being, respectively, the Secretary of the Tasmanian Conservation Trust, a person acting on behalf of the South-West Committee, a person who stated merely that he was interested in the preservation of an area said to contain a range of coastal mountain vegetation in a completely unspoilt condition, and the Secretary of the Launceston Walking Club. Evidence was given at the hearing before the warden by various persons, none of whom was one of the objectors. No evidence was led to the effect that any of the objectors claimed or had an estate or interest in the land. Evidence was given for the applicant as to the nature of the proposed prospecting operations. An initial objection taken before the warden was that none of the objectors was a person who had or claimed any estate or interest in the land in question. The warden ruled that the objectors did in fact have interests in the land sufficient to entitle them to object under the Act. The evidence given on behalf of the objectors was directed to giving a description of the area and the nature of the terrain and vegetation, as well as the nature of the use made of the land by campers, bushwalkers, naturalists and the like, and as to the risk of fire and destruction of the wilderness area which might arise from prospecting operations. The warden in his decision reviewed the evidence and concluded that the evidence was “overwhelming” that any mining activity would have a deleterious effect upon the environment of the locality, quite out of proportion to the supposed advantages which might result in the successful sampling of the deposits of limestone thought to be present in the area. He said: “In the circumstances I find that as alleged by the Tasmanian Conservation Trust, mining activity is not compatible with the recreational and aesthetic uses of this land and on the balance of the evidence before me, the advantages of retaining the area in its present primeval and pristine condition far outweigh the nebulous benefits to be derived from the mining activities proposed”, and expressed his decision by saying that: “the application for a special prospector’s licence by Mineral Holdings (Australia) Pty. Ltd will therefore be refused.” From this decision the respondent appealed to the Supreme Court on the ground that the warden was wrong in not upholding the contention that the objectors were not persons claiming any estate or interest in the land within the meaning of s 15c(1) and that the warden should have refused to hear them, that the warden was wrong in taking into consideration the evidence in various respects, and that he did not properly exercise his discretion and exceeded the powers given to him. That appeal came before Nettlefold J who ordered that the decision of the warden be reversed and that the objections be struck out as incompetent. From that decision the objectors appealed to the Full Court which unanimously dismissed the appeal. It is from that decision of the Full Court that the present appeal is brought. In the course of argument before Nettlefold J the applicant company Mineral Holdings (Australia) Pty Ltd objected that the warden had misunderstood the nature of the function committed to him because he had no jurisdiction to refuse the application. It was argued that under the Mining Act the decision to grant or refuse the application was for the Minister on the recommendation of the Director and not for the warden, whose only jurisdiction was “to hear and determine any objection to the granting of the application”. Nettlefold J accepted this submission and held that the warden had no 20 [1.40]

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Stow v Mineral Holdings (Australia) Pty Ltd cont. jurisdiction to make the order which he did make. He further held that the objectors had no estate or interest in the land and therefore were not persons entitled to object. For reasons set out below I am of opinion that he was right in each of those conclusions. He dealt also with the question of whether there was any right to appeal from the warden’s decision in the light of the provisions of s 2 defining the expression “Warden’s Court” and s 110 dealing with the right to appeal to the Supreme Court. He held that the warden in exercising the jurisdiction under s 15C was acting “in a judicial capacity” and that what he had done constituted a “final judgment determination or decision” within the meaning of s 110(1). The Full Court of the Supreme Court upheld the decision of Nettlefold J and agreed with his conclusions, and also said, as Nettlefold J had said, that, notwithstanding the words used, it was implicit in the warden’s decision that what he was doing was to uphold the objections. The critical question under the Act in its present form is the nature of the jurisdiction conferred upon the warden and the effect of an order made by him. It is in my opinion clear, as was held by the Supreme Court, that the warden has no power whatever to accept or reject an application; that is a power vested exclusively in the Minister who is to act upon the recommendation of the Director of Mines. It is for the Minister to determine whether as a matter of policy it is desirable that the licence should be granted or refused. It is for him to weigh up the relative merits of the economic advantages said to flow from the successful establishment of a mining operation and the interests of those concerned to preserve unchanged the environment of a particular area and other competing contentions as to what is, in the public interest, a suitable use to which the land may properly be put. The Act, although specifying the qualification which the objector must possess in order to lodge an objection, does not specify the nature of the grounds upon which an objection may be based or the considerations which the warden is to take into account in considering objections. The Act is moreover silent upon the consequences of a finding by the warden. Since the section requires the warden to “determine” the objections it may be that he can either reject or allow them, but it attributes in express terms no consequence to either decision. The Full Court took the view that for the warden to uphold the objections would be fatal to an application, but the Act does not say this in express terms any more than it says in express terms what is the consequence of the warden disallowing the objections, whether on the ground of want of the statutory qualification to object or on some other ground. Since the only permitted objectors are those claiming some estate or interest in the land, a possible implication is that the Act contemplates that objections will be based only on conflicting interests in the land or possible adverse effects upon the estate or interest of the objector. Some support for this may be found in the fact that s 15C also deals with exploration licences, which give certain rights to prospectors on private land – see s 15B(3) and (5), s 70(2), s 71 and s 72. There are some obvious possibilities of other interests in the land which would make it impossible to grant a special prospector’s licence, for example, an objector might object that the land is not “unoccupied land” within the definition, but is land held by him under a Crown Grant or a Crown Lease and thus entirely outside the scheme of the Act with respect to mining on Crown Land, or that, although the area is otherwise “unoccupied land” as defined, that objector is in lawful possession or occupation under the Mining Act. Such persons would be claiming an estate or interest in the land within the ordinary meaning of that expression. Section 15C(5) deals with the case of competing applications for special prospector’s licences or exploration licences in respect of the same land and gives priority to the person whose application was first lodged. It appears to be a necessary consequence that the Act does not contemplate that where a person has already been granted a special prospector’s licence, a further licence may be granted to some other person in respect of that land. A person holding a prospector’s or exploration licence or a miner’s right would however have an “estate or interest” in the land since he has at least some rights to occupy and to take minerals from the land (ss 15A, 15B, 15C and 16) and is described as “holding the land”. [1.40]

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Stow v Mineral Holdings (Australia) Pty Ltd cont. The first question to be considered is whether any of the objectors had an estate or interest in the land. In my opinion it is clear that none of them had an estate or interest in the land, and indeed none of them claimed to do so. The definition of the word “estate” in the Acts Interpretation Act 1915 (Tas) was relied upon. Section 46 of that Act provides that, in the absence of a contrary indication, “‘Estate’, used in reference to land shall include any estate or interest, easement, right, title, claim, demand, charge, lien, or encumbrance in, over, to, or in respect of such land”. The expression “interest in land” is not defined in any relevant Act, nor is the compound expression “estate or interest in land”. I do not consider that assistance is to be derived from an attempt to apply the statutory definition of “estate” to the compound expression “estate or interest in land”. The word “right” in that definition does not in its context mean a public right; it means an individual right of a proprietary nature and I do not think that the word “demand” in this context has any more extended meaning. In my opinion the ordinary meaning of the compound expression “estate or interest in land” is an estate or interest of a proprietary nature in the land. This would include legal and equitable estates and interests, eg, a freehold or a leasehold estate, or incorporeal interests such as easements, profits â prendre, all such interests being held by persons in their individual capacity. It does not embrace interests in which the person concerned has no greater claim than any other member of the public. All members of the public have a right to pass freely along or across public highways but none have in their capacity as members of the public any estate or interest in such land. Likewise members of the public generally may be entitled pursuant to particular statutes to use specified areas of Crown Land for the purpose of recreation. However statutes such as the National Parks and Wildlife Act 1970 (Tas) were relied on to give rights to members of the public as such. All members of the public may have the right to go upon such land in the sense that they may freely walk thereon or in defined portions thereof and may resist attempts by the Crown or anyone else to eject them from such land. The fact that some of them are more disposed to go upon the land than others, derive more benefit therefrom and use the statutory right more often than others, does not elevate that which is a public right enjoyed by all members of the public equally into a private right capable of being described as an estate or interest in the land. I agree with the reasons given by the Supreme Court for its conclusion that the applicants were not persons who either had or claimed any estate or interest in this land, and that they were therefore not competent under the Mining Act to object to the grant of the licence. As members of the public they may hold strong views as to how the Crown should deal with unoccupied Crown land, but that is a matter which is committed to the discretion of the Crown speaking through the relevant Minister upon the recommendation of the Director of Mines. Like other members of the public they could make representations to the Director of Mines or to the Minister as to the manner in which they should perform their functions under the Act but they are not persons entitled to maintain objections before the warden. Stephen and Mason JJ agreed. Barwick CJ and Murphy JJ dissented on the basis of a different issue.

[1.45]

Notes

1. It is possible to create proprietary interests in favour of the public generally by means of a public trust. A person may leave land by will to a person or corporation or public body to hold that land for the benefit of the public generally often in some specific use such as a reserve, cf Brisbane City Council v Attorney-General (Qld) [1978] 3 WLR 299. Even so the issue arises of the capacity of any member of the public to enforce that trust: cf City of 22

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Burnside v Attorney-General of South Australia (1993) 61 SASR 107; see also Moore, Grattan and Griggs, Australian Real Property Law (6th ed, Thomson Reuters, Sydney, 2016), [6.205]. 2. In Australia because the States existed prior to the coming into being of the Commonwealth of Australia much unalienated land is held by the Crown in respect of each of the States. Specific statutes provide that public lands such as roads vest in local councils and parks in appropriate park authorities. Whilst the public has use of such land it does not have any proprietary interest in it. The absence of proprietary remedies does not exclude all remedies: statutes may impose duties on a public authority as to the use and management of public land and administrative remedies may be available to enforce those duties. In these cases again the most difficult issue may be standing to seek an administrative remedy, cf Australian Conservation Foundation Inc v Commonwealth (1986) 146 CLR 493 and Crowther v Brisbane City Council [2010] QCA 348.

Yanner v Eaton [1.50] Yanner v Eaton (1999) 201 CLR 351 High Court of Australia [An Aboriginal man used a traditional form of harpoon to catch two juvenile estuarine crocodiles in Queensland. He and some other members of his clan ate some of the crocodile meat and froze the rest. The man did not hold a licence, permit, certificate or other authority under the Fauna Conservation Act. He was charged with one count of taking fauna contrary to that Act. A magistrate found that the man’s clan had a connection with the land from which the crocodiles were taken which had existed before the common law of the colony of Queensland had come into being and which continued thereafter. The magistrate further held that it was a traditional custom of the clan to hunt juvenile crocodiles for food. He dismissed the charge on the basis that s 211 of the Native Title Act applied. The informant applied for review, contending that any native title right or interest to hunt crocodiles, which the man may have enjoyed, had been extinguished prior to the commencement of the Native Title Act by the enactment of s 7(1) of the Fauna Conservation Act.] GLEESON CJ, GAUDRON, KIRBY AND HAYNE JJ: The word “property” is often used to refer to something that belongs to another. But in the Fauna Act, as elsewhere in the law, “property” does not refer to a thing; it is a description of a legal relationship with a thing. It refers to a degree of power that is recognised in law as power permissibly exercised over the thing. The concept of “property” may be elusive. Usually it is treated as a “bundle of rights”. But even this may have its limits as an analytical tool or accurate description, and it may be, as Professor Gray (Gray K and Gray S F, “The Idea of Property in Land”, in Bright and Dewar (eds), Land Law: Themes and Perspectives (1998) 15, at p 16) has said, that “the ultimate fact about property is that it does not really exist: it is mere illusion”. Considering whether, or to what extent, there can be property in knowledge or information or property in human tissue may illustrate some of the difficulties in deciding what is meant by “property” in a subject matter. So too, identifying the apparent circularity of reasoning from the availability of specific performance in protection of property rights in a chattel to the conclusion that the rights protected are proprietary may illustrate some of the limits to the use of “property” as an analytical tool. No doubt the examples could be multiplied. Nevertheless, as Professor Gray also says, “An extensive frame of reference is created by the notion that ‘property’ consists primarily in control over access. Much of our false thinking about property stems from the residual perception that ‘property’ is itself a thing or resource rather than a legally endorsed concentration of power over things and resources.” “Property” is a term that can be, and is, applied to many different kinds of relationship with a subject matter. It is not “a monolithic notion of standard content and invariable intensity”. That is why, [1.50]

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Yanner v Eaton cont. in the context of a testator’s will, “property” has been said to be “the most comprehensive of all the terms which can be used, inasmuch as it is indicative and descriptive of every possible interest which the party can have”. Because “property” is a comprehensive term it can be used to describe all or any of very many different kinds of relationship between a person and a subject matter. To say that person A has property in item B invites the question what is the interest that A has in B? The statement that A has property in B will usually provoke further questions of classification. Is the interest real or personal? Is the item tangible or intangible? Is the interest legal or equitable? For present purposes, however, the important question is what interest in fauna was vested in the Crown when the Fauna Act provided that some fauna was “the property of the Crown and under the control of the Fauna Authority”? The respondent’s submission (which the Commonwealth supported) was that s 7(1) of the Fauna Act gave full beneficial, or absolute, ownership of the fauna to the Crown. In part this submission was founded on the dictum noted earlier, that “property” is “the most comprehensive of all the terms which can be used”. But the very fact that the word is so comprehensive presents the problem, not the answer to it. “Property” comprehends a wide variety of different forms of interests; its use in the Act does not, without more, signify what form of interest is created. There are several reasons to conclude that the “property” conferred on the Crown is not accurately described as “full beneficial, or absolute, ownership”. First, there is the difficulty in identifying what fauna is owned by the Crown. Is the Fauna Act to be read as purporting to deal with the ownership of all fauna that is located within the territorial boundaries of the State but only for so long as the fauna is within those boundaries, or does it deal with all fauna that has at any time been located within those boundaries? That is, does the Fauna Act purport to give the Crown ownership of migratory birds only as they pass through Queensland, or does it purport to give ownership to the Crown of every bird that has ever crossed the Queensland border? Secondly, assuming that the subject matter of the asserted ownership could be identified or some suitable criterion of identification could be determined, what exactly is meant by saying that the Crown has full beneficial, or absolute, ownership of a wild bird or animal? The respondent (and the Commonwealth) sought to equate the Crown’s property in fauna with an individual’s ownership of a domestic animal. That is, it was sought to attribute to the Crown what Pollock called “the entirety of the powers of use and disposal allowed by law”. At common law, wild animals were the subject of only the most limited property rights. At common law there could be no “absolute property”, but only “qualified property” in fire, light, air, water and wild animals. An action for trespass or conversion would lie against a person taking wild animals that had been tamed, or a person taking young wild animals born on the land and not yet old enough to fly or run away, and a land owner had the exclusive right to hunt, take and kill wild animals on his own land. Otherwise no person had property in a wild animal. “Ownership” connotes a legal right to have and to dispose of possession and enjoyment of the subject matter. But the subject matter dealt with by the Fauna Act is, with very limited exceptions, intended by that Act always to remain outside the possession of, and beyond disposition by, humans. As Holmes J said in Missouri v Holland (1920) 252 US 416, 434: “Wild birds are not in the possession of anyone; and possession is the beginning of ownership.” Thirdly, there are several aspects of the Fauna Act which tend to suggest that the property in fauna conferred on the Crown may not easily be equated with the property an individual may have in a domestic animal. The property rights of the Crown would come and go according to the operation of the exception contained in s 7(1) of fauna taken or kept “otherwise than in contravention of this Act during an open season with respect to that fauna”. As open seasons were declared and fauna taken, what otherwise was the property of the Crown, ceased to be. Next there are the references in ss 71(2) 24 [1.50]

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Yanner v Eaton cont. and 83(3) to forfeiture of fauna to the Crown. Even accepting that s 84 says that these sections shall not prejudice or affect the rights of the Crown conferred by s 7, why were ss 71(2) and 83(3) necessary if the Crown owned the fauna? Then there are the provisions of s 7(2) that “[l]iability at law shall not attach to the Crown by reason only of the vesting of fauna in the Crown pursuant to this section”. The Crown’s property is property with no responsibility. None of these aspects of the Fauna Act concludes the question what is meant by “property of the Crown”, but each tends to suggest that it is an unusual kind of property and is less than full beneficial, or absolute, ownership. Fourthly, it is necessary to consider why property in some fauna is vested in the Crown. Provisions vesting property in fauna in the Crown were introduced into Queensland legislation at the same time as provisions imposing a royalty on the skins of animals or birds taken or killed in Queensland. A “royalty” is a fee exacted by someone having property in a resource from someone who exploits that resource. As was pointed out in Stanton v Federal Commissioner of Taxation (1955) 92 CLR 630 at 641: … the modern applications of the term [royalty] seem to fall under two heads, namely the payments which the grantees of monopolies such as patents and copyrights receive under licences and payments which the owner of the soil obtains in respect of the taking of some special thing forming part of it or attached to it which he suffers to be taken. That being so, the drafter of the early Queensland fauna legislation may well have seen it as desirable (if not positively essential) to provide for the vesting of some property in fauna in the Crown as a necessary step in creating a royalty system. Further, the statutory vesting of property in fauna in the Crown may also owe much to a perceived need to differentiate the levy imposed by the successive Queensland fauna statutes from an excise. For that reason it may well have been thought important to make the levy as similar as possible not only to traditional royalties recognised in Australia and imposed by a proprietor for taking minerals or timber from land, but also to some other rights (such as warren and piscary) which never made the journey from England to Australia. In light of all these considerations, the statutory vesting of “property” in the Crown by the successive Queensland fauna Acts can be seen to be nothing more than “a fiction expressive in legal shorthand of the importance to its people that a State have power to preserve and regulate the exploitation of an important resource”. So much was acknowledged in the second reading speech on the Bill which first vested property in fauna in the Crown. The Minister said: It [the fur industry] is an industry that really belongs to the people, and although the Bill, amongst other things, makes it quite clear that the native animals of the State belong to the people of the State, I do not think there is any doubt in the minds of any one regarding that question already. The native animals belong to the people in just the same way as the timber and the minerals belong to the people, and they cannot be sold without permission. Roscoe Pound (Pound, An Introduction to the Philosophy of Law (Revised ed, 1954, p 111) explained why wild animals and other things not the subject of private ownership are spoken of as being publicly owned. He said: We are also tending to limit the idea of discovery and occupation by making res nullius (for example, wild game) into res publicae and to justify a more stringent regulation of individual use of res communes (for example, of the use of running water for irrigation or for power) by declaring that they are the property of the state or are “owned by the state in trust for the people.” It should be said, however, that while in form our courts and legislatures seem thus to have reduced everything but the air and the high seas to ownership, in fact the so-called state ownership of res communes and res nullius is only a sort of guardianship for social purposes. It is imperium, not dominium. The state as a corporation does not own a river as it owns the furniture in the state house. It does not own wild game as it owns the cash in the vaults of the treasury. What is meant is that conservation of important social resources requires regulation of the use of res communes to eliminate friction and prevent waste, and requires limitation of the times when, places where, and persons by whom res nullius may be [1.50]

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Yanner v Eaton cont. acquired in order to prevent their extermination. Our modern way of putting it is only an incident of the nineteenth-century dogma that everything must be owned. The “property” which the Fauna Act and its predecessors vested in the Crown was therefore no more than the aggregate of the various rights of control by the Executive that the legislation created. So far as now relevant those were rights to limit what fauna might be taken and how it might be taken, rights to possession of fauna that had been reduced to possession, and rights to receive royalty in respect of fauna that was taken (all coupled with, or supported by, a prohibition against taking or keeping fauna except in accordance with the Act 1975). Those rights are less than the rights of full beneficial, or absolute, ownership. Taken as a whole the effect of the Fauna Act was to establish a regime forbidding the taking or keeping of fauna except pursuant to licence granted by or under the Act. [The appeal was allowed.]

[1.55]

Notes

1. The judgment points out that property in wild animals is often linked to property in fire, light, air and water. With respect to water, legislation in all States and Territories has vested property in water in watercourses and often that in underground aquifers in the State or Territory. As with the fauna discussed in the above case, water may flow out of the State or Territory or evaporate. The significance of the vesting of property in water is, therefore, as with the fauna, to regulate access to the water so that users require government permission. Private rights to take surface and ground water have been granted by the State in the form of statutory licences that are separate from land ownership. These rights are transferable and, according to economic theory, will be acquired by the person who places greatest value upon them and is the most efficient user: McKenzie, “Water Rights in NSW: Properly Property?” (2009) 31 Sydney Law Review 443. A recent constitutional challenge to a variation of such a licence, as it related to subsurface water in a particular geographical location in New South Wales, will be discussed in Note 4 below. 2. Whilst the case discusses property in relation to resources other than land, the concept of government ownership as a means of control rather than the normal use and enjoyment conferred by private ownership has implications for the nature of the Crown’s interest in land. Traditionally the doctrine of tenure has been taken to mean that all land vests in the Crown and private rights are lesser interests or estates flowing from grants by the Crown. However in Wik Peoples v Queensland (1996) 187 CLR 1, the High Court concluded that the residuary interest of the Crown after a grant for a limited period of time was different from a private reversion and not inconsistent with continuing native title. It is possible that in Australia the doctrine of tenure does not confer upon the Crown a normal ownership of land but more a form of control over the land. 3. It is rare for the courts to be discussing the meaning of property as opposed to an analysis of the incidents of a particular form of property or less commonly whether property rights exist in a particular situation. The reason for this rarity is that the meaning of so broad a concept as property is seldom the basis for the resolution of a dispute and its analysis tends to be the province of writers seeking to find common strands to a series of decisions. Disputes where the meaning of fundamental concepts are raised are likely to occur where the property issue is the basis of the existence of a general body of protection. For 26

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example, criminal laws protect persons with respect to interference with their “property” by others and constitutions protect citizens with respect to the taking of their “property” by governments (see Note 4). 4. Section 51(xxxi) of the Australian Constitution allows the acquisition of property for a purpose for which the Commonwealth has power to make laws, but only on the provision of just terms. This constitutional protection of property rights was recently considered in ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 140. In this case ICM had its rights to take water from the Lower Lachlan Groundwater System, pursuant to a bore licence, replaced with less generous rights (in terms of the volume of water allowed to be taken) under an aquifer access licence. Although the water in the system was vested in the State of New South Wales and the licences had been granted pursuant to New South Wales legislation, four of the seven judges of the High Court who considered the issue found that, if there had been an acquisition of ICM’s property by New South Wales, s 51(xxxi) would be engaged. This was because the compensation paid to ICM, which the Commonwealth conceded did not amount to just terms, was provided by the Commonwealth pursuant to s 96 of the Constitution. Nevertheless, the High Court (Heydon J dissenting) concluded that there had not been an acquisition of property. Although Hayne, Kiefel and Bell JJ (as well as Heydon J) concluded that ICM’s statutory bore licence was a form of property (French CJ, Gummow and Crennan JJ not deciding the issue), six of their Honours held there had been no acquisition of property by New South Wales through its cancellation. This was because New South Wales did not acquire an identifiable and measurable benefit through the cancellation of the licence, as its rights with respect to the subsurface water had not been enlarged. The subsurface water itself in the System was a natural resource in which there were no specific private property rights. The water was vested in the State of New South Wales for the purpose of controlling access to it as a public resource. The statutory licences giving access to take specific volumes of that water were inherently fragile and susceptible to change: the volume of water allowed to be taken could be reduced from time to time, and the licence cancelled altogether in certain circumstances: (at 180, 200 – 202). Although ICM’S property rights had been varied or extinguished, there had been no acquisition of property by New South Wales. Accordingly, the Commonwealth had no obligation to provide just terms to ICM. 5. ICM Agriculture Pty Ltd v Commonwealth demonstrates that a claim for s 51(xxxi) protection of a proprietary interest that has its source in statute may face difficulties over and above the difficulties faced by a claim for the protection of a proprietary interest that exists at common law or in equity. (Also see Attorney-General (NT) v Chaffey (2007) 231 CLR 651 at 664 on this point.) This is because statutory rights may be seen as inherently vulnerable to amendment, so that the Commonwealth (or other third party) does not receive a benefit that can be characterised as proprietary when the right is so varied. However, the situation may be different where the statutory right is analogous to a proprietary right that exists under the general law. An example of this is the High Court’s decision in Wurridial v Commonwealth (2009) 237 CLR 309. As a part of its Northern Territory National Emergency Response, the Commonwealth compulsory imposed leases and rights of access over land vested in fee simple in the Arnhem Aboriginal Land Trust. A majority of the High Court (Crennan J disagreeing on, and Heydon J not deciding, this point) found that the diminution of the Trust’s interest in the land, to the benefit of the Commonwealth, constituted an acquisition of property. Even though the Trust’s fee [1.55]

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simple interest in the land was created and regulated by statute, it nevertheless approximated, just as a common law fee simple does, an exclusive right of ownership (at 361-362, 382-383, 421,466). The final result in Wurridial, however, was that there had not be a contravention of s 51(xxxi) because the Commonwealth had provided just terms for the acquisition. The case is also noteworthy as it confirms that s 51(xxxi) will apply to an acquisition of property effected by a law enacted pursuant to the “Territories power” (s 122) of the Constitution. 6. Introductory legal texts often use the example of the sign “trespassers prosecuted” as a blurring of the distinction between civil and criminal law. They point out that traditionally trespass to land was not of itself a criminal offence. However today criminal sanctions with respect to intentional unauthorised entries onto private land are increasing and the word “trespass”, although clearly from a civil law background as an actionable interference with property, is retained presumably because it conveys strongly the element of wrongfulness. The issues of the right to protect property by force and the imposition of criminal sanctions on those who interfere with property is discussed in R v McKay [1957] VR 560 at [1.105]. 7. The existence of constitutional protections and criminal sanctions add to the significance of any property right. However, the existence of a property right depends ultimately on the existence of a legal remedy to protect or enforce that right. As property rights are defined in terms of relationships with persons generally (or enforceability against the whole world) the remedy should be one able to be brought against any other person. Tortious remedies satisfy this requirement and, consequently, the availability of an action in trespass protects both real and personal property.

Parsons v Queen [1.60] Parsons v Queen (1999) 195 CLR 619 High Court of Australia GLEESON CJ, GAUDRON, MCHUGH, GUMMOW and HAYNE JJ: The Cheques Act 1986 (Cth) Before further considering the application of s 81 of the Crimes Act and the supporting definitions to the facts, it is convenient to consider the legal relationships for which the Cheques Act 1986 (Cth) (the Cheques Act) provided in respect of the various cheques and bank cheques, the dishonest obtaining of which was the subject of the counts to which the appellant pleaded guilty. It is convenient first to deal with the particular character of bank cheques. In Fabre v Ley (1972) 127 CLR 665, reference was made in the joint judgment of the whole Court to the practice in Australia for a considerable number of years of bankers issuing what have become known as “bank cheques” at the request of customers who have some reason to provide cash or its equivalent in commercial transactions [at 670]. Their Honours said [at 670-671]: These are drafts drawn by a bank usually on itself but occasionally upon another bank: in either case they are issued in the form of cheques. It has been questioned whether a draft of this kind is a cheque within such a provision as s 78 of the Bills of Exchange Act 1990. The question arose because the definition of cheque incorporates that of bill of exchange and a cheque drawn by a bank upon itself is not “addressed by one person to another” within the latter definition (which is now contained in s 8(1) of the Bills of Exchange Act): see McClintock v Union Bank of Australia Ltd (1920) 20 SR (NSW) 494. In 1932, s 88A was inserted in the Bills of Exchange Act making a banker’s draft payable on demand drawn by or on behalf of a bank upon itself a cheque for the purposes of the crossed cheque provisions of the Bills of Exchange 28

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Parsons v Queen cont. Act. However, although it may be more accurate to refer to a bill of exchange drawn by a bank on itself as a banker’s draft, the nomenclature “bank cheque” is, and has for long been, used in Australia to describe instruments of this kind. The Bills of Exchange Act has not, since the Cheques Act came into operation, applied to an instrument to which the Cheques Act applies. However, s 5(1) of the Cheques Act provides that, with certain specified exceptions, and unless the contrary intention appears, a reference in that statute to a cheque includes a reference to a bank cheque or a bank draft. Secondly, the cheques themselves were, within the meaning of the definition in s 10 of the Cheques Act, unconditional orders in writing addressed by the newsagent concerned to its bank, signed by the newsagent and requiring the bank to pay on demand a sum certain in money. The cheques were not wanting in any material particular necessary to render them complete on their face, and so were not inchoate instruments (s 18). Rather, they were bearer cheques and thus were to be taken to require the bank to pay the sum ordered to be paid by the cheques to bearer (s 22). Thirdly, the drawing of the cheques did not of itself operate as an assignment of funds available in the hands of the drawee bank for the payment of the cheque (s 88). As indicated by Barwick CJ in the passage from Croton v The Queen set out earlier in these reasons, the right of the drawer to recover from the bank the balance standing to the credit of that party in the account with the bank was a chose in action but the effect of s 88 is to emphasise that the drawing of a cheque does not of itself operate as an assignment of that chose in action or of part thereof. Rather, the generally accepted concept of a cheque is that of a “mandate”, addressed by the drawer to the banker directing the banker to effect a pro tanto satisfaction of the indebtedness of the banker to the drawer by honouring the cheque drawn on the banker. In this sense, a cheque “is merely a mandate, not a transfer of rights”. Fourthly, in its character as such a mandate, the bearer cheques, once drawn, and even in advance of delivery, had intrinsic value as instruments whereby the sums they specified might be drawn from the banks in question [cf Morison v London County and Westminster Bank Ltd [1914] 3 KB 356 at 379]. Fifthly, arising out of the drawing of the cheque, there was, by force of the Cheques Act (ss 25, 71), a contract, incomplete and revocable until delivery, whereby the drawer, the newsagent in question, undertook to compensate the holder or an indorser of the cheque who was compelled to pay it if it were dishonoured when duly presented for payment. Further, s 76 provides that, where a cheque (including by dint of s 5(1) a bank cheque) is dishonoured, the holder, being the bearer in respect of cheques payable to bearer, may recover as damages, from any person liable on the cheque, the face value of the cheque and the amount of interest that in accordance with Regulations made under the Cheques Act is payable in respect of that sum. In R v Preddy [1996] AC 815, 835, 836-837, Lord Goff of Chieveley said: I start with the time when the cheque form is simply a piece of paper in the possession of the drawer. He makes out a cheque in favour of the payee, and delivers it to him. The cheque then constitutes a chose in action of the payee, which he can enforce against the drawer. The reference in that passage to the chose in action of the payee which can be enforced against the drawer is to be understood, in the Australian context, by reference to ss 25 and 71 of the Cheques Act. However, as indicated in the points made above, a cheque has character-istics which render it more than a chose in action held by the payee against the drawer. The submissions by the appellant rested upon a contrary assumption, and that should not be accepted in construing s 81 of the Crimes Act. Moreover, the Cheques Act speaks, for example in s 116, of an action or proceeding being brought in a court “on a cheque”, and provision is made in s 116 whereby, on terms, the court may order that the loss or destruction of the cheque not be set up as a defence. Further, it is the cheque as an item in specie which is essential to the operation of negotiability. So, in the present case, every cheque, [1.60]

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Parsons v Queen cont. including any bank cheque, might be transferred by negotiation until it was discharged, the transfer being from the holder to another person in such manner as to constitute that other person the holder within the meaning of the Act (ss 39, 40). In addition, in respect of wrongful dealings by a third party with those instruments (including dealings with bank cheques), for example dealings by a collecting bank, the “true owner” would have its rights for damages in an action for conversion of the chattels in question. In Marfani & Co Ltd v Midland Bank Ltd [1968] 1 WLR 956; [1968] 2 All ER 573, a fraudulent employee of the plaintiff company obtained through the medium of the collecting bank payment to himself of a cheque drawn by the plaintiff on its bank in favour of another party as payee. Diplock LJ observed ([1968] 1 WLR 956, 970; [1968] 2 All ER 573, 577) that it might seem odd that the basis of the liability of the collecting bank was that a piece of paper on which the cheque was written was “goods” belonging to the plaintiff and that the act of the collecting bank in accepting possession of that piece of paper from the employee, in presenting it to the drawee bank and in accepting payment of it, constituted an unjustifiable denial by the collecting bank of the title of the plaintiff to its goods, from which damage flowed. His Lordship pointed out that this result, however, was the common law of England. It was the consequence of the application of the historic origin of the tort of conversion to negotiable instruments by treating them as “goods”. This development of the common law by treating as the chattel converted the piece of paper representing the cheque and the value of the chattel converted as the money received in payment of the cheque suggests some weakness in the earlier analysis, by such authorities as East, that securities, including bills of exchange, which concern mere choses in action were not the subject of larceny at common law because they were of no intrinsic value and did not import any property in possession of the person from whom they were taken. However that may be, there is every reason not to reinstate now such an analysis when construing the terms of the Crimes Act, in particular the definition of “property” in s 71(1). Section 81(1) of the Crimes Act and the present case The contracts arising by operation of ss 25 and 71 of the Cheques Act in respect of the bank cheques had been rendered complete and irrevocable upon their delivery to the newsagent by whom they had been purchased. There is thus no scope for any argument that when, in turn, possession and control of the bank cheques was taken by the appellant there was no pre-existing “chose in action” which the holder could enforce against the drawer, here the bank of the newsagent concerned. As to the cheques, at the time of their delivery to the appellant by the newsagents who had drawn them on their banks, the law of negotiable instruments now represented in the Cheques Act imparted to the cheques various legal characteristics giving them then a value beyond what otherwise was their quality as mere pieces of paper. The cheques, being complete in form, contained a mandate by the respective drawer to its bank to reduce the credit of its account by payment in favour of a person answering the statutory description of a holder. Further, arising out of the drawing of the cheques, there was, albeit incomplete and revocable until delivery, the contract by the drawer referred to in ss 25 and 71 of the Cheques Act. It follows that both the bank cheques and the cheques, at the time they were, by a deception, dishonestly obtained by the appellant, were property within the meaning of the definition in s 71(1) of the Crimes Act. These instruments were property belonging to the newsagents within the meaning of s 71(2) because the newsagents had possession or control of them and, in accordance with the above analysis, also had proprietary rights or interests therein. Possession or control of these instruments was “obtained” by the appellant and the terms of s 81(2) make it plain that it is no denial of that proposition to say (if it had been the case) that the appellant did so “for” Canyon Bay into whose account with the ANZ Bank the instruments were deposited. 30

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Parsons v Queen cont. Further, the characteristics which the Cheques Act and the law with respect to conversion attached to the instruments in the hands of a bearer would support the conclusion that there was also an obtaining of what in s 81(2) is called “ownership”. [T]here can have been no intention on the part of the payee permanently to deprive the drawer of the cheque form, which would on presentation of the cheque for payment be returned to the drawer via his bank. The appeal should be dismissed.

[1.65]

Notes

1. The ownership of ideas has previously been seen as an example of what are described as intangible property rights, as they are rights enforceable against persons generally but do not relate to any thing (land or chattel). The concept of a chose in action further blurs the boundary between property rights and contractual rights. A property right has been described as a right enforceable against persons generally, whereas a contractual right is one enforceable against only those persons with whom the contract has been made. However, a contractual right is likely to have a financial value and in the case of the entitlement to repayment of a debt the contractual right has a readily calculable value – the amount to be paid is discounted for the extent of future performance and the risk of default in payment. Our legal system allows for the assignment of choses in action (by writing with notice to the debtor) and ease of transfer of a debt is secured through the use of special forms of documents by which the debt is created. These documents are described as negotiable instruments. Cheques are a form of payment widely used in Australian society and are derived from the practices and laws of negotiable instruments. However they have evolved as an independent species. Today they are not used with an intention that the person entitled to the benefit should be able to freely transfer that interest but rather as a payment for that person alone effected through the medium of the banking system. Consequently cheques are commonly marked “not negotiable” to reflect a desire to restrict the ease of transfer. As explained later in connection with the case of Arab Bank Ltd v Ross [1952] 2 QB 216 at [10.175] this marking in its strict legal effect restricts the passing of title rather than the capacity to transfer. A transaction involving a credit card has similar features to a payment by cheque with computerisation being used to provide assurance as to the existence of sufficient funds to support the payment and to give almost instant effect to the transaction. Again legal problems arise from the identification of the person making the payment – a common problem in many property transactions. 2. The analysis in the above case points out that the cheques have two proprietary aspects – they are the piece of paper on which the cheque is written and the debt which is evidenced by that paper. The law of larceny which constituted the major criminal law protection for personal property was based on penalising any unlawful interference with possession of an object. The wrongful taking of the piece of paper was, therefore, more readily able to be classified as larceny than the wrongful appropriation of the proceeds of the cheque although over time the courts and the legislatures have attempted to address this problem. [1.65]

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3. The above case points out that the pieces of paper are classified as “goods” whereas the debt is a thing (chose) in action. The subject-matter of property could be land, goods or intangible rights such as copyright. However the major classification of property is the division between real and personal property. Only freehold interests in land constitute real property and significantly leasehold interests in land are classified as personal property in the sub-category of chattels real. Personal property also includes intangible rights. Today there are no rights which flow from the division between real and personal property but the terms are still used in documents and the technical division may be inadvertently be adopted, for example, in a will which has been more to impress, than to apply terms accurately. 4. The history of the application of the division between real and personal property in Australia is discussed in Buck A, “Attorney-General v Brown and the Development of Property Law in Australia” (1994) 2 Aust Prop LJ 128. 5. An analysis by the courts of the nature of property occurs in relation to the protection of confidential information, see Oxford v Moss (1979) 68 Cr App R 182 at [4.145]. 6. In the well-known article “The New Property” (1964) 73 Yale LJ 733 Charles Reich argued that under the welfare state, claims against government represented a major source of wealth and power and should be assimilated to proprietary rights.

WRITINGS ON THE MEANING OF PROPERTY Introduction: Some Theses on Property [1.70] Erh-Soon Tay A and Kamenka E, “Introduction: Some Theses on Property” (1988) 11 UNSWLJ 1 [Footnotes have been omitted.] I. The concept of property 1. Property is that which is owned. Ownership is the prima facie ultimate power and right to use, control, enjoy and exclude others. It is a relationship both to the item owned and to other people. There is no ownership where it is impossible, in logic or in fact, to reduce something to possession and control. What Marxists and others have seen as the ever-increasing reduction of the world and everything in it to private property rests on the constant extension of the possibility of ownership as a result of scientific, technological and economic capacity to use. 2.

States extend their possessions in the same way as individuals; so do tribes and communities. The treasures of the earth and of the seabed, land, air and water, and even heavenly bodies, are now susceptible of ownership in a way and on a scale not known in most of human history. Socialist and Marxist-socialist states exercise their claims to sovereignty and the ownership it involves in ways and by means which are in no manner different from those pursued by states that recognise as central to their social systems the possibility of both “private” and “public” ownership of the means of production, distribution and exchange. They do so in relation to other countries and in relation to their own citizens. Their interest in ownership and control is the same as anybody else’s: the exploitation of a resource for defence, for production, for wealth, or prestige. These are infrajural facts – a useful reminder that the world is not simply the product of ideology or of law.

3.

The distinction between private ownership and public ownership is not central or even important for a general theory of ownership, or for a discussion of many of its social effects. Nor is it central to a

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Introduction: Some Theses on Property cont. general theory of law or to the overcoming of so-called economic “contra-dictions”, of the fact that resources have to be allocated between alternative uses without meeting all possible demands or treating everyone equally. 4.

All ownership, and therefore all property, is in an important sense private or privatising. It divides those who have the power and the right to exclude from, to control and dispose of a particular item of property from those who do not, who have no privileged connection with it. In that respect, “public” ownership is the same ownership as “private”, individual or corporation ownership; state ownership the same as community ownership; clan ownership the same as that of persons. “Private” does not mean individual, just as “owner” does not and need not mean a single person or even a human being at all. In Ancient Sumeria, the temple and the associated workshops belonged to the god of the temple, in whose name and on whose behalf the temple manager – the ensi – issued commands that did not simply reflect the manager’s will. To say anyone may use, control or dispose of without let or hindrance is to say this is not, or this is no longer, owned. A “common” is a true common if and only if anyone has access for any purpose at any time and no one is excluded. Historically, that has not been the meaning of “a common”.

5.

In discussing the core meaning of the concept of ownership or of property, it is not useful to import differences between types of owners or changes in some of the social functions and importance of property into the core concept of ownership itself. We should not convert material differences into logical or conceptual differences, confuse a legal concept with its role and effects, whether in society or the law. The meaning of a concept is not simply its use; something about it determines how and where it can be used.

6.

In all societies, there are things that are owned, that constitute property that is in our sense private, and things that are not. Communist constitutions protect personal property. Many Utopian constitutions, like monastic orders, professed not to, but protected state or community property. Even in comparatively undifferentiated societies with no ranks or classes and no, or little, agricultural use of land, there will be sacred things, symbols of authority, objects used in ritual, wives and other personal possessions for which some people are owners or custodians and from which some or all others are excluded. Nothing indicates the role of property in such societies more clearly than the social importance of the formalised exchange of gifts in such societies. Concepts of ownership may be very weakly developed, unimportant in the wider context of conceptions of the inherently sacred and powerful, or of the claims of the tribe or group, but they exist. For the tribal infant “promised in marriage”, they are very important indeed. Some things – such as air or water or even land – may be seen by particular societies as physically or morally incapable of being owned, as more powerful than human beings. The same or other items may be specifically excluded from ownership by custom or law.

7.

There are no natural eternal necessities in the matter of the scope of ownership, though the physical capacity to control may vary over time as a result of both technological and political change. The territorial claims of countries can contract and expand, advances in science and technology producing some striking expansions. A cadaver may be incapable of being owned for non-material reasons-until it becomes a source of valuable products: soap for the Nazis, organs for those needing a transplant. Then decent societies and lawyers cogitate, while the Hitlers and the Himmlers simply cut the Gordian Knot.

8.

There are and there have been no enduring social owners or rulers whose power over their property is logically absolute. The sixteenth-century Ottoman Sultan Suleiman (The Magnificent, The Educator, the pattern for Max Weber’s conception of sultanism as arbitrary personal power to rule) was subject to the laws of Islam. He had to recognise, for instance, quite different forms of [1.70]

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Introduction: Some Theses on Property cont. tenure for conquered lands, for traditional Muslim lands, for Mecca and Medina, for Muslims and for infidels. His claim to ownership of land conquered from infidels was based on Islamic law. In China, a renewed attempt to introduce state distribution and control of land on different terms for different purposes was inaugurated by the Northern Wei from 485 AD and applied more universally under the Sui and the Tang; it became inoperable because the landholdings of officials and of Buddhist monasteries retained their independence. In England after the Conquest, the King had ultimate ownership of all land; in European monarchies the sovereign had not but could be subject as Holy Emperor or Prince to the Court in Vienna in respect of complaints by subject or prince. Neither the crown nor its power was indivisible. Further, the power ascribed to ownership, like all other social power, is distributed along a continuum which ranges in principle from utter impotence to absolute irresistibility, but in fact rarely reaches either end. Nor are the most common forms of interference with ownership necessarily based on competing claims to ownership; people are deprived of their lands and possessions for specific reasons – rebellion, felony, the requirements of war or raison d’état. They may be forced, as a matter of social policy, to recognise the claims of heirs and dependants, of wider social concerns, of the King, the Church and of the Social Plan. 9.

In law and social life, ownership is a burden as well as a privilege, a responsibility as well as an advantage. The need to make someone ultimately responsible for the care and control of property and for harm that flows from it is the reason that the concept of property has not been excised from any modern socialist or Marxist-socialist legal system. State and “collective” property and delegated operational management remain central to economics that reject – or rejected until recently – “private” property in the means of production, distribution and exchange. “Collective” ownership does not mean ownership by all the people. Ownership will continue to remain central to some aspects of social control, as it remained in the utopian fantasies of the past and in Babeuf’s and Saint-Simon’s projects for the future. There it was concealed under such phrases as “the social fund” that constitutes the material wealth of a society and the administrators who will decide on its allocation. To make property a public function – the favourite slogan of the socialist Saint-Simonians gathered around Le Globe – is not to abolish the concept or to universalise effective power and control. It is to shift the practical focus from ownership to authorised administrative control.

10.

The rights and powers conferred by ownership are not and never have been indefeasible or unlimited, in law or in administrative reality. The respect accorded to the rights of the property owner including even the state can change, and has changed, dramatically. So can and do the respect and importance ascribed to different types of property and to different types of property owners. Neither the concept of property nor the social and legal importance of that concept in the abstract need be affected by that. The distinction between the kinds of items owned and the different uses they are put to is crucial in considering the controls and limitations that may properly be put upon ownership rights. Such distinctions have been made throughout history and continue to be made as differences between the character and economic uses of property multiply. There are limitations, too, on the scale of ownership in certain areas, on concentration of ownership, on ownership in politically or socially sensitive areas.

11.

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Ownership, even in its core meaning, is not a logical simple. Its various components – for ownership is a bundle of rights and powers – are differentiable both as rights and as realities. They can and do come apart. There are degrees of enjoyment, of capacity to use, of control, of power to alienate. Formal ownership and actual control can and do part company, especially conspicuously in modern times as they did in feudal times. Further, the sort of rights that owners and others claim and exercise need not always be derived from or justified by the [1.70]

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Introduction: Some Theses on Property cont. concept of ownership, though the Common Law did, for a long period, feel more comfortable with those rights against property – such as easements – which were themselves attached to property. There are traditional rights to use temporarily or at will, sacred sites to gather fruits of the field or wood from the forest, to cross boundaries in search of pasture, to have peaceful enjoyment, etc. Not the abstract rights of ownership but new economic uses, population pressures, conquest, etc. Provide the motive power that most frequently creates or destroys such rights. Socially, ownership is not the be-all and end-all of human relationships to things or persons that can be owned. Slaves, in Rome and elsewhere, commanded Caesar’s household and the free or freed men who served in it. Paradoxically, slavery was a legal concept but not an economic one. Similarly, there are grades and gradations between property and the res nullius – not all relationships to land or objects can be forced into one of these two pigeonholes. Law has more than one principle and more than one set of classifications. We do no service to law or to humanity in the long run by seeking to vindicate rights we seek or approve of by attaching them to the nearest sacred cow – whether it be property, or the right over one’s body, or privacy or the freedom of speech. Constitutions can come and go; rights are not all derivable from one right. Lists of rights are not, by their nature, finite or uncriticisable. Advocacy is not the same as thinking about law of society. Property is not and never has been the foundation of all rights, of all social power, or of all social evils. It has been a significant bulwark against political, governmental and religious power, not by standing in principle opposed to them but by fragmenting or helping to fragment and balance competing claims of King, baron, church and corporations, of state and citizens, of bureaucracies and those whom they administer. For ownership, as we have said, privatises-though only within limits. Exploitation can be based on proprietorial power; the worst forms of exploitation known to history were not. Neither were the theory of so-called bourgeois democracy, or of nineteenth-century liberalism, confined to the defence of property or derived from it. A history of modern Europe that reduces Protestantism, the Enlightenment and the French Revolution to the defence of “bourgeois” private property and the free market is bad history and worse social theory. II. Changes in the nature and power of ownership 1. The concepts of ownership and possession tempt us, as they tempted Blackstone, to begin with the primary model of a relationship between a human owner or possessor and a corporeal thing that is owned or possessed. English law, unlike Roman law, recognised early the ownership or possession of incorporeal hereditaments and even of rights not necessarily connected with land, for example, a chose in action. The advantages and disadvantages of following the English course cannot be elucidated by inspecting the core concept of ownership; to follow one course or another is not to make a mistake about the meaning of ownership. It is to construct a legal system along one of several possible lines. It is only in relation to the implications for the systematic development of law, or at least for a branch of law, that one can decide whether people should simply have rights or own them – be, as they once were, seised of them. The contemporary interest in treating welfare rights, pension rights etcetera as forms of property, or as deserving the protection given to property rights, derives partly from a specifically American constitutional guarantee; but it also reflects the attempt to confer on dependants the dignity of ownership and on claimants its security. 2.

No one can look at legal or economic history over the last few centuries without recognising the extent to which tangible, material possession and control have given way to indicia of title and of power to control, to buy, to hold and sustain. In part, such powers are conferred by law and not simply recognised by it – the property – were not only the focus of everyday economic activity, but to a considerable extent the base and organising principle of social duties and [1.70]

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Introduction: Some Theses on Property cont. relationships, of the order of labour, of social welfare, etcetera. Of course, this was never the whole story. There were duties to King or prince, to the church, to the (external) Law. Nevertheless, for much of the population, property – tangible, material property – or holding and the relations that sprang from it seemed the centre and basis of their lives that would continue to be the centre and basis of their children’s lives. 3.

The commercialisation of society, or of significant parts of it, did not begin with the sixteenth and seventeenth-century development of a conscious European urban bourgeoisie. Contracts and exchange, the registration of deeds and covenants, were well-known to the Mesopotamians and the Egyptians two thousand years before Christ. The private law of the Romans was the law first of a great commercial city full of strangers and then of a great commercial empire full of nations. The basic principles, procedures and forms of so-called bourgeois law may have been used but they were certainly not created by the bourgeoisie. Neither were the power and independence of money, as Octavian-Augustus was well aware while using his privy purse – the revenues of Egypt – against the Senate.

4.

A host of modern developments from the eighteenth century onward have nevertheless fatally undermined, in many areas, the paradigm of ownership as direct possession and control of a tangible material thing allegedly fused with one’s own labour or a concretisation of individual will. We are now more conscious than ever that ownership consists of a bundle of rights and powers, none of which are absolute in practice and any one of which can be separated or dealt with individually. Professor A M Honoré, in his essay on Ownership in the first (1961) Oxford Essays in Jurisprudence, saw “full” (or the “liberal” concept of) ownership as involving eleven elements or legal incidents: the right to possess – ie, to exclusive physical control, literally or metaphorically; the right to use; the right to manage; the right to the income; the right to the capital – ie the power to alienate, consume, waste, modify or destroy; the right to security; the power to transmit, to devise or bequeath; the absence of a term to one’s ownership rights; responsibility for harmful use; liability to execution; and that there will be rules governing the reversion of lapsed ownership rights. These elements of full legal ownership, Professor Honoré argued, are found in all “mature” legal systems, though each of them is susceptible of varying definitions that affect emphasis and practical consequences. But in all such systems the practical separability of these elements is also recognised. In England, the eighteenth-century movement toward creating certainty and security of title, accompanied by a most sophisticated recognition of simultaneous variety of interests in a single piece of land, facilitated their mortgageability and made possible much of the economic leap forward in the latter part of that century. The commercial share did even more to separate, physically, interests in property from actual physical contact with it or awareness of it; it assumed an incorporeal life of its own. Money and investments produced interest, dividends; at the same time, in relation to material property – to factories, mines, banks – they fragmented ownership, even more so as pension funds, trusts and holding companies came to own more and more shares. Finance capitalism, as the Marxists call it, was not based on or suited to the paradigm of the mill owner directly exercising authority over his mill and the workers employed in it. At the general level of social and legal ideology, much the same must be recognised of the rights of and to property. As the creation of objects becomes less arduous and the cost of labour continues to rise, the value placed on human life has risen sharply in relation to that placed on property – though it has not done so in those countries where labour is cheap and the standard of living is low. In our own society, though, one has to recognise the importance of property as part of reasonable living conditions and standards. It is, on the positive side, a guarantee for the individual of space to develop capacities and live as he or she wishes to and as a basis for the enterprise, responsibility and involvement that a society needs in its economic

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Introduction: Some Theses on Property cont. activities, in encouraging production and in sheeting home responsibility for harm. Simply to pass over in silence the right to property that was incorporated in the Universal Declaration of Human Rights and then drop it in subsequent UN Covenants is preposterous. At the same time, property rights, like many other rights, are defeasible. In specific social contexts, they can and do compete and conflict with other rights, they can bear savagely on those who do not own or control. They are no longer and never should have been trumps in the game of life. Deciding when and how and to what extent, they should be limited, interfered with, modified, supervised and controlled, by law, by regulation, by administrative discretion, is a matter that requires care and consideration, rather than trumpet blasts and emotive advocacy. It is, in short, a moral question, for which no handbook provides simple and timeless answers. In so far as it is also a legal question, the trend – here as in relation to other fundamental legal concepts – is increasingly practical, fragmenting, geared to particular problems or areas. Property for the purposes of the Family Law Court parts company from property for the purposes of probate or trust. Today more than ever, we focus on consequences, on remedies, rather than conceptual foundations and theoretical coherence. In law, as in ideology, we have gone beyond the simple-minded stage of being for or against property.

Property in Thin Air [1.75] Gray K, “Property in Thin Air” [1991] Cambridge Law Journal 252 Proudhon got it all wrong. Property is not theft – it is fraud. Few other legal notions operate such gross or systematic deception. Before long I will have sold you a piece of thin air and you will have called it property. But the ultimate fact about property is that it does not really exist: it is mere illusion. It is a vacant concept – oddly enough rather like thin air. With private property, as with many illusions, we are easily beguiled into the error of fantastic projection upon the beautiful, artless creature that we think we see. We are seduced into believing that we have found an objective reality which embodies our intuitions and needs. But then, just as the desired object comes finally within reach, just as the notion of property seems reassuringly three-dimensional, the phantom figure dances away through our fingers and dissolves into a formless void. Of course, legal theorists have long sought to sidestep the unattainable quality inherent in the notion of private property by conceptualising property not as a thing but rather as a “bundle of rights”. Now, if one accepts for a moment the “bundle of rights” explanation, it is clear that in jurisdictions of common law derivation the amplest or fullest bundle of rights which can exist in relation to land is the estate in fee simple. The rights enjoyed by the owner of the fee simple came closest to the dominium spoken of by civil lawyers, and indeed represent the nearest approximation to absolute ownership known in our modern system of law. For lawyers therefore the fee simple estate occupies a pre-eminent position in the more general field of property concepts. It carries a plenitude of rights and powers over the ultimate immovable – land. Something of this plenitude used to be captured, albeit over-enthusiastically, in the medieval Latin maxim Cuius est solum, eius est usque ad coelum et ad inferos. That is, the owner of the soil has a prima facie ownership of everything reaching up to the very heavens and down to the depths of the earth. This brocard appeared first in the writings of the 13th century Accursius of Bologna, and was rapidly incorporated into the rhetoric of the common law estate in fee simple. In its original context the phrase seemed to articulate the extensive nature of private property rights in land. … [1.75]

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Property in Thin Air cont. I. Rights in airspace [As] an issue of strict definition, the term “land” is quite capable of including a cubic space of lower stratum air which is separate from the physical solum. From this there follows the seemingly improbable idea that a fee simple estate (or even a term of years) can exist literally in thin air, a proposition which neatly gives the lie to any assumption that land is necessarily a tangible resource. A three-dimensional quantum of airspace can exist as an “independent unit of real property”. Impeccable case law authority confirms that such airspace can be conveyed in fee simple; it can be leased; it can be subdivided; and it can even be subjected to land taxes. So there you are: I can sell you thin air and, like it or not, you have to agree that there has been a transfer of property. II. Visual trespass It is perhaps just as well that we accepted earlier that property is not a “thing”. When I sell you a quantum of airspace the whole point is that-apart from molecules of thin air – there is absolutely nothing there. (Indeed I would be in breach of my agreement with you if it were otherwise.) The key is, of course, that I have transferred to you not a thing but a “bundle of rights”, and it is the “bundle of rights” that comprises the “property”. But what are the rights in the property bundle? Or, more accurately, wherein lies the “property” character of the rights in the bundle? What constitutes the “propertiness” of “property”? One possible approach to this question runs as follows. Absent some legal disposition or resumption the landowner of course owns the fee simple estate in his lower stratum airspace. His various rights in this quantum of thin air merit investigation, but let us concentrate our attention specifically on the subject of abstract or non-corporeal incursion into this airspace. Has the owner any right, for instance, to resist merely visual intrusion into his airspace? Here, in effect, we are questioning the legal plausibility of trespass without entry. Can I, the fee simple owner of land, claim any legal remedy merely on the ground that you, without physically entering my premises, invade my privacy by visual penetration of my airspace? Does such intrusion detract from the sum total of my property rights? Does it, we might say, take away any of my “property”? In short, does the intrusion have any proprietary impact or register? … By the narrowest of majorities the High Court of Australia decided [in Victoria Park Racing and Recreation Grounds Co Ltd v Taylor] that the facts disclosed no wrong known to the law. Latham CJ relied heavily on the 19th century cases on “overlooking” of property, and insisted that “[a]ny person is entitled to look over the plaintiff’s fences and to see what goes on in the plaintiff’s land”. If the plaintiff desired to prevent this, the plaintiff could erect a higher fence; the law would not by means of injunction “in effect erect fences which the plaintiff is not prepared to provide”. In the meantime, and notwithstanding the defendants’ activities, the racecourse remained “as suitable as ever it was for use as a racecourse”. Latham CJ also rejected the allegation that broadcasting the numbers of the placings as notified on boards within the ground constituted a breach of copyright. Dixon and McTiernan JJ entered strong supporting judgments in favour of the Chief Justice’s conclusions. It was left to Rich and Evatt JJ to argue in the minority that a justiciable wrong had been inflicted upon the plaintiff company and that this wrong was remediable in the law of nuisance. Rich J thought that the right of view or observation from adjacent land had never been “absolute …and exercisable at all hazards notwithstanding its destructive effect upon the enjoyment of the land overlooked”. Evatt J agreed and, seeing the matter as one involving unfair commercial competition by the defendants, was minded to award damages to the plaintiff even though no damages claim had in fact been made. III. The “propertiness” of property Perhaps the lasting significance of Victoria Park Racing lies in the fact that the conflict between the majority and minority views in this case throws up critical clues to the identification of the 38 [1.75]

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Property in Thin Air cont. “propertiness” of property. True it is that much of the discussion in Victoria Park Racing was conducted obliquely in terms of the law of nuisance. But the central issue – so central that it lay largely unspoken – was whether the defendants had taken anything that might be regarded as the plaintiff’s “property”. We must always be ready to hear the resonance of property in the dialogue of trespass and nuisance. There can be no doubt – and there was certainly none in the High Court – that in Victoria Park Racing the defendants had exploited a competitive commercial opportunity, in circum-stances of no great credit to themselves, in order to profit from a market of horseracing enthusiasts who would otherwise have paid a lot of money to the plaintiff. In this sense the defendants had clearly taken something from the plaintiff – but had they taken the plaintiff’s property? Were the defendants guilty, as Dixon J put it, of “misappropriating or abstracting something which the plaintiff has created and alone is entitled to turn to value”? In answering this question the majority and minority in the High Court were divided by fundamentally differing views of the phenomenon of “property”. The minority judges clearly believed that there had been a misappropriation. Rich J spoke of each defendant as “appropriating … part of the profitable enjoyment of the plaintiff’s land to his own commercial ends …” In his view the conduct complained of had wrongfully diverted a “legitimate source of profit from [the plaintiff’s] business into the pockets of the defendants”. Evatt J’s judgment echoed just as strongly the language of misappropriation. Evatt J thought it “an extreme application of the English cases to say that because some overlooking is permissible, all overlooking is necessarily lawful”. Here the overlooking engaged in by the defendants had enabled the broadcasting company “to reap where it had not sown”. The defendants stood condemned of an unfair “appropriation” or “borrowing” of the plaintiff’s investment of capital and labour. This had in turn enabled the listening public to “appropriate to themselves the harvest of those who have sown”. By contrast the majority judges in Victoria Park Racing denied, each in his different way, that the case involved any relevant misappropriation: the plaintiff had suffered no deprivation of any vested legal entitlement. Freedom from view or inspection, said Dixon J, although it may be a natural or acquired physical characteristic of a site, is not a legally protected interest. McTiernan J stressed that the plaintiff had no legal right to the continued operation of its enterprise in circumstances conducive to profit: the plaintiff “took the risk of a change in those circumstances”. Dixon J, citing the famous dissent of Justice Brandeis in International News Service v Associated Press, confirmed the absence of any general cause of action based on allegedly unfair competition. For property lawyers by far the most interesting feature of Victoria Park Racing is the High Court majority’s unanimous rejection of the plaintiff’s claim that there could be “property” or even “quasi-property” in a spectacle. Latham CJ declared in his usual acerbic style that he could attach no precise meaning to the phrase “property in a spectacle”, and that the phrase functioned if at all only as an extra-legal metaphor. A spectacle, he said, “cannot be ‘owned’ in any ordinary sense of that word”. At this point, of course, we are again confronted by a stern refusal to propertise a particular resource – always an occasion of some moment in the jurisprudence of property. The enduring significance of Victoria Park Racing is that in this decision we are offered a rare opportunity to learn something of the tacit rules which govern the propertisation of resources. Unpropertised resources remain in the commons, available for use and exploitation by all. The primordial principle which emerges from the majority judgments in Victoria Park Racing is that a resource can be propertised only if it is – to use another ugly but effective word – “excludable”. A resource is “excludable” only if it is feasible for a legal person to exercise regulatory control over the access of strangers to the various benefits inherent in the resource. A classic example of a non-excludable resource is the beam of light thrown out by a lighthouse. To be sure, the lighthouse-keeper may control access to the benefits of the light by the simple action or inaction of never switching on the light. But if the light is allowed to operate at all, it is necessarily on terms that its [1.75]

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Property in Thin Air cont. benefits are distributed indiscriminately. The light cannot be artificially confined to a subset of the seafarers within its broad sweep. In this sense the beam of light – if it exists at all – is non-excludable, and non-excludable resources are retained in the commons. Somebody may have “property” in the lighthouse, but nobody can have “property” in light. The notion of excludability thus imports a hidden structure of rules which critically define the legal phenomenon of private property. Excludability is, however, a more complex idea than is indicated by the example of the lighthouse. A resource may remain non-excludable for reasons which go far beyond the essentially factual and distributional contingencies which govern a beam of light. It is here that Victoria Park Racing comes into its own, for quietly but persistently the majority judgments press home the message that a resource may be non-excludable for any or all of three different sorts of reason. These three bases may broadly be described as physical, legal and moral. A resource cannot be propertised if, on any of these grounds, it lacks the quality of excludability. Non-excludable resources thus lie outside the field of private property; they remain in the commons. … IV. “Property” as control over access And so continues our search for the inner mystery of “property”. Let us look back and see how far we have got since we started. There is no real likelihood that we have arrived at our destination, for the quest for the essential nature of “property” has beguiled thinkers for many centuries. The essence of “property” is indeed elusive. That is why, in a sense, we have tried to catch the concept by surprise by asking not “What is property?” but rather “What is not property?” We have started from the other end of the earth – both geographically and conceptually – and we have deliberately come by the direction which seemed least probable. But along the way we may have discovered something of value. We may have discovered the irreducible conditions which underlie any claim of “property”. The classic common law criteria of “property” have tended to rest a twin emphasis on the assignability of the benefits inherent in a resource and on the relative permanence of those benefits if unassigned. Before a right can be admitted within the category of “property” it must, according to Lord Wilberforce in National Provincial Bank Ltd v Ainsworth, be “definable, identifiable by third parties, capable in its nature of assumption by third parties, and have some degree of permanence or stability”. This preoccupation with assignability of benefit and enforceability of burden doubtless owes much to the fact that the formative phases of the common law concept of property coincided with a remarkable culture of bargain and exchange. Non-transferable rights or rights which failed on transfer were simply not “property”. Within the crucible of transfer lawyers affected to demarcate rights of “property” from rights founded in contract and tort or, for that matter, from human rights and civil liberties. Only brief reflection is required in order to perceive the horrible circularity of such hallmarks of “property”. If naively we ask which rights are proprietary, we are told that they are those rights which are assignable to and enforceable against third parties. When we then ask which rights these may be, we are told that they comprise, of course, the rights which are traditionally identified as “proprietary”. “Property” is “property” because it is “property”: property status and proprietary consequence confuse each other in a deadening embrace of cause and effect. Nor have the philosophers given significantly greater assistance in explaining the phenomenon of “property”. Perhaps inevitably lawyers have concentrated their attention on locating the ownership of “property”, this task of identification assuming vital significance in a legal culture dominated by transfer and conveyance. By contrast philosophers have directed their efforts principally towards rationalising the institution of “property”. While lawyers discuss who owns what, philosophers ask why anyone can legitimately claim to own anything. Justificatory theories of “property” range diversely from appeals to the investment of labour or the existence of a social contract to arguments based upon first occupancy, utility or personhood. A pervasive influence in all philosophical thinking on 40 [1.75]

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Property in Thin Air cont. “property” is still the brooding omnipresence of John Locke. But Locke’s concentration on original acquisition ill suits legal discourse in a modern world which is based on derivative acquisition and in which original acquisition (except perhaps in the area of intellectual property) is now virtually impossible. Even Locke himself cannot have believed that in late 17th century England the “Commons” still contained many unappropriated acorns yet to be “pickt up under an Oak” or apples to be “gathered from the Trees in the wood”, even if he did think that “property” in such things was “fixed” by the labour invested in their “first gathering”. As Walton Hamilton noted much later, Locke’s natural state is “a curious affair, peopled with the Indians of North America and run by the scientific principles of his friend Sir Isaac Newton”. In their respective preoccupations with resource allocation and institutional justification, lawyers and philosophers alike have largely failed to identify the characteristic hallmark of the common law notion of “property”. If our own travels in search of “property” have indicated one thing, it is that the criterion of “excludability” gets us much closer to the core of “property” than does the conventional legal emphasis on the assignability or enforceability of benefits. For “property” resides not in consumption of benefits but in control over benefits. “Property” is not about enjoyment of access but about control over access. “Property” is the power-relation constituted by the state’s endorsement of private claims to regulate the access of strangers to the benefits of particular resources. If, in respect of a given claimant and a given resource, the exercise of such regulatory control is physically impracticable or legally abortive or morally or socially undesirable, we say that such a claimant can assert no “property” in that resource and for that matter can lose no “property” in it either. Herein lies an important key to the “propertiness” of property. Here too lies the key to the divergent approaches evident in Victoria Park Racing and Recreation Grounds Co Ltd v Taylor. The minority in the High Court of Australia found a misappropriation of “property” in the sheer fact that the defendants had diminished the plaintiff’s access to the benefits of certain resources. By contrast the majority found that there had been no taking of “property”, precisely because the defendants’ conduct could never in any event have deprived the plaintiff of control over access to those resources. For a variety of reasons the resources in dispute had remained at all times inherently non-excludable. The plaintiff might have enjoyed access to the benefits of the contested resources, but it never had a control over access which could be prejudiced by the actions of the defendants. The resources in issue could never have sustained any claim of “property” by the plaintiff and could not now therefore support any allegation of loss or misappropriation. Whatever it was the defendants took – and they undeniably took something-they took none of the plaintiff’s “property”. The concept of excludability thus takes us some way towards discovering a rationally defensible content in the term “property”. The differentiation of excludable and non-excludable resources points up the irreducible elements which lie at the core of the “property” notion. But these irreducibles, once isolated and identified, leave little if anything of value to be gathered from the traditional indicia of “property”. The concept of excludability does not, of course, resolve entirely the issue of justice in holdings; it merely demarcates the categories of resource in which it is possible to claim “property”. It sets outer limits on claims of “property”, but provides no criteria for justifying such claims on behalf of particular individuals – except to the extent that we accept the initially unpalatable (but historically attested) proposition that the sustained assertion of effective control over access to the benefits of a resource tends ultimately to be constitutive of “property” in that resource. The precise allocation of “property” in excludable resources is left to be determined – is indeed constantly formulated and reformulated – by various kinds of social and moral consensus over legitimate modes of acquisition and the relative priority of competing claims. This consensus is reinforced by a machinery of legal recognition and enforcement which thus adds or withholds the legitimacy of state sanction in relation to individual assertions of “property”. [1.75]

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Property in Thin Air cont. V. Conclusions If “property” is a power-relation constituted by legally sanctioned control over access to the benefits of excludable resources, certain conclusions follow. A. “Property” is a relative concept Since the physical, legal and moral conditions of excludability may vary according to time and circumstance, it becomes clear that the notion of “property” in a resource is not absolute, but relative. The concept of “property” is not static, but dynamic. I may have “property” in a resource today, but not tomorrow. I may have “property” in a resource for one purpose but not for another. I may have “property” in a resource as against X but not necessarily as against Y or Z. It may be that P and Q can both claim “property” in the same resource although their respective interests are mutually opposed. It is not even inevitable that there should be a quantum step between having “property” in a resource and not having “property” in it. Propertiness is represented by a continuum along which varying kinds of “property” status may shade finely into each other. B. “Property” has moral limits The essential relativity of “property” emerges perhaps most clearly in the proposition, discussed earlier in this paper, that claims of “property” may be abridged in order to further more highly rated social objectives. “Property” is not a value-neutral phenomenon. “Property” in a resource stops where the infringement of more basic human rights and freedoms begins. There are distinct moral limits to the concept of “property”. As the Supreme Court of New Jersey observed in State v Shack, “[p]roperty rights serve human values. They are recognised to that end, and are limited by it.” The same Court confirmed that “an owner must expect to find the absoluteness of his property rights curtailed by the organs of society, for the promotion of the best interests of others for whom these organs also operate as protective agencies”. Quite profound – although as yet barely acknowledged – consequences flow from this recognition of the moral limits of “property”. The moral qualification has, of course, a major significance for those who endorse the rhetoric of stewardship and the communitarian theory that the earth’s resources are effectively held on trust for a number of social and environ-mental interests. Thin air, for instance, may not be made thick with pollutants. Land in particular takes on the character of a social commodity – a realisation which impacts just as keenly on patterns of land use and development as it now does on the increasingly contentious issue of recreational access to wild country. In some deeper and broader sense it is the collectively defined moral baselines of the property concept which alone secure the foundations for cultural development, personal fulfilment and the enjoyment of a civilised and dignified way of life. Vast areas of human resource and human capacity are excluded so effectively that we rarely pause to reflect either that it might have been otherwise or, more ominously, that some day it may yet be. In most societies, for instance, there is a general consensus that no attempt should be made to propertise certain ranges of humane, intellectual or sensory experience. There is no “property” in the right to listen to Chopin nocturnes; or to play the saxophone; or to engage in sexual intercourse; or to reproduce children. Nobody can assert that he (or some restric-tively defined group of “owners”) has an exclusive right to determine who may read novels or paint pictures or go to the theatre or climb mountains. There is no such phenomenon as “property” in the game of golf or in the right to play chess. (Even William Webb Ellis, who in 1823 first lifted the ball and ran with it, claimed no “property” in the resulting game of rugby football.) For the most part no one “owns” the right to consume certain kinds of food or drink. Nowadays at least there is no “property” in the right to vote or to be eligible for public office, and every democratic society is ultimately underpinned by the denial that there can be any “property” in political thought. But it is salutary to reflect that none of this need be so. The current range of the world’s propertised resources in indeed much more limited than we might imagine. Only a relatively small part of the total field of economic facility and human capacity is at 42 [1.75]

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Property in Thin Air cont. present permitted to be the subject of private claims of “property”. Amongst the challenges of the 21st century will be the question whether such “property” claims are to be allowed in relation to a wider group of assets and resources. The ambit of eligibles will include resources which range variously from human body parts and cells to fecundity, reproductive capacity and live babies; from the exploitable aspects of the human persona to the asset of commercial product goodwill; from leisure options to the eventual cure for AIDS and cancer; from Antarctica to outer space. It is at this point that we will really test the proposition that there are moral limits to the notion of “property”. C. “Property” is a term of wide signification Leaving aside for a moment the issue of moral limitation, it is clear that the perspective of excludability has an otherwise liberating impact on the identification of “property”. An extensive frame of reference is created by the notion that “property” consists primarily in control over access. Much of our false thinking about property stems from the residual perception that “property” is itself a thing or resource rather than a legally endorsed concentration of power over things and resources. If “property” is not a thing but a power-relation-ship, the range of resources in which “property” can be claimed is significantly larger than is usually conceded by orthodox legal doctrine. (This is indeed the source of both the greatest challenge and the greatest danger confronting the law of property in the 21st century.) The limits on “property” are fixed, not by the “thinglikeness” of particular resources but by the physical, legal and moral criteria of excludability. By lending the support of the state to the assertion of control over access to the benefits of particular resources, the courts have it in their power to create “property”. But of critical importance in this definitional process is obviously the care with which the courts determine which resources are recognisably non-excludable. 1. “Property” in labour-power The scope of “property” is potentially far-reaching. There is, for example, no monstrous implausibility in the idea that a person may have a “property” in the resource of his labour-power. Indeed the recognition of “excludability” as a key component of “property” makes heightened sense of much of the law relating to employment. To the extent that he propertises this resource through the contract of employment, the employee has a “property” in his labour-power and arguably, therefore, in his job. The contract certainly underlines the employee’s control over the access which strangers may have to the benefits of his labour-power. For precisely the same reason the contract of employment, being bilateral in character, confers also on the employer a “property” in the employee’s labour-power. There are, however, clear moral limits on the “property” which either employer or employee may claim in the resource of labour-power. The employee is no longer competent to contract away his labour-power for life or in conditions of bondage or slavery. Likewise the rules on restraint of trade significantly limit the employer’s right to constrain the employee’s exploitation of his labour-power during or after termination of the employment nexus. Both the rules on slavery and the rules on restraint of trade effectively recognise that there are moral (and perhaps even physical) limits on the degree to which a person’s labour-power can ever be the subject of control by another. 2. “Property” in confidential information Further evidence of the utility of the “control over access” explanation of “property” can be seen elsewhere. If there is one area of the law which places a premium on the assertion of control over the access of strangers to the benefits of a particular resource, it is the legal protection of confidential information. It ought on this basis to be possible to claim “property” in confidential information. Until recently, however, such a conclusion has tended to be countered with reference to Justice Holmes’s famous aphorism that the word “property” as applied in the field of intellectual property is merely “unanalysed expression of certain secondary consequences of the primary fact that the law makes some rudimentary requirements of good faith”. It is significant that in his recent decision in Smith Kline & French Laboratories (Australia) Ltd v Secretary, Department of Community Services and Health, Gummow J of the Federal Court of Australia found [1.75]

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Property in Thin Air cont. Justice Holmes’s dictum of little assistance in illuminating the modern development of the equitable jurisdiction to grant relief against actual or threatened abuses of confidential information. In Gummow J’s view, “[t]he degree of protection afforded by equitable doctrines and remedies to what equity considers confidential information makes it appropriate to describe it as having a proprietary character”. This conclusion followed, not because property is the basis upon which that protection is given, but “because of the effect of that protection”. The result in Smith Kline & French was that Gummow J was prepared to hold that the reception and use of confidential information by a governmental agency comprised an “acquisition of property” for the purpose of the constitutional protection against unjust takings. Indeed the existence of eminent domain powers and “just takings” clauses provides in general an excellent reason for the exercise of care in ensuring a suitably comprehensive definition of the concept of “property”. D. “Property” is definable otherwise than in terms of proprietary consequence The adoption of excludability as the constitutive criterion of “property” brings about the further result that the legal concept of “property” need no longer be defined tautologously in terms of legal consequence. Whether X has or has not “property” in a given resource should not depend on whether his rights are assignable to Y or are binding upon Z, any more than the transferability or enforceability of X’s rights should turn on some obscure characterisation of those rights as “property”. Both formulae exhibit a similar infirmity in so far as each tends to link property status incestuously with proprietary consequence. The attribution of property status is instantly rescued from such circularity of argument if “property” is defined, not by reference to the traditional indicia of assignability and enforce-ability, but rather by independent reference to the free-standing criterion of excludability. This substitution is easily defensible on the ground that the notion of excludability offers an immeasurably more convincing explanation of the legal phenomena of assignability of benefit and enforceability of burden. Assignment (whether voluntary or involuntary) constitutes the ultimate release or abnegation of control over the access of strangers to the benefits of an excludable resource. In the absence of such assignment, “property” in an excludable resource can be vindicated against third parties precisely because the resource is excludable. E. “Property” is assimilable within consensual theory In conventional legal doctrine much energy is devoted to patrolling the frontier between property and contract. Property lawyers keep especially vigilant watch for those fugitive varieties of contractual right which threaten to cross the frontier and settle in property territory. Much fuss is made whenever the conceptual border is realigned and rights of “contract” are brought within the province of “property”. Thus, for instance, the decision in Tulk v Moxhay is generally considered to have elevated the restrictive covenant from contractual to proprietary status. Three centuries earlier – with the more sophisticated development of the action of ejectment – the lease of land had likewise crossed the boundary from contract to property. It may well be that exactly the same transition is occurring in the context of the modern contractual licence. The test of excludability throws into severe doubt the validity of any sharp dichotomy between contract and property. The ambivalent quality, for example, of the contractual chose in action provides a constant reminder of the fluid nature of such classifications. It may be, however, that instead of straining to see which contractual rights can be forced upwards on the plane of property, we should instead have been observing that there are remarkably few rights of so-called “property” which cannot be assimilated or rationalised within some form of consensual theory. Every gift, lease, trust and security has its origins in some arrangement of consent or assent. Behind every conveyance of land in fee simple lies the historic shadow of innumerable contracts or assents which provide the chain of title. Behind every title in property (real or personal) there lies ultimately a social contract, under which we 44 [1.75]

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Property in Thin Air cont. each accept the historic distribution of holdings – usually for no better reason than the awesome degree of social conflict and disorder which would otherwise ensue. Such realisations should lead us towards a radical redefinition of the relationship between property and contract. If this paper conveys any message at all for conventional property lawyers, it is that “property” is not all it is cracked up to be. By now it should be becoming obvious that the notion of “property” readily collapses back into contract or, more broadly, into a number of arrangements based on assent. No quantum step differentiates contract from “property”, for “property” has no clear threshold. There exists instead a spectrum of “proper-tiness” in which obligations which derive their moral force from discrete acts of affirmative consent shade gradually and almost imperceptibly into obligations whose social persuasive-ness rests upon the collective acceptance of sustained acts of assertive control. This is an age when major categories of private law seem to be tending towards coalescence – contract with tort, tort with trust, trust with contract. These are days in which it is possible to suggest, apparently seriously, that the constructive trust is available as a remedy for breach of contract and even for the commission of torts. The time may also have come for a recognition that the “property” notion should be read down and assimilated within a more general heading of civil remedy. It is no accident that the case which, in so many ways, provides the focus of the present paper is one which raises, in almost inseparable conjunction, issues which related variously to real property, intellectual property, tort, contract, privacy, unfair competition, and (last but not least) the principle of restitution. F. “Property” is never truly private There is another, perhaps even more far-reaching, implication of the relativity of “property”. We have described “property” as turning on a criterion of excludability which is defined, in part, in social and moral terms. There is therefore in every property drama a third actor in addition to the plaintiff and the defendant. This third actor – much overlooked in the traditional common law accounts of private property – is, of course, the state, expressing its collective judgment through the voice of the courts. In this sense the state takes on a critical, and so far little explored, role in defining the concept of “property”. The state itself becomes a vital factor in the “property” equation: all “property” has a public law character. Private “property” is never truly private. The control function of “property” is delegated sovereignty, and in underpinning the law of “property” the state indirectly adjudicates an exceedingly broad range of the power-relations permitted within society. Yet even in the playing out of this arbitral function, the state’s role suddenly appears to mirror the role of the property concept itself. In determining the limits of “property”, the collective voice has already begun to assert that sort of control over access to resources which is the characteristic component of the right of “property”. Behind the “owner” of “private property” stands the guardian of “public property” and the “commons”; and behind this guardian lie centuries of social thought about the ways in which the earth’s resources should be shared and distributed. Viewed thus, the concept of “property” conforms to a kind of chaos theory which steadily reveals pictures of ever intensifying complexity receding infinitely into the distance. G. “Property” is the gateway to access The concept of “property” is a gateway and, like most gateways, is just as important for what it keeps out as for what it lets in. The courts stand as the guardians at the gate, looking both ways. As gatekeepers, the courts regulate traffic backwards and forwards between a city-state ruled by the regime of private property and the largely unregulated commons which lies outside its walls. Thus it is that the withholding of property status from certain crucial human resources gives a new and invigorated content to the assertion that property jurisprudence is ultimately concerned with claims of access to social goods. This understanding of property may help to resolve CB Macpherson’s famous tension between property as a right to exclude and property as a right of access. In Macpherson’s view [1.75]

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Property in Thin Air cont. property consists not so much in the right to exclude strangers from privately owned resources, as in the assertion of public rights to share in a number of socially valued resources which enable us to lead fulfilled and dignified lives. Maybe the essential truth in the Macpherson thesis is that the role of property in not simply to guarantee the private ownership of certain goods, but also to stop others more powerful than ourselves from propertising all the goods of life and thereby precluding general access. In this way “property” is a bivalent concept, operating just as significantly (if more silently) to assure us of our continuing vested rights in the social goods which remain in the commons. H. “Property” is a category of illusory reference In the exercise of this dual role the notion of “property” serves both to concretise individual material needs and aspirations and to protect a shared base for constructive human inter-actions. Indeed, in a subtle mimicry of our thoughts and emotions, the language of “property” catches in a peculiarly acute form many of our reactions to the experience of living. The present paper has sought, however, to articulate a deep scepticism about the meaning and terminology of property. “Property” is a term of curiously limited content; as a phrase it is consistently the subject of naive and unthinking use. “Property” comprises, in large part, a category of illusory reference: it forms a conceptual mirage which slips elusively from sight just when it seems most attainably three-dimensional. Perhaps more accurately than any other legal notion it was “property” which deserved the Benthamite epithet, “rhetorical nonsense – nonsense upon stilts”. “Property” remains ultimately an emotive phrase in search of a meaning. The value-laden mystique generated by appeals to “property” exerts a powerful and yet wholly spurious moral leverage. At the beginning of all taking was not a right but a wrong. The first takers were not, however, guilty of theft; they were guilty of believing the deception of the serpent. This deception consisted in the assumption that the fruit of every tree in the Garden is necessarily a fit subject of private taking; that there can be “property” in all of the goods of life; that human value in its totality is apprehensible through the private exercise of eminent domain. In the allegory of the Garden it is significant that the symbolic act of sin consisted of a usurpation of control over access to an especially desirable resource. When Eve seized and ate the fruit of the tree of wisdom – the tree of the knowledge of good and evil – “and gave also unto her husband with her”, her act was one not of altruism but of beneficial control. It affirmed for ever the primal – the primal – the visceral – impulse of meum and tuum. Out of this act of arrogation was born the global pretence of comprehensively individualised rights of “property”. It is this hidden dynamic of “property” – the deep resonance of meum and tuum – which pervades so much of our private law thinking today. It is this inner dynamic which silently imparts critical baselines to the law relating to torts, trusts, commercial competition, the fiduciary principle, restitution, unjust enrichment, privacy, the preservation of confidence, and the reward of industrial and intellectual effort. Irrespective of the precise language chosen to serve as the doctrinal vehicle, the major inarticulate premise in each of these areas is generated by some underlying half-conscious perception of “property”. There can indeed be little doubt that property thinking is deeply embedded in the human psyche. But despite its insinuating omnipresence in private law, the meaning of “property” remains strictly limited. It may be that the only positive content truly comprised within the “property” notion is that which delimits the range of resources in respect of which society will tolerate the claims of meum and tuum. Beyond the irreducible constraints imposed by the idea of excludability, “property” terminology is merely talk without substance – a filling of empty space with empty words. When subjected to close analysis the concept of “property” vanishes into thin air just as surely and elusively as the desired phantom with which we began. Claims of meum and tuum do not protect rights of any sacrosanct or

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Property in Thin Air cont. a priori nature, but merely purport with varying degrees of sophistication to add moral legitimacy to the assertion of self-interest in the beneficial control of valued resources. In the end the “property” notion, in all its conceptual fragility, is but a shadow of the individual and collective human response to a world of limited resources and attenuated altruism.

Notes

[1.80]

1 A pedantic literalist may observe that property rights in polluted air result from current attempts to tackle global warming through the grant of rights to emit pollutants into the air. These rights are planned to be transferable and, as with the earlier discussed water rights, should be of most value to the most efficient polluters; see Moore, Grattan and Griggs, Australian Real Property Law (6th ed, Thomson Reuters, Sydney, 2016), [1.160]. 2 One aspect of property rights not emphasised in the article is the ability to take physical measures to defend property (both land and goods) from intruders; see the next section of this chapter. 3 In a later article, Gray, (“Regulatory Property and the Jurisprudence of the Quasi-Public Trust” (2010) 32 Sydney Law Review 237) argued that there are certain undertakings that are so embedded within the public psyche that they may well impose obligations on the proprietary holders as well as rights.

Property and Sovereignty [1.85] Cohen M R, “Property and Sovereignty” (1927) 13 Cornell LQ 8 [Footnotes have been omitted.] Property and sovereignty, as every student knows, belong to entirely different branches of the law. Sovereignty is a concept of political or public law and property belongs to civil or private law. This distinction between public and private law is a fixed feature of our law-school curriculum. It was expressed with characteristic 18th century neatness and clarity by Montesquieu, when he said that by political laws we acquire liberty and by civil law property, and that we must not apply the principles of one to the other. Montesquieu’s view that political laws must in no way retrench on private property because no public good is greater than the maintenance of private property, was echoed by Blackstone and became the basis of legal thought in America. Though Austin, with his usual prolix and near-sighted sincerity, managed to throw some serious doubts on this classical distinction, it has continued to be regarded as one of the fixed divisions of the jural field. In the second volume of his Genossen-schaftsrecht the learned Gierke treated us to some very interesting speculations as to how the Teutons became the founders of public law just as the Romans were the founders of private law. But in later years he somewhat softened this sharp distinction; and common law lawyers are inclined rather to regard the Roman system as giving more weight to public than to private law. The distinction between property and sovereignty is generally identified with the Roman discrimination between dominium, the rule over things by the individual, and imperium, the rule over all individuals by the prince. Like other Roman distinctions, this has been regarded as absolutely fixed in the nature of things. But early Teutonic Law, the law of the Anglo-Saxons, Franks, Visigoths, Lombards and other tribes, makes no such distinction; and the state long continued to be the prince’s estate so that even in the 18th century the Prince of Hesse could sell his subjects as soldiers to the King of England. The essence of feudal law – a system not confined to medieval Europe – is the inseparable [1.85]

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Property and Sovereignty cont. connection between land tenure and personal homage involving often rather menial services on the part of the tenant and always genuine sovereignty by the landlord. The feudal baron had, for instance, the right to determine the marriage of the ward, as well as the right to nominate the priest; and the great importance of the former as a real property right is amply attested in Magna Carta and in the Statute Quia Emptores. Likewise was the administration of justice in the baron’s court an incident of land ownership; and if, unlike the French up to the Revolution, the English did not regard the office of judge as a revenue-producing incident of seigniorage to be sold in the open market (as Army Commissions were up to the time of Gladstone) the local squire did in fact continue to act as Justice of the Peace. Ownership of the land and local political sovereignty were inseparable. … II The justification of property 1. The occupation theory The oldest and up to recently the most influential defense of private property was based on the assumed right of the original discoverer and occupant to dispose of that which thus became his. This view dominated the thought of Roman jurists and of modern philosophers – from Grotius to Kant – so much so that the right of the laborer to the produce of his work was sometimes defended on the ground that the laborer “occupied” the material which he fashioned into the finished product. It is rather easy to find fatal flaws in this view. Few accumulations of great wealth were ever simply found. Rather were they acquired by the labor of many, by conquest, by business manipulation, and by other means. It is obvious that today at any rate few economic goods can be acquired by discovery and first occupancy. Even in the few cases when they are, as in fishing and trapping, we are apt rather to think of the labor involved as the proper basis of the property acquired. Indeed, there seems nothing ethically self-evident in the motto that “findings is keepings”. There seems nothing wrong in a law that a treasure trove shall belong to the king or the state rather than to the finder. Shall the finder of a river be entitled to all the water in it? Moreover, even if we were to grant that the original finder or occupier should have possession as against anyone else, it by no means follows that he may use it arbitrarily or that his rule shall prevail indefinitely after his death. The right of others to acquire the property from him by bargain, by inheritance, or by testamentary disposition, is not determined by the principle of occupation. Despite all these objections, however, there is a kernel of positive value in this principle. Protecting the discoverer or first occupant, is really part of the more general principle that possession as such should be protected. There is real human economy in doing so until somebody shows a better claim than the possessor. It makes for certainty and security of transaction as well as for public peace – provided the law is ready to set aside possession acquired in ways that are inimical to public order. Various principles of justice may determine the distribution of goods and the retribution to be made for acts of injustice. But the law must not ignore the principle of inertia in human affairs. Continued possession creates expectations in the possessor and in others and only a very poor morality would ignore the hardship of frustrating these expectations and rendering human relations insecure, even to correct some old flaws in the original acquisition. Suppose some remote ancestor of yours did acquire your property by fraud, robbery or conquest, eg in the days of William of Normandy. Would it be just to take it away from you and your dependents who have held it in good faith? Reflection on the general insecurity that would result from such procedure leads us to see that as habit is the basis of individual life, continued practice must be the basis of social procedure. Any form of property which exists has therefore a claim to continue until it can be shown that the effort to change it is worth while. Continual changes in property laws would certainly discourage enterprise. 48 [1.85]

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Property and Sovereignty cont. Nevertheless, it would be as absurd to argue that the distribution of property must never be modified by law as it would be to argue that the distribution of political power must never be changed. No less a philosopher than Aristotle argued against changing even bad laws, lest the habit of obedience be thereby impaired. There is something to be said for this, but only so long as we are in the realm of merely mechanical obedience. When we introduce the notion of free or rational obedience, Aristotle’s argument loses its force in the political realm; and similar considerations apply to any property system that can claim the respect of rational beings. 2. The labor theory That everyone is entitled to the full produce of his labor is assumed as self-evident by both socialists and conservatives who believe that capital is the result of the savings of labor. However, as economic goods are never the result of any one man’s unaided labor, our maxim is altogether inapplicable. How shall we determine what part of the value of a table should belong to the carpenter, to the lumberman, to the transport worker, to the policeman who guarded the peace while the work was being done, and to the indefinitely large numbers of others whose cooperation was necessary? Moreover, even if we could tell what any one individual has produced – let us imagine a Robinson Crusoe growing up all alone on an island and in no way indebted to any community – it would still be highly questionable whether he has a right to keep the full produce of his labor when some shipwrecked mariner needs his surplus food to keep from starving. In actual society no one ever thinks it unjust that a wealthy old bachelor should have part of his presumably just earnings taken away in the form of a tax for the benefit of other people’s children, or that one immune to certain diseases, should be taxed to support hospitals, etc. We do not think there is any injustice involved in such cases because social interdependence is so intimate that no man can justly say: “This wealth is entirely and absolutely mine as the result of my own unaided effort”. The degree of social solidarity varies, of course; and it is easy to conceive of a sparsely settled community, such as Missouri at the beginning of the 19th century, where a family of hunters or isolated cultivators of the soil might regard everything which it acquired as the product of its own labor. Generally, however, human beings start with a stock of tools or information acquired from others and they are more or less dependent upon some government for protection against foreign aggression, etcetera. Yet despite these and other criticisms, the labor theory contains too much substantial truth to be brushed aside. The essential truth is that labor has to be encouraged and that property must be distributed in such a way as to encourage ever greater efforts at productivity. As not all things produced are ultimately good, as even good things may be produced at an unjustified expense in human life and work, it is obvious that other principles besides that of labor or productivity are needed for an adequate basis or justification of any system of property law. We can only say dialectically that all other things being equal, property should be distributed with due regard to the productive needs of the community. We must, however, recognise that a good deal of property accrues to those who are not productive, and a good deal of productivity does not and perhaps should not receive its reward in property. Nor should we leave this theme without recalling the Hebrew-Christian view – and for that matter, the specifically religious view – that the first claim on property is by the man who needs it rather than the man who has created it. Indeed, the only way of justifying the principle of distribution of property according to labor is to show that it serves the larger social need. The occupation theory has shown us the necessity for security of possession and the labor theory the need for encouraging enterprise. These two needs are mutually dependent. Anything which discourages enterprise makes our possessions less valuable, and it is obvious that it is not worth while engaging in economic enterprise if there is no prospect of securely possessing the fruit of it. Yet there is [1.85]

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Property and Sovereignty cont. also a conflict between these two needs. The owners of land, wishing to secure the continued possession by the family, oppose laws which make it subject to free financial transactions or make it possible that land should be taken away from one’s heirs by a judgment creditor for personal debts. In an agricultural economy security of possession demands that the owner of a horse should be able to reclaim it no matter into whose hands it has fallen. But in order that markets should be possible, it becomes necessary that the innocent purchaser should have a good title. This conflict between static and dynamic security has been treated most suggestively by Demogue and I need only refer you to his masterly book, Les Notions fondementales du Droit privŽ. 3. Property and personality Hegel, Ahrens, Lorimer, and other idealists have tried to deduce the right of property from the individual’s right to act as a free personality. To be free one must have a sphere of self-assertion in the external world. One’s private property provides such an opportunity. Waiving all traditional difficulties in applying the metaphysical idea of freedom to empirical legal acts, we may still object that the notion of personality is too vague to enable us to deduce definite legal consequences by means of it. How, for example, can the principle of personality help us to decide to what extent there shall be private rather than public property in railroads, mines, gas-works, and other public necessities? Not the extremest communist would deny that in the interest of privacy certain personal belongings such as are typified by the toothbrush, must be under the dominion of the individual owner, to the absolute exclusion of everyone else. This, however, will not carry us far if we recall that the major effect of property in land, in the machinery of production, in capital goods, etcetera, is to enable the owner to exclude others from their necessities, and thus to compel them to serve him. Ahrens, one of the chief expounders of the personality theory, argues “It is undoubtedly contrary to the right of personality to have persons dependent on others on account of material goods”. But if this is so, the primary effect of property on a large scale is to limit freedom, since the one thing that private property law does not do is to guarantee a minimum of subsistence or the necessary tools of freedom to everyone. So far as a regime of private property fails to do the latter it rather compels people to part with their freedom. It may well be argued in reply that just as restraining traffic rules in the end give us greater freedom of motion, so, by giving control over things to individual property owners, greater economic freedom is in the end assured to all. This is a strong argument, as can be seen by comparing the different degrees of economic freedom that prevail in lawless and in law abiding communities. It is, however, an argument for legal order rather than any particular form of government or private property. It argues for a regime where every one has a definite sphere of rights and duties, but it does not tell us where these lines should be drawn. The principle of freedom of personality certainly cannot justify a legal order wherein a few can, by virtue of their legal monopoly over necessities, compel others to work under degrading and brutalizing conditions. A government which limits the right of large land-holders limits the rights of property and yet may promote real freedom. Property owners, like other individuals, are members of a community and must subordinate their ambition to the larger whole of which they are a part. They may find their compensation is spiritually identifying their good with that of the larger life. 4. The economic theory The economic justification of private property is that by means of it a maximum of productivity is promoted. The classical economic argument may be put thus: The successful business man, the one who makes the greatest profit, is the one who has the greatest power to foresee effective demand. If he has not that power his enterprise fails. He is therefore, in fact, the best director of economic activities. 50 [1.85]

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Property and Sovereignty cont. There can be little doubt that if we take the whole history of agriculture and industry, or compare the economic output in countries like Russia with that in the United States, there is a strong prima facie case for the contention that more intensive cultivation of the soil and greater productiveness of industry prevail under individual ownership. Many a priori psychologic and economic reasons can also be brought to explain why this must be so, why the individual cultivator will take greater care not to exhaust the soil, etc. All this, however, is so familiar that we may take it for granted and look at the other side of the case, at the considerations which show that there is a difference between socially desirable productivity and the desire for individual profits. In the first place let us note that of many things the supply is not increased by making them private property. This is obviously true of land in cities and other monopoly or limited goods. Private ownership of land does not increase the amount of rainfall, and irrigation works to make the land more fruitful have been carried through by government more than by private initiative. Nor was the productivity of French or Irish lands reduced when the property of their landlords in rent charges and other incidents of seigniorage was reduced or even abolished. In our own days, we frequently see tobacco, cotton or wheat farmers in distress because they have succeeded in raising too plentiful crops; and manufacturers who are well-informed know when greater profit is to be made by decreased output. Patents for processes which would cheapen the product are often bought up by manufacturers and never used. Durable goods which are more economic to the consumer are very frequently crowded out of the market by shoddier goods which are more profitable to produce because of the larger turnover. Advertising campaigns often persuade people to buy the less economical goods and to pay the cost of the uneconomic advice. In the second place, there are inherent sources of waste in a regime of private enterprise and free competition. If the biologic analogy of the struggle for existence were taken seriously, we should see that the natural survival of the economically fittest is attended, as in the biologic field, with frightful wastefulness. The elimination of the unsuccessful competitor may be a gain to the survivor but all business failures are losses to the community. Finally, a regime of private ownership in industry is too apt to sacrifice social interests to immediate monetary profits. This shows itself in speeding up industry to such a pitch that men are exhausted in a relatively few years whereas a slower expenditure of their energy would prolong their useful years. It shows itself in the way in which private ownership enterprise has wasted a good deal of the natural resources of the United States to obtain immediate profits. Even when the directors of a modern industrial enterprise see the uneconomic consequences of immediate profits, the demand of shareholders of immediate dividends, and the ease with which men can desert a business and leave it to others to stand the coming losses, all tend to encourage ultimately wasteful and uneconomic activity. Possibly the best illustration of this is child labor, which by lowering wages increases immediate profits, but in the end is really wasteful of the most precious wealth of the country, its future manhood and womanhood. Surveying our arguments thus far: We have seen the roots of property in custom and in the need for economic productivity, in individual needs of privacy and in the need for social utility. But we have also noted that property, being only one among other human interests, cannot be pursued absolutely without detriment to human life. Hence we can no longer maintain Montesquieu’s view that private property is sacrosanct and that the general government must in no way interfere with or retrench its domain. The issue before thoughtful people is therefore not the maintenance or abolition of private property, but the determina-tion of the precise lines along which private enterprise must be given free scope and where it must be restricted in the interests of the common good. … [1.85]

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Property and Sovereignty cont. III Political vs economic sovereignty If the discussion of property by those interested in private law has suffered from a lack of realism and from too great a reliance on vague a priori plausibilities, much the same can be said about political discussion as to the proper limits of state action in regard to property and economic enterprise. Utterly unreal is all talk of men being robbed of their power of initiative because the state undertakes some service, for example to build a bridge across a river. Men are not deprived of opportunities for real self reliance by having their streets lighted at night, by filling up holes in the pavements, by removing other dangers to life and limb and by providing opportunities for education to all. The conditions of modern life are complex and distracting enough so that if we can ease the strain by simplifying some things through state action we are all the gainers by it. Certain things have to be done in a community and the question whether they should be left to private enterprise dominated by the profit motive or to the government dominated by political considerations, is not a question of man versus the state, but simply a question of which organization and motive can best do the work. Both private and government enterprise are initiated and carried through by individual human beings. A realistic attitude would not begin with the assumption that all men in the government service are less or more intelligent or efficient than all those in private business. It would rather inquire what sort of people are drawn into government service and what attitudes their organization develops in contrast with that of private business. This is a matter for specific factual inquiry, unfortunately most sadly neglected. In the absence of such definite knowledge I can only venture a few guesses. Government officials seem likely to be chosen more for their oratorical ability, popularly likeable manners, and political availability, and less for their competence and knowledge of the problems with which they have to deal. The inheritance of wealth, however, may bring incompetent people for a while into control of private business. More serious is the fact that political leaders in touch with public sentiment are apt to be too conservative and prefer to avoid trouble by letting things alone. Their bureaucratic underlings, on whom they are more dependent than business executives on theirs, are apt to overemphasize the value of red tape, ie to care more for uniformity of governmental procedure than for the diverse special needs to which they ought to minister. All business administration, however, also loses in efficiency as its volume increases. On the other hand, experience has shown all civilised peoples the indispensable need for communal control to prevent the abuse of private enterprise. Only a political or general government is competent to deal with a problem like city congestion, because only the general government can coordinate a number of activities some of which have no financial motive. Private business may be more efficient in saving money. It does so largely by paying smaller wages to the many and higher remuneration to those on top. From a social point of view this is not necessarily a good in itself. It is well to note that men of great ability and devotion frequently prefer to work for the government at a lower pay than they can obtain in private employment. There is something more than money in daily employment. Humanity prefers – not altogether unwisely – to follow the lead of those who are sensitive rather than those who are efficient. Business efficiency mars the beauty of our countryside with hideous advertising signs and would, if allowed, ruin the scenic grandeur of Niagara. The subordination of everything to the single aim of monetary profit leads industrial government to take the form of absolute monarchy. Monarchy has a certain simplicity and convenience; but in the long run it is seldom the best for all concerned. Sooner or later it leads to insurrections. It is short-sighted to assume that an employer cannot possibly run his business without the absolute right to hire and fire his employees whenever he feels like. It is interesting to note that even a modern army is run without giving the general the absolute right to hire and fire. In this connection, I recall a conversation between a British Ambassador, Sir John Malcolm, and the Shah of Persia. The latter was surprised when he learned that the king of England could not at his pleasure behead any of his courtiers. How can one be king under such conditions? However, when he learned that the king of 52 [1.85]

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Property and Sovereignty cont. England did not have to fear so much for his own life the Shah began to see some advantage in limiting the absolute power of the monarch. May not democratic or limited constitutional government in industry have some human advantages over unlimited monarchy? The main difficulty, however, with industrial and financial government is that the governors are released from all responsibility for the actual human effects of their policies. Formerly, the employer could observe and had an interest in the health and morals of his apprentice. Now, the owners or stockholders have lost all personal touch with all but few of those who work for them. The human element is thus completely subordinated to the profit motive. In some cases this even makes for industrial inefficiency as when railroads or other businesses are run by financiers in the interest of stock manipulation. Very often our captains of finance exercise power by controlling other people’s funds. This was strikingly shown when several millions of dollars were paid for some shares of little inherent value but which enabled the purchaser to control the assets of a great life insurance company. Professor Ripley has recently thrown Wall Street into a turmoil by pointing out the extent to which promoters and financiers may with little investments of their own control great industrial undertakings. Let me conclude. There can be no doubt that our property laws do confer sovereign power on our captains of industry and even more so on our captains of finance. Now it would be unworthy of a philosopher to shy at government by captains of industry and finance. Humanity has been ruled by priests, soldiers, hereditary landlords, and even antiquarian scholars. The results are not such as to make us view with alarm a new type of ruler. But if we are entering a new era involving a new set of rulers, it is well to recognise it and reflect on what is involved. For the first time in the history of mankind the producer of things is in the saddle, not of course the actual physical producer, but the master mind that directs the currents of production. If this is contrary to the tradition of philosophy from Plato down, we may well be told that our philosophy needs revision. Great captains of industry and finance like the late James J Hill deal with problems in many respects bigger than those that faced Caesar and Augustus in building the Roman Empire. Still the fear may well be expressed that as modern life is becoming more and more complex it is dangerous to give too much sovereignty to those who are after all dealing with the rather simpler aspects of life involved in economic relations. It may, of course, rightly be contended that the modern captain of industry is not merely concerned with the creation of things, that his success is largely determined by his judgment and ability to manage large numbers of human beings that form part of his organization. Against this, however, there is the obvious retort that the only ability taken account of in the industrial and financial world, the ability to make money, is a very specialised one; and when business men get into public office they are notably successful. Too often they forget that while saving the money of the taxpayer may be an admirable incident, it is not the sole or even the principal end of communal life and government. The wise expenditure of money is a more complicated problem than the mere saving it, and a no less indispensable task to those who face the question of how to promote a better communal life. To do this effectively we need a certain liberal insight into the more intangible desires of the human heart. Preoccupation with the management of property has not in fact advanced this kind of insight. Many things are produced to the great detriment of the health and morals of the consumers as well as the producers. This refers not only to things that are inherently deleterious or enervating to those who create them and those who use them. It includes also many of the things of which people buy more than they need and more than is consistent with peace and leisure of mind which is the essence of culture. It is certainly a shallow philosophy which would make human welfare synonomous with the indiscriminate production and consumption of material goods. If there is one iota of wisdom in all the religions or philosophies which have supported the human race in the past it is that man cannot live by [1.85]

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Property and Sovereignty cont. economic goods alone but needs vision and wisdom to determine what things are worth while and what things it would be better to do without. This profound human need of controlling and moderating our consumptive demands cannot be left to those whose dominant interest is to stimulate such demands. It is characteristic of the low state of our philosophy that the merits of capitalism have been argued by both individualists and socialists exclusively from the point of view of the production and distribution of goods. To the profounder question as to what goods are ultimately worthwhile producing from the point of view of the social effects on the producers and consumers almost no attention is paid. Yet surely this is a matter which requires the guidance of collective wisdom, not to be left to chance or anarchy.

[1.90]

Notes

1. The place of private property in any society seems more firmly established today than at any other time in recent history. The recognition of private property is associated with a global market economy, individual freedom and political systems describing themselves as liberal democracies. Widespread private property is seen as leading to a social commitment and thus a more stable society. Private property also gives its holder something capable of providing security for the loan of money for productive purposes. Microfinancing theories allege that even small loans allow an entrepreneurial beginning. In developing countries small loans have been made without security; repayment has been a matter of social responsibility and default rates have been low. 2. The most evident challenge to universal acceptance of this philosophical approach has been from those opposing what is seen as the primacy of commercial values and individual rather than social interests. These challenges have been given expression in protests against the instrumentalities supporting this economic direction, such as the demonstrations against the World Trade Organisation. These protests have been based in part on the impact of the capitalist system on the disadvantaged. 3. Participation in the political processes of the western democracies has shown a marked decline in recent years; membership of major political parties has slumped significantly, and where voting at elections is optional voting rates have declined. Private property does reward individual endeavour and its dominance may be associated with a decline in concern for the welfare of others. 4. The increasing categories of intellectual property have conferred private ownership of the structure of life forms, such as plant varieties, with the aim of encouraging private research, as opposed to public knowledge based on research by government instrumentalities such as the CSIRO. But private property is the exclusion of others and has led to the prevention of the manufacture by copiers of life saving drugs such as AIDS inhibitors whose composition is owned by a large corporation.

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PROTECTION FOR PROPERTY Plenty v Dillon [1.95] Plenty v Dillon (1991) 171 CLR 635 High Court of Australia MASON CJ, BRENNAN AND TOOHEY JJ: Mr Plenty is the owner and occupier of a small farm at Napperby near Port Pirie, South Australia. He and Mrs Plenty are the parents of a girl who, at the time of the events giving rise to the present litigation, was aged 14 years. An allegation was made in July 1978 that the child had committed an offence and, pursuant to ss 8 and 15 of the Juvenile Courts Act 1921-1975 (SA), a complaint was laid against the child alleging that she was in need of care and control. That is the procedure which the Juvenile Courts Act prescribes for dealing with a child against whom an allegation of an offence is made. When such a complaint is laid a justice is authorised to issue a summons to the child to appear before a Juvenile Court: s 61. A justice issued a summons to the child to appear. The service of that summons was governed by s 27 of the Justices Act 1921-1975 (SA). Section 27 (as it then stood) provided: Subject to the provisions of this or any other enactment specially applicable to the particular case, any summons or notice required or authorised by this Act to be served upon any person may be served upon such person by – (a) delivering the same to him personally; or (b) leaving the same for him at his last or most usual place of abode or of business with some other person, apparently an inmate thereof or employed thereat, and apparently not less than sixteen years of age: Provided that any court or justice before whom the matter comes may refuse to act upon any non-personal service as aforesaid, and may require the summons or notice to be re-served, if it or he is of opinion that there is a reasonable probability – I. that the summons or notice has not come to the knowledge of the person so served; and II. that such person would have complied with or acted upon such summons or notice if it had come to his knowledge. On 6 and 31 October 1978 the police attempted to serve the summons on the child. On the latter occasion the police effected non-personal service of the summons by leaving it with her father. The child did not appear. Instead of ordering reservice of the summons, the magistrate ordered that a fresh summons be issued. In addition, notices were issued to Mr and Mrs Plenty, pursuant to s 29 of the Juvenile Courts Act, ordering them to attend at the hearing of the complaint against their child. Constable Dillon, accompanied by Constable Will, went to Mr Plenty’s farm in order to serve the fresh summons either personally on the child or, by non-personal service, on the father. Their entry onto the farm for this purpose was the occasion of an alleged trespass for which Mr Plenty brought the present action. He joined as defendants Constables Dillon and Will, their senior officer and the State of South Australia. It is unnecessary to trace the full history of the matter except to say that, in the view taken of the facts by a majority of the Full Court of the Supreme Court of South Australia, Mr Plenty had expressly revoked any implied consent given to any police constable to enter upon his farm in order to serve the summons or any other document relating to the matter concerning his child. The appeal to the Full Court proceeded on that footing and the defendants were content to argue the present appeal on the same footing. Thus the issue for determination is simply whether a police officer who is charged with the duty of serving a summons is authorised, without the consent of the person in possession or entitled to possession of land and without any implied leave or licence, to go upon the land in order to serve the summons. The starting point is the judgment of Lord Camden LCJ in Entick v Carrington (1765) 19 St Tr 1029 at 1066: By the laws of England, every invasion of private property, be it ever so minute, is a trespass. No man can set his foot upon my ground without my licence, but he is liable to an action, though the damage be nothing … If he admits the fact, he is bound to shew by way of justification, that some positive law has empowered or excused him. [1.95]

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Plenty v Dillon cont. And see Great Central Railway Co v Bates [1921] 3 KB 578 at 582; Morris v Beardmore [1981] AC 446 at 464. The principle applies to entry by persons purporting to act with the authority of the Crown as well as to entry by other persons. As Lord Denning MR said in Southam v Smout [1964] 1 QB 308 at 320, adopting a quotation from the Earl of Chatham: “The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail – its roof may shake – the wind may blow through it – the storm may enter – the rain may enter – but the King of England cannot enter – all his force dares not cross the threshold of the ruined tenement.” So be it – unless he has justification by law. And in Halliday v Nevill (1984) 155 CLR 1, Brennan J said (at 10): The principle applies alike to officers of government and to private persons. A police officer who enters or remains on private property without the leave and licence of the person in possession or entitled to possession commits a trespass and acts outside the course of his duty unless his entering or remaining on the premises is authorised or excused by law. The proposition that any person who “set(s) his foot upon my ground without my licence … is liable to an action” in trespass is qualified by exceptions both at common law and by statute. The first ground relied on to authorise or excuse the entry of Constables Dillon and Will on Mr Plenty’s farm on the occasion of the attempted service of the fresh summons was the common law rule known as the third rule in Semayne’s Case (1604) 5 Co Rep 91a at 91b (77 ER 194 at 195) which reads: In all cases when the King is party, the sheriff (if the doors be not open) may break the party’s house, either to arrest him, or to do other execution of the (King)’s process, if otherwise he cannot enter. But before he breaks it, he ought to signify the cause of his coming, and to make request to open doors. … The present case is not concerned with the application of the third rule in Semayne’s Case to an arrest without warrant on a criminal charge (a problem addressed in Lippl v Haines (1989) 18 NSWLR 620; and see Dinan v Brereton [1960] SASR 101 at 105), nor with its application to the execution of a justice’s warrant authorizing either arrest or search and seizure (a problem addressed in Launock v Brown (1819) 2 B and Ald 592 (106 ER 482)), nor with its application to the carrying into effect of a court’s judgment, order or warrant. It is concerned only with the application of the third rule in Semayne’s Case to the service of a summons. It would be surprising to find that the third rule does apply to the service of a summons, for that would mean that the defendants in this case were authorised not only to go onto Mr Plenty’s farm but, if need be, after demand for entry, to break down the door of his home to effect service on his daughter. We do not think that so invasive an operation can be attributed to the third rule. We take the third rule’s reference to execution of process to relate to the enforcement of process which is coercive in nature, that is, to the execution of process against person or property. That is how the rule was understood in Tomlins’ Law-Dictionary: “to do execution, either on the party’s goods, or take his body, as the case shall be”. The service of a summons is not an execution of process of that nature. … Common law authority tends against the proposition that the third rule in Semayne’s Case applies to service of a summons on premises entry onto which has been forbidden by the person in possession and entitled to possession thereof. It follows that the common law gave no authority to Constables Dillon and Will to go onto Mr Plenty’s farm in an attempt to serve the fresh summons on Mr Plenty’s daughter. Next, it is submitted that the statutory power to serve a summons, either personally or non-personally, carries with it the right to make such entry on land as is necessary to effect service. This argument, which had the support of the courts below, would construe the statute as conferring a right to enter private premises without consent even though the person in possession has no connection 56 [1.95]

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Plenty v Dillon cont. with the matter to which the summons relates. Some statutes which confer a power to arrest have not been construed as carrying a right to enter on private property (see per Lord Keith of Kinkel in Clowser v Chaplin [1981] 1 WLR 837 at 842; [1981] 2 All ER 267 at 270) although, in other cases, a statutory power of arrest has been held to carry a qualified right to enter: see Eccles v Bourque (1975) 2 SCR 739; (1974) 50 DLR (3d) 753; Halliday v Nevill, at 15-16. But a statute which confers a power to arrest is of a different order from a statute which prescribes the manner of service of a summons and which confers no power on a person to do a thing that that person is not free to do at common law. Section 27 of the Justices Act is merely facultative, giving to the process-server an option as to the manner of service. It confers no relevant power. The option of personal or non-personal service for which s 27 provides relates simply to the sufficiency of the giving of notice to a defendant after which the justices may proceed to hear and determine the matter in the exercise of their jurisdiction. In truth, the provisions of s 27 do nothing to create an implication that a process-server availing himself of either of the options acquires a power to enter upon private land without the leave or licence of the person in possession or entitled to possession thereof. The grounds advanced by the defendants to justify their entry fail. Their entry was wrongful, and the plaintiff is entitled to judgment and an award of some damages. The vicarious liability of the third and fourth defendants was not argued and that question may require further consideration. At first instance, Mohr J said that, even if a trespass had occurred, the trespass was “of such a trifling nature as not to found (sic) in damages”. But this is an action in trespass not in case and the plaintiff is entitled to some damages in vindication of his right to exclude the defendants from his farm. … GAUDRON AND MCHUGH JJ: The question in this appeal is whether a police officer has the right under the law of South Australia to enter private property for the purpose of serving a summons after the occupier of the property has notified the officer that he or she has no permission to enter the land. … The common law right of entry The policy of the law is to protect the possession of property and the privacy and security of its occupier: Semayne’s Case (1604) 5 Co Rep 91a at 91b (77 ER 194 at 195); Entick v Carrington (1765) 2 Wils KB 275 at 291 (95 ER 807 at 817); Southam v Smout [1964] 1 QB 308 at 320; Eccles v Bourque (1975) 2 SCR 739 at 742-743; (1974) 50 DLR (3d) 753 at 755; Morris v Beardmore [1981] AC 446 at 464. A person who enters the property of another must justify that entry by showing that he or she either entered with the consent of the occupier or otherwise had lawful authority to enter the premises: Entick, at 291 (817 of ER); Morris v Beardmore, at 464; Southam v Smout, at 320; Halliday v Nevill (1984) 155 CLR 1 at 10. Except in the cases provided for by the common law and by statute, constables of police and those acting under the Crown have no special rights to enter land: Halliday, at 10. Consent to an entry is implied if the person enters for a lawful purpose. In Robson v Hallett [1967] 2 QB 939, Lord Parker CJ said (at 951): the occupier of any dwelling-house gives implied licence to any member of the public coming on his lawful business to come through the gate, up the steps, and knock on the door of the house. This implied licence extends to the driveway of a dwelling-house: Halliday. However, the licence may be withdrawn by giving notice of its withdrawal. A person who enters or remains on property after the withdrawal of the licence is a trespasser. In Davis v Lisle [1936] 2 KB 434, police officers who had lawfully entered a garage for the purpose of making enquiries were held to have become trespassers by remaining in the garage after they were told by the proprietor to “get outside”. The common law has a number of exceptions to the general rule that a person is a trespasser unless that person enters premises with the consent, express or implied, of the occupier. Thus, a constable or [1.95]

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Plenty v Dillon cont. citizen can enter premises for the purpose of making an arrest if a felony has been committed and the felon has been followed to the premises. A constable or citizen can also enter premises to prevent the commission of a felony, and a constable can enter premises to arrest an offender running away from an affray. Moreover, a constable or citizen can enter premises to prevent a murder occurring. In these cases there is power not only to enter premises but, where necessary, to break into the premises. However, it is a condition of any lawful breaking of premises that the person seeking entry has demanded and been refused entry by the occupier. See Swales v Cox [1981] QB 849 at 853. Furthermore, a constable, holding a warrant to arrest, may enter premises forcibly, if necessary, for the purpose of executing the warrant provided that the constable has first signified “the cause of his coming, and … (made) request to open doors”: Semayne’s Case, at 91b (195 of ER); Burdett v Abbot (1811) 14 East 1, at 158, 162-163 (104 ER 501 at 561, 563); Lippl v Haines (1989) 18 NSWLR 620 at 631. But no public official, police constable or citizen has any right at common law to enter a dwelling-house merely because he or she suspects that something is wrong: Great Central Railway Co v Bates [1921] 3 KB 578 at 581-582. Nor, except in the instances to which we have referred, can any person enter premises, without a warrant, to apprehend a fugitive who may be on the premises: Lippl v Haines, at 636. Another exception to the general rule that a person who enters premises without the express or implied consent of the occupier is a trespasser is the rule that the sheriff can enter premises, by force if necessary, for the purpose of executing process in cases where the Sovereign is a party to the action: see the third resolution in Semayne’s Case, at p 91b (p 195 of ER). Moreover, if the door of premises is open the sheriff may enter “and do execut(ion) at the suit of any subject, either of the body, or of the goods” (at 92a (197 of ER)). But the right to execute at the suit of a subject does not extend to breaking open the outer doors of a dwelling-house: Semayne’s Case, at 92a, 92b (197, 198 of ER); Burdett v Abbot, at 154-155 (560 of ER); Southam v Smout, at 322-323, 326, 329; Tomlins’ Law-Dictionary, 4th ed (1835), vol 1, tit Execution, III 3. It has been held, however, that, for the purpose of executing process at the suit of any subject, the sheriff may break open a barn or outhouse which is not part of a dwelling-house: Penton v Brown (1664) 1 Keb 698 (83 ER 1193). … Thus, the object of serving a summons is different from the object of an arrest or an execution against the goods or body of a person. There is no logical basis for extending a rule whose object is to ensure the satisfaction of a judgment or obligation or the attendance of a person before a court to the case of the service of a document whose object is the provision of information. The very limited nature of a constable’s right to enter private property for the purpose of arrest is by itself a compelling argument for holding that, without making major changes to the law, the common law cannot logically recognise the service of a summons as a ground for entering premises against the will of the occupier. It would be incongruous for the common law to permit entry for the purpose of arrest in a few cases only but to permit entry for the purpose of serving a summons in every case whatsoever. Furthermore, nothing in the policy which underpins the third resolution in Semayne’s Case suggests that the achievement of its goal will be facilitated or promoted by extending the third resolution to cover the case of the service of a summons. The policy behind the third resolution is that the public interest in securing the Crown revenues and apprehending alleged offenders is greater than any consequential interference to the private rights of the occupiers of property. Serving a summons does not facilitate or promote this policy. The object of the service is not to bring the defendant before the court or to secure the revenues of the Crown but to apprise the defendant of the nature of the case which is alleged against him or her. Whether or not the defendant appears in answer to the summons is a matter entirely for that person. Failure to make an arrest or issue execution may frustrate the administration of justice. But failure to serve a summons does not mean that the administration of justice is frustrated. When the defendant deliberately refuses to accept or evades service of the summons, judgment against him or her may still 58 [1.95]

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Plenty v Dillon cont. be entered. The defendant cannot complain in those circumstances that the rules of procedural fairness have been breached. Nor can he or she complain if execution subsequently issues. Of course, in most cases, a justice prefers to have a defendant, who evades service, apprehended and brought before the court by warrant. He or she will prefer to do so not merely for the purpose of ensuring that the defendant does not evade the penalties imposed by law but because of the deep reluctance of those trained in the common law system to permit a charge to be heard against a person in his or her absence. Nevertheless, in such cases it is the warrant and not the summons which secures the defendant’s presence. At this late stage in the development of the common law, it seems impossible to declare that, for the purpose of serving a summons, a constable has a common law right of entry upon private property without the consent of the occupier. The general policy of the law is against government officials having rights of entry on private property without the permission of the occupier, and nothing concerned with the service of a summons gives any ground for creating a new exception to the general rule that entry on property without the express or implied consent of the occupier is a trespass. The contention that the respondents are not liable for trespass to the appellant’s land because of the third resolution in Semayne’s Case must be rejected.

[1.105]

Notes

1. In Kuru v New South Wales (2008) 236 CLR 1 the High Court considered possible defences to an action in trespass. Police had arrived at Mr Kuru’s flat to attend a suspected domestic violence incident allegedly involving Mr Kuru and his then fiancée (and later wife). By the time the police arrived, the woman had left the flat. Mr Kuru initially gave the police permission to look around, but subsequently told them to leave. They didn’t, and a violent struggle resulted, which led to the arrest of Mr Kuru. In the action for trespass against it, the State of New South Wales argued that there were both statutory and common law justifications for the police remaining in Mr Kuru’s flat after he had told them to leave. The State argued (at 14) that the common law justification was that “where police ‘apprehend on reasonable grounds that a breach of the peace has occurred and unless they involve themselves may recur, or alternatively that a breach of the peace is imminent, they may enter private dwelling premises for preventative and investigative purposes …’.” A majority of the High Court found that neither the statutory nor the common law justification had been made out. 2. Attitudes towards protection for property have changed considerably over time. In recent years the community has become less tolerant towards intruders. Certainly greater fear exists because of a perceived increase in violence. In several recent instances killers of intruders onto land have not been prosecuted for any offence. Legislative changes have been in the direction of providing a defence for any occupier of residential premises who makes an honest attempt to defend against an intruder; see, for example, s 15A of the Criminal Law Consolidation Act 1935 (SA). Similarly penalties applying to intruders have increased significantly; see, for example, R v Delphin (2001) 79 SASR 429 and R v Cattell [2010] SASCFC 18. South Australia has also introduced legislation to clarify and strengthen the rights of landholders and police in respect of persons who trespass at private parties: Summary Offences (Gatecrashers at Parties) Amendment Act 2007. [1.105]

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3. Whilst much discussion has taken place with respect to defence of the person and the home, the position with respect to goods has not received the same attention. Some persons have considerable attachments to their motor vehicles. Some rights to protect that vehicle clearly exist. If there is no threat to my own safety, how far can I go to prevent someone taking my motor vehicle? See R v Turner [1962] VR 30.

PROPERTY AND GENDER ISSUES Women, Property and Family Relations [1.110] Scutt J, Women, Property and Family Relations (1990), pp 204-207. 2. Marriage, divorce and property Marriage became important in England because property was important. Marriage was used to consolidate or to gain fortunes. As a means of consolidating or gaining fortunes it was vital to the aristocracy and later to the middle-class in its striving to gain a foothold on the ladder of social, economic and political power. Marriage “rules” then became “fashionable” amongst the lower socio-economic classes, and were universalised through Lord Hardwicke’s Marriage Act 1753. Once marriage was established by secular as well as ecclesiastical law, the question of rights to separate and remarry became pressing. The ecclesiastical courts allowed divorce e mensa et toro: formal separation without any right to marry again. Legal divorce with rights to remarry was obtainable only through Parliament. A special Act of Parliament had to be passed stating that the marriage was at an end. A costly procedure and dependent upon political “pull” (one had to have a Member of Parliament ready to put the Bill forward, or be a member and introduce it as a private member’s Bill), such divorces were rare and isolated amongst the rich and powerful. English marriage laws were transported to Australia with the convicts and soldiers. Divorce laws developed in the colonies along lines similar to those in Britain, similar debates taking place in Parliament. The laws were discriminatory against women. To obtain a divorce for adultery a woman had to show her husband engaged not only in sexual intercourse with another woman, but the sexual activity was incestuous, or he engaged in cruelty toward his wife as well. A single act of sexual intercourse by his wife with another man could secure divorce for a husband. The differentiation between a wife and husband continued in Victoria until 1959 when the Matrimonial Causes Act provided 14 grounds for divorce, all equally applicable in their explicit terms to women and men. (The other States reformed their divorce laws in a more egalitarian way than Victoria in earlier decades.) The Matrimonial Causes Act 1959 (Cth) made divorce subject to federal law, as provided by the Constitution. State Supreme Courts continued to grant divorces and deal with custody, maintenance and property in relation thereto, but under the federal law only. The Marriage Act 1961 (Cth) also took marriage out of State jurisdiction. But differentiations between young women and men continued: a woman of 16 years is legally able to marry, whereas the legal age for a man to marry is 18 years. Below those ages, special permission to marry has to be sought and gained. Grounds of divorce under the Matrimonial Causes Act included adultery, cruelty, attempted murder, various other crimes such as rape, or repeated offences, drunkenness, desertion and committal to a hospital for the insane. These were “fault” grounds, because the party seeking divorce had to prove the other party was insane, cruel, an alcoholic or exhibited some designated characteristic or habit. Separation was a ground for divorce if parties had been living separately and apart for five years. This was the only “no fault” ground, because so long as the parties had not been living together for five years, there was no requirement to prove any bad behaviour by a spouse. This differed from the ground of desertion, where the party seeking divorce had to bring evidence that the other party had deserted her or him, leaving her without support, or him without “cohabitation rights”, for three years 60 [1.110]

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Women, Property and Family Relations cont. or more. “Constructive desertion” was pleaded by women seeking divorce where they had been forced by the unbearable behaviour of the husband to leave the matrimonial home. Under the Matrimonial Causes Act, as under State legislation preceding it, the good conduct of the parties was important: if a woman was divorced for, say, adultery, she was left with no right to maintenance by the former husband. If she was able to divorce him for “constructive desertion”, she retained a right to ask the court to grant her maintenance. A divorce for adultery placed a woman’s application for custody of the children of the marriage in jeopardy, for the view was that a woman engaging in adultery was a “bad” mother. This criterion was not used to deprive fathers of custodial rights, should they seek child custody. In 1975 the Family Law Act abolished all grounds for divorce apart from one: irretrievable breakdown of marriage. All applications for divorce, and property and maintenance in relation thereto, are heard in the Family Court, a federal court (or in Western Australia the Family Court of Western Australia which combines federal jurisdiction with certain State jurisdictions). The applicant now has no need to prove bad conduct of any sort on the part of the other, and indeed no such conduct can be raised in a divorce case. Once the parties have been living separately and apart for the 12 month minimum period required under the Act, either party is entitled to apply for and obtain divorce, so long as there is proof of marriage breakdown and the parties have been living separately and apart for the requisite period. Both parties can apply. Parties can be held to be “living separately and apart” although they continue to dwell under the same roof. The Family Court looks at the activities of the woman and man: does she continue to cook for him? do they go out together as a couple? do the neighbours, their friends and family continue to regard them as married? do they continue to combine their incomes? does the couple have joint bank accounts? property owned jointly? If a general picture is built up of the couple continuing to live as if they were married, and holding themselves out to be married, then the court will be reluctant to accept that the marriage has “irretrievably broken down” and that the parties are living “separately and apart”. Although “fault” is removed from divorce proceedings, it remains where the law is interpreted in property, maintenance and custody matters. It is questionable whether this was the intention of the drafters of the legislation, and of Parliament in passing it. Some people believe that retaining “fault” in property and maintenance matters is “fairer”, and specific provisions for “fault” should be reincorporated into the law. Yet this is highly questionable. 3. Property ownership and division (a) Historical origins At common law, upon marriage a woman lost any right to own property. She had no right to retain any income she might earn. Property and income belonged solely to her husband. To protect family fortunes from profligate husbands, those in the upper echelons were able to use the courts of equity, by trusts, to ensure that property going into a marriage with a daughter could not be used by the husband; it was kept intact to be passed down to grandsons. The Married Women’s Property Acts, lobbied for strenuously by women in Britain, Australia, New Zealand, Canada and the United States throughout the mid to late 19th century, sought to keep for a woman any property she owned prior to marriage, and any earnings she might make during marriage. The first Married Women’s Property Act in Australia was passed in 1879 in New South Wales. It was a copy of English legislation (the Married Women’s Property Acts of 1870 and 1874) and brought to fruition some of the demands made even earlier. In 1857 when the Divorce and Matrimonial Causes Act passed the British Parliament, Lord Brougham had unsuccessfully supported a Bill for marital property reform, saying in the debate on 13 February 1857: All [a wife’s property and income] in reality belong by our law’s decrees to the husband, all are vested in him by right, and he may at his own good pleasure vest them also in possession; nay [1.110]

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Women, Property and Family Relations cont. never having in the least degree helped their production, he may without the delay, the respite of an instant, or one word of notice or warning, or even demand, seize upon the whole, sweep all away, and leave her who created the whole stript of them to the very last farthing. He may squander them upon his pleasures, lavish them on his paramour, employ them to support his spurious progeny, and there exists not the possibility of his being in the very least degree either controlled or even called to account for the heartless cruelty of his robbery, or his profiigate use of its fruits. Such is the law of England, and of this law we complain … It is not upon the families of those whom I now address, or of persons generally in the upper ranks of society, but upon the middle classes and the humbler order of our fellow citizens that the evil falls, to crush their most deserving members, while it protects and even encourages the worst in their idleness and their profligacy … An instance or two may suffice and I select the least painful of purpose … It was that of an industrious and honest woman who had married a good-for-nothing husband; he deserted her and went to live with another. The wife took to the occupation of a ladies shoemaker and earned a pittance for her own support: when the husband found that she was thriving by her successful labour he returned to her, but for the moment only; he seized the little fund she had scraped together, collected the money due from the customers, sold her furniture, and went back to his paramour, leaving her as helpless as before, except for the resources of her own industry. On 3 November 1878 the Sydney Morning Herald carried a report of the debate on the New South Wales Bill, making clear the exaggerated and misogynist fears of some Members that granting women modest property rights would upset the rightful order of things. J Leary MLA considered the legislation “might have the effect in a large number of instances, of severing the ties of affection between husband and wife by giving to the wife a position of independence apart from her husband”. M Fitzpatrick MLA continued even more stridently in the same vein, saying that to remedy “exceptional cases” the Parliament was “unhinging the great framework of society, the greatest institution of civilisation, the sanctity of married life”. On 6 February 1879 WJ Foster in the Legislative Council embellished the theme, saying: Suppose some drudge in a government office, or a merchant’s office got married to some young lady, and she suddenly came into say 50,000 pounds, and that she thought fit to allow her husband to continue to go about his drudgery, while she went and spent the money. The children were hers as much as the husband’s, and she had a right to contribute to support them. The clause would introduce a complete revolution in social affairs. [I do] not think that this power should be given to ladies, who [are] not generally educated in the manner of the control of money as men [are].

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Notes

1. The aspect of property law in which gender issues are most clearly evident is that where a security interest is provided for a guarantee of the debts of another. Whilst in some cases the guarantee is provided by both parents, that guarantee tends to be in favour of a son, and in many cases the guarantee is provided by a woman in favour of a husband, a male partner, or a male friend and earns the description of sexually transmitted debt. Commonly the security provided is the family home, and private assets are thus supporting business activities; see Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 at [10.90]. 62 [1.115]

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2. Controversy has attached to what has been called the rule in Yerkey v Jones (1939) 63 CLR 649 whereby special protection is given to a married woman who provides financial support for her husband. The rule was upheld by the High Court in Garcia v National Australia Bank Ltd (1998) 194 CLR 395 (set out at [10.110]) even though the woman was described as “a capable and presentable professional”. 3. The gender dimension in the guarantee cases is reasonably evident but property transactions generally have a more subtle gender element. Real property transactions are based on a formal record of ownership and those records may reflect a family division of financial and non-financial contributions to the relationship. In cases where such a division is made the financial contribution is more commonly made by the male partner and any person lending money (a mortgagee) will be concerned more with this person and may seek to have only this person recorded on the title. In the past 20 years, Australian courts have developed proprietary interests to recognise the non-financial contributions (such as the constructive trust), but these interests are at the outset informal. Consequently persons proposing to deal with the land in respect of which such an interest exists will look to the formal record and discover only the interest of the male member of the household. To facilitate the process of land transfer persons seeking to acquire an interest are allowed to restrict their inquiries into the title to the formal record (the concept of indefeasibility in relation to the Torrens System) A conflict, therefore, arises between the principle facilitating land dealings and that protecting the person making non-financial contributions to a relationship, a person who is more likely to be the female partner. 4. The practices of lending institutions illustrated in Mercantile Mutual Life Assurance Co v Gosper (1991) 25 NSWLR 32 are a stark reminder of attitudes which would have been assumed to have belonged to another era. 5. Much of the common law’s approach to the ownership of land can be characterised as stemming from the view that land should be owned by a male. This view is part of a feudal outlook with land holding linked to military service. Until the Statute of Wills 1540 freehold interests in land could not be left by will and such interests passed to the heir. In determining who was the heir males of equal rank counted in preference to females and amongst males the elder or eldest prevailed over his brother or brothers. 6. Even after 1540, preference for males in relation to the passing of land continued in cases of intestacy. On intestacy freehold interests in land continued to pass to the heir. This rule was not abolished until the 19th century and reform commenced in New South Wales in 1862 (“Langs Act”). By this time, Australian jurisdictions were moving independently of English reform: see Moore, Grattan and Griggs, Australian Real Property Law (6th ed, Thomson Reuters, Sydney, 2016), [1.65]. 7. An analysis of these issues in neighbouring legal systems is contained in Farrer, “Land Rights and Gender Equality in the Pacific Region” (2005) 11 APLJ 131.

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BOUNDARY BETWEEN PROPERTY AND CONTRACT Cowell v Rosehill Racecourse Co Ltd [1.120] Cowell v Rosehill Racecourse Co Ltd (1936) 56 CLR 605 High Court of Australia [The plaintiff paid the entrance price and entered the Rosehill Racecourse. Subsequently officials asked him to leave (presumably because they suspected that he was engaged in illegal betting activities, but no issue of justification was raised in the proceedings).The plaintiff refused to go and was forcibly ejected.] LATHAM CJ: The plaintiff appellant sued the defendant respondent for damages for assault. The defence was that the plaintiff was trespassing on the defendant’s land and that the defendant’s servants and agents requested him to leave the land, which he refused to do, and the defendant’s servants and agents thereupon removed him, using no more force than was necessary for that purpose, and that the said removal of the plaintiff was the alleged assault. The plaintiff, for reply on equitable grounds, said that the defendant was conducting a race meeting on the said land and that in consideration of the plaintiff paying four shillings the defendant promised to allow him to remain on the racecourse and view the races, gave him leave and licence to enter and remain on the racecourse for that purpose and promised not to revoke the licence: that the plaintiff paid four shillings, but the defendant, in breach of the promise alleged, revoked the leave and licence and assaulted the plaintiff in ejecting him from the racecourse. The defendant demurred to this pleading and the Full Court of the Supreme Court of New South Wales upheld the demurrer, following Naylor v Canterbury Park Racecourse Co Ltd (1935) 35 SR (NSW) 281; 52 WN (NSW) 82, and ordered that judgment be entered for the defendant. The plaintiff has appealed to this court. The question which arises in the appeal is whether this court should follow the decision in Hurst v Picture Theatres Ltd [1915] 1 KB 1. The Full Court of the Supreme Court of New South Wales in Naylor’s Case (1935) 35 SR (NSW) 281; 52 WN (NSW) 82 refused to apply Hurst’s Case [1915] 1 KB 1 in New South Wales. The facts pleaded in this case are indistinguishable from those in Hurst’s Case. In Hurst’s Case it was held that Wood v Leadbitter (1845) 13 M & W 838; 153 ER 351, even if originally rightly decided, was no longer good law. In Wood v Leadbitter it was decided that a mere licence, that is, a permission to do something which without permission would be unlawful, was revocable, whether it was under seal or not, but that a licence coupled with an interest was not revocable. Kerrison v Smith [1897] 2 QB 445 shows that where a licence is revoked the actual revocation may (if there be a contract) be a breach of contract for which damages are recoverable. Thus a person ejected from a place of entertainment could in such a case at least get back the price of admission which he had paid. It was not suggested in Wood v Leadbitter that the existence of a contract not to revoke the licence made the licence irrevocable in the sense that it could not be effectually (though possibly wrongfully) revoked. The doctrine of Wood v Leadbitter is clear and coherent. If a man creates a proprietary right in another and gives him a licence to go upon certain land in order that he may use or enjoy that right, the grantor cannot divest the grantee of his proprietary right and revest it in the grantor, or simply determine it, by breaking the agreement under which the licence was given. The grantee owns the property to which the licence is incident, and this ownership, with its incidental licence, is unaffected by what purports to be a revocation of the licence. The revocation of the licence is ineffectual. Easements and profits â prendre supply examples of interests to which licences to enter and remain upon land may be incidental. The majority judgment in Hurst’s Case modified, if it did not reject, the law of Wood v Leadbitter by holding that a “right to see” a spectacle was an interest which could be granted so that a licence to go 64 [1.120]

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Cowell v Rosehill Racecourse Co Ltd cont. into a theatre or a racecourse to see a play or to witness races was, when given for value, irrevocable because it was a licence coupled with an interest. Further, the majority judgment held that, in so far as Wood v Leadbitter (1845) 13 M & W 838; 153 ER 351 rested upon the rule that no incorporeal hereditament affecting land can be created or transferred otherwise than by deed, the Judicature Act had radically changed the position. The court was now bound to give effect to equitable doctrines and would therefore ignore the absence of a seal and would (as in Frogley v Earl of Lovelace (1859) Johns, 333; 70 ER 450 grant an injunction to protect the right granted. The first ground of the decision, in my opinion, ignores the distinction between a proprietary right and a contractual right. In Wood v Leadbitter there was obviously a contractual “interest”. The plaintiff had bought and paid for a contractual right to go upon land for the purpose of witnessing a spectacle. But this fact, which was treated as irrelevant in Wood v Leadbitter, is made the foundation of the first ground of the judgment in Hurst’s Case (1915) 1 KB 1. In that case Buckley LJ (191) 1 KB, at pp 5-9 interpreted “interest” in a sense quite different from that in which the word was used in Wood v Leadbitter. The learned judge said that there was a grant of a right to come to see a spectacle. The licence is described as “only something granted to him for the purpose of enabling him to have that which had been granted to him, namely, the right to see”. The “right to see” is treated as the “interest” which has been “granted”. It is clear that the learned judge used the words “grant” in a sense very different from that in which it was used in Wood v Leadbitter. It was there used in relation to interests in land which were, if they existed at all, clearly proprietary interests. The right to see a spectacle cannot, in the ordinary sense of legal language, be regarded as a proprietary interest. Fifty thousand people who pay to see a football match do not obtain fifty thousand interests in the football ground. A contrary view produces results which may fairly be described as remarkable. The Statute of Frauds would be applicable. A person who bought a reserved seat might be held to have what could be called “a term of hours” in the seat. The “interest” of persons without reserved seats would, if regarded as proprietary interests, be more than difficult to describe. If the interests were held to be incorporeal hereditaments they would be quite new to the law notwithstanding the strongly established principle of Keppell v Bailey (1).The feat would have been achieved of creating an easement in gross-an easement with a servient tenement, but without any dominant tenement. There is nothing in the majority judgments in Hurst’s Case (1915) 1 KB 1 to show that these consequences were appreciated when the case was decided. For the reasons mentioned, I cannot regard the transaction of buying a ticket for an entertainment as creating anything more than a contractual right in the buyer against the seller-a right to have the contract performed. For the breach of such a right there is a remedy in damages, but the remedies applicable to the protection of proprietary rights are not legally (or equitably) appropriate in such a case. There is, strictly, no grant of any interest. What is created is something quite different, namely, contractual rights and obligations. In Wells v Kingston-upon-Hull (1875) LR 10 CP 402 Lord Coleridge CJ pointed out the difference between the creation of a proprietary interest in land by a contract relating to the possession or enjoyment of land and the creation of a contractual right to use land under conditions, the owner of land retaining possession and all rights over it. In that case a dock was “let” to a ship-owner for the purpose of repairing a ship, but it was held that no interest in land was created (See also Frank Warr & Co Ltd v London County Council (1904) 1 KB 713; JC Williamson Ltd v Lukey and Mulholland (1931) 45 CLR 282; Commissioner of Stamp Duties (NSW) v Yeend (1929) 43 CLR 235 – cases of rights to sell refreshments in a theatre or on a racecourse). In my opinion, the first ground upon which Hurst’s Case was decided (that there was in that case a licence coupled with an interest) cannot be supported. The second ground of the decision in Hurst’s Case is based upon the opinion that the plaintiff in Wood v Leadbitter (1845) 13 M & W 838; 153 ER 351 failed because he did not have a grant under seal of the right which he claimed. It is true that the absence of a seal was a complete reply, in an action at [1.120]

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Cowell v Rosehill Racecourse Co Ltd cont. law, to the contention of the plaintiff that he had an interest in the land upon which a race meeting was being held. But in fact the presence of a seal would not have assisted the plaintiff to establish the impossible proposition that he had an easement in gross. It is true that, as the majority judgments in Hurst’s Case (1915) 1 KB 1 state, a grant of an interest in land need not, in order to be effective in a court of equity, be made by deed, and that, since the Judicature Act, this rule is enforced in all divisions of the High Court in England (Walsh v Lonsdale (1882) 21 Ch D 9). But this proposition does not justify the assertion that interests in land can, since the Judicature Act, be created by simple contract even though, before that Act, they were of such a character that they could not be created by deed as interests in land. … If however, the legal position is as stated in Hurst’s Case (1915) 1 KB 1, it is impossible for anyone (except possibly a constable) to remove any of the persons, either for the safety of the audience as a whole or in order to secure the observance of the law, without subjecting himself to the possibility of numerous actions for assault. It is doubtful whether such consequences were realised in Hurst’s Case. On the other hand it might be said that there is an implied condition that the licence to each member of the audience might be revoked in the interests of the safety of the audience or in order to secure the due observance of the law or for some other lawful reason. Such a view really constructs or invents a complicated contract between the parties and it would raise new and rather difficult questions. Why, for example, should A be asked to leave the building rather than B? Would it be left to the judgment of the controller of the building to determine how many persons should be asked to leave? In other cases it might be sought to avoid what would be described as an unreasonable extension of Hurst’s Case by saying that the facts show that the parties intended that the licence should be revocable in certain conditions. I refer again to the case of a dismissed servant. Here, it appears to me, it is difficult to suggest in explicit terms an appropriate condition. It would be necessary to attach to the contract an implied condition that the employer might revoke the implied licence to come upon his premises if at any time he should determine the contract of employment even though he did so wrongfully. Such a view appears to me to be an unreal method of dealing with the position. A much more realistic approach is provided by the application of the simple principle of Wood v Leadbitter (1845) 13 M & W 838; 153 ER 351, namely, that no “grant” of any proprietary right, that is, of any jus in rem, has been made to the plaintiff. He has simply obtained a contractual right which is enforceable in personam by an action for damages. The denial of this principle will create more difficulties than are thought to be involved in its continued assertion. … DIXON J: A licence which is not coupled with or granted in aid of an interest is revocable at law. It operates as a bare permission to do what would otherwise be an invasion of the licensor’s rights. If the permission is terminated, further continuance of the acts it authorised becomes wrongful. A licensee does not become a trespasser until he has received notice that the licence is countermanded and until a reasonable time has elapsed in which he may withdraw from the land and remove whatever property he has brought in pursuance of the licence (Cornish v Stubbs (1870) LR 5 CP 334). But, if he then refuse to leave the premises, he cannot complain of his forcible removal. “A licence under seal (provided it be a mere licence) is as revocable as a licence by parol” (per Alderson B, Wood v Leadbitter (1845) 13 M & W at p 845; 153 ER, at p 354). Further, a licence is revocable at law notwithstanding an express contract not to revoke it. By revoking it, the licensor commits a breach of contract exposing him to an action of damages ex contractu. But the licensee cannot further avail himself of the licence and the licensor is not precluded in an action of tort from relying upon the termination of the licence (Wood v Leadbitter (1845) 13 M & W 838; 153 ER 351; 66 [1.120]

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Cowell v Rosehill Racecourse Co Ltd cont. Taplin v Florence (1851) 10 CB 744; 138 ER 294). This is in accordance with the general rule of the common law that a landowner’s possessory rights cannot be renounced or altered by mere contract. The rights continue to subsist notwithstanding the contract, which operates only to impose obligations and not otherwise to prevent the exercise of rights arising from property. … The opportunity of witnessing a performance is not an interest in property; it is not a tangible thing to be taken away from the land or out of the soil. It is no more than a personal advantage arising from presence at the place where the licence, while unrevoked, authorised the plaintiff to go and remain. There can, I think, be no doubt that at law the plaintiff could not recover in tort in respect of his forcible expulsion. His remedy in contract does not include damages for the assault. As it was the plaintiff’s legal duty to leave the premises after notice that his licence to remain was withdrawn, and as the assault was the lawful consequence of his failure to do so, the assault could hardly be considered a reasonable and probable consequence of the defendant’s breach of contract in withdrawing the licence. Perhaps it does not follow that in no circumstances can anything beyond repayment of the price of admission be recovered ex contractu. But if there be any cause for dissatisfaction with the common law rule, it arises less from the substance of the rule than from the measure of damages allowed in an action of contract (See Addis v Gramophone Co Ltd (1909) AC 488). For the assault, the defendant is under no liability at common law. … I am unable to believe that any equity exists as a result of which the plaintiff could meet the defendant’s justification. This opinion I base upon the substantial ground that a patron of a public amusement who pays for admission obtains by the contract so formed and by acting on the licence it imports no equity against the subsequent revocation of the licence and the exercise by the proprietor of his common law right of expelling the patron. The rights conferred upon the plaintiff by the contract possess none of the characteristics which bring legal rights within the protection of equitable remedies, and the position of the plaintiff at law gives him no title under any recognizable equitable principle to relief against the exercise by the defendant of his legal rights. No right of a proprietary nature is given. The contract is not of a kind which courts of equity have ever enforced specifically. It is not an attempt to confer a right by parol agreement which at law might have been effectually granted by a deed. There is no clear negative stipulation the breach of which would be restrained by injunction. On the other hand, there is a fugitive or ephemeral purpose of pleasure, mutual undertakings, mostly implied, affecting the behaviour of the parties, and a complete absence of material interest. The purpose is not to enjoy the amenities forming part of the land, but to witness the races and, perhaps, to use the facilities provided for adding to the pleasure and excitement of the spectacle. Without entering upon an examination of the legal relations to their patrons of the proprietors of a racecourse, it may be assumed that the charge for admission involves some obligations on their part. The racegoer, on his side, is subject to an implied condition that he will behave in an orderly manner and do nothing to hinder or obstruct the proceedings. The implication that the licence to remain upon the course will not be revoked is subject to many conditions. If it is found necessary to suspend the proceeding owing to weather, to the disorderly conduct of a crowd, to some sudden public emergency, or to some other unforeseen event, the contractual right to remain upon the course will be brought to a premature end. If the individual racegoer behaves in a disorderly, insulting, or objectionable manner, he may be expelled notwithstanding that he has paid for his admission. The nature of such a contract takes it outside the scope of the equitable doctrines regulating the application of the remedies of specific performance or injunction. … [1.120]

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Cowell v Rosehill Racecourse Co Ltd cont. EVATT J: But the question remains, was Hurst’s Case (1915) 1 KB 1 correctly decided? There are several aspects from which the decision may be regarded. First, it is critical of the strictly legal position laid down in Wood v Leadbitter (1845) 13 M & W 838; 153 ER 351. And certainly the judgment of Dodderidge J in Webb v Paternoster (1619) 2 Rolle 143 at 152; 81 ER 713 at 719 (quoted Holdsworth’s History of English Law, vol vii, p 328) contains a far more valuable analysis of licences than was given in Wood v Leadbitter. The Court of Appeal in 1915 thought it somewhat extraordinary that the rights and liabilities created by a contract to admit to an entertainment conducted publicly and for the profit of the entrepreneur, and perhaps the education or pleasure of the patron, could be treated, even by a court of law, as assimilable to a mere dispensation to the theatre patron to commit what otherwise would be a trespass on land. In actual fact, the rights and liabilities are not so assimilable and, in its modern developments, even the common law has recognised the inadequacy of the “bare licence” theory as a description of the relationship between the parties (Cox v Coulson (1916) 2 KB 177). The main part of the reasoning in Wood v Leadbitter (1845) 13 M & W 838; 153 ER 351, was based on the well-known judgment of Vaughan CJ in Thomas v Sorrell (1674) Vaughan 330, at p 351, distinguishing there between licences or “dispensations” (eg, to come into a man’s house), and licences coupled with a grant of property (eg, a licence to hunt and carry away the deer). It must be conceded that the “grants” intended to be referred to in Wood v Leadbitter (a licence “coupled with a grant”) was a grant of some ascertainable property which is capable of being granted (Holdsworth’s History of English Law, vol VII., p 328). It may therefore be admitted that Lord Wrenbury went too far in assimilating the right to view an entertainment with the grant of a proprietary right in or over land or chattels. But, in my opinion, as an application of equitable principles to the complex relationship between entrepreneur and patron, Hurst’s Case (1915) 1 KB 1 is a convincing decision. As early as 1901, Cozens Hardy MR suggested that Wood v Leadbitter might be of “very doubtful” validity if equitable principles were to be applied to its facts (Lowe v Adams (1901) 2 Ch, at p 600). From the point of view of equitable principles, the essence of the judgment of Buckley LJ is to be found in his references to Lord Parker’s judgment in James Jones & Sons Ltd v Tankerville (Earl) (1909) 2 Ch 440, and to the passage on page 10 commencing: “There is another way in which the matter may be put”. Buckley LJ’s view was (a) that a contract giving a licence to enter and remain on land solely for the propose of viewing an entertainment should be regarded by a court of equity as not subject to arbitrary revocation during the entertainment by a party to the contract in his capacity as occupier of the land, and (b) that a court of equity should give efficacy to a contract not to exercise the legal right of revocation of the licence, by restraining the occupier, either from exercising such legal right, or, at any rate, from subsequently setting up to his own advantage his own breach of contract and his own attempted revocation of the licence. It is true that the observations of Lord Parker quoted by Buckley LJ were not made in a case precisely analogous to that of Hurst’s Case (1915) 1 KB 1, because a recognised proprietary right, ie, a “grant” was under consideration in James Jones & Sons Ltd v Tankerville (Earl) (1909) 2 Ch 440. But Buckley LJ clearly thought that a court of equity should intervene in a case like Hurst’s Case by restraining the revocation of a licence in breach of a contract. No doubt, Buckley LJ dwelt upon that part of the judgment in Wood v Leadbitter (1845) 13 M & W 838; 153 ER 351 which emphasised the absence of an instrument under seal; and he indicated that pending the bringing into existence of the necessary deed a court of equity would make short work of such an objection. But, in so doing, Buckley LJ was answering the reasoning of Alderson B so far as it asserted or assumed that the plaintiff in Wood v Leadbitter would have succeeded if he had possessed an instrument under seal giving him the right to view the race. It is a fair comment that the critics of Hurst’s Case can hardly be allowed to set up as against Buckley LJ any error of pure law to be discovered in Wood v Leadbitter. 68

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Cowell v Rosehill Racecourse Co Ltd cont. But a broad and just principle of equity appears from the judgments of Buckley LJ and Kennedy LJ to the effect that, although a court of law will still treat the transaction between entertainment proprietor and patron as creating only a revocable licence, a court of equity should regard the licence as irrevocable in all proceedings in which equitable principles have to be recognised. A consequential rule is that a defence to an action of assault that the licence had been duly revoked by the proprietor, though good at law, would be contrary to the equitable principle of irrevocability of licence and the equitable principle should prevail so as to avoid the defence. It was the contrary view which, according to Kennedy LJ, led to “an astonishing conclusion” (at 12). He also regarded the contract as creating “an irrevocable right to remain until the conclusion of the performance” (at 13). I hope it is superfluous to add that neither Buckley LJ, nor Kennedy LJ, was unaware of the fact that the right to see a theatrical performance was not a proprietary right in the nature of an easement. Indeed, Kennedy LJ said that the plaintiff’s “interest”, “whether you call it an easement or not, is an interest which I can now acquire in equity by parol” (at 14). And he referred to an important passage in Pollock on Torts (9th ed, 1912), at p 390, which I mention below. Further, the dissenting judgment of Phillimore LJ is of great significance, for he is not unwilling to concede (at 18) that equity would give specific performance of the contract to see the entertainment. The main difficulty of Phillimore LJ was that, assuming that equity would intervene, the plaintiff in equity could not necessarily be regarded as having already occupied the legal position which springs into existence only after he obtains specific performance. In other words, although the licence would be regarded in equity as irrevocable, still, until a court of equity actually pronounced its order, the existing legal relationship between the parties should be deemed to continue. In support of this view Phillimore LJ adopted Pollock’s suggestion in the passage mentioned above, that the plaintiff might have obtained an injunction, and so have been restored to the enjoyment of his licence, but that, in the meantime, he should be deemed a trespasser. With respect, it is difficult to appreciate the force of the difficulty which alone seemed to prevent Phillimore LJ from concurring. The plaintiff in Hurst’s Case (1915) 1 KB 1 did not need to invoke the principle of Walsh v Lonsdale (1882) 21 Ch D 9, for the assumption of Hurst’s Case was that no estate or interest in land was intended to be created by the contract. But equity’s intervention in order to prevent a party from exercising his legal rights in breach of a contractual obligation is based on broader grounds than the principle of Walsh v Lonsdale (1882) 21 Ch D 9. If, as Phillimore LJ was prepared to admit, a court of equity would have restrained the revocation of Hurst’s licence, it could hardly treat the defendant as having improved his position at law solely because, in the nature of things, Hurst was unable to approach a court of equity before his forcible removal from the theatre. In other words, if a court of equity regarded the licence as irrevocable, why should it allow the wrongdoer, by subsequently saying “I revoked it,” to obtain an advantage at law. This view subsequently seemed to commend itself to Sir F Pollock, who said: And is it now possible for a court having equitable as well as legal jurisdiction to treat as rightful in any sense an expulsion which a court of equity would have restrained if a motion could have been made in time? (Law Quarterly Review, vol 31, p 9; cf p 221.) I think the fallacy in the criticism of Hurst’s Case (1915) 1 KB 1 lies in the continuous insistence upon discovering a proprietary right as a condition of equitable intervention. Sir JC Miles, whose criticisms of the decision in Hurst’s Case have been little more than re-echoed by the later commentators, seemed mainly concerned with “the purely legal grounds of the decision” (Law Quarterly Review (1915), vol 31, pp 219-221), and was not so ready to deny its validity as an extension of equitable principles; nor did he seem to consider the equitable question as affected in any way by the supposed difficulty upon which Phillimore LJ really based his dissent. As a Canadian commentator has recently said, in relation to the theory that a strict “property” interest must be the foundation of the intervention of equitable jurisdiction: [1.120]

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Cowell v Rosehill Racecourse Co Ltd cont. the danger in the application of the limitation lies in the circumstance that unenlightened courts are apt to apply it as a limitation of their jurisdiction, except in orthodox property interest cases, even though the situation is one to which the injunctive method is peculiarly appropriate (Canadian Bar Review, vol 10, p 175). In my opinion, the appeal should be allowed, and judgment entered for the plaintiff on the demurrer. Starke and McTiernan agreed with Latham CJ and Dixon J.

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Notes

1. The judgments in this case correctly point out that much unnecessary muddying of the waters has occurred because of reference to the impact of the Judicature Acts. The significance of the bringing together of legal and equitable rules is that the formal requirements for the creation of a legal proprietary interest (in general terms the execution of a deed) did not apply to the creation of an equitable proprietary interest (writing would suffice and the doctrine of part performance might overcome the absence of any writing). But the formality rules only applied to the creation of proprietary interests. 2. Evatt J rightly moves the focus of the decision to an analysis of the remedies of the plaintiff for breach of contract and particularly the application of equitable remedies. Today there is little doubt that equitable remedies for breach of contract are not confined to contracts for the sale of land. More contentious is the treatment of the wronged party prior to adjudication. Early contract theory, particularly in the writings of Oliver Wendell Holmes, asserted that a contacting party had the option of performing or paying damages; see Gilmore, The Death of Contract (1974). 3. Some reference is made to conditions applicable to the permission to be on the land. For instance, it would be difficult to argue that the owners of the race course do not have the right to eject everyone in the event of a bomb scare. Similarly a racegoer who was abusive to others should be subject to removal. However could not such conditions be implied as limitations on the permission rather than as an indication that the owners have a general discretion to remove anyone?

Heidke v Sydney City Council [1.130] Heidke v Sydney City Council (1952) 52 SR (NSW) 143 Supreme Court of New South Wales HARDIE AJ: Counsel for the defendant has also submitted that there was no contract in fact made in this case. The argument in effect means this, that the granting of licences or permits by councils are in essence administrative acts creating no contractual rights or obligations. I think, having regard to the correspondence between the parties that preceded the payment to the council of the moneys for the hire of the Jubilee Oval and the other three ovals, that the parties intended to enter into a contract and that they did so. Counsel for the defendant also claimed that, if a contract was made, it was subject to the implied term that the council could at any time cancel or revoke the licence created and, in particular, that it could cancel or revoke it at any time prior to the date on which the oval was to be available for use by the association. 70 [1.125]

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Heidke v Sydney City Council cont. I think that, in the present case, the contract was not subject to any such terms. I am satisfied that, when the council wrote to the Sports Organiser of the Youth Carnival for Peace and Friendship on 17th January, 1952, it was careful to specify any condition which it was desirous of incorporating into the contract which it was apparent the association was contemplating making with the council. In this connection, I would observe that, when the association wrote to the council on 7th December, 1951, it asked the council not only what grounds under its control would be available during the period 15th to 23rd March, but also enquired as to the cost of hiring the grounds, and any regulations governing their use. When the council replied, it specified the grounds and dates available, the charges that the council would make for the use of the grounds, and went on to state that those charges were payable in advance but were “refundable if the oval is unfit for play”. No other conditions were stated in that letter. That means, in my view, that, if the oval was unfit for play, the money would be refundable and the association would not be entitled to the use of the oval. In that event, of course, the licence would be revocable. That letter is, to my way of thinking, inconsistent with the incorporation into this contract of any such condition as counsel for the defendant has relied upon. Counsel for the defendant has pressed upon me a very powerful argument based upon a number of decisions to which he has referred me, that I have no jurisdiction to grant any injunction to protect or safeguard the rights of the association under the contracts, which I have held were made, and which I have held the council had power to make. I do not propose to refer to the cases on the point in detail; he relied particularly upon two decisions of the High Court, JC Williamson Ltd v Lukey (1931) 45 CLR 282; 4 Austin Digest 554; and Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605; 27 Austin Digest 417. He also placed consider-able reliance upon passages in the judgment of Goddard LJ in Thompson v Park (1944) KB 408 at 410, 412. One branch of this argument was that in no case can equitable relief be granted in aid of a bare licence to go upon or use or enjoy land, ie, where the licence is not coupled with some grant. I concede that some of the dicta in the cases might tend to support that broad proposition, but any such dicta are obiter only; so far as I am aware, there are no decisions of the courts which would constrain me to hold that under no circumstances can a personal licence to go upon land be enforced by a court of equity, either by injunction or by specific performance. There is no doubt that in many cases, where a licence to go upon land is granted, equitable remedies are not available. In such cases, the licence is part and parcel of an agreement which courts of equity will not enforce directly or indirectly – agreements under which employees have rights to use and occupy premises of the employer; agreements under which building contractors have a right to go on land and build; agreements under which share-farmers have a right to use the land of the owner; and agreements under which boarders are entitled to use premises of the owner of the boarding establishment. In those cases, equitable remedies are not available, mainly for the reason that they are contracts which involve a substantial element of personal service and thus are not susceptible of direct or indirect enforcement by a court of equity. I am of the opinion that a licence such as I am satisfied was granted by the council to the association in respect of Jubilee Oval is one that a court of equity has jurisdiction to enforce. In my view, the first question one has to ask oneself is whether the damage suffered by the association as a result of the repudiation by the council of the contract which created the licence could be adequately compensated by damages. On the uncontradicted evidence in this case the association would suffer substantial damage, for which pecuniary or monetary compensation would not be an adequate remedy. That, of course, does not necessarily mean that an injunction should be granted. There is the further question then as to whether the granting of an injunction would be tantamount to ordering specific performance of an agreement which a court of equity could not effectively and with justice to the parties enforce. Here, as I view this matter, the obligation of the hirer of this oval was to pay a sum [1.130]

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Heidke v Sydney City Council cont. of money. That obligation has been discharged. The consideration on that side is executed, and I know of no principle of law which denies the equitable remedy of injunction in a case such as the present. I do not propose to refer to all the authorities on the point, but I will merely quote from the judgment of Lord Uthwatt in Wintergarden Theatre (London) Ltd v Millennium Productions Ltd (1948) AC 173 at 202 an extract on which Mr St John relied. Lord Uthwatt at that page said, and I think this is very applicable in this case: The settled practice of the courts of equity is to do what they can by an injunction to preserve the sanctity of a bargain. To my mind, as at present advised, a licensee who has refused to accept the wrongful repudiation of the bargain which is involved in an unauthorised revocation of the licence is as much entitled to the protection of an injunction as a licensee who has not received any notice of revocation. And he concluded that paragraph by saying: “In a court of equity, wrongful acts are no passport to favour”. I think that is very appropriate to the present case. I am of the opinion that this is a case where an equity court has jurisdiction to grant injunctions and, although, as Mr Myers has put to me, it is a discretionary remedy, I think I should exercise my discretion in favour of the plaintiff.

Forbes v New South Wales Trotting Club Ltd [1.135] Forbes v New South Wales Trotting Club Ltd (1979) 25 ALR 1 High Court of Australia GIBBS J: Alternatively, it was argued on behalf of the appellant that a contract came into being when the appellant obtained admission to Harold Park on 15th January 1976. By r 5 of the Rules of Trotting the rules are stated to be binding on, inter alios-“(j) All persons who shall apply for admission to or attend any course on which any race meeting is held”. When the appellant paid his money and was allowed to enter the course no doubt a contract was made between himself and the respondent. Since the appellant had been given notice by letter that the grant of a licence to enter the course would be on condition that he agreed to be bound by the Rules of Trotting, I think it may be concluded that the contract that arose when the appellant paid the price of admission and was admitted to the racecourse at Harold Park did include as some of its terms such of the provisions of the Rules of Trotting as were applicable to the situation. It is a short step to hold that the contract properly understood contained an implied stipulation by the respondent not to revoke the appellant’s licence except in accordance with the Rules of Trotting. Whether such a negative stipulation would be enforceable by injunction notwithstanding Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605 is a question which need not be considered. However, it is difficult to regard the contract which came into existence in those circumstances as one which contained an implied term that the appellant would be granted admission on any future occasion on which he might seek it unless he was properly excluded under the rules. I am therefore not persuaded that the appellant, by attending the course in the past, acquired any contractual right as against the respondent to enforce the Rules of Trotting in future. I do not consider what the situation would be if the appellant applied

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Forbes v New South Wales Trotting Club Ltd cont. for admission to a course and was refused. Whether any contract would then come into existence which would include a term that the appellant should be admitted to the course unless he was properly excluded under the rules is a question which might depend on the exact circumstances and should not be answered hypothetically. [Barwick CJ, Stephen, Murphy and Aicken JJ also touched on the issue inconclusively.]

Ashburn Anstald v Arnold [1.140] Ashburn Anstald v Arnold [1988] 2 WLR 706 English Court of Appeal FOX, NEILL AND BINGHAM LJJ: … If, as we have concluded, Arnold & Co is a tenant, it follows that the plaintiff holds the land subject to the tenancy. That is sufficient to dispose of the claim, as the action is for possession. Since, however, we have heard full argument on the case, we will consider the position on the basis that we are wrong, and no tenancy was created. It is Arnold & Co’s case that even if the 1973 agreement created no tenancy after 28 February 1973, so that its occupancy thereafter is that of a contractual licensee only, its rights are nevertheless binding upon a purchaser for value with notice of the licence. Lord Templeman in Street v Mountford [1985] AC 809, 814 said: “A licence in connection with land while entitling the licensee to use the land for the purposes authorised by the licence does not create an estate in the land”. That was not challenged on behalf of Arnold & Co, but it was said that a contractual licence does give rise to an interest (as opposed to an estate) in the land; we must assume for this purpose that the rights are of sufficiently certain duration to be capable of subsisting as an interest in land. If they are not, the point does not arise. The question then is whether Arnold & Co’s proposition is correct in law. Until comparatively recently it would, we think have been rejected. As long ago as 1674, in Thomas v Sorrell (1674) Vaug 330, 351, Vaughan CJ said: “A dispensation or licence properly passeth no interest, nor alters or transfers property in any thing, but only makes an action lawful, which without it had been unlawful”. A number of cases in this century support that view. Daly v Edwardes (1900) 83 LT 548 was concerned with “front of house” rights in a theatre. In 1894 Edwardes granted to Daly a licence of two theatres for a term of years. The lease contained a covenant by the lessee not, inter alia, to part with any estate or interest in the premises. Daly granted to Warr: “the free and exclusive licence or right to the use of the refreshment rooms and bars in the theatre together with the free right of access thereto”. The lessor claimed that this was a breach of the covenant against disposing of any estate or interest in the premises. That claim failed. Rigby LJ said, at 551: On the whole, I think that the proper conclusion is that Frank Warr and Co took no estate or interest in land, but that they were entitled for all reasonable purposes, to consider themselves as having an exclusive licence to provide refreshments and all that follows from that privilege, and nothing else. Vaughan Williams LJ said, at 551, that the agreement was “really a grant of a privilege and licence merely masquerading as a lease”. The case went to the House of Lords as Edwardes v Barrington (1901) 85 LT 650, and the decision of the Court of Appeal was affirmed. In Frank Warr & Co Ltd v London County Council [1904] 1 KB 713, the London County Council compulsorily acquired the Globe Theatre. At the time of the acquisition Warr had front of house rights [1.140]

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Ashburn Anstald v Arnold cont. at the theatre under a subsisting agreement with the lessee. Compensa-tion was only payable to persons having an interest in the land acquired. The claim failed. Collins MR said, at 722: Do those parts of the agreement amount merely to a licence properly so called, or to a grant of an interest in, or something arising out of, the land? To my mind it is clear that they create nothing more than a licence properly so called. These cases, it seems to us, clearly proceed on the basis that a contractual licence creates no interest in land. The next case is King v David Allen and Sons (Billposting) Ltd [1916] 2 AC 54. King owned premises in Dublin. David Allen had for many years under an agreement between the predecessors of King and David Allen, enjoyed the right to exhibit posters on the wall of the premises. King wished to let the premises to a third party. David Allen had no objection provided its rights were preserved. In July 1913 King and David Allen agreed that David Allen should have exclusive permission to fix posters to the flank wall of a cinema which it was proposed to build on the site. In August 1913 King agreed with F, a trustee for a company to be formed, that a lease should be granted to the company. King was to assign to F, as a trustee for the company, his interest in the 1913 agreement, and F agreed that the company would accept the lease and ratify the 1913 agreement. The company, when formed, duly did so. The cinema was built. The July agreement was not referred to in the lease and King did not assign his interest under that agreement to the company. David Allen attempted to post advertisements on the flank wall but the company, despite opposition from King (a director), prevented it. David Allen then sued King alleging that he was in breach of the July agreement by putting it out of his power to perform it. The claim succeeded. The company was not a party to the action but the effect of the licence vis-a-vis the company was in issue because King would not have been liable to David Allen in damages had the licence which he agreed to grant been binding on the company, which had notice of it. The House of Lords regarded the contract as creating nothing but a personal obligation. Earl Loreburn said, at 62: Well, if the agreement of 1 July, which purports to be on the face of it a licence, was equivalent to creating an incorporeal hereditament or a sufficient interest in land, Mr King did not break his contract in making the lease, and would not be responsible for any trespasses that were committed by his licensees. But we must look at the document itself, and it seems to me that it does not create any interest in the land at all; it merely amounts to a promise on the part of Mr King that he would allow the other party to the contract to use the wall for advertising purposes, and there was an implied undertaking that he would not disable himself from carrying out his contract. Lord Buckmaster LC said, at 59-60: There are two circumstances to which attention has been quite properly called by the appellant’s counsel, which are no doubt important in considering what the agreement effected. The first is the fact of the rent reserved, and the next that there is a term of years granted and that arrangements are introduced into the agreement to prevent other people having competing rights with Messrs David Allen and Sons upon this wall. Those considerations do not, in my opinion, necessarily conflict with the view that this is nothing but a licence-a licence for a fixed term of years, but a licence which creates no estate or interest in the land …. We are unable to reconcile the approach of the House of Lords in King v David Allen with the submission, on behalf of Arnold & Co, that a mere contractual licence is an interest in land binding on a purchaser with notice. The two front of house rights cases to which we have referred are to the same effect. The next case of consequence is Clore v Theatrical Properties Ltd [1936] 3 All ER 483, which was again concerned with front of house rights. The agreement provided: 74

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Ashburn Anstald v Arnold cont. the lessor does hereby demise and grant unto the lessee the free and exclusive use of all the refreshment rooms … of the theatre … for the purpose only of the supply to and accommodation of the visitors to the theatre and for no other purpose …. The definition clause provided that the terms “lessor” and “lessee” should include their executors, administrators and assigns. The assignee of the lessor sought to prevent an assignee of the lessee from exercising any of the rights under the agreement. It was held that the agreement was not a lease but a licence, and was not binding upon a third party. The court, as we read the judgments, regarded the case as falling within the examples of Daly v Edwards, 83 LT 548 and Frank Warr & Co Ltd v London County Council [1904] 1 KB 713. The licensee had sought to rely upon De Mattos v Gibson (1858) 4 De G & J 276 and Lord Strathcona Steamship Co Ltd v Dominion Coal Co Ltd [1926] AC 108. That was not accepted. Lord Wright MR regarded these authorities as confined to charter parties and said, at p 491: “I do not think that a personal covenant as in the present case can be binding on a third party with notice …”. Down to this point we do not think that there is any serious doubt as to the law. A mere contractual licence to occupy land is not binding on a purchaser of the land even though he has notice of the licence. We come now to a case which is of central importance on the present issue. That is Errington v Errington and Woods [1952] 1 KB 290. A father, wishing to provide a home for his son who had recently married, bought a house with the help of a building society mortgage. He paid a lump sum towards the purchase price, the remainder of which was provided by the building society’s loan. The loan was repayable by instalments. He retained the conveyance in his own name and paid the rates, but he promised that if the son and daughter-in-law continued in occupation and duly paid all the instalments, he would then transfer the property to them. The father died and by his will left the house to his widow. Up to that time the son and his wife had lived in the house and paid the instalments. The son then separated from his wife and left the house. The daughter-in-law continued to pay the mortgage instalments. The widow then sought possession of the house from the daughter-in-law. The county court judge dismissed the action. He held that the daughter-in-law was a tenant at will and that the claim against her was statute-barred. That reasoning was rejected by the Court of Appeal, though the actual decision of the judge was upheld. Denning LJ, whose reasons for dismissing the appeal were concurred in by Somervell LJ, said, at 298-299: it seems to me that, although the couple had exclusive possession of the house, there was clearly no relationship of landlord and tenant. They were not tenants at will but licensees. They had a mere personal privilege to remain there, with no right to assign or sub-let. They were, however, not bare licensees. They were licensees with a contractual right to remain. As such they have no right at law to remain, but only in equity, and equitable rights now prevail. I confess, however, that it has taken the courts some time to reach this position. At common law a licence was always revocable at will, notwith-standing a contract to the contrary: Wood v Leadbitter (1845) 13 M & W 838. The remedy for a breach of the contract was only in damages. That was the view generally held until a few years ago: see, for instance, what was said in Booker v Palmer [1942] 2 All ER 674 at 677 and Thompson v Park [1944] KB 408 at 410. The rule has, however, been altered owing to the interposition of equity. Law and equity have been fused for nearly 80 years, and since 1948 it has been clear that, as a result of the fusion, a licensor will not be permitted to eject a licensee in breach of a contract to allow him to remain: see Winter Garden Theatre (London) Ltd v Millennium Productions Ltd [1946] 1 All ER 678 at 680, per Lord Greene, and in the House of Lords per Lord Simon; nor in breach of a promise on which the licensee has acted, even though he gave no value for it: see Foster v Robinson [1951] 1 KB 149 at 156, where Sir Raymond Evershed MR said that as a result of the oral arrangement to let the man stay, he was entitled as licensee to occupy the premises without any payment of rent for the rest of his days. This infusion of equity means that contractual licences now have a force and validity of their own and cannot be revoked in [1.140]

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Ashburn Anstald v Arnold cont. breach of the contract. Neither the licensor nor anyone who claims through him can disregard the contract except a purchaser for value without notice. It is not in doubt that the actual decision was correct. It could be justified on one of three grounds. (i) There was a contract to convey the house on completion of the payments giving rise to an equitable interest in the form of an estate contract which would be binding on the widow: see Megarry & Wade, The Law of Real Property, 5th ed (1984), p 806. The widow was not a purchaser for value. (ii) The daughter-in-law had changed her position in reliance upon a representation binding on the widow as a privy of the representor: see Spencer Bower and Turner, Estoppel by Representation, 3rd ed (1977), p 123. (iii) The payment of the instalments by the son or the daughter-in-law gave rise to direct proprietary interests by way of constructive trust, though it is true that, until Gissing v Gissing [1971] AC 886, the law relating to constructive trusts in this field was not much considered. Accordingly, it does not appear to have been necessary, in order to produce a just result, to have accepted the broad principle stated, at 299, in the passage which we have quoted, that “Neither the licensor nor anyone who claims through him can disregard the contract except a purchaser for value without notice”. That statement itself is not supported by any citation of authority, and indeed we do not think it could have been supported on the authorities. None of the cases prior to Errington v Errington and Woods to which we have referred, except Thomas v Sorrell, Vaugh 330, is mentioned in the judgments and it does not appear that any was cited. The decision of the House of Lords in Winter Gardens Theatre (London) Ltd v Millennium Productions Ltd [1948] AC 173 does not advance the matter. It was the first occasion on which a licensee was held entitled to an injunction restraining the licensor from revoking a licence in breach of contract. The case was concerned with contract only. In our view it is not an authority for the proposition that a contractual licence creates an interest in land capable of binding third parties. National Provincial Bank Ltd v Hastings Car Mart Ltd [1965] AC 1175 was the case in which the House of Lords, reversing the majority decision of the Court of Appeal [1964] Ch 665, rejected the deserted wife’s equity. Russell LJ, who dissented in the Court of Appeal, stated, at 696-697: It is therefore necessary to consider what is the law in connection with title to unregistered land relating to rights such as those now in question. For this purpose, I consider that the deserted wife’s right cannot be greater than that of a person in occupation under a contractual licence from the owner to occupy, which licence is by its terms not revocable for a period, and breach of which would be restrained by injunction against the licensor. What is the position of such a licensee in the case of unregistered land? Has he a right capable of enforcement not only against the licensor but also against a purchaser or mortgagee from the licensor? On authority it seems to me that the answer is that he has not such a right against a purchaser for value even with actual notice of the licence. I do not propose to discuss the question exhaustively. I am content to refer generally to the article on this question on Licences and Third Parties by Professor HWR Wade (68 LQR 337), and the cases there discussed of King v David Allen and Sons (Billposting) Ltd [1916] 2 AC 54 in the House of Lords, and Clore v Theatrical Properties Ltd [1936] 3 All ER 483 in the Court of Appeal, and to add some comments. When the case reached the House of Lords the observations of Russell LJ were not expressly accepted, but nor were they rejected. These cases were the subject of consideration by Goff J in In re Solomon, A Bankrupt, Ex parte Trustees of the Property of the Bankrupt v Solomon [1967] Ch 573. Goff J concluded that the wife in that case was not a contractual licensee, and accordingly he did not have to decide which authority he should follow. But he expressed a preference for the reasoning of Russell LJ in the Hastings Car Mart case [1964] Ch 665 and was hesitant to recognise the existence of a new species of equitable right. 76 [1.140]

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Ashburn Anstald v Arnold cont. It is convenient to pause at this point because, although there are later cases in what may be regarded as this series, there is none in which a contractual licence is held to bind a third party in the absence of a finding that the third party took the land as a constructive trustee. It is therefore appropriate to review how the law stands, or ought to stand, in the absence of such a finding. Young v Bristol Aeroplane Co Ltd [1944] KB 718 establishes the familiar rule that this court is bound to follow its own decisions save that (relevantly to this case) it is entitled and bound to decide which of two conflicting decisions of its own it will follow, and it is bound to refuse to follow a decision of its own which, though not expressly overruled, cannot in its opinion stand with a decision of the House of Lords. It must, we think, be very doubtful whether this court’s decision in Errington v Errington and Woods [1952] 1 KB 290 is consistent with its earlier decisions in Daly v Edwardes, 83 LT 548; Frank Warr & Co v London County Council [1904] 1 KB 713 and Clore v Theatrical Properties Ltd [1936] 3 All ER 483. That decision cannot be said to be in conflict with any later decision of the House of Lords, because the House expressly left the effect of a contractual licence open in the Hastings Car Mart case. But there must be very real doubts whether Errington can be reconciled with the earlier decisions of the House of Lords in Edwardes v Barrington, 85 LT 650, and King v David Allen and Sons (Billposting) Ltd [1916] 2 AC 54. It would seem that we must follow those cases or choose between the two lines of authority. It is not, however, necessary to consider those alternative courses in detail, since in our judgment the House of Lords cases, whether or not as a matter of strict precedent they conclude this question, state the correct principle which we should follow. Our reasons for reaching this conclusion are based upon essentially the same reasons as those given by Russell LJ in the Hastings Car Mart case [1964] Ch 665 at 697 and by Professor Wade in the article, “Licences and Third Parties” (1952) 68 LQR 337, to which Russell LJ refers. Before Errington the law appears to have been clear and well understood. It rested on an important and intelligible distinction between contractual obligations which gave rise to no estate or interest in the land and proprietary rights which, by definition, did. The far-reaching statement of principle in Errington was not supported by authority, not necessary for the decision of the case and per incuriam in the sense that it was made without reference to authorities which, if they would not have compelled, would surely have persuaded the court to adopt a different ratio. Of course, the law must be free to develop. But as a response to problems which had arisen, the Errington rule (without more) was neither practically necessary nor theoretically convincing. By contrast, the finding on appropriate facts of a constructive trust may well be regarded as a beneficial adaptation of old rules to new situations.

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Notes

1. Most of the controversial authorities reviewed in this decision are English. Generally Australian courts have not wavered to the same extent from what might be regarded as the orthodox position that a contractual licence does not create any proprietary interest. The cases with respect to the interest of a deserted wife were similarly not followed in Australia. Australian courts also remained firm in the position that the elements that define a lease and mark out the boundary between a lease and a licence are exclusive possession and duration for a fixed period of time; they have rejected any additional element of an intention to create a lease. They have held that if the parties intend to create what amounts to a lease, it does not matter that they call it something else or seek to deny that it is a lease and a proprietary interest. The English courts used the element of a separate intent as a means to avoid the application of legislative protections for tenants, [1.145]

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such as rent controls, in cases where the courts took it upon themselves to conclude that protection was unwarranted. In turn Australian legislators have avoided the concept of “lease” as, for example, the basis of the application of protection for residential occupants. 2. The consequence of the above decisions is that there is but a limited range of interests in land regarded as proprietary. Those interests are the freehold estates (fee simple, fee tail, life estate), leasehold estates, mortgages and charges, easements, profits a prendre, rentcharges, and (in equity) restrictive covenants. As a result of statute, community and strata titles and the interest of a resident in a retirement village are proprietary in nature. Other rights may be contractual or a permission to be on land (licence) may be conferred without consideration.

REMEDIES Jaggard v Sawyer [1.150] Jaggard v Sawyer [1995] 1 WLR 269 English Court of Appeal SIR THOMAS BINGHAM MR: On 26 January 1993 Judge Jack QC, sitting in the Weymouth County Court, refused the plaintiff, Mrs Jaggard, injunctions to restrain continuing acts of trespass and breaches of covenant and awarded her damages in lieu. The plaintiff says the judge should have granted injunctions. This appeal requires the court to consider the principles on which judges should act when deciding whether to grant injunctions or to award damages in lieu. The judge found the facts very fully in his judgment, which is reported in [1993] 1 EGLR 197, so no more than a brief summary of the facts is called for. In Maiden Newton, in Dorset, there is a road, Bull Lane, which runs very roughly in an east-west direction. Off it to the north is a cul-de-sac known as Ashleigh Avenue. This is about 50 yards long and the roadway (excluding the pathway, where there is one) is about 15 feet wide. The cul-de-sac was developed in about 1959. There were ten houses. Numbers 1 to 4 lined the western side of the close (on the left as viewed from Bull Lane). Numbers 7 to 10 lined the eastern (right-hand) side. At the far (or northern) end of the cul-de-sac were a semi-detached pair of houses numbered 5 and 6. When Ashleigh Avenue was being developed and plots sold, covenants were given and taken in the same terms in each case, so as to bind and confer benefits on all the original owners and their successors against and in favour of each other. The Avenue was a private road, and there was conveyed to each of the original owners not only the numbered plot on which his house was or was to be built but also the area of roadway immediately in front of that plot, up to the centre of the roadway. Two of these standard mutual covenants are in issue in this case, and I quote them: (c) No house or building to be erected on any part of the said land shall be used as or for a hotel tavern clubhouse or for the sale of wines spirits ale or beer (for consumption either on or off the premises) or as a hospital or as a place of amusement or resort or as a caravan site or in any manner calculated or likely to be a nuisance or cause annoyance to the Vendors or adjoining owners or residents of the neighbourhood or in any manner otherwise than as a private residence only and no part of the said land which is unbuilt upon shall be used otherwise than as a private garden.

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Jaggard v Sawyer cont. (d) The Vendors having constructed the said roadway known as Ashleigh Avenue and having laid the sewer therein as aforesaid the Purchasers and their successors in title shall keep the said roadway in good repair to the half width thereof abutting on the property hereby conveyed and consisting of the portion of the said roadway coloured blue on the said plan. In 1980 the plaintiff and her husband (who has since died) bought and moved into 1 Ashleigh Avenue. In May 1987 the defendants, Mr and Mrs Sawyer, bought and moved into No 5, the house at the north-western end of the Avenue. They were a young married couple. Their first child was born in August 1987. Their house had only two bedrooms and they wanted more room. Their first idea was to build on. Then they thought of building a separate house in the garden of No 5. They applied for planning permission in April 1988. But the plaintiff organised a petition to oppose the grant of planning permission, and all but one of the other residents in the Avenue supported her. The petition referred to the fact that the Avenue was a private road for the use of residents of the ten existing houses. Planning permission was refused, apparently because there was not enough room to accommodate a second house on the plot of No 5. The defendants had to think again. An alternative solution presented itself. Immediately to the west of Ashleigh Avenue was 13 Bull Lane. This was a property fronting on Bull Lane. Its garden ran northwards, parallel with Ashleigh Avenue, contiguous with the gardens of 1, 2, 3, 4 and 5 Ashleigh Avenue. The owner of No 13 Bull Lane was willing to sell a plot of land at the far northern end of the garden, abutting on 5 Ashleigh Avenue. The defendants were willing to buy, subject to obtaining planning permission. Their plan was to build a new house, No 5A Ashleigh Avenue, on this plot. They proposed that a strip of land, part of the garden of No 5 Ashleigh Avenue adjoining its boundary with number 4, should be used as a driveway into No 5A, giving it access to Ashleigh Avenue. The defendants applied for planning permission to develop No 5A in this way and it was granted. But not without opposition. The plaintiff and others made clear their objection to the development, based both on the restrictive covenants and the fact that Ashleigh Avenue was a private roadway. These objections did not prevail. The plot of No 5A was duly conveyed to the defendants. Building work began on 14 June 1989. The judge made a number of relevant findings on the period between the grant of planning permission and the completion of the building work. (1)

The defendants made no secret of their intentions. In May 1989 Mr Sawyer visited the plaintiff and told her that he was going ahead and would start building soon.

(2)

On a number of occasions between February and May 1989 Dorset County Council expressed the opinion that Ashleigh Avenue was a public, not a private, road. Not until July 1990 did the county council change their view. But change it they did, and before the judge it was common ground that the road was private, as the plaintiff and other residents had all along contended.

(3)

The defendants were advised that there might be a problem about access. The judge found ([1993] 1 EGLR 197 at 198): Mr Sawyer was aware of the covenants regarding the No 5 land and that he could not build on that land. He does not seem to have appreciated that there might be a problem in using part of the No 5 land as a driveway for No 5A.

And Mr Sawyer was no doubt encouraged by the county council’s view that Ashleigh Avenue was not a private road. (4)

The plaintiff persisted in her view, shared by other residents, that the proposed development of No 5A would be a breach of covenant, entitle the occupier to no right of way over Ashleigh Avenue and involve acts of trespass if the occupier used the Avenue for access. On 13 June [1.150]

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Jaggard v Sawyer cont. 1989 (the day before work began) solicitors instructed by the plaintiff and others made these points to Mr Sawyer at No 5 Ashleigh Avenue and wrote: We must therefore ask you to discontinue forthwith any development or proposed development on you[r] land failing which we will be asked to take proceedings in the appropriate court for an injunction to restrain you from developing the land. On 21 June the same solicitors, acting on behalf of the plaintiff and two other named residents, wrote again, this time to the defendants’ solicitors, emphatically stating that access to No 5A via Ashleigh Avenue would be a trespass and further stating that an interlocutory injunction would be sought if work were not stopped pending application to the court for a declaration. On 4 July 1989 the plaintiff’s solicitors wrote to the defendants’ solicitors again. In this letter reference was made to Bracewell v Appleby [1975] 1 All ER 993, [1975] Ch 408, a case (discussed below) in which damages were awarded in lieu of an injunction, and the letter continued: We are giving further consideration to the possibility of seeking an injunction and will be taking our clients’ instructions as to that, but we do anticipate that in any event we shall be instructed to seek the alternative remedy that we have advised our clients is available to them. This point was repeated in much the same terms in another letter a week later. (5)

No application for interlocutory relief was made to the court by the plaintiff or anyone else. The plaintiff says that she instructed her solicitors to apply for an interlocutory injunction and they did not do so. But it is not suggested that the defendants knew of these instructions.

(6)

To mitigate the nuisance which builders’ traffic would otherwise have caused to the residents of Ashleigh Avenue, the defendants negotiated a temporary arrangement with the owner of an industrial estate lying to the north of the Avenue and adjoining No 5A. This arrangement gave the builders access to the building site without using Ashleigh Avenue. There was some discussion between Mr Sawyer and the owner of the industrial estate about permanent access, but the negotiation was not pursued. Nor, at the trial, was it contended that there was any access to No 5A otherwise than via Ashleigh Avenue, and the judge proceeded on the basis that the only access was via Ashleigh Avenue (see [1993] 1 EGLR 197 at 199).

(7)

In July 1989 a further child was born to the defendants. Living in No 5, they were somewhat cramped.

(8)

Proceedings were issued on 10 August 1989. By then the walls and roof of the new house at No 5A were well advanced.

(9)

The differences between the plaintiff and those who shared her view and the defendants gave rise to much ill feeling.

The building of No 5A was completed in December 1989 at a total cost to the defendants (including the purchase of the land) of just under £76,000. Two months later the defendants sold No 5, reserving access to No 5A, and moved into No 5A. But the atmosphere locally was so bad that in December 1991 they moved out of No 5A and into another house elsewhere. They let No 5A. The action came on for hearing before Judge Jack on 21 May 1992, and he viewed the site before the hearing began. The hearing continued on 22 May and 24 July. On 30 July the judge sent his written judgment to the parties, but he did not formally give judgment until 26 January 1993. The judgment The judge held (and it is no longer in dispute): (1) that Ashleigh Avenue is a private road; (2) that use of the Avenue for access to No 5A involved trespass on land owned by the plaintiff, unless confined to the half of the roadway outside her house which she did not own, and necessarily involved trespass on land owned by other residents of the Avenue who had not chosen to sue; (3) that use of part of the land originally forming part of the garden of No 5 as a driveway giving access to No 5A involved a 80 [1.150]

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Jaggard v Sawyer cont. breach of covenant (c) quoted above; (4) that the court may refuse to grant an injunction sought to restrain continuing trespass and breaches of covenant and may in such cases award damages in lieu under s 50 of the Supreme Court Act 1981. The major question before the judge was whether he should, on the facts and on the authorities, exercise his discretion to grant injunctions or whether he should award damages in lieu. He made findings relevant to his decision, which I should quote ([1993] 1 EGLR 197 at 198-199): It was urged on me that Mr and Mrs Sawyer developed No 5A with the idea of making a quick profit and moving on. I do not accept that. They badly needed a bigger home, Maiden Newton was genuinely convenient for them. No doubt in the atmosphere of the property market of 1988 and 1989 they also hoped that they would do well financially out of the exercise, and it may be that they talked unwisely to some of the residents about that. Mr Sawyer told me that it was still his desire to live in No 5A. In view of what has happened I am more doubtful of that. I reject that allegation that Mr Sawyer simply intended to go ahead regardless of the legal position. I find that he believed that the road was public in reliance on the county surveyor’s firm view. I do not think that he appreciated the problem of the covenant and the driveway through the No 5 land. I think that he might have shown more care in the investigation of his position. I put that down to his inexperience in a complicated situation. At the important stage in 1989 he was receiving legal advice and it was not suggested, let alone established, that the advice was that he had no right to do what he intended. Mrs Jaggard was asked her reasons for bringing the action and for now pressing the case for an injunction. She answered that she felt that Mr Sawyer was proceeding in defiance of the law and she wanted the law upheld. She was concerned about the additional traffic which No 5A brought to Ashleigh Avenue. I note here that there was no evidence suggesting that it was any more than the light traffic one would [expect] from the addition of an 11th house. Mrs Jaggard was concerned also that Mr Sawyer would not be contributing to the maintenance of the road. He has always been willing to do so. I find that the reason which weighs with Mrs Jaggard is that Mr Sawyer should not be permitted to behave as she thinks that he has. In declining to grant injunctions the judge was particularly influenced by: the conduct of the plaintiff and of the defendants and their reasons for acting as they have, the failure of the plaintiff to apply for interlocutory relief, the particular nature of the trespass and of the relevant land, and the fact that if an injunction is granted No 5A will have no access. (See ([1993] 1 EGLR 197 at 202.) Instead of injunctions, he awarded the plaintiff damages. He asked himself what the defendants might reasonably have paid for a right of way and the release of the covenant (see [1993] 1 EGLR 197 at 202-203). He held that the defendants should have been prepared to pay not less that £6,250. Split among the nine residents (excluding those in No 5), that total yielded £694.44 per resident. That is the sum (with interest) which he awarded the plaintiff. The plaintiff challenges the judge’s decision, contending that the judge was wrong in effect to license a continuing invasion of her property rights. She had made her legal position (now held to be the correct legal position) plain from the outset. It was for the defendants to resolve any doubt about the legal position by seeking declaratory relief and the plaintiff should not be penalised for having failed to seek interlocutory relief. The defendants took a chance, and having been held to be in the wrong had no claim on the court’s indulgence. Access to No 5A was, anyway, possible without trespassing on the plaintiff’s land if traffic were confined to the half of the roadway outside the plaintiff’s house which was more distant from it. Properly calculated, the damages in this case were nominal, and that was an additional reason on the authorities for granting injunctions. The defendants support the decision of the judge, essentially for the reasons which he gave. [1.150]

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Jaggard v Sawyer cont. In choosing between these submissions, we have derived the greatest help from the able argument of Mr Drabble, instructed by the Attorney General as an amicus at a time when it was thought the plaintiff would not be represented. The law In considering the legal issues in this case, I should acknowledge at the outset my debt to an illuminating article by Professor Jolowicz “Damages in Equity – A Study of Lord Cairns’ Act” [1975] CLJ 224. Historically, the remedy given by courts of common law was damages. These afforded retrospective compensation for past wrongs. If the wrongs were repeated or continued, a fresh action was needed. Courts of equity, in contrast, were able to give prospective relief by way of injunction or specific performance. A mandatory injunction would require the defendant to observe a legal obligation or undo the effects of a past breach of legal obligation. A negative injunction would restrain a defendant from committing breaches of legal obligation in future. But these courts could not award damages. This anomaly was mitigated by the Common Law Procedure Act 1854, which gave courts of common law a limited power to grant equitable relief as well as damages. It was further mitigated by the Chancery Amendment Act 1858 (Lord Cairns’ Act), which gave the Court of Chancery the power to award damages. Section 2 of Lord Cairns’ Act provided: In all cases in which the Court of Chancery has jurisdiction to entertain an application for an injunction against a breach of any covenant, contract, or agreement, or against the commission or continuance of any wrongful act, or for the specific performance of any covenant, contract, or agreement, it shall be lawful for the same Court, if it shall think fit, to award damages to the party injured, either in addition to or in substitution for such injunction or specific performance; and such damages may be assessed in such manner as the Court shall direct. This enabled the Chancery Court on appropriate facts to award damages for unlawful conduct in the past as well as an injunction to restrain unlawful conduct in the future. It also enabled the Chancery Court to award damages instead of granting an injunction to restrain unlawful conduct in the future. Such damages can only have been intended to compensate the plaintiff for future unlawful conduct, the commission of which, in the absence of any injunction, the court must have contemplated as likely to occur. Despite the repeal of Lord Cairns’ Act, it has never been doubted that the jurisdiction thereby conferred on the Court of Chancery is exercisable by the High Court and by county courts. The authorities show that there were, not surprisingly, differing approaches to the exercise of this new jurisdiction. In the leading case of Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287, [1891-4] All ER Rep 838 the operations of the defendant electricity company caused structural damage to a house and nuisance to its occupier. The owner and occupier sought relief by way of injunction. The trial judge refused injunctive relief and awarded damages. His decision was reversed by the Court of Appeal, which roundly rejected the view that wrongs should be permitted to continue simply because the wrongdoer was able and willing to pay damages. But the authority is chiefly notable for the guidance given by A L Smith LJ. on the circumstances in which damages may properly be awarded in lieu of an injunction. The following passage in his judgment has been cited very frequently, but must be cited again ([1895] 1 Ch 287 at 322-323, [1891-4] All ER Rep 838 at 847-848): Many Judges have stated, and I emphatically agree with them, that a person by committing a wrongful act (whether it be a public company for public purposes or a private individual) is not thereby entitled to ask the Court to sanction his doing so by purchasing his neighbour’s rights, by assessing damages in that behalf, leaving his neighbour with the nuisance, or his 82

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Jaggard v Sawyer cont. lights dimmed, as the case may be. In such cases the well-known rule is not to accede to the application, but to grant the injunction sought, for the plaintiff’s legal right has been invaded, and he is prima facie entitled to an injunction. There are, however, cases in which this rule may be relaxed, and in which damages may be awarded in substitution for an injunction as authorised by this section. In any instance in which a case for an injunction has been made out, if the plaintiff by his acts or laches has disentitled himself to an injunction the Court may award damages in its place. So again, whether the case be for a mandatory injunction or to restrain a continuing nuisance, the appropriate remedy may be damages in lieu of an injunction, assuming a case for an injunction to be made out. In my opinion, it may be stated as a good working rule that – (1) If the injury to the plaintiff’s legal rights is small, (2) And is one which is capable of being estimated in money, (3) And is one which can be adequately compensated by a small money payment, (4) And the case is one in which it would be oppressive to the defendant to grant an injunction:-then damages in substitution for an injunction may be given. There may also be cases in which, though the four above-mentioned requirements exist, the defendant by his conduct, as, for instance, hurrying up his buildings so as if possible to avoid an injunction, or otherwise acting with reckless disregard to the plaintiff’s rights, has disentitled himself from asking that damages may be assessed in substitution for an injunction. It is impossible to lay down any rule as to what, under the differing circumstances of each case, constitutes either a small injury, or one that can be estimated in money, or what is a small money payment, or an adequate compensation, or what would be oppressive to the defendant. This must be left to the good sense of the tribunal which deals with each case as it comes up for adjudication. For instance, an injury to the plaintiff’s legal right to light to a window in a cottage represented by L15 might well be held to be not small but considerable; whereas a similar injury to a warehouse or other large building represented by ten times that amount might be held to be inconsiderable. Each case must be decided upon its own facts; but to escape the rule it must be brought within the exception. In the present case it appears to me that the injury to the Plaintiff is certainly not small, nor is it in my judgment capable of being estimated in money, or of being adequately compensated by a small money payment. … The present case The judge recognised that a plaintiff who can show that his legal right will be violated by the defendant’s conduct is prima facie entitled to the grant of an injunction. He accepted that the court will only rarely and reluctantly permit such violation to occur or continue. But he held that this case fulfilled the four tests laid down by A L Smith LJ in Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287, [1891-4] All ER Rep 838 to bring this case within the exception. The real question in this appeal is whether that judgment is sustainable. (1)

He regarded the injury to the plaintiff’s right as small. This is in my view so. It is not suggested that the increase in traffic attributable to the existence of No 5A will be other than minimal, or that the cost of keeping up the road will be significantly increased. The defendants have, in any event, offered throughout to contribute to the cost of upkeep and are willing, if a draft is tendered to them, to execute a deed binding themselves by the same covenants as other residents of the Avenue. It is not suggested that the driveway to No 5A impairs the visual amenity of the plaintiff’s house or affects its value. There is of course a violation of the plaintiff’s strict legal right, but that will be so in any case of this kind.

(2)

The judge considered the value of the injury to the plaintiff’s right as capable of being estimated in money. He based himself on the Wrotham Park approach. In my view he was justified. He valued the right at what a reasonable seller would sell it for. In situations of this kind a plaintiff should not be treated as eager to sell, which he very probably is not. But the [1.150]

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Jaggard v Sawyer cont. court will not value the right at the ransom price which a very reluctant plaintiff might put on it. I see no error in the judge’s approach to this aspect. (3)

The judge held that the injury to the plaintiff’s legal right was one which could be adequately compensated by a small money payment. I agree, and I do not think this conclusion can be faulted.

(4)

The judge concluded that in all the circumstances it would be oppressive to the defendants to grant the injunctions sought. Most of the argument turned on this condition, and in particular on the significance which the judge attached to the plaintiff’s failure to seek interlocutory relief.

It is important to bear in mind that the test is one of oppression, and the court should not slide into application of a general balance of convenience test. But oppression must be judged as at the date the court is asked to grant an injunction, and (as Brightman J recognised in Wrotham Park) the court cannot ignore the reality with which it is then confronted. It is relevant that the plaintiff could at an early stage have sought interlocutory relief, which she would seem very likely to have obtained; but it is also relevant that the defendants could have sought a declaration of right. These considerations are not decisive. It would weigh against a finding of oppression if the defendants had acted in blatant and calculated disregard of the plaintiff’s rights, of which they were aware, but the judge held that this was not so, and the plaintiff’s solicitors may be thought to have indicated that damages would be an acceptable remedy. It was suggested that an injunction restraining trespass on the plaintiff’s roadway would not be oppressive since the occupiers of No 5A could use the other half of the roadway outside the plaintiff’s house, but this would seem to me unworkable in practice, a recipe for endless dispute and a remedy which would yield nothing of value to the plaintiff. It was suggested that the occupiers of No 5A could be restrained from using the driveway over the land formerly part of No 5 for vehicular access, while access on foot would be permitted. But this, as it seems to me, would impose inconvenience and loss on the occupier and owner of No 5A without upholding the plaintiff’s right or yielding any practical benefit to her. As s 84 of the Law of Property Act 1925 makes clear, restrictive covenants cannot be regarded as absolute and inviolable for all time. The judge was, in my view, entitled to hold on all the facts before the court at trial that the grant of an injunction would be oppressive to the defendants, and I share that view. The only argument pressed on damages was that the only damages properly awardable on compensatory principles would have been nominal and that therefore an injunction should have been granted. As already indicated, I think that the Wrotham Park approach was appropriate even on pure compensatory principles and the judge followed it correctly. One cannot but regret that this dispute among neighbours should have escalated as it has. Having heard the argument in full it would be futile to deny the plaintiff the leave to appeal and the extension of time which she seeks. But I am of the clear opinion that the appeal must be dismissed. KENNEDY LJ: I agree. MILLETT LJ: This appeal raises yet again the questions: what approach should the court adopt when invited to exercise its statutory jurisdiction to award damages instead of granting an injunction to restrain a threatened or continuing trespass or breach of a restrictive covenant? And if the court accedes to the invitation, on what basis should damages be assessed? Before considering these questions, it is desirable to state some general propositions which are established by the authorities and which are, or at least ought to be, uncontroversial. (1)

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Jaggard v Sawyer cont. (2)

The principal object of Lord Cairns’ Act is well known. It was described by Turner LJ in Ferguson v Wilson (1866) LR 2 Ch App 77 at 88. It was to enable the Court of Chancery, when declining to grant equitable relief and leaving the plaintiff to his remedy at law, to award the plaintiff damages itself instead of sending him to the common law courts to obtain them. From the very first, however, it was recognised that the Act did more than this. The jurisdiction of the Court of Chancery was wider than that of the common law courts, for it could give relief where there was no cause of action at law. As early as 1863, Turner LJ himself had recognised the potential effect of Lord Cairns’ Act. In Eastwood v Lever (1863) 4 De GJ & S 114 at 128, 46 ER 859 at 865 he pointed out that the Act had empowered the courts of equity to award damages in cases where the common law courts could not. The Act, he said, was not “confined to cases in which the Plaintiffs could recover damages at law”. Damages at common law are recoverable only in respect of causes of action which are complete at the date of the writ; damages for future or repeated wrongs must be made the subject of fresh proceedings. Damages in substitution for an injunction, however, relate to the future, not the past. They inevitably extend beyond the damages to which the plaintiff may be entitled at law. In Leeds Industrial Co-op Society Ltd v Slack [1924] AC 851, [1924] All ER Rep 259 the House of Lords confirmed the jurisdiction of the courts to award damages under the Act in respect of an injury which was threatened but had not yet occurred. No such damages could have been awarded at common law.

(3)

The nature of the cause of action is immaterial; it may be in contract or tort. Lord Cairns’ Act referred in terms to “a breach of any covenant, contract, or agreement, or against the commission or continuance of any wrongful act”. The jurisdiction to award damages in substitution for an injunction has most commonly been exercised in cases where the defendant’s building has infringed the plaintiff’s right to light or where it has been erected in breach of a restrictive covenant. Despite dicta to the contrary in Woollerton & Wilson Ltd v Richard Costain Ltd [1970] 1 All ER 483, [1970] 1 WLR 411 there is, in my opinion, no justification for excluding cases of threatened or continuing trespass on the ground that trespass is actionable at law without proof of actual damage. Equitable relief, whether by way of injunction or damages under Lord Cairns’ Act, is available because the common law remedy is inadequate; but the common law remedy of damages in cases of continuing trespass is inadequate not because the damages are likely to be small or nominal but because they cover the past only and not the future.

(4)

The power to award damages under Lord Cairns’ Act arises whenever the court “has jurisdiction to entertain an application” for an injunction or specific performance. This question must be determined as at the date of the writ. If the court would then have had jurisdiction to grant an injunction, it has jurisdiction to award damages instead. When the court comes to consider whether to grant an injunction or award damages instead, of course, it must do so by reference to the circumstances as they exist at the date of the hearing.

(5)

The former question is effectively one of jurisdiction. The question is whether, at the date of the writ, the court could have granted an injunction, not whether it would have done (see City of London Brewery Co v Tennant (1873) LR 9 Ch App 212). Russell LJ put it neatly in Hooper v Rogers [1974] 3 All ER 417 at 419, [1975] Ch 43 at 48, when he said that the question was “whether … the judge could have (however unwisely …) made a mandatory order”. There have been numerous cases where damages under Lord Cairns’ Act were refused because at the date of the writ it was impossible to grant an injunction or specific performance: for one well-known example, see Lavery v Pursell (1888) 39 Ch D 508. The recent case of Surrey CC v Bredero Homes Ltd [1993] 3 All ER 705, [1993] 1 WLR 1361 appears to have been a case of this character. [1.150]

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Jaggard v Sawyer cont. (6)

It is not necessary for the plaintiff to include a claim for damages in his writ. As long ago as 1868 Lord Chelmsford LC held that damages may be awarded under Lord Cairns’ Act: though not specifically prayed for by the bill, the statute having vested a discretion in the Judge, which he may exercise when he thinks the case fitting without the prayer of the party (see Betts v Neilson (1868) LR 3 Ch App 429 at 441).

It would be absurd as well as misleading to insist on the plaintiff including a claim for damages in his writ when he is insisting on his right to an injunction and opposing the defendant’s claim that he should be content to receive damages instead. By a parity of reasoning it is not in my opinion necessary for a plaintiff to include a claim for an injunction in order to found a claim for damages under the Act. It would be absurd to require him to include a claim for an injunction if he is sufficiently realistic to recognise that in the circum-stances he is unlikely to obtain one and intends from the first to ask the court for damages instead. But he ought to make it clear whether he is claiming damages for past injury at common law or under the Act in substitution for an injunction. (7)

In Archer Brewhouse Developments Ltd v Berkley House (Docklands Developments) Ltd (1987) 38 BLR 82 Scott J granted an injunction to restrain a continuing trespass. In the course of his judgment, however, he cast doubt on the power of the court to award damages for future trespasses by means of what he described as a “once and for all payment”. This was because, as he put it, the court could not by an award of damages put the defendant in the position of a person entitled to an easement: whether or not an injunction were granted, the defendant’s conduct would still constitute a trespass, and a succession of further actions for damages could accordingly still be brought. This reasoning strikes at the very heart of the statutory jurisdiction; it is in marked contrast to the attitude of the many judges who from the very first have recognised that, while the Act does not enable the court to license future wrongs, this may be the practical result of withholding injunctive relief, and it is inconsistent with the existence of the jurisdiction, confirmed in Leeds Industrial Co-op Society Ltd v Slack [1924] AC 851, [1924] All ER Rep 259 to award damages under the Act in a quia timet action. It is in my view fallacious because it is not the award of damages which has the practical effect of licensing the defendant to commit the wrong, but the refusal of injunctive relief. Thereafter the defendant may have no right to act in the manner complained of, but he cannot be prevented from doing so. The court can in my judgment properly award damages “once and for all” in respect of future wrongs because it awards them in substitution for an injunction and to compensate for those future wrongs which an injunction would have prevented. The doctrine of res judicata operates to prevent the plaintiff and his successors in title from bringing proceedings thereafter to recover even nominal damages in respect of further wrongs for which the plaintiff has been fully compensated.

It has always been recognised that the practical consequence of withholding injunctive relief is to authorise the continuance of an unlawful state of affairs. If, for example, the defendant threatens to build in such a way that the plaintiff’s light will be obstructed and he is not restrained, then the plaintiff will inevitably be deprived of his legal right. This was the very basis upon which before 1858 the Court of Chancery had made the remedy of injunction available in such cases. After the passing of Lord Cairns’ Act many of the judges warned that the jurisdiction to award damages instead of an injunction should not be exercised as a matter of course so as to legalise the commission of a tort by any defendant who was willing and able to pay compensation. … The plaintiff is, therefore, in good company when she says in her skeleton argument (prepared when she was acting in person): 86

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Jaggard v Sawyer cont. What Judge Jack has in effect done in his judgment is to grant Mr and Mrs Sawyer a right of way in perpetuity over my land for a once and for all payment. I do not understand how the Court can have power to produce such a result as it effectively expropriates my property … Ashleigh Avenue is a private roadway and Judge Jack has turned it into a public highway. Surely he does not have the jurisdiction to do this? It will be of small comfort to her to be told that the jurisdiction is undoubted, though it is to be exercised with caution. What does need to be stressed, however, is that the consequences to which the plaintiff refers do not result from the judge’s exercise of the statutory jurisdiction to award damages instead of an injunction, but from his refusal to grant an injunction. Lord Cairns’ Act did not worsen the plaintiff’s position but improved it. Thenceforth, if injunctive relief was withheld, the plaintiff was not compelled to wait until further wrongs were committed and then bring successive actions for damages: he could be compensated by a once and for all payment to cover future as well as past wrongs. Of course, the ability to do “complete justice” in this way made it easier for the courts to withhold the remedy of an injunction, and it was therefore necessary for the judges to remind themselves from time to time that the discretion to withhold it, which had existed as well before 1858 as after it, was to be exercised in accordance with settled principles; that a plaintiff who had established both a legal right and a threat to infringe it was prima facie entitled to an injunction to protect it; and that special circumstances were needed to justify withholding the injunction. Nevertheless, references to the “expropriation” of the plaintiff’s property are somewhat overdone, not because that is not the practical effect of withholding an injunction, but because the grant of an injunction, like all equitable remedies, is discretionary. Many proprietary rights cannot be protected at all by the common law. The owner must submit to unlawful interference with his rights and be content with damages. If he wants to be protected he must seek equitable relief, and he has no absolute right to that. In many cases, it is true, an injunction will be granted almost as of course, but this is not always the case, and it will never be granted if this would cause injustice to the defendant. Citation of passages in the cases warning of the danger of “expropriating” the plaintiff’s property needs to be balanced by reference to statements like that of Lord Westbury LC in Isenberg v East India House Estate Co Ltd (1863) 3 De GJ & S 263 at 273, 46 ER 637, at 641, where he held that it was the duty of the court not: “by granting a mandatory injunction, to deliver over the Defendants to the Plaintiff bound hand and foot, in order to be made subject to any extortionate demand that he may by possibility make, but to substitute for such mandatory injunction an inquiry before itself, in order to ascertain the measure of damage that has been actually sustained”. [Millett J reached the same result as the other members of the court.]

[1.155]

Notes

1. In what sense can I be truly regarded as owning a thing, if when that thing is taken from me, I have no right to recover the thing itself but have only a claim for damages for compensation for the loss of the thing? 2. The case draws a general distinction between the common law remedy of damages and equitable specific relief by way of specific performance or mandatory or negative injunctions. (The case has been applied in Australia, in the context of an action for specific performance: Georges v Davies [2007] NSWSC 1284.) But the whole point of the common law classification of freehold interests in land as real property was that a holder of such an interest could be restored to possession of the land. At common law the original actions for the recovery of land were by means of the writs of right, novel disseisin and [1.155]

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entry. In the 15th century the action of ejectment was developed to enable the holder of a leasehold interest to recover possession. By means of fictions this action was extended to allow recovery of land by holders of freehold interests. By the nineteenth century ejectment became the sole action for the recovery of possession of land and remains the basis of modern actions, see Moore, Grattan and Griggs, Australian Real Property Law (6th ed, Thomson Reuters, Sydney, 2016), [2.50], [2.55].

88 [1.155]

TITLE TO GOODS AND LAND

PART2

CHAPTER 2 Foundational Concepts of Land Ownership: Tenures, Estates, Trusts and Priorities [2.10]

THE DOCTRINE OF TENURE ................................................................................... 92 [2.15] [2.20] [2.30]

[2.40]

DOCTRINE OF ESTATES ......................................................................................... 109 [2.40] [2.45]

[2.55]

Zapletal v Wright .................................................................. 116

EQUITABLE INTERESTS – THE DEVELOPMENT OF THE TRUST ......................... 120 [2.75]

The trust ............................................................................................... 121 [2.80]

[2.90]

Western Australia v Ward ....................................................... 109 Tenure and Estates in Land .................................................... 112

Determinable and conditional interests ............................................ 116 [2.60]

[2.70]

Mabo v Queensland (No 2) ..................................................... 92 Tenure, Allodialism and Indigenous Rights at Common Law ....................................................................................... 97 Wik Peoples v Queensland ..................................................... 101

DKLR Holdings Co (No 2) v Commissioner of Stamp Duties .................................................................................. 121

PRIORITIES UNDER THE GENERAL LAW LAND SYSTEM ..................................... 126 [2.95]

Prior equitable interest against subsequent legal interest .............. 126 [2.95] [2.105]

[2.115]

Prior legal interest against subsequent equitable interest .............. 135 [2.115] [2.125]

[2.135]

Northern Countries Fire Insurance Co v Whip .......................... 135 Walker v Linom ..................................................................... 139

Prior equitable interest against subsequent equitable interest ....... 140 [2.135]

[2.145]

Pilcher v Rawlins ................................................................... 126 Smith v Jones ........................................................................ 130

AG(CQ) Pty Ltd v A&T Promotions Pty Ltd .............................. 140

The effect of the deeds registration system on general law land priority disputes ................................................................................... 146

[2.05] In this chapter it is intended to trace the Anglo-Australian historical bases of ownership

of, or title to, land. It describes in outline the way in which title to land was and is acquired at common law and in equity, and introduces the principles by which priority between competing legal and equitable interests in land is determined. The specifics of a number of matters relevant to these issues are not examined here but are dealt with in succeeding chapters. • the detail of the Torrens system of land registration is described and explained in Chapters 5 and 6. • the formalities for the consensual creation of legal and equitable interests in land are discussed in Chapter 9. • equitable interests in land arise in a variety of ways apart from the express creation of a trust: this chapter contains a brief introduction to implied trusts, but the detailed principles relating to the implication of trusts are dealt with in Chapter 10. [2.05]

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• although the parts of the High Court decisions in Mabo v Queensland (No 2) (1992) 175 CLR 1 and Wik Peoples v Queensland (1996) 187 CLR 1 relevant to the doctrine of tenure are extracted in this chapter, a more detailed treatment of native title is contained in Chapter 7. • the detailed principles relating to leases and licences of Crown land are not dealt with in this Chapter. In Australia, much rural land was leased or licensed by the Crown. Often this was done on the basis that the holder had to comply with a variety of conditions and obligations. The system gave rise to different and novel forms of landholding, many of which still exist. Some of these forms of landholding are discussed in Chapter 7. See also Moore, Grattan and Griggs, Australian Real Property Law (6th ed, Thomson Reuters, Sydney, 2016), Ch 6, Pts II and III.

THE DOCTRINE OF TENURE [2.10] After the Norman Conquest, William 1 as sovereign asserted the power to grant land

holdings to any person as he wished. When making grants, the King did not transfer absolute ownership but instead granted rights over the land subject to the grantee fulfilling particular duties and conditions, such as the rendering of services or payment of money. The person who held land directly of the King was the tenant-in-chief. The tenant-in-chief then granted part of the land to another, again in return for the performance of certain duties. The process could be repeated many times with respect to the same piece of land and thus complicated feudal ties were set up. This was called subinfeudination and gave rise to the notion of a feudal pyramid with the King at the top. As time went by the system became extremely complicated. Enforcement of services became a major problem. An attempt to simplify the system of tenure was made in 1290 in the Statute of Quia Emptores 1290 but it was not until 1660 that the Statute of Tenures 1660 abolished most of the incidents of tenure.

Mabo v Queensland (No 2) [2.15] Mabo v Queensland (No 2) (1992) 175 CLR 1 High Court of Australia [The case involved the land rights of the Meriam people: see [7.25]. In its decision, the High Court considered the doctrine of tenure.] BRENNAN J: … A basic doctrine of the land law is the doctrine of tenure, to which Stephen CJ referred in Attorney-General (NSW) v Brown, and it is a doctrine which could not be overturned without fracturing the skeleton which gives our land law its shape and consistency. It is derived from feudal origins. The feudal basis of the proposition of absolute Crown ownership The land law of England is based on the doctrine of tenure. In English legal theory, every parcel of land in England is held either mediately or immediately of the King who is the Lord Paramount; the term “tenure” is used to signify the relationship between tenant and lord (Attorney-General of Ontario v Mercer (1883) LR 8 App Cas 767, 771-772), not the relationship between tenant and land. The characteristic of feudalism “is not tenere terram, but tenere terram de X” (Pollock and Maitland, The History of English Law (2nd ed, 1898, reprinted 1952), Vol 1, p 234n). It is implicit in the relationship of tenure that both lord and tenant have an interest in the land: “The King had ‘dominium directum’, the subject ‘dominium utile’” (Pollock and Maitland, p 773; Co Litt 16). Absent a “dominium directum” in the Crown, there would be no foundation for a tenure arising on the making of a grant of land. When the Crown acquired territory outside England which was to be subject to the common law, there was 92

[2.10]

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CHAPTER 2

Mabo v Queensland (No 2) cont. a natural assumption that the doctrine of tenure should be the basis of the land law. Perhaps the assumption did not have to be made. After all, as Holdsworth observed (Vol 2, p 199), the universal application of the doctrine of tenure is a purely English phenomenon. And Pollock and Maitland may be correct in saying (Vol 2, p 236; accord: Holdsworth, Vol 2 (1923) p 75, n 8) that the notion of universal tenure “perhaps was possible only in a conquered country”. In Scotland, the King was not Paramount Lord of all land: some allodial lands remained in the Orkney and Shetland Islands, though most land that had been held allodially became subject to feudal tenure: Bell, Lectures on Conveyancing (Edinburgh, 1867), Vol 1, Ch I, pp 531-532; Stair, The Institutions of the Law of Scotland (4th ed, 1826), pp 219, 222; Craigie, Scottish Law of Conveyancing (Edinburgh, 1899), pp 27-28; Lord Advocate v Balfour (1907) SC 1360, 1368-1369). However, the English view favoured a universal application of the doctrine of tenure (Pollock and Maitland, op cit, pp 232-233): Every acre of English soil and every proprietary right therein have been brought within the compass of a single formula, which may be expressed thus:- Z tenet terram illam de … domino Rege. The king himself holds land which is in every sense his own; no one else has any proprietary right in it; but if we leave out of account this royal demesne, then every acre of land is “held of” the king. The person whom we may call its owner, the person who has the right to use and abuse the land, to cultivate it or leave it uncultivated, to keep all others off it, holds the land of the king either immediately or mediately. It is arguable that universality of tenure is a rule depending on English history and that the rule is not reasonably applicable to the Australian colonies. The origin of the rule is to be found in a traditional belief that, at some time after the Norman Conquest, the King either owned beneficially and granted, or otherwise became the Paramount Lord of, all land in the Kingdom (Bacon’s Abridgement (6th ed, 1807), Vol V, “Prerogative”, B,1). According to Digby’s History of the Law of Real Property (1897, p 34) William I succeeded to all rights over land held by the Anglo-Saxon kings; he acquired by operation of law the land of those who had resisted his conquest and a vast quantity of land was deemed to have been forfeited or surrendered to William and regranted by him. He may have become the proprietor of all land in England so that no allodial land remained. Or it may be, as Blackstone asserts, that in England, as in France, the allodial estates were surrendered into the king’s hands and were granted back as feuds, the only difference being that in France the change “was effected gradually, by the consent of private persons; (the change) was done at once, all over England, by the common consent of the nation” (Commentaries, Bk II, Ch 4, pp 50–51). But, whatever the fact, it is the fiction of royal grants that underlies the English rule. Blackstone says that: it became a fundamental maxim, and necessary principle (though in reality a mere fiction) of our English tenures, “that the king is the universal lord and original proprietor of all the lands in his kingdom; and that no man doth or can possess any part of it, but what has, mediately or immediately, been derived ‘as a gift from him, to be held upon feodal services’.” For this being the real case in pure, original, proper feuds, other nations who adopted this system were obliged to act upon the same supposition, as a substruction and foundation of their new polity, though the fact was indeed far otherwise. It is not surprising that the fiction that land granted by the Crown had been beneficially owned by the Crown was translated to the colonies and that Crown grants should be seen as the foundation of the doctrine of tenure which is an essential principle of our land law. It is far too late in the day to contemplate an allodial or other system of land ownership. Land in Australia which has been granted by the Crown is held on a tenure of some kind and the titles acquired under the accepted land law cannot be disturbed. Accepting the doctrine of tenure, it was an essential postulate that the Crown have such a title to land as would invest the Sovereign with the character of Paramount Lord in respect of a tenure created by grant and would attract the incidents appropriate to the tenure, especially the Crown’s right to escheat. (Wright, Introduction to the Law of Tenures (4th ed, 1792), p 5.) The Crown was invested with [2.15]

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Mabo v Queensland (No 2) cont. the character of Paramount Lord in the colonies by attributing to the Crown a title, adapted from feudal theory, that was called a radical, ultimate or final title: see, for example, Amodu Tijani v Secretary, Southern Nigeria (1921) 2 AC 399, 403, 404, 407; Nireaha Tamaki v Baker [1901] AC 561, 580; cf. Administration of Papua and New Guinea v Daera Guba (1973) 130 CLR 353, 396-397. The Crown was treated as having the radical title to all the land in the territory over which the Crown acquired sovereignty. The radical title is a postulate of the doctrine of tenure and a concomitant of sovereignty. As a sovereign enjoys supreme legal authority in and over a territory, the sovereign has power to prescribe what parcels of land and what interests in those parcels should be enjoyed by others and what parcels of land should be kept as the sovereign’s beneficial demesne. By attributing to the Crown a radical title to all land within a territory over which the Crown has assumed sovereignty, the common law enabled the Crown, in exercise of its sovereign power, to grant an interest in land to be held of the Crown or to acquire land for the Crown’s demesne. The notion of radical title enabled the Crown to become Paramount Lord of all who hold a tenure granted by the Crown and to become absolute beneficial owner of unalienated land required for the Crown’s purposes. But it is not a corollary of the Crown’s acquisition of a radical title to land in an occupied territory that the Crown acquired absolute beneficial ownership of that land to the exclusion of the indigenous inhabitants. If the land were desert and uninhabited, truly a terra nullius, the Crown would take an absolute beneficial title (an allodial title) to the land for the reason given by Stephen CJ in Attorney-General (NSW) v Brown (1847) 1 Legge, 317-318: there would be no other proprietor. But if the land were occupied by the indigenous inhabitants and their rights and interests in the land are recognised by the common law, the radical title which is acquired with the acquisition of sovereignty cannot itself be taken to confer an absolute beneficial title to the occupied land. Nor is it necessary to the structure of our legal system to refuse recognition to the rights and interests in land of the indigenous inhabitants. The doctrine of tenure applies to every Crown grant of an interest in land, but not to rights and interests which do not owe their existence to a Crown grant. The English legal system accommodated the recognition of rights and interests derived from occupation of land in a territory over which sovereignty was acquired by conquest without the necessity of a Crown grant. After the conquest of Ireland, it was held in Case of Tanistry (1608) Davis 28 (80 ER 516); 4th Dublin (1762) English translation 78, 110-111 that the Crown was not in actual possession of the land by virtue of the conquest and that: a royal monarch (who) hath made a new conquest of a realm, although in fact he hath the lordship paramount of all the lands within such realm, so that these are all held of him, mediate vel immediate, and he hath also the possession of all the lands which he willeth actually to seise and retain in his own hands for his profit or pleasure, and may also by his grants distribute such portions as he pleaseth … yet … if such conqueror receiveth any of the natives or antient inhabitants into his protection and avoweth them for his subjects, and permitteth them to continue their possessions and to remain in his peace and allegiance, their heirs shall be adjudged in by good title without grant or confirmation of the conqueror, and shall enjoy their lands according to the rules of the law which the conqueror hath allowed or established, if they will submit themselves to it, and hold their lands according to the rules of it, and not otherwise. Similarly, after the conquest of Wales, in Witrong and Blany (1674) 3 Keb 401, 402 (84 ER 789, 789) and see McNeil, Common Law Aboriginal Title, p 174 it was held that the inhabitants who had been left in possession of land needed no new grant to support their possession under the common law and they held their interests of the King without a new conveyance. In these cases, the courts were speaking of converting the surviving interests into an estate of a kind familiar to the common law, but there is no reason why the common law should not recognise novel interests in land which, not 94 [2.15]

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Mabo v Queensland (No 2) cont. depending on Crown grant, are different from common law tenures. In Amodu Tijani [1921] 2 AC, 403 Viscount Haldane, speaking for the Privy Council, referred to the variable nature of native title to land capable of recognition by the common law: There is a tendency, operating at times unconsciously, to render (native) title conceptually in terms which are appropriate only to systems which have grown up under English law. But this tendency has to be held in check closely. As a rule, in the various systems of native jurisprudence throughout the Empire, there is no such full division between property and possession as English lawyers are familiar with. A very usual form of native title is that of a usufructuary right, which is a mere qualification of or burden on the radical or final title of the Sovereign where that exists. In such cases the title of the Sovereign is a pure legal estate, to which beneficial rights may or may not be attached. But this estate is qualified by a right of beneficial user which may not assume definite forms analogous to estates, or may, where it has assumed these, have derived them from the intrusion of the mere analogy of English jurisprudence. And, in Administration of Papua and New Guinea v Daera Guba (1973) 130 CLR, 397 Barwick CJ was able to say that the indigenous people of Papua New Guinea “were secure in their usufructuary title to land, [but] the land came from the inception of the colony into the dominion of Her Majesty. That is to say, the ultimate title subject to the usufructuary title was vested in the Crown. Alienation of that usufructuary title to the Crown completed the absolute fee simple in the Crown”. In Amodu Tijani, the Privy Council admitted the possibility of recognition not only of usufructuary rights but also of interests in land vested not in an individual or a number of identified individuals but in a community. Viscount Haldane observed [1921] 2 AC, 403-404: The title, such as it is, may not be that of the individual, as in this country it nearly always is in some form, but may be that of a community. Such a community may have the possessory title to the common enjoyment of a usufruct, with customs under which its individual members are admitted to enjoyment, and even to a right of transmitting the individual enjoyment as members by assignment inter vivos or by succession. To ascertain how far this latter development of right has progressed involves the study of the history of the particular community and its usages in each case. Abstract principles fashioned a priori are of but little assistance, and are as often as not misleading. Recognition of the radical title of the Crown is quite consistent with recognition of native title to land, for the radical title, without more, is merely a logical postulate required to support the doctrine of tenure (when the Crown has exercised its sovereign power to grant an interest in land) and to support the plenary title of the Crown (when the Crown has exercised its sovereign power to appropriate to itself ownership of parcels of land within the Crown’s territory). Unless the sovereign power is exercised in one or other of those ways, there is no reason why land within the Crown’s territory should not continue to be subject to native title. It is only the fallacy of equating sovereignty and beneficial ownership of land that gives rise to the notion that native title is extinguished by the acquisition of sovereignty. If it be necessary to categorise an interest in land as proprietary in order that it survive a change in sovereignty, the interest possessed by a community that is in exclusive possession of land falls into that category. Whether or not land is owned by individual members of a community, a community which asserts and asserts effectively that none but its members has any right to occupy or use the land has an interest in the land that must be proprietary in nature: there is no other proprietor. It would be wrong, in my opinion, to point to the inalienability of land by that community and, by importing definitions of “property” which require alienability under the municipal laws of our society (see, for example, National Provincial Bank Ltd v Ainsworth [1965] AC 1175, 1247-1248), to deny that the indigenous people owned their land. The ownership of land within a territory in the exclusive occupation of a people must be vested in that people: land is susceptible of ownership, and there are no other owners. [2.15]

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Mabo v Queensland (No 2) cont. True it is that land in exclusive possession of an indigenous people is not, in any private law sense, alienable property for the laws and customs of an indigenous people do not generally contemplate the alienation of the people’s traditional land. But the common law has asserted that, if the Crown should acquire sovereignty over that land, the new sovereign may extinguish the indigenous people’s interest in the land and create proprietary rights in its place and it would be curious if, in place of interests that were classified as non-proprietary, proprietary rights could be created. Where a proprietary title capable of recognition by the common law is found to have been possessed by a community in occupation of a territory, there is no reason why that title should not be recognised as a burden on the Crown’s radical title when the Crown acquires sovereignty over that territory. The fact that individual members of the community, like the individual plaintiff Aborigines in Milirrpum (1971) 17 FLR, 272, enjoy only usufructuary rights that are not proprietary in nature is no impediment to the recognition of a proprietary community title. Indeed, it is not possible to admit traditional usufructuary rights without admitting a traditional proprietary community title. There may be difficulties of proof of boundaries or of membership of the community or of representatives of the community which was in exclusive possession, but those difficulties afford no reason for denying the existence of a proprietary community title capable of recognition by the common law. That being so, there is no impediment to the recognition of individual non-proprietary rights that are derived from the community’s laws and customs and are dependent on the community title. A fortiori, there can be no impediment to the recognition of individual proprietary rights. Once it is accepted that indigenous inhabitants in occupation of a territory when sovereignty is acquired by the Crown are capable of enjoying – whether in community, as a group or as individuals – proprietary interests in land, the rights and interests in the land which they had theretofore enjoyed under the customs of their community are seen to be a burden on the radical title which the Crown acquires. The notion that feudal principle dictates that the land in a settled colony be taken to be a royal demesne upon the Crown’s acquisition of sovereignty is mistaken. However, that was not the only basis advanced to establish the proposition of absolute Crown ownership and the alternative bases must next be considered. … DEANE and GAUDRON JJ: … The English common law principles relating to real property developed as the product of concepts shaped by the feudal system of medieval times. The basic tenet was that, consequent upon the Norman Conquest, the Crown was the owner of all land in the kingdom. A subject could hold land only as a tenant, directly or indirectly, of the Crown. By 1788, the combined effect of the Statute Quia Emptores 1290 and the Tenures Abolition Act 1660 had been largely to abolish the “pyramid of free tenants” (Gray, Elements of Land Law (1987), p 57) which had emerged under the feudal system of tenure and to confine the practical significance of the basic tenet that all land was owned by the Crown to matters such as escheat and foreshore rights. The “estate” which a subject held in land as tenant was itself property which was the subject of “ownership” both in law and in equity. The primary estate of a subject, the estate in fee simple, became, for almost all practical purposes, equivalent to full ownership of the land itself. Nonetheless, the underlying thesis of the English law of real property remained that the radical title to (or ultimate ownership of) all land was in the Crown and that the maximum interest which a subject could have in the land was ownership not of the land itself but of an estate in fee in it. The legal ownership of an estate in land was in the person or persons in whom the legal title to it was vested. Under the rules of equity, that legal estate could be held upon trust for some other person or persons or for some purpose. If the slate were clean, there would be something to be said for the view that the English system of land law was not, in 1788, appropriate for application to the circumstances of a British penal colony. (See, for example, Roberts-Wray, Commonwealth and Colonial Law (1966), p 626.) It has, however, long been accepted as incontrovertible that the provisions of the common law which became 96 [2.15]

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Mabo v Queensland (No 2) cont. applicable upon the establishment by settlement of the Colony of New South Wales included that general system of land law. (See, for example, Delohery v Permanent Trustee of NSW (1904) 1 CLR 283, 299-300; Williams v Attorney-General for New South Wales (1913) 16 CLR 404.) It follows that, upon the establishment of the Colony, the radical title to all land vested in the Crown. Subject to some minor and presently irrelevant matters, the practical effect of the vesting of radical title in the Crown was merely to enable the English system of private ownership of estates held of the Crown to be observed in the Colony. In particular, the mere fact that the radical title to all the lands of the Colony was vested in the British Crown did not preclude the preservation and protection, by the domestic law of the new Colony, of any traditional native interests in land which had existed under native law or custom at the time the Colony was established. Whether, and to what extent, such pre-existing native claims to land survived annexation and were translated into or recognised as estates, rights or other interests must be determined by reference to that domestic law. …

Tenure, Allodialism and Indigenous Rights at Common Law [2.20] Edgeworth B, “Tenure, Allodialism and Indigenous Rights at Common Law: England, United States and Australian Land Law Compared after Mabo v Queensland” (1994) 23 Anglo American Bar Review 397 at pp 403-406, 415-422 (footnotes omitted) The early years of settlement of Australia bear a remarkable similarity to those of North America, at least from the perspective of land law. Disregarding for the moment Aboriginal native title, all other interests likewise originated in Crown grants. Frequently these required payment of quit rents, and contained conditions and reservations to the Crown of rights over minerals, water and rights of way. The quit rents were modelled on the English practice whereby socage tenures – originally requiring some form of agricultural service on the part of the tenant – were progressively commuted for money payments which allowed tenants to go “quit”, or free, from their services. As was the case in colonial America, this was the only form of tenure that had ever existed in Australia. In this respect at the very least, local land law had departed much further from its feudal origins than English land law had at that time, despite the fact that the feudal system in Britain in 1788 had been significantly eroded by a wide range of legal, social and economic reforms. Thus various incidents of the different tenures continued to exist and defy the march of modernity in England at that time and these survived until the enactment of the reforms of 1925.While they had rather limited practical effect, they did nonetheless clearly demonstrate the presently visible imprint of a feudal past and, with the (arguable) exception of escheat and quit rents, continued to determine English land law in ways that were as different from the position in Australia at the time of settlement as they were in the United States. Furthermore, a closer examination of the substantive features of these quit rents and how they functioned in the early years of the colony reveals dramatic divergences from the system in place in the mother country. For instance, by 1809 it was the policy of the fledgling colonial administration to grant land to emancipated convicts in blocks of 30 acres if single, 50 acres if married, free of quit rent for 10 years. Free settlers were granted 100 acre blocks on similar terms. Generally, these grants contained prohibitions on alienation for a fixed period, usually seven years, as well as obligations to clear and cultivate a set proportion of the land. A period of considerable uncertainty followed in the 1820s and 30s due in large measure to attempts to put the land market on a more commercial footing. So, in 1825, a scheme was introduced whereby land could be bought outright at auction though it would still be subject to a nominal quit rent. However, land passed in could be granted without purchase, but after a grace period of seven years was subject to a quit rent of five per cent of the market value, [2.20]

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Tenure, Allodialism and Indigenous Rights at Common Law cont. redeemable at 20 years. No further obligation to pay quit rents of any form arose once 20 payments had been duly made. Clearly, nothing like this arrangement was possible under the English system of tenure. In this instance they were not in any meaningful sense rents but, rather, purchases by instalments. This process was extended in 1826 to allow immigrants to buy all land in this fashion. Over the next few years the administrative and political problems of collecting these rents magnified greatly and if anything were exacerbated by the enactment by the United Kingdom Parliament of the Australian Land Sales Act 1842 which pegged the sale price of land to a minimum of 20s per acre. The response in the colonies was swift and decisive. In 1844 the Lieutenant-Governor of Van Diemen’s Land remitted by proclamation all arrears of quit rent. At this stage, the estimated value of these was £30,000 sterling. The difference in the two “tenurial” models became even more pronounced after the notification of regulations announced by the new Governor in the Government Gazette of October 9, 1846 which provided that all lands for which 20 years’ rent had been paid would be absolved from any further payments, and any persons who had paid more than 20 years’ rent would have the balance refunded to them. The effect of these new regulations was nothing more than to transform all quit rents into purchase annuities. These would entitle purchasers to hold absolutely on payment of the twentieth instalment, thus aligning the rights of all landholders with those who had purchased passed-in land at auctions under the regulations introduced in 1823. By the middle of the nineteenth century, therefore, the situation advocated in the United States by the republican Thomas Jefferson, and analysed there as the modern point of departure from the doctrine of tenure, had been attained in Australia by local legislative act. Moreover, quit rents operated very differently in England at this time where, consistent with their feudal origins, they were payments representing the value of the relevant feudal services at the time of commutation. In Australia, by contrast, as was the case in the American colonies, the quit rent was, to begin with, in the nature of a rack rent or land tax. Later, by virtue of the above regulations, they took on the character of purchase annuities. Insofar as these payments entitled the “purchaser” to a fee simple estate enforceable against the world (including the Crown) it came to resemble more and more the allodium of the civil jurisdictions in the same manner as its American counterpart. One right of apparent feudal origin did remain, however, namely escheat, the right of the Crown to the property of a deceased intestate person without heirs. Certain arguments advanced in Mabo (infra) suggest a rather different basis on which the Crown came to acquire rights over land without heirs. In any event, escheat was finally eradicated by the enactment of Lang’s Act in 1863. While these various statutory features of landholding therefore point distinctly to the gradual appearance of allodialism, early case law said otherwise. … It would appear from [the judgments in Mabo] that there are three relevant legal concepts at work here: sovereignty, radical title and absolute beneficial, or since the reference is to the Crown, allodial, title. In the Australian context the High Court [in Mabo] held that the Crown acquired sovereignty and radical title but not absolute beneficial or allodial title to lands occupied by Aborigines. Unoccupied lands, by contrast, were automatically reduced to beneficial Crown ownership at that time. These legal consequences demonstrate how radical title operates as a linking concept between the constitutional or public law notion of sovereignty on the one hand, and the private law of proprietary rights on the other. Thus, Brennan J concluded that “radical title, without more, is merely a logical postulate required to support the doctrine of tenure (when the Crown has exercised its sovereign power to grant an interest in land) and to support the plenary title of the Crown (when the Crown has exercised its sovereign power to appropriate to itself ownership of parcels of land within the Crown’s territory)”. In other words, it is a feature or consequence of sovereignty, not tenure, whereby the sovereign on the one hand automatically acquires absolute property rights (which may be granted to citizens) in the subject territory only in respect of those parcels of land which are not affected by native title, and on 98 [2.20]

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Tenure, Allodialism and Indigenous Rights at Common Law cont. the other, it has the power to compulsorily acquire parcels in the possession, ownership or control of the indigenous population either for its own purposes or for the purposes of distribution to subjects. Clearly, the doctrine of tenure in this formulation is very different from the doctrine of English land law where sovereignty, radical title and absolute beneficial (allodial) title are coextensive. This point was also made by Deane and Gaudron JJ who concluded that “if there were lands within a settled colony in relation to which there was some pre-existing native interest, the effect of an applicable assumption that that interest was respected and protected under the domestic law of the colony would not be to preclude the vesting of radical title in the Crown. It would be to reduce …, qualify … or burden … the proprietary estate in land which would otherwise have vested in the Crown, to the extent which was necessary to recognize and protect the pre-existing native interest.” Furthermore, no possible Lord Paramount/tenant relationship subsisted between the indigenous landholders and the Crown in these circumstances. They continued to hold their interests in the exactly same way after settlement as they had done before: that is, free from any incidents or services. Indeed, though the plaintiffs in this case had not conclusively established that “there were parcels of land in the Murray Islands owned allodial1y by individuals or groups”, Brennan J specifically acknowledged that as a general principle it was possible to find the existence of allodial native ownership pursuant to local custom. As we have seen, by contrast, according to the theory of English law the very act of conquest of Britain in 1066 entailed the extinguishment of all indigenous rights. Property rights arose later, in theory at least, only on the grant of estates subject to feudal obligations by the Crown to tenants-in-chief, and subsequently by the latter to other tenants and so on. Of course, native title in Australian colonies could be ultimately extinguished by the Crown, but this fact is merely more evidence of the divergences between the two systems of land law: extinguishment in the latter occurred incrementally rather than in a once-and-for-all fashion. Equally significantly, it was pursuant to principles of public law (sovereignty and its postulate, radical title) rather than tenure that this process occurred. … Predictably, the significance of these various differences led the majority of the court to query whether the doctrine of tenure was to a meaningful degree appropriate to Australian land law at any stage from the time of settlement onwards. After all, once these differences are catalogued the local animal begins to look very unlike its Imperial progenitor. Yet despite overruling the cluster of cases which extended the terra nullius doctrine to the Australian colonies, their Honours refused to go one step further and unequivocally reject the doctrine of tenure. Brennan J, however, went some way towards this conclusion. As if donning the mantle of Ronald Dworkin’s Hercules he was concerned, as noted above, that to reject tenure outright would fracture “the skeleton which gives our land its shape and consistency”. Nonetheless he admitted the plausibility of the suggestion that the doctrine was inappropriate to the Australian colonies: “Perhaps the assumption [that the doctrine of tenure formed the basis of land law] did not have to be made”. Later in his judgment he went further, concluding that, “It is arguable that universality of tenure is a rule depending on English history and that the rule is not reasonably applicable to the Australian colonies”, citing both Holdsworth and Pollock and Maitland as authority. The former author had explicitly opined that the universality of tenure was applicable only to England while the latter concluded that it was relevant only to conquered colonies. Once that doctrine was extended to Australia by case law, Brennan J concluded that it operated to lend support to the dispossession of the indigenous occupants. Despite his doubts on its relevance, however, he accepted that there was no choice but to accept the tenurial basis of Australian property law: “It is far too late in the day to contemplate an allodial or other system of land ownership. Land in Australia which has been granted by the Crown is held on a tenure of some kind and the titles acquired under the accepted land law cannot be disturbed.” [2.20]

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Tenure, Allodialism and Indigenous Rights at Common Law cont. This may seem to be conclusive proof that the local land law bore the impress of the feudal meaning of tenure from the very beginning of European settlement. However, by his endorsement of a theory of sovereignty which confers merely a radical title on the Crown (entitling it to certain rights of pre-emption, absolute beneficial title to waste and power to extinguish native title) his Honour has at least implied that the meaning ascribed to tenure in English land law is rather different to what it is in Australia. Put another way, it is one thing to suggest that the doctrine of tenure must be retained for the purpose of validating grants of land made by the Crown since settlement; it is something else to say that the English feudal doctrine of tenure necessarily applies in Australia. While the former is a necessary adjunct to the Crown’s sovereign power, the latter is not. The implicit conclusion in Brennan J’s argument here is that the doctrine of tenure denotes little more than the legal capacity of the Crown to confer valid title to land on citizens, or, more simply, radical title-a public rather than private law concept. If this reconceptualization is considered alongside those unique features of Crown grants outlined in the first part of this section, it can be seen to have more in common with allodial systems where citizens, in Megarry and Wade’s terms, receive out-and-out transfers of land. Also, given that only so much of the common law as was “reasonably applicable to the circumstances of the colony” was introduced on settlement, it is not implausible to presume that those distinctly feudal dimensions of the doctrine of tenure should not have been “reasonably applicable” to those early manor-less Australians. Deane and Gaudron, JJ reasoned similarly. In agreement with Brennan, J they suggest that from the general principles of English land law “It follows that, upon the establishment of the colony the radical title to all land vested to the Crown”. As we have seen above, this falls far short of the terra nullius doctrine. … In conclusion, it can be seen that the concept of tenure held to underpin Australian land law in Mabo is radically different from its counterpart in English law. The judgments of the majority, while not openly addressing the empirical peculiarities which were argued earlier in this article to distinguish the position in the colony from English common law, are quite consistent with them in so far as they cast doubt on the appropriateness of all the features of the traditional doctrine of tenure (including the fictions) for the Australian colonies generally.

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Notes and Questions

1. An analysis of the history and development of the doctrine of tenure and of the classification of tenures is set out in many texts. See for example Harpum, Bridge and Dixon, Megarry and Wade: The Law of Real Property (8th ed, Sweet and Maxwell, London, 2012, Ch 2; Burn and Cartwright, Cheshire and Burn’s Modern Law of Real Property (18th ed, OUP, Oxford, 2011), pp 29-47, 110-114; Hargreaves and Helmore, Introduction to the Principles of Land Law (New South Wales) (1963), pp 8-18 and pp 30-36; Moore, Grattan and Griggs, Australian Real Property Law (6th ed, Thomson Reuters, Sydney, 2016), [2.10] – [2.20]. 2. Does Brennan J accept the applicability of the doctrine of tenure to Australia? If so, in what ways does Brennan J redefine the notion of the doctrine of tenure? See Edgeworth, “Tenure, Allodialism and Indigenous Rights at Common Law: England, United States and Australian Land Law Compared after Mabo v Queensland” (1994) 23 Anglo American Bar Review 397 extracted at [2.20].

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3. A number of other legal scholars have argued that the doctrine of tenure was totally inappropriate to describe the way in which land was held in Australia. One of the earliest proponents of the view that the doctrine of tenure was inappropriate to Australian conditions was Windeyer, counsel for the defence, in Attorney-General (NSW) v Brown (1847) 2 Legge 312. He argued (unsuccessfully) that after the Statute of Tenures 1660 in 1660, land was effectively held allodially (that is, not held of any lord or superior and in which, therefore, the owner had an absolute property) and that this was the mode of holding in the colony. See Buck, “Attorney-General v Brown and the Development of Property Law in Australia” (1994) 2 APLJ 128, 133-135. See also Edgeworth, “Tenure, Allodialism and Indigenous Rights at Common Law: England, United States and Australian Land Law Compared after Mabo v Queensland” (1994) 23 Anglo American Bar Review 397; Millard and Millard, The Law of Real Property in New South Wales (1905); Devereux and Dorsett, “Towards a Reconsideration of the Doctrine of Estates and Tenure” (1996) 4 APLJ 30; Secher, Aboriginal Customary Law: A Source of Common Law Title to Land (Hart Publishing, Oxford, 2014), Ch 3. On the other hand, it can be argued that the Crown’s position as ultimate “owner” has more meaning in the Australian context than it has had in England for hundreds of years. The minerals regime in Australia (see [16.65]) flows very much from the fact that in many Crown grants, minerals were reserved to the Crown, and further, many forms of tenure created by statute in the 19th and 20th centuries ensured that the Crown retained some controls over the land granted.

Wik Peoples v Queensland [2.30] Wik Peoples v Queensland (1996) 187 CLR 1 High Court of Australia [The High Court considered the issue of extinguishment of native title by the grant of pastoral leases under the Land Act 1910 (Qld) and the Land Act 1962 (Qld). The majority of the High Court in separate judgments (Toohey, Gaudron, Gummow and Kirby JJ) held that the grant of the pastoral leases would not automatically extinguish native title. It was argued that by creating the pastoral leases the Crown reserved an interest to itself at the end of the lease (a full beneficial reversion expectant) and such a beneficial interest was itself inconsistent with continuing native title rights.] GUMMOW J: English land law Traditional concepts of English land law, although radically affected in their country of origin by the Law of Property Act 1925 (UK), may still exert in this country a fascination beyond their utility in instruction for the task at hand. So much became apparent as submissions were developed on the hearing of these appeals. The task at hand involves an appreciation of the significance of the unique developments, not only in the common law, but also in statute, which mark the law of real property in Australia, with particular reference to Queensland. I have referred above to some of these developments. There also is the need to adjust ingrained habits of thought and understanding to what, since 1992, must be accepted as the common law of Australia. Further, those habits of thought and understanding may have lacked a broad appreciation of English common law itself. For example, there is no particular reason to be drawn from English land law which renders it anomalous to accommodate in Australian land law notions of communal title which confer usufructuary rights. There are recognised in England rights of common which depend for their establishment upon prescription and custom. An example is the common of pasture in gross enforceable by action by one commoner on behalf of that commoner and the other commoners. (Halsbury’s Laws of England, 1st ed, vol 4, “Commons and Rights of Common”, par 1104. See also Halsbury’s Laws of England, 4th ed, vol 6 Reissue, “Commons”, par 564; Holmes, Notes to Kent’s Commentaries, reprinted in Novick, The Collected Works of Justice Holmes (1995), vol 2, pp 410-415; [2.30]

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Wik Peoples v Queensland cont. Simpson, A History of the Land Law, 2nd ed (1986), pp 107-108.) Moreover, the extinguishment of the rights of commoners may be effected by statute. In the century before the enactment in England of the Inclosure Act 1845 (UK), (8 & 9 Vict c 118. See Simpson, A History of the Land Law, 2nd ed (1986), pp 261-262; Cornish and Clark, Law and Society in England 1750-1950 (1989), pp 137-141) nearly 4,000 private inclosure Acts had been passed. (Halsbury’s Laws of England, 1st ed, vol 4, “Common and Rights of Common”, par 1146.) Nor, in a system where, subject to statute, land ownership depends upon principles derived from the English common law is there any necessary conceptual difficulty in accommodating allodial to tenurial titles. The point was made as follows by Brennan J in Mabo [No 2] ((1992) 175 CLR 1 at 48-49): Nor is it necessary to the structure of our legal system to refuse recognition to the rights and interests in land of the indigenous inhabitants. The doctrine of tenure applies to every Crown grant of an interest in land, but not to rights and interests which do not owe their existence to a Crown grant. The English legal system accommodated the recognition of rights and interests derived from occupation of land in a territory over which sovereignty was acquired by conquest without the necessity of a Crown grant. Blackstone contrasted as follows the term “allodial” with the term “fee” (Blackstone, Commentaries on the Laws of England, 17th ed, (1830), vol 2, p 104): The true meaning of the word fee (feodum) is the same with that of feud or fief, and in its original sense it is taken in contradistinction to allodium; which latter the writers on this subject define to be every man’s own land, which he possesseth merely in his own right, without owing any rent or service to any superior. This is property in its highest degree; and the owner thereof hath absolutum et directum dominium, and therefore is said to be seised thereof absolutely in dominico suo, in his own demesne. But feodum, or fee, is that which is held of some superior, on condition of rendering him service; in which superior the ultimate property of the land resides. In Blackstone’s time, it was accepted that allodial titles preceded the development of the feudal system after the Norman Conquest. In the same period in which the existence of allodial title was denied to the colony of New South Wales by the decision in Brown, it was re-emerging elsewhere in the common law world. Quite apart from the treatment in the United States of native title, the American Revolution was followed in several of the States by legislative repudiation of the tenurial system as the ultimate root of real property title. For example, in New York the legislature abolished all feudal tenures of every description, with all their incidents, and declared that all lands within that State were allodial (Kavanaugh v Cohoes Power & Light Corporation (1921) 187 NYS 216 at 236-237; Gray, The Rule Against Perpetuities, 4th ed (1942), §23). Of the developments in the United States, Chancellor Kent wrote in 1828 (Kent, Commentaries on American Law (1828), vol 3, p 412. For the views of Jefferson and John Adams and their influence upon constitutional theory in the United States, see Edgeworth, “Tenure, Allodialism and Indigenous Rights at Common Law: English, United States and Australian Land Law Compared after Mabo v Queensland”, Anglo-American Law Review, vol 23 (1994) 397, at pp 399-403): Thus, by one of those singular revolutions incident to human affairs, allodial estates, once universal in Europe, and then almost universally exchanged for feudal tenures, have now, after the lapse of many centuries, regained their primitive estimation in the minds of freemen. … The authorisation by the 1910 Act and the 1962 Act of activities amounting to physical inconsistency (in the sense indicated above) with the continued exercise of what now are accepted as existing rights of native title would manifest, as a matter of necessary implication, the legislative intention to impair or extinguish those rights. I have referred to legislative intention with the particular meaning of “intention” indicated in the Native Title Act Case ((1995) 183 CLR 373 at 423) and 102 [2.30]

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Wik Peoples v Queensland cont. discussed earlier in these reasons. Impairment or extinguishment would also follow if the 1910 Act or the 1962 Act prohibited acts which would be committed in the exercise of what now would be accepted to be native title. I approach the analysis of the 1910 Act and the 1962 Act upon that footing and what follows should be read accordingly. Expansion of radical title Radical title is that acquired upon the assumption of sovereignty (as understood in the law of nations) or, rather, upon settlement (Mabo [No 2] (1992) 175 CLR 1 at 86-87) (as understood in that part of British constitutional law concerned with Imperial expansion). Radical title links international and constitutional law notions with those which support the private law of proprietary rights and interests in land. Thus, radical title was “a postulate to support the exercise of sovereign power within the familiar feudal framework of the common law” (Mabo [No 2] (1992) 175 CLR 1 at 54). The framework included the doctrine of tenures. Absolute and beneficial Crown ownership, a plenum dominium, was established not by the acquisition of radical title but by subsequent exercise of the authority of the Crown. The mediaeval notion of tenure was expressed by the proposition that all land was held directly or indirectly of the Crown. This involved relationships of reciprocal obligation between the respective parties at each level of the feudal structure, at the peak of which stood the sovereign. In an understanding of these relationships, including those between intermediate or mesne lord and tenant, “proprietary language is out of place” and the dominium of any particular dominus “was always a relative thing” (Milsom, The Legal Framework of English Feudalism (1976), p 39). The concept of ownership by the Crown of all land is a modern one, and its adoption in legal theory may have been related to Imperial expansion in the seventeenth and eighteenth centuries, well after the decline of feudalism (Simpson, A History of the Land Law, 2nd ed (1986), pp 1, 47-48; Edgeworth, “Tenure, Allodialism and Indigenous Rights at Common Law: English, United States and Australian Land Law Compared after Mabo v Queensland”, Anglo-American Law Review, vol 23 (1994) 397, at pp 428-432). Writing in 1896, Professor Jenks said (Jenks, A History of the Australasian Colonies (1896), p 59): [T]he theory had almost died a natural death when it sprang to life again in the most unexpected manner with the acquisition of the great English colonies. For if, as was the case, no subject could show a recognised title to any of the countless acres of America and Australia, at a time when those countries were first opened up by white men, it followed that, according to this relic of feudal theory, these acres belonged to the Crown. It may seem almost incredible that a question of such magnitude should be settled by the revival of a purely technical and antiquarian fiction. In the law, fictions usually are acknowledged or created for some special purpose, and that purpose should be taken to mark their extent (Mabo [No 2] (1992) 175 CLR 1 at 212; Morris v Pugh (1761) 3 Burr 1241 at 1243 [97 ER 811 at 811]; Fuller, Legal Fictions (1967), pp 56-71). The State of Queensland relies strongly upon a passage in the judgment of Brennan J in Mabo [No 2]. In the course of discussing the extinguishment of native title upon the vesting by Crown grant of an interest in land inconsistent with continued enjoyment of a native title in respect to the same land, his Honour said (Mabo [No 2] (1992) 175 CLR 1 at 68): If a lease be granted, the lessee acquires possession and the Crown acquires the reversion expectant on the expiry of the term. The Crown’s title is thus expanded from the mere radical title and, on the expiry of the term, becomes a plenum dominium. Queensland submits that the grant by the Crown of a lease necessarily involves the acquisition by the Crown of the reversion which is expectant upon the expiry of the term. Accordingly, in granting the lease, the Crown exercises sovereign power in such a fashion as to assert absolute and beneficial ownership out of which the lease is carved. That absolute and beneficial ownership is, as a matter of law, inconsistent with the continued right to enjoy native title in respect of the same land. [2.30]

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Wik Peoples v Queensland cont. It is necessary for the State to make good these propositions by their adaptation to the statutory systems for the disposition of Crown lands established by the 1910 Act and the 1962 Act. It is here, in my view, that the case for the State breaks down. I have referred to the significant constitutional developments embodied in mid-nineteenth century legislation, culminating in Queensland with the 1867 Act, whereby settlement was achieved, in favour of the colonial legislatures, of the conflicting fiscal and political interests of the Imperial and local authorities and of the executive and the colonial legislatures in the disposition of the waste lands of the Crown. That settlement, embodied in ss 30 and 40 of the 1867 Act, was implemented in successive statutes. These provisions include sub-ss (1) and (2) of s 6 of the 1910 Act, which state (section 8 of the Crown Lands Act 1884 (Q), s 12 of the Land Act 1897 (Q) and s 6(1) and (2) of the 1962 Act were all in similar terms): (1) Subject to this Act, the Governor in Council may, in the name of His Majesty, grant in fee-simple, or demise for a term of years, any Crown land within Queensland. (2) The grant or lease shall be made subject to such reservations and conditions as are authorised or prescribed by this Act or any other Act, and shall be made in the prescribed form, and being so made shall be valid and effectual to convey to and vest in the person therein named the land therein described for the estate or interest therein stated. Section 209(1)(ii) of the 1910 Act empowers the Governor in Council to make regulations which prescribe forms and “the conditions, stipulations, reservations, and exceptions that shall be inserted … in grants, leases, licenses, and other instruments”. The term “Crown Land” was defined in s 4 as follows (section 4 of the 1910 Act followed, in this respect, the terms of earlier legislation including the Pastoral Leases Act 1869 (Q) (s 3), the Crown Lands Act 1884 (Q) (s 4) and the Land Act 1897 (Q) (s 4) and the pattern is continued in the definition of “Crown Land” in s 5 of the 1962 Act): All land in Queensland, except land which is, for the time being – (a) Lawfully granted or contracted to be granted in fee-simple by the Crown; or (b) Reserved for or dedicated to public purposes; or (c) Subject to any lease or license lawfully granted by the Crown: Provided that land held under an occupation license shall be deemed to be Crown land. The phrase “[a]ll land in Queensland” was apt to include land in respect of which the Crown held radical title. By that radical title, as a postulate of the doctrine of tenures and a concomitant of sovereignty, the common law enabled the Crown to grant interests in land to be held of the Crown and to become absolute beneficial owner of unalienated land required for the purposes of the Crown (Mabo [No 2] (1992) 175 CLR 1 at 48). However, by the constitutional settlement of the mid-nineteenth century, these prerogatives of the Crown, part of the common law, were displaced. Thereafter, all land in Queensland was to be dealt with pursuant to statute. It was by legislation that interests in the land were to be granted by the Crown and land was to be reserved or dedicated to “public purposes” (the term “Public Purposes”, as it appeared in the definition of “Crown Land” in the 1910 Act, itself was defined in s 4 by reference to a lengthy list of objects or purposes, including “Aboriginal reserves”). Section 6(1) of the 1910 Act conferred upon the Governor in Council power to grant in fee simple or as a demise for a term of years any land in Queensland, save that land for the time being in fee simple, reserved for or dedicated to public purposes or subject to lease or licence lawfully granted by the Crown. (The effect of the proviso to par (c) of the definition of “Crown Land” was to classify as Crown land susceptible of grant or demise under s 6 land held merely under an occupation licence issued under Pt III (ss 40-47) of the 1910 Act.) The statute maintained a legal regime where, in respect of 104 [2.30]

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Wik Peoples v Queensland cont. what it identified as leases, there was no need for the creation in the Crown of a reversionary estate out of which lesser estates might then be granted. Rather, land which for the time being had been subject to any such “lease” lawfully granted under s 6, was, upon ceasing to be so and, by reason of it now answering the definition of “Crown Land” in s 4, liable further to be dealt with by the Crown under s 6. Moreover, as will appear later in these reasons, whilst entry by the lessee was essential, at common law, to the creation of the reversion, s 6(2) operated effectually to vest interests granted under the statute in advance of and without dependence upon entry. In addition, special provision was made by s 135 for consequences of forfeiture or other premature determination of any lease or licence. Section 135 provided: If the license or lease of any land is determined by forfeiture or other cause before the expiration of the period or term for which it was granted, then, unless in any particular case other provision is made in that behalf by this Act, the land shall revert to His Majesty and become Crown land, and may be dealt with under this Act accordingly. It is apparent that the term “revert” is used in the particular sense of the reassumption of the character of “Crown land” liable to further disposition under s 6. Further, as I seek to explain later in these reasons, whilst entry was necessary to create the common law reversion, compliance with s 6(2) effectually vested without the need for prior entry, the interest granted. Upon that state of affairs, s 135 would operate in the above manner. The 1962 Act contains similar provisions to ss 4, 6 and 135 of the 1910 Act. (The 1962 Act, s 5 (definitions of “Crown land” and “Public purposes”), s 6, s 299 (forfeiture).) Accordingly, I would reject the submission for the State that the scheme of the 1910 Act and the 1962 Act is such that, with respect to the grant of limited interests thereunder by the Crown, the necessary consequence is the acquisition by the Crown of a reversion expectant on the cesser of that interest, thereby generating for the Crown that full and beneficial ownership which is necessarily inconsistent with subsisting native title. Whatever be the interests or other rights created under s 6 of the 1910 Act and the 1962 Act, they “owe their origin and existence to the provisions of the statute” (cf Davies v Littlejohn (1923) 34 CLR 174 at 187-188). TOOHEY J: … Radical title Because of the course taken by the argument before the Court in the present appeals, it is necessary to say something about radical title, though this matter was considered by the Court in Mabo [No 2]. (See generally, Rogers, “The Emerging Concept of “Radical Title” in Australia: Implications for Environmental Management”, Environmental and Planning Law Journal, vol 12 (1995) 183.) As is clear from the judgments in that case, a consequence of sovereignty is the attribution of radical title to the Crown. But radical title does not of itself carry beneficial ownership. Brennan J described it in these terms (Mabo [No 2] (1992) 175 CLR 1 at 48): The radical title is a postulate of the doctrine of tenure and a concomitant of sovereignty. In Amodu Tijani v Secretary, Southern Nigeria ([1921] 2 AC 399 at 403) the Privy Council, in a judgment delivered by Viscount Haldane, spoke of the title of the Sovereign as “a pure legal estate, to which beneficial rights may or may not be attached”. From the distinction thus made, it is apparent that the grant of an estate in land does not require the Crown to assume beneficial ownership of the land. Nor does the relevant legislation so dictate. As Brennan J observed in Mabo [No 2] ((1992) 175 CLR 1 at 51): It is only the fallacy of equating sovereignty and beneficial ownership of land that gives rise to the notion that native title is extinguished by the acquisition of sovereignty. Later his Honour said (Mabo [No 2] (1992) 175 CLR 1 at 68): [2.30]

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Wik Peoples v Queensland cont. If a lease be granted, the lessee acquires possession and the Crown acquires the reversion expectant on the expiry of the term. The Crown’s title is thus expanded from the mere radical title and, on the expiry of the term, becomes a plenum dominium. That the radical title lies with the Crown immediately before the grant of a pastoral lease is clear. But how relevant is it to speak of the Crown acquiring the “reversion” in such a case and of the Crown’s title becoming a plenum dominium? It has been said (Helmore, The Law of Real Property in New South Wales, 2nd ed, (1966), p 227): “A reversion is the interest which remains in a grantor who creates out of his own estate a lesser estate” (emphasis added). In support of the foregoing statement, the author quotes from Blackstone (Commentaries, Book II, Ch 11, p 175): An estate in reversion is the residue of an estate left in the grantor, to commence in possession after the determination of some particular estate granted out by him … For the fee-simple of all lands must abide somewhere; and if he, who was before possessed of the whole, carves out of it any smaller estate, and grants it away, whatever is not so granted remains in him. The doctrine of estates is a feudal concept in order to explain the interests of those who held from the Crown, not the “title” of the Crown itself. The discussion of reversion in the standard texts invariably focuses on the holder of an estate in fee simple who grants some lesser estate, usually a life estate or lease. But that is not the case here. The matter was explained by Brennan J in Mabo [No 2] ((1992) 175 CLR 1 at 50) when he said: Recognition of the radical title of the Crown is quite consistent with recognition of native title to land, for the radical title, without more, is merely a logical postulate required to support the doctrine of tenure (when the Crown has exercised its sovereign power to grant an interest in land) and to support the plenary title of the Crown (when the Crown has exercised its sovereign power to appropriate to itself ownership of parcels of land within the Crown’s territory). To speak, in relation to the Crown, of a reversion expectant on the expiry of the term of a lease as expanding the Crown’s radical title to a plenum dominium is, in my respectful view, to apply the concept of reversion to an unintended end. To say this in no way detracts from the doctrine of sovereignty; the Crown may thereafter deal with the land as is authorised by statute, disposing of it in some way or appropriating it to its own use. (These appeals are not concerned with the operation of the Racial Discrimination Act 1975 (Cth).) Indeed it may deal with the land during the term to the extent that it is authorised by statute or by the terms of the grant to do so. In the present case, once a pastoral lease came to an end, the land answered the description of “Crown land” and might be dealt with accordingly. (See s 135 of the 1910 Act.) The invocation of reversion and plenum dominium, as those expressions are usually understood, does not lie easily with the position of the Crown under the relevant statutes. The proposition that it is the radical title of the Crown with which we are concerned and that, on the expiration or other termination of a pastoral lease, it is still the radical title that must be considered in relation to native title rights, does not minimise the sovereignty of the Crown. Nor does it undermine the principle that native title rights depend on their recognition by the common law. That recognition carries with it the power to extinguish those rights. But it requires a very clear act to do so. To contend that there is a beneficial reversionary interest in the Crown which ensures that there is no room for the recognition of native title rights, is in my view, to read too much into the Crown’s title. Furthermore, if it is the reversion which carries with it beneficial title, why is that title not there in the first place? And if it is the existence of that beneficial title which extinguishes native title rights, why were those rights not extinguished before the grant of a pastoral lease? There is a curious paradox involved in the proposition. While nothing in the judgments of the Court, in particular those in Mabo [No 2], point with any certainty to the answers demanded of the Court in the present proceedings, that decision is a valuable 106 [2.30]

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Wik Peoples v Queensland cont. starting point because it explores the relationship between the common law and the “law” which evidences native title rights. So far as the scope of Mabo [No 2] is concerned, it should be noted that in their joint judgment Mason CJ and McHugh J, with the authority of the other members of the Court constituting the majority, said (Mabo [No 2] (1992) 175 CLR 1 at 16): The formal order to be made by the Court … is cast in a form which will not give rise to any possible implication affecting the status of land which is not the subject of the declaration in … the formal order. This simply reinforces the proposition that while the judgments in Mabo [No 2] are significant for an understanding of the issues in the present appeals, they do not determine their outcome.

[2.35]

Notes and Questions

1. Brennan CJ (in dissent) reiterated the view he expressed earlier in Mabo v Queensland (No 2) (1992) 175 CLR 1, that it was necessary to maintain for Australian land law, the basic underlying principles of English land law. “The doctrines of tenure (with its incident of escheat) and estates ensure that no land in which the Crown has granted an interest is ever without a legal owner” (at 90-91). After reading the extracts above of two of the majority judges, do you agree? 2. By rejecting the argument that the Crown acquired a reversion expectant on the expiration of the pastoral leases, is the High Court also commenting on the application of the doctrine of tenure for Australia? See Godden, “Wik: Feudalism, Capitalism and the State. A Revision of Land Law in Australia” (1997) 5 APLJ 162 and Hepburn, “Feudal Tenure and Native Title: Revising an Enduring Fiction” (2005) 27 Syd L Rev 49. In a series of articles – subsequently consolidated and revised in her book, Secher, Aboriginal Customary Law: A Source of Common Law Title to Land (Hart Publishing, Oxford, 2014) – Dr Ulla Secher has analysed, inter alia, the effect of the Mabo (No 2) and Wik decisions and subsequent High Court cases on the doctrine of tenure for Australia: see Secher, “The Meaning of Radical Title: The Pre-Mabo Authorities Explained – Part 1” (2005) 11 APLJ 179; Secher, “The Meaning of Radical Title: The Pre-Mabo Authorities Explained – Part 2” (2005) 11 APLJ 209; Secher, “A Common Law Doctrine of Suspension of Native Title?: Judicial Interpretations of the “Reversion Expectant Argument” and the Concept of “Operational Inconsistency” – Part 1” (2005) 12 APLJ 1; Secher, “A Common Law Doctrine of Suspension of Native Title?: Judicial Interpretations of the “Reversion Expectant Argument” and the Concept of “Operational Inconsistency” – Part 2” (2005) 12 APLJ 26; Secher, “The Doctrine of Tenure in Australia Post-Mabo: Replacing the “Feudal Fiction” with the “Mere Radical Title Fiction” – Part 1” (2006) 13 APLJ 107; Secher, “The Doctrine of Tenure in Australia Post-Mabo: Replacing the “Feudal Fiction” with the “Mere Radical Title Fiction” – Part 2” (2006) 13 APLJ 140; Secher, “The Concept of “Operational Inconsistency in Australia: Implications for Native Title” – the Common Law and Statutory Positions” (2010) 18 APLJ 218. Despite apparent comments to the contrary by Brennan J in Mabo (No 2), Secher has argued cogently that the majority of judges in the Mabo case (including Brennan J) had already rejected the notion that the doctrine of tenure formed the basis of absolute beneficial ownership in the Crown of unalienated Crown lands: Secher, “The Doctrine of Tenure in [2.35]

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Australia Post-Mabo: Replacing the “Feudal Fiction” with the “Mere Radical Title Fiction” – Part 2” (2006) 13 APLJ 140 at 140-158. 3. Although the doctrine of tenure was originally part of the law of the American colonies, in most states it has been abolished (by legislation, by judicial decision or by constitution): for a discussion, see New Zealand Law Commission, Tenure and Estates in Land (Preliminary Paper No 20, June 1992), pp 11-12. In England, the Law Commission has accepted the need for reform of feudal land law (stating “the present law is indefensible”) and planned to include it in the Ninth Programme of Law Reform (Law Com No 271 [11.26] and Law Com No 294 [6.24]). However, the Commission subsequently decided to defer the project in its Ninth, Tenth and Eleventh Programmes so that other projects of greater public significance could be addressed: Law Com No 330 [3.2]-[3.3]. In Scotland, the system of feudal land tenure has been abolished. (Abolition of Feudal Tenures etc (Scotland) Act 2000 effecting the recommendations of Scottish Law Commission, Report on Abolition of Feudal System 1999 (Scots Law Com No.168). 4. See McNeil, Common Law Aboriginal Title (1989) and the Secher articles and book for discussion of the interface between the doctrine of tenure and native land rights. 5. The only incident of socage tenure to retain any current relevance is that of escheat. Escheat for want of an heir or devisee has been abolished in Australia: see Moore, Grattan and Griggs, Australian Real Property Law (6th ed, Thomson Reuters, Sydney, 2016), [2.20]. However, it is still possible, in some circumstances, for escheat to occur. Where a trustee in bankruptcy or a liquidator of a landowner disclaims the land under statutory powers, the land escheats to the Crown. See Re Middle Harbour Investments Ltd [1977] 2 NSWLR 652; Scmlla Properties Ltd v Gesso Properties (BVI) Ltd [1995] BCC 793; Sandhurst Trustees Ltd v 72 Seventh Street Nominees Pty Ltd (in liq) (1998) 45 NSWLR 556. Any charges on the land remain. In National Australia Bank Ltd v New South Wales (2009) 182 FCR 52; 260 ALR 115 at [23], however, Rares J expressed the view, without deciding, that the process of escheat in these circumstances was subject to the power of the court to make an order vesting title to the disclaimed land in someone other than the Crown, pursuant to provisions of the Bankruptcy Act 1966 (Cth) and the Corporations Act 2001 (Cth). Also see Note, “Escheat: A Medieval Doctrine Revisited” (2010) 84 ALJ 76. 6. In Yanner v Eaton (1999) 201 CLR 351 the High Court held that legislation vesting “property” of all wild fauna in the Crown, did not vest beneficial ownership in the Crown. The legislation was held to be regulatory in nature. The decision provides ideological support for the view that the doctrine of tenure essentially provides the Crown with a supervisory and governmental role and gives rise only to radical or “bare” title in the Crown.

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DOCTRINE OF ESTATES Western Australia v Ward [2.40] Western Australia v Ward (2000) 170 ALR 159 Federal Court of Australia [An extract of the High Court decision in this case and the reasons for decision relating to native title issues can be found at [7.70]. North J was in dissent in the full Federal Court. This part of his judgment is extracted here as it provides a clear summary of the history and development of doctrines of tenures and estates.] NORTH J: … Change as a feature of the history of property law Nowhere has modification and change marked the history of property law more clearly than in relation to the doctrine of tenure. This doctrine was the first way in which the ownership of property was fragmented. It underpinned the feudal system, so that the land law reflected the social demands of the time. Through the process of subinfeudation, a hierarchy was set up in which everyone held land of a superior, with the King at the apex. Each person in the hierarchy owed services to the mesne lord above, and was also owed services by those below. Interests in land were therefore not granted outright to tenants, and it was implicit in the relationship of tenure that both the grantor and the tenant have interests in the land at the same time. In the fifteenth century Littleton classified the various tenures by reference to the nature of service which the grant of land required the tenant to render. Thus, for instance, a tenant holding by knight service was required to fight as a knight or supply knights for battle. A tenant who held by castle-gard was obliged to serve in defence of castles, and a tenant holding by grand sergeanty was required to render service of a personal nature, and so on. A major change in the tenurial system reflected the social changes then occurring. Originally the tenures formed the basis of social organisation and reflected the economic, military and spiritual cooperation between all segments of society. In due course the value of fixed services declined and an economy based on contract and the payment of wages grew up. The obligation to render services was replaced by the obligation to pay “rent”. The position today is described by Simpson in A History of the Land Law 2nd ed, 1986, p 1 as follows: Indeed, so unimportant have tenures become that nobody certainly knows what sorts of tenure can still exist, and in practice this matters not at all. As the incidents of land holding changed so did the ability to transfer those interests. In the earliest times the tenant’s interest in land was not heritable as of right. In due course the tenant was entitled to pass his interest to his heir without the consent of the grantor. By the time of the Statute of Quia Emptores 1290 (UK) it was recognised that the tenant had the right to alienate his interest. Each of these steps constituted a radical change which was accommodated within the system of tenure and which reflected the requirements of contemporary society. By demonstrating that several persons could hold proprietary interests in the one piece of land, the doctrine of tenure laid the groundwork for the division of land in ways other than pursuant to the tenurial relationship. Lawson and Rudden in The Law of Property 2nd ed, 1982 state at p 81, that “tenure, since it denied in principle the unity of ownership, created a mental atmosphere favourable to the division of ownership on other lines also”. In particular, with the evolution of the doctrine of estates, property interests came to be fragmented on the basis of time. Whereas the doctrine of tenure recognised that a number of persons could have a proprietary interest in the one piece of land at the same time, by relying upon duration, the doctrine of estates allowed for the creation of successive interests, present and future, in the same piece of land. [2.40]

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Western Australia v Ward cont. In essence, the doctrine of estates reflected the idea that a person should be able to have an interest in land giving rise to a present right to possession, while at the same time other persons would also have interests in the same land giving them future rights to possession. Kevin Gray and Susan Francis Gray in The Idea of Property in Land (referred to above at [789]) at pp 28-29 discuss the temporal basis of the doctrine of estates in the following terms: It was left to the doctrine of estates to quantify the grades of abstract entitlement which might be enjoyed by any particular tenant (or landholder) within the tenurial framework. This doctrine spelt out a rich taxonomy of “estates” in the land, each estate representing an artificial proprietary construct interposed between the tenant and the physical object of his tenure. Each tenant owned (and still owns) not land but an estate in land. The precise nature of the estate was graded by its temporal duration and by the possible attachment of variegated conditions precedent or subsequent. Each common law estate – whether the fee simple, the fee tail, or the life estate – comprised a time-related segment of the bundle of rights and powers exercisable over land; and the doctrine of estates effectively provided diverse ways in which three-dimensional realty might be carved up in a fourth dimension of time. In Walsingham’s Case (1573) 2 Plowd 547 at 555; 75 ER 805 at 816-817 it was said: … the land itself is one thing, and the estate in the land is another thing, for an estate in the land is a time in the land, or land for a time, and there are diversities of estates, which are no more than diversities of time … Lawson and Rudden also discuss how notions of duration could be divided through the doctrine of estates. The authors state (p 88): In relation to land the solution long ago adopted by English law was to create an abstract entity called the estate in the land and to interpose it between the tenant and the land. Since the estate was an abstract entity imagined to serve certain purposes, it could be made to conform to a specification, and the essential parts of the specification were that the estate should represent the temporal aspect of the land – as it were a fourth dimension – that it should be divisible within that dimension in respect of time according to a coherent set of rules, but that the whole of that dimension, the estate, should be regarded as existing in the present moment so that slices of the estate representing rights to successive holdings of the land should be regarded as present estates co-existing at the same time. The change in the importance of the doctrine of estates is explained by Simpson at pp 1-2 as follows: The doctrine of estates too is still with us, though in a guise which would hardly be intelligible to a medieval lawyer. But although the fundamental nature of these two doctrines [the doctrine of tenure and the doctrine of estates] is avowed in the leading modern textbook on real property, estates no longer have the fascination that once they had, and tenure is little discussed. The emphasis of the modern law passes both doctrines by, and rightly so. If we go back into the history of the land law the emphasis changes. In the eighteenth and early nineteenth centuries the ablest property lawyers are concerned to work out the subtleties of the rules governing the limitation of estates, particularly in connection with the elaborate family settlements of the time; when we reach the fifteenth century Littleton’s treatise on the law of real property is traditionally called Tenures, and though he deals at length with the doctrine of estates it is the tenurial quality of the law which bulks largest in his analysis. Thus, it can be seen that while native title is not an estate recognised by the common law, there is nothing inconsistent within the common law in the concept of suspension of property rights. It reflects an idea which lies at the foundation of the doctrine of estates itself. Further, the changes accommodated through history in the elements of the doctrine of estates show the capacity of property law to change as required by contemporary circumstances. 110 [2.40]

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Western Australia v Ward cont. It should also be remembered that the original estates in property law were the freehold estates of fee simple, fee tail and life estate. Initially, leaseholds were not classified as estates. Leaseholds created contractual rights only and could be enforced by contractual remedies. Late in the fifteenth century the common law courts permitted leaseholders to recover the land itself in an action for ejectment. Once this remedy became available the common law could no longer deny leaseholders the status of estate holders. The incorporation of leaseholds into the doctrine of estates is yet another example of a change by which circumstances have seen structural alterations in the law of property. Indeed change has continued in this area. Last year the House of Lords decided in Bruton v London & Quadrant Housing Trust [1999] 3 WLR 150 that a leasehold does not always create an estate in land. Mr Bruton occupied a flat under an agreement with the Housing Trust. The flat was in a building owned by the London Borough of Lambeth. The Borough and the Trust entered into an agreement designated a licence, in which it was agreed that the Borough did not grant an estate or other proprietary interest to the Trust. The question to be decided was whether the Trust and Mr Bruton were landlord and tenant for the purposes of the statutory repairing obligations. The House of Lords considered that the relationship was that of landlord and tenant. In response to the argument that there could be no lease between Mr Bruton and the Trust because the Borough did not grant any proprietary interest to the Trust, Lord Hoffman, with whom Lord Slynn of Hadley, Lord Jauncey of Tullichettle, Lord Hope of Craighead and Lord Hobhouse of Woodborough agreed, said at 156-157: First, the term “lease” or “tenancy” describes a relationship between two parties who are designated landlord and tenant. It is not concerned with the question of whether the agreement creates an estate or other proprietary interest which may be binding upon third parties. A lease may, and usually does, create a proprietary interest called a leasehold estate or, technically, a “term of years absolute”. This will depend upon whether the landlord had an interest out of which he could grant it. Nemo dat quod non habet. But it is the fact that the agreement is a lease which creates the proprietary interest. It is putting the cart before the horse to say that whether the agreement is a lease depends upon whether it creates a proprietary interest. No reference to the adaptability of the law to contemporary needs in relation to property dealing would be complete without reference to the growth of uses and trusts. The Courts of Chancery recognised a division between beneficial enjoyment and legal title – a division which the common law did not entertain … [Discussed further at [2.70]ff.] The system of law which saw the growth of a concurrent system to take account of the demands of conscience continues today and is sufficiently flexible to accommodate the notion of the suspension of rights and interests dependent upon the existence of native title. Radical change has, thus, been a part of the development of property law. Indeed, in modern times the international community has developed a legal regime governing the ownership and use of the moon. Whilst Art 11 of the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (New York 1979 ATS (1986) No 14) prevents any nation from claiming property in the moon, its surface or natural resources, Art 6 confers limited usufructuary rights for the purposes of scientific investigation. The various adaptations described in this section have accommodated changes more radical than those necessary to accommodate the concept of suspension of the rights and interests dependent upon the holding of native title for the duration of the existence of inconsistent rights and interests.

[2.40]

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Tenure and Estates in Land [2.45] New Zealand Law Commission, Tenure and Estates in Land (Preliminary paper No 20, June 1992) pp 6-7, 20-23 30. Together with tenure there grew up the concept of estates in land. The second is historically and logically dependent on the first. As is said in Holdsworth’s History of English Law. It is not until doctrines of tenure and possession have been developed by a strong court that we get the rise of the peculiarly English doctrine of estates in the land (Vol 2, 67). 31. Conceptually, the doctrine of estates was an answer to the question: if a tenant did not own the land itself (for the King had paramount title to all land) what did the tenant own? What was the nature of the tenant’s rights? The early common law developed the abstraction called an “estate” interposed between the person entitled to land and the land itself (Lawson, The Rational Strength of English Law, 87). The most complete form of estate, nowadays tantamount in practice to ownership, was the estate in fee simple. The other freehold estates that have descended to modern times were the estate in fee tail and the estate for life. (The life estate includes the lease for life which is also a freehold estate, rather than a leasehold estate.) The great non-freehold estate is the estate for a term of years, that is, the leasehold. (The leasehold estate has a special and peculiar history that it is unnecessary to trace here.) 32. Theoretically the doctrine of tenure does not require a doctrine of estates as it was developed and still exists. The question might have been answered in other ways. Scotland for example has a doctrine of tenure but not of estates as it is known in New Zealand. But without tenure, there would have been no need for the concept of estates at all. No legal system outside the common law appears to have a system of estates. [After proposing the abolition of the doctrine of tenure, the Commission proceeded to consider the ramifications of such a proposal for the doctrine of estates.] … 86. If owners in fee simple are to become allodial owners, they will own the land itself. It would be meaningless and contradictory to say that owners have any estate in the land or that they will any longer hold it “in fee simple”. So to this extent at least the concept of “estate” must disappear. That is not to say that it has to be expressly abolished. 87. Life and leasehold interests however require a more detailed examination. The question is how any changes can best be accommodated. 88. The relationship between the doctrines of tenure and estates is both integral and intricate. As pointed out above in the Introduction, the second flowed from the first. Under the doctrine of tenure, whereby all land was held from the Crown, the question had to be faced: what was it that the King’s tenant owned? This was answered by the doctrine of estates. The law created an abstract entity called the estate and interposed it between the tenant and the land. Ownership was thus of something wholly conceptual or fictional: As the law of real property became distanced from the physical reality of land and entered a world of almost mathematical abstraction, it was possible to accord an immediate conceptual reality to each “slice” of time represented by an “estate”. (Gray, Elements of Land Law, 59-60.) 89. So the notion of estates enabled land ownership to be divided in respect of time: the land itself is one thing, and the estate in the land another thing, for an estate in the land is a time in the land, or land for a time, and there are diversities of estates which are no more than diversities of time … Walsingham’s Case (1573) 2 Plowden 547,555; 75 ER 805, 816. But the rights of ownership can be divided in time without the need for conceptual fictions. There are no estates in chattels but the leasing of chattels is commonplace. For example A can have exclusive possession of B’s motor car (either conditionally or unconditionally) for one year. The lessor B will continue to own the car, and will resume possession of it after the year has elapsed … 112 [2.45]

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Tenure and Estates in Land cont. Life interests 91. Can the principle that ownership can be divided in terms of time be used to make those who are now life tenants allodial owners for the period of their life? This would mean that the person who is to own the land after the life owner’s death has merely a future ownership. 92. There is no problem with ownership of a future interest as such; it is possible now and ought certainly to be retained. [The Commission considered various problems and continued.] 93. In the Commission’s view, a life estate is properly to be regarded as a dependent interest, the fee simple (at present) or the allodial ownership (under the scheme) always being vested in someone else. This is, of course, the status of a lease, even a lease for a very long term. And just as a lease is subordinate to the superior title of the fee simple proprietor, the present life estate could sensibly be so regarded if allodial ownership were introduced. This is what the scheme proposes. It also takes the opportunity to eliminate obscurities and anomalies. Leases 94. What is the significance of the fact that a lessee has an “estate” in the land? Does it add anything to the fact that a lease gives exclusive possession of the land in accordance with its terms, a possession that the law recognises and will enforce by appropriate remedies? Is the description of a leasehold interest as an estate simply a theoretical way of classifying it? If so, it does not seem to matter whether or not any legislation calls a leasehold interest an estate, but it might be better to get away from the old terminology altogether. However, care is necessary in making any change in the terminology not to create an impression that subleasing is no longer permitted. The scheme proposed does not and is not intended to affect a lessee’s ability to create subleases in accordance with the rules which presently apply to leasehold and subleasehold estates.

[2.50]

Notes and Questions

1. In Road Australia Pty Ltd v Commissioner of Stamp Duties [2001] 1 Qd R 327, the Queensland Court of Appeal commented on the meaning of the word “estate”. The word “estate” has two meanings in law, one narrow and the other broad. The narrow meaning is: “[T]he fee simple of land and any of the various interests into which it could formerly be divided at law, whether for life, or for a term of years or otherwise.” And the broad meaning is: “[A]ny property whatever”: see Halsbury’s Laws of England, 4th ed, vol 39(2), para 2. Under the narrow meaning, the only interests caught are the fee simple – that is, full ownership – and divisions, by reference to time, of that concept. For example, under the narrow meaning a leasehold interest would be an estate but a charge on land would not be. Under the broad meaning, any proprietary interest in land would be treated as an estate. It will be noted that the exclusion of a mortgagee’s interest from the statutory definition of “land” suggests that the reference to “estate” in the definition was intended to convey the broader meaning.

The narrow interpretation of the term “estate” conveys a more accurate description of the term and it is in this context that “estate” is used here. 2. The fee simple is the most extensive estate in duration. It is only the doctrine of tenure which prevents the holder of such an estate from being the absolute owner. The fee simple endures indefinitely and its holder may dispose of the estate inter vivos or by testamentary disposition. The fee simple was not always such an enduring interest: for a description of its development see Moore, Grattan and Griggs, Australian Real Property Law (6th ed, [2.50]

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Thomson Reuters, Sydney, 2016), [2.100]; Epstein, “Past and Future: The Temporal Dimension in the Law of Property” (1986) 64 Wash ULQ 667. 3. The fee tail estate was used only rarely in Australia. The original aim of the fee tail estate was to keep the estate within a particular branch of a family and there was little interest in using the fee tail to effect such a result in Australia: see Moore, Grattan and Griggs, Australian Real Property Law (6th ed, Thomson Reuters, Sydney, 2016), [2.105] – [2.120]. South Australia is the only jurisdiction in which the fee tail may still be created over general law land or Torrens system land. In the other jurisdictions, the fee tail can no longer be created and existing fees tail have either been automatically converted into fees simple or may be so converted by statutory provisions providing for the barring of the entail: see Moore, Grattan and Griggs, Australian Real Property Law (6th ed, Thomson Reuters, Sydney, 2016), [2.125]. 4. The life estate may exist in two forms: it may be granted for the life of the grantee or for the life of a person other than the grantee, an estate pur autre vie. The latter form often arises not pursuant to a direct grant but as a result of the holder of a life interest conveying the estate to another person. 5. The doctrine of waste is the means whereby the common law balanced the interests of persons with successive interests in land. Any act in respect of the land which affected its ongoing character was potentially regarded as waste. Thus, the holder of a future interest could restrain any harm to the land by the person currently entitled to possession. The doctrine is also relevant to the relationship of a tenant (particularly under a fixed-term lease) and a landlord and probably as between co-owners each at present entitled to possession of the land and of whom one may be acting in a way which is detrimental to the land. There are four types of waste: voluntary waste, permissive waste, ameliorating waste and equitable waste. Voluntary waste is constituted by an intentional act damaging the land or buildings; permissive waste occurs where deterioration to land is allowed (normally a failure to repair); ameliorating waste is an act in relation to the land which benefits the land; equitable waste is a more serious form of voluntary waste – the intentional causing of serious harm. It is difficult to perceive situations in which ameliorating waste will give rise to any legal dispute. Liability for waste depends upon the terms of the instrument creating the limited interest. An owner is liable for voluntary waste unless exempted by the terms of the instrument (described as being made unimpeachable for waste). Such an exemption does not extend to liability for equitable waste unless it is specifically stated to so extend. Liability for permissive waste only occurs where liability is imposed by the instrument. Voluntary waste includes not only intentional damage to the land or building but some acts which constitute exploitation of the land. The opening of a mine and the cutting of timber are clearly established acts of voluntary waste. For further discussion of the doctrine of waste, see Moore, Grattan and Griggs, Australian Real Property Law (6th ed, Thomson Reuters, Sydney, 2016), [13.45]–[13.65]. See also Moore, Grattan and Griggs, Australian Real Property Law (6th ed, Thomson Reuters, Sydney, 2016), [13.110]–[13.190] for a discussion of the various statutory rights and duties which cover the relationship of the life tenant and the remainderman. 114 [2.50]

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6. As is discussed in Chapter 14, the lease was not originally considered an estate in land: rather it was considered a personal, contractual transaction and relationship between the landlord and tenant. During the 15th century, however, the tenant’s right to recover the land on dispossession was recognised and the estate less than freehold, the leasehold estate, was recognised. What is the defining difference between a freehold estate and a leasehold estate? During the 20th century and beyond, changing social and economic conditions led to an increased importance for the contractual aspects of the landlordtenant relationship. Many contractual principles which were not formerly applied to the landlord-tenant relationship, have now been held to do so. Nevertheless, until recently, a tenancy was still always seen as giving rise to a proprietary interest, a leasehold estate in the land. However, the House of Lords in Bruton v London & Quadrant Housing Trust [2000] 1 AC 406 held that it is possible to have a lease which does not create a leasehold estate in the land but which is effective only in contract between the parties. 7. In order to create each of the estates, it was necessary to use a particular form of words, “words of limitation”. However, in all jurisdictions except South Australia, statute has modified the position and it is now the case that a disposition without the correct words of limitation is effective to pass a fee simple estate unless there is a contrary intention. Legislation concerning fee simple: Conveyancing Act 1919 (NSW), s 47(1), (2), (3) after 1 July 1920; Property Law Act 1958 (Vic), s 60(6), from 3l January 1905 to 31 December 1918 – the words “to A in fee” and “to A in fee simple” in addition to the correct words of limitation “to A and his heirs” passed a fee simple estate. Section 60(1), after 31 December 1918 the fee simple passed without the use of correct words of limitation unless there was a contrary intention – “to A”, “to A forever”; Property Law Act 1974 (Qld), s 29(1) – (2) after 4 December 1952; Property Law Act 1969 (WA), s 37(1) – (4), after 1 August 1969; Conveyancing and Law of Property Act 1884 (Tas), s 61(2), after 18 September 1874; Law of Property Act (NT), s 29. Legislation concerning the fee tail: Conveyancing Act 1919 (NSW), s 19(1), after 1 July 1920; Property Law Act 1958 (Vic), s 249 – a limitation which would have created a fee tail, for example, “to A and the heirs of his body” created a fee simple estate from 1 January 1886; s 60(6) – a limitation which showed an intention to create a fee tail, for example, “to A in tail male” created a fee simple estate from 31 January 1905. Query a limitation “to A in fee tail”; Property Law Act 1974 (Qld), s 22 after 1 December 1975; Property Law Act 1969 (WA), s 23(1) after 1 August 1969; Conveyancing and Law of Property Act 1884 (Tas), s 65 after 1 January 1884; Law of Property Act (NT), s 22. In Queensland and Western Australia, it appears that where there is a clear intention to create a fee tail but words are used which would not have been sufficient to create a fee tail (for example, “to A in tail”) the common law remains applicable and a life estate by default would result. Neither of the relevant provisions (ss 22 and 29 in Queensland and s 23(1) and s 37 in Western Australia) appear to apply. See Note (1953) ALJ 648. The use of correct words of limitation has never been required in relation to Torrens land. (For a more detailed discussion see Moore, Grattan and Griggs, Australian Real Property Law (6th ed, Thomson Reuters, Sydney, 2016), [2.175] In relation to dispositions by will a more lenient approach has always been adopted, with the courts putting into effect the intention of the testator (see Moore, Grattan and Griggs, Australian Real Property Law (6th ed, Thomson Reuters, Sydney, 2016), [2.185], [2.195] and [2.205]). [2.50]

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8. Inherent in the doctrine of estates is a recognition and acceptance of the concept of the creation of successive interests in land. In turn, this involves a clear recognition that future interests in land may exist. See above Note 5. Future interests are discussed in detail in Chapter 11. Would it be possible for future interests in land to exist if there were no doctrine of estates? See New Zealand Law Commission, Tenure and Estates in Land (Preliminary paper No 20, June 1992) pp 6-7, 20-23 extracted above. 9. The Victorian Law Reform Commission has proposed that the ability to create successive legal interests in land be abolished, and that successive interests only be created in equity, as beneficial interests under a trust. See Victorian Law Reform Commission, Review of the Property Law Act 1958 Final Report (2010), pp 66-70, 73. 10. Apart from the doctrine of estates other types of proprietary interests in land can exist (for example, the easement, the profit à prendre and the restrictive covenant). These rights do not involve tangible, possessory rights over the land but rather involve particular and specific rights with respect to the land. See Chapters 17 and 18. Determinable and conditional interests [2.55] Further limitations on the estates could be imposed by the inclusion of restrictions in the grant designed to limit the duration of the estate.

Zapletal v Wright [2.60] Zapletal v Wright [1957] Tas SR 211 Supreme Court of Tasmania CRISP J: The plaintiff and the defendant in this suit – the appellant and respondent respectively in the appeal – are registered proprietors as joint tenants of 2 roods 29 1/10 perches of land at Bellerive, subject to the encumbrances noted on the certificate of title. The plaintiff is claiming a sale of the property and division of the proceeds. The defendant was a married man, separated from his wife. Two or three years after the separation, he commenced cohabitation with the plaintiff and this continued for some fifteen years until 1955 when the plaintiff left and married another. Two children were born of the union. The defendant bought the land in 1951. The learned trial judge found that the plaintiff was not a contributor to the purchase. However, the defendant agreed at the plaintiff’s request to put the title in their joint names, which he did and they were so registered. The learned trial judge found that in doing so, the defendant’s intention was to confer a gift on the plaintiff of a joint interest in the land subject to the limitation or condition shortly to be noticed. This express intention he found sufficed to rebut the implication of any resulting trust in the defendant’s favour, and in this I think he was plainly right. The defendant’s evidence, which the learned judge accepted, as to the circumstances of the gift was as follows. The plaintiff had been worrying him that she had no security and that if he were to die his lawful wife would take all in preference to her. She therefore, asked for an interest in the land he was purchasing. He, for his part, was worried that if he did he might lose both her and the land. As he said, “He knew he couldn’t trust her,” that is, to remain with him. He therefore, before completing the gift by having her registered as joint proprietor, asked her what would be the position if she left him. Her answer, according to his evidence was, “Don’t be silly Jim. If I ever do that I will take my name off it the next day,” or another version of the same promise was, “I’d sign it back to you the next day if I did leave.” In another part of his evidence he said, “It was given to her on her own terms, that she would stick to me and behave herself.” The learned judge regarded the transaction as a gift, subject to a condition subsequent, the term of the condition being that if she should cease to cohabit with the defendant (otherwise than by the 116 [2.55]

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Zapletal v Wright cont. death of either of the parties) her interest should cease. I think that it was correctly so regarded. Initially I had some doubts as to whether it was not a terminable limitation, that is, an estate during cohabitation which is to be distinguished from an estate in fee subject to determination if she should cease to cohabit. The distinction is often a fine one, but it is well established. The subject is lucidly dealt with in Professor Cheshire’s The Modern Law of Real Property, 5th ed, Ch VI, s 1, where other references will be found. On this point some of the authorities are not always easy to follow, but I think that the agreement for the determination of the estate should be regarded as a condition subsequent for the following reasons. The form of the gift was an undivided moiety in fee; it was not in terms limited to an estate defined by reference to any prior event. In fact it might continue after the event in which defeasance was to take place or might become impossible or irrelevant, that is, after the defendant’s death. The form of the condition is such that it did not denote the extent of the estate but only the event in which the larger estate conferred may have been cut short. But it is better said by Preston: The (determinable) limitation marks the bounds or compass of the estate, and the time of its continuance. The condition has its operation in defeating the estate before it attains the boundary or has completed the space of time described by the limitation. (Preston on Estates, Vol 1, p 49, quoted by Cheshire, op cit, at p 523.) The distinction is important, because a condition subsequent void on a ground of illegality or because it is contra bonos mores may be ignored (Egerton v Brownlow (1853) 4 HLC 1, 120; Ex parte Naden, In re Wood (1874) LR 9, Ch 670) leaving the primary gift good but a terminable limitation void for the same reasons fails entirely. (In re Moore (1888) 39 Ch D, 116.) There is no law that a man may not make a valid gift to his mistress (Ayerst v Jenkins (1873) LR 16, Eq 275, 283). The primary gift is therefore good. Then, what of the condition which is a distinct clause by which an estate already limited is to be defeated. The learned trial judge in analysing the intention of the parties states his conclusions thus: Here the agreement between the parties showed a composite intention – first, that the plaintiff should have a beneficial interest so long as she continued to cohabit with the defendant, and secondly, an intention that if she should cease to cohabit, the whole beneficial interest should go to the defendant, but with respect I think this is very like stating the same thing in two different ways, the first as a conditional limitation (cf In re Lovell, Sparks v Southall (1873) LR 16, Eq 275, 283) and the second as a condition subsequent. The provision in question must, I think, be one or the other, it cannot be both. I have given my reasons for thinking it to be a condition subsequent and I think plainly its object was to bind the plaintiff to the defendant and to provide inducement for her not to leave him. In the defendant’s own words, “It was given to her on her own terms, that she would stick to me and behave herself,” that is, in the sense of being a loyal paramour. Hence I would say that the condition was void as tending to promote immorality (Gray v Mathias (1800) 5 Ves 286). It is true that the object of the gift may be regarded as a desire to make some provision for the plaintiff’s maintenance in the event of the defendant’s death when he should be no longer able to do so, and the gift may from that aspect be regarded as in the nature of “voluntary compensation by way of maintenance made to the (appellant) for the injury done to her by this past illicit connection” (Gibson v Dickie (1815) 3 M & S 463, and see In re Wootton Isaacson, Sanders v Smiles (1904) 21 TLR 89 and Knye v Moore (1822) 1 Sim & St 61, and other cases on the subject of past cohabitation as a valid consideration) but it is the condition to which attention must be directed as a distinct and separable provision, and the object of the condition in this case was not to secure to the plaintiff maintenance after cohabitation ceased, but to deprive her of it in the event of her voluntary termination of an immoral state. It may thus be said to have acted in terrorem, and in this respect the matter is completely distinguishable from Gibson v Dickie (1815) 3 M & S 463 and the other cases cited. [2.60]

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Zapletal v Wright cont. In my opinion, therefore, the plaintiff took by way of gift as joint tenant in fee simple free from the condition which is void (cf Ex parte Naden, In Re Wood (1874) LR 9, Ch 670) and she would be entitled to a declaration accordingly. She has not in fact asked for a declaration but for a sale. I think she is entitled to the order she seeks under ss 4 and 16 of the Partition Act 1869 (See Bray v Bray (1926) 38 CLR 542) and I would therefore uphold the appeal. BURBURY CJ: …The presence of the condition subsequent in the transaction from its inception I think must be taken as tending to perpetuate the illicit relationship and to keep the respondent apart from his legal wife. I think it must follow that the condition is void as tending to immorality. That upon its true construction it operates as a condition subsequent and not as a conditional limitation of the estate granted is I think immaterial for the purpose of determining its validity. The distinction is a vital one; as an illegal conditional limitation it would destroy the whole of the appellant’s interest, as an illegal condition subsequent it enables the appellant to retain her vested interest free from the condition. But that is a consequence which flows from the distinction made in the law of property between a conditional limitation and a condition subsequent. It follows in my opinion that the appellant is entitled to an absolute interest as a joint tenant for an estate in fee simple in the property the subject matter of the action and is entitled to all the rights of a joint tenant under the Partition Act 1869 (33 Vict No 11). Those rights are incidental to her legal estate and in giving effect to them the court is not enforcing an immoral transaction.

[2.65]

Notes and Questions

1. Although the distinction between conditional and determinable limitations has been described as “absurd” (Re Baillie, Faithful v Sydney Industrial Blind Institution (1907) 7 SR (NSW) 265), there is no doubt that it remains part of the law and as Gummow J in Caboche v Ramsay (1993) 119 ALR 215 at 227 stated there are clear logical and conceptual reasons for the differentiation. From your reading of Zapletal v Wright [1957] Tas SR 211, what are these reasons? See also Perpetual Trustee Co Ltd v Gilmour [1979] 2 NSWLR 716, Cram Foundation v Corbett-Jones [2006] NSWSC 495 and Belmont Park Investments Pty Ltd v BNY Corporate Trustee Services Ltd [2012] 1 AC 383 at 471-418, 439-440, where the distinction is accepted. 2. Consider whether a condition encouraging co-habitation outside legal marriage could now be considered a void one. See, for example, Seidler v Schallhofer [1982] 2 NSWLR 80. See also the legislation governing property disputes following the breakdown of de facto relationships. Currently, this legislation comprises the Family Law Act 1975 (Cth), ss 4AA, 90SL, 90SM and the Family Court Act 1997 (WA), ss 205ZA, 205ZB. In addition to the ACT and NT, the Commonwealth Act applies to all States, other than Western Australia, pursuant to a referral of power by the respective State Parliaments to the Commonwealth Parliament. This legislation gives recognition to the status of opposite sex and same sex de facto relationships (Family Law Act 1975 (Cth), s 4AA(5); Interpretation Act 1984 (WA), s 13A(3)) and is indicative of a change in prevailing attitudes to relationships other than legal heterosexual marriage. Do you consider that the introduction of such legislation could affect the findings in a case such as Zapletal?

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3. The fee simple absolute is far more prevalent than the conditional and determinable fees. As Gray and Gray remark in Elements of Land Law (5th ed, OUP, London, 2009) at p 244, the latter “throw up a range of complication wholly disproportionate to their contemporary significance”. Note, however, that in Australia, some grants of Crown land closely resemble grants of determinable fees simple: see Wilson v Anderson (2002) 213 CLR 401. 4. In what way is the distinction made between a conditional and a determinable interest? Consider the differences which result from a finding that a determinable or conditional interest exists. Note that the Victorian Law Reform Commission has proposed that determinable limitations be converted into conditional limitations, so that a small difference in drafting does not result in differences in legal validity. See Victorian Law Reform Commission, Review of the Property Law Act 1958 Final Report (2010), pp 71-73. 5. Historically, the courts have struck down conditions and limitations in a wide variety of circumstances. Conditions comprising substantial restraints on alienation (see, for example, Elton v Cavill (No 2) (1993) 34 NSWLR 289; John Nitschke Nominees Pty Ltd v Hahndorf Golf Club Inc (2004) 88 SASR 334; Re Rosher (1884) 26 Ch D 801; cf Re Macleay (1875) LR 20 Eq 186); conditions imposing total restrictions on marriage (Morley v Rennoldson (1843) 2 Hare 570; 67 ER 235 and conditions which lack certainty (Clayton v Ramsden [1943] AC 320) have all been held to be void. In contrast, conditions constituting limited restraints on alienation (Reuthlinger v MacDonald [1976] 1 NSWLR 88; Wollondilly Shire Council v Picton Power Lines Pty Ltd (1994) 33 NSWLR 551; Western Metals Resources Ltd v Murrin Murrin East Pty Ltd [1999] WASC 257; Vercorp Pty Ltd v Lin [2007] 2 Qd R 180; Southlink Holdings Pty Ltd v Morerand Pty Ltd [2010] VSC 214) or marriage (Re Macleay (1875) LR 20 Eq 186; Duggan v Kelly (1848) 10 Ir Eq Rep 473) and conditions restraining choice of religion (Blathwayt v Baron Cawley [1976] AC 307) have been upheld. In relation to restraints on alienation, the modern judicial approach “… indicates a distinct unwillingness to apply any sweeping view that all contractual restraints on alienation are necessarily void” (see Mackie “Contractual Restraint on Alienation” (1998) 12 Journal of Contract Law 255.) The leading recent example of this is Bondi Beach Astra Retirement Village Pty Ltd v Gora (2011) 82 NSWLR 665, where the New South Wales Court of Appeal upheld the validity of an almost total restraint on the alienation of a fee simple in a retirement village unit on the basis that it promoted the public policy of providing affordable accommodation for the aged. For a further discussion of relevant cases, see Gray and Gray, Elements of Land Law (5th ed, OUP, London, 2009), pp 227-230; Moore, Grattan and Griggs, Australian Real Property Law (6th ed, Thomson Reuters, Sydney, 2016), [2.235] – [2.260] and Grattan, “Revisiting Restraints on Alienation: Public and Private Dimensions” (2015) 41 Monash University Law Review 67. 6. It is important to consider the possible distinction between restraints on alienation imposed as a condition in the grant of an estate and restraints in covenants or agreements. In Nullagine Investments Pty Ltd v Western Australian Club Inc (1993) 177 CLR 635 Brennan J stated: In this country a court may hold invalid restraints on alienation imposed not only by conditions annexed to a gift or grant of an estate in land but also by covenants and agreements, Hall v Busst (1960) 104 CLR, 217-218, 223-224, 236, [2.65]

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246. But the grounds on which a condition subsequent to the gift or grant of an estate of freehold may be held invalid are not necessarily the same as the grounds on which invalidity strikes a covenant or agreement in an instrument which does not itself give or grant the estate the alienation of which is restrained. In the former case, as Dixon CJ said in Hall v Busst (1960) 104 CLR, at 217, “[t]he invalidity may be put on the ground of repugnancy to the grant or upon public policy or for that matter it may conceivably be attributed to an indirect effect of quia emptores”. In the latter case, the only basis for holding the covenant or agreement invalid is public policy.

However, in Bondi Beach Astra Retirement Village Pty Ltd v Gora (2011) 82 NSWLR 665, 738 - 740, Campbell JA expressed a preference for the view that the timing of the restraint vis a vis the acquisition of the relevant property, rather than the form of the restraint, was more significant. That is, his Honour thought that restraints imposed as part of the acquisition of the property by the restrained party should be decided on the same principles, whether the restraint was imposed by a condition in the grant of the estate or by contract. By contrast, his Honour thought that restraints imposed by contract at a later time and which were unconnected with the acquisition of the property by the restrained party were more likely to be valid on the basis that they served a legitimate interest. See Grattan, “Revisiting Restraints on Alienation: Public and Private Dimensions” (2015) 41 Monash University Law Review 67, 91 - 93. 7. Do you consider that some of the protections available in the Constitution may be relevant in this area? For example, in Australia, would the protection for freedom of religion in the Constitution affect the validity of a condition restraining choice of religion? Compare the European Convention for the Protection of Human Rights and Fundamental Freedoms: see Gray and Gray, Elements of Land Law (5th ed, OUP, London, 2009), pp 229-230.

EQUITABLE INTERESTS – THE DEVELOPMENT OF THE TRUST [2.70] The development of the equitable interest in land law began primarily as a result of the many fetters the common law placed on the holders of freehold estates. The holder of a freehold estate was unable, for example, to dispose of an estate by will (see Moore, Grattan and Griggs, Australian Real Property Law (6th ed, Thomson Reuters, Sydney, 2016), [2.290] for further detail). In order to avoid the fetters created by the common law, and in particular to gain free alienability of the interest in land, the freeholder began to employ the use. Typically, the freeholder conveyed the land to a trusted person who held the land not for his or her own use or benefit, but for the use of the grantor during the grantor’s lifetime and then for other members of the grantor’s family after the grantor’s death. The trusted person taking the legal estate was called the “feoffee to uses” and the person entitled to the use of the land was called the “cestui que use”. The problem was that the common law courts refused to view the cestui que use as having any interest in the land. From the beginning of the 15th century, the Chancellor on behalf of the King and in the exercise of the King’s residual judicial power, heard special petitions from persons with legitimate complaints who could find no appropriate cause of action in the defined forms of writ available in the common law courts. The Chancellor and the Chancery Council (later the Court of Chancery) gradually developed a set of rules in dealing with these petitions. These became the rules of equity. It was the Court of Chancery which began to enforce the use and provide protection for the cestui que use. (See generally Moore, Grattan and Griggs, Australian Real Property Law (6th ed, Thomson Reuters, Sydney, 2016), [2.315].) 120 [2.70]

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In general, equity followed the common law in the types of interests in land which could be created. However, there was the capacity for equity to permit the creation of interests unattainable at common law, and equity did, and continues to, use this capacity. For example, equity recognises the restrictive covenant, an interest in land which can exist in equity only. (See Moore, Grattan and Griggs, Australian Real Property Law (6th ed, Thomson Reuters, Sydney, 2016), Ch 18, Pts II and III.) One of the aims of the freeholder in employing the use was to avoid the payment of feudal dues. The King, being at the top of the feudal pyramid, lost a great deal from the reduction in payment of dues and so instigated the passing of the Statute of Uses in 1535. The aim of the statute was to abolish the use and to vest the legal estate in the cestui que use so that in a conveyance “to A and his heirs to the use of B and his heirs”, B took the legal estate and A took nothing. Upon the death of B, the legal estate holder, feudal dues would again be payable. Over the next 100 years, the equitable interest re-emerged. Eventually a grant “to A and his heirs to the use of B and his heirs to the use of C and his heirs” was recognised by the Court of Chancery as creating a legal interest in B (the Statute of Uses having executed the use) and an equitable interest in C. C’s equitable interest was equivalent to the equitable interest created by one single use before the Statute of Uses. The terminology altered and the words “to A and his heirs to the use of B and his heirs on trust for C and his heirs” became effective to create a legal estate in B and an equitable estate in C. Eventually, A’s name was removed and a grant “unto and to the use of B and his heirs on trust for C and his heirs” was equally effective to confer legal title on B and equitable title on C. B, the feoffee to uses, became the trustee and C, the cestui que use became the cestui que trust or “the beneficiary”. The Statute of Uses has been repealed in New South Wales (Imperial Acts Application Act 1969, s 8), Victoria (Imperial Acts Application Act 1980, s 5), Queensland (Property Law Act 1974, s 7) and the Northern Territory (Law of Property Act, s 6). In these jurisdictions the words “to A in fee simple on trust for B in fee simple” are effective to create a trust and legal and equitable title in A and B respectively (see also Property Law Act 1958 (Vic), s 19A). See further Moore, Grattan and Griggs, Australian Real Property Law (6th ed, Thomson Reuters, Sydney, 2016), [10.145]. The trust [2.75] In the course of his judgment in DKLR Holdings Co (No 2) v Commissioner of Stamp

Duties [1980] 1 NSWLR 510, Hope JA discussed the origins and nature of the trust. The analysis of Hope JA is unaffected by the decision of the High Court in the case (see (1982) 149 CLR 431.) His comments have been referred to and approved a number of times, most authoritatively by Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ in Commissioner of Taxation v Linter Textiles Australia Ltd (in liq) (2005) 220 CLR 592 at 606 and 612. See also, for example, Quarmby v Keating [2008] TASSC 71 at [17], Legal Services Commissioner v Dempsey [2008] 2 Qd R 272 at [38] and Chief Commissioner of Land Tax v Macary Manufacturing Pty Ltd (1999) 48 NSWLR 299 at 309-310. The judgment of Hope JA is extracted here for its discussion on the nature of the trust. The case concerned complex issues of stamp duty and references to the facts and decision have been omitted where possible.

DKLR Holdings Co (No 2) v Commissioner of Stamp Duties [2.80] DKLR Holdings Co (No 2) v Commissioner of Stamp Duties [1980] 1 NSWLR 510 New South Wales Court of Appeal [2.80]

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DKLR Holdings Co (No 2) v Commissioner of Stamp Duties cont. HOPE JA: … The starting point of a consideration of the questions which this part of the case raises seems to me to be the principles concerning the nature of legal and equitable estates. An unconditional legal estate in fee simple is the largest estate which a person may hold in land. Subject to qualifications arising under the general law, and to the manifold restrictions now imposed by or under statutes, the person seised of land for an estate in fee simple has full and direct rights to possession and use of the land and its profits, as well as full rights of disposition. An equitable estate in land, even where its owner is absolutely entitled and the trustee is a bare trustee, is significantly different. What is, perhaps, its essential character is to be traced to the origin of equitable estates in the enforcement by Chancellors of “uses” or “trusts” (a term originally synonymous with “uses”) in the confidence that he would perform which the owner had enfeoffed another person with land. When the Chancellor began to enforce the uses so confided, he intervened to enforce the duty which he considered the conscience of the feoffee bound him to satisfy; he did not intervene to enforce an obligation otherwise recognised at common law. “… at common law the use was nothing at all-not even a chose in action.”: Holdsworth, History of English Law, 3rd ed, Vol IV, 2nd ed, p 440. Moreover, as Maitland pointed out in his Lecture on Equity, 2nd ed, p. 31: “… the remedy is given not to the trustor but to the destinatory. In the earliest instances the trustor and the cestui que trust (or use) are the same person-still it is as destinatory, not as ‘author of the trust’ that he has the remedy. This marks it off from contract … This principle runs through our law of equity to the present day – the destinatory, beneficiary, cestui que trust has the remedy.” In due course, the obligation to carry the use into effect was enforced by the Chancellors against most, although not all, persons acquiring the legal ownership of the land: Holdsworth, op cit, pp 432, 433. When the modern trust developed, after the enactment of the Statute of Uses, it was similarly enforced and, indeed, the classes of persons against whom it could not be enforced became more limited. After some hesitation, a trust interest in respect of land came to be regarded, not merely as some kind of equitable chose in action, conferring rights enforceable against the trustee, but as an interest in property. The fact that equitable estates were not enforceable against everyone acquiring a legal title to the property did not prevent them from being so regarded; a legal owner of land could lose his estate in, or become unable to enforce his rights in respect of, land in a number of ways. Although there has long been a controversy whether trust interests are true rights in rem: cf Pettit, Equity and the Law of Trusts, 3rd ed, pp 48, 49, 50, there can be no doubt that the interest of the cestui que trust is an interest in property. As Rolle J said in R v Holland (1647) Style 20, 21; 82 ER 498, 499: “… a trust is not a thing in action, but may be an inheritance or a chatell (sic) as the case falls out.” These essential features of interests arising under private trusts are thus described in Jacobs’ Law of Trusts, 3rd ed, p 109: “… the trustee must be under a personal obligation to deal with the trust property for the benefit of beneficiaries, and this obligation must be annexed to the trust property. This is the equitable obligation proper. It arises from the very nature of a trust and from the origin of the trust in the separation of the common law and equitable jurisdictions in English legal history. The obligation attaches to the trustees in personam, but it is also annexed to the property so that the equitable interest resembles a right in rem. It is not sufficient that the trustee should be under a personal obligation to hold the property for the benefit of another, unless that obligation is annexed to the property. Conversely, it is not sufficient that an obligation should be annexed to property unless the trustee is under the personal obligation.” Several consequences follow. Firstly, an absolute owner in fee simple does not hold two estates, a legal estate and an equitable estate. He holds only the legal estate, with all the rights and incidents that attach to that estate. If he were to execute a declaration that he held the land in trust for himself absolutely, the declaration would be of no effect; it would give him no separate equitable rights; he would remain the legal owner with all the rights that a legal owner has. At least where co-extensive and commensurate legal and equitable interests are concerned, “… a man cannot be a trustee for 122 [2.80]

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DKLR Holdings Co (No 2) v Commissioner of Stamp Duties cont. himself.”: Goodright v Wells (1781) 2 Dougl 771, 778; 99 ER 491, 495 per Lord Mansfield. “You cannot have a legal estate in trust for yourself.”: Harmood v Oglander (1803) 8 Ves Jun 106, 127; 32 ER 293, 301 per Lord Eldon. Secondly, although the equitable estate is an interest in property, its essential character still bears the stamp which its origin placed upon it. Where the trustee is the owner of the legal fee simple, the right of the beneficiary, although annexed to the land, is a right to compel the legal owner to hold and use the rights which the law gives him in accordance with the obligations which equity has imposed upon him. The trustee, in such a case, has at law all the rights of the absolute owner in fee simple, but he is not free to use those rights for his own benefit in the way he could if no trust existed. Equitable obligations require him to use them in some particular way for the benefit of other persons. In illustrating his famous aphorism that equity had come not to destroy the law, but to fulfil it, Maitland, op cit, at 17, said of the relationship between legal and equitable estates in land: “Equity did not say that the cestui que trust was the owner of the land, it said that the trustee was the owner of the land, but added that he was bound to hold the land for the benefit of the cestui que trust. There was no conflict here.” This relationship can, perhaps, be usefully illustrated by reference to the possession, and the right to possession, of land which is held by a trustee subject to a private trust. As legal owner, and subject to any disposition of the right, such as would occur upon the granting of a lease, the trustee has at law the right to possession of the land and, unless somebody else is in possession, under him or adversely to him, he also has the legal possession of the land. He may maintain trespass against anyone who infringes that possession, and ejectment against any person who, without his consent, takes possession. At law a cestui que trust has no right to possession. He cannot sue the trustee at common law in ejectment: Roe d Reade v Reade (1799) 8 TR 118, 121, 122, 123; 101 ER 1298, 1300, 1301. If the trustee holds as a bare trustee for a beneficiary absolutely entitled, that beneficiary is, in equity, entitled to be put into possession if he so wishes, but he cannot sue the trustee in ejectment. His right can be enforced only by an order made in the exercise of the equitable jurisdiction of the court. If necessary, the court will, upon an appropriate indemnity being given, compel the trustee to allow the beneficiary to use his name to bring ejectment. When placed in possession by the trustee, at law the beneficiary is merely tenant at will of the trustee, the tenancy being determinable at law at any time on demand of possession by the trustee: Garrard v Tuck (1849) 8 CB 231, 250; 137 ER 498, 506; Melling v Leak (1855) 16 CB 652, 668, 669; 139 ER 915, 921, 922. As a corollary, the trustee might at law determine the beneficiary’s tenancy and recover the land from him in an action for ejectment, and the beneficiary would have no legal defence. He would, of course, have an equitable defence which he has long been able, by statute, to plead in the action at law. This position can be analysed in a similar way in respect of all the rights given to a trustee who holds property at law in trust absolutely for a beneficiary. In some cases the right vested in the trustee may be such that he cannot be compelled to allow the beneficiary to exercise it except (unless, because of the nature of the right, it is not permissible to do so) in his, the trustee’s, name. If this analysis be correct, although the beneficiary has an interest in the trust property, the content of that interest is essentially a right to compel the trustee to hold and use his legal rights in accordance with the terms of the trust.

[2.80]

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DKLR Holdings Co (No 2) v Commissioner of Stamp Duties cont. Where the trustee holds absolutely for the beneficiary, the beneficiary has a right in equity to be put, so far as practicable and generally subject to appropriate indemnities being given, into a position where directly, or indirectly, or for all practical purposes, he enjoys or exercises the rights which the law has vested in the trustee …

[2.85]

Notes

1. The trust is an obligation imposed on a person who has the legal title to property. The obligation binds such a person (the trustee) to use or deal with the property for the benefit of another person (the beneficiary). As the above historical introduction and the extract from DKLR Holdings Co (No 2) v Commissioner of Stamp Duties [1980] 1 NSWLR 510 demonstrate, the obligation of the trustee is enforceable in equity. Thus if X the owner of property conveys the property to A, on trust for B, the obligation of A to hold the property for the benefit of B is recognised and enforced in equity. As Gray and Gray, Elements of Land Law (5th ed, OUP, London, 2009), p 76 commented, “[t]he core of every trust is the idea that the formal or titular interest in some asset (eg the legal estate in fee simple) is vested, in a nominal capacity in one or more persons as trustee. The strict duty of such persons is to deflect all beneficial enjoyment of the trust asset to [those who hold the equitable interests under the trust].” 2. In the absence of an obligation of the kind described above being imposed on the holder of a legal title, how is the title held? See Re Transphere Pty Ltd (1986) 5 NSWLR 309 at 311 and Allen v Snyder [1977] 2 NSWLR 685 at 701. In Re Transphere, McLelland J stated: It is important to recognise the true nature and incidents of legal and equitable estates in property subject to a trust. They are clearly and succinctly described in the judgment of Hope JA in DKLR Holding Co (No 2) Pty Ltd v Commissioner of Stamp Duties [1980] 1 NSWLR 510, 518-520. (His Honour’s analysis is not affected by the decision of the High Court in that case – see 149 CLR 431.) I would not wish to detract from the value of Hope JA’s exposition by trying to summarise it. But what is significant for present purposes is the imprecision of the notion that absolute ownership of property can properly be divided up into a legal estate and an equitable estate. An absolute owner holds only the legal estate, with all the rights and incidents that attach to that estate. Where a legal owner holds property on trust for another, he has at law all the rights of an absolute owner but the beneficiary has the right to compel him to hold and use those rights which the law gives him in accordance with the obligations which equity has imposed on him by virtue of the existence of the trust. Although this right of the beneficiary constitutes an equitable estate in the property, it is engrafted onto, not carved out of, the legal estate. Hope JA (at 519) illustrates the point by the following quotation from Maitland – Lectures on Equity 2nd ed (1949) at 17: Equity did not say that the cestui que trust was the owner of the land, it said that the trustee was the owner of the land, but added that he was bound to hold the land for the benefit of the cestui que trust. There was no conflict here.

See also Chief Commissioner of Land Tax v Macary Manufacturing Pty Ltd (1999) 48 NSWLR 299 where the comments of Hope JA on the nature of the trust were quoted with approval. 124 [2.85]

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3. Historically and in the modern day context, the trust has been used to serve a number of purposes and to facilitate a variety of transactions. (See Note 6.) In whatever context it arises, however, the setting up of a trust reflects a need to vest beneficial use and enjoyment of the property in one person and to vest administration and varying degrees of control in another person. In some trusts, the trustee may have little or no effective control and no administrative tasks to perform. In such a trust, the trustee holds no more than the “bare” legal title. In other trusts, the trustee may have wide powers and detailed administrative duties to perform with respect to the trust property (see Gray and Gray, Elements of Land Law (5th ed, OUP, London, 2009), pp 77-78). 4. Regardless of the type of trust, the trustee has a fiduciary duty to manage the trust property in as profitable a manner as possible and the trustee must not profit by reason of his or her position as a trustee. (See Keech v Sandford (1726) 2 Eq Cas Ab 741; 22 ER 629; Boardman v Phipps [1967] 2 AC 46 and Attorney-General (Hong Kong) v Reid [1994] 1 AC 324 in which the nature of the duty is discussed. See also Barnes v Addy (1874) LR 9 Ch App 244; Consul Developments Pty Ltd v DPC Estates Pty Ltd (1975) 132 CLR 373; Royal Brunei Airlines v Tan [1995] 3 WLR 64 and Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89.) 5. The discussion above suggests that a trust arises only where it has been expressly set up. In fact, over the years equity has implied a trust relationship into a number of fact situations. Thus the major dichotomy in the types of trust which can exist is between express and non-express trusts. Non-express trusts fall into two main categories – resulting and constructive trusts. The categories of resulting and constructive trusts are dealt with in detail in Chapter 10. Glass JA in Allen v Snyder [1977] 2 NSWLR 685, 689 clearly summarised the categories of trust. Although this categorisation can be stated simply, the courts have often struggled both to use the terms in a consistent fashion and to demonstrate clear dividing lines: Any claim to a beneficial interest in real property by a person in whom the legal title is not vested must be based upon a trust. Trusts may be express, implied or constructive. An express trust of land is not enforceable unless it is evidenced in writing and signed by the party able to declare the trust: Conveyancing Act 1919, s 23C. By way of exception, an express trust may be proved by oral evidence where otherwise the statute would be made “an instrument of fraud”: Rochefoucauld v Boustead [1897] 1 Ch 196, 206. An implied trust (also called a resulting trust) arises where the legal owner has provided none or only part of the purchase price. A resulting trust is presumed in favour of the party providing the money. His beneficial interest is proportionate to his contribution. If, however, the legal owner is a wife, and the purchase price has been provided by her husband, there is a countervailing presumption of advancement viz that she takes the beneficial interest as a gift. Both presumptions, being rebuttable, will yield to evidence as to the actual intention of the parties. Constructive trusts arise where it would be a fraud for the legal owner to assert a beneficial interest. Unlike express and implied trusts, which reflect actual intentions, they are imposed, without regard to the intentions of the parties, in order to satisfy the demands of justice and good conscience: Snell, Principles of Equity, 27th ed, s 185; Jacobs, Law of Trusts in Australia, 4th ed, p 232. Constructive and implied (resulting) trusts may be enforced without evidence in writing: Conveyancing Act 1919, s 23C(2).

6. Historically, the subject matter of the trust was land. The trust is now used to achieve a variety of objectives and the subject matter of the trust may often not involve land. Some of the modern day uses of the trust are discussed in Moore, Grattan and Griggs, [2.85]

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Australian Real Property Law (6th ed, Thomson Reuters, Sydney, 2016), [2.370]. For example, the funds held under pension and superannuation schemes and by unincorporated associations are often held in a trust. The discretionary trust has been used to minimise income tax and the unit trust has been used to enable smaller investors to participate in broadly based investment opportunities.

PRIORITIES UNDER THE GENERAL LAW LAND SYSTEM [2.90] A priority dispute arises where two or more persons claim wholly or partially inconsistent proprietary interests in the land (see Moore, Grattan and Griggs, Australian Real Property Law (6th ed, Thomson Reuters, Sydney, 2016), [2.375] – [2.380]). The interests may be legal or equitable and may involve different types of proprietary interests (for example, a fee simple, a mortgage, a lease, an easement). In relation to general law land, rules evolved to settle the various kinds of priority disputes: some of these rules are highlighted in the cases extracted at [2.95]-[2.135]. Although only a very small number of general law land titles remain, some knowledge of these rules is necessary in order to understand properly the way in which the Torrens system operates. Further, several of the principles form the basis for the resolution of some priority disputes under the Torrens system and thus clearly retain relevance (see [6.85]-[6.90]). A more detailed examination of general law land priority rules can be found in Moore, Grattan and Griggs, Australian Real Property Law (6th ed, Thomson Reuters, Sydney, 2016), Ch 2, Pt VI. The specific rules for determining priority between inconsistent interests centre around two factors. The first is the respective dates of creation of the interests (that is, which was created earlier and which was created later). The second is the nature of each of the competing interests: that is, whether it is a legal interest, an equitable interest, or a mere equity. The ways of differentiating between interests that are legal and those that are equitable are dealt with in Chapter 9 (where it will be seen that the formalities required for the creation of legal interests differ from those required for equitable interests) and in Chapter 10 (where it will be seen that equitable interests can arise in some cases where a transaction is to some extent “defeasible”). The nature and means of creation of a mere equity is dealt with in Chapter 6. Accordingly, specific priority rules apply in the following contexts:

• prior legal interest against subsequent legal interest (where the rule is that the prior interest prevails: see Moore, Grattan and Griggs, Australian Real Property Law (6th ed, Thomson Reuters, Sydney, 2016), [2.400]) • prior equitable interest against subsequent legal interest (considered below) • prior legal interest against subsequent equitable interest (considered below) • prior equitable interest against subsequent equitable interest (considered below and, because of its particular importance in regard to Torrens land, also in [6.85]–[6.180]) • prior mere equity against subsequent equitable (or legal) interest (considered in the context of Torrens land in [6.185]–[6.190]). Prior equitable interest against subsequent legal interest

Pilcher v Rawlins [2.95] Pilcher v Rawlins (1872) 7 Ch App 259 English Court of Appeal 126 [2.90]

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Pilcher v Rawlins cont. [The abbreviated facts are taken from the headnote of the case. The trustees of a settlement advanced the trust money on the security of real property which was conveyed to them by the mortgagor, the mortgage deed noticing the trust. The surviving trustee of the settlement afterwards reconveyed part of the property to the mortgagor on payment of part of the mortgage money, which he appropriated. The mortgagor then conveyed that part of the property to new mortgagees, concealing, with the connivance of the trustee, both the prior mortgage and the reconveyance. When the fraud was discovered, the cestuis que trust under the settlement filed a bill against the new mortgagees claiming priority.] SIR G MELLISH LJ: I agree in the conclusion to which the Lord Chancellor and the Lord Justice have arrived. I do not think it necessary to give any opinion whether Carter v Carter 3 K & J 617 was rightly decided. In my opinion if it is to be supported it must be supported upon the grounds stated by the Lord Chancellor today, namely, that there were such peculiar circumstances in that case as to make it inequitable that the purchaser should be allowed to rely upon the second will. But I think it cannot be supported on the grounds upon which the Master of the Rolls thought it had been decided, and upon which the Master of the Rolls acted in the case now before us. The Master of the Rolls, as I understand his judgment, held that a purchaser for valuable consideration, who has obtained a conveyance of the legal estate, is in this Court always to be held to have notice of the contents of the deeds which form a link in the chain by which the legal estate was conveyed to him. And he held that the doctrine of constructive notice ought to be enlarged, and that, although in point of fact the deed in question was never produced to the purchaser – although he had neither knowledge nor the means of knowledge of its contents – although he and his advisers were guilty of no negligence whatever in not obtaining knowledge of its contents – yet, nevertheless, he must in this Court be held to have notice of the contents, if it was a deed which, when ejectment was brought against him in a Court of Law, he would be bound to produce. It is admitted that that rule had never been laid down prior to the case of Carter v Carter; there were not even dicta, or any authority whatever that I have been able to find, tending to shew that any such rule had prevailed in this Court; and I am of opinion most clearly that it ought not to be so laid down. I do not agree with the Master of the Rolls that the purchaser for valuable consideration in such a case as he describes, is approbating and reprobating. A person who approbates and reprobates is acting inconsistently. He must, in fact, be affirming and denying the same proposition at the same time. But I cannot see any such inconsistency here. If an action of ejectment is brought, it is wholly immaterial whether the Defendant in that action of ejectment had or had not at any time whatever notice of the contents of the deed or instrument on which he rests his title. What inconsistency is there in his saying, “If I am attacked in a Court of Law, and an action of ejectment is brought against me, I rely on this deed as being one of the deeds through which the legal estate has been conveyed to me,” and then, if he is attacked in a Court of Equity, saying, as the truth is, “I had no notice of this deed. At the time when I obtained my conveyance I had no knowledge and no means of knowledge of the deed.” I cannot see that there is any inconsistency in his so acting. The general rule seems to be laid down in the clearest terms by all the great authorities in equity, and has been acted on for a great number of years, namely, that this Court will not take an estate from a purchaser who has bought for valuable consideration without notice; and I find that the Appellants in both the cases before us are very clearly purchasers for valuable consideration without notice. Unless this doctrine of constructive notice, enlarged as it has been by the Master of Rolls, is to prevail, I am of opinion that the Appellants have made out their case. As it is admitted that, with the exception of what is supposed to have been said in Carter v Carter, this rule of constructive notices, as laid down by the Master of the Rolls, has never been established, I will proceed to consider it a little upon principle. It happens, curiously enough, that in one, if not in both, of the two cases before us the Appellants are themselves trustees for other cestuis que trust, and [2.95]

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Pilcher v Rawlins cont. the question then arises which of the two sets of cestuis que trust are to bear the loss. Is the loss to fall upon the cestuis que trust whose trustee has fraudulently conveyed away the estate which was entrusted to him? Or is the loss to fall upon those whose trustees have honestly taken a conveyance of that estate and who have advanced the money of their cestuis que trust on the faith of the estate which they have really got? It is surely desirable that the rules of this Court should be in accordance with the ordinary feelings of justice of mankind. Now if the first set of cestuis que trust, those who will unfortunately have to bear the loss, were asked how it happened that they had suffered this loss, they would answer that their father conveyed the estate to the uncle, and he turned out to be a dishonest man, and parted with the estate. That is an explanation which any ordinary man of intelligence would understand. It might not be satisfactory to the losers, but they must see at once how it came to happen that they lost their estate. If you trust your property to a man who turns out to be a rogue, it stands to reason that you may lose it. But supposing the Master of the Rolls’ doctrine to prevail, and supposing the other cestuis que trust to be asked how they had lost their property, the answer would be, “Our trustee invested our property on mortgage on the faith of a person who said that he had the legal estate, and who had it, and who conveyed it to our trustee as a security for the sums advanced, our trustee being guilty of no negligence whatever, having taken the advice of a perfectly competent conveyancer in order to see that the title was a good one. But the Court of Chancery says that we have lost it because our trustees had notice of the prior mortgage; though they had, in fact, no notice whatever. They had neither knowledge nor means of knowledge, but nevertheless the Court of Chancery says that, according to its doctrine, they had notice.” The only conclusion which any one would come to is that these cestuis que trust had been deprived of their property by the Court of Chancery, for reasons which, to an ordinary mind, were perfectly incomprehensible. I am clearly of opinion, whether, under the peculiar circumstances of that case, Carter v Carter, was rightly decided or not, as to which I will say nothing, that where a trustee in breach of trust conveys away a legal estate which he possesses, and that legal estate comes into the possession of a purchaser for valuable consideration without notice, that purchaser can hold the property against the cestuis que trust who were defrauded by the conveyance of the trustee; and that it makes no difference whatever that if the purchaser is challenged in a Court of Law, and an action of ejectment is brought against him, he may have to rely upon some deed which was in fact concealed from him, and of which he had neither knowledge nor means of knowledge. SIR W M JAMES LJ: I propose simply to apply myself to the case of a purchaser for valuable consideration, without notice, obtaining, upon the occasion of his purchase, and by means of his purchase deed, some legal estate, some legal right, some legal advantage; and, according to my view of the established law of this Court, such a purchaser’s plea of a purchase for valuable consideration without notice is an absolute, unqualified, unanswerable defence, and an unanswerable plea to the jurisdiction of this Court. Such a purchaser, when he has once put in that plea, may be interrogated and tested to any extent as to the valuable consideration which he has given in order to shew the bona fides or mala fides of this purchase, and also the presence or the absence of notice; but when once he has gone through that ordeal, and has satisfied the terms of the plea of purchase for valuable consideration without notice, then, according to my judgment, this Court has no jurisdiction whatever to do anything more than to let him depart in possession of that legal estate, that legal right, that legal advantage which he has obtained, whatever it may be. In such a case a purchaser is entitled to hold that which, without breach of duty, he has had conveyed to him. In the case of Carter v Carter, which was decided by the present Lord Chancellor, and which was followed by the Master of the Rolls in this case, and with which I am bound to say I am unable to agree, an exception from that rule was, under the circumstances, supposed to exist. 128 [2.95]

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Pilcher v Rawlins cont. It is very clearly expressed in a few lines of the judgment in that case: “But here the purchaser taking the conveyance under one will, supposed by all parties to be really the last will of the testator, finds himself driven to rely upon another and a second will containing on the face of it all the trusts which the testator has created;” – and that circumstance is supposed to create the exception. To my mind there are to that supposition two short and conclusive answers – the one a matter of principle, and the other a matter of fact. My view of the principle is, that when once you have arrived at the conclusion that the purchaser is a purchaser for valuable consideration without notice, the Court has no right to ask him, and has no right to put him to contest the question, how he is going to defend himself, or what he is going to rely on. He may say, honestly and justly, “I am not going to tell you. I have got the deeds; I defend them, and you will never be able to make me produce them, and you will never be able to produce secondary evidence of them. I am not obliged to produce them at all; probably before you get half way through your action of ejectment you will find a jus tertii which you will not dispose of; the estate is in the hands of a legal tenant to whom I have let it, and no one can determine that tenancy without notice, and no one can give that notice but myself; I will not give that notice, and no Court has any power to compel me to give it. I have a right to rely, as every person defending his position has, on the weakness of the title of the person who is seeking to displace me.” That seems to be exactly the position of such a purchaser as this. The purchaser in Carter v Carter did not rely on the will which created the trust; he relied on another title; for the will formed the title of the adverse party. And the answer to that adverse party is, by the good luck which sometimes attends honest men, “Though you produce an instrument which points out your title, and gives the property to some one else, yet I am prepared with a legal defence in a conveyance which was executed before.” It appears to me that there is no right in this Court to prevent the purchaser from setting up that defence to the claim so made against him. If there was ever a case in which, according to my judgment, any Court ought to be in favour of a purchaser and against such a title, it is a case in which a testator has, through the grossest negligence, allowed two wills to exist after his death, so that some members of his family produce one will apparently making out a perfectly good title to a mortgagee or purchaser, and then, when a mortgagee or purchaser has been induced unwittingly to pay or advance his money, some other members of the family produce the other will, which has been suppressed or concealed during the whole of that time, and then seek to take the estate away from the mortgagee or purchaser. It seems to me to be a very ingenious device by which a testator would be able to give his property twice over to his family; but, in my opinion, it is a device which ought not to be encouraged in any way in a Court of Equity. I am therefore of opinion that whatever may be the accident by which a purchaser has obtained a good legal title, and in respect of which he has paid his money and is in possession of the property, he is entitled to the benefit of that accident, just as a purchaser would be entitled to avail himself of the possession so acquired, without any reference to the rights of the persons who may be otherwise interested. [Lord Hatherley LC delivered a judgment to similar effect.]

[2.100]

Notes and Questions

1. What is the principle expressed in Pilcher v Rawlins (1872) 7 Ch App 259 and why were the holders of the equitable interest unable to demonstrate that there was no notice of their interest? 2. What is the difference in the sphere of enforceability of a legal interest on the one hand and an equitable interest on the other? [2.100]

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3. If a purchaser of the legal estate for value without notice of a prior equitable interest, subsequently sells the legal estate to a person who does have notice of the equitable interest, what is the result? See Wilkes v Spooner [1911] 2 KB 473 discussed in Moore, Grattan and Griggs, Australian Real Property Law (6th ed, Thomson Reuters, Sydney, 2016), [2.555]. 4. The doctrine of notice is considered in some detail below at [2.105]-[2.110] and [6.170]-[6.180]. Other parts of the principle expressed in Pilcher v Rawlins (1872) 7 Ch App 259 have also been subject to interpretation and scrutiny by the courts: see Moore, Grattan and Griggs, Australian Real Property Law (6th ed, Thomson Reuters, Sydney, 2016), [2.460]-[2.465].

Smith v Jones [2.105] Smith v Jones [1954] 1 WLR 1089 English High Court of Justice, Chancery Division ACTION: In 1946 a number of farms, part of the Parmoor estate, Buckinghamshire, were sold at auction. One of the farms was purchased by the defendant. He had knowledge that the farm was in the occupation of a tenant (the plaintiff); before the sale he had inspected a copy of the plaintiff’s tenancy agreement at the office of the auctioneers, and formed the opinion that under the terms of the repairing covenant the responsibility for doing repairs to the farmhouse and buildings was on the tenant. For many years the estate management had used a standard printed form of tenancy agreement, and it had always been their belief and the belief of the tenants that under the repairing covenant the estate was responsible for repairs to buildings; they and the tenants had always acted accordingly, and the plaintiff, when he signed his agreement in 1939, was told that that was its effect. After the purchase of the farm by the defendant disputes arose between the plaintiff and the defendant, as each required repairs to be done while refusing to do them himself. Eventually a case was stated for the opinion of a county court judge, under regulations made pursuant to the provisions of the Agricultural Holdings Act 1948, which raised, inter alia, the question of the proper construction of the repairing covenant. The judge held that the plaintiff was liable for structural repairs, but suggested that there might be a case for rectification, and stayed all proceedings until that question was decided. The plaintiff accordingly brought this action, claiming rectification of the tenancy agreement by providing that, while he was to keep the house, cottages and buildings in good order, the defendant was to keep the same in repair. At the hearing it was not disputed that the county court judge had been right in rejecting the extrinsic verbal evidence and in holding that the covenant, as amended, made the plaintiff responsible for repairs to the buildings. In answer to the claim for rectification, the defendant contended (1) that no right to rectification was made out on the evidence; (2) that, supposing that such a claim was made out, he was a bona fide purchaser for value and not bound by an equity to rectify; (3) that the plaintiff could not at such a late stage assert a claim for rectification. The case is reported on the second contention only. … on the first contention [it was] found that the plaintiff and the Parmoor estate intended to have an agreement in the common estate form, under which both parties mistakenly thought that on its true construction the responsibility for repairs fell on the landlord. On those facts … the claim for rectification [was dismissed]. UPJOHN J: Counsel for the plaintiff contended that, as the plaintiff was in actual occupation as tenant, the defendant was affected with notice of all his rights and equities, including an equity to rectify. On the view which I have formed of the facts and law as to rectification this point does not strictly arise, but as it has been fully argued I think that I ought to express my views thereon. 130 [2.105]

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Smith v Jones cont. In Barnhart v Greenshields (1853) 9 Moo PC 18, where the law is conveniently and compendiously stated, the judgment of the Privy Council was delivered by Mr Pemberton Leigh (later Lord Kingsdown), who said (9 Moo PC 18 at 32): With respect to the effect of possession merely, we take the law to be, that if there be a tenant in possession of land, a purchaser is bound by all the equities which the tenant could enforce against the vendor, and that the equity of the tenant extends not only to interests connected with his tenancy, as in Taylor v Stibbert (1794) 2 Ves J 437, but also to interests under collateral agreements, as in Daniels v Davison (1809) 16 Ves J 249, Allen v Anthony (1816) 1 Mer 282, the principle being the same in both classes of cases; namely, that the possession of the tenant is notice that he has some interest in the land, and that a purchaser having notice of that fact, is bound, according to the ordinary rule, either to inquire what that interest is, or to give effect to it, whatever it may be. Later in the judgment (9 Moo PC 33) Mr Pemberton Leigh cited a passage from the judgment in Allen v Anthony (1809) 16 Ves J 249, where Lord Eldon, LC, said (1 Mer, 284): It is so far settled as not to be disputed, that a person purchasing, when there is a tenant in possession, if he neglects to inquire into the title, must take, subject to such rights as the tenant may have. On the other hand, counsel for the plaintiff has not produced any case which goes so far as to say that an equity of rectification is an equity which is enforceable against a purchaser. In my judgment, it would be extending the doctrine of notice and the obligation to make inquiry far too much if the doctrine was intended to cover an equity of rectification. Of course, the purchaser is bound by the rights of the tenant in occupation-that is quite clear. As is shown by earlier cases, notably, I think, Taylor v Stibbert 2 Ves J 437, he is not entitled to assume that the tenant is in possession from year to year. He must look at the agreement and he is bound by the agreement, and if, as in Daniels v Davison 16 Ves J 249, the tenant has not only a tenancy agreement but also an option to purchase, he is bound by that also. In my judgment, however, a purchaser is not only entitled but bound to assume, when he is looking at the agreement under which the tenant holds, that that agreement correctly states the relationship between the tenant and the landlord, and he is not bound to ask or to make inquiry whether the tenant has any rights which would entitle him to have the agreement rectified. Barnhart v Greenshields was followed by the Court of Appeal in Hunt v Luck [1902] 1 Ch D 428, where the principle was again stated, but as Cozens-Hardy LJ, pointed out in argument ([1902] 1 Ch 430), and as Vaughan Williams LJ, pointed out at the beginning of his judgment (ibid, 432), the real question to determine was the true construction of the Conveyancing Act 1882, s 3. Farwell J, who heard the case at first instance [1901] 1 Ch 45, had dealt with the matter without reference to the statutory enactment. I have no doubt that that was because he treated the Act as merely declaratory of the existing law, but it is, after all, a matter of construction of the Act, although I have already expressed an opinion as though the matter rested solely on decided cases. The provisions of the Conveyancing Act 1882, s 3, are replaced by s 199(1)(ii), (2) and (3), of the Law of Property Act 1925. Section 199(1) reads: A purchaser shall not be prejudicially affected by notice of: (i) any instrument or matter capable of registration under the provisions of the Land Charges Act 1925, or any enactment which it replaces, which is void or not enforceable as against him under that Act or enactment, by reason of the non-registration thereof; (ii) any other instrument or matter or any fact or thing unless – (a) it is within his own knowledge, or would have come to his knowledge if such inquiries and inspections had been made as ought reasonably to have been made by him. The question which I have to answer is this. What inspection and inquiries ought reasonably to have been made by the defendant of the plaintiff before the sale, so far as relevant to this question? I think [2.105]

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Smith v Jones cont. that the only relevant inquiry which he should have made would have been to say to the plaintiff: “May I see your tenancy agreement? I want to see whether it corresponds with the copy agreement which I have seen in the auction room?” That is the document which governed the rights of the parties. He ought to have asked whether he had seen a correct copy, but he was under no obligation, in my view, to proceed further and say: “Does that correctly represent your rights?” In fact, if he had asked that question the answer, honestly but erroneously given, would have been “Yes”. Still less was he bound to take the plaintiff step by step through the document and ask him how he interpreted its provisions. The defendant could not be so bound, and it would be most unwise for any intending purchaser to do so. In my judgment, the defendant is entitled and bound to rely on the terms of the document, and the document speaks for itself. Accordingly, had I come to a contrary conclusion on the claim for rectification, I should have found that the action was barred by the plea of bona fide purchaser for value without notice. In the circumstances, I must dismiss the action, with costs.

[2.110]

Notes and Questions

1. What was the nature of the interest the plaintiff asserted in Smith v Jones [1954] 1 WLR 1089? Does the court accept that the right asserted is proprietary in nature? Cf Swanston Mortgage Pty Ltd v Trepan Investments Pty Ltd [1994] 1 VR 672 extracted at [6.45]. 2. Compare the decision in Smith v Jones [1954] 1 WLR 1089 with the decision in Downie v Lockwood [1965] VR 257 extracted at [14.105]. 3. The case of Hunt v Luck [1902] 1 Ch 428 also demonstrates that there are limits to the duty to investigate. In this case it was held that the purchaser was not under a duty to investigate to whom a tenant paid the rent. Such an inquiry would have revealed that the recipient was not the vendor and was a person with some beneficial interest in the property. 4. The categories of notice recognised at common law are set out in statutory form in some jurisdictions (Conveyancing Act 1919 (NSW), s 164; Property Law Act 1958 (Vic), s 199; Property Law Act 1974 (Qld), s 346; Law of Property Act 1936 (SA), s 117; Conveyancing and Law of Property Act 1884 (Tas), ss 5 and 35A (relating to notice and restrictive covenants)). The provision in Victoria, s 199, is in the following form: (1) A purchaser shall not be prejudicially affected by notice of any instrument, fact or thing unless – (a) it is within his own knowledge, or would have come to his knowledge if such inquiries and inspections had been made as ought reasonably to have been made by him; or (b) in the same transaction with respect to which a question of notice to the purchaser arises, it has come to the knowledge of his legal practitioner or other agent, as such, or would have come to the knowledge of his legal practitioner or other agent, as such, if such inquiries and inspections had been made as ought reasonably to have been made by the legal practitioner or other agent.

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(2) This section shall not exempt a purchaser from any liability under, or any obligation to perform or observe, any covenant condition, provision or restriction contained in any instrument under which his title is derived, mediately or immediately; and such liability or obligation may be enforced in the same manner and to the same extent as if this section had not been passed. (3) A purchaser shall not by reason of anything in this section be affected by notice in any case where he would not have been so affected if this section had not been passed. (4) This section shall apply to purchases made either before or after the commencement of this Act.

Although the forms of notice are now effectively limited by the statutory provisions, case law interpreting what constitutes each form of notice is relevant: see Moore, Grattan and Griggs, Australian Real Property Law (6th ed, Thomson Reuters, Sydney, 2016), [2.490]-[2.550]. With respect to constructive notice (s 199(1)(b)) it appears that the inquiries which a purchaser of the legal estate should make fall into two main categories: first, the purchaser should check the title documents and secondly, he or she should inspect the land in order to determine if any outstanding equitable interests exist (see, for example, Barnhart v Greenshields (1853) 9 Moo 18; 14 ER 204). 5. With respect to checking the title documents, the purchaser should search the documents in the vendor’s chain of title and a purchaser who does not do so is said to have constructive notice of all the equitable interests which he or she would have discovered had a search been made. In the absence of statutory provisions restricting necessary searches, a prudent purchaser would need to search all documents in the vendor’s chain of title going back to the original Crown grant. In all States except South Australia there are statutory provisions which attempt to limit the searches required of a purchaser to a set period (generally 30 years), providing the documents go back to a “good root of title”. (Conveyancing Act 1919 (NSW), s 53(1); Property Law Act 1958 (Vic), s 44(1); Property Law Act 1974 (Qld), s 237(1); Conveyancing and Law of Property Act 1884 (Tas), s 35(1) (20 years); Sale of Land Act 1970 (WA), s 22. Presumably the 60-year period insisted upon at common law in England is the relevant period for South Australia.) Further statutory provisions provide protection from notice of equitable interests contained in documents before the commencement of the statutory period. (Property law statutes: Conveyancing Act 1919 (NSW), s 53(3); Property Law Act 1958 (Vic), s 44(6); Property Law Act 1974 (Qld), s 237(6); Conveyancing and Law of Property Act 1884 (Tas), s 35(5).) See Moore, Grattan and Griggs, Australian Real Property Law (6th ed, Thomson Reuters, Sydney, 2016), [2.525]-[2.545]. 6. The nature and the extent of the duty to inspect the land have been considered in a number of cases: see, for example, Caunce v Caunce [1969] 1 WLR 286; Hodgson v Marks [1971] Ch 892; Williams and Glyn’s Bank Ltd v Boland [1981] AC 487; Kingsnorth Trust Ltd v Tizard [1986] 1 WLR 783; Platzer v Commonwealth Bank of Australia [1997] 1 Qd R 266; Lloyds Bank Plc v Rosset [1989] Ch 350 (Court of Appeal decision. Reversed by the House of Lords on another ground: [1991] 1 AC 107). Problems may arise where the vendor/legal title holder is in possession of the land but another person, with some equitable interest in the property, is also in possession with the vendor. This may often occur in family situations. It appears that such co-occupation constitutes constructive notice of the equitable interest: Williams and Glyn’s Bank Ltd v Boland [1981] AC 487; Kingsnorth Trust Ltd v Tizard [1986] 1 WLR 783; Platzer v Commonwealth Bank of [2.110]

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Australia [1997] 1 Qd R 266; Lloyds Bank Plc v Rosset [1991] 1 AC 107. Cf the earlier decision of Caunce. (Note that most of the English decisions did not directly concern constructive notice: rather they concerned an interpretation of s 70(1)(g) of the Land Registration Act 1925 (UK). See now Land Registration Act 2002 (UK), Sch 3, para 2. See Note 8 below and Moore, Grattan and Griggs, Australian Real Property Law (6th ed, Thomson Reuters, Sydney, 2016), [2.515]-[2.520]. 7. In Kingsnorth Trust Ltd v Tizard [1986] 1 WLR 783 the issue of constructive notice was raised directly. The wife was separated from the husband, but returned to the matrimonial home on most days to care for the children. In these circumstances, the mortgagee was held to have constructive notice of her interest. The agent of the mortgagee had not inquired or inspected with sufficient diligence: first, the occupation of the children should have alerted the mortgagee to the possibility of a spouse; secondly, the husband had originally described himself as a spouse and admitted to being married but separated; and thirdly, the time of inspection (a Sunday afternoon) was set up by the husband. It was held that where one of the objects was to ascertain who is in possession, “an inspection at a time pre-arranged with the vendor” will not necessarily achieve that object. Do you consider that the duties required of a purchaser as suggested in the Kingsnorth case are too onerous? 8. In Lloyds Bank Plc v Rosset [1989] Ch 350 the property in dispute was being renovated and the wife visited each day to supervise. The wife was held to be in “actual occupation” under the English statutory regime and so her equitable interest was protected. (The Court of Appeal decision was reversed by the House of Lords but on the basis that the wife had not demonstrated that she had an equitable interest: see Lloyds Bank Plc v Rosset [1991] 1 AC 107.) See similarly Platzer v Commonwealth Bank of Australia [1997] 1 Qd R 266, a Torrens title case, extracted at [6.170] where the occupation of a builder constructing a house on the land (together with some other factors) was sufficient to provide notice of the wife’s equitable interest held under a resulting trust. See Moore, Grattan and Griggs, Australian Real Property Law (6th ed, Thomson Reuters, Sydney, 2016), [2.515]. 9. Even where a person is only in possession of part of the land, such possession may still provide notice of an interest over all the land. In Ferrishurst Ltd v Wallcite Ltd [1999] Ch 355, the English Court of Appeal held that the overriding interest under s 70(1)(g) of the Land Registration Act 1925 (UK) of “the rights of a person in ‘actual occupation’, protected all the rights even where the person was only in possession of part of the premises”. The case concerned registered land and the Court of Appeal cautioned against aligning directly statutory “actual occupation” with the doctrine of notice. The Court of Appeal made it clear that although the purpose of both doctrines was to protect the interest of the occupier, the method used to provide such protection in each case was different and care should be taken not to draw direct analogies: per Robert Walker LJ at 372. Cf the earlier view of Russell LJ in Hodgson v Marks [1971] Ch 892 at 931 where his Honour was “prepared to assume … that s 70(1)(g) of the Land Registration Act 1925 is designed only to apply to a case in which the occupation is such, in point of fact, as would in the case of unregistered land affect a purchaser with constructive notice of the rights of the occupier”. The ramifications of the Ferrishurst case are discussed in Hill, “Overriding Interests: Occupation of Part of the Land” (2000) 63 MLR 113. See also McNicol, “Constructive Notice of a Spouse in Actual Occupation” (1981) 13 MULR 226. In 134

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England, the principle in the Ferrishurst case has been effectively reversed by statute. By Sch 3, para 2 of the Land Registration Act 2002 (UK), the rights of an occupier are now only protected insofar as they relate to “land of which he is in actual occupation.” Query the position in Australia. Will the doctrine of notice be applied so that occupation of part of land provides notice of an interest in the whole of the land? 10. Once a person has actual notice of a prior interest, he or she can only take free of the interest if all reasonable care has been taken to independently ascertain that the prior interest has been expunged. It is insufficient to rely on the assurance of a vendor or mortgagor who created the earlier interest: Jared v Clements [1903] 1 Ch 428; Oversea-Chinese Banking Corp Ltd (OCBC) v Malaysian Kuwaiti Investment Co (MKIC) [2003] VSC 495. Cf IGA Distribution Pty Ltd v King & Taylor Pty Ltd [2002] VSC 440 at [223]. A failure to make reasonable enquiries to verify the discharge of earlier equitable interests, means the actual knowledge cannot be negated. In general, the doctrine of notice applies to general law land in Australia. The Torrens system of land registration sets up a different scheme under which the doctrine of notice is inapplicable to disputes between unregistered (equitable) interests and subsequent registered (legal) interests: see [5.45] – [5.55]. However, the doctrine of notice has been used in some types of priority disputes concerning Torrens land: [6.170]-[6.180]. For recent examples, see Platzer v Commonwealth Bank of Australia [1997] 1 Qd R 266, Moffett v Dillon [1999] 2 VR 480 and Perpetual Trustees Co Ltd v Smith [2010] V ConvR 54-779. 11. The deeds registration system (see [2.145]) sets up a scheme under which instruments affecting interests in general law land may be registered. A purchaser would be deemed to have notice of any equitable interest which could have been discovered by a search of the deeds register (see Mills v Renwick (1901) 1 SR (Eq)). Note, however, the phasing out of deeds registration systems: see Moore, Grattan and Griggs, Australian Real Property Law (6th ed, Thomson Reuters, Sydney, 2016), [2.605]. 12. Consider whether the same duties as suggested in Kingsnorth would be required of a purchaser in the Australian jurisdictions. What is the impact of legislation such as s 32 of the Sale of Land Act 1962 (Vic) requiring the vendor to provide specific information to the purchaser? See Jacobs v Platt Nominees Pty Ltd [1990] VR 146 extracted at [6.125]. Prior legal interest against subsequent equitable interest

Northern Countries Fire Insurance Co v Whip [2.115] Northern Countries Fire Insurance Co v Whipp (1884) 26 Ch D 482 English Court of Appeal On the 11th of January 1878, Crabtree, who was the manager of the Plaintiff company, executed a legal mortgage of a freehold property, known as Millbank, to the Plaintiff company, to secure £4,500, and, according to the conclusion drawn by the Court of Appeal from the evidence, Crabtree, at or about the same time, delivered the title deeds to the company, and received the £4,500 from the company in cash. On the 24th of May, 1878, Crabtree made a legal mortgage to the Plaintiff company of certain other freehold property to secure £2,500, and the title deeds were (according to the conclusion at which the Court of Appeal arrived on the evidence) delivered to the Plaintiff company … The deeds of the mortgaged properties were placed in a safe of the company, and were seen there on the occasion of the audit in May 1878. [2.115]

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Northern Countries Fire Insurance Co v Whip cont. Crabtree, … was entrusted with one of the two keys which opened the one lock which secured the safe in which the deeds of the company were kept, and it appeared that in November 1878, he produced the deeds in question to the Defendant’s solicitor, Mr Milne Whitehead, to whom Crabtree had applied for a loan on mortgage of these two properties. As the result of this application the Defendant, Mrs Whipp, advanced £3,500 to Crabtree on a mortgage, dated the 19th of December 1878, of the two properties included in the Plaintiffs’ securities, and she at the same time received from Crabtree the title deeds of the two properties, but not the mortgages to the Plaintiff company. The Defendant’s mortgage was taken by her, and the mortgage money paid by her to Crabtree, in entire ignorance of the securities to the Plaintiff company. Crabtree went into liquidation in November 1879, and in the following month an order [was made] for winding up the Plaintiff company. In 1880 the liquidator commenced, in the name of the company, this action, against Mrs Whipp and Crabtree’s trustee in liquidation, for foreclosure. The trustee disclaimed, and the action was dismissed as against him. Mrs Whipp put in a defence and counterclaim by which she asked that the securities of the Plaintiff company might be declared fraudulent and void as against her, or in the alternative that they might be postponed … FRY LJ (delivering the judgment of the court comprising Cotton, Bowen and Fry LJJ): The Plaintiffs being possessed of mortgages earlier in date than the mortgage of the Defendant, and under these instruments, being the owners of the legal estate, are prima facie entitled to priority over the Defendant, but the Defendant seeks to postpone the Plaintiffs’ legal estate on various grounds. The main contention on the part of the Defendant, which succeeded in the Court below, was that by reason of the negligent conduct of the Plaintiffs, after they had taken their mortgages, these securities ought to be postponed to the security of the Defendant; and this point has been argued at such length and with so extensive a reference to the authorities, that it appears to us necessary to consider the matter fully. The question which has thus to be investigated is – What conduct in relation to the title deeds on the part of a mortgagee who has the legal estate, is sufficient to postpone such mortgagee in favour of a subsequent equitable mortgagee who has obtained the title deeds without knowledge of the legal mortgage? The question is not what circumstances may as between two equities give priority to the one over the other, but what circumstances justify the Court in depriving a legal mortgagee of the benefit of the legal estate. It has been contended on the part of the Plaintiffs that nothing short of fraud will justify the Court in postponing the legal estate. It has been contended by the Defendant that gross negligence is enough. The cases which assist in answering the question thus raised will be found to fall into two categories: (1), those which relate to conduct of the legal mortgagee in not obtaining possession of the title deeds; (2), those which relate to the conduct of the legal mortgagee in giving up or not retaining the possession of the title deeds after he has obtained them. The two classes of cases will not be found to differ in the principles by which they are to be governed, but they do differ much in the kind of fraud which is to be most naturally looked for … [T]he cases which have arisen on the conduct of the mortgagee in not obtaining possession of the title deeds may be ranged in the following classes: (1)

Where the legal mortgagee or purchaser has made no inquiry for the title deeds and has been postponed, either to a prior equitable estate as in Worthington v Morgan 16 Sim 547, or to a subsequent equitable owner who used diligence in inquiring for the title deeds, as in Clark v Palmer 21 Ch D 124. In these cases the Courts have considered the conduct of the mortgagee in making no inquiry to be evidence of the fraudulent intent to escape notice of a prior equity,

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Northern Countries Fire Insurance Co v Whip cont. and in the latter case that a subsequent mortgagee, who was, in fact, misled by the mortgagor taking advantage of the conduct of the legal mortgagee, could as against him take advantage of the fraudulent intent. (2)

Where the legal mortgagee has made inquiry for the deeds and has received a reasonable excuse for their non-delivery, and has accordingly not lost his priority, as in Barnett v Weston 12 Ves 130; Hewitt v Loosemore 9 Hare, 449; Agra Bank v Barry Law Rep 7 HL 135.

(3)

Where the legal mortgagee has received part of the deeds under a reasonable belief that he was receiving all and has accordingly not lost his priority, as in Hunt v Elmes 2 DF & J 578, Ratcliffe v Barnard Law Rep 6 Ch 652, and Colyer v Finch 5 HLC 905.

(4)

Where the legal mortgagee has left the deeds in the hands of the mortgagor with authority to deal with them for the purpose of his raising money on security of the estate, and he has exceeded the collateral instructions given to him. In these cases the legal mortgagee has been postponed, as in Perry-Herrick v Attwood 2 De G & J 21. This case was decided not on the ground that the legal mortgagees had been guilty of fraud, but on the ground that as they had left the deeds in the hands of the mortgagor for the purpose of raising money, they could not insist, as against those who in reliance on the deeds lent their money, that the mortgagor had exceeded his authority.

The cases where the mortgagee having received the deeds has subsequently parted with them, or suffered them to fall into the hands of the mortgagor, will be found to fall into the following classes: (1)

Where the title deeds have been lent by the legal mortgagee to the mortgagor upon a reasonable representation made by him as to the object in borrowing them, and the legal mortgagee has retained his priority over the subsequent equities, as Peter v Russel, or Thatched House Case 1 Eq Ca Abr 321; Martinez v Cooper 2 Russ 198.

(2)

Where the legal mortgagee has returned the deeds to the mortgagor for the express purpose of raising money on them, though with the expectation that he would disclose the existence of the prior security to any second mortgagee: Briggs v Jones Law Rep 10 Eq 92. In such cases the Court has, on the ground of authority, postponed the legal to the equitable estate. This is the same in principle as the decision in Perry-Herrick v Attwood 2 De G & J 21.

No case has been cited in which the legal mortgagee has (as by the Vice Chancellor in this case) been postponed by reason of negligence in the custody of the deeds. The decisions on negligence at common law have been pressed on us in the present case, but it appears to us enough to observe that the action at law for negligence imports the existence of a duty on the part of the defendant to the plaintiff, and a loss suffered as a direct consequence of the breach of such duty; and that in the present case it is impossible to find any duty undertaken by the Plaintiff company to the Defendant, Mrs Whipp. The case was argued as if the legal owner of land owed a duty to all other of Her Majesty’s subjects to keep his title deeds secure; as if title deeds were in the eye of the law analogous to fierce dogs or destructive elements, where from the nature of the thing the Courts have implied a general duty of safe custody on the part of the person having their possession or control. This view is in our opinion impliedly negatived by the whole course of decisions, and it is expressly repelled by the observations of the present Lord Chancellor in Agra Bank v Barry Law Rep 7 HL 157, where he said, “It has been said in argument that investigation of title and inquiry after deeds is ‘the duty’ of a purchaser or a mortgagee; and, no doubt, there are authorities (not involving any question of registry), which do use that language. But this, if it can properly be called a duty, is not a duty owing to the possible holder of a latent title or security. It is merely the course which a man dealing bona fide in the proper and usual manner for his own interest, ought, by himself or his solicitor, to follow, with a view to his own title and his own security. If he does not follow that course, the omission of it may be a thing requiring to be accounted for or explained. It may be evidence, if it is [2.115]

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Northern Countries Fire Insurance Co v Whip cont. not explained, of a design, inconsistent with bona fide dealing, to avoid knowledge of the true state of the title. What is a sufficient explanation, must always be a question to be decided with reference to the nature and circumstances of each particular case.” These observations appear to us conclusive on the point, and they at the same time suggest the conclusion, that if in any case it shall appear that a prior legal mortgagee has undertaken any duty as to the custody of the deeds towards any given person, and has neglected to perform that duty with due care, and has thereby injured the person to whom the duty was owed, there the legal estate might be postponed by reason of the negligence. But no such case appears as yet to have arisen, nor does it seem one likely often to occur. The point certainly does not rise in the present case, and we therefore give no opinion upon it. The authorities which we have reviewed appear to us to justify the following conclusions: (1) That the Court will postpone the prior legal estate to a subsequent equitable estate: (a), where the owner of the legal estate has assisted in or connived at the fraud which has led to the creation of a subsequent equitable estate, without notice of the prior legal estate; of which assistance or connivance, the omission to use ordinary care in inquiry after or keeping title deeds may be, and in some cases has been, held to be sufficient evidence, where such conduct cannot otherwise be explained; (b), where the owner of the legal estate has constituted the mortgagor his agent with authority to raise money, and the estate thus created has by the fraud of misconduct of the agent been represented as being the first estate. But (2) that the Court will not postpone the prior legal estate to the subsequent equitable estate on the ground of any mere carelessness or want of prudence on the part of the legal owner. Now to apply the conclusions thus arrived at to the facts of the present case. That there was great carelessness in the manner in which the Plaintiff company through its directors dealt with their securities seems to us to admit of no doubt. But is that carelessness evidence of any fraud? We think that it is not. Of what fraud is it evidence? The Plaintiffs never combined with Crabtree to induce the Defendant to lend her money. They never knew that she was lending it, and stood by. They can have had no motive to desire that their deeds should be abstracted and their own title clouded. Their carelessness may be called gross, but in our judgment it was carelessness likely to injure and not to benefit the Plaintiff company, and accordingly has no tendency to convict them of fraud. Then comes the inquiry whether the Plaintiff company constituted Crabtree their agent to raise money, in which case the Defendant might be entitled to priority. The circumstance most favourable to this contention was, in our opinion, the possession by Crabtree of the key. But the Defendant has not proved the circumstances attending this fact, or the duties for the performance of which the key may have been essential, with sufficient distinctness to enable us to conclude from the possession of the key that it implied an authority to deal with the securities of the Plaintiff company. The cases in which Crabtree did so deal with the securities, when carefully considered, appear to us insufficient to support the authority claimed; and the fact that Crabtree in dealing with the Defendant suppressed his mortgage to the company and dealt with her, not as agent of the company having an authority to pledge its securities, but as the unencumbered owner of the property, goes, we think, far to negative the suggested authority. On this point, therefore, we agree with the Vice Chancellor.

[2.120]

Notes and Questions

1. In what circumstances, if any, did the Court of Appeal envisage that negligence might be sufficient to postpone the prior legal interest holder? 2. What differences, if any, did the court draw between a legal mortgagee’s conduct in not getting in the title deeds and his or her conduct in letting them go subsequently? 138 [2.120]

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3. Did Mrs Whipp intend to acquire legal mortgages over Crabtree’s properties when she advanced moneys to him? Why was she unable to acquire such interests? 4. Compare Northern Countries Fire Insurance Co v Whipp (1884) 26 Ch D 482 with Barry v Heider (1914) 19 CLR 197 (extracted at [6.25]), a case concerning Torrens system land.

Walker v Linom [2.125] Walker v Linom [1907] 2 Ch 104 English High Court of Justice, Chancery Division [Walker was the holder of the legal fee simple. He conveyed the legal fee simple to trustees to be held on certain trusts. The relevant trusts were to Walker for life or until he attempted to alienate, then to his wife for life and thereafter upon other stated trusts. The solicitors who acted for both Walker and the trustees took possession of the title deeds but unbeknown to them or to the trustees, Walker retained the deed in the chain by which the land had originally been conveyed to him. At a later date, Walker, by using the deed, held himself out to be the legal owner of the property and procured a loan from X on the security of the deed. He also purported to execute a formal legal mortgage in favour of X. Subsequently, X sold to Linom.] PARKER J: [I]t will be convenient to consider separately the position of the plaintiff [Walker’s wife] and her trustees. I will deal first with the position of the trustees. Now it cannot be disputed that the settlement constituted a conveyance for value, and that the trustees have the legal estate. The circumstances under which a mortgagee or purchaser with the legal estate is, by reason of some conduct on his part in relation to the title deeds, postponed to some person having only an equitable interest is discussed fully in the case of Northern Counties of England Fire Insurance Co v Whipp … Now, as I have already said, I cannot under the circumstances of this case find that anyone concerned in the 1896 settlement, with the exception of George Church Walker, acted otherwise than honestly, and, if I treat Fry LJ’s judgment as meaning that in no case can a prior legal estate be postponed to a subsequent equitable estate without the existence of fraud in its ordinary common law sense as necessarily connoting a dishonest intention, I must hold that the trustees are not postponed. There are, however, subsequent cases which suggest that at any rate in cases of postponement, based on no inquiry having been made for the deeds, fraud is not necessary. [After considering these cases, Parker J continued:] In my opinion any conduct on the part of the holder of the legal estate in relation to the deeds which would make it inequitable for him to rely on his legal estate against a prior equitable estate of which he had no notice ought also to be sufficient to postpone him to a subsequent equitable estate the creation of which has only been rendered possible by the possession of deeds which but for such conduct would have passed into the possession of the owner of the legal estate. This must, I think, have been the opinion of Fry LJ in Northern Counties of England Fire Insurance Co v Whipp 26 Ch D 482; for he explains both Worthington v Morgan 16 Sim 547 and Clarke v Palmer 21 Ch D 124 as based upon the same sort of fraud. I do not think, therefore, that there is anything in the authorities to preclude me from holding, and I accordingly hold, that the trustees, although they have the legal estate, are postponed to the defendant.

[2.130]

Notes and Questions

1. How did the court reach the conclusion that the mortgagee and in turn the purchaser from [2.130]

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the mortgagee, had any interest in the land? Will gross negligence per se by the holder of the prior legal estate be sufficient to postpone the interest to a subsequent equitable interest? 2. See Moore, Grattan and Griggs, Australian Real Property Law (6th ed, Thomson Reuters, Sydney, 2016), [2.410], [2.445]; and Heydon, Leeming and Turner, Meagher, Gummow and Lehane’s Equity Doctrines and Remedies (5th ed, Lexis Nexis, Sydney, 2015), pp 350–351 for a more detailed discussion of this type of priority dispute. 3. Mrs Walker, as a beneficiary under the trust, also had her interest postponed to that of Linom. See [2.140] note 2 below. Prior equitable interest against subsequent equitable interest

AG(CQ) Pty Ltd v A&T Promotions Pty Ltd [2.135] AG(CQ) Pty Ltd v A&T Promotions Pty Ltd [2010] QCA 83 Supreme Court of Queensland, Court of Appeal (footnotes incorporated into text) HOLMES JA. The appellant, AG(CQ) Pty Ltd, appeals a judgment by which it was declared that the interest of the first respondent, A&T Promotions Pty Ltd, as equitable mortgagee in a lot at Mackay had priority over AG(CQ)’s interest, also as equitable mortgagee, in the same lot. The learned judge held that A&T Promotions’ interest, the first in time, should prevail, the competing interests being equal in merit and A&T Promotions having been guilty of no act or omission that would make that result unfair. The agreed facts The parties proceeded at first instance on a statement of agreed facts which forms the basis of the following outline: 1.

The second respondent, Mr Ikin, owned and controlled a company, Maccaral Developments Pty Ltd, which in July 2005 entered a loan agreement with A&T Promotions, pursuant to which Maccaral was advanced $3,000,000. Ikin gave a guarantee in respect of the loan agreement.

2.

On 26 March 2007, Ikin, as trustee for the Mackay Trust, executed a Success Fee Deed with AG(CQ) by which AG(CQ) covenanted to pay him, as trustee, a success fee for procuring the sale of two parcels of land to AG(CQ). The amount of the success fee was $3,800,000, which was payable on the land’s being sold to AG(CQ). $2,000,000 of that amount was to be paid on settlement of the sale, with the balance met by transfer from AG(CQ) to Ikin, as trustee, of a proposed lot to be created by subdivision from the two amalgamated parcels of land. The lot was to be transferred to Ikin within 14 days of the registration of the survey plan of the land creating the lot.

3.

AG(CQ) completed the purchase of the land on 31 May 2007 and $2,000,000 was paid to Ikin or at his direction.

4.

On 5 June 2007, the Maccaral loan not having been repaid when it fell due, A&T Promotions, Maccaral and Ikin entered a Deed of Variation extending the repayment date to 30 July 2007. Maccaral and Ikin failed once again to make payment by that date.

5.

In September 2007, Ikin provided A&T Promotions with a copy of the Success Fee Deed, together with a letter sent by facsimile from AG(CQ)’s solicitors to Ikin which confirmed the terms of the Success Fee Deed as to the reward he was to receive and as to how and when he was to receive it. (The letter, dated 2 May 2007, was written some four weeks before the anticipated settlement date for the purchase of the two parcels of land, on 31 May 2007.) It went on to confirm that Ikin had given authority for repayment of $500,000 with interest,

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AG(CQ) Pty Ltd v A&T Promotions Pty Ltd cont. owed to another company, from the funds payable under the Deed, and it advised that AG(CQ) sought reimbursement from those funds of $30,000 on account of monies it had paid elsewhere. 6.

Two weeks later, A&T Promotions, Maccaral, Ikin and Ikin as trustee entered into a second Deed of Variation, pursuant to which: the repayment date was extended to 2 October 2007; Ikin as trustee granted a mortgage over the proposed lot to A&T Promotions; and Ikin personally and as trustee entered into a guarantee and indemnity in relation to the second Deed of Variation. By clause 5.1(c)(ii) of the Deed, Ikin agreed: Upon request, and where the New Mortgage has not registered with the Queensland Department of Natural Resources and Water, [to] assign the Success Fee Deed to [A&T Promotions] on terms acceptable to [A&T Promotions].

Ikin further agreed that he would not vary the terms of the Deed without obtaining the written consent of A&T Promotions and that he would immediately notify A&T Promotions when the lot was created and provide its description and title reference. He irrevocably authorised A&T Promotions to complete and register the mortgage which he had executed. Ikin warranted (although what follows were expressed as “covenants”) that the Success Fee Deed was a valid and existing document; that he had power to assign his rights under it; that there had been no breach of it which would entitle AG(CQ) to terminate it; that it comprised the whole of the agreement between him and AG(CQ); and that there were no outstanding mortgages, charges or other encumbrances relating to the Success Fee Deed and the proposed lot. 7.

On 17 March 2008, Ikin as trustee granted AG(CQ) a mortgage over the proposed lot to secure an advance of $627,000 together with a further sum of $700,000 to be paid as headworks charges on the lot. He, with AG(CQ), executed a transfer, settlement notice and authority to complete in respect of it, none of which contained a title reference, since the lot had yet to be created and registered.

8.

Subsequently, in April 2008 and May 2008, Ikin as trustee charged the proposed lot in favour of two further creditors, both of whom acknowledged that the priority of their respective interests ranked behind that of A&T Promotions and AG(CQ).

9.

A&T Promotions did not make any request for the assignment of the interest of Ikin as trustee in the Success Fee Deed until 4 August 2008, and it did not notify AG(CQ) of its interest as a mortgagee until 26 August 2008.

10.

The lot was created on 24 December 2008. It has not been transferred to Ikin.

… The test Underlying the parties’ submissions [as to which equitable mortgage had priority] was a divergence as to whether the rule of priority for the interest first created was one of first or last resort. Certainly, both approaches may be found in the authorities. In Rice v Rice 61 ER 646, cited by the learned judge at first instance, Kindersley V-C identified the rule (at 649): As between persons having only equitable interests, if their equities are in all other respects equal, priority of time gives the better equity; or, qui prior est tempore potior est jure. He went on to explain it as meaning that, in a contest between persons having only equitable interests, priority of time is the ground of preference last resorted to; i.e., that a Court of Equity will not prefer the one to the other, on the mere ground of priority of time, until it finds upon an examination of their relative merits that there is no other sufficient ground of preference between them, or, in [2.135]

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AG(CQ) Pty Ltd v A&T Promotions Pty Ltd cont. other words, that their equities are in all other respects equal; and that, if the one has on other grounds a better equity than the other, priority of time is immaterial. In examining into the relative merits (or equities) of two parties having adverse equitable interests, the points to which the Court must direct its attention are obviously these: the nature and condition of their respective equitable interests, the circumstances and manner of their acquisition, and the whole conduct of each party with respect thereto. And in examining into these points it must apply the test, not of any technical rule or any rule of partial application, but the same broad principles of right and justice which a Court of Equity applies universally in deciding upon contested rights. (At 649.) But in Lapin v Abigail, also cited by her Honour, a different approach was taken, both in the High Court and the Privy Council. Mr and Mrs Lapin, the registered proprietors of land, had given transfers by way of security to creditors who fraudulently mortgaged it. The majority in the High Court held that the unregistered security of the subsequent lender did not take priority over the Lapins’ equitable right to redeem. Knox CJ and Dixon J, in the majority, and Gavan Duffy and Starke JJ, in the minority, agreed that prima facie the equitable interest of the prior equity holder took priority of the later. That position could be disturbed by disentitling conduct on the part of the holder of the prior equity which warranted its postponement to the subsequently acquired equity. In passages relied on here by A&T Promotions, Knox CJ (at 183-184) said that he regarded a number of earlier decisions as establishing that there would be no such postponement unless there was an act or omission proved against the prior equity holder which had contributed to a belief on the part of the subsequent claimant at the time he acquired his equity that the prior equity was not in existence, while Gavan Duffy and Starke JJ (at 196) posed the relevant question as whether the words and actions of the person having the prior equity had caused another to alter his position. Dixon J was less definitive in his language; he said that the act or default of the earlier interest holder must be such as to make it inequitable as between him and the subsequent interest holder that he should retain his priority, which, he said (at 204), generally means that his act or default must in some way have contributed to the assumption upon which the subsequent legal owner acted when acquiring his equity. The use of the word “generally” allows, of course, for other possibilities. Isaacs J approached the question more broadly, suggesting (at 186) that one party might have a better equity independent of any act or omission on the part of the other. While there was a “working rule” applicable in most cases – that priority in time would govern unless there had been some act or omission on the part of the owner of the prior interest such as to cause it to be postponed – it did not state the principle, which was that the court sought: …not for the worst, but for the best equity. And the best equity – for there may be several claimants – is that which on the whole is the most meritorious, it may be because the others are, by reason of circumstances indicated in the passages quoted, lessened in relative merit, or because one is, by reason of some additional circumstance, not attributable to any act or omission of the others, rendered in the eye of equity more meritorious than the rest. (The reference to “circumstances indicated in the passages quoted” was to previous cases dealing with an act or omission on the part of one of the claimants justifying postponement of its title.) On appeal to the Privy Council [Abigail v Lapin (1934) 51 CLR 58; [1934] AC 491], the decision in Lapin v Abigail was reversed on the basis that the Lapins’ conduct in arming their creditors with the capacity to become the registered proprietors was disentitling conduct. The Judicial Committee rejected Kindersley V-C’s position that priority in time was the test only where the equities were otherwise equal. It was, they said (at 68), clearly established that prima facie, priority in time would decide the matter unless there was something “tangible and distinct having grave and strong effect” to warrant taking away the pre-existing equitable title. 142 [2.135]

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AG(CQ) Pty Ltd v A&T Promotions Pty Ltd cont. But in Latec Investments Limited v Hotel Terrigal Pty Ltd (In liq) (1965) 113 CLR 265 at 276, Kitto J restated Kindersley V-C’s formulation: In all cases where a claim to enforce an equitable interest in property is opposed on the ground that after the interest is said to have arisen a third party innocently acquired an equitable interest in the same property, the problem, if the facts relied upon as having given rise to the interests be established, is to determine where the better equity lies. If the merits are equal, priority in time of creation is considered to give the better equity. This is the true meaning of the maxim qui prior est tempore potior est jure: Rice v. Rice. But where the merits are unequal, as for instance where conduct on the part of the owner of the earlier interest has led the other to acquire his interest on the supposition that the earlier did not exist, the maxim may be displaced and priority accorded to the later interest. (citation omitted) In Heid [Heid v Reliance Finance Corporation Pty Ltd (1983) 154 CLR 326 at 333, 339, and 348], the High Court endorsed Kitto J’s explanation of the rule in Latec Investments. Having discussed estoppel as a rationale for postponing an earlier equity, Mason and Deane JJ (at 341) went on to express a preference for: …a more general and flexible principle that preference should be given to what is the better equity in an examination of the relevant circumstances. It will always be necessary to characterize the conduct of the holder of the earlier interest in order to determine whether, in all the circumstances, that conduct is such that, in fairness and in justice, the earlier interest should be postponed to the later interest. In Latec Investments, Kitto J, had, they said, explained Dixon J’s test in Lapin, of whether the prior owner’s conduct had led the later owner to acquire his interest on the supposition that the earlier interest did not exist, as just one instance of a case in which the merits were unequal. That was consistent with what Isaacs J had said in Lapin. Mason and Deane JJ continued (at 341): To say that the question involves general considerations of fairness and justice acknowledges that, in whatever form the relevant test be stated, the overriding question is “…whose is the better equity, bearing in mind the conduct of both parties, the question of any negligence on the part of the prior claimant, the effect of any representation as possibly raising an estoppel and whether it can be said that the conduct of the first or prior owner has enabled such a representation to be made …”. (citing Sykes, Law of Securities, 3rd Ed. (1978), p.336). They went on to observe (at 342) that an equitable interest would not necessarily be postponed to one created later in time merely because there was a causal nexus between an act or omission by the prior equitable owner and an assumption on the part of the later equitable owner that no such prior equity existed. Fairness and justice demanded focus on: acts during the carrying out of which it is reasonably foreseeable that a later equitable interest will be created and that the holder of that later interest will assume the non-existence of the earlier interest. AG(CQ) here relied on Isaac J’s approach in Lapin v Abigail and on Barnes v James (1902) 27 VLR 749 to argue that the question was not whether the prior equity holder was guilty of disentitling conduct, but whether one of them had been more diligent than the other. In Barnes v James, James agreed to transfer to Barnes, from whom he had borrowed money, a mining lease about to be issued. After the lease was issued and registered, James sold it to a company and executed a transfer to it. The company lodged a caveat against any dealings with the lease, having no notice of Barnes’ rights. What Beckett J described as “accident” prevented the company from registering the transfer. Beckett J resolved (at 752) the matter thus: [2.135]

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AG(CQ) Pty Ltd v A&T Promotions Pty Ltd cont. I think there is a better right on the part of the defendant company, and I think that the better right consists in this, that no step was omitted by it by which it could have ascertained the existence of a prior interest in any other person. I cannot say that the plaintiff was negligent, but he might have done more than he did to protect his title by entering a caveat when he ascertained that a lease was issued. In Clark v Raymor (Brisbane) Pty Limited [No 2] [1981] Qd R 790, purchasers of land who had received the certificate of title had been unable to register themselves as proprietors before the holder of an equitable charge on the property given prior to its sale lodged a caveat. The first instance decision, that the purchasers’ equity to have their transfer registered took priority, was upheld on appeal. Thomas J, with whom the other members of the Court agreed, cited (at 795) the passage already set out from Kitto J’s judgment in Latec Investments and observed that in determining the question of priority: The fact that one interest was created before the other is a factor of last resort only. The correct function is “to determine where the better equity lies.” The application of the test Judges in such cases at first instance and on appeal have not generally regarded it as necessary that evidence be called in order to establish what a reasonable equity holder would have done. I do not think that there is anything about this case requiring a different approach. One can accept as correct these propositions advanced by AG(CQ) on the strength of the more recent authorities: the question is as to which is the better equity, and in determining that question the conduct of both parties will be relevant. But one can also say that it is proper to look for both meritorious and unmeritorious (or disentitling) conduct as, in my respectful view, the learned judge did in this case; and it is legitimate to determine the worse of the equities in order to establish the better. The position advanced by A&T Promotions, that there must have been conduct on its part to arm Ikin to hold out the title to the proposed lot as unencumbered before postponement of its interest could be justified, is too restricted. Negligence in putting another person in a position in which he can misrepresent his interest to a third party may be sufficient to cause the holder of the first interest in time to lose his priority, but it is not essential. On the other hand, notwithstanding the broad formulations of the rule by Isaacs J in Lapin v Abigail and Beckett J in Barnes v James, I doubt the correctness of AG(CQ)’s argument that the mere fact of greater diligence on the part of the subsequent interest holder in protecting its interest should give it priority. That proposition is difficult to reconcile with the emphasis which Mason and Deane JJ in Heid (1983) 154 CLR 326 at 341 placed on characterising the conduct of the earlier interest-holder. I reject the submission that AG(CQ)’s actions, in obtaining and retaining those documents necessary to complete a transfer once the lot issued, per se created an imbalance in the respective merits sufficient to give it the better equity. It may be accepted, however, that AG(CQ) did what it could to secure its position. A&T Promotions’ argument that AG(CQ), by giving Ikin the Success Fee Deed, armed him with the capacity to represent the title to the proposed lot as unencumbered is entirely unconvincing. The further inquiries A&T Promotions suggested AG(CQ) might have made were not identified, and a search of its own title would seem to have been entirely pointless. Nor is it obvious that it should have lodged a caveat over parcels of land registered in its own name, any more than the bank in J & H Just (Holdings) [J & H Just (Holdings) Pty Ltd v Bank of New South Wales [1970] 3 NSWR 372 at 375], where the High Court rejected just such an argument. There, the bank held a duplicate certificate of title without which further dealings could not be registered, and was entitled to rely on those circumstances for protection. I should say here that I do not think the learned judge’s allusion to AG(CQ)’s possession of the incomplete transfer documents as not having prevented Ikin from obtaining further advances on the 144 [2.135]

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AG(CQ) Pty Ltd v A&T Promotions Pty Ltd cont. security of the proposed lot indicates any error in reasoning. Her Honour’s statement was literally correct. She did not go on to draw the inference which AG(CQ) attributes to her, and for which A&T Promotions here contends, that the later mortgagees’ conduct was indicative of the response of a prudent lender. The learned judge in the present case was correct in identifying a risk to both A&T Promotions and AG(CQ) that title to the proposed lot would not issue, leaving them both without security for the moneys lent by them. But in practical terms, the risk run by AG(CQ) was entirely different from that of A&T Promotions, because if the lot did not issue it had an advantage which offset the loss of its security: it remained the owner of the land. A&T Promotions was vulnerable, having taken security over an unregistered lot. There was no register to search and there was no means of general notification of its interest. As counsel for AG(CQ) submitted, it was inherent in that type of transaction that Ikin could repeat the transaction without the knowledge of either A&T Promotions or any subsequent lender. Ikin had twice defaulted on repayment of the Maccaral loan, and had already, as the solicitors’ letter showed, committed a large proportion of the funds payable under the Success Fee Deed to two creditors, one of them AG(CQ). It was entirely foreseeable that he might seek to raise more money on his prospects in relation to the land. Only the most unworldly would regard his covenants as any real guarantee against his dealing with his interest in the lot. It was not reasonable, in my view, for A&T Promotions to rely on its arrangements with Ikin. A&T Promotions says, correctly, that it had no right to demand incomplete transfer documents of the kind which AG(CQ) had in readiness. But it could have asked AG(CQ) to provide it with a signed transfer of the lot to Ikin. It might well have been refused, but it was a possible and simple step to securing its position. It could also have sought an assignment of Ikin’s rights under the Success Fee Deed. Clause 5.1(c)(ii) of the second Deed of Variation, on its proper construction, conferred an immediate right to require an assignment; indeed, in the event, A&T Promotions sought such an assignment in August 2008, well before the lot was created. Having obtained an assignment of Ikin’s rights, A&T Promotions could have notified AG(CQ) accordingly and thereafter dealt with it directly. A&T Promotions could have inquired of AG(CQ) if and when the transfer was expected, and could have advised AG(CQ) of its interest. Instead, it chose to rely on a four month old facsimile from AG(CQ)’s solicitors, without inquiring as to whether its contents remained current, and on Ikin’s undertaking to notify it when the lot issued. It was imperative to A&T Promotions’ protection and the protection of others that it know when the lot was created so that it could register its mortgage. But it did nothing to give itself any independent means of knowing when the survey plan of the land creating the lot was likely to be registered, and, accordingly, when the lot would be transferred to Ikin; although it was obvious that once Ikin obtained the transfer he could use it to deal with others unaware of A&T Promotions’ interest. And although it could not be assumed that AG(CQ), if advised of A&T Promotions’ interest, would pass that information on to others inquiring, it was, in the absence of the register of titles, the only way of communicating A&T Promotions’ position to those who might be affected by it. Its failure to inquire and notify meant that it failed to take the only means by which it could attempt to ensure that Ikin could not encumber his interest further or do as he pleased with the evidence of title when it became available. It did not take sensible and obvious steps to protect itself, let alone others. Its failure to make its interest known to AG(CQ) in any way was a failure to act as a prudent lender and led directly to AG(CQ)’s position. AG(CQ) could reasonably assume in the absence of notice from any party of any interest in the Success Fee Deed or the proposed lot that Ikin had not assigned or encumbered his rights in respect of either. [2.135]

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AG(CQ) Pty Ltd v A&T Promotions Pty Ltd cont. Those deficiencies in A&T Promotions’ conduct went unrecognised by the learned primary judge. AG(CQ) has succeeded in showing that her Honour erred in her assessment of the relative merits of the respective interests, and that it had the better equity. Its interest should take priority. I would allow the appeal. [McMurdo P and McMeekin JA agreed with Holmes JA.]

[2.140]

Notes and Questions

1. Note that AG(CQ) Pty Ltd v A&T Promotions Pty Ltd [2010] QCA 83 is a Torrens title case, but is considered here because the usual distinguishing characteristics of a priority contest between unregistered interests in Torrens land were absent. Because no certificate of title had issued for the relevant parcel of land, it was not possible for the parties to search the register for interests affecting the land or to lodge a caveat. For how the principle expressed in this case is applied in the usual Torrens title context, see [6.85]-[6.180]. 2. The issue of what does and what does not constitute postponing conduct has been considered in a number of cases. The relevance of possession of the title deeds is often material and depends on the individual facts of each case: in many circumstances the holder of the first equitable interest gains protection by such possession and may lose priority if he or she has not taken possession of the deeds. Where the holder of the first equitable interest is a beneficiary under a trust, the priority rules may vary. Where the trustee deals with the title deeds in a fraudulent or negligent manner and another equitable interest is created the beneficiary does not lose priority because of the conduct of the trustee: Shropshire Union Rlys & Canal Co v The Queen (1875) LR 7 HL 496. That is, the beneficiary’s equitable interest is not tainted with the reprehensible conduct of the trustee. The underlying reason for this principle is that a beneficiary, unless entitled to call for the legal estate, is not entitled to possession of the title deeds. It would be unfair, therefore, to penalise a beneficiary not entitled to possession of the title deeds, for misuse of the deeds by the trustee. Where the reprehensible conduct of the trustee concerns a failure to get in the title deeds, the position is different. The beneficiary’s interest falls in with that of the trustee and the beneficiary is in no better position than that of her trustee: Walker v Linom [1907] 2 Ch 104; cf Coleman v London County & Westminster Bank Ltd [1916] 2 Ch 353 at 360–361. 3. A variety of other priority disputes may arise. Consider the sorts of disputes which may arise and the priority rules which may be applied to them. See, for example, Latec Investments Ltd v Hotel Terrigal Pty Ltd (in liq) (1965) 113 CLR 265 extracted at [6.185]. The case concerned Torrens land and a dispute between a prior mere equity and a subsequent equitable interest. It is generally accepted that the priority principle applied to that dispute is equally applicable to general law land. The effect of the deeds registration system on general law land priority disputes [2.145] Before the introduction of the Torrens system of land registration, a number of

statutory provisions designed to simplify the general law land system were introduced. 146 [2.140]

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Probably the most important of these was the establishment of a centralised register in which abstracts or memorials of all dealings affecting an individual piece of land could be recorded. It was considered that the searching process would be simplified by such a system. Registration of deeds legislation was passed in all states. (The current legislation is contained in the following Acts: Conveyancing Act 1919 (NSW), ss 184A – 184J; Property Law Act 1958 (Vic), Pt I (the Transfer of Land (Single Register) Act 1998 (Vic) prevents the registration of any further deeds or instruments under Pt I of the Property Law Act 1958 (Vic)); Property Law Act 1974 (Qld), ss 241 – 249; Registration of Deeds Act 1935 (SA); Registration of Deeds Act 1856 (WA); Registration of Deeds Act 1935 (Tas).) The registration system does not operate to affect the validity of documents creating or passing interests in land: for instance, a deed is still required to create or dispose of a legal estate in land. However, in order to encourage the use of the registration system, priority was conferred on registered over unregistered or subsequently registered instruments. The legislation has been interpreted in a number of cases: see Moore, Grattan and Griggs, Australian Real Property Law (6th ed, Thomson Reuters, Sydney, 2016), [2.600] – [2.655].

[2.145]

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CHAPTER 3 Possession [3.05]

CONCEPT OF POSSESSION .................................................................................. 149

[3.15]

POSSESSION AS A SOURCE OF TITLE TO GOODS ............................................. 150 [3.15]

Taking possession ................................................................................ 150 [3.15] [3.25] [3.35]

[3.45]

Possession of objects in or on land .................................................... 159 [3.45] [3.50]

[3.60]

Chairman, National Crime Authority v Flack ........................... 159 Waverley Borough Council v Fletcher ....................................... 163

Abandonment of possession .............................................................. 168 [3.60]

[3.70]

Young v Hichens ................................................................... 150 The Tubantia ........................................................................ 151 Bremner v Bleakley ................................................................ 155

Re Jigrose Pty Ltd .................................................................. 168

POSSESSION AS A SOURCE OF TITLE TO LAND ................................................. 171 [3.75]

Rights flowing from possession of land ............................................ 172 [3.75] [3.85] [3.95]

[3.100] [3.105]

The limitation principle: adverse possession .................................... 179 Commencement of limitation period ............................................... 181 [3.105]

[3.115]

Asher v Whitlock ................................................................... 172 Perry v Clissold ...................................................................... 173 Mabo v Queensland (No 2) ................................................... 176

Whittlesea City Council v Abbatangelo .................................... 181

Running of the limitation period ....................................................... 197 [3.115]

Mulcahy v Curramore Pty Ltd ................................................. 197

CONCEPT OF POSSESSION [3.05] In An Introduction to American Law (1919), E Pound describes the concept and

meaning of “possession” as follows (at 36-37): [Possession] is a legal addition to and extension of the idea of custody. Where custody (exercised by oneself or by another) is coupled with the mental element of holding for one’s own purposes, there is possession, and the law gives to the person so in possession a legal right to continue in possession and be restored to possession should he lose or be deprived of it, as against every one but the owner. In the case of custody, the law secures the relation of the physical person to the object, in order to secure the physical person. In case of possession the law secures the will of the possessor to hold for his own purposes.

Note

[3.10]

Provided that the two elements of possession – exclusive physical control (custody) and an intention to exclude others – are present, the law will recognise a person’s possession even if it has been wrongfully obtained. So, a thief’s possession of goods or a squatter’s possession of land will be good against all the world except for those with a better title to the goods or land. Such a better title would be based upon true ownership or a superior possessory interest. See [3.10]

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Clarke and Kohler, Property Law Commentary and Materials (Cambridge University Press, Cambridge, 2005), p 259. Why might the law take this position, rather than refusing to protect possession that has been wrongfully obtained?

POSSESSION AS A SOURCE OF TITLE TO GOODS Taking possession

Young v Hichens [3.15] Young v Hichens (1844) 6 QB 606; 115 ER 228 English High Court of Justice, Full Court of Queen’s Bench Trespass The first count charged that defendant, with force, etc, seized and disturbed a fishing sean and net of plaintiff, thrown into the sea for fish, wherein plaintiff had taken and inclosed, and then held inclosed in his own possession, a large number of fish, to wit, etc, and that defendant threw another fishing sean and net within and upon plaintiff’s sean and net, and for a long time, to wit, etc, prevented plaintiff from taking the fish, so taken and inclosed, out of his sean and net, as he could otherwise have done; and drove, etc the fish; whereby part of them died, part were injured, and part escaped; and the sean and net was injured. Second count, the defendant with force, etc, seized, took, and converted fish of plaintiff. Pleas 1

Not guilty. Issue thereon.

2

To the first count, as to preventing plaintiff from taking the fish alleged to be inclosed in his possession, and driving, etc the said fish: that the fish were not plaintiff’s fish, and he was not possessed of them, in manner, etc: conclusion to the country. Issue thereon.

3

To the second count, that the fish were not the plaintiff’s fish, in manner, etc: conclusion to the country. Issue thereon.

4 & 5. As to other parts of the declaration, raising defences under statutes 16 G 3, c 36, and 4 & 5 Vict c 1vii (local and personal, public), relating to the St Ives (Cornwall) pilchard fishery. Issues of fact were tendered and joined on those pleas. On the trial, before Atcherley Serjt, at the Cornwall Spring Assizes, 1843, it appeared that the plaintiff had drawn his net partially round the fish in question, leaving a space of about seven fathoms open, which he was about to close with a stop net; that two boats, belonging to the plaintiff, were stationed at the opening, and splashing the water about, for the purpose of terrifying the fish from passing through the opening: and that, at this time, the defendant rowed his boat up to the opening, and the disturbance, and taking of the fish, complained of, took place. The learned serjeant left to the jury the question of fact whether the fish were at that time in the plaintiff’s possession, and also other questions of fact on the other issues. Verdict for plaintiff on all the issues, with damages separately assessed, namely, £68 for the value of the fish, and £1 for the damage done to the net. LORD DENMAN CJ: It does appear almost certain that the plaintiff would have had possession of the fish but for the act of the defendant: but it is quite certain that he had not possession. Whatever interpretation may be put upon such terms as “custody” and “possession”, the question will be whether any custody or possession has been obtained here. I think it is impossible to say that it had, until the party had actual power over the fish. It may be that the defendant acted unjustifiably in preventing the plaintiff from obtaining such power: but that would only show a wrongful act, for which he might be liable in a proper form of action. 150 [3.15]

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Young v Hichens cont. PATTESON J: I do not see how we could support the affirmative of these issues upon the present evidence, unless we were prepared to hold that all but reducing into possession is the same as reducing into possession. Whether the plaintiff has any cause of action at all is not clear: possibly there may be a remedy under the statutes. WIGHTMAN J: I am of the same opinion. If the property in the fish was vested in the plaintiff by his partially inclosing them but leaving an opening in the nets, he would be entitled to maintain trover for fish which escaped through that very opening. (Coleridge J was absent.) Rule absolute for reducing the damages to 20s, and entering the verdict for defendant on the second and third issues.

[3.20]

Notes and Questions

1. What do you think is the rationale behind the court’s reluctance in this case to find that possession in the fish vested in the plaintiff in the circumstances of this case? What would the plaintiff have had to prove in order to be successful? 2. In State v Shaw (1902) 67 Ohio St 157, 65 NE 875, the facts of the case were similar to those in Young v Hichens (1844) 6 QB 606; 115 ER 228. In this case, the person who interfered with the fisherman who had already practically encircled the fish was charged with larceny. At first instance, the trial judge directed the jury to return a verdict of “not guilty” on the theory that the fish must be confined so that there is absolutely no possibility of escape. This ruling was overturned on appeal, Davis J stating that the owners of the nets had acquired such a property in the fish contained that the taking of them was larceny. Young v Hichens was expressly stated to be inapplicable to this case. Why? 3. The fish in this case would be classified at common law as ferae naturae. The position at common law in relation to such animals is that “only a qualified right of property can be acquired in them, a right which is wholly lost when, escaping from their captor, without any intention of returning, they resume their former freedom”: 2 Bl Com 392. For cases involving claims based on possession of wild animals, see, for example, Kearry v Pattinson [1939] 1 KB 471 (CA) (claimed possessory right over a swarm of bees); Ebers v MacEachern [1932] 3 DLR 415 (PEI Sup Ct) (silver and black foxes); Campbell v Hedley (1917) 39 OLR 528 (Ont Sup Crt, App Div). 4. The efforts of Australian governments to prevent any claim to wild animals by vesting property in the government is the subject of Yanner v Eaton (1999) 201 CLR 351 extracted in Chapter 1 at [1.50].

The Tubantia [3.25] The Tubantia [1924] P 78 English High Court of Justice, Probate, Divorce and Admiralty Division ACTION for damages for trespass and/or for wrongful interference with the plaintiffs’ salvage services on and attendant at the wreck of the steamship Tubantia and/or her cargo. According to the statement of claim, in January, 1916, the Dutch steamship Tubantia sank in the North Sea in over 100 ft of water after being torpedoed by a German warship. No attempt was made [3.25]

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The Tubantia cont. by any one to salve the ship or cargo until the beginning of 1922, when the plaintiffs, Major Sippe, DSO, and others, determined to fit out an expedition in order to raise the vessel or recover anything of value in her. They accordingly engaged steamers and tugs and employed divers and salvage experts. In April, 1922, the plaintiffs started sweeping operations and sent divers down and eventually located the Tubantia, but owing to her broken condition found there was no possibility of raising her. Throughout the summer of 1922 the plaintiffs continued diving operations whenever the weather conditions permitted until the month of November, when it became impracticable to continue working through the winter. The plaintiffs then buoyed the Tubantia so as to indicate her position and left her until April, 1923, when the operations were resumed. On July 9, 1923, the defendants, Vincent Grech and Count Zanardi Landi, British subjects and partners (together with one Cecil Reed, who was added as a defendant in the course of the hearing) in a company called the British Semper Paratus Salvage Company, proceeded with their steamship Semper Paratus to the place of the wreck and anchored her in close proximity to the plaintiffs’ salvage steamer, thereby interfering with the plaintiffs’ operations. Though requested to leave, the defendants remained with the Semper Paratus at or near the wreck until after the issue of the writ in the present action on July 16, 1923. On July 13, when in close proximity to the wreck, the defendants got their sounding lines entangled in the plaintiffs’ lines. On the same day the defendants tried to moor a motor launch to one of the plaintiffs’ buoys and to raise the plaintiffs’ grappling irons and anchor; and on several occasions they sent down divers on to or in close proximity to the wreck. The plaintiffs alleged that the defendants intentionally and without justification or excuse interfered with the plaintiffs’ possession of, and their salvage operations on, the Tubantia and her cargo; that the ultimate success of the operations was imperilled; and that the plaintiffs, who had spent approximately £40,000 up to the beginning of the proceedings in the action, had thereby suffered damage. The plaintiffs claimed (a) a declaration that they were entitled to possession of the Tubantia and her cargo; (b) damages; (c) an injunction restraining the defendants from proceeding to, remaining at, or interfering with, the Tubantia and/or her cargo; (d) a reference to the registrar and merchants to assess the amount of damage. The defendants denied the plaintiffs’ possessory rights and the alleged infringement of them; and the defendant Count Landi further denied that the plaintiffs had the ability, appliances, or competency to save any of the property, or to do so without aid. He alleged that he was ready and willing to co-operate with the plaintiffs for the purpose of saving any property capable of being saved, and to bring into Court anything he might succeed in recovering from the wreck. The President (Sir Henry Duke) read the following judgment: The plaintiffs in this action – a British subject and four citizens of the French Republic – bring their action in respect of alleged wrongful acts of the defendants upon the high seas. The place in question is a point in the North Sea some fifty miles from our shores, and from twenty to twenty-seven miles from the coasts of France, Belgium and Holland, where, at a depth of nineteen or twenty fathoms, lies so much as is now in being of the hull and cargo of a Dutch steamer, the Tubantia, which was a vessel 541 feet long and of 15,000 tons register. Alleged rights over the Tubantia and her cargo are the real subject matter of the controversy. The vessel was, as the parties say, sunk at the place in question in January, 1916, by a German warship. The plaintiffs assert possessory rights over the wreck and its contents and complain of trespasses thereon and also of wrongful interference by the defendants and their servants with the lawful business of the plaintiffs. They claim a declaration to establish the possessory rights which they allege, an injunction to restrain interference by the defendants with their possession of or operations upon the Tubantia, and damages to be assessed by the registrar and merchants according to the practice of this Division.

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The Tubantia cont. The defendants against whom the action has proceeded are Cecil Finlay Reed, Vincent Grech and C Zanardi Landi, who constituted, as appears, the partnership called in the pleadings the Semper Paratus Salvage Company and under that name added to the defendants in the cause. The steamship Semper Paratus was used by the defendants, as is alleged, in doing the acts complained of by the plaintiffs. She is of British register. The defendants deny the alleged possessory rights of the plaintiffs, and the alleged trespasses and molestations. The defendant Landi raises alternative defences which treat the plaintiffs as would-be salvers of the Tubantia who were unable to effect their salvage undertaking and assert that the defendants were ready and willing to co-operate with the plaintiffs as salvors and to bring into Court any salved property. There was evidence at the hearing of a serious belief among the parties that the wreck of the Tubantia contains treasure of large value. A salvage agreement into which the three defendants entered for the purposes of their joint undertaking specifies a sum in gold of the German prewar currency worth not less than two million pounds sterling. The particulars I have stated show the controversy between the parties to be of an unusual kind, and the plaintiffs are invoking in respect of it powers of the Court derived from the Judicature Acts which rarely come in question here. On the defendants’ part one short answer which was made to the claims of the plaintiffs was that they are without precedent. The absence of specific authority no doubt necessitates caution in the consideration of the case. What is really to be decided, however, is whether in respect of the Tubantia and her cargo any rights of the plaintiffs have been infringed by the defendants and, if so, what are the appropriate remedies. The things in question here are, as I find, derelict in the limited sense in which that term is constantly used here in cases of salvage-what Lord Stowell called “the legal sense”: The Aquila 1 C Rob 37. They are not in the possession or control of any owner or person acting on behalf of an owner. The possession of a salvor in a ship or cargo, or cargo, or wreck derelict in this sense is, however, as well known to the law as any other right of a salvor. It has often been asserted, and, indeed, vindicated in the Admiralty jurisdiction. The plaintiffs are, therefore, entitled to a decision as to whether they had in July, 1923, as they assert they had, possession by their agents of the wreck of the Tubantia and the cargo therein. The facts on which the plaintiffs rely in support of their claim that they had possession in July, 1923, are fully set forth in the statement of claim, and, in all material particulars, were proved at the hearing. Their operations began in April, 1922, and for a long time were discontinuous. Their controversy with the defendants arose in July, 1923. They then had, and from that time to the hearing they have kept, craft and divers at the place in question. What had been done, and what was going on in July, 1923, are matters in dispute, and must be stated in some detail. The plaintiffs, by employing during two seasons various vessels suitable for salvage work with competent crews, ascertained and marked out the area occupied by the Tubantia, and by means of buoys properly moored they were able to, and did, keep in position, at and above the wreck, craft from which work could be carried on upon the hull and in the holds. They established and in July, 1923, were using, various buoyed moorings by which they had direct access to the deck at various points. They cut out a hole in the ship’s side 14 ft by ten, which gave them access to No 4 hold, in which a great bulk of cargo appears to have been stowed, and by means of tackle fixed at the side of the hold their divers had a way of approach to and entry upon that hold. The various appliances to which I have referred were of the nature of fixed plant on and around the Tubantia, such that when the weather and the state of the tide permitted, divers could by its use work in and upon the wreck and among the cargo. Two pairs of divers were so at work during May, June, and July, 1923. They explored the wreck, removed obstructions, opened the approaches to and worked upon the cargo, and brought up parts of the structure and of the cargo. The possible working hours in each day, however, did not exceed two spells of one and three-quarter hours at a time, of which 45 minutes at a time were spent in the holds. The number of working days in 1923 seems not to have exceeded 25, and the working plant was liable to be carried away or [3.25]

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The Tubantia cont. destroyed by the sea. Some of it sometimes was. The appliances I have mentioned, and the frequently interrupted access to the wreck which the plaintiffs had in the summer of 1923, are the evidences of possession at the dates in question in this case on which the plaintiffs rely. On the question whether in the state of facts I have described the plaintiffs could be found to have had possession of the Tubantia when the defendants appeared on the scene, counsel on both sides cited largely from Sir Frederick Pollock’s well-known treatise on possession: Pollock and Wright, Possession in the Common Law. The questions suggested in this way I have sought to apply. They involve inquiries such as these: what are the kinds of physical control and use of which the things in question were practically capable? Could physical control be applied to the res as a whole? Was there a complete taking? Had the plaintiffs occupation sufficient for practical purposes to exclude strangers from interfering with the property? Was there the animus possidendi? I have also taken this to be a true proposition in English law: A thing taken by a person of his own motion and for himself, and subject in his hands, or under his control, to the uses of which it is capable, is in that person’s possession. “Omnia ut dominum gessisse” is, Sir Frederick Pollock says, a good working synonym for “in possessione esse”, and I cannot doubt that if the owners of the Tubantia in 1916 had put themselves, in 1923, in the position in which the plaintiffs put themselves they would be held to have been in actual possession. It would not be safe, though, to rely on this, for there is a presumption in law which aids the operative effect of the possessory acts of an owner. To illustrate my meaning, I am told that the Trinity House commonly holds possession of the wreck of a ship by mooring upon it a single buoy. I had the advantage of the assistance of the Elder Brethren at the hearing, and I have consulted them as to the practical aspects of the matters in question. They advise me that by reason of the great depth at which the wreck lies the difficulties involved in the work of the plaintiffs are formidable, but that, if I accept the plaintiffs’ evidence, they were in effective control of the wreck as a whole; that they were in a position to prevent any useful work by new-comers; and that, while the plaintiffs’ people remained in the position they claimed to have taken up, no new-comer could, without violence, have exercised upon the wreck the kind of control the plaintiffs had, or could have made any valuable use of the wreck. They advise me that what the plaintiffs did upon the wreck was what a prudent owner would probably have done, assuming he did not know how the holds of the Tubantia were stowed and desired to inform himself fully as to the situation on the wreck before employing larger craft or more powerful appliances than the plaintiffs were employing. These opinions entirely commend themselves to my judgment, and I have come to certain conclusions which I will now state. There was animus possidendi in the plaintiffs. There was the use and occupation of which the subject matter was capable. There was power to exclude strangers from interfering if the plaintiffs did not use unlawful force. The plaintiffs did with the wreck what a purchaser would prudently have done. Unwieldy as the wreck was, they were dealing with it as a whole. The fact on the other side which is outstanding is the difficulty of possessing things which lie in very deep water and can only be entered upon by workmen in fine weather and for short periods of time. Must it be said that, because the work of the plaintiffs’ divers was that of only one pair at a time, in short spells with long interruptions, and because access to the holds of the Tubantia was often prevented altogether by stress of weather, therefore the vessel, and her cargo, were incapable of possession? To my mind this would be an

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The Tubantia cont. unfortunate conclusion, very discouraging to salvage enterprise at a time when salvage, by means of bold and costly work, is of great public importance. I do not feel bound to come to it. I hold that the plaintiffs had in July, 1923, the possession of the Tubantia and her cargo, which they allege.

[3.30]

Notes

1. To what extent (if any) do you consider that analogies can be drawn between the facts of this case and those cases involving animals ferae naturae for the purposes of determining possessory rights over the wreck? 2. On what facts and by what legal process was the court able to conclude in this case that the plaintiff had possession of the wreck? Do you agree with the legal reasoning? Is it consistent with the reasoning in Young v Hichens (1844) 6 QB 606; 115 ER 228? 3. Do you think that the result in this case might have been different if the wreck were situated in shallow tropical waters off the coast of Queensland? If so, why? 4. On the facts of this case, it is clear that the original owners of the Tubantia had long since abandoned possession of the ship. What difference would it have made to the result in this case if the original owners had claimed that they still had the animus possidendi (the intention to possess the ship)? What would have resulted if the defendants had been given permission by the original owners to raise the wreck?

Bremner v Bleakley [3.35] Bremner v Bleakley (1923) 54 OLR 233 Supreme Court of Ontario, Appellate Division HODGINS JA: The appeal is by the defendants from a judgment of Middleton J for damages and an injunction. The frame of the injunction is that the defendants are restrained from “excavating in and removing sand and gravel from their lands … in such a way as to cause sand and gravel to be carried away from the plaintiffs’ lands”. Upon the argument matters appeared to be much clarified by the explanation that the complaint was really that the appellants dug holes or trenches in the beach upon their lands on the shore of Van Wagner’s Beach on Lake Ontario, where the sand met the grass-covered bank, that sand was swept from off the respondents’ lands by storms and was carried by the wind across the appellants’ beach, and came to rest in these holes and trenches. Consequently, when the next storm came, the sand failed to emerge from these holes, and so had no chance to be, and was not, blown back to the respondents’ lands. It was not the combined action of wind and hole that caused what happened. It was the action of two separate and disconnected things. The wind brought it to the appellants’ land, and the holes kept it there – and its return being thereby prevented – ergo, it was wrongfully detained by the appellants. The learned trial Judge followed and applied the case of Cleland v Berberick (1915-16), 34 OLR 636, 36 OLR 357, where the owner of the land had the right to have it left in its natural plight and condition, and that it was a wrongful act on the part of another landowner so to facilitate the action of natural forces as to interfere with the enjoyment of the land in its original condition. “Lateral support is, in my view, only one application of a wide principle. There by excavation the force of gravity operates to the prejudice of the neighbour. Here the excavation results in the shifting of the sand from the remaining beach into the hole made.” [3.35]

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Bremner v Bleakley cont. He then proceeds to apply the principle which he lays down, to the situation I have described, in these words (at 126): The defendants and others along the beach seem to regard the phenomenon as akin to the widow’s curse, and fail to realise the fundamental dishonesty of their conduct. This shifting sand is not the property of no one, waiting for some one to appropriate it. It is all land owned by the different proprietors along the beach. When shifted by the operation of nature, none can complain, but when any individual undertakes for his own profit to intervene and aid nature he violates his neighbour’s property-right. I have read all the cases cited to us and others, and I am unable to see that that principle has any relevancy on the facts of this case, as I understand them. The digging of holes and trenches did not in any way cause or contribute to the movement of the sand from the respondents’ beach. It did no injury or damage to the respondents in itself, and no action can, therefore, be properly found on it. Excavation upon a person’s own land gives no cause of action-a cause of action arises only on proof of damage from that excavation. This is clearly put in Smith v Thackerah (1866), LR 1 CP 564, a case of lateral support, by Erle CJ: But for a man to dig a hole in his own land is in itself a perfectly lawful act of ownership, and only becomes a wrong if it injures his neighbour; and since it is the injury itself which gives rise to the right of action, there can be no right of action unless the damage is of an appreciable amount. Lord Halsbury in Darley Main Colliery Co v Mitchell (1886), 11 App Cas 127 at 133, says: Since the decision of this House in Bonomi v Backhouse (1861), 9 HLC 503, it is clear that no action would lie for the excavation. It is not, therefore, a cause of action; that case established that it is the damage and not the excavation which is the cause of action. The facts, however, raise a rather interesting question as to whether the appropriation of this sand by the appellants gives the respondents a cause of action. It appears that the wind, having moved the loose particles of sand from the respondents’ land and that of others nearby, sweeps it across the appellants’ beach, where it is stopped and held in the holes and trenches. This would seem to be a very natural result, and it would equally happen if the appellants were engaged in a praiseworthy effort to dig a foundation or run a drain. The real grievance is that the appellants, being furnished by nature’s forces with a quantity of sand, which they arrest in its career from the respondents’ beach, are selling it at $1 per load and keeping the money. This may be unneighbourly, but is it such a wrongful act as to render the appellants liable to the respondents? The sand thus moved must either retain its character as soil or must become a chattel, and in either event I am unable to conclude that the respondents have a cause of action. Treating it as part of the soil cast upon the appellants’ land in the way described, the appellants are appropriating property consisting of the particles of sand shifted, with sand from other lots, by the action of the wind and settling down elsewhere than on the land where it originates. When it reaches the land of another it is practically indistinguishable from sand belonging to others, moved by the same force, and also from the sand on that particular piece of land. If it rests there it becomes incorporated with the land upon which it descends. Warrington LJ, in Nesbitt v Mablethorpe Urban District Council [1918] 2 KB 1 at 17, states the general law applicable to the constant action of wind as well as of water when he says: The sandhills are a natural barrier to the encroachment of the sea, and appear to have been formed gradually by the action of the sea. They would thus prima facie be properly treated as accretions to the adjoining land. I am unable to follow the idea that because it would lie on the surface if there were no hole, and might be caught by a storm from another direction, and returned to its place of origin, it, therefore, remains the property of the owner from whose land it came, and that he is entitled to hold the appellants accountable for it. The appellants might rather be entitled to resent the intrusion of the 156 [3.35]

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Bremner v Bleakley cont. sand on to their property. If the respondents have and retain property in it, it would seem to follow that the appellants could compel its removal by them. This conception of the situation would present such extraordinary difficulty of proof that I am not surprised that no authority was put forward giving the respondents the right to claim its return or requiring them to remove it. If sand forms, by its gradual accumulation, new land reclaimed from the water, it would be the property of the owner of the land under or bordering upon that water. If it filled up holes on the next owner’s property, I would think the same rule would apply, and it would become his property as part of his land. It is not a case where the excavation produced the original movement, as in Trinidad Asphalt Co v Ambard [1899] AC 594. Put at its highest, it is a case of appropriation of something cast on the appellants’ land by the forces of nature. Tested by the law as to things thrown up by the sea, as it is said that the sand came visibly from time to time and not imperceptibly, the appropriation of it by the appellants would seem to vest the property in the person on whose land it is deposited. See Regina v Clinton (1869) Ir 4 CL 6. That reduction into possession must not be by any wrongful act (Blades v Higgs (1865) 11 HLC 621), and there is, as has been pointed out, no wrongful act done by the appellants in digging the holes. In Brew v Haren (1877) Ir R 11 CL 198, where an old case decided by Jebb J of Howe v Stawell (1833) Alc & Nap 348 at 353, was approved, his opinion is given in this quotation (Ir R 11 CL at 201): Seaweed, as Mr Justice Jebb says, is on the same footing as sand or gravel. Sand and gravel and trees are swept in by one tide, and swept out by the next, and it cannot be argued that the owner of the shore has no property in the sand or gravel, and that every subject may carry it away, or so much of it as the owner does not anticipate him in appropriating. The principle on which this right rests is as old as the law of England; it is that the owner of land is entitled to all the natural advantages belonging to that land, and therefore, to all things which in the course of nature may be deposited thereon. Quantities of alluvial clay or gravel may be brought down by streams or floods; these become the property of the owner of the land, for they are found on his land; they are not artificial products which, of course, if they had been previously private property would not lose that quality by being found upon another person’s land. We were referred to an American case in 2 Johnson’s Reports, which I have since read in King’s Inns Library, and the law is there clearly stated, and referred to the principle of the owners of the soil being entitled to all their natural advantages. Considering it from another point of view, if particles, or a mass of sand, are or could be considered as chattels, their sale might amount to conversion. This might be deduced from the opinions delivered by Avory and Lush JJ, in Mills v Brooker [1919] 1 KB 555. But this analogy to a chattel seems to be a far-fetched idea, for which I can find no warrant. The case nearest in analogy to this is, I think, that of Salt Union Limited v Brunner Mond & Co [1906] 2 KB 822. There there were rock salt mines owned by the plaintiffs, which had for many years been flooded by brine. They were connected with one another by underground channels which it was impossible to close and thus formed one large reservoir of brine. Into this other brine flowed from other owners’ properties, but a substantial part came from the plaintiffs’ rock salt. “The defendants, in the exercise of a license to pump brine granted to them by the previous owner of one of the plaintiffs’ mines, pumped large quantities of brine from the said mine and from the reservoir and appropriated it for their own profit: Held, that the defendants were not guilty of any actionable wrong in so doing, notwithstanding that they thereby abstracted salt which had formed part of the plaintiffs’ rock, and that the continuance of the pumping would cause fresh surface water to dissolve further portions of the plaintiffs’ rock into brine, which in turn would be abstracted by the defendants’ pumps.” The same argument was made there as here, in these words (827): “Any contrivance by which one person takes the rock salt of another, whether it be by means of a pickaxe or a pump, is equally wrongful.” Lord Alverstone CJ, who says it is a case of first impression, decided (832) that “when a man puts down a shaft and pumps in his own land (both of which acts are prima facie lawful) the act does [3.35]

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Bremner v Bleakley cont. not of necessity become unlawful simply because it turns out that the brine thereby obtained may be the result of dissolution of rock in another man’s property.” It is to be observed that in that case the act of pumping was what drew the brine to the defendants’ land and made it useful to them. There that element is missing, for the appellants’ trench has no effect until the wind blew the sand into it. And this seems to me to sever the chain of causation so as to free the appellants from liability unless the sand can be considered a chattel upon its severance by the wind from its original situs. (Where is the situs of shifting sand?) And this I do not think has been or can be established. See Pollock & Wright on Possession (1888), p 230. I would allow the appeal and dismiss the action. MacLaren and Ferguson JJA agreed with Hodgins JA. MEREDITH CJO: … the judgment of my brother Middleton was based upon the assumption that the removal of the sand which is complained of was occasioned by the making of the hole on the appellants’ land. That is not in accordance with the facts: the sand was driven by the wind and waters from the respondents’ land, and the complaint is that the existence of the hole prevented the sand from being driven back to his land when the wind and water were operating in a different direction. I am of opinion that, even had that been the case, the action would not lie. The respondents had not property in the sand after it had been driven from their lands. I also think that there was no evidence that would justify the conclusion that, but for the existence of the hole, sand would have been brought back to the respondents’ land. Magee JA agreed with Meredith CJO.

[3.40]

Notes

1. To what extent is the mental element and intention of the respondents relevant in determination of this case? Would the result in this case have been different if respondents had deliberately dug holes on their property for the purpose of trapping blowing sand? Would the result have been different if the digging of the holes by respondents on their land had caused or aggravated the incidence of blowing sand?

the the the the

2. Why was this case regarded as one of personal property? Why is sand not regarded as real property on the basis of its attachment to the land? If, during a violent storm, the roof of the appellants’ house were to blow onto the respondents’ land, could the respondents justify keeping it and for selling it based on the result in this case? If not, why not? Cf Mills v Brooker [1919] 1 KB 555, where Lush J held that apples fallen from a branch overhanging a neighbour’s property remain the property of the owner of the tree in all circumstances, regardless of whether the apples fall naturally, are blown off by the wind, or are deliberately severed. 3. Note the comment in the judgment of Hodgins JA that “the owner of land is entitled to all the natural advantages belonging to that land, and therefore to all things which in the course of nature may be deposited thereon”. Consider the scope of application of this principle. Does this mean that if I drop a $20 note which blows onto neighbouring property that my neighbour may lawfully keep the money? If not, why not? 158 [3.40]

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Possession of objects in or on land

Chairman, National Crime Authority v Flack [3.45] Chairman, National Crime Authority v Flack (1998) 86 FCR 16 Federal Court of Australia HEEREY J: The respondent Margaret Elizabeth Flack (Mrs Flack) was the tenant of residential premises at 6 Broughton Street, Glebe. Police officers executed a search warrant on the premises and in so doing they discovered a locked briefcase which was found to contain $433,000 in cash. The search warrant was based on suspicion that Mrs Flack’s son Glen had been involved in drug related offences. However no prosecutions were launched against him. Mrs Flack brought a proceeding against the first appellant, the Chairperson of the National Crime Authority (NCA), and the second appellant, the Commonwealth of Australia. The trial judge (Hill J) ordered that the Commonwealth deliver up to Mrs Flack the briefcase and cash. The Glebe premises Mrs Flack at all material times was a weekly tenant under a residential tenancy agreement with the New South Wales Department of Housing. At the time of the events with which the case is concerned she was aged 55. She was the sole occupant of the premises and had lived alone there since the death of her husband in September 1990. Her son Glen, who was aged 38, had a few clothes in a back room. According to Mrs Flack, he did not stay at the house but visited “about twice a week”. Glen had a key to the house, as also did a Mr Sinclair who lived nearby and who was a close friend of Mrs Flack until he died on 24 February 1994. Her married daughter Deborah Ann Nichols had a key as well. Mrs Flack said the various persons who had keys used them “reasonably frequently” and might come into the house when she was not there. The warrant On 12 April 1994 a Justice of the Peace issued a warrant under s 10 of the Crimes Act 1914 (Cth) to Detective Constable David Stewart of the Australian Federal Police. The Justice recited that she was satisfied by information on oath that there were reasonable grounds for suspecting that there were in or upon the Glebe premises things which satisfied all three of the following conditions. First, that the things were one or more of the following namely cannabis in leaf form or as cannabis resin, correspondence, diary entries, telephone indexes, messages, receipts, wrappings, money, weighing scales and customer and price lists. Secondly, that the things related to Glen Flack. Thirdly, that there were reasonable grounds for believing that the things would afford evidence as to the commission of the crime of being in possession of prohibited imports to which s 233B(1)(c) of the Customs Act 1901 (Cth) applied, that is narcotic goods reasonably suspected of having been imported into Australia. The warrant authorised the holder to enter at any time the Glebe premises and to seize the things which satisfied all of the three conditions. Execution of the warrant At about 8.20 am on 13 April 1994, Detective Stewart and four other police officers attended at the Glebe premises. They were admitted by Mrs Flack. Detective Stewart produced the warrant. The police officers asked Mrs Flack if she had a son named Glen Flack. Upon that being confirmed they informed her that they had information that he may be storing narcotics in the house. A search of the house took place. During the latter part of the search Detective Stewart and another officer searched a cupboard in an entrance hallway. In the lower portion of the cupboard were, amongst other things, an ironing board and a fold-up hammock. The police officers then opened the top half of the cupboard and removed what were described as a Balmain bag, a Balmain Fleggs bag and two travel bags, all of which were empty. When those bags were removed a large sized black briefcase was revealed. It was [3.45]

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Chairman, National Crime Authority v Flack cont. removed and found to be locked with a combination lock. The lock was forced and inside were seen a large number of bundles of Australian currency, predominantly fifty dollar notes. The police officers then came into the hallway with Mrs Flack and showed her the black briefcase in a closed position. Detective Stewart asked her who owned the bag. Mrs Flack said “I have never seen it before. I don’t know whose it is”. The police then opened the bag exposing the money inside. The following exchange took place: Mrs Flack: “Oh my God”. Detective Stewart: “Is there anything else you can tell us about that?” Mrs Flack: “No, nothing. I’ve never seen it before, I swear.” Mr Stewart (pointing to where the bag had been found): “It was up there”. Mrs Flack: “Well I never go up there. I don’t need to. That’s what I use for the linen press there.” She indicated a nearby cupboard in use as a linen press. Mrs Flack said she had no idea how the briefcase came to be in the cupboard and that she had not seen her son with the bag. As to the other bags she said: “They’re just old bags of Glen’s and that one [indicating a travel bag] is mine. I used it when I travelled.” She was asked: “Have you ever seen anyone go to this cupboard?” She said: “No, oh, hang on, only Tony who did the painting but I don’t know if he was there or not. I doubt it.” On 19 July 1994 Mrs Flack was examined before a member of the NCA. She was questioned about the cupboard in which the briefcase was found. The following took place: Q. Have you ever been up that high in the cupboard yourself? A. I’d say when I first moved into the house, when I first moved in there 12-13 years ago, when we put the bags and that up there to have somewhere to put things, but that’s about the only time, that I’d ever ever been there. B. So there were other bags up there? C. Well, there were, yes. There was old football bags, etcetera, up there. D. Did you put them up there? E. Years ago I did, yes. F. I am really asking you this to say that it was you, not your husband or someone else? G. Well I put a few up there. I don’t know if my husband put any up there, I wouldn’t have a clue. H. The ones that you put up there, when were they were put up there? I. When I first moved into the house about 12-13 year ago. J. And since that time have you had any occasion to go up there? A. No. Q. To look up there? A. No. B. Or to take anything from there? C. No. A Reserve Bank official gave evidence on affidavit that one of the banknotes in the briefcase had a Westpac Banking Corporation stamp dated 13 January 1994 and that another note was from a series first printed in April 1994. Reasoning Mrs Flack’s case is that she manifested an intention to exercise control over any chattels on the Glebe premises, including chattels of whose existence she was unaware: J G Fleming, The Law of Torts (8th ed, 1992, Law Book Company, at 69). 160

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Chairman, National Crime Authority v Flack cont. The question has to be considered as at a point in time immediately prior to the discovery of the briefcase containing the cash. The issue is whether the occupier manifests a sufficient intention to control all chattels, known and unknown, which are on the premises, subject only to any superior right. Therefore one does not ask: “What was Mrs Flack’s intention in relation to the large amount of cash?” All the cases which were contests between occupiers and finders were dealt with on the basis that the occupier was not aware of the existence of the chattel until the finder found it. Since Mrs Flack was the tenant of an ordinary residential house she had possession in law of those premises. In the circumstances, that fact was sufficient to establish the requisite manifestation of intention to possess all chattels on the premises. In Parker v British Airways Board [1982] QB 1004 the English Court of Appeal had to consider the question of an occupier’s intention in relation to the international executive lounge at Terminal One, Heathrow Airport. The plaintiff had found a gold bracelet lying on the floor of the lounge. Donaldson LJ said (at 1018) that, the bracelet not being a fixture, the defendants’ claim must “… be based upon a manifest intention to exercise control over the lounge and all things which might be in it.” His Lordship concluded (at 1019): It was suggested in argument that in some circumstances the intention of the occupier to assert control over articles lost on his premises speaks for itself. I think that this is right. If a bank manager saw fit to show me round a vault containing safe deposits and I found a gold bracelet on the floor, I should have no doubt that the bank had a better title than I, and the reason is the manifest intention to exercise a very high degree of control. At the other extreme is the park to which the public has unrestricted access during daylight hours. During those hours there is no manifest intention to exercise any such control. In between these extremes are the forecourts of petrol filling stations, unfenced front gardens of private houses, the public parts of shops and supermarkets as part of an almost infinite variety of land, premises and circumstances. This lounge is in the middle band and in my judgment, on the evidence available, there was no sufficient manifestation of any intention to exercise control over lost property before it was found such as would give the defendants a right superior to that of the plaintiff or indeed any right over the bracelet. As the true owner has never come forward, it is a case of “finders keepers.” Eveleigh LJ said (at 1020): A person permitted upon the property of another must respect the lawful claims of the occupier as the terms upon which he is allowed to enter, but it is only right that those claims or terms should be made clear. What is necessary to do this must depend on the circumstances. Take the householder. He has a key to the front door. People do not enter at will. They come by very special invitation. They are not members of a large public group, even a restricted group of the public, as users of the executive lounge may be. I would be inclined to say that the occupier of a house will almost invariably possess any lost article on the premises. He may not have taken any positive steps to demonstrate his animus possidendi, but so firm is his control that the animus can be seen to attach to it. It is rather like the strong room of a bank, where I think it would be difficult indeed to suggest that a bracelet lying on the floor was not in the possession of the bank. The firmer the control, the less will be the need to demonstrate independently the animus possidendi. Sir David Cairns said (at 1021): I agree with both Donaldson LJ and Eveleigh LJ, that, in a situation at all similar to that which we are considering, the occupier has a better claim than the finder only if he had possession of the article immediately before it was found and that this is only so (in the case of an article not in or attached to the land but only on it) when the occupier’s intention to exercise control is manifest. I also agree that such an intention would probably be manifest in a private house or [3.45]

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Chairman, National Crime Authority v Flack cont. in a room to which access is very strictly controlled. Where the borderline should be drawn would be difficult to specify, but I am satisfied that this case falls on the wrong side of the borderline from the defendants’ point of view. Thus all members of the Court of Appeal would readily accept that the occupier of a private home will ordinarily manifest the necessary intention to control chattels therein. In my respectful opinion that accords with common sense. I do not see that any different conclusion should be reached in the present case because Mrs Flack’s son and daughter and her good friend Mr Sinclair had keys. The inference to be drawn is that keys given or lent by an occupier in such circumstances are provided for the recipients’ ease of access and not for the purpose of conferring possessory rights over everything on the premises – at any rate not to the exclusion of, or on an equal basis with, the occupier. It would for example be an everyday occurrence for householders to give, or lend, or make available, keys to children, even children of primary school age. Similarly, an occupier may provide a key to guests, or to a house cleaner or other tradespeople. The fact that the briefcase fairly obviously was not lost or mislaid but deliberately placed in the cupboard by the owner or previous possessor is a circumstance which makes no difference. There may be doubt as to whether it was hidden or cached. The cupboard was not locked. It was a logical place to store, or look for, such bags, irrespective of whether Mrs Flack often used it. Also, whoever put the briefcase there would presumably know that persons other than Mrs Flack had access to the house. And this person need not necessarily have known Mrs Flack did not use the cupboard. But in any event the authorities do not deny a possessory right to an occupier where the article in question has been hidden or deliberately placed on the premises: Johnson v Pickering [1907] 2 KB 437 at 444-445, Re Cohen [1953] Ch 88. If Mrs Flack manifested the necessary intention to control chattels on the premises, how do her rights compare or compete with those of the appellants? If the briefcase containing the cash had been found by a guest on the premises, or a thief, it could hardly be doubted that Mrs Flack would have a superior right. But as against the true owner, Mrs Flack would have to yield. The police executing the warrant were clothed with statutory rights to seize and take away any property which satisfied the three conditions – regardless of whether any other person had possession, or indeed ownership. But at common law an article seized under warrant cannot be kept for any longer than is reasonably necessary for police to complete their investigations or preserve it for evidence. As Lord Denning MR said in Ghani v Jones [1970] 1 QB 693 at 709: As soon as the case is over, or it is decided not to go on with it, the article should be returned. Section 3ZV of the Crimes Act 1914 (Cth) now provides that a thing seized under warrant must be returned if “the reason for its seizure no longer exists or it is decided that it is not to be used in evidence … unless the thing is forfeited or forfeitable to the Commonwealth or is the subject of a dispute as to ownership”. Section 3ZV is in Pt 1AA, introduced by the Crimes (Search Warrants and Powers of Arrest) Amendment Act 1994 (Cth), which did not come into force until after the issue and execution of the warrant in the present case. However it would appear to be not relevantly different from the common law. Therefore the appellants’ rights to retain the goods taken from Mrs Flack’s home ceased once it was conceded that those goods were not required for the purposes of further investigation or prosecution. The power to enter on private property and seize goods is a substantial interference with ordinary liberties and should not be extended beyond limits which the law prescribes: see Levine v O’Keefe [1930] VR 70 at 72, Challenge Plastics Pty Ltd v Collector of Customs (1993) 42 FCR 397 at 402-409. Tamberlin J agreed with Heerey J’s findings. FORSTER J (dissenting): 162 [3.45]

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Chairman, National Crime Authority v Flack cont. I return to the finding which I have made, namely that had her son, or anyone else, sought Mrs Flack’s permission to leave this case and its contents in her custody or possession, this permission would have been refused. That is, I am satisfied that she would never voluntarily have taken possession of the briefcase and contents nor assented to them passing into her custody or control. In these circumstances, I ask myself how can it be presumed simply from her status as householder that she had these goods in her possession? To make that assumption on the basis that her occupation and control of her premises as a householder necessarily manifested an intention on her part to exercise control over them would be to fly in the face of a contrary finding of fact. The presumption, which is not irrebuttable, must yield to the finding. To put the matter another way, is it reasonable that Mrs Flack, who clearly manifested shock and horror when confronted with the presence in her home of these goods, and who, quite clearly, would not have countenanced their presence had she known of them, be nevertheless entitled or obliged, by the presumption relied upon, to assume possession of them? This would be to impose upon her possession of unwanted goods. In my respectful view, this is a case where a person to whom Mrs Flack had provided means of access to her premises for lawful purposes has, contrary to the licence so bestowed, imposed upon Mrs Flack by depositing in her premises, in a manner that deliberately concealed the fact from her, goods which she would never have consented to take into her custody or control. In these circumstances, I am not prepared to find that possession of these goods in fact passed from the depositor of them to Mrs Flack. It remained with the depositor. They never came “within the protection of [her] house”.

Waverley Borough Council v Fletcher [3.50] Waverley Borough Council v Fletcher [1996] QB 334 English Court of Appeal AULD LJ: This appeal concerns the collision of two familiar notions of English law: “finders keepers” and that an owner or lawful possessor of land owns all that is in or attached to it. More particularly, it raises two questions. (1) Who, as between an owner or lawful possessor of land and a finder of an article in or attached to the land, is entitled to the article? (2) How is the answer to (1) affected by, or applied, when the land is public open space? The appellant, Waverley Borough Council, is the freeholder of a park, Farnham Park, in Farnham, Surrey, to which it gave free access to the public for pleasure and recreational uses. It exercised control over the park by means of a ranger and his staff and by byelaws. On 28 August 1992 the respondent, Ian Fletcher, took a metal detector into the park to search for metal objects which might be of interest or value. He found, by use of the detector and some determined digging in hard ground, a mediaeval gold brooch about nine inches below the surface. He reported [339] his find, and a coroner’s inquisition was held to determine whether it was treasure trove. The jury found that it was not, and the coroner returned the brooch to Mr Fletcher. I am satisfied that the true legal position is that there must be distinguished, with regard to the question of control, things which are on land and things which are attached to or under it. This distinction makes consistent the decision in Bridges v Hawkesworth, 21 LJQB 75, and the decision in Parker v British Airways Board [1982] QB 1004 which dealt with objects on land and with an absence of control over them with the decisions … dealing with objects attached to or under the land. The extent to which, where objects are attached to or under the land, an absence of control may deprive the owner against a finder is probably limited to cases such as Hannah v Peel [1945] KB 509, where the owner of a house had never entered into possession of it though the title had devolved upon him. [3.50]

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Waverley Borough Council v Fletcher cont. See also Tamworth Industries Ltd v Attorney-General [1991] 3 NZLR 616, in which Eichelbaum CJ, at 619, 621 and 624, accepted as established law the clear distinction to be made between articles found in and on land. Mr Munby, undaunted by that weight of authority, submitted that there is no sensible basis for the distinction. He argued that it is against [345] commonsense that it should make all the difference whether an object is just under or on the surface. That was also the view of the judge. He said that he could see no reason in common sense why the better possessory claim should depend upon whether an object was found on or in ground. Mr Munby gave as one of a number of examples in support of his argument, a lost watch on a muddy path which might within a day or two become covered by a thin coating of mud. Why, he asked, should the landowner’s claim be different and stronger when the watch finally, but only just, disappears from sight? In my view, the authorities reveal a number of sound and practical reasons for the distinction. First, as Donaldson LJ said in Parker v British Airways Board [1982] QB 1004 at 1010, an object in land “is to be treated as an integral part of the realty as against all but the true owner” or that the finder in detaching the object would, in the absence of licence to do so, become a trespasser. Mr Munby suggested that this is wrong because if an object is treated as part of the realty the true owner cannot have priority. However, the English law of ownership and possession, unlike that of Roman Law, is not a system of identifying absolute entitlement but of priority of entitlement, and Donaldson LJ’s rationale is consistent with that: see Buckland and McNair, Roman Law and Common Law (2nd ed, revise, 1965), p 67. It is also consistent with Chitty J’s reasoning in the Elwes case, 33 ChD 562 at 567, which I have quoted. See also Wake v Hall (1883) 8 AppCas 195 at 203-204, per Lord Blackburn and Simmons v Midford [1969] 2 Ch 415 at 421F-G, per Buckley J. Second, removal of an object in or attached to land would normally involve interference with the land and may damage it: cf AL Goodhart’s view in his article in 3 CLJ 195 at 207, that this distinction is not of sufficient importance in principle to warrant separate rules as to possession. Third, putting aside the borderline case of a recently lost article which has worked its way just under the surface, in the case of an object in the ground its original owner is unlikely in most cases to be there to claim it. The law, therefore, looks for a substitute owner, the owner or possessor of the land in which it is lodged. Whereas in the case of an unattached object on the surface, it is likely in most cases to have been recently lost, and the true owner may well claim it. In the meantime, there is no compelling reason why it should pass into the possession of the landowner as against a finder unless he, the landowner, has manifested an intention to possess it. As to borderline cases of the sort mentioned by Mr Munby, potential absurdities can always be found at the margins in the application of any sound principle. It is for the trial judge to determine as a matter of fact and degree on which side of the line, on or in the land, an object is found. The distinction is now long and well established. In addition to the judicial and academic authority to which I have referred, it is to be found in Annex 1 to the Eighteenth Report (Conversion and Detinue) of the Law Reform Committee (1971) (Cmnd. 4774); the Law Commission’s paper Treasure Trove – Law Reform Issues (1987), para 9; Megarry & Wade, The Law of Real Property (5th ed, 1984), p 61; and Halsbury’s [346] Laws of England (4th ed, reissue, vol 2, 1991), p 840, para 1814 and (4th ed, vol 35, 1981), p 623, para 1120. In my view, the two main principles established by the authorities, and for good practical reasons, are as stated by Donaldson LJ in Parker v British Airways Board [1982] QB 1004. I venture to restate them with particular reference to objects found on or in land, for he was concerned primarily with an object found in a building. (1) Where an article is found in or attached to land, as between the owner or lawful possessor of the land and the finder of the article, the owner or lawful possessor of the land has the better title. (2) Where an article is found unattached on land, as between the two, the owner or lawful possessor of the land has a better title only if he exercised such manifest control over the land as to indicate an intention to control the land and anything that might be found on it. I turn now to the judgment of the judge in which he sought to qualify the first of those principles by narrowing the ratio 164 [3.50]

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Waverley Borough Council v Fletcher cont. of the Elwes case, 33 ChD 562 by reference to the particular proprietary interest of the lessor as against the lessee and distinguishing between things naturally in the ground and those put there. He said: It seems to me that this case decided two matters. Firstly, that a person in possession of land as an inheritance under a settlement prima facie has the property and anything on or under that land. Secondly, that the defendant, whose only right to be on the land was under the terms of the lease, could not establish any express or implied licence to remove anything that would not be contemplated as being found during excavation of the land. I say “on or under” because it could not in common sense have made any difference to the plaintiff’s title whether the boat was resting on the top or six feet under … The general rule that an owner of land owns everything that is under his land right up to the centre of the earth, from a common sense point of view, would be applicable to things that are naturally there. It would, for example, include minerals, and any objects which in former days might have become attached to the surface of the land so as to form part of the realty, but which over the years, perhaps centuries, have become covered. But why in the case of lost or abandoned chattels there should be any difference as to who has the better possessory claim dependent merely upon whether the chattel is above or below ground (or on a window ledge as opposed to within a crevice therein), I wholly fail to understand, as I have already commented in relation to the boat in Elwes v Brigg Gas Co (1886) 33 ChD 562. I can find nothing in the authorities to justify the judge’s restriction of the ratio in the Elwes case to things that are naturally in the ground, as distinct from lost or abandoned articles. It is true that in Parker v British Airways Board [1982] QB 1004 at 1010G, Donaldson LJ categorised it as a dispute between a tenant for life of the realty and his lessee rather than a dispute between landowner and finder, but, in the first of his propositions that I have set out, he clearly accepted the general principle enunciated by Chitty J that lawful possession of land includes possession of everything [347] in the land, naturally there or otherwise. Whatever the correct categorisation of the Elwes case, Chitty J clearly regarded the nature of the article or matter in dispute as immaterial. In any event, it is far too late now for it to be suggested that his general proposition should be modified as suggested by the judge. The second question is whether and, if so, in what circumstances a different rule applies to land which is a public open space. The judge found that the council had neither the manifest intent nor the ability to prevent metal detecting in the park and the associated digging and removal of objects. He contrasted the circumstances in the cases of Elwes, 33 ChD 562, Sharman [1896] 2 QB 44 and Webb [1988] IR 353 by suggesting as the ratio in each case that the unsuccessful finder was only allowed on the land for a limited purpose which did not include the taking of the article in question. The undisputed facts here were that the council’s ownership of the park was subject to two covenants in the conveyance under which it derived title: (1) that it was to be used only for purposes “of or incidental to a pleasure or recreation ground for the use of the public;” (2) that it was not to be used for “horse or dog racing or for any other sports pastimes or recreations except the playing of cricket, hockey, netball, football, golf and skating and other games or sports of a like nature” and that the council would “at all times use the … park as an open space within the meaning of the Open Spaces Act 1906 or a recreation ground within the meaning of the Public Health Acts.” In my view, the judge’s reasoning that metal detecting was a recreation within the terms under which the council held the land and that, therefore, it included a right to excavate and carry away objects found, is strained. Whilst some sports or recreations, such as golf or cricket, may involve some disturbance of the soil, metal detecting is not, in my view, “of a like nature” to the “sports pastimes or recreations” mentioned in the second of the covenants to which I have referred. Moreover, the very fact that the activity is inherently invasive is against it being recreational in this context. Even if I am wrong about that, it cannot entitle members of the public to excavate the soil, whether “within reasonable bounds” or not. In Webb v Ireland [1988] IR 353 at 379, Finlay CJ said: [3.50]

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Waverley Borough Council v Fletcher cont. The learned trial judge found that the act of digging was an act of trespass, and even though the plaintiffs may have entered with the implied licence of the owners, as was found by him, this would lead to the legal conclusion that they then became, upon commencing to dig, trespassers ab initio. Further, even if it could be said that such a right existed in this case, it could not include a right to remove anything found. In the Elwes case, 33 ChD 562 at 568 and 569, Chitty J said that a licence to dig does not amount to a licence to take away. Finlay CJ, in another passage in Webb’s case [1988] IR 353 at 379, provides the answer to Mr Munby’s suggestion that digging and taking away incidental to metal detecting should, in the circumstances, be regarded as de minimis. Presumably, that is what the judge had in mind in his qualification “within reasonable bounds.” Finlay CJ said: The principle … that the law leans against the acquisition by a person of property rights by trespass, save in cases of prescription, is based on the requirement of the common good that the ownership and right to possession of land shall be protected from an unlawful invasion of it. There does not appear to me to be any grounds in logic or justice for a rule of law that a person who by a trespass of little extent obtains possession of a very valuable chattel would be exempt from this provision of the law, whereas a person committing a larger or more extensive trespass, and possibly deriving a much smaller profit would be penalised by it. Accordingly, in my view, neither Mr Fletcher’s metal detecting nor his digging nor his removal of the brooch was within any of the purposes for which the council was permitted to, or did, allow the public use of the park. The judge declined to rule on a submission made on behalf of Mr Fletcher, and repeated on this appeal, that the council was not the occupier of the park and for that reason could not assert sufficient control over it to entitle it to things in it. However, as I have said, he ruled that the council had no authority to prevent Mr Fletcher from metal detecting, digging and removing objects in the park. He appears to have taken the view that the only way in which the council could enforce its power and duty of management and control was by prosecution for infringement of byelaws or by recourse to the general criminal law. He said: There are no relevant byelaws and it seems to me that even had the defendant been aware of the council’s desire to prevent metal detecting, which he was not, he would have been entitled to say, “You cannot stop me. What is your authority for trying to?” The basis of that ruling, and of Mr Munby’s submission to like effect before us, was a decision of Finnemore J in Hall v Beckenham Corporation [1949] 1 KB 716, which concerned an action of nuisance against a local authority in respect of noise from the flying of model aircraft in a recreation ground owned, managed and controlled by the authority. Finnemore J found for the local authority holding, in reliance on a rating case, that it was not the occupier of the recreation ground, but merely its custodian or trustee for the public; that its only power to control activities in it was by way of byelaws or enforcement of the general criminal law; and that, as the flying of model aircraft did not contravene either, it had no power to abate the alleged nuisance. Mr Munby submitted in reliance on Hall’s case that the council did not occupy the park; and that it had no right qua owner to regulate its use by a member of the public, who could do what he liked there unless he breached a byelaw or the general criminal law. In my view, the council, whether as owner, possessor or occupier of the park, was a trustee for the general public in the exercise of its powers and duties of management and control under the Act of 1906 and the terms under which it held the land. As such it had a superior right to the brooch over that of Mr Fletcher who, in the absence of a licence from the council, had no entitlement to dig and remove it. In my view, the council was not restricted in its enforcement of that right to the mechanisms of prosecution under byelaws or the general criminal law. The purpose of a byelaw is simply to provide a local authority with a convenient criminal sanction in the enforcement of its public powers and duties. The absence of a byelaw on any matter does not mean that the council has no corresponding civil right, in this instance in its management and control of its land. Hall’s case was quite different. The question there was 166 [3.50]

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Waverley Borough Council v Fletcher cont. whether a local authority was liable in nuisance for noise caused by members of the public using it for a recreational purpose which the authority did not claim an entitlement to control. Here the council sought, in accordance with its [350] power and duty of management and control of the park on behalf of the general public, to protect its property. If and to the extent that Finnemore J’s judgment could be said to suggest that such power and duty can be enforced only through the medium of byelaws or the general criminal law, my view is that it went too far. Accordingly, I can see no basis for not applying the general rule that an owner or lawful possessor of land has a better title to an object found in or attached to his land than the finder, or for modifying it in some way to produce a different result in the circumstances of this case. Mr Fletcher did not derive a superior right to the brooch simply because he was entitled as a member of public to engage in recreational pursuits in the park. Metal detecting was not a recreation of the sort permitted under the terms under which the council held the land on behalf of the general public. In any event, digging and removal of property in the land were not such a permitted use, and were acts of trespass and the council was entitled to exercise its civil remedy for protection of its property regardless of the absence of any applicable byelaw. As to the judge’s third point, the absence of a manifest intention to control, it is, for the reasons I have given in the earlier part of this judgment, not the test for objects found in or attached to land; and, for the reasons I have just given, there is no reason for its application to the circumstances of this case. If there were, given the council’s statutory powers and duties, the terms under which it holds and controls and manages the park and the way in which it exercises that control and management, I would regard it as clearly having the requisite intent and ability to control. For those reasons I would allow the appeal. Sir Thomas Bingham MR and Ward LJ agreed.

[3.55]

Note

The two cases above are the most recent of a long line of cases starting with the decision in Armory v Delamirie (1722) 1 Str 506; 93 ER 664. An apprentice chimney sweep found a jewel in the course of cleaning. He took it to a goldsmith to have it appraised. The goldsmith’s offer was rejected but the jewel was not returned to the apprentice. The apprentice’s claim for damages was upheld on the ground that he had prior possession which provided an entitlement protected against all but someone with a superior right. The original owner was unknown and there does not seem to have been any claim by the occupier of the house whose chimney was being swept. The case reads more like an extract from Mary Poppins than the law reports in that the disadvantaged is successful and damages are awarded as favourably as possible to the apprentice. Apart from the legal principles involved, it is remarkable that an apprentice was able to bring an action in the High Court and be believed against a person carrying the business of a jeweller. For a detailed examination of this area of law, and its relationship of the law of possession generally, see Hickey, Property and the Law of Finders (Hart Publishing, Oxford, 2010). For a comparative analysis of the common law of finding with the rules of other legal systems see Liu, “Possession in the Law of Finding: a Comparative Study of the Doctrine of Possession” (2014) 22 Australian Property Law Journal 211. [3.55]

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Re Jigrose Pty Ltd [3.60] Re Jigrose Pty Ltd [1994] 1 Qd R 382 Supreme Court of Queensland KIEFEL J: The purchasers contend that by reason of cl 28.3 the vendor (applicant) was divested of ownership in the hay on completion of the contract. It is submitted that that is the effect of an “abandonment” under the clause. Clause 28.3 goes on to provide that the goods may (in the event that the plaintiff completes) be appropriated, removed or disposed of by the purchaser. Consistently with the notion that a transferee of property or a donee of a gift has a right to reject or disclaim it (see GM & MY Campbell & Co Pty Ltd v Cotton (Unreported, 1988 No 3886, 18 October 1991, Williams J at 4 and 5), the clause here contemplates a further step or action to be taken by the purchasers consequent upon their decision, before any rights in or with respect to the goods are acquired. The vendor however contends that the purchasers’ action cannot amount to an “appropriation”. If this were so, the question of what results from an abandonment under the clause assumes importance. Given that the purchasers do not acquire title until some act such as appropriation has taken place, if it be that abandonment divests ownership, then for a time the chattels are without an owner. To this, counsel for the applicant vendor submits that the common law could not intend that property in the goods not be vested in someone, and relies in part on the decision in Johnstone and Wilmot Pty Ltd v Kaine (1928) 23 Tas LR 43 (referred to in a decision of the New South Wales Court of Appeal in Moorhouse v Angus and Robertson (No 1) Pty Ltd [1981] 1 NSWLR 700). In Johnstone and Wilmot Pty Ltd v Kaine Clark J referred to a number of commentators and to some of the older cases, from which a difference of view as to the effect of abandonment may be discerned and concluded that it was preferable to adopt a rule that “the intentional abandonment of a chattel by the owner does not divest him of its ownership.” In Moorhouse v Angus and Robertson Hutley JA (702) held: The abandonment of a chattel is conceived as an act by which the chattel becomes capable of appropriation by a taker who thereupon acquires absolute property therein: see Doctor and Student, Selden Society ed, vol 91, p 291 and the authorities quoted by Clark J in Johnstone & Wilmot Pty Ltd v Kaine at 56, 57. and disagreed with the approach of the judge at first instance, which approach had assimilated abandonment to the concept of a gift. Samuels JA (706) resisted the temptation to resolve the apparent conflict between the Doctor and Student on the one hand and Blackstone (17th ed, 1830, Commentaries I, 295, II, 9) on the other, determining the case on the point that there was not in any event an abandonment. The suggested abandonment there was said to be constituted by the leaving of a manuscript with a publisher for some ears and not making earlier steps to recover it. Mahoney JA considered that the nature of the transaction between the party and its terms resolved the issue (711, 712). It seems to me that once one accepts that intention is the critical question where an issue of abandonment is raised, the relationship between the parties and the terms of any transaction by which goods come into the possession of one of the parties will often, if not usually, be determinative as to their interest in the chattels. I have also been referred to two other decisions in Australia which touch on, but could not be said to be conclusive of the question. Angel J in Cook v Saroukos (1989) 97 FLR 33 at 41 considered that, at least in principle, there was not reason why title to a chattel could not be lost by abandonment. And in Robinson v Western Australian Museum (1977) 138 CLR 283, Jacobs J (338) appeared to accept that the common law recognised the immediate acquisition of title by the finder of abandoned chattels. 168 [3.60]

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Re Jigrose Pty Ltd cont. What remains of the Gilt Dragon and its contents, sunk 2.87 nautical miles of the west coast of Australia in 1656, is maritime property and is derelict in the sense in which that word is used in maritime law. Such derelict is to be distinguished from res derelicta or res nullius in the sense of the common law, a chattel abandoned by the owner with no intention of retaining his property therein. Such a chattel when it is thrown in to the sea belongs to a finder. It is neither derelict maritime property nor, if gold or silver, is it treasure trove. Blackstone, Book I, Ch 8, XIII. The principles applicable thereto must be kept distinct from maritime derelict, which is a thing abandoned and deserted at sea by those in charge of it without hope on their part of recovering it and without intention of returning to it (see Kennedy on Civil Salvage, 4th ed, 1958, at p 387) but with no intention on the part of the owner of abandoning his property therein. The distinction his Honour drew is an important one concerning abandonment generally. I put to one side what might be said to be a special position concerning wrecks and the question of abandonment in maritime law (see Stephen J in Robinson’s case, 318). As a general proposition, it I throw something away I truly abandon it. I intend no longer to retain possession. I do not propose to seek it out and I have not further interest in ownership. If however I lose something, I have not those intentions. I could not be said to have abandoned it. The “different intentions, which the law implies in the owner” was explained by Blackstone (Commentaries 17th ed, I, 295) in the context of treasure trove lost or hidden. In the Commentaries II, 9 the author explains that title remains with an original acquirer of the property until there is shown an intention to abandon it. It then becomes of public right and is liable to be appropriated by the next occupier. The Roman law dealt with the question of acquisition of such property by the mode of acquisition “occupatio”, which permitted the acquisition of ownership in a thing which was without an owner. It was achieved by taking possession with an intention to appropriate: Salkowski, Roman Private Law (1886), 390. “Things which could be acquired by occupatio included wild things, things which the owner has given up, intending to renounce ownership in the” (res derelictae) (p 393); and see Buckland, Roman Law from Augustus to Justinian (1990, reprint, p 208). Pollock and Wright, Possession in the Common Law (1888), 124 however raised a doubt as to whether it was possible for a possessor to divest himself by wilful abandonment referring to the view of the common law suggested in Haynes’s Case (1614) 12 Co Rep 113, 77 ER 1389 and the Doctor and Student (Bk ii c 51). Haynes’s Case was an exceptional one, concerning the property in winding sheets. It contains the statement that “a man cannot relinquish the property he hath to his goods unless they be vested in another”, the Court holding that property in the sheets remained with the owner. There is no discussion as to whether they might be considered as a type of gift, nor as to how the owner might claim the property. In the Doctor and Student it is stated (notably by the student) that there is no such law in the realm for “goods forsaken” and that the right to property in abandoned goods remained with the owner. Holdsworth, A History of English Law, vol VII (495, 496) was of the view that there was consequently “some authority” for a difference in the approach of the English common law from that of the Roman law. There are, as Holdsworth noted, few things which are capable of acquisition following abandonment, given the rights which accrue to landowners concerning property at least attached to the land and given the rights of the Crown to bona vacantia. Indeed, in Queensland the Public Trustee Act 1978, Pt VII Unclaimed Property Div 2 permits the Public Trustee to become administrator of unclaimed property and to exercise rights over it. Interestingly, by s 103(2) of that Act property is deemed to be unclaimed where “in the opinion of the Public Trustee: (a) it is not known after due enquiry who the owner of the property is, or where his is, or whether he is alive or dead, or it appears to have been abandoned”. [3.60]

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Re Jigrose Pty Ltd cont. which seems to recognise that abandoned property may not have an owner. Cases involving property which can be said to be truly abandoned will then be relatively rare. The “finder” cases to which I have been referred (see eg Moffatt v Kazana [1969] 2 QB 152 and Parker v British Airways Board [1982] QB 1004) are not of great assistance since they deal with goods apparently lost. In those circumstances it may be said that possession was held without consent of the owner. It certainly could not be said that the owner necessarily intended to abandon the goods. But what if the owner has really proclaimed to the world at large that he or she has not interest in the chattels, desires neither possession nor ownership and will not attempt to reclaim them? Wrangham J in Moffat v Kazana (156) appears to accept that such abandonment can divest title. It seems to me that if I do not wish to retain the possession or property in goods (perhaps most clearly shown by throwing them away), there is no reason in principle why the common law would require me to remain owner. The common law is usually concerned to exclude others from interfering with a person’s interest in property, that interest in turn being one to exclude others: see Holmes, The Common Law (1891), 220. If a person no longer holds that interest it is difficult to see what the common law’s concern could be. For my part I do not consider that there is a difficulty at law with the notion of abandonment divesting ownership. That is not however an end of the question here. It is necessary (as Mahoney JA pointed out in Moorhouse v Angus and Robertson) to consider the terms of the contract itself to see if that result was that intended by the parties. Clause 28 seems to me to provide the answer as to the parties’ intentions concerning the chattels. Under cl 28.1 the vendor is obliged to remove the property not sold and is in breach of that term if that is not done. If the plaintiff then completes, the chattels remaining are deemed to be abandoned, at least as between the parties to that agreement. In these circumstances cl 28.3 seems to me to be equivalent to the vendor representing that it has no further interest in the chattels, neither in possession nor in ownership. To modify the meaning of the word “abandonment” so that title would nevertheless remain in the vendor, at least for a time, would in my view be inconsistent with the finality the clause is seeking to achieve. It seems to me that under cl 28 where a vendor has left chattels on the land sold (and subject to questions such as relief from forfeiture which follow) a vendor would be precluded, as a matter of contract, from thereafter asserting a right either to ownership or possession: see Spencer Bowner & Turner, Estoppel by Representation (3rd ed, 1977), para 158. As I have said, title is not however automatically transferred to the purchasers on abandonment. It will pass where there is an act such as appropriation, although not all of the rights given to the purchasers under cl 28 will necessarily require that property be vested in them, for example, where they are simply removed but there is no act which depends upon full ownership. Such a view of cl 28.3 is not in my view inconsistent with provisions of cl 29. In any event it seems to me that whatever view is taken as to where title lies in the interim, the bales of hay have in this case been appropriated by the purchasers. Appropriation in this sense simply means taking to oneself as one’s property. That would require, in the context of an occupier, a manifest intention to exercise control over it: see Parker v British Airways Board at 1011 and 1020. An intention to exclude others is in my view an exercise of control over the chattels and that has clearly taken place here.

[3.65]

Notes

1. There has been some hesitation to accept that an interest in personal property can lost by abandonment. Public authorities may, for example, seek to hold the owner of a car responsible for its proper disposal. It is difficult, however, not to accept that a person who 170 [3.65]

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dumps an unwanted item by the side of the road has forfeited any claim at least against a subsequent finder. The reluctance to accept abandonment may reflect a view that responsibility should not be able to be renounced as readily as a simple act of discarding. At a factual level, mere inactivity is unlikely to lead to a conclusion that property has been abandoned. In Moorhouse v Angus & Robertson (No 1) Pty Ltd [1981] 1 NSWLR 700 an author had allowed a manuscript with the engaging title of “The Americans, Baby” to remain with a publisher from 1972 to 1978. The failure to take any step to recover the manuscript during this period was insufficient evidence of abandonment. In criminal cases courts will similarly be reluctant to allow an absence of action by any owner to be a ground for an argument of abandonment. In Keane v Carter (1994) 12 WAR 20 the court quickly dismissed an attempted defence to a charge of receiving stolen property that a gold nugget had been found on a railway terrace with no effort during the day of the finding to seek out the owner. 2. Questions of abandonment arise commonly as between lessor and lessee of residential premises when goods are left at the expiry of a tenancy. The residential tenancies legislation imposes duties on lessors to care for the goods. See, for example, Residential Tenancies Act 2010 (NSW), s 129. 3. The claim of the true owner will be defeated by a failure to claim the item during the limitation period. As with land, time only runs against the true owner so long as there is an adverse possessor. The limitation statutes set out a limitation period of six years for the bringing of actions in conversion and detinue (Limitation Act 1969 (NSW), s 14(1); Limitation of Actions Act 1958 (Vic), s 5(1); Limitation of Actions Act 1974 (Qld), s 10(1); Limitation of Actions Act 1936 (SA), s 35; Limitation Act 2005 (WA), s 38(1); Limitation Act 1974 (Tas), s 4(1); Limitation Act (NT), s 12(1) (3 years); Limitation Act 1985 (ACT), ss 11(1), 18). Further, in most jurisdictions the title to chattels is extinguished on the expiration of the period of time set out for the bringing of actions of conversion and detinue in relation to chattels (Limitation Act 1969 (NSW), s 65; Limitation of Actions Act 1958 (Vic), s 6(2); Limitation of Actions Act 1974 (Qld), s 12(2); Limitation Act 1974 (Tas), s 6(2); Limitation Act (NT), s 19; Limitation Act 1985 (ACT), ss 5, 43).

POSSESSION AS A SOURCE OF TITLE TO LAND [3.70] As seen in the discussion of the doctrines of tenure and estates in Chapter 2, English land law developed in a manner where there was no concept of absolute ownership. Instead, the “seisin of tenants and, subsequently, possession of others, were protected. It is important to note, however, that the statutory limitation principle has for many years ensured that rights arising from possession (as well as rights arising from documentary title) may be lost. The following cases demonstrate the way in which protection for possession was achieved. The operation of the limitation statutes is then considered in outline.”

[3.70]

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Asher v Whitlock [3.75] Asher v Whitlock (1865) LR 1 QB 1 English High Court of Justice, Full Court of Queen’s Bench [At the trial before Cockburn CJ, at the last Bedfordshire Spring Assizes, the following facts appeared in evidence. About Michaelmas, in the year 1842, Thomas Williamson inclosed from the waste of a manor a piece of land by the side of the highway; and in 1850, he inclosed more land adjoining, and built a cottage; the whole being the land as described and claimed in the writ. He occupied the whole till his death in 1860. By his will he devised the whole property, describing it as “a cottage and garden, in Keysoe Row, in which I now dwell”, to his wife Lucy Williamson, for and during so much only of her natural life as she might remain his widow and unmarried; and from and after her decease, or second marriage, whichever event might first happen, to his only child Mary Ann Williamson, in fee. After the death of Thomas Williamson, his widow remained in possession with the daughter, and in April 1861, married the defendant; and from that time they all three resided on the property till the death of the daughter, aged eighteen years, in February, 1863. On her death, the defendant and his wife, the widow of the testator, continued to reside on the premises; the widow died in May, 1863, and the defendant still continued to occupy. The female plaintiff is the heir-at-law of the testator’s daughter Mary Ann Williamson.] COCKBURN CJ: … The defendant, on the facts, is in this dilemma; either his possession was adverse, or it was not. If it was not adverse to the devisee of the person who inclosed the land, and it may be treated as a continuance of the possession which the widow had and ought to have given up, on her marriage with the defendant, then, as she and the defendant came in under the will, both would be estopped from denying the title of the devisee and her heir-at-law. But assuming the defendant’s possession to have been adverse, we have then to consider how far it operated to destroy the right of the devisee and her heir-at-law. Mr Merewether was obliged to contend that possession acquired, as this was, against a rightful owner, would not be sufficient to keep out every other person but the rightful owner. But I take it as clearly established, that possession is good against all the world except the person who can shew a good title; and it would be mischievous to change this established doctrine. In Doe v Dyeball Mood & M 346, one year’s possession by the plaintiff was held good against a person who came and turned him out; and there are other authorities to the same effect. Suppose the person who originally inclosed the land had been expelled by the defendant, or the defendant had obtained possession without force, by simply walking in at the open door in the absence of the then possessor, and were to say to him, “You have no more title than I have, my possession is as good as yours,” surely ejectment could have been maintained by the original possessor against the defendant. All the old law on the doctrine of disseisin was founded on the principle that the disseisor’s title was good against all but the disseisee. It is too clear to admit of doubt, that if the devisor had been turned out of possession he could have maintained ejectment. What is the position of the devisee? There can be no doubt that a man has a right to devise that estate, which the law gives him against all the world but the true owner. Here the widow was a prior devisee, but durante viduitate only, and as soon as the testator died, the estate became vested in the widow; and immediately on the widow’s marriage the daughter had a right to possession; the defendant however anticipates her, and with the widow takes possession. But just as he had no right to interfere with the testator, so he had no right against the daughter, and had she lived she could have brought ejectment; although she died without asserting her right, the same right belongs to her heir. Therefore I think the action can be maintained, inasmuch as the defendant had not acquired any title by length of possession. The devisor might have brought ejectment, his right of possession being passed by will to his daughter, she could have maintained ejectment, and so therefore can her heir, the female plaintiff. We know to what extent encroachments on waste lands have taken place; and if the lord has acquiesced and does not interfere, can it be at the mere will of any stranger to disturb the person in possession? I do not know what equity may say to 172 [3.75]

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Asher v Whitlock cont. the rights of different claimants who have come in at different times without title; but at law, I think the right of the original possessor is clear. On the simple ground that possession is good title against all but the true owner, I think the plaintiff’s entitled to succeed, and that the rule should be discharged. MELLOR J: I am of the same opinion. It is necessary to distinguish between the case of the true owner and that of a person having no title. The fact of possession is prima facie evidence of seisin in fee. The law gives credit to possession unless explained; and Mr Merewether, in order to succeed, ought to have gone on and shown the testator’s title to be bad, as that he was only tenant at will, but this he did not do. In Doe v Dyeball (1829) Mood M & M 346, possession for a year only was held sufficient against a person having no title. In Doe v Barnard (1849) 13 QB 945; 18 LJ (QB) 306, the plaintiff did not rely on her own possession merely, but shewed a prior possession in her husband, with whom she was unconnected in point of title. Here the first possessor is connected in title with the plaintiffs; for there can be no doubt that the testator’s interest was devisable. In the common case of proving a claim to landed estate under a will, proof of the will and of possession or receipt of rents by the testator is always prima facie sufficient, without going on to shew possession for more than twenty years. I agree with the Lord Chief Justice in the importance of maintaining, that possession is good against all but the rightful owner.

[3.80]

Notes and Questions

1. Who had the best title to the land enclosed by Williamson in 1850? Does the result in the case with respect to this piece of land demonstrate that the defence of jus tertii is not a valid one in this context? 2. Cf Doe d Carter v Barnard (1849) 13 QB 945; 116 ER 1524 where it was held that a person in possession for less than the limitation period, who was ejected by another person with no title to the land, could not recover the land from the dispossessor. 3. In Allen v Roughley (1955) 94 CLR 98 the High Court endorsed the concept of relativity of title set out in Asher v Whitlock (1865) LR 1 QB 1. The justices varied in their views, however, as to the availability of the defence of jus tertii: see Moore, Grattan and Griggs, Australian Real Property Law (6th ed, Thomson Reuters, Sydney, 2016), [2.65]-[2.70]. In Perry v Clissold [1907] AC 73, however, the Privy Council accepted its availability as a defence. See also Spark v Whale Three Minute Car Wash (Cremorne Junction) Pty Ltd (1970) 92 WN (NSW) 1087; Mulcahy v Curramore [1974] 2 NSWLR 464.

Perry v Clissold [3.85] Perry v Clissold [1907] AC 73 Privy Council LORD MACNAGHTEN: This was an appeal from a judgment of the High Court of Australia, dated June 20, 1904, reversing a judgment of the Supreme Court of New South Wales. It raised a question under the Lands for Public Purposes Acquisition Act, 1880 (44 Vict No 16), now superseded by The Public Works Act, 1900, which consolidates the law on this subject. “The Act of 1880 in its preamble recites that it is expedient to make provision for the acquisition on behalf of the Crown of lands required for certain purposes, including, among others, sites for public schools,” and “to provide compensation for lands so acquired.” The following are the material provisions of the Act. [3.85]

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Perry v Clissold cont. The owners of the land or the persons who, but for the provisions whereinbefore contained, would have been such owners are entitled to receive such sum of money by way of compensation for the land of which they have been deprived under the Act as may be agreed upon or otherwise ascertained under the provisions thereinafter contained (s 10). By notification published in the Gazette of July 17, 1891, a piece of land containing two acres and three perches at Canterbury, in the county of Cumberland, was resumed for a public school site. The land was at the time in the possession of one Frederick Clissold. Notice of the resumption was given to Clissold on July 22, 1891; but nothing further was done then. Clissold died shortly afterwards, and his will was proved on May 5, 1892. In May, 1902, under an order of the Supreme Court, the respondents, who are the trustees of Clissold’s will, and of whom three are his surviving executors, served notice of their claim to compensation in respect of the land resumed by the notification of July 17, 1891, stating that the claimants were the executors of Frederick Clissold, “who at the date of resumption was in possession of such land as the owner thereof, and in receipt of the rents of such lands, and had a title thereto by possession.” It appeared from the papers which were forwarded with the claim that in the year 1881 Frederick Clissold entered into possession of the land, which was then open and vacant, and enclosed it by a substantial fencing, and that ever since the enclosure, up to the time of resumption, Clissold held exclusive possession of the land without notice of any adverse claim, and let it to different tenants and received the rents for his own use and benefit, and duly paid all rates and taxes in respect of the land which stood in his name in the rate-books of the municipality of Canterbury. The Minister refused to entertain the claim to compensation. The Supreme Court upheld the view of the Minister. The High Court reversed this decision, and granted a mandamus requiring the Minister to cause a valuation to be made. The only question on this appeal was whether or not a prima facie case for compensation had been disclosed. On the part of the Minister it was contended that, upon the plaintiffs’ own showing, Clissold was a mere trespasser, without any estate or interest in the land. Their Lordships are unable to agree with this contention. It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by process of law within the period prescribed by the provisions of the Statute of Limitations applicable to the case, his right is for ever extinguished, and the possessory owner acquires an absolute title. On behalf of the Minister reliance was placed on the case of Doe v Barnard, 13 QB 945 which seems to lay down this proposition, that if a person having only a possessory title to land be supplanted in the possession by another who has himself no better title, and afterwards brings an action to recover the land, he must fail in case he shews in the course of the proceedings that the title on which he seeks to recover was merely possessory. It is, however, difficult, if not impossible, to reconcile this case with the later case of Asher v Whitlock, LR I QB 1 in which Doe v Barnard, 13 QB 945 was cited. The judgment of Cockburn CJ is clear on the point. The rest of the Court concurred, and it may be observed that one of the members of the Court in Asher v Whitlock LR 1QB 1 (Lush J) had been of counsel for the successful party in Doe v Barnard. The conclusion at which the Court arrived in Doe v Barnard 13 QB 945 is hardly consistent with the views of such eminent authorities on real property law as Mr Preston and Mr Joshua Williams. It is opposed to the opinions of modern text-writers of such weight and authority as Professor Maitland and Holmes J of the Supreme Court of the United States. See articles by Professor Maitland in the Law Quarterly Review, vols 1, 2, and 4; Holmes, Common Law, p 244; Prof J B Ames in 3 Harv Law Rev 324 n. 174 [3.85]

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Perry v Clissold cont. Their Lordships are of the opinion that it is impossible to say that no prima facie case for compensation has been disclosed. They do not think that a case for compensation is necessarily excluded by the circum-stance that under the provisions of the Act of 1900 the Minister acquired not merely the title of the person in possession as owner, but also the title, whatever it may have been, of the rightful owner out of possession, who never came forward to claim the land or the compensation payable in respect of it, and who is, as the Chief Justice says, “unknown to this day”. The Act throughout from the very preamble has it apparently in contemplation that compensation would be payable to every person deprived of the land resumed for public purposes. It could hardly have been intended or contemplated that the Act should have the effect of shaking titles which but for the Act would have been secure, and would in process of time have become absolute and indisputable, or that the Governor, or responsible Ministers acting under his instructions, should take advantage of the infirmity of anybody’s title in order to acquire his land for nothing. Even where the true owner, after diligent inquiry, cannot be found the Act contemplates payment of the compensation into Court to be dealt with by a Court of Equity. It only remains for their Lordships to express their opinion that the valuation to be made should be a valuation of the land as at the date of the notification of resumption. When the valuation is made it will be for the claimants to take such proceedings as they may be advised to recover the amount, unless the Minister thinks fitto pay them or to pay the money into Court. For these reasons their Lordships humbly advised His Majesty that the appeal should be dismissed, and ordered the appellant to pay the costs of the appeal.

[3.90]

Notes and Questions

1. Describe and analyse the argument in Perry v Clissold [1907] AC 73 that the estate of Clissold should not be entitled to compensation. Why was it ultimately unsuccessful? 2. In Spark v Whale Three Minute Car Wash (Cremorne Junction) Pty Ltd (1970) 92 WN (NSW) 1087, Slattery J reviewed the authorities and stated: The authority of Asher v Whitlock (1865) LR 1 QB 1, which was expressly approved in Perry v Clissold [1907] AC 73, has also been established by the High Court in Wheeler v Baldwin (1934) 52 CLR 609 and Allen v Roughley (1955) 94 CLR 98. These authorities which support the claimant’s contentions are binding on me. In the recent Full Court case of Oxford Meat Co Pty Ltd v McDonald [1963] SR (NSW) 423, at p 427; 80 WN 681, at p 684, Brereton J delivering the judgment of the Full Court, said: “Now the rule as I understand it is not that a person in possession is entitled to maintain his possession as against all but the true owner; it is that he is entitled to maintain it against all but a person having a better right to possession: cf Danford v McAnulty (1883) 8 App Cas 456. In Doe d Carter v Barnard (1849) 13 QB 945; 116 ER1524, it had been held that a person merely in possession evicted by another with no title to the land, could not maintain ejectment against that disseisor. This has been said to be based on the existence of a jus tertii in the true owner. In fact it was the result of applying the wrong rule. In Asher v Whitlock (1865) LR 1 QB 1 it was held that the devisee of a prior possessor could evict the disseisor, because the testator’s prior possession gave him a prior right to possession. This in no way affected the availability of the ‘jus tertii’ to a defendant; the decision differed from that in Doe d Carter v Barnard merely because the correct rule was applied.” [3.90]

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Doe d Carter v Barnard was urged on me by Mr Bainton for the company. However, this case was treated by the Full Court in Oxford Meat Co v McDonald as being improperly decided and 1 am bound by and respectfully follow this decision of the Full Court. Holdsworth, History of English Law, vol 7, upon which Mr Bainton relied strongly for his submission in refutation of the claimant’s contention, did not find favour with members of the High Court (with the possible exception of Williams J) in Allen v Roughley (1955) 94 CLR 98, and I respectfully put it aside.

Mabo v Queensland (No 2) [3.95] Mabo v Queensland (No 2) (1992) 175 CLR 1 High Court of Australia [In the course of considering the relevance of possession to the claim of the Meriam people, Toohey J discussed the nature of possessory rights.] TOOHEY J: … Common law aboriginal title (i) The plaintiffs’ case The plaintiffs did not argue for an adverse title against the Crown but for a possessory title by reason of long possession. Such a title must, of course, be shown to exist at the present time to be of use to the plaintiffs. But the inquiry focuses on the point of annexation. It must, as was clear from the plaintiffs’ written submissions, be shown that such a possessory title arose immediately after annexation and continues today. To succeed, the plaintiffs must show that the Crown never had title to the Islands; that issue concerns the law at the time of annexation. The plaintiffs’ submissions with respect to possessory title may be summarized in this way. The common and statute law of England applied in a settled colony, where applicable to local conditions. English land law applied in the Colony of Queensland. According to common law then, as now, possession of land gives rise to a title which is good against all the world except a person with a better claim. Such a possessor is “seised” of the land so that he or she acquires an estate in the land which is an estate in fee simple. It is a fee simple because the interest acquired is presumed to be such until shown otherwise. Therefore, even a wrongful possessor acquires a fee simple (sometimes called a “tortious fee simple”) (See Pollock and Wright, An Essay on Possession in the Common Law (1888) (hereafter “Pollock and Wright”), p 94.) effective against all the world except a person with a better right. But, in addition, the title arising from possession is presumed to be lawful and by right (that is, it is presumed to be the best right to possession) unless the contrary is proved. According to the plaintiffs’ submissions, the Crown could not show that, on acquisition of New South Wales or Queensland, it had a better claim to possession of occupied land and so the presumption of a fee simple title in the indigenous possessors of land was left undisturbed. Such a title would have been held of the Crown, however, which held a radical title to all acquired territory. In order to establish such a possessory title, the indigenous inhabitants would have to prove occupation by their ancestors at the time of settlement, such that it amounted in law to possession of particular areas of land. This, they said, could be proved by reference to the findings of Moynihan J. In the absence of argument to the contrary, it may be accepted that New South Wales and subsequently Queensland were settled colonies. It may also be accepted that English land law and its two fundamental doctrines, estates and tenures, applied in these colonies. (Attorney-General (NSW) v Brown (1847), 1 Legge, at p 318, though, as we have seen, Stephen CJ understood its application to have a different effect.) The issues which arise for consideration, therefore, are: (a) the validity of the proposition that possession gives rise to a presumption of a fee simple title against all but a better 176 [3.95]

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Mabo v Queensland (No 2) cont. claimant; (b) the validity of the claim that the Crown was not, at the time of annexation, a better claimant to possession; and (c) the question of what, as a matter of law, amounts to possession of land. As the plaintiffs put their case, there would be no more favourable consequences flowing from acceptance of their submissions as to possessory title than from acceptance of their submissions as to traditional title. After contending for the existence of a possessory title, the plaintiffs relied on the same line of argument as they did for traditional title. Significantly, they conceded that a possessory title is extinguishable by “clear and plain” legislation. And the argument as to fiduciary duty and trust did not focus on the existence of a possessory title. It may have been too great a concession that a fee simple arising from possession is “extinguishable” in the same way as traditional title. But, given my conclusions as to traditional title and, especially, those as to the existence of a fiduciary obligation on the Crown arising from it and given what follows concerning the Racial Discrimination Act, there is no need to express a firm opinion on the plaintiffs’ arguments concerning possessory title. Nevertheless, those arguments raised important issues which have not been examined before in this area of the law, and something should be said about the principles of law on which they rested. The plaintiffs’ case in this regard owed much to McNeil; so too does this portion of my judgment. (ii) The relationship between possession and title: Does possession give rise to a presumptive title? “Possession” is notoriously difficult to define (see Pollock and Wright, pp 1-42; Tay, “The Concept of Possession in the Common Law: Foundations for a New Approach” (1964) 4 MULR 476) but for present purposes it may be said to be a conclusion of law defining the nature and status of a particular relationship of control by a person over land. “Title” is, in the present case, the abstract bundle of rights associated with that relationship of possession. Significantly, it is also used to describe the group of rights which result from possession but which survive its loss; this includes the right to possession. In the thirteenth century Bracton wrote (Bracton on the Laws and Customs of England (Thorne Tr, 1977), vol III, p 134): [E]veryone who is in possession, though he has no right, has a greater right [than] one who is out of possession and has no right. It is said that possession is the root of title: (Asher v Whitlock (1865) 1 QB 1; Perry v Clissold [1907] AC 73; Calder [1973] SCR, 368; (1973) 34 DLR (3d), 185; Megarry and Wade, Law of Real Property, 5th ed (1984) (hereafter “Megarry and Wade”), pp 105-106; Pollock and Wright, pp 22, 94-95. Cf Holdsworth, A History of English Law, 2nd ed (1937), vol VII, (hereafter “Holdsworth, vol VII”), pp 64-65, but see analysis of Holdsworth, vol VII, in Allen v Roughley (1955) 94 CLR 98, 134 ff.) To understand this statement it is necessary to have regard to the history and development of actions for the recovery of land. In the present context, it is enough to recall that through the seventeenth, eighteenth and nineteenth centuries ejectment became the most popular action for the recovery of interests in land – both leasehold and freehold (Holdsworth, vol VII, p 9). And despite its abolition in 1852, its principles remain the basis of present actions for the recovery of land (Bristow v Cormican (1878) 3 App Cas 641, 661; Megarry and Wade, pp 105, 1158-1159). It is therefore the focus of the present inquiry, the principles on which it is based being relevant both at the time of the acquisition of the Islands and now. Ejectment was a response to the growing cumber-someness and inefficiency of the old real actions. The real actions, so named because they provided specific recovery of interests in land, not merely damages (Holdsworth, A History of English Law, 5th ed (1942), vol III (hereafter “Holdsworth, vol III”), pp 3-4; Holdsworth, vol VII, p 4), emerged in the twelfth and thirteenth centuries. The nature and history of these forms of action are canvassed by Holdsworth (Holdsworth, vol III, pp 3-29) and by Pollock and Maitland (The History of English Law (2nd ed, 1898, vol II) (hereafter “Pollock and Maitland”), pp 46-80); it is unnecessary to repeat what is said by those writers. (iii) Ejectment: The relationship between possession and title [3.95]

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Mabo v Queensland (No 2) cont. One view (see Holdsworth, vol VII, pp 62-64) is that the advent of ejectment represented a fundamental change in the concept of ownership in English law, involving the idea of absolute title divorced from its radical attribute, possession. But the other view (see Hargreaves, “Terminology and Title in Ejectment”, (1940) 56 Law Quarterly Review 376; Pollock and Wright, pp 93- 97; Megarry and Wade, pp 104-105; Asher v Whitlock (1865) 1 QB 1), which is more persuasive, is that the basic relationship between possession and ownership of land established by the earlier real actions, involving the idea of relative claims to possession, was maintained or even emphasised in the action of ejectment. A successful claim to an interest in land comprised the better claim to possession and its associated rights as between the parties. In order to show a title which would defeat the defendant in possession, the plaintiff in ejectment had to prove a right of entry; the defendant could rely on possession. Therefore, the plaintiff was put to proof of the strength of his or her title and could not rely on the weakness of the defendant’s title (Roe d Haldane v Harvey (1769) 4 Burr 2484 at 2487 [98 ER 302 at 304]; Goodtitle d Parker v Baldwin (1809) 11 East 488 at 495 [103 ER 1092 at 1095]). The central issue, therefore, in an action for ejectment, and on which opinions have differed, was what circumstances gave a right of entry. Was proof by the plaintiff of mere prior possession sufficient to found a right of entry against the defendant, indicating that possession gave rise to an enforceable “title”, or was more required? Did possession give rise to a title which survived the loss of possession? The relevance of this question is that it points up the nature of the entitlements arising from the mere possession which would, subject to proof, have existed immediately on annexation. So long as it is enjoyed, possession gives rise to rights, including the right to defend possession or to sell or to devise the interest (Asher v Whitlock; Ex parte Winder (1877) 6 Ch D 696; Rosenberg v Cook (1881) 8 QBD 162). A defendant in possession acquires seisin even if possession is tortiously acquired. That is, a person in possession has an estate in fee simple in the land; it is this interest on which a defendant in an action for ejectment could rely. The disseisee loses seisin and acquires a right of entry in its stead (Wheeler v Baldwin (1934) 52 CLR 609, 631-633; Elvis v Archbishop of York (1619) Hob 315, 322 [80 ER 458, 464]; Pollock and Wright, pp 93-94; Maitland “The Mystery of Seisin” (1886) 2 Law Quarterly Review 481, esp pp 482-486). A possessor acquires a fee simple estate because the fullest estate known to the law is presumed until a lesser estate is proved (Wheeler v Baldwin (1934) 52 CLR, 632). And, in the circumstances under consideration, there is no possibility of a leasehold estate at the time of annexation or of some other lesser estate. Applied to these circumstances, prima facie all indigenous inhabitants in possession of their land on annexation are presumed to have a fee simple estate. But what does English land law have to say if possession of land is lost? The seisin and fee simple enjoyed as a result of possession would also be lost because each successive possessor must enjoy the rights directly associated with possession. According to this analysis, the last possessor only in any succession would enjoy the entitlements. If the Crown dispossessed an indigenous people, its title arising from possession would be the best claim. This was the effect of Holdsworth’s analysis of land law. He concluded that proof of prior possession was insufficient in itself to provide a right of entry in the plaintiff against a defendant who was a mere possessor (Holdsworth, vol VII, pp 61-68; Stokes v Berry (1699) 2 Salk 421 (91 ER 366); Doe d Wilkins v Marquis of Cleveland (1829) 9 B and C 864 [109 ER 321]). That is, possession of itself gives rise to no title which survives dispossession. The better understanding is, I think, that if no other factors come into play, then, regardless of the length of time, as between mere possessors prior possession is a better right (Allen v Rivington (1670) 2 Wms Saund 111 [85 ER 813]; Doe d Smith and Payne v Webber (1834) 1 AD and E 119 [110 ER 1152]; Doe d Hughes v Dyeball (1829) M & M 346 [173 ER 1184]; Asher v Whitlock; Perry v Clissold; Oxford Meat Co Pty Ltd v McDonald (1963) 63 SR (NSW) 423; Spark v Whale Three Minute Car Wash (1970) 92 WN 178

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Mabo v Queensland (No 2) cont. (NSW) 1087; Allen v Roughley; Wheeler v Baldwin (1934) 52 CLR 609, 624, 632-633; Pollock and Maitland, p 46). Possession is protected against subsequent possession by a prima facie right of entry. The proposition that possession of itself gives rise to a right in the plaintiff to recover possession, if lost, is supported by principle. In losing possession, a plaintiff has lost the rights associated with possession, including the right to defend possession as well as an estate in the land. But nothing has upset the presumption that the plaintiff’s possession, and therefore his or her fee simple, was lawfully acquired and hence good against all the world. “Possession is prima facie evidence of seisin in fee simple” (Peaceable d Uncle v Watson (1811) 4 Taunt 16, 17 [128 ER 232, 232]; Wheeler v Baldwin (1934) 52 CLR 609, 632; see also Doe d Stansbury v Arkwright (1833) 5 Car and P 575 [172 ER 1105]; Denn d Tarzwell v Barnard (1777) 2 Cowp 595 (98 ER 1259); Asher v Whitlock (1865) 1 QB 1, 6; Allen v Roughley (1955) 94 CLR, 108). Without evidence to the contrary, nothing has displaced the presumption arising from proof of the plaintiff’s possession that he or she had lawful title amounting to a fee simple. Thus, although a dispossessed plaintiff in ejectment must prove the strength of his or her own title and cannot rely on the weakness of the defendant’s title, the presumption of lawfulness arising from prior possession is positive evidence in that regard (cf note (a) in Allen v Rivington (1670) 2 Wms Saund, 111 [85 ER 813, 813]). It follows from this, however, that a person’s title arising from prior possession can be defeated either by a defendant showing that he or she (or another person, in so far as it undermines the plaintiff’s claim) has a better, because older, claim to possession or by a defendant showing adverse possession against the person for the duration of a limitation period. In sum, English land law, in 1879 and now, conferred an estate in fee simple on a person in possession of land enforceable against all the world except a person with a better claim. Therefore, since the Meriam people became British subjects immediately on annexation, they would seem to have then acquired an estate in fee simple. This is subject to the question whether the Meriam people could be said to be in possession. [Toohey J later found that the nature of the occupation “points clearly enough to possession according to English law”] The question then arises – does the Crown have a better title? Put another way, did the defendant have a better claim to possession when it acquired sovereignty in 1879 or 1895? [Toohey J then considered a number of arguments pursuant to which it was claimed that the Crown had a better right to possession. One argument was that in 1882 a reserve was created for the Aborigines and that their occupation was attributable to this from that time. Whilst not making a finding on this matter, Toohey J thought it more likely that the creation of the reserve would not have affected the Meriam people’s common law possession.] … (vi) Possessory title – conclusions It follows from this analysis that the Meriam people may have acquired a possessory title on annexation. However, as I have said, the consequences here are no more beneficial for the plaintiffs and, the argument having been put as an alternative, it is unnecessary to reach a firm conclusion. In any event, it is unlikely that a firm conclusion could be reached since some matters, the creation of the reserve for example, were not fully explored.

The limitation principle: adverse possession [3.100] The cases extracted above demonstrate that a person who has an interest in land,

either by documentary title or possession, and who is unlawfully dispossessed, has a right to bring an action against the wrongdoer to recover possession. Although the common law [3.100]

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recognised this right as subsisting forever, the principle of “limitation” (that is of setting a certain time within which the action may be instituted) has been enshrined by statute in many jurisdictions. There has been much debate as to whether rights to land should be lost in this manner: see, for example, Goodman, “Adverse Possession of Land – Morality and Motive” (1970) 33 Mod LR 281 at 281–283; Dockray, “Why Do We Need Adverse Possession?” [1985] Conv 272; Irving, “Should the Law Recognise the Acquisition of Title by Adverse Possession” (1994) 2 APLJ 112; generally Moore, Grattan and Griggs, Australian Real Property Law (6th ed, Thomson Reuters, Sydney, 2016), [3.10]-[3.15]. The limitation statutes in the Australian jurisdictions are the Limitation Act 1969 (NSW); the Limitation of Actions Act 1958 (Vic); Limitation of Actions Act 1974 (Qld); Limitation of Actions Act 1936 (SA); Limitation Act 2005 (WA) (Limitation Act 1935 (WA) with respect to causes of action arising before 15 November 2005 – references are to the 2005 Act); Limitation Act 1974 (Tas); Limitation Act (NT); Limitation Act 1985 (ACT). (Note that in the Northern Territory and the Australian Capital Territory, title to land cannot be lost by adverse possession: see Land Title Act (NT), s 198; Land Titles Act 1925 (ACT); Limitation Act 1985 (ACT), s 5(a).) Most freehold title in Australia is held under the Torrens system of registration of titles and the basis of this system is to provide certainty of title by the Register reflecting the way in which title is held. The concept of a mere possessory interest giving rise to an enforceable right, which may ripen into the best interest in the land pursuant to the statutory principle of limitation, appears at odds with the philosophy of the Torrens system, even more so in the modern era of computerised titles. (See Griggs, “Possessory Titles in a System of Title by Registration” (1999) 21 Adelaide Law Review 157-175; McCrimmon, “Whose Land is it Anyway? Adverse Possession and Torrens Title” in Grinlinton, Torrens in the Twenty-First Century (2003), pp 157-176 and Burns, “Adverse Possession and Title-By-Registration Systems in Australia and England” (2011) 35 Melbourne University Law Review 773). In England its operation in relation to registered land has been significantly curtailed by the introduction of the Land Registration Act 2002 (UK). As Gray and Gray in Elements of Land Law (3rd ed, Butterworths, London, 2001) prophetically stated (at p 241) “… the path of the future certainly involves an historic shift in the philosophical base of English land law from ‘possession’ to ‘title’, from empirically defined fact to state-defined entitlement, from ‘property’ as a reflection of social actuality to ‘property’ as a product of state-ordered or political fact.” Nevertheless, even under land registration systems, there will be situations where uncertainty continues to exist and the limitation principle will need to be retained in some form (as in England). See generally Moore, Grattan and Griggs, Australian Real Property Law (6th ed, Thomson Reuters, Sydney, 2016), [3.380] ff. At present, in Australia, the approach in relation to adverse possession over Torrens land differs from jurisdiction to jurisdiction: the limitation principle applies in varying degrees. In Victoria and Western Australia, the concept of acquisition of an interest in land pursuant to adverse possession applies fully to Torrens land. First, s 42(2)(b) of the Transfer of Land Act 1958 (Vic) and s 68(1) of the Transfer of Land Act 1893 (WA), provide that the registered proprietor holds the land subject to any rights subsisting under adverse possession of the land. It appears that the provisions include both inchoate possessory rights and possessory rights which have developed with the passing of the limitation period into the best interests in the world. Secondly, ss 60 – 62 of the Transfer of Land Act 1958 (Vic) and ss 222 – 223A of the Transfer of Land Act 1893 (WA) provide for the adverse possessor to obtain registration of 180

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title where the title of the registered proprietor has been extinguished. The Western Australian provisions are discussed in Petkov v Lucerne Nominees Pty Ltd (1992) 7 WAR 163. Similarly, in Tasmania, the limitation principle applies to Torrens land although the provisions are differently structured (see Land Titles Act 1980 (Tas), ss 138T – 138ZA; s 40(3)(h) and see Moore, Grattan and Griggs, Australian Real Property Law (6th ed, Thomson Reuters, Sydney, 2016), [3.395]). In Queensland and South Australia, a lesser protection is provided for the adverse possessor as it appears that it is only the adverse possessor who has been in possession for the statutory period who gains enforceable rights (see Land Title Act 1994 (Qld), s 185(1)(d), ss 98 – 108B; Real Property Act 1886 (SA), s 69(f), ss 80A – 80I, s 251. [In Queensland applications may only be made in respect of whole lots: see Sherrard v Registrar of Titles [2004] 1 Qd R 558.] Discussed in Moore, Grattan and Griggs, Australian Real Property Law (6th ed, Thomson Reuters, Sydney, 2016), [3.400].) In New South Wales, title by adverse possession can be acquired within specific and narrow parameters (see Real Property Act 1900 (NSW), Pt 6A, discussed in Moore, Grattan and Griggs, Australian Real Property Law (6th ed, Thomson Reuters, Sydney, 2016), [3.405]). Commencement of limitation period

Whittlesea City Council v Abbatangelo [3.105] Whittlesea City Council v Abbatangelo (2009) 259 ALR 56 Supreme Court of Victoria – Court of Appeal (Footnotes omitted) Introduction and summary This appeal arises from a decision of a judge of the Trial Division that Laurice Abbatangelo (“Mrs Abbatangelo” or “the respondent”) had acquired title to a parcel of general law land situated at 581 Bridge Inn Road, Mernda (“the land”) by adverse possession against the Whittlesea City Council (“the Council” or “the appellant”), the paper owner of the land. The appellant contends that the judge erred in finding that the respondent had acquired title to the land by adverse possession. It says that the elements of adverse possession were not made out, and seeks to impugn findings of fact and as to credit made by the judge. For the reasons that follow, we have concluded that the judge’s decision was correct and that the appeal should be dismissed. Applicable principles Section 8 of the Limitation of Actions Act 1958 (Vic) (“the Act”) provides that no action shall be brought by any person to recover any land after the expiration of 15 years from the date on which the right of action accrued. Section 18 provides that at the expiration of that period, the person’s title to the land shall be extinguished. As to when the right of action accrues, s 9(1) refers to the date upon which the person whose title stands to be extinguished “has … been dispossessed or discontinued his possession”, whilst s 14(1) provides that “[n]o right of action to recover land shall be deemed to accrue unless the land is in possession of some person in whose favour the period of limitation can run (hereafter in this section referred to as ‘adverse possession’)”. Before us, the parties agreed that the following comments made by Ashley J (as his Honour then was) in Bayport Industries Pty Ltd v Watson aptly summarise the relevant principles: The law is clear enough. A number of the basic principles were summarised by Slade J in Powell v McFarlane. Thus, pertinently: It will be convenient to begin by restating a few basic principles relating to the concept of possession under English law: [3.105]

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Whittlesea City Council v Abbatangelo cont. (1) In the absence of evidence to the contrary, the owner of land with the paper title is deemed to be in possession of the land, as being the person with the prima facie right to possession. The law will thus, without reluctance, ascribe possession either to the paper owner or to persons who can establish a title as claiming through the paper owner. (2) If the law is to attribute possession of land to a person who can establish no paper title to possession, he must be shown to have both factual possession and the requisite intention to possess (animus possidendi). (3) Factual possession signifies an appropriate degree of physical control. It must be a single and [exclusive] possession, … The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed … It is impossible to generalise with any precision as to what acts will or will not suffice to evidence factual possession … Everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no-one else has done so. (4) The animus possidendi, which is also necessary to constitute possession, … involves the intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow … the courts will, in my judgment, require clear and affirmative evidence that the trespasser, claiming that he has acquired possession, not only had the requisite intention to possess, but made such intention clear to the world. If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the [requisite] animus possidendi and consequently as not having dispossessed the owner. To those principles should be added and/or highlighted the following [reproduced, with corrections, from Bayport Industries Pty Ltd v Watson (2006) V Conv R 54-709; [2002] VSC 206 at [39]-[40]]: • When the law speaks of an intention to exclude the world at large, including the true owner, it does not mean that there must be a conscious intention to exclude the true owner. What is required is an intention to exercise exclusive control: see Ocean Estates v Pinder [1969] 2 AC 19. And on that basis an intention to control the land, the adverse possessor actually believing himself or herself to be the true owner, is quite sufficient: see Bligh v Martin [1968] 1 WLR 804. • As a number of authorities indicate, enclosure by itself prima facie indicates the requisite animus possidendi. As Cockburn C.J. said in Seddon v. Smith (1877) 36 L.T. 168, 1609: “Enclosure is the strongest possible evidence of adverse possession.” Russell L.J. in George Wimpey & Co. Ltd. v. Sohn [1967] Ch. 487, 511A, similarly observed: “Ordinarily, of course, enclosure is the most cogent evidence of adverse possession and of dispossession of the true owner”. • It is well established that it is no use for an alleged adverse possessor to rely on acts which are merely equivocal as regards the intention to exclude the true owner: see for example Tecbild Ltd. v. Chamberlain, 20 P. & C.R. 633, 642, per Sachs L.J. • A person asserting a claim to adverse possession may do so in reliance upon possession and intention to possess on the part of predecessors in title. Periods of possession may be aggregated, so long as there is no gap in possession. 182 [3.105]

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Whittlesea City Council v Abbatangelo cont. • Acts of possession with respect to only part of land claimed by way of adverse possession may in all the circumstances constitute acts of possession with respect to all the land claimed. … • Where a claimant originally enters upon land as a trespasser, authority and principle are consistent in saying that the claimant should be required to produce compelling evidence of intention to possess; in which circumstances acts said to indicate an intention to possess might readily be regarded as equivocal. … • At least probably, once the limitation period has expired the interest of the adverse possessor, or of a person claiming through him, cannot be abandoned. For the purposes of this appeal, the following additional principles are also relevant: (a)

The reference to “adverse possession” in s 14(1) of the Act is to possession by a person in whose favour time can run and not to the nature of the possession. The question is simply whether the putative adverse possessor has dispossessed the paper owner by going into possession of the land for the requisite period without the consent of the owner, with the word “possession” being given its ordinary meaning. Whether or not the paper owner realises that dispossession has taken place is irrelevant.

(b)

Factual possession requires a sufficient degree of physical custody and control. Intention to possess requires an intention to exercise such custody and control on one’s own behalf and for one’s own benefit. Both elements must be satisfied by a putative adverse possessor, although the intention to possess may be, and frequently is, deduced from the objective acts of physical possession.

(c)

In considering whether the putative adverse possessor has factual possession, a court has regard to all the facts and circumstances of the case, including the nature, position and characteristics of the land, the uses that are available and the course of conduct which an owner might be expected to follow. Each case must be decided on its own particular facts. Whilst previous cases can provide guidance as to the relevant principles which are to be applied, they should be treated with caution in terms of seeking factual analogies by reference to particular features of a person’s dealings with land. Acts that evidence factual possession in one case may be wholly inadequate to prove it in another. For example, acts done by a putative adverse possessor who lives next to the relevant property may sufficiently evidence a taking of possession, whereas those same acts may be insufficient if done by a person who lives some distance from the property.

(d)

The intention required by law is not an intention to own or even an intention to acquire ownership of the land, but an intention to possess it. The putative adverse possessor need not establish that he or she believes himself or herself to be the owner of the land.

(e)

A number of acts which, considered separately, might appear equivocal may, considered collectively, unequivocally evidence the requisite intention.

(f)

Statements about intention by a putative adverse possessor should be treated cautiously, as they may be self-serving. But whilst a statement by a person that he or she intended to possess land will not be enough in itself to establish such an intention, it may be relevant when taken in combination with other evidence suggesting an intention to possess.

(g)

Mere use falling short of possession will not suffice. In some circumstances, a person’s use of land may amount to enjoyment of a special benefit from the land by casual acts of trespass and will neither constitute factual possession nor demonstrate the requisite intention to possess. For example, where vacant land abutted a putative adverse possessor’s land, occasional tethering of the claimant’s ponies on the vacant land, and grazing them there, and occasional [3.105]

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Whittlesea City Council v Abbatangelo cont. playing on the vacant land by her children were held not to suffice. Use and enjoyment of a special benefit and exclusive possession are not, however, necessarily mutually exclusive, for exclusive possession will usually entail use and special benefit. Use and enjoyment of a special benefit, on the other hand, will not necessarily amount to exclusive possession. (h)

There is no separate requirement that the use to which the land is put by the putative adverse possessor be inconsistent with the paper owner’s present or future intended use of the land, as suggested by Leigh v Jack. In Monash City Council v Melville, Eames J reviewed the history of the rule in Leigh v Jack and said the following: To the limited extent that the rule still applies its effect, now, is as follows. Where the trespasser’s acts had not been inconsistent with the future planned use, not therefore manifesting the requisite intention of dispossessing the owner, one might conclude that the requisite elements for adverse possession had not been established; [l]ikewise it may more readily be concluded that the requisite elements to constitute adverse possession had not been established where the land is waste land and the possessor had not done any acts to manifest an intention to dispossess the owner. However, where the trespasser had done acts which plainly manifested an intention to dispossess the owner, and where the acts would otherwise lead to the conclusion that adverse possession had been established, the fact that the land was waste land or was set aside for some future public purpose, did not introduce any special rule which gainsaid that conclusion.

It was not suggested before us that Eames J incorrectly stated the law in relation to the present limited effect of the rule in Leigh v Jack. We would therefore proceed on the basis that his Honour correctly stated the law even if it was not for the subsequent decision of the House of Lords in J A Pye (Oxford) Ltd v Graham, where Lord Browne-Wilkinson (with whom the other Law Lords agreed) said this in relation to the rule in Leigh v Jack: The suggestion that the sufficiency of the possession can depend on the intention not of the squatter but of the true owner is heretical and wrong. … The highest it can be put is that, if the squatter is aware of a special purpose for which the paper owner uses or intends to use the land and the use made by the squatter does not conflict with that use, that may provide some support for a finding as a question of fact that the squatter had no intention to possess the land in the ordinary sense but only an intention to occupy it until needed by the paper owner. For myself I think there will be few occasions in which such an inference could be properly drawn in cases where the title owner has been physically excluded from the land. But it remains a possible, if improbable, inference in some cases. (i)

Whilst inconsistent use is not required, it may be a factor, where it is present, which is indicative of factual possession and of an intention to possess to the exclusion of the paper owner.

Facts We turn to the relevant facts. Unless otherwise indicated, these facts were either agreed by the parties, or found by the trial judge, and were not in issue on the appeal. The land and the pre-1958 position The land is vacant general law land, is rectangular in shape, and is approximately half an acre in size. Its southern boundary fronts Bridge Inn Road, Mernda. Its long boundaries are its southern frontage to Bridge Inn Road and its northern boundary. The land was a gift to the Council’s predecessor, the Shire of Whittlesea, in July 1908, for the construction of a shire hall. The hall was never built because the Council offices were relocated from 184 [3.105]

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Whittlesea City Council v Abbatangelo cont. Mernda to Epping. The Shire retained the land for municipal purposes. Some time prior to 1950 it planted a mixture of poplar trees along the southern boundary of the land, and gum trees throughout the block. In 1939, according to survey field notes prepared at the time, there were post and wire fences on all the boundaries of the land. [The property and the position between Nov 1958 - Oct 1970] Mrs Abbatangelo and her late husband had four sons, Alfred (born in 1957), Joseph (born in 1959), Robert (born in 1962) and Richard (born in 1967) (“Abbatangelos”). In November 1958, Mrs Abbatangelo and her husband bought the property abutting the western, northern and eastern boundaries of the land. That is, the respondent’s property enclosed the land on three of its four sides, the exception being the southern boundary which abutted Bridge Inn Road. To the east and west of the land, the respondent’s property also fronted that road. The respondent’s property, which was under the Torrens system, comprised just under five acres. Mrs Abbatangelo has been the sole registered proprietor of the respondent’s property since her husband’s death in 1991. The title to the respondent’s property initially included a parcel to the west of its current western boundary. Mrs Abbatangelo and her late husband constructed a house on that parcel in 1959 and lived there until approximately 10 October 1970. It was subsequently subdivided from the respondent’s property and sold. At the time when the Abbatangelos acquired their property, the boundary fencing of the land, except for the southern fence, was situate on its title boundaries. The last-mentioned fence was misaligned from the title boundary by about half a metre. We pause to note that the Abbatangelos never removed or shifted the position of the fences along the northern and western boundaries of the land, and that at all times from 1958 a southern boundary fence existed. On the other hand, the Abbatangelos did work on the boundary fencing from time to time, just as they constructed and repaired internal fencing on their property. With respect to the boundary fencing of the land, there were two areas of dispute at trial. The first was whether the Abbatangelos had constructed the southern boundary fence which was observed by a surveyor, Mr Peter Mulcahy, in 1969. The second was whether the eastern boundary fence, as the judge found, effectively ceased to exist in the latter 1980s. These areas of dispute were re-agitated before us. At some point, the Abbatangelos installed a gate in the northern boundary fence of the land, close to its western boundary. The gate was sufficiently wide to permit access by a vehicle. Mrs Abbatangelo gave oral evidence that the gate was installed in 1959 or 1960 and the trial judge appears to have accepted that evidence. Two expert photogrammetrists gave evidence, however, that no gate was discernible in the 1960s from available aerial photographs. They agreed, on the other hand, that an aerial photograph taken on 16 March 1987 depicted a possible gate (or at least a gap) in the northern boundary fence. Each of those witnesses gave evidence that none of the aerial photographs were of a quality which allowed them to see any fencing wires. The Abbatangelos kept a variety of animals on their property from about 1960 onwards. Apart from their pet dogs, the types and numbers of animals which they kept on the property changed over time. The land was used by the family’s livestock for grazing and for shade, shelter and at times enclosure. From about 1962 to about 1967, the Abbatangelos operated a free range poultry farm on their property and the land, selling eggs. This venture ultimately failed, but some domestic free range chickens remained on the respondent’s property and the land. [3.105]

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Whittlesea City Council v Abbatangelo cont. Throughout the period 1960 to 1980, the Abbatangelos always ran some cattle, including a few milking cows and one or two bulls, on their property. This included the period 1970 to 1975, when the Abbatangelos lived in Geelong during the week. The evidence was not altogether clear precisely how many cattle were run on the property at any one time. As we have said, use was made of the land by whatever stock were on hand from time to time. According to Mrs Abbatangelo, over a period which ended by the time that the family moved to Geelong, they ran one or more sheep on their property; likewise, one or two goats. These animals, so long as they were on hand, also made use of the land for the purposes which we have earlier described. The Abbatangelos and family friends held occasional barbeques and social gatherings on the land in the 1960s, 1970s, 1980s and 1990s. Mrs Abbatangelo’s children, grandchildren and extended family played on the land. She described the land as a secure place for the children to play. The Abbatangelos placed a bathtub for use as a water trough for livestock towards the north-western boundary of the land. The judge did not make a finding about when the bathtub was installed, and the date of installation was not specifically agreed by the parties. Before us, argument proceeded on the tacit basis that the bathtub was installed relatively early in the Abbatangelos’ occupation of the respondent’s property. The Abbatangelos maintained the trees and vegetation on the land, and removed noxious weeds and pests. They kept the land clear of fallen timber. They expended money for materials, and laboured, in doing those works. Mrs Abbatangelo’s sons gave evidence that fallen branches were collected for firewood, that the grass was mowed as a fire break and to keep the snakes down, and that rabbits were caught to be eaten. It appears that these activities took place throughout the period in which the Abbatangelos lived on the property - this including, to a lesser extent, the period when they lived in Geelong and visited the property at weekends. The state of the fences in 1969 In 1969, a licensed surveyor, Peter Mulcahy, was engaged by the Abbatangelos to carry out a survey of the respondent’s property to support a planning subdivisional application in relation to the respondent’s property. Mr Mulcahy was called by the Council at trial. He concluded that the fence on the southern boundary of the land was a different fence from the fence that had been in place in 1939, and that it was in a slightly different position. In 1969, the fence was of post and wire construction on one side and a “picket fence” on the other side. Mr Mulcahy explained that by “picket fence” he meant wooden slats rather than steel pickets. Mr Mulcahy further observed that in 1969 there was no fence along the southern boundary of the respondent’s property to the east of the land. The 1969 survey field notes prepared by Mr Mulcahy also showed that the post and wire fences on the east, north and west boundaries of the land, as noted in the 1939 survey field notes, were still in place in 1969. Mr Mulcahy described those fences in his survey field notes as “old” post and wire fences (that is, at least 20 years old). As we have said, it was in dispute at trial whether the Abbatangelos put the southern boundary fence, as it stood at 1969, in place. The judge found that they did so. That finding was challenged before us. The position between October 1970 and February 1975 From about October 1970 until about February 1975, the Abbatangelos lived in Geelong. They returned to Mernda to live in a house which had been built whilst their principal place of residence was Geelong. As at trial, that house was still the Abbatangelo home. The Abbatangelos visited their property and the land at weekends whilst they lived in Geelong. They did so in order to feed and water the stock which they had left behind on both properties and in order to maintain those properties. There was a factual dispute at trial about the frequency of those visits. 186 [3.105]

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Whittlesea City Council v Abbatangelo cont. Mrs Abbatangelo and members of her family gave evidence, which the trial judge accepted, that the family visited virtually every weekend. The judge’s finding was not directly challenged in this Court. There was also dispute as to the number of stock which were grazed on the two properties during that period in question. Mrs Abbatangelo’s evidence was particularly inconsistent in this connection. The position between February 1975 and trial As at trial, Mrs Abbatangelo’s residence and outbuildings lay to the west of the land, but more of her property lay to the north and east of that land. The driveway leading to her residence was a short distance west of the western boundary of the land, and ran parallel to the western boundary fence of the land. A post and rail fence and a narrow row of trees separated the driveway from the land. The respondent’s property to the north and east of the land was unimproved land on which was conducted family or domestic farming. There is a dam at the eastern end of the respondent’s property, which lies east of the land. One of Mrs Abbatangelo’s sons gave evidence that, prior to the last ten years, it had held a lot of water. He said that livestock kept on the respondent’s property during the period that the family lived in Geelong drank from that dam and from troughs placed on the land and the respondent’s property by the Abbatangelos. Some time after 1975, a white post and rail fence was built along the southern boundary of the respondent’s property, between the western boundary of the land and the eastern side of the respondent’s driveway. This fence did not extend east along the southern boundary of the land – a matter upon which the appellant sought to rely. In about 1975, a family member purchased a horse. Thereafter the family ran horses on their property, and occasionally bred foals. Between 1975 and 2007, there were not less than two and up to about eight horses on the property at any one time. Use was made of the land by the horses for the purposes which we have described in respect of other Abbatangelo stock. Horses were also ridden on the land. Mrs Abbatangelo and other members of her family gave evidence at trial that the family had removed the post and wire fence along the eastern boundary of the land in 1986. The Council disputed that evidence. In essence, as will be seen, the judge accepted it. The Council complained about that finding in this Court. The 1978 planning application On 5 October 1978, the Abbatangelos lodged a planning application with the Melbourne and Metropolitan Board of Works. They sought a permit to subdivide their land. The Board refused to grant a permit, and on 20 December 1978 the Abbatangelos appealed to the Town Planning Appeals Tribunal. Both the planning application and the appeal documents included plans which showed the respondent’s property and the land and their dimensions, with the latter marked “NIT” - that is, “Not in Title”. The Council argued that this notation told against the Abbatangelos having taken possession of the land with the requisite intent. In a written statement to the Tribunal dated 28 March 1979, prepared by Claire Stephenson on behalf of the Shire of Whittlesea in respect of the appeal, Ms Stephenson stated (referring to the land): “Directly adjoining the proposed allotment to the east, is a vacant allotment owned by the Shire of Whittlesea, which has been set aside for proposed Municipal purposes”. The Council sought to rely upon this statement as an assertion of ownership that was not questioned by the Abbatangelos at that time. Mr Draper’s visit In 1992, a Council employee, John Draper, attended the respondent’s property to inspect it in connection with the flooding of a spoon drain. He spoke with Mrs Abbatangelo and asked if she knew [3.105]

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Whittlesea City Council v Abbatangelo cont. who owned the land, because he needed permission to enter privately owned land. Mrs Abbatangelo told Mr Draper that the land was owned by the Council. There was evidence that Mr Draper was shocked and surprised by this revelation. The Council sought to characterise Mr Draper’s entry upon the land as entry by the owner without requiring permission; and to rely upon what Mrs Abbatangelo told him as a contraindication that the Abbatangelos had taken possession of the land with the requisite intent. … The path to litigation In 2004, Mrs Abbatangelo learned that the Victorian Government planned to introduce legislation to abolish adverse possession claims against land owned by municipal councils. At her request, her solicitors wrote to the Council on 14 September 2004 giving notice that she would be making an adverse possession claim in respect of the land. The Council’s solicitors replied by letter dated 24 September 2004. They stated that the Council would vigorously oppose any application to acquire the land by adverse possession. They also requested that a horse that was grazing on the land be removed. In October 2004, the Council erected a star picket and wire fence on the eastern boundary of the land and installed a chain and padlock on the gate in the northern boundary fence. Mrs Abbatangelo removed the fence. These events occurred against the backdrop of amendments to the Whittlesea Planning Scheme which were approved in 2004 and resulted in a proposed town centre being located in close proximity to the respondent’s property and the land. Unsurprisingly, the value of both properties increased dramatically. In December 2004, Mrs Abbatangelo commenced this proceeding against the Council, seeking a declaration that she had acquired title to the land by adverse possession. Summary of acts of adverse possession relied on by Mrs Abbatangelo At trial, Mrs Abbatangelo relied upon the following acts as establishing adverse possession of the land from the time her family commenced residing on the respondent’s property in 1958: (a)

installation of the gate;

(b)

maintenance of fences on the boundaries of the land, including the southern boundary fence, without seeking financial contribution from the Council;

(c)

use of the land for grazing, shade, shelter and at times enclosure of the variety of animals kept by the Abbatangelos from approximately 1960;

(d)

installation of the bathtub trough;

(e)

maintenance of trees and vegetation, including mowing of grass, and removal of noxious weeds and pests - foxes, snakes and rabbits;

(f)

the clearing of fallen timber and maintenance of a fire break;

(g)

the expending of money, and the provision of labour, to carry out the various kinds of work on the land;

(h)

the holding, from the 1960s, of occasional barbeques and social gatherings on the land;

(i)

the playing by Mrs Abbatangelo’s children, grandchildren and extended family on the land;

(j)

the construction of children’s swings and a rudimentary cubbyhouse-like structure on the land;

(k)

the removal of the fence on the eastern boundary of the land in approximately 1986; and

(l)

use of the land for sporting and recreational activities such as horse riding, archery, football, horse training, rabbit shooting, bike riding, “paddock bomb” driving and cricket.

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Whittlesea City Council v Abbatangelo cont. … The decision below should be affirmed In our opinion, the trial judge was correct to hold that the appellant’s title to the land had been extinguished by the respondent’s adverse possession. For the reasons which follow, the respondent demonstrated both sufficient acts of factual possession and a manifest intention to exclusively possess the land for the necessary period. On a tenable view of the evidence, actual possession with requisite intent was continuous from the early 1960s until 2004. But even if the better view was that possession was broken during the period when the Abbatangelos resided in Geelong - that is, between about October 1970 and February 1975 - there was, we consider, continuous possession with requisite intent for more than 15 years from the time that they returned to Mernda. From that time, the Abbatangelos engaged in a process of reinforcing and building upon what they had previously done in relation to the land. On the basis that time began to run no later than the end of February 1975, the appellant’s title was extinguished at the end of February 1990 at the latest. In arriving at our conclusions, we have rejected a number of submissions advanced for the Council. Those submissions can be grouped into five general categories: (1) submissions about factual possession; (2) submissions about intention to possess; (3) submissions about particular aspects of the legal principles which inform adverse possession …. We will deal with the submissions in that order. As intention to possess is usually inferred from acts of possession, the appellant understandably relied upon similar evidence and submissions in attacking the judge’s findings with respect to both elements. Except where necessary, we will deal with overlapping submissions and evidence in respect of one or other element on the basis that our conclusions will apply to both. Finally before embarking upon our analysis of the Council’s submissions, we pause to note that in this Court senior counsel for the appellant conceded that the Abbatangelos had not acted surreptitiously or stealthily in the manner in which they used the land. Factual possession It was submitted for the Council that the respondent had not shown sufficient acts of possession to establish that she had factual possession. Reliance was placed upon the language of one American case, it being submitted that the respondent did not unfurl her flag and keep it flying on the land, because none of her dealings with the land would have arrested the appellant’s attention. The Abbatangelos’ acts, it was submitted, were not sufficiently obvious to give the Council the means of knowledge that the respondent had entered into possession of the land adversely to its title and with the intention of taking possession. The appellant relied upon the following circumstances: (a)

The respondent did nothing to change the pre-existing distinctive – that is, the treed appearance of the land.

(b)

The respondent constructed a post and rail fence along the western boundary of the land in 1975. The same style of fence was constructed by the respondent along the Bridge Inn Road boundary of the respondent’s property to the west and, some time later, to the east of the land. But that style of fence was never extended across the southern boundary of the land. The current fence along that boundary was a post and wire fence, essentially in its original condition. It was not relevant who had constructed that fence. What was relevant was that the fence was distinctively different from the more impressive style of the southern boundary fences to the east and west of the land. Anyone looking at the properties from the road would not gain the impression that the owner of the property on either side of the land was asserting exclusive possession over the land.

(c)

The presence of one or two animals grazing or sheltering under the trees, or the sight of children playing on the land, were not circumstances that would arrest attention. [3.105]

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Whittlesea City Council v Abbatangelo cont. (d)

The respondent did not make any improvements to the land.

In response to questions from the Bench about what further acts could have been done by the respondent and her family in order to establish possession, senior counsel for the appellant said that the land might have been cleared and a rotunda, a tennis court, a meshed enclosure for chickens or a holding pen for pigs constructed, or a steel mesh or paling fence might have been built along the boundary of the land. In our view, for the reasons discussed below, none of these examples were apt having regard to the circumstances of the Abbatangelo family, the nature, position and characteristics of the land and the respondent’s property, and the uses to which the Abbatangelos chose to put the land. The answer to the question what acts of possession are sufficient to show factual possession always depends upon the particular facts and circumstances of the instant case. These include the circumstances of the putative adverse possessor. In this case, those circumstances included the fact that the respondent’s property effectively enclosed the land on three of its four sides, whilst its fourth side faced the road. It is rare for there to be something so clear as a literal unfurling of a flag or the erection of a “keep out” sign. Nor is there any general requirement that structures be erected on the land, although the erection of structures may assist in establishing factual possession. Similarly, it cannot be said that grazing stock on land, of itself, will never be sufficient to establish possession. Whether it is sufficient of itself, or in combination with other matters, invites consideration of all the circumstances of the case. In this case, the respondent’s failure to change the appearance of the land, particularly in relation to the trees, did not in our opinion betoken an absence of sufficient acts of possession. It was explicable in terms of the amenity provided by the treed land, which provided shade and shelter for stock and facilitated its use and enjoyment by children and for social occasions. Supposing that there had been a single owner of the respondent’s property and the land, we consider it quite likely that such owner would have made the same use of the land as did the Abbatangelos. We next consider that maintenance of the southern boundary fence by the Abbatangelos was, in combination with the other circumstances, indicative of an exercise of control and exclusive possession in the requisite sense. This is so despite the difference in appearance between that fence and the southern boundary fences of the respondent’s property on either side of it. Joseph Abbatangelo gave evidence that no post and rail fence was ever constructed along the southern boundary of the land “[m]ostly because there was a lot of trees lined up along that fence line there and we had a lot of trouble trying to dig holes for posts because of the roots. We would always encounter roots just below the surface”. The witness said that no post and rail fence was ever constructed along the eastern boundary of the land for the same reason. It was not suggested before us, when senior counsel for the respondent drew that evidence to our attention, that what the witness said was contested below. Additionally, the judge commented that “the choice of fence for the disputed land may be explained by any visual impact which it might have on what might otherwise appear from the road as featured parkland”. So, for more than one reason, nothing was to be made of the particular style of fence along the road frontage of the land. … The appellant submitted that the placing of the bathtub stock trough on the land should not be given great weight because there was no piped water connected to it. All that the Abbatangelos did was hand-fill it from time to time. In our view, that submission failed to take account of the Abbatangelos’ position. They resided on the adjacent property. The trough was positioned close to the boundary of the land, and so could be observed, and filled as required. There was no need for a piping system. The arrangements for filling the trough were rudimentary, adequate, and we think not unusual. In our opinion, the placing of the trough on the land was a circumstance which, viewed in context, considerably aided the respondent’s case. 190 [3.105]

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Whittlesea City Council v Abbatangelo cont. The appellant also submitted that the respondent had not established exclusive possession because nothing that the Abbatangelos had done on the land had ever prevented the appellant or anyone else from entering it without going into the respondent’s property. The appellant argued that the land could at all times have been accessed by climbing through the wire strands of its southern boundary fence. We accept, for sake of argument, that a person could have gained access to the land in the manner described. But we do not accept that this carried the consequence for which the Council contended. It is unremarkable, and says little to resolve the real issue in the case - that is, whether the respondent had exclusive possession of the land for a continuous period of 15 years without the appellant’s consent - that a person would have been able to access the land by climbing through a fence of essentially rural construction. It may be observed, moreover, that vehicular access was only possible through the gate on the respondent’s property. The Council also submitted that his Honour did not make a direct finding, as it was contended he was required to make, that the appellant had been dispossessed, or had discontinued possession. The criticism was unfounded. As Pye makes clear, dispossession of the paper owner is established by the putative adverse possessor going into possession of the land for the requisite period without the consent of the owner. His Honour held that the Abbatangelos had exclusive possession and control of the land without the Council’s consent for continuous period of 15 years. That was sufficient to establish factual possession. Another argument advanced for the Council was that there was no use of the land by the Abbatangelos which was inconsistent with the appellant’s rights as the paper owner. Senior counsel for the appellant conceded that inconsistency may not be strictly necessary, but maintained that there will be very few cases where adverse possession is established without inconsistent use. In our view, inconsistent use need not be proved in order to establish factual possession. What is important is whether the requisite degree of control and exclusivity was present. In this case, for the reasons we have already given, there was such control and exclusivity. A still further submission advanced for the Council was that the judge had erred in relying on the respondent’s “integration” of the land and treating it as synonymous with factual possession. The judge also erred, it was said, by equating use with control, non-use with dispossession or discontinuance of possession, integration with exclusion, and mere use with possession. In our view, there was no substance to these submissions. On a fair reading of the judge’s reasons, his Honour understood what the law required to establish factual possession and applied the appropriate principles in making his findings. For the reasons we have already given, those findings were correct in relation to factual possession. Intention to possess The Council submitted that the trial judge misstated the law on intention to possess because he failed to refer in full to what Ashley J said in Bayport. In particular, the appellant criticised the trial judge for not referring to the following passage in Powell v McFarlane, which was quoted in Bayport: If his acts are open to more than one interpretation and he had not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the requisite animus possidendi and consequently as not having dispossessed the owner. The appellant submitted that the consequence of the alleged error was that the judge gave undue primacy to his findings about the respondent’s subjective intention and failed to give sufficient consideration to whether her acts indicated a manifest unequivocal intention to exercise exclusive control. In our opinion, the appellant’s criticisms of the trial judge’s analysis were unfounded. A fair reading of his Honour’s judgment indicates he understood what the law required in relation to the intention to [3.105]

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Whittlesea City Council v Abbatangelo cont. possess and that he correctly applied the relevant law to the facts. In particular, contrary to the appellant’s submission, his Honour did not err in finding that ease of access through the fence on the southern boundary of the land did not detract from the nature of a fence as a sign to all who saw it not to enter. As we have said already, the fact that a person, including an employee of the Council, could have physically entered the land on foot by stepping through the wire strands was neither determinative nor necessarily of central importance. The question was not whether the respondent had not done her best to exclude the appellant – because, for example, a different type of fence would have been more effective for this purpose – but whether it could be inferred from all of her acts that she intended to exercise custody and control of the land on her own behalf and for her own benefit. The trial judge, in substance, asked himself that question and answered it in favour of the respondent, as he was entitled to do on the evidence. The appellant submitted that the respondent and her sons had admitted that many of the acts of use were undertaken for the purpose of providing special benefits to the respondent rather than being conducted with an intention of taking exclusive possession of the land. The examples given by the appellant were the grazing of livestock and the acts of maintaining trees and vegetation, removing noxious weeds, shooting rabbits and keeping down snakes. It was said that the Abbatangelos used the firewood, consumed the rabbits, and removed snakes and noxious weeds to protect their livestock and for the safety of the family; and that these acts were not accompanied by an unequivocal intention to exclusively possess the land. In our view, those submissions significantly understated the nature and extent of the Abbatangelos’ use of the land, misunderstood the references to “special benefit” in the authorities and misstated the evidence of the respondent and her sons. The very fact that a putative adverse possessor lives next to the disputed land means that he or she will be able to put that land to a greater variety of uses, and derive a greater range of benefits, than a person living further away. It may be that the best form of use by a person living next to the disputed land, consistent with treating that land as being in his or her exclusive possession, is to take advantage of its existing physical characteristics insofar as they complement the characteristics of the land upon which he or she is living. As we have stated above, use and special benefit and exclusive possession are not necessarily mutually exclusive. Where the use of the disputed land amounts to no more than casual acts of trespass – such as occasional grazing of cattle, occasional sporting activities, occasional picking of fruit or gathering of wood or hay – those acts will be insufficient to establish either factual possession or manifest an intention to exclusively possess. But that was not this case. We need not recapitulate the nature and extent of the uses to which the Abbatangelos put the land over an extended period. It is enough to say that in our view such nature and extent amounted to more than mere use, mere casual acts of trespass or mere extraction of special benefits. They constituted the taking of exclusive possession and manifested an intention to do so. Another submission advanced for the Council was that the restoration, construction and maintenance of fences was established by the evidence to be for a purpose other than excluding the paper owner namely, to prevent stock from straying onto the road. In light of this, the appellant submitted, it could not be said that the repairs to the fencing were done with the intention of asserting control and to exclude the appellant. These submissions proceeded on the misconceived premise that a person who desires to possess land exclusively builds and maintains fences on the land solely for the purpose of keeping others out. Plainly, fences serve multiple purposes. Some delineate title boundaries. Others are internal. Some are ornate. Others are minimalist and purely functional. The nature and purpose of a fence will be affected by the nature, location and characteristics of the land and the uses to which it is put. Given that the use to which the Abbatangelos put the land over an extended period included grazing of livestock, it is entirely unsurprising that one purpose of maintaining the fences on the land was to prevent animals 192 [3.105]

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Whittlesea City Council v Abbatangelo cont. from straying on to the road. The existence of that purpose, however, did not prevent the maintenance of the fences from being included in the factual matrix from which findings could be made about factual possession and an intention to exclusively possess. In a still further submission, the Council sought to rely upon notations made by the Abbatangelos in a series of planning applications lodged between 1969 and 1979 concerning the respondent’s property. Documents which they filed depicted the land and used the acronym “NIT” (“Not in Title”) to describe it. The appellant submitted that the statements were clear acknowledgments by the respondent that the appellant, rather than she, owned the land. In our view, the notations were nothing to the point. The intention that the putative adverse possessor must have, and must manifest, is an intention to possess exclusively, not an intention to own. An acknowledgement as to who is the paper owner is not inconsistent with the requisite intent. The acronym “NIT” accurately represented the title position and said nothing about who was in possession of the land and with what intention. The appellant next relied upon Ms Stephenson’s 28 March 1979 statement. It submitted that the respondent’s failure to object to the statement weighed against her having manifested the requisite intention to possess to the exclusion of all others. In our view, this submission also confused an intention to own with an intention to exclusively possess. The respondent’s failure to object did not detract from the impression that was conveyed by her acts of possession manifesting her intent. Tacit acknowledgement of paper ownership was not demonstrative of the absence of an intent to exclusively possess the land. The Council also sought to rely, a propos intention, upon the respondent’s statement to Mr Draper in 1992 that the land was owned by the appellant. Once again, the appellant’s submission confused an intention to exclusively possess with an intention to own. As we have said, the respondent’s acknowledgements of the Council’s ownership were not inconsistent with the former intention and were accurate in relation to paper ownership. In any event, whatever relevance Mrs Abbatangelo’s conversation with Mr Draper might otherwise have had, in our view the appellant’s title had already been extinguished by 1992. The appellant submitted that the trial judge was bound to, but did not, find that Mrs Abbatangelo was aware of the use to which the appellant intended to put the land and so more was required to manifest an intention to possess the land adversely than was done by her. For the reasons set out at [6](h) above, the submission should be rejected. This case was not one where an inference – which Lord Browne-Wilkinson described in Pye as “improbable” – could be drawn that Mrs Abbatangelo’s presumed awareness of the Council’s intended use of the land, and the lack of inconsistency between her use of the land and the Council’s intended use, justified a finding of fact that Mrs Abbatangelo had no intention to possess the land but only an intention to occupy it until needed by the Council. In relation to the trial judge’s use of Mrs Abbatangelo’s evidence about her own subjective intention, the appellant submitted that such evidence was ambiguous, inadequate and in any event self-serving. It submitted that the evidence of her intention apparent from her statement to Mr Draper should be preferred. We have already dealt with the 1992 conversation. With respect to the respondent’s evidence of her subjective intention, whilst statements of intention must be treated with caution, they may nonetheless be of use in conjunction with other circumstances. In this case, the trial judge was alive to the potentially self-serving nature of Mrs Abbatangelo’s statements of her intention and evaluated her evidence in the context of the evidence as a whole. In our opinion, he was entitled to accept Mrs Abbatangelo’s stated intention in the context of all the evidence. The appellant also relied on the Abbatangelos not having paid rates for the land. Although payment of rates may be evidence of an intention to possess, there is no requirement that they be paid for intention to be established. As the Council was the paper owner of the land, it was not rated. In the circumstances, it was not to be expected that Mrs Abbatangelo would request the Council to issue rate [3.105]

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Whittlesea City Council v Abbatangelo cont. notices to her. Again there is an element of confusion with recognition of ownership. It cannot tell against Mrs Abbatangelo having the requisite intention to possess the land that she did not volunteer to pay rates. The appellant contended that the trial judge erred in not having regard to evidence that the value of the land increased by almost 500 per cent between 2004 and 2006, that in 2006 developers had offered the respondent’s children $6.9 million for the respondent’s property, and to evidence pertaining to the state of development of the land in the area generally in recent years. In our view, evidence of the value of the respondent’s property and the making of offers to buy it was irrelevant. Evidence about the state of development of land in the area generally could be relevant in some cases, but not in this case because it related to a period well after the extinguishment of the appellant’s title. Other issues relating to the principles of adverse possession We come to the third category of submissions advanced for the Council … The judge found that the period spent by the Abbatangelos in Geelong did not constitute an interruption to their continuous possession. The appellant challenged this finding. In our view, it was open to the judge on the evidence before him to find that the Geelong period did not interrupt the Abbatangelos’ possession. But even if such a finding was not open to the judge, in our view there was a continuous period of possession for 15 years from the time the Abbatangelos returned to Mernda in February 1975. … Conclusion For the reasons stated, and as we said earlier, the appeal should be dismissed.

[3.110]

Notes and Questions

1. In Whittlesea City Council v Abbatangelo (2009) 259 ALR 56 several of the “additional principles” listed by the court early in its judgment derived from the decision of the House of Lords in JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419. Following that decision, a first instance ruling of the European Court of Human Rights held that the loss through adverse possession of the documentary owner’s title in JA Pye constituted an unauthorised deprivation of property contrary to Art 1 of the European Convention on Human Rights 1950 Protocol 1. However, on appeal, the Grand Chamber of the European Court of Human Rights held that the principles of the English law of adverse possession as articulated in JA Pye were not contrary to the provisions of the Convention: JA Pye (Oxford) Ltd v United Kingdom [2008] 46 EHRR 45. For a discussion of possible human rights implications of the law of adverse possession, see Moore, Grattan and Griggs, Australian Real Property Law (6th ed, Thomson Reuters, Sydney, 2016), [3.25] – [3.30]. 2. For the various Australian statutory provisions setting out when the limitation period commences, see Limitation Act 1969 (NSW), ss 28, 38; Limitation of Actions Act 1958 (Vic), ss 9(1), 14(1); Limitation of Actions Act 1974 (Qld), ss 13, 19; Limitation of Actions Act 1936 (SA), s 6; Limitation Act 2005 (WA), ss 65, 66; Limitation Act 1974 (Tas), ss 11, 16. The South Australian legislation is drawn directly from the Real Property Limitation Act 1833 (UK) and states simply that the cause of action accrues upon dispossession or discontinuance of possession. In Smith v Lloyd (1854) 9 Exch 562; 156 ER 240, the Court 194 [3.110]

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had to consider this legislation and it was held “that the statute applies not to cases of want of actual possession by the plaintiff, but to cases where he had been out of and another in possession for the prescribed time”. In New South Wales, Queensland, Western Australia and Tasmania, the limitation period with respect to an action to recover land is 12 years (Limitation Act 1969 (NSW), s 27(2); Limitation of Actions Act 1974 (Qld), s 13; Limitation Act 2005 (WA), s 19; Limitation Act 1974 (Tas), s 10(2)). In Victoria and South Australia, the relevant period is 15 years (Limitation of Actions Act 1958 (Vic), s 8; Limitation of Actions Act 1936 (SA), s 4). 3. In a number of earlier Australian and English decisions on adverse possession (see Leigh v Jack (1879) 5 Ex D 264; Williams Bros Direct Supply Ltd v Raftery [1958] 1 QB 159; Riley v Penttila [1974] VR 547; Wallis’s Cayton Bay Holiday Camp Ltd v Shell-Mex and BP Ltd [1975] QB 94; Treloar v Nute [1976] 1 WLR 1295, acts of user inconsistent with the purpose to which the true owner intends to put the land, is set out as a criterion for adverse possession. Thus where the true owner had no particular use for the land or had only a future intended purpose, satisfaction of such a criterion would be difficult. It appears clear now that this is not a separate test. “Where the land is waste land and the true owner cannot and does not for the being use it for the purpose for which he acquired it, one may more readily conclude that the acts done on the waste land do not amount to dispossession of the owner. But I find it impossible to regard those cases as establishing that so long as the true owner cannot use his land for the purpose for which he acquired it the acts done by the squatter do not amount to possession of the land.” Wallis’s Cayton Bay Holiday Camp Ltd v Shell-Mex and BP Ltd [1975] 1 QB 94 at 109-110 per Stamp LJ in dissent and quoted with approval in Buckinghamshire County Council v Moran [1990] Ch 623 by Slade LJ and by Lord Browne-Wilkinson in JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419. See also Re Johnson [1973] 2 Qd R 502; Monash City Council v Melville (2000) V ConvR 54-261; Bayport Industries Pty Ltd v Watson (2006) V ConvR 54-709; Whittlesea City Council v Abbatangelo (2009) 259 ALR 56; Cervi v Letcher (2011) 33 VR 320. Further, the use of this criterion to imply a licence from the true owner to the possessor has been discredited: Buckinghamshire County Council v Moran [1990] Ch 623; Woodward v Wesley Hazell Pty Ltd (1994) 3 Tas SR (NC) N4 discussed in (1994) ANZ ConvR 624 and Skapinker “Adverse Possession” [1994] LSJ 32.). Nevertheless, it is important to note as a general principle that permission given by the true owner to the user of the land does prevent the use from constituting adverse possession. Such permission may sometimes be implied. See Ghilarducci v Ghilarducci [1993] ANZ ConvR 331 decision of Full Court, Supreme Court of Western Australia, 15 July 1992 where the Full Court of the Supreme Court of Western Australia held on the facts that the particular use of the land was consistent with an implied licence to use the land. 4. What is the nature of the intention which the alleged possessor must have? How is it to be proved? A mistaken belief that the alleged possessor thought he or she was the true owner of the disputed land, or a mistaken belief that he or she was a lessee from the documentary title holder, does not preclude the existence of the relevant animus possidendi: Bligh v Martin [1968] 1 WLR 804; Williams v Usherwood (1981) 45 P CR 235; Pulleyn v Hall Aggregates (Thames Valley) Ltd (1992) 65 P & CR 276; Hughes v Cork [1994] EGCS 25; Buckinghamshire County Council v Moran [1990] Ch 623; Malter v Procopets (2000) V ConvR 54-624 (Supreme Court of Victoria; Court of Appeal); Woodward v Wesley Hazell Pty Ltd (1994) 3 Tas SR (NC) N4; Ghilarducci v Ghilarducci [1993] ANZ ConvR 331; [3.110]

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Lambeth London Borough Council v Blackburn (2001) 82 P & CR 494; JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419; Bayport Industries Pty Ltd v Watson (2006) V ConvR 54-709; Sunny Corporation Pty Ltd v Elkayess Nominees Pty Ltd [2006] VSC 314. The modern view appears to be that the intention needs only to be an intention to possess (rather than own) and an intention to exclude the whole world, including the true owner insofar as this is possible: JA Pye (Oxford) v Graham [2003] 1 AC 419; Bayport Industries Pty Ltd v Watson (2006) V ConvR 54-709; Whittlesea City Council v Abbatangelo (2009) 259 ALR 56; Cervi v Letcher (2011) 33 VR 320. See Moore, Grattan and Griggs, Australian Real Property Law (6th ed, Thomson Reuters, Sydney, 2016), [3.115]-[3.150]. 5. Consider the relevance of fencing or enclosure to a claim of adverse possession. See Clement v Jones (1909) 8 CLR 133; Santucci v Barnes (1992) V ConvR 54-434; Mulcahy v Curramore Pty Ltd (1974) 2 NSWLR 464 at 475; Riley v Penttila [1974] VR 547; Monash City Council v Melville (2000) V ConvR 54-261; Malter v Procopets (2000) V ConvR 54-624; Bayport Industries Pty Ltd v Watson (2006) V ConvR 54-709; Whittlesea City Council v Abbatangelo (2009) 259 ALR 56; KY Enterprises Pty Ltd v Darby [2013] VSC 484. See Moore, Grattan and Griggs, Australian Real Property Law (6th ed, Thomson Reuters, Sydney, 2016), [3.160]. Enclosure provides strong evidence of adverse possession (going to both the criteria of factual possession and intention). Where the fencing has been in position for less than the statutory period, there must be other evidence of intention to possess and of factual possession during the time when there was no fencing, in order for adverse possession to be made out: Tennant v Adamczyk [2006] 1 P & CR 28. Fencing must always be considered in light of all the circumstances, and there have been a number of cases where the disputed land has been fenced and yet the claim for adverse possession has failed: see, for example, Clement v Jones (1909) 8 CLR 133 (enclosure of disputed land and own land within one ring fence insufficient in circumstances (grazing land)); Riley v Penttila [1974] VR 547 (fence erected to better enjoy an existing right(an easement)); Bayport Industries Pty Ltd v Watson (2006) V ConvR 54-709 (poorly maintained fence erected originally for farming purposes). 6. Consider the relevance of the intentional payment of rates in respect of the disputed land by the adverse possessor or the documentary title holder: Bank of Victoria v Forbes (1877) 13 VLR 760 (payment of rates by squatter constituted strong evidence to show that the claimant had a deliberate purpose to create a title in himself); Bree v Scott (1903) 29 VLR 692 (strong inference in favour of adverse possession when the person in occupation pays the rates; but the payment of rates by a true owner who is out of possession, provides only very slight evidence in her or his favour that the occupier of the land is not holding in adverse possession for her or himself); Quach v Marrickville Municipal Council (1990) 22 NSWLR 55 (acquiescence in true owner of the payment of rates by the claimant is “very strong evidence of adverse possession by the claimant”); Shaw v Garbutt (1996) 7 BPR 14,816 (fact that a squatter has not paid the rates does not necessarily eliminate his or her claim); Guggenheimer v Registrar of Titles (2002) V ConvR 54-658 (payment of rates together with enclosure but minimal use in the first years – adverse possession); Cervi v Letcher (2011) 33 VR 320 (no animus possidendi where the putative adverse possessor was not aware that he was paying rates for the land over which he later claimed adverse possession). See also Kirby v Cowderoy [1912] AC 599; O’Neil v Hart [1905] VLR 107; Cooke v Dunn (1998) 9 BPR 16,489. See Land Titles Act 1980 (Tas), s 138U which provides that the payment of rates by the true owner prevents time from running. 196 [3.110]

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7. Adverse possession of part of a piece of land may be taken and this may be done on a horizontal or vertical basis; see for example, Quach v Marrickville Municipal Council (No 2) (1990) 22 NSWLR 55; Rains v Buxton (1880) 14 Ch D 537; Williams v Usherwood (1981) 45 P & CR 235; Marengo Cave Co v Ross 7 NE (2d) 59 (1937). See Moore, Grattan and Griggs, Australian Real Property Law (6th ed, Thomson Reuters, Sydney, 2016), [3.100]. 8. There are specific provisions in the limitation statutes applicable as to when a cause of action arises when adverse possession is taken in land over which there is a future interest, a leasehold estate or an equitable interest and in relation to adverse possession as between co-owners. A detailed discussion of these matters can be found in Moore, Grattan and Griggs, Australian Real Property Law (6th ed, Thomson Reuters, Sydney, 2016), [3.185]-[3.275]. See also Fairwather v St Marylebone Property Co Ltd [1963] AC 510; Hayward v Chaloner [1968] 1 QB 107; Eckford v Stanbroke Pastoral Co Pty Ltd [2012] 2 Qd R 324. Further, there are specific statutory provisions relating to the situations where actions are brought to recover land of a deceased person or land assured other than by will. See generally Moore, Grattan and Griggs, Australian Real Property Law (6th ed, Thomson Reuters, Sydney, 2016), [3.170]-[3.180]. Running of the limitation period

Mulcahy v Curramore Pty Ltd [3.115] Mulcahy v Curramore Pty Ltd [1974] 2 NSWLR 464 New South Wales Court of Appeal [In a claim by the plaintiff for a declaration that he was the owner of the disputed land by reason of adverse possession, Bowen CJ commented on the requirements for the commencement and running of the limitation period.] BOWEN CJ in Eq: … Possession which will cause time to run under the Act is possession which is open, not secret; peaceful, not by force; and adverse, not by consent of the true owner. Lord Shaw of Dunfermline, giving the opinion of the Privy Council in Kirby v Cowderoy [1912] AC 599, discussed the nature and incidents of adverse possession. Adopting earlier judicial observations, he said [1912] AC 599, at p 603: “Possession ‘must be considered in every case with reference to the peculiar circumstances … the character and value of the property, the suitable and natural mode of using it, the course of conduct which the proprietor might reasonably be expected to follow with a due regard to his own interests; all these things, greatly varying as they must under various conditions, are to be taken into account in determining the sufficiency of a possession’.” Fencing may be useful evidence of occupation to the exclusion of others: absence of fencing does not necessarily prove lack of possession. It depends upon the circumstances. In Kirby v Cowderoy [1912] AC 599 a possessory title was upheld notwithstanding the land was unfenced, the possessor having paid rates and visited the land from time to time. Use of the land by planting crops or running livestock upon it or occupation by residence upon the land may be useful evidence of adverse possession: absence of use or breaks in residence do not necessarily prove lack of possession. The possessor, acting as would a true owner, may consider it more appropriate to behave in some other way. He may, as might a true owner, pay rates and taxes on the property; lease it to others; allow agistment of cattle upon it; build, upon it; or visit it occasionally for his own purposes: see Kirby v Cowderoy [1912] AC 599; Lord Advocate v Lord Lovat (1880) 5 App Cas 273; Nicholas v Andrew (1920) 20 SR (NSW) 178, at p 184; 37 WN 36, at p 38; Re Riley and the Real Property Act (1964) 82 WN (Pt 1) (NSW) 373. [3.115]

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Mulcahy v Curramore Pty Ltd cont. The effect of s 34 is to extinguish the title of the true owner completely, not merely to render his right of re-entry unenforceable: Allen v Roughley (1955) 94 CLR 98; cf Fairweather v St Marylebone Property Co Ltd [1963] AC 510. To cause s 34 to have this effect the adverse possession must be continuous for the period of twenty years, or any extended period which may be required by the operation of other provisions of the Act. If a person, A, is in adverse possession for a period of less than twenty years, say, ten years, and then abandons the property, he leaves no cloud on the true owner’s title, which is then restored to its pristine force, and another person, B, who later enters into adverse possession of the property, cannot add the period of A’s possession to his own so as to extinguish the title of the true owner when the period of twenty years from A’s first entry into possession is reached: Trustees Executors and Agency Co Ltd v Short (1888) 13 App Cas 793, at pp 798, 799; Allen v Roughley (1955) 94 CLR 98, at pp 114, 115, 131; cf Solling v Broughton [1893] AC 556; 1893) 14 LR (NSW) 412. When a person enters into adverse possession, and so long as he continues in possession before the expiry of the statutory period, he has title to the land in the nature of a fee simple, good against all the world except the true owner, and his title may be conveyed or devised to or devolve upon, another person: Asher v Whitlock (1865) LR 1 QB 1; Perry v Clissold [1907] AC 73; (1907) 4 CLR 374; Wheeler v Baldwin (1934) 52 CLR 609; Allen v Roughley (1955) 94 CLR 98. Where there has been a series of persons in adverse possession by virtue of successive transmissions of the inchoate possessory title for a total period of twenty years or any extended period required by the Act, s 34 will operate to extinguish the true owner’s title. At that point of time the last successor being then in possession will acquire a title in fee simple to the land good against all the world including the true owner: Allen v Roughley (1955) 94 CLR 98; see generally Lightwood, The Time Limit on Actions (1909) p 118; Voumard, The Sale of Land, 2nd ed, p 431. Where there is a series of trespassers, not deriving title from each other, who have been in adverse possession for a continuous period of twenty years or any extended period required by the Act, s 34 will operate to extinguish the true owner’s title: Willis v Earl Howe [1893] 2 Ch 545, at pp 553, 554; Allen v Roughley (1955) 94 CLR 98; Salter v Clarke (1904) 4 SR (NSW) 280; 21 WN 71. It is emphasised that possession by successive trespassers must be continuous to have this effect. An abandonment by one adverse possessor followed by a break in time when the land is not in possession of some person adversely to the true owner will, as we have seen, restore the true owner’s title to its pristine force. Upon the extinguishment of the true owner’s title by successive trespassers, say A, B, C, D and E, who have been in adverse possession continuously for the necessary period, the question arises as to the person in whom the title in fee simple exists at that time. The better view appears to be that it exists in the first of the successive trespassers, A: see Allen v Roughley (1955) 94 CLR 98, at pp 131, 132; and see generally Halsbury’s Laws of England, 3rd ed, vol 24, p 255; Lightwood, op cit, at pp 125-126. E, the final trespasser, who is in possession at the time when the true owner’s title is extinguished, would, by virtue of his possession, have a title in fee simple good against all the world except A, B, C, and D. The last statement needs qualification. If A brought proceedings to eject E, and E could prove that A had abandoned possession, then, in my view, E could successfully resist A. On the same ground he might be able to resist B, C and D. Accordingly, if the departure of A, B, C and D in each case took place in circumstances constituting an abando